Airbus A350 Purchase Agreement - AVSA SARL, US Airways Inc, America West Airlines Inc. and US AIrways Group Inc.
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
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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 BILL 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
2, rond-point Maurice Bellonte
31700 Blagnac, France
(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 4000 East Sky Harbor
Boulevard, Phoenix, AZ 85034 (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 198 Van Buren Street, Suite 300, Herndon, VA 20170, or any
successor thereto.
Associated Contractors - collectively, the following:
(1) Airbus France S.A.S., whose principal office is at
316, route de Bayonne
31060 Toulouse, France
(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 John Lennon N degrees 2,
s/n Getafe
28096 Madrid, Spain
(4) Airbus Deutschland GmbH, whose principal office is at
Kreetslag 10
21129 Hamburg, Germany
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 [...***...]
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.
*** Confidential Treatment Requested
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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) [...***...]
(ii) [...***...]
3.1.2 The Base Price of each A350-900 Aircraft is the sum of
(i) [...***...]
(ii) [...***...]
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, [...***...];
(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.
*** Confidential Treatment Requested
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3.3 Taxes, Duties and Imposts
3.3.1 [...***...]
3.3.2 [...***...]
*** Confidential Treatment Requested
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3.3.3 [...***...]
3.3.4 [...***...]
*** Confidential Treatment Requested
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4 PRICE REVISION
[...***...], 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.
*** Confidential Treatment Requested
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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. [...***...] 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 [...***...]
No later than the first Working Day of the
following months:
2d Payment The thirty-sixth (36th) month before the [...***...]
Scheduled Delivery Month of each Aircraft as set
forth in this Agreement
*** Confidential Treatment Requested
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3d Payment The twenty-fourth (24th) month before the
Scheduled Delivery Month of each Aircraft as set 5%
forth in this Agreement
4th Payment The eighteenth (18th) month before the Scheduled 5%
Delivery Month of each Aircraft as set forth in
this Agreement
5th Payment The twelfth (12th) month before the Scheduled 5%
Delivery Month of each Aircraft as set forth in
this Agreement
6th Payment The sixth (6th) month before the Scheduled 5%
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
[...***...]
(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
*** Confidential Treatment Requested
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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.
5.3 Initial Payment
[...***...]
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 [...***...] per annum on 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.
*** Confidential Treatment Requested
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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
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
[...***...]
7.4 Additional EASA Requirements
7.4.1 [...***...]
7.4.2 [...***...]
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7.4.3 [...***...]
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 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, [...***...] (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"). [...***...]
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 [...***...] 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
------------------------ ---- --------
[...***...]
Total
9.1.2
9.1.2.1 [...***...]
9.1.2.2 [...***...]
9.1.2.3 [...***...]
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9.1.2.4 [...***...]
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 [...***...] 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. [...***...]
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;
(ii) [...***...]; 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
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(b) [...***...]
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 [...***...] 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
[...***...] after the expiration of such [...***...] period.
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 [...***...], 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 [...***...] 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 [...***...] 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 [...***...] 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 [...***...] 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 [...***...], then this Agreement will terminate
with respect to said Aircraft unless:
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(i) each of the Buyers notifies the Seller within [...***...]
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
(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 [...***...] 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.
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11 INEXCUSABLE DELAY
11.1 Liquidated Damages
11.1.1 If
[...***...]
then such delay will be termed an "INEXCUSABLE DELAY." In the event of
an Inexcusable Delay, [...***...]
11.1.2 If
(i) an Aircraft is not Ready for Delivery [...***...]
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11.2 Renegotiation
If, as a result of an Inexcusable Delay, Delivery does not occur
[...***...] 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 [...***...] 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 [...***...] 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 [...***...] 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 [...***...]
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 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
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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.
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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
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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
[...***...] 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 [...***...]
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, [...***...] 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.
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(ii) [...***...]
(iii) [...***...]
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
(iii) [...***...]
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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 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. [...***...]
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[...***...]
(iii) [...***...]
[...***...]
(iv) [...***...]
[...***...]
(v) [...***...]
(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
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(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
(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 Maurice Bellonte
B.P. 33
F-31707 Blagnac Cedex, France
(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. [...***...]. 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,
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title to and risk of loss of such component, accessory, equipment or
part will pass to such Buyer.
(vii) Seller's Acceptance and Rejection. [...***...] 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, [...***...] and (b) all costs incurred by the
Seller including transportation to the ANACS Spares Center in
Ashburn, VA, insurance, and any other associated costs.
[...***...]
(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"). [...***...], 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. [...***...] The
Seller will use reasonable efforts to ensure a prompt response
and will not unreasonably withhold authorization.
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(ii) Conditions of Authorization. The Buyers will be entitled to the
benefits under this Clause 12.1.8 for repair of Warranted Parts:
[...***...]
(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
(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),
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- 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) [...***...]
The In-house Warranty Labor Rate is subject to
adjustment annually by multiplying the same by the ratio
ECIn/ECIb. For the purposes of this Clause 12.1.8(v)
only, ECIn is equal to the Labor Index defined in the
Seller Price Revision Formula for January of the year in
which the hours are spent and ECIb is equal to such
Labor Index for January 2005.
(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
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costs exceed, in the aggregate, (x) [...***...] 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.
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 [...***...] after the date of completion of repair or
[...***...] 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 [...***...] 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.
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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 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
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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,
(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
[...***...] after the Delivery of the Aircraft 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
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where
P: financial participation of the Seller,
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: [...***...]
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 [...***...] 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
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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.
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.
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12.2.5 Transferability
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.
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12.4 INTERFACE COMMITMENT
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. [...***...]
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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 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
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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 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;
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(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 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.
[...***...]
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
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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 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;
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(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;
(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.
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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 provisions of this Clause
12, specifically including the Exclusivity of Warranties set
forth in Clause 12.5.
12.8 SURVIVABILITY
[...***...]
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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
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(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.
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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. [...***...]
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").
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14.3.2 Buyer Furnished Equipment
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 [...***...]
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.
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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.
14.4.6 [...***...]
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 [...***...] 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
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(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
- 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
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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.
(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
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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 [...***...]
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 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."
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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. On-line and old formats of such Technical Data
are to be available in parallel for a period of six (6) months
or one (1) revision cycle, whichever is shorter.
14.10.3.3 [...***...]
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.
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
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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.
UNQUOTE
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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.
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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:
(i) The Seller will provide one or more dedicated Resident
Customer Support Representatives for pre-entry-into-service
support of the Aircraft, commencing at or prior to
entry-into-service of the first Aircraft for a total of
[...***...] man-months;
(ii) In addition, the Seller will provide a total of [...***...]
man-months of Resident Customer Support Representatives for
support of the A350 aircraft in the Buyers' fleet; and
(iii) The actual number of Customer Support Representatives assigned
to the Buyers at any one time will not exceed [...***...].
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 [...***...]
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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
(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
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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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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. [...***...] 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.
*** Confidential Treatment Requested
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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
[...***...]
*** Confidential Treatment Requested
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[...***...]
*** Confidential Treatment Requested
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[...***...]
*** Confidential Treatment Requested
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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.
[...***...]
*** Confidential Treatment Requested
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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.
316 Route de Bayonne
31300 Toulouse, France
or
Airbus Deutchland GmbH
Division Hamburger Flugzeugbau
Kreetslag 10
21129 Hamburg
Federal Republic 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
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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.
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21. TERMINATION
21.1 Termination Events
Each of the following will constitute a "TERMINATION EVENT
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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 receive payment from the Buyers, jointly and severally, as
liquidated damages and not as a penalty, an amount equal to, for
each Affected Aircraft (as defined in Clause 21.2(2) below), and
may, without limitation, by written notice to the Buyers,
immediately:
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(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 EDGAR (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 EDGAR (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 EDGAR
(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:
2, rond-point Maurice Bellonte
31700 Blagnac France
Attention: Director - Contracts
Telephone: 33 05 61 30 40 12
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:
4000 East Sky Harbor Blvd.
Phoenix, AZ 85034
Attention: Senior Vice President and Chief Financial Officer
Telephone: (480) 693-5710
Fax: (480) 693-2899
And, in the case of any item to be delivered via courier or personal
service or delivery,
111 Rio Salado
Tempe, AZ 85281
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.
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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.
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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 international air courier, service prepaid to, CT
Corporation, 111 Hudson St., New York, NY (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.
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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
including that certain MOU, AVSA No. 5343 between the Seller and the
Buyers dated May 18, 2005. 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.
22.10 Inconsistencies
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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: ________________________
AWE/USA - A350 - PA 108
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT A-1
The A350-800 Standard Specification is contained in a separate folder.
BARBELL -A350 - PA Draft 1 Exh. A-1
DRAFT WITHOUT PREJUDICE PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT A-2
The A350-900 Standard Specification is contained in a separate folder.
BARBELL -A350 - PA Draft 1 Exh. A-2
DRAFT WITHOUT PREJUDICE PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT B-1
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
TITLE
DESCRIPTION
EFFECT ON WEIGHT
Manufacturer's Weight Empty Change:
Operational Weight Empty Change:
Allowable Payload Change:
REMARKS/REFERENCES
Response to RFC
SPECIFICATION CHANGED BY THIS SCN
THIS SCN REQUIRES PRIOR OR CONCURRENT ACCEPTANCE OF THE FOLLOWING SCN(s)
PRICE PER AIRCRAFT
US DOLLARS:
AT DELIVERY CONDITIONS:
This change will be effective on___________Aircraft No.___________and subsequent
provided approval is received by_____________________________.
BUYER APPROVAL SELLER APPROVAL
By: By:
Title: (Authorized Officer) Date:
Date:
AWE/USA-A350 Exh B-1
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT B-1
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
SCOPE OF CHANGE (FOR INFORMATION ONLY)
AWE/USA-A350 Exh B-1
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT B-2
(AVSA LOGO) AIRLINE
MANUFACTURER'S SPECIFICATION MSCN Number
CHANGE NOTICE Issue
Dated
(MSCN) Page 1 of 3
--------------------------------------------------------------------------------
TITLE:
DESCRIPTION
EFFECT ON WEIGHT
Manufacturer's Weight Empty Change :
Operational Weight Empty Change :
Allowable Payload Change :
REMARKS / REFERENCES
SPECIFICATION CHANGED BY THIS MSCN
================================================================================
PRICE PER AIRCRAFT
US DOLLARS :
AT DELIVERY CONDITIONS :.
This change will be effective on AIRCRAFT N(degrees) and subsequent.
Provided MSCN is not rejected by
BUYER APPROVAL SELLER APPROVAL
By : By :
Date : Date :
AWE/USA -A350 Exh B-2
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT B-2
(AVSA LOGO) AIRLINE
MANUFACTURER'S SPECIFICATION MSCN Number
CHANGE NOTICE Issue
Dated
(MSCN) Page 2 of 3
--------------------------------------------------------------------------------
SPECIFICATION REPERCUSSION:
After contractual agreement with respect to weight, performance, delivery,
etc, the indicated part of the specification wording will read as follows:
AWE/USA -A350 Exh B-2
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT B-2
(AVSA LOGO) AIRLINE
MANUFACTURER'S SPECIFICATION MSCN Number
CHANGE NOTICE Issue
Dated
(MSCN) Page 3 of 3
--------------------------------------------------------------------------------
SCOPE OF CHANGE (FOR INFORMATION ONLY)
AWE/USA -A350 Exh B-2
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT C
***CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
SELLER SERVICE LIFE POLICY
[...***...]
Exh. C-1
***Confidential Treatment Requested
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT D
CERTIFICATE OF ACCEPTANCE
FOR A350 AIRCRAFT
In accordance with the terms of that certain A350 Purchase Agreement dated as of
____________, between __________, ("Designated Buyer") and AVSA, S.A.R.L.
("AVSA") (the "Purchase Agreement"), the acceptance inspections relating to the
Airbus A350 aircraft, Manufacturer's Serial Number: _____, U.S. Registration
Number: ______ with two (2) General Electric GEnx series propulsion systems
installed thereon, serial nos. ______ (position #1) and _______ (position #2)
(the "A350 Aircraft"), have taken place at Toulouse, France on the ____ day of
_____________, ____.
In view of said inspections having been carried out with satisfactory results,
and with any remaining discrepancies note separately, [Designated Buyer] hereby
approves the A350 Aircraft as being in conformity with the provisions of the
Purchase Agreement.
This acceptance does not impair the rights of [buyers] that may be derived from
the warranties relating to the A350 Aircraft set forth in the Purchase
Agreement.
RECEIPT AND ACCEPTANCE OF THE ABOVE-
DESCRIBED A350 AIRCRAFT ACKNOWLEDGED
[BUYERS]
By: ___________________________
Its: __________________________
Exh. D
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT E
BILL OF SALE
FOR A350-800 AIRCRAFT
Know all persons by these presents that AVSA, S.A.R.L. ("AVSA"), a societe a
responsabilite limitee organized and existing under the laws of the Republic of
France, whose address is 2 rond-point Maurice Bellonte, 31700 Blagnac, FRANCE,
is the owner of the full legal and beneficial title to the following airframe
(the "AIRFRAME"), the attached engines as specified (the "ENGINES") and all
appliances, components, parts, instruments, accessories, furnishings, modules
and other equipment of any nature, excluding buyer furnished equipment,
incorporated therein, installed thereon or attached thereto on the date hereof
(the "PARTS"):
MANUFACTURER OF AIRFRAME: MANUFACTURER OF ENGINES:
AIRBUS S.A.S [GENERAL ELECTRIC]
MODEL: A350-800 MODEL: GEnx
MANUFACTURER'S SERIAL NUMBERS:
SERIAL NUMBER: [ ] LH : [ ]
REGISTRATION NO: [ ] RH : [ ]
The Airframe, Engines and Parts are hereafter together referred to as the
aircraft (the "A350 AIRCRAFT").
AVSA does this ___ day of _______________ sell, transfer and deliver all of its
above described rights, title and interest to the A350 Aircraft to the following
company forever, said A350 Aircraft to be the property thereof:
[BUYERS]
AVSA hereby warrants to the "Buyers" its successors and assigns that it has on
the date hereof good and lawful right to sell, deliver and transfer title to the
A350 Aircraft to the Buyers and that there is hereby conveyed to the Buyers on
the date hereof good, legal and valid title to the A350 Aircraft, free and clear
of all liens, claims, charges, encumbrances and rights of others, and that it
will warrant and defend such title forever against all claims and demands
whatsoever.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by
its duly authorized representative this ______ day of [ ]
AVSA, S.A.R.L.
By:
Title:
Signature:
Location:
Exh. E-1
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT E
BILL OF SALE
FOR A350-900 AIRCRAFT
Know all persons by these presents that AVSA, S.A.R.L. ("AVSA"), a societe a
responsabilite limitee organized and existing under the laws of the Republic of
France, whose address is 2 rond-point Maurice Bellonte, 31700 Blagnac, FRANCE,
is the owner of the full legal and beneficial title to the following airframe
(the "AIRFRAME"), the attached engines as specified (the "ENGINES") and all
appliances, components, parts, instruments, accessories, furnishings, modules
and other equipment of any nature, excluding buyer furnished equipment,
incorporated therein, installed thereon or attached thereto on the date hereof
(the "PARTS"):
MANUFACTURER OF AIRFRAME: MANUFACTURER OF ENGINES:
AIRBUS S.A.S [GENERAL ELECTRIC]
MODEL: A350-900 MODEL: GEnx
MANUFACTURER'S SERIAL NUMBERS:
SERIAL NUMBER: [ ] LH : [ ]
REGISTRATION NO: [ ] RH : [ ]
The Airframe, Engines and Parts are hereafter together referred to as the
aircraft (the "A350 AIRCRAFT").
AVSA does this ___ day of _______________ sell, transfer and deliver all of its
above described rights, title and interest to the A350 Aircraft to the following
company forever, said A350 Aircraft to be the property thereof:
[BUYERS]
AVSA hereby warrants to the "Buyers" its successors and assigns that it has on
the date hereof good and lawful right to sell, deliver and transfer title to the
A350 Aircraft to the Buyer and that there is hereby conveyed to the Buyers on
the date hereof good, legal and valid title to the A350 Aircraft, free and clear
of all liens, claims, charges, encumbrances and rights of others and that it
will warrant and defend such title forever against all claims and demands
whatsoever.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by
its duly authorized representative this ______ day of [ ]
AVSA, S.A.R.L.
By:
Title:
Signature:
Location:
Exh. E-2
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
EXHIBIT F
TECHNICAL DATA INDEX
AWE/USA -A350 Exh. F-1
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
TECHNICAL DATA INDEX
Where applicable, data will be established in general compliance with ATA
Specification 2200 (iSpec2200), Information Standards for Aviation Maintenance
(Revision 2003).
The following index identifies the Technical Data provided in support of the
Aircraft.
The explanation of the table is as follows:
NOMENCLATURE Self-explanatory.
ABBREVIATED DESIGNATION (Abbr) Self-explanatory.
AVAILABILITY (Avail)
Technical Data can be available :
- ON-LINE (ON) through the relevant Service on Airbus Customer Portal
and / or
- OFF-LINE (OFF) through the most suitable means applicable to the size of
the concerned document (e.g CD or DVD).
FORMAT (Form)
Following formats can be used :
- SGML - Standard Generalized Mark-up Language, which allows further data
processing by the Buyer.
- XML - Evolution of the SGML format to cope with WEB technology
requirements.
- PDF (Portable Document Format) -Adobe format allowing data consultation.
The Standard functions of PDF are as follows:
- Viewing: Page based presentation identical to paper and film,
- Functions like zooming, 'full page'/'fit screen' layouts are available,
AWE/USA -A350 Exh. F-2
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
- Output: Copy/paste function and printing,
- Search functions: Bookmarks, and word search (full text search),
- Requires standard PC and Acrobat Reader.
- Advanced Consultation Tool, which comes with the relevant consultation and
navigation system.
- Advanced Customization Tool - FOSP (Flight Operations Standard Package) is
the advanced customization tool to be used by the Buyer to browse a
manual, customize a manual in accordance with its own operational or
regulatory requirements and/or publish a manual in OIS format.
TYPE C CUSTOMIZED. Refers to manuals that are applicable to an
individual Airbus customer/operator fleet or aircraft.
G GENERIC. Refers to manuals that are applicable for all
Airbus aircraft types/models/series.
E ENVELOPE. Refers to manuals that are applicable to a whole
group of Airbus customers for a specific aircraft
type/model/series.
QUANTITY (Qty) Self-explanatory for physical media.
DELIVERY (Deliv) Delivery refers to scheduled delivery dates and is expressed
in either the number of corresponding days prior to first
Aircraft Delivery, or nil (0) corresponding to the first
Delivery day.
The number of days indicated shall be rounded up to the next
regular revision release date.
AWE/USA -A350 Exh. F-3
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM TYPE QTY DELIV COMMENTS
---------------------------------------- ------ ----- ------------- ---- --- ----- -----------------------------------------
OPERATIONAL MANUALS AND DATA
Flight Crew Operating Manual / FCOM OFF Advanced C 180 Preliminary Customized FCOM reflecting
Quick Reference Leaflet (QRL) Customization the status of Aircraft as known to Airbus
Tool at thattime/a final customized version
will be made available through revision
service prior to Aircraft delivery.
FCOM ON Advanced C N/A 90
Customization
Tool
FCOM ON XML C N/A 90
FCOM OFF XML C 1 90
QRL OFF Paper C * 90 * Two per Aircraft at Delivery + 20
copies per Aircraft
QRL ON XML C N/A 90
QRL OFF XML C 1 90
Cabin Crew Operating Manual CCOM OFF Advanced C 90
Customization
Tool
CCOM ON Advanced C N/A 90
Customization
Tool
CCOM ON XML C N/A 90
CCOM OFF XML C 1 90
Flight Manual / Configuration Deviation FM/CDL OFF (PDF*) C 0 (*) plus one copy per Aircraft at
List Delivery under PDF or securised format,
as agreed with the Airworthiness
Authorities
FM/CDL ON Advanced C N/A 0
Customization
Tool
FM/CDL ON XML C N/A 0
FM/CDL OFF XML C 1 0
AWE/USA -A350 Exh. F-4
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM TYPE QTY DELIV COMMENTS
---------------------------------------- ------ ----- ------------- ---- --- ----- -----------------------------------------
OPERATIONAL MANUALS AND DATA (CONT'D)
Master Minimum Equipment List MMEL OFF (PDF *) C 0 (*) plus one copy per Aircraft at
Delivery under PDF or securised format,
as agreed with the Airworthiness
Authorities
MMEL OFF Advanced C 180
Customization
Tool
MMEL ON Advanced C N/A 180
Customization
Tool
MMEL ON XML C N/A 180
MMEL OFF XML C 1 180
Trim Sheet TS OFF WordDoc C 0 Office Automation format (.doc) for
further processing by the Buyer
TS ON WordDoc C N/A 0
Weight and Balance Manual WBM OFF (PDF *) C 0 (*) plus one copy per Aircraft at
Delivery under PDF or securised format,
as agreed with the Airworthiness
Authorities
WBM OFF Advanced C 90
Customization
Tool
WBM ON Advanced C N/A 90
Customization
Tool
WBM ON XML C N/A 90
WBM OFF XML C 1 90
AWE/USA -A350 Exh. F-5
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM TYPE QTY DELIV COMMENTS
---------------------------------------- ------ ----- ------------- ---- --- ----- --------
OPERATIONAL MANUALS AND DATA (CONT'D)
Performance Engineer's Programs PEP OFF Advanced C 90
Consultation
Tool
PEP ON Advanced C N/A 90
Consultation
Tool
Performance Programs Manual PPM OFF Advanced C 90
Consultation
Tool
PPM ON Advanced C N/A 90
Consultation
Tool
AWE/USA -A350 Exh. F-6
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM TYPE QTY DELIV COMMENTS
---------------------------------------- ----------- ----- ------------- ---- --- ----- -----------------------------------------
MAINTENANCE AND ASSOCIATED MANUALS
AirN@v MAINTENANCE, including : AirN@v ON Advanced C N/A 90
Aircraft Maintenance Manual Maintenance Consultation
Illustrated Parts Catalog (Airframe) Tool
Illustrated Parts Catalog (Powerplant)
Trouble Shooting Manual AirN@v OFF Advanced C 20 90 Recommended basic delivery quantity
Aircraft Schematics Manual Maintenance Consultation
Aircraft Wiring Lists Tool on
Aircraft Wiring Manual DVD
Electrical Standard Practices Manual
+ Associated Data >
Consumable Material List
Standards Manual
Aircraft Maintenance Manual AMM ON SGML C N/A 90
AMM OFF SGML C 90 If selected by the Buyer, SGML format
will not be automatically supplied.
Effective delivery will only take place
upon explicit request from the Buyer
Aircraft Schematics Manual ASM ON SGML C N/A 90
ASM OFF SGML C 90 See comments under AMM SGML
Aircraft Wiring Lists AWL ON SGML C N/A 90
AWL OFF SGML C 90 See comments under AMM SGML
Aircraft Wiring Manual AWM ON SGML C N/A 90
AWM OFF SGML C 90 See comments under AMM SGML
Consumable Material List CML ON SGML G N/A 180
CML OFF SGML G 180 See comments under AMM SGML
AWE/USA -A350 Exh. F-7
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM TYPE QTY DELIV COMMENTS
---------------------------------------- ------ ----- ------------- ---- --- ----- -----------------------------------------
MAINTENANCE AND ASSOCIATED
MANUALS (CONT'D)
AirN@v ENGINEERING, including EDCI* ON Advanced C N/A 90 AirN@v Engineering is an "Engineering
Airworthiness Directives / AD Consultation Documentation Combined Index" providing
Consignes de Navigabilite / CN Tool an access to some document indexes and
(French DGAC) contents and cross-references between
All Operator Telex / AOT such documents
Operator Information Telex / OIT
Flight Operator Telex / FOT EDCI* OFF Advanced C 20 90
Modification / MOD Consultation
Modification Proposal / MP Tool
Service Bulletin / SB
Service Information Letter / SIL
Technical Follow-Up / TFU
Vendor Service Bulletin / VSB
Electrical Load Analysis ELA OFF PDF/RTF/ C +30 One ELA supplied for each Aircraft,
XLS delivered one month after Aircraft
Delivery PDF File + Office automation
format RTF & Excel file delivered on one
single CD for ELA updating by the Buyer
Electrical Standard Practices Manual ESPM ON SGML G N/A 90
ESPM OFF SGML G 90 See comments under AMM SGML
ESPM ON PDF G N/A 90
ESPM OFF CD-P G 90
Electrical Standard Practices booklet ESP OFF P2* G 90 *Refers to a two-side printed document
Illustrated Parts Catalog (Airframe) IPC ON SGML C N/A 90
IPC OFF SGML C 90 See comments under AMM SGML
Illustrated Parts Catalog (Powerplant) PIPC ON SGML C N/A 90
PIPC OFF SGML C 90 See comments under AMM SGML
AWE/USA -A350 Exh. F-8
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM QTY DELIV COMMENTS
---------------------------------------- ----------- ----- ------------- --- ----- --------------------------------------
MAINTENANCE AND ASSOCIATED
MANUALS (CONT'D)
AirN@v PLANNING, including: AirN@v ON Advanced E N/A 90* With first AMM issue
Maintenance Planning Document Planning Consultation Upon Customer's request, the MPD may
Tool be supplied
AirN@v OFF Advanced E 20 90*
Planning Consultation
Tool on DVD
Maintenance Planning Document MPD ON SGML E N/A 360
MPD OFF SGML E 360 See comments under AMM SGML
MPD OFF PDF E * 360 * Supplied upon Buyer's request only
Contains PDF , Excel File and TSDF /
Task Structured Data File for further
processing
Maintenance Review Board Report MRBR ON PDF E N/A 360 MRB Report ocument includes the
Certification Maintenance Requirements
(CMR) and Airworthiness Limitation
Items (ALI) documents.
MRBR OFF CD-P E 360
Support Equipment Summary SES ON PDF G N/A 360
SES OFF* CD-P G 360 * Contained on one single CD with TEI/
TEM
Tool and Equipment Drawings TED ON Advanced E N/A 360 On-line Consultation from Engineering
Consultation Drawings Service
Tool
Tool and Equipment Index TEI ON PDF E N/A 360
TEI OFF* CD-P E 360 *Contained on one single CD with TEM
& SES
Illustrated Tool and Equipment Manual TEM ON PDF E N/A 360
TEM OFF* CD-P E 360 * Contained on one single CD with TEI
& SES
Trouble Shooting Manual TSM ON SGML C N/A 90
TSM OFF SGML C 90 See comments under AMM SGML
AWE/USA -A350 Exh. F-9
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM TYPE QTY DELIV COMMENTS
---------------------------------------- ------- ----- ---------- ---- --- ----- --------------------------------------
STRUCTURAL MANUALS
AirN@v REPAIR , including : AirN@v ON Advance E N/A 90.
