UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
Form 10-Q
|X| QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the Quarter Ended Commission File Number
September 30, 1999 1-8319
[LOGO]
GATX CAPITAL CORPORATION
Incorporated in the IRS Employer Identification Number
State of Delaware 94-1661392
Four Embarcadero Center
San Francisco, CA 94111
(415) 955-3200
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15 (d) of the Securities Exchange Act of 1934
during the preceding 12 months and (2) has been subject to such filing
requirements for the past 90 days.
Yes |X| No |_|
All Common Stock of Registrant is held by GATX Financial Services, Inc.
(a wholly-owned subsidiary of GATX Corporation).
As of November 11, 1999, Registrant has outstanding 1,031,250 shares of $1 par
value Common Stock.
THE REGISTRANT MEETS THE CONDITIONS SET FORTH IN GENERAL INSTRUCTION H(1)(a) and
(b) OF FORM 10-Q AND IS THEREFORE FILING THIS FORM WITH THE REDUCED DISCLOSURE
FORMAT.
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
GATX CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF INCOME
(unaudited, in thousands)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
--------- --------- --------- ---------
<S> <C> <C> <C> <C>
REVENUES:
Lease income $ 83,332 $ 64,334 $ 231,258 $ 196,985
Gain on sale of assets 9,498 26,666 50,196 53,337
Equity earnings from investment in joint ventures 18,299 10,561 45,740 33,812
Interest 13,121 7,933 30,271 25,308
Fees 8,942 2,918 22,828 34,074
Other 7,952 3,295 19,510 8,027
--------- --------- --------- ---------
141,144 115,707 399,803 351,543
--------- --------- --------- ---------
EXPENSES:
Operating leases 48,302 34,763 128,537 101,403
Selling, general & administrative 28,043 20,470 77,928 56,395
Interest 28,273 26,846 83,502 84,030
Provision for losses on investments 2,752 3,275 8,251 7,775
Other 1,217 942 3,579 2,430
--------- --------- --------- ---------
108,587 86,296 301,797 252,033
--------- --------- --------- ---------
Income from continuing operations before income taxes 32,557 29,411 98,006 99,510
Provision for income taxes 13,186 11,335 39,448 39,276
--------- --------- --------- ---------
Income from continuing operations 19,371 18,076 58,558 60,234
Discontinued operations (Note 5):
Loss from discontinued operations,
net of income taxes -- (334) (4,642) (7,363)
Gain on sale of discontinued operations,
net of income tax benefits of $1,853 -- -- 2,137 --
--------- --------- --------- ---------
NET INCOME $ 19,371 $ 17,742 $ 56,053 $ 52,871
========= ========= ========= =========
</TABLE>
1
<PAGE>
GATX CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(in thousands)
September 30, December 31,
1999 1998
----------- -----------
(Unaudited)
ASSETS
Cash and cash equivalents $ 31,020 $ 67,975
Investments:
Direct financing leases 516,719 537,897
Leveraged leases 147,867 133,380
Operating lease equipment - net of depreciation 768,161 547,221
Secured loans 317,977 241,567
Investment in joint ventures 623,181 570,255
Assets held for sale or lease 36,776 26,286
Other investments 130,724 84,856
Investment in future residuals 15,186 18,706
Allowance for losses on investments (139,315) (129,278)
----------- -----------
Net investments 2,417,276 2,030,890
----------- -----------
Due from Parent 42,043 37,816
Other assets 61,010 139,001
----------- -----------
TOTAL ASSETS $ 2,551,349 $ 2,275,682
=========== ===========
LIABILITIES AND STOCKHOLDER'S EQUITY:
Accrued interest $ 26,307 $ 13,634
Accounts payable and other liabilities 112,976 150,504
Debt financing:
Commercial paper and bankers' acceptances 238,800 128,329
Notes payable 112,057 25,847
Obligations under capital leases 7,029 8,781
Senior term notes 1,150,000 1,076,600
----------- -----------
Total debt financing 1,507,886 1,239,557
----------- -----------
Nonrecourse obligations 338,527 381,390
Deferred income 15,451 9,702
Deferred income taxes 116,710 83,754
Stockholder's equity:
Convertible preferred stock, par value $1,
and additional paid-in capital 125,000 125,000
Common stock, par value $1, and
additional paid-in capital 28,960 28,960
Accumulated other comprehensive income 6,496 772
Reinvested earnings 273,036 242,409
----------- -----------
Total stockholder's equity 433,492 397,141
----------- -----------
TOTAL LIABILITIES AND STOCKHOLDER'S EQUITY $ 2,551,349 $ 2,275,682
=========== ===========
2
<PAGE>
GATX CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(unaudited, in thousands)
<TABLE>
<CAPTION>
Nine Months Ended
September 30,
1999 1998
--------- ---------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income $ 56,054 $ 52,871
Reconciliation of net income to net cash flows
provided by operating activities:
Provision for losses on investments 8,251 7,775
Depreciation and amortization expense 98,549 74,296
Provision for deferred income taxes 32,634 20,976
Gain on sale of assets (50,196) (53,337)
Gain on sale of discontinued operations (2,137) --
Joint venture income, net of cash dividends (24,465) (16,984)
Changes in assets and liabilities:
Other assets 16,995 10,478
Due from Parent (4,227) 15,597
Accrued interest, accounts payable and other liabilities (12,007) (13,909)
Deferred income 5,749 (3,077)
Other - net (2,295) (20,290)
--------- ---------
Net cash flows provided by operating activities 122,905 74,396
--------- ---------
CASH FLOWS FROM INVESTING ACTIVITIES:
Investments in leased equipment, net of
nonrecourse borrowings for leveraged leases (434,167) (256,756)
Loans extended to borrowers (204,653) (134,782)
Other investments (140,123) (94,662)
--------- ---------
Total investments (778,943) (486,200)
--------- ---------
Lease rents received, net of earned income and
leveraged lease nonrecourse debt service 125,476 119,517
Loan principal received 68,209 283,623
Proceeds from sale of assets 174,546 144,407
Joint venture investment recovery 32,315 63,901
--------- ---------
Recovery of investments 400,546 611,448
--------- ---------
Net cash flows (used in) provided by investing activities (378,397) 125,248
--------- ---------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from issuance of senior term notes 162,000 --
Proceeds from nonrecourse obligations 91,857 152,651
Repayment of senior term notes (88,600) (94,000)
Repayment of capital lease obligations (1,752) (1,121)
Repayment of nonrecourse obligations (134,720) (112,521)
Net increase (decrease) in short-term borrowings 215,179 (140,873)
Dividends paid to Parent (25,427) (23,258)
--------- ---------
Net cash flows provided by (used in) financing activities 218,537 (219,122)
--------- ---------
Net decrease in cash and cash equivalents (36,955) (19,478)
Cash and cash equivalents at beginning of period 67,975 61,990
--------- ---------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $ 31,020 $ 42,512
========= =========
</TABLE>
3
<PAGE>
GATX CAPITAL CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF COMPREHENSIVE INCOME
(unaudited, in thousands)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30, September 30,
1999 1998 1999 1998
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Net income $ 19,371 $ 17,742 $ 56,053 $ 52,871
Other comprehensive (loss) income, net of tax:
Foreign currency translation adjustment 371 (572) (110) (1,106)
Unrealized (loss) gain on securities, net of
reclassification adjustments (a) (4,738) 146 5,834 (429)
-------- -------- -------- --------
Other comprehensive (loss) income (4,367) (426) 5,724 (1,535)
-------- -------- -------- --------
COMPREHENSIVE INCOME $ 15,004 $ 17,316 $ 61,777 $ 51,336
======== ======== ======== ========
(a) Reclassification adjustments:
Unrealized (loss) gain on securities $ (881) $ 196 $ 14,676 $ 580
Less - Reclassification adjustment for gains
realized included in net income (3,857) (50) (8,842) (1,009)
-------- -------- -------- --------
Net unrealized (loss) gain on securities $ (4,738) $ 146 $ 5,834 $ (429)
======== ======== ======== ========
</TABLE>
4
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
SEPTEMBER 30, 1999 AND 1998
1. The consolidated balance sheet of GATX Capital Corporation and its
subsidiaries (the "Company") at December 31, 1998, was derived from the
audited financial statements at that date. All other consolidated
financial statements are unaudited and include all adjustments, consisting
only of normal recurring items, which management considers necessary for a
fair statement of the consolidated results of operations and financial
position for and as of the end of the indicated periods. Operating results
for the nine-month period ended September 30, 1999, are not necessarily
indicative of the results that may be achieved for the entire year.
2. Certain prior year amounts have been reclassified to conform to current
presentation.
3. The Company is engaged in various matters of litigation and has unresolved
claims pending. The Company is a party to litigation relating to the
conversion of ten Boeing 747 aircraft from passenger to freighter
configuration by an affiliate of the Company. While the amounts claimed in
this matter and other matters are substantial, the ultimate liability with
respect to such claims cannot be determined at this time. It is the
opinion of management that damages, if any, required to be paid by the
Company in the discharge of such liability are not likely to be material
to the Company's financial position or results of operations.
4. In June 1998, the Financial Accounting Standards Board issued Statement
No. 133, Accounting for Derivative Instruments and Hedging Activities
("SFAS No. 133"), which subsequent to the issuance of SFAS 137 is required
to be adopted for fiscal years beginning after June 15, 2000. The Company,
which utilizes fundamental derivatives to hedge changes in interest rates
and foreign currencies, expects to adopt SFAS No. 133 effective January 1,
2001. This new accounting standard will require that all derivatives be
recorded on the balance sheet at fair value. If the derivative is a hedge,
depending on the nature of the hedge, changes in the fair value of
derivatives will either be offset against the change in the fair value of
the hedged assets, liabilities, or firm commitments through earnings or
recognized in other comprehensive income until the hedged item is
recognized in earnings. The ineffective portion of a derivative's change
in fair value will be immediately recognized in earnings. Management is
currently assessing the impact that the adoption of SFAS No. 133 will have
on the Company's financial position, results of operations, and cash
flows.
5. On June 30, 1999, the Company sold its technology equipment sales and
service business segment to a third party (the "Buyer") for $23.4 million.
The consideration received included stock of the Buyer valued at $18.4
million and an interest bearing note receivable from the Buyer for the
remaining balance due. The Company recognized an after-tax gain of $2.1
million from the sale. Accordingly, results from the technology equipment
sales and service segment are shown as discontinued operations with prior
year activity reclassified into one line for purposes of this
presentation. All material assets and liabilities relating to the
technology equipment sales and service segment were removed from the
balance sheet in connection with the sale. Revenues and loss from
discontinued operations are as follows:
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
(unaudited, in thousands) September 30, September 30,
1999 1998 1999 1998
---------- --------- --------- ---------
<S> <C> <C> <C> <C>
Revenues $ -- $ 49,352 $ 67,691 $ 123,880
Pre-tax income (loss) -- 821 (6,739) (7,278)
Income tax charge (benefit) -- 1,155 (2,097) 85
Loss from discontinued operations -- (334) (4,642) (7,363)
</TABLE>
5
<PAGE>
6. The Company operated in two business segments: Investment and Asset
Management, which included the Company's lease, loan and joint venture
investments as well as fee generation and asset management activities; and
Technology Equipment Sales and Service, which included the sales and
service of computer network technology equipment. As a result of the sale
of the Technology Equipment Sales and Service segment as described in Note
5 and the subsequent reclassification of the financial statements, prior
year segment information has been reclassified to conform to the current
year's presentation.
<TABLE>
<CAPTION>
Technology
Investment and Equipment Sales
(unaudited, in thousands) Asset Management and Service Total
---------------- --------------- -------------
<S> <C> <C> <C>
Three months ended September 30, 1999
Revenues $ 141,144 $ -- $ 141,144
Pre-tax income 32,557 -- 32,557
Identifiable assets 2,551,349 -- 2,551,349
Three months ended September 30, 1998
Revenues $ 115,707 $ -- $ 115,707
Pre-tax income 29,411 -- 29,411
Identifiable assets 2,075,302 75,809 2,151,111
Nine months ended September 30, 1999
Revenues $ 399,803 $ -- $ 399,803
Pre-tax income 98,006 -- 98,006
Identifiable assets 2,551,349 -- 2,551,349
Nine months ended September 30, 1998
Revenues $ 351,543 $ -- $ 351,543
Pre-tax income 99,510 -- 99,510
Identifiable assets 2,075,302 75,809 2,151,111
</TABLE>
6
<PAGE>
PART I. FINANCIAL INFORMATION, continued
Item 2. Management's Discussion and Analysis
RESULTS OF OPERATIONS
Overview
The Company engages in asset-based investment and finance. Revenue from
asset-based investment and finance activities is generated from financing
equipment (either for the Company's own account or through partnerships and
joint ventures), from the remarketing of assets, from managing the
equipment-related investment portfolios of others, and from brokering or
arranging asset financing transactions.
On June 30, 1999, the Company sold its technology equipment sales and service
business segment to a third party (the "Buyer") for $23.4 million. The
consideration received included stock of the Buyer valued at $18.4 million and
an interest bearing note receivable from the Buyer for the remaining balance
due. The Company recognized an after-tax gain of $2.1 million from the sale.
Accordingly, results from the technology equipment sales and service segment are
shown as discontinued operations with prior year activity reclassified into one
line for the purposes of this presentation. All material assets and liabilities
relating to the technology equipment sales and service segment were removed from
the balance sheet in connection with the sale.
Net income earned during the three months ended September 30, 1999, was $19.4
million, up $1.6 million from the same period last year. Net income earned
during the nine months ended September 30, 1999, was $56.1 million, up $3.2
million from the same period last year. Income from continuing operations for
the three and nine months ended September 30, 1999, was $19.4 million and $58.6
million, respectively, as compared to $18.1 million and $60.2 million for the
same prior year periods. Loss from discontinued operations for the three and
nine months ended September 30, 1999, was zero and $4.6 million, respectively,
as compared to $0.3 million and $7.4 million for the same prior year periods.
The loss from discontinued operations during the first six months of 1999 and
during 1998 was primarily due to weak market conditions for legacy network
protocol equipment.
Revenues
Investment income, which includes lease income, equity earnings from investments
in joint ventures, interest and other income, increased $36.6 million and $62.6
million during the three and nine-month periods ended September 30, 1999,
respectively, compared to the same periods in 1998. Higher investment balances
during 1999 were the primary reason for this increase. Average investments were
approximately $300.0 million (14%) higher during the third quarter of 1999 and
$170.1 million (8%) higher during the nine months ended September 30, 1999
compared to the same periods in 1998.
In addition, investment income was also higher during 1999 due to the prepayment
of several loans and the related fees in the third quarter of 1999 and an
increase in income from the sale of stock, which is reflected in other income.
Stock sales generally relate to shares received upon exercise of warrants
received in connection with the financing of non-public, start-up companies.
Income from stock sales increased $6.3 million and $10.9 million during the
three and nine-month periods ended September 30, 1999, respectively, compared to
the same periods in 1998.
Asset remarketing income includes gains on the sale of the Company's investment
assets, fees generated from providing remarketing services for third parties,
and from the sale of non-owned assets in which the Company has a residual share.
Fee income from asset remarketing services is generally performance-based.
Although not necessarily consistent from year to year, asset remarketing income
is a core component of the Company's business and has historically been a
significant contributor to income. Asset remarketing income totaled $14.6
million and $27.0 million for the third quarter 1999 and 1998, respectively, and
$62.0 million and $76.1 million for the nine-month periods ended September 30,
1999, and 1998, respectively. Gains on sales of Company investment assets were
$9.5 million and $26.7 million for the third quarter 1999 and 1998,
respectively, and $50.2 million and $53.3 million for the nine-month periods
ended September 30, 1999, and 1998, respectively. Residual sharing fees were
$5.1 million and $0.4 million for the third quarter 1999 and 1998, respectively,
and $11.8 million and $22.8 million for the nine-month periods ended September
30, 1999 and 1998, respectively.
7
<PAGE>
Expenses
Operating lease expense includes depreciation of operating lease equipment and
rent expense on off-balance sheet financing. Continued growth in the Company's
operating lease portfolio resulted in an increase in operating lease expense.
Interest expense increased in the third quarter of 1999 compared to the third
quarter of 1998 as a result of higher average borrowings (to fund new
investments) partially offset by lower interest rates. Interest expense
decreased slightly during the first nine months of 1999 compared to the same
period in 1998 as a result of lower interest rates which more than offset the
impact of slightly higher average borrowings.
Selling, general and administrative expenses were higher during 1999 due to
higher human resources and other administrative expenses associated with
increased investment and asset management business activity.
CASH FLOW, LIQUIDITY AND CAPITAL RESOURCES
The Company generates cash from operations and from portfolio proceeds and has
certain facilities for borrowing. In addition, certain lease transactions are
financed by obtaining nonrecourse loans equal to the present value of some or
all of the rental streams. During the nine months ended September 30, 1999, the
Company used cash generated from operations and from portfolio proceeds of
$523.5 million and borrowings of $469.0 million to fund $778.9 million of new
investments and repay $225.1 of borrowings.
During the quarter, the Company filed a $500.0 million shelf registration. At
September 30, 1999, the Company had borrowing capacity consisting of $500.0
million remaining under the new shelf registration, $71.2 million of unused
capacity under its commercial paper and bankers' acceptances credit agreements,
and $4.9 million remaining under stand-alone bank facilities maintained by one
of the Company's subsidiaries.
During the nine months ended September 30, 1999, total debt financing increased
faster than equity, increasing the Company's recourse debt to equity ratio to
3.48:1, up from 3.12:1 as of December 31, 1998. At September 30, 1999, the
Company could borrow an additional $747.0 million and still meet the 4.5:1
leverage ratio defined in its bank credit agreements.
The Company maintains the proceeds from the sale of certain assets in a trust
with a qualified intermediary pending the identification and acquisition of
qualified replacement assets in order to affect like-kind exchanges for federal
income tax purposes. The amounts in trust are classified as cash and cash
equivalents in the accompanying balance sheet. There were no amounts in trust at
September 30, 1999; at December 31, 1998, $29.2 million was held in trust.
The Company's capital structure includes both fixed and floating rate debt. The
Company ensures a stable margin over its cost of funds by managing the
relationship of its fixed and floating rate investments to its fixed and
floating rate borrowings.
At September 30, 1999, the Company had approved unfunded transactions totaling
approximately $368.0 million, including approximately $150.9 million expected to
fund during the remainder of 1999. Once approved for funding, a transaction may
not be completed for various reasons, or the investment may be shared with
partners or sold.
YEAR 2000 DISCLOSURE
The Company continues to address what is commonly referred to as the Year 2000
problem. The Company has completed the assessment phase of reviewing its
critical information systems for Year 2000 compliance. The Company's
enterprise-wide information system has been certified Year 2000 compliant by the
manufacturer and the Company has performed testing on the system. Other less
critical information systems have been reviewed and corrective action has been
taken as necessary.
The Company also is reviewing its operating assets to determine any significant
exposure to time-sensitive controls which may be embedded in the equipment.
These exposures are being assessed on an ongoing basis. Today, the Company is
not aware of any operating assets with a Year 2000 issue that would materially
impact the Company's results of operations.
8
<PAGE>
The Company is inquiring of customers, banks and trustees, with which the
Company has a relationship, to ensure that their systems are or will be Year
2000 compliant. Where considered appropriate, the Company is working directly
with third parties to test or remediate affected systems. The Company also
interacts electronically with certain external entities but has no means of
ensuring that they will be Year 2000 ready. Additionally, the Company has been
inquiring of key vendors in an effort to establish the ability of the provider
to deliver products or services on a timely basis in the year 2000. Today, the
Company is not aware of any third party with a Year 2000 issue that would
materially impact the Company's results of operations.
The Company believes it has an effective program in place to resolve the Year
2000 issue in a timely manner and to minimize the Company's exposure. If these
steps were not taken, or are not completed in a timely manner, the Year 2000
issue could have a significant impact on the operations of the Company. The
project is estimated to be completed during 1999, which is prior to any
anticipated impact on its operating systems. Based on the progress and results
of the Year 2000 project thus far, the Company believes that the Year 2000 issue
should not pose significant operational problems. However, in the event that the
Company's efforts have not addressed all potential systems problems, a
contingency plan is being developed to enable business operations to continue.
This contingency plan involves reducing the scope and duration of any
disruptions by having sufficient personnel and other resources in place prior to
the first business day in the Year 2000 to test appropriate internal systems and
diagnose and address any failures which would have an impact on continuing
operations. The total Year 2000 project cost is estimated to be immaterial to
the Company's results of operations.
FORWARD LOOKING STATEMENTS
Management's discussion includes statements that may constitute forward-looking
statements made pursuant to the safe harbor provision of the Private Securities
Litigation Reform Act of 1995. This information may involve risks and
uncertainties that could cause actual results to differ materially from the
forward-looking statements. Although the Company believes that the expectations
reflected in such forward-looking statements are based on reasonable
assumptions, such statements are subject to risks and uncertainties that could
cause actual results to differ materially from those projected. These risks and
uncertainties include, but are not limited to, unanticipated changes in the
markets served by Company such as the rail, air, and technology industries.
9
<PAGE>
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
The Company has previously reported that it is a party to actions arising from
the issuance by the Federal Aviation Administration (the "FAA") in January 1996
of Airworthiness Directive 96-01-03 (the "AD"). Actions with respect to nine of
the ten aircraft affected by the AD have been consolidated in the Federal
District Court for the Northern District of California. These cases have been
scheduled for trial beginning April 3, 2000.
On August 27, 1999 the United States District Court for the Western District of
Washington dismissed GATX/Airlog Company's action against the FAA, GATX/Airlog
v. United States of America (No. C98-1029). This dismissal was based on the
Court's determination that the governmental discretionary function exception to
the Federal Tort Claims Act is applicable to the action against the FAA. The
Company believes the Court's ruling is erroneous. A notice of appeal to the
Circuit Court of Appeals for the Ninth Circuit has been filed.
On October 27, 1999, the Court ruled on Evergreen's December 12, 1998 motion for
partial summary judgement in GATX/Airlog Company v. Evergreen International
Airlines (No. C-96-2494 WHO). The Court ruled: (1) the limitation on damages
clause in the contracts which precludes consequential damages is not
unenforceable as a matter of law; (2) the contracts under which certain
Evergreen planes were converted included a warranty of the modification design;
(3) certain claims by Evergreen are not barred by the statute of limitations;
and (4) as to one airplane modification, which was guaranteed by the Company,
the Company can be held liable if any judgement were imposed against
GATX/Airlog. The Court also ruled that whether any warranty was breached is a
triable issue of fact.
While the results of any litigation are impossible to predict with certainty,
the Company believes that the claims arising out of the issuance of the AD are
without merit, and that the Company and GATX/Airlog Company have adequate
defenses thereto.
Item 6. Exhibits and Reports on Form 8-K
(a) Exhibits:
10. Airbus Purchase Agreement*
27. Financial Data Schedule
*Confidential portions of this exhibit have been omitted and filed
separately with the Securities and Exchange Commission with a request
for confidential treatment pursuant to Rule 24B-2.
(b) The Company filed current reports on Form 8-K on September 29, 1999 and
October 1, 1999 under Item 5., Other Events.
10
<PAGE>
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
GATX CAPITAL CORPORATION
/s/ Jack F. Jenkins-Stark
-------------------------
Jack F. Jenkins-Stark
Senior Vice President and
Chief Financial Officer
/s/ Delphine M. Regalia
-----------------------
Delphine M. Regalia
Principal Accounting Officer and Controller
November 12, 1999
11
Exhibit 10. Airbus Purchase Agreement
CONFIDENTIAL TREATMENT
Confidential portions of this exhibit have been omitted and filed separately
with the Securities and Exchange Commission with a request for confidential
treatment pursuant to Rule 24B-2. The location of an omitted portion is
indicated by [deleted].
<PAGE>
AIRBUS A320 Family and A330 Aircraft
P U R C H A S E A G R E E M E N T
B E T W E E N
A I R B U S I N D U S T R I E
as Seller
A N D
GATX Flightlease Aircraft Company Ltd
as Buyer
Date: 16 September, 1999
<PAGE>
C O N T E N T S
CLAUSES TITLES
- --------------------------------------------------------------------------------
0 DEFINITIONS AND INTERPRETATION
1 SALE AND PURCHASE
2 SPECIFICATION
3 PRICES
4 PRICE REVISION
5 PAYMENTS
6 MANUFACTURE PROCEDURE - INSPECTION
7 CERTIFICATION
8 BUYER'S TECHNICAL ACCEPTANCE
9 DELIVERY
10 EXCUSABLE DELAY
11 NON-EXCUSABLE DELAY
12 WARRANTIES AND SERVICE LIFE POLICY
13 PATENT AND COPYRIGHT INDEMNITY
14 TECHNICAL DATA AND DOCUMENTATION
15 SELLER'S REPRESENTATIVES
16 TRAINING AND TRAINING AIDS
17 EQUIPMENT SUPPLIER PRODUCT SUPPORT
18 BUYER FURNISHED EQUIPMENT
19 DATA RETRIEVAL
20 TERMINATION
21 ASSIGNMENTS AND TRANSFERS
22 MISCELLANEOUS PROVISIONS
2
<PAGE>
C O N T E N T S
EXHIBITS TITLES
- --------------------------------------------------------------------------------
Exhibit A-1 A320-200 SPECIFICATION
Exhibit A-2 A321-200 SPECIFICATION
Exhibit A-3 A318-100 SPECIFICATION
Exhibit A-4 A330-200 SPECIFICATION
Exhibit A-5 [DELETED]
Exhibit A-6 [DELETED]
Exhibit A-7 [DELETED]
Exhibit A-8 [DELETED]
Exhibit A-9 [DELETED]
Exhibit B-1 A320-200 SPECIFICATION CHANGE NOTICES
Exhibit B-2 A321-200 SPECIFICATION CHANGE NOTICES
Exhibit B-3 A318-100 SPECIFICATION CHANGE NOTICES
Exhibit B-4 A330-200 SPECIFICATION CHANGE NOTICES
Exhibit C FORM of Specification Change Notice
Exhibit D PART 1 AIRFRAME PRICE REVISION FORMULA
PART 2 PROPULSION SYSTEMS PRICE REVISION FORMULA
Exhibit E FORM OF CERTIFICATE OF ACCEPTANCE
Exhibit F FORM OF BILL OF SALE
Exhibit G SERVICE LIFE POLICY - ITEMS OF PRIMARY STRUCTURE
Exhibit H TECHNICAL DATA AND DOCUMENTATION
Exhibit I SPARE PARTS PROCUREMENT
3
<PAGE>
PURCHASE AGREEMENT
This Agreement is made as of 16 September 1999.
BETWEEN:
AIRBUS INDUSTRIE, a groupement d'interet economique created and existing under
French law having its registered office at 1 Rond-Point Maurice Bellonte, 31707
Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce
under number RCS Toulouse C 302 609 607 (the "Seller"),
and
GATX Flightlease Aircraft Company Ltd, a company organised under the laws of the
Cayman Islands having its principal place of business at Caledonian House,
second Floor, Mary Street, P.O. Box 265, George Town, Grand Cayman, Cayman
Islands (the "Buyer").
WHEREAS subject to the terms and conditions of this Agreement, the Seller
desires to sell the Aircraft to the Buyer and the Buyer desires to purchase the
Aircraft from the Seller
NOW THEREFORE IT IS AGREED AS FOLLOWS:
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1 DEFINITIONS AND INTERPRETATION
1.1 In addition to words and terms elsewhere defined in this Agreement, the
initially capitalised words and terms used in this Agreement shall have
the meaning set out below.
A320 Aircraft as defined in Subclause 2.2 of this Agreement and
Exhibit A-1 hereto.
A321 Aircraft as defined in Subclause 2.2 of this Agreement and
Exhibit A-2 hereto.
A318 Aircraft as defined in Subclause 2.2 of this Agreement and
Exhibit A-3 hereto.
A330 Aircraft as defined in Subclause 2.2 of this Agreement and
Exhibit A-4 hereto.
Agreement this Airbus A320 Family and A330 Aircraft Purchase
Agreement, including all exhibits, appendixes and
letter agreements attached hereto, as the same may
be amended or modified in writing by the parties
and in effect from time to time.
Aircraft means any or all of the twenty (20) A320-200 and
A321-200 model aircraft, the twelve (12) A318-100
model aircraft and the six (6) A330-200 model
aircraft or the Option Aircraft that have been
converted to a firm order, to be purchased by the
Seller and sold to the Buyer including the
Airframe, the Propulsion systems, and any part,
components, furnishing or equipment installed on
the Aircraft on Delivery under the terms and
conditions of this Agreement.
Aircraft Training
Services means all training courses, flight training, line
training, flight assistance, line assistance,
maintenance support, maintenance training
(including On the Job Training and Engine Run Up)
or training support performed on aircraft and
provided to the Buyer and its operators pursuant
to this Agreement.
Airframe means the Aircraft excluding the Propulsion
Systems.
Airframe Basic Price has the meaning set out in Clause 3.1
Airframe Price
Revision Formula is set out in Part 1 of Exhibit D.
Alternative PW
Propulsion Systems has the meaning set out in Subclause 17 of Letter
Agreement No 2 to the Agreement.
Aviation Authority means when used in respect of any jurisdiction the
government entity which under the laws of such
jurisdiction have control over civil aviation or
the registration, airworthiness or operation of
aircraft in such jurisdiction.
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Balance of Final Price has the meaning set out in Clause 5.4.1.
Basic Price means the sum of the Airframe Basic Price and the
Propulsion Systems Basic Price.
Bill of Sale has the meaning set out in Clause 9.2.2.
Buyer Furnished
Equipment has the meaning set out in Clause 18.1.1.
Certificate
of Acceptance has the meaning set out in Clause 8.3.
Default Rate means the rate of Default Interests as defined in
Clause 5.7.
Delivery means the transfer of title to the Aircraft from
the Seller to the Buyer in accordance with Clause
9.
Delivery Date means the date on which Delivery shall occur.
Delivery Location means the facilities of the Seller in Toulouse or
Hamburg at the location of final assembly of the
relevant Aircraft.
Excusable Delay has the meaning set out in Clause 10.1.
Export Airworthiness
Certificate means an export certificate of airworthiness
issued by the Aviation Authority of the Delivery
Location.
Failure has the meaning set out in Clause 12.2.1
Final Price has the meaning set out in Clause 3.3
Guaranty means the Guaranty of the obligations of the Buyer
under the Agreement issued by the Guarantors in
favor of the Seller.
Guarantors means GATX Capital and Flightlease Guernsey
Holdings Limited
Ground Training
Services means all training courses performed in classrooms
(classical or VACBI courses), full flight
simulator sessions, fixed base simulator sessions,
field trips and any other services provided to the
Buyer and its operators on the ground pursuant to
this Agreement, and not being Aircraft Training
Services.
Inhouse Warranty has the meaning set out in Clause 12.1.7.
Initial Operator the first operator of an Aircraft in commercial
revenue service following its Delivery by the
Seller to the Buyer.
Interface Problem has the meaning set out in Clause 12.4.1.
Item has the meaning set out in Clause 12.2.1.
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LIBOR for each stated interest period, the rate
determined on the basis of the offered rates for
deposits in US dollars, which appear on the
Reuters Screen LIBO Page as of 11:00 a.m., London
time, on the day that is two (2) days (other than
a Saturday, Sunday or a day that is a legal
holiday or a day on which banking institutions are
authorized to close in the City of New York, New
York, London, England, or Paris, France) before
the first day of an 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 basis point (0.5
rounds to 1). If only one (1) offered rate
appears, the rate for that interest period will be
as quoted by National Westminster Bank, plc.
"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).
Manufacture Facilities means the various manufacture facilities of the
Seller, the Members or any sub-contractor where
the Airframe or its parts are manufactured or
assembled.
Materiel has the meaning set out in Clause 1.1 of Exhibit
I.
Members means each of Aerospatiale Societe Nationale
Industrielle, DaimlerChrysler Aerospace Airbus
GmbH, Construcciones Aeronauticas S.A. and British
Aerospace (Operations) Limited.
Non-Excusable Delay has the meaning set out in Clause 11.1.
Operator the operator of an Aircraft in commercial revenue
service following its Delivery by the Seller to
the Buyer.
Option Aircraft any or all of (i) the [DELETED] Airbus Industrie
[DELETED] model aircraft on option order by the
Buyer pursuant to the terms and conditions
contained in Letter Agreement No 3 hereto,
together with all components, furnishing or
equipment installed on the Aircraft on Delivery
under the terms and conditions of this Agreement
and (ii) [DELETED] as per the terms and conditions
contained in Letter Agreement No 3 hereto.
Predelivery Payment means the payment(s) determined in accordance with
Clause 5.3.
Propulsion Systems has the meaning set out in Clause 2.4.
Propulsion Systems
Basic Price means the price of a set of Propulsion Systems as
set out in Clause 3.2.
Propulsion Systems
Reference Price means the reference price of a set of Propulsion
Systems as set out in Part 2 of Exhibit D.
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Propulsion Systems
Manufacturer means the manufacturer of the Propulsion Systems
as set out in Clause 2.4.
Propulsion Systems
Price Revision Formula is set out in Part 2 of Exhibit D.
Ready for Delivery means with respect to an Aircraft the time when
(i) the Technical Acceptance Process has been
successfully completed and (ii) the Export
Airworthiness Certificate has been issued.
[DELETED] Aircraft any or all of the [DELETED] pursuant to the terms
and conditions contained in Letter Agreement No 3
hereto, together with all components, furnishing
or equipment installed on the Aircraft on Delivery
under the terms and conditions of this Agreement
Scheduled Delivery
Month has the meaning set out in Clause 9.1.
Seller's
Representatives means the representatives of the Seller referred
to in Clause 15.1.
Seller Representatives
Services means the services provided by the Seller to the
Buyer and from the Buyer to the Seller pursuant to
Clause 15.
Seller Service
Life Policy has the meaning set out in Clause 12.2.
Spare Parts means the items of equipment and materiel which
may be provided pursuant to Exhibit I.
Specification Change
Notice or SCN means an agreement in writing between the parties
to amend the Specification pursuant to Clause 2.
Specification means either (a) the Standard Specification if no
SCNs are applicable or (b) if SCNs are issued, the
Standard Specification as amended by all
applicable SCNs.
Standard
Specification as defined in Subclause 2.2 of the Agreement.
Supplier has the meaning set out in Clause 12.3.1.1.
Supplier Part has the meaning set out in Clause 12.3.1.2.
Supplier Product
Support Agreement has the meaning set out in Clause 12.3.1.3.
Technical Data and
Documentation has the meaning set out in Clause 14.1.
Total Loss has the meaning set out in Clause 10.4.
Type Certificate has the meaning set out in Clause 7.1.
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Warranted Part has the meaning set out in Clause 12.1.1.
Warranty Claim has the meaning set out in Clause 12.1.5.
Warranty Period has the meaning set out in Clause 12.1.3.
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.
1.2 Clause headings and the Index are inserted for convenience of
reference only and shall be ignored in the interpretation of this
Agreement.
1.3 In this Agreement unless the context otherwise requires:
(a) references to Clauses, Appendices, and Exhibits are to be
construed as references to the Clauses of, and Appendices, and
Exhibits to this Agreement and references to this Agreement
include its Schedules, Exhibits and Appendices;
(b) words importing the plural shall include the singular and vice
versa; and
(c) references to a person shall be construed as including,
without limitation, references to an individual, firm,
company, corporation, unincorporated body of persons and any
state or agency of a state.
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2 SALE AND PURCHASE
2.1 General
The Seller shall sell and deliver and the Buyer shall buy and take
delivery of the Aircraft on the Delivery Date at the Delivery
Location upon the terms and conditions contained in this Agreement.
2.2 SPECIFICATIONS
The A320-200 aircraft (the "A320 Aircraft") will be manufactured in
accordance with the Standard Specification, Document No.
D.000.02000, Issue 5 dated 30 January 1998, as amended to reflect a
MTOW of [DELETED] metric tons (as so amended the "A320 Standard
Specification", a copy of which is annexed hereto as Exhibit A-1).
The A321-200 aircraft (the "A321 Aircraft") will be manufactured in
accordance with the Standard Specification, Document No.
E.000.02000, Issue 2 dated 30 January 1998, as amended to reflect a
MTOW of [DELETED] metric tons with[DELETED] (as so amended the "A321
Standard Specification", a copy of which is annexed hereto as
Exhibit A-2).
The A318-100 aircraft (the "A318 Aircraft") will be manufactured in
accordance with the Standard Specification, Document No.
P.000.01000, Issue A dated 25 November 1998, as amended to reflect a
MTOW of [DELETED] metric tons (as so amended, the "A318 Standard
Specification", a copy of which is annexed hereto as Exhibit A-3).
The A330- 200 aircraft (the "A330 Aircraft") will be manufactured in
accordance with the Standard Specification, Document No.
G.000.02000, Issue 3 dated 15 October 1996, as amended to reflect a
MTOW of [DELETED] metric tons (as so amended the "A330 Standard
Specification", a copy of which is annexed hereto as Exhibit A-4).
The Standard Specifications may be further modified from time to
time pursuant to the provisions of Clause 2.3 below.
2.3 Specification Change Notice (SCN)
The Specification may be amended by written agreement between the
parties in a Specification Change Notice. Each Specification Change
Notice ("SCN") shall be substantially in the form set out in Exhibit
C and shall set out in detail the particular change to be made to
the Specification and the effect, if any, of such change on design,
performance, weight, time of Delivery of the Aircraft, and on the
text of the Specification. Such SCN may result in an adjustment of
the Basic Price.
2.3.1 Development Changes
The Specification may also be revised by the Seller without the
Buyer's consent in order to incorporate development changes if such
changes do not adversely affect price, time of delivery, weight or
performance of the Aircraft, interchangeability, maintainability or
replaceability requirements under the Specification. In any other
case the Seller shall issue to the Buyer a Manufacturer
Specification Change Notice. Development changes are changes deemed
necessary by the Seller to improve the Aircraft, prevent delay or
ensure compliance with this Agreement.
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2.3.2 Inconsistency
In the event of any inconsistency between the Specification and any
other part of this Agreement, this Agreement shall prevail to the
extent of such inconsistency.
2.4 Propulsion Systems
The A320 Aircraft shall be equipped with either the CFM
International CFM56-5B4/P or the International Aero Engines IAE
V2527-A5 Propulsion Systems.
The A321 Aircraft shall be equipped with either the CFM
International CFM56-5B3/P or the International Aero Engines IAE
V2533-A5 Propulsion Systems.
The A318 Aircraft shall be equipped with the Pratt & Whitney PW
6122-1D Propulsion Systems.
The A330 Aircraft shall be equipped with the General Electric GE
CF6-80E1 A4, the Pratt & Whitney PW 4168A or the Rolls Royce Trent
772B Propulsion Systems.
If the Buyer has not selected the Propulsion Systems as of the date
of this Agreement, such choice shall be made no later than
[DELETED].
