Exhibit 10.165
FORM OF
AIRBUS A350 PURCHASE AGREEMENT
Dated as of September 27, 2005
between
AVSA, S.A.R.L.,
Seller
and
US AIRWAYS, INC., AMERICA WEST AIRLINES, INC. and
US AIRWAYS GROUP, INC.
Buyers
[Subject to Completion]
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CONTENTS
CLAUSES TITLE
------- ----------------------------------
0 DEFINITIONS
1 SALE AND PURCHASE
2 SPECIFICATION
3 PRICE
4 PRICE REVISION
5 PAYMENT TERMS
6 INSPECTION
7 CERTIFICATION
8 TECHNICAL ACCEPTANCE
9 DELIVERY
10 EXCUSABLE DELAY AND TOTAL LOSS
11 INEXCUSABLE DELAY
12 WARRANTIES AND SERVICE LIFE POLICY
13 PATENT AND COPYRIGHT INDEMNITY
14 TECHNICAL DATA
15 SELLER REPRESENTATIVES
16 TRAINING AND TRAINING AIDS
17 SUPPLIER PRODUCT SUPPORT
18 BUYER FURNISHED EQUIPMENT
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CLAUSES TITLE
------- --------------------------------------
19 INDEMNITIES AND INSURANCE
20 ASSIGNMENTS AND TRANSFERS
21 TERMINATION EVENTS
22 MISCELLANEOUS PROVISIONS
23 CERTAIN REPRESENTATIONS OF THE PARTIES
EXHIBITS
-----------
EXHIBIT A-1 A350-800 STANDARD SPECIFICATION
EXHIBIT A-2 A350-900 STANDARD SPECIFICATION
EXHIBIT B-1 SCN FORM
EXHIBIT B-2 MSCN FORM
EXHIBIT C SELLER SERVICE LIFE POLICY
EXHIBIT D CERTIFICATE OF ACCEPTANCE
EXHIBIT E XXXX OF SALE
EXHIBIT F TECHNICAL DATA AND SOFTWARE SERVICES
EXHIBIT G SELLER PRICE REVISION FORMULA
EXHIBIT H TERMS AND CONDITIONS FOR LICENSE FOR USE OF SOFTWARE
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PURCHASE AGREEMENT
This Agreement is made this 27th day of September 2005
between
AVSA, S.A.R.L, a societe a responsabilite limitee organized and
existing under the laws of the Republic of France, having its
registered office located at
0, xxxx-xxxxx Xxxxxxx Xxxxxxxx
00000 Xxxxxxx, Xxxxxx
(hereinafter referred to as the "SELLER")
and
US Airways, Inc., America West Airlines, Inc. and US Airways Group,
Inc., each a corporation organized and existing under the laws of
the State of Delaware, United States of America, and each having its
principal corporate offices located at 0000 Xxxx Xxx Xxxxxx
Xxxxxxxxx, Xxxxxxx, XX 00000 (each hereinafter referred to as a
"BUYER" and, collectively, the "BUYERS").
WHEREAS, the Buyers wish to purchase and the Seller is willing to sell twenty
(20) Airbus A350 model aircraft, on the terms and conditions herein provided;
and
WHEREAS, the Seller is a sales subsidiary of Airbus S.A.S. and will purchase
such aircraft from Airbus S.A.S. for resale to the Buyers,
NOW THEREFORE IT IS AGREED AS FOLLOWS:
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0 DEFINITIONS
For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires, the following terms will have
the following meanings:
A350 Aircraft - any or all of the Airbus A350-800 Aircraft or A350-900
Aircraft.
A350-800 Aircraft - any or all of the Airbus A350-800 model aircraft to be
purchased by the Seller and sold to the Buyers pursuant to this Agreement,
together with all components, equipment, parts and accessories installed
in or on such aircraft and the Propulsion Systems installed thereon.
A350-900 Aircraft - any or all of the Airbus A350-900 model aircraft to be
purchased by the Seller and sold to the Buyers pursuant to this Agreement,
together with all components, equipment, parts and accessories installed
in or on such aircraft and the Propulsion Systems installed thereon.
A350-800 Specification - the A350-800 Standard Specification, as amended
from time to time in accordance with this Agreement.
A350-800 Standard Specification - the A350-800 standard specification
document number G.000.08000, Issue B, dated June 30, 2005, published by
the Manufacturer, which includes a maximum take-off weight ("MTOW") of 245
metric tons, a copy of which is annexed as Exhibit A-1.
A350-900 Specification - the A350-900 Standard Specification, as amended
from time to time in accordance with this Agreement.
A350-900 Standard Specification - the A350-900 standard specification
document number G.000.09000, Issue B, dated June 30, 2005, published by
the Manufacturer, which includes an MTOW of 245 metric tons, a copy of
which is annexed as Exhibit A-2.
Affiliate - with respect to any person or entity, any other person or
entity directly or indirectly controlling, controlled by or under common
control with such person or entity, but not, in the case of AVSA or the
Manufacturer, any of the Associated Contractors.
Agreement - this Airbus A350 purchase agreement dated as of the date
hereof, including exhibits and appendices attached hereto as the same may
be amended or modified and in effect from time to time.
Aircraft - any or all of the A350 Aircraft for which the delivery schedule
is set forth in Clause 9.1.1 hereof and any or all of any other aircraft
to be firmly sold by the Seller and firmly purchased by the Buyers
pursuant to this Agreement, together with all components, equipment, parts
and accessories installed in or on such aircraft and the Propulsion
Systems installed thereon upon Delivery.
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Airframe- any Aircraft, excluding the Propulsion Systems therefor.
ANACS - Airbus North America Customer Services, Inc., a corporation
organized and existing under the laws of Delaware, having an office
located at 000 Xxx Xxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, or any
successor thereto.
Associated Contractors - collectively, the following:
(1) Airbus France S.A.S., whose principal office is at
000, xxxxx xx Xxxxxxx
00000 Xxxxxxxx, Xxxxxx
(2) Airbus UK Ltd, whose principal office is at
New Filton House, Filton
Bristol, BS 997AR, Great Britain
(3) Airbus Espana S.L., whose principal office is at
Plaza de Xxxx Xxxxxx X(xxxxxxx) 0,
x/x Xxxxxx
00000 Xxxxxx, Xxxxx
(4) Airbus Deutschland GmbH, whose principal office is at
Xxxxxxxxx 00
00000 Xxxxxxx, Xxxxxxx
ATA Specification 100 - the specification issued by the Air Transport
Association of America relating to manufacturers' technical data.
ATA Specification 101 - the specification issued by the Air Transport
Association of America relating to ground equipment technical data.
ATA Specification 102 - the specification issued by the Air Transport
Association of America relating to software programs.
ATA Specification 200 - the specification issued by the Air Transport
Association of America relating to integrated data processing.
ATA Specification 300 - the specification issued by the Air Transport
Association of America relating to the packaging of spare parts shipments.
ATA Specification 2000 - the specification issued by the Air Transport
Association of America relating to an industry-wide communication system
linking suppliers and users for the purposes of spares provisioning,
purchasing, order administration, invoicing and information or data
exchange.
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ATA Specification 2100 - the specification issued by the Air Transport
Association of America relating to the standards for the presentation of
technical information prepared as digital media (magnetic tape or CD ROM).
ATA Specification 2200 - the specification issued by the Air Transport
Association of America relating to the preparation of technical
documentation in support of aircraft maintenance.
ATSB - The Air Transportation Stabilization Board.
Aviation Authority - when used with respect to any jurisdiction, the
government entity that, under the laws of such jurisdiction, has control
over civil aviation or the registration, airworthiness or operation of
civil aircraft in such jurisdiction.
Balance of the Final Contract Price - means the amount payable by the
Buyers to the Seller on the Delivery Date for an Aircraft after deducting
from the Final Contract Price for such Aircraft the amount of all
Predelivery Payments received by the Seller from the Buyers, or any of
them, in respect of such Aircraft on or before the Delivery Date for such
Aircraft.
Base Price - as defined in Clause 3.1.
Buyer Furnished Equipment or BFE - for any Aircraft, all the items of
equipment that will be furnished by the Buyers and installed in the
Aircraft by the Seller pursuant to Clause 18, as listed in the
Specification.
Certificate of Acceptance - as defined in Clause 8.3.
Change in Law - as defined in Clause 7.3.1.
Customer Originated Changes or COC - data originating from the Buyers, or
any of them, that are introduced into Seller's Technical Data and
Documentation, as more completely set forth in Clause 14.9.
Delivery - the transfer of title to the Aircraft from the Seller to the
Designated Buyers.
Delivery Date - the date on which Delivery occurs.
Delivery Location - the facilities of the Manufacturer at the location of
final assembly of the Aircraft, which is currently at the works of Airbus
France S.A.S. works in Toulouse, France.
Designated Buyer - as defined in Clause 9.
Development Changes - as defined in Clause 2.1.4.
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DGAC - the Direction Generale de l'Aviation Civile of France, or any
successor agency thereto.
EASA-European Aviation Safety Agency or any successor agency thereto.
Excusable Delay - as defined in Clause 10.1.
Export Certificate of Airworthiness - an export certificate of
airworthiness issued by the Aviation Authority of the Delivery Location.
FAA - the U.S. Federal Aviation Administration, or any successor agency
thereto.
Final Contract Price - as defined in Clause 3.2.
Free Carrier or FCA - as defined in Incoterms 2000: ICC Official Rules for
the Interpretation of Trade Terms, published by the International Chamber
of Commerce.
In-house Warranty Labor Rate - as defined in Clause 12.1.8(v).
In-house Warranty Repair - as referred to in Clause 12.1.8.
Initial Payment- each of the initial payment amounts described in Clause
5.3.
Interface Problem - as defined in Clause 12.4.1.
LIBOR - the London Interbank Offered Rate determined on the basis of the
offered rates for deposits in US dollars for each stated interest period
(or for six-month deposits in US dollars if no interest period is stated),
which appears on the Reuters Screen LIBO Page as of 11:00 a.m., London
time, on the second Working Day prior to the start of the relevant
interest period. If at least two (2) such offered rates appear on the
Reuters Screen LIBO Page, the rate for that interest period will be the
arithmetic mean of such offered rates rounded to the nearest one-hundred
thousandth of a basis point. If fewer than two (2) offered rates appear,
the rate for that interest period will be "LIBOR" as quoted by National
Westminster Bank, plc or any successor thereto. "Reuters Screen LIBO Page"
means the display designated as page "LIBO" on the Reuters Monitor Money
Rates Service (or any successor to such page or service).
Manufacturer - Airbus S.A.S., societe par actions simplifiee, of the
Republic of France.
Manufacturer Specification Change Notice or MSCN -as defined in Clause
2.1.3.
Predelivery Payment - any of the payments made in accordance with Clause
5.2.
Predelivery Payment Reference Price - as defined in Clause 5.2.2.
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Propulsion Systems - the two (2) General Electric GEnx-1A72 powerplants
installed on an Aircraft or to be installed on an Aircraft at Delivery,
each composed of the powerplant (as such term is defined in Chapters 70-80
of ATA Specification 100 (Revision 21), but limited to the equipment,
components, parts and accessories included in the powerplant, as so
defined) that have been sold to the Manufacturer by General Electric.
Ready for Delivery - with respect to any Aircraft, the term applicable to
such Aircraft when (i) the Technical Acceptance Process has been
successfully completed for such Aircraft and (ii) the Export Certificate
of Airworthiness has been issued therefor.
Resident Customer Support Representative - as set forth in Clause 15.2.1.
Scheduled Delivery Month - as defined in Clause 9.1.1.
SCN - as set forth in Clause 2.1.2
Seller Price Revision Formula - as set forth in Exhibit G.
Service Life Policy - as set forth to in Clause 12.2.
Software Products - software, whether bundled with data or not,
specifically designed to provide the Buyers with certain maintenance and
operation capabilities further detailed in the ANACS Customer Support
Catalog.
Specification - collectively or individually, as applicable, the A350-800
Specification or A350-900 Specification.
Specification Change Notice or SCN - as defined in Clause 2.1.2.
Supplier - any supplier of Supplier Parts.
Supplier Part - any component, equipment, accessory or part installed in
an Aircraft at the time of Delivery thereof, not including the Propulsion
Systems or Buyer Furnished Equipment, for which there exists a Supplier
Product Support Agreement.
Supplier Product Support Agreement - an agreement between the Manufacturer
and a Supplier containing enforceable and transferable warranties (and in
the case of landing gear suppliers, service life policies for selected
structural landing gear elements).
Technical Data - as set forth in Exhibit F.
Technical Acceptance Process - as defined in Clause 8.1.1.
Termination Event - as defined in Clause 21.1.
Training Conference - as defined in Clause 16.4.1.
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Type Certificate - as defined in Clause 7.1.
Warranted Part - as defined in Clause 12.1.1.
Warranty Claim - as defined in Clause 12.1.7(v).
Working Day - with respect to any action to be taken hereunder, a day
other than a Saturday, Sunday or other day designated as a holiday in the
jurisdiction in which such action is required to be taken.
The terms "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement, and not a particular Clause thereof. The
definition of a singular in this Clause will apply to plurals of the same
words.
Except for the purposes of and as provided in Clause 22.10, references in
this Agreement to an exhibit, schedule, article, section, subsection or
clause refer to the appropriate exhibit or schedule to, or article,
section, subsection or clause in this Agreement.
Except for the preceding sentence, each agreement defined in this Clause 0
will include all appendices, exhibits and schedules to such agreement. If
the prior written consent of any person is required hereunder for an
amendment, restatement, supplement or other modification to any such
agreement and the consent of each such person is obtained, references in
this Agreement to such agreement will be to such agreement as so amended,
restated, supplemented or modified.
References in this Agreement to any statute will be to such statute as
amended or modified and in effect at the time any such reference is
operative.
Technical and trade terms used but not defined herein will be defined as
generally accepted in the airline and/or aircraft manufacturing industries
or as otherwise described.
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1 SALE AND PURCHASE
The Seller will cause to be manufactured and will sell and deliver, and
the Buyer will purchase (from the Seller) and take delivery of the
Aircraft, subject to the terms and conditions in this Agreement.
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2 SPECIFICATION
2.1 Specification Documents
2.1.1 The Aircraft will be manufactured in accordance with the applicable
Specification.
2.1.2 Specification Change Notice
The Specification may be amended in writing by the Buyers and the Seller
by a Specification Change Notice in substantially the form set out in
Exhibit B-1 (each, an "SCN"). An SCN will set out the SCN's effectivity
and the particular change to be made to the Specification and the effect,
if any, of such change on design, performance, weight, Scheduled Delivery
Month of the Aircraft affected thereby, interchangeability or
replaceability requirements of the Specification and text of the
Specification. An SCN may result in an adjustment of the Base Price of
the Aircraft, which adjustment, if any, will be specified in the SCN.
SCNs will not be binding on either party until signed by persons duly
authorized by each of the Buyers and the Seller, but upon being so
signed, will constitute amendments to this Agreement.
2.1.3 [AS AGREED BY THE PARTIES]
2.1.4 Development Changes
As stated in Clause 2.1.3, changes may be made by the Seller without the
Buyers' consent when changes to the Aircraft that do not adversely affect
price, Scheduled Delivery Month, weight of the Aircraft affected thereby,
performance, interchangeability requirements or replaceability
requirements of the Specifications of the Aircraft affected thereby are
deemed by the Seller to be necessary to improve the Aircraft affected
thereby, prevent delay or ensure compliance with this Agreement
("DEVELOPMENT CHANGES"). Development Changes will be made by either an
MSCN or a manufacturer's information document prior to Delivery of the
relevant Aircraft.
2.2 Customization Milestones Chart
Within a reasonable period after signature of this Agreement, the Seller
will provide the Buyers with a chart called the "Customization Milestones
Chart," defining the lead times before Delivery needed for agreeing on
items requested by the Buyers from the Standard Specifications and
Configuration Guides CD-ROM.
2.3 Propulsion Systems
Each Airframe will be equipped with a set of Propulsion Systems. Each
Airframe will be equipped with nacelles and thrust reversers.
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3 PRICE
3.1 Base Price of the Aircraft
3.1.1 Aircraft
3.1.1. The Base Price of each A350-800 Aircraft is the sum of
(i) [AS AGREED BY THE PARTIES]
(ii) [AS AGREED BY THE PARTIES]
3.1.2 The Base Price of each A350-900 Aircraft is the sum of
(i) [AS AGREED BY THE PARTIES]
(ii) [AS AGREED BY THE PARTIES]
3.2 The Final Contract Price of an Aircraft will be the sum of:
(i) the Base Price of the applicable Aircraft, adjusted to the
Delivery Date of such Aircraft in accordance with the Seller Price
Revision Formula, [AS AGREED BY THE PARTIES]
(ii) the price of any SCNs for the Aircraft entered into after the date
of signature of this Agreement, as adjusted to the Delivery Date
in accordance with the Seller Price Revision Formula; and
(iii) any other amount resulting from any other provisions of this
Agreement and/or any other written agreement between the Buyers
and the Seller relating to the Aircraft.
3.3 Taxes, Duties and Imposts
[AS AGREED BY THE PARTIES]
3.3.1 [AS AGREED BY THE PARTIES]
3.3.2 [AS AGREED BY THE PARTIES]
3.3.3 [AS AGREED BY THE PARTIES]
3.3.4 [AS AGREED BY THE PARTIES]
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4 PRICE REVISION
[AS AGREED BY THE PARTIES] the Base Price of the Aircraft is subject to
revision up to and including the Delivery Date, in accordance with the
Seller Price Revision Formula.
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5 PAYMENT TERMS
5.1 The Buyers will, jointly and severally, pay the Predelivery Payments, the
Balance of the Final Contract Price and any other amount due hereunder in
immediately available funds in United States dollars to the Seller's
account with CALYON New York, 1301 Avenue of the Americas, New York, or
to such other account within the United States as may be designated by
the Seller.
5.2 Predelivery Payments
5.2.1 Predelivery Payments are nonrefundable and will be paid by the Buyers,
jointly and severally, to the Seller for each Aircraft. [AS AGREED BY THE
PARTIES]. The aggregate Predelivery Payment amount is thirty percent
(30%) of the Predelivery Payment Reference Price.
5.2.2 The Predelivery Payment Reference Price is:
A = Pb (1 + 0.04N)
where
A = the Predelivery Payment Reference Price for an Aircraft to be
delivered in calendar year T.
Pb = the Base Price of the Aircraft.
N = (T - 2005).
T = the year of delivery of the relevant Aircraft.
5.2.3 Predelivery Payments will be paid according to the following schedule.
Percentage of Predelivery
Payment
Payment Date Reference Price
------------ ---------------
1st Payment On signature of this Agreement [AS AGREED BY THE PARTIES]
No later than the first Working Day of the
following months:
2d Payment The thirty-sixth (36th) month before the [AS AGREED BY THE PARTIES]
Scheduled Delivery Month of each
Aircraft as set forth in this Agreement
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Percentage of Predelivery
Payment
Payment Date Reference Price
------------ ---------------
3d Payment The twenty-fourth (24th) month before
the Scheduled Delivery Month of each 5%
Aircraft as set forth in this Agreement
4th Payment The eighteenth (18th) month before the 5%
Scheduled Delivery Month of each
Aircraft as set forth in this Agreement
5th Payment The twelfth (12th) month before the 5%
Scheduled Delivery Month of each
Aircraft as set forth in this Agreement
6th Payment The sixth (6th) month before the 5%
Scheduled Delivery Month of each
Aircraft as set forth in this Agreement
TOTAL PAYMENT PRIOR TO DELIVERY 30%
All Predelivery Payments that are past due on signature of this Agreement
will be paid at signature of this Agreement.