Structural Repair Manual Repair Consultati
Nacelle Structural Repair Manual on Tool
( integrated in Airbus SRM )
Non Destructive Testing Manual AirN@v OFF Advance E 20* 90.
+ Associated Data > Repair Consultati
Consumable Material List on Tool
Standards Manual On DVD *Recommended basic delivery quantity
Structural Repair Manual SRM ON SGML E N/A 90
SRM OFF SGML E 90 If selected by the Buyer, SGML format
will not be automatically supplied.
Effective delivery will only take place
upon explicit request from the Buyer
Nacelle Structural Repair Manual NSRM ON SGML E N/A 90
(integrated in Airbus SRM)
NSRM OFF SGML E 90 See comments under SRM SGML
Nondestructive Testing Manual NTM ON SGML E N/A 90
NTM OFF SGML E 90 See comments under SRM SGML
AWE/USA -A350 Exh. F-10
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM TYPE QTY DELIV COMMENTS
---------------------------------------- ------ ----- ------------- ---- --- ----- -----------------------------------------
OVERHAUL DATA
AirN@v SHOP , including : AirN@v ON Advance E N/A 90
Component Maintenance Manual - Shop Consultation
Manufacturer Tool
Duct Repair Manual
+ Associated Data > AirN@v OFF Advance E 20
Consumable Material List Shop Consultation
Standards Manual Tool
On DVD
Component Maintenance Manual - CMMM ON PDF E N/A 90
Manufacturer Supplied upon Buyer's request
CMMM OFF CD-P E 90
Component Maintenance Manual - CMMM ON SGML E N/A 90
Manufacturer
CMMM OFF SGML E 90 If selected by the Buyer, SGML format
will not be automatically supplied.
Effective delivery will only take place
upon explicit request from the Buyer
Duct Repair Manual DRM ON PDF E N/A 90
Supplied upon Buyer's request
DRM OFF CD-P E 90
Duct Repair Manual DRM ON SGML E N/A 90
DRM OFF SGML E 90 If selected by the Buyer, SGML format
will not be automatically supplied.
Effective delivery will only take place
upon explicit request from the Buyer
Fuel Pipe Repair Manual FPRM ON PDF G N/A 90
FPRM OFF CD-P G 90
Component Documentation Status CDS ON Advanced C N/A 90 Revised until 180 days after Aircraft
Consultation Delivery
Tool
CDS OFF Advanced C 90
Consultation
Tool
AWE/USA -A350 Exh. F-11
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM TYPE QTY DELIV COMMENTS
---------------------------------------- ----- ----- ---- ---- --- ----- ----------------------------------------
OVERHAUL DATA CONT'D
Component Evolution List CEL ON PDF G N/A - Available on-line through Airbus Portal
CEL OFF CD-P G -
AWE/USA -A350 Exh. F-12
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM TYPE QTY DELIV COMMENTS
---------------------------------------- ---- ----- ------------- ---- --- ----- --------------------------------
ENGINEERING DOCUMENTS
Installation and Assembly Drawings IAD ON Advanced C N/A 0 On-line Consultation from
(mechanical) Consultation Engineering Drawings Service
Tool
Parts Usage (Effectivity) PU ON Advanced C N/A 0 On-line Consultation from
Consultation Engineering Drawings Service
Tool
Parts List PL ON Advanced C N/A 0 On-line Consultation from
Consultation Engineering Drawings Service
Tool
Standards Manual SM ON SGML E N/A 90
SM OFF SGML E 90 If selected by the Buyer, SGML
format will not be automatically
supplied. Effective delivery will
only take place upon explicit
request from the Buyer
Process and Material Specification PMS ON PDF G N/A 0
PMS OFF CD-P G 0
AWE/USA -A350 Exh. F-13
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM TYPE QTY DELIV COMMENTS
---------------------------------------- -------- ----- ------------- ---- --- ----- -----------------------------------------
MISCELLANEOUS PUBLICATIONS
Aircraft Characteristics for Airport AC/MFP ON PDF E N/A 360
and Maintenance Facility Planning
ATA Index ATI ON PDF E N/A 360
CADETS (Technical Publications CADETS OFF Advanced G 20 360
Training) Consultation
Tool
Aircraft Recovery Manual ARM ON PDF E N/A 90
ARM OFF CD-P E 90
Aircraft Rescue & Firefighting Chart ARFC ON PDF E 180
ARFC OFF P1* E N/A 180 *Refers to a one-side printed document
Cargo Loading System Manual CLS ON PDF E N/A 180
List of Applicable Publications LAP ON PDF C N/A 90
List of Radioactive and Hazardous
Elements LRE ON PDF G N/A 90
LRE OFF CD-P G 90
Livestock Transportation Manual LTM ON Advanced E N/A 90
Consultation Includes a Livestock Transportation and
Tool Calculation Tool
LTM OFF Advanced E 90
Consultation
Tool
Service Bulletins SB ON Advanced C N/A 0
Cons.Tool
SB ON SGML C N/A 0
SB OFF SGML C 0
SB ON PDF C N/A 0
SB OFF CD-P C 0
AWE/USA -A350 Exh. F-14
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT F
NOMENCLATURE ABBR AVAIL FORM TYPE QTY DELIV COMMENTS
---------------------------------------- ---- ----- ------------- ---- --- ----- -------------------------------
MISCELLANEOUS PUBLICATIONS
Supplier Product Support Agreements 2000 SPSA ON PDF G N/A 360 Based on General Conditions of
Purchase (GCP) 2000 Issue 5
SPSA OFF CD-P G 360
Transportability Manual TM ON PDF G N/A 180
TM OFF CD-P G 180
Vendor Information Manual VIM ON Advanced G N/A 360
Consultation
Tool
VIM OFF Advanced G 360
Consultation
Tool
VIM/GSE ON Advanced G N/A 360
Consultation
Tool
AWE/USA -A350 Exh. F-15
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT G
*** CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
SELLER PRICE REVISION FORMULA
1 BASE PRICE
The Base Price of the A350-800 Aircraft is quoted in Clause 3.1.1 and of
the A350-900 Aircraft in clause 3.1.2 of the Agreement. Each Base Price is
subject to adjustment for changes in economic conditions as measured by
data obtained from the US Department of Labor, Bureau of Labor Statistics,
and in accordance with the provisions hereof.
2 BASE PERIOD
The Base Price of the Aircraft has been established in accordance with the
average economic conditions prevailing in December 2003, January 2004,
February 2004 and corresponding to a theoretical delivery in January 2005
as defined by [...***...] and [...***...] index values indicated
hereafter.
[...***...] and [...***...] index values indicated herein will not be
subject to any revision.
3 INDEXES
Labor Index: [...***...]
Material Index: [...***...]
***Confidential Treatment Requested
AWE/USA-A350 Exh G-1
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT G
4 REVISION FORMULA
[...***...]
5 GENERAL PROVISIONS
5.1 Roundings
The [...***...] average and the [...***...] average will be computed to
the first decimal. If the next succeeding place is five (5) or more, the
preceding decimal place shall be raised to the next higher figure.
Each quotient shall be rounded to the nearest ten-thousandth (4 decimals).
If the next succeeding place is five (5) or more, the preceding decimal
place shall be raised to the next higher figure.
***Confidential Treatment Requested
AWE/USA-A350 Exh G-2
PRIVILEGED AND CONFIDENTIAL
<PAGE>
EXHIBIT G
The final factor will be rounded to the nearest ten-thousandth
(4 decimals).
The final price will be rounded to the nearest whole number (0.5 or more
rounded to 1).
5.2 Substitution of Indexes for Aircraft Price Revision Formula
If;
(i) the United States Department of Labor substantially revises the
methodology of calculation of the labor index [...***...] or
material index [...***...] as used in this Exhibit G, or
(ii) the United States Department of Labor discontinues, either
temporarily or permanently, such labor index [...***...] or
material index [...***...] index, or
(iii) the data samples used to calculate such labor index [...***...] or
material index [...***...] are substantially changed;
the Seller will select a substitute index for inclusion in the Seller
Price Revision Formula (the "Substitute Index").
The Substitute Index will reflect as closely as possible the actual
variance of the labor costs or of the material costs used in the
calculation of the original labor index [...***...] or material index
[...***...] as the case may be.
As a result of the selection of the Substitute Index, the Seller will make
an appropriate adjustment to the Seller Price Revision Formula to combine
the successive utilization of the original labor index [...***...] or
material index [...***...] (as the case may be) and of the Substitute
Index.
5.3 Final Index Values
The Index values as defined in Paragraph 4 above will be considered final
and no further adjustment to the basic prices as revised at delivery of
the applicable Aircraft will be made after delivery of the applicable
Aircraft for any subsequent changes in the published index values.
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EXHIBIT H
TERMS AND CONDITIONS FOR LICENSE FOR USE OF SOFTWARE
These Terms and Conditions for License for Use of Software (the "LICENSE
CONDITIONS") will govern the license granted by AIRBUS NORTH AMERICA CUSTOMER
SERVICES, INC. a Delaware incorporated company whose registered office is at 198
Van Buren Street, Suite 300, Herndon, VA 20170 ("ANACS" or "LICENSOR") to, a [ ]
corporation whose principal office is located at [_______________________] (the
"LICENSEE") under a separate Software License and Product Supply Agreement (the
"SLPA").
WHEREAS ANACS is engaged in the business of supplying products and services to
North American and South American owners and operators of aircraft manufactured
by Airbus and the designees of such owners and operators, and
WHEREAS Airbus has developed and owns certain software and ANACS was granted a
license to use such Software and to sublicense the same, under the License
Conditions, to qualified entities who have entered into a SLPA with ANACS, and
WHEREAS, the Licensee has entered, or intends to enter into a SLPA and is
willing to accept the License Conditions,
NOW THEREFORE IT IS AGREED AS FOLLOWS:
[...***...]
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***CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 1
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: SPARE PARTS PROCUREMENT
Ladies and Gentlemen,
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc. (the
"Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an Airbus A350
Purchase Agreement dated as of the date hereof (the "Agreement"), which covers,
among other things, the sale by the Seller and the purchase by the Buyers of
certain Aircraft, under the terms and conditions set forth in said Agreement.
The Buyers and the Seller have agreed to set forth in this Letter Agreement No.
1 (the "Letter Agreement") certain additional terms and conditions regarding the
sale of the Aircraft. Capitalized terms used herein and not otherwise defined in
this Letter Agreement will have the meanings assigned thereto in the Agreement.
Technical and trade terms used but not defined herein or in the Agreement will
be defined as generally accepted in the airline and/or aircraft manufacturing
industries. The terms "herein," "hereof" and "hereunder" and words of similar
import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
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CONTENTS
PARAGRAPHS
1 - GENERAL
2 - INITIAL PROVISIONING
3 - STORES
4 - DELIVERY
5 - PRICE
6 - PAYMENT PROCEDURES AND CONDITIONS
7 - TITLE
8 - PACKAGING
9 - DATA RETRIEVAL
10 - BUY-BACK
11 - WARRANTIES
12 - LEASING
[...***...]
14 - TERMINATION
15 - ASSIGNMENT
16 - COUNTERPARTS
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1. GENERAL
1.1 Material
This Letter Agreement covers the terms and conditions for the services
offered by the Seller to the Buyers in respect of the Aircraft spare parts
and other equipment ("Material Support") listed below in Paragraphs 1.1(a)
through 1.1(f) ("Material") and is intended by the parties to be and will
constitute an agreement of sale of all Material furnished to the Buyers by
the Seller pursuant hereto, except as to Material leased to the Buyers
pursuant to Paragraph 12 of this Letter Agreement.
The Material will comprise:
(a) Seller Parts (defined as industrial proprietary components,
equipment, accessories or parts of the Manufacturer manufactured to
the detailed design of the Manufacturer or a subcontractor of it and
bearing official part numbers of the Manufacturer or material for
which the Seller has exclusive sales rights in the United States).
(b) Supplier Parts classified as Repairable Line Maintenance Parts in
accordance with SPEC 2000.
(c) Supplier Parts classified as Expendable Line Maintenance Parts in
accordance with SPEC 2000.
(d) Ground Support Equipment (GSE) and Specific (To-Type) tools.
(e) Hardware and standard material.
(f) Consumables and raw material as a package.
It is expressly understood that Seller Parts will not include parts
manufactured pursuant to a parts manufacturing authority.
Material covered under Paragraphs 1.1(e) and 1.1(f) is available only as a
package when supplied as part of the Initial Provisioning defined in
Paragraph 1.2.1(a).
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1.2 Scope of Material Support
1.2.1 The Material Support to be provided by the Seller hereunder covers the
following:
(a) all Material purchased by the Buyers from the Seller during the
Initial Provisioning Period (defined below in Paragraph 2) (the
"Initial Provisioning") and all items in Paragraphs 1.1(a) through
1.1(d) for purchases additional to the Initial Provisioning, and
(b) the Seller's leasing of Seller Parts to the Buyers for the Buyers'
use on its Aircraft in commercial air transport service as set forth
in Paragraph 12 of this Letter Agreement.
1.2.2 Propulsion Systems, including associated parts and spare parts therefore,
are not covered under this Letter Agreement and will be subject to direct
negotiations between the Buyers and the Propulsion Systems
manufacturer(s). [...***...]
1.2.3 During a period commencing on the date hereof and continuing as long as at
least five (5) aircraft of the type of the Aircraft are operated in
commercial air transport service of which, at least one (1) is operated by
the Buyers (the "Term"), the Seller will maintain or cause to be
maintained such stock of Seller Parts as the Seller deems reasonable and
will furnish at reasonable prices Seller Parts adequate to meet the
Buyers' needs for maintenance of the Aircraft. Such Seller Parts will be
sold and delivered in accordance with Paragraphs 4 and 5 of this Letter
Agreement, upon receipt of the Buyers' orders.
The Seller will use its reasonable efforts to obtain a similar service
from all Suppliers of parts that are originally installed on the Aircraft
and not manufactured by the Seller.
1.3 Purchase Source of Material
The Buyers agree to purchase from the Seller's designee, ANACS, the Seller
Parts required for the Buyers' own needs during the Term, provided that
this Paragraph 1.3 will not in any way prevent the Buyers from resorting
to the stocks of Seller Parts of other operators using A350 aircraft or
from purchasing items equivalent to Seller Parts from said operators or
from distributors, on the condition that said Seller Parts
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have been designed and manufactured by, or obtained from the Seller, and,
provided further that this Paragraph 1.3 will not prevent the Buyers from
exercising its rights under Paragraph 1.4 of this Letter Agreement.
1.4 Manufacture of Material by the Buyer
1.4.1 The provisions of Paragraph 1.3 of this Letter Agreement notwithstanding,
the Buyers may manufacture or have manufactured Seller Parts for its own
use or may purchase for its own use Seller Parts from any source other
than those listed in Paragraph 1.3.1 in the following cases:
(a) after expiration of the Term, provided that at such time the Seller
is out of stock of a required Seller Part;
(b) at any time, to the extent Seller Parts are needed to effect AOG
repairs on any Aircraft and are not available from the Seller within
a lead time shorter than or equal to the time in which the Buyers
can procure said Seller Parts from another source, provided the
Buyers will sell or lease such Seller Parts only if they are
assembled in an Aircraft that is sold or leased;
(c) at any time, if the Seller fails to fulfill its obligations with
respect to any Seller Parts pursuant to Paragraph 1.2 above within a
reasonable period after written notice thereof from the Buyers; and
(d) at any time, if with respect to certain Seller Parts, the Seller has
granted, under the Illustrated Parts Catalog supplied in accordance
with this Letter Agreement, the right of local manufacture of Seller
Parts.
1.4.2 The Buyers may manufacture the Seller's proprietary tooling from drawings
and other data supplied by the Seller or the manufacturer.
1.4.3 The rights granted to the Buyers in Paragraph 1.4.1 will not in any way be
construed as a license, nor will they in any way obligate the Buyers to
pay any license fee, royalty or obligation whatsoever, nor will they in
any way be construed to affect the rights of third parties.
1.4.4 The Seller will provide the Buyers with all technical data reasonably
necessary to manufacture Seller Parts and the Seller's proprietary
tooling, in the event the Buyers are entitled to do so pursuant to
Paragraphs 1.4.1 and 1.4.2. The proprietary rights to such technical data
will be subject to the terms of Clause 14.12 of the Agreement.
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2. INITIAL PROVISIONING
The period up to and including the [...***...] day after delivery of
the last Aircraft will hereinafter be referred to as the Initial
Provisioning Period.
2.1 Seller-Supplied Data
The Seller will prepare and supply to the Buyers the following data:
2.1.1 Initial Provisioning Data - Seller
The Seller will provide to the Buyers initial provisioning data provided
for in Chapter 1 of ATA 2000 ("Initial Provisioning Data") in a form,
format and within a time period to be mutually agreed upon.
A free of charge revision service will be effected every ninety (90) days,
up to the end of the Initial Provisioning Period.
The Seller will ensure that Initial Provisioning Data is released to the
Buyers in time to allow the necessary evaluation time by the Buyers and
the on-time delivery of ordered Material.
2.1.2 Supplementary Data
The Seller will provide the Buyers with Local Manufacture Tables (X-File),
as part of the Illustrated Parts Catalog (Additional Cross-Reference
Tables), which will be a part of the Initial Provisioning Data package.
2.1.3 Data for Standard Hardware
The Initial Provisioning Data provided to the Buyers shall include data
for hardware and standard material.
2.2 Supplier-Supplied Data
2.2.1 General
Suppliers will prepare and issue CMM parts and IPL parts (T-files) in the
English language for those Supplier components for which the Buyers has
elected to receive data and the Seller will make reasonable efforts to
ensure that the Suppliers take such actions.
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Said data (initial issue and revisions) will be transmitted to the Buyers
through the Suppliers and/or the Seller. The Seller will [...***...] not
be responsible for the substance of such data [...***...]
The Seller will exert its reasonable efforts to supply Initial
Provisioning Data to the Buyers in time to allow the necessary evaluations
by the Buyers and on-time deliveries.
2.2.2 Initial Provisioning Data - Supplier
Initial Provisioning Data for Supplier products provided for in Chapter 1
of ATA 2000 will be furnished as mutually agreed upon during a
Preprovisioning Meeting (defined below), with free of charge revision
service assured up to the end of the Initial Provisioning Period, or until
it reflects the configuration of the delivered Aircraft.
2.3 Preprovisioning Meeting
2.3.1 The Seller will organize a meeting (i) at the Manufacturer's spares center
in Hamburg, Germany ("MSC"), (ii) at ANACS or (iii) at a place to be
mutually agreed, in order to formulate an acceptable schedule and working
procedure to accomplish the Initial Provisioning of Material (the
"Preprovisioning Meeting").
2.3.2 The date of the Preprovisioning Meeting will be mutually agreed upon, but
it will take place no earlier than three (3) months after the Agreement
will have taken effect and no later than eighteen (18) months before
delivery of the Buyers' first Aircraft.
2.4 Initial Provisioning Training
The Seller will furnish, at the Buyers' request and at no charge to the
Buyers, training courses related to the Seller's provisioning documents,
purchase order administration and handling at MSC or at a mutually agreed
location. The areas covered in these training courses are (i)
familiarization of the Buyers with the provisioning; (ii)
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explanation of the technical function as well as the necessary technical
and commercial Initial Provisioning Data; and (iii) familiarization with
the Seller's purchase order administration system.
2.5 Initial Provisioning Conference
The Seller will organize an Initial Provisioning conference at MSC, ANACS
or a location to be mutually agreed upon that will include participation
of major Suppliers, as agreed upon during the Pre-provisioning Meeting
(the "Initial Provisioning Conference").
Such Initial Provisioning Conference will take place no earlier than eight
(8) weeks after Buyer Furnished Equipment (BFE) selection or Customer
Definition Freeze (CDF), whichever last occurs.
2.6 Initial Provisioning Data Compliance
2.6.1 Initial Provisioning Data generated by the Seller and supplied to the
Buyers will comply with the latest configuration of the Aircraft to which
such data relate, as known three (3) months before the data are issued.
Said data will enable the Buyers to order Material conforming to its
Aircraft as required for maintenance and overhaul.
This provision will not cover Buyers modifications unknown to the Seller,
or modifications not agreed to or designed by the Seller.
2.7 Delivery of Initial Provisioning Material
2.7.1 During the Initial Provisioning Period, Material will conform with the
latest configuration standard of the affected Aircraft and with the
Initial Provisioning Data transmitted by the Seller. The Seller, in
addition, will use its reasonable efforts to cause Suppliers to provide a
similar service for their items. Should the Seller default in this
obligation, it will immediately replace such Seller parts and/or authorize
return shipment at no transportation cost to the Buyers. The Buyers will
make reasonable efforts to minimize such cost.
2.7.2 The Seller will use its reasonable efforts to deliver Initial Provisioning
Material in Paragraph 1.1(a) of this Letter Agreement against the Buyers'
orders from the Seller and according to the following schedule, provided
the orders are received by the Seller in accordance with published
leadtime.
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Initial Provisioning Material will be delivered as provided below:
(a) At least fifty percent (50%) of the ordered quantity of each Line
Replacement or Line Maintenance item three (3) months before
delivery of the first Aircraft of each block of Aircraft for which
the Buyers have placed Initial Provisioning orders for Material
defined above in Paragraph 1.1(a).
(b) At least seventy-five percent (75%) of the ordered quantity of each
Line Replacement or Line Maintenance item: one (1) month (for items
identified as line station items, two (2) months) before delivery of
the first Aircraft of each block of Aircraft for which the Buyers
have placed Initial Provisioning orders for Material defined above
in Paragraph 1.1(a).
(c) Fifty percent (50%) of the ordered quantity of each item except as
specified in Paragraphs 2.7.1 (a) and 2.7.1 (b) above: at delivery
of the first Aircraft of each block of Aircraft for which the Buyers
have placed Initial Provisioning orders for Material defined above
in Paragraph 1.1(a).
(d) One hundred percent (100%) of the ordered quantity of each item,
including line station items: three (3) months after delivery of the
first Aircraft of each block of Aircraft for which the Buyers have
placed Initial Provisioning orders for Material, as defined above in
Paragraph 1.1(a). If said one hundred percent (100%) cannot be
accomplished, the Seller will endeavor to have such items available
at its facilities for immediate supply, in case of an AOG.
The size of each block of Aircraft referred to in the schedule above will
be defined at the Pre-Provisioning Conference and the Material will be
delivered in sequence.
2.7.3 [...***...]
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2.7.4 The Buyers may cancel or modify Initial Provisioning orders placed with
the Seller with no cancellation charge as follows:
(a) "Long Lead-Time Material" (lead time exceeding [...***...], not
later than [...***...] before scheduled delivery of said Material.
(b) Normal lead time Material, not later than [...***...] before
scheduled delivery of said Material, provided however, that for
Material that has a lead time of [...***...] or less, the published
lead time for the Buyers' right to cancel or modify orders will be
equal to the published lead time for such Material plus [...***...].
(c) Buyers-specific Material and Material described in Paragraphs 1.1(b)
through 1.1(f), not later than the quoted lead time before scheduled
delivery of said Material.
2.7.5 Should the Buyers cancel or modify any orders for Material outside the
time limits defined above in Paragraph 2.7.4, the Seller will have no
liability for the cancellation or modification, and the Buyers will
reimburse the Seller for any direct cost incurred in connection therewith.
2.7.6 Except as otherwise set forth herein, all transportation costs for the
return of Material under this Paragraph 2, including any insurance and
customs duties applicable or other related expenditures, will be borne by
the Buyers.
3. STORES
3.1 ANACS Spares Center
The Seller has established and will maintain or cause to be maintained, as
long as at least five (5) aircraft of the type of the Aircraft are
operated by [...***...] airlines in commercial air transport service of
which at least one (1) is operated by the Buyers (the "US Term"), a US
store located near Dulles International Airport, Washington, DC, known as
the ANACS Spares Center - Washington ("ANACS Spares Center"). The ANACS
Spares Center will be operated twenty-four (24) hours/day, seven (7)
days/week, all year for the handling of AOG and critical orders for Seller
Parts. [...***...]
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[...***...]
3.2 Material Support Center, Germany
The Manufacturer has established and will maintain or cause to be
maintained during the Term a store of Seller Parts at MSC. MSC will be
operated twenty-four (24) hours per day, seven (7) days per week, twelve
months a year.
3.3 Other Points of Shipment
The Seller reserves the right to effect deliveries from distribution
centers other than the ANACS Spares Center or MSC and from any of the
production facilities of the Associated Contractors.
4. DELIVERY
4.1 General
The Buyers' purchase orders will be administered in accordance with ATA
Specification 2000.
The provisions of Paragraph 4.2 of this Letter Agreement do not apply to
Initial Provisioning Data or Material as described in Paragraph 2 of this
Letter Agreement.
4.2 Lead Times
4.2.1 In general, the lead times are (and, unless otherwise agreed, will at all
times be) in accordance with the definition in the "World Airline and
Suppliers Guide" (latest edition).
4.2.2 Material will be dispatched within the lead times quoted in the published
Seller's price catalog for Material described in Paragraph 1.1(a), and
within the Supplier's or supplier's lead time augmented by the Seller's
own order and delivery processing time (such in-house processing time not
to exceed fifteen (15) days) for Material described in Paragraphs 1.1(b)
through 1.1(d). The Seller will endeavor to improve its lead times and
neither the Seller, the Manufacturer nor any of their Affiliates will
discriminate against the Buyers in delivery processing time.
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4.2.3 Expedite Service
The Seller operates a twenty-four (24) hour-a-day, seven (7) day-a-week
expedite service to supply the relevant Seller Parts available in the
Seller's stock, workshops and assembly line, including high-cost/long-
lead-time items, to the international airport nearest the location of such
items (the "Expedite Service").
The Expedite Service is operated in accordance with the "World Airlines
and Suppliers Guide." Accordingly, the Seller will notify the Buyer of the
action taken to effect the Expedite Service as follows:
(a) four (4) hours after receipt of an AOG order,
(b) twenty-four (24) hours after receipt of a critical order (imminent
AOG or work stoppage),
(c) five (5) days after receipt of an expedite order from the Buyers
(nil stock at the Buyers' for no-go items).
The Seller and its subcontractors will deliver Seller Parts requested on
expedite basis against normal orders previously placed by the Buyers or
upon requests by telephone or facsimile by the Buyers' representatives,
such requests to be confirmed by the Buyers' subsequent order for such
Seller Parts within a reasonable time.