2.5 Customization Milestones Chart
Within a reasonable period following signature of the Agreement, the
Seller shall provide the Buyer with a Customization Milestones Chart
setting out the minimum lead times prior to the Scheduled Delivery
Month of the Aircraft, when a mutual agreement shall be reached
(execution of a SCN) in order to integrate into the Specification,
any items requested by the Buyer from the Specification Changes
Catalogues made available by the Seller.
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3 PRICES
The Basic Price of each Aircraft is the sum of:
(i) the Basic Price of the Airframe set forth in Subclause 3.1
hereof, and
(ii) the Basic Price of the Propulsion Systems set forth in
Subclause 3.2 hereof.
and is exclusive of any variation resulting from price revision
provisions, and, if any, other provisions of this Agreement.
3.1. Basic Prices of the Airframe
3.1.1 The Basic Price of the Airframe of an A320 Aircraft equipped with
the CFM Propulsion Systems as defined in the A320 Standard
Specification (excluding Buyer Furnished Equipment and SCNs is:
USD [DELETED] (US Dollars - [DELETED])
3.1.2 The Basic Price of the Airframe of an A320 Aircraft equipped with
the IAE Propulsion Systems as defined in the A320 Standard
Specification (excluding Buyer Furnished Equipment and SCNs), is:
USD [DELETED] (US Dollars - [DELETED])
3.1.3 The Basic Price of the Airframe of an A321 Aircraft equipped with
the CFM Propulsion Systems as defined in the A321 Standard
Specification (excluding Buyer Furnished Equipment and SCNs), is:
USD [DELETED]
(US Dollars - [DELETED])
3.1.4 The Basic Price of the Airframe of an A321 Aircraft equipped with
the IAE Propulsion Systems as defined in the A321 Standard
Specification (excluding Buyer Furnished Equipment and SCNs), is:
USD [DELETED] (US Dollars - [DELETED])
3.1.5 The Basic Price of the A318-100 Aircraft equipped with the Pratt and
Whitney 6122-1D Propulsions Systems as defined in the A318 Standard
Specification (excluding Buyer Furnished Equipment and SCNs), is:
USD [DELETED]
(US Dollars - [DELETED])
3.1.6 The Basic Price of the Airframe of an A330 Aircraft as defined in
the A330 Standard Specification (excluding Buyer Furnished Equipment
and SCNs), is:
USD [DELETED]
(US Dollars - [DELETED])
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3.1.7 The Airframe Basic Price of each Aircraft has been established in
accordance with the average economic conditions prevailing in
January 1998 and corresponding to a theoretical delivery in January
1999 and will be revised to the actual delivery date of each
Aircraft in accordance with the Airframe Price Revision Formula set
forth in Part 1 of Exhibit D.
3.2. Basic Prices of the Propulsion Systems
3.2.1 The A320 CFM Propulsion Systems
The Basic Price of a set of two (2) CFMI CFM56-5B4/P Propulsion
Systems including standard equipment for the A320 Aircraft is:
USD [DELETED]
(US Dollars - [DELETED]
Such Basic Price has been established in accordance with the
delivery conditions prevailing in January 1999 and has been
calculated from the Propulsion Systems Reference Price of USD
[DELETED] (US Dollars [DELETED]) with the Composite Price Index of
[DELETED] in accordance with economic conditions prevailing in
[DELETED].
3.2.2 The A320 IAE Propulsion Systems
The Basic Price of a set of two (2) IAE V2527-A5 Propulsion Systems
including standard equipment for the A320 Aircraft is:
USD [DELETED]
(US Dollars - [DELETED])
Such Basic Price has been established in accordance with the
delivery conditions prevailing in January 1999 and has been
calculated from the Propulsion Systems Reference Price of USD
[DELETED] (US Dollars [DELETED]) in accordance with economic
conditions prevailing in [DELETED].
3.2.3 The A321 CFM Propulsion Systems
The Basic Price of a set of two (2) CFMI CFM56-5B3/P Propulsion
Systems including standard equipment for the A321 Aircraft is:
USD [DELETED] (US Dollars - [DELETED])
Such Basic Price has been established in accordance with the
delivery conditions prevailing in January 1999 and has been
calculated from the Propulsion Systems Reference Price of USD
[DELETED] (US Dollars [DELETED]) with the Composite Price Index of
[DELETED] in accordance with economic conditions prevailing in
[DELETED].
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3.2.4 The A321 IAE Propulsion Systems
The Basic Price of a set of two (2) IAE V2533-A5 Propulsion Systems
including standard equipment for an A321 Aircraft is: USD
[DELETED](US Dollars - [DELETED]) Such Basic Price has been
established in accordance with the delivery conditions prevailing in
January 1999 and has been calculated from the Propulsion Systems
Reference Price of USD [DELETED] (US Dollars [DELETED]) in
accordance with economic conditions prevailing in [DELETED].
3.2.5 The A330 General Electric Propulsion Systems
The Basic Price of a set of two (2) General Electric CF6-80E1A4
Propulsion Systems for the A330 Aircraft is:
USD [DELETED] (US Dollars - [DELETED])
Such Basic Price has been established in accordance with the
delivery conditions prevailing in January 1999 and has been
calculated from the Propulsion Systems Reference Price of USD
[DELETED] (US Dollars [DELETED]) with the Composite Price Index of
[DELETED] in accordance with the economic conditions prevailing in
[DELETED].
3.2.6 The A330 Pratt & Whitney Propulsion Systems
The Basic Price of a set of two (2) Pratt & Whitney 4168A Propulsion
Systems for the A330 Aircraft is:
USD [DELETED] (US Dollars - [DELETED])
Such Basic Price has been established in accordance with the
delivery conditions prevailing in January 1999 and has been
calculated from the Propulsion Systems Reference Price of USD
[DELETED] (US Dollars [DELETED]) in accordance with economic
conditions prevailing in [DELETED].
3.2.7 The A330 Rolls Royce Propulsion Systems
The Basic Price of a set of two (2) Rolls Royce Trent 772B
Propulsion Systems for the A330 Aircraft is:
USD [DELETED] (US Dollars - [DELETED])
Such Basic Price has been established in accordance with the
delivery conditions prevailing in January 1999 and has been
calculated from the Propulsion Systems Reference Price of USD
[DELETED] (US Dollars [DELETED]) in accordance with delivery
conditions prevailing in [DELETED].
3.3 Final Price
The Final Price of each Aircraft shall be the sum of:
(i) the Airframe Basic Price as revised as of the Delivery Date in
accordance with Clause 4.1; plus
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(ii) the aggregate of all increases or decreases to the Airframe
Basic Price as agreed in any Specification Change Notice or
part thereof applicable to the Airframe subsequent to the date
of this Agreement as revised as of the Delivery Date in
accordance with Clause 4.1; plus
(iii) the Reference Price of the installed Propulsion Systems as
revised as of the Delivery Date in accordance with Clause 4.2;
plus
(iv) the aggregate of all increases or decreases to the Propulsion
Systems Reference Price as agreed in any Specification Change
Notice or part thereof applicable to the Propulsion Systems
subsequent to the date of this Agreement as revised as of the
Delivery Date in accordance with Clause 4.2; plus
(v) any other amount due by the Buyer to the Seller pursuant to
this Agreement and/or any other written agreement between the
Buyer and the Seller with respect to the Aircraft; and
[DELETED].
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4 PRICE REVISION
4.1 Revision of Airframe Basic Price
The Airframe Basic Price is subject to revision in accordance with
the Airframe Price Revision Formula up to and including the Delivery
Date as set forth in Part 1 of Exhibit D.
4.2 Revision of Propulsion Systems Reference Price
4.2.1. The Propulsion Systems Reference Price is subject to revision
in accordance with the Propulsion Systems Price Revision Formula up
to and including the Delivery Date, as set forth in Part 2 of
Exhibit D.
4.2.2 Modification of Propulsion Systems Reference Price and Propulsion
Systems Price Revision Formula
The Propulsion Systems Reference Price, the prices of the related
equipment and the Propulsion Systems Price Revision Formula are
based on information received from the Propulsions Systems
Manufacturer and are subject to amendment by the Propulsion Systems
Manufacturer at any time prior to the Delivery Date. If the
Propulsion Systems Manufacturer makes any such amendment the
amendment shall be automatically incorporated into this Agreement
and the Propulsion Systems Reference Price, the prices of the
related equipment and the Propulsion Systems Price Revision Formula
shall be adjusted accordingly. The Seller agrees to notify the Buyer
as soon as it receives notice of any such amendment from the
Propulsion Systems Manufacturer.
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5 PAYMENTS
5.1 Seller's Account
The Buyer shall pay the Predelivery Payments, the Balance of Final
Price and/or any other amount due by the Buyer to the Seller, to the
Seller's account No with:
[DELETED]
or to such other account as may be designated by the Seller.
5.2 Deposits
An amount equal to the initial deposit of US Dollars [DELETED] per
each firmly ordered A320, A321, A318 Aircraft and US Dollars
[DELETED] per each firmly ordered A330 Aircraft already paid by the
Buyer to the Seller prior to the date of this Agreement shall be
deducted from the first Predelivery Payment due under this
Agreement.
5.3 Predelivery Payments
5.3.1 Predelivery Payments will be paid by the Buyer to the Seller for
each Aircraft and will, in the aggregate, amount to [DELETED] of the
Predelivery Payment Reference Price of the Aircraft as defined
below:
A = [DELETED]
Where
A : The Predelivey Payment Reference Price for Aircraft to be
delivered in year T;
T : the year of delivery of the relevant Aircraft
Pb: the Basic Price of the Aircraft as defined in Clause 3.1
hereof
N : (T-1999)
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5.3.2 Such Predelivery Payments shall be made in accordance with the
following schedule:
PERCENTAGE OF
PREDELIVERY PAYMENT
DUE DATE OF PAYMENTS REFERENCE PRICE
[DELETED] [DELETED]
[DELETED]
[DELETED] [DELETED]
[DELETED] [DELETED]
[DELETED] [DELETED]
[DELETED] [DELETED]
____________________________Total
Payment prior to Delivery [DELETED]
[DELETED]
5.4 Balance of Final Price
5.4.1 The Balance of the Final Price payable by the Buyer to the Seller on
the Delivery Date shall be the Final Price less the amount of
Predelivery Payments received by the Seller on or before the
Delivery Date. The Seller's receipt of the full amount of all
Predelivery Payments and of the Final Contract Price will be a
condition precedent to the Seller's obligation to deliver such
Aircraft.
5.5 Other Charges
5.5.1 If not expressly stipulated otherwise any other charges due under
this Agreement other than those set out in Clauses 5.2, 5.3 and 5.4
shall be paid by the Buyer at the same time as payment of the
Balance of Final Price or, if invoiced after the Delivery Date,
within thirty (30) days after the invoice date.
5.5.2 Notwithstanding any other rights the Seller may have at contract or
at law, the Buyer and the Seller hereby agree that should any amount
(whether at the stated maturity of such amount, by acceleration or
otherwise) becomes due and payable hereunder by the Buyer 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 unused amount of any credit made available by the Seller
to the Buyer against such unpaid amount. The Seller will promptly
notify the Buyer in writing after such debiting and application.
5.6 Proprietary Interest
The Buyer will not, by virtue of anything contained in this
Agreement (including, without limitation, 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 refers), and notwithstanding any provision of law to
the contrary, acquire any proprietary, insurable or other interest
whatsoever in any Aircraft prior to Delivery of any payment for such
Aircraft as provided in this Agreement.
5.7 Method of Payment
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5.7.1 All payments provided for in this Agreement shall be made in the
United States Dollars (USD) in immediately available funds.
5.7.2 All payments due to the Seller hereunder shall be made in full,
without set-off, counterclaim, deduction or withholding of any kind.
Consequently, the Buyer shall procure that the sums received by the
Seller under this Agreement shall be equal to the full amounts
expressed to be due to 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. If the Buyer is
compelled by law to make any such deduction or withholding the Buyer
shall pay such additional amounts as may be necessary in order that
the net amount received by the Seller after such deduction or
withholding shall be equal to the amounts which would have been
received in the absence of such deduction or withholding and pay to
the relevant taxation or other authorities within the period for
payment permitted by applicable law, the full amount of the
deduction or withholding.
5.7.3 The Buyer shall have no right to any refund of any Predelivery
Payment received by the Seller, [DELETED].
5.8 Overdue Payments
If any payment due to the Seller under this Agreement including but
not limited to any Predelivery Payment, option fees for the Aircraft
as well as any payment for any spare parts, data, documents,
training and services due to the Seller, is not received on the due
date, and in the event that the Seller has not received such
[DELETED], the Seller will have the right to claim from the Buyer,
and the Buyer shall promptly pay to the Seller upon receipt of such
claim, interest for late payment calculated at a rate equal
[DELETED] on the amount of such overdue payment. In such event,
overdue interest shall be calculated from and including the due date
of such payment up to and including the date when the payment is
received by the Seller. The Seller's right to receive such interest
shall be without prejudice to the Seller's other rights under this
Agreement and at law.
All such interest shall be [DELETED] and calculated on the basis of
the actual number of days elapsed in the month [DELETED].
If any Predelivery Payment is not effected on the date or dates when
due, as set forth in this Clause, or as may be otherwise agreed upon
in writing between the Buyer and the Seller, then the Seller shall
have the right to [DELETED].
5.9 Taxes
5.9.1 The amounts stated in this Agreement to be payable by the Buyer are
exclusive of value added tax ("VAT") chargeable under the laws of
the Delivery Location and accordingly the Buyer shall pay any VAT
chargeable in respect of supplies to the Buyer as contemplated by
this Agreement.
5.9.2 The Seller shall pay all other taxes, duties or similar charges of
any nature whatsoever levied, assessed, charged or collected for or
in connection with the fabrication,
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manufacture, assembly, sale and delivery under this Agreement of any
of the Aircraft, services, instructions and data delivered or
furnished hereunder provided such charges have been promulgated and
are enforceable under the laws of the Delivery Location.
5.9.3 The Buyer shall bear the costs of and pay any and all taxes, duties
or similar charges of any nature whatsoever not assumed by the
Seller under Clause 5.9.2 including but not limited to any duties or
taxes due upon or in relation to the importation or registration of
the Aircraft in the Buyer's country and/or any withholdings or
deductions levied or required in the Buyer's country in respect of
the payment to the Seller of any amount due by the Buyer hereunder.
5.9.4 The Buyer and the Seller agree to [DELETED].
6 MANUFACTURE PROCEDURE - INSPECTION
6.1. Manufacture Procedure
The Airframe shall be manufactured in accordance with the relevant
requirements of the laws of the jurisdiction of incorporation of the
relevant Member as enforced by the Aviation Authority of such
jurisdiction.
6.2 Inspection
6.2.1 Subject to providing the Seller with certificates evidencing
compliance with the insurance requirements set forth in Clause 19,
the Buyer or its duly authorised representatives (the "Buyer's
Inspector(s)") shall be entitled to inspect the manufacture of the
Airframe and all materials and parts obtained by the Seller for the
manufacture of the Airframe on the following terms and conditions;
(i) any inspection shall be made according to a procedure to be
agreed upon with the Buyer but shall be conducted pursuant to
the Seller's own system of inspection as developed under the
supervision of the relevant Aviation Authority;
(ii) the Buyer's Inspector(s) shall have access to such relevant
technical data as is reasonably necessary for the purpose of
the inspection;
(iii) any inspection and any related discussions with the Seller and
other relevant personnel by the Buyer's Inspector(s) shall be
at reasonable times during business hours and shall take place
in the presence of relevant inspection department personnel of
Seller;
(iv) the inspections shall be performed in a manner not to unduly
delay or hinder the manufacture or assembly of the Aircraft or
the performance of this Agreement by the Seller or any other
work in progress at the Manufacture Facilities.
6.2.2 Location of Inspections
The Buyer's Inspector(s) shall be entitled to conduct any such
inspection at the
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relevant Manufacture Facility of the Seller or the Members and where
possible at the Manufacture Facilities of the sub-contractors
provided that if access to any part of the Manufacture Facilities
where the Airframe manufacture is in progress or materials or parts
are stored are restricted for security or confidentiality reasons,
the Seller shall be allowed reasonable time to make the relevant
items available elsewhere.
6.3 Seller's Service for Buyer's Inspector(s)
For the purpose of the inspections, and commencing with the date of
this Agreement until the Delivery Date of the last Aircraft, the
Seller shall furnish without additional charge suitable space and
office equipment, including telephone and telefax connection, in or
conveniently located with respect to the Delivery Location for the
use of a reasonable number of Buyer's Inspector(s).
6.4 INDEMNITY
THE SELLER WILL INDEMNIFY AND HOLD HARMLESS THE BUYER, ITS
DIRECTORS, OFFICERS, AGENTS, ASSIGNEES AND EMPLOYEES FROM AND
AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES (I) FOR
ALL INJURIES TO AND DEATHS OF PERSONS (EXCEPTING INJURIES TO OR
DEATH OF THE BUYER'S INSPECTORS PARTICIPATING IN ANY TESTS,
CHECKOUTS OR INSPECTIONS OR CONTROLS UNDER THIS CLAUSE 6) CAUSED BY
THE SELLER OR THE BUYER OR ITS INSPECTORS AND (II) FOR ANY LOSS OF
OR DAMAGE TO PROPERTY (EXCEPTING LOSS OF OR DAMAGE TO PROPERTY OF
THE BUYER'S SAID INSPECTORS) CAUSED BY THE SELLER OR THE BUYER OR
ITS INSPECTORS, IN EITHER CASE WHEN ARISING OUT OF OR IN CONNECTION
WITH ANY SUCH TESTS, CHECKOUTS, INSPECTIONS OR CONTROLS UNDER THIS
CLAUSE 6. THIS INDEMNITY OF THE SELLER WILL NOT APPLY FOR ANY SUCH
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISING OUT OF OR
CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE BUYER'S
SAID INSPECTORS.
THE BUYER AND ITS DIRECTORS, OFFICERS, AGENTS, ASSIGNEES AND
EMPLOYEES WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, AND THEIR
RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL
LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES (I) FOR INJURIES TO
OR DEATHS OF THE BUYER'S SAID INSPECTORS PARTICIPATING IN ANY TESTS,
CHECKOUTS, INSPECTIONS OR CONTROLS UNDER THIS CLAUSE 6, (II) FOR
LOSS OF OR DAMAGE TO PROPERTY OF THE BUYER'S SAID INSPECTORS OR
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE OF THE BUYER'S SAID INSPECTORS. WITH RESPECT TO
SUBCLAUSES (I) AND (II) OF THE PRECEDING SENTENCE, THE BUYER WILL
NOT BE OBLIGATED TO INDEMNIFY OR HOLD HARMLESS THE SELLER WHERE THE
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE FROM THE
SELLER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IN THE EVENT ANY CLAIM IS MADE OR LAWSUIT IS BROUGHT AGAINST EITHER
PARTY (OR ITS RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES)
FOR DAMAGES FOR DEATH OR INJURY OR FOR PROPERTY
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DAMAGE, THE LIABILITY FOR WHICH HAS BEEN ASSUMED BY THE OTHER PARTY
PURSUANT TO THIS SUBCLAUSE 6.4, THE FORMER (INDEMNITEE) WILL
PROMPTLY GIVE NOTICE TO THE OTHER PARTY (INDEMNITOR), AND THE
INDEMNITOR WILL ASSUME AND CONDUCT THE DEFENSE THEREOF, AND WILL
EFFECT ANY SETTLEMENT WHICH IT, IN ITS OPINION, DEEMS PROPER. IN THE
EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND CONDUCT THE DEFENSE OF
THE CLAIM OR SUIT, THEN THE INDEMNITEE WILL HAVE THE RIGHT TO
PROCEED WITH DEFENSE OF THE CLAIM OR LAWSUIT AS IT DEEMS APPROPRIATE
AND WILL HAVE AN ACTION AGAINST THE INDEMNITOR FOR ANY JUDGMENTS,
SETTLEMENTS, COSTS OR EXPENSES INCURRED IN CONDUCTING SAID DEFENSE.
7 CERTIFICATION
7.1 Type Certification
Prior to the delivery of the first Aircraft of each of the types
ordered under this Agreement, the Seller shall obtain the relevant
type certificate for the Aircraft under Joint Aviation Authorities
(JAA) procedures for joint certification in the transport category.
[DELETED]
7.2 Export Airworthiness Certificate
7.2.1 The Aircraft shall be delivered to the Buyer with an Export
Airworthiness Certificate.
7.2.2 If, any time before the date on which the Aircraft is Ready for
Delivery, any law or regulation is enacted, promulgated, becomes
effective and/or an interpretation of any law or regulation is
issued which requires any change to the Specification for the
purposes of obtaining the Export Airworthiness Certificate (a
"Change in Law"), the Seller shall [DELETED]. In the event of such a
variation or modification being made pursuant to this sub-Clause,
the parties hereto shall sign a SCN which shall specifiy the
effects, if any, upon the guaranteed performances, weights,
interchangeability, time of Delivery and text of the Specification.
7.2.3 Notwithstanding the provisions of sub-Clauses 7.2.2, if the Change
in Law relates to the Propulsion Systems and in particular to engine
accessories, quick engine change units or thrust reversers, the
costs shall be borne in accordance with such arrangements as may be
made separately between the Buyer and the Propulsion Systems
Manufacturer.
7.2.4 The Seller shall as far as practicable take into account the
information available to it and notify the Buyer accordingly
concerning any proposed law, regulation or interpretation of the
Seller's Aviation Authorities which could become a Change in Law in
order to minimise the costs of changes to the Specification as a
result of such proposed law regulation or interpretation becoming
effective prior to the Aircraft being Ready for Delivery.
7.4 Validation of the Export Airworthiness Certificate
Upon the Buyer's request, the Seller shall identify the changes that
[DELETED].
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[DELETED]
Such changes shall be made the subject of an SCN to be agreed
between the parties, which shall specify the corresponding effect,
if any, on the price, guaranteed performances, weight, design,
interchangeability, maintainability, or replaceability requirements
and on the text of the Specification and time of Delivery of the
Aircraft.
8 BUYER'S TECHNICAL ACCEPTANCE
8.1 Technical Acceptance Process
8.1.1 Prior to Delivery the Aircraft shall undergo a technical acceptance
process, proposed by the Seller (the "Technical Acceptance
Process"). Completion of the Technical Acceptance Process shall
demonstrate the satisfactory functioning of the Aircraft and its
equipment and shall be deemed to demonstrate compliance with the
Specification. Should it be established from the Technical
Acceptance Process that an Aircraft and its equipment does not
comply with the Technical Acceptance Process requirements and the
Specification and/or does do not function satisfactorily, the Seller
shall without hindrance from the Buyer be entitled to carry out any
necessary changes or correction for the proper correction of the
non-compliance and, as soon as practicable thereafter, resubmit the
Aircraft to such further Technical Acceptance Process as is
necessary to demonstrate the elimination of the non-compliance
[DELETED].
8.1.2 The Technical Acceptance Process shall:
(i) commence on a date notified in writing by the Seller to the
Buyer by no less than [DELETED] days notice;
(ii) take place at the Delivery Location;
(iii) be carried out by the personnel of the Seller;
(iv) include a technical acceptance flight which shall not exceed a
period of three (3) hours.
Upon the Buyer's request, the Seller shall brief one flight crew (2
pilots) of the Buyer's flight crew (or of its operator) trained
under sub-Clause 16.7.1 prior to acceptance of the Aircraft. This
briefing shall provide specific information related to acceptance
flights.
8.2 Buyer's Attendance
8.2.1 The Buyer shall be entitled to elect to attend the Technical
Acceptance Process.
8.2.2 If the Buyer elects to attend the Technical Acceptance Process, the
Buyer;
(i) shall co-operate in complying with the reasonable requirements
of the Seller with the intention of completing the Technical
Acceptance Process within five (5) business days for A318 and
A320 Family Aircraft or seven (7) business days for A330
Aircraft, after its commencement;
(ii) may have a maximum of four (4) of the Buyer's representatives
(with no more than three (3) such representatives, having
access to the cockpit at any one time) accompany the Seller's
representatives on a technical acceptance flight
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and during such flight the Buyer's representatives shall comply with
the instructions of the Seller's representatives.
8.2.3 If the Buyer does not attend and/or fails to co-operate in the
Technical Acceptance Process, the Seller shall be entitled to
complete the Technical Acceptance Process and the Buyer shall be
deemed to have accepted the Technical Acceptance Process as
satisfactory in all respects.
8.3 Certificate of Acceptance
Upon successful completion of the Technical Acceptance Process, the
Buyer shall, 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 E (the "Certificate of Acceptance").
8.4 Aircraft Utilisation
The Seller shall, without payment or other liability, be
entitled to use the Aircraft prior to Delivery as may be necessary
to obtain the certificates required under Clause 7, and such use
shall not prejudice the Buyer's obligation to accept Delivery of the
Aircraft hereunder, [DELETED] The Seller shall [DELETED]. The Buyer
shall [DELETED]. The Seller agrees that it will not [DELETED].
8.5 Finality of Acceptance
The Buyer's acceptance of delivery of each Aircraft will constitute
waiver by the Buyer of any right it may have under the Uniform
Commercial Code or otherwise to revoke such acceptance for any
reason, whether known or unknown to the Buyer at the time of
acceptance.
8.6 INDEMNITY
THE SELLER WILL INDEMNIFY AND HOLD HARMLESS THE BUYER, ITS
DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL
LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES (I) FOR ALL
INJURIES TO AND DEATHS OF PERSONS (EXCEPTING INJURIES TO AND DEATHS
OF THE BUYER'S REPRESENTATIVES PARTICIPATING IN ANY GROUND OR FLIGHT
TESTS UNDER THIS CLAUSE 8) CAUSED BY THE SELLER OR THE BUYER OR ITS
REPRESENTATIVES AND (II) FOR ANY LOSS OF OR DAMAGE TO PROPERTY
(EXCEPTING LOSS OF OR DAMAGE TO PROPERTY OF THE BUYER'S SAID
REPRESENTATIVES) CAUSED BY THE SELLER OR THE BUYER OR ITS
REPRESENTATIVES, IN EITHER CASE WHEN ARISING OUT OF OR IN CONNECTION
WITH THE OPERATION OF THE AIRCRAFT DURING ANY GROUND OR FLIGHT TESTS
UNDER THIS CLAUSE 8. THIS INDEMNITY OF THE SELLER WILL NOT APPLY FOR
ANY SUCH LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISING OUT
OF OR CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE
BUYER'S SAID REPRESENTATIVES.
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER AND EACH OF
THEIR RESPECTIVE DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND
AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES (I) FOR
INJURIES TO OR DEATHS OF THE BUYER'S SAID REPRESENTATIVES
PARTICIPATING IN ANY GROUND OR FLIGHT TESTS UNDER THIS CLAUSE 8,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE BUYER'S SAID
REPRESENTATIVES OR (III) ARISING OUT OF OR CAUSED BY
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THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE OF THE BUYER'S SAID
REPRESENTATIVES. WITH RESPECT TO SUBCLAUSES (I) AND (II) OF THE
PRECEDING SENTENCE, THE BUYER WILL NOT BE OBLIGATED TO INDEMNIFY OR
HOLD HARMLESS THE SELLER WHERE THE LIABILITIES, DAMAGES, LOSSES,
COSTS OR EXPENSES ARISE FROM THE SELLER'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
IN THE EVENT ANY CLAIM IS MADE OR LAWSUIT IS BROUGHT AGAINST EITHER
PARTY (OR ITS RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES)
FOR DAMAGES FOR DEATH OR INJURY OR FOR PROPERTY DAMAGE, THE
LIABILITY FOR WHICH HAS BEEN ASSUMED BY THE OTHER PARTY PURSUANT TO
THIS SUBCLAUSE 8.6, THE FORMER (INDEMNITEE) WILL PROMPTLY GIVE
NOTICE TO THE OTHER PARTY (INDEMNITOR), AND THE INDEMNITOR WILL
ASSUME AND CONDUCT THE DEFENSE THEREOF, AND WILL EFFECT ANY
SETTLEMENT WHICH IT, IN ITS OPINION, DEEMS PROPER. IN THE EVENT THAT
THE INDEMNITOR DOES NOT ASSUME AND CONDUCT THE DEFENSE OF THE CLAIM
OR SUIT, THEN THE INDEMNITEE WILL HAVE THE RIGHT TO PROCEED WITH
DEFENSE OF THE CLAIM OR LAWSUIT AS IT DEEMS APPROPRIATE AND WILL
HAVE AN ACTION AGAINST THE INDEMNITOR FOR ANY JUDGMENTS,
SETTLEMENTS, COSTS OR EXPENSES INCURRED IN CONDUCTING SAID DEFENSE.
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9 DELIVERY
9.1 Delivery Schedule
9.1.1 Subject to Clauses 2, 7, 8, 10 and 18 hereof, the Seller shall have
the Aircraft Ready for Delivery at the Delivery Location within the
months of Scheduled Delivery set forth in Table A to Letter
Agreement No 2. Each of such months shall be, with respect to the
corresponding Aircraft (the "Scheduled Delivery Month").
9.1.2 [DELETED]
The Seller shall give the Buyer at least thirty (30) days prior
written notice of the date on which the Aircraft shall be Ready for
Delivery. Thereafter the Seller shall notify the Buyer of any change
in such date necessitated by the conditions of manufacture or
flight.
9.2 Delivery
9.2.1 The Buyer shall send its representatives to the Delivery Location to
take Delivery of, and collect, the Aircraft within [DELETED] after
the date on which the Aircraft is Ready for Delivery and shall pay
the Balance of the Final Price on or before the Delivery Date.
9.2.2 The Seller shall deliver and transfer title to the Aircraft free and
clear of all encumbrances to the Buyer provided that the Balance of
the Final Price has been paid by the Buyer pursuant to Clause 5.4
and that the Certificate of Acceptance has been signed and delivered
to the Seller pursuant to Clause 8.3. The Seller shall provide the
Buyer with a full warranty bill of sale in the form of Exhibit F
conveying to the Buyer good and marketable title to the Aircraft
free and clear of all liens, claims, charges and encumberances of
any kind (the "Bill of Sale") and/or such other documentation
confirming transfer of title and receipt of the Final Price as may
reasonably be requested by the Buyer. Title to, property in and risk
of loss or damage to the Aircraft shall be transferred to the Buyer
on Delivery.
9.2.3 Should the Buyer fail to
(i) deliver the signed Certificate of Acceptance to the Seller
within the delivery period as defined in Clause 9.2.1; or
(ii) pay the Balance of the Final Price for the Aircraft to the
Seller within the above defined period
then the Buyer shall be deemed to have rejected delivery of the
Aircraft without warrant when duly tendered to it hereunder. In
addition to Clause 5.7 and the Seller's other rights under this
Agreement, the Buyer shall indemnify and hold the Seller harmless
against any and all costs (including but not limited to any parking,
storage, and insurance [DELETED].
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9.3 Fly Away
9.3.1 The Buyer and the Seller shall co-operate to obtain any licenses
which may be required by the Aviation Authority of the Delivery
Location 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 shall be borne by the Buyer or its
Operator. The Buyer or its Operator shall make direct arrangements
with the supplying companies for the fuel and oil required for all
post-Delivery flights.
10 EXCUSABLE DELAY
10.1 The Buyer acknowledges that the Aircraft are to be manufactured by
Seller in performance of this Agreement and that the Scheduled
Delivery Months are based on the assumption that there shall be no
delay due to causes beyond the control of the Seller. Accordingly,
Seller shall not be responsible for any delay in the Delivery of the
Aircraft or delay or interruption in the performance of the other
obligations of the Seller hereunder due to causes beyond its
control, and not occasioned by its fault or negligence including
(but without limitation) acts of God or the public enemy, war, civil
war, warlike operations, terrorism, insurrections or riots, fires,
explosions, natural disasters, compliance with any applicable
foreign or domestic governmental regulation or order, labour
disputes causing cessation, slowdown or interruption of work,
inability after due and timely diligence to procure materials,
equipment or parts, general hindrance in transportation or failure
of a sub-contractor or supplier to furnish materials, equipment or
parts. Any delay or interruption resulting from any of the foregoing
causes is referred to as an "Excusable Delay".
10.2 If an Excusable Delay occurs:
(i) the Seller shall notify the Buyer of such Excusable Delay as
soon as practicable after becoming aware of the same;
(ii) the Seller shall not be responsible for any damages arising
from or in connection with such Excusable Delay suffered or
incurred by the Buyer;
(iii) the Seller shall not be deemed to be in default in the
performance of its obligations hereunder as a result of such
Excusable Delay; and
(iv) [DELETED]
10.3 Termination on Excusable Delay
10.3.1 If the Delivery of any Aircraft is delayed as a result of an
Excusable Delay for a period of more than [DELETED] months after the
last day of the Scheduled Delivery Month, [DELETED] months [DELETED]
due to an Excusable Delay, then the Buyer may terminate this
Agreement with respect to the Aircraft so affected by giving written
notice to the Seller within thirty (30) days after the expiry of
such [DELETED] month period, provided that the Buyer shall not be
entitled to terminate this Agreement pursuant to this Clause if the
Excusable Delay results from a cause within its control.
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10.3.2 If the Delivery of any Aircraft is delayed as a result of an
Excusable Delay for a period of more than [DELETED] months after the
last day of the Scheduled Delivery Month, or if the Seller concludes
that the Delivery of any Aircraft shall be delayed for more than
[DELETED] months after the last day of the Scheduled Delivery Month
due to an Excusable Delay and as a result thereof reschedules
Delivery of such Aircraft to a date or month reflecting such delay
then the Seller shall promptly notify the Buyer in writing to this
effect and shall include in such notification the new Scheduled
Delivery Month. Either party may thereupon terminate this Agreement
with respect to such Aircraft by giving written notice to the other
party within thirty (30) days after receipt by the Buyer of the
notice of anticipated delay.
10.3.3 If this Agreement shall not have been terminated with respect to the
delayed Aircraft during the thirty (30) day period referred to in
either Clause 10.3.1 or 10.3.2 above, then the Seller shall be
entitled to reschedule Delivery and the new Scheduled Delivery Month
shall be notified to the Buyer and shall be binding on the parties.
The Seller shall [DELETED].
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 repair ("Total
Loss"), the Seller shall notify the Buyer to this effect within one
(1) month of such occurrence. The Seller shall 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 Buyer and the Scheduled Delivery Month shall be
extended as specified in the Seller's notice to accommodate the
delivery of the replacement aircraft: provided, however, that in
the event the specified extension of the Scheduled Delivery Month to
a month is exceeding twelve (12) months after the last day of the
original Scheduled Delivery Month then this Agreement shall
terminate with respect to said Aircraft [DELETED].
(i) the Buyer notifies the Seller within one (1) month of the date
of receipt of the Seller's notice that [DELETED]; and
(ii) the parties execute an amendment to this Agreement recording
the variation in the Scheduled Delivery Month; provided,
however, that nothing herein shall 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 which includes the
Aircraft purchased hereunder.
10.5 Termination Rights Exclusive
In the event that this Agreement shall be terminated with respect to
an Aircraft as provided for under the terms of Clauses 10.3 or 10.4,
such termination shall discharge all obligations and liabilities of
the parties hereunder with respect to such affected Aircraft and
undelivered material, services, data or other items applicable
thereto and to be furnished hereunder and neither party shall have
any claim against the other for any loss resulting from such
non-delivery, [DELETED].
10.6 Waiver
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The Seller shall not under any circumstances have any liability
whatsoever in respect of delay or failure in the delivery of any
Aircraft other than and beyond the liabilities set forth in this
Clause.
10.7 REMEDIES
THIS CLAUSE 10 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER
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,
INCLUDING WITHOUT LIMITATION ANY RIGHTS TO INCIDENTAL AND
CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE, TO WHICH IT WOULD
OTHERWISE BE ENTITLED IN RESPECT THEREOF. THE BUYER WILL NOT BE
ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE BENEFITS PROVIDED IN
THIS CLAUSE 10 TO THE EXTENT THE DELAY REFERRED TO IN THIS CLAUSE 10
IS SOLELY CAUSED BY THE BUYER OR ITS REPRESENTATIVES.
11 NON-EXCUSABLE DELAY
11.1 [DELETED]
11.1.1 Should any of the Aircraft not be Ready for Delivery to the Buyer
[DELETED] and such delay is not as a result of an Excusable Delay or
Total Loss (a "Non-Excusable Delay"), then the Buyer [DELETED].
[DELETED]
11.1.2 [DELETED]
11.1.3 [DELETED]
11.1.4 [DELETED]
11.2 Total Liability
Notwithstanding Subclause 11.1, the total liability of the Seller
under this Clause 11 and this Agreement with respect to any Aircraft
will in no event exceed [DELETED] of the affected Aircraft.
11.3 [DELETED]
11.4 Termination
11.4.1 If as a result of Non-Excusable Delay, Delivery does not occur in
the period falling [DELETED] the Delivery Date pursuant to Clause
11.2, the Buyer shall have the right exercisable by written notice
to the Seller, given not less than one (1) month nor more than two
(2) months after [DELETED].
11.4.2 [DELETED]
11.4.3 [DELETED]
11.5 [DELETED]
11.6 Waiver
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The Seller shall not under any circumstances have any liability
whatsoever in respect of delay or failure in the delivery of any
Aircraft other than and beyond the liabilities set forth in this
Clause.
11.7 REMEDIES
THIS CLAUSE 11 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE BUYER
FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS
AS ARE COVERED BY CLAUSE 10, AND THE BUYER HEREBY WAIVES ALL RIGHTS,
INCLUDING WITHOUT LIMITATION ANY RIGHTS TO INCIDENTAL AND
CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE, TO WHICH IT WOULD
OTHERWISE BE ENTITLED IN RESPECT THEREOF. THE BUYER WILL NOT BE
ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE BENEFITS PROVIDED IN
THIS CLAUSE 11 [DELETED].
12 WARRANTIES AND SERVICE LIFE POLICY
This Clause covers the terms and conditions of the warranty and
service life policy.
12.1 Standard Warranty
12.1.1 Nature of Warranty
Subject to the conditions and limitations as hereinafter provided
for and except as provided for in Clause 12.1.2, the Seller warrants
to the Buyer that each Aircraft and all Warranted Parts as defined
hereinafter shall at Delivery to the Buyer:
(i) be free from defects in material;
(ii) be free from defects in workmanship, including without
limitation processes of manufacture;
(iii) be free from defects in design (including without limitation
the selection of materials) having regard to the state of the
art at the date of such design; and
(iv) be free from defects arising from failure to conform to the
Specification, except to those portions of the Specification
relating to performance or where it is expressly stated that
they are estimates, approximations or design aims.
For the purpose of this Agreement the term "Warranted Part" shall
mean any Seller proprietary component, equipment, accessory or part
as installed on an Aircraft at Delivery of such Aircraft and
(a) which is manufactured to the detailed design of the Seller or
a subcontractor of the Seller and
(b) which bears a part number of the Seller at the time of such
delivery.
