Supplemental Agreement No. 56 to Purchase Agreement No. 1951 (the Agreement) Between The Boeing Company and Continental Airlines, Inc. Relating to Boeing Model 737 Aircraft
Exhibit 10.4
Supplemental Agreement No. 56
to
Purchase Agreement No. 1951
(the Agreement)
Between
The Boeing Company
and
Continental Airlines, Inc.
Relating to Boeing Model 737 Aircraft
THIS SUPPLEMENTAL AGREEMENT, is entered into as of August 12, 2010 by and between THE BOEING COMPANY (Boeing) and CONTINENTAL AIRLINES, INC. (Customer);
WHEREAS, Boeing agrees to re-schedule the delivery of three (3) 737-900ER Aircraft originally scheduled to be delivered under the Agreement in April, May and June 2011 to January, April, and May 2015. The Customer also wishes to exercise [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
WHEREAS, Boeing agrees to re-schedule the delivery of two (2) 737-700 Aircraft originally scheduled to be delivered under the Agreement in July and August 2012 to March and April 2012;
WHEREAS, Boeing agrees to re-schedule the delivery of four (4) 737-700 Option Aircraft originally scheduled to be delivered under the Agreement in January, February, March and April 2012 to September and December 2012 and February and April 2013;
WHEREAS, Customer wishes to exercise its [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
WHEREAS, Customer has previously agreed to allow Boeing to use certain aircraft for flight testing in accordance with Letter Agreement 6-1162-RCN-1890, and the parties wish to update Attachment 1 to that Letter Agreement;
WHEREAS, in consideration of Customer’s acceptance of Boeing’s request to reschedule the Aircraft, advance payments received August 2, 2010 in the amount of [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] may be applied to the delivery invoice for the Aircraft with serial number 30132 scheduled to deliver August 16, 2010. Any remaining advance payments received to date for rescheduled aircraft will be held without interest and will be applied against other advance payments for both 737 Aircraft and 787 aircraft as they become due.
NOW THEREFORE, in consideration of the mutual covenants herein contained, the parties agree to amend the Agreement as follows:
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1.
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Table of Contents, Articles, Tables, Exhibits, and Letter Agreements:
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1.1 Remove and replace, in its entirety, the “Table of Contents”, with the “Table of Contents” attached hereto, to reflect the changes made by this Supplemental Agreement No. 56.
1.2 Remove and replace, in their entirety, page T-2-2 and T-2-3 of Table 1 entitled “Aircraft Deliveries and Descriptions, Model 737-700 Aircraft”, with the revised page T-2-2, T-2-3 and T-2-4 of Table 1 attached hereto.
1.3 Remove and replace, in its entirety, page T-6-3 of Table 1 entitled the “Aircraft Deliveries and Descriptions, Model 737-900ER Aircraft”, with the revised page T-6-3 of Table 1 attached hereto.
1.4 Remove and replace, in its entirety, Attachment B to Letter Agreement 1951-9R20, “Option Aircraft Delivery, Description, Price, and Advance Payments”.
1.5 Incorporate Letter Agreement 6-1162-SEE-0326, Model 737 – Koito Seat Resolution, to document the Koito seat delay resolution, which shall be inserted into the Agreement after Letter Agreement 6-1162-RCN-1890;
1.6 Remove and replace, in its entirety, Attachment 1 to Letter Agreement 6-1162-RCN-1890 with the revised Attachment 1 to Letter Agreement 6-1162-RCN-1890, attached hereto.
The Agreement will be deemed to be supplemented to the extent herein provided as of the date hereof and as so supplemented will continue in full force and effect.
EXECUTED IN DUPLICATE as of the day and year first written above.
THE BOEING COMPANY CONTINENTAL AIRLINES, INC.
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
Its: Attorney-in-Fact Its: Senior Vice President- Procurement
TABLE OF CONTENTS
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Page
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SA
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ARTICLES
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Number
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Number
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1.
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Subject Matter of Sale
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1-1
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SA 39
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2.
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Delivery, Title and Risk of Loss
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2-1
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3.
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Price of Aircraft
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3-1
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SA 39
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4.
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Taxes
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4-1
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5.
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Payment
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5-1
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6.