4.3 Delivery Status
The Seller agrees to report to the Buyers the status of supplies against
orders on a monthly basis or on a mutually agreed timeframe.
4.4 Excusable Delay
Clause 10.1 of the Agreement will apply to the Material support as defined
in Paragraph 1 of this Letter Agreement.
4.5 Shortages, Overshipments, Nonconformance in Orders
4.5.1 Within thirty (30) days after receipt of Material delivered pursuant to a
purchase order, the Buyers will advise the Seller of any alleged shortages
or overshipments with respect to such purchase order and of all claimed
nonconformance to specification of parts in such order.
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In the event that the Buyers have not reported such alleged shortages,
overshipments or nonconformance within such period, the Buyers will be
deemed to have accepted the deliveries unless, in the case of shortages,
the Buyers can prove within a reasonable period of time that it did not
receive the Material.
4.5.2 In the event that the Buyers report over-shipments or nonconformance to
the specifications within the period specified in Paragraph 4.5.1, the
Seller will, if such report is accepted, either replace the Material
concerned or credit the Buyers for Material paid for but returned to the
Seller. In such case, transportation charges will be borne by the Seller.
The Buyers will endeavor to minimize such costs.
4.6 [...***...]
4.7 [...***...]
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4.8 Cessation of Deliveries
The Seller reserves the right to stop or otherwise suspend deliveries if
the Buyers fail to meet its obligations under Paragraph 6.
5. PRICE
5.1 The Material prices will be:
5.1.1 [...***...]
5.1.2 [...***...]
5.2 Validity of Prices
5.2.1 The Material prices are the Seller's published prices in effect on the
date of receipt of the purchase order (subject to reasonable quantities
and delivery time) and will be expressed in US dollars. Payment will be
made by the Buyers to the Seller in US dollars as set forth below in
Paragraph 6.1.
5.2.2 Prices of Seller Parts will be in accordance with the then current ANAC's
Spare Parts Price List. Prices will be firm for each calendar year, except
that the Seller reserves the right to revise the prices of Seller Parts
during the course of the calendar year in the following cases:
- significant revision in manufacturing costs,
- significant revision in Manufacturer's purchase price of materials
(including significant variation of exchange rates),
- significant error in estimation of expression of any price.
[...***...]
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5.2.3 [...***...]
5.2.4 The Seller warrants that, should the Buyers purchase from the Seller one
hundred percent (100%) of the recommended Initial Provisioning of Material
identified in Paragraphs 1.1(b) through 1.1(d), above, the average
handling charge on the total package will not exceed fifteen percent
(15%). This average handling charge will be increased to eighteen percent
(18%) on any orders placed less than six (6) months prior to delivery of
the first Aircraft.
6. PAYMENT PROCEDURES AND CONDITIONS
6.1 Currency
Payment will be made in US dollars.
6.2 Time and Means of Payment
Payment will be made by transfer of immediately available funds from the
Buyers to the Seller within thirty (30) days from the date of invoice.
[...***...]
6.3 Bank Accounts
The Buyers will make all payments hereunder in full without setoff,
counterclaim, deduction or withholding of any kind to the accounts listed
below, unless otherwise directed by the Seller:
(a) For wire transfer, in favor of Airbus North America Customer
Services, Inc.:
[...***...]
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(b) For direct deposit (lockbox), in favor of Airbus North America
Customer Services, Inc.:
Airbus North America Customer Services, Inc.:
PO Box 8500
Lock Box No. 4555
Philadelphia, PA 19178-4555
6.4 Taxes
All payments due the Seller hereunder will be made in full without setoff
or counterclaim and without deduction or withholding of any kind.
Consequently, the Buyers will assure that the sums received by the Seller
under this Letter Agreement are 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, dues or charges of
whatever nature except that if the Buyers are compelled by law to make any
such deduction or withholding the Buyers will pay such additional amounts
as may be necessary in order 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.
6.5 If any payment due the Seller is not received in accordance with the time
period provided in Paragraph 6.2, the Seller will have the right to claim
from the Buyers and the Buyers will promptly pay to the Seller interest on
the unpaid amount at an annual rate equal to [...***...] per month to be
calculated from (and including) the due date to (but excluding) the date
payment is received by the Seller, on the basis of a 360-day year and
actual number of days elapsed. The Seller's claim to such interest will
not prejudice any other rights the Seller may have under this Letter
Agreement or applicable law.
7. TITLE
Title to any Material purchased under this Letter Agreement will remain
with the Seller until full payment of the invoices therefore and any
interest thereon has been received by the Seller.
The Buyers will undertake that Material to which title has not passed to
the Buyers will be kept free from any lien, security interest mortgage or
other charge or claim in favor of any third party.
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8. PACKAGING
All material will be packaged in accordance with ATA 300 specification,
Category III for consumable/expendable Material and Category II for
rotables. Category I containers will be used if requested by the Buyers
and the difference between Category I and Category II packaging costs will
be paid by the Buyers together with payment for the respective Material.
9. DATA RETRIEVAL
The Buyers undertake to provide periodically to the Seller, as the Seller
may reasonably request, during the Term, a quantitative list of the parts
used for maintenance and overhaul of the Aircraft. The range and contents
of this list will be established by mutual agreement between the Seller
and the Buyers.
10. BUY-BACK
10.1 Buy-Back of Obsolete Material
The Seller agrees to buy back unused Seller Parts that may become obsolete
for the Buyers' fleet [...***...] as a result of mandatory modifications
required by the Buyers' or Seller's Aviation Authorities, subject to the
following:
(a) the Seller Parts involved will be those which the Seller directs the
Buyers to scrap or dispose of and which cannot be reworked or
repaired to satisfy the revised standard;
(b) the Seller will grant the Buyers a credit equal to the purchase
price paid by the Buyers for any such obsolete parts, such credit
will not exceed the value of the provisioning quantities recommended
by the Seller in the Initial Provisioning recommendation as mutually
agreed upon at the Initial Provisioning Conference;
(c) the Seller will use its reasonable efforts to obtain for the Buyers
the same protection from Suppliers and will promptly assist the
Buyers if so requested by the Buyers.
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10.2 Buy-Back of Surplus Material
10.2.1 The Seller agrees that at any time after one (1) year and within three
(3) years after delivery of the first Aircraft to the Buyers, Buyers
will have the right to return to the Seller, [...***...], unused
and undamaged Material described in Paragraphs 1.1(a) and 1.1(b)
originally purchased from the Seller under the terms hereof, provided (i)
that the selected protection level does not exceed ninety-six percent
(96%) with a turnaround time of forty-five (45) days, (ii) that said
Material does not exceed the provisioning quantities recommended by the
Seller in the Initial Provisioning recommendations, does not have a
limited shelf life nor contain any shelf-life limited components with
less than [...***...] of their shelf life remaining when
returned to the Seller, and (iii) that the Material is returned with the
Seller's original documentation and any such documentation (including
tags, certificates) required to identify, substantiate the condition of
and enable the resale of such Material.
10.2.2 The Seller's agreement in writing is necessary before any Material in
excess of the Seller's recommendation may be considered for buy-back.
10.2.3 It is expressly understood and agreed that the rights granted to the
Buyers under this Paragraph 10.2 will not apply to Material that may
become obsolete at any time or for any reason other than as set forth in
Paragraph 10.1.
10.2.4 [...***...]
10.3 Except as otherwise set forth herein, all transportation costs for the
return of surplus Material under this Paragraph 10, including any
applicable insurance and customs duties or other related expenditures,
will be borne by the Seller.
10.4 The Seller's obligation to repurchase surplus and obsolete Material
depends upon the Buyers' demonstration, by the Buyers' compliance with
the requirements set forth in Paragraph 9 of this Letter Agreement, that
such Material exceeds the Initial Provisioning requirements.
11.1 WARRANTIES ON SELLER PARTS
The Seller represents and warrants that the Manufacturer has provided to
the Seller the following Warranty, Supplier Warranties and Interface
Commitment with respect to Seller Parts, that are reproduced below
between the words QUOTE and
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UNQUOTE and are 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
"Buyers" under the said Warranty, Supplier Warranties and Interface
Commitment, and the Seller subrogates the Buyers to all such rights and
obligations in respect of the Seller Parts. 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 the Buyers.
QUOTE
11.1 WARRANTY
11.1.1 Nature of Warranty
Subject to the limitations and conditions hereinafter provided, and
except as provided in Paragraph 11.1.2, the Seller warrants to the Buyers
that each Seller Part will at the time of Delivery to the Buyer 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)
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
those portions of the Specification that are expressly stated in
the Specification to be estimates or approximations or design
aims.
11.1.2 [...***...]
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11.1.3 Exceptions
The warranties set forth in Paragraph 11.1.1 will not apply to Buyer
Furnished Equipment, Propulsion Systems, or to any component, accessory,
equipment or part purchased by the Buyers that is not a Seller Part,
provided, however, that 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 of such items will constitute a defect in
design for the purposes of this Paragraph 11.1 and be covered by the
warranty set forth in Paragraph 11.1.1(iii).
11.1.4 Warranty Period
The warranties described in Paragraphs 11.1.1 will be limited to those
defects that become apparent within [...***...] after delivery of the
Seller Part (the "SELLER PART WARRANTY PERIOD").
11.1.5 Buyer's Remedy and Seller's Obligation
The Buyers' remedy and the Seller's obligation and liability under
Paragraph 11.1 are limited to, at the Seller's expense, the repair,
replacement or correction of, or the supply of modification kits
rectifying the defect to any defective Warranted Part, [...***...].
[...***...]
The provisions of Subclauses 12.1.6, 12.1.7, 12.1.8 and 12.1.9 of the
Agreement will, as applicable, also apply to this Paragraph 11.
11.2 EXCLUSIVITY OF WARRANTIES
THIS PARAGRAPH 11 (INCLUDING ITS SUBPARTS) SETS FORTH THE EXCLUSIVE
WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE
SELLER, AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE BUYERS, WHETHER UNDER
THIS LETTER AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR
NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY SELLER PART DELIVERED BY THE
SELLER UNDER THIS AGREEMENT.
THE BUYERS RECOGNIZE THAT THE RIGHTS, WARRANTIES AND
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REMEDIES IN THIS PARAGRAPH 11 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE
BUYER FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN THE
SELLER PARTS SUPPLIED UNDER THIS LETTER AGREEMENT. THE BUYERS HEREBY
WAIVE, RELEASE AND RENOUNCE ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES
AND LIABILITIES OF THE SELLER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES
OF THE BUYERS 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 SELLER PART DELIVERED BY THE SELLER
UNDER THIS LETTER 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:
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(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, OR PART
PROVIDED UNDER THE AGREEMENT DUE TO A DEFECT, NONCONFORMITY
OR OTHER PROBLEM IN ANY SELLER PART;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART DUE TO A DEFECT, NONCONFORMITY
OR OTHER PROBLEM IN ANY SELLER PART;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES PROVIDED BY THIS LETTER 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 PARAGRAPH 11 SHOULD
FOR ANY REASON BE HELD UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE
REMAINDER OF THIS PARAGRAPH 11 WILL REMAIN IN FULL FORCE AND EFFECT.
FOR THE PURPOSE OF THIS PARAGRAPH 11.2, "SELLER" WILL BE UNDERSTOOD TO
INCLUDE THE SELLER, ITS AFFILIATES, SUPPLIERS AND ASSOCIATED CONTRACTORS.
[...***...]
11.3 DUPLICATE REMEDIES
The remedies provided to the Buyers under Paragraph 11 as to any part
thereof are mutually exclusive and not cumulative. The Buyers will be
entitled to the remedy that provides the maximum benefit to it, as the
Buyer may elect, pursuant to the terms and conditions of this Paragraph
11 for any such particular defect for which remedies are provided under
this Paragraph 11, provided, however, that the Buyers will not be
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entitled to elect a remedy under more than one part of this Paragraph 11
for the same defect. [...***...]
UNQUOTE
In consideration of the foregoing assignment and subrogation by the
Seller in favor of the Buyers in respect of the Seller's rights against
and obligations to the Manufacturer under the provisions quoted above,
the Buyers hereby accepts such assignment and subrogation and agrees to
be bound by all of the terms, conditions and limitations therein
contained.
11.4 NEGOTIATED AGREEMENT
The Buyers and Seller agree that this Paragraph 11 has been the subject
of discussion and negotiation and is fully understood by the parties, and
that the price of the Aircraft and the other mutual agreements of the
parties set forth in the Agreement were arrived at in consideration of,
inter alia, the Exclusivity of Warranties and General Limitations of
Liability provisions and Duplicate Remedies provisions set forth in this
Paragraph 11.
12. LEASING OF SPARE PARTS
12.1 Applicable Terms
The terms and conditions of this Paragraph 12 will apply to the Lease of
Seller Parts listed in Appendix "A" to this Paragraph 12 ("Leased Parts")
and will form a part of each lease of any Leased Part by the Buyers from
the Seller after the date hereof. Except for the description of the
Leased Part, the Lease Term, the Leased Part delivery and return
locations and the Lease Charges (defined below in Paragraph 12.4), all
other terms and conditions appearing on any order form or other document
pertaining to Leased Parts will be deemed inapplicable, and in lieu
thereof the terms and conditions of this Paragraph 12 will prevail. For
purposes of this Paragraph 12, the term "Lessor" refers to the Seller and
the term "Lessees" refers to the Buyers. Parts not included in Appendix
"A" to this Paragraph 12 may be supplied under a separate lease agreement
between the Seller and the Buyers.
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12.2 Lease Procedure: Spare Parts Leased
At the Lessees' request by telephone (to be confirmed promptly in
writing), facsimile, letter or other written instrument, the Lessor will
lease Leased Parts, which will be made available in accordance with
Paragraph 4.2.3, to the Lessees as substitutes for parts withdrawn from
an Aircraft for repair or overhaul. Each lease of Leased Parts will be
evidenced by a lease document ("Lease") issued by the Lessor to the
Lessees no later than seven (7) business days after delivery of the
Leased Part.
12.3 Lease Term: Return
The term of the lease ("Lease Term") will commence on the date of
dispatch of the Leased Part to the Lessees or its agent at the Lessor's
facility and will end on the date of receipt at the Lessor's facility of
the Leased Part or in a serviceable condition. The Lease Term will not
exceed thirty (30) days after such date of dispatch, unless extended by
written agreement between Lessor and Lessees within such thirty (30)-day
period (such extension not to exceed an additional thirty (30) days).
Notwithstanding the foregoing, the Lease Term will end in the event, and
upon the date, of exercise of the Lessees' option to either purchase or
exchange the Leased Part, as provided herein.
12.4 Lease Charges and Taxes
The Lessees will pay the Lessor (a) a daily rental charge for the Lease
Term in respect of each Leased Part equal to
one-three-hundred-sixty-fifth (1/365) of the Catalog Price of such Leased
Part, as set forth in the Seller's Spare Parts Price List in effect on
the date of commencement of the Lease Term, (b) any reasonable additional
costs which may be incurred by the Lessor as a direct result of such
Lease, such as inspection, test, repair, overhaul and repackaging costs
as required to place the Leased Part in satisfactory condition for lease
to a subsequent customer, (c) all transportation and insurance charges
and (d) any taxes, charges or customs duties imposed upon the Lessor or
its property as a result of the lease, sale, delivery, storage or
transfer of any Leased Part (the "Lease Charges"). All payments due
hereunder will be made in accordance with Paragraph 6.
In the event that the Leased Part has not been returned to the Lessor's
designated facilities by the last day of the Lease Term, the Lessor will
be entitled, in addition to any other remedy it may have at law or under
this Paragraph 12, to charge to the Lessees, and the Lessees will pay,
all of the charges referred to in this Paragraph 12.4 accruing for each
day after the end of the Lease Term and for as long as such Leased Part
is not returned to the Lessor and as though the Lease Term were extended
to the
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period of such delay.
Should the Lessees fail to return the Leased Part of the Lessor at the
end of the lease Term, such failure will be deemed to be an election by
the Lessees to purchase the Leased Part and the Lessees will pay the
price set forth in Paragraph 12.8.
12.5 Title
Title to each Leased Part will remain with the Lessor at all times unless
the Lessees exercises its option to purchase it in accordance with
Paragraph 12.8 of this Letter Agreement, in which case title will pass to
the Lessees in accordance with Paragraph 7 of this Letter Agreement.
12.6 Risk of Loss
Except for normal wear and tear, each Leased Part will be returned to the
Lessor in the same condition as when delivered to the Lessees. However,
the Lessees will not without the Lessors' prior written consent repair,
modify or alter any Leased Part. Risk of loss or damage to each Leased
Part will remain with the Lessees until such Leased Part is redelivered
to the Lessor at the return location specified in the applicable Lease.
If a Leased Part is lost or damaged beyond repair, the Lessees will be
deemed to have exercised its option to purchase the part in accordance
with Paragraph 12.8, as of the date of such loss or damage.
12.7 Record of Flight Hours
All flight hours accumulated by the Lessees on each Leased Part during
the Lease Term will be documented by the Lessees. Records will be
delivered to the Lessor upon return of such Leased Part to the Lessor
include all documentation pertinent to inspection, maintenance and/or
rework of the Leased Part and evidence of incidents such as hard landings
of aircraft on which such Leased Part was installed from time to time
during the Lease term, abnormalities of operation and corrective action
taken by the Lessees as a result of such incidents.
12.8 Option to Purchase
12.8.1 Option to Purchase
The Lessees may at its option, exercisable by written notice given to the
Lessor, elect during or at the end of the Lease Term to purchase each
Leased Part, in which case the then current purchase price for such
Leased Part as set forth in the Seller's Spare
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Parts Price List will be paid by the Lessees to the Lessor. The
immediately preceding sentence will apply to new Leased Parts only. In
the event the Leased Part is used, [...***...] of the then current
purchase price for such Leased Part will be paid by the Lessees to the
Lessor. Such option will be contingent upon the Lessees' providing the
Lessor with evidence satisfactory to the Lessor that the original part
fitted to the Aircraft is beyond economical repair. [...***...]
12.8.2 In the event of purchase, the Leased Part will be warranted in accordance
with Paragraph 11 as though such Leased Part were a Seller Part;
provided, however, that (i) the Seller will prorate the full Seller Part
Warranty Period granted to the Buyer according to the actual usage of
such Leased Part and (ii) in no event will such Seller Part Warranty
Period be less than six (6) months from the date of purchase of such
Leased Part. A warranty granted under this Paragraph 12.8.2 will be in
substitution for the warranty granted under Paragraph 12.9 at the
commencement of the Lease Term.
12.9 Warranties on Leased Parts
The Lessor, in its capacity as "Lessees," under its arrangements with the
Manufacturer, in its capacity as "Lessor," has negotiated and obtained
the following warranties from the Manufacturer with respect to the Leased
Parts, subject to the terms, conditions, limitations and restrictions all
as hereinafter set out. The Lessor hereby assigns to the Lessees, and the
Lessee hereby accepts, all of the rights and obligations of the Lessor in
its capacity as "Lessees" as aforesaid under the said warranties and the
Lessor subrogates the Lessee as to all such rights and obligations in
respect of Leased Parts during the Lease Term with respect thereto. The
Lessor hereby warrants to the Lessees that it has all requisite authority
to make the foregoing assignment and effect the foregoing subrogation to
and in favor of the Lessees and that it will not enter into any amendment
of the provisions so assigned or subrogated without the prior written
consent of the Lessees. Capitalized terms utilized in the following
provisions have the meanings assigned thereto in this Letter Agreement,
except that the term "Lessor" refers to the Manufacturer and the term
"Lessees" refers to the Lessor.
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QUOTE
12.9.1 The Lessor warrants that each Leased Part will at the time of delivery
thereof:
(a) conform to the applicable specification for such part,
(b) be free from defects in material,
(c) be free from defects in workmanship, including without limitation
processes of manufacture, and
(d) be free from defects in design (including, without limitation,
selection of materials) having regard to the state of the art at
the date of such design.
12.9.2 Survival of Warranties
With respect to each Leased Part, the warranty set forth above in
Paragraph 12.9.1(a) will not survive delivery, and the warranties set
forth above in Paragraphs 12.9.1(b), 12.9.1(c) and 12.9.1 (d) will
survive delivery only upon the conditions and subject to the limitations
set forth below in Paragraphs 12.9.3 through 12.9.8.
12.9.3 Warranty and Notice Periods
The Lessees' remedy and the Lessor's obligation and liability under this
Paragraph 12.9, with respect to each defect, are conditioned upon (i) the
defect having become apparent to the Lessees within the Lease Term and
(ii) the Lessor's warranty administrator having received written notice
of the defect from the Lessees within [...***...] after the defect
became apparent to the Lessees.
12.9.4 Return and Proof
The Lessees' remedy and the Lessor's obligation and liability under this
Paragraph 12.9, with respect to each defect, are also conditioned upon:
(a) the return by the Lessees as soon as practicable to the return
location specified in the applicable Lease, or such other place as
may be mutually agreeable, of the Leased Part claimed to be
defective, and
(b) the submission by the Lessees to the Lessor's warranty
administrator of reasonable proof that the claimed defect is due
to a matter embraced within
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the Lessor's warranty under this Paragraph 12.9 and that such
defect did not result from any act or omission of the Lessees,
including but not limited to any failure to operate or maintain
the Leased Part claimed to be defective or the Aircraft in which
it was installed in accordance with applicable governmental
regulations and the Lessor's applicable written instructions.
12.9.5 Limitation of Warranty
The Lessees' remedy and the Lessor's obligation and liability under
this Paragraph 12.9 with respect to each defect are limited to the
repair of such defect in the Leased Part in which the defect appears,
or, as mutually agreed, to the replacement of such Leased Part with a
similar part free from defect.
Any replacement part furnished under this Paragraph 12.9.5 will for the
purposes of this Letter Agreement be deemed to be the Leased Part so
replaced.
12.9.6 Suspension and Transportation Costs
12.9.6.1 If a Leased Part is found to be defective and is covered by this
warranty, the Lease Term and the Lessees' obligation to pay rental
charges as provided in Paragraph 12.4(a) of this Letter Agreement will
be suspended from the date on which the Lessees notify the Lessor of
such defect until the date on which the Lessor has repaired, corrected
or replaced the defective Leased Part, provided, however, that the
Lessees have withdrawn such defective Leased Part from use, promptly
after giving such notice to the Lessor. If the defective Leased Part is
replaced, such replacement will be deemed to no longer be a Leased Part
under the Lease as of the date on which such part was received by the
Lessor at the return location specified in the applicable Lease.
If a Leased Part is found to be defective on first use by the Lessees
and is covered by this warranty, rental charges as provided in
Paragraph 12.4(a) will not accrue and will not be payable by the
Lessees until the date on which the Lessor has repaired, corrected or
replaced the defective Leased Part.
12.9.6.2 All transportation and insurance costs associated with the return of
the defective Leased Part to the Lessor and the return of the repaired,
corrected or replacement part to the Lessees will be borne by the
Lessor.
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12.9.7 Wear and Tear
Normal wear and tear and the need for regular maintenance and overhaul
will not constitute a defect or nonconformance under this Paragraph
12.9.
12.9.8. EXCLUSIVITY OF WARRANTIES
THIS PARAGRAPH 12.9.8 (INCLUDING ITS SUBPARTS) SETS FORTH THE EXCLUSIVE
WARRANTIES, EXCLUSIVE LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE
SELLERS, AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE BUYER, WHETHER
UNDER THIS LETTER AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR
NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY LEASED PART.
THE BUYERS RECOGNIZE THAT THE RIGHTS, WARRANTIES AND REMEDIES IN THIS
PARAGRAPH 12.9.8 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE BUYERS FROM
ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN THE LEASED PARTS.
THE BUYERS HEREBY WAIVE, RELEASE AND RENOUNCE ALL OTHER WARRANTIES,
OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL OTHER
RIGHTS, CLAIMS AND REMEDIES OF THE BUYERS 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 LEASED PART, 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
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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, OR
LEASED;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT OR
LEASED PART;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES PROVIDED BY THIS LETTER 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 PARAGRAPH
12.9.8 SHOULD FOR ANY REASON BE HELD UNLAWFUL, OR OTHERWISE
UNENFORCEABLE, THE REMAINDER OF THIS PARAGRAPH 12.9.8 WILL REMAIN IN
FULL FORCE AND EFFECT.
FOR THE PURPOSE OF THIS PARAGRAPH 12.9.8, "SELLER" WILL BE UNDERSTOOD
TO INCLUDE THE SELLER, ITS AFFILIATES, SUPPLIERS AND ASSOCIATED
CONTRACTORS.
[...***...]
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12.9.9 DUPLICATE REMEDIES
The remedies provided to the Buyers under Paragraph 12 as to any part
thereof are mutually exclusive and not cumulative. The Buyers will be
entitled to the remedy that provides the maximum benefit to it, as the
Buyers may elect, pursuant to the terms and conditions of this Paragraph
12 for any such particular defect for which remedies are provided under
this Paragraph 12, provided, however, that the Buyers will not be
entitled to elect a remedy under more than one part of this Paragraph 12
for the same defect. [...***...]
UNQUOTE
In consideration of the assignment and subrogation by the Seller under
this Paragraph 12 in favor of the Buyers in respect of the Seller's
rights against and obligations to the Manufacturer under the provisions
quoted above, the Buyers hereby accepts such assignment and subrogation
and agrees to be bound by all of the terms, conditions and limitations
therein contained.
12.10. NEGOTIATED AGREEMENT
The Buyers and Seller agree that this Paragraph 12 has been the subject
of discussion and negotiation and is fully understood by the parties, and
that the price of the Aircraft and the other mutual agreements of the
parties set forth in the Agreement were arrived at in consideration of,
inter alia, the Exclusivity of Warranties and General Limitations of
Liability provisions and Duplicate Remedies provisions set forth in
Paragraph 12.
13. [...***...]
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14. TERMINATION
Any termination under Paragraph 10, 11 or 21 of the Agreement or under
the Letter Agreements thereto will discharge all obligations and
liabilities of the parties hereunder with respect to undelivered
Material, services, data or other items to be purchased hereunder that
are applicable to those Aircraft as to which the Agreement has been
terminated, provided that the Seller will nevertheless repurchase new and
unused Material in excess of the Buyers' requirements due to an Aircraft
cancellation pursuant to Paragraph 10 or 11 of the Agreement, as provided
in Paragraph 10.2. In the case of any termination of this Letter
Agreement in connection with a termination under Clause 21 of the
Agreement, the Seller will not have any obligation to repurchase Material
delivered in respect of any undelivered Aircraft and the Seller's rights
to payment for services or spare parts actually delivered to the Buyers
or, in the case of spare parts, the return thereof in new and unused
condition, in their original packaging with all applicable documentation
will not be limited by the liquidated damages provision included in
Clause 21 of the Agreement.