12.1.2 Exclusions
The warranties set forth in Clause 12.1.1 shall not apply to Buyer
Furnished Equipment, nor to the Propulsion Systems, nor to any
component, equipment, accessory or part purchased by the Seller that
is not a Warranted Part except that:
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(i) any defect in the Seller's installation of such items in the
Aircraft, including any failure by the Seller to conform to
the installation instructions of the manufacturer of such item
that invalidates any applicable warranty from such
manufacturer, shall constitute a defect in workmanship for the
purpose of this Clause and be covered by the warranty set
forth in sub-Clause 12.1.1 (ii); and
(ii) any defect inherent in the Seller's design of the
installation, in view of the state of the art at the date of
such design, which impairs the use of such item shall
constitute a defect in design for the purpose of this Clause
and be covered by the warranty set forth in sub-Clause 12.1.1
(iii).
12.1.3 Warranty Period
The warranties contained in Clauses 12.1.1 and 12.1.2 shall be
limited to those defects which become apparent within thirty six
(36) months after Delivery of the affected Aircraft ("Warranty
Period").
12.1.4 Buyer's Remedy and Seller's Obligation
12.1.4.1 The Buyer's remedy and the Seller's obligation and liability under
Clauses 12.1.1 and 12.1.2 are limited to the repair, replacement or
correction of any Warranted Part which is defective or to the supply
of modification kits rectifying the defect, at the Seller's expense
and option.
The Seller may equally at its option furnish a credit to the Buyer
equal to the price at which the Buyer is entitled to purchase a
replacement for the defective Warranted Part;
12.1.4.2 In the event of a defect covered by sub-Clauses 12.1.1 (iii), 12.1.1
(iv) and 12.1.2 (ii) becoming apparent within the Warranty Period
and the Seller being obliged to correct such defect, the Seller
shall also, if so requested by the Buyer, make such correction in
any Aircraft which has not yet been delivered to the Buyer;
provided, however
(i) that the Seller shall not be responsible nor deemed to be in
default on account of any delay in delivery of any Aircraft or
otherwise, in respect of the performance of this Agreement due
to the Seller's undertaking to make such correction and
provided further
(ii) that, rather than accept a delay in the delivery of any such
Aircraft (and provided further that such Aircraft is eligible
for the issuance of the Airworthiness Certificate pursuant to
sub-Clause 7.2 of this Agreement), the Buyer and the Seller
may agree to deliver such Aircraft with subsequent correction
of the defect by the Buyer at the Seller's expense, or the
Buyer may elect to accept delivery and thereafter file a
warranty claim as though the defect had become apparent
immediately after Delivery of such Aircraft.
12.1.4.3 In addition to the remedies set forth in Clauses 12.1.4.1 and
12.1.4.2, the Seller shall reimburse the direct labor costs spent by
the Buyer in performing inspections of the Aircraft to determine
whether or not a defect exists in any Warranted Part within the
Warranty Period or until the corrective technical solution removing
the need for the inspection is provided by the Seller whichever
occurs earlier.
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The above commitment is subject to the following conditions:
(i) such inspections are recommended by a Seller Service Bulletin
to be performed within the Warranty Period;
(ii) the inspection is performed outside of a scheduled maintenance
check as recommended by the Seller's Maintenance Planning
Document;
(iii) the reimbursement shall not apply for any inspections
performed as an alternative to accomplishing corrective action
when such corrective action has been made available to the
Buyer and such corrective action could have reasonably been
accomplished by the Buyer at the time such inspections are
performed or earlier,
(iv) the labor rate to be used for the reimbursement shall be labor
rate defined in Clause 12.1.7, and
(v) the manhours used to determine such reimbursement shall not
exceed the Seller's good faith estimate of the manhours
required by the Buyer for such inspections.
12.1.5 Warranty Claim Requirements
Each warranty claim by the Buyer ("Warranty Claim") shall be
considered by the Seller only if the following conditions are first
fulfilled:
(i) the defect having become apparent within the Warranty Period;
(ii) the Buyer having submitted to the Seller proof reasonably
satisfactory to the Seller that the claimed defect is due to a
matter embraced within this Clause 12.1, and that such defect
has not resulted from any act or omission of the Buyer,
including but not limited to, any failure to operate and
maintain the affected Aircraft or part thereof in accordance
with the standards set forth or any matter covered in Clause
12.1.10;
(iii) the Buyer having returned as soon as practicable the Warranted
Part claimed to be defective to the repair facilities as may
be designated by the Seller, except when the Buyer elects to
repair a defective Warranted Part in accordance with the
provisions of Clause 12.1.7;
(iv) the Seller having received a Warranty Claim as set forth in
Clause 12.1.6.
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12.1.6 Warranty Administration
The warranties set forth in Clause 12.1 shall be administered as
hereinafter provided for:
(i) Claim Determination
Warranty Claim determination by the Seller shall be reasonably
based upon the claim details, reports from the Seller's local
representative, historical data logs, inspection, tests,
findings during repair, defect analysis and other suitable
documents.
(ii) Transportation Costs
Transportation costs for sending a defective Warranted Part to
the facilities designated by the Seller and for the return
therefrom of a repaired or replaced Warranted Part shall be
borne by the Buyer.
(iii) Return of an Aircraft
In the event of the Buyer desiring to return an Aircraft to
the Seller for consideration of a Warranty Claim, the Buyer
shall notify the Seller of its intention to do so and the
Seller shall, prior to such return, have the right to inspect
such Aircraft and thereafter, without prejudice to its rights
hereunder, to repair such Aircraft, at its sole option, either
at the Buyer's facilities or at another place acceptable to
the Seller. Return of any Aircraft by the Buyer to the Seller
and return of such Aircraft to the Buyer's facilities shall be
at the Buyer's expense.
(iv) On-Aircraft Work by the Seller
In the event that a defect subject to this Clause 12.1 may
justify the dispatch by the Seller of a working team to repair
or correct such defect through the embodiment of one or
several Seller's Service Bulletins at the Buyer's facilities,
or in the event of the Seller accepting the return of an
Aircraft to perform or have performed such repair or
correction, then the labor costs for such on-Aircraft work are
to be borne by the Seller at the labor rate defined in Clause
12.1.7.
All related expenses, including but not limited to travel and
living expenses, in excess of the labor costs as defined
above, incurred in performing such repair or correction shall
be borne by the Buyer.
The condition which has to be fulfilled for on-Aircraft work
by the Seller is that in the opinion of the Seller, the work
necessitates the technical expertise of the Seller as
manufacturer of the Aircraft.
If said condition is fulfilled and if the Seller is requested
to perform the work, the Seller and the Buyer shall agree on a
schedule and place for the work to be performed.
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The rate charged to the Buyer for any such services shall not
exceed the rate charged to other commercial airline customers
of the Seller during substantially the same time period.
(v) Warranty Claim Substantiation
In connection with each claim by the Buyer made under this
Clause 12.1, the Buyer shall file a Warranty Claim on the
Buyer's form within sixty (60) days after a defect became
apparent. Such form must contain at least the following data:
a) description of defect and action taken, if any,
b) date of incident and/or of removal date,
c) description of the defective part,
d) part number,
e) serial number (if applicable),
f) position on Aircraft,
g) total flying hours or calendar time, as applicable at
the date of defect appearance,
h) time since last shop visit at the date of defect
appearance,
i) manufacturer serial number ("Manufacturer's Serial
Number") of the Aircraft and/or its registration,
j) Aircraft total flying hours and/or number of landings at
the date of defect appearance,
k) Warranty Claim number,
l) date of Warranty Claim,
m) delivery date of Aircraft or part to the Buyer,
Warranty Claims are to be addressed as follows:
AIRBUS INDUSTRIE
CUSTOMER SERVICES DIRECTORATE
WARRANTY ADMINISTRATION
Rond-Point Maurice Bellonte
B.P. 33
F-31707 BLAGNAC CEDEX
FRANCE
(vi) Replacements
Components, equipment, accessories or parts, which the Seller
has replaced pursuant to this Clause, shall become the
Seller's property. The replacement components, equipment,
accessories or parts provided by the Seller to the Buyer
pursuant to this Clause shall become the Buyer's property.
(vii) Seller's Rejection
The Seller shall provide reasonable written substantiation in
case of rejection of a Warranty Claim. In such event the Buyer
shall refund to the Seller reasonable inspection and test
charges incurred in connection therewith.
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(viii) Seller's Inspection
The Seller shall have the right to inspect the affected
Aircraft and documents and other records relating thereto in
the event of any Warranty Claim under this Clause 12.1.
12.1.7 Inhouse Warranty
(i) Seller's Authorization
The Seller hereby authorizes the Buyer to perform the repair
of Warranted Parts ("Inhouse Warranty") subject to the terms
of this Clause 12.1.7.
(ii) Conditions for Seller's Authorization
The Buyer shall be entitled to repair such Warranted Parts
only:
- if the Buyer notifies the Seller's Representative of its
intention to perform Inhouse Warranty repairs before any
such repairs are started where the estimated cost of
such repair is in excess of US Dollars five thousand
(US$ 5,000). The Buyer's notification shall include
sufficient detail regarding the defect, estimated labor
hours and material to allow the Seller to ascertain the
reasonableness of the estimate. The Seller agrees to use
all reasonable efforts to ensure a prompt response and
shall not unreasonably withhold authorization;
- if adequate facilities and qualified personnel are
available to the Buyer;
- in accordance with the Seller's written instructions set
forth in the applicable Seller's technical
documentation;
- to the extent specified by the Seller, or, in the
absence of such specification, to the extent reasonably
necessary to correct the defect, in accordance with the
standards set forth in Clause 12.1.10.
(iii) Seller's Rights
The Seller shall have the right to have any Warranted Part, or
any part removed therefrom, claimed to be defective, returned
to the Seller, as set forth in sub-Clause 12.1.6 (ii) if, in
the judgement of the Seller, the nature of the defect requires
technical investigation. The Seller shall further have the
right to have a representative present during the disassembly,
inspection and testing of any Warranted Part claimed to be
defective, subject to the presence of such representative
being practical and not unduly delaying the repair.
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(iv) Inhouse Warranty Claim Substantiation
Claims for Inhouse Warranty credit shall contain the same
information as that required for Warranty Claims under
sub-Clause 12.1.6 (v) and in addition shall 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),
- parts description,
- quantity of parts,
- unit price of parts,
- related Seller's or third party's invoices (if
applicable),
- total price of parts,
c) detailed number of labor hours,
d) Inhouse Warranty Labor Rate,
e) total claim value.
(v) Credit
The Buyer's account shall be credited with an amount equal to
the mutually agreed direct labor costs expended in performing
the off-Aircraft repair of a Warranted Part and to the direct
costs of materials incorporated in said repair.
- For the determination of direct labor costs only
manhours spent on disassembly, inspection, repair,
reassembly, and final inspection and test of the
Warranted Part are permissible. Any manhours required
for maintenance work concurrently being carried out on
the Aircraft or Warranted Part as well as for removal
and installation of the Warranted Part are not included.
- The manhours permissible above shall be multiplied by a
labor rate ("Inhouse Warranty Labour Rate") equal to
either:
[DELETED]
- Direct material costs are determined by the prices at
which the Buyer acquired such material, excluding any
parts and materials used for overhaul and as may be
furnished by the Seller at no charge.
(vi) Limitation
The Buyer shall in no event be credited for repair costs
(including labor and material) in excess of [DELETED] per cent
([DELETED]%) of the current catalogue price for a replacement
of the defective Warranted Part, or where the repair cost
(including labor and material) is in excess of US Dollars
[DELETED] (US$ [DELETED]) unless previously approved by the
Seller in accordance with sub-Clause 12.1.7 (ii).
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(vii) Scrapped Material
The Buyer shall retain any defective Warranted Part which is
beyond economic repair and any defective part removed from a
Warranted Part during repair for a period of either one
hundred and twenty (120) days after the date of completion of
repair or sixty (60) days after submission of a claim for
Inhouse Warranty credit relating thereto, whichever is longer.
Such parts shall be returned to the Seller within thirty (30)
days of receipt of the Seller's request to that effect.
Notwithstanding the foregoing, the Buyer may scrap any such
defective parts which are beyond economic repair and not
required for technical evaluation locally with the agreement
of the Seller's local representative. Scrapped Warranted Parts
shall be evidenced by a record of scrapped material certified
by an authorized representative of the Buyer.
(viii) THE SELLER WILL NOT BE LIABLE FOR ANY RIGHT, CLAIM OR REMEDY,
AND THE BUYER WILL INDEMNIFY THE SELLER AGAINST THE CLAIMS OF
ANY THIRD PARTIES FOR ANY DEFECT, NONCONFORMANCE OR PROBLEM OF
ANY KIND, ARISING OUT OF OR IN CONNECTION WITH ANY REPAIR OF
WARRANTED PARTS OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER
UNDER THIS SUBCLAUSE 12.1.7, INCLUDING BUT NOT LIMITED TO: (I)
LIABILITY IN CONTRACT OR TORT, (II) LIABILITY ARISING FROM THE
BUYER'S ACTUAL OR IMPUTED NEGLIGENCE, INTENTIONAL TORTS AND/OR
STRICT LIABILITY, AND/OR (III) LIABILITY TO ANY THIRD PARTIES.
12.1.8 Standard Warranty Transferability
The warranties provided for in this Clause 12.1 for any Warranted
Part shall accrue to the benefit of any airline, other than the
Buyer, if the Warranted Part enters into the possession of any such
airline as a result of a pooling or leasing agreement between such
airline and the Buyer, in accordance with the terms and subject to
the limitations and exclusions of the foregoing warranties, and to
the extent permitted by any applicable law or regulations.
12.1.9 Warranty for Corrected, Replaced or Repaired Warranted Parts
Whenever any Warranted Part which contains a defect for which the
Seller is liable under Clause 12.1 has been corrected, replaced or
repaired pursuant to the terms of this Clause 12.1, the period of
the Seller's warranty with respect to such corrected, replaced or
repaired Warranted Part whichever may be the case, shall be the
remaining portion of the original warranty.
12.1.10 Accepted Industry Standard Practices - Normal Wear and Tear
The Buyer's 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 accepted industry standard practices, all technical
documentation and any other instructions issued by the Seller and
the Suppliers and the Propulsion Systems Manufacturer and all
applicable rules, regulations and directives of relevant Aviation
Authorities.
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12.1.10.1 The Seller's liability under this Clause 12.1 shall not extend to
normal wear and tear nor to:
(i) any Aircraft or component, equipment, accessory or part
thereof which has been repaired, altered or modified after
Delivery except by the Seller or in a manner approved by the
Seller;
(ii) any Aircraft or component, equipment, accessory or part
thereof which has been knowingly operated in a damaged state;
(iii) any component, equipment, accessory and part from which the
trademark, name, part or serial number or other identification
marks have been removed intentionally;
unless in any such case (except in the case of (iii) above) the
Buyer submits reasonable evidence to the Seller that the defect did
not arise from or was not contributed by any one or more of the said
causes.
12.2 Seller Service Life Policy
12.2.1 In addition to the warranties set forth in Clause 12.1, the Seller
further agrees that should any item listed in Exhibit "G" ("Item")
sustain any breakage, or defect which is inherent to the design,
manufacture or installation of such Item, and which materially
impairs the utility of the Item ("Failure"), and subject to the
general conditions and limitations set forth in Clause 12.2.4, then
the provisions of this Clause 12.2 ("Seller Service Life Policy")
shall apply.
12.2.2 Periods and Seller's Undertakings
The Seller agrees that if a Failure occurs in an Item before the
Aircraft in which such Item has been originally installed has
completed [DELETED] flying hours, or has completed [DELETED] flight
cycles, or within [DELETED] years after the Delivery of said
Aircraft to the Buyer, whichever shall first occur, the Seller shall
at its own discretion and as promptly as practicable and with the
Seller's financial participation as hereinafter provided either:
12.2.2.1 design and furnish to the Buyer a correction for such Item with a
Failure and provide any parts required for such correction
(including Seller designed standard parts but excluding industry
standard parts), or,
12.2.2.2 replace such Item.
12.2.3 Seller's Participation in the Costs
Any part or Item which the Seller is required to furnish to the
Buyer under this Service Life Policy in connection with the
correction or replacement of an Item shall be furnished to the Buyer
with the Seller's financial participation determined in accordance
with the following formula:
[DELETED]
which ever of the foregoing sub-clauses (i), (ii) or (iii) yields
the lowest ratio of:
(N - T)/N
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12.2.4 General Conditions and Limitations
12.2.4.1 The undertakings given in this Clause 12.2 shall be valid after the
period of the Seller's warranty applicable to an Item under Clause
12.1.
12.2.4.2 The Buyer's remedy and the Seller's obligation and liability under
this Service Life Policy are subject to the prior compliance by the
Buyer with the following conditions:
(i) the Buyer shall maintain log books and other historical
records with respect to each Item adequate to enable
determination of whether the alleged Failure is covered by
this Service Life Policy and if so to define the costs to be
borne by the Seller in accordance with Clause 12.2.3;
(ii) the Buyer shall keep the Seller informed of any significant
incidents relating to an Aircraft howsoever occurring or
recorded;
(iii) the Buyer shall comply with the conditions of Clause 12.1.10;
(iv) the Buyer shall carry out specific structural inspection
programs for monitoring purposes as may be established from
time to time by the Seller. Such programs shall be as
compatible as possible with the Buyer's operational
requirements and shall be carried out at the Buyer's expense.
Reports relating thereto shall be regularly furnished to the
Seller;
(v) in the case of any breakage or defect, the Buyer must have
reported the same in writing to the Seller within sixty (60)
days after any breakage or defect in an Item becomes apparent
whether or not said breakage or defect can reasonably be
expected to occur in any other aircraft, and the Buyer shall
have informed the Seller of the breakage or defect in
sufficient detail to enable the Seller to determine whether
said breakage or defect is subject to this Service Life
Policy.
12.2.4.3 Except as otherwise provided for in this Clause 12.2, any claim
under this Service Life Policy shall be administered as provided for
in and shall be subject to the terms and conditions of Clause
12.1.6.
12.2.4.4 In the event that the Seller shall have issued a modification
applicable to an Aircraft, the purpose of which is to avoid a
Failure, the Seller may elect to supply the necessary modification
kit free of charge or under a pro rata formula. If such a kit is so
offered to the Buyer, then, to the extent of such Failure and any
Failures that could ensue therefrom, the validity of the Seller's
commitment under this Clause 12.2 shall be subject to the Buyer's
incorporating such modification in the relevant Aircraft, as
promulgated by the Seller and in accordance with the Seller's
instructions, within a reasonable time.
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 SUBCLAUSE 12.2 IS TO MAKE ONLY THOSE CORRECTIONS TO THE ITEMS
OR FURNISH REPLACEMENTS THEREFOR AS PROVIDED IN THIS SUBCLAUSE 12.2.
THE BUYER'S 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 BUYER
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REASONABLY EXPENDS 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 BUYER OTHERWISE WOULD HAVE BEEN REQUIRED TO PAY UNDER THIS
SUBCLAUSE 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 SUBCLAUSE 12.5, THE
BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL CLAIMS TO ANY
FURTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS
OF PROFITS AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES, ARISING UNDER
OR BY VIRTUE OF THIS SERVICE LIFE POLICY.
12.2.5 Transferability
The Buyer's rights under this Clause 12.2 shall not be assigned,
sold, leased, transferred or otherwise alienated by operation of law
or otherwise, without the Seller's prior consent thereto, which
shall not be unreasonably withheld and given in writing.
Any unauthorized assignment, sale, lease, transfer or other
alienation of the Buyer's rights under this Service Life Policy
shall, as to the particular Aircraft involved, immediately void this
Service Life Policy in its entirety.
12.3 Supplier Product Support Agreements
Prior to the Delivery of the first Aircraft, the Seller shall
provide the Buyer with such warranties and service life policies
that the Seller has obtained pursuant to the Supplier Product
Support Agreement.
12.3.1 Definitions
For the purposes of this Clause 12 the following definitions shall
apply:
12.3.1.1 "Supplier" means any supplier of Supplier Parts.
12.3.1.2 "Supplier Parts" means any component, equipment, accessory or part
installed in an Aircraft at the time of Delivery thereof as to which
there exists a Supplier Product Support Agreement. However, the
Propulsion Systems and Buyer Furnished Equipment and other equipment
selected by the Buyer to be supplied by Suppliers with whom the
Seller has no existing enforceable warranty agreements are not
Supplier Parts.
12.3.1.3 "Supplier Product Support Agreement" means an agreement between the
Seller 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.
12.3.2 Supplier's Default
12.3.2.1 In the event that any Supplier, under any standard warranty obtained
by the Seller pursuant to Clause 12.3.1, defaults in the performance
of any material obligation with respect thereto and the Buyer
submits in reasonable time to the Seller reasonable proof that such
default has occurred, then Clause 12.1 shall apply to the extent the
same would have been applicable had such Supplier Part been a
Warranted Part, except that the Supplier's warranty period as
indicated in the Supplier Product Support Agreement shall apply.
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12.3.2.2 In the event that any Supplier, under any Supplier Service Life
Policy obtained by the Seller pursuant to Clause 12.3.1, defaults in
the performance of any material obligation with respect thereto and
the Buyer submits in reasonable time to the Seller reasonable proof
that such default has occurred, then Clause 12.2 shall apply to the
extent the same would have been applicable had such Supplier Item
been listed in Exhibit F, Seller Service Life Policy, except that
the Supplier's Service Life Policy period as indicated in the
Supplier Product Support Agreement shall apply.
12.3.2.3 At the Seller's request, the Buyer shall assign to the Seller, and
the Seller shall be subrogated to, all of the Buyer's rights against
the relevant Supplier with respect to and arising by reason of such
default and the Buyer shall provide reasonable assistance to enable
the Seller to enforce the rights so assigned.
12.4 Interface Commitment
12.4.1 Interface Problem
If the Buyer experiences any technical problem in the operation of
an Aircraft or its systems due to a malfunction, the cause of which,
after due and reasonable investigation, is not readily identifiable
by the Buyer, but which the Buyer reasonably believes to be
attributable to the design characteristics of one or more components
of the Aircraft ("Interface Problem"), the Seller shall, if so
requested by the Buyer, and without additional charge to the Buyer
except for transportation of the Seller's personnel to the Buyer's
facilities, 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. The Buyer shall furnish to the Seller all data and
information in the Buyer's possession relevant to the Interface
Problem, and shall 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 shall promptly
advise the Buyer 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 shall, if
so requested by the Buyer and pursuant to the terms and conditions
of Clause 12.1, correct the design of such Warranted Part to the
extent of the Seller's obligation as defined in 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 shall,
if so requested by the Buyer, reasonably assist the Buyer in
processing any warranty claim the Buyer may have against the
Supplier.
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 shall, if so requested by
the Buyer, seek a solution to the Interface Problem through
cooperative efforts of the Seller and any Supplier involved.
The Seller shall promptly advise the Buyer of such corrective action
as may be
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proposed by the Seller and any such Supplier. Such proposal shall be
consistent with any then existing obligations of the Seller
hereunder and of any such Supplier to the Buyer. Such corrective
action when accepted by the Buyer shall constitute full satisfaction
of any claim the Buyer may have against either the Seller or any
such Supplier with respect to such Interface Problem.
12.4.5 General
12.4.5.1 All requests under this Clause 12.4 shall be directed to both the
Seller and the Supplier.
12.4.5.2 Except as specifically set forth in this Clause 12.4, this Clause
shall not be deemed to impose on the Seller any obligations not
expressly set forth elsewhere in this Clause 12.
12.4.5.3 All reports, recommendations, data and other documents furnished by
the Seller to the Buyer pursuant to this Clause 12.4 shall be deemed
to be delivered under this Agreement and shall be subject to the
terms, covenants and conditions set forth in this Clause 12.
12.5 EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY
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 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 OR SERVICE DELIVERED UNDER
THIS AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN
THIS CLAUSE 12 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE BUYER FROM
ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN THE GOODS AND
SERVICES SUPPLIED UNDER THIS AGREEMENT. THE BUYER HEREBY WAIVES,
RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES
AND LIABILITIES OF THE SELLER AND ALL OTHER RIGHTS, CLAIMS AND
REMEDIES OF THE BUYER AGAINST THE SELLER, WHETHER EXPRESS OR IMPLIED
BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE, WITH RESPECT TO
ANY NONCONFORMITY OR DEFECT OR PROBLEM OF ANY KIND IN ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE DELIVERED 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;
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(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF
LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO,
ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT
LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR
LOCAL STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(a) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS
AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER
THIS AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS AGREEMENT
WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN
INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. 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.
12.6 Duplicate Remedies
The remedies provided to the Buyer under this Clause 12 as to any
defect in respect of the Aircraft or any part thereof are mutually
exclusive and not cumulative. The Buyer 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 Clause 12 for
any such particular defect for which remedies are provided under
this Clause 12; provided, however, that the Buyer will not be
entitled to elect a remedy under one part of this Clause 12 that
constitutes a duplication of any remedy elected by it under any
other part hereof for the same defect. The Buyer's 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 Buyer expends in
procuring a correction or replacement for any covered part subject
to a defect or nonperformance covered by this Clause 12, and the
Buyer will not have any right to require specific performance by the
Seller.
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12.7 Negotiated Agreement
The Buyer and the Seller agree that this Clause 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 this Agreement were arrived
at in consideration of, inter alia, the provisions of this Clause
12, specifically including the Exclusivity of Warranties and General
Limitations of Liability provisions and the Duplicate Remedies
provisions set forth in Subclause 12.6.
13 PATENT AND COPYRIGHT INDEMNITY
13.1 Indemnity
13.1.1 Subject to the provisions of Clause 13.2.3, the Seller shall
indemnify the Buyer from and against any damages, costs or 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;
and:
(ii) any patent issued under the laws of any other country in which
the Buyer may lawfully operate the Aircraft, provided that:
(1) from the time of design of such Aircraft, accessory,
equipment or part and until infringement claims are
resolved, such country and the flag country of the
Aircraft are each a party to the Chicago Convention on
International Civil Aviation of December 7, 1944 and are
each fully entitled to all benefits of Article 27
thereof,
or in the alternative,
(2) from such time of design and until infringement claims
are resolved, such country and the flag country of the
Aircraft are each a party to the International
Convention for the Protection of Industrial Property of
March 20, 1883 ("Paris Convention");
and:
(iii) in respect of computer software installed on the Aircraft, any
copyright, provided that the Seller's obligation to indemnify
shall be limited to infringements in countries which, at the
time of infringement, are members of The Berne Union and
recognise computer software as a "work" under the Berne
Convention.
13.1.2 Clause 13.1.1 shall not apply to
(i) Buyer Furnished Equipment or Propulsion Systems; or
(ii) parts not supplied pursuant to a Supplier Product Support
Agreement; or
(iii) software not created by the Seller.
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13.1.3 In the event that the Buyer is prevented from using the Aircraft
(whether by a valid judgement of a court of competent jurisdiction
or by a settlement arrived at between claimant, Seller and Buyer),
the Seller shall at its expense either:
(i) procure for the Buyer the right to use the same free of charge
to the Buyer; or
(ii) replace the infringing part of the Aircraft as soon as
possible with a non-infringing substitute complying in all
other respects with the requirements of this Agreement.
13.2 Administration of Patent and Copyright Indemnity Claims
13.2.1 If the Buyer receives a written claim or a suit is threatened or
commenced against the Buyer for infringement of a patent or
copyright referred to in Clause 13.1, the Buyer shall:
(i) forthwith notify the Seller giving particulars thereof;
(ii) furnish to the Seller all data, papers and records within the
Buyer's 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 such suit or claim provided always that nothing in
this sub-Clause (iii) shall prevent the Buyer from paying such
sums as may be required in order to obtain the release of the
Aircraft, provided such payment is accompanied by a denial of
liability and is made without prejudice;
(iv) fully co-operate with, and render all such assistance to, the
Seller as may be pertinent to the defense or denial of the
suit or claim;
(v) act in such a way as to mitigate damages and / or to reduce
the amount of royalties which may be payable as well as to
minimise costs and expenses.
13.2.2 The Seller shall be entitled either in its own name or on behalf of
the Buyer 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 which, in the Seller's opinion, it
deems proper.
13.2.3 The Seller's liability hereunder shall be conditional upon the
strict and timely compliance by the Buyer with the terms of this
Clause.
13.3 WAIVER
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 THE BUYER 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 THE 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
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PATENT INFRINGEMENT OR THE LIKE BY ANY AIRCRAFT, ACCESSORY,
EQUIPMENT OR PART, 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
SUBCLAUSE 13.4 WILL REMAIN IN FULL FORCE AND EFFECT. THIS PATENT
INDEMNITY WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A
WRITTEN INSTRUMENT SIGNED BY THE SELLER AND THE BUYER.
14 TECHNICAL DATA AND DOCUMENTATION
14.1 General
This Clause covers the terms and conditions for the supply of
technical data and documentation (hereinafter "Technical Data and
Documentation") to support the Aircraft operation.
The Technical Data and Documentation shall be supplied in the
English language using the aeronautical terminology in common use.
14.2 Scope
Range, form, type, format, Air Transport Association ("ATA") / Non
ATA compliance, quantity and delivery schedule of the Technical Data
and Documentation to be provided under this Agreement are covered in
Exhibit H. The Buyer shall not be entitled to any credit or
compensation for any Technical Data and Documentation provided
pursuant to this Clause that has not been used or only partially
used.
14.3 Aircraft Identification for Technical Data and Documentation
14.3.1 For the customized Technical Data and Documentation the Buyer agrees
to the allocation of fleet serial numbers ("Fleet Serial Numbers")
in the form of block of numbers selected in the range from 001 to
999.
14.3.2 The sequence shall not be interrupted except if two (2) different
Propulsion Systems or two (2) different Aircraft models are
selected.
14.3.3 The Buyer shall indicate to the Seller the Fleet Serial Number
allocated to the Aircraft Manufacturer's Serial Number within
forty-five (45) days after execution of this Agreement. The
allocation of Fleet Serial Numbers to Manufacturer's Serial Numbers
shall not constitute any property, insurable or other interest of
the Buyer whatsoever in any Aircraft prior to the Delivery of such
Aircraft as provided for in this Agreement.
The affected customized Technical Data and Documentation are:
- Aircraft Maintenance Manual,
- Illustrated Parts Catalog,
- Trouble Shooting Manual,
- Aircraft Wiring Manual,
- Aircraft Schematics Manual,
- Aircraft Wiring Lists.
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14.4 Supplier Equipment
14.4.1 Information relating to Supplier equipment which is installed on the
Aircraft by the Seller shall be introduced into the Seller's
Technical Data and Documentation to the extent necessary for the
comprehension of the systems concerned, at no additional charge to
the Buyer for the Technical Data and Documentation basic issue.
14.4.2 The Buyer shall supply the data related to Buyer Furnished Equipment
to the Seller at least six (6) months before the scheduled delivery
of the Seller's customized Technical Data and Documentation. The
Buyer Furnished Equipment data supplied by the Buyer to the Seller
shall be in English language.
14.4.3 The Seller shall introduce Buyer Furnished Equipment data into the
Seller's Technical Data and Documentation at no additional charge to
the Buyer for the Technical Data and Documentation basic issue. The
transportation costs related to Buyer Furnished Equipment data
shipment shall be the Buyer's responsibility.
14.5 Delivery
14.5.1 The Technical Data and Documentation and corresponding revisions to
be supplied by the Seller shall be sent to the Buyer or its
Operators, as advised by the Buyer.
14.5.2 Packing and shipment of the Technical Data and Documentation and
their revisions shall be carried out in consideration of the
quickest transportation methods. The shipment shall be Free Carrier
(FCA) TOULOUSE, FRANCE and/or Free Carrier (FCA) HAMBURG, FEDERAL
REPUBLIC OF GERMANY, as the term Free Carrier (FCA) is defined by
publication No 460 of the International Chamber of Commerce,
published in April 1990.
14.5.3 The delivery schedule of the Technical Data and Documentation shall
be phased as mutually agreed to correspond with Aircraft deliveries.
The Buyer agrees to provide forty (40) days notice when requesting a
change to the delivery schedule.
14.5.4 It shall be the responsibility of the Buyer to coordinate and
satisfy local Aviation Authorities' needs for Seller's Technical
Data and Documentation.
14.6 Revision Service
Unless otherwise specifically stated, revision service shall be
provided [DELETED] covered under this Agreement. Mandatory Changes,
[DELETED] Service Bulletins and Service Bulletins created as a
result of an Airworthiness Directive (AD) will be incorporated
[DELETED] for the Operational Manuals as shown in section 1 of
Exhibit H-1 and H-2 [DELETED].
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14.7 Service Bulletins (SB) Incorporation
During the period of revision service and upon the Buyer's request
for incorporation, which shall be made within two years after
issuance of a Service Bulletin, Seller's Service Bulletin
information shall be incorporated into the Technical Data and
Documentation for the Buyer's Aircraft after formal notification by
the Buyer of its intention to accomplish a Service Bulletin. The
split effectivity for the corresponding Service Bulletin shall
remain in the Technical Data and Documentation until notification
from the Buyer that embodiment has been completed on all the Buyer's
Aircraft. The above is applicable for Technical Data and
Documentation relating to maintenance. For the operational Data and
Documentation only the pre or post Service Bulletin status will be
shown.
14.8 Performance Engineer's Programs
In addition to the standard operational manuals, the Seller shall
provide to the Buyer Performance Engineer's Programs (PEP) under
license conditions as defined in Appendix A to this Clause.
Such PEP shall include for each aicraft type ordered under the
Agreement [DELETED]
14.9 CD-ROM - CAATS / ADRES
Certain Technical Data and Documentation are provided on CD-ROM
under license conditions as defined in Appendix B to this Clause.
The affected Technical Data and Documentation are the following:
- Trouble Shooting Manual,
- Aircraft Maintenance Manual,
- Illustrated Parts Catalog.
- [DELETED]
- [DELETED]
This list may be extended from time to time and relating license
conditions specified by the Seller.
14.10 Future Developments
The Seller shall continuously monitor technological developments and
apply them to data and document production and methods of
transmission where beneficial and economical for both parties. The
Buyer accepts to consider any new development proposed by the Seller
for possible implementation.
14.11 Technical Data and Documentation Familiarization
Upon request by the Buyer, the Seller is ready to provide a one (1)
week Technical Data and Documentation familiarization training at
the Seller's or at the Buyer's facilities. If such familiarization
is conducted at the Buyer's facilities, the Buyer shall reimburse
the Seller for all air travel (business class) and living expenses
of the Seller's personnel conducting such familiarization.
14.12 Customer Originated Changes (COC)
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14.12.1 Buyer or Operator originated data documented in the Buyer's or
Operator's own airline engineering bulletin (or in the Buyer's or
Operator's approved repair/maintenance provider) may be introduced
as COC into the following Seller customized Technical Data and
Documentation:
- Aircraft Maintenance Manual,
- Illustrated Parts Catalog,
- Trouble Shooting Manual,
- Aircraft Wiring Manual,
- Aircraft Schematics Manual
- Aircraft Wiring Lists
14.12.2 COC data shall be established by the Buyer according to the Customer
Guide for Customer Originated Changes, as issued by the Seller. The
Buyer shall ensure that any such data have received prior agreement
from its local Aviation Authorities.
COC data shall be incorporated by the Seller into all affected
customized Technical Data and Documentation unless the Buyer
specifies in writing the documents of its choice into which the COC
data shall be incorporated. The customized Technical Data and
Documentation into which the COC data are incorporated shall only
show the Aircraft configuration reflecting the COC data and not the
configuration before such COC data's incorporation.
14.12.3 The Buyer hereby acknowledges and accepts that the incorporation of
any COC into the Technical Data and Documentation issued by the
Seller shall be entirely at the Buyer's risk.
Further, the Buyer acknowledges full liability for the effects,
including all related costs, which any COC may have on any
subsequent Service Bulletins and/or modifications
14.12.3.1 The Seller shall not be required to check any COC data submitted for
incorporation. Accordingly, the Seller shall be under no liability
whatsoever in respect of either the contents of any COC, including
any omissions or inaccuracies therein, or the effect, which the
incorporation of such COC may have on the Seller's Technical Data
and Documentation.
14.12.3.2 In the event of the Seller being required under any court order or
settlement to indemnify any third party for injury, loss or damage
incurred directly or indirectly as a result of incorporation of any
COC into the Technical Data and Documentation issued by the Seller,
the Buyer agrees to reimburse the Seller for all payments or
settlements made in respect of such injury, loss or damage including
any expenses incurred by the Seller in defending such claims.
14.12.4 The incorporation of any COC as aforesaid shall be performed under
the conditions specified in the Seller's then current Customer
Services Catalog.
14.13 Warranties
The Seller warrants that the Technical Data and Documentation are
prepared in accordance with the state of art at the date of their
conception. Should any Technical Data and Documentation prepared by
the Seller contain non-conformities or defects, the sole and
exclusive liability of the Seller shall be to take all reasonable
and proper steps to, at its option, correct or replace such
Technical Data and Documentation. Notwithstanding the above, no
warranties of any kind are given for the Customer
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Originated Changes, as set forth in Clause 14.12.
14.14 Proprietary Rights
14.14.1 All proprietary rights, including but not limited to patent, design
and copyrights, relating to Technical Data and Documentation shall
remain with the Seller.
These proprietary rights shall also apply to any translation into a
language or languages or media that may have been performed or
caused to be performed by the Buyer.
14.14.2 Whenever this Agreement provides for manufacturing by the Buyer, the
consent given by the Seller shall not be construed as express or
implicit approval howsoever neither of the Buyer nor of the
manufactured products. The supply of the Technical Data and
Documentation shall not be construed as any further right for the
Buyer to design or manufacture any Aircraft or part thereof or spare
part.
14.15 Confidentiality
14.15.1 The Technical Data and Documentation and their content are
designated as confidential. All such Technical Data and
Documentation are supplied to the Buyer for the sole use of the
Buyer who undertakes not to disclose the contents thereof to any
third party without the prior written consent of the Seller save as
permitted therein or otherwise pursuant to any government or legal
requirement imposed upon the Buyer.
14.15.2 In the case of the Seller having authorized the disclosure to third
parties either under this Agreement or by an express prior written
authorization, the Buyer shall undertake that such third party agree
to be bound by the same conditions and restrictions as the Buyer
with respect to the disclosed Technical Data and Documentation.
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APPENDIX A TO CLAUSE 14
LICENSE FOR USE OF THE PERFORMANCE ENGINEER'S PROGRAMS (PEP)
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LICENSE FOR USE OF THE PERFORMANCE ENGINEER'S PROGRAMS (PEP)
1 Grant
The Seller grants the Buyer the right to use the PEP during the term
of this license ("PEP License") on a single computer.
2 Copies
2.1 Use of the PEP shall be limited to one (1) copy other than the
copies contained in the single computer and copies produced for
checkpoint and restart purposes or additional copies made with the
consent of the Seller for a specific need.
2.2 The Buyer agrees to reproduce the copyright and other notices as
they appear on or within the original media on any copies that the
Buyer makes of the PEP.