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Excusable Delay
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6-1
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7.
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Changes to the Detail Specification
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7-1
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SA 39
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8.
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Federal Aviation Requirements and
Certificates and Export License
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8-1
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SA 39
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9.
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Representatives, Inspection,
Flights and Test Data
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9-1
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10.
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Assignment, Resale or Lease
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10-1
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11.
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Termination for Certain Events
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11-1
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12.
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Product Assurance, Disclaimer and
Release; Exclusion of Liabilities;
Customer Support; Indemnification
and Insurance
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12-1
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13.
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Buyer Furnished Equipment and
Spare Parts
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13-1
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14.
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Contractual Notices and Requests
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14-1
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SA 39
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15.
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Miscellaneous
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15-1
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TABLE OF CONTENTS
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Page
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SA
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TABLES
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Number
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Number
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1.
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Aircraft Deliveries and
Descriptions – 737-500
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T-1
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SA 3
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Aircraft Deliveries and
Descriptions – 737-700
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T-2
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SA 56
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Aircraft Deliveries and
Descriptions – 737-800
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T-3
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SA 55
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Aircraft Deliveries and
Descriptions – 737-600
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T-4
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SA 4
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Aircraft Deliveries and
Descriptions – 737-900
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T-5
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SA 39
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Aircraft Deliveries and
Descriptions – 737-900ER
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T-6
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SA 56
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EXHIBITS
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|||
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A-1
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Aircraft Configuration – Model 737-724
(Aircraft delivering through July 2004)
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SA 26
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A-1.1
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Aircraft Configuration – Model 737-724
(Aircraft delivering on or after August 2004)
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SA 46
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A-2
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Aircraft Configuration – Model 737-824
(Aircraft delivering through July 2004)
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SA 26
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A-2.1
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Aircraft Configuration – Model 737-824
(Aircraft delivering August 2004 through
December 2007)
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SA 41
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A-2.2
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Aircraft Configuration – Model 737-824
(Aircraft delivering January 2008 through
July 2008)
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SA 45
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A-2.3
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Aircraft Configuration – Model 737-824
(Aircraft scheduled to deliver between August 2008 and October 2010)
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SA 50
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A-2.4
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Aircraft Configuration – Model 737-824
(Aircraft scheduled to deliver in or after November 2010)
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SA 50
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A-3
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Aircraft Configuration – Model 737-624
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SA 1
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A-4
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Aircraft Configuration – Model 737-524
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SA 3
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A-5
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Aircraft Configuration – Model 737-924
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 26
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A-6
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Aircraft Configuration – Model 737-924ER
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 45
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A-6.1
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Aircraft Configuration – Model 737-924ER
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 53
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A-6.2
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Aircraft Configuration – Model 737-924ER
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 53
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B
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Product Assurance Document
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SA 1
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C
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Customer Support Document – Code Two –
Major Model Differences
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SA 1
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C1
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Customer Support Document – Code Three –
Minor Model Differences
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SA 39
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D
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Aircraft Price Adjustments – New Generation
Aircraft (1995 Base Price - [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 1
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D1
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Airframe and Engine Price Adjustments –
Current Generation Aircraft
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SA 1
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D2
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Aircraft Price Adjustments – New Generation
Aircraft (1997 Base Price - [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 5
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D3
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Aircraft Price Adjustments - New
Generation Aircraft (July 2003 Base Price –
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 41
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D4
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Escalation Adjustment – Airframe and Optional Features [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 41
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E
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Buyer Furnished Equipment Provisions Document
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SA 39
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F
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Defined Terms Document
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SA 5
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TABLE OF CONTENTS
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SA
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||||
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Number