15. MISCELLANEOUS
[...***...]
16. ASSIGNMENT
This Letter Agreement may be assigned in accordance with Clause 20 of the
Agreement. This Letter Agreement is otherwise not assignable.
17. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
***Confidential Treatment Requested
LA1-32
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
IN WITNESS WHEREOF, these presents were entered into as of the day and year
first above written.
Very truly yours,
AVSA, S.A.R.L.
By: __________________________
Its: _________________________
Accepted and Agreed
US AIRWAYS GROUP, INC.
By: _________________________
Its:
AMERICA WEST AIRLINES, INC.
By: _________________________
Its:
US AIRWAYS, INC.
By: _________________________
Its:
LA1-33
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
APPENDIX "A" TO PARAGRAPH 12
SELLER PARTS LEASING LIST
(Leased Parts)
AILERONS
AUXILIARY POWER UNIT (APU) DOORS
CARGO DOORS
PASSENGER DOORS
ELEVATORS
FLAPS
LANDING GEAR DOORS
RUDDER
TAIL CONE
WING SLATS
SPOILERS
AIRBRAKES
WING TIPS
[...***...]
***Confidential Treatment Requested
LA1-34
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
***CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 2
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: OTHER MATTERS
Ladies and Gentlemen,
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc. (the
"Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an Airbus A350
Purchase Agreement dated as of even date herewith (the "Agreement"), which
covers, among other things, the sale by the Seller and the purchase by the
Buyers of certain Aircraft, under the terms and conditions set forth in said
Agreement. The Buyers and the Seller have agreed to set forth in this Letter
Agreement No. 2 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. Technical and trade terms used but not defined herein
or in the Agreement will be defined as generally accepted in the airline and/or
aircraft manufacturing industries. The terms "herein," "hereof" and "hereunder"
and words of similar import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
LA2-1
AWE/USA - A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
1. [...***...]
***Confidential Treatment Requested
LA2-2
AWE/USA - A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
2. [...***...]
***Confidential Treatment Requested
LA2-3
AWE/USA - A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
3. ASSIGNMENT
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyer hereunder will not be assigned
or transferred in any manner without the prior written consent of the
Seller, and any attempted assignment or transfer in contravention of the
provisions of this Paragraph 3 will be void and of no force or effect.
4. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
LA2-4
AWE/USA - A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
IN WITNESS WHEREOF, these presents were entered into as of the day and
year first above written.
Very truly yours,
AVSA, S.A.R.L.
By: ______________________
Its:
Accepted and Agreed
US AIRWAYS GROUP, INC.
By: _________________________
Its:
AMERICA WEST AIRLINES, INC.
By: _________________________
Its:
US AIRWAYS, INC.
By: _________________________
Its:
LA2-5
AWE/USA - A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
*** CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 3
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: ADDITIONAL AIRCRAFT
Ladies and Gentlemen,
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc. (the
"Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an Airbus A350
Purchase Agreement dated as of the date hereof (the "Agreement"), which covers,
among other things, the sale by the Seller and the purchase by the Buyers of
certain Aircraft under the terms and conditions set forth in said Agreement. The
Buyers and the Seller have agreed to set forth in this Letter Agreement No. 3
(the "Letter Agreement") certain additional terms and conditions regarding the
sale of the Aircraft. Capitalized terms used herein and not otherwise defined in
this Letter Agreement will have the meanings assigned thereto in the Agreement.
Technical and trade terms used but not defined herein or in the Agreement will
be defined as generally accepted in the airline and/or aircraft manufacturing
industries. The terms "herein," "hereof" and "hereunder" and words of similar
import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
LA3-1
AWE/USA--A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
1. PURCHASE RIGHTS
1.1 The Seller hereby grants the Buyers, acting jointly, the right to purchase
up to [...***...] A350 aircraft, either as A350-800 aircraft or as
A350-900 aircraft (the "Additional Aircraft") in addition to the Aircraft.
The terms and conditions set out in the Agreement will apply to the
Additional Aircraft, as applicable, [...***...].
1.2 Upon any written request made by the Buyers to the Seller specifying a
number of Additional Aircraft that the Buyers wish to purchase, the last
such request to be made not later than [...***...], the Seller will
promptly provide the Buyers with a proposal for scheduled delivery months
to be applicable to such Additional Aircraft. Such scheduled delivery
months will be held for the Buyers during the [...***...] period
following the date of the Seller's proposal. The Buyers may exercise their
right to purchase any such Additional Aircraft by written notice to the
Seller, executed by each Buyer, and by making the Initial Payment and any
other then due Predelivery Payments applicable under Letter Agreement No.
11, in respect of such Additional Aircraft, which Additional Aircraft
shall then become firmly ordered Aircraft with immediate effect. The
parties will thereafter conclude as soon as possible definitive
documentation to amend the Agreement accordingly.
1.3 [...***...]
2. ASSIGNMENT
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyers hereunder will not be
assigned or transferred in any manner without the prior written consent of
the Seller, and any attempted assignment or transfer in contravention of
the provisions of this Paragraph 2 will be void and of no force or effect.
3. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
LA3-2
***Confidential Treatment Requested
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
IN WITNESS WHEREOF, these presents were entered into as of the day and
year first above written.
Very truly yours,
AVSA, S.A.R.L.
By: _________________________
Its:
Accepted and Agreed:
US AIRWAYS GROUP, INC.
By: _________________________
Its:
AMERICA WEST AIRLINES, INC.
By: _________________________
Its:
US AIRWAYS, INC.
By: _________________________
Its:
LA3-3
AWE/USA--A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
*** CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 4
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: CONVERSION RIGHTS
Ladies and Gentlemen,
US Airways, Inc., America West Airlines, Inc., US Airways Group, Inc. (the
"Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an Airbus A350
Purchase Agreement dated as of even date herewith (the "Agreement"), which
covers, among other things, the sale by the Seller and the purchase by the
Buyers of certain Aircraft, under the terms and conditions set forth in said
Agreement. The Buyers and the Seller have agreed to set forth in this Letter
Agreement No. 4 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. Technical and trade items used but not defined herein
or in the Agreement will be defined as generally accepted in the airline and/or
aircraft manufacturing industries. The terms "herein," "hereof" and "hereunder"
and words of similar import refer to this Letter Agreement.
The parties agree that this Letter Agreement will constitute an integral,
nonseverable part of the Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
AWE/USA--A350 LA4-1
PRIVILEGED AND CONFIDENTIAL
<PAGE>
1. [...***...]
2. [...***...]
***Confidential Treatment Requested
AWE/USA--A350 LA4-2
PRIVILEGED AND CONFIDENTIAL
<PAGE>
3. ASSIGNMENT
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyers hereunder will not be
assigned or transferred in any manner without the prior written consent of
the Seller, and any attempted assignment or transfer in contravention of
the provisions of this Paragraph 3 will be void and of no force or effect.
4. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
AWE/USA--A350 LA4-3
PRIVILEGED AND CONFIDENTIAL
<PAGE>
IN WITNESS WHEREOF, these presents were entered into as of the day and
year first above written.
Very truly yours,
AVSA, S.A.R.L.
By: _________________________
Its:
Accepted and Agreed
US AIRWAYS GROUP, INC.
By: _________________________
Its:
AMERICA WEST AIRLINES, INC.
By: _________________________
Its:
US AIRWAYS, INC.
By: _________________________
Its:
AWE/USA--A350 LA4-4
PRIVILEGED AND CONFIDENTIAL
<PAGE>
***CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 5
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: PURCHASE INCENTIVES
Ladies and Gentlemen,
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc. (the
"Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an Airbus A350
Purchase Agreement dated as of the date hereof (the "Agreement"), which covers,
among other things, the sale by the Seller and the purchase by the Buyers of
certain Aircraft, under the terms and conditions set forth in said Agreement.
The Buyers and the Seller have agreed to set forth in this Letter Agreement No.
5 (the "Letter Agreement") certain additional terms and conditions regarding the
sale of the Aircraft. Capitalized terms used herein and not otherwise defined in
this Letter Agreement will have the meanings assigned thereto in the Agreement.
Technical and trade terms used but not defined herein or in the Agreement will
be defined as generally accepted in the airline and/or aircraft manufacturing
industries. The terms "herein," "hereof" and "hereunder" and words of similar
import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
LA5-1
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
1. [...***...]
2. [...***...]
LA5-2
*** Confidential Treatment Requested
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
3. ASSIGNMENT
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyers hereunder will not be
assigned or transferred in any manner without the prior written consent of
the Seller, and any attempted assignment or transfer in contravention of
the provisions of this Paragraph 3 will be void and of no force or effect.
4. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
LA5-3
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
IN WITNESS WHEREOF, these presents were entered into as of the day and
year first above written.
Very truly yours,
AVSA, S.A.R.L.
By: ______________________________
Its:
Accepted and Agreed
US AIRWAYS GROUP, INC.
By: ______________________________
Its:
AMERICA WEST AIRLINES, INC.
By: ______________________________
Its:
US AIRWAYS, INC.
By: ______________________________
Its:
LA5-4
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
***CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 6
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: SPECIFICATION MATTERS
Ladies and Gentlemen,
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc. (the
"Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an Airbus A350
Purchase Agreement dated as of the date hereof (the "Agreement"), which covers,
among other things, the sale by the Seller and the purchase by the Buyers of
certain Aircraft, under the terms and conditions set forth in said Agreement.
The Buyer and the Seller have agreed to set forth in this Letter Agreement No. 6
(the "Letter Agreement") certain additional terms and conditions regarding the
sale of the Aircraft. Capitalized terms used herein and not otherwise defined in
this Letter Agreement will have the meanings assigned thereto in the Agreement.
Technical and trade terms used but not defined herein or in the Agreement will
be defined as generally accepted in the airline and/or aircraft manufacturing
industries. The terms "herein," "hereof" and "hereunder" and words of similar
import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
LA6-1
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
1. SPECIFICATION
Up to and including the date on which Issue 1 of the Standard
Specification is published (the "First Production Standard
Specification"), the Seller and the Buyers agree that the A350-800
Standard Specification and A350-900 Standard Specification of the A350
Aircraft will incorporate all development changes reflected in updated
versions of such standard specification from time to time. [...***...]
[...***...]
The Buyers will be invited by the Seller to attend all customer focus
group meetings ("CFGs") and program progress reviews ("PPRs") with respect
to the A350 aircraft from the date hereof. The Buyers may, during the CFGs
and/or the PPRs, make suggestions from time to time with respect to the
A350-800 Standard Specification or A350-900 Standard Specification as
applicable with respect to any changes contemplated by the Seller. The
Seller will make reasonable efforts to accommodate any such suggestions.
However, any and all changes to any standard specification will be at the
Seller's sole discretion.
2. PROPULSION SYSTEMS
2.1 [...***...]
***Confidential Treatment Requested
LA6-2
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
2.2 [...***...]
3. MTOW INCREASE
[...***...]
4. ASSIGNMENT
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyers hereunder will not be
assigned or transferred in any manner without the prior written consent of
the Seller, and any attempted assignment or transfer in contravention of
the provisions of this Paragraph 4 will be void and of no force or effect.
5. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
***Confidential Treatment Requested
LA6-3
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
IN WITNESS WHEREOF, these presents were entered into as of the day and
year first above written.
Very truly yours,
AVSA, S.A.R.L.
By: ______________________________
Its:
Accepted and Agreed
US AIRWAYS, INC.
By: ______________________________
Its:
AMERICA WEST AIRLINES, INC.
By: ______________________________
Its:
US AIRWAYS GROUP, INC.
By: ______________________________
Its:
LA6-4
AWE/USA-A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
***CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 7
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: PRODUCT SUPPORT
Ladies and Gentlemen,
US Airways, Inc., America West Airlines, Inc., US Airways Group, Inc. (the
"Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an Airbus A350
Purchase Agreement dated as of even date herewith (the "Agreement"), which
covers, among other things, the sale by the Seller and the purchase by the
Buyers of certain Aircraft, under the terms and conditions set forth in said
Agreement. The Buyers and the Seller have agreed to set forth in this Letter
Agreement No. 7 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. Technical and trade terms used but not defined herein
or in the Agreement will be defined as generally accepted in the airline and/or
aircraft manufacturing industries. The terms "herein," "hereof" and "hereunder"
and words of similar import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
LA7-1
AWE/USA--A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
1. TRAINING SUPPORT
1.1 [...***...]
1.2 [...***...]
1.3 [...***...]
2. TECHNICAL DATA AND SOFTWARE SERVICES
2.1 The first sentence of Clause 14.5 of the Agreement is superseded and
replaced by the following:
QUOTE
Revision service will be provided [...***...] for a period
of [...***...] after Delivery of the last Aircraft.
UNQUOTE
2.2 ELOGBOOK
The Buyers will be entitled to obtain the Airbus eLogbook under the
license conditions as set forth in Exhibit H to the Agreement. The
Airbus eLogbook tool allows the airline pilots to enter standardized
pilot reports. [...***...]
***Confidential Treatment Requested
LA7-2
AWE/USA--A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
[...***...]
2.3 ADOC Job Card Publisher
The Buyers will be entitled to one (1) license of the ADOC Job Card
Publisher. With this package, which is based on the ADOC Job Card
Publisher software module, the Buyers will be able to build their own
database from their SGML documentation (including in-house
modifications) using one (1) customized job card model developed by
Airbus and based on specifications of the content and structure of the
job cards provided by the Airline.
ADOC Job Card Publisher integrates with the Buyers' Maintenance
Information Systems. The Buyers are responsible to integrate the
Maintenance Information System with ADOC Job Card Publisher.
[...***...]
3. OPERATION SUPPORT
The Seller will provide to the Buyers the following software tools
during the [...***...] period preceding delivery of the first Aircraft
and revision service therefor [...***...], including:
(i) [...***...]
(ii) [...***...]
LA7-3
***Confidential Treatment Requested
AWE/USA--A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
(iii) [...***...]
(iv) [...***...]
[...***...]
4. [...***...]
4.1 [...***...]
QUOTE
[...***...]
UNQUOTE
4.2 [...***...]
QUOTE
[...***...]
UNQUOTE
LA7-4
***Confidential Treatment Requested
AWE/USA--A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
5. AIRCRAFT MAINTENANCE MANUAL LIMITS
The Seller endeavors to harmonize all relevant production limits with
the relevant limits specified in the Aircraft Maintenance Manual
provided to the Buyers pursuant to Clause 14 of the Agreement.
6. ETOPS SUPPORT
[...***...] The Seller will support the Buyers' efforts to obtain FAA
approval for ETOPS operation of the A350-800 Aircraft.
7. [...***...]
8. [...***...]
LA7-5
***Confidential Treatment Requested
AWE/USA--A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
QUOTE
[...***...]
UNQUOTE
9. AIRBUS ONLINE CONTENT MANAGEMENT
On Line Content Management enables the Buyers to access from the Airbus
on-line portal Airbus Technical Data (AMM, IPC, TSM, ASM, AWL, AWM, SRM,
NTM) in order to perform modifications to this Technical Data prior to
producing the AirN@v consultation database used by the Buyers'
operations.
Tasks regarding administration of the hardware and software will be
performed by the Seller. Modification of the Technical Data carried out
by the Buyers authors remains under the full responsibility of the
Buyers.
[...***...]
LA7-6
***Confidential Treatment Requested
AWE/USA--A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
10. [...***...]
11. ASSIGNMENT
Except as set forth in Clause 20.2 of the Agreement, this Letter
Agreement and the rights and obligations of the Buyers hereunder will
not be assigned or transferred in any manner without the prior written
consent of the Seller, and any attempted assignment or transfer in
contravention of the provisions of this Paragraph 11 will be void and of
no force or effect.
12. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
LA7-7
*** Confidential Treatment Requested
AWE/USA--A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
IN WITNESS WHEREOF, these presents were entered into as of the day and year
first above written.
Very truly yours,
AVSA, S.A.R.L.
By: __________________________
Its:
Accepted and Agreed
US AIRWAYS GROUP, INC.
By: _________________________
Its:
AMERICA WEST AIRLINES, INC.
By: _________________________
Its:
US AIRWAYS, INC.
By: _________________________
Its:
LA7-8
AWE/USA--A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
*** CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 8A
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: A350-800 with GEnx-1A72 PERFORMANCE GUARANTEES
Dear Ladies and Gentlemen:
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc. (the
"Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an Airbus A350
Purchase Agreement dated as of even date herewith (the "Agreement"), which
covers, among other things, the sale by the Seller and the purchase by the
Buyers of certain A350-800 Aircraft, under the terms and conditions set forth in
said Agreement. The Buyers and the Seller have agreed to set forth in this
Letter Agreement No. 8A (the "Letter Agreement") certain additional terms and
conditions regarding the sale of the A350-800 Aircraft. Capitalized terms used
herein and not otherwise defined in this Letter Agreement will have the meanings
assigned thereto in the Agreement. Technical and trade terms used but not
defined herein or in the Agreement will be defined as generally accepted in the
airline and/or aircraft manufacturing industries. The terms "herein," "hereof"
and "hereunder" and words of similar import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
LA 8A-1
AWE/USA - A350
PRIVILEGED AND CONFIDENTIAL
<PAGE>
The Seller represents and warrants that the Manufacturer has provided to
the Seller the performance, noise and weight guarantees (the "Guarantees")
that are reproduced below between the words QUOTE and UNQUOTE, subject to
the terms, conditions, limitations and restrictions set forth below. The
Seller hereby assigns to the Buyers, and the Buyers hereby accept, as to
each A350-800 Aircraft delivered to the Buyers under the Agreement, all of
the Seller's rights and obligations with respect to such A350-800 Aircraft
in its capacity as "Buyers" as aforesaid under the said Guarantees, and
the Seller subrogates the Buyers into all such rights and obligations in
respect of the A350-800 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 the Buyers.
QUOTE
1 AIRCRAFT CONFIGURATION
1.1 The Guarantees defined below are applicable to the A350-800 Aircraft
powered by General Electric GEnx-1A72 engines, as described in the
Standard Specification Ref. G.000.08000 Issue B dated 30th June 2005,
without taking into account any further changes thereto as provided in the
Agreement, herein after referred as "the Specification" without taking
into account any further changes thereto as provided in the Agreement.
2 GUARANTEED PERFORMANCE
2.1 Take-off Field Length
FAR take-off field length ("TOFL") at an Aircraft gross weight of 540,133
lb (245,000 kg) at the start of Take-Off Distance Available (TODA) at Sea
Level pressure altitude in ISA+15 degrees C conditions will be not more
than a guaranteed value of [...***...].
2.2 Second Segment Climb
The Aircraft will meet FAR 25 regulations for one engine inoperative climb
after take-off, undercarriage retracted, at a weight corresponding to the
stated weight at the start of ground run, at the altitude and temperature,
and in the configuration of flap angle and safety speed required to comply
with the performance guaranteed in paragraph 2.1 and 2.3.
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2.3 Take-off Weight
2.3.1 When operated under the following conditions (representative of FRA 25R)
Pressure altitude : 364 ft
Ambient temperature : 24 degrees C
Take-off run available : 13,123 ft
Take-off distance available : 13,123 ft
Accelerate-stop distance available : 13,123 ft
Slope : -0.26% (downhill)
Wind : Zero
Line-up allowance TOD : 80 ft
Line-up allowance ASD : 153 ft
Obstacles (Height/Distance above/from start of TODA): -28ft/13,488ft
-23ft/13,980ft
-21ft/14,236ft
59ft/17,388ft
60ft/17,598ft
61ft/17,795ft
62ft/18,035ft
65ft/18,848ft
67ft/19,918ft
76ft/23,402ft
the maximum permissible take-off weight at the start of Take-off Distance
Available will be not less than a guaranteed value of [...***...]
2.3.2 When operated under the following conditions (representative of PHL 27L)
Pressure altitude : 10 ft
Ambient temperature : 30 degrees C
Take-off run available : 10,506 ft
Take-off distance available : 10,506 ft
Accelerate-stop distance available : 10,506 ft
Slope : 0.11% (uphill)
Wind : Zero
Line-up allowance TOD : 80 ft
Line-up allowance ASD : 153 ft
Obstacles (Height/Distance above/from start of TODA): 33ft/11,312ft
38ft/12,036ft
the maximum permissible take-off weight at the start of Take-off Distance
Available will be
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not less than a guaranteed value of [...***...].
2.3.3 When operated under the following conditions (representative of PHX 26)
Pressure altitude : 1,135 ft
Take-off run available : 11,490 ft
Take-off distance available : 11,490 ft
Accelerate-stop distance available : 11,490 ft
Slope : -0.21% (downhill)
Wind : Zero
Line-up allowance TOD : 80 ft
Line-up allowance ASD : 153 ft
Obstacles (Height/Distance above/from start of TODA): -13ft/12,506ft
-5ft/12,852ft
36ft/13,792ft
42ft/14,510ft
195ft/22,434ft
the maximum permissible take-off weight at the start of Take-off Distance
Available will be not less than a guaranteed value of
Ambient temperature of 41 degrees C: [...***...]
Ambient temperature of 46 degrees C: [...***...]
2.3.4 When operated under the following conditions (representative of TLV 26)
Pressure altitude : 135 ft
Ambient temperature : 32 degrees C
Take-off run available : 11,998 ft
Take-off distance available : 12,392 ft
Accelerate-stop distance available : 12,293 ft
Slope : -0.32% (downhill)
Wind : Zero
Line-up allowance TOD : 80 ft
Line-up allowance ASD : 153 ft
Obstacles (Height/Distance above/from start of TODA) : none
the maximum permissible take-off weight at the start of Take-off Distance
Available will be not less than a guaranteed value of [...***...].
2.3.5 When operated under the following conditions (representative of NRT 34L)
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Pressure altitude : 139 ft
Ambient temperature : 29 degrees C
Take-off run available : 13,123 ft
Take-off distance available : 13,123 ft
Accelerate-stop distance available : 13,123 ft
Slope : -0.07% (downhill)
Wind : Zero
Line-up allowance TOD : 80 ft
Line-up allowance ASD : 153 ft
Obstacles (Height/Distance above/from start of TODA): -2ft/13,905ft
4ft/14,541ft
8ft/14,780ft
25ft/15,892ft
28ft/16,030ft
29ft/16,269ft
30ft/16,303ft
32ft/16,967ft
53ft/18,187ft
57ft/19,378ft
65ft/20,659ft
the maximum permissible take-off weight at the start of Take-off Distance
Available will be not less than a guaranteed value of [...***...].
2.4 Landing Field Length
FAR certified dry landing field length ("LFL") at an Aircraft gross weight
of 401,241 lb (182,000 kg) at Sea Level pressure altitude will not be more
than a guaranteed value of [...***...].
2.5 En-route One Engine Inoperative
The A350-800 Aircraft will meet the FAR regulations minimum en-route climb
one engine inoperative and the other operating at the maximum continuous
thrust with anti-icing off at an A350-800 Aircraft gross weight of 500,000
lb in the cruise configuration in ISA+10C conditions at a guaranteed
pressure altitude of not less than [...***...]
2.6 Approach Climb
2.6.1 The A350-800 Aircraft will meet FAR regulations approach climb gradient
one engine inoperative and the other operating at the maximum go-round
thrust with air conditioning on and anti-icing off at sea level pressure
altitude at an A350-800 Aircraft gross weight of 401,241
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lb at a temperature of not less than the guarantee value of [...***...].
2.6.2 The A350-800 Aircraft will meet FAR regulations approach climb gradient
one engine inoperative and the other operating at the maximum go-round
thrust with air conditioning on and anti-icing off at a pressure altitude
of 5,000 feet at an A350-800 Aircraft gross weight of 401,241 lb at a
temperature of not less than the guarantee value of [...***...] and a
nominal value of [...***...].
2.7 Specific Range
The nautical miles per pound of fuel at an A350-800 Aircraft gross weight
of 500,000 lb at a pressure altitude of 33,000 ft in ISA+10C conditions at
a true Mach number of 0.82 will not be less than a guaranteed value of
[...***...].
The nautical miles per pound of fuel at an A350-800 Aircraft gross weight
of 490,000 lb at a pressure altitude of 35,000 ft in ISA+10C conditions at
a true Mach number of 0.82 will not be less than a guaranteed value of
[...***...].
The nautical miles per pound of fuel at an A350-800 Aircraft gross weight
of 480,000 lb at a pressure altitude of 33,000 ft in ISA+10C conditions at
a true Mach number of 0.84 will not be less than a guaranteed value of
[...***...].
The nautical miles per pound of fuel at an A350-800 Aircraft gross weight
of 470,000 lb at a pressure altitude of 35,000 ft in ISA+10C conditions at
a true Mach number of 0.84 will not be less than a guaranteed value of
[...***...].
2.8 Initial Cruise Altitude
At an A350-800 gross weight of 527,000 lb (representing the estimated
weight at start of cruise following a take-off at sea level at Maximum
Take-off Weight) in ISA+10C conditions the pressure altitude for:
1. Level flight at a true Mach number of 0.82 using a thrust not
exceeding maximum cruise thrust
2. A rate of climb of not less than then 300 ft/min at a true
Mach number of 0.82 using a thrust not exceeding maximum climb
thrust
3. A buffet maneuver margin of not less than 0.3g at a true Mach
number of 0.82
will be not less than [...***...].
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2.9 Speed
Level flight speed at an A350-800 Aircraft gross weight of 527,000 lb at a
pressure altitude of 33,000 ft in ISA+10C conditions using a thrust not
exceeding maximum cruise thrust will be not less than a guaranteed true
Mach number of [...***...].
3 MISSION GUARANTEES
3.1 Mission Usable Load: TLV - PHL
The A350-800 Aircraft will be capable of carrying a guaranteed Usable Load
(as defined in Paragraph 3.11 below) of not less than [...***...] over a
still air stage distance of 5,849 nautical miles (representative of TLV to
PHL mission with a 58 knots headwind) when operated under the conditions
defined below:
3.1.1 The departure airport conditions are such to allow the required Takeoff
Weight to be used without any restriction. Pressure altitude is 135 ft.
The destination airport conditions are such to allow the required Landing
Weight to be used without any restriction. Pressure altitude is 10 ft.
3.1.2 An allowance of 570 lb of fuel and 9 minutes is considered for engine
start-up and taxi-out.
3.1.3 An allowance of 1,840 lb of fuel and 3 minutes is included for take-off
and climb to 1,635 ft pressure altitude with acceleration to climb speed
at a temperature of 29 degrees C. No credit is taken for the distance
covered in these segments.