3 Term
The rights under the PEP License shall be granted to the Buyer as
long as the Buyer operates a Seller's Aircraft model to which the
PEP is applicable. When the Buyer stops operating said Aircraft
model, the Buyer shall return the PEP and any copies thereof to the
Seller, accompanied by a notice certifying that the Buyer has
returned all existing copies.
4 Merging
The PEP may be used and adapted in machine readable form for the
purpose of merging it into other program material of the Buyer but
on termination of this PEP License, the PEP shall be removed from
the other program material with which it has been merged.
The Buyer agrees to reproduce the copyright and other notices as
they appear on or within the original media in any program that the
PEP is merged into.
5 Personal License
The above described PEP License is personal to the Buyer,
non-transferable and non-exclusive.
6 Installation
It is the Buyer's responsibility to install the PEP and to perform
any mergings and checks.
7 Training
In addition to the performance programs user guide supplied with the
PEP, training and other assistance may be provided upon the Buyer's
request at conditions to be mutually agreed.
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8 Proprietary Rights
The PEP and the copyright and other proprietary rights of whatever
nature in the PEP are and shall remain with the Seller. The PEP and
its contents are designated as confidential.
9 Copyright Indemnity
The Seller shall defend and indemnify the Buyer against any claim
that the normal use of PEP infringes the intellectual property
rights of any third party, provided that the Buyer:
9.1 immediately notifies the Seller of any such claim;
9.2 makes no admission or settlement of any claim;
9.3 allows the Seller to have sole control of all negotiations for its
settlement;
9.4 gives the Seller all reasonable assistance in connection therewith.
10 Confidentiality
The Buyer undertakes not to disclose the PEP or parts thereof and
its contents to any third party without the prior written consent of
the Seller. In so far as it is necessary to disclose aspects of the
PEP to employees, such disclosure is permitted only for the purpose
for which the PEP is supplied and only to the employee who needs to
know the same.
11 Conditions of Use
The Buyer shall ensure that the PEP is correctly used in appropriate
machines as described in the PEP delivery documentation and that
staff are properly trained to use the same in accordance with the
user guide.
12 Warranty
12.1 The Seller warrants that the PEP is prepared in accordance with the
state of art at the date of conception. Should the PEP be found to
contain any non-conformity or defect, the Buyer shall notify the
Seller promptly thereof and the sole and exclusive liability of the
Seller under this PEP License shall be to correct the same at its
own expense.
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12.2 THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
REMEDIES OF THE BUYER SET FORTH IN THIS PEP LICENSE ARE EXCLUSIVE AND
IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND
RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE
SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE
SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT
TO ANY NON-CONFORMITY OR DEFECT IN THE PEP 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 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.
SELLER SHALL 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 THE PEP DELIVERED UNDER THIS AGREEMENT.APPENDIX B TO
CLAUSE 14
APPENDIX B TO CLAUSE 14
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LICENSE FOR USE OF CD-ROM - CAATS / ADRES
1 Grant
1.1 The Seller grants the Buyer the right to use the Aircraft
Documentation Retrieval System (ADRES) and/or the Computer Assisted
Aircraft Trouble Shooting (CAATS) on CD-ROM for the term of this
license ("CAATS/ADRES License").
1.2 The above grant shall be free of charge for as long as the revisions
of CAATS and ADRES are free of charge in accordance with Clause 14.
At the end of such period(s) license fees shall be charged to the
Buyer at the price stated in the then current Seller's Customer
Services Catalog.
2 Copies
Use of ADRES and/or CAATS shall be limited to the number of copies
defined between the parties.
3 Term
3.1 The rights under the CAATS/ADRES License shall be granted from the
date of first delivery of ADRES and/or CAATS as long as the Buyer
operates the Aircraft or until a replacement product shall be
provided by the Seller, whichever occurs first. Within thirty (30)
days of termination of the CAATS/ADRES License, the Buyer shall
return ADRES and/or CAATS and all copies thereof to the Seller.
3.2 For clarification purposes it is hereby expressly stated that ADRES
and/or CAATS shall be offered for a limited time period, not
exceeding the term of this CAATS/ADRES License. In the event that
the Seller should offer a replacement product, the conditions for
using such product shall be subject to a separate agreement.
4 Revision Service
The Seller shall provide revision service for ADRES and/or CAATS
during the term. The revision service shall be based on the revision
service which the Seller provides for the applicable documentation
in paper or film format. Temporary revisions shall be provided in
digital format under the form of 3.5-inch floppy disk. The retrieval
software for such temporary revisions shall be embodied on the CAATS
and ADRES CD-ROM.
5 Personal License
The CAATS/ADRES License is personal to the Buyer, non-transferable
and non-exclusive. The Buyer shall not permit any third party to use
ADRES and/or CAATS without prior written consent from the Seller.
6 Installation
The Seller shall provide the hardware recommendation on which CAATS
and ADRES have been tested by the Seller. The Buyer shall be
responsible for procuring such hardware or equivalent for installing
ADRES and/or CAATS.
7 Training
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In addition to the user guide supplied with ADRES and/or CAATS,
training and other assistance may be provided upon the Buyer's
request at conditions to be mutually agreed.
8 Proprietary Rights
ADRES and/or CAATS are proprietary to the Seller and the copyright
and all other proprietary rights in ADRES and/or CAATS are and shall
remain the property of the Seller.
9 Copyright Indemnity
The Seller shall defend and indemnify the Buyer against any claim
that the normal use of ADRES and/or CAATS infringes the intellectual
property rights of any third party, provided that the Buyer:
9.1 immediately notifies the Seller of any such claim;
9.2 makes no admission or settlement of any claim;
9.3 allows the Seller to have sole control of all negotiations for its
settlement;
9.4 gives the Seller all reasonable assistance in connection therewith.
10 Confidentiality
ADRES and/or CAATS and their contents are designated as
confidential. The Buyer undertakes not to disclose ADRES and/or
CAATS or parts thereof to any third party without the prior written
consent of the Seller. In so far as it is necessary to disclose
aspects of ADRES and/or CAATS to the employees, such disclosure is
permitted solely for the purpose for which ADRES and/or CAATS are
supplied and only to those employees who need to know the same.
11 Warranty
11.1 The Seller warrants that the ADRES and CAATS are prepared in
accordance with the state of art at the date of conception. Should
the ADRES and/or CAATS be found to contain any non-conformity or
defect, the Buyer shall notify the Seller promptly thereof and the
sole and exclusive liability of the Seller under this CAATS/ADRES
License shall be to correct the same in the next revision if
practicable, at the Seller's expense.
11.2 Waiver, Release and Renunciation
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
REMEDIES OF THE BUYER SET FORTH IN THIS CAATS/ADRES LICENSE ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES,
RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND
LIABILITIES OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE
BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ADRES
AND/OR CAATS DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT
LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS
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(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 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.
SELLER SHALL 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 ADRES AND/OR CAATS DELIVERED UNDER THIS AGREEMENT.
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15 - SELLER REPRESENTATIVES
15.1 Seller's Service
The Seller shall provide [DELETED] the following services:
15.1.1 The Seller shall provide Technical Representatives acting in an
advisory capacity at locations to be mutually agreed for periods to
be agreed commencing at or about Delivery of an Aircraft to be
delivered to the Operator of the Aircraft. The actual number of
Customer Support Representatives allocated to such Operator shall be
mutually agreed.
The Buyer shall give reasonable notice and shall consult in advance
with the Seller in respect of its requirements for such Customer
Support Representatives and the locations to which the same are
required to be assigned.
The services of such Customer Support Representatives (i) will be
provided for up to a maximum of [DELETED] per Aircraft (ii) will be
available on a non-exclusive basis, subject always to such Customer
Services Representatives being able to reasonably satisfy the
requirements of the Operator.
The Seller shall not be obligated to assign more than two (2)
Customer Support Representatives to any Operator simultaneously.
15.1.2 The Seller has set up a global Technical Services network available
for the non-exclusive use by each Airbus aircraft operators
("Operator"). Each Operator will have free access to this global
network at any time in the course of the Aircraft operation, and in
particular to the regional Customer Support Representatives closest
to each Operator's main base after the end of the mission of the
Technical Representatives referred to in sub-Clause 15.1.1 above, or
to cover for their temporary absence in the course of their mission.
A list of the contacts for the global Technical Services network
including the regional Technical Representatives will be provided to
the Buyer.
15.1.3 The Seller shall arrange to procure similar services to be given by
competent Representatives of the Engine Manufacturer and by Supplier
Representatives when necessary and applicable.
15.1.4 The Seller will provide one (1) Customer Support Manager based in
Toulouse, to liaise between the Seller and the Buyer on product
support matters after execution of this Agreement for as long as any
of the Aircraft is operated. The Seller shall also arrange for each
of the Buyer's Operators to be provided with similar services.
15.2 Buyer's Service
15.2.1 From the date of arrival of the first of the Seller's
Representative(s) specified in sub-Clause 15.1.1, the Buyer or its
Operator shall provide or shall cause to be provided without charge
secretarial assistance, suitable space, office equipment and
facilities in or conveniently near the Operator's maintenance
facilities. The Buyer or its Operator shall provide or shall cause
to be provided telecommunications facilities at the Seller's cost to
be invoiced on a monthly basis.
15.2.2 In accordance with the Operator's regulations, the Operator shall
provide or shall cause to be provided at no charge to the Seller:
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(i) airline tickets in business class (where available) confirmed
and guaranteed between the locations mentioned above in
sub-Clause 15.1 and the international airport nearest
Toulouse, France, that is on the Operator's network for the
Customer Support Representatives mentioned in sub-Clause
15.1.1. When the use of the Operator's route network is not
feasible or practical, the Operator shall reimburse the Seller
for business class travel (where available) on other airlines;
and
(ii) when said Customer Support Representatives are assigned away
from the locations mentioned above in sub-Clause 15.1 at the
Operator's request, transportation between the said locations
and the place of assignment.
15.2.3 The Buyer, or its Operator as the case may be, will give the Seller
all necessary reasonable assistance with general administrative
functions specific to the Buyer's or Operator's country and
procurement of the documents necessary to live and work there.
Failure of the Seller, acting diligently, to obtain the necessary
documents will relieve the Seller of any obligation to the Buyer or
the Operator under this Clause 15. The Buyer or its Operator shall
reimburse to the Seller charges, taxes, duties, imposts or levies of
any kind whatsoever, imposed by Authorities of the Buyer's country
upon:
- the entry into or exit from the Buyer's or Operator's country of
the Seller's personnel and their families;
- the living and working of Seller's personnel and their families in
the Buyer's or Operator's country;
- the entry into or the exit from the Buyer's or Operator's country
of the Seller's Representatives and their families property;
- the entry into or the exit from the Buyer's or Operator's country
of the Seller's property.
15.2.4 Withdrawal of Seller's Representatives
The Seller shall have the right to withdraw its assigned personnel
as it sees fit if conditions arise which are in the Seller's opinion
dangerous to their safety or health or prevent them from fulfilling
their contractual tasks.
15.3 Representatives' Status
In providing the above technical service, the Seller's employees,
including Customer Support Representatives and the Customer Support
Director, are deemed to be acting in an advisory capacity only and
at no time will they be deemed to be acting, either directly or
indirectly, as the Buyer's, or the Operator's employees or agents.
15.4 Temporary Assignment of Customer Support Representative
The Buyer agrees that the Seller will have the right to transfer or
recall any Customer Support Representative on a temporary or
permanent basis. The Buyer will receive credit for the man-days
during which any Customer Support Representative is absent from the
Buyer's, or Operator's facility pursuant to this sub-Clause 15.4, it
being expressly understood by Seller that recall of a Representative
shall not relieve Seller of its obligation to provide such
representation for the period of time indicated under this
Agreement. In the event the initial time period of Seller's
obligation to provide a Representative is not fulfilled by Seller,
then Seller shall assign a replacement
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Representative as soon as possible.
15.5 INDEMNITY AND INSURANCE
THE BUYER SHALL, OR SHALL CAUSE EACH OPERATOR OR PROPOSED OPERATOR
OF AN AIRCRAFT TO WHOM THE SELLER PROVIDES SERVICES UNDER THIS
CLAUSE 15 TO, INDEMNIFY AND HOLD HARMLESS THE SELLER, THE
MANUFACTURER, AND EACH OF THE ASSOCIATED CONTRACTORS AND THEIR
RESPECTIVE SUBCONTRACTORS AND THEIR RESPECTIVE OFFICERS, AGENTS AND
EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS
AND EXPENSES (EXCEPTING INJURIES TO AND DEATH OF THE SELLER'S
REPRESENTATIVES PROVIDING THE SERVICES UNDER THIS CLAUSE 15), AND
FOR LOSS OF OR DAMAGE TO PROPERTY (EXCEPTING LOSS OF OR DAMAGE TO
PROPERTY OF THE SELLER'S SAID REPRESENTATIVES), HOWSOEVER ARISING,
OUT OF OR IN CONNECTION WITH THE SERVICES UNDER THIS CLAUSE 15,
EXCEPT FOR ANY SUCH LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES
ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT, NEGLIGENCE OR
GROSS NEGLIGENCE OF THE SELLER'S SAID REPRESENTATIVES.
THE SELLER SHALL INDEMNIFY AND HOLD HARMLESS THE BUYER AND EACH SUCH
OPERATOR AND THEIR RESPECTIVE OFFICERS, AGENTS AND EMPLOYEES FROM
AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES (I)
FOR INJURIES TO OR DEATH OF THE SELLER'S SAID REPRESENTATIVES DURING
THE SERVICES UNDER THIS CLAUSE 15, (II) FOR LOSS OF OR DAMAGE TO
PROPERTY OF THE SELLER'S SAID REPRESENTATIVES, OR (III) ARISING OUT
OF OR CAUSE BY THE WILLFUL, MISCONDUCT, NEGLIGENCE OR GROSS
NEGLIGENCE OF THE SELLER'S SAID REPRESENTATIVES.
IN THE EVENT ANY CLAIM IS MADE OR SUIT IS BROUGHT AGAINST EITHER
PARTY (OR ITS RESPECTIVE OFFICERS, AGENTS OR EMPLOYEES) FOR DAMAGES
FOR DEATH OR INJURY, THE LIABILITY FOR WHICH HAS BEEN ASSUMED BY THE
OTHER PURSUANT TO THIS SUB-CLAUSE 15.5, THE FORMER PARTY SHALL
PROMPTLY GIVE NOTICE TO THE OTHER PARTY, AND THE LATTER SHALL HAVE
THE RIGHT TO ASSUME AND CONDUCT THE DEFENSE THEREOF, OR TO EFFECT
ANY SETTLEMENT WHICH IT, IN ITS OPINION, DEEMS PROPER.
For purposes of this sub-Clause 15.5, Seller's Representatives shall
be deemed to include the Representatives referred to in sub-Clauses
15.1.1, 15.2, 15.3 and 15.4 above.
16 TRAINING AND TRAINING AIDS
16.1 General
This Clause covers the terms and conditions for the supply of
training and training aids for the Buyer's personnel or the
personnel of its Operator to support the Aircraft operation.
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16.2 Scope
16.2.1 The range and quantities of training and training aids to be
provided free of charge under this Agreement are covered in Appendix
A to this Clause 16.
16.2.2 The contractual training courses shall be provided up to one (1)
year after delivery of the last Aircraft ordered under this
Agreement.
16.2.3 In the event that the Buyer should use none or only part of the
training or training aids to be provided pursuant to this Clause, no
compensation or credit of any sort shall be provided.
16.3 Training Organization / Location
16.3.1 The Seller shall provide the training at its training center in
BLAGNAC, FRANCE, or one of its affiliated training centers.
16.3.2 In the event of the non-availability of facilities or scheduling
imperatives making training by the Seller impractical, the Seller
shall make arrangements for the provision to the Buyer of such
training support elsewhere.
16.3.3 Upon the Buyer's request the Seller may also provide certain
training at one of the Operator's bases or other location, if and
when practicable for the Seller, under terms and conditions to be
mutually agreed upon. In this event, all additional charges listed
in sub-Clause 16.6.2 shall be borne by the Buyer.
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 or the Operator's
personnel are defined in the applicable brochure describing the
various Seller's training courses ("the Seller's Training Course
Catalog") and will be scheduled as mutually agreed upon during a
training conference ("the Training Conference") to be held at least
twelve (12) months prior to delivery of the first Aircraft to be
delivered to each of the Buyer's Operators.
16.4.2 When training is performed by the Seller:
(i) Training courses shall be the Seller's standard courses as
described in the Seller's then current Training Course
Catalog. The Seller shall 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, academic curricula may be modified
to include the most significant of the Buyer's Aircraft
Specification (to the exclusion of Buyer Furnished Equipment)
as known at the latest six (6) months prior to the date of the
first training course planned for the Buyer. The equipment
used for training of flight and maintenance personnel shall
not be fully customized; however, this equipment shall be
configured in order to obtain the relevant Aviation
Authority's approval and to support the Seller's teaching
programs. Training data and documentation shall not be
revised;
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(iii) Training data and documentation for trainees receiving the
contractual training at the Seller's training centers shall be
free-of-charge. Training data and documentation shall be
marked "FOR TRAINING ONLY" and as such are supplied for the
sole and express purpose of training;
16.4.3 In the event of the Buyer deciding to cancel or re-schedule a
training course, a minimum advance notice of sixty (60) calendar
days shall be required. Any later cancellation or change, when
courses cannot be allocated to other customers, shall be deducted
from the training allowances defined herein or be charged to the
Buyer, as applicable.
16.4.4 In fulfillment of its obligation to provide training courses, when
the Seller performs the training courses, the Seller shall deliver
to the trainees a certificate of completion at the end of any such
training course. The Seller's certificate does not represent
authority or qualification by any official Aviation Authorities but
may be presented to such officials in order to obtain relevant
formal qualification.
In the event of the training being provided by a training provider
selected by the Seller, the Seller shall cause such training
provider to deliver to the trainees a certificate of completion at
the end of any such training course. Such certificate shall not
represent authority or qualification by any official Aviation
Authorities but may be presented to such officials in order to
obtain relevant formal qualification
16.5 Prerequisites
16.5.1 Training will be conducted in English and all training aids and
materials are written in English using common aeronautical
terminology. Trainees must have the prerequisite jet transport
category experience as defined in Appendix "B" to this Clause 16.
It is clearly understood that the Seller's training courses are
"Transition Training Courses" (i.e transition training for crews
having the required jet aircraft experience) and not "Ab Initio
Training Courses" (i.e training for crews lacking such minimum
experience).
Furthermore, the Buyer shall 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 Buyer or its Operator shall 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
check the trainees' proficiency and previous professional
experience. The Seller shall in no case warrant or otherwise be held
liable for any trainee's performance as a result of any training
services thus provided.
16.5.3 Upon the Buyer's request, the Seller may be consulted to direct the
above mentioned trainee(s) through a relevant entry level training
program, which shall be at the Buyer's charge, and, if necessary, to
coordinate with competent outside organizations for this purpose.
Such consultation shall be held during the Training Conference.
In the event the Seller should determine that a trainee lacks the
required entry level knowledge, such trainee shall, following
consultation with the Buyer, be withdrawn from the program and shall
then be considered to be at the Buyer's disposal.
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16.6 Logistics
16.6.1 Trainees
16.6.1.1 The Seller shall provide free local transportation by bus for the
Buyer's trainees to and from designated pick up points and the
Seller's or the Seller's affiliated training center.
16.6.1.2 Living expenses for the Buyer's trainees are to be borne by the
Buyer or its l Operator.
16.6.2 Seller's Instructors - Training at External Location
In the event that, training is provided by the Seller's instructors
at any location other than the Seller's training centers, the Buyer
or its Operator shall reimburse the Seller for all the expenses
related to the assignment of such instructors and their performance
of the duties as aforesaid.
16.6.2.1 Living Expenses
Such expenses, covering the entire period from day of secondment to
day of return to the Seller's base, shall include but shall not be
limited to lodging, food and local transportation to and from the
place of lodging and the training course location. The Buyer or its
Operator shall 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 which will be defined at the
Training Conference.
16.6.2.2 Air Travel
The Buyer or its Operator shall reimburse the Seller the costs for
the Seller's instructors in confirmed business class (where
available) on the Operator's network to and from the Buyer's
designated training site and the Seller's training center. When the
use of the Operator's route network is not feasible or practical,
the Operator shall reimburse the Seller for business class travel
(where available) on other airlines.
16.6.2.3 Instructor's Material
The Buyer or its Operator shall reimburse the Seller the cost of
shipment for the instructor's material needed to conduct such
courses.
16.6.2.4 Transportation Services
The Buyer or its Il Operator shall be solely liable for any and all
delay in the performance of the training outside of the Seller's
training centers associated with the transportation services
described above.
16.6.3 Training Equipment Availability - Training at External Location
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 shall be provided by
the Buyer or its Operator in accordance with the Seller's
specifications.
16.7 Flight Operations Training
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16.7.1 Flight Crew Training Course
16.7.1.1 (I) The Seller shall train in a full flight crew training course
program (regular transition program or a cross crew qualification
program as applicable) [DELETED] of the Operator's flight crews
[DELETED], each of which shall consist of one captain (1) and one
(1) first officer. The training manual used shall be the Seller's
Flight Crew Operating Manual.
16.7.1.2 Whenever base flight training is required, the Buyer shall use its
delivered Aircraft for said base flight training, which shall not
exceed one (1) session of one and a half (1.5) hours per pilot. When
such base flight crew training is performed in BLAGNAC, FRANCE, the
Seller shall provide free-of-charge line maintenance, including
servicing, preflight checks and changing of minor components.
16.7.1.3 The Buyer shall provide mutually agreed spare parts as required to
support said Aircraft in-flight training and shall provide insurance
in line with Clause 16.12.
16.7.1.4 In all cases, the Buyer shall bear all expenses such as fuel, oil
and landing fees.
16.7.2 Cabin Attendants' Familiarization Course
The Seller shall provide cabin attendants' course for up to
[DELETED] of the Operator's cabin attendants [DELETED].
The cabin attendants' course, when incorporating the features of the
Buyer's Aircraft, can be given at the earliest two (2) weeks before
the delivery date of the Buyer's Aircraft.
16.8 Maintenance Training
The available courses are listed in Appendix "B" to this Clause 16.
The Seller shall train free-of-charge the Operator's ground
personnel for a training period equivalent to [DELETED] trainee days
of instruction [DELETED]. However, the number of M07 (Engine Run-up)
courses shall be limited to one (1) for three (3) trainees per
Aircraft type and per Operator.
Courses shall only be scheduled for a given minimum number of
participants as agreed to at the Training Conference.
16.8.1 On-the-Job Training
Upon the Buyer's request, the Seller may be consulted to identify
competent outside organizations to provide on-the-job training,
which shall be at the Buyer's or the Operator's charge.
16.9 Supplier and Engine Manufacturer Training
The Seller shall ensure that major Suppliers and the applicable
Propulsion System Manufacturer provide maintenance training and
overhaul training on their products at appropriate times.
A list of the Suppliers concerned may be supplied to the Buyer upon
request.
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16.10 Training Aids and Materials for the Buyer's Training Organization
Training documentation (including all printed course materials,
manuals and supporting documents as such are listed in the Seller's
catalogue of training courses) for trainees receiving the
instruction referred to above in Subclause 16.3 at the Seller's
training centers [DELETED].
Training aids shall be "FOR TRAINING ONLY" and as such are supplied
for the sole and express purpose of training.
The Seller shall provide to the Buyer [DELETED] related to the
Aircraft type as covered by this Agreement, including the relating
utilization rights. The courseware shall be similar to the Seller
[DELETED] as used by the Seller in its official training centers.
If requested, the Seller shall provide training to the Buyer for the
use of the courseware. Such training may be performed subject to the
conditions of sub-Clause 16.2.2.
The items delivered to the Buyer under the terms of this sub-Clause
16.10 shall be for the training of the Buyer's personnel only.
Supply of sets of [DELETED], as well as any extension to the right
of utilization of such [DELETED], shall be subject to terms and
conditions to be mutually agreed.
[DELETED] supply general conditions shall apply and shall be
detailed during the Training Conference.
The Buyer shall agree not to disclose the content of the courseware
or any information or documentation provided by the Seller in
relation to training in whole or in part, to any third party without
prior written consent of the Seller provided that it shall be a
condition for such release to the Buyer's Operators and [DELETED].
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16.11 INDEMNIFICATION AND INSURANCE
16.11.1 INDEMNITIES RELATING TO GROUND TRAINING
EXCEPT IN CASE OF GROSS NEGLIGENCE OF THE SELLER, ITS DIRECTORS,
OFFICERS, AGENTS OR EMPLOYEES, THE BUYER SHALL BE OR SHALL CAUSE
EACH OPERATOR OR PROPOSED OPERATOR OF AN AIRCRAFT TO WHOM THE SELLER
PROVIDES SERVICES UNDER THIS CLAUSE 16 TO BE SOLELY LIABLE FOR AND
SHALL INDEMNIFY AND HOLD HARMLESS THE SELLER, ITS SUBSIDIARIES AND
THEIR RESPECTIVE INSURERS FROM AND AGAINST ALL LIABILITIES, CLAIMS,
DAMAGES, COSTS AND EXPENSES (INCLUDING LEGAL EXPENSES AND ATTORNEY
FEES) IN RESPECT OF LOSS OF OR DAMAGE TO THE BUYER'S OR OPERATOR'S
PROPERTY AND/OR INJURY TO OR DEATH OF THE DIRECTORS, OFFICERS,
AGENTS OR EMPLOYEES OF THE BUYER AND OF SUCH OPERATOR AND/OR FROM
AND AGAINST ALL LIABILITIES, CLAIMS, DAMAGES, COSTS AND EXPENSES
(INCLUDING LEGAL EXPENSES AND ATTORNEY FEES) FOR ANY DAMAGES CAUSED
BY THE BUYER AND SUCH OPERAOR TO THIRD PARTIES, CAUSED BY OR IN ANY
WAY CONNECTED WITH GROUND TRAINING SERVICES.
THE SELLER SHALL, EXCEPT IN CASE OF GROSS NEGLIGENCE OF THE BUYER
AND EACH SUCH OPERATOR, AND THEIR RESPECTIVE DIRECTORS, OFFICERS,
AGENTS OR EMPLOYEES, BE SOLELY LIABLE FOR AND SHALL INDEMNIFY AND
HOLD HARMLESS THE BUYER AND SUCH OPERATOR, THEIR RESPECTIVE
DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL
LIABILITIES, CLAIMS, DAMAGES, COSTS AND EXPENSES (INCLUDING LEGAL
EXPENSES AND ATTORNEY FEES) IN RESPECT OF LOSS OF OR DAMAGE TO THE
SELLER'S PROPERTY AND/OR INJURY TO OR DEATH OF THE DIRECTORS,
OFFICERS, AGENTS OR EMPLOYEES OF THE SELLER AND/OR FROM AND AGAINST
ALL LIABILITIES, CLAIMS, DAMAGES, COSTS AND EXPENSES (INCLUDING
LEGAL EXPENSES AND ATTORNEY FEES) FOR ANY DAMAGES CAUSED BY THE
SELLER TO THIRD PARTIES, CAUSED BY OR IN ANY WAY CONNECTED WITH ANY
GROUND TRAINING SERVICES.
16.11.2 INDEMNITIES RELATING TO TRAINING ON AIRCRAFT
THE BUYER SHALL, OR SHALL CAUSE EACH OPERATOR OR PROPOSED OPERATOR
OF AN AIRCRAFT OF WHOM THE SELLER PROVIDES SERVICES UNDER THIS
CLAUSE 16, EXCEPT IN THE CASE OF GROSS NEGLIGENCE OF THE SELLER, ITS
DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES, BE SOLELY LIABLE FOR AND
SHALL INDEMNIFY AND HOLD HARMLESS THE SELLER, ITS SUBSIDIARIES AND
THEIR RESPECTIVE INSURERS FROM AND AGAINST ALL LIABILITIES, CLAIMS,
DAMAGES, COSTS AND EXPENSES (INCLUDING LEGAL EXPENSES AND ATTORNEY
FEES) INCIDENT THERETO OR INCIDENT TO SUCCESSFULLY ESTABLISHING THE
RIGHT TO INDEMNIFICATION, FOR INJURY TO OR DEATH OF ANY PERSON
(INCLUDING ANY OF THE BUYER'S OR OPERATOR'S DIRECTORS, OFFICERS,
AGENTS AND EMPLOYEES UTILISING SUCH TRAINING SERVICES, BUT NOT
DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES OF THE SELLER) AND/OR FOR
LOSS OF OR DAMAGE TO ANY PROPERTY AND/OR FOR LOSS OF USE THEREOF
ARISING (INCLUDING THE AIRCRAFT ON WHICH THE TRAINING SERVICES ARE
PERFORMED), CAUSED BY OR IN ANY WAY CONNECTED TO THE PERFORMANCE OF
ANY AIRCRAFT TRAINING SERVICES.
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THE FOREGOING INDEMNITY SHALL NOT APPLY TO LEGAL LIABILITY TO ANY
PERSON OTHER THAN THE BUYER AND ITS OPERATOR, THEIR DIRECTORS,
OFFICERS, AGENTS OR EMPLOYEES ARISING OUT OF AN ACCIDENT TO THE
EXTENT CAUSED BY A PRODUCT DEFECT IN THE AIRCRAFT DELIVERED TO AND
ACCEPTED BY THE BUYER HEREUNDER.
IF ANY CLAIM IS MADE OR SUIT IS BROUGHT AGAINST EITHER PARTY (OR ITS
RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES) FOR DAMAGES FOR
WHICH LIABILITY HAS BEEN ASSUMED BY THE OTHER PARTY IN ACCORDANCE
WITH THE PROVISIONS OF THIS CLAUSE 16, THE PARTY AGAINST WHICH A
CLAIM IS SO MADE OR SUIT IS SO BROUGHT SHALL PROMPTLY GIVE NOTICE TO
THE OTHER PARTY, AND THE LATTER SHALL (UNLESS OTHERWISE REQUESTED BY
THE FORMER PARTY AGAINST WHICH A CLAIM IS SO MADE OR SUIT IS SO
BROUGHT, IN WHICH CASE THE OTHER PARTY NEVERTHELESS SHALL HAVE THE
RIGHT TO) ASSUME AND CONDUCT THE DEFENCE THEREOF, OR EFFECT ANY
SETTLEMENT WHICH IT, IN ITS OPINION, DEEMS PROPER.
16.11.3 Insurances
16.11.3.1 The Buyer shall maintain, or shall cause its Operators to maintain
adequate insurance with respect to the undertakings of the Buyer
pursuant to Clauses 16.11.1 and 16.11.2 and shall provide upon the
request of the Seller certificates of insurance in English attesting
to such insurance coverage, in a form acceptable to the Seller from
the Buyer's insurance brokers.
16.11.3.2 For all training periods on aircraft, the Buyer shall cause the
Seller, its subsidiaries, the associated contractors and
sub-contractors and the assignees of each of the foregoing and their
respective directors, officers, agents and employees and their
respective insurers to be named as additional insureds under all
liability policies of the Buyer to the extent of the Buyer's
undertaking set forth in Clause 16.11.2. With respect to the Buyer's
hull all risks and hull war risks insurances, the Buyer shall cause
the insurers of the Buyer's hull insurance policies to waive all
rights of subrogation against the Seller, its subsidiaries, the
associated contractors and sub-contractors and the assignees of each
of the foregoing and their respective directors, officers, agents
and employees and their respective insurers, to the extent of the
Buyer's undertaking set forth in Clause 16.11.2.
Any applicable deductible shall be borne by the Buyer. With respect
to the above policies, the Buyer shall furnish to the Seller, not
less than seven (7) working days prior to the start of any such
training period, certificates of insurance, in English, evidencing
the limit of liability cover and period of insurance in a form
acceptable to the Seller from the Buyer's insurance brokers
certifying that such policies have been endorsed as follows:
(i) The Buyer's policies shall be primary and non-contributory to
any insurance maintained by the Seller.
(ii) Such insurance shall not become ineffective, cancelled, or
coverage decreased or materially changed except on seven (7)
days' prior written notice thereof to the Seller; and
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(iii) Under any such cover, all rights of subrogation against the
Seller, its subsidiaries, each of the associated contractors
and subcontractors, the assignees of each of the foregoing and
their respective directors, officers, agents and employees and
their respective insurers, have been waived to the extent of
the Buyer's undertaking and specifically referring to Clause
16.11.2.and to this Clause 16.11.3.2.
16.11.3.3 Seller's Subsidiaries
For the purposes of this Clause 16, "the Seller and its
subsidiaries" includes the Seller, its subsidiaries, Airbus Service
Company, Hua-Ou Airbus - CASC Aviation Training Center, each of the
associated contractors, and sub-contractors, the assignees of each
of the foregoing, and their respective directors, officers, agents
and employees.
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APPENDIX "A" TO CLAUSE 16
TRAINING ALLOWANCE
TRAINEE DAYS ACCOUNTING
Trainee days are counted as follows:
- for instruction at the Seller's training centers: one (1) day
of instruction for one (1) trainee equals one (1) trainee day.
The number of trainees at the beginning of the course shall be
counted as the number of trainees considered to have taken the
course.
- [DELETED]
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APPENDIX "B" TO CLAUSE 16
MINIMUM RECOMMENDED QUALIFICATION
IN RELATION TO TRAINING REQUIREMENTS
(Regular Transition Courses)
The prerequisites listed below are the minimum recommended requirements
specified for Airbus training. If the appropriate regulatory agency or the
specific airline policy of the trainee demand greater or additional
requirements, they shall apply as prerequisites.
- - CAPTAIN prerequisites
o Fluency in English
o 1500 hours minimum flying experience as pilot
o 1000 hours experience on FAR/JAR 25 aircraft
o 200 hours experience as airline, corporate pilot or military
pilot
o Must have flown transport type aircraft, as flying pilot,
within the last 12 months.
- - FIRST OFFICER prerequisites
o Fluency in English
o 500 hours minimum flying experience as pilot of fixed wing
aircraft
o 300 hours experience on FAR/JAR 25 aircraft
o 200 hours flying experience as airline pilot or a corporate
pilot or military pilot
o Must have flown transport type aircraft, as flying pilot,
within the last 12 months.
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 (example: if not fluent in English, an
adapted course with a translator) or,
(ii) an ELT (Entry Level Training) program before entering the
regular or the adapted course.
Such course(s), if required, shall be at the Buyer's expense.
- - Maintenance Personnel prerequisites
o Fluency in English
o Experience on jet transport category aircraft
o Knowledge of digital techniques, including ARINC 429, for
electrics / avionics specialists.
If this criterium is not met the trainee must follow a Basic Digital
Course.
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17 EQUIPMENT SUPPLIER PRODUCT SUPPORT
17.1 Equipment Supplier Product Support Agreements
17.1.1 The Seller has obtained enforceable and transferable product support
agreements from Suppliers of Seller Furnished Equipment listed in
the Specification.
17.1.2 These agreements are based on the "World Airlines Suppliers Guide"
and include Supplier commitments as contained in the "Supplier
Product Support Agreements" which include the following provisions:
17.1.2.1 Technical data and manuals required to operate, maintain, service
and overhaul the Supplier Parts. Such technical data and manuals
shall be prepared in accordance with the applicable provisions of
ATA Specification 100 and 101 including revision service and be
published in the English language. The Seller shall recommend that
software data, where applicable, is supplied in the form of an
appendix to the Component Maintenance Manual, such data will be
provided in compliance with ATA Specification 102 up to level 3.
17.1.2.2 Warranties and guarantees including standard warranties. In
addition, landing gear Suppliers shall provide service life policies
for selected structural landing gear elements.
17.1.2.3 Training to ensure efficient operation, maintenance and overhaul of
the Supplier Parts for the Buyer's instructors, shop and line
service personnel.
17.1.2.4 Spares data in compliance with ATA 200/2000 Specification, initial
provisioning recommendations, spare parts and logistic service
including routine and expedited deliveries.
17.1.2.5 Technical service to assist the Buyer with maintenance, overhaul,
repair, operation and inspection of Supplier Parts as well as
required tooling and spares provisioning.
17.2 Supplier Compliance
The Seller shall monitor Supplier compliance with support
commitments defined in the "Supplier Product Support Agreements" and
shall take remedial action together with the Buyer if necessary.
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18 BUYER FURNISHED EQUIPMENT
18.1 Administration
18.1.1 Without additional charge, the Seller shall provide for the
installation of those items of equipment which are identified in the
Specification as being furnished by the Buyer ("Buyer Furnished
Equipment" or "BFE"), provided that they are referred to in the
Airbus BFE Catalog of approved suppliers by Products valid at time
of ordering of the concerned BFE ("Approved Suppliers"). [DELETED].
The Seller shall advise the Buyer of the dates by which, in the
planned release of engineering for the Aircraft, the Seller requires
a written detailed engineering definition including the description
of the dimensions and weight of BFE, the information related to its
certification and information necessary for the installation and
operation thereof. The Buyer shall furnish such detailed description
and information by the dates so specified. Such information,
dimensions and weights shall not thereafter be revised unless
authorised by a Specification Change Notice.
The Seller shall also furnish in due time to the Buyer a schedule of
dates and indication of shipping addresses for delivery of BFE.
Where reasonably requested by the Seller, the Buyer shall arrange
the availability of additional spare BFE to permit installation in
the Aircraft and delivery of the Aircraft in accordance with the
delivery schedule, provided that the Seller and the Buyer shall
[DELETED]. The Buyer shall provide such equipment by such dates in a
serviceable condition, in order to allow performance of any
assembly, test, or acceptance process in accordance with the
industrial schedule.
It shall be a prerequisite for the supply of BFE that the Buyer
shall also provide, or shall cause the BFE suppliers to provide,
when requested by the Seller, at AEROSPATIALE works in TOULOUSE
(FRANCE) and/or at DAIMLERCHRYSLER AEROSPACE AIRBUS GmbH, Division
Hamburger Flugzeugbau Works in HAMBURG (FEDERAL REPUBLIC OF GERMANY)
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 Seller shall be entitled to refuse any item of BFE which is
incompatible with the Specification, the above mentioned engineering
definition or the certification requirements.
18.1.3 The BFE shall be imported into FRANCE or into the FEDERAL REPUBLIC
OF GERMANY by the Buyer 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 shall be Delivered Duty Unpaid (DDU) according to
the Incoterms definition.
Shipping Addresses:
AEROSPATIALE, Societe Nationale Industrielle
316 Route de Bayonne
31300 TOULOUSE
FRANCE
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or:
DAIMLERCHRYSLER AEROSPACE AIRBUS GmbH
Division Hamburger Flugzeugbau
Kreetslag 10
21129 HAMBURG
FEDERAL REPUBLIC OF GERMANY
18.2 Aviation Authorities' Requirements
The Buyer is responsible for, at its expense, and warrants that BFE
shall be manufactured by a qualified supplier, shall meet the
requirements of the applicable Specification, shall comply with
applicable requirements incorporated by reference to the Type
Certificate and listed in the Type Certificate Data Sheet,
[DELETED], shall be approved by the Aviation Authorities delivering
the Export Certificate of Airworthiness and by the Buyer's Aviation
Authority for installation and use on the Aircraft at the time of
Delivery of such Aircraft. [DELETED]
18.3 Buyer's Obligation and Seller's Remedies
18.3.1 Any delay or failure in complying with the foregoing warranty or in
providing the descriptive information or service representatives
mentioned in Clause 18.1 or in furnishing the BFE in serviceable
condition at the requested delivery date or 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 Price of the
Aircraft to be adjusted in accordance with the updated delivery
schedule and to include in particular the amount of the Seller's
additional costs, attributable to such delay or failure such as
storage, taxes, insurance and costs of out-of sequence installation.