5.2.4 The Seller will be entitled to hold and use any Predelivery Payment as
absolute owner thereof, subject only to the obligation to deduct
Predelivery Payments from the Final Contract Price when calculating the
Balance of the Final Contract Price. The Seller will be under no
obligation to segregate any Predelivery Payment, or any amount equal
thereto, from the Seller's funds.
5.2.5 SCN Predelivery Payment
[AS AGREED BY THE PARTIES]
(i) For each such SCN executed before the first day of the eighteenth
(18th) month before the Scheduled Delivery Month, the Buyers will,
jointly and severally, make a Predelivery Payment equal to fifteen
percent (15%) of the SCN price. This Predelivery Payment will be
paid on the first day of the twelfth (12th) month before the
Scheduled Delivery Month.
(ii) For each such SCN executed after the first day of the eighteenth
month (18th) and before the first day of the twelfth (12th) month
before the Scheduled Delivery Month, this Predelivery Payment will
amount to thirty percent (30%) of the SCN price, and for each SCN
executed after the first day of the twelfth (12th) month and
before the first day of the ninth (9th) month before the Scheduled
Delivery Month this payment will amount to fifty percent (50%) of
the SCN price. These payments will be paid on the first day of the
sixth (6th) month before the Scheduled Delivery Month.
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5.3 Initial Payment
[AS AGREED BY THE PARTIES]
5.4 Payment of Balance of the Final Contract Price
Concurrent with each Delivery, the Buyers will, jointly and severally,
pay to the Seller the Balance of the Final Contract Price for the
applicable Aircraft. The Seller's receipt of the full amount of all
Predelivery Payments and of the Balance of the Final Contract Price,
including any amounts due under Clause 5.6, will be a condition precedent
to the Seller's obligation to deliver such Aircraft to the Designated
Buyer.
5.5 Payment Setoff
Notwithstanding any other rights the Seller may have at contract or at
law, the Buyers and the Seller hereby agree that should any amount
(whether under this Agreement or under any other agreement between any
Buyer or any of their respective Affiliates and the Seller or any of its
Affiliates and whether at the stated maturity of such amount, by
acceleration or otherwise) become due and payable by such Buyer or its
Affiliates, and not be paid in full in immediately available funds on the
date due, then the Seller will have the right to debit and apply, in
whole or in part, the Predelivery Payments paid to the Seller by the
Buyers hereunder against such unpaid amount. The Seller will promptly
notify the Buyers in writing after such debiting and application.
5.6 Overdue Payments
If any payment due the Seller is not received by the Seller on the date
or dates agreed on between the Buyers and the Seller, the Seller will
have the right to claim from the Buyers and the Buyers will promptly pay
to the Seller on receipt of such claim [AS AGREED BY THE PARTIES] the
amount of such overdue payment, to be calculated from and including the
due date of such payment to (but excluding) the date such payment is
received by the Seller, on the basis of a 360-day year and the actual
number of days elapsed. The Seller's right to receive such interest will
be in addition to any other rights of the Seller hereunder or at law.
5.7 Proprietary Interest
Notwithstanding any provision of law to the contrary, none of the Buyers
will, by virtue of anything contained in this Agreement (including,
without limitation, the making of any Predelivery Payments hereunder, or
any designation or identification by the Seller of a particular Aircraft
as an Aircraft to which any of the provisions of this Agreement refer)
acquire any proprietary, insurable or other interest whatsoever in any
Aircraft before Delivery of and payment for such Aircraft, as provided in
this Agreement.
5.8 Payment in Full
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The Buyers' obligation to make payments to the Seller hereunder will not
be affected by and will be determined without regard to any setoff,
counterclaim, recoupment, defense or other right that any Buyer may have
against the Seller or any other person and all such payments will be made
without deduction or withholding of any kind. Each Buyer will ensure that
the sums received by the Seller under this Agreement will be equal to the
full amounts expressed to be due the Seller hereunder, without deduction
or withholding on account of and free from any and all taxes, levies,
imposts, duties or charges of whatever nature, except that if any Buyer
is compelled by law to make any such deduction or withholding, the Buyers
will, jointly and severally, pay such additional amounts to the Seller as
may be necessary so that the net amount received by the Seller after such
deduction or withholding will equal the amounts that would have been
received in the absence of such deduction or withholding.
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6 INSPECTION
6.1 Inspection Procedures
6.1.1 All work to be carried out on the Aircraft and all materials and parts
thereof will be open to inspection during business hours by duly
authorized representatives of the Buyers or their designee at the
respective works of the Associated Contractors and, if possible, at the
works of their respective subcontractors. These representatives will have
access to such relevant technical data as are reasonably necessary for
this purpose (except that, if access to any part of the respective works
where construction is in progress or materials or parts are stored is
restricted for security reasons, the Associated Contractors will be
allowed a reasonable time to make the items available for inspection
elsewhere). The actual detailed inspection of the Aircraft, materials and
parts thereof will take place only in the presence of the respective
inspection department personnel of the Associated Contractors or their
subcontractors. The procedures for such inspections will be agreed on
with the Buyers before any inspection. The Seller will ensure that such
personnel will be available at all reasonable times during business hours
as described above.
6.1.2 All inspections, examinations and discussions with the Seller's, the
Associated Contractors' or their respective subcontractors' engineering
or other personnel by the Buyers and their representatives will be
performed in such a manner as not to delay or hinder either the work to
be carried out on the Aircraft or the proper performance of this
Agreement. In no event will any of the Buyers or the representatives of
any of them be permitted to inspect any aircraft other than the Aircraft.
The Seller will not permit and will cause the Manufacturer not to permit,
any representatives, employees, agents or personnel of any airline or
customer of the Seller other than the Buyers to inspect, or to have
access to the Aircraft or any designs or specifications relating thereto,
without the prior written consent of the Buyers.
6.2 Representatives
For the purposes of Clause 6.1, starting at a mutually agreed date until
Delivery of the last Aircraft, the Seller will furnish free-of-charge
secretarial assistance and suitable space, office equipment and
facilities in or conveniently located with respect to the Delivery
Location for the use of not more than four (4) representatives of the
Buyers during the aforementioned period. The Seller will provide internet
access, electronic mail, facsimile and a telephone at the Buyers' cost to
be invoiced on a monthly basis.
6.3 The Seller will or will cause the Manufacturer to correct or otherwise
resolve any deviations from the Specification discovered during any
inspection or examination conducted under this Clause 6.
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7 CERTIFICATION
Except as set forth in this Clause 7, the Seller will not be required to
obtain any certificate or approval with respect to the Aircraft.
7.1 Type Certification
A type certificate will have been issued by each of EASA and the FAA in
the transport category (each, a "TYPE CERTIFICATE") prior to Delivery of
the first Aircraft.
7.2 Export Certificate of Airworthiness
Subject to the provisions of Clause 7.3, each Aircraft will be delivered
to the Buyers with an Export Certificate of Airworthiness issued by the
DGAC or EASA, as applicable, and in a condition enabling the Buyers (or
an eligible person under then applicable law) to obtain at the time of
Delivery a Standard Airworthiness Certificate issued pursuant to Part 21
of the US Federal Aviation Regulations and a Certificate of Sanitary
Construction issued by the U.S. Public Health Service Food and Drug
Administration. However, the Seller will have no obligation to make and
will not be responsible for any costs of alterations or modifications to
any Aircraft to enable such Aircraft to meet FAA or U.S. Department of
Transportation requirements for specific operation on the Buyers' routes,
except as may be provided pursuant to Clause 7.3, whether before, at or
after Delivery of any Aircraft.
7.3 Additional FAA Requirements
[AS AGREED BY THE PARTIES]
7.4 Additional EASA Requirements
[AS AGREED BY THE PARTIES]
7.4.4 Notwithstanding the provisions of Clauses 7.4.3, if a Change in Law
relates to an item of BFE or to the Propulsion Systems (including to
engine accessories, quick engine change units or thrust reversers) the
costs relating thereto will be borne in accordance with such arrangements
as may be made separately between the Buyers and the manufacturer of the
BFE or the Propulsion Systems, as applicable, and the Seller will have no
obligation with respect thereto.
7.5 Specification Changes After Delivery
Nothing in Clause 7.4 will require the Seller to make any changes or
modifications to, or to make any payments or take any other action with
respect to, any Aircraft that is Ready for Delivery before the compliance
date of any law or regulation referred to in Clause
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7.4. Any such changes or modifications made to an Aircraft after it is
Ready for Delivery will be at the Buyers' expense.
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8 BUYER'S TECHNICAL ACCEPTANCE
8.1 Technical Acceptance Process
8.1.1 Prior to Delivery, the Aircraft will undergo a technical acceptance
process developed by the Seller, [AS AGREED BY THE PARTIES] (the
"TECHNICAL ACCEPTANCE PROCESS"). Completion of the Technical Acceptance
Process will demonstrate the satisfactory functioning of the Aircraft and
will be deemed to demonstrate compliance with the applicable
Specification. Should it be established that the Aircraft fails to
complete the Technical Acceptance Process satisfactorily, the Seller will
without hindrance from the Buyers be entitled to and will carry out any
necessary changes to correct the reason for such failure and, as soon as
practicable thereafter, resubmit the Aircraft in order to complete the
Technical Acceptance Process.
8.1.2 The Technical Acceptance Process will
(i) start on a date notified by the Seller to the Buyers at least ten
(10) days in advance,
(ii) take place at the Delivery Location,
(iii) be carried out by the personnel of the Seller,
(iv) include a technical acceptance flight that will not exceed three
(3) hours, and
(v) conclude in nine (9) Working Days.
8.2 Buyers' Attendance
8.2.1 The Buyers are entitled to attend and observe the Technical Acceptance
Process.
8.2.2 If any of the Buyers attend the Technical Acceptance Process, each of
them
(i) will comply with the reasonable requirements of the Seller, with
the intention of completing the Technical Acceptance Process
within nine (9) Working Days, and
(ii) may, collectively, have a maximum of four (4) representatives (no
more than three (3) of whom will have access to the cockpit at any
one time) accompany the Seller's representatives on the technical
acceptance flight, during which such Buyers' representatives will
comply with the instructions of the Seller's representatives.
8.2.3 If none of the Buyers attends or any of them fails to cooperate in the
Technical Acceptance Process, the Seller will be entitled to complete the
Technical Acceptance Process in compliance with Clause 8.1.1, without
such Buyer's attendance, and each of
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the Buyers will be deemed to have accepted that the Aircraft is
functioning satisfactorily and is in compliance with the Specification,
in all respects.
8.3 Certificate of Acceptance
Upon successful completion of the Technical Acceptance Process, each of
the Buyers will, on or before the Delivery Date, sign and deliver to the
Seller a certificate of acceptance in respect of the Aircraft in the form
of Exhibit D (the "CERTIFICATE OF ACCEPTANCE"). [AS AGREED BY THE
PARTIES]
8.4 Finality of Acceptance
The Buyers' signature of the Certificate of Acceptance for the Aircraft
will constitute waiver by each of the Buyers of any right any of them may
have under the Uniform Commercial Code as adopted by the State of New
York or otherwise to revoke acceptance of the Aircraft for any reason,
whether known or unknown to any of the Buyers at the time of acceptance.
8.5 Aircraft Utilization
The Seller will, without payment or other liability, be entitled to use
the Aircraft [AS AGREED BY THE PARTIES] before Delivery to obtain the
certificates required under Clause 7. Such use will not limit the Buyers'
obligation to accept Delivery.
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9 DELIVERY
9.1 Delivery Schedule
9.1.1 Subject to any delay contemplated by Clauses 2, 7, 8, 10 and 18, the
Seller will have the Aircraft Ready for Delivery at the Delivery Location
within the following months (each a "SCHEDULED DELIVERY MONTH").
Scheduled Delivery Month Year Quantity
[AS AGREED BY THE PARTIES]
9.1.2 [AS AGREED BY THE PARTIES]
9.2. The Buyers will send their representatives to the Delivery Location to
take Delivery within seven (7) days after the date on which the Aircraft
is Ready for Delivery.
9.2.1 The Seller will transfer title to the Aircraft to [AS AGREED BY THE
PARTIES] free and clear of all encumbrances, provided that the Balance of
the Final Contract Price has been paid by the Buyers, or any of them,
pursuant to Clause 5.4 and that the Certificate of Acceptance has been
signed and delivered to the Seller pursuant to Clause 8.3. [AS AGREED BY
THE PARTIES]
9.2.2 If (i) any Buyer fails to deliver the signed Certificate of Acceptance to
the Seller on or before the Delivery Date, or (ii) the Buyers fail pay
the Balance of the Final Contract Price for the Aircraft to the Seller on
the Delivery Date, then each of the Buyers will be deemed to have
rejected Delivery wrongfully when the Aircraft was duly tendered pursuant
to this Agreement. If such a deemed rejection arises, the Seller will
retain title to the applicable Aircraft and the Buyers will, jointly and
severally, indemnify and hold the Seller harmless against any and all
costs (including but not limited to any parking, storage, and insurance
costs) and consequences resulting from the Buyers' rejection, it being
understood that the Seller will be under no duty to store, park, or
otherwise protect the Aircraft. These rights of the Seller will be in
addition to the Seller's other rights and remedies in this Agreement.
9.3 Flyaway
9.3.1 The Buyers and the Seller will cooperate to obtain any licenses that may
be required by the relevant Aviation Authority for the purpose of
exporting the Aircraft.
9.3.2 All expenses of, or connected with, flying the Aircraft from the Delivery
Location after Delivery will be borne by the Buyers. The Buyers will make
direct arrangements with the supplying companies for the fuel and oil
required for all delivery flights.
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10 EXCUSABLE DELAY AND TOTAL LOSS
10.1 Scope of Excusable Delay
Neither the Seller, the Manufacturer, the Associated Contractors, nor any
Affiliate of any of the foregoing, will be responsible for or be deemed
to be in default on account of delays in delivery or failure to deliver
or otherwise in the performance of this Agreement or any part hereof due
to causes reasonably beyond the Seller's, the Manufacturer's or any
Associated Contractor's control or not occasioned by the Seller's, the
Manufacturer's or any Associated Contractor's fault or negligence
("EXCUSABLE DELAY"), including, but not limited to: (i) acts of God or
the public enemy, natural disasters, fires, floods, storms beyond
ordinary strength, explosions or earthquakes; epidemics or quarantine
restrictions; serious accidents; total or constructive total loss; any
law, decision, regulation, directive or other act (whether or not having
the force of law) of any government or of the Council of the European
Union or the Commission of the European Union or of any national,
Federal, State, municipal or other governmental department, commission,
board, bureau, agency, court or instrumentality, domestic or foreign;
governmental priorities, regulations or orders affecting allocation of
materials, facilities or a completed Aircraft; war, civil war or warlike
operations, terrorism, insurrection or riots; failure of transportation;
strikes or labor troubles causing cessation, slow down or interruption of
work; inability after due and timely diligence to procure materials,
accessories, equipment or parts or to cause a subcontractor or Supplier
to furnish materials, components, accessories, equipment or parts;
general hindrance in transportation; [AS AGREED BY THE PARTIES]; and
(iii) any delay caused directly or indirectly by the action or inaction
of any Buyer.
10.2 Consequences of Excusable Delay
10.2.1 If an Excusable Delay occurs,
(a) the Seller will
(i) notify the Buyers of such Excusable Delay as soon as
practicable after becoming aware of the same;
(ii) not be deemed to be in default in the performance of its
obligations hereunder as a result of such Excusable Delay;
(iii) not be responsible for any damages arising from or in
connection with such Excusable Delay suffered or incurred
by any of the Buyers; and
(iv) subject to the provisions of Subclause 10.3 below, as soon
as practicable after the removal of the cause of such
Excusable Delay, resume performance of its obligations
under this Agreement and notify the Buyers of the revised
Scheduled Delivery Month; and
(b) [AS AGREED BY THE PARTIES]
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10.3 Termination on Excusable Delay
10.3.1 If any Delivery is delayed as a result of an Excusable Delay for a period
of [AS AGREED BY THE PARTIES] after the last day of the Scheduled
Delivery Month, then either party may terminate this Agreement with
respect to the affected Aircraft, by giving written notice the other
party [AS AGREED BY THE PARTIES] after [AS AGREED BY THE PARTIES]
10.3.2 If the Seller has not exercised its right to terminate pursuant to
Subclause 10.3.1 herein and if the Seller notifies the Buyers of a
revised Scheduled Delivery Month pursuant to Clause 10.2.1(iv), in
respect of a delay in Delivery of an Aircraft of [AS AGREED BY THE
PARTIES], then the Buyers may terminate this Agreement with respect to
the affected Aircraft. Termination will be made by giving written notice
to the other party [AS AGREED BY THE PARTIES] after the Buyers' receipt
of the notice of a revised Scheduled Delivery Month. Any termination
pursuant to this Clause 10.3.2 as to an Aircraft will discharge the
obligations and liabilities of the parties hereunder with respect to such
Aircraft, except that the Seller will [AS AGREED BY THE PARTIES] of such
termination pay to an account designated by each of the Buyers in writing
an amount equal to all Predelivery Payments made by the Buyers, or any of
them, in respect of such Aircraft, provided that none of the Buyers is in
default under this Agreement or any other agreement with the Seller
and/or its Affiliates.
10.3.3 If this Agreement is not terminated under the terms of Clause 10.3.1 or
10.3.2, then the Seller and the Buyers will mutually agree upon a new
Scheduled Delivery Month after the [AS AGREED BY THE PARTIES] period
referred to in Clause 10.3.1 or 10.3.2, and this new Scheduled Delivery
Month will be deemed to be an amendment to the applicable Scheduled
Delivery Month in Clause 9.1.1.
10.4 Total Loss, Destruction or Damage
If prior to Delivery, any Aircraft is lost, destroyed or in the
reasonable opinion of the Seller is damaged beyond economic repair
("TOTAL LOSS"), the Seller will notify the Buyers to this effect within
[AS AGREED BY THE PARTIES]of such occurrence. The Seller will include in
said notification (or as soon after the issue of the notice as such
information becomes available to the Seller) the earliest date consistent
with the Seller's other commitments and production capabilities that an
aircraft to replace the Aircraft may be delivered to the Buyers and the
Scheduled Delivery Month will be extended as specified in the Seller's
notice to accommodate the delivery of the replacement aircraft. However,
if the Scheduled Delivery Month is extended to a month [AS AGREED BY THE
PARTIES], then this Agreement will terminate with respect to said
Aircraft unless:
(i) each of the Buyers notifies the Seller within [AS AGREED BY THE
PARTIES] of the date of receipt of the Seller's notice that it
desires the Seller to provide a replacement aircraft during the
month quoted in the Seller's notice; and
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25
(ii) the parties execute an amendment to this Agreement recording the
variation in the Scheduled Delivery Month.