3.1.4 Climb from 1,635 ft pressure altitude up to cruise altitude using maximum
climb thrust, cruise at a fixed Mach number of M=0.82 at pressure
altitudes of 31,000 ft, 35,000 ft and 39,000 ft and descent to 1,510 ft
pressure altitude are conducted in ISA+10 degrees C conditions. Climb and
descent speeds below 10,000 ft will be 250 knots CAS. A wind component of
70% of cruise wind has been considered during climb and descent.
3.1.5 An allowance of 430 lb of fuel and 4 minutes is considered for approach
and landing at the destination airport. No credit is taken for the
distance covered in these segments.
3.1.6 Trip fuel is defined as the fuel used during engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing as defined in
paragraphs 3.1.2 to 3.1.5 above. Stage distance is defined as the distance
covered during climb, cruise and descent as described in paragraph 3.1.4
above.
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3.1.7 At the end of approach and landing 14,800 lb of usable fuel will remain in
the tanks. This represents the estimated fuel required for:
1) En-route reserves: 4% of trip time representing use of re-dispatch
procedures
2) Missed approach at destination
3) Diversion in ISA+10 degrees C conditions over a still air distance
of 150 nautical miles starting and ending at 1,500 ft pressure
altitude and using long range procedures
4) Holding for 30 minutes at 1,500 ft pressure altitude in
ISA+10 degrees C conditions
5) An allowance of fuel for approach and landing at alternate airport
3.2 Mission fuel burn: TLV - PHL
In carrying a fixed Usable Load of 136,780 lb over a still air stage
distance of 5,849 nautical miles (representative of TLV to PHL mission
with a 58 knots headwind) the trip fuel burnt when operated under the
conditions defined in paragraphs 3.1.1 to 3.1.7 inclusive above will be
not more than a guaranteed value of [...***...] and the block time will
not be more than a guaranteed value of [...***...]. Block time is defined
as the time for engine start-up and taxi-out, take-off, climb, cruise,
descent, approach and landing as defined in paragraphs 3.1.2 to 3.1.5
above.
3.3 Mission Usable Load: FRA - PHX
The A350-800 Aircraft will be capable of carrying a guaranteed Usable Load
of not less than [...***...] over a still air stage distance of 5,482
nautical miles (representative of FRA to PHX mission with a 40 knots
headwind) when operated under the conditions defined below:
3.3.1 The departure airport conditions are such to allow the required Takeoff
Weight to be used without any restriction. Pressure altitude is 364 ft.
The destination airport conditions are such to allow the required Landing
Weight to be used without any restriction. Pressure altitude is 1,135 ft.
3.3.2 An allowance of 570 lb of fuel and 9 minutes is considered for engine
start-up and taxi-out.
3.3.3 An allowance of 1,750 lb of fuel and 3 minutes is included for take-off
and climb to 1,864 ft pressure altitude with acceleration to climb speed
at a temperature of 21 degrees C. No credit is taken for the distance
covered in these segments.
3.3.4 Climb from 1,864 ft pressure altitude up to cruise altitude using maximum
climb thrust, cruise at a fixed Mach number of M=0.82 at pressure
altitudes of 31,000 ft, 35,000 ft and 39,000 ft and descent to 2,635 ft
pressure altitude are conducted in ISA+10 degrees C conditions.
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Climb and descent speeds below 10,000 ft will be 250 knots CAS. A wind
component of 70% of cruise wind has been considered during climb and
descent.
3.3.5 An allowance of 440 lb of fuel and 4 minutes is considered for approach
and landing at the destination airport. No credit is taken for the
distance covered in these segments.
3.3.6 Trip fuel is defined as the fuel used during engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing and manoeuvre as
defined in paragraphs 3.3.2 to 3.3.5 above. Stage distance is defined as
the distance covered during climb, cruise and descent as described in
paragraph 3.3.4 above.
3.3.7 At the end of approach and landing 14,600 lb of usable fuel will remain in
the tanks. This represents the estimated fuel required for:
1) En-route reserves: 4% of trip time representing use of re-dispatch
procedures
2) Missed approach at destination
3) Diversion in ISA+10 degrees C conditions over a still air distance
of 150 nautical miles starting and ending at 1,500 ft pressure
altitude and using long range procedures
4) Holding for 30 minutes at 1,500 ft pressure altitude in
ISA+10 degrees C conditions
5) An allowance of fuel for approach and landing at alternate airport
3.4 Mission fuel burn: FRA - PHX
In carrying a fixed Usable Load of 140,630 lb over a still air stage
distance of 5,482 nautical miles (representative of FRA to PHX mission
with a 40 knots headwind) the trip fuel burnt when operated under the
conditions defined in paragraphs 3.3.1 to 3.3.7 inclusive above will be
not more than a guaranteed value of [...***...] and the block time will
not be more than a guaranteed value of [...***...].
Block time is defined as the time for engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing as defined in
paragraphs 3.3.2 to 3.3.5 above.
3.5 Mission Usable Load: PHX - FRA (41 degrees C at PHX)
The A350-800 Aircraft will be capable of carrying a guaranteed Usable Load
of not less than [...***...] over a still air stage distance of 4,980
nautical miles (representative of PHX to FRA mission with a 5 knots
tailwind) when operated under the conditions defined below:
3.5.1 The departure airport conditions (representative of PHX runway 26) are as
defined in paragraph 2.3.3 above (ambient temperature of 41 degrees C).
The destination airport conditions are such to allow the required Landing
Weight to be used without any restriction. Pressure altitude is 364 ft.
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3.5.2 An allowance of 570 lb of fuel and 9 minutes is considered for engine
start-up and taxi-out.
3.5.3 An allowance of 1,730 lb of fuel and 3 minutes is included for take-off
and climb to 2,635 ft pressure altitude with acceleration to climb speed
at a temperature of 38 degrees C. No credit is taken for the distance
covered in these segments.
3.5.4 Climb from 2,635 ft pressure altitude up to cruise altitude using maximum
climb thrust, cruise at a fixed Mach number of M=0.82 at pressure
altitudes of 33,000 ft, 37,000 ft and 41,000 ft and descent to 1,864 ft
pressure altitude are conducted in ISA+10 degrees C conditions. Climb and
descent speeds below 10,000 ft will be 250 knots CAS. A wind component of
70% of cruise wind has been considered during climb and descent.
3.5.5 An allowance of 410 lb of fuel and 4 minutes is considered for approach
and landing at the destination airport. No credit is taken for the
distance covered in these segments.
3.5.6 Trip fuel is defined as the fuel used during engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing and manoeuvre as
defined in paragraphs 3.5.2 to 3.5.5 above.
Stage distance is defined as the distance covered during climb, cruise and
descent as described in paragraph 3.5.4 above.
3.5.7 At the end of approach and landing 13,320 lb of usable fuel will remain in
the tanks. This represents the estimated fuel required for:
1) En-route reserves: 4% of trip time representing use of re-dispatch
procedures
2) Missed approach at destination
3) Diversion in ISA+10 degrees C conditions over a still air distance
of 150 nautical miles starting and ending at 1,500 ft pressure
altitude and using long range procedures
4) Holding for 30 minutes at 1,500 ft pressure altitude in
ISA+10 degrees C conditions
5) An allowance of fuel for approach and landing at alternate airport
3.6 Mission fuel burn: PHX - FRA (41 degrees C at PHX)
In carrying a fixed Usable Load of 113,760 lb over a still air stage
distance of 4,980 nautical miles (representative of PHX to FRA mission
with a 5 knots tailwind) the trip fuel burnt when operated under the
conditions defined in paragraphs 3.5.1 to 3.5.7 inclusive above will be
not more than a guaranteed value of [...***...] and the block time will
not be more than a guaranteed value of [...***...]. Block time is defined
as the time for engine start-up and taxi-out, take-off, climb, cruise,
descent, approach and landing as defined in paragraphs 3.5.2 to 3.5.5
above.
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3.7 Mission Usable Load: PHL - NRT
The A350-800 Aircraft will be capable of carrying a guaranteed Usable Load
of not less than [...***...] over a still air stage
distance of 6,542 nautical miles (representative of PHL to NRT mission
with a 38 knots headwind) when operated under the conditions defined
below:
3.7.1 The departure airport conditions (representative of PHL runway 27L) are as
defined in paragraph 2.3.2 above.
The destination airport conditions are such to allow the required Landing
Weight to be used without any restriction. Pressure altitude is 139 ft.
3.7.2 An allowance of 570 lb of fuel and 9 minutes is considered for engine
start-up and taxi-out.
3.7.3 An allowance of 1,800 lb of fuel and 3 minutes is included for take-off
and climb to 1,510 ft pressure altitude with acceleration to climb speed
at a temperature of 27 degrees C. No credit is taken for the distance
covered in these segments.
3.7.4 Climb from 1,510 ft pressure altitude up to cruise altitude using maximum
climb thrust, cruise at a fixed Mach number of M=0.82 at pressure
altitudes of 31,000 ft, 35,000 ft and 39,000 ft and descent to 1,639 ft
pressure altitude are conducted in ISA+10 degrees C conditions. Climb and
descent speeds below 10,000 ft will be 250 knots CAS. A wind component of
70% of cruise wind has been considered during climb and descent.
3.7.5 An allowance of 420 lb of fuel and 4 minutes is considered for approach
and landing at the destination airport. No credit is taken for the
distance covered in these segments.
3.7.6 Trip fuel is defined as the fuel used during engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing and manoeuvre as
defined in paragraphs 3.7.2 to 3.7.5 above. Stage distance is defined as
the distance covered during climb, cruise and descent as described in
paragraph 3.7.4 above.
3.7.7 At the end of approach and landing 14,800 lb of usable fuel will remain in
the tanks. This represents the estimated fuel required for:
1) En-route reserves: 4% of trip time representing use of re-dispatch
procedures
2) Missed approach at destination
3) Diversion in ISA+10 degrees C conditions over a still air distance
of 150 nautical miles starting and ending at 1,500 ft pressure
altitude and using long range procedures
4) Holding for 30 minutes at 1,500 ft pressure altitude in
ISA+10 degrees C conditions
5) An allowance of fuel for approach and landing at alternate airport
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3.8 Mission fuel burn: PHL - NRT
In carrying a fixed Usable Load of 120,290 lb over a still air stage
distance of 6,542 nautical miles (representative of PHL to NRT mission
with a 38 knots headwind) the trip fuel burnt when operated under the
conditions defined in paragraphs 3.7.1 to 3.7.7 inclusive above will be
not more than a guaranteed value of [...***...] and the block time will
not be more than a guaranteed value of [...***...]. Block time is defined
as the time for engine start-up and taxi-out, take-off, climb, cruise,
descent, approach and landing as defined in paragraphs 3.7.2 to 3.7.5
above.
3.9 Mission Usable Load: PHX - NRT (41 degrees C at PHX)
The A350-800 Aircraft will be capable of carrying a guaranteed Usable Load
of not less than [...***...] over a still air stage
distance of 5,971 nautical miles (representative of PHX to NRT mission
with a 67 knots headwind) when operated under the conditions defined
below:
3.9.1 The departure airport conditions (representative of PHX runway 26) are as
defined in paragraph 2.3.3 above (ambient temperature of 41 degrees C).
The destination airport conditions are such to allow the required Landing
Weight to be used without any restriction. Pressure altitude is 139 ft.
3.9.2 An allowance of 570 lb of fuel and 9 minutes is considered for engine
start-up and taxi-out.
3.9.3 An allowance of 1,730 lb of fuel and 3 minutes is included for take-off
and climb to 2,635 ft pressure altitude with acceleration to climb speed
at a temperature of 38 degrees C. No credit is taken for the distance
covered in these segments.
3.9.4 Climb from 2,635 ft pressure altitude up to cruise altitude using maximum
climb thrust, cruise at a fixed Mach number of M=0.82 at pressure
altitudes of 35,000 ft and 39,000 ft and descent to 1,639 ft pressure
altitude are conducted in ISA+10 degrees C conditions.
Climb and descent speeds below 10,000 ft will be 250 knots CAS. A wind
component of 70% of cruise wind has been considered during climb and
descent.
3.9.5 An allowance of 420 lb of fuel and 4 minutes is considered for approach
and landing at the destination airport. No credit is taken for the
distance covered in these segments.
3.9.6 Trip fuel is defined as the fuel used during engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing and manoeuvre as
defined in paragraphs 3.9.2 to 3.9.5 above. Stage distance is defined as
the distance covered during climb, cruise and descent as described in
paragraph 3.9.4 above.
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3.9.7 At the end of approach and landing 13,460 lb of usable fuel will remain in
the tanks. This represents the estimated fuel required for:
1) En-route reserves: 4% of trip time representing use of re-dispatch
procedures
2) Missed approach at destination
3) Diversion in ISA+10 degrees C conditions over a still air distance
of 150 nautical miles starting and ending at 1,500 ft pressure
altitude and using long range procedures
4) Holding for 30 minutes at 1,500 ft pressure altitude in ISA+10
degrees C conditions
5) An allowance of fuel for approach and landing at alternate airport
3.10 Mission fuel burn: PHX - NRT (41 degrees C at PHX)
In carrying a fixed Usable Load of 93,790 lb over a still air stage
distance of 5,971 nautical miles (representative of PHX to NRT mission
with a 67 knots headwind) the trip fuel burnt when operated under the
conditions defined in paragraphs 3.9.1 to 3.9.7 inclusive above will be
not more than a guaranteed value of [...***...] and the block time will
not be more than a guaranteed value of [...***...]. Block time is defined
as the time for engine start-up and taxi-out, take-off, climb, cruise,
descent, approach and landing as defined in paragraphs 3.9.2 to 3.9.5
above.
3.11 For the mission "Usable Load" guarantees defined in Paragraphs 3.1, 3.3,
3.5, 3.7 and 3.9 above, the guaranteed usable loads are calculated as Zero
Fuel Weight minus the Manufacturer's Weight Empty as defined in the
Specification which will be derived from the weighing of the Aircraft.
4 Structural Usable Load
The Seller guarantees that the difference between:
- the Maximum Zero Fuel Weight (MZFW) of the Aircraft (as defined in
the A350-800 Standard Specification set forth in Paragraph 1) and
- the Manufacturer's Weight Empty (as defined in the A350-800 Standard
Specification set forth in Paragraph 1) and which will be derived
from the weighing of the Aircraft
will not be less than [...***...]
The Manufacturer's Weight Empty is subject to adjustment as defined in
Paragraph 9.2 below.
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5 Noise
5.1 Exterior Noise
5.1.1 Noise Certification
The A350-800 powered by GENX-1A72 engines at a MTOW of 245,000 KG and a
MLW of 182,000 KG will meet the noise levels limits as defined in ICAO
Annex 16, Volume I, 'A350-800 Aircraft Noise', CHAPTER 4, third edition,
effective 11th November 1993, [...***...].
Noise data will be obtained and evaluated in accordance with the
requirements of ICAO Annex 16, Volume I, 'Aircraft Noise', Amendment 7,
Chapter 4, third edition, applicable 21st March 2002, and relevant
appendices.
5.1.2 APU Noise
The APU of the A350-800 will comply with the noise limits as defined in
ICAO Annex 16, Vol. 1, Chapter 9, Attachment C, third edition, effective
11th November 1993.
5.2 Interior Noise
5.2.1 Interior Noise in Flight
5.2.1.1 Cockpit Noise
At a pressure altitude of 35000 feet and a true Mach number of 0.82 in
straight and level flight in still air under ISA conditions, the
guaranteed A-weighted Sound Pressure Level (SPL) and the Speech
Interference Level (SIL) will not exceed the following values:
Guarantee
SPL dB(A) [...***...]
SIL dB [...***...]
Noise levels will be measured at the Captain's and First Officer's seat
position at head level with normal cockpit air conditioning and
ventilation in operation.
5.2.1.2 Cabin Noise
At a pressure altitude of 35000 feet and a true Mach number of 0.82 in
straight and level flight in still air under ISA conditions, the
guaranteed A-weighted Sound Pressure Level (SPL) and the Speech
Interference Level (SIL) will not exceed the following values, considering
leather seats are part of the cabin lay-out.
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Guarantee
(a [...***...] extra is accounted for leather seats installation)
SPL dB(A) [...***...]
SIL dB [...***...]
Noise levels will be measured at a height of 40 inches above the passenger
compartment floor on the aisle center lines in the passenger seated area.
Effects on noise of Buyer Furnished Equipment and installations by or on
behalf of the Buyers are not covered by this guarantee. The noise levels
are provided for leather seats.
6 Emissions
The GENX-1A72 engines will meet the emission levels for Smoke as defined
in ICAO Annex 16, Volume II `A350-800 Aircraft Engine Emissions', Second
Edition effective 11th November 1993, section 2.2.2.
The GENX-1A72 engines will meet the emission levels for Unburned
Hydrocarbons (HC), Carbon Monoxide (CO) as defined in ICAO Annex 16,
Volume II `A350-800 Aircraft Engine Emissions', Second Edition effective
11th November 1993, section 2.3.2.
The GENX-1A72 engines will meet the emission levels for Oxides of Nitrogen
(NOx) as specified in the proposed ICAO Annex 16, Volume II `A350-800
Aircraft Engine Emissions', Second Edition effective 11th November 1993,
Chapter 2.3.2D (CAEP/6).
Engine emission data will be obtained and evaluated in accordance with the
requirements of the ICAO Annex 16, Volume II `A350-800 Aircraft Engine
Emissions', Second Edition effective 11th November 1993.
7 GUARANTEE CONDITIONS
7.1 The performance and noise certification requirements for the Aircraft,
except where otherwise noted, will be as stated in Section 02 of the
Specification.
7.2 For the determination of FAR take-off and landing performance a hard dry
level runway surface with no runway strength limitations, no line-up
allowances, no obstacles, zero wind, atmosphere according to ISA, except
as otherwise noted, and the use of centre of gravity positions, speed
brakes, flaps, landing gear and engines in the conditions liable to
provide the best results will be assumed.
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7.2.1 When establishing take-off and second segment performance no air will be
bled from the engines for cabin air conditioning or anti-icing.
7.3 The en-route one engine inoperative climb performance will be established
with the amount of engine air bleed associated with the maximum cabin
altitude as specified in Section 21 of the Specification and an average
ventilation rate not less than the amount defined in the Specification but
no air will be bled from the engines for anti-icing.
7.4 Climb, cruise and descent performance associated with the Guarantees will
include allowances for normal electrical load and for normal engine air
bleed and power extraction associated with cabin differential pressure as
defined in Section 21-30.31 of the Specification. Cabin air conditioning
management during performance demonstration as described in Subparagraph
8.3 below may be such as to optimise the Aircraft performance while
meeting the normal air conditioning requirements defined above. Unless
otherwise stated no air will be bled from the engines for anti-icing.
Cruise performance at 20,000 ft and above is based on a centre of gravity
position of 34% MAC.
7.5 The engines will be operated using not more than the engine manufacturer's
maximum recommended outputs for take-off, maximum go-round, maximum
continuous, maximum climb and cruise for normal operation unless otherwise
stated.
7.6 Where applicable the Guarantees assume the use of an approved fuel having
a density of 6.7 lb per US gallon and a lower heating value of 18,590 BTU
per lb.
7.7 Speech Interference Level (SIL) is defined as the arithmetic average of
the sound pressure levels in the 1000, 2000 and 4000 Hz octave bands.
A-Weighted sound pressure level (dB(A)) is as defined in the American
National Standard Specification ANSI.4-1971.
7.8 All guaranteed interior noise levels refer to an A350-800 Aircraft with
standard acoustic insulation and an interior completely furnished. The
effect of Buyer Furnished Equipment other than leather passenger seats
(leather seats or acoustically equivalent) will be the responsibility of
the Buyers (Remark: Standard seats tend to decrease interior noise levels
by 1-2 dB)
7.9 For purposes of the sound levels guaranteed in Clause 5.2.1.2 of this
Letter Agreement, the APU and air conditioning system will be operating.
Sound level measurements may be made at the prevailing ambient temperature
with the air conditioning packs controlled to approximate air conditioning
machinery rotational speed appropriate to an ambient temperature of 25C.
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8 GUARANTEE COMPLIANCE
8.1 Compliance with the Guarantees will be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless otherwise
stated.
8.2 Compliance with the take-off, second segment, en-route one engine
inoperative, approach climb and landing elements of the Guarantees will be
demonstrated with reference to the approved Flight Manual.
8.3 Compliance with those parts of the Guarantees defined in paragraph 2 and 3
above not covered by the requirements of the certifying Airworthiness
Authority will be demonstrated by calculation based on data obtained
during flight tests conducted on one (or more, at the Seller's discretion)
aircraft of the same aerodynamic configuration as the Aircraft and
incorporated in the In-Flight Performance Program and data bases ("the
IFP") appropriate to the Aircraft.
8.4 Compliance with the Structure Usable Load guarantee defined in Paragraph 4
will be demonstrated with reference to a weight compliance report.
8.5 The approved A350-800 Aircraft flight manual will be used to demonstrate
compliance with the guarantees of certification noise levels.
8.6 Compliance with the APU noise and interior noise guarantees will be
demonstrated with reference to noise surveys conducted on one (or more, at
the Seller's discretion) A350-800 Aircraft of an acoustically equivalent
standard to those A350-800 Aircraft purchased by the Buyers.
8.7 Data derived from flight tests and noise surveys will be adjusted as
required using conventional methods of correction, interpolation or
extrapolation in accordance with established aeronautical practices to
show compliance with the Guarantees.
8.8 Compliance with the emission guarantee will be demonstrated by reference
to the ICAO Aircraft Engine Exhaust Emissions Databank entry for the
GEnx-1A72 engine.
8.9 Compliance with the Guarantees is not contingent on engine performance
defined in the engine manufacturer's specification.
8.10 The Seller undertakes to furnish the Buyers with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the A350-800 Aircraft.
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9 ADJUSTMENT OF GUARANTEES
9.1 In the event of any change to any law, governmental regulation or
requirement or interpretation thereof ("rule change") by any governmental
agency made subsequent to the date of the Agreement and such rule change
affects the Aircraft configuration or performance or both required to
obtain certification the Guarantees will be appropriately modified to
reflect the effect of any such change.
9.2 The Guarantees apply to the Aircraft as described in paragraph 1 of this
Letter Agreement and may be adjusted in the event of:
i) Any further configuration change which is the subject of an
SCN
ii) Variation in actual weights of items defined in Section 13-10
of the Specification
iii) Changes required to obtain certification that cause
modifications to the performance or weight of the A350-800
Aircraft
10 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and all other
performance and weight guarantees of any nature which may be stated,
referenced or incorporated in the Specification or any other document.
11 [...***...]
11.1 [...***...]
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[...***...]
11.2 [...***...]
11.3 [...***...]
UNQUOTE
12 ASSIGNMENT
In consideration of the assignment and subrogation by Seller under this
Letter Agreement in favor of the Buyers in respect of Seller's rights
against and obligations to the Manufacturer under the provisions quoted
above, the Buyers hereby accept such assignment and subrogation and agrees
to be bound by all of the terms, conditions and limitations therein
contained. The Buyers and the Seller recognize and agree that, except as
otherwise expressly provided in Clause 11 of this Letter Agreement, all
the provisions of Clause 12 of the Agreement, including without limitation
the Exclusivity of Warranties and General Limitations of Liability and
Duplicate Remedies provisions therein contained, will apply to the
foregoing performance guarantees.
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyers hereunder will not be
assigned or transferred in any manner without
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prior written consent of AVSA and any attempted assignment or transfer in
contravention of the provisions of this sentence will be void and of no
force and effect.
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
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IN WITNESS WHEREOF, these presents were entered into as of the day and year
first above written.
Very truly yours,
AVSA, S.A.R.L.
By: __________________________
Its: __________________________
Accepted and Agreed
US Airways Group, Inc.
By: _________________________
Its:
AMERICA WEST AIRLINES, Inc.
By: _________________________
Its:
US Airways Group, Inc.
By: _________________________
Its:
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*** CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 8B
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: A350-800 with GEnx - 1A75 Engines PERFORMANCE GUARANTEES
Dear Ladies and Gentlemen:
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc.
(the "Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an
Airbus A350 Purchase Agreement dated as of even date herewith (the
"Agreement"), which covers, among other things, the sale by the Seller and
the purchase by the Buyers of certain A350-800 Aircraft, under the terms
and conditions set forth in said Agreement. The Buyers and the Seller have
agreed to set forth in this Letter Agreement No. 8B (the "Letter
Agreement") certain additional terms and conditions regarding the sale of
the A350-800 Aircraft. Capitalized terms used herein and not otherwise
defined in this Letter Agreement will have the meanings assigned thereto
in the Agreement. Technical and trade terms used but not defined herein or
in the Agreement will be defined as generally accepted in the airline
and/or aircraft manufacturing industries. The terms "herein," "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an
integral, nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this
Letter Agreement will be governed by the provisions of said Agreement,
except that if the Agreement and this Letter Agreement have specific
provisions which are inconsistent, the specific provisions contained in
this Letter Agreement will govern.
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The Seller represents and warrants that the Manufacturer has provided to
the Seller the performance, noise and weight guarantees (the "Guarantees")
that are reproduced below between the words QUOTE and UNQUOTE, subject to
the terms, conditions, limitations and restrictions set forth below. The
Seller hereby assigns to the Buyers, and the Buyers hereby accept, as to
each A350-800 Aircraft delivered to the Buyers under the Agreement, all of
the Seller's rights and obligations with respect to such A350-800 Aircraft
in its capacity as "Buyers" as aforesaid under the said Guarantees, and
the Seller subrogates the Buyers into all such rights and obligations in
respect of the A350-800 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 the Buyers.
QUOTE
1 AIRCRAFT CONFIGURATION
1.1 The Guarantees defined below are applicable to the A350-800 Aircraft
powered by General Electric GEnx-1A75 engines, as described in the
Standard Specification Ref. G.000.08000 Issue B dated 30th June 2005,
without taking into account any further changes thereto as provided in the
Agreement, herein after referred as "the Specification" without taking
into account any further changes thereto as provided in the Agreement.
2 GUARANTEED PERFORMANCE
2.1 Take-off Field Length
FAR take-off field length ("TOFL") at an Aircraft gross weight of 540,133
lb (245,000 kg) at the start of Take-Off Distance Available (TODA) at Sea
Level pressure altitude in ISA+15(degrees)C conditions will be not more
than a guaranteed value of [...***...].