18.3.2 Further, in any such event, the Seller may:
(i) select, purchase and install an equipment similar to the
involved one, in which event the Final Price of the affected
Aircraft shall 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 so required and not already provided for in
the price of the Aircraft for adjustment and calibration; or
(ii) if the BFE shall be so delayed by more than thirty (30) days,
or unapproved within thirty (30) days deliver the Aircraft
without the installation of such equipment, notwithstanding
the terms of Clause 7 insofar as it may otherwise have
applied, and the Seller shall thereupon be relieved of all
obligations to install such equipment. The Buyer may also
elect to have the Aircraft so delivered.
18.4 Title and Risk of Loss
Title to and risk of loss of any BFE shall at all times remain with
the Buyer except that risk of loss (limited to cost of replacement
of said BFE and excluding in particular loss of use) shall be with
the Seller for as long as such BFE shall be under the care, custody
and control of the Seller.
18.5 Seller-Supplied Buyer Furnished Equipment
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18.5.1 General
Subject to the provisions of this sub-Clause 18.6, the Buyer has the
right to request the Seller, no later [DELETED], to supply directly
certain of the items that are referenced as Buyer Furnished
Equipment pursuant to the Standard Specification and Exhibit B
"Baseline" for all the Aircraft, such items to be procured from the
Approved Suppliers. If compliance with such request by the Seller in
its judgment will not affect the Delivery Date of the Aircraft
referred to in Clause 9, then the Seller will order such items as
Seller-Supplied Buyer Furnished Equipment ("SSBFE") subject to the
execution of an SCN amending the Exhibit B "Baseline" and reflecting
the effect on price and any other items and conditions of this
Agreement.
Following agreement between the Buyer and the Seller as to the
specification and selection of the SSBFE, the Seller shall purchase
the selected equipment directly from the respective Approved
Suppliers and [DELETED].
18.5.2 Price
For the purposes of selection of SSBFE as provided for in the above
paragraph, the Seller shall [DELETED].
[DELETED].
The incorporation of BFE as SSBFE shall be subject to the payment by
the Buyer of handling charge [DELETED].
For the avoidance of doubt, the Seller reserves the right to refuse
to supply as SSBFE any BFE items which the Buyer chooses to select
from BFE suppliers not listed in the then current Approved List.
19 DATA RETRIEVAL
The Buyer shall use reasonable efforts to provide the Seller, as the
Seller may reasonably request, with all the necessary data as
customarily compiled by the Buyer and pertaining to the operation of
the Aircraft to assist the Seller in making efficient and
coordinated survey of all reliability, maintainability, operational
and cost data with a view to improving the safety, availability and
operational costs of the Aircraft.
20 TERMINATION
20.1 Termination for Insolvency
In the event that either the Seller or the Buyer:
(1) files a voluntary petition in bankruptcy.
(2) commences any case, proceeding or other in any jurisdiction
relating to bankruptcy, insolvency, reorganization or relief
from debtors or seeking a reorganization, arrangement,
winding-up, liquidation, dissolution or other relief with
respect to its debts.
(3) commences under the laws of any competent jurisdiction any
proceeding seeking the appointment of a receiver, trustee,
custodian or other similar
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official for all or substantially all of its assets, or makes
a general assignment for the benefit of its creditors.
(4) becomes the object of any proceeding seeking issuance of a
warrant of attachment, execution, distraint or similar process
against substantially all of its assets.
(5) becomes the object of any proceeding or action of the type
described in (2), (3) or (4) above and, [DELETED].
(6) is unable to pay its debts as they come due.
(7) becomes the object of any liquidation, winding up or analogous
event.
then the other party may, to the full extent permitted by law, by
written notice, terminate all or part of this Agreement.
20.2 Termination for Non-Payment of Predelivery Payments
If for any Aircraft the Buyer fails to make any Predelivery Payments
at the time, in the manner and in the amount specified in Clause 5.3
of this Agreement within [DELETED], the Seller may, by written
notice, terminate all or part of this Agreement with respect to
undelivered Aircraft, [DELETED].
20.3 Termination for Failure to Take Delivery
If the Buyer fails to comply with its obligations as set forth under
Clause 8 and/or Clause 9, or fails to pay the Final Price of the
Aircraft, the Seller shall have the right to put the Buyer on notice
to do so [DELETED]. [DELETED], the Seller may, by written notice,
terminate all or part of this Agreement with respect to undelivered
Aircraft, [DELETED].
All costs referred to in Clause 9.2.3 and relating to the period
between the notified date of delivery (as referred to in Clause
9.2.3) and the date of termination of all or part of this Agreement
shall be borne by the Buyer.
20.4 In the event that the Buyer: (i) [DELETED], or (ii) [DELETED] after
notice from the Seller, the Seller may, by written notice, terminate
all or part of this Agreement with respect to undelivered Aircraft.
20.5 General
20.5.1 To the full extent permitted by law, the termination of all or part
of this Agreement pursuant to Clauses 20.1, 20.2, 20.3 and 20.4
shall become effective immediately upon receipt by the relevant
party of the notice of termination sent by the other party without
it being necessary for either party to take any further action or to
seek any consent from the other party or any court having
jurisdiction.
20.5.2 The right for either party under Clause 20.1 and for the Seller
under Clauses 20.2, 20.3 and 20.4 to terminate all or part of this
Agreement shall be without prejudice to any other rights and
remedies available to such party to seek termination of all or part
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of this Agreement before any court having jurisdiction pursuant to
any failure by the other party to perform its obligations under this
Agreement.
20.5.3 [DELETED]
20.5.4 In the event of a termination of this Agreement following a default
from the Buyer, [DELETED].
21 - ASSIGNMENT
21.1 Successors and Assigns
Subject to the provisions of this Clause 21, this Agreement shall
inure to the benefit of and be binding upon the successors and
assigns of the parties hereto. Except as expressly provided in this
Clause 21, neither party may sell, assign, novate or transfer its
rights or obligations hereunder in whole or in part without the
prior written consent of the other party. Notwithstanding the
immediately preceding sentence, the Seller may at any time by notice
to the Buyer transfer in whole or in part its rights and/or its
obligations under this Agreement to any of its successors or assigns
or to its majority owned subsidiary without the consent of the Buyer
[DELETED].
21.2 Assignment in Case of Lease
21.2.1 In the event of the lease of any Aircraft by the Buyer following
delivery of such Aircraft to the Buyer, and subject to the consent
of the Seller, which consent shall not be unreasonably denied or
delayed, the Buyer's rights with respect to such Aircraft under
Clauses [DELETED] may be transferred [DELETED]. The Buyer shall
furnish to the Seller a true copy of such assignment agreement with
the purchaser or lessee [DELETED].
21.2.2 Exculpatory or Indemnity Clause in Post-delivery Sale or Lease.
[DELETED].
21.2.3 Any assignment or novation under this paragraph 21.2 shall be
subject to all of the following conditions:
(1) That the assignee or novatee agrees, in a form reasonably
satisfactory to the Seller, to be bound by all relevant terms,
conditions and limitations of this Agreement, and
(2) That no assignment, transfer or novation by the Buyer pursuant
to this paragraph 21.2 shall subject the Seller to any
liability, increased risk, costs or expenses to which it would
not otherwise be subject hereunder or modify in any way the
Seller's contractual rights hereunder, and
(3) That the Buyer shall nonetheless remain liable to Seller in
respect of all the rights and obligations under this Agreement
and shall guarantee the performance by the assignee of all
duties and obligations related to the assigned rights as well
as to the assignment itself including but not limited to
conditions under this paragraph 21.2, and
(4) No further assignment or novation is permitted except in
accordance with the foregoing provisions of this paragraph.
21.3 Assignment by the Buyer
[DELETED]
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21.4 Transfer of Rights and Obligations upon Reorganisation
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
reorganised or the legal form of the Seller is changed and as a
consequence thereof the Seller wishes the Buyer to accept the
substitution of the [DELETED].
[DELETED].
[DELETED].
22 MISCELLANEOUS PROVISIONS
22.1 Notices
All notices and requests required or authorised hereunder shall be
given in writing either by personal delivery to an authorised
representative of the party to whom the same is given or by
registered mail (return receipt requested) or by telex and the date
upon which any such notice or request is so personally delivered or
if such notice or request is given by registered mail, the date upon
which it is received by the addressee shall be deemed to be the
effective date of such notice or request.
Seller's address for notices is:
AIRBUS INDUSTRIE
Attn. To V. P. Contracts
1 Rond-Point Maurice Bellonte
31707 Blagnac Cedex
France
Buyer's address for notices is:
GATX Flightlease Aircraft Company Ltd
c/o GATX Flightlease Management GmbH
CH-8058 Zurich Airport
Switzerland
Fax: 41 1 812 98 13
or such other address or such other person as the party receiving
the notice or request may reasonably designate from time to time.
with copies in all cases to:
GATX Third Aircraft Corporation
Four Embarcadero Center
San Francisco, CA 94111
USA
Attention: Air Portfolio Administration
Fax: + 415 955 3424
77
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And
Flightlease Holdings (Guernsey) Limited
Polygon Hall Le Marchant Street
St. Peter Port
Guernsey, GY1 4AS
Channel Islands
Tel: +44 1481 714 744
Fax: +44 1481 714 744
22.2 Waiver
The failure of either party to enforce at any time any of the
provisions of this Agreement, or to exercise any right herein
provided, or to require at any time performance by the other party
of any of the provisions hereof, shall 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 thereof or the
right of the other party thereafter to enforce each and every such
provision. The express waiver (whether made one (1) or several
times) by either party of any provision, condition or requirement of
this Agreement shall not constitute a waiver of any future
obligation to comply with such provision, condition or requirement.
22.3 INTERPRETATION AND LAW
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE
THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK.
THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS CONVENTION ON
THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS TRANSACTION.
22.4 JURISDICTION
EACH OF THE SELLER AND BUYER (I) IRREVOCABLY SUBMITS ITSELF TO THE
NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK
AND (TO THE EXTENT PERMITTED BY APPLICABLE LAW) TO THE NON-EXCLUSIVE
JURISDICTION 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, THE SUBJECT MATTER HEREOF
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 OR OTHERWISE, IN ANY SUCH SUIT, ANY
DEFENSE OR OTHERWISE, IN ANY SUIT, ACTION OR PROCEEDING, TO THE
EXTENT PERMITTED BY APPLICABLE LAW, ANY DEFENSE BASED ON SOVEREIGN
OR OTHER IMMUNITY OR 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 ANY OF THESE
COURTS. THE BUYER AND THE SELLER
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EACH HEREBY GENERALLY CONSENTS TO SERVICE OF PROCESS BY REGISTERED
MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS FOR NOTICE UNDER THIS
AGREEMENT, SUCH SERVICE OF PROCESS TO BE EFFECTIVE UPON
ACKNOWLEDGEMENT OF RECEIPT OF SUCH REGISTERED MAIL. THE FOREGOING,
HOWEVER, SHALL NOT LIMIT THE RIGHT OF SUCH PARTY TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY LEGAL ACTION OR
PROCEEDING OR TO OBTAIN EXECUTION OF JUDGEMENT IN ANY COMPETENT
JURISDICTION.
22.5 International Supply Contract
The Buyer and the Seller recognise that this Agreement is an
international supply contract which has been the subject of
discussion and negotiation, that all its terms and conditions are
fully understood by the parties, and that the Specification and
price of the Aircraft and the other mutual agreements of the parties
set forth herein were arrived at in consideration of, inter alia,
all the provisions hereof specifically including all waivers,
releases and renunciations by the Buyer set out herein.
22.6 Severability
In the event that any provision of this Agreement should for any
reason be held ineffective, the remainder of this Agreement shall
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.
22.7 Alterations to Contract
This Agreement contains the entire agreement between the parties
with respect to the subject matter hereof and supersedes any
previous understandings, commitments or representations whatsoever
oral or written in respect thereto. This Agreement shall not be
varied except by an instrument in writing of date even herewith or
subsequent hereto executed by both parties or by their duly
authorised representatives.
22.8 Language
All correspondence, documents and any other written matters in
connection with this Agreement shall be in English.
This Agreement has been executed in two (2) original copies which
are in English, and may be executed in counterparts.
22.9 Confidentiality
This Agreement including any Exhibits or other documents related
hereto shall be treated by both parties as confidential and shall
not be released in whole or in part to any third party except as may
be required by law, or to professional advisors for the purpose of
implementation hereof. Without limiting the generality of the
foregoing, the Buyer will cooperate with the Seller to limit the
disclosure of the contents of this Agreement to the extent legally
permissible in any filing required to be made by the Buyer with any
governmental agency and will make such applications as will be
necessary to implement the foregoing. With respect to any public
disclosure or filing,
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the Buyer agrees to submit to the Seller a copy of the proposed
document to be filed or disclosed and will give the Seller a
reasonable period of time in which to review the said document. The
Buyer and Seller will consult with each other prior to the making of
any public disclosure or filing, permitted hereunder, of this
Agreement or the terms and conditions thereof. In particular, each
party agrees not to make any press release concerning the whole or
any part of the contents and/or subject matter hereof or of any
future addendum hereto without the prior consent of the other party
hereto. The provisions of this Subclause 22.9 will survive any
termination of this Agreement.
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IN WITNESS WHEREOF this Agreement was entered into the day and year first above
written.
For and on behalf of For and on behalf of
GATX Flightlease Aircraft Company Ltd AIRBUS INDUSTRIE
Name: _______________________________ Name: __________________________________
Title: ______________________________ Title: _________________________________
WITNESSED BY:
Name: _______________________________ Name: __________________________________
Title: ______________________________ Title: _________________________________
<PAGE>
EXHIBIT A
EXHIBIT A-1
The A320 Standard Specification referred to in Subclause 2.2 of the
Agreement is contained in a separate folder.
<PAGE>
EXHIBIT A
EXHIBIT A-2
The A321 Standard Specification referred to in Subclause 2.2 of the
Agreement is contained in a separate folder.
<PAGE>
EXHIBIT A
EXHIBIT A-3
The A318 Standard Specification referred to in Subclause 2.2 of the
Agreement is contained in a separate folder.
<PAGE>
EXHIBIT A
EXHIBIT A-4
The A330 Standard Specification referred to in Subclause 2.2 of the
Agreement is contained in a separate folder.
<PAGE>
EXHIBIT A
EXHIBIT A-5
The [DELETED] Standard Specification referred to in Subclause 4.1.1 of
Letter Agreement No 2 of the Agreement is contained in a separate folder.
<PAGE>
EXHIBIT A
EXHIBIT A-6
The [DELETED] Standard Specification referred to in Subclause 6.1.1 of
Letter Agreement No 2 of the Agreement is contained in a separate folder.
<PAGE>
EXHIBIT A
EXHIBIT A-7
The [DELETED] Standard Specification referred to in Subclause 5.1.1 of
Letter Agreement No 2 of the Agreement is contained in a separate folder.
<PAGE>
EXHIBIT A
EXHIBIT A-8
The [DELETED] Standard Specification referred to in Subclause 7.1.1 of
Letter Agreement No 2 of the Agreement is contained in a separate folder.
<PAGE>
EXHIBIT A
EXHIBIT A-9
The [DELETED] Standard Specification referred to in Subclause 8.1.1 of
Letter Agreement No 2 of the Agreement is contained in a separate folder.
<PAGE>
EXHIBIT B
EXHIBIT B-1
Changes Orders to the A320-200 Standard Specification (SCNs)
<PAGE>
EXHIBIT B
EXHIBIT B-2
Changes Orders to the A321-200 Standard Specification (SCNs)
<PAGE>
EXHIBIT B
EXHIBIT B-3
Changes Orders to the A318-100 Standard Specification (SCNs)
<PAGE>
EXHIBIT B
EXHIBIT B-4
Changes Orders to the A330-200 Standard Specification (SCNs)
<PAGE>
EXHIBIT C
EXHIBIT C
FORM OF SPECIFICATION CHANGE NOTICE
<PAGE>
EXHIBIT E
CERTIFICATE OF ACCEPTANCE
In accordance with the terms of the Agreement dated [ ] and made between GATX
Flightlease Aircraft Company Ltd and AIRBUS INDUSTRIE, as amended (the
"Purchase Agreement"), the acceptance tests relating to the A[ ] aircraft,
Manufacturer's Serial Number: [ ], Registration Number: [ ] (the
"Aircraft"), have taken place at Aerospatiale Works on the [ ] day of [ ].
In view of said tests having been carried out with satisfactory results, [GATX
Flightlease o Aircraft Company Ltd] hereby approves the Aircraft as being in
conformity with the provisions of the Agreement.
Said acceptance does not impair the rights that may be derived from the
warranties relating to the Aircraft set forth in the Agreement.
Any right at law or otherwise to revoke this acceptance of the Aircraft is
hereby waived.
The [ ] day of [ ]
[GATX Flightlease Aircraft Company Ltd]
By:
Its:
<PAGE>
EXHIBIT F
BILL OF SALE
Know all men by these presents that Airbus Industrie G.I.E. ("AIRBUS"), a
"Groupement d'Interet Economique" created pursuant to the Ordonnance No 67-821
of the 23rd September 1967 of the French Republic and whose address is 1
rond-point Maurice Bellonte, 31707 Blagnac Cedex, FRANCE, is the owner of 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 INDUSTRIE G.I.E. [ ]
MODEL: [ ] MODEL: [ ]
MANUFACTURER'S SERIAL NUMBERS: LH: [ ]
SERIAL NUMBER: [ ] RH: [ ]
REGISTRATION LETTERS: [ ]
The Airframe, Engines and Parts are hereafter together referred to as the
aircraft (the "Aircraft").
AIRBUS does this [ ] day of [ ] sell, transfer and deliver all of its above
described rights, title and interest to the Aircraft to the following company
and to its successors and assigns forever, said Aircraft to be the property
thereof:
[Name of Buyer]
AIRBUS hereby warrants to the Buyer, its successors and assigns that it has on
the date hereof good and lawful right to sell, deliver and transfer the Aircraft
to the Buyer and that there is hereby conveyed to the Buyer on the date hereof
good, legal and valid title to the Aircraft, free and clear of all liens,
claims, charges, encumbrances and rights of others.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by
its duly authorized representative this ______ day of [ ]
AIRBUS INDUSTRIE "Groupement d'Interet Economique"
By:
Title:
Signature
<PAGE>
EXHIBIT G
SERVICE LIFE POLICY
ITEMS OF PRIMARY STRUCTURE
<PAGE>
SELLER SERVICE LIFE POLICY
1 The Items covered by the Service Life Policy pursuant to Clause 12.2
are those Seller Items of primary and auxiliary structure described
hereunder.
2 WINGS - CENTER AND OUTER WING BOX (LEFT AND RIGHT)
2.1 Wing Structure
2.1.1 Spars
2.1.2 Ribs inside the wing box
2.1.3 Upper and lower panels of the wing box
2.2 Fittings
2.2.1 Support structure and attachment fittings for the flap structure
2.2.2 Support structure and attachment fitting for the engine pylons
2.2.3 Support structure and attachment fitting for the main landing gear
2.2.4 Support structure and attachment fitting for the center wing box
2.3 Auxiliary Support Structure
2.3.1 For the slats :
2.3.1.1 Ribs supporting the track rollers on wing box structure
2.3.1.2 Ribs supporting the actuators on wing box structure
2.3.2 For the ailerons :
2.3.2.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.3.2.2 Actuator fittings on wing box rear spar or shroud box
2.3.3 For airbrakes, spoilers, lift dumpers :
2.3.3.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.3.3.2 Actuator fittings on wing box rear spar or shroud box
<PAGE>
2.4 Pylon
2.4.1 For the Pylon Main Structural Box
2.4.1.1 Spars
2.4.1.2 Ribs
2.4.1.3 Skin, doublers and stiffeners
2.4.1.4 Support structure and attachment fitting for engine supports
3 FUSELAGE
3.1 Fuselage structure
3.1.1 Fore and aft bulkheads
3.1.2 Pressurized floors and bulkheads surrounding the main and nose gear
wheel well and center wing box
3.1.3 Skins with doublers, stringers and frames from the forward pressure
bulkheads to the frame supporting the rear attachment of horizontal
stabilizer
3.1.4 Window and windscreen attachment structure but excluding
transparencies
3.1.5 Passenger and cargo doors internal structure
3.1.6 Sills excluding scuff plates and upper beams surrounding passenger
and cargo door apertures
3.1.7 Cockpit floor structure and passenger cabin floor beams excluding
floor panels and seat rails
3.1.8 Keel beam structure
3.2 Fittings
3.2.1 Landing gear support structure and attachment fitting
3.2.2 Support structure and attachment fittings for the vertical and
horizontal stabilizers
3.2.3 Support structure and attachment fitting for the APU
<PAGE>
4 STABILIZERS
4.1 Horizontal Stabilizer Main Structural Box
4.1.1 Spars
4.1.2 Ribs
4.1.3 Upper and lower skins and stringers
4.1.4 Support structure and attachment fitting to fuselage and trim screw
actuator
4.1.5 Elevator support structure
4.1.5.1 Hinge bracket
4.1.5.2 Servocontrol attachment brackets
4.2 Vertical Stabilizer Main Structural Box
4.2.1 Spars
4.2.2 Ribs
4.2.3 Skins and stringers
4.2.4 Support structure and attachment fitting to fuselage
4.2.5 Rudder support structure
4.2.5.1 Hinge brackets
4.2.5.2 Servocontrol attachment brackets
5 EXCLUSIONS
[DELETED] are excluded from this Seller Service Life Policy.
<PAGE>
EXHIBIT I
EXHIBIT I
SPARE PARTS PROCUREMENT
<PAGE>
1 GENERAL
1.1 This Exhibit defines the terms and conditions for the materiel
support services offered by the Seller to the Buyer in the following
areas:
- Initial provisioning of materiel
- Replenishment of materiel
- Lease of certain Seller Parts
1.1.1 Capitalized terms used herein and not otherwise defined in this
Exhibit "H" shall have the same meanings assigned thereto in the
Agreement.
References made to Clauses or sub-Clauses shall refer to Clauses or
sub-Clauses of this Exhibit "H" unless otherwise specified.
1.2 Scope of Materiel Support
Materiel is classified into the following categories (hereinafter
referred to as "Materiel")
(i) Seller Parts (Seller's proprietary Materiel bearing an
official part number of the Seller or Materiel for which the
Seller has the exclusive sales rights);
(ii) Supplier Parts classified as Line Replacement Units in
accordance with the applicable SPC 2 or 6, SPEC 2000 revision;
(iii) Supplier Parts classified as Expendable Line Maintenance Parts
in accordance with the applicable SPC 1, SPEC 2000 revision;
(iv) Ground Support Equipment and Special (To Type) Tools;
(v) Hardware and standard materiel.
1.2.1 The lease of certain Seller Parts listed in Appendix A of Clause 6
are available for lease by the Seller to the Buyer.
1.2.2 The Materiel support to be provided hereunder by the Seller covers
items classified as Materiel in sub-Clause 1.2 (i) thru (v) for
initial provisioning as described in Clause 2 ("Initial
Provisioning"), and sub-Clauses 1.2 (i) thru 1.2 (iv) for
replenishment as described in Clause 3.
Line Replacement Units as specified in sub-Clauses 1.2 (i) and 1.2
(ii) above having less than [DELETED] flight-hours are considered as
new for invoicing purposes.
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EXHIBIT I
1.2.3 [DELETED]
1.2.4 [DELETED] [DELETED]
1.3 Materiel Support Centre and Central Store
1.3.1 The Seller has established its materiel support centre in [DELETED]
("Materiel Support Centre") and shall maintain or cause to be
maintained during the Term a central store of Seller Parts.
1.3.2 The Materiel Support Centre is operated twenty-four (24) hours/day
and seven (7) days/week.
1.3.3 The Seller reserves the right to effect deliveries from distribution
centres other than the Materiel Support Centre or from any
designated production or Suppliers' facilities.
For efficient and convenient deliveries, the Seller and its
affiliate companies operate satellite stores in [DELETED].
1.4 Agreements of the Buyer
1.4.1 The Buyer agrees to purchase from the Seller the Seller Parts
required for the Buyer's own needs during the Term, provided that
the provisions of this Clause 1.4 shall not in any way prevent the
Buyer from resorting to the Seller Parts stocks of other airlines
operating the same Aircraft or from purchasing Seller Parts from
said airlines, or from distributors or dealers, provided said Seller
Parts have been designed and manufactured by, or obtained from, the
Seller.
1.4.2 The Buyer may manufacture or have manufactured for its own use
without paying any license fee to the Seller, or may purchase from
other sources, parts equivalent to Seller Parts :
1.4.2.1 after expiration of the Term if at such time the Seller Parts are
out of stock,
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EXHIBIT I
1.4.2.2 at any time, to the extent Seller Parts are needed to effect
aircraft on ground ("AOG") repairs upon any Aircraft delivered under
the Agreement and are not available from the Seller within a lead
time shorter than or equal to the time in which the Buyer can
provide such Seller Parts, and provided the Buyer shall not sell
such Seller Parts,
1.4.2.3 in the event that the Seller fails to fulfil its obligations with
respect to any Seller Parts pursuant to Clause 1.2 within a
reasonable time after written notice thereof from the Buyer,
1.4.2.4 in those instances where a Seller Part is identified as "Local
Manufacture" in the Illustrated Parts Catalog (IPC).
1.4.3 The rights granted to the Buyer in Clause 1.4.2 shall not in any way
be construed as a license, nor shall they in any way obligate the
Buyer to the payment of any license fee or royalty, nor shall they
in any way be construed to affect the rights of third parties.
2 INITIAL PROVISIONING
2.1 Initial Provisioning Period
The Initial Provisioning Period is defined as the period up to and
expiring on the [DELETED] day after delivery of the last Aircraft
subject to firm order under the Agreement.
2.2 Pre-Provisioning Meeting
2.2.1 The Seller shall organize a pre-provisioning meeting
("Pre-Provisioning Meeting") at its Materiel Support Centre for the
purpose of formulating an acceptable schedule and working procedure
to accomplish the initial provisioning of Materiel.
2.2.2 The date of the meeting shall be mutually agreed upon, allowing a
minimum preparation time of [DELETED] weeks for the Initial
Provisioning Conference referred to in Clause 2.4 below.
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EXHIBIT I
2.3 Initial Provisioning [DELETED]
2.3.1 Upon the request of the Buyer, the Seller can provide [DELETED]. The
following areas shall be covered :
(i) [DELETED]
(ii) [DELETED]
(iii) [DELETED]
2.4 Initial Provisioning Conference
The Seller shall organize an Initial Provisioning conference
("Initial Provisioning Conference") at the Materiel Support Centre,
including Supplier participation as agreed upon during the
Pre-Provisioning Meeting.
Such conference shall not take place earlier than [DELETED] weeks
after Manufacturer Serial Number allocation, Buyer Furnished
Equipment selection or Customer Definition Freeze, whichever is
later.
2.5 Seller-Supplied Data
The Seller shall prepare and supply to the Buyer the following
documents.
2.5.1 Initial Provisioning Data
Initial Provisioning data in accordance with SPEC 2000, Chapter 1,
("Initial Provisioning Data") shall be supplied by the Seller to the
Buyer in a form, format and a time-scale to be mutually agreed upon
during the Pre-Provisioning Meeting.
2.5.1.1 Revision service shall be provided every [DELETED], up to the end of
the Initial Provisioning Period, or until the configuration of the
Buyer's delivered Aircraft is included.
2.5.1.2 In any event, the Seller shall ensure that Initial Provisioning Data
is released to the Buyer in due time to allow the necessary Buyer's
evaluation time and the on-time delivery of any ordered Materiel.
2.5.2 Supplementary Data
The Seller shall provide the Buyer with supplementary data to the
Initial Provisioning Data, including Local Manufacture Tables
(X-File) and Ground Support Equipment and Tools (W-File) in
accordance with SPEC 2000, Chapter 1.
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EXHIBIT I
2.6 Supplier-Supplied Data
2.6.1 General
The Seller shall obtain from Suppliers, agreements to prepare and
issue for their own products Initial Provisioning Data in the
English language, for those components for which the Buyer has
elected to receive data.
Said data (initial issue and revisions) shall be transmitted to the
Buyer through the Seller. The Seller shall review the compliance of
such data with the relevant ATA requirements but shall not be
responsible for the substance of such data. Such data should be
adequate to enable the Buyer to undertake in-house repair/overhaul
of such components.
In any event, the Seller shall exert its reasonable efforts to
supply Initial Provisioning Data to the Buyer in due time to allow
the necessary Buyer's evaluation time and on-time deliveries.
2.6.2 Initial Provisioning Data
Initial Provisioning Data for Supplier Parts as per sub-Clause 1.2
(ii) in accordance with SPEC 2000, Chapter 1, fixed or variable
format, shall be furnished as mutually agreed upon during a
Pre-Provisioning Meeting with revision service assured up to the end
of the Initial Provisioning period, or until it reflects the
configuration of the Buyer's delivered Aircraft.
2.7 Initial Provisioning Data Compliance
2.7.1 Initial Provisioning Data generated by the Seller and supplied to
the Buyer shall comply with the latest configuration of the Aircraft
to which such data relate as known [DELETED] before the date of
issue. Said data shall enable the Buyer to order Materiel conforming
to its Aircraft as required for maintenance and overhaul.
This provision shall not cover :
- parts embodying Buyer's modifications not known to the Seller,
- parts embodying modifications not agreed to by the Seller.
2.8 Commercial Offer
2.8.1 At the end of the Initial Provisioning Conference, the Seller shall,
at the Buyer's request, submit a commercial offer for all Materiel
mutually agreed as being Initial Provisioning based on the Seller's
sales prices valid at the time of finalization of the Initial
Provisioning Conference. This commercial offer shall be valid for a
period to be mutually agreed upon, irrespective of any price changes
for Seller Parts during this period, except for significant error
and/or for price alterations due to part number changes and/or for
Supplier price changes.
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EXHIBIT I
2.8.2 During the Initial Provisioning Period the Seller shall supply
Materiel as defined in Clause 1.2 ordered from the Seller which
shall be in conformity with the configuration standard of the
affected Aircraft and with the Initial Provisioning Data transmitted
by the Seller.
2.8.3 The Seller in addition, shall use its reasonable efforts to cause
Suppliers to provide a similar service for their items.
2.9 Delivery of Initial Provisioning Materiel
2.9.1 In order to support the operation of the Aircraft, the Seller shall
use its reasonable efforts to deliver Materiel ordered during the
Initial Provisioning Period against the Buyer's orders and according
to a mutually agreed schedule. Provided the Buyer's orders have been
placed within [DELETED] days after receipt of the Seller's
provisioning data and not later than [DELETED] months before
delivery of the corresponding Aircraft, [DELETED] percent ([DELETED]
%) of the ordered quantity of each item, including line station
items, shall be delivered [DELETED] months after delivery of the
last Aircraft. If said [DELETED] percent ([DELETED] %) cannot be
accomplished, the Seller shall endeavor to have such items available
at its facilities for Seller Parts as per sub-Clause 1.2 (i) or its
Suppliers' facilities for parts as per sub-Clauses 1.2 (ii) thru 1.2
(v) for immediate supply in case of an AOG.
2.9.2 The above agreed delivery schedule applies only to that portion of
the quantity ordered that is recommended for the number of Aircraft
operated during the [DELETED] months that follow first Aircraft
delivery.
2.9.3 The Buyer may, subject to the Seller's agreement, cancel or modify
Initial Provisioning orders placed with the Seller, with no
cancellation charge, not later than the quoted lead-time before
scheduled delivery of said Materiel.
2.9.4 In the event of the Buyer canceling or modifying (without any
liability of the Seller for the cancellation or modification) any
orders for Materiel outside the time limits defined in Clause 2.9.3,
the Buyer shall reimburse the Seller for any costs incurred in
connection therewith.
2.9.5 All transportation costs for the return of Materiel under this
Clause 2, including any insurance, customs and duties applicable or
other related expenditures, shall be borne by the Buyer.
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EXHIBIT I
2.10 Initial Provisioning Data for Exercised Options
2.10.1 All Aircraft for which the Buyer exercises its option shall be
included into the revision of the provisioning data that is issued
after execution of the relevant amendment to the Agreement if such
revision is not scheduled to be issued within [DELETED] weeks from
the date of execution. If the execution date does not allow
[DELETED] weeks preparation time for the Seller, the concerned
Aircraft shall be included in the subsequent revision as may be
mutually agreed upon.
2.10.2 The Seller shall, from the date of execution of the relevant
amendment to the Agreement until [DELETED] months after delivery of
each Aircraft, submit to the Buyer details of particular Supplier
components being installed on each Aircraft, with recommendation of
order quantity. A list of such components shall be supplied at the
time of the provisioning data revision as specified above.
2.10.3 The data with respect to Materiel at the time of each Aircraft
delivery shall at least cover such Aircraft's technical
configuration as it existed [DELETED] months prior to Aircraft
delivery and shall be updated to reflect the final build status of
the concerned Aircraft. Such update shall be included in the data
revisions issued [DELETED] months after delivery of such Aircraft.
3 REPLENISHMENT AND DELIVERY
3.1 General
Buyer's purchase orders are administered in accordance with SPEC
2000 Chapter 3.
For the purpose of clarification it is expressly stated that the
provisions of Clause 3.2 do not apply to Initial Provisioning Data
and Materiel as described in Clause 2.
3.2 Lead times
In general the lead times are in accordance with the provisions of
the "World Airlines and Suppliers' Guide" (Latest Edition).
3.2.1 Seller Parts as per sub-Clause 1.2 (i) listed in the Seller's Spare
Parts Price List can be dispatched within the lead times defined in
the Spare Parts Price List.
Lead times for Seller Parts, which are not published in the Seller's
Spare Parts Price List, are quoted upon request.
3.2.2 Materiel of sub-Clauses 1.2 (ii) thru 1.2 (iv) can be dispatched
within the Supplier's lead-time augmented by the Seller's own order
and delivery processing time.
3.2.3 Materiel of sub-Clause 1.2 (v) when on stock and subject to prior
sale can be dispatched within [DELETED] days from receipt of a Buyer
purchase order.
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EXHIBIT I
3.2.4 Expedite Service
The Seller shall provide a twenty-four (24) hours-a-day, seven (7)
days-a-week expedite service to provide for the supply of the
relevant Seller Parts available in the Seller's stock, workshops and
assembly line including long lead time spare parts, to the
international airport nearest to the location of such part
("Expedite Service").
3.2.4.1 The Expedite Service is operated in accordance with the "World
Airline Supplier's Guide", and the Seller shall notify the Buyer of
the action taken to satisfy the expedite within :
- four (4) hours after receipt of an AOG Order,
- twenty-four (24) hours after receipt of a Critical Order (imminent
AOG or work stoppage),
- seven (7) days after receipt of an Expedite Order from the Buyer.
3.2.4.2 The Seller shall deliver Seller Parts requested on an Expedite basis
against normal orders placed by the Buyer, or upon telephone or
telex requests by the Buyer's representatives. Such telephone or
telex requests shall be confirmed by subsequent Buyer's orders for
such Seller Parts within a reasonable time.
3.3 Delivery Status
The Seller shall report to the Buyer the status of supplies against
orders on a monthly basis.
3.4 Excusable Delay
Clause 10.1 of the Agreement shall apply for the Materiel support.
3.5 Shortages, Overshipments, Non-Conformance in Orders
3.5.1 The Buyer shall immediately but not later than [DELETED] days after
receipt of Materiel delivered pursuant to a purchase order advise
the Seller :
a) of any alleged shortages or overshipments with respect to such
order,
b) of all non-conformances to specification of parts in such order
subjected to inspections by the Buyer.
In the event of the Buyer not having advised the Seller of any such
alleged shortages, overshipments or non-conformance within the above
defined period, the Buyer shall be deemed to have accepted the
deliveries.
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EXHIBIT I
3.5.2 In the event of the Buyer reporting overshipments or non-conformance
to the specifications within the period defined in Clause 3.5.1 the
Seller shall, if accepted, either replace the concerned Materiel or
credit the Buyer for the returned Materiel. In such case,
transportation costs shall be borne by the Seller.
The Buyer shall endeavor to minimize such costs, particularly
through the use of its own airfreight system for transportation at
no charge to the Seller.
3.6 Packaging
All Materiel shall be packaged in accordance with ATA 300
Specification, Category III for consumable/expendable materiel and
Category II for rotables. Category I containers shall be used if
requested by the Buyer and the difference between Category I and
Category II packaging costs shall be paid by the Buyer together with
payment for the respective Materiel.
3.7 Cessation of Deliveries
The Seller reserves the right to stop or otherwise suspend
deliveries if the Buyer fails to meet its obligations defined in
Clauses 4.2 thru 4.4.
4 COMMERCIAL CONDITIONS
4.1. Price
4.1.1 The Materiel prices shall be :
- Free Carrier (FCA) the Materiel Support Centre for deliveries
from the Materiel Support Centre.
- Free Carrier (FCA) place specified by the Seller for
deliveries from other Seller or Supplier facilities as the
term Free Carrier (FCA) is defined by the publication No 460
of the International Chamber of Commerce published in April
1990.
4.1.2 The prices shall be the Seller's sales prices in effect on the date
of receipt of the order (subject to reasonable quantities and
delivery time) and shall be expressed in US-Dollars.
4.1.3 Prices of Seller Parts shall be in accordance with the current
Seller's Spare Parts Price List. Prices shall be firm for each
calendar year. The Seller, however, reserves the right to revise the
prices of said 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 parts
or materiels (including significant variation of exchange
rates),
- significant error in estimation or expression of any price.
4.1.4 Prices of Materiel as defined in sub-Clauses 1.2 (ii) thru 1.2 (iv)
shall be the valid list prices of the supplier augmented by the
Seller's handling charge. The percentage of the handling charge
shall vary with the Materiel's value and shall be determined item by
item.
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EXHIBIT I
4.1.5 The Seller warrants that, should the Buyer purchase [DELETED]
percent ([DELETED] %) of the recommended Initial Provisioning
package of the Materiel as defined in sub-Clauses 1.2 (ii) thru 1.2
through the Seller, the average handling charge on the total package
shall not exceed [DELETED] percent ([DELETED] %).
This average handling charge shall apply when all orders are
received by the Seller not later than [DELETED] months before first
Aircraft delivery.
4.1.6 Prices of Materiel as defined in sub-Clauses 1.2 (v) shall be the
Seller's purchase prices augmented by a variable percentage of
handling charge.