Nothing herein will require the Seller to manufacture and deliver a
replacement aircraft if such manufacture would require the reactivation
of its production line for the model or series of aircraft that
includes the Aircraft. Any termination pursuant to this Clause 10.4 as
to a particular Aircraft will discharge the obligations and liabilities
of the parties hereunder with respect to such Aircraft, except that the
Seller will [AS AGREED BY THE PARTIES]of such termination pay to an
account designated by each of the Buyers in writing an amount equal to
all Predelivery Payments made by the Buyers, or any of them, in respect
of such Aircraft, provided that none of the Buyers is in default under
this Agreement or any other agreement with the Seller and/or its
Affiliates.
10.5 REMEDIES
THIS CLAUSE 10 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYERS FOR
DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS ARE
COVERED BY CLAUSE 11, AND THE BUYER HEREBY WAIVES ALL RIGHTS TO WHICH IT
WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF, INCLUDING, WITHOUT
LIMITATION, ANY RIGHTS TO INCIDENTAL AND CONSEQUENTIAL DAMAGES OR
SPECIFIC PERFORMANCE. NONE OF THE BUYERS WILL BE ENTITLED TO CLAIM THE
REMEDIES AND RECEIVE THE BENEFITS PROVIDED IN THIS CLAUSE 10 WHERE THE
DELAY REFERRED TO IN THIS CLAUSE 10 IS CAUSED DIRECTLY OR INDIRECTLY BY
THE NEGLIGENCE OR FAULT OF ANY BUYER OR ITS REPRESENTATIVES.
PRIVILEGED AND CONFIDENTIAL
26
11 INEXCUSABLE DELAY
11.1 Liquidated Damages
11.1.1 If
[AS AGREED BY THE PARTIES]
then such delay will be termed an "INEXCUSABLE DELAY." In the event of
an Inexcusable Delay, [AS AGREED BY THE PARTIES]
11.1.2 If
(y) an Aircraft is not Ready for Delivery [AS AGREED BY THE
PARTIES]
11.2 Renegotiation
If, as a result of an Inexcusable Delay, Delivery does not occur [AS
AGREED BY THE PARTIES] after the last day of the Scheduled Delivery
Month, the Buyers will have the right, exercisable by written notice
given by each of them to the Seller [AS AGREED BY THE PARTIES]to
require from the Seller a renegotiation of the Scheduled Delivery Month
for the affected Aircraft. Unless otherwise agreed between the Seller
and the Buyers during such renegotiation, the said renegotiation will
not prejudice the Buyers' right to receive liquidated damages in
accordance with Clause 11.1.
11.3 Termination
If, as a result of an Inexcusable Delay, Delivery does not or cannot
occur [AS AGREED BY THE PARTIES]and the parties have not renegotiated
the Delivery Date pursuant to Clause 11.2, then the Buyers
collectively, on the one hand, and the Seller, on the other, will have
the right, exercisable by written notice to the other party, given [AS
AGREED BY THE PARTIES] to terminate this Agreement in respect of the
affected Aircraft. In the event of termination, neither party will have
any claim against the other, except that the Seller will pay to an
account designated in a writing signed by each of the Buyers any
amounts due pursuant to Clause 11.1 and will pay such account [AS
AGREED BY THE PARTIES]
11.4 Setoff Payments
Notwithstanding anything to the contrary contained herein, before being
required to make any payments under Clauses 11.1 or 11.3 above, the
Seller will have the right to apply any and all sums previously paid by
the Buyers, or any of them, to the Seller with respect to an Aircraft
as to which this Agreement has been terminated to the payment of any
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27
other amounts that any Buyer or any Affiliate of a Buyer owes to the
Seller or any Affiliate thereof under any agreement between them.
11.5 REMEDIES
THIS CLAUSE 11 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYERS
FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS
ARE COVERED BY CLAUSE 10, AND EACH OF THE BUYERS HEREBY WAIVES ALL
RIGHTS TO WHICH IT WOULD OTHERWISE BE ENTITLED IN RESPECT THEREOF,
INCLUDING WITHOUT LIMITATION ANY RIGHTS TO INCIDENTAL AND CONSEQUENTIAL
DAMAGES OR SPECIFIC PERFORMANCE. NONE OF THE BUYERS WILL BE ENTITLED TO
CLAIM THE REMEDIES AND RECEIVE THE BENEFITS PROVIDED IN THIS CLAUSE 11
WHERE THE DELAY REFERRED TO IN THIS CLAUSE 11 IS CAUSED BY, DIRECTLY OR
INDIRECTLY, THE NEGLIGENCE OR FAULT OF ANY BUYER OR ITS
REPRESENTATIVES.
PRIVILEGED AND CONFIDENTIAL
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12 WARRANTIES AND SERVICE LIFE POLICY
The Seller represents and warrants that the Manufacturer has provided
to the Seller the Warranty, Service Life Policy, Supplier Warranties
and Interface Commitment with respect to the Aircraft that are
reproduced below between the words QUOTE and UNQUOTE, subject to the
terms, conditions, limitations and restrictions (including, but not
limited to, the Exclusivity of Warranties and General Limitations of
Liability and Duplicate Remedies provisions) set forth below. The
Seller hereby assigns to the Buyers, and each of the Buyers hereby
accepts, all of the Seller's rights and obligations as the "Buyer"
under the said Warranty, Service Life Policy, Supplier Warranties and
Interface Commitment, and the Seller subrogates the Buyers to all such
rights and obligations in respect of the Aircraft. The Seller hereby
warrants to the Buyers that (i) it has all requisite authority to make
the foregoing assignment to and to effect the foregoing subrogation in
favor of the Buyers, (ii) such assignment and subrogation are effective
to confer on the Buyers all of the foregoing rights and obligations of
the Seller, (iii) the provisions so assigned are in full force and
effect and have not been amended prior to the date hereof, and (iv) the
Seller will not enter into any amendment of the provisions so assigned
without the prior written consent of each of the Buyers.
QUOTE
12.1 WARRANTY
12.1.1 Nature of Warranty
Subject to the limitations and conditions hereinafter provided, and
except as provided in Clause 12.1.2, the Seller warrants to the Buyers
that each Aircraft and each Warranted Part will at the time of Delivery
hereunder be free from defects:
(i) in material,
(ii) in workmanship, including, without limitation, processes of
manufacture,
(iii) in design (including, without limitation, selection of
materials parts and components) having regard to the state of
the art at the date of such design, and
(iv) arising from failure to conform to the Specification, except
as to immaterial deviations from those portions of the
Specification that are expressly stated in the Specification
to be estimates or approximations or design aims.
For the purposes of this Agreement, the term "WARRANTED PART" will mean
any Seller proprietary component, equipment, accessory or part that (a)
is installed on or incorporated into an Aircraft at Delivery, (b) is
manufactured to the detail
PRIVILEGED AND CONFIDENTIAL
29
design of the Seller or a subcontractor of the Seller and (c) bears a
part number of the Seller at the time of Delivery.
12.1.2 Exceptions
The warranties set forth in Clause 12.1.1 will not apply to Buyer
Furnished Equipment, Propulsion Systems, or to any component,
accessory, equipment or part purchased by any Buyer or the Seller [AS
AGREED BY THE PARTIES] that is not a Warranted Part, provided, however,
that:
(i) any defect in the Seller's workmanship in respect of the
installation of such items in or on the Aircraft, including
any failure by the Seller to conform to the installation
instructions of the manufacturers of such items that
invalidates any applicable warranty from such manufacturers,
will constitute a defect in workmanship for the purpose of
this Clause 12.1 and be covered by the warranty set forth in
Clause 12.1.1(ii), and
(ii) any defect inherent in the Seller's design of the
installation, considering the state of the art at the date of
such design, that impairs the use or function of such items
will constitute a defect in design for the purposes of this
Clause 12.1 and be covered by the warranty set forth in Clause
12.1.1(iii).
12.1.3 Warranty Periods
The warranties described in Clauses 12.1.1 and 12.1.2 hereinabove will
be limited to those defects that become apparent within [AS AGREED BY
THE PARTIES] after Delivery of the affected Aircraft, (the "WARRANTY
PERIOD").
12.1.4.1 Limitations of Warranty
(i) The Buyers' remedy and the Seller's obligation and liability
under Clauses 12.1.1 and 12.1.2 are limited to, at the
Seller's expense and option, the repair, replacement or
correction of, or the supply of modification kits rectifying
the defect to any defective Warranted Part, [AS AGREED BY THE
PARTIES] However, the Seller may furnish a credit to the
Buyers, jointly, for the future purchase of goods and services
(not including Aircraft) equal to the price at which the
Buyers are then entitled to acquire a replacement for the
defective Warranted Part.
(ii) If the Seller corrects a defect covered by Clause 12.1.1(iii)
that becomes apparent within the Warranty Period, on the
written request of the Buyers the Seller will correct any such
defect in any Aircraft that has not already been delivered to
the Buyers. The Seller will not be responsible for, nor deemed
to be in default on account of, any delay in Delivery of any
Aircraft or otherwise, in respect of performance of this
Agreement, due to the Seller's undertaking to make such
correction. In the alternative, the
PRIVILEGED AND CONFIDENTIAL
30
Buyers and the Seller may agree to deliver such Aircraft with
subsequent correction of the defect by a Buyer at the Seller's
expense, or the Buyers may elect to accept Delivery and
thereafter file a Warranty Claim as though the defect had
become apparent immediately after Delivery of such Aircraft.
(ii) [AS AGREED BY THE PARTIES]
12.1.5 Cost of Inspection
(i) In addition to the remedies set forth in Clauses 12.1.4(i) and
12.1.4(ii), the Seller will reimburse the direct labor costs
spent by the Buyers in performing inspections of the Aircraft
that are conducted:
(a) to determine whether a defect exists in any Warranted
Part within the Warranty Period; or
(b) pending the Seller's provision of a corrective
technical solution.
(ii) The Seller's liability under Clause 12.1.5(i) is subject to
the following conditions:
(a) such inspections are recommended by a Seller Service
Bulletin to be performed within the Warranty Period;
(b) the inspections are not performed during a scheduled
maintenance check recommended by the Seller's
Maintenance Planning Document; the labor rate for the
reimbursements will be the In-House Warranty Labor
Rate, and
[AS AGREED BY THE PARTIES]
12.1.5 Warranty Claim Requirements
The Buyers' remedy and the Seller's obligation and liability under this
Clause 12.1, with respect to each claimed defect, are subject to the
following conditions precedent:
(i) the existence of a defect covered by the provisions of this
Clause 12.1,
(ii) the defect becomes apparent within the Warranty Period, except
as provided in Clause 12.1.4(iii),
(iii) a Buyer submits to the Seller evidence reasonably satisfactory
to the Seller that the claimed defect is due to a matter
covered under the provisions of this Clause 12, and that such
defect did not result from any act or omission
PRIVILEGED AND CONFIDENTIAL
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of any of the Buyers, including but not limited to, any
failure to operate and maintain the affected Aircraft or part
thereof in accordance with the standards set forth in Clause
12.1.11 or from any act or omission of any third party,
(iv) a Buyer returns as soon as practicable the Warranted Part
claimed to be defective to the repair facilities designated by
the Seller, unless the Buyers elect to repair a defective
Warranted Part in accordance with the provisions of Clause
12.1.8,
(v) the Seller receives a "WARRANTY CLAIM" complying with the
provisions of Clause 12.1.7(v).
12.1.7 Warranty Administration
The warranties set forth in Clause 12.1 will be administered as
hereinafter provided:
(i) Claim Determination. Determination as to whether any claimed
defect in any Warranted Part entitles the Buyers to a remedy
under this Clause 12.1 will be made by the Seller, in
consultation with the Buyers, and will be based on claim
details, reports from the Seller's regional representative,
historical data logs, inspections, tests, findings during
repair, defect analysis and other relevant documents and
information.
(ii) Transportation Costs. [AS AGREED BY THE PARTIES]
(iii) On-Aircraft Work by the Seller. [AS AGREED BY THE PARTIES]
[AS AGREED BY THE PARTIES]
(iv) Return of an Aircraft. [AS AGREED BY THE PARTIES]
(v) Warranty Claim Substantiation. [AS AGREED BY THE PARTIES]
(a) Description of the defect and any action taken
(b) Date of incident and/or removal
(c) Description of the Warranted Part claimed to be
defective
(d) Part number
(e) Serial number (if applicable)
(f) Position on Aircraft, according to Catalog Sequence
Number of the Illustrated Parts Catalog, Aircraft
Maintenance Manual, Component Maintenance Manual or
Structural Repair Manual, as applicable
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32
(g) Total flying hours or calendar times, as applicable,
at the date of appearance of a defect
(h) Time since last shop visit at the date of appearance
of defect
(i) Manufacturer's serial number (MSN) of the Aircraft
and/or its registration number
(j) Aircraft total flying hours and/or number of landings
at the date of appearance of defect
(k) Claim number
(l) Date of claim
(m) Date of delivery of an Aircraft or Warranted Part to
the Buyer
Warranty Claims are to be addressed as follows:
Airbus
Customer Services Directorate
Warranty Administration
Rond-Point Xxxxxxx Xxxxxxxx
X.X. 00
X-00000 Xxxxxxx Xxxxx, Xxxxxx
(vi) Replacements. Replacements made pursuant to this Clause 12.1
will be made within the lead time defined in the Seller's
Spare Parts Price Catalog. [AS AGREED BY THE PARTIES] Replaced
components, equipment, accessories or parts will become the
Seller's property.
Title to and risk of loss of any Aircraft, component,
accessory, equipment or part returned by any of the Buyers to
the Seller will at all times remain with such Buyer, except
that (i) when the Seller has possession of a returned
Aircraft, component, accessory, equipment or part to which any
of the Buyers has title, the Seller will have such
responsibility therefor as is chargeable by law to a bailee
for hire, but the Seller will not be liable for loss of use,
and (ii) title to and risk of loss of a returned component,
accessory, equipment or part will pass to the Seller on
shipment by the Seller to a Buyer of any item furnished by the
Seller to such Buyer as a replacement therefor or on the
Seller's issuance of a credit with respect thereto. Upon the
Seller's shipment to a Buyer of any replacement component,
accessory, equipment or part provided by the Seller pursuant
to this Clause 12.1, title to and risk of loss of such
component, accessory, equipment or part will pass to such
Buyer.
(vii) Seller's Acceptance and Rejection. [AS AGREED BY THE PARTIES]
The Seller will provide reasonable written substantiation in
case of rejection of a Warranty Claim. The Buyers will pay the
Seller (a) reasonable inspection and test charges incurred by
the Seller in connection with the investigation and processing
of a rejected Warranty Claim, [AS
PRIVILEGED AND CONFIDENTIAL
33
AGREED BY THE PARTIES] and (b) all costs incurred by the
Seller including transportation to the ANACS Spares Center in
Ashburn, VA, insurance, and any other associated costs. [AS
AGREED BY THE PARTIES]
(viii) Inspection. The Seller will have the right to inspect the
affected Aircraft and documents and other records relating
thereto in the event of any claim under this Clause 12.1 on
reasonable prior written notice to the Buyers and such
inspection will not unreasonably interfere with the Buyers'
operation and personnel.
12.1.8 In-house Warranty
(i) Authorization. Each of the Buyers is hereby authorized to
repair Warranted Parts, subject to the terms of this Clause
12.1.8 ("IN-HOUSE WARRANTY REPAIR"). [AS AGREED BY THE
PARTIES] such Buyer will notify the Resident Customer Support
Representative of its decision to perform any In-house
Warranty Repairs before such repairs are commenced. Such
Buyer's notice will include sufficient detail regarding the
defect, estimated or actual labor hours and material, as
applicable, to allow the Seller to ascertain the
reasonableness of the estimate. [AS AGREED BY THE PARTIES] The
Seller will use reasonable efforts to ensure a prompt response
and will not unreasonably withhold authorization.
(ii) Conditions of Authorization. The Buyers will be entitled to
the benefits under this Clause 12.1.8 for repair of Warranted
Parts:
[AS AGREED BY THE PARTIES]
(iii) Seller's Rights. The Seller will have the right to require the
delivery to it of any Warranted Part, or any part removed
therefrom that is claimed to be defective, if, in the Seller's
judgment, the nature of the claimed defect requires technical
investigation. Such delivery will be subject to the provisions
of Clause 12.1.7(ii).
Subject to applicable safety rules, the Seller will have the right to
have a representative present as an observer during the disassembly,
inspection and testing of any Warranted Part claimed to be defective.
Such representatives will not unreasonably interfere with the Buyers'
operation and personnel.
(iv) In-house Warranty Claim Substantiation. Claims for In-house
Warranty Repair credit will comply with the requirements in
Warranty Claims under Clause 12.1.6(v) and in addition, to the
extent ascertainable, will include:
(a) A report of technical findings with respect to the
defect
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34
(b) For parts required to remedy the defect
- part numbers,
- serial numbers (if applicable),
- description of the parts,
- quantity of parts,
- unit price of parts,
- related Seller's or third party's invoices
(if applicable),
- total price of parts
(c) Detailed number of labor hours
(d) In-house Warranty Labor Rate
(e) Total claim amount
(v) Credit. The Buyers' sole remedy, and the Seller's sole
obligation and liability, in respect of In-house Warranty
Repair claims, will be a credit to the Buyers' account. Such
credit will be equal to the sum of the direct labor cost
expended in performing such repair and the direct cost of
materials incorporated in the repair. Such costs will be
determined as set forth below.
(a) To determine direct labor costs, only the labor hours
spent on access, disassembly, inspection, repair,
reassembly, and final inspection and test (including
flight tests necessary to complete such repair) of
the Warranted Part alone will be counted. The hours
required for maintenance work concurrently being
carried out on the Aircraft or Warranted Part will
not be included.
(b) [AS AGREED BY THE PARTIES]
(c) Direct material costs are determined by the prices at
which the Buyers, or any of them, acquired such
replacement material, excluding any parts and
materials used for overhaul furnished free of charge
by the Seller.
(vi) Limitation on Credit. The Buyers will in no event be credited
for repair costs (including labor and material) for any
Warranted Part if such repair costs exceed, in the aggregate,
(x) [AS AGREED BY THE PARTIES]of the Seller's then current
catalog price for a replacement of such Warranted Part or (y)
those costs that would have resulted if repairs had been
carried out at the Seller's facilities.
PRIVILEGED AND CONFIDENTIAL
35
The Seller will substantiate the costs referred to in Clause
12.1.8(vi)(y) in writing on reasonable request by the Buyers.
(vii) Scrapped Material. Each of the Buyers may, with the agreement
of the Resident Customer Support Representative, scrap any
defective Warranted Parts that are beyond economic repair and
not required for technical evaluation. If such Buyer does not
obtain the written agreement of the Resident Customer Support
Representative to scrap a Warranted Part, then such Buyer will
retain such Warranted Part and any defective part removed from
a Warranted Part during repair for a period of either one
hundred and[AS AGREED BY THE PARTIES] after the date of
completion of repair or [AS AGREED BY THE PARTIES] after
submission of a claim for In-house Warranty Repair credit
relating thereto, whichever is longer. Such parts will be
returned to the Seller within[AS AGREED BY THE PARTIES] of
receipt of the Seller's request therefor, at the Seller's
expense (including costs relating to the fabrication of a
shipping container specifically required for this shipment
only.)
