FORM 10-Q/A
QUARTERLY REPORT PURSUANT TO SECTION 13
OR 15 (D) OF THE SECURITIES EXCHANGE ACT OF 1934
(Mark One)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15 (D) OF THE
SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended September 30, 1997
or
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (D) OF
THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
US AIRWAYS GROUP, INC.
(Exact name of registrant as specified in its charter)
State of Incorporation: Delaware
2345 Crystal Drive, Arlington, Virginia 22227 (Address of
principal executive offices)
(703) 872-5306
(Registrant's telephone number, including area code)
(Commission file number: 1-8444)
(I.R.S. Employer Identification No.: 54-1194634)
US AIRWAYS, INC.
(Exact name of registrant as specified in its charter)
State of Incorporation: Delaware
2345 Crystal Drive, Arlington, Virginia 22227 (Address of
principal executive offices)
(703) 872-7000
(Registrant's telephone number, including area code)
(Commission file number: 1-8442)
(I.R.S. Employer Identification No.: 53-0218143)
Indicate by check mark whether the registrants (1) have 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 (or for such shorter
period that the registrants were required to file such reports), and (2)
have been subject to such filing requirements for the past 90 days. Yes [X]
No [ ]
As of October 31, 1997, there were outstanding approximately
91,284,000 shares of common stock of US Airways Group, Inc. and 1,000
shares of common stock of US Airways, Inc.
The registrant US Airways, Inc. meets the conditions set forth in
General Instructions H(1)(a) and (b) of Form 10-Q and is therefore
participating in the filing of this form in the reduced disclosure format
permitted by such Instructions.
EXPLANATORY NOTE
This Quarterly Report on Form 10-Q/A for the quarterly period ended
September 30, 1997 is being filed solely to re-file a new version of
Exhibit 10.1 hereto (pursuant to a confidential treatment request filed
with the Securities and Exchange Commission (SEC)) and to amend the list of
Exhibits included herein relating thereto. The 10-Q/A constitutes Amendment
No. 1 to US Airways Group Inc.'s (US Airways Group) and US Airways, Inc.'s
(US Airways) Quarterly Report on Form 10-Q for the quarterly period ended
September 30, 1997.
ITEM 6. EXHIBITS
Designation Description
*4 Certificate of Designation of the Series H Senior
Cumulative Preferred Stock
10.1 Purchase agreement dated October 31, 1997 between
US Airways Group and AVSA, S.A.R.L. (AVSA), an
affiliate of aircraft manufacturer Airbus Industrie
G.I.E. (incorporated by reference to Exhibit 10.1
to US Airways Group's Quarterly Report on Form 10-Q
for the three months ended September 30, 1997)
(portions of this exhibit were omitted pursuant to
a request for confidential treatment filed
separately with the SEC).
*10.2 Employment agreement between US Airways, Inc. and
its Chief Financial Officer.
*11 Computation of Primary and Fully Diluted Income
(Loss) Per Common Share for the three months and
nine months ended September 30, 1997 for
US Airways Group, Inc.
*27.1 Financial Data Schedule - US Airways Group, Inc.
*27.2 Financial Data Schedule - US Airways, Inc.
- ------------------------------
* Filed previously with or incorporated by reference in Form 10-Q on
September 30, 1997.
(this space intentionally left blank)
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrants have duly caused this report to be signed on their behalf
by the undersigned, thereunto duly authorized.
Dated: May 24, 1999 US AIRWAYS GROUP, INC. (REGISTRANT)
By: /s/ Thomas A. Mutryn
-----------------------------------------
Thomas A. Mutryn, Chief Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
Dated: May 24, 1999 US AIRWAYS, INC. (REGISTRANT)
By: /s/ Thomas A. Mutryn
------------------------------------------
Thomas A. Mutryn, Chief Financial Officer
(Principal Financial Officer and Principal
Accounting Officer)
EXHIBIT 10.1
***Pursuant to 17 CFR 240.24b-2, confidential information has been omitted
and has been filed separately with the Securities and Exchange Commission
pursuant to a Confidential Treatment Application filed with the Commission.
AIRBUS A319/A320/A321 PURCHASE AGREEMENT
Dated as of October 31, 1997
between
AVSA, S.A.R.L.,
Seller
and
US Airways Group, Inc.,
Buyer
C O N T E N T S
CLAUSES TITLE
0 PURCHASE AGREEMENT
1 DEFINITIONS
2 SALE AND PURCHASE
3 CHANGES
4 PRICE
5 PRICE REVISION
6 PAYMENT TERMS
7 PLANT REPRESENTATIVES - INSPECTION
8 BUYER'S ACCEPTANCE
9 DELIVERY
10 EXCUSABLE DELAY
11 INEXCUSABLE DELAY
12 WARRANTIES AND SERVICE LIFE POLICY
13 PATENT INDEMNITY
14 TECHNICAL PUBLICATIONS
15 FIELD ASSISTANCE
16 TRAINING AND TRAINING AIDS
17 VENDORS' PRODUCT SUPPORT
18 BUYER FURNISHED EQUIPMENT AND DATA
19 ASSIGNMENT
20 DATA RETRIEVAL
21 TERMINATION FOR CERTAIN EVENTS
22 MISCELLANEOUS PROVISIONS
C O N T E N T S
EXHIBITS TITLE
EXHIBIT "A-1" A319 AIRCRAFT SPECIFICATION
EXHIBIT "A-2" A320 AIRCRAFT SPECIFICATION
EXHIBIT "A-3" A321 AIRCRAFT SPECIFICATION
EXHIBIT "B" CHANGE ORDERS TO STANDARD SPECIFICATIONS
(SCNs)
EXHIBIT "C" SCN FORM
EXHIBIT "D" SELLER SERVICE LIFE POLICY
EXHIBIT "E" CERTIFICATE OF ACCEPTANCE
EXHIBIT "F" TECHNICAL PUBLICATIONS
EXHIBIT "G" AIRFRAME PRICE REVISION FORMULA
EXHIBIT "H-1" CFM INTERNATIONAL PRICE REVISION FORMULA FOR
A319 AIRCRAFT
EXHIBIT "H-2" CFM INTERNATIONAL PRICE REVISION FORMULA FOR
A320 AIRCRAFT
EXHIBIT "H-3" CFM INTERNATIONAL PRICE REVISION FORMULA FOR
A321 AIRCRAFT
C O N T E N T S
LETTER AGREEMENTS TITLE
LETTER AGREEMENT NO. 1 SPARE PARTS PROCUREMENT
LETTER AGREEMENT NO. 2 DELIVERIES
LETTER AGREEMENT NO. 3 ADDITIONAL AIRCRAFT
LETTER AGREEMENT NO. 4 CONVERSION RIGHTS
LETTER AGREEMENT NO. 5 PURCHASE INCENTIVES
LