A320 Purchase Agreement [Amendment No. 2] - AVSA SARL and JetBlue Airways Corp.
Amendment No. 2
To the A320 Purchase Agreement
Dated as of April 20, 1999
Between
AVSA, S.A.R.L.
And
JetBlue Airways Corporation
This Amendment No. 2 (the "Amendment") is entered into as of March 13 2000,
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 2, rond-point Maurice Bellonte, 31700 Blagnac, France (the "Seller"),
and JetBlue Airways Corporation, a corporation organized and existing under the
laws of the State of Delaware, USA, having its principal corporate offices
located at 80-02 Kew Gardens Road, 6th Floor, Kew Gardens, New York, 11415 USA
(the "Buyer").
WITNESSETH
WHEREAS, the Buyer and Seller have entered into an Airbus A320 Purchase
Agreement dated as of April 20, 1999, which, together with all Exhibits,
Appendixes and Letter Agreements attached thereto and as amended by Amendment
No. 1 dated as of September 30, 1999 (the "Agreement"), covers, among other
things, the sale by the Seller and the purchase by the Buyer of certain Airbus
Industrie A320-200 aircraft (the "Buyer's Aircraft"), under the terms and
conditions set forth in said Agreement,
WHEREAS, the Buyer has leased or will lease from certain lessors Airbus
Industrie A320 aircraft (the "Leased Aircraft"),
WHEREAS, the Buyer intends to install satellite television systems, which
systems will include, but not be limited to, antennas, radomes, equipment racks,
and cabin screens ("LiveTV") on certain of the Buyer's Aircraft and the Leased
Aircraft (such Buyer's Aircraft and Leased Aircraft, the "Aircraft"),
WHEREAS, as a result of the Buyer's decision to install LiveTV on the Aircraft,
the Buyer and Seller have agreed to set forth in this Amendment certain
additional terms and conditions, amendments to Clause 12.2 of the Agreement and
Letter Agreement No. 7 to the Agreement.
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NOW, THEREFORE, IT IS AGREED AS FOLLOWS
1. DEFINITIONS
Capitalized terms used herein and not otherwise defined in this Amendment
will have the meanings assigned thereto in the Agreement. The terms
"herein", "hereof" and "hereunder" and words of similar import refer to
this Amendment.
2. ADDITIONAL TERMS AND CONDITIONS
2.1 SELLER'S REPORT
2.1.1 The Buyer and Seller agree to certain terms and conditions under which the
Seller has purchased or will purchase from the Manufacturer for sale to
the Buyer structural substantiation reports (the "Reports") that are
limited to the impact of LiveTV on the Aircraft structures around the:
(i) antenna radome attachments, and
(ii) electronic rack in the cargo hold.
2.1.2 The Buyer acknowledges that the Report is limited to an analysis of:
(i) stress,
(ii) fatigue life and damage/tolerance, and
(iii) repercussions on the maintenance program.
2.1.3 The Seller's involvement in the FAA supplemental type certificate
certifying the installation and operation of LiveTV (the "STC") is limited
to the provision of the Reports.
2.1.4 The Buyer further acknowledges that in preparing the Reports, the Seller
has relied on data provided by the Buyer, which the Seller has not
independently verified.
2.2 PRICE AND PAYMENT
2.2.1 PRICE
The price for the Report (the "Price") is USD [****].
2.2.2 PAYMENT TERMS
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[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
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Upon receipt of an invoice, the Buyer will pay the Price in immediately
available funds in United States dollars to Credit Lyonnais, New York,
for transfer by Credit Lyonnais to the Seller's account with Credit
Lyonnais at 1, Esplanade Compans Caffarelli, 31000 Toulouse, France, or
such other account as may be designated by the Seller.
2.3 INSTALLATION
The Buyer and the Seller agree that the Seller will bear no responsibility
whatsoever for any costs pertaining or related to the installation or
operation of LiveTV.