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||||
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1951-1
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Not Used
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|||
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1951-2R4
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Seller Purchased Equipment
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SA 39
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1951-3R22
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Option Aircraft-Model 737-824 Aircraft
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SA 38
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1951-4R1
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Waiver of Aircraft Demonstration
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SA 1
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1951-5R3
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Promotional Support – New Generation
Aircraft
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SA 48
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1951-6
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Configuration Matters
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|||
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1951-7R1
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Spares Initial Provisioning
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SA 1
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1951-8R2
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Escalation Sharing – New Generation Aircraft
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SA 4
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1951-9R20
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Option Aircraft-Model 737-724 Aircraft
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SA 56
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1951-11R1
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Escalation Sharing-Current Generation
Aircraft
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SA 4
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1951-12R7
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Option Aircraft – Model 737-924 Aircraft
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SA 32
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1951-13
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Configuration Matters – Model 737-924
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SA 5
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1951-14
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Installation of Cabin Systems Equipment
737-924
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SA 22
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1951-15
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Configuration Matters – Model 737-924ER
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SA 39
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TABLE OF CONTENTS
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SA
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RESTRICTED LETTER AGREEMENTS
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Number
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|||
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6-1162-MMF-295
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Performance Guarantees – Model
737-724 Aircraft
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|||
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6-1162-MMF-296
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Performance Guarantees – Model
737-824 Aircraft
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|||
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6-1162-MMF-308R4
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Disclosure of Confidential
Information
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SA 39
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||
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6-1162-MMF-309R1
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[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 1
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6-1162-MMF-311R6
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[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 46
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||
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6-1162-MMF-312R1
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Special Purchase Agreement Provisions
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SA 1
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||
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6-1162-MMF-319
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Special Provisions Relating to the
Rescheduled Aircraft
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|||
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6-1162-MMF-378R1
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Performance Guarantees – Model
737-524 Aircraft
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SA 3
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||
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6-1162-GOC-015R1
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[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 31
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||
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6-1162-GOC-131R10
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Special Matters
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SA 46
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||
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6-1162-DMH-365
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Performance Guarantees – Model
737-924 Aircraft
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SA 5
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||
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6-1162-DMH-624
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[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 8
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||
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6-1162-DMH-680
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Delivery Delay Resolution Program
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SA 9
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||
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6-1162-DMH-1020
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[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 14
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||
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6-1162-DMH-1035
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[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 15
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||
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6-1162-DMH-1054
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[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 16
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||
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6-1162-CHL-048
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Rescheduled Aircraft Agreement
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SA 26
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||
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6-1162-CHL-195
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Restructure Agreement for Model
737NG and 757-300 Aircraft
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SA 30
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||
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6-1162-MSA-768
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Performance Guarantees – Model
737-924ER Aircraft
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SA 39
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||
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6-1162-SEE-133
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[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA 46
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||
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6-1162-SEE-0176R4
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Record Option Proposals
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SA 48
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||
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6-1162-SEE-0187
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Passenger Service Unit Resolution
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SA 50
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||
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6-1162-SEE-0225R1
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Use of Aircraft – Carbon Brakes [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] Testing
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SA 50
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||
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6-1162-SEE-0263
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Use of Aircraft – 737NG
Performance Improvement Package Testing
|
SA 50
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||
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6-1162-RCN-1888
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Use of Aircraft – Boeing 747-800 and 787 Flight Test Training