(viii) DISCLAIMER OF SELLER LIABILITY FOR BUYER'S REPAIR
THE SELLER WILL NOT BE LIABLE FOR, AND EACH OF THE BUYERS
WILL, JOINTLY AND SEVERALLY, INDEMNIFY THE SELLER AGAINST,
CLAIMS OF ANY THIRD PARTIES FOR LOSSES DUE TO ANY DEFECT,
NONCONFORMANCE OR PROBLEM OF ANY KIND, ARISING OUT OF OR IN
CONNECTION WITH ANY REPAIR OF WARRANTED PARTS UNDERTAKEN BY
ANY OF THE BUYERS UNDER THIS CLAUSE 12.1.8 OR ANY OTHER
ACTIONS UNDERTAKEN BY ANY OF THE BUYERS UNDER THIS CLAUSE
12.1.8, WHETHER SUCH CLAIM IS ASSERTED IN CONTRACT OR IN TORT,
OR IS PREMISED ON ALLEGED, ACTUAL, IMPUTED, ORDINARY OR
INTENTIONAL ACTS OR OMISSIONS OF ANY BUYER OR THE SELLER.
12.1.9 Warranty Transferability
The warranties provided for in this Clause 12.1 for any Warranted Part
will accrue to the benefit of any operator other than a Buyer if the
Warranted Part enters into the possession of such operator as a result
of a pooling agreement between such operator and a Buyer, in accordance
with the terms and subject to the limitations and exclusions of the
foregoing warranties and to applicable laws or regulations.
12.1.10 Warranty for Corrected, Replacement or Repaired Warranted Parts
Whenever any Warranted Part that contains a defect for which the Seller
is liable under this Clause 12.1 has been corrected, repaired or
replaced pursuant to the
PRIVILEGED AND CONFIDENTIAL
36
terms of this Clause 12, the period of the Seller's warranty with
respect to such corrected, repaired or replacement Warranted Part, will
be the remaining portion of the original Warranty Period in respect of
such corrected, repaired or replaced Warranted Part. If a defect is
attributable to a defective repair or replacement by any of the Buyers,
a Warranty Claim with respect to such defect will be rejected,
notwithstanding any subsequent correction or repair, and will
immediately terminate the remaining warranties under this Clause 12.1
in respect of the affected Warranted Part.
12.1.11 Standard Airline Operation - Normal Wear and Tear
The Buyers' rights under this Clause 12.1 are subject to the Aircraft
and each component, equipment, accessory and part thereof being
maintained, overhauled, repaired and operated in accordance with FAA
regulations and the Buyers' FAA-approved maintenance program and
operating procedures.
The Seller's liability under this Clause 12.1 will not extend to normal
wear and tear nor, to the extent caused by any of the following, to:
(i) any Aircraft or component, equipment, accessory or part
thereof that has been repaired, altered or modified after
Delivery in a manner inconsistent with the requirements of the
applicable Aviation Authority or the aircraft repair manuals,
as applicable;
(ii) any Aircraft or component, equipment, accessory or part
thereof that has been operated in a damaged state; or
(iii) any component, equipment, accessory or part from which the
trademark, trade name, part or serial number or other
identification marks have been removed.
The limitations of the Seller's liability under this Clause 12.1.11
resulting from causes described in Clauses 12.1.11(i) and 12.1.11(ii)
will apply only to the extent the Seller submits reasonable evidence
that the defect arose from or was contributed to by such causes.
12.2 SELLER SERVICE LIFE POLICY
12.2.1 Scope and Definitions
In addition to the warranties set forth in Clause 12.1, the Seller
agrees that, should a Failure occur in any Item (as such terms are
defined below), then, subject to the general conditions and limitations
set forth in Clause 12.2.4, the provisions of this Clause 12.2 will
apply.
For the purposes of this Clause 12.2,
PRIVILEGED AND CONFIDENTIAL
37
(i) "ITEM" means any of the Seller components, equipment,
accessories or parts listed in Exhibit C that are installed on
an Aircraft at any time during the period of effectiveness of
the Service Life Policy as defined below in Clause 12.2.2;
(ii) "FAILURE" means any breakage of, or defect in, an Item that
(x) materially impairs the utility or safety of the Item,
(y) did not result from any breakage or defect in any
other Aircraft part or component or from any other
extrinsic force, and
(z) has occurred or can reasonably be expected to occur,
but does not necessarily occur, on a repetitive or
fleetwide basis.
The Seller's obligations under this Clause 12.2 are referred to as the
("SERVICE LIFE POLICY").
12.2.2 Periods and Seller's Undertaking
Subject to the general conditions and limitations set forth in Clause
12.2.4, the Seller agrees that if a Failure occurs in an Item within
[AS AGREED BY THE PARTIES] on which such Item is installed, the Seller
will, at its discretion, as promptly as practicable and for a price
that reflects the Seller's financial participation as hereinafter
provided:
(i) design and furnish to the Buyers a terminating correction for
such Item and provide any parts required for such correction
(including Seller designed standard parts but excluding
industry standard parts), or
(ii) replace such Item.
12.2.3 Seller's Participation in the Cost
Any part or Item that the Seller is required to furnish to the Buyers
under this Service Life Policy will be furnished at the Seller's
current sales price therefor, less the Seller's financial
participation, which will be determined in accordance with the
following formula:
P = C ( N - T ) / N
where
P: financial participation of the Seller,
PRIVILEGED AND CONFIDENTIAL
38
C: the Seller's then current sales price for the required Item or
required Seller designed parts,
T: total time in months since Delivery of the Aircraft in which
the Item subject to a Failure was originally installed, and
N: [AS AGREED BY THE PARTIES]
12.2.4 General Conditions and Limitations
12.2.4.1 Notwithstanding any provision of this Clause 12.2, during the Warranty
Period, all Items will be covered by the provisions of Clause 12.1 and
not by the provisions of this Clause 12.2.
12.2.4.2 The Buyers' remedies and the Seller's obligations and liabilities under
this Service Life Policy are subject to compliance by the Buyers with
the following conditions:
(i) The Buyers will generate maintain log books and other
historical records as required by the FAA, and will retain the
same for the duration of this Service Life Policy, with
respect to each Item adequate to enable the determination as
to whether the alleged Failure is covered by this Service Life
Policy and, if so, to allocate the portion of the cost to be
borne by the Seller in accordance with Clause 12.2.3.
(ii) The Buyers will keep the Seller informed, by making available
any relevant records upon request, of any significant
incidents relating to an Aircraft, howsoever occurring or
recorded.
(iii) The conditions of Clause 12.1.11 will have been complied with.
(iv) The Buyers will implement specific structural inspection
programs for monitoring purposes as may be established from
time to time by the Seller and the Buyers. Such programs will
be, to the extent possible, compatible with the Buyers'
operational requirements and will be carried out at the
Buyers' expense. Reports relating thereto will be regularly
furnished to the Seller on a reasonable request.
(v) The Buyers will report in writing any breakage or defect that
may be covered by the Service Life Policy to the Seller within
[AS AGREED BY THE PARTIES] after such breakage or defect
becomes apparent, whether or not the same can reasonably be
expected to occur in any other Aircraft, and the Buyers will
inform the Seller in sufficient detail about such breakage or
defect to enable the Seller to determine whether the same is
subject to this Service Life Policy.
PRIVILEGED AND CONFIDENTIAL
39
12.2.4.3 Except as otherwise provided in this Clause 12.2, any claim under this
Service Life Policy will be administered as provided in, and will be
subject to the terms and conditions of, Clause 12.1.6.
12.2.4.4 If the Seller has issued a service bulletin modification applicable to
an Aircraft, the purpose of which is to avoid a Failure, the Seller
will offer the necessary modification kit free of charge or under a pro
rata formula established by the Seller. If such a kit is so offered to
the Buyers, then, in respect of such Failure and any Failures that
could ensue therefrom, the Seller's commitment under this Clause 12.2
will be subject to the Buyers' incorporating such modification in the
relevant Aircraft, within a reasonable time, as promulgated by the
Seller and in accordance with the Seller's instructions.
12.2.4.5 THIS SERVICE LIFE POLICY IS NEITHER A WARRANTY, PERFORMANCE GUARANTEE,
NOR AN AGREEMENT TO MODIFY ANY AIRCRAFT OR AIRFRAME COMPONENTS TO
CONFORM TO NEW DEVELOPMENTS OCCURRING IN THE STATE OF AIRFRAME DESIGN
AND MANUFACTURING ART. THE SELLER'S OBLIGATION UNDER THIS CLAUSE 12.2
IS TO MAKE ONLY THOSE CORRECTIONS TO THE ITEMS OR FURNISH REPLACEMENTS
THEREFOR AS PROVIDED IN THIS CLAUSE 12.2. THE BUYERS' SOLE REMEDY AND
RELIEF FOR THE NONPERFORMANCE OF ANY OBLIGATION OR LIABILITY OF THE
SELLER ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE POLICY WILL BE
IN MONETARY DAMAGES, LIMITED TO THE AMOUNT THE BUYERS REASONABLY EXPEND
IN PROCURING A CORRECTION OR REPLACEMENT FOR ANY ITEM THAT IS THE
SUBJECT OF A FAILURE COVERED BY THIS SERVICE LIFE POLICY AND TO WHICH
SUCH NONPERFORMANCE IS RELATED, LESS THE AMOUNT THAT THE BUYERS
OTHERWISE WOULD HAVE BEEN REQUIRED TO PAY UNDER THIS CLAUSE 12.2 IN
RESPECT OF SUCH CORRECTED OR REPLACEMENT ITEM. WITHOUT LIMITING THE
EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY
PROVISIONS SET FORTH IN CLAUSE 12.5, EACH OF THE BUYERS HEREBY WAIVES,
RELEASES AND RENOUNCES ALL CLAIMS TO ANY FURTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS AND ALL OTHER RIGHTS,
CLAIMS AND REMEDIES, ARISING UNDER OR BY VIRTUE OF THIS SERVICE LIFE
POLICY.
12.2.5 Transferability
PRIVILEGED AND CONFIDENTIAL
40
The Buyers' rights under this Clause 12.2 will not be assigned,
sold, transferred or otherwise alienated by operation of law or
otherwise, without the Seller's prior written consent.
Any unauthorized assignment, sale, transfer or other alienation of
any Buyer's rights under this Service Life Policy will, as to the
Aircraft involved, immediately void this Service Life Policy in its
entirety.
12.3 SUPPLIER WARRANTIES AND SERVICE LIFE POLICIES
12.3.1 Seller's Support
Before Delivery of the first Aircraft, the Seller will provide the
Buyers with the warranties and service life policies that the Seller
has obtained pursuant to the Supplier Product Support Agreements.
12.3.2.1 Supplier's Default
12.3.2.1 If any Supplier under any warranty referred to in Clause 12.3.1
defaults in the performance of any material obligation under such
warranty with respect to a Supplier Part, each Buyer has used its
best efforts to enforce its rights under such warranty, and the
Buyers submit reasonable evidence, within a reasonable time, that
such default has occurred, then Clause 12.1 of this Agreement will
apply to the extent it would have applied had such Supplier Part
been a Warranted Part, to the extent the Seller can reasonably
perform said Supplier's obligations, except that the Supplier's
warranty period indicated in the applicable Supplier Product Support
Agreement will apply.
12.3.2.2 If any Supplier under any service life policy referred to in Clause
12.3.1 defaults in the performance of any material obligation under
such service life policy with respect to a Supplier Part, each Buyer
has used best efforts to enforce its rights under such service life
policy, and such Buyer submits within reasonable time to the Seller
reasonable evidence that such default has occurred, then Clause 12.2
will apply to the extent the same would have applied had such
Supplier Part been listed in Exhibit C, to the extent that the
Seller can reasonably perform said Supplier's service life policy.
12.3.2.3 At the Seller's request, each Buyer will assign to the Seller, and
the Seller will be subrogated to, all of the Buyers' rights against
the relevant Supplier with respect to, and arising by reason of,
such default and the Buyers will provide reasonable assistance to
enable the Seller to enforce the rights so assigned.
12.4 INTERFACE COMMITMENT
PRIVILEGED AND CONFIDENTIAL
41
12.4.1 Interface Problem
If any Buyer experiences any technical problem in the operation of
an Aircraft or its systems, the cause of which, after due and
reasonable investigation, is not readily identifiable by such Buyer,
but which such Buyer reasonably believes to be attributable to the
design characteristics of one or more components of the Aircraft
and/or its systems (an "INTERFACE PROBLEM"), the Seller will, if
requested by such Buyer, and without additional charge to any Buyer,
promptly conduct or have conducted an investigation and analysis of
such problem to determine, if possible, the cause or causes of the
problem and to recommend such corrective action as may be feasible,
provided, however, that if the Seller determines, after such
investigation, that the Interface Problem was due to or caused by
any act or omission of any Buyer in its performance of its
obligations hereunder, the Buyers will, jointly and severally, pay
to the Seller all reasonable costs and expenses incurred by the
Seller during such investigation. The Buyers will furnish to the
Seller all data and information in the possession of any of them
relevant to the Interface Problem and will reasonably cooperate with
the Seller in the conduct of the Seller's investigations and such
tests as may be required. At the conclusion of such investigation
the Seller will promptly advise the Buyers in writing of the
Seller's opinion as to the cause or causes of the Interface Problem
and the Seller's recommendations as to corrective action.
12.4.2 Seller's Responsibility
If the Seller determines that the Interface Problem is primarily
attributable to the design of a Warranted Part, the Seller will, if
requested by a Buyer, take prompt action to correct the design of
such Warranted Part, pursuant to the terms and conditions of Clause
12.1.
12.4.3 Supplier's Responsibility
If the Seller determines that the Interface Problem is primarily
attributable to the design of any Supplier Part, the Seller will at
any Buyer's request, assist such Buyer in processing any warranty
claim such Buyer may have against the manufacturer of such Supplier
Part. [AS AGREED BY THE PARTIES]
12.4.4 Joint Responsibility
If the Seller determines that the Interface Problem is attributable
partially to the design of a Warranted Part and partially to the
design of any Supplier Part, the Seller will, if requested by a
Buyer, seek a solution to the Interface Problem through cooperative
efforts of the Seller and any Supplier(s) involved. The Seller will
promptly advise the Buyers of any corrective action proposed by the
Seller and any such Supplier(s). Such proposal will be consistent
with any then existing
PRIVILEGED AND CONFIDENTIAL
42
obligations of the Seller hereunder and of any such Supplier to the
Buyers. Such corrective action, unless reasonably rejected by the
Buyers, will constitute full satisfaction of any claim any of the
Buyers may have against either the Seller or any such Supplier(s)
with respect to such Interface Problem, unless such corrective
action does not resolve the Interface Problem.
12.4.5 General
12.4.5.1 All requests under this Clause 12.4 will be directed both to the
Seller and the affected Suppliers.
12.4.5.2 Except as specifically set forth in this Clause 12.4, this Clause
12.4 will not be deemed to impose on the Seller any obligations not
expressly set forth elsewhere in this Agreement.
12.4.5.3 All reports, recommendations, data and other documents furnished by
the Seller to a Buyer pursuant to this Clause 12.4 will be deemed to
be delivered under this Agreement and will be subject to the terms,
covenants and conditions set forth in this Clause 12 and in Clause
22.7.
12.5 EXCLUSIVITY OF WARRANTIES
THIS CLAUSE 12 (INCLUDING ITS SUBPROVISIONS) SETS FORTH THE
EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE
OBLIGATIONS OF THE SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO
ANY BUYER, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM
ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR SERVICE
DELIVERED BY THE SELLER UNDER THIS AGREEMENT.
EACH OF THE BUYERS RECOGNIZES THAT THE RIGHTS, WARRANTIES AND
REMEDIES IN THIS CLAUSE 12 ARE ADEQUATE AND SUFFICIENT TO PROTECT
THE BUYERS FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND
IN THE GOODS AND SERVICES SUPPLIED UNDER THIS AGREEMENT. EACH OF THE
BUYERS HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES,
OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL OTHER
RIGHTS, CLAIMS AND REMEDIES OF ANY BUYER AGAINST THE SELLER, WHETHER
EXPRESS OR IMPLIED BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE,
WITH RESPECT TO ANY NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND
IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE,
DATA OR SERVICE DELIVERED BY THE SELLER UNDER THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO:
PRIVILEGED AND CONFIDENTIAL
43
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY
GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF
LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO,
ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT
LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR
LOCAL STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THIS AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THIS AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS AGREEMENT
WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN
INSTRUMENT SIGNED BY THE SELLER AND THE BUYERS. IF ANY PROVISION OF
THIS CLAUSE 12 SHOULD FOR ANY REASON BE HELD UNLAWFUL, OR OTHERWISE
PRIVILEGED AND CONFIDENTIAL
44
UNENFORCEABLE, THE REMAINDER OF THIS CLAUSE 12 WILL REMAIN IN FULL
FORCE AND EFFECT.
FOR THE PURPOSE OF THIS CLAUSE 12.5, "SELLER" WILL BE UNDERSTOOD TO
INCLUDE THE SELLER, ITS AFFILIATES, SUPPLIERS AND ASSOCIATED
CONTRACTORS.
[AS AGREED BY THE PARTIES]
12.6 DUPLICATE REMEDIES
The remedies provided to the Buyers under this Clause 12 as to any
defect in respect of the Aircraft or any part thereof are mutually
exclusive and not cumulative. The Buyers will be entitled to the
remedy that provides the maximum benefit to them, as the Buyers may
elect, pursuant to the terms and conditions of this Clause 12 for
any defect for which remedies are provided under this Clause 12
provided, however, that none of the Buyers will be entitled to elect
a remedy under more than one part of this Clause 12 for the same
defect. The Buyers' rights and remedies herein for the
nonperformance of any obligations or liabilities of the Seller
arising under these warranties will be in monetary damages limited
to the amount the Buyers expend in procuring a correction or
replacement for any covered part subject to a defect or
nonperformance covered by this Clause 12, and none of the Buyers
will have any right to require specific performance by the Seller.
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Clause 12 in favor of the Buyers in respect of the
Seller's rights against and obligations to the Manufacturer under
the provisions quoted above, each of the Buyers hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained, specifically
including, without limitation, the Exclusivity of Warranties and
General Limitations of Liability provisions and Duplicate Remedies
provisions.
THIS CLAUSE 12 (INCLUDING ITS SUBPROVISIONS) SETS FORTH THE
EXCLUSIVE WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE
OBLIGATIONS OF THE SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO
THE BUYERS, WHETHER UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM
ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR SERVICE
DELIVERED BY THE SELLER UNDER THIS AGREEMENT.