2.2 Second Segment Climb
The Aircraft will meet FAR 25 regulations for one engine inoperative climb
after take-off, undercarriage retracted, at a weight corresponding to the
stated weight at the start of ground run, at the altitude and temperature,
and in the configuration of flap angle and safety speed required to comply
with the performance guaranteed in paragraph 2.1 and 2.3.
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2.3 Take-off Weight
2.3.1 When operated under the following conditions (representative of FRA 25R)
Pressure altitude : 364 ft
Ambient temperature : 24 degrees C
Take-off run available : 13,123 ft
Take-off distance available : 13,123 ft
Accelerate-stop distance available : 13,123 ft
Slope : -0.26% (downhill)
Wind : Zero
Line-up allowance TOD : 80 ft
Line-up allowance ASD : 153 ft
Obstacles (Height/Distance above/fromstart of TODA) :-28ft/13,488ft
-23ft/13,980ft
-21ft/14,236ft
59ft/17,388ft
60ft/17,598ft
61ft/17,795ft
62ft/18,035ft
65ft/18,848ft
67ft/19,918ft
76ft/23,402ft
the maximum permissible take-off weight at the start of Take-off Distance
Available will be not less than a guaranteed value of 540,133 lb (Max
Structural)
2.3.2 When operated under the following conditions (representative of PHL 27L)
Pressure altitude : 10 ft
Ambient temperature : 30(degrees)C
Take-off run available : 10,506 ft
Take-off distance available : 10,506 ft
Accelerate-stop distance available : 10,506 ft
Slope : 0.11% (uphill)
Wind : Zero
Line-up allowance TOD : 80 ft
Line-up allowance ASD : 153 ft
Obstacles (Height/Distance above/from start of TODA): 33ft/11,312ft
38ft/12,036ft
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the maximum permissible take-off weight at the start of Take-off Distance
Available will be not less than a guaranteed value of [...***...].
2.3.3 When operated under the following conditions (representative of PHX 26)
Pressure altitude : 1,135 ft
Take-off run available : 11,490 ft
Take-off distance available : 11,490 ft
Accelerate-stop distance available : 11,490 ft
Slope : -0.21% (downhill)
Wind : Zero
Line-up allowance TOD : 80 ft
Line-up allowance ASD : 153 ft
Obstacles (Height/Distance above/from start of TODA) : -13ft/12,506ft
-5ft/12,852ft
36ft/13,792ft
42ft/14,510ft
195ft/22,434ft
the maximum permissible take-off weight at the start of Take-off Distance
Available will be not less than a guaranteed value of
Ambient temperature of 41(degrees)C: [...***...]
Ambient temperature of 46(degrees)C: [...***...]
2.3.4 When operated under the following conditions (representative of TLV 26)
Pressure altitude : 135 ft
Ambient temperature : 32 degrees C
Take-off run available : 11,998 ft
Take-off distance available : 12,392 ft
Accelerate-stop distance available : 12,293 ft
Slope : -0.32% (downhill)
Wind : Zero
Line-up allowance TOD : 80 ft
Line-up allowance ASD : 153 ft
Obstacles (Height/Distance above/from start of TODA) : none
the maximum permissible take-off weight at the start of Take-off Distance
Available will be not less than a guaranteed value of [...***...].
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2.3.5 When operated under the following conditions (representative of NRT 34L)
Pressure altitude : 139 ft
Ambient temperature : 29 degrees C
Take-off run available : 13,123 ft
Take-off distance available : 13,123 ft
Accelerate-stop distance available : 13,123 ft
Slope : -0.07% (downhill)
Wind : Zero
Line-up allowance TOD : 80 ft
Line-up allowance ASD : 153 ft
Obstacles (Height/Distance above/from start of TODA) : -2ft/13,905ft
4ft/14,541ft
8ft/14,780ft
25ft/15,892ft
28ft/16,030ft
29ft/16,269ft
30ft/16,303ft
32ft/16,967ft
53ft/18,187ft
57ft/19,378ft
65ft/20,659ft
the maximum permissible take-off weight at the start of Take-off Distance
Available will be not less than a guaranteed value of [...***...]
2.4 Landing Field Length
FAR certified dry landing field length ("LFL") at an Aircraft gross weight
of 401,241 lb (182,000 kg) at Sea Level pressure altitude will not be more
than a guaranteed value of [...***...].
2.5 En-route One Engine Inoperative
The A350-800 Aircraft will meet the FAR regulations minimum en-route climb
one engine inoperative and the other operating at the maximum continuous
thrust with anti-icing off at an A350-800Aircraft gross weight of 500,000
lb in the cruise configuration in ISA+10C conditions at a guaranteed
pressure altitude of not less than [...***...]
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2.6 Approach Climb
2.6.1 The A350-800 Aircraft will meet FAR regulations approach climb gradient
one engine inoperative and the other operating at the maximum go-round
thrust with air conditioning on and anti-icing off at sea level pressure
altitude at an A350-800 Aircraft gross weight of 401,241 lb at a
temperature of not less than the guarantee value of [...***...].
2.6.2 The A350-800 Aircraft will meet FAR regulations approach climb gradient
one engine inoperative and the other operating at the maximum go-round
thrust with air conditioning on and anti-icing off at a pressure altitude
of 5,000 feet at an A350-800 Aircraft gross weight of 401,241 lb at a
temperature of not less than the guarantee value of [...***...] and a
nominal value of [...***...].
2.7 Specific Range
The nautical miles per pound of fuel at an A350-800 Aircraft gross weight
of 500,000 lb at a pressure altitude of 33,000 ft in ISA+10C conditions at
a true Mach number of 0.82 will not be less than a guaranteed value of
[...***...].
The nautical miles per pound of fuel at an A350-800 Aircraft gross weight
of 490,000 lb at a pressure altitude of 35,000 ft in ISA+10C conditions at
a true Mach number of 0.82 will not be less than a guaranteed value of
[...***...].
The nautical miles per pound of fuel at an A350-800 Aircraft gross weight
of 480,000 lb at a pressure altitude of 33,000 ft in ISA+10C conditions at
a true Mach number of 0.84 will not be less than a guaranteed value of
[...***...].
The nautical miles per pound of fuel at an A350-800 Aircraft gross weight
of 470,000 lb at a pressure altitude of 35,000 ft in ISA+10C conditions at
a true Mach number of 0.84 will not be less than a guaranteed value of
[...***...].
2.8 Initial Cruise Altitude
At an A350-800 gross weight of 527,000 lb (representing the estimated
weight at start of cruise following a take-off at sea level at Maximum
Take-off Weight) in ISA+10C conditions the pressure altitude for:
1. Level flight at a true Mach number of 0.82 using a thrust not
exceeding maximum cruise thrust
2. A rate of climb of not less than then 300 ft/min at a true
Mach number of 0.82 using a
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thrust not exceeding maximum climb thrust
3. A buffet maneuver margin of not less than 0.3g at a true Mach
number of 0.82 will be not less than [...***...].
2.9 Speed
Level flight speed at an A350-800 Aircraft gross weight of 527,000 lb at a
pressure altitude of 35,000 ft in ISA+10C conditions using a thrust not
exceeding maximum cruise thrust will be not less than a guaranteed true
Mach number of [...***...].
3 MISSION GUARANTEES
3.1 Mission Usable Load: TLV - PHL
The A350-800 Aircraft will be capable of carrying a guaranteed Usable Load
(as defined in Paragraph 3.11 below) of not less than [...***...] over a
still air stage distance of 5,849 nautical miles (representative of TLV to
PHL mission with a 58 knots headwind) when operated under the conditions
defined below:
3.1.1 The departure airport conditions are such to allow the required Takeoff
Weight to be used without any restriction. Pressure altitude is 135 ft.
The destination airport conditions are such to allow the required Landing
Weight to be used without any restriction. Pressure altitude is 10 ft.
3.1.2 An allowance of 570 lb of fuel and 9 minutes is considered for engine
start-up and taxi-out.
3.1.3 An allowance of 1,840 lb of fuel and 3 minutes is included for take-off
and climb to 1,635 ft pressure altitude with acceleration to climb speed
at a temperature of 29 degrees C. No credit is taken for the distance
covered in these segments.
3.1.4 Climb from 1,635 ft pressure altitude up to cruise altitude using maximum
climb thrust, cruise at a fixed Mach number of M=0.82 at pressure
altitudes of 31,000 ft, 35,000 ft and 39,000 ft and descent to 1,510 ft
pressure altitude are conducted in ISA+10 degrees C conditions.
Climb and descent speeds below 10,000 ft will be 250 knots CAS. A wind
component of 70% of cruise wind has been considered during climb and
descent.
3.1.5 An allowance of 430 lb of fuel and 4 minutes is considered for approach
and landing at the destination airport. No credit is taken for the
distance covered in these segments.
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3.1.6 Trip fuel is defined as the fuel used during engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing as defined in
paragraphs 3.1.2 to 3.1.5 above.
Stage distance is defined as the distance covered during climb, cruise and
descent as described in paragraph 3.1.4 above.
3.1.7 At the end of approach and landing 14,800 lb of usable fuel will remain in
the tanks.
This represents the estimated fuel required for:
1) En-route reserves: 4% of trip time representing use of re-dispatch
procedures
2) Missed approach at destination
3) Diversion in ISA+10 degrees C conditions over a still air distance
of 150 nautical miles starting and ending at 1,500 ft pressure
altitude and using long range procedures
4) Holding for 30 minutes at 1,500 ft pressure altitude in
ISA+10 degrees C conditions
5) An allowance of fuel for approach and landing at alternate airport
3.2 Mission fuel burn: TLV - PHL
In carrying a fixed Usable Load of 136,780 lb over a still air stage
distance of 5,849 nautical miles (representative of TLV to PHL mission
with a 58 knots headwind) the trip fuel burnt when operated under the
conditions defined in paragraphs 3.1.1 to 3.1.7 inclusive above will be
not more than a guaranteed value of [...***...] and the block time will
not be more than a guaranteed value of [...***...].
Block time is defined as the time for engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing as defined in
paragraphs 3.1.2 to 3.1.5 above.
3.3 Mission Usable Load: FRA - PHX
The A350-800 Aircraft will be capable of carrying a guaranteed Usable Load
of not less than [...***...] over a still air stage distance of 5,482
nautical miles (representative of FRA to PHX mission with a 40 knots
headwind) when operated under the conditions defined below:
3.3.1 The departure airport conditions are such to allow the required Takeoff
Weight to be used without any restriction. Pressure altitude is 364 ft.
The destination airport conditions are such to allow the required Landing
Weight to be used without any restriction. Pressure altitude is 1,135 ft.
3.3.2 An allowance of 570 lb of fuel and 9 minutes is considered for engine
start-up and taxi-out.
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3.3.3 An allowance of 1,750 lb of fuel and 3 minutes is included for take-off
and climb to 1,864 ft pressure altitude with acceleration to climb speed
at a temperature of 21 degrees C. No credit is taken for the distance
covered in these segments.
3.3.4 Climb from 1,864 ft pressure altitude up to cruise altitude using maximum
climb thrust, cruise at a fixed Mach number of M=0.82 at pressure
altitudes of 31,000 ft, 35,000 ft and 39,000 ft and descent to 2,635 ft
pressure altitude are conducted in ISA+10 degrees C conditions.
Climb and descent speeds below 10,000 ft will be 250 knots CAS. A wind
component of 70% of cruise wind has been considered during climb and
descent.
3.3.5 An allowance of 440 lb of fuel and 4 minutes is considered for approach
and landing at the destination airport. No credit is taken for the
distance covered in these segments.
3.3.6 Trip fuel is defined as the fuel used during engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing and manoeuvre as
defined in paragraphs 3.3.2 to 3.3.5 above.
Stage distance is defined as the distance covered during climb, cruise and
descent as described in paragraph 3.3.4 above.
3.3.7 At the end of approach and landing 14,600 lb of usable fuel will remain in
the tanks.
This represents the estimated fuel required for:
1) En-route reserves: 4% of trip time representing use of re-dispatch
procedures
2) Missed approach at destination
3) Diversion in ISA+10 degrees C conditions over a still air distance
of 150 nautical miles starting and ending at 1,500 ft pressure
altitude and using long range procedures
4) Holding for 30 minutes at 1,500 ft pressure altitude in
ISA+10 degrees C conditions
5) An allowance of fuel for approach and landing at alternate airport
3.4 Mission fuel burn: FRA - PHX
In carrying a fixed Usable Load of 140,630 lb over a still air stage
distance of 5,482 nautical miles (representative of FRA to PHX mission
with a 40 knots headwind) the trip fuel burnt when operated under the
conditions defined in paragraphs 3.3.1 to 3.3.7 inclusive above will be
not more than a guaranteed value of [...***...] and the block time will
not be more than a guaranteed value of [...***...]. Block time is defined
as the time for engine start-up and taxi-out, take-off, climb, cruise,
descent, approach and landing as defined in paragraphs 3.3.2 to 3.3.5
above.
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3.5 Mission Usable Load: PHX - FRA (41 degrees C at PHX)
The A350-800 Aircraft will be capable of carrying a guaranteed Usable Load
of not less than [...***...] over a still air stage distance of 4,980
nautical miles (representative of PHX to FRA mission with a 5 knots
tailwind) when operated under the conditions defined below:
3.5.1 The departure airport conditions (representative of PHX runway 26) are as
defined in paragraph 2.3.3 above (ambient temperature of 41 degrees C).
The destination airport conditions are such to allow the required Landing
Weight to be used without any restriction. Pressure altitude is 364 ft.
3.5.2 An allowance of 570 lb of fuel and 9 minutes is considered for engine
start-up and taxi-out.
3.5.3 An allowance of 1,800 lb of fuel and 3 minutes is included for take-off
and climb to 2,635 ft pressure altitude with acceleration to climb speed
at a temperature of 38 degrees C. No credit is taken for the distance
covered in these segments.
3.5.4 Climb from 2,635 ft pressure altitude up to cruise altitude using maximum
climb thrust, cruise at a fixed Mach number of M=0.82 at pressure
altitudes of 33,000 ft, 37,000 ft and 41,000 ft and descent to 1,864 ft
pressure altitude are conducted in ISA+10 degrees C conditions.
Climb and descent speeds below 10,000 ft will be 250 knots CAS. A wind
component of 70% of cruise wind has been considered during climb and
descent.
3.5.5 An allowance of 415 lb of fuel and 4 minutes is considered for approach
and landing at the destination airport. No credit is taken for the
distance covered in these segments.
3.5.6 Trip fuel is defined as the fuel used during engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing and manoeuvre as
defined in paragraphs 3.5.2 to 3.5.5 above.
Stage distance is defined as the distance covered during climb, cruise and
descent as described in paragraph 3.5.4 above.
3.5.7 At the end of approach and landing 13,650 lb of usable fuel will remain in
the tanks.
This represents the estimated fuel required for:
1) En-route reserves: 4% of trip time representing use of re-dispatch
procedures
2) Missed approach at destination
3) Diversion in ISA+10 degrees C conditions over a still air distance
of 150 nautical miles starting and ending at 1,500 ft pressure
altitude and using long range procedures
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4) Holding for 30 minutes at 1,500 ft pressure altitude in
ISA+10 degrees C conditions
5) An allowance of fuel for approach and landing at alternate airport
3.6 Mission fuel burn: PHX - FRA (41 degrees C at PHX)
In carrying a fixed Usable Load of 123,470 lb over a still air stage
distance of 4,980 nautical miles (representative of PHX to FRA mission
with a 5 knots tailwind) the trip fuel burnt when operated under the
conditions defined in paragraphs 3.5.1 to 3.5.7 inclusive above will be
not more than a guaranteed value of [...***...] and the block time will
not be more than a guaranteed value of [...***...]. Block time is defined
as the time for engine start-up and taxi-out, take-off, climb, cruise,
descent, approach and landing as defined in paragraphs 3.5.2 to 3.5.5
above.
3.7 Mission Usable Load: PHL - NRT
The A350-800 Aircraft will be capable of carrying a guaranteed Usable Load
of not less than [...***...] over a still air stage distance of 6,542
nautical miles (representative of PHL to NRT mission with a 38 knots
headwind) when operated under the conditions defined below:
3.7.1 The departure airport conditions (representative of PHL runway 27L) are as
defined in paragraph 2.3.2 above.
The destination airport conditions are such to allow the required Landing
Weight to be used without any restriction. Pressure altitude is 139 ft.
3.7.2 An allowance of 570 lb of fuel and 9 minutes is considered for engine
start-up and taxi-out.
3.7.3 An allowance of 1,810 lb of fuel and 3 minutes is included for take-off
and climb to 1,510 ft pressure altitude with acceleration to climb speed
at a temperature of 27 degrees C. No credit is taken for the distance
covered in these segments.
3.7.4 Climb from 1,510 ft pressure altitude up to cruise altitude using maximum
climb thrust, cruise at a fixed Mach number of M=0.82 at pressure
altitudes of 31,000 ft, 35,000 ft and 39,000 ft and descent to 1,639 ft
pressure altitude are conducted in ISA+10 degrees C conditions.
Climb and descent speeds below 10,000 ft will be 250 knots CAS. A wind
component of 70% of cruise wind has been considered during climb and
descent.
3.7.5 An allowance of 420 lb of fuel and 4 minutes is considered for approach
and landing at the destination airport. No credit is taken for the
distance covered in these segments.
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3.7.6 Trip fuel is defined as the fuel used during engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing and manoeuvre as
defined in paragraphs 3.7.2 to 3.7.5 above. Stage distance is defined as
the distance covered during climb, cruise and descent as described in
paragraph 3.7.4 above.
3.7.7 At the end of approach and landing 14,850 lb of usable fuel will remain in
the tanks.
This represents the estimated fuel required for:
1) En-route reserves: 4% of trip time representing use of re-dispatch
procedures
2) Missed approach at destination
3) Diversion in ISA+10 degrees C conditions over a still air distance
of 150 nautical miles starting and ending at 1,500 ft pressure
altitude and using long range procedures
4) Holding for 30 minutes at 1,500 ft pressure altitude in
ISA+10 degrees C conditions
5) An allowance of fuel for approach and landing at alternate airport
3.8 Mission fuel burn: PHL - NRT
In carrying a fixed Usable Load of 121,920 lb over a still air stage
distance of 6,542 nautical miles (representative of PHL to NRT mission
with a 38 knots headwind) the trip fuel burnt when operated under the
conditions defined in paragraphs 3.7.1 to 3.7.7 inclusive above will be
not more than a guaranteed value of [...***...] and the block time will
not be more than a guaranteed value of [...***...]. Block time is defined
as the time for engine start-up and taxi-out, take-off, climb, cruise,
descent, approach and landing as defined in paragraphs 3.7.2 to 3.7.5
above.
3.9 Mission Usable Load: PHX - NRT (41 degrees C at PHX)
The A350-800 Aircraft will be capable of carrying a guaranteed Usable Load
of not less than [...***...] over a still air stage distance of 5,971
nautical miles (representative of PHX to NRT mission with a 67 knots
headwind) when operated under the conditions defined below:
3.9.1 The departure airport conditions (representative of PHX runway 26) are as
defined in paragraph 2.3.3 above (ambient temperature of 41 degrees C).
The destination airport conditions are such to allow the required Landing
Weight to be used without any restriction. Pressure altitude is 139 ft.
3.9.2 An allowance of 570 lb of fuel and 9 minutes is considered for engine
start-up and taxi-out.
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3.9.3 An allowance of 1,790 lb of fuel and 3 minutes is included for take-off
and climb to 2,635 ft pressure altitude with acceleration to climb speed
at a temperature of 38 degrees C. No credit is taken for the distance
covered in these segments.
3.9.4 Climb from 2,635 ft pressure altitude up to cruise altitude using maximum
climb thrust, cruise at a fixed Mach number of M=0.82 at pressure
altitudes of 35,000 ft and 39,000 ft and descent to 1,639 ft pressure
altitude are conducted in ISA+10 degrees C conditions.
Climb and descent speeds below 10,000 ft will be 250 knots CAS. A wind
component of 70% of cruise wind has been considered during climb and
descent.
3.9.5 An allowance of 420 lb of fuel and 4 minutes is considered for approach
and landing at the destination airport. No credit is taken for the
distance covered in these segments.
3.9.6 Trip fuel is defined as the fuel used during engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing and manoeuvre as
defined in paragraphs 3.9.2 to 3.9.5 above. Stage distance is defined as
the distance covered during climb, cruise and descent as described in
paragraph 3.9.4 above.
3.9.7 At the end of approach and landing 13,740 lb of usable fuel will remain in
the tanks.
This represents the estimated fuel required for:
1) En-route reserves: 4% of trip time representing use of re-dispatch
procedures
2) Missed approach at destination
3) Diversion in ISA+10 degrees C conditions over a still air distance
of 150 nautical miles starting and ending at 1,500 ft pressure
altitude and using long range procedures
4) Holding for 30 minutes at 1,500 ft pressure altitude in
ISA+10 degrees C conditions
5) An allowance of fuel for approach and landing at alternate airport
3.10 Mission fuel burn: PHX - NRT (41 degrees C at PHX)
In carrying a fixed Usable Load of 103,440 lb over a still air stage
distance of 5,971 nautical miles (representative of PHX to NRT mission
with a 67 knots headwind) the trip fuel burnt when operated under the
conditions defined in paragraphs 3.9.1 to 3.9.7 inclusive above will be
not more than a guaranteed value of [...***...] and the block time will
not be more than a guaranteed value of [...***...].
Block time is defined as the time for engine start-up and taxi-out,
take-off, climb, cruise, descent, approach and landing as defined in
paragraphs 3.9.2 to 3.9.5 above.
3.11 For the mission usable load guarantees defined in Paragraphs 3.1, 3.3,
3.5, 3.7 and 3.9 above the guaranteed usable loads are calculated as Zero
Fuel Weight minus the Manufacturer's
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Weight Empty as defined in the Specification which will be derived from
the weighing of the Aircraft.
4 Structural Usable Load
The Seller guarantees that the difference between:
- the Maximum Zero Fuel Weight (MZFW) of the Aircraft (as defined in
the A350-800 Standard Specification set forth in Paragraph 1)
and
- the Manufacturer's Weight Empty (as defined in the A350-800 Standard
Specification set forth in Paragraph 1) and which will be derived
from the weighing of the Aircraft
will not be less than [...***...]
The Manufacturer's Weight Empty is subject to adjustment as defined in
Paragraph 9.2 below.
5 Noise
5.1 Exterior Noise
5.1.1 Noise Certification
The A350-800 powered by GENX-1A75 engines at a MTOW of 245,000 KG and a
MLW of 182,000 KG will meet the noise levels limits as defined in ICAO
Annex 16, Volume I, 'A350-800 Aircraft Noise', CHAPTER 4, third edition,
effective 11th November 1993, [...***...].
Noise data will be obtained and evaluated in accordance with the
requirements of ICAO Annex 16, Volume I, 'Aircraft Noise', Amendment 7,
Chapter 4, third edition, applicable 21st March 2002, and relevant
appendices.
5.1.2 APU Noise
The APU of the A350-800 will comply with the noise limits as defined in
ICAO Annex 16, Vol. 1, Chapter 9, Attachment C, third edition, effective
11th November 1993.
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5.2 Interior Noise
5.2.1 Interior Noise in Flight
5.2.1.1 Cockpit Noise
At a pressure altitude of 35000 feet and a true Mach number of 0.82 in
straight and level flight in still air under ISA conditions, the
guaranteed A-weighted Sound Pressure Level (SPL) and the Speech
Interference Level (SIL) will not exceed the following values:
Guarantee
----------
SPL dB(A) [...***...]
SIL dB [...***...]
Noise levels will be measured at the Captain's and First Officer's seat
position at head level with normal cockpit air conditioning and
ventilation in operation.
5.2.1.2 Cabin Noise
At a pressure altitude of 35000 feet and a true Mach number of 0.82 in
straight and level flight in still air under ISA conditions, the
guaranteed A-weighted Sound Pressure Level (SPL) and the Speech
Interference Level (SIL) will not exceed the following values, considering
leather seats are part of the cabin lay-out.
Guarantee
(a [...***...] extra is accounted for leather seats installation)
-----------------------------------------------------------------
SPL dB(A) [...***...]
IL dB [...***...]
Noise levels will be measured at a height of 40 inches above the passenger
compartment floor on the aisle center lines in the passenger seated area.
Effects on noise of Buyer Furnished Equipment and installations by or on
behalf of the Buyers are not covered by this guarantee. The noise levels
are provided for leather seats.
6 Emissions
The GENX-1A75 engines will meet the emission levels for Smoke as defined
in ICAO Annex 16, Volume II `A350-800 Aircraft Engine Emissions', Second
Edition effective 11th November 1993, section 2.2.2.
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The GENX-1A75 engines will meet the emission levels for Unburned
Hydrocarbons (HC), Carbon Monoxide (CO) as defined in ICAO Annex 16,
Volume II `A350-800 Aircraft Engine Emissions', Second Edition effective
11th November 1993, section 2.3.2.
The GENX-1A75 engines will meet the emission levels for Oxides of Nitrogen
(NOx) as specified in the proposed ICAO Annex 16, Volume II `A350-800
Aircraft Engine Emissions', Second Edition effective 11th November 1993,
Chapter 2.3.2D (CAEP/6).
Engine emission data will be obtained and evaluated in accordance with the
requirements of the ICAO Annex 16, Volume II `A350-800 Aircraft Engine
Emissions', Second Edition effective 11th November 1993.
7 GUARANTEE CONDITIONS
7.1 The performance and noise certification requirements for the Aircraft,
except where otherwise noted, will be as stated in Section 02 of the
Specification.
7.2 For the determination of FAR take-off and landing performance a hard dry
level runway surface with no runway strength limitations, no line-up
allowances, no obstacles, zero wind, atmosphere according to ISA, except
as otherwise noted, and the use of centre of gravity positions, speed
brakes, flaps, landing gear and engines in the conditions liable to
provide the best results will be assumed.
7.2.1 When establishing take-off and second segment performance no air will be
bled from the engines for cabin air conditioning or anti-icing.
7.3 The en-route one engine inoperative climb performance will be established
with the amount of engine air bleed associated with the maximum cabin
altitude as specified in Section 21 of the Specification and an average
ventilation rate not less than the amount defined in the Specification but
no air will be bled from the engines for anti-icing.
7.4 Climb, cruise and descent performance associated with the Guarantees will
include allowances for normal electrical load and for normal engine air
bleed and power extraction associated with cabin differential pressure as
defined in Section 21-30.31 of the Specification. Cabin air conditioning
management during performance demonstration as described in Subparagraph
8.3 below may be such as to optimise the Aircraft performance while
meeting the normal air conditioning requirements defined above. Unless
otherwise stated no air will be bled from the engines for anti-icing.