|
SA 53
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||
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6-1162-RCN-1890
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Use of Aircraft for Testing
|
SA 56
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||
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6-1162-SEE-0326
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Model 737 – Koito Seat Resolution
|
SA 56
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||
TABLE OF CONTENTS
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SUPPLEMENTAL AGREEMENTS
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DATED AS OF:
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Supplemental Agreement No. 1
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October 10, 1996
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Supplemental Agreement No. 2
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March 5, 1997
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Supplemental Agreement No. 3
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July 17, 1997
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Supplemental Agreement No. 4
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October 10, 1997
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Supplemental Agreement No. 5
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May 21, 1998
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Supplemental Agreement No. 6
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July 30, 1998
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Supplemental Agreement No. 7
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November 12, 1998
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Supplemental Agreement No. 8
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December 7, 1998
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Supplemental Agreement No. 9
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February 18, 1999
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Supplemental Agreement No. 10
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March 19, 1999
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Supplemental Agreement No. 11
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May 14, 1999
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Supplemental Agreement No. 12
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July 2, 1999
|
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Supplemental Agreement No. 13
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October 13, 1999
|
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Supplemental Agreement No. 14
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December 13, 1999
|
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Supplemental Agreement No. 15
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January 13, 2000
|
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Supplemental Agreement No. 16
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March 17, 2000
|
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Supplemental Agreement No. 17
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May 16, 2000
|
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Supplemental Agreement No. 18
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September 11, 2000
|
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Supplemental Agreement No. 19
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October 31, 2000
|
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Supplemental Agreement No. 20
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December 21, 2000
|
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Supplemental Agreement No. 21
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March 30, 2001
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Supplemental Agreement No. 22
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May 23, 2001
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Supplemental Agreement No. 23
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June 29, 2001
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Supplemental Agreement No. 24
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August 31, 2001
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Supplemental Agreement No. 25
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December 31, 2001
|
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Supplemental Agreement No. 26
|
March 29, 2002
|
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Supplemental Agreement No. 27
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November 6, 2002
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Supplemental Agreement No. 28
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April 1, 2003
|
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Supplemental Agreement No. 29
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August 19, 2003
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Supplemental Agreement No. 30
|
November 4, 2003
|
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Supplemental Agreement No. 31
|
August 20, 2004
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Supplemental Agreement No. 32
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December 29, 2004
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Supplemental Agreement No. 33
|
December 29, 2004
|
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Supplemental Agreement No. 34
|
June 22, 2005
|
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Supplemental Agreement No. 35
|
June 30, 2005
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Supplemental Agreement No. 36
|
July 21, 2005
|
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Supplemental Agreement No. 37
|
March 30, 2006
|
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Supplemental Agreement No. 38
|
June 6, 2006
|
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Supplemental Agreement No. 39
|
August 3, 2006
|
|
Supplemental Agreement No. 40
|
December 5, 2006
|
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Supplemental Agreement No. 41
|
June 1, 2007
|
|
Supplemental Agreement No. 42
|
June 13, 2007
|
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Supplemental Agreement No. 43
|
July 18, 2007
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Supplemental Agreement No. 44
|
December 7, 2007
|
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Supplemental Agreement No. 45
|
February 20, 2008
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Supplemental Agreement No. 46
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June 25, 2008
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Supplemental Agreement No. 47
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October 30, 2008
|
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Supplemental Agreement No. 48
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January 29, 2009
|
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Supplemental Agreement No. 49
|
May 1, 2009
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Supplemental Agreement No. 50
|
July 23, 2009
|
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Supplemental Agreement No. 51
|
August 5, 2009
|
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Supplemental Agreement No. 52
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August 31, 2009
|
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Supplemental Agreement No. 53
|
December 23, 2009
|
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Supplemental Agreement No. 54
|
March 1, 2010
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Supplemental Agreement No. 55
|
March 31, 2010
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Supplemental Agreement No. 56
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August 12, 2010
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Table 1 to Purchase Agreement 1951
Aircraft Deliveries and Descriptions
Model 737-700 Aircraft
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Page T-2-2
Boeing Proprietary SA56
Table 1 to Purchase Agreement 1951
Aircraft Deliveries and Descriptions
Model 737-700 Aircraft
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Page T-2-3
Boeing Proprietary SA56
Table 1 to Purchase Agreement 1951
Aircraft Deliveries and Descriptions
Model 737-700 Aircraft
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Page T-2-4
Boeing Proprietary SA56
Table 1 to Purchase Agreement 1951
Aircraft Deliveries and Descriptions
Model 737-900ER Aircraft
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
T-6-3
Boeing Proprietary SA56
Attachment B to
Letter Agreement 1951-9R20
Option Aircraft Delivery, Descripton, Price and Advance Payments
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Boeing Proprietary SA56
Page 1 of 3
Attachment B to
Letter Agreement 1951-9R20
Option Aircraft Delivery, Descripton, Price and Advance Payments
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Boeing Proprietary SA56
Page 2 of 3
Attachment B to
Letter Agreement 1951-9R20
Option Aircraft Delivery, Descripton, Price and Advance Payments
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Boeing Proprietary SA56
Page 3 of 3
Attachment to 6-1162-RCN-1890
Update No. 3
|
Aircraft No.
|
EWA No. *
|
Estimated Flight Test Hrs.
|
Actual Flight Test Hrs.
|
Scheduled Delivery Month
|
Revised Delivery Month
|
Test Program $ Value
|
Wheels, tires, brakes replaced?