EACH OF THE BUYERS RECOGNIZES THAT THE RIGHTS, WARRANTIES AND
REMEDIES IN THIS CLAUSE 12 ARE ADEQUATE
PRIVILEGED AND CONFIDENTIAL
45
AND SUFFICIENT TO PROTECT THE BUYERS FROM ANY DEFECT OR
NONCONFORMITY OR PROBLEM OF ANY KIND IN THE GOODS AND SERVICES
SUPPLIED UNDER THIS AGREEMENT. EACH OF THE BUYERS HEREBY WAIVES,
RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES
AND LIABILITIES OF THE SELLER AND ALL OTHER RIGHTS, CLAIMS AND
REMEDIES OF ANY BUYER AGAINST THE SELLER, WHETHER EXPRESS OR IMPLIED
BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE, WITH RESPECT TO
ANY NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR SERVICE
DELIVERED BY THE SELLER UNDER THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR ANY
GENERAL OR PARTICULAR PURPOSE;
(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF
LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO,
ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT
LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR
LOCAL STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY PART, SOFTWARE OR
DATA PROVIDED UNDER THIS AGREEMENT;
PRIVILEGED AND CONFIDENTIAL
46
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR
DATA PROVIDED UNDER THIS AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS AGREEMENT
WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN
INSTRUMENT SIGNED BY THE SELLER AND THE BUYERS. IN THE EVENT THAT
ANY PROVISION OF THIS CLAUSE 12 SHOULD FOR ANY REASON BE HELD
UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS CLAUSE
12 WILL REMAIN IN FULL FORCE AND EFFECT.
The remedies provided to the Buyers under this Clause 12 as to any
defect in respect of the Aircraft or any part thereof are mutually
exclusive and not cumulative. The Buyers will be entitled to the
remedy that provides the maximum benefit to them, as the Buyers may
elect, pursuant to the terms and conditions of this Clause 12 for
any defect for which remedies are provided under this Clause 12,
provided, however, that the none of the Buyers will be entitled to
elect a remedy under more than one part of this Clause 12 for the
same defect. The Buyers' rights and remedies herein for the
nonperformance of any obligations or liabilities of the Seller
arising under these warranties will be in monetary damages limited
to the amount the Buyers expend in procuring a correction or
replacement for any covered part subject to a defect or
nonperformance covered by this Clause 12, and none of the Buyers
will have any right to require specific performance by the Seller.
12.7 NEGOTIATED AGREEMENT
Each of the Buyers specifically recognizes that:
(i) the Specification has been agreed upon after careful
consideration by the Buyers using their judgment as
professional operators of, and maintenance providers with
respect to, aircraft used in public transportation and as such
is are professionals within the same industry as the Seller;
(ii) this Agreement, and in particular this Clause 12, has been the
subject of discussion and negotiation and is fully understood
by the Buyers;
(iii) the price of the Aircraft and the other mutual agreements of
the Buyers set forth in this Agreement were arrived at in
consideration of, inter alia, the
PRIVILEGED AND CONFIDENTIAL
47
provisions of this Clause 12, specifically including the
Exclusivity of Warranties set forth in Clause 12.5.
12.8 SURVIVABILITY
[AS AGREED BY THE PARTIES]
PRIVILEGED AND CONFIDENTIAL
48
13. PATENT AND COPYRIGHT INDEMNITY
The Seller represents and warrants that the Manufacturer has
provided to the Seller the following indemnity against patent and
copyright infringements with respect to the Aircraft that are
reproduced below between the words QUOTE and UNQUOTE, subject to the
terms, conditions, limitations and restrictions (including, but not
limited to, the Exclusivity of Warranties and General Limitations of
Liability and Duplicate Remedies provisions) set forth below. The
Seller hereby assigns to the Buyers, and each of the Buyers hereby
accepts, all of the Seller's rights and obligations as the "Buyer"
under the said indemnity against patent and copyright infringements,
and the Seller subrogates the Buyers to all such rights and
obligations in respect of the Aircraft. The Seller hereby warrants
to the Buyers that (i) it has all requisite authority to make the
foregoing assignment to and to effect the foregoing subrogation in
favor of the Buyers, (ii) such assignment and subrogation are
effective to confer on the Buyers all of the foregoing rights and
obligations of the Seller, (iii) the provisions so assigned are in
full force and effect and have not been amended prior to the date
hereof, and (iv) the Seller will not enter into any amendment of the
provisions so assigned without the prior written consent of each of
the Buyers.
QUOTE
13.1 Indemnity
13.1.1 Subject to the provisions of Clause 13.2.3, the Seller will
indemnify the Buyers from and against any damages, costs and
expenses including legal costs (excluding damages, costs, expenses,
loss of profits and other liabilities in respect of or resulting
from loss of use of the Aircraft) resulting from any infringement or
claim of infringement by the Airframe or any part or software
installed therein at Delivery of
(i) any British, French, German, Spanish or U.S. patent;
(ii) any patent issued under the laws of any other country in which
any of the Buyers may lawfully operate the Aircraft, provided
that from the time of design of such Airframe or any part or
software installed therein at Delivery and until infringement
claims are resolved, the country of the patent and the flag
country of the Aircraft are both parties to:
(1) the Chicago Convention on International Civil Aviation
of December 7, 1944, and are each fully entitled to all
benefits of Article 27 thereof, or,
(2) the International Convention for the Protection of
Industrial Property of March 20, 1883; and
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(iii) in respect of computer software installed on the Aircraft, any
copyright, provided that the Seller's obligation to indemnify
will be limited to infringements in countries which, at the
time of infringement, are members of The Berne Union and
recognize computer software as a "work" under the Berne
Convention.
13.1.2 Clause 13.1.1 will not apply to
(i) Buyer Furnished Equipment;
(ii) the Propulsion Systems;
(iii) Supplier Parts; or
(iv) software not developed by the Seller.
13.1.3 If any of the Buyers is, due to circumstances contemplated in Clause
13.1.1, prevented from using the Aircraft (whether by a valid
judgment of a court of competent jurisdiction or by a settlement
arrived at among the claimant, the Seller and any Buyer), the Seller
will at its expense either
(i) procure for the Buyers the right to use the affected Airframe,
part or software free of charge; or
(ii) replace the infringing part or software as soon as possible
with a non-infringing substitute.
13.2 Administration of Patent and Copyright Indemnity Claims
13.2.1 If any Buyer receives a written claim or a suit is threatened or
begun against such Buyer for infringement of a patent or copyright
referred to in Clause 13.1, such Buyer will
(i) forthwith notify the Seller, giving particulars thereof;
(ii) furnish to the Seller all data, papers and records within the
Buyers' control or possession relating to such patent or
claim;
(iii) refrain from admitting any liability or making any payment, or
assuming any expenses, damages, costs or royalties, or
otherwise acting in a manner prejudicial to the defense or
denial of the suit or claim, it being agreed that nothing in
this Clause 13.2.1(iii) will prevent a Buyer from paying the
sums that may be required to obtain the release of the
Aircraft, provided that payment is accompanied by a denial of
liability and is made without prejudice;
(iv) fully cooperate with, and render all assistance to, the Seller
as may be pertinent to the defense or denial of the suit or
claim; and
PRIVILEGED AND CONFIDENTIAL
50
(v) act to mitigate damages and/or to reduce the amount of
royalties that may be payable, and act to minimize costs and
expenses.
13.2.2.1 The Seller will be entitled either in its own name or on behalf of
each of the Buyers to conduct negotiations with the party or parties
alleging infringement and may assume and conduct the defense or
settlement of any suit or claim in the manner that, in the Seller's
opinion, it deems proper.
13.2.3 The Seller's liability hereunder will be conditional on the strict
and timely compliance by each of the Buyers with the terms of this
Clause and is in lieu of any other liability to any Buyer, whether
express or implied, that the Seller might incur at law as a result
of any infringement or claim of infringement of any patent or
copyright.
UNQUOTE
In consideration of the assignment and subrogation by the Seller under
this Clause 13 in favor of the Buyers in respect of the Seller's rights
against and obligations to the Manufacturer under the provisions quoted
above, each of the Buyers hereby accepts such assignment and subrogation
and agrees to be bound by all of the terms, conditions and limitations
therein contained (specifically including, without limitation, the waiver,
release and renunciation provision).
THE INDEMNITY PROVIDED IN THIS CLAUSE 13 AND THE OBLIGATIONS AND
LIABILITIES OF THE SELLER UNDER THIS CLAUSE 13 ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND EACH OF THE BUYERS HEREBY WAIVES, RELEASES AND
RENOUNCES ALL OTHER INDEMNITIES, WARRANTIES, OBLIGATIONS, GUARANTEES AND
LIABILITIES ON THE PART OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF
ANY BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE (INCLUDING WITHOUT LIMITATION ANY OBLIGATION, LIABILITY, RIGHT,
CLAIM OR REMEDY ARISING FROM OR WITH RESPECT TO LOSS OF USE OR REVENUE OR
CONSEQUENTIAL DAMAGES), WITH RESPECT TO ANY ACTUAL OR ALLEGED PATENT
INFRINGEMENT OR THE LIKE BY ANY AIRFRAME, PART OR SOFTWARE INSTALLED
THEREIN AT DELIVERY, OR THE USE OR SALE THEREOF, PROVIDED THAT, IN THE
EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD
UNLAWFUL OR OTHERWISE INEFFECTIVE, THE REMAINDER OF THIS CLAUSE WILL
REMAIN IN FULL FORCE AND EFFECT. THIS INDEMNITY AGAINST PATENT AND
COPYRIGHT INFRINGEMENTS WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY
A WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE BUYERS.
PRIVILEGED AND CONFIDENTIAL
51
14 TECHNICAL DATA AND SOFTWARE SERVICES
The Seller will make available or will cause the Seller's designee
ANACS to make available to the Buyers the Technical Data and certain
additional services under the terms and conditions set forth in this
Clause 14.
14.1 Supply
The Technical Data will be supplied in the English language using
the aeronautical terminology in common use.
Range, form, type, format, Air Transport Association ("ATA")
compliance or non-compliance, quantity and delivery schedule of the
Technical Data to be provided under this Agreement are covered in
Exhibit F. [AS AGREED BY THE PARTIES]
The Buyers will not receive compensation or credits of any kind for
return of unused or partially used Technical Data.
14.2 Aircraft Identification for Technical Data
14.2.1 For Technical Data customized to the Aircraft, the Buyers agree to
the allocation of fleet serial numbers ("FSN(S)") in the form of
block of numbers selected in the range from 001 to 999.
14.2.2 The sequence will not be interrupted except if two (2) different
Propulsion Systems or two (2) different Aircraft models are
selected.
14.2.3 The Buyers will indicate to the Seller the FSNs allocated to each
Aircraft corresponding to the Aircraft rank in the delivery schedule
set forth in Clause 9.1.1 not later than twenty-four (24) months
prior to the Scheduled Delivery Month for the first Aircraft to be
delivered hereunder. The allocation of such FSNs to such Aircraft
will not constitute any proprietary, insurable or other interest of
any Buyer in any Aircraft prior to its Delivery.
14.3 Integration of Equipment Data
14.3.1 Supplier Equipment
If necessary for the understanding of the affected systems,
information relating to Supplier Equipment that is installed on the
Aircraft by the Seller, will be introduced free of charge into the
first issue, subsequent to the installation of the Supplier
equipment of the customized Technical Data supplied to the Buyers,
provided Clause 14.3.2.2 is complied with (the "FIRST ISSUE").
14.3.2 Buyer Furnished Equipment
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52
14.3.2.1 The Seller will introduce BFE data, for equipment installed on the
Aircraft by the Seller, into the customized Technical Data at no
additional charge to the Buyers for the First Issue, provided such
data are provided in accordance with the conditions set forth in
Clauses 14.3.2.2 through 14.3.2.5.
14.3.2.2 [AS AGREED BY THE PARTIES]
14.3.2.3 The BFE data will comply with applicable revision of the ATA 2200
Specification applicable to the corresponding aircraft type.
Subsequent revisions of the ATA specification will be considered as
applicable.
14.3.2.4 The Buyers and the Seller will agree on the requirements for the
provision to the Seller of BFE data for "on-aircraft maintenance."
These requirements include but are not limited to timeframe, media
and format, to facilitate the efficient, expedited and economic
integration of BFE data into Technical Data.
14.3.2.5 The BFE data will be delivered in digital format and/or in Portable
Document Format, as agreed between the Buyers and the Seller.
14.3.2.6 All costs related to the delivery to the Seller of BFE data will be
borne by the Buyers.
14.3.2.7 Clause 14.3.2 will apply to the BFE data provided by the Seller
under the terms of Clause 18.1.3.
14.4 Delivery
14.4.1 The Technical Data are delivered on-line and/or off-line, as set
forth in Exhibit F.
14.4.2 For Technical Data delivered off-line, the Technical Data and
corresponding revisions will be sent to one address only. The Buyers
will specify such address.
14.4.3 Packing and shipment of the Technical Data and their revisions will
be carried out by the quickest transportation methods. Shipment will
be FCA Toulouse, France, FCA Hamburg, Germany, and/or FCA Ashburn,
VA, USA.
14.4.4 The delivery schedule of the First Issue will be phased as mutually
agreed to correspond with Aircraft deliveries. The Buyers agree to
provide forty (40) days' notice when requesting a change to the
delivery schedule.
14.4.5 The Buyers will be responsible for coordinating with and satisfying
the requirements of the FAA for Technical Data. Reasonable
quantities of Technical Data will be supplied by the Seller for
delivery to the FAA at no charge to the Buyer, FCA Toulouse, France,
FCA Hamburg, Germany, and/or FCA Ashburn, VA, USA.
PRIVILEGED AND CONFIDENTIAL
53
14.4.6 [AS AGREED BY THE PARTIES]
14.5 Revision Service
Unless otherwise specifically stated, revision service will be
provided on a free-of-charge basis for a period of one (1) year
after Delivery of the last Aircraft. Thereafter revision service
will be provided at the standard conditions set forth in the then
current ANACS Customer Services Catalog.
14.6 Service Bulletins Incorporation
During the period of revision service and upon the Buyers' request
for incorporation, which will be made [AS AGREED BY THE PARTIES]
after issuance of a Service Bulletin, Seller's Service Bulletin
information will be incorporated into the Technical Data for the
Aircraft after formal notification by any Buyer of its intention to
accomplish a Service Bulletin. The split effectivity for a Service
Bulletin will remain in the Technical Data until notification from
the Buyers that accomplishment has been completed on all the
applicable Aircraft, except that for the Flight Manual,
Configuration Deviation List, Weight and Balance Manual and the MMEL
only the pre- or post-Service Bulletin status will be shown.
14.7 Future Developments
The Seller will continuously monitor technological developments and
apply them to data and document production and methods of
transmission where beneficial and economical. The Buyers agree to
give reasonable consideration to any new development proposed by the
Seller for implementation.
14.8 Technical Data Familiarization
Upon request by the Buyers, the Seller will provide a one (1) week
Technical Data familiarization training at the Seller's or at the
facilities of one of the Buyers. If such familiarization is
conducted at a Buyer's facilities, the Buyers will reimburse the
Seller for all air travel or will provide free of charge air travel
(business class for international travel and coach for domestic) to
and from the nearest point on any Buyer's network and living
expenses of the representatives of the Seller conducting such
familiarization training.
14.9 Customer Originated Changes
14.9.1 Data on Customer Originated Changes may be incorporated into the
following Technical Data when customized to the Buyers:
- Aircraft Maintenance Manual
PRIVILEGED AND CONFIDENTIAL
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- Illustrated Parts Catalog
- Trouble Shooting Manual
- Aircraft Wiring Manual
- Aircraft Schematics Manual
- Aircraft Wiring Lists
- Flight Crew Operating Manual
- Quick Reference Handbook
14.9.2 COC data will be developed by the Buyers according to the "Customer
Guide for Customer Originated Changes" issued by the Manufacturer.
The Buyers will ensure that any such COC data is in compliance with
the requirements of the FAA.
COC data will be incorporated by the Seller into all affected
customized Technical Data unless the Buyers specify in writing the
documents into which the Buyers desire the COC to be incorporated.
Following incorporation of the COC into the customized Technical
Data, the relevant Technical Data will show only the aircraft
configuration that reflects the COC data and not the configuration
before such COC data are incorporated.
14.9.3.
(a) Each of the Buyers hereby acknowledges and accepts that the
incorporation of any COC data into the Technical Data issued
by the Seller will be at the Buyers' sole risk, that the
Seller will have no obligation to check the COC data for
accuracy or validity, and that the Seller will have no
liability whatsoever with respect to (a) the contents of any
COC data (including omissions or inaccuracies therein) (b) any
effect that the incorporation of such COC data may have on the
Technical Data or (c) any costs of any nature that the COC
data may add to subsequent Service Bulletins or modifications.
(b) THE SELLER HEREBY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES
OR LIABILITIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN, ARISING
BY LAW, COURSE OF DEALING OR OTHERWISE, AND WITHOUT LIMITATION
ALL WARRANTIES AS TO QUALITY, OPERATION, MERCHANTABILITY,
FITNESS FOR ANY INTENDED PURPOSE, AND ALL OTHER
CHARACTERISTICS WHATSOEVER, INCLUDING ANY OMISSIONS OR
INACCURACIES THEREIN, OF ANY COC DATA INCORPORATED INTO THE
TECHNICAL DATA ISSUED BY THE SELLER.
(c) Each of the Buyers will indemnify and hold the Seller harmless
from and against any losses (including reasonable attorneys'
fees) arising from claims by any third party for injury, loss
or damage incurred directly or indirectly as a result of the
incorporation of any COC data into the Technical Data issued
by the Seller.
PRIVILEGED AND CONFIDENTIAL
55
(d) If any Buyer sells, leases or otherwise transfers any Aircraft
to which the COC data apply:
(i) the Buyers will remain fully liable for the COC data and any
and all effects of their incorporation, as set forth in this
Clause 14.9;
(ii) the Seller may disclose the COC data to the subsequent
owner(s) or operator(s) of the transferred Aircraft;
(iii) it will be the sole responsibility of the Buyers to
notify, or cause notification to be made to, the
subsequent owner(s) or operator(s) of the existence of
the such COC data in the Technical Data applicable to
the corresponding Aircraft.
The Seller hereby disclaims any and all liabilities whatsoever for
the COC data in the event of transfer, sale or lease of any Aircraft
to which COC data apply.
14.9.4 The incorporation of any COC will be performed under the conditions
specified in the Seller's then current Customer Services Catalog.
14.10 Software Products
Software Products are available to the Buyers exclusively from ANACS
and may be licensed under the General Terms and Conditions of
Licensing set forth in Exhibit H.
14.10.1 Performance Engineer's Programs
(i) In addition to the standard operational manuals, the Seller
will provide to the Buyers software components and databases
composing the Performance Engineer's Programs ("PEP") for the
Aircraft.
(ii) The license to use the PEP will be granted free of charge for
as long as the revisions of the PEP are free of charge in
accordance with Clause 14.5. At the end of such period,
license fees may be charged and yearly revision service for
the PEP will be provided to the Buyers at the standard
commercial conditions set forth in the then current ANACS
Customer Services Catalog.
14.10.2 [AS AGREED BY THE PARTIES]
14.10.3 Airbus|World Customer Portal
14.10.3.1 The Buyers will be entitled to obtain access to a wide range of
information and services, including Technical Data, available in the
secure zone of Airbus's
PRIVILEGED AND CONFIDENTIAL
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Customer Portal Airbus|World ("AIRBUS|WORLD"). Access will be free
of charge for as long as any Buyer operates the Aircraft.
Access to the secure zone of Airbus|World (the "SECURE ZONE") is
reserved to Airbus owners and operators and is subject to the prior
signature by each of the Buyers of the "General Terms and Conditions
of Access to and Use of Airbus Secure Area of Customer Portal."
A description of the basic services available to the Buyers in the
Secure Zone is set forth in the ANACS Customer Services Catalog.