4.2 Payment Procedures and Conditions
4.2.1 Payment shall be made in immediately available funds in the quoted
currency. In case of payment in any other free convertible currency
the exchange rate valid at the day of actual money transfer shall be
applied for conversion.
4.2.2 Payment shall be made by the Buyer to the Seller within [DELETED]
days from date of the invoice to the effect that the value date of
the credit to the Seller's account of the payment falls within this
[DELETED] day period.
4.2.3 The Buyer shall make all payments hereunder to the Seller's account,
No [DELETED] with :
[DELETED]
or as otherwise directed by the Seller.
4.2.4 All payments due to the Seller hereunder shall be made in full
without set-off, counterclaim, deduction or withholding of any kind.
Consequently, the Buyer shall procure that the sums received by the
Seller under this Exhibit "H" shall be equal to the full amounts
expressed to be due to 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 Buyer
is compelled by law to make any such deduction or withholding the
Buyer shall pay such additional amounts as may be necessary in order
that the net amount received by the Seller after such deduction or
withholding shall equal the amounts which would have been received
in the absence of such deduction or withholding.
4.2.5 If any payment due to the Seller is not received in accordance with
the timescale provided in Clause 4.2.2, without prejudice to the
Seller's other rights under such Exhibit "H", the Seller shall be
entitled to interest for late payment calculated on the amount due
from and including the due date of payment up to and including the
date when the payment is received by the Seller at a rate equal to
the London Interbank Offered Rate (LIBOR) for [DELETED] months
deposits in US Dollars (as published in the Financial Times on the
due date) plus [DELETED] percent ([DELETED] %) per year (part year
to be prorated).
4.3 Credit Assurance
The Seller and the Buyer agree that the Seller has the right to
request and the Buyer shall upon such request provide the Seller
with sufficient financial means in due time in order to assure the
Seller of full payment of the Buyers' current and/or expected
payment obligations.
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EXHIBIT I
4.3.1 The Sellers' right to request credit assurance from the Buyer shall
be limited to the following cases :
4.3.1.1 The Seller has received purchase orders from the Buyer for Initial
Provisioning Materiel.
4.3.1.2 The Seller has received purchase and/or service orders exceeding the
Buyer's average [DELETED] month's turnover with the Seller.
4.3.1.3 The Buyer is indebted to the Seller for overdue invoices.
4.3.2 The Seller shall accept the following financial means as credit
assurance :
4.3.2.1 Irrevocable and confirmed letter of credit, raised by banks of
international standing and reputation. The conditions of such letter
of credit shall be pertinent to Aircraft support activities and
shall be set forth by the Seller.
4.3.2.2 Bank guarantee raised by banks of international standing and
reputation. The conditions of such bank guarantee shall be mutually
agreed upon prior to acceptance by the Seller.
4.3.2.3 Stand-by letter of credit raised by banks of international standing
and reputation. The conditions of such letter of credit shall be
mutually agreed upon prior to acceptance by the Seller.
4.4 Title
Title to any Materiel purchased under this Exhibit "H" remains with
the Seller until full payment of the invoices and any interest
thereon have been received by the Seller.
The Buyer shall undertake that Materiel, title to which has not
passed to the Buyer, shall be kept free from any debenture or
mortgage or any similar charge or claim in favor of any third party.
4.5 [DELETED]
4.5.1 [DELETED]
4.5.1.1 [DELETED]
4.5.1.2 [DELETED]
4.5.1.3 [DELETED]
4.5.2 [DELETED]
4.5.2.1 [DELETED]
4.5.2.2 [DELETED]
4.5.2.3 [DELETED]
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EXHIBIT I
4.5.2.4 [DELETED]
4.5.3 [DELETED]
4.5.4 [DELETED]
4.5.4.1 [DELETED]
4.6 Inventory Usage Data
The Buyer undertakes to provide periodically to the Seller, as the
Seller may 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 shall be established according to SPEC 2000,
Chapter 5, or as mutually agreed between the Seller and the Buyer.
5 WARRANTIES
5.1 Seller Parts
Subject to the limitations and conditions as hereinafter provided,
the Seller warrants to the Buyer that all Seller Parts in sub-Clause
1.2 (i) shall at delivery to the Buyer :
(i) be free from defects in material,
(ii) be free from defects in workmanship, including without
limitation processes of manufacture,
(iii) be free from defects arising from failure to conform to the
applicable specification for such part.
5.2 Warranty Period
5.2.1 The standard warranty period for new Seller Parts is [DELETED] months
after delivery of such parts to the Buyer.
5.2.2 The standard warranty period for used Seller Parts delivered by and/or
repaired by the Seller is [DELETED] months after delivery of such
parts to the Buyer.
5.3 Buyer's Remedy and Seller's Obligation
The Buyer's remedy and Seller's obligation and liability under this
Clause 5 are limited to the repair, replacement or correction, at
the Seller's expense and option, of any Seller Part which is
defective.
The Seller may equally at its option furnish a credit to the Buyer
for the future purchase of Seller Parts equal to the price at which
the Buyer is then entitled to acquire a replacement for the
defective Seller Parts.
The provisions of Clauses 12.1.5 thru 12.1.10 of the Agreement shall
apply to this Clause 5 of this Exhibit "H".
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EXHIBIT I
5.4 Waiver, Release and Renunciation
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND
REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 5 ARE EXCLUSIVE AND
IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND
RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE
SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE
SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT
TO ANY NON-CONFORMITY OR DEFECT IN ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART DELIVERED UNDER THIS AGREEMENT
INCLUDING BUT NOT LIMITED TO:
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS (GARANTIE DES VICES
CACHES);
(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 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.
SELLER SHALL 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 AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART
DELIVERED UNDER THIS AGREEMENT.
6 SELLER PARTS LEASING
6.1 General
The terms and conditions of this Clause 6 shall apply for the
leasing of Seller Parts listed in Appendix A to this Clause 6,
hereinafter, "Leased Parts" or a "Leased Part", and shall form a
part of each lease of Seller Parts by the Buyer from the Seller.
6.1.1 The terms and conditions of this Clause 6 shall prevail over all
other terms and conditions appearing on any order form or other
document pertaining to Leased Parts.
6.1.2 For the purposes of this Clause 6, the term "Lessor" refers to the
Seller and the term "Lessee" refers to the Buyer.
6.1.3 Parts not included in Appendix A to this Clause 6 shall be the
subject of a separate lease agreement supplied by the Seller at the
Buyer's request.
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EXHIBIT I
6.2 Leasing Procedure
At the Lessee's request by telephone (to be confirmed promptly in
writing), telefax, SITA, letter or other written instrument, the
Lessor shall lease such Leased Parts, which shall be made available
in accordance with Clause 3.2.4 for the purpose of being substituted
for a part removed from an Aircraft for repair or overhaul. Each
lease of Leased Parts shall be evidenced by a lease document
(hereinafter "Lease") issued by the Lessor to the Lessee not later
than [DELETED] days after delivery of the Leased Part.
6.3 Lease Term
The term of the lease (hereinafter "Lease Term") shall commence on
the date of dispatch of the Leased Part to the Lessee or the
Lessee's agent at the Lessor's facility and shall end on the date
falling [DELETED] days after such delivery, unless extended by
written agreement between the Lessor and the Lessee within such
[DELETED] day period.
Notwithstanding the foregoing, the Lease Term shall end in the event
of, and upon the date that, the Lessee acquiring title to a Leased
Part as a result of exercise of the Lessee's option to purchase the
Leased Part, as provided for herein.
6.4 Lease Charges and Taxes
Lessee shall pay Lessor :
(i) a daily rental charge for the Lease Term for each Leased Part
equal to [DELETED] 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,
(ii) 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 a satisfactory condition for lease to
a subsequent customer,
(iii) all transportation and insurance charges and
(iv) any taxes, charges or custom duties imposed upon the Lessor or
its property as a result of the Lease, sale, delivery, storage
or transfer of any Leased Part. All payments due hereunder
shall be made in accordance with Clause 6.
6.5 Title
Title to each Leased Part shall remain with the Lessor at all times
unless the Lessee exercises its option to purchase in accordance
with Clause 6.9 in which case title shall pass to the Lessee upon
receipt by the Lessor of the payment for the purchased Leased Part.
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EXHIBIT I
6.6 Risk of Loss
Risk of loss or damage to each Leased Part shall remain with the
Lessee 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 Lessee shall be deemed to have
exercised its option to purchase the part in accordance with Clause
6.9 as of the date of such loss or damage.
6.7 Return of Leased Part
6.7.1 The Buyer shall at the end of the Lease Term return to the Lessor
each Leased Part to the return location specified in the applicable
Lease.
6.7.2 Except for normal wear and tear, each Leased Part shall be returned
to the Lessor in the same condition as when delivered to the Lessee.
However, the Lessee shall not without the Lessor's prior written
consent repair, modify or alter any Leased Part.
6.7.3 In the event of the Leased Part not having been returned to the
Lessor's designated facilities within the Lease Term, the Lessor
shall be entitled, in addition to any other remedy it may have by
law or under this Clause 6, to charge to the Lessee, and the Lessee
shall pay, all of the charges in this Clause 6.4 accruing for each
day after the end of the Lease Term that such Leased Part is not
returned to the Lessor as though the Lease Term were extended for
the period of such delay.
Further, should the Lessee fail to return the Leased Part to the
Lessor at the end of the Lease Term and if the Lessor so elects, by
giving prompt written notice to the Lessee, such failure shall be
deemed to be an election by the Lessee to purchase the Leased Part,
and upon the happening of such event the Lessee shall pay the Lessor
all amounts due under Clause 6.4 for the Leased Part up to the date
of such written notice by the Lessor plus the purchase price of the
Leased Part current at the commencement of the Lease Term.
6.8 Record of Flight Hours
The Lessee shall document all flight hours and cycles accumulated by
the Lessee on each Leased Part during the Lease Term. Records shall
be delivered to the Lessor upon return of such Leased Part to the
Lessor. In addition, all documentation pertinent to inspection,
maintenance and/or rework of the Leased Part as maintained
serviceable in accordance with the standards of the Lessor shall be
delivered to the Lessor upon return of the Leased Part to the Lessor
on termination of the Lease.
Such documentation shall include but not be limited to evidence of
incidents such as hard landings, abnormalities of operation and
corrective action taken by the Lessee as a result of such incidents.
<PAGE>
EXHIBIT I
6.9 Option to Purchase
6.9.1 The Lessee may at its option exercisable by written notice given to
the Lessor during the Lease Term, elect to purchase the Leased Part,
in which case the then current purchase price for such Leased Part
as set forth in the Seller's Spare Parts Price List shall be paid by
the Lessee to the Lessor. Such option shall be contingent upon the
Lessee providing the Lessor with evidence satisfactory to the Lessor
that the original part fitted to the Aircraft is beyond economical
repair. Should the Lessee exercise such option, [DELETED] percent
([DELETED] %) of the Lease rental charges already invoiced pursuant
to sub-Clause 6.4 (i) shall be credited to the Lessee against the
said purchase price of the Leased Part.
6.9.2 In the event of purchase, the Leased Part shall be warranted in
accordance with Clause 5 as though such Leased Part were a Seller
Part, but the warranty period shall be deemed to have commenced on
the date such part was first installed on any aircraft; provided,
however, that in no event shall such warranty period be less than
[DELETED] months from the date of purchase of such Leased Part. A
warranty granted under this Clause 6.9.2 shall be in substitution
for the warranty granted under Clause 6.10 at the commencement of
the Lease Term.
6.10 Warranties
6.10.1 The Lessor warrants that each Leased Part shall at the time of
delivery be free from defects in material and workmanship which
could materially impair the utility of the Leased Part.
6.10.2 Warranty and Notice Periods
The Lessee's remedy and the Lessor's obligation and liability under
this Clause 6.10, with respect to each defect, are conditioned upon:
(i) the defect having become apparent to the Lessee within the
Lease Term and
(ii) the return by the Lessee as soon as practicable to the return
location specified in the applicable Lease, or such other
place as may be mutually agreed upon, of the Leased Part
claimed to be defective and
(iii) the Lessor's warranty administrator having received written
notice of the defect from the Lessee within [DELETED] days
after the defect becomes apparent to the Lessee, with
reasonable proof that the claimed defect is due to a matter
embraced within the Lessor's warranty under this Clause 6.10
and that such defect did not result from any act or omission
of the Lessee, 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.
<PAGE>
EXHIBIT I
6.10.3 Remedies
The Lessee's remedy and the Lessor's obligation and liability under
this Clause 6.10 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 Clause 6.10.3 shall be
deemed to be the Leased Part so replaced.
6.10.4 Suspension and Transportation Costs
6.10.4.1 If a Leased Part is found to be defective and covered by this
warranty, the Lease Term and the Lessee's obligation to pay rental
charges as provided for in sub-Clause 6.4 (i) shall be suspended
from the date on which the Lessee notifies 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
Lessee has, promptly after giving such notice to the Lessor,
withdrawn such defective Leased Part from use. If the defective
Leased Part is replaced, such replaced part shall 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 Lessee
and is covered by this warranty, no rental charges as provided in
sub-Clause 6.4 (i) shall accrue and be payable by the Lessee until
the date on which the Lessor has repaired, corrected or replaced the
defective Leased Part.
6.10.4.2 All transportation and insurance costs of returning the defective
Leased Part and returning the repaired, corrected or replacement
part to the Lessee shall be borne by the Lessor.
6.10.5 Wear and Tear
Normal wear and tear and the need for regular maintenance and
overhaul shall not constitute a defect or non-conformance under this
Clause 6.10.
6.10.6 Waiver, Release and Renunciation
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LESSOR AND
REMEDIES OF THE LESSEE SET FORTH IN THIS CLAUSE 6 ARE EXCLUSIVE AND
IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND
RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE
SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE LESSEE AGAINST THE
SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT
TO ANY NON-CONFORMITY OR DEFECT IN ANY LEASED PART DELIVERED UNDER
THESE LEASING CONDITIONS INCLUDING BUT NOT LIMITED TO:
<PAGE>
EXHIBIT I
(A) ANY WARRANTY AGAINST HIDDEN DEFECTS (GARANTIE DES VICES
CACHES);
(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 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.
SELLER SHALL 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 LEASED PART DELIVERED UNDER THESE LEASING CONDITIONS.
<PAGE>
EXHIBIT I
APPENDIX "A" TO CLAUSE 6 OF EXHIBIT "H"
SELLER PARTS AVAILABLE FOR LEASING
AILERONS
APU DOORS
CARGO DOORS
PASSENGER DOORS
ELEVATORS
FLAPS
LANDING GEAR DOORS
RUDDER
TAIL CONE
SLATS
SPOILERS
AIRBRAKES
WING TIPS
WINGLETS
AND OTHER PARTS WHICH MAY BE PROVIDED BY THE SELLER FOR LEASING
<PAGE>
EXHIBIT I
7 TERMINATION OF SPARES PROCUREMENT COMMITMENTS
7.1 In the event of the Agreement being terminated with respect to any
Aircraft due to causes provided for in Clauses 10, 11 or 20 of the
Agreement, such termination may also affect the terms of this
Exhibit "H" to the extent set forth in Clause 7.2 below.
7.2 Any termination under Clauses 10, 11 or 20 of the Agreement shall
discharge all obligations and liabilities of the parties hereunder
with respect to such undelivered spare parts, services, data or
other items to be purchased hereunder which are applicable to those
Aircraft for which the Purchase Agreement has been terminated.
Unused spare parts in excess of the Buyer's requirements due to such
Aircraft cancellation shall be repurchased by the Seller as provided
for in Clause 4.5.2.
<PAGE>
Letter Agreement No 1
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: Purchase Incentives
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
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 provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1. [DELETED]
At the time of delivery of each Aircraft to the Buyer, the Seller shall
[DELETED]:
1.1 [DELETED]
1.2 [DELETED]
1.3 [DELETED]
1.4 [DELETED]
1.5 [DELETED]
1
<PAGE>
1.6 [DELETED]
1.7 [DELETED]
1.8 [DELETED]
1.8 [DELETED]
1.10 [DELETED]
1.11 [DELETED]
1.11 [DELETED]
2. DELETED]
2.1 [DELETED:
2.2 [DELETED]
2.2 [DELETED
2.4 [DELETED]
2.5 [DELETED]
2.5 [DELETED]
2.7 [DELETED]
2.8 [DELETED]
3. [DELETED]
3.1 [DELETED]
3.2 [DELETED]
3.2 [DELETED]
4. [DELETED]
4.1 [DELETED]
2
<PAGE>
5. [DELETED]
6. [DELETED]
6.1 [DELETED]
6.2 [DELETED]
7. [DELETED]
7.1 [DELETED:
7.2 [DELETED]
7.3 [DELETED]
8. [DELETED]
9. [DELETED]
10. ASSIGNMENT
Except as permitted by Clause 21 of the Agreement, this Letter Agreement
is not transferable, and the Buyer's rights under this Letter Agreement
shall not be assigned, sold, transferred or otherwise alienated by
operation of law or otherwise to any person. Any unauthorized assignment,
sale, transfer or other alienation of the Buyer's rights under this Letter
Agreement shall immediately void this Letter Agreement in its entirety.
3
<PAGE>
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AIRBUS INDUSTRIE G.I.E.
By : John J. LEAHY
-------------
Its : Senior Vice President, Commercial
---------------------------------
WITNESSED BY :
By :
Its :
Accepted and Agreed
GATX Flightlease Aircraft Company Ltd
By :
Its :
By :
Its :
4
<PAGE>
Letter Agreement No 2
GATX Flightlease Aircraft Company Ltd
September _________, 1999
Re: Order Flexibility
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
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 provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1. DELIVERY DATES
Table A attached hereto sets out the months of Scheduled Delivery for each
Aircraft ordered as per the Agreement.
2. CONVERSION RIGHTS
2.1 [DELETED] Family type conversion
In respect of all those [DELETED] ordered under the Agreement and to be
delivered[DELETED], the Buyer may convert any such Aircraft into [DELETED]
Upon written notice (the "Conversion Election Notice") delivered to the
Seller on or prior to the first day of the month that is:
[DELETED]
[DELETED]
1
<PAGE>
2.2 [DELETED] type conversions
In respect of all those [DELETED]
Upon written notice (the "Conversion Election Notice") delivered to the
Seller on or prior to the first day of the month that is [DELETED]
[DELETED]
[DELETED]
2.3 [DELETED] type conversions
[DELETED]
2.4 DELETED]
2.4.1 [DELETED]
2.4.2 [DELETED]
2.4.2 [DELETED]
3. CONVERSION PROCEDURE AND DELIVERY DATES
3.1 On or prior to the date that is [DELETED] days after the delivery of the
Conversion Election Notice (the "Expiration Date"), the Buyer and the
Seller shall enter into an Amendment (the "Conversion Amendment") to the
Agreement, to give effect to the conversion and to make any other
modification and supplementation thereto in accordance with the terms and
conditions hereunder.
Each Aircraft, upon due conversion hereunder into an order for another
model of Aircraft ([DELETED] as the case may be), shall be deemed to be a
[DELETED] provided that, notwithstanding anything to the contrary
contained herein [DELETED].
3.2 A delivery date for a Converted Aircraft will be indicated by the Seller
[DELETED]
3.3 Conversion of Aircraft into Converted Aircraft shall be effective upon
[DELETED].
3.4 It is further understood that any conversion that shall have been made
hereunder and agreed to by the Buyer and the Seller shall be irrevocable
and that thereafter there shall be no further conversion of Converted
Aircraft.
3.5 Upon the type conversion of an Aircraft pursuant to this Clause 3,
[DELETED]. Any such order resulting from conversion shall, [DELETED].4.
CONVERTED AIRCRAFT [DELETED]
4.1 [DELETED] Aircraft Specification
4.1.1 Should the Buyer decide to convert an Aircraft into a firmly ordered
[DELETED]
4.1.2 [DELETED]
[DELETED]
4.2. Propulsion Systems
4.2.1 The [DELETED][DELETED]
4.3. Prices for the [DELETED]
2
<PAGE>
4.3.1 The Basic Price of the Airframe of an [DELETED] is:
USD [DELETED] (US Dollars - [DELETED])
4.3.2 The Basic Price of the Airframe of an [DELETED]
USD [DELETED] (US Dollars -- [DELETED])
4.3.3 The Airframe Basic Price of each Aircraft has been established in
accordance with the average economic conditions prevailing in [DELETED]
and corresponding to theoretical delivery in [DELETED] and will be revised
to the actual delivery date of each Aircraft in accordance with [DELETED]
4.4 Basic Price of the Propulsion Systems
4.4.1 The [DELETED] Propulsion Systems
The Basic Price of a set of two [DELETED] Propulsion Systems including
standard equipment for the [DELETED]: USD [DELETED] (US Dollars --
[DELETED])Such Basic Price has been established in accordance with the
delivery conditions prevailing in [DELETED] and has been calculated from
the [DELETED].
4.4.2 The [DELETED] Propulsion Systems The Basic Price of a set of two [DELETED]
Propulsion Systems including standard equipment for the [DELETED] USD
[DELETED] [DELETED]Such Basic Price has been established in accordance
with the delivery conditions prevailing in [DELETED] and has been
calculated from the [DELETED]) in accordance with economic conditions
prevailing in [DELETED]
5 CONVERTED AIRCRAFT [DELETED]
5.1 [DELETED] Aircraft SpecificationShould [DELETED]
5.1.2 5.1.2 [DELETED] ,[DELETED]
5.2. [DELETED] Propulsion Systems
5.2.1 [DELETED]
5.2.2 [DELETED]
5.3. Prices for the [DELETED]
5.3.1 The Basic Price of the Airframe of an [DELETED]
USD [DELETED] (US Dollars -- [DELETED])
5.3.2 The Airframe Basic Price of each Aircraft has been established in
accordance with the average economic conditions prevailing in [DELETED]
and corresponding to a theoretical delivery in [DELETED] and will be
revised to the actual delivery date of each Aircraft in accordance with
the [DELETED].
5.4 Basic Price of the Propulsion Systems The Basic Prices and the Reference
Prices for the Propulsion Systems for the [DELETED]
6 CONVERTED AIRCRAFT [DELETED]
6.1 [DELETED] Aircraft Specification
6.1.1 Should the Buyer decide to convert an [DELETED][DELETED]
6.1.3 [DELETED]
6.1.4. [DELETED]
6.3. Prices for the [DELETED]The Basic Price of the [DELETED]
3
<PAGE>
USD [DELETED] (US Dollars [DELETED])
6.3.1 The Basic Price of each Aircraft has been established in accordance with
the average economic conditions prevailing in [DELETED] and corresponding
to a theoretical delivery in [DELETED] and will be revised to the actual
delivery date of each Aircraft in accordance with the Airframe Price
Revision Formula [DELETED].
7. CONVERTED AIRCRAFT [DELETED]
7.1 [DELETED] Aircraft Specification
7.1.1 Should the Buyer decide to convert an [DELETED].
7.1.2 [DELETED]
7.1.3 [DELETED]
7.1.4 [DELETED]
7.2. Prices for the [DELETED]The Basic Price of the [DELETED]
USD [DELETED] (US Dollars -- [DELETED])
[DELETED]CONVERTED AIRCRAFT [DELETED]
8.1 [DELETED] Aircraft Specification
8.1.1 Should the Buyer decide to convert [DELETED]
8.1.2 [DELETED]
8.1.3 [DELETED][DELETED]
8.2. Prices for the [DELETED]The Basic Price of the [DELETED]
USD [DELETED] (US Dollars -- [DELETED])
9. [DELETED] PROPULSION SYSTEMS
[DELETED] The following basic prices shall be applicable to the [DELETED]
10. [DELETED] PROPULSION SYSTEMS
10.1 [DELETED] [DELETED]
10.3 The Basic Price of the [DELETED]
USD [DELETED] (US Dollars -- [DELETED])
10.4 [DELETED]
11. [DELETED] PROPULSION SYSTEMS [DELETED]
12 ASSIGNMENT
Except as permitted by Clause 21 of the Agreement, this Letter Agreement
is not transferable, and the Buyer's rights under this Letter Agreement
shall not be assigned, sold, transferred or otherwise alienated by
operation of law or otherwise to any person. Any unauthorized assignment,
sale, transfer or other alienation of the Buyer's rights under this Letter
Agreement shall immediately void this Letter Agreement in its entirety.
4
<PAGE>
If the foregoing correctly sets forth our understanding, please execute
the orIginal and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AIRBUS INDUSTRIE G.I.E.
By : John J. LEAHY
-------------
Its : Senior Vice President, Commercial
---------------------------------
WITNESSED BY :
By :
Its :
Accepted and Agreed
GATX Flightlease Aircraft Company Ltd
By :
Its :
By :
Its :
5
<PAGE>
TABLE A
AIRCRAFT DELIVERY DATES
================================================================================
Year Aircraft Type and Aircraft
Month of Delivery Number
================================================================================
[DELETED] [DELETED] [DELETED) [DELETED]
- --------------------------------------------------------------------------------
[DELETED] [DELETED] [DELETED] [DELETED]
- --------------------------------------------------------------------------------
[DELETED] [DELETED] [DELETED] [DELETED]
- --------------------------------------------------------------------------------
[DELETED] [DELETED] [DELETED] [DELETED]
- --------------------------------------------------------------------------------
[DELETED] [DELETED] [DELETED] [DELETED]
- --------------------------------------------------------------------------------
[DELETED] [DELETED] [DELETED] [DELETED]
================================================================================
6
<PAGE>
Letter Agreement No 3
GATX Flightlease Aircraft Company Ltd
September , 1999
Re : Option Aircraft
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus industrie (the
"Seller"), have entered into an Airbus A320 Family and A330 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 Buyer of certain Aircraft
as described in the Specifications annexed to said Agreement. The Buyer 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 provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an integral,
nonseverable part of said Agreement and be governed by its provisions, except
that if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter Agreement
shall govern.
1
<PAGE>
1. OPTION AND OPTION EXERCISE
1.1 Option
[DELETED]
1.2 Option Exercise
1.2.1 The formal exercise of the Buyer's option to firmly purchase the Option
Aircraft granted to the Buyer in accordance with the terms of this Letter
Agreement No 3 shall be made by written notice from the Buyer to the
Seller given at [DELETED].
1.2.2
1.2.2 [DELETED]
1.2.3 [DELETED]
1.2.3 [DELETED]
1.3 [DELETED]
2. [DELETED]
2.1 [DELETED]
3. OPTION FEES
[DELETED]
4. [DELETED]
4.1 [DELETED]
4.2 [DELETED]
4.3 [DELETED]
5. [DELETED]
2
<PAGE>
6. ASSIGNMENT
Except as permitted by Clause 21 of the Agreement, this Letter Agreement
is not transferable, and the Buyer's rights under this Letter Agreement
shall not be assigned, sold, transferred or otherwise alienated by
operation of law or otherwise to any person. Any unauthorized assignment,
sale, transfer or other alienation of the Buyer's rights under this Letter
Agreement shall immediately void this Letter Agreement in its entirety.
3
<PAGE>
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AIRBUS INDUSTRIE G.I.E.
By : John J. LEAHY
-------------
Its : Senior Vice President, Commercial
---------------------------------
WITNESSED BY :
By :
Its :
Accepted and Agreed
GATX Flightlease Aircraft Company Ltd
By :
Its :
By :
Its :
4
<PAGE>
SCHEDULE A
The Flightlease Options with their corresponding months of scheduled delivery:
[DELETED]
5
<PAGE>
Letter Agreement No 4
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: Product Support [DELETED]
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
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 provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1. [DELETED] PRODUCT SUPPORT [DELETED]
1.1 [DELETED]
1.2 [DELETED]
1.3 [DELETED]
2. [DELETED]
2.1 [DELETED]
2.2 [DELETED]
3 SUPPORT ENTITLEMENT
In the event of any material default (comprising non-payment of
predelivery payments, failure on the due date to pay an aircraft final
contract price or to take delivery of an aircraft when validly due for
delivery) by the Buyer under the Agreement, or any other agreement from
time to time between the Buyer and the Seller for the sale and purchase of
aircraft, then any usage [DELETED] shall be immediately suspended, unless
and until such material default is cured or remedied.
In addition, should the Seller terminate all or part of the Agreement in
respect of undelivered Aircraft and in accordance with Clause 20 of the
Agreement, then the product support [DELETED] hereunder shall be deemed
cancelled.
4 ASSIGNMENT
Except as permitted by Clause 21 of the Agreement, this Letter Agreement
is not transferable, and the Buyer's rights under this Letter Agreement
shall not be assigned, sold, transferred or otherwise alienated by
operation of law or otherwise to any person. Any unauthorized assignment,
sale, transfer or other alienation of the Buyer's rights under this Letter
Agreement shall immediately void this Letter Agreement in its entirety.
2
<PAGE>
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AIRBUS INDUSTRIE G.I.E.
By : John J. LEAHY
-------------
Its : Senior Vice President, Commercial
---------------------------------
WITNESSED BY :
By :
Its :
Accepted and Agreed
GATX Flightlease Aircraft Company Ltd
By :
Its :
By :
Its :
<PAGE>
Letter Agreement No 5
September ________, 1999
GATX Flightease Aircraft Company Ltd
Re:TECHNICAL AND OPERATORS MATTERS
Dear Sir:
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an Airbus A320 Family and A330 Aircraft
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 Buyer
of certain Aircraft. The Buyer 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. The terms "herein," "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Except as provided by Subclause 22.6 of the Agreement, both parties agree
that this Letter Agreement shall constitute an integral, nonseverable part of
the Agreement, that the provisions of the Agreement are hereby incorporated
herein by reference, and that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions contained in
this Letter Agreement shall govern.
1
<PAGE>
1. AIRCRAFT WARRANTY AND SERVICE LIFE POLICY
1.1 The Seller agrees that for [DELETED]
(i) [DELETED]
(ii) [DELETED]
(iii) [DELETED]
(iv) DELETED]
(v) DELETED]
1.2 [DELETED]
1.3 [DELETED]
1.4 [DELETED]
1.5 [DELETED]
2. [DELETED]/SERVICE BULLETIN
[DELETED]
3. [DELETED] WARRANTY
[DELETED] Subclause 12.1 of the Agreement shall [DELETED]
4. [DELETED] WARRANTY/SLP COMMITMENTS
[DELETED]
5 WARRANTY ASSIGNMENT MATTERS
5.1 The Seller acknowledges that Buyer will not generally act as an operator
of the Aircraft it purchases under this Agreement, but will act as a
lessor of such Aircraft to various lessees from time to time or may,
subject to the conditions of Clause 21 of the Agreement, otherwise
transfer the Aircraft to a third party pursuant to a financing or lease
arrangement. The Seller agrees that the Buyer may assign any or all of its
rights and obligations under Clauses 12.1, 12.3, 12.4 and 13 of the
Agreement to an Operator, subject to the terms and conditions of Subclause
21.3 of the Agreement.
5.2 [DELETED]
5.3 [DELETED]
6. [DELETED]
2
<PAGE>
7. MTOW INCREASE
7.1 [DELETED]
7.2 [DELETED]
7.3 [DELETED]
7.3 [DELETED]
8. AIRCRAFT TECHNICAL ACCEPTANCE
8.1 The Seller acknowledges and agrees that the Buyer may elect to have
representatives of its Operators (or representatives of a third party
designated by the Buyer) participate in the Aircraft Technical Acceptance
Process to be performed pursuant to Clause 8 of the Agreement. At the
Buyer's request, the Seller shall accommodate the participation of a
reasonable number of such representatives during such Technical Acceptance
Process in accordance with the provisions of Clause 8 of the Agreement,
subject to : (i) the Buyer having designated in writing such
representatives to the Seller and (ii) such representatives having
acknowledged in writing in a form reasonably satisfactory to the Seller,
their agreement to be bound and to comply with the requirements of sub
-Clauses 8.1, 8.2 and 19.1 of the Agreement.
8.2 [DELETED:
9. [DELETED]
10. [DELETED]
11. AIRCRAFT CUSTOMIZATION [DELETED]
11.1 The Seller's current leadtimes for the final selection by the Buyer of
standard options contained in the Systems Configuration Guide (SCG) and
the Cabin Configuration Guide (CCG) are respectively [DELETED] prior to
the month of scheduled delivery for [DELETED] Family and [DELETED]
Aircraft and [DELETED] prior to the month of scheduled delivery for
[DELETED] Aircraft.
11.2 [DELETED]
12. AIRCRAFT BASELINE CONFIGURATIONS
Within [DELETED] following the execution of the Agreement the parties
agree to amend the Agreement in order to include for the A320, A321 and
A330 Aircraft a list of Specification Change Notices that will constitute
for each Aircraft type a baseline customization of the Standard
Specification. The parties shall define the [DELETED] Aircraft baseline
configuration as provided for above by not later than [DELETED]. Such
baseline configurations shall be established on the basis of the lists of
possible baseline SCNs illustrated for each Aircraft types in [DELETED] to
the Agreement (as such may be complemented and modified at the Buyer's
request). [DELETED].
13. [DELETED] QUOTATIONS
14. A330 ETOPS REQUIREMENTS
3
<PAGE>
15. ASSIGNMENT
Except as permitted by Clause 21 of the Agreement, this Letter Agreement
is not transferable, and the Buyer's rights under this Letter Agreement
shall not be assigned, sold, transferred or otherwise alienated by
operation of law or otherwise to any person. Any unauthorized assignment,
sale, transfer or other alienation of the Buyer's rights under this Letter
Agreement shall immediately void this Letter Agreement in its entirety.
4
<PAGE>
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AIRBUS INDUSTRIE G.I.E.
By : John J. LEAHY
-------------
Its : Senior Vice President, Commercial
---------------------------------
WITNESSED BY :
By :
Its :
Accepted and Agreed
GATX Flightlease Aircraft Company Ltd
By :
Its :
By :
Its :
<PAGE>
Letter Agreement No. 6
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re : Order AlIocation
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the specification annexed to 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 provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1. [DELETED] CERTAIN AIRCRAFT
1.1 Eligible Aircraft
[DELETED]
1.2 Conditions for the [DELETED]
1.2.1 [DELETED]
1.2.2 [DELETED]
1.3 [DELETED]
2. [DELETED] AIRCRAFT
[DELETED]
3. ASSIGNMENT
Except as permitted by Clause 21 of the Agreement, this Letter Agreement
is not transferable, and the Buyer's rights under this Letter Agreement
shall not be assigned, sold, transferred or otherwise alienated by
operation of law or otherwise to any person. Any unauthorized assignment,
sale, transfer or other alienation of the Buyer's rights under this Letter
Agreement shall immediately void this Letter Agreement in its entirety.
2
<PAGE>
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AIRBUS INDUSTRIE G.I.E.
By : John J. LEAHY
-------------
Its : Senior Vice President, Commercial
---------------------------------
WITNESSED BY :
By :
Its :
Accepted and Agreed
GATX Flightlease Aircraft Company Ltd
By :
Its :
By :
Its :
3
<PAGE>
Letter Agreement No 7
GAIX Flightlease Aircraft Company Ltd
September 16, 1999
Re : [DELETED]
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.l.E. (the "Seller"), have entered into an A320 Family and A330 Purchase
Agreement dated as of even date herewith (the "Agreement"), which covers, among
other things, the safe by the Seller and the purchase by the Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
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 provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern
1
<PAGE>
1. [DELETED]
2. ASSIGNMENT
Except as permitted by Clause 21 of the Agreement, this Letter Agreement
is not transferable, and the Buyer's rights under this Letter Agreement
shall not be assigned, sold, transferred or otherwise alienated by
operation of law or otherwise to any person. Any unauthorized assignment,
sale, transfer or other alienation of the Buyer's rights under this Letter
Agreement shall immediately void this Letter Agreement in its entirety.
2
<PAGE>
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AIRBUS INDUSTRIE G.I.E.
By : John J. LEAHY
-------------
Its : Senior Vice President, Commercial
---------------------------------
WITNESSED BY :
By :
Its :
Accepted and Agreed
GATX Flightlease Aircraft Company Ltd
By :
Its :
By :
Its :
3
<PAGE>
Letter Agreement No 8
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: [DELETED] Performance Guarantees
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
and the Seller have agreed to set forth in this Letter Agreement No. 8 (the
"Letter Agreement") certain additional terms and conditions regarding the sale
of the Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1 AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to
the [DELETED] Aircraft as described in the Standard Specification
defined below without taking into account any further changes
thereto as provided in the Agreement (the "Specification" for the
purposes of this Letter Agreement).
1.1 [DELETED]
Standard Specification: [DELETED]
Propulsion systems: [DELETED)
Maximum Take-Off Weight: [DELETED] kg
Maximum Landing Weight: [DELETED] kg
Maximum Zero Fuel Weight: [DELETED] kg
2 GUARANTEED PERFORMANCE
[DELETED]
2.1 Specific range
The nautical miles per kilogram of fuel at an Aircraft gross weight
of "A" kg at a pressure altitude of "B" feet in ISA conditions at an
airspeed or true Mach number of "C" shall be not less than a value
of "D" nautical miles per kilogram.
"A" "B" "C" "D"
2.1.1 [DELETED] kg [DELETED] ft [DELETED] [DELETED] nm/kg
2.1.2 [DELETED] kg [DELETED] ft [DELETED] [DELETED] nm/kg
2.1.3 [DELETED] kg [DELETED] ft [DELETED] knots CAS [DELETED] nm/kg
2.1.4 The average nautical miles per kilogram of fuel of the specific
ranges defined under Paragraphs 2.1.1 to 2.1.2 above and on which
the compliance shall be based shall be not less than a guaranteed
value of [DELETED] nm/kg
2
<PAGE>
2.2 Take-off
The JAR/FAR take-off field length at an Aircraft gross weight of
[DELETED] kg at the start of ground run at sea level pressure
altitude in ISA+15(degrees)C conditions shall not be more than a
guaranteed value of [DELETED] meters.
2.3 [DELETED]
2.4 [DELETED]
2.5 [DELETED]
2.6 [DELETED]
2.7 [DELETED]
2.8 [DELETED]
3 MISSION GUARANTEES
3.1 Mission Range
The Aircraft shall be capable of carrying a Zero Fuel Weight of
[DELETED] kg over a guaranteed still air stage distance of not less
than [DELETED] nautical miles when operated under the conditions
defined below:
3.1.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without any restriction.
3.1.2 An allowance of [DELETED] of fuel is included for engine start and
taxi-out at departure airport.
3.1.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.1.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitude of [DELETED] ft, /
[DELETED] ft, and descent to [DELETED] ft above the destination
airport are conducted in ISA conditions. Climb and descent speeds
below [DELETED] ft shall be [DELETED] knots CAS.
3.1.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.1.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3
<PAGE>
3.1.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.1.4 above.
Block fuel is defined as the fuel used during taxi, take off, climb,
cruise, descent, approach and landing as described in paragraphs
3.1.2 to 3.1.6 inclusive above.