|
Engines Borescoped?
|
|
3138/YJ571
|
Y3333-003
Y3232-008
Y3290-001
Y3242-021
Y3013-053
Y2227-004
Y3243-048
|
No greater than [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
|
Jan-2010
|
Aug-2010
|
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
|
No
|
Yes
|
|
|
3138/YJ571
|
Y3243-046
Y3243-045
|
No greater than [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
|
Jan-2010
|
Aug-2010
|
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
|
No
|
Yes
|
|
|
3138/YJ571
|
Y3243-050
Y3243-022
Y3230-024
|
No greater than [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
|
Jan-2010
|
Aug-2010
|
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
|
No
|
Yes
|
|
|
3464/YR201
|
Y3243-051
|
No greater than [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
|
Aug-2011
|
Aug-2011
|
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
|
No
|
N/A test engines will be installed on this aircraft
|
|
* EWA is the Boeing Engineering Work Authorization form number. Such form contains the test description and will be provided to Customer concurrent with this attachment.
** Target delivery dates are TBD due to Koito Seat delays. When more firm target delivery dates are known, they will be provided to Customer.
Approved by:
CONTINENTAL AIRLINES, INC.
By /s/ Xxxxxxx Xxxxxxxx
Its Senior vice President-Procurement
August 12, 2010
6-1162-SEE-0326
Continental Airlines, Inc.
0000 Xxxxx Xxxxxx XXXXX
Xxxxxxx, XX 00000
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Subject:
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Model 737 - Koito Seat Delay Resolution
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Reference:
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1) Purchase Agreement No. 1951 dated July 23, 1996 (the Purchase Agreement) between The Boeing Company (Boeing) and Continental Airlines, Inc.( the Customer).
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This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.
1. Koito Seat Delay. Customer’s 737-800 and 737-900ER Aircraft listed below have been configured with Koito seats. Koito has been unable to deliver seats in order to support these deliveries. Customer has executed multiple Master Changes which convert the SPE seat supplier from Koito to B/E and revise the aircraft configuration to support installation of B/E seats on these Aircraft (the Converted Aircraft):
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#
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Minor
Model
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Serial
Number
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Block Number
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Contract
Month
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Target Delivery Month
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1
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-800
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30132
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YJ571
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November 2009
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August 2010
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2
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-800
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31658
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YJ572
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November 2009
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August 2010
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3
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-800
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31662
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YJ573
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December 2009
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August 2010
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4
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-800
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31660
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YJ574
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December 2009
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August 2010
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5
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-800
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37101
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YJ576
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January 2010
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August 2010
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6
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-800
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31642
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YJ575
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February 2010
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August 2010
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7
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-800
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31659
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YJ577
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March 2010
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August 2010
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8
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-800
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38700
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YJ578
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April 2010
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August 2010
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9
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-800
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.38701
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YJ579
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May 2010
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August 2010
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10
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-900ER
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31655
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YH131
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June 2010
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December 2010
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11
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-900ER
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31643
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YH132
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July 2010
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December 2010
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12
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-800
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31652
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YR202
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December 2010
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December 2010
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2. Purchase and Installation of Interim Seats. In order to deliver the Converted Aircraft to Customer, Boeing agrees to procure and install B/E Aerospace seats, [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] Customer agrees to facilitate reasonable requests from Boeing to perform testing on future aircraft deliveries to Customer, provided such testing does not materially impact the delivery date, value, utility or configuration of the aircraft.
3. Non-Traditional BFE Door. Notwithstanding the return language in paragraph 1 of Letter Agreement 6-1162-MSA-435 regarding Customer’s Non-Traditional BFE Door, Customer agrees to remove and ship, with AOG priority, the Non-Traditional BFE Doors within two days after delivery of each of the Converted Aircraft to Customer.
4. Converted Aircraft Storage. Boeing will store the Converted Aircraft from production rollout until the flyaway dates detailed in Article 7(the Storage Period) under the terms and conditions set forth in this paragraph.