3. AMENDMENTS
3.1 CLAUSE 12.2
3.1.1 The Service Life Policy as described in Clause 12.2 of the Agreement is
hereby amended by the addition of the following quoted provision as Clause
12.2.6:
QUOTE
12.2.6 The Buyer agrees that if a Failure occurs in an Item and the Seller
determines that the cause of the Failure is attributable to any
component of the satellite television systems, including, but not
limited to, antennas, radomes, equipment racks, and cabin screens
that are installed on the Aircraft ("LiveTV") or the installation
thereof:
(i) the Seller will have no obligation whatsoever to design
or furnish a correction or replace the Item, and
(ii) Clause 12.2.2 and Clause 12.2.3 will not apply to such
Failure.
UNQUOTE
3.2 LETTER AGREEMENT NO. 7
3.2.1 Clause 4.6 of Letter Agreement No. 7 to the Agreement, which lists the
Excluded Delays to the dispatch reliability guarantee, is hereby amended
by the addition of the following quoted provision as Section 10 and
Section 11:
QUOTE
(10) Delays attributable to the malfunction of any component of the
satellite television systems, including, but not limited to,
antennas, radomes, equipment racks, and cabin screens that are
installed on the Aircraft ("LiveTV").
----------
[****] Represents material which has been redacted and filed separately with
the Commission pursuant to a request for confidential treatment pursuant to
Rule 406 under the Securities Act of 1933, as amended.
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(11) Delays attributable to the performance of the Aircraft or Aircraft
Systems due to the installation or operation of LiveTV.
UNQUOTE
4. WARRANTY AND INDEMNITY
4.1 THE SELLER MAKES NO WARRANTY OF ANY KIND OR NATURE WITH RESPECT TO THE
REPORT SUPPLIED HEREUNDER, AND THE BUYER HEREBY WAIVES, RELEASES AND
RENOUNCES ALL RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER,
WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR STATUTORY LAW OR
OTHERWISE, WITH RESPECT TO THE DESIGN, INSTALLATION, OPERATION OR EFFECT
OF LIVETV.
In consideration of the Seller's provision of the Report under this
Amendment, the Buyer hereby forever releases the Seller, its affiliates,
assigns, agents, representatives and employees from any and all
obligations, claims, losses, liabilities, costs, expenses and damages with
respect to the:
(i) issuance of the STC,
(ii) installation of LiveTV in or on the Aircraft,
(iii) performance of LiveTV, and
(iv) performance of the Aircraft as a result of the installation or
operation of LiveTV.
4.2 The Buyer will indemnify and hold the Seller, its affiliates, agents,
representatives and employees harmless from and against all losses,
liabilities, costs, expenses and damages, including court costs and
reasonable attorney's fees, arising from claims by third parties for
personal injuries and/or death and/or property damage arising out of the:
(i) issuance of the STC,
(ii) installation of LiveTV in or on the Aircraft,
(iii) performance of LiveTV, and
(iv) performance of the Aircraft as a result of the installation or
operation of LiveTV.
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5. EFFECT OF THE AMENDMENT
The Agreement will be deemed to be amended to the extent herein provided,
and except as specifically amended hereby, will continue in full force and
effect in accordance with its original terms. This Amendment supersedes
any previous understandings, commitments, or representations whatsoever,
whether oral or written, related to the subject matter of this Amendment.
Both parties agree that this Amendment will constitute an integral,
nonseverable part of said Agreement, and be governed by its provisions,
except that if the Agreement and this Amendment have specific provisions
that are inconsistent, the specific provisions in this Amendment will
govern.
6. CONFIDENTIALITY
This Amendment is subject to the confidentiality provisions set forth in
Clause 22.5 of the Agreement.
7. SEVERABILITY
In the event that any provision of this Amendment should for any reason be
held to be without effect, the remainder of this Amendment will remain in
full force and effect. To the extent permitted by applicable law, each
party hereto hereby waives any provision of law that renders any provision
of this Amendment prohibited or unenforceable in any respect.
8. HEADINGS
All headings in this Amendment are for convenience of reference only and
do not constitute a part of this Amendment.
9. COUNTERPARTS
This Amendment 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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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers or agents on the dates written
below.
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
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MICHELE LASCAUX
Its: Director Contracts
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Date: March 13, 2000
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JETBLUE AIRWAYS CORPORATION
By: /s/ T. E. Anderson
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Its: VICE PRESIDENT
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Date: March 18, 2000
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