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Cruise performance at 20,000 ft and above is based on a centre of gravity
position of 34% MAC.
7.5 The engines will be operated using not more than the engine manufacturer's
maximum recommended outputs for take-off, maximum go-round, maximum
continuous, maximum climb and cruise for normal operation unless otherwise
stated.
7.6 Where applicable the Guarantees assume the use of an approved fuel having
a density of 6.7 lb per US gallon and a lower heating value of 18,590 BTU
per lb.
7.7 Speech Interference Level (SIL) is defined as the arithmetic average of
the sound pressure levels in the 1000, 2000 and 4000 Hz octave bands.
A-Weighted sound pressure level (dB(A)) is as defined in the American
National Standard Specification ANSI.4-1971.
7.8 All guaranteed interior noise levels refer to an A350-800 Aircraft with
standard acoustic insulation and an interior completely furnished. The
effect of Buyer Furnished Equipment other than leather passenger seats
(leather seats or acoustically equivalent) will be the responsibility of
the Buyers (Remark: Standard seats tend to decrease interior noise levels
by 1-2 dB)
7.9 For purposes of the sound levels guaranteed in Clause 5.2.1.2 of this
Letter Agreement, the APU and air conditioning system will be operating.
Sound level measurements may be made at the prevailing ambient temperature
with the air conditioning packs controlled to approximate air conditioning
machinery rotational speed appropriate to an ambient temperature of 25C.
8 GUARANTEE COMPLIANCE
8.1 Compliance with the Guarantees will be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless otherwise
stated.
8.2 Compliance with the take-off, second segment, en-route one engine
inoperative, approach climb and landing elements of the Guarantees will be
demonstrated with reference to the approved Flight Manual.
8.3 Compliance with those parts of the Guarantees defined in paragraph 2 and 3
above not covered by the requirements of the certifying Airworthiness
Authority will be demonstrated by calculation based on data obtained
during flight tests conducted on one (or more, at the Seller's discretion)
aircraft of the same aerodynamic configuration as the Aircraft and
incorporated in the In-Flight Performance Program and data bases ("the
IFP") appropriate to the Aircraft.
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8.4 Compliance with the Structure Usable Load guarantee defined in Paragraph 4
will be demonstrated with reference to a weight compliance report.
8.5 The approved A350-800 Aircraft flight manual will be used to demonstrate
compliance with the guarantees of certification noise levels.
8.6 Compliance with the APU noise and interior noise guarantees will be
demonstrated with reference to noise surveys conducted on one (or more, at
the Seller's discretion) A350-800 Aircraft of an acoustically equivalent
standard to those A350-800 Aircraft purchased by the Buyers.
8.7 Data derived from flight tests and noise surveys will be adjusted as
required using conventional methods of correction, interpolation or
extrapolation in accordance with established aeronautical practices to
show compliance with the Guarantees.
8.8 Compliance with the emission guarantee will be demonstrated by reference
to the ICAO Aircraft Engine Exhaust Emissions Databank entry for the
GEnx-1A75 engine.
8.9 Compliance with the Guarantees is not contingent on engine performance
defined in the engine manufacturer's specification.
8.10 The Seller undertakes to furnish the Buyers with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the A350-800 Aircraft.
9 ADJUSTMENT OF GUARANTEES
9.1 In the event of any change to any law, governmental regulation or
requirement or interpretation thereof ("rule change") by any governmental
agency made subsequent to the date of the Agreement and such rule change
affects the Aircraft configuration or performance or both required to
obtain certification the Guarantees will be appropriately modified to
reflect the effect of any such change.
9.2 The Guarantees apply to the Aircraft as described in paragraph 1 of this
Letter Agreement and may be adjusted in the event of:
i) Any further configuration change which is the subject of an
SCN
ii) Variation in actual weights of items defined in Section 13-10
of the Specification
iii) Changes required to obtain certification that cause
modifications to the performance or weight of the A350-800
Aircraft
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10 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and all other
performance and weight guarantees of any nature which may be stated,
referenced or incorporated in the Specification or any other document.
11 [...***...]
11.1 [...***...]
11.2 [...***...]
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11.3 [...***...]
UNQUOTE
12 ASSIGNMENT
In consideration of the assignment and subrogation by Seller under this
Letter Agreement in favor of the Buyers in respect of Seller's rights
against and obligations to the Manufacturer under the provisions quoted
above, the Buyers hereby accepts such assignment and subrogation and
agrees to be bound by all of the terms, conditions and limitations therein
contained. The Buyers and Seller recognize and agree that, except as
otherwise expressly provided in Clause 11 of this Letter Agreement, all
the provisions of Clause 12 of the Agreement, including without limitation
the Exclusivity of Warranties and General Limitations of Liability and
Duplicate Remedies provisions therein contained, will apply to the
foregoing performance guarantees.
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyers hereunder will not be
assigned or transferred in any manner without prior written consent of
AVSA and any attempted assignment or transfer in contravention of the
provisions of this sentence will be void and of no force and effect.
Notwithstanding the preceding sentence, the terms of Clauses 20.1 and 20.2
of the Agreement will apply to this Letter Agreement.
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
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IN WITNESS WHEREOF, these presents were entered into as of the day and year
first above written.
Very truly yours,
AVSA, S.A.R.L.
By: __________________________________
Its: __________________________________
Accepted and Agreed
US AIRWAYS GROUP, INC.
By: _________________________
Its:
AMERICA WEST AIRLINES, INC.
By: _________________________
Its:
US AIRWAYS GROUP, INC.
By: _________________________
Its:
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*** CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 9
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: MAINTENANCE COST GUARANTEE
Dear Ladies and Gentlemen:
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc. (the
"Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an Airbus A350
Purchase Agreement dated as of even date herewith (the "Agreement"), which
covers, among other things, the sale by the Seller and the purchase by the
Buyers of certain A350 Aircraft, under the terms and conditions set forth in
said Agreement. The Buyers and the Seller have agreed to set forth in this
Letter Agreement No. 9 (the "Letter Agreement") certain additional terms and
conditions regarding the sale of the A350 Aircraft. Capitalized terms used
herein and not otherwise defined in this Letter Agreement will have the meanings
assigned thereto in the Agreement. The terms "herein," "hereof" and "hereunder"
and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
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The Seller represents and warrants that the Manufacturer has provided to the
Seller the maintenance cost guarantee 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 the Buyers hereby accepts,
all of the Seller's rights and obligations as the "Buyers" under the said
maintenance cost guarantees, and the Seller subrogates the Buyers to all such
rights and obligations in respect of the A350 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 the Buyers.
Prior to implementation of the following maintenance cost guarantee, the Buyers
will designate one Buyer who will act on behalf of the Buyers as a group, and
the Buyers will give notice to the Seller of this designation.
QUOTE
1. SCOPE
1.1 The Seller hereby provides the Buyers with the following maintenance cost
guarantee (the "Maintenance Cost Guarantee").
1.2 The Seller guarantees the maximum direct labor and material costs for
parts and systems identified in Appendix 1 ("Parts and Systems"). The
Maintenance Cost Guarantee applies to maintenance related to parts,
subassemblies or assemblies that are scrapped in the process of
maintaining, restoring or overhauling A350 Aircraft components categorized
as "rotable" or "repairable" items, and does not include any indirect
maintenance labor and material expenditures.
1.3 The Maintenance Cost Guarantee does not cover line maintenance or A
checks, or any work related to either line maintenance or A checks
(transit, daily and weekly checks and associated trouble-shooting and
deferrals, etc.).
2. DURATION
This Maintenance Cost Guarantee covers the [...***...] period commencing
on Delivery of the first A350-800 Aircraft, for A350-800 Aircraft, or
A350-900 Aircraft, for A350-900 Aircraft (the "Duration").
3. GUARANTEED DIRECT MAINTENANCE COST
3.1 Direct maintenance costs ("DMCs") are those maintenance labor and material
costs directly expended in performing maintenance on an item or aircraft.
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DMCs do not include those indirect maintenance labor and material
expenditures which contribute to the overall maintenance operations, line
station servicing, administration, record keeping, supervision, tooling,
test equipment, facilities, etc.
(DMC definition source: ATA CSDD - Common Support Data Dictionary.)
3.2 The Seller guarantees for the Duration that the Direct Maintenance Cost
per flying hour for the maintenance, restoration, and overhaul of the
Parts and Systems (the "Guaranteed Direct Maintenance Cost") will not
exceed an average of:
(i) For the A350-800 Aircraft:
(a) [...***...] per flight hour for the First Computation Period
(as defined in Clause 6.2) (the "A350-800 First Guaranteed
DMC"); or
(b) [...***...] per flight hour for the Second Computation Period
(as defined in Clause 6.3) (the "A350-800 Second Guaranteed
DMC").
The A350-800 First Guaranteed DMC and the A350-800 Second Guaranteed
DMC are together the "A350-800 Guaranteed DMCs."
(ii) For the A350-900 Aircraft:
(a) [...***...] per flight hour for the First Computation Period
(as defined in Clause 6.2) (the "A350-900 First Guaranteed
DMC"); or
(b) [...***...] per flight hour for the Second Computation Period
(as defined in Clause 6.3) (the "A350-900 Second Guaranteed
DMC").
The A350-900 First Guaranteed DMC and the A350-900 Second Guaranteed
DMC are together the "A350-900 Guaranteed DMCs".
The A350-800 Guaranteed DMCs and the A350-900 Guaranteed DMCs are
collectively the "Guaranteed DMCs."
3.3 The Guaranteed DMC values are expressed in January 2005 prices. These
prices will be increased every year in accordance with the Direct
Maintenance Cost Adjustment Formula set out in Appendix 3.
4. ADJUSTMENTS
4.1 The Guaranteed DMCs are based on the assumptions set out in Appendix 2 and
an estimated A350 Aircraft average flight leg time of seven point zero
(7.0) hours and an average usage rate of four thousand five hundred
(4,500) flight hours per year per A350 Aircraft. Should
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the applicable A350 Aircraft average flight leg time differ from seven
point zero (7.0) hours, then adjustments will be made in accordance with
the following formula No. 1.
X + YT(F)
C(G) = --------- formula No. (1)
T(F)
where,
C(G) is the A350-800 Guaranteed DMC or A350-900 Guaranteed DMC per flight
hour, as applicable, in US dollars specified in Paragraph 3,
T(F) is the applicable A350 Aircraft average flight leg time, in hours.
(i) For the A350-800 Aircraft:
for the First Computation Period
X is [...***...] per flight cycle,
Y is [...***...] per flight hour,
for the Second Computation Period
X is [...***...] per flight cycle,
Y is [...***...] per flight hour,
(ii) For the A350-900 Aircraft:
for the First Computation Period
X is [...***...] per flight cycle,
Y is [...***...] per flight hour,
for the Second Computation Period
X is [...***...] per flight cycle,
Y is [...***...] per flight hour,
4.2 Should the applicable A350 Aircraft average usage rate differ from four
thousand five hundred (4,500) flight hours by more than ten percent (10%),
then the corresponding Guaranteed DMC values will be adjusted by the
Seller accordingly.
5. REPORTING
5.1 The Buyers will provide the Seller with complete and detailed maintenance
cost data ("A350 Maintenance Cost Data") annually, in English for each
A350 Aircraft. The A350
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Maintenance Cost Data will include, as applicable:
- A350 Aircraft MSN or registration number
- All in-house accounting related to maintenance costs
- All invoicing related to maintenance costs
- Access to maintenance contracts where allowable
- Maintenance reports
- Pilots' reports
- Operational data such as A350 Aircraft flight hours and flight
cycles and auxiliary power unit running hours
5.2 If the Seller finds such A350 Maintenance Cost Data to be insufficiently
detailed or unsubstantiated, the Buyers, using reasonable efforts, will
supply additional data at the Seller's request.
5.3 With respect to maintenance or repairs subcontracted by the Buyers to, and
performed by, third parties, the actual direct cost of consumed material
will be deemed to be [...***...] of the price to the Buyers of
such maintenance or repairs, if an insufficient breakdown of such
maintenance or repair costs is supplied.
5.4 The Buyers will deliver the A350 Maintenance Cost Data not later than
[...***...] following the end of each of its accounting years; and the
Buyers will put at the Seller's disposal any documents, records, books,
etc. necessary for validating the Buyers' information.
5.5 Should the Buyers not be able to provide sufficient Maintenance Cost Data
to the Seller for the purpose of this Maintenance Cost Guarantee, the
Buyers will notify the Seller within [...***...] after the end of the
first of the Buyers' accounting years of the reasons why.
If the Seller receives no A350 Maintenance Cost Data from the Buyers
within [...***...] after the end of the second of the Buyers'
accounting years occurring during the Duration, then the Direct
Maintenance Costs will be considered acceptable to the Buyers and this
Maintenance Cost Guarantee will automatically terminate.
6. RESULTS AND REMEDY
6.1. Annual Reviews
6.1.1 Not later than [...***...] following the end of each accounting year of
the Buyers, the Buyers and the Seller will organize an annual maintenance
cost review, in order to:
(a) jointly review the accounted DMCs,
(b) correct any accounting error in the actual DMCs due to any of the
exclusions in Paragraph 8 and/or Appendix 1,
(c) make any necessary adjustments to the actual DMCs in accordance with
Paragraphs 4 and/or 7,
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and calculate, for each A350 Aircraft, the following parameters:
C(AN) the actual DMC of the applicable A350 Aircraft in US dollars per
flight hour for each year in the Duration as measured by the
Accounting System (defined in Paragraph 11.1) and agreed by the
Seller, and
C(GN) the Guaranteed DMC as determined pursuant to Clause 4 for the year
"N."
6.1.2 The Seller will, following these analyses and reviews and at the Seller's
discretion, propose maintenance cost reduction initiatives and/or
recommendations to the Buyers including, but not limited to, those
described in Paragraph 9.
6.1.3 As a result of the third year annual maintenance cost review, should the
Buyers and Seller mutually agree that the adjusted DMCs for the A350
Aircraft exceed the Guaranteed Direct Maintenance Cost by more than
[...***...] during each of the first three (3) consecutive years
of the Duration, then the interval between computation periods will be
adjusted to [...***...], and Paragraphs 6.2 and 6.3 will be modified
accordingly.
6.2 First Computation Period
6.2.1 Within [...***...] after the end of the [...***...] of the Duration (the
"A350-800 First Computation Period" for the A350-800 Aircraft and the
"A350-900 First Computation Period" for the A350-900 Aircraft), the Direct
[...***...] for each of the first [...***...] of the Duration will
be calculated in accordance with Paragraph 4. The Seller and the Buyers
will:
(a) jointly review the accounted DMCs,
(b) correct any accounting error in the actual DMCs due to any of the
exclusions in Paragraph 8 and/or Appendix 1,
(c) make any necessary adjustments to the actual DMCs in accordance with
Paragraphs 4 and/or 7, and
(d) calculate for each A350 Aircraft the Seller's liability for the
A350-800 First Computation Period and A350-900 First Computation
Period, as applicable, using formula No. (2) below:
[...***...]
where,
[...***...]
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C(AN) and C(GN) are determined as provided in Clause 6.1.1 for each
of the first [...***...] of the Duration.
6.2.2 [...***...]
6.2.3 [...***...]
6.3 Second Computation Period
6.3.1 Within [...***...] after the end of the Duration, the Direct
Maintenance Costs for each of the [...***...] of the Duration (the
"A350-800 Second Computation Period" for the A350-800 Aircraft and the
"A350-900 Second Computation Period" for the A350-900 Aircraft) will be
calculated in accordance with Paragraph 4. The Seller and the Buyers will:
(a) jointly review the accounted DMCs,
(b) correct any accounting error in the actual DMCs due to any of the
exclusions in Paragraph 8 and/or Appendix 1,
(c) make any necessary adjustments to the actual DMCs in accordance with
Paragraphs 4 and/or 7 ,
(d) calculate for each A350 Aircraft the Seller's liability for the
A350-800 Second Computation Period or A350-900 Second Computation
Period, as applicable, using formula No. (3) below:
12
[...***...] formula No. (3)
n=1
where,
[...***...]
[...***...]
C(AN) and C(GN) are as determined pursuant to Paragraph 6.1.1 for
each of the twelve (12) years of the Duration.
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6.3.2 [...***...]
6.3.3 [...***...]
6.3.4 [...***...]
7. CONDITIONS OF THE GUARANTEE
7.1 Guaranteed DMC values in Paragraph 3 are based on a typical block concept
maintenance program approved by the FAA, covering routine maintenance
tasks and their associated non- routine work, as specified in the Airbus
Maintenance Planning Document ("Airbus MPD").
The Guaranteed DMC values will be revised by the Seller and the Buyers,
subject to mutual agreement, in accordance with the maintenance tasks
specified in the A350 Airbus MPD of the Buyers' FAA approved maintenance
program developed by the Buyers and based on the Airbus MPD, when
finalized and in accordance with the Buyers' organization of, and strategy
for A350 Aircraft maintenance.
In addition to the adjustments described in Paragraph 4, any changes to
the conditions herein will be cause for reevaluation and/or adjustment of
the Maintenance Cost Guarantee, including, but not limited to:
(a) Changes in the assumptions listed in Appendix 2.
(b) One or more contracts and/or fixed cost per flight hour or per
landing agreements between the Buyers and third parties are
concluded. The Buyers will provide the Seller with a true and
complete copy of each such agreement.
The Seller agrees not to disclose any information in any such
agreement to third parties. If, notwithstanding such non-disclosure
commitment from the Seller, the Buyers is precluded from disclosing
all relevant particulars of any such agreement to the Seller after
having made best efforts to obtain consent from the relevant third
party, the Seller may consider alternative information from the
Buyers, provided that such information is acceptable to the Seller,
at its sole discretion, in determining whether there is cause for
reevaluation and/or adjustment of this Maintenance Cost Guarantee.
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(c) Should there occur any certification, regulatory or A350 Aircraft
operational changes outside the Seller's control or influence that
may have an effect on the Buyers' Direct Maintenance Costs.
7.2 The obligations of the Seller hereunder are subject to each of the
following requirements:
(a) This Maintenance Cost Guarantee covers routine tasks as defined in
the Airbus MPD and non-routine related findings and refurbishing
work in accordance with approved maintenance practices.
(b) The Buyers' maintenance personnel, including its maintenance control
center personnel will be trained to a level equivalent to Airbus
training level III where required, and they will receive periodic
refreshment training.
(c) Parts, equipments and tools will be maintained by the Buyers in
accordance with manufacturers' recommendations.
(d) The Buyers will comply with the Airbus no-fault-found policy (NFF),
or if not possible, the Buyers will demonstrate to the Seller the
non-applicability due to the A350 Aircraft operational constraints.
(e) The Seller's representatives will be fully authorized by the Buyers
to visit the Buyers' or its maintenance provider's facilities to
confirm the implementation by the Buyers of the Seller's maintenance
procedures and to audit maintenance costs accounting.
(f) AIRMAN (or equivalent reporting system utilized by Buyers) with
real-time access, will be implemented by the Buyers to launch,
report and track maintenance actions.
(g) Shop-findings related to an equipment or line replaceable unit
removal will be collected and recorded with the job-card or log-book
reference.
(h) Elapsed time and man-hours expended on each action will be recorded
onto the relevant job card to enable retrieval of the information
from AIRMAN (or equivalent reporting system utilized by Buyers).
(i) The Buyers will implement the recommendations mutually agreed on by
the Seller and the Buyers following a "Best Industry Practices"
review.
(j) Deferred line maintenance actions will be tracked and reported.
8. EXCLUSIONS
This Maintenance Cost Guarantee will only apply to Direct Maintenance
Costs arising from proper operations, and will not cover Direct
Maintenance Costs resulting from:
- force majeure,
- acts of any third party,
- consequential damages,
- negligence, incidental or accidental damage,
- modifications not related to a decrease in Direct Maintenance Cost,
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- line maintenance (transit, daily and weekly checks and associated
trouble-shooting and deferrals, etc.),
- all A-checks and associated trouble-shooting,
- maintenance performed for Propulsion Systems, Propulsion Systems
manufacturer supplied equipment, Propulsion Systems related Buyer
Furnished Equipment,
- maintenance of equipment classified as Buyer Furnished Equipment,
- maintenance of equipment classified as Operator Furnished Equipment
under the A350-800 Standard Specification, Issue B or A350-900
Standard Specification, Issue B,
- non-routine work exceeding twenty-five (25) man-hours per Airbus MPD
task,
- non-compliance by the Buyers with accepted industry practices or
acts attributable to the negligence of the Buyers or its
subcontractors and agents,
- partial or complete painting of the A350 Aircraft for cosmetic
reasons (this exclusion does not include painting for corrosion
preventative maintenance),
- refurbishing work that is included in the Buyers' FAA approved
maintenance program but not in accordance with and not directly
related to routine Airbus MPD tasks,
- any maintenance task that is not included in the Buyers' FAA
approved maintenance program and does not originate from the Airbus
MPD.
In addition, the following costs are specifically excluded:
- cost of taxes, duties, transportation, interest, overheads, burden
or other charges which are not the Seller's responsibility,
- cost of fluids, compounds, paints and cleaning material, and any
other such disposable materials, and
- all handling fees.
9. MAINTENANCE COST REDUCTION INITIATIVES
9.1 As stated in Paragraphs 6.2 and 6.3, during any review of the Buyers'
maintenance operations, in the event that the A350-800 Guaranteed DMC or
A350-900 Guaranteed DMC level is exceeded, the Seller may propose
initiatives and/or recommendations to reduce maintenance costs. To make
these proposals, the Seller may audit the Buyers' maintenance operation
and or selected maintenance provider's A350 Maintenance Cost Data to
propose:
- modifications in working practices,
- technical reviews,
- an alternative maintenance provider or maintenance solution
- modifications to maintenance programs (including escalation where
possible) or training, and/or
- any other action which should lead to a reduction of the Buyers'
direct labor man-hour maintenance expenditure.
9.2 Should the Buyers or its maintenance provider elect to not implement or
disagree as to the effectiveness of such initiatives and/or
recommendations proposed by the Seller, the
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Buyers will then reasonably demonstrate to the Seller that those
initiative and/or recommendations to reduce maintenance costs are
ineffective, uneconomical and impractical in reducing the A350 Maintenance
Cost Data for the Buyers' operations. Both parties will then use
reasonable efforts to determine mutually acceptable maintenance cost
reduction initiatives.
The Seller reserves the right to reasonably deduct from the actual DMC the
benefits expected from the implementation of such initiatives and or
recommendations.
9.3 For the Duration, the Buyers will use all means possible to incorporate
modifications (including, but not limited to, Service Bulletins),
procedures or recommendations (collectively, "Recommendations") that may
be made by the Seller to reduce the DMCs of the A350 Aircraft, [...***...]
10. MAINTENANCE PROCEDURES
The Buyers will perform its maintenance operations in compliance with the
applicable FAA approved A350 Aircraft maintenance and overhaul manuals.
Such maintenance operations will be performed by appropriately trained
personnel and FAA approved maintenance organizations.
11. ACCOUNTING SYSTEM
11.1 This Maintenance Cost Guarantee is subject to the establishment by the
Buyers of an accounting system relating to its maintenance costs (an
"Accounting System") that is approved by the Seller not later than
[...***...] prior to Delivery of the first A350 Aircraft, to ensure
accurate maintenance cost reporting hereunder. If the Seller fails to
conduct a review of they Buyers' accounting system at this time, the
Buyers' accounting system will be deemed acceptable and will be used the
source of the information needed to provide the required information.
11.2 The Accounting System will take into account any and all warranty,
guarantee and other, similar payments made by the Seller or any other
person in respect of any item of equipment the maintenance costs of which
are proposed by the Buyers to be included in the calculation of its direct
maintenance costs for purposes of this Letter Agreement.
11.3 Should the Accounting System not provide for accurate cost reporting to
the Seller's satisfaction, the Guaranteed DMC will be mutually reviewed
and agreed between the Buyers and the Seller.
12. DISRUPTIONS
The provisions of this Maintenance Cost Guarantee will not apply during
any period when the Buyers experiences disruptions of operations.
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13. [...***...]
14. SELLER'S LIABILITY
The Seller's liability under this Maintenance Cost Guarantee will be
governed solely by the terms of the present Maintenance Cost Guarantee
15. NO DUPLICATE REMEDIES
The intent of this Maintenance Cost Guarantee is to provide benefits to
the Buyers in order to ensure that the actual direct maintenance cost
levels of the A350 Aircraft are not higher than the Guaranteed Direct
Maintenance Costs. It is not the intent, however, to duplicate similar
benefits available to the Buyers under any other applicable agreement
(including, without limitation, the Agreement), guarantee, warranty,
service life policy, or any other special benefit of any kind.
16. ASSIGNMENT
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyers herein will not be assigned
or transferred in any manner and any attempted assignment or transfer in
contravention of the provisions of this paragraph will be void and of no
force or effect.
17. NEGOTIATED AGREEMENT
THE BUYERS AND THE SELLER AGREE THAT THIS LETTER AGREEMENT HAS BEEN THE
SUBJECT OF DISCUSSIONS AND NEGOTIATION BY THE PARTIES AND THAT THE OTHER
MUTUAL AGREEMENT OF THE PARTIES SET FORTH IN THE PURCHASE AGREEMENT WERE
ARRIVED AT IN CONSIDERATION OF, INTER ALIA, THE PROVISIONS OF THIS LETTER
AGREEMENT.
UNQUOTE
In consideration of the assignment and subrogation by the Seller under
this Letter Agreement in favor of the Buyers in respect of the Seller's
rights against and obligations to the Manufacturer under the provisions
quoted above, the Buyers hereby accepts such assignment and subrogation
and agrees to be bound by all of the terms, conditions and limitations
therein contained. The Buyers and Seller recognize and agree that all the
provisions of Clause 12 of the Agreement, mutatis mutandis, including
without limitation the Exclusivity of Warranties and General Limitations
of Liability and Duplicate Remedies provisions therein contained, will
apply to the foregoing maintenance cost guarantee.
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18. ASSIGNMENT
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyers hereunder will not be
assigned or transferred in any manner without the prior written consent of
the Seller, and any attempted assignment or transfer in contravention of
the provisions of this paragraph will be void and of no force or effect.
19. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
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IN WITNESS WHEREOF, these presents were entered into as of the day and
year first above written.
Very truly yours,
AVSA, S.A.R.L.
By: ____________________________
Its:
Accepted and Agreed
US Airways, Inc.
By: _________________________
Its:
America west airlines, Inc.
By: _________________________
Its:
US AIRWAYS GROUP, INC.