During the Storage Period, Boeing shall store or cause the Converted Aircraft to be held in storage in accordance with the then current version of Boeing Document No. D6-25419-1, entitled Aircraft Storage Requirements, as it may be modified from time to time to take into account storage locations and storage conditions (Storage Procedures). Boeing shall perform or cause to be performed all work associated with storage of the Converted Aircraft in accordance with the Storage Procedures and under the authority granted by the FAA to Boeing or a third party repair station facility. Customer acknowledges that the data in the Storage Procedures is proprietary to Boeing and as such, is subject to the terms and conditions of the Purchase Agreement regarding protection of Proprietary Information.
The Storage Procedures shall be such as to preserve and protect the Converted Aircraft to the extent practical given the fact that the Converted Aircraft and its systems will be in a storage environment. Customer acknowledges that during the storage period some degree of deterioration may occur, including without limitation in the Converted Aircraft exterior (painted and unpainted surfaces), seals, and in the general condition of the Converted Aircraft, that prudent storage precautions and procedures may not be able to mitigate. At the time Boeing makes the stored Converted Aircraft available for delivery to Customer, Customer agrees to accept delivery of the Converted Aircraft with such deterioration as may have occurred to the Converted Aircraft during the storage period. Prior to delivery of the Converted Aircraft, designated Customer representatives may inspect the Converted Aircraft in accordance with Article 9.2 of the Purchase Agreement. Any deterioration deemed to be in excess of acceptable deterioration will be addressed via standard delivery processes, subject to discussion between Boeing and Customer.
Except to the extent provided in this Letter Agreement (including in this Article and Attachment A), the parties agree that the risk of loss of, or damage to, the Converted Aircraft shall remain with Boeing until, and shall pass from Boeing to the Customer upon, delivery of the Converted Aircraft to the Customer. In the event of partial damage to the Converted Aircraft during the storage period, if in Boeing’s reasonable discretion the damage is repairable and if Boeing elects to repair the Converted Aircraft, such repair shall be to and in accordance with Boeing's commercial engineering and repair practices and standards. If, during the storage period and prior to delivery of Aircraft the Converted Aircraft is destroyed or suffers damage beyond economic repair, Article 6.3 (Aircraft Damaged Beyond Repair) of the Purchase Agreement will apply. If the Converted Aircraft is destroyed or suffers damage beyond economic repair after delivery of the Aircraft to Customer and before the Aircraft is ferried to Customer’s maintenance base, then Customer will retain the risk of loss of or damage to the Aircraft or loss of use thereof. Customer hereby releases and relieves Boeing, its directors, officers, agents, employees, invitees and contractors, and waives its entire claim of recovery for loss or damage to the Converted Aircraft (including without limitation loss of use thereof and any incidental or consequential damages of any kind suffered by Customer) made available for or used in operations pursuant to this Agreement whether or not such loss or damage is due to the negligence of Boeing, Customer or any third party. Customer shall cause its Hull Insurer of such Aircraft to waive all right of subrogation against Boeing, its directors, officers, agents, employees, invitees and contractors.
4.1 Aircraft and Engine Changes.
During the Storage Period, Boeing shall monitor and document any applicable service bulletins and/or airworthiness directives issued by the applicable regulatory agency against the Converted Aircraft (Changes or Orders) and will review and discuss with Customer whether incorporation or implementation of any work is required on the Converted Aircraft or engines during or at the end of the storage period as a result of such Changes or Orders. If requested by Customer, and at Customer’s option, Boeing shall, either (a) incorporate any Changes or Orders prior to the delivery of the Converted Aircraft at Boeing’s sole cost and expense or (b) compensate Customer for the cost of incorporating any Changes or Orders on the Converted Aircraft
4.2 Aircraft Storage Documentation.
At time of delivery of the Converted Aircraft, Boeing will provide Customer with all documentation related to the storage of the Converted Aircraft, including but not limited to the following documentation: (i) records related to storage, maintenance and modification of the Converted Aircraft; and (ii) updated technical documentation reflecting compliance with mandatory airworthiness directives of the applicable regulatory agency as mutually agreed to.
5. Delivery.
Boeing will make the Converted Aircraft available for delivery to Customer, and Customer will accept delivery of the Converted Aircraft, according to the schedule provided in paragraph 1.0 (the Delivery Date).