14.10.3.2 On-Line Technical Data
(i) The Technical Data specified in Exhibit F as being provided
on-line will be made available to the Buyers through the
Secure Zone at no cost as long as revision service for such
Technical Data is free of charge in accordance with Clause
14.5.
(ii) The list of the Technical Data available on-line may be
amended from time to time.
For any Technical Data that are or become available on-line,
the Seller will notify the Buyers thereof and the Seller
reserves the right to discontinue other formats for such
Technical Data. [AS AGREED BY THE PARTIES].
14.10.3.3 [AS AGREED BY THE PARTIES]
14.11 Warranties
The Seller represents and warrants that the Manufacturer has
provided to the Seller a warranty with respect to the Technical Data
that is reproduced below between the words QUOTE and UNQUOTE,
subject to the terms, conditions, limitations and restrictions
(including, but not limited to, the Exclusivity of Warranties and
General Limitations of Liability and Duplicate Remedies provisions)
set forth below. The Seller hereby assigns to the Buyers, and the
Buyers hereby accept, all of the Seller's rights and obligations as
the "Buyer" under the said warranty, and the Seller subrogates the
Buyers to all such rights and obligations in respect of the
Aircraft. The Seller hereby warrants to the Buyers that (i) it has
all requisite authority to make the foregoing assignment to and to
effect the foregoing subrogation in favor of the Buyers, (ii) such
assignment and subrogation are effective to confer on the Buyers all
of the foregoing rights and obligations of the Seller, (iii) the
provisions so assigned are in full force and effect and have not
been amended prior to the date hereof and (iv) the Seller will not
enter into any amendment of the provisions so assigned without the
prior written consent of each of the Buyers.
PRIVILEGED AND CONFIDENTIAL
57
QUOTE
14.11.1 The Seller warrants that the Technical Data (exclusive of COC) are
prepared in accordance with the state of art at the date of their
conception. SHOULD ANY TECHNICAL DATA PREPARED BY THE SELLER CONTAIN
ANY NONCONFORMITY OR DEFECT, THE SOLE AND EXCLUSIVE LIABILITY OF THE
SELLER WILL BE TO TAKE ALL REASONABLE AND PROPER STEPS, AT ITS
OPTION, TO CORRECT OR REPLACE SUCH TECHNICAL DATA.
14.11.2 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS
SUPPLIERS AND REMEDIES OF THE BUYERS SET FORTH IN THIS CLAUSE 14 ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND EACH OF THE BUYERS HEREBY
WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND
LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS
AND REMEDIES OF ANY OF THE BUYERS AGAINST THE SELLER, ITS SUPPLIERS
AND/OR THEIR INSURERS, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO ANY NONCONFORMITY OR DEFECT IN ANY
TECHNICAL DATA DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS
(B) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER
CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE
SELLER'S AND/OR ITS SUPPLIERS' NEGLIGENCE, ACTUAL OR IMPUTED;
AND
(E) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR
DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR
PART THEREOF OR ANY TECHNICAL DATA DELIVERED HEREUNDER.
THE SELLER AND/OR ITS SUPPLIERS WILL HAVE NO OBLIGATION OR
LIABILITY, HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR
FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH
RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY TECHNICAL DATA
DELIVERED UNDER THIS AGREEMENT.
FOR THE PURPOSES OF THIS CLAUSE 14.11.2, "THE SELLER" WILL INCLUDE
THE SELLER, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.
PRIVILEGED AND CONFIDENTIAL
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UNQUOTE
PRIVILEGED AND CONFIDENTIAL
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14.12 Proprietary Rights
All proprietary rights, including but not limited to patent, design
and copyrights, relating to Technical Data will remain with the
Seller and/or its Affiliates as the case may be. All Technical Data
are supplied for the sole use by the Buyers in maintaining and
operating the Aircraft and each of the Buyers undertakes not to
modify, copy the contents of, or use the Technical Data to
manufacture any parts or components of the Aircraft, save as
explicitly permitted herein, in the Technical Data itself, or as
otherwise expressly authorized by the Seller. These proprietary
rights will also apply to any translation of Technical Data into a
language or languages or medium or media that may have been
performed or caused to be performed by any of the Buyers.
PRIVILEGED AND CONFIDENTIAL
60
15 SELLER REPRESENTATIVES
15.1 The Seller will provide or cause to be provided at no charge to the
Buyers the services described in this Clause 15, at the main base of
any of the Buyers or at other locations to be mutually agreed.
15.2 Resident Customer Support Representatives
15.2.1 The Seller will provide representatives to act in an advisory
capacity ("RESIDENT CUSTOMER SUPPORT REPRESENTATIVE") as follows:
[AS AGREED BY THE PARTIES]
15.2.2 The Seller will provide to the Buyers an annual written account of
the consumed months and any remaining balance of months.
15.2.3 Should any Buyer request additional services that exceed the amounts
set forth in Clause 15.2.1(ii), the Seller may provide additional
service subject to the terms and conditions agreed by such Buyer and
the Seller at the time of such request.
15.2.4 The Seller will cause similar services to be provided by the
representatives of the Propulsion System manufacturer and by
representatives of the Suppliers when necessary and applicable.
15.3 Customer Support Director
The Seller will assign the services of one (1) Customer Support Director
based in Herndon, Virginia, to liaise between the Manufacturer and
the Buyers on product support matters after signature of this
Agreement for as long as any Buyer operates at least one (1)
Aircraft.
15.4 [AS AGREED BY THE PARTIES]
15.5 Buyers' Service
15.5.1 From the date of arrival of the first Resident Customer Support
Representative and Spare Parts Field Representative and until the
duration of the assignment, the Buyers will provide free of charge,
suitable office space, office equipment and facilities for the sole
use of the Resident Customer Support Representative(s) in or
conveniently near the maintenance facilities of one of the Buyers.
The Buyers will also provide internet access, telephone, and
facsimile connections at the Seller's cost to be invoiced on a
monthly basis.
15.5.2 In accordance with the Buyers' regulations, the Buyers will provide
at no charge to the Seller
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(i) airline tickets in economy class, confirmed and guaranteed
between the locations mentioned above in Clause 15.1 and the
international airport nearest Toulouse, France, that is on any
Buyer's network for the Resident Customer Support
Representative(s) and the Spare Parts Field Representative
mentioned in Clause 15.2.1 and 15.4, for travel at the
beginning and end of the applicable assignment; and
(ii) when said Resident Customer Support Representative(s) are
assigned away from the locations mentioned above in Clause
15.2.1 at the Buyers' request, transportation on similar basis
between the said locations and the place of assignment.
15.5.3 The parties will give each other all necessary reasonable assistance
with general administrative functions specific to their respective
countries and procurement of the documents necessary to live and
work there.
15.6 Temporary Assignment and Withdrawal of Resident Customer Support
Representative
The Seller will have the right, upon written notice to and
communication with the Buyers, to transfer or recall any Resident
Customer Support Representative(s) on a temporary or permanent basis
if, in the Seller's opinion, conditions are dangerous to the
Resident Customer Support Representative's safety or health or
prevent the fulfillment of such Resident Customer Support
Representative's contractual tasks. The Buyers will receive credit
for the man-days during which any Resident Customer Support
Representative is absent from the Buyers' facility pursuant to this
Clause 15.
15.7 Representatives' Status
In providing the above technical service, the Seller's employees,
including Resident Customer Support Representative(s), the Spare
Parts Field Representative and the Customer Support Director, are
deemed to be acting in an advisory capacity only and at no time will
they be deemed to be acting, either directly or indirectly, as the
employees or agents of any of the Buyers.
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62
16 TRAINING AND TRAINING AIDS
16.1. General
This Clause 16 covers the terms and conditions for the supply of
training and training aids for the Buyers' personnel to support the
Aircraft operation.
16.2. Scope
16.2.1 The range and quantity of training and training aids to be provided
free of charge under this Agreement are covered in Appendix A to
this Clause 16. The Seller will arrange availability of such
training and training aids in relation to the delivery schedule for
the Aircraft set forth in Clause 9.1.1.
16.2.2 The Maintenance Training and Flight Training courses described in
Appendix A to this Clause 16 will be provided up to two (2) years
after Delivery of the last Aircraft.
16.2.3 Except as set forth in Appendix A to this Clause 16, no compensation
or credit of any sort will be provided for unused or partially used
training or training aids offered pursuant to this Clause 16.
16.3. Training Organization / Location
16.3.1 The Seller will provide the training at the Airbus Training Center
in Miami, Florida (the "SELLER'S TRAINING CENTER"), and/or at its
affiliated training center in Blagnac, France (the "AFFILIATED
TRAINING CENTER").
16.3.2 If unavailability of facilities or scheduling difficulties make
training by the Seller impractical at the training centers listed in
Clause 16.3.1, the Seller will ensure that the Buyers are provided
such training at locations other than those named in Clause 16.3.1.
16.3.3 Upon the Buyers' request, the Seller may also provide certain
training at one of the Buyers' bases, if and when practicable for
the Seller, under terms and conditions to be mutually agreed upon.
In this event, all additional charges listed in Clause 16.6.2 will
be borne by the Buyers.
16.4 Training Courses
16.4.1 Training courses, as well as the minimum and maximum numbers of
trainees per course provided for the Buyer's personnel, are defined
in the applicable training course catalog (the "TRAINING COURSE
CATALOG") and will be scheduled as mutually agreed upon during a
training conference (the "TRAINING CONFERENCE") that will be held as
soon as practicable after signature of this Agreement and no later
than six (6) months prior to delivery of the first Aircraft.
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16.4.2 The following terms will apply when training is performed by the Seller:
(i) Training courses will be the Seller's standard courses as
described in the Seller's applicable Training Course Catalog
valid at the time of execution of the course. The Seller will be
responsible for all training course syllabi, training aids and
training equipment necessary for the organization of the
training courses.
(ii) The training curricula and the training equipment may not be
fully customized. However, they may be modified to include the
most significant aspects of the Specification as known, at the
latest, six (6) months prior to the date of the first training
course planned for the Buyers and will be configured in order to
obtain the relevant Aviation Authority's approval and to support
the Seller's training programs.
(iii) Training data and documentation necessary for training detailed
in Appendix A to this Clause 16 will be free-of-charge and will
not be revised. Training data and documentation will be marked
"FOR TRAINING ONLY" and as such will be supplied for the sole
and express purpose of training.
(iv) Upon the request of the Buyers and at no charge to the Buyers,
the Seller will collect and pack for consolidated shipment to
the facility of one of the Buyers, all training data and
documentation of the Buyers' trainees attending training at the
Airbus Training Center in Miami, Florida or Blagnac, France, as
applicable. This training data and documentation will be
delivered FCA Miami International Airport. The Buyers will
designate in writing one Buyer to receive title to such training
data and documentation and title to and risk of loss of the
training data and documentation will pass to such Buyer upon
delivery.
16.4.3 If the Buyers decide to cancel or reschedule a training course, a
minimum advance notice of sixty (60) calendar days will be required. Any
later cancellation or change from the Buyers, when courses cannot be
allocated to other customers, will be deducted from the training
allowances defined herein or will be charged to the Buyers, as
applicable.
16.4.4 The Seller will deliver, or will cause any third party training provider
to deliver, to the trainees a certificate of completion at the end of
any such training course. No such certificate will represent authority
or qualification by any Aviation Authority but may be presented to such
officials in order to obtain relevant formal qualification.
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16.5 Prerequisites
16.5.1 Training will be conducted in English and all training aids are written
in English using common aeronautical terminology. Trainees must have the
prerequisite experience set forth in Appendix B to this Clause 16.
The Seller's training courses are "Transition Training Courses" and not
"Ab Initio Training Courses."
The Buyers will be responsible for the selection of the trainees and for
any liability with respect to the entry knowledge level of the trainees.
16.5.2 The Buyers will provide the Seller with an attendance list of the
trainees for each course with the validated qualification of each
trainee. The Seller reserves the right to verify the trainees'
proficiency and previous professional experience. The Seller will in no
case warrant or otherwise be held liable for any trainee's performance
as a result of any training services provided.
16.5.3 The Seller will provide to the Buyers an "Airbus Pre-Training Survey",
and/or the "Maintenance Training Survey", as applicable, to obtain the
trainee's associated background. The Buyers will complete such survey(s)
and return them to the Seller at least two (2) months prior to the start
of the training course.
16.5.4 If the Buyers make a change to any trainee attendance list within the
two (2) month period stated in Clause 16.5.3, the Buyers will
immediately inform the Seller thereof and send the Seller on updated
Airbus Pre-Training Survey and/or Maintenance Training Survey reflecting
requested information for the replacement trainee(s).
16.6. Logistics
16.6.1 Trainees
(a) When training is done at the Airbus Training Center in Miami,
Florida, the Seller will provide a free-of-charge rental car for
all of the Buyers' trainees for the duration of the training
course on the basis of one (1) rental car per four (4)
maintenance, operations and cabin attendant trainees and one (1)
rental car per each flight crew.
The Seller will provide rental cars with unlimited mileage, and
the Buyers will pay for gas, and fines, if any. However, the
Buyers will indemnify and hold the Seller harmless from and
against all liabilities, claims, damages, costs and expenses for
any injury to or death of any of the Buyer's trainees occasioned
during the course of such transportation.
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(b) When training is done at the Airbus Training Center in Blagnac,
France, the Seller will provide free local transportation by bus
for the Buyer's trainees to and from designated pick up points
and the training center
(c) Living expenses for the Buyer's trainees are to be borne by the
Buyers.
16.6.2 Training at External Location
(a) Seller's Instructors
If at any Buyer's request, training is provided by the Seller's
instructors at any location other than the Seller's training
centers, the Buyers will reimburse the Seller for all expenses
set forth in Clauses 16.6.2(b) 16.6.2(c), 16.6.2(d) and
16.6.2(e) related to the assignment of such instructors and
their performance of the duties as aforesaid.
(b) Living Expenses for the Seller's Instructors
Such expenses, covering the entire period from day of secondment
to day of return to the Seller's base, will include but will not
be limited to lodging, food and local transportation to and from
the place of lodging and the training course location. The
Buyers will reimburse the Seller for such expenses on the basis
of a per diem rate corresponding to the current per diem rate
used by the Seller for its personnel.
(c) Air Travel
The Buyers will reimburse the Seller for the transportation
costs of the Seller's instructors in confirmed business class or
in confirmed coach class, where business class is not available,
to and from the Buyers' designated training site and the
Seller's training center.
(d) Training Material
The Buyers will reimburse the Seller for the cost of shipping
the training material needed to conduct such courses.
(e) Buyers' Indemnity
The Buyers will be solely liable for any and all cancellation or
delay in the performance of the training outside of the Seller's
training centers that is associated with the transportation
provided under Clause 16.6.2(c) and will, jointly and severally,
indemnify and hold the Seller harmless from such delay and any
consequences arising there from.
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(f) Training Equipment Availability
Training equipment necessary for course performance at any
course location other than the Seller's training centers or the
facilities of the training provider selected by the Seller will
be provided by the Buyers in accordance with the Seller's
specifications.
16.7 Flight Operations Training
16.7.1 Flight Crew Training Course
(a) The Seller will perform a flight crew training course program
for the Buyers' flight crews. [AS AGREED BY THE PARTIES] The
training manual used will be the Seller's Flight Crew Operating
Manual ("FCOM"), except for the base flight training, for which
the Buyer's Customized FCOM will be used.
(b) The Buyers will use delivered Aircraft for any required
in-flight training. This training will not exceed one (1)
session of forty-five (45) minutes per pilot. When in-flight
crew training is performed in Blagnac, France, the Seller will
provide free-of-charge line maintenance, including servicing,
preflight checks and changing of minor components, subject to
conditions agreed in this Agreement.
(c) The Buyers will provide mutually agreed spare parts as required
to support said in-flight training and will provide evidence of
insurance coverage required under Clause 19.
(d) In all cases, the Buyers will bear the expenses of fuel, oil and
landing fees.
16.7.2 Flight Crew Line Initial Operating Experience
(a) In order to assist the Buyers with initial operating experience
after Delivery of the first Aircraft, the Seller will provide to
the Buyers pilot instructor(s) as described in Exhibit A to this
Clause 16.
(b) Additional pilot instructors can be provided at the Buyers'
expense upon conditions to be mutually agreed.
(c) Prior to any flight training to be performed by the Seller on
the Buyers' Aircraft, the Buyers will provide to the Seller
evidence of insurance coverage as required under Clause 19.
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16.7.3 Instructor Cabin Attendants' Familiarization Course
The Seller will provide instructor cabin attendant's course(s) to the
Buyers' cabin attendants, as described in Exhibit A to this Clause 16,
at the Seller's Training Center.
The instructor cabin attendants familiarization course, when
incorporating the features of the Aircraft, will be given no earlier
than six (6) months and no later than ninety (90) days before the
Delivery of the first Aircraft. The instructor cabin attendants'
familiarization course material will be provided no later than six (6)
months before the Delivery of the first Aircraft.
16.7.4 Performance / Operations Course
The Seller will provide performance/operations training for the Buyers'
personnel as described in Exhibit A to this Clause 16.
The available courses are listed in the Seller's applicable Training
Courses Catalog.
16.7.5 Transition Type Rating Instructor Course
The Seller will provide transition type rating instructor training for
the Buyer's flight crew instructors as described in Exhibit A to this
Clause 16. This course provides the Buyers' instructors with the
training in flight instruction and synthetic instruction required to
instruct on Airbus aircraft.
16.7.6 During any and all flights performed in accordance with this Clause
16.7, the Buyers will bear full responsibility for the aircraft upon
which the flight is performed, including but not limited to any required
maintenance, all expenses such as fuel, oil or landing fees and the
provision of insurance required under Clause 19.
16.8 Maintenance Training
16.8.1 The Seller will provide maintenance training for the Buyers' ground
personnel as described in Exhibit A to this Clause 16. The available
courses are listed in the Seller's applicable Training Course Catalog.
The practical training provided in the frame of maintenance training is
performed exclusively on the training devices in use in the Seller's
Training Center or the Affiliated Training Center. If additional
practical training is required, such additional practical training can
be organized with the assistance of the Seller, in accordance with
Clause 16.8.2.
16.8.2 Practical Training
If the Buyers require practical training to be organized at another
airline's facilities, then the Seller will assist the Buyers in
organizing this training without guaranteeing the availability of any
other airline's facilities. The provision of an
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instructor by the Seller for such practical training will be deducted
from the trainee-day allowance set forth in Paragraph 2.1 of Exhibit A
to this Clause 16 in the manner described in Paragraph 3 of such Exhibit
A. The Buyers will reimburse the Seller the expenses for said instructor
in accordance with Clause 16.6.2.
16.8.3 Line Maintenance Initial Operating Experience Training
In order to assist the Buyers during the entry into service of the
Aircraft, the Seller will provide to the Buyers maintenance
instructor(s) at the Buyers' main A350 base as set forth in Appendix A
to this Clause 16.
(a) Line maintenance initial operating experience training will
cover training in handling and servicing of Aircraft, flight
crew and maintenance coordination, use of Technical Data and/or
any other activities which may be deemed necessary after
Delivery of the first Aircraft.
(b) The Buyers will reimburse the expenses for said instructor(s) in
accordance with Clause 16.6.2. Additional maintenance
instructors can be provided at the Buyers' expense.