By: _________________________
Its:
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APPENDIX 1 TO MAINTENANCE COST GUARANTEE
The following systems are covered by the Maintenance Cost Guarantee:
System No. System Name System/subsystem exclusions
------------------------------------------------------------------------------
[...***...]
The following are also excluded from the Maintenance Cost Guarantee in their
entirety:
- Seller Furnished Equipment that has been changed from Buyer
Furnished Equipment at the Buyers' request;
- Buyer Furnished Equipment and
- Optional Equipment.
If the Buyers enters into direct agreements with third parties for the
maintenance of brakes, wheels, tires, APU, landing gear, etc., then, as set
forth in Paragraph 7.1, the Guaranteed DMCs will be adjusted accordingly.
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APPENDIX 2 TO MAINTENANCE COST GUARANTEE
Basis assumptions:
Average sector length: 7.0 flight hours
Average annual utilization: 4,500 flight hours
Proportion of work carried out in-house:
[...***...]
In-house conditions:
[...***...]
Subcontracted conditions:
[...***...]
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APPENDIX 3 TO MAINTENANCE COST GUARANTEE
DIRECT MAINTENANCE COST ADJUSTMENT FORMULA
[...***...]
Where
[...***...]
[...***...]
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***CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 10
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: MISCELLANEOUS
Ladies and Gentlemen,
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc. (the
"Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an Airbus A350
Purchase Agreement dated as of the date hereof (the "Agreement"), which covers,
among other things, the sale by the Seller and the purchase by the Buyers of
certain Aircraft, under the terms and conditions set forth in said Agreement.
The Buyer and the Seller have agreed to set forth in this Letter Agreement No.
10 (the "Letter Agreement") certain additional terms and conditions regarding
the sale of the Aircraft. Capitalized terms used herein and not otherwise
defined in this Letter Agreement will have the meanings assigned thereto in the
Agreement. Technical and trade terms used but not defined herein or in the
Agreement will be defined as generally accepted in the airline and/or aircraft
manufacturing industries. The terms "herein," "hereof" and "hereunder" and words
of similar import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
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1. CROSS-DEFAULT
Clause 21.1 of the Agreement is hereby amended by the addition of
the following text:
QUOTE
[...***...]
UNQUOTE
2. LEASED AIRCRAFT
[...***...]
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3. [...***...]
4. TERMINATION
[...***...]
QUOTE
[...***...]
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UNQUOTE
5. CONDITIONS PRECEDENT
It will be a condition precedent to the effectiveness of this
Agreement that the conditions precedent to the obligations of Airbus
Financial Services (the "Lender") set forth in the $161,000,000 Loan
Agreement dated as September 27, 2005 among US Airways, Inc.,
America West Airlines, Inc., US Airways Group, Inc., the Lender and
Wells Fargo Bank Northwest, National Association, as Collateral
Agent, have been either satisfied or been waived by the Lender.
6. ASSIGNMENT
Except as set forth in Clause 20.2 of the Agreement, this Letter
Agreement and the rights and obligations of the Buyer hereunder will
not be assigned or transferred in any manner without the prior
written consent of the Seller, and any attempted assignment or
transfer in contravention of the provisions of this Paragraph 6 will
be void and of no force or effect.
7. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an
original, and the counterparts will together constitute one same
instrument.
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IN WITNESS WHEREOF, these presents were entered into as of the day and year
first above written.
Very truly yours,
AVSA, S.A.R.L.
By: ____________________
Its:
Accepted and Agreed
US AIRWAYS GROUP, Inc.
By: _________________________
Its:
AMERICA WEST AIRLINES, INC.
By: _________________________
Its:
US AIRWAYS, INC.
By: _________________________
Its:
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***CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 11
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: PREDELIVERY PAYMENTS
Ladies and Gentlemen,
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc. (the
"Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an Airbus A350
Purchase Agreement dated as of even date herewith (the "Agreement"), which
covers, among other things, the sale by the Seller and the purchase by the
Buyers of certain Aircraft, under the terms and conditions set forth in said
Agreement. The Buyers and the Seller have agreed to set forth in this Letter
Agreement No. 11 (the "Letter Agreement") certain additional terms and
conditions regarding the sale of the Aircraft. Capitalized terms used herein and
not otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. Technical and trade terms used but not defined herein
or in the Agreement will be defined as generally accepted in the airline and/or
aircraft manufacturing industries. The terms "herein," "hereof" and "hereunder"
and words of similar import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an integral,
nonseverable part of said Agreement, that the provisions of said Agreement are
hereby incorporated herein by reference, and that this Letter Agreement will be
governed by the provisions of said Agreement, except that if the Agreement and
this Letter Agreement have specific provisions which are inconsistent, the
specific provisions contained in this Letter Agreement will govern.
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1. [...***...]
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2. ASSIGNMENT
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyers hereunder will not be
assigned or transferred in any manner without the prior written consent of
the Seller, and any attempted assignment or transfer in contravention of
the provisions of this Paragraph 2 will be void and of no force or effect.
3. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
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IN WITNESS WHEREOF, these presents were entered into as of the day and
year first above written.
Very truly yours,
AVSA, S.A.R.L.
By: __________________________
Its:
Accepted and Agreed
US AIRWAYS, INC.
By: __________________________
Its:
AMERICA WEST AIRLINES, INC.
By: _________________________
Its:
US AIRWAYS GROUP, INC.
By: _________________________
Its
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***CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 12
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re: [...***...]
Dear Ladies and Gentlemen:
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc.
(the "Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an
Airbus A350 Purchase Agreement dated as of even date herewith (the
"Agreement"), which covers, among other things, the sale by the Seller and
the purchase by the Buyers of certain A350-800 Aircraft, under the terms
and conditions set forth in said Agreement. The Buyers and the Seller have
agreed to set forth in this Letter Agreement No. 12 (the "Letter
Agreement") certain additional terms and conditions regarding the sale of
the A350-800 Aircraft. Capitalized terms used herein and not otherwise
defined in this Letter Agreement will have the meanings assigned thereto
in the Agreement. Technical and trade terms used but not defined herein or
in the Agreement will be defined as generally accepted in the airline
and/or aircraft manufacturing industries. The terms "herein," "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an
integral, nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this
Letter Agreement will be governed by the provisions of said Agreement,
except that if the Agreement and this Letter Agreement have specific
provisions which are inconsistent, the specific provisions contained in
this Letter Agreement will govern.
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The Seller represents and warrants that the Manufacturer has provided to
the Seller the [...***...] (the "Guarantees") 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 the Buyers hereby accept, all of the Seller's rights
and obligations as the "Buyers" under the said Guarantees, and the Seller
subrogates the Buyers to all such rights and obligations in respect of the
A350-800 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 the
Buyers.
QUOTE
1 PREAMBLE
1.1 AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to the
A350-800 Aircraft as described in the Standard Specification Ref. G 000
08000 Issue A dated February 28th, 2005 and [...***...].
1.2 INTRODUCTION
The paragraphs hereafter define the Guarantee provided by the Seller to
the Buyers, together with the associated conditions, compliance
demonstration and settlement procedures. [...***...].
2 [...***...]
2.1 This Guarantee will apply to the Aircraft as defined in the preamble to
this Letter Agreement.
The term "Fleet" will mean a fleet of A350 Aircraft to be delivered
[...***...].
The Guarantee [...***...], is based on such delivery plan of Buyers' A350
Aircraft and will be reviewed in good faith between the Buyers and the
Seller should the actual delivery plan (dates, composition of the fleet,
number of firm aircraft) differ from the planned delivery schedule
[...***...].
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2.2 [...***...]
2.3 [...***...]
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3 [...***...]
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4 [...***...]
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5 [...***...]
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6. [...***...]
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7. [...***...]
8 [..***...]
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9 [...***...]
10 [...***...]
11 NON TRANSFERABILITY
This Letter Agreement is not transferable, notwithstanding clause 21 of
the Agreement, and the Buyers' rights under this Letter Agreement will not
be assigned, sold, transferred or otherwise alienated by operation of law
or otherwise to any person other than the Buyers. Any unauthorised
assignment, sale, transfer or other alienation of the Buyers' rights under
this Letter Agreement with respect to any Aircraft will immediately void
this Letter Agreement in its entirety as to any such Aircraft.
UNQUOTE
12 ASSIGNMENT
In consideration of the assignment and subrogation by the Seller under
this Letter Agreement in favor of the Buyer in respect of the Seller's
rights against and obligations to the Manufacturer under the provisions
quoted above, the Buyer hereby accepts such assignment and subrogation and
agrees to be bound by all of the terms, conditions and limitations therein
contained. The Buyer and Seller recognize and agree that all the
provisions of Clause 12 of the Agreement, including without limitation the
Exclusivity of Warranties and General Limitations of Liability and
Duplicate Remedies provisions therein contained, will apply to the
foregoing Performance Retention Guarantee.
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyers hereunder will not be
assigned or transferred in any manner without prior written consent of the
Seller and any attempted assignment or transfer in contravention of the
provisions of this sentence will be void and of no force and effect.
13. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
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IN WITNESS WHEREOF, these presents were entered into as of the day and
year first above written.
Very truly yours,
AVSA, S.A.R.L.
By: __________________________
Its:
Accepted and Agreed
US AIRWAYS GROUP, INC.
By: _________________________
Its:
AMERICA WEST AIRLINES, INC.
By: _________________________
Its:
US AIRWAYS GROUP, INC.
By: _________________________
Its:
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[...***...]
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[...***...]
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***CERTAIN CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
LETTER AGREEMENT NO. 13
As of September 27, 2005
US Airways Group, Inc.
US Airways, Inc.
America West Airlines, Inc.
4000 East Sky Harbor Boulevard
Phoenix, AZ 85034
Re:DISPATCH RELIABILITY GUARANTEE
Dear Ladies and Gentlemen:
US Airways, Inc., America West Airlines, Inc. and US Airways Group, Inc.
(the "Buyers"), and AVSA, S.A.R.L. (the "Seller"), have entered into an
Airbus A350 Purchase Agreement dated as of even date herewith (the
"Agreement"), which covers, among other things, the sale by the Seller and
the purchase by the Buyers of certain A350-800 Aircraft, under the terms
and conditions set forth in said Agreement. The Buyers and the Seller have
agreed to set forth in this Letter Agreement No. 13 (the "Letter
Agreement") certain additional terms and conditions regarding the sale of
the A350-800 Aircraft. Capitalized terms used herein and not otherwise
defined in this Letter Agreement will have the meanings assigned thereto
in the Agreement. Technical and trade terms used but not defined herein or
in the Agreement will be defined as generally accepted in the airline
and/or aircraft manufacturing industries. The terms "herein," "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
All of the parties agree that this Letter Agreement will constitute an
integral, nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this
Letter Agreement will be governed by the provisions of said Agreement,
except that if the Agreement and this Letter Agreement have specific
provisions which are inconsistent, the specific provisions contained in
this Letter Agreement will govern.
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The Seller represents and warrants that the Manufacturer has provided to
the Seller the dispatch reliability guarantees that are reproduced below
between the words QUOTE and UNQUOTE, subject to the terms, conditions,
limitations and restrictions set forth below. The Seller hereby assigns to
the Buyers, and the Buyers hereby accept, as to each A350-800 Aircraft
delivered to the Buyers under the Agreement, all of the Seller's rights
and obligations with respect to such A350-800 Aircraft in its capacity as
"Buyers" as aforesaid under the said dispatch reliability guarantees, and
the Seller subrogates the Buyers into all such rights and obligations in
respect of the A350-800 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 the Buyers.
QUOTE
1. SCOPE
The Buyer and the Seller agree they have a mutual interest in the
technical reliability of the Buyer's Aircraft fleet to be of a high order,
with a high probability that the aircraft will be Dispatched on time
("Dispatch Reliability"). This Letter Agreement extends to the Buyer's
Aircraft fleet described in the Agreement and operated by the Buyer, a
Dispatch Reliability guarantee (the "Guarantee").
2. DURATION
The obligations of the Buyer and the Seller under this Letter Agreement
shall become binding upon signature of the Agreement and shall remain in
force for a period of [...***...] from delivery of the first (1st)
Aircraft to the Buyer (the "Duration").
At the end of the year following the Duration, the Buyer and the Seller
will organise a Review Meeting as per Paragraph 9. At the occasion of this
Review, if the Achieved Dispatch Reliability is confirmed and agreed by
the Buyer and the Seller as below the Guaranteed Dispatch Reliability, the
Seller will continue to make Recommendations in order to improve the
Dispatch Reliability of the Buyer's fleet for the following year. These
Buyer's and Seller's obligations will set in force until the Achieved
Dispatch Reliability is above the Guaranteed Dispatch Reliability and for
a period not exceeding [...***...] from delivery of the first (1st)
Aircraft to the Buyer.
3. DEFINITIONS
3.1 ACHIEVED DISPATCH RELIABILITY
The "Achieved Dispatch Reliability" is the actual dispatch reliability
obtained by the Buyer's Aircraft fleet in regular Scheduled Revenue Flight
service adjusted in accordance with the clauses of this Guarantee.
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Achieved Dispatch Reliability will be calculated for each Computation
Period, expressed as a percentage, as follows:
[...***...]
3.2 AIRCRAFT INHERENT MALFUNCTION
An "Aircraft Inherent Malfunction" is a condition whereby maintenance
actions confirm that the operation of a system or component is outside the
specified limitations: a) as defined in the applicable Maintenance or
Operations Manual(s), and/or b) has not been induced by a secondary cause
or as a consequence of an Excluded Event as defined in paragraph 5.
3.3 CHARGEABLE EVENT
Under this Guarantee a "Chargeable Event" is a Chargeable Delay or
Chargeable Cancellation or Chargeable Return to Gate as defined hereunder.
If analysis of substantiating data determines that the primary reason(s)
for any Chargeable Event are not due to an Aircraft Inherent Malfunction
or are due to an Excluded Event, such Chargeable Delay or Chargeable
Cancellation shall not constitute a Chargeable Event.
3.3.1 A "Chargeable Delay" occurs when a confirmed Aircraft Inherent
Malfunction directly results in an originating Scheduled Revenue Flight to
be Dispatched more than [...***...] later than the scheduled time
of departure.
3.3.2 A "Chargeable Return to Gate" occurs when the Aircraft, after being
Dispatched returns to the parking position or gate, including a return to
takeoff initiation (ground turn-back) or after takeoff initiation (aborted
takeoff).
3.3.3 A "Chargeable Cancellation" occurs when a Scheduled Revenue Flight
cannot take place as a direct result of a confirmed Aircraft Inherent
Malfunction. Cancellation of any or all of the flight legs of a multi-leg
flight if related to a Chargeable Event, constitutes and is counted as one
Chargeable Event only.
3.4 COMMENCEMENT DATE
The "Commencement Date" is the [...***...] following the month of delivery
of the first Aircraft to the Buyer.
3.5 COMPUTATION PERIOD
For the guarantee Duration each "Computation Period" consists of
[...***...], the first to run from the commencement date to the
[...***...] of the delivery date of the first Aircraft to the Buyer. Each
subsequent Computation Period to run consecutively thereafter.
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3.6 DISPATCHED
Once an Aircraft has left the gate or stand for a Scheduled Revenue Flight
it shall be deemed to have been "Dispatched", except as provided for in
paragraph 3.3 above.
3.7 SCHEDULED REVENUE FLIGHT
A "Scheduled Revenue Flight" is one originating flight operated by the
Buyer using the Buyer's Aircraft delivered under the Agreement, available
to be Dispatched prior to the original scheduled time of departure as
stipulated:
a) in the Buyer's timetable, as a scheduled flight, and/or
b) in advance by the Buyer, as a charter flight.
4. GUARANTEE
4.1 GUARANTEED DISPATCH RELIABILITY
The "Guaranteed Dispatch Reliability" exclusively relating to this
Guarantee is solely as defined herein and provided in lieu of any and all
other guarantees relating to Dispatch Reliability of any nature that may
be stated, referenced or incorporated in any other document related to the
Agreement.
4.1.1 Guaranteed Dispatch Reliability [...***...]
The Seller guarantees that from the Commencement Date to the end of the
[...***...] of Schedule Revenue Flight operation, on average, an Aircraft
available to be Dispatched will have a [...***...] probability of being
Dispatched without a Chargeable Event.
4.1.2 Guaranteed Dispatch Reliability
The Seller guarantees that, for the [...***...] of Schedule Revenue Flight
operation, on average, an Aircraft available to be Dispatched will have a
[...***...] probability of being Dispatched without a Chargeable Event.
4.2 SUSPENSION OF GUARANTEE
The provisions of this Guarantee shall not apply for any Computation
Period during which:
[...***...]
where :
[...***...]
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[...***...]
4.3 [...***...]
5. EXCLUSIONS
Delays and/or cancellations due to any of the causes below are
specifically excluded from this Guarantee, similarly if the Aircraft is
consequently subject to a Chargeable Event. An "Excluded Event" is a delay
or cancellation due to:
a) Acts of third party
b) Aircraft damage due to external forces such as lightning strikes, force
majeure, personnel error or by passengers, etc.
c) Buyer Furnished Equipment (BFE) or software embodied therein.
d) Late arrival of the Aircraft, resulting in insufficient ground time for
the Aircraft to be Dispatched at the scheduled departure time.
e) Maintenance Staff untimely request and/or unavailability. Late call by
flight crew and/or late arrival of maintenance staff at the Aircraft to
assist in returning the Aircraft to Scheduled Revenue Flight condition
resulting in the Aircraft being unable to be Dispatched within fifteen
(15) minutes.
f) MMEL Items. Delays or cancellations due to any reason designated as
"Go" or "Go If" in the FAA approved Master Minimum Equipment List (MMEL)
for the Buyer's Aircraft.
g) Normal Wear Maintenance.
- Decals / paint / appearance items
- Brakes and/or tires - worn beyond limits or imbalanced replacement
- Passenger amenity items.
h) Non-Schedule Revenue Flights
- Delays and cancellations relating to flights outside the definition of
Schedule Revenue Flights in paragraph 3.7 above, including
substitutions or aircraft swap made after the stipulated scheduled time
of departure has elapsed.
i) Precautionary Maintenance (No corrective Maintenance required)
- Doors - manual closing or cycling of passenger / crew / cargo doors
- Fluid leaks - within specified limits contained in applicable
maintenance manual
- Placard - installing / continuing
- System(s) reset by resetting circuit breakers, switches or power
supply.
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j) Propulsion Systems.
Delays or cancellations attributable to the propulsion systems (ATA 70 to
80).
k) Scheduled Maintenance Activities. Late release from scheduled / planned
maintenance work content and set-ups.
l) Servicing (No corrective maintenance required)
All servicing activities where no physical adjustment or replacement
or corrective action is required to enable deferral of a repair and/or
replacement of hardware/software in order to prevent a Chargeable Event
- Data loading or Printer paper replacement
- De-icing
- Fuelling related
- Hydraulic fluid
- Oil or lubrication
- Moisture or condensation
- Oxygen servicing
- Routine cleaning
- Sanitizing / flushing or water / waste
- Struts
- Tire pressure servicing
m) Spare Parts Unavailability. Delays or cancellations due to
unavailability of the spare parts, unless such unavailability is caused by
the Seller.
n) Subsequent delay(s) and/or cancellation(s). Subsequent to a primary
Chargeable Event, the primary and related subsequent Chargeable Event(s)
resulting from the same Aircraft Inherent Malfunction root cause shall be
counted as one Chargeable Event.
6. REPORTING
a) The Buyer agrees to implement a Dispatch Reliability reporting
procedure to be mutually agreed upon between the Buyer and the Seller's
specialists not later than [...***...] prior to delivery of the first
Aircraft to the Buyer.
b) In order to allow the Seller to assess the Aircraft Inherent
Malfunctions the Buyer shall regularly submit Chargeable Event Data for
each "Reporting Period", monthly, not later than [...***...] after a
reporting month.
c) All relevant data reported by the Buyer to the Seller under this letter
agreement shall be in English. Such Chargeable Event "Data" must be
accurate and detailed, to the extent ascertainable, including as a minimum
but not limited to:
- Affected Aircraft MSN or registration
- Aircraft log book entries
- ATA chapter reference
- Date of the delay or cancellation event
- Delay duration due to Aircraft Inherent Malfunction
- Departure station where the event occurred
- Detailed description, including timing, of the event
- Maintenance reports
- Pilots reports
- Technical log reports
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- The number of actual Scheduled Revenue Flights for each Reporting Period
- AIRMAN data
If the Seller finds such data to be insufficiently detailed or
unsubstantiated, the Buyer shall supply additional data as the Seller may
reasonably request.
d) The Buyer will notify the Seller if the Achieved Dispatch Reliability
is below the Guaranteed Dispatch Reliability, not later than [...***...]
after the end of a Computation Period. In such event, all detailed,
substantiating operational and engineering information shall be provided
by the Buyer in order to assist the Seller to determine the necessary
action.
7. BUYER'S AND SELLER'S OBLIGATIONS
7.1 BUYER'S OBLIGATIONS
For the guarantee Duration, the Buyer shall:
a) Use reasonable efforts to apply maintenance and trouble shooting
procedures by qualified personnel with the objective of achieving the
Guaranteed Dispatch Reliability.
b) Incorporate modifications, procedures, initiatives and recommendations
("Recommendations") made by the Seller in order to increase the Buyer's
Aircraft Achieved Dispatch Reliability [...***...].
c) [...***...]
d) Set the Buyer's Aircraft fleet technical Dispatch Reliability targets,
as shown in the Buyer's regular Reliability Report (or equivalent), at a
level equal to or greater than the Guaranteed Dispatch Reliability so that
both the Buyer's and Seller's technical staff aggressively pursue
attainment of the Guaranteed Dispatch Reliability.
e) Use reasonable efforts to implement the recommendations made by the
Seller following a "Best Industry Practices" (BIP) or similar review by
the Seller of the Buyer's operations and organisational structure, with
the objective of exceeding the Guaranteed Dispatch Reliability.
f) Use AIRMAN or equivalent, with the objective of exceeding the
Guaranteed Dispatch Reliability.
7.2 SELLER'S OBLIGATIONS
For the guarantee Duration the Seller shall:
a) Provide technical and operational analyses of all delays and
cancellations including Chargeable Events.
b) Hold regular Review Meetings with the Buyer to address additional level
of support and action as necessary.
c) Following reporting from the Buyer that the Achieved Dispatch
Reliability is below the Guaranteed Dispatch Reliability, jointly with
the Buyer review and compare the Achieved
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Dispatch Reliability to the Guaranteed Dispatch Reliability.
d) If the Achieved Dispatch Reliability is confirmed and agreed by the
Buyer and the Seller as below the Guaranteed Dispatch Reliability,
where practicable not later than [...***...] after Reporting by the
Buyer, to improve the Achieved Dispatch Reliability and at no charge to
the Buyer, the Seller shall:
[...***...]
8. ADJUSTMENT
8.1 Notwithstanding the Buyer's Obligations in paragraph 7.1 above, the
Buyer may decline to incorporate such Recommendations referred to. Should
the Buyer so decline, the Seller has the right to make adjustment to the
Guaranteed Dispatch Reliability by an amount consistent with the expected
improvement in the Achieved Dispatch Reliability, based on reasonable
substantiation by the Seller and, if available, on the Seller's experience
with other operators.
8.2 Any design, certification, regulatory, organizational structure or
Aircraft operational changes outside the Seller's control that may have an
effect upon the operation and dispatch characteristics of the Aircraft
shall be cause for re-evaluation and/or adjustment of the Guaranteed
Dispatch Reliability by the Seller.
9. REVIEW MEETINGS
Dispatch Reliability "Review Meetings" shall be scheduled at the end of
each [...***...] period of the Buyer's Aircraft operation or,
exceptionally, at any other time by mutual agreement of the Seller and the
Buyer. Representatives of the Seller and the Buyer shall participate in
such a review meeting and shall:
a) Review Achieved Dispatch Reliability of the Buyer's Aircraft fleet and
all related Data.
b) Eliminate unsupported or non Aircraft Inherent Malfunction Chargeable
Events or Excluded Events to compute Achieved Dispatch Reliability.
c) Review the Buyer's incorporation of Recommendations as described in
paragraph 7.1.
d) Review requirements for adjustment, as above, of the Guaranteed
Dispatch Reliability.
10. LIABILITY LIMITATION
10.1 The Seller's liability under this Dispatch Reliability Guarantee
shall be governed solely by the terms and conditions of this Guarantee.
10.2 The Buyer and the Seller recognize and agree that the Exclusivity of
Warranties and General Limitations of Liability provisions contained in
Clause 12 of the Agreement shall apply to the foregoing Dispatch
Reliability Guarantee.
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11. NEGOTIATED AGREEMENT
THE BUYER AND THE SELLER AGREE THAT THIS LETTER AGREEMENT HAS BEEN THE
SUBJECT OF DISCUSSIONS AND NEGOTIATION BY THE PARTIES AND THAT THE OTHER
MUTUAL AGREEMENT OF THE PARTIES SET FORTH IN THE PURCHASE AGREEMENT WERE
ARRIVED AT IN CONSIDERATION OF, INTER ALIA, THE PROVISIONS OF THIS LETTER
AGREEMENT.
12. ASSIGNMENT
In consideration of the assignment and subrogation by the Seller under
this Letter Agreement in favor of the Buyer in respect of the Seller's
rights against and obligations to the Manufacturer under the provisions
quoted above, the Buyer hereby accepts such assignment and subrogation and
agrees to be bound by all of the terms, conditions and limitations therein
contained. The Buyer and Seller recognize and agree that all the
provisions of Clause 12 of the Agreement, including without limitation the
Exclusivity of Warranties and General Limitations of Liability and
Duplicate Remedies provisions therein contained, will apply to the
foregoing Performance Retention Guarantee.
Except as set forth in Clause 20.2 of the Agreement, this Letter Agreement
and the rights and obligations of the Buyers hereunder will not be
assigned or transferred in any manner without prior written consent of the
Seller and any attempted assignment or transfer in contravention of the
provisions of this sentence will be void and of no force and effect.
13. COUNTERPARTS
This Letter Agreement may be signed in any number of separate
counterparts. Each counterpart, when signed and delivered (including
counterparts delivered by facsimile transmission), will be an original,
and the counterparts will together constitute one same instrument.
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IN WITNESS WHEREOF, these presents were entered into as of the day and
year first above written.
Very truly yours,
AVSA, S.A.R.L.
By: __________________________
Its:
Accepted and Agreed
US AIRWAYS GROUP, INC.
By: _________________________
Its:
AMERICA WEST AIRLINES, Inc.
By: _________________________
Its:
US AIRWAYS, INC.
By: _________________________
Its:
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