If the Interim Seats do not arrive in time to support these Delivery Dates, Customer hereby agrees to accept delivery of these Converted Aircraft without seats installed, no later than August 31, 2010.
So long as there is no Customer default under the Purchase Agreement, then the Aircraft Basic Price shall escalate to the month of delivery as set out in Table 1 to the Purchase Agreement.
6. Flyaway. Customer shall use reasonable efforts to fly the Converted Aircraft away immediately following delivery, except in the event that the Interim Seats are not available to support the delivery. In this event, Boeing will continue to store the Converted Aircraft until the Interim Seats arrive, and will install the Interim Seats on the Converted Aircraft after delivery. Customer shall use reasonable efforts to fly the Converted Aircraft away no later than three calendar days after installation of Interim Seats (Current schedule reflects that installation for Converted Aircraft 8 and 9 as listed in Article 1 will be complete on September 1st and 2nd, respectively). Airplanes during this period will be held in storage in accordance with this Letter Agreement. If Customer requests, and Boeing agrees, to store any of the Converted Aircraft beyond the currently scheduled flyaway dates, a modification to this Letter Agreement will be negotiated between Boeing and Customer to document the terms and conditions of such storage.
7. Permanent Seat Solution.
7.1. Customer will be solely responsible for the costs of purchasing and installing any alternate seats after delivery of the Converted Aircraft, including but not limited to, all labor costs, except that:
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(i)
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Boeing agrees to provide Service Bulletins (Service Bulletins) to support installation of the permanent seat solutions, using seats that have been previously certified on a CAL 737NG Aircraft in production, with further ground rules and assumptions to be defined in the respective Service Bulletin Proposals.
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(ii)
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Boeing agrees to store the parts identified in Attachment 1 to this Letter Agreement that were removed from the Converted Aircraft prior to Delivery (the Removed Parts) and will deliver them with the service bulletin kits. If the Removed Parts are required prior to release of the service bulletin kits, Customer must provide 30 days’ notice for Boeing to obtain the Removed Parts from storage and prepare them for delivery to Customer.
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For the avoidance of doubt, upon the delivery of each Converted Aircraft to Customer, the price of the Converted Aircraft shall not include any cost associated with the Interim Seats or permanent seats.
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7.2.
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[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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8. Exclusive Remedy. Customer agrees that Boeing’s undertakings herein constitute complete and total compensation for all of Customer’s costs associated with the conversion of the SPE seat supplier for the Converted Aircraft.
9. Confidential Treatment. Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential. Customer agrees that it will treat this Letter Agreement and the information contained herein as confidential and will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity except as required by law.
Very truly yours,
THE BOEING COMPANY
By /s/ Xxxxx Xxxxxxxxx
Its Attorney-In-Fact
ACCEPTED AND AGREED TO this
Date: August 12, 2010
CONTINENTAL AIRLINES INC.
By /s/ Xxxxxxx Xxxxxxxx
Its: Senior Vice President-Procurement
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Attachment 1 to Letter Agreement 6-1162-SEE-0326
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Removed Parts:
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DESCRIPTION
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PART NUMBER
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BFE/SPE/SFE
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QTY PER A/P
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LH class divider assy
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[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SPE
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1
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RH class divider assy
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SPE
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1
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Connector
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SPE
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2
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Wire harness assy, tee output
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SPE
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1
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Seat to seat cable
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SPE
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4
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Seat to seat cable
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SPE
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2
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Seat to seat cable
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SPE
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2
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Seat to seat cable
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SPE
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2
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Seat to sidewall cable
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SPE
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4
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Seat to sidewall cable
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SPE
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1
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Floor mounted stowage
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SFE
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1
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Seat-seat-sidewall-seat cable
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SPE
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12
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Seat-seat-sidewall-seat cable
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SPE
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10
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Seat-seat-sidewall-seat cable
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SPE
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2
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Seat-seat-sidewall-seat cable
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SPE
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2
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Term cap, J1
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SPE
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4
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PSU spacer panel
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SFE
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1
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PSU spacer panel
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PSU spacer panel
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SFE
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2
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PSU spacer panel
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SFE
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4
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PSU spacer panel
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SFE
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1
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Closeout seal
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SFE
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1
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Reference:
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[CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
August 5, 2010