16.9 Supplier and Engine Manufacturer Training
The Seller will ensure that major Suppliers and the Propulsion System
manufacturer provide maintenance training and overhaul training on their
products at appropriate times. A copy of the Supplier Training Catalog,
listing the suppliers that provide training, will be supplied to the
Buyers on request.
16.10 Training Aids for the Buyers' Training Organization
16.10.1 The Seller will provide to the Buyers Airbus computer based training
("Airbus CBT"), training aids, as used in the Seller's Training Centers
and the Virtual Aircraft (Walk Around and Component Location), free of
charge as set forth in Exhibit A to this Clause 16.
The Airbus CBT and training aids supplied to the Buyers will be similar
to those used at the Airbus Training Centers for training. The Seller
has no obligation to cause the Manufacturer to revise the Airbus CBT.
The Airbus CBT in use at the Seller's Training Center may be revised on
a regular basis, and such revisions, if any, will be provided to the
Buyers until the expiration of the period when training courses provided
under this Clause 16 are performed for the Buyers, or up to one (1) year
after delivery of the Airbus CBT or Virtual Aircraft to the Buyers,
whichever occurs first.
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16.10.2 Delivery
(a) The Seller will deliver to the Buyers the Airbus CBT and
training aids, at a date to be mutually agreed during the
Training Conference, but no later than six (6) months before the
Delivery Date of the first Aircraft.
(b) Those items supplied to the Buyers pursuant to Clause 16.10.1
will be delivered FCA Toulouse, France, and/or FCA Hamburg,
Germany. Title to and risk of loss of said items will pass to
the Buyer selected pursuant to Clause 16.4.2(iv) upon delivery.
16.10.3 Installation of Airbus CBT System
(a) Before the initial delivery of the Airbus CBT, the Seller will
provide an "Airbus CBT Administrator Course" to up to six (6)
trainees of the Buyers, at the facilities of one of the Buyers.
To conduct the course, the workstations and/or servers, as
applicable, will be ready for use and will comply with the
latest "Airbus CBT Workstation Technical Specification" or
"Airbus CBT Server Technical Specification", as applicable.
(b) The Buyers will provide any and all the necessary hardware on
which the Airbus CBT will be installed and Seller will not be
responsible for any incompatibility of such hardware with the
Airbus CBT.
(c) The Airbus CBT will be installed by the Buyers' personnel who
have completed the Airbus CBT training, and the Seller will be
held harmless from any damage to person and/or to property
caused by or in any way connected with the handling and/or
installation of the Airbus CBT by the Buyers' personnel.
(d) In accordance with Clause 16.6.2, the Buyers will reimburse the
expenses for the Seller's personnel required at any Buyer's
facility to conduct Airbus CBT Training and/or provide
installation assistance.
16.10.4 License
(a) The Seller will grant the Buyers a license to use the Airbus CBT
and the Virtual Aircraft that will incorporate the Terms and
Conditions for License for Use of Software set forth in Exhibit
H.
(b) Supply of additional sets of Virtual Aircraft Software and
courseware supports, as well as any extension to the license for
such courseware, will be subject to terms and conditions to be
mutually agreed.
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16.10.5 The Seller will not be responsible for, and hereby disclaims any and all
liabilities resulting from or in connection with the use by the Buyers
of the Airbus CBT, the Virtual Aircraft and any other training aids at
the Buyers' facilities.
16.11 Proprietary Rights
The Seller's training data and documentation, Airbus CBT and training
aids are proprietary to the Manufacturer and its suppliers. All such
training materials are supplied for the sole use by the Buyers in
training its personnel to maintainand operate the Aircraft. These
proprietary rights will also apply to any translation of such Material
into a language or languages or medium or media that may have been
performed or caused to be performed by the Buyer.
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APPENDIX A TO CLAUSE 16
TRAINING ALLOWANCES
[AS AGREED BY THE PARTIES]
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APPENDIX B TO CLAUSE 16
MINIMUM RECOMMENDED QUALIFICATION
IN RELATION TO TRAINING REQUIREMENTS
(Standard Transition Courses)
The prerequisites listed below are the minimum recommended requirements
specified for Airbus training. If the appropriate Aviation Authority or the
specific airline policy of the trainee demands greater or additional
requirements, such requirements will be prerequisites.
- CAPTAIN prerequisites
- Previously qualified on JAR/FAR/CS 25 aircraft and commercial
operations
- Valid and current Airlines Transport License (ATPLY)
- Previous command experience
- Fluency in English
- Jet experience
- 1500 hours minimum flying experience as pilot
- 1000 hours experience on FAR/JAR 25/CS 25 aircraft
- 200 hours experience as airline, corporate pilot or military
transport pilot
- Must have flown transport type aircraft, as flying pilot,
within the last 12 months.
- FIRST OFFICER prerequisites
- Previously qualified on JAR/FAR/CS 25 aircraft and commercial
operations
- Aircraft and commercial operations valid and current
commercial pilot license with instrument rating
- Fluency in English
- Jet experience
- 500 hours minimum flying experience as pilot of fixed wing
aircraft
- 300 hours experience on FAR/JAR/CS 25 aircraft
- 200 hours flying experience as airline pilot or a corporate
pilot or military transport pilot
For both CAPTAIN and FIRST OFFICER, if one or several of the above
criteria are not met, the trainee must follow
(i) an adapted course or
(ii) an entry level training program before entering the regular or
the adapted course.
Such course(s), if required, will be at the Buyers' expense.
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APPENDIX B TO CLAUSE 16
- FIRST TYPE RATING COURSE
This course is designed for ab initio pilots who do not hold an aircraft type
rating on their pilot license
PILOT PREREQUISITES
- Valid and current commercial pilot license
- Valid and current instrument rating on multi engine aircraft
- Airlines Transport License (ATPLY) written examination
- Fluency in English . Flight experience:
- 220 hours as pilot
- 100 hours as pilot in command
- 25 hours on multi engine aircraft (up to 10 hours can be
completed in a simulator)
In addition to the above conditions and in accordance to the JAR Flight Crew
Licensing and the Airbus Training Policy, a pilot applying for a first type
rating must have followed either an approved JAR Multi Crew Cooperation ("MCC")
program or regulatory equivalent or the "Airbus Entry Level Training program"
(combined MCC and jet familiarization course). Such course, if required, will be
at the Buyers' expense.
- CQ ADDITIONAL prerequisites
In addition to the prerequisites set forth for the Flight Crew Standard
Transition Course, both CAPTAIN and FIRST OFFICER must:
- be qualified and current on the base aircraft type
- have 150 hours minimum and 3 months minimum of operations on
the base aircraft type.
- TRI COURSE ADDITIONAL prerequisites
In addition to the prerequisites set forth for the Flight Crew Standard
Transition Course, it is the responsibility of the Buyers to:
- select instructor candidate(s) with airmanship and behavior
corresponding to the role and responsibility of an airline
instructor, and
- designate instructor candidate(s) with the Airbus
prerequisite, which corresponds to the JAR requirements (ref
JAR - FCL 1 - Requirements/ Subparts H - Instructor rating
(Aeroplane) C.
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APPENDIX B TO CLAUSE 16
MAINTENANCE PERSONNEL prerequisites
(i) For all maintenance courses:
Fluency in English
Experience on first or second generation jet transport category
aircraft
(ii) Additional prerequisites for Aircraft Rigging Engine Run-Up and
Maintenance Initial Operating Course:
- Qualified as line or line and base mechanic on the concerned
Airbus aircraft type (for Maintenance Initial Operating Experience
Course).
(iii) Additional prerequisites - Maintenance Initial Operating Experience
Be currently qualified as line or base mechanic on the base Aircraft
(iv) Additional prerequisites - MAINTENANCE TRAINING DIFFERENCE COURSE
Be current and operating on the base Aircraft.
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17 - SUPPLIER PRODUCT SUPPORT
17.1 Equipment Supplier Product Support Agreements
17.1.1 The Seller will, at no charge to the Buyers, transfer to the Buyers the
Supplier Product Support Agreements transferable to the Buyers from
Suppliers of Seller Furnished Equipment listed in the Specification on
Delivery. These agreements are based on the "World Airlines and Suppliers
Guide" and include Supplier commitments contained in the Supplier Product
Support Agreements, which include the following:
(i) Technical data and manuals required to operate, maintain, service
and overhaul the Supplier items will (a) be prepared in accordance
with the applicable provisions of ATA Specification 100 and 101 in
accordance with Clause 14, (b) include revision service, and (c) be
published in the English language. The Seller will make reasonable
efforts to ensure that software data, supplied in the form of an
appendix to the Component Maintenance Manual, be provided in
compliance with ATA Specification 102 up to level 3 to protect
Suppliers' proprietary interests,
(ii) Warranties and guarantees, including Suppliers' standard warranties,
and in the case of Suppliers of landing gear, service life policies
for selected landing gear structures,
(iii) Training to ensure efficient operation, maintenance and overhaul of
the Suppliers' items for the Buyers' instructors, shop and line
service personnel.
(iv) Spares data in compliance with ATA Specification 200 or 2000,
initial provisioning recommendations, spares and logistics service,
including routine and emergency deliveries, and
(v) Technical service to assist the Buyers with maintenance, overhaul,
repair, operation and inspection of Supplier items as well as
required tooling and spares provisioning.
17.2 Supplier Compliance
The Seller will monitor Supplier compliance with support commitments
defined in the Supplier Product Support Agreements and will take action
together with the Buyers, if necessary.
17.3 Supplier Part Repair Stations
The Seller has developed with the Suppliers a comprehensive network of
repair stations in the United States of America and Canada for those
Supplier Parts originating from outside these countries. [AS AGREED BY THE
PARTIES]
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18 BUYER FURNISHED EQUIPMENT
18.1 Administration
18.1.1 Without additional charge and in accordance with the Specification, the
Seller will cause the Manufacturer to provide for the installation of the
Buyer Furnished Equipment, provided that the BFE is referred to in the
Airbus BFE Catalog of Approved Suppliers by Products valid at the time the
BFE is ordered.
The Seller will cause the Manufacturer to advise the Buyers of the dates
by and location to which, in the planned release of engineering for the
Aircraft, the Seller requires a written detailed engineering definition.
This description will include the definition of the dimensions and weight
of BFE, the information related to its certification and information
necessary for the installation and operation thereof. The Buyers will
furnish such detailed description and information by the dates specified.
Thereafter, no information, dimensions or weights will be revised unless
authorized by an SCN.
The Seller will also provide the Buyers in due time with a schedule of
dates and shipping addresses for delivery of BFE and (when requested by
the Seller) additional spare BFE in order permit installation of the BFE
in the Aircraft and delivery of the Aircraft in accordance with the
delivery schedule. The Buyers will provide the BFE by such dates in a
serviceable condition, to allow performance of any assembly, test, or
acceptance process in accordance with the Seller's industrial schedule.
The Buyers will also provide, when requested by the Manufacturer, at
Airbus France S.A.S. works and/or at Airbus Deutschland GmbH works, as
applicable and needed, adequate field service, including support from BFE
suppliers to act in a technical advisory capacity to the Seller in the
installation, calibration and possible repair of any BFE.
18.1.2 The BFE will be imported into France or into Germany by the Buyers under
a suspensive customs system ("Regime de l'entrepot industriel pour
fabrication coordonnee" or "Zollverschluss") without application of any
French or German tax or customs duty, and will be Delivered Duty Unpaid
(DDU) (as defined in Incoterms 2000:ICC Official Rules for the
Interpretation of Trade Terms, published by the International Chamber of
Commerce), to
Airbus France S.A.S.
000 Xxxxx xx Xxxxxxx
00000 Xxxxxxxx, Xxxxxx
or
Airbus Deutchland GmbH
Division Hamburger Flugzeugbau
Kreetslag 10
00000 Xxxxxxx
Xxxxxxx Xxxxxxxx of Germany
as provided in Clause 18.1.1.
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18.1.3 If any of the Buyers requests the Seller to supply directly certain items
that are considered BFE according to the Specification, and if such
request is notified to the Seller in due time in order not to affect the
Delivery Date of the Aircraft, the Seller may agree to order such items
subject to the execution of an SCN reflecting the effect on price,
escalation adjustment, and any other conditions of the Agreement. In such
a case the Seller will be entitled to the payment of a reasonable handling
charge and will bear no liability in respect of delay and product support
commitments for such items.
18.2 Requirements
Each of the Buyers is responsible for assuring and warranting, at its
expense, that BFE will (i) be manufactured by a qualified supplier in
accordance with the provisions of Clause 18.1.1, (ii) meet the
requirements of the applicable Specification, (iii) comply with applicable
requirements incorporated by reference to the Type Certificate and listed
in the Type Certificate Data Sheet, and (iv) be approved by the applicable
Aviation Authority delivering the Export Certificate of Airworthiness and
by the FAA for installation and use on the Aircraft at the time of
Delivery of such Aircraft. The Seller will be entitled to refuse any item
of BFE that it considers incompatible with the Specification, the
engineering definition mentioned above in Clause 18.1.1 or the
certification requirements.
18.3 Buyers' Obligation and Seller's Remedies
18.3.1 Any delay or failure in
(i) furnishing the BFE in serviceable condition at the requested
delivery date,
(ii) complying with the warranty in Clause 18.2 or in providing the
descriptive information or service representatives mentioned in
Clause 18.1.1, or
(iii) in obtaining any required approval for such equipment under the
above mentioned Aviation Authorities regulations
may delay the performance of any act to be performed by the Seller, and
cause the Final Contract Price of the Aircraft to be adjusted in
accordance with the updated delivery schedule, including, in particular,
the costs the Seller incurs that are attributable to the delay or failure
described above, such as storage, taxes, insurance and costs of out-of
sequence installation.
18.3.2 In addition to the consequences outlined in Clause 18.3.1, in the event
of a delay or failure described in Clause 18.3.1,
(i) the Seller may select, purchase and install equipment similar to the
BFE at issue, in which event the Final Contract Price of the
affected Aircraft will also be increased by the purchase price of
such equipment, plus reasonable costs and expenses incurred by the
Seller for handling charges, transportation, insurance, packaging
and, if required and not already provided for in the price of the
Aircraft, for adjustment and calibration; or
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(ii) if the BFE is delayed more than thirty (30) days beyond, or
unapproved within thirty (30) days of the date specified in Clause
18.1.1, then the Seller may deliver or the Buyers may elect to have
the Aircraft delivered without the installation of such equipment,
notwithstanding the terms of Clause 7.2 insofar as it may otherwise
have applied, whereon the Seller will be relieved of all obligations
to install such equipment.
18.4 Title and Risk of Loss
Title to (subject to Clause 18.5.5) and risk of loss of BFE will at all
times remain with the Buyer that is the owner thereof, except that risk of
loss (limited to cost of replacement of said BFE and excluding in
particular loss of use) will be with the Seller for as long as the BFE is
in the care, custody and control of the Seller.
18.5 Disposition of BFE Following Termination
18.5.1 If a termination of this Agreement pursuant to the provisions of Clause
21 occurs with respect to an Aircraft in which all or any part of the BFE
has been installed prior to the date of such termination, the Seller will
be entitled, but not required, to remove all items of BFE that can be
removed without damage to the Aircraft and to undertake commercially
reasonable efforts to facilitate the sale of such items of BFE to other
customers, retaining and applying the proceeds of such sales to reduce
Seller's damages resulting from the termination.
18.5.2 The Buyers will cooperate with the Seller in facilitating the sale of BFE
pursuant to Clause 18.5.1 and will, jointly and severally, be responsible
for all costs incurred by the Seller in removing and facilitating the sale
of such BFE. The Buyers will, jointly and severally, reimburse the Seller
for all such costs within five (5) Working Days of receiving documentation
of such costs from the Seller.
18.5.3 The Seller will notify the Buyers as to those items of BFE not sold by
the Seller pursuant to Clause 18.5.1 and, at the Seller's request, the
Buyers will remove such items from the Seller' facility within thirty (30)
days of the date of such notice. The Buyers will have no claim against the
Seller for damage or destruction of any item of BFE removed from the
Aircraft and not removed from Seller's facility within such period.
18.5.4 The Buyers will have no claim against the Seller for damage to or
destruction of any item of BFE damaged or destroyed in the process of
being deinstalled from the Aircraft, provided that the Seller will use
reasonable care in such deinstallation.
18.5.5 The Buyers will grant title to the Seller for any BFE items that cannot
be removed from the Aircraft without causing damage to the Aircraft or
rendering any system in the Aircraft unusable.
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19 Indemnities and Insurance
19.1 Seller's Indemnities
The Seller will, except in the case of gross negligence or willful
misconduct of any Buyer, it's directors, officers, agents, or employees,
be solely liable for and will indemnify and will hold the Buyers and their
respective directors, officers, agents or employees, Affiliates and
Suppliers harmless against all losses, liabilities, claims, damages, costs
and expenses, including court costs and reasonable attorneys' fees
("Losses"), arising from claims for
(a) injuries to, or deaths of, the Seller's, Manufacturer's or any
Associated Contractor's respective directors, officers, agents or
employees, or loss or damage to property of the Seller, Manufacturer
or any Associated Contractor or their respective employees or agents
when such losses occur during or are incidental to (i) the exercise
by any of the Buyers of its inspection rights under Clause 6, (ii)
the Technical Acceptance Process described in Clause 8, (iii) the
provision of Resident Customer Support pursuant to Clause 15 or (iv)
the provision of training pursuant to Clause 16; and
(b) injuries to or deaths of third parties, or loss of property of third
parties, occurring during, or incidental to (i) the exercise by any
Buyer of its inspection rights pursuant to Clause 6 or (ii) the
Technical Acceptance Process described in Clause 8.
19.2 Buyers' Indemnities
The Buyers will, jointly and severally, except in the case of gross
negligence or willful misconduct of the Seller, its directors, officers,
agents and employees, be solely liable for and will indemnify and will
hold the Seller, the Manufacturer, each of the Associated Contractors and
their respective subcontractors, Affiliates and Suppliers of the Seller,
the Seller's representatives, and the respective assignees, directors,
officers, agents and employees of each of the foregoing, harmless against
all Losses arising from:
(a) injuries to or deaths of the directors, officers, agents or
employees of any Buyer, or loss or damage to property of any Buyer
or the employees or agents of any of them, when such losses occur
during or are incidental to (i) the exercise by any Buyer of its
inspection rights under Clause 6; (ii) the Technical Acceptance
Process described in Clause 8, (iii) the provision of Field
Assistance pursuant to Clause 15, or (iv) the provision of training
pursuant to Clause 16; and
(b) claims for injuries to or deaths of third parties, or loss of
property of third parties, where such losses occur during or
incidental to (i) the provision of Field Services under Clause 15 or
(ii) arise out of the provision of training pursuant to Clause 16
and are not caused by a defect of the type specified in Clause
12.1.1 that is not excluded under Clause 12.1.2.
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19.3 Notice and Defense of Claims
(a) If any claim is made or suit is brought against a party or entity
entitled to indemnification under this Clause 19 (the "INDEMNITEE")
for damages for which liability has been assumed by the other party
under this Clause 19, (the "INDEMNITOR"), the Indemnitee will
promptly give notice to the Indemnitor and the Indemnitor (unless
otherwise requested by the Indemnitee) will assume and conduct the
defense, or settlement, of such suit, as the Indemnitor will deem
prudent. Notice of the claim or suit will be accompanied by all
information pertinent to the matter as is reasonably available to
the Indemnitee and will be followed by such cooperation by the
Indemnitee as the Indemnitor or its counsel may reasonably request
at the expense of the Indemnitor.