3.1.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at [DELETED] ft
above the airports
4) Fixed allowance of [DELETED] kg of fuel
4
<PAGE>
3.2 Mission Fuel Burn Guarantee
When carrying a Zero Fuel Weight of [DELETED] kg over a still air
stage distance of [DELETED] nautical miles, the Aircraft shall burn
not more than a guaranteed value of [DELETED] kg of block fuel, when
operated under the conditions defined below;
3.2.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction.
The destination airport conditions are such as to allow the required
landing weight to be used without any restriction.
3.2.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.2.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.2.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitude of [DELETED] ft/
[DELETED] ft and descent to [DELETED] ft above the destination
airport are conducted in ISA conditions.
Climb and descent speeds below [DELETED] ft shall be [DELETED] knots
CAS.
3.2.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.2.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.2.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.2.4 above.
Block fuel is defined as the fuel used during taxi, take off, climb,
cruise, descent, approach and landing as described in paragraphs
3.2.2 to 3.2.6 inclusive above.
3.2.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for;
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at [DELETED] ft
above the airports
4) Fixed allowance of [DELETED] kg of fuel
5
<PAGE>
4 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees that the Manufacturer's Weight Empty as
defined in Section 13-10 of the Specification as defined in
Paragraph 1, plus the weight of unusable fuel and oil for engines
and APU, and which shall be derived from the weighing of the
Aircraft, shall not be more than [DELETED].
The Manufacturer's Weight Empty is subject to adjustment as defined
in Paragraph 11.2 below,
5 [DELETED]
6
7 7. [DELETED]
8 [DELETED]
6
<PAGE>
9 GUARANTEE CONDITIONS
9.1.1 The performance certification requirements for the Aircraft, except
where otherwise noted, shall be as stated in Section 02 of the
Specification.
9.1.2 For the determination of JAR/FAR take-off and landing performance a
hard level dry runway surface with no runway strength limitation, no
obstacle, zero wind, atmosphere according to ISA, except as
otherwise stated, and the use of speedbrakes, flaps, associated
speeds, landing gear and engines in the conditions liable to provide
the best results shall be assumed.
9.1.3 When establishing take-off and second segment performance no air
shall be bled from the engines for cabin air conditioning or
anti-icing, unless otherwise noted.
9.1.4 Climb, cruise and descent performance associated with the Guarantees
shall include allowances for normal electrical load and for normal
engine air bleed and power extraction associated with maximum cabin
differential pressure as defined in Section 21-30.31 of the
Specification. Cabin air conditioning management during performance
demonstration as described in Paragraph 10.3 may be such as to
optimize the Aircraft performance while meeting the minimum air
conditioning requirements defined above. Unless otherwise stated no
air shall be bled from the engines for anti-icing.
Cruise performance at [DELETED] ft and above is based on a center of
gravity position of TBD % MAC, unless otherwise stated.
9.1.5 The engines shall be operated at maximum certified take-off thrust
for take-off and using not more than the engine manufacturer's
maximum recommended outputs for maximum go-round, maximum
continuous, maximum climb and cruise for normal operation unless
otherwise stated.
9.1.6 Where applicable the Guarantees assume the use of an approved fuel
having a Lower Heating Value of [DELETED] BTU/lb and a density of
[DELETED] kg/litre.
7
<PAGE>
10 GUARANTEE COMPLIANCE
10.1 Compliance with the Guarantees shall be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless
otherwise stated.
10.2 Compliance with the take-off[DELETED], approach and landing elements
of the Guarantees shall be demonstrated with reference to the
approved Flight Manual.
10.3 Compliance with those parts of the Guarantees not covered by the
requirements of the certifying Airworthiness Authority shall be
demonstrated by calculation based on data obtained during flight
tests conducted on one (or more, at the Seller's discretion)
[DELETED] Aircraft of the same configuration as those Aircraft
purchased by the Buyer.
10.4 Compliance with the Manufacturer's Weight Empty Guarantee shall be
demonstrated with reference to a weight compliance report.
10.5 [DELETED]
10.6 Data derived from tests [DELETED] surveys shall be adjusted as
required using conventional methods of correction, interpolation or
extrapolation in accordance with established aeronautical practices
to show compliance with the Guarantees.
10.7 Compliance with the Guarantees is based but not contingent on the
engine performance defined in the engine manufacturer's
specification.
10.8 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as
possible after, the delivery of each of the Buyer's [DELETED]
Aircraft.
11 ADJUSTMENT OF GUARANTEES
11.1 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 shall be
appropriately modified to reflect the effect of any such change.
11.2 The Guarantees apply to the Aircraft as described in Paragraph 1 and
may be adjusted in the event of:
a) Any further configuration change requested by the Buyer,
which is the subject of a SCN.
b) Variation in actual weights of items defined in Section
13-10.O2.03 of the Standard Specification.
8
<PAGE>
12 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided for in lieu of any and
all other performance, noise and weight guarantees of any nature
which may be stated, referenced or incorporated in the Specification
or any other document.
13 UNDERTAKING REMEDIES
Should any Aircraft fail to meet any of the Guarantees contained in
this Letter Agreement, the Seller will, before, at, or after
delivery of the affected Aircraft, use its best endeavours to
correct the deficiency to comply with the subject guarantee.
[DELETED]
13.1 [DELETED]
13.2 [DELETED]
14 ASSIGNMENT
The Seller's undertaking and the remedies of the Performance
Guarantees to be provided by the Seller hereunder shall be
assignable to the Buyer's operators, in the event that an operator
for the Buyer's Aircraft makes a specific request for performance
guarantees. The Buyer shall consult the Seller in advance of any
such assignment.
9
<PAGE>
If the foregoing correctly sets forth our understanding, please execute
two (2) originals in the space provided below and return one (1) original
of this Letter Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
GATX Flightlease
Aircraft Company Ltd. AIRBUS INDUSTRIE
By : _____________________________
Its : _____________________________
By : _____________________________
Its : _____________________________
Date : ____________________________
10
<PAGE>
Letter Agreement No 9A
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: [DELETED] Performance Guarantees
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
and the Seller have agreed to set forth in this Letter Agreement No. 9A (the
"Letter Agreement") certain additional terms and conditions regarding the sale
of the Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1 AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to
the [DELETED] Aircraft as described in the Standard Specification
defined below without taking into account any further changes
thereto as provided in the Agreement (the "Specification" for the
purposes of this Letter Agreement).
1.1 [DELETED]
Standard Specification: [DELETED]
SCN's: for the fitting of [DELETED] propulsion system and
for increase in design weights to:
Maximum Take-Off Weight: [DELETED] kg
Maximum Landing Weight: [DELETED] kg
Maximum Zero Fuel Weight: [DELETED] kg
2 GUARANTEED PERFORMANCE
[DELETED]
2.1 Specific Range
The nautical miles per kilogram of fuel at an Aircraft gross weight
of "A" kg at a pressure altitude of "B" feet in ISA conditions at an
airspeed or true Mach number of "C" shall be not less than a value
of "D" nautical miles per kilogram.
"A" "B" "C" "D"
2.1.1 [DELETED] kg [DELETED] ft [DELETED] [DELETED] nm/kg
2.1.2 [DELETED] kg [DELETED] ft [DELETED] [DELETED] nm/kg
2.1.3 [DELETED] kg [DELETED] ft [DELETED] knots CAS [DELETED] nm/kg
2.1.4 The average nautical miles per kilogram of fuel of the specific
ranges defined under Paragraphs 2.1.1 to 2.1.2 above and on which
the compliance shall be based shall be not less than a guaranteed
value of [DELETED] nm/kg
2
<PAGE>
2.2 Take-off
The JAR/FAR take-off field length at an Aircraft gross weight of
[DELETED] kg at the start of ground run at sea level pressure
altitude in ISA+15(degree)C conditions shall not be more than a
guaranteed value of [DELETED] meters.
[DELETED]
[DELETED]
[DELETED]
2.7 [DELETED]
2.8 [DELETED]
[DELETED]
3 MISSION GUARANTEES
3.1 Mission Range
The Aircraft shall be capable of carrying a Zero Fuel Weight of
[DELETED] kg over a guaranteed still air stage distance of not less
than [DELETED] nautical miles when operated under the conditions
defined below:
3.1.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.1.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.1.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.1.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitude of [DELETED] ft and
descent to [DELETED] ft above the destination airport are conducted
in ISA conditions. Climb and descent speeds below [DELETED] ft shall
be [DELETED] knots CAS.
3.1.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.1.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.1.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.1.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.1.2 to
3.1.6 inclusive above.
3
<PAGE>
3.1.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at [DELETED] ft
above the airports
4) Fixed allowance of [DELETED] kg of fuel
4
<PAGE>
3.2 Mission Fuel Burn Guarantee
When carrying a Zero Fuel Weight of [DELETED] kg over a still air
stage distance of [DELETED] nautical miles, the Aircraft shall burn
not more than a guaranteed value of [DELETED] kg of block fuel, when
operated under the conditions defined below:
3.2.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.2.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.2.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.2.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitudes of [DELETED] ft and
descent to [DELETED] ft above the destination airport are conducted
in ISA conditions. Climb and descent speeds below [DELETED] ft shall
be [DELETED] knots CAS.
3.2.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.2.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.2.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.2.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.2.2 to
3.2.6 inclusive above.
3.2.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks. This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED] ft above the airports
4) Fixed allowance of [DELETED] kg of fuel
5
<PAGE>
4 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees that the Manufacturer's Weight Empty as defined in
Section 13-10 of the Specification as defined in Paragraph 1, plus the
weight of unusable fuel and oil for engines and APU, and which shall be
derived from the weighing of the Aircraft, shall not be more
than[DELETED].
The Manufacturer's Weight Empty is subject to adjustment as defined in
Paragraph 10.2 below.
5 [DELETED]
5.1 [DELETED]
[DELETED]
[DELETED]
8 GUARANTEE CONDITIONS
8.1.1 The performance certification requirements for the Aircraft, except
where otherwise noted, shall be as stated in Section 02 of the
Specification.
8.1.2 For the determination of JAR/FAR take-off and landing performance a
hard level dry runway surface with no runway strength limitation, no
obstacle, zero wind, atmosphere according to ISA, except as
otherwise stated, and the use of speedbrakes, flaps, associated
speeds, landing gear and engines in the conditions liable to provide
the best results shall be assumed.
8.1.3 When establishing take-off and second segment performance no air
shall be bled from the engines for cabin air conditioning or
anti-icing, unless otherwise noted.
8.1.4 Climb, cruise and descent performance associated with the Guarantees
shall include allowances for normal electrical load and for normal
engine air bleed and power extraction associated with maximum cabin
differential pressure as defined in Section 21-30.31 of the
Specification. Cabin air conditioning management during performance
demonstration as described in Paragraph 9.3 may be such as to
optimize the Aircraft performance while meeting the minimum air
conditioning requirements defined above. Unless otherwise stated no
air shall be bled from the engines for anti-icing.
Cruise performance at [DELETED] ft and above is based on a center of
gravity position of [DELETED] % MAC, unless otherwise stated.
8.1.5 The engines shall be operated at maximum certified take-off thrust
for take-off and using not more than the engine manufacturer's
maximum recommended outputs for maximum go-round, maximum
continuous, maximum climb and cruise for normal operation unless
otherwise stated.
6
<PAGE>
8.1.6 Where applicable the Guarantees assume the use of an approved fuel
having a Lower Heating Value of [DELETED] BTU/lb and a density of
[DELETED] kg/litre.
9 GUARANTEE COMPLIANCE
9.1 Compliance with the Guarantees shall be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless otherwise
stated.
9.2 Compliance with the take-off [DELETED] and landing elements of the
Guarantees shall be demonstrated with reference to the approved Flight
Manual.
9.3 Compliance with those parts of the Guarantees not covered by the
requirements of the certifying Airworthiness Authority shall be
demonstrated by calculation based on data obtained during flight tests
conducted on one (or more, at the Seller's discretion) [DELETED] Aircraft
of the same configuration as those Aircraft purchased by the Buyer.
9.4 Compliance with the Manufacturer's Weight Empty Guarantee shall be
demonstrated with reference to a weight compliance report.
[DELETED]
9.5 Data derived from tests [DELETED] surveys shall be adjusted as required
using conventional methods of correction, interpolation or extrapolation
in accordance with established aeronautical practices to show compliance
with the Guarantees.
9.6 Compliance with the Guarantees is based but not contingent on the engine
performance defined in the engine manufacturer's specification.
9.7 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the Buyer's [DELETED] Aircraft.
10 ADJUSTMENT OF GUARANTEES
10.1 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 shall be appropriately modified to
reflect the effect of any such change.
10.2 The Guarantees apply to the Aircraft as described in Paragraph 1 and may
be adjusted in the event of:
a) Any further configuration change requested by the Buyer, which
is the subject of a SCN.
b) Variation in actual weights of items defined in Section
13-10.02.03 of the Standard Specification.
7
<PAGE>
10.3 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided for in lieu of any and
all other performance, noise and weight guarantees of any nature
which may be stated, referenced or incorporated in the Specification
or any other document.
11 UNDERTAKING REMEDIES
Should any Aircraft fail to meet any of the Guarantees contained in
this Letter Agreement, the Seller will, before, at, or after
delivery of the affected Aircraft, use its best endeavours to
correct the deficiency to comply with the subject guarantee.
[DELETED]
[DELETED]
12 ASSIGNMENT
The Seller's undertaking and the remedies of the Performance
Guarantees to be provided by the Seller hereunder shall be
assignable to the Buyer's operators, in the event that an operator
for the Buyer's Aircraft makes a specific request for performance
guarantees. The Buyer shall consult the Seller in advance of any
such assignment.
8
<PAGE>
If the foregoing correctly sets forth our understanding, please
execute two (2) originals in the space provided below and return one
(1) original of this Letter Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
GATX Flightlease
Aircraft Company Ltd. AIRBUS INDUSTRIE
By : _____________________________
Its : _____________________________
By : _____________________________
Its : _____________________________
Date : ___________________________
9
<PAGE>
Letter Agreement No 9B
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: [DELETED] Performance Guarantees
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
and the Seller have agreed to set forth in this Letter Agreement No. 9B (the
"Letter Agreement") certain additional terms and conditions regarding the sale
of the Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1 AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to
the [DELETED] Aircraft as described in the Standard Specification
defined below without taking into account any further changes
thereto as provided in the Agreement (the "Specification" for the
purposes of this Letter Agreement).
1.1 A320-200
Standard Specification: [DELETED]
SCN's: for the fitting of [DELETED] propulsion system and
for increase in design weights to:
Maximum Take-Off Weight: [DELETED] kg
Maximum Landing Weight: [DELETED] kg
Maximum Zero Fuel Weight: [DELETED] kg
2 GUARANTEED PERFORMANCE
[DELETED]
2.1 Specific Range
The nautical miles per kilogram of fuel at an Aircraft gross weight
of "A" kg at a pressure altitude of "B" feet in ISA conditions at an
airspeed or true Mach number of "C" shall be not less than a value
of "D" nautical miles per kilogram.
"A" "B" "C" "D"
2.1.1 [DELETED] kg [DELETED] ft [DELETED] [DELETED] nm/kg
2.1.2 [DELETED] kg [DELETED] ft [DELETED] [DELETED] nm/kg
2.1.3 [DELETED] kg [DELETED] ft [DELETED] knots CAS [DELETED] nm/kg
2.1.4 The average nautical miles per kilogram of fuel of the specific
ranges defined under Paragraphs 2.1.1 to 2.1.2 above and on which
the compliance shall be based shall be not less than a guaranteed
value of [DELETED] nm/kg
2
<PAGE>
2.2 Take-off
The JAR/FAR take-off field length at an Aircraft gross weight of
[DELETED] kg at the start of ground run at sea level pressure
altitude in ISA+15(degree)C conditions shall not be more than a
guaranteed value of [DELETED] meters.
[DELETED]
[DELETED] [DELETED]
[DELETED]
[DELETED]
[DELETED]
3 MISSION GUARANTEES
3.1 Mission Range
The Aircraft shall be capable of carrying a Zero Fuel Weight of
[DELETED] kg over a guaranteed still air stage distance of not less
than [DELETED] nautical miles when operated under the conditions
defined below:
3.1.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.1.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.1.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.1.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitude of [DELETED] ft and
descent to [DELETED] ft above the destination airport are conducted
in ISA conditions. Climb and descent speeds below [DELETED] ft shall
be [DELETED] knots CAS.
3.1.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.1.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.1.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.1.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.1.2 to
3.1.6 inclusive above.
3.1.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
3
<PAGE>
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED] ft above the airports
4) Fixed allowance of [DELETED] kg of fuel
4
<PAGE>
3.2 Mission Fuel Burn Guarantee
When carrying a Zero Fuel Weight of [DELETED] kg over a still air
stage distance of [DELETED] nautical miles, the Aircraft shall burn
not more than a guaranteed value of [DELETED] kg of block fuel, when
operated under the conditions defined below:
3.2.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.2.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.2.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.2.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitudes of [DELETED] ft and
descent to [DELETED] ft above the destination airport are conducted
in ISA conditions. Climb and descent speeds below [DELETED] ft shall
be [DELETED] knots CAS.
3.2.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.2.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.2.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.2.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.2.2 to
3.2.6 inclusive above.
3.2.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED] ft above the airports
4) Fixed allowance of [DELETED] kg of fuel
5
<PAGE>
4 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees that the Manufacturer's Weight Empty as
defined in Section 13-10 of the Specification as defined in
Paragraph 1, plus the weight of unusable fuel and oil for engines
and APU, and which shall be derived from the weighing of the
Aircraft, shall not be more than [DELETED].
The Manufacturer's Weight Empty is subject to adjustment as defined
in Paragraph 10.2 below.
5 [DELETED]
[DELETED]
6 [DELETED]
7 GUARANTEE CONDITIONS
7.1.1 The performance certification requirements for the Aircraft, except
where otherwise noted, shall be as stated in Section 02 of the
Specification.
7.1.2 For the determination of JAR/FAR take-off and landing performance a
hard level dry runway surface with no runway strength limitation, no
obstacle, zero wind, atmosphere according to ISA, except as
otherwise stated, and the use of speedbrakes, flaps, associated
speeds, landing gear and engines in the conditions liable to provide
the best results shall be assumed.
7.1.3 When establishing take-off and second segment performance no air
shall be bled from the engines for cabin air conditioning or
anti-icing, unless otherwise noted.
7.1.4 Climb, cruise and descent performance associated with the Guarantees
shall include allowances for normal electrical load and for normal
engine air bleed and power extraction associated with maximum cabin
differential pressure as defined in Section 21-30.31 of the
Specification. Cabin air conditioning management during performance
demonstration as described in Paragraph 9.3 may be such as to
optimize the Aircraft performance while meeting the minimum air
conditioning requirements defined above. Unless otherwise stated no
air shall be bled from the engines for anti-icing.
Cruise performance at [DELETED] ft and above is based on a center of
gravity position of [DELETED] % MAC, unless otherwise stated.
7.1.5 The engines shall be operated at maximum certified take-off thrust
for take-off and using not more than the engine manufacturer's
maximum recommended outputs for maximum go-round, maximum
continuous, maximum climb and cruise for normal operation unless
otherwise stated.
6
<PAGE>
7.1.6 Where applicable the Guarantees assume the use of an approved fuel
having a Lower Heating Value of [DELETED] BTU/lb and a density of
[DELETED] kg/litre.
8 GUARANTEE COMPLIANCE
9
9.1 Compliance with the Guarantees shall be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless otherwise
stated.
9.2 Compliance with the take-off [DELETED] and landing elements of the
Guarantees shall be demonstrated with reference to the approved Flight
Manual.
9.3 Compliance with those parts of the Guarantees not covered by the
requirements of the certifying Airworthiness Authority shall be
demonstrated by calculation based on data obtained during flight tests
conducted on one (or more, at the Seller's discretion) [DELETED] Aircraft
of the same configuration as those Aircraft purchased by the Buyer.
9.4 Compliance with the Manufacturer's Weight Empty Guarantee shall be
demonstrated with reference to a weight compliance report.
9.5 [DELETED]
9.6 Data derived from tests [DELETED] surveys shall be adjusted as required
using conventional methods of correction, interpolation or extrapolation
in accordance with established aeronautical practices to show compliance
with the Guarantees.
9.7 Compliance with the Guarantees is based but not contingent on the engine
performance defined in the engine manufacturer's specification.
9.8 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the Buyer's [DELETED] Aircraft.
10 ADJUSTMENT OF GUARANTEES
10.1 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 shall be appropriately modified to
reflect the effect of any such change.
10.2 The Guarantees apply to the Aircraft as described in Paragraph 1 and may
be adjusted in the event of:
a) Any further configuration change requested by the Buyer, which
is the subject of a SCN.
b) Variation in actual weights of items defined in Section
13-10.02.03 of the Standard Specification.
7
<PAGE>
10.3 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided for in lieu of any and
all other performance, noise and weight guarantees of any nature
which may be stated, referenced or incorporated in the Specification
or any other document.
11 UNDERTAKING REMEDIES
Should any Aircraft fail to meet any of the Guarantees contained in this
Letter Agreement, the Seller will, before, at, or after delivery of the
affected Aircraft, use its best endeavours to correct the deficiency to
comply with the subject guarantee.
[DELETED]
[DELETED]
[DELETED]
12 ASSIGNMENT
The Seller's undertaking and the remedies of the Performance
Guarantees to be provided by the Seller hereunder shall be
assignable to the Buyer's operators, in the event that an operator
for the Buyer's Aircraft makes a specific request for performance
guarantees. The Buyer shall consult the Seller in advance of any
such assignment.
8
<PAGE>
If the foregoing correctly sets forth our understanding, please
execute two (2) originals in the space provided below and return one
(1) original of this Letter Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
GATX Flightlease
Aircraft Company Ltd. AIRBUS INDUSTRIE
By : _____________________________
Its : _____________________________
By : _____________________________
Its : _____________________________
Date : ___________________________
9
<PAGE>
Letter Agreement No 10A
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: [DELETED] Performance Guarantees
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
and the Seller have agreed to set forth in this Letter Agreement No. 10A (the
"Letter Agreement") certain additional terms and conditions regarding the sale
of the Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1 AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to
the [DELETED] Aircraft as described in the Standard Specification
defined below without taking into account any further changes
thereto as provided in the Agreement (the "Specification" for the
purposes of this Letter Agreement).
1.1 [DELETED]
Standard Specification: [DELETED]
Propulsion systems: [DELETED]
SCN's: [DELETED]
2 GUARANTEED PERFORMANCE
2.1 [DELETED]
Level flight speed at an Aircraft gross weight of [DELETED] kg at a
pressure altitude of [DELETED] feet in ISA conditions using not more
than maximum cruise thrust shall be not less than a guaranteed true
Mach number of[DELETED].
Specific RangeThe nautical miles per kilogram of fuel at an Aircraft
gross weight of "A" kg at a pressure altitude of "B" feet in ISA
conditions at an airspeed or true Mach number of "C" shall be not
less than a value of "D" nautical miles per kilogram.
"A" "B" "C" "D"
2.1.1 [DELETED] [DELETED] [DELETED] [DELETED] [DELETED] [DELETED]
[DELETED] [DELETED] [DELETED] [DELETED] [DELETED] [DELETED]
2.1.2 The average nautical miles per kilogram of fuel of the specific
ranges defined under Paragraphs 2.1.1 to 2.1.1 above and on which
the compliance shall be based shall be not less than a guaranteed
value of [DELETED] nm/kg
2.2 Take-off
The JAR/FAR take-off field length at an Aircraft gross weight of
[DELETED] kg at the start of ground run at sea level pressure
altitude in ISA+[DELETED] C conditions shall not be more than a
guaranteed value of [DELETED] meters.
2.3 Second Segment Climb
The Aircraft shall meet JAR/FAR 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 2.2 above.
2.4 En-route One Engine Inoperative
The Aircraft shall meet JAR regulations minimum en-route climb
([DELETED] %), with one engine inoperative and the others operating
at the maximum continuous thrust available at that altitude, with
air conditioning on, anti-icing off, at an Aircraft gross weight of
[DELETED] kg in cruise configuration, in ISA+[DELETED] (degree)C
conditions at a pressure altitude of a guaranteed value of not less
than [DELETED] feet.
2
<PAGE>
2.5 Initial Cruise Altitude
The initial cruise altitude for an Aircraft with an initial cruise
weight of [DELETED] kg in ISA conditions, cruising in level flight
at a Mach number of [DELETED] and using not more than maximum cruise
thrust, with a rate of climb of not less than [DELETED] feet per
minute at a true Mach number of [DELETED] and using not more than
maximum climb thrust, with a buffet margin of not less than 0.3g at
a true Mach number of[DELETED], shall be not less than a guaranteed
value of [DELETED] feet:
2.6 Approach Climb
The Aircraft shall meet JAR/FAR regulations minimum approach climb
gradient with one engine inoperative and the others operating at
maximum go-round thrust and with the undercarriage retracted in
ISA+[DELETED] (Degree)C conditions at an Aircraft gross weight of
[DELETED] kg at a guaranteed pressure altitude of not less than
[DELETED] feet.
2.7 Landing Field Length
JAR/FAR certified dry landing field length at an [DELETED] kg
Aircraft gross weight at sea level pressure altitude shall be not
more than a guaranteed value of : [DELETED] meters.
2.8 Crosswind
The Aircraft has been certified , and the Aircraft Flight Manual has
been approved, with a crosswind component, determined at a height
of[DELETED] feet above the runway, of [DELETED] knots.
3
<PAGE>
3 MISSION GUARANTEES
3.1 Mission Range
The Aircraft shall be capable of carrying a Zero Fuel Weight of
[DELETED] kg over a guaranteed still air stage distance of not less
than [DELETED] nautical miles when operated under the conditions
defined below:
3.1.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.1.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.1.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in [DELETED] conditions.
3.1.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitude of [DELETED] ft/[DELETED]
ft,/ [DELETED] ft, and descent to [DELETED] ft above the destination
airport are conducted in [DELETED] conditions. Climb and descent
speeds below [DELETED] ft shall be [DELETED] knots CAS.
3.1.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.1.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.1.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.1.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.1.2 to
3.1.6 inclusive above.
3.1.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance -[DELETED] %Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED] ft above the airports
4) Fixed allowance of [DELETED] kg of fuel
4
<PAGE>
3.2 Mission Fuel Burn Guarantee
When carrying a Zero Fuel Weight of [DELETED] kg over a still air
stage distance of [DELETED] nautical miles, the Aircraft shall burn
not more than a guaranteed value of [DELETED] kg of block fuel, when
operated under the conditions defined below:
3.2.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.2.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.2.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.2.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitudes of [DELETED]
ft/[DELETED] ft/[DELETED] ft and descent to [DELETED] ft above the
destination airport are conducted in [DELETED] conditions. Climb and
descent speeds below [DELETED] ft shall be [DELETED] knots CAS.
3.2.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.2.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.2.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.2.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.2.2 to
3.2.6 inclusive above.
3.2.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED] ft above the airports
4) Fixed allowance of [DELETED] kg of fuel
5
<PAGE>
4 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees that the Manufacturer's Weight Empty as
defined in Section 13-10 of the Specification as defined in
Paragraph 1, plus the weight of unusable fuel and oil for engines
and APU, and which shall be derived from the weighing of the
Aircraft, shall not be more than [DELETED].
The Manufacturer's Weight Empty is subject to adjustment as defined
in Paragraph 9.2 below.
5 [DELETED]
5.1 [DELETED]
6 [DELETED]
7 GUARANTEE CONDITIONS
7.1.1 The performance certification requirements for the Aircraft, except
where otherwise noted, shall be as stated in Section 02 of the
Specification.
7.1.2 For the determination of JAR/FAR take-off and landing performance a
hard level dry runway surface with no runway strength limitation, no
obstacle, zero wind, atmosphere according to ISA, except as
otherwise stated, and the use of speedbrakes, flaps, associated
speeds, landing gear and engines in the conditions liable to provide
the best results shall be assumed.
7.1.3 When establishing take-off and second segment performance no air
shall be bled from the engines for cabin air conditioning or
anti-icing, unless otherwise noted.
7.1.4 Climb, cruise and descent performance associated with the Guarantees
shall include allowances for normal electrical load and for normal
engine air bleed and power extraction associated with maximum cabin
differential pressure as defined in Section 21-30.31 of the
Specification. Cabin air conditioning management during performance
demonstration as described in Paragraph 8.3 may be such as to
optimize the Aircraft performance while meeting the minimum air
conditioning requirements defined above. Unless otherwise stated no
air shall be bled from the engines for anti-icing.
Cruise performance at [DELETED] ft and above is based on a center of
gravity position of [DELETED] % MAC, unless otherwise stated.
7.1.5 The engines shall be operated at maximum certified take-off thrust
for take-off and using not more than the engine manufacturer's
maximum recommended outputs for maximum go-round, maximum
continuous, maximum climb and cruise for normal operation unless
otherwise stated.
6
<PAGE>
7.1.6 Where applicable the Guarantees assume the use of an approved fuel
having a Lower Heating Value of [DELETED] BTU/lb and a density of
[DELETED] kg/litre.
8 GUARANTEE COMPLIANCE
8.1 Compliance with the Guarantees shall 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[DELETED] and landing elements of the
Guarantees shall be demonstrated with reference to the approved Flight
Manual.
8.3 Compliance with those parts of the Guarantees not covered by the
requirements of the certifying Airworthiness Authority shall be
demonstrated by calculation based on data obtained during flight tests
conducted on one (or more, at the Seller's discretion) [DELETED] Aircraft
of the same configuration as those Aircraft purchased by the Buyer.
8.4 Compliance with the Manufacturer's Weight Empty Guarantee shall be
demonstrated with reference to a weight compliance report.
8.5 [DELETED]
8.6 Data derived from tests [DELETED] surveys shall be adjusted as required
using conventional methods of correction, interpolation or extrapolation
in accordance with established aeronautical practices to show compliance
with the Guarantees.
8.7 Compliance with the Guarantees is based but not contingent on the engine
performance defined in the engine manufacturer's specification.
8.8 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the Buyer's [DELETED] 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 shall be appropriately modified to
reflect the effect of any such change.
9.2 The Guarantees apply to the Aircraft as described in Paragraph 1 and may
be adjusted in the event of:
a) Any further configuration change requested by the Buyer, which
is the subject of a SCN.
b) Variation in actual weights of items defined in Section
13-10.02.03 of the Standard Specification.
7
<PAGE>
10 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided for in lieu of any and
all other performance, noise and weight guarantees of any nature
which may be stated, referenced or incorporated in the Specification
or any other document.
11 UNDERTAKING REMEDIES
Should any Aircraft fail to meet any of the Guarantees contained in
this Letter Agreement, the Seller will, before, at, or after
delivery of the affected Aircraft, use its best endeavours to
correct the deficiency to comply with the subject guarantee.
[DELETED]
11.1 [DELETED]
11.2 [DELETED]
12 ASSIGNMENT
The Seller's undertaking and the remedies of the Performance
Guarantees to be provided by the Seller hereunder shall be
assignable to the Buyer's operators, in the event that an operator
for the Buyer's Aircraft makes a specific request for performance
guarantees. The Buyer shall consult the Seller in advance of any
such assignment.
If the foregoing correctly sets forth our understanding, please
execute two (2) originals in the space provided below and return one
(1) original of this Letter Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
GATX Flightlease
Aircraft Company Ltd. AIRBUS INDUSTRIE
8
<PAGE>
By : __________________________
Its : __________________________
By : __________________________
Its : __________________________
Date : _________________________
9
<PAGE>
Letter Agreement No 10B
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: [DELETED] Performance Guarantees
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
and the Seller have agreed to set forth in this Letter Agreement No. 10B (the
"Letter Agreement") certain additional terms and conditions regarding the sale
of the Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1 AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to
the [DELETED] Aircraft as described in the Standard Specification
defined below without taking into account any further changes
thereto as provided in the Agreement (the "Specification" for the
purposes of this Letter Agreement).
[DELETED]
Standard Specification: [DELETED]
Propulsion systems: [DELETED]
SCN's: a) [DELETED]
b) for increases in the Design Weight to:
Maximum take-Off Weight: [DELETED]
Kg
Maximum Landing Weight: [DELETED]
kg
Maximum Zero Fuel Weight: [DELETED]
kg
2 GUARANTEED PERFORMANCE
2.1 [DELETED]
2.2 Specific Range
The nautical miles per kilogram of fuel at an Aircraft gross weight
of "A" kg at a pressure altitude of "B" feet in ISA conditions at an
airspeed or true Mach number of "C" shall be not less than a value
of "D" nautical miles per kilogram.
"A" "B" "C" "D"
2.3 [DELETED] kg [DELETED] ft [DELETED]knots [DELETED]nm/kg
2.4 [DELETED]kg [DELETED]ft [DELETED]knots [DELETED]nm/kg
[DELETED]kg [DELETED]ft [DELETED]knots CAS [DELETED]nm/kg
2.4.1 The average nautical miles per kilogram of fuel of the specific
ranges defined under Paragraphs 2.3 to 2.4 above and on which the
compliance shall be based shall be not less than a guaranteed value
of [DELETED]nm/kg
2.5 Take-off
The JAR/FAR take-off field length at an Aircraft gross weight of
[DELETED]kg at the start of ground run at sea level pressure
altitude in ISA+15(degree)C conditions shall not be more than a
guaranteed value of [DELETED]meters.
[DELETED]
[DELETED]
[DELETED]
[DELETED]
2
<PAGE>
[DELETED]
[DELETED]
3 MISSION GUARANTEES
3.1 Mission Range
The Aircraft shall be capable of carrying a Zero Fuel Weight of
[DELETED]kg over a guaranteed still air stage distance of not less
than [DELETED]nautical miles when operated under the conditions
defined below:
3.1.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.1.2 An allowance of [DELETED]kg of fuel is included for engine start and
taxi-out at departure airport.
3.1.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED]ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.1.4 Climb from [DELETED]ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED]at a pressure altitude of [DELETED]ft,/
[DELETED]ft, and descent to [DELETED]ft above the destination
airport are conducted in ISA conditions. Climb and descent speeds
below [DELETED]ft shall be [DELETED] knots CAS.
3.1.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.1.6 An allowance of [DELETED]kg of fuel is considered for taxi in at the
destination airport.
3.1.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.1.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.1.2 to
3.1.6 inclusive above.
3.1.8 After approach and landing [DELETED]kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED] ft above the airports
4) Fixed allowance of [DELETED]kg of fuel
3.2 Mission Fuel Burn Guarantee
When carrying a Zero Fuel Weight of [DELETED]kg over a still air
stage distance of [DELETED]nautical miles, the Aircraft shall burn
not more than a guaranteed value of [DELETED]kg of block fuel, when
operated under the conditions defined below:
3
<PAGE>
3.2.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.2.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.2.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED]ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.2.4 Climb from [DELETED]ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED]at a pressure altitudes of [DELETED]
ft/[DELETED]ft and descent to [DELETED]ft above the destination
airport are conducted in ISA conditions. Climb and descent speeds
below [DELETED]ft shall be [DELETED]knots CAS.
3.2.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.2.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.2.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.2.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.2.2 to
3.2.6 inclusive above.
3.2.8 After approach and landing [DELETED]kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED]ft above the airports
4) Fixed allowance of [DELETED]kg of fuel
4
<PAGE>
4 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees that the Manufacturer's Weight Empty as
defined in Section 13-10 of the Specification as defined in
Paragraph 1, plus the weight of unusable fuel and oil for engines
and APU, and which shall be derived from the weighing of the
Aircraft, shall not be more than[DELETED]
The Manufacturer's Weight Empty is subject to adjustment as defined
in Paragraph 9.2 below.
5 [DELETED]
[DELETED]
6 [DELETED]
7 GUARANTEE CONDITIONS
7.1.1 The performance certification requirements for the Aircraft, except
where otherwise noted, shall be as stated in Section 02 of the
Specification.
7.1.2 For the determination of JAR/FAR take-off and landing performance a
hard level dry runway surface with no runway strength limitation, no
obstacle, zero wind, atmosphere according to ISA, except as
otherwise stated, and the use of speedbrakes, flaps, associated
speeds, landing gear and engines in the conditions liable to provide
the best results shall be assumed.
7.1.3 When establishing take-off and second segment performance no air
shall be bled from the engines for cabin air conditioning or
anti-icing, unless otherwise noted.
7.1.4 Climb, cruise and descent performance associated with the Guarantees
shall include allowances for normal electrical load and for normal
engine air bleed and power extraction associated with maximum cabin
differential pressure as defined in Section 21-30.31 of the
Specification. Cabin air conditioning management during performance
demonstration as described in Paragraph 8.3 may be such as to
optimize the Aircraft performance while meeting the minimum air
conditioning requirements defined above. Unless otherwise stated no
air shall be bled from the engines for anti-icing.
Cruise performance at [DELETED]ft and above is based on a center of
gravity position of [DELETED] % MAC, unless otherwise stated.
7.1.5 The engines shall be operated at maximum certified take-off thrust
for take-off and using not more than the engine manufacturer's
maximum recommended outputs for maximum go-round, maximum
continuous, maximum climb and cruise for normal operation unless
otherwise stated.
7.1.6 Where applicable the Guarantees assume the use of an approved fuel
having a
5
<PAGE>
Lower Heating Value of [DELETED]BTU/lb and a density of
[DELETED]kg/litre.
8 GUARANTEE COMPLIANCE
8.1 Compliance with the Guarantees shall 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[DELETED]and landing elements of the
Guarantees shall be demonstrated with reference to the approved Flight
Manual.
8.3 Compliance with those parts of the Guarantees not covered by the
requirements of the certifying Airworthiness Authority shall be
demonstrated by calculation based on data obtained during flight tests
conducted on one (or more, at the Seller's discretion) [DELETED]Aircraft
of the same configuration as those Aircraft purchased by the Buyer.
8.4 Compliance with the Manufacturer's Weight Empty Guarantee shall be
demonstrated with reference to a weight compliance report.
[DELETED]
8.5 Data derived from tests [DELETED]surveys shall be adjusted as required
using conventional methods of correction, interpolation or extrapolation
in accordance with established aeronautical practices to show compliance
with the Guarantees.
8.6 Compliance with the Guarantees is based but not contingent on the engine
performance defined in the engine manufacturer's specification.
8.7 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the Buyer's [DELETED]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 shall be appropriately modified to
reflect the effect of any such change.
9.2 The Guarantees apply to the Aircraft as described in Paragraph 1 and may
be adjusted in the event of:
a) Any further configuration change requested by the Buyer, which
is the subject of a SCN.
b) Variation in actual weights of items defined in Section
13-10.02.03 of the Standard Specification.
6
<PAGE>
10 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided for in lieu of any and
all other performance, noise and weight guarantees of any nature
which may be stated, referenced or incorporated in the Specification
or any other document.
11 UNDERTAKING REMEDIES
Should any Aircraft fail to meet any of the Guarantees contained in
this Letter Agreement, the Seller will, before, at, or after
delivery of the affected Aircraft, use its best endeavours to
correct the deficiency to comply with the subject guarantee.
[DELETED][DELETED][DELETED]
12 ASSIGNMENT
The Seller's undertaking and the remedies of the Performance
Guarantees to be provided by the Seller hereunder shall be
assignable to the Buyer's operators, in the event that an operator
for the Buyer's Aircraft makes a specific request for performance
guarantees. The Buyer shall consult the Seller in advance of any
such assignment.
If the foregoing correctly sets forth our understanding,
please execute two (2) originals in the space provided below
and return one (1) original of this Letter Agreement to the
Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
GATX Flightlease
Aircraft Company Ltd. AIRBUS INDUSTRIE
By : __________________________
Its : __________________________
7
<PAGE>
By : __________________________
Its : __________________________
Date : _________________________
8
<PAGE>
Letter Agreement No 11A
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: [DELETED] Performance Guarantees
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
and the Seller have agreed to set forth in this Letter Agreement No. 11A (the
"Letter Agreement") certain additional terms and conditions regarding the sale
of the Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1 AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to
the [DELETED] Aircraft as described in the Standard Specification
defined below without taking into account any further changes
thereto as provided in the Agreement (the "Specification" for the
purposes of this Letter Agreement).
1.1 [DELETED]
Standard Specification: [DELETED]
Propulsion systems: [DELETED] Maximum take-Off Weight:
[DELETED] kg
Maximum Landing Weight: [DELETED] kg
Maximum Zero Fuel Weight: [DELETED] kg
2 GUARANTEED PERFORMANCE
[DELETED]
2.1 Specific Range
The nautical miles per kilogram of fuel at an Aircraft gross weight
of "A" kg at a pressure altitude of "B" feet in ISA conditions at an
airspeed or true Mach number of "C" shall be not less than a value
of "D" nautical miles per kilogram.
"A" "B" "C" "D"
2.1.1 [DELETED] kg [DELETED] ft [DELETED] [DELETED] nm/kg
2.1.2 [DELETED] kg [DELETED] ft [DELETED] [DELETED] nm/kg
2.1.3 [DELETED] kg [DELETED] ft [DELETED] [DELETED] nm/kg
2.1.4 [DELETED] kg [DELETED] ft [DELETED] knots CAS [DELETED] nm/kg
2.1.5 The average nautical miles per kilogram of fuel of the specific
ranges defined under Paragraphs 2.1.1 to 2.1.3 above and on which
the compliance shall be based shall be not less than a guaranteed
value of nm/kg
2.2 Take-off
The JAR/FAR take-off field length at an Aircraft gross weight of
[DELETED] kg at the start of ground run at sea level pressure
altitude in ISA+15(degree)C conditions shall not be more than a
guaranteed value of [DELETED] meters.
[DELETED]
[DELETED] [DELETED]
[DELETED]
[DELETED]
[DELETED]
2
<PAGE>
3 MISSION GUARANTEES
3.1 Mission Range
The Aircraft shall be capable of carrying a Zero Fuel Weight of
[DELETED] kg over a guaranteed still air stage distance of not less
than [DELETED] nautical miles when operated under the conditions
defined below:
3.1.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.1.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.1.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.1.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitude of [DELETED] ft, /
[DELETED] ft, and descent to [DELETED] ft above the destination
airport are conducted in ISA conditions. Climb and descent speeds
below [DELETED] ft shall be [DELETED] knots CAS.
3.1.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.1.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.1.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.1.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.1.2 to
3.1.6 inclusive above.
3.1.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at [DELETED] ft
above the airports
4) Fixed allowance of [DELETED] kg of fuel
<PAGE>
3.2 Mission Fuel Burn Guarantee
When carrying a Zero Fuel Weight of [DELETED] kg over a still air
stage distance of [DELETED] nautical miles, the Aircraft shall burn
not more than a guaranteed value of [DELETED] kg of block fuel, when
operated under the conditions defined below:
3.2.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.2.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.2.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.2.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitudes of [DELETED]
ft/[DELETED] ft/[DELETED] ft and descent to [DELETED] ft above the
destination airport are conducted in ISA conditions. Climb and
descent speeds below [DELETED] ft shall be [DELETED] knots CAS.
3.2.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.2.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.2.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.2.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.2.2 to
3.2.6 inclusive above.
3.2.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED] ft above the airports
4) Fixed allowance of [DELETED] kg of fuel
<PAGE>
4 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees that the Manufacturer's Weight Empty as
defined in Section 13-10 of the Specification as defined in
Paragraph 1, plus the weight of unusable fuel and oil for engines
and APU, and which shall be derived from the weighing of the
Aircraft, shall not be more than[DELETED].
The Manufacturer's Weight Empty is subject to adjustment as defined
in Paragraph 7.2 below.
[DELETED]
[DELETED]
[DELETED]
5 GUARANTEE CONDITIONS
5.1 The performance certification requirements for the Aircraft, except where
otherwise noted, shall be as stated in Section 02 of the Specification.
5.2 For the determination of JAR/FAR take-off and landing performance a hard
level dry runway surface with no runway strength limitation, no obstacle,
zero wind, atmosphere according to ISA, except as otherwise stated, and
the use of speedbrakes, flaps, associated speeds, landing gear and engines
in the conditions liable to provide the best results shall be assumed.
5.3 When establishing take-off and second segment performance no air shall be
bled from the engines for cabin air conditioning or anti-icing, unless
otherwise noted.
5.4 Climb, cruise and descent performance associated with the Guarantees shall
include allowances for normal electrical load and for normal engine air
bleed and power extraction associated with maximum cabin differential
pressure as defined in Section 21-30.31 of the Specification. Cabin air
conditioning management during performance demonstration as described in
Paragraph 6.3 may be such as to optimize the Aircraft performance while
meeting the minimum air conditioning requirements defined above. Unless
otherwise stated no air shall be bled from the engines for anti-icing.
5.5 Cruise performance at [DELETED] ft and above is based on a center of
gravity position of [DELETED] % MAC, unless otherwise stated.
5.6 The engines shall be operated at maximum certified take-off thrust for
take-off and using not more than the engine manufacturer's maximum
recommended outputs for maximum go-round, maximum continuous, maximum
climb and cruise for normal operation unless otherwise stated.
5.7 Where applicable the Guarantees assume the use of an approved fuel having
a Lower Heating Value of [DELETED] BTU/lb and a density of [DELETED]
kg/litre.
6 GUARANTEE COMPLIANCE
6.1 Compliance with the Guarantees shall be demonstrated using operating
procedures
<PAGE>
and limitations in accordance with those defined by the certifying
Airworthiness Authority and by the Seller unless otherwise stated.
6.2 Compliance with the take-off [DELETED] and landing elements of the
Guarantees shall be demonstrated with reference to the approved Flight
Manual.
6.3 Compliance with those parts of the Guarantees not covered by the
requirements of the certifying Airworthiness Authority shall be
demonstrated by calculation based on data obtained during flight tests
conducted on one (or more, at the Seller's discretion) [DELETED] Aircraft
of the same configuration as those Aircraft purchased by the Buyer.
6.4 Compliance with the Manufacturer's Weight Empty Guarantee shall be
demonstrated with reference to a weight compliance report.
6.5 [DELETED]
6.6 Data derived from tests [DELETED] surveys shall be adjusted as required
using conventional methods of correction, interpolation or extrapolation
in accordance with established aeronautical practices to show compliance
with the Guarantees.
6.7 Compliance with the Guarantees is based but not contingent on the engine
performance defined in the engine manufacturer's specification.
6.8 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the Buyer's [DELETED] Aircraft.
7 ADJUSTMENT OF GUARANTEES
7.1 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 shall be appropriately modified to
reflect the effect of any such change.
7.2 The Guarantees apply to the Aircraft as described in Paragraph 1 and may
be adjusted in the event of:
a) Any further configuration change requested by the Buyer, which
is the subject of a SCN.
b) Variation in actual weights of items defined in Section
13-10.02.03 of the Standard Specification.
<PAGE>
8 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided for in lieu of any and
all other performance, noise and weight guarantees of any nature
which may be stated, referenced or incorporated in the Specification
or any other document.
9 UNDERTAKING REMEDIES
Should any Aircraft fail to meet any of the Guarantees contained in
this Letter Agreement, the Seller will, before, at, or after
delivery of the affected Aircraft, use its best endeavours to
correct the deficiency to comply with the subject guarantee.
[DELETED][DELETED][DELETED]
10 ASSIGNMENT
The Seller's undertaking and the remedies of the Performance
Guarantees to be provided by the Seller hereunder shall be
assignable to the Buyer's operators, in the event that an operator
for the Buyer's Aircraft makes a specific request for performance
guarantees. The Buyer shall consult the Seller in advance of any
such assignment.
<PAGE>
If the foregoing correctly sets forth our understanding, please
execute two (2) originals in the space provided below and return one
(1) original of this Letter Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
GATX Flightlease
Aircraft Company Ltd. AIRBUS INDUSTRIE
By : _________________________
Its : ________________________
By : _________________________
Its : ________________________
Date : _______________________
8
<PAGE>
Letter Agreement No 11B
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: [DELETED] Performance Guarantees
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
and the Seller have agreed to set forth in this Letter Agreement No. 11B (the
"Letter Agreement") certain additional terms and conditions regarding the sale
of the Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1 AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to
the [DELETED]Aircraft as described in the Standard Specification
defined below without taking into account any further changes
thereto as provided in the Agreement (the "Specification" for the
purposes of this Letter Agreement).
1.1 [DELETED]
Standard Specification: [DELETED]
Propulsion systems: [DELETED]
Maximum take-Off Weight: [DELETED]kg
Maximum Landing Weight: [DELETED]kg
Maximum Zero Fuel Weight: [DELETED]kg
2 GUARANTEED PERFORMANCE
[DELETED]
2.1 Specific Range
The nautical miles per kilogram of fuel at an Aircraft gross weight
of "A" kg at a pressure altitude of "B" feet in ISA conditions at an
airspeed or true Mach number of "C" shall be not less than a value
of "D" nautical miles per kilogram.
"A" "B" "C" "D"
2.1.1 [DELETED]kg [DELETED]ft [DELETED] [DELETED]nm/kg
2.1.2 [DELETED]kg [DELETED]ft [DELETED] [DELETED]nm/kg
2.1.3 [DELETED]kg [DELETED]ft [DELETED] [DELETED]nm/kg
2.1.4 [DELETED]kg [DELETED]ft [DELETED]knots CAS [DELETED]nm/kg
2.1.5 The average nautical miles per kilogram of fuel of the specific
ranges defined under Paragraphs 2.1.1 to 2.1.3 above and on which
the compliance shall be based shall be not less than a guaranteed
value of [DELETED]nm/kg
2
<PAGE>
2.2 Take-off
The JAR/FAR take-off field length at an Aircraft gross weight of
[DELETED]kg at the start of ground run at sea level pressure
altitude in ISA+15(degree)C conditions shall not be more than a
guaranteed value of [DELETED]meters.
[DELETED]
[DELETED]
[DELETED]
[DELETED]
[DELETED]
[DELETED]
3 MISSION GUARANTEES
3.1 Mission Range
The Aircraft shall be capable of carrying a Zero Fuel Weight of
[DELETED]kg over a guaranteed still air stage distance of not less
than [DELETED] nautical miles when operated under the conditions
defined below:
3.1.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.1.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.1.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED]ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.1.4 Climb from [DELETED]ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED]at a pressure altitude of [DELETED]ft, /
[DELETED]ft, and descent to [DELETED]ft above the destination
airport are conducted in ISA conditions. Climb and descent speeds
below [DELETED]ft shall be [DELETED] knots CAS.
3.1.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.1.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.1.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.1.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.1.2 to
3.1.6 inclusive above.
3.1.8 After approach and landing [DELETED]kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3
<PAGE>
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED] ft above the airports
4) Fixed allowance of [DELETED] kg of fuel
3.2 Mission Fuel Burn Guarantee
When carrying a Zero Fuel Weight of [DELETED] kg over a still air
stage distance of [DELETED] nautical miles, the Aircraft shall burn
not more than a guaranteed value of [DELETED] kg of block fuel, when
operated under the conditions defined below:
3.2.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.2.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.2.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.2.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitudes of [DELETED]
ft/[DELETED]ft/[DELETED]ft and descent to [DELETED]ft above the
destination airport are conducted in ISA conditions. Climb and
descent speeds below [DELETED]ft shall be [DELETED] knots CAS.
3.2.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.2.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.2.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.2.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.2.2 to
3.2.6 inclusive above.
3.2.8 After approach and landing [DELETED]kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED]ft above the airports
4) Fixed allowance of [DELETED]kg of fuel
4
<PAGE>
4 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees that the Manufacturer's Weight Empty as
defined in Section 13-10 of the Specification as defined in
Paragraph 1, plus the weight of unusable fuel and oil for engines
and APU, and which shall be derived from the weighing of the
Aircraft, shall not be more than [DELETED].
The Manufacturer's Weight Empty is subject to adjustment as defined
in Paragraph 9.2 below.
5 [DELETED]
[DELETED]
6 [DELETED]
7 GUARANTEE CONDITIONS
7.1 The performance certification requirements for the Aircraft, except where
otherwise noted, shall be as stated in Section 02 of the Specification.
7.2 For the determination of JAR/FAR take-off and landing performance a hard
level dry runway surface with no runway strength limitation, no obstacle,
zero wind, atmosphere according to ISA, except as otherwise stated, and
the use of speedbrakes, flaps, associated speeds, landing gear and engines
in the conditions liable to provide the best results shall be assumed.
7.3 When establishing take-off and second segment performance no air shall be
bled from the engines for cabin air conditioning or anti-icing, unless
otherwise noted.
7.4 Climb, cruise and descent performance associated with the Guarantees shall
include allowances for normal electrical load and for normal engine air
bleed and power extraction associated with maximum cabin differential
pressure as defined in Section 21-30.31 of the Specification. Cabin air
conditioning management during performance demonstration as described in
Paragraph 8.3 may be such as to optimize the Aircraft performance while
meeting the minimum air conditioning requirements defined above. Unless
otherwise stated no air shall be bled from the engines for anti-icing.
7.5 Cruise performance at [DELETED] ft and above is based on a center of
gravity position of [DELETED] % MAC, unless otherwise stated.
7.6 The engines shall be operated at maximum certified take-off thrust for
take-off and using not more than the engine manufacturer's maximum
recommended outputs for maximum go-round, maximum continuous, maximum
climb and cruise for normal operation unless otherwise stated.
7.7 Where applicable the Guarantees assume the use of an approved fuel having
a Lower Heating Value of [DELETED] BTU/lb and a density of [DELETED]
kg/litre.
5
<PAGE>
8 GUARANTEE COMPLIANCE
8.1 Compliance with the Guarantees shall 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 [DELETED]and landing elements of the
Guarantees shall be demonstrated with reference to the approved Flight
Manual.
8.3 Compliance with those parts of the Guarantees not covered by the
requirements of the certifying Airworthiness Authority shall be
demonstrated by calculation based on data obtained during flight tests
conducted on one (or more, at the Seller's discretion) [DELETED] Aircraft
of the same configuration as those Aircraft purchased by the Buyer.
8.4 Compliance with the Manufacturer's Weight Empty Guarantee shall be
demonstrated with reference to a weight compliance report.
[DELETED]
8.5 Data derived from tests [DELETED]surveys shall be adjusted as required
using conventional methods of correction, interpolation or extrapolation
in accordance with established aeronautical practices to show compliance
with the Guarantees.
8.6 Compliance with the Guarantees is based but not contingent on the engine
performance defined in the engine manufacturer's specification.
8.7 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the Buyer's [DELETED]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 shall be appropriately modified to
reflect the effect of any such change.
9.2 The Guarantees apply to the Aircraft as described in Paragraph 1 and may
be adjusted in the event of:
a) Any further configuration change requested by the Buyer, which
is the subject of a SCN.
b) Variation in actual weights of items defined in Section
13-10.02.03 of the Standard Specification.
6
<PAGE>
10 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided for in lieu of any and
all other performance, noise and weight guarantees of any nature
which may be stated, referenced or incorporated in the Specification
or any other document.
11 UNDERTAKING REMEDIES
Should any Aircraft fail to meet any of the Guarantees contained in
this Letter Agreement, the Seller will, before, at, or after
delivery of the affected Aircraft, use its best endeavours to
correct the deficiency to comply with the subject guarantee.
[DELETED][DELETED][DELETED]
12 ASSIGNMENT
The Seller's undertaking and the remedies of the Performance
Guarantees to be provided by the Seller hereunder shall be
assignable to the Buyer's operators, in the event that an operator
for the Buyer's Aircraft makes a specific request for performance
guarantees. The Buyer shall consult the Seller in advance of any
such assignment.
7
<PAGE>
If the foregoing correctly sets forth our understanding, please
execute two (2) originals in the space provided below and return one
(1) original of this Letter Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
GATX Flightlease
Aircraft Company Ltd. AIRBUS INDUSTRIE
By : _________________________
Its : ________________________
By : _________________________
Its : ________________________
Date : _______________________
8
<PAGE>
Letter Agreement No 11C
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: [DELETED] Performance Guarantees
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
and the Seller have agreed to set forth in this Letter Agreement No. 11C (the
"Letter Agreement") certain additional terms and conditions regarding the sale
of the Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1 AIRCRAFT CONFIGURATION
The guarantees defined below ("the Guarantees") are applicable to
the [DELETED] Aircraft as described in the Standard Specification
defined below without taking into account any further changes
thereto as provided in the Agreement (the "Specification" for the
purposes of this Letter Agreement).
1.1 [DELETED]
Standard Specification: [DELETED]
Propulsion systems: [DELETED]
Maximum take-Off Weight: [DELETED] kg
Maximum Landing Weight: [DELETED] kg
Maximum Zero Fuel Weight: [DELETED] kg
2 GUARANTEED PERFORMANCE
[DELETED]
2.1 Specific Range
The nautical miles per kilogram of fuel at an Aircraft gross weight
of "A" kg at a pressure altitude of "B" feet in ISA conditions at an
airspeed or true Mach number of "C" shall be not less than a value
of "D" nautical miles per kilogram.
"A" "B" "C" "D"
2.1.1 [DELETED]kg [DELETED]ft [DELETED] [DELETED]nm/kg
2.1.2 [DELETED]kg [DELETED]ft [DELETED] [DELETED]nm/kg
2.1.3 [DELETED]kg [DELETED]ft [DELETED] [DELETED]nm/kg
2.1.4 [DELETED]kg [DELETED]ft [DELETED]knots CAS [DELETED]nm/kg
2.1.5 The average nautical miles per kilogram of fuel of the specific
ranges defined under Paragraphs 2.1.1 to 2.1.3 above and on which
the compliance shall be based shall be not less than a guaranteed
value of [DELETED] nm/kg
2
<PAGE>
2.2 Take-off
The JAR/FAR take-off field length at an Aircraft gross weight of
[DELETED] kg at the start of ground run at sea level pressure
altitude in ISA+15(degree)C conditions shall not be more than a
guaranteed value of [DELETED] meters.
[DELETED]
[DELETED]
[DELETED]
[DELETED]
[DELETED] [DELETED]
3 MISSION GUARANTEES
3.1 Mission Range
The Aircraft shall be capable of carrying a Zero Fuel Weight of
[DELETED] kg over a guaranteed still air stage distance of not less
than [DELETED] nautical miles when operated under the conditions
defined below:
3.1.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.1.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.1.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.1.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitude of [DELETED] ft, /
[DELETED] ft, and descent to [DELETED] ft above the destination
airport are conducted in ISA conditions. Climb and descent speeds
below [DELETED] ft shall be [DELETED] knots CAS.
3.1.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.1.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.1.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.1.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.1.2 to
3.1.6 inclusive above.
3.1.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % ock Fuel
3
<PAGE>
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED] ft above the airports
4) Fixed allowance of [DELETED] kg of fuel
3.2 Mission Fuel Burn Guarantee
When carrying a Zero Fuel Weight of [DELETED] kg over a still air
stage distance of [DELETED] nautical miles, the Aircraft shall burn
not more than a guaranteed value of [DELETED] kg of block fuel, when
operated under the conditions defined below:
3.2.1 The departure airport conditions are such as to allow the required
take-off weight to be used without any restriction. The destination
airport conditions are such as to allow the required landing weight
to be used without any restriction.
3.2.2 An allowance of [DELETED] kg of fuel is included for engine start
and taxi-out at departure airport.
3.2.3 An allowance of [DELETED] kg of fuel is included for take-off and
climb to [DELETED] ft above the departure airport with acceleration
to climb speed in ISA conditions.
3.2.4 Climb from [DELETED] ft above the departure airport up to optimum
cruise altitude using maximum climb thrust, cruise at a fixed Mach
number of [DELETED] at a pressure altitudes of [DELETED]
ft/[DELETED] ft and descent to [DELETED] ft above the destination
airport are conducted in ISA conditions. Climb and descent speeds
below [DELETED] ft shall be [DELETED] knots CAS.
3.2.5 An allowance of [DELETED] kg of fuel is considered for approach and
landing at destination airport.
3.2.6 An allowance of [DELETED] kg of fuel is considered for taxi in at
the destination airport.
3.2.7 Stage distance is defined as the distance covered during cruise,
climb and descent as described in Paragraph 3.2.4 above. Block fuel
is defined as the fuel used during taxi, take off, climb, cruise,
descent, approach and landing as described in paragraphs 3.2.2 to
3.2.6 inclusive above.
3.2.8 After approach and landing [DELETED] kg of usable fuel shall remain
in the tanks.
This represents the estimated fuel required for:
1) En-route allowance [DELETED] % Block Fuel
2) Overshoot at destination
3) Diversion in ISA conditions over a ground distance of
[DELETED] nautical miles starting and ending at
[DELETED] ft above the airports
4) Fixed allowance of [DELETED] kg of fuel
4 MANUFACTURER'S WEIGHT EMPTY
The Seller guarantees that the Manufacturer's Weight Empty as
defined in Section 13-10 of the Specification as defined in
Paragraph 1, plus the weight of unusable
4
<PAGE>
fuel and oil for engines and APU, and which shall be derived from
the weighing of the Aircraft, shall not be more than [DELETED].
The Manufacturer's Weight Empty is subject to adjustment as defined
in Paragraph 8.2 below.
5 [DELETED]
[DELETED]
[DELETED]
6 GUARANTEE CONDITIONS
6.1 The performance certification requirements for the Aircraft, except where
otherwise noted, shall be as stated in Section 02 of the Specification.
6.2 For the determination of JAR/FAR take-off and landing performance a hard
level dry runway surface with no runway strength limitation, no obstacle,
zero wind, atmosphere according to ISA, except as otherwise stated, and
the use of speedbrakes, flaps, associated speeds, landing gear and engines
in the conditions liable to provide the best results shall be assumed.
6.3 When establishing take-off and second segment performance no air shall be
bled from the engines for cabin air conditioning or anti-icing, unless
otherwise noted.
6.4 Climb, cruise and descent performance associated with the Guarantees shall
include allowances for normal electrical load and for normal engine air
bleed and power extraction associated with maximum cabin differential
pressure as defined in Section 21-30.31 of the Specification. Cabin air
conditioning management during performance demonstration as described in
Paragraph 7.3 may be such as to optimize the Aircraft performance while
meeting the minimum air conditioning requirements defined above. Unless
otherwise stated no air shall be bled from the engines for anti-icing.
6.5 Cruise performance at [DELETED] ft and above is based on a center of
gravity position of [DELETED] % MAC, unless otherwise stated.
6.6 The engines shall be operated at maximum certificated take-off thrust for
take-off and using not more than the engine manufacturer's maximum
recommended outputs for maximum go-round, maximum continuous, maximum
climb and cruise for normal operation unless otherwise stated.
6.7 Where applicable the Guarantees assume the use of an approved fuel having
a Lower Heating Value of [DELETED] BTU/lb and a density of [DELETED]
kg/litre.
7 GUARANTEE COMPLIANCE
7.1 Compliance with the Guarantees shall be demonstrated using operating
procedures
5
<PAGE>
and limitations in accordance with those defined by the certifying
Airworthiness Authority and by the Seller unless otherwise stated.
7.2 Compliance with the take-off[DELETED] and landing elements of the
Guarantees shall be demonstrated with reference to the approved Flight
Manual.
7.3 Compliance with those parts of the Guarantees not covered by the
requirements of the certifying Airworthiness Authority shall be
demonstrated by calculation based on data obtained during flight tests
conducted on one (or more, at the Seller's discretion) [DELETED] Aircraft
of the same configuration as those Aircraft purchased by the Buyer.
7.4 Compliance with the Manufacturer's Weight Empty Guarantee shall be
demonstrated with reference to a weight compliance report.
7.5 [DELETED]
7.6 Data derived from tests [DELETED] surveys shall be adjusted as required
using conventional methods of correction, interpolation or extrapolation
in accordance with established aeronautical practices to show compliance
with the Guarantees.
7.7 Compliance with the Guarantees is based but not contingent on the engine
performance defined in the engine manufacturer's specification.
7.8 The Seller undertakes to furnish the Buyer with a report or reports
demonstrating compliance with the Guarantees at, or as soon as possible
after, the delivery of each of the Buyer's [DELETED] Aircraft.
8 ADJUSTMENT OF GUARANTEES
8.1 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 shall be appropriately modified to
reflect the effect of any such change.
8.2 The Guarantees apply to the Aircraft as described in Paragraph 1 and may
be adjusted in the event of:
a) Any further configuration change requested by the Buyer, which
is the subject of a SCN.
b) Variation in actual weights of items defined in Section
13-10.02.03 of the Standard Specification.
9 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided for in lieu of any and
all other performance, noise and weight guarantees of any nature
which may be stated, referenced or incorporated in the Specification
or any other document.
10 UNDERTAKING REMEDIES
6
<PAGE>
Should any Aircraft fail to meet any of the Guarantees contained in
this Letter Agreement, the Seller will, before, at, or after
delivery of the affected Aircraft, use its best endeavours to
correct the deficiency to comply with the subject guarantee.
[DELETED]
[DELETED]
[DELETED]
11 ASSIGNMENT
The Seller's undertaking and the remedies of the Performance
Guarantees to be provided by the Seller hereunder shall be
assignable to the Buyer's operators, in the event that an operator
for the Buyer's Aircraft makes a specific request for performance
guarantees. The Buyer shall consult the Seller in advance of any
such assignment.
7
<PAGE>
If the foregoing correctly sets forth our understanding, please
execute two (2) originals in the space provided below and return one
(1) original of this Letter Agreement to the Seller.
If the foregoing correctly sets forth our understanding, please
execute two (2) originals in the space provided below and return one
(1) original of this Letter Agreement to the Seller.
Agreed and Accepted Agreed and Accepted
For and on behalf of For and on behalf of
GATX Flightlease
Aircraft Company Ltd. AIRBUS INDUSTRIE
By : _________________________
Its : ________________________
By : _________________________
Its : ________________________
Date : _______________________
8
<PAGE>
Letter Agreement No 12
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: Aircraft Performance
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
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 Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1. PERFORMANCE GUARANTEES FOR CONVERTED AIRCRAFT [DELETED]
1.1 Converted Aircraft
In the event that the Buyer elects to convert the type of certain Aircraft
into another aircraft type pursuant to Letter Agreement No.2 to the
Agreement (i.e [DELETED] or [DELETED] Converted Aircraft), the Seller
shall, as part of the conversion amendment to be entered into between the
parties upon such type conversion, provide the Buyer with performance
guarantees applicable to the type of the resulting Converted Aircraft.
Such performance guarantees shall be substantially in the form of the
guarantees provided to the Buyer pursuant to Letter Agreement No.8, 9, 10
or 11 to the Agreement, as adapted to the relevant Converted Aircraft
type.
1.2 Engine [DELETED]
[DELETED]
2. [DELETED] PERFORMANCE GUARANTEES
[DELETED]
3. SELLER'S [DELETED]
Notwithstanding the [DELETED], the Seller agrees that [DELETED].
4. AIRCRAFT LEASES [DELETED]
[DELETED]
5. ASSIGNMENT
The Seller's undertaking and the remedies of the Performance Guarantees to
be provided by the Seller hereunder shall be assignable to the Buyer's
operators, in the event that such operator for the Buyer's Aircraft makes
a specific request for performance gurantees. The Buyer shall consult the
Seller in advance of any such assignment.
Except as permitted by Clause 21 of the Agreement, the terms and
conditions of paragraph 3 hereof are solely for the benefit of the Buyer
and Swissair and shall not be assigned, transferred or otherwise alienated
by operation of law or otherwise to any person.
2
<PAGE>
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AIRBUS INDUSTRIE G.I.E.
By : John J. LEAHY
-------------
Its : Senior Vice President,
Commercial
WITNESSED BY :
By :
Its :
Accepted and Agreed
GATX Flightlease Aircraft Company Ltd
By :
Its :
By :
Its :
3
<PAGE>
Letter Agreement No 13
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: [DELETED] Matters
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
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 Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1. [DELETED]
1.1 [DELETED]
1
<PAGE>
1.2 [DELETED]
(i) [DELETED]
(ii) [DELETED]
(iii) [DELETED]
(iv) [DELETED]
(v) [DELETED]
2. PARTICULAR ASSIGNMENT RIGHTS
2.1 [DELETED]
(a) [DELETED]
(b) [DELETED]
2.2 [DELETED]
3. ASSIGNMENT
Except as permitted by Clause 21 of the Agreement, this Letter Agreement
is not transferable, and the Buyer's rights under this Letter Agreement
shall not be assigned, sold, transferred or otherwise alienated by
operation of law or otherwise to any person. Any unauthorized assignment,
sale, transfer or other alienation of the Buyer's rights under this Letter
Agreement shall immediately void this Letter Agreement in its entirety.
2
<PAGE>
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AIRBUS INDUSTRIE G.I.E.
By : John J. LEAHY
-------------
Its : Senior Vice President,
Commercial
WITNESSED BY :
By :
Its :
Accepted and Agreed
GATX Flightlease Aircraft Company Ltd
By :
Its :
By :
Its :
3
<PAGE>
Letter Agreement No 14
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: [DELETED] Option
Dear Sirs,
GATX Flightlease Company Ltd (the "Buyer"), and Airbus Industrie G.I.E.
(the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain Aircraft
as described in the specification annexed to said Agreement. The Buyer and the
Seller have agreed to set forth in this Letter Agreement No.14 (the "Letter
Agreement") certain additional terms and conditions regarding the sale of the
Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1. SCOPE
The Seller is proposing to the Buyer an option to [DELETED] This option
(the "[DELETED]"), is available on the following terms and conditions.
2. GENERAL TERMS AND CONDITIONS
[DELETED].
The selection of Aircraft to be covered by the [DELETED] will be decided
on or before the [DELETED] and will be irrevocable for the selected
Aircraft. In the event that the [DELETED] is not selected on or before
such date, this Letter Agreement No.14 will be deemed cancelled.
3. PRICING
For each Aircraft that the Buyer shall have designated in accordance with
this Letter Agreement [DELETED].
4. PAYMENTS TERMS
[ DELETED].
5. PRICE REVISION [DELETED]
For each designated [DELETED] Aircraft, [DELETED]
6. ALTERNATIVE ARRANGEMENTS
The Seller is prepared to explore with the Buyer, [DELETED], alternative
schemes with respect to the [DELETED], provided that [DELETED].
7. ASSIGNMENT
Except as permitted by Clause 21 of the Agreement, this Letter Agreement
is not transferable, and the Buyer's rights under this Letter Agreement
shall not be assigned, sold, transferred or otherwise alienated by
operation of law or otherwise to any person. Any unauthorized assignment,
sale, transfer or other alienation of the Buyer's rights under this Letter
Agreement shall immediately void this Letter Agreement in its entirety.
2
<PAGE>
If the foregoing correctly sets forth our understanding, please execute
the original and one (1) copy hereof in the space provided below and
return a copy to the Seller.
Very truly yours,
AIRBUS INDUSTRIE G.I.E.
By : John J. LEAHY
-------------
Its : Senior Vice President,
Commercial
WITNESSED BY :
By :
Its :
Accepted and Agreed
GATX Flightlease Aircraft Company Ltd
By :
Its :
By :
Its :
3
<PAGE>
Letter Agreement No. 14 - Appendix A
1.1 [DELETED]
1.2 [DELETED]
1.3 [DELETED]
1.4 [DELETED]
1.5 General Provisions
1.5.1 Roundings
The Labor Index average and the Material Index average shall 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.
The final factor shall be rounded to the nearest ten-thousandth (4
decimals).
The final price shall be rounded to the nearest whole number (0.5 or
more rounded to 1).
1.5.2 Substitution of Indexes for Airframe Price Revision Formula
If;
(i) [DELETED]
(ii) [DELETED]
(iii) [DELETED]
the Seller shall select a substitute index for inclusion in the
Airframe Price Revision Formula (the "Substitute Index").
The Substitute Index shall 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
shall make an appropriate adjustment to the Airframe Price Revision
Formula to combine the successive utilisation of the original Labor
Index or Material Index (as the case may be) and of the Substitute
Index.
1.5.3 Final Index Values
The Index values as defined in Clause 1.4 above shall be considered
final and no further adjustment to the basic prices as revised at
delivery of the Aircraft shall be made after Aircraft delivery for
any subsequent changes in the published Index values.
4
<PAGE>
Letter Agreement No 15
GATX Flightlease Aircraft Company Ltd
September 16, 1999
Re: [DELETED]
Dear Sirs,
GATX Flightlease Aircraft Company Ltd (the "Buyer"), and Airbus Industrie
G.I.E. (the "Seller"), have entered into an A320 Family and A330 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 Buyer of certain
Aircraft as described in the Specifications annexed to said Agreement. The Buyer
and the Seller have agreed to set forth in this Letter Agreement No. 15 (the
"Letter Agreement") certain additional terms and conditions regarding the sale
of the Aircraft provided for in the Agreement. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement
shall have the meanings assigned thereto in the Agreement.
Both parties agree that this Letter Agreement shall constitute an
integral, nonseverable part of said Agreement and be governed by its provisions,
except that if the Agreement and this Letter Agreement have specific provisions
which are inconsistent, the specific provisions contained in this Letter
Agreement shall govern.
1
<PAGE>
1. [DELETED]
[DELETED]
i) [DELETED]
ii) [DELETED]
2. ASSIGNMENT
Except as permitted by Clause 21 of the Agreement, this Letter Agreement
is not transferable, and the Buyer's rights under this Letter Agreement
shall not be assigned, sold, transferred or otherwise alienated by
operation of law or otherwise to any person. Any unauthorized assignment,
sale, transfer or other alienation of the Buyer's rights under this Letter
Agreement shall immediately void this Letter Agreement in its entirety. If
the foregoing correctly sets forth our understanding, please execute the
original and one (1) copy hereof in the space provided below and return a
copy to the Seller.
Very truly yours,
AIRBUS INDUSTRIE G.I.E.
By : John J. LEAHY
-------------
Its : Senior Vice President, Commercial
WITNESSED BY :
By :
Its :
Accepted and Agreed
GATX Flightlease Aircraft Company Ltd
By :
Its :
By :
Its :
2
<PAGE>
APPENDIX A
1. DELETED]
1.1 Purpose and Amount
[DELETED]
1.2 [DELETED]
1.3 [DELETED]
1.4 [DELETED]
1.5 [DELETED]
i) [DELETED]
ii) [DELETED]
1.6 [DELETED]
1.7 [DELETED]
1.8 [DELETED]
1.9 [DELETED]
1.10 [DELETED]
The Buyer shall inform the Seller of its intention to [DELETED].
[DELETED]
a) [DELETED]
b) [DELETED]
2. [DELETED]
2.1 Description
[DELETED]
2.2 Purpose and Amount
[DELETED]
3
<PAGE>
2.3 [DELETED]
2.4 [DELETED]
2.5 [DELETED]
4
<PAGE>
3. [DELETED] SPARE PARTS [DELETED]
3.1 Purpose and Amount
[DELETED]
3.2 Delivery
[DELETED]
3.3 Origin of Spare Parts
[DELETED]
3.4 Terms and Conditions
[DELETED]
3.5 [DELETED]
3.6 Procedures
Two different procedures have been developed for the [DELETED]
a) a Standard Procedure[DELETED] or
b) an Alternative Procedure [DELETED]
The selection by the Buyer of one of these two procedures shall be
made one month before the signature of the[DELETED]
3.7 The Spare Parts [DELETED]
[DELETED]
5
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
CONSOLIDATED FINANCIAL STATEMENTS OF INCOME AND THE CONSOLIDATED BALANCE SHEETS
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 31,020
<SECURITIES> 0
<RECEIVABLES> 982,563 <F1>
<ALLOWANCES> 139,315
<INVENTORY> 36,776
<CURRENT-ASSETS> 0 <F3>
<PP&E> 768,161 <F2>
<DEPRECIATION> 0 <F2>
<TOTAL-ASSETS> 2,551,349
<CURRENT-LIABILITIES> 0 <F3>
<BONDS> 1,495,556 <F4>
<COMMON> 1,031 <F5>
0
1,027 <F5>
<OTHER-SE> 431,434 <F6>
<TOTAL-LIABILITY-AND-EQUITY> 2,551,349
<SALES> 0
<TOTAL-REVENUES> 399,803
<CGS> 0
<TOTAL-COSTS> 0
<OTHER-EXPENSES> 210,044 <F7>
<LOSS-PROVISION> 8,251
<INTEREST-EXPENSE> 83,502
<INCOME-PRETAX> 98,006
<INCOME-TAX> 39,448
<INCOME-CONTINUING> 58,558
<DISCONTINUED> (2,505) <F8>
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 56,053
<EPS-BASIC> 0
<EPS-DILUTED> 0
<FN>
<F1> CONSISTS OF DIRECT FINANCE LEASE RECEIVABLES OF 516,719, LEVERAGED LEASE
RECEIVABLES OF 147,867, AND SECURED LOANS OF 317,977.
<F2> CONSISTS OF COST OF EQUIPMENT LEASED TO OTHERS UNDER OPERATING LEASES,
NET OF DEPRECIATION.
<F3> GATX CAPITAL CORPORATION HAS AN UNCLASSIFIED BALANCE SHEET.
<F4> CONSISTS OF SENIOR TERM NOTES OF 1,150,000, OBLIGATIONS UNDER
CAPITAL LEASES OF 7,029, AND NONRECOURSE OBLIGATIONS OF 338,527.
<F5> PAR VALUE ONLY.
<F6> CONSISTS OF RETAINED EARNINGS OF 273,036 , ADDITIONAL PAID-IN CAPITAL OF
151,902, UNREALIZED GAINS ON MARKETABLE EQUITY SECURITIES, NET OF TAX OF 12,457
AND FOREIGN CURRENCY TRANSLATION ADJUSTMENT OF (5,961).
<F7> CONSISTS OF OPERATING LEASE EXPENSE OF 128,537, SELLING, GENERAL AND
ADMINISTRATIVE EXPENSES OF 77,928, AND OTHER EXPENSES OF 3,579.
<F8> CONSISTS OF LOSS FROM DISCONTINUED OPERATIONS, NET OF TAX OF (4,642) AND
GAIN ON SALE OF DISCONTINUED OPERATIONS, NET OF TAX OF 2,137.
</FN>
</TABLE>