(b) If the Indemnitor fails or refuses to assume the defense of any
claim or lawsuit notified to it under this Clause 19, the Indemnitee
will have the right to proceed with the defense or settlement of the
claim or lawsuit as it deems prudent and will have a claim over
against the Indemnitor for any judgments, settlements, costs or
expenses, including reasonable attorneys' fees. Further, in such
event, the Indemnitor will be deemed to have waived any objection or
defense to the Indemnitee's claim based on the reasonableness of any
settlement.
19.4 Insurance
[AS AGREED BY THE PARTIES]
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20 ASSIGNMENTS AND TRANSFERS
20.1 Assignments by Buyers
Except as hereinafter provided, none of the Buyers may sell, assign or
transfer its rights or obligations under this Agreement to any person
without the prior written consent of the Seller.
20.2 Assignments on Sale, Merger or Consolidation
The Buyers will be entitled to assign their rights under this Agreement at
any time due to a merger or consolidation, provided the Buyers first
obtains the written consent of the Seller. The Seller will provide its
consent if:
(i) the surviving or acquiring entity is organized and existing under
the laws of the United States;
(ii) the surviving or acquiring entity has executed an assumption
agreement, in form and substance reasonably acceptable to the
Seller, agreeing to assume all of the Buyers' obligations under this
Agreement;
(iii) at the time, and immediately following the consummation, of the
merger, consolidation or sale, no event of default exists or will
have occurred and be continuing;
(iv) there exists with respect to the surviving or acquiring entity no
basis for a Termination Event within the meaning of Clause 21;
(v) the surviving or acquiring entity holds an air carrier operating
certificate issued by the FAA at the time, and immediately following
the consummation, of such sale, merger or consolidation; and
(vi) following the sale, merger or consolidation, the surviving or
acquiring entity in a financial condition at least equal to that of
the Buyers, collectively, at time of execution of this Agreement.
20.3 Designations by Seller
The Seller may at any time by notice to the Buyers designate facilities or
personnel of the Manufacturer, ANACS, any of the Associated Contractors or
any Affiliate of the Manufacturer or any Affiliate of an Associated
Contractor at which or by whom the services to be performed under this
Agreement will be performed. The Seller may also designate the
Manufacturer or any Affiliate of an Associated Contractor as the party
responsible on behalf of the Seller for providing to the Buyers all or any
of the Agreement. Notwithstanding such designation, the Seller will remain
ultimately responsible for fulfillment of all obligations undertaken by
the Seller in this Agreement.
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20.4 Transfer of Rights and Obligations upon Reorganization
If at any time until the date upon which all the obligations and
liabilities of the Seller under this Agreement have been discharged, the
legal structure, the membership or the business of the Seller is
reorganized or the legal form of the Seller is changed and as a
consequence thereof the Seller wishes the Buyers to accept the
substitution of the Seller by another entity within the restructured
Airbus group (or the Seller in its new legal form) ("NEWCO") as
contemplated below, the Seller will promptly notify the Buyers of its
wish.
In such event, the Seller may request the Buyers to enter into a novation
agreement and/or other agreement having the same effect whereby the
Seller's rights and obligations under this Agreement are novated or
transferred in favor of Newco. Upon receipt of such request, the Buyers
will enter into a novation agreement and/or other appropriate agreement,
provided that the Buyers' rights and obligations under this Agreement are
not materially adversely affected by such novation and/or other agreement.
Until any such novation agreement/other appropriate documentation has come
into effect, this Agreement will remain in full force and effect, and each
party will act diligently and in good faith to implement the novation
agreement and/or other appropriate documentation as soon as practicable
after Newco has come into existence.
20.5 [AS AGREED BY THE PARTIES]
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21. TERMINATION
21.1 Termination Events
Each of the following will constitute a "TERMINATION EVENT
[AS AGREED BY THE PARTIES]
21.2 If a Termination Event occurs, each of the Buyers will be in material
breach of this Agreement, and the Seller will have the right to resort to
any remedy under applicable law, and may, without limitation, by written
notice to the Buyers, immediately:
[AS AGREED BY THE PARTIES]
(3) Liquidated damages will be payable by the Buyers promptly, and in
any event within ten (10) days of the date of written notice and
demand therefor from Seller, such demand to set forth in reasonable
detail the calculation of such liquidated damages and will identify
the Termination Event upon which the Seller is relying. The parties
agree that the remedy of liquidated damages is not to be denied to
the Seller due to the inability of Seller to deliver a notice and
demand for payment thereof due to the operation of law following a
bankruptcy or other Termination Event under Clauses 21.1.1(1) - (4).
The parties further agree that in circumstances where a Termination
Event has occurred and the Seller does not cancel this Agreement as
to any or all Aircraft, but instead seeks to recover its actual
damages resulting therefrom, the amount of actual damages payable by
the Buyers will not exceed the amount of liquidated damages that
could have been claimed by Seller pursuant to Clause 21.1.2(2) had
the Seller elected to claim, as a result of such Termination Event,
liquidated damages pursuant to Clause 21.2(2).
(4) The parties to this Agreement are commercially sophisticated parties
represented by competent counsel. The parties expressly agree and
declare that damages for material breach of this Agreement by the
Buyers resulting in a termination of this Agreement pursuant to
Clause 21.1.2(1)(iv) as to any or all Aircraft have been liquidated
at amounts which are reasonable in light of the anticipated or
actual harm caused by any Buyer's breach, the difficulties of proof
of loss and the nonfeasibility of otherwise obtaining an adequate
remedy. It is understood and agreed by the parties that the amount
of liquidated damages set forth herein is the total amount of
monetary damages, no more and no less, to which the Seller will be
entitled for and with respect to any Aircraft as recovery for
material breach of this Agreement by any Buyer resulting in a
Termination by the Seller of this Agreement as to such Aircraft.
21.3 For purposes of this Clause 21
(i) "Affected Aircraft" - means any or all Aircraft with respect to which the
Seller has cancelled or terminated this Agreement pursuant to Clause
21.1.2(1)(iv),
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(ii) "Applicable Date" - for any Affected Aircraft means the date of the
Termination Event that the Seller specifies in its notice and demand
for payment of liquidated damages delivered under Clause 21.1(3),
and
(iii) "Escalated Price" - means the sum of (i) the Base Price of the
Aircraft and (ii) the Base Price of SCNs and MSCNs entered into
after the date of this Agreement, both as escalated to the
Applicable Date in accordance with the provisions of Clause 4.
21.4. Promptly upon obtaining knowledge of the occurrence of a Termination Event
by any Buyer, such Buyer will notify the Seller of such occurrence in
writing, provided, that any failure by any Buyer to notify the Seller will
not prejudice the Seller's rights or remedies hereunder.
21.5 If at any time prior to Scheduled Delivery Date of an Aircraft, the Seller
has reasonable grounds for insecurity as to the ability of any Buyer to
perform its obligation to take Delivery of such Aircraft, then the Seller
will send the Buyers a written demand for adequate assurance of
performance. If adequate assurance acceptable to the Seller is not
received within thirty (30) days following the date of such written
demand, then the Seller will have the right to either (a) exercise the
remedies provided under Section 2-609 of the Uniform Commercial Code or
(b) exercise any of its remedies under Clause 21.2.
21.6 Information Covenants
Each of the Buyers hereby covenants and agrees that, from the date of this
Agreement until no further Aircraft are to be delivered hereunder, the
Buyers will furnish or cause to be furnished to the Seller the following:
(a) Annual Financial Statements. As soon as available and in any event
no later than the date that the Buyers furnish such annual
statements to the Securities and Exchange Commission or successor
thereto (the "SEC") (i) a copy of the SEC Form 10-K filed by the
Buyers, as a group, with the SEC for such fiscal year, or, if no
such Form 10-K was filed by the Buyers for such fiscal year, no
later than the 90th day following the close of such fiscal year of
the Buyers, the consolidated balance sheet of the Buyers and their
Subsidiaries, as at the end of such fiscal year and the related
consolidated statements of operations, of common stockholders'
equity (deficit) (in the case of the Buyers and their Subsidiaries)
and of cash flows for such fiscal year, setting forth comparative
consolidated figures as of the end of and for the preceding fiscal
year, and examined by any firm of independent public accountants of
recognized standing selected by the Buyers and reasonably acceptable
to the Seller, whose opinion will not be qualified as to the scope
of audit or as to the status of the Buyers as a going concern, and
(ii) a certificate of such accounting firm stating that its audit of
the business of the Buyers was conducted in accordance with
generally accepted auditing standards. In lieu of actual delivery of
such Form 10-K, the Buyers may notify the Seller that such report
has been filed with the SEC and is publicly available on XXXXX (or
any successor online resource).
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(b) Quarterly Financial Statements. As soon as available and in any
event no later than the date that the Buyers furnish such quarterly
statements to the SEC, a copy of the SEC Form 10-Q filed by the
Buyers, as a group, with the SEC for such quarterly period, or, if
no such Form 10-Q was filed by the Buyers with respect to any such
quarterly period, no later than the forty-fifth (45th) day following
the close of such quarterly period, the consolidated balance sheet
of the Buyers and their Subsidiaries, as at the end of such
quarterly period and the related consolidated statements of
operations for such quarterly period and for the elapsed portion of
the fiscal year ended with the last day of such quarterly period and
in each case setting forth comparative consolidated figures as of
the end of and for the related periods in the prior fiscal year, all
of which will be certified by an Authorized Officer of each of the
Buyers, subject to changes resulting from audit and normal year-end
audit adjustments. In lieu of actual delivery of such Form 10-Q, the
Buyers may notify the Seller that such report has been filed with
the SEC and is publicly available on XXXXX (or any successor online
resource).
(c) Debt Rescheduling. (i) Promptly upon the commencement by any of the
Buyers of negotiations with one or more of its significant creditors
with a view to general readjustment or rescheduling of all or any
material part of its indebtedness under circumstances in which a
reasonable business person, in the exercise of prudent business
judgment, would conclude that such Buyer would otherwise not be able
to pay such indebtedness as it falls due, notice of commencement of
such negotiations, and (ii) thereafter timely advice of the progress
of such negotiations until such negotiations are terminated or
completed.
(d) Acceleration of other indebtedness. Immediately upon knowledge by
any Buyer that the holder of any bond, debenture, promissory note or
any similar evidence of indebtedness of such Buyer or Affiliate
thereof ("OTHER INDEBTEDNESS") has demanded payment, given notice or
exercised its right to a remedy having the effect of acceleration
with respect to a claimed event of default under any Other
Indebtedness, where the impact of the acceleration is likely to have
a material adverse effect on such Buyer's ability to perform its
obligations under or in connection with the transactions
contemplated by this Agreement, notice of the demand made, notice
given or action taken by such holder and the nature and status of
the claimed event of default and what the action such Buyer is
taking with respect thereto.
(e) Other Information. Promptly upon transmission thereof, copies of any
filings and registrations with, and reports to, the SEC by any Buyer
or any of its Affiliates, and, with reasonable promptness, such
other information or documents (financial or otherwise) as the
Seller may reasonably request from time to time. In lieu of actual
delivery of any such filing or registration, the Buyers may notify
the Seller that the same has been filed with the SEC and is publicly
available on XXXXX (or any successor online resource).
For the purposes of this Subclause 21.2, (x) an "AUTHORIZED OFFICER" of
any Buyer will mean the Chief Executive Officer, the Chief Financial
Officer or any Vice President and above thereof who reports directly or
indirectly to the Chief Financial Officer and (y) "SUBSIDIARIES"
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will mean, as of any date of determination, those companies owned by any Buyer
whose financial results the Buyers are required to include in their statements
of consolidated operations and consolidated balance sheets.
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22 MISCELLANEOUS PROVISIONS
22.1 Data Retrieval
On the Seller's reasonable request, each Buyer will provide the Seller
with all the necessary data, as customarily compiled by it and pertaining
to the operation of the Aircraft, to assist the Seller in making an
efficient and coordinated survey of all reliability, maintenance,
operational and cost data with a view to improving the safety,
availability and operational costs of the Aircraft.
22.2 Notices
All notices and requests required or authorized hereunder will be given in
writing either by personal delivery to a responsible officer of the party
to whom the same is given or by commercial courier, certified air mail
(return receipt requested) or facsimile at the addresses and numbers set
forth below. The date on which any such notice or request is so personally
delivered, or if such notice or request is given by commercial courier,
certified air mail or facsimile the date on which it is given, will be
deemed to be the effective date of such notice or request.
The Seller will be addressed at:
0, xxxx-xxxxx Xxxxxxx Xxxxxxxx
00000 Xxxxxxx Xxxxxx
Attention: Director - Contracts
Telephone: 00 00 00 00 00 00
Telecopy: 33 05 61 30 40 11
Each of the Buyers will be addressed, in the case of any item to be
delivered other than via courier or personal service or delivery, at:
0000 Xxxx Xxx Xxxxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Senior Vice President and Chief Financial Officer
Telephone: (000) 000-0000
Fax: (000) 000-0000
And, in the case of any item to be delivered via courier or personal
service or delivery,
000 Xxx Xxxxxx
Xxxxx, XX 00000
Attention: Senior Vice President and Chief Financial Officer
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From time to time, the party receiving the notice or request may designate
another address or another person.
22.3 Waiver
The failure of either party to enforce at any time any of the provisions
of this Agreement, to exercise any right herein provided or to require at
any time performance by the other party of any of the provisions hereof
will in no way be construed to be a present or future waiver of such
provisions nor in any way to affect the validity of this Agreement or any
part hereof or the right of the other party thereafter to enforce each and
every such provision. The express waiver by either party of any provision,
condition or requirement of this Agreement will not constitute a waiver of
any future obligation to comply with such provision, condition or
requirement.
22.4 INTERPRETATION AND LAW
THIS AGREEMENT WILL, PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION
5-1401, BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
[AS AGREED BY THE PARTIES]
Each party (i) hereby irrevocably submits itself to the nonexclusive
jurisdiction of the courts of the state of New York in New York County
and, to the extent permitted by applicable law, of the United States
District Court for the Southern District of New York, for the purposes of
any suit, action or other proceeding arising out of this Agreement or any
of the transactions contemplated hereby brought by any party or parties
hereto, and (ii) hereby waives, and agrees not to assert, by way of
motion, as a defense, counterclaim or otherwise, in any such suit, action
or proceeding, to the extent permitted by applicable law, the defense of
sovereign immunity, any claim that it is not personally subject to the
jurisdiction of the above-named courts by reason of sovereign immunity or
otherwise or that it or its property is exempt or immune from jurisdiction
of such court or from legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution or judgment,
execution of judgment or otherwise) and to the extent permitted by
applicable law, that the suit, action or proceeding which is referred to
in clause (i) above is brought in an inconvenient forum, that the venue of
such suit, action or proceeding is improper, or that this Agreement or the
subject matter hereof or any of the transactions contemplated hereby may
not be enforced in or by these courts.
22.4.1 Service of process in any suit, action or proceeding in respect of any
matter as to which a Buyer has submitted to jurisdiction under Clause 22.4
may be made on such Buyer by delivery of the same personally or by
dispatching the same via Federal Express, UPS, or similar
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international air courier, service prepaid to, CT Corporation, 000 Xxxxxx
Xx., Xxx Xxxx, XX (or such other office in the City of New York as such
agent will then be occupying), as agent for each of the Buyers, it being
agreed that service upon CT Corporation will constitute valid service upon
such Buyer or by any other method authorized by the laws of the State of
New York.
22.5 Waiver of Jury Trial
EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY
LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM OR CROSS-CLAIM THEREIN.
22.6 No Representations outside of this Agreement.
The parties declare that, prior to the execution of this Agreement, they,
with the advice of their respective counsel, apprised themselves of
sufficient relevant data in order that they might intelligently exercise
their own judgments in deciding whether to execute this Agreement and in
deciding on the contents of this Agreement. Each party further declares
that its decision to execute this Agreement is not predicated on or
influenced by any declarations or representations by any other person,
party, or any predecessors in interest, successors, assigns, officers,
directors, employees, agents or attorneys of any said person or party,
except as set forth in this Agreement. This Agreement resulted from
negotiation involving counsel for all of the parties hereto and no term
herein will be construed or interpreted against any party under the contra
proferentum or any related doctrine.
22.7 Confidentiality
[AS AGREED BY THE PARTIES]
22.8 Severability
If any provision of this Agreement should for any reason be held to be
without effect, the remainder of this Agreement will remain in full force
and effect. To the extent permitted by applicable law, each party hereto
hereby waives any provision of law, which renders any provision of this
Agreement prohibited or unenforceable in any respect.
22.9 Alterations to Contract
This Agreement, including its Exhibits and Appendices, contains the entire
agreement between the parties with respect to the subject matter hereof
and thereof and supersedes any previous understanding, commitments or
representations whatsoever, whether oral or written [AS AGREED BY THE
PARTIES] This Agreement will not be amended or modified except by an
instrument in writing of even date herewith or subsequent hereto executed
by both parties or by their fully authorized representatives.
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22.10 Inconsistencies
[AS AGREED BY THE PARTIES]
22.11 Language
All correspondence, documents and any other written matters in connection
with this Agreement will be in English.
22.12 Headings
All headings in this Agreement are for convenience of reference only and
do not constitute a part of this Agreement.
22.13 Counterparts
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered will be an
original, but all such counterparts will together constitute but one
and the same instrument.
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23. CERTAIN REPRESENTATIONS OF THE PARTIES
23.1. Buyers' Representations
Each of the Buyers represents and warrants to the Seller:
(i) it is a corporation organized and existing in good standing under
the laws of the State of Delaware and has the corporate power and
authority to enter into and perform its obligations under this
Agreement;
(ii) neither the execution and delivery by it of this Agreement, nor the
consummation of any of the transactions by it contemplated hereby,
nor the performance by it of the obligations hereunder, constitutes
a breach of any agreement to which it is a party or by which its
assets are bound;
(iii) this Agreement has been duly authorized, executed and delivered by
it and constitutes its legal, valid and binding obligation,
enforceable against it in accordance with its terms.
23.2 Seller's Representations
The Seller represents and warrants to each of the Buyers:
(i) the Seller is a societe a responsabilite limitee organized and
existing in good standing under the laws of the Republic of France
and has the corporate power and authority to enter into and perform
its obligations under this Agreement;
(ii) neither the execution and delivery by the Seller of this Agreement,
nor the consummation of any of the transactions by the Seller
contemplated hereby, nor the performance by the Seller of the
obligations hereunder, constitutes a breach of any agreement to
which the Seller is a party or by which its assets are bound;
(iii) this Agreement has been duly authorized, executed and delivered by
the Seller and constitutes the legal, valid and binding obligation
of the Seller enforceable against the Seller in accordance with its
terms.
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IN WITNESS WHEREOF, these presents were entered into as of the day and year
first above written.
AVSA, S.A.R.L.
By: __________________________
Title: _______________________
US AIRWAYS, INC.
By: __________________________
Title: _______________________
AMERICA WEST AIRLINES, INC.
By: __________________________
Title: _______________________
US AIRWAYS GROUP, INC.
By: __________________________
Title: _______________________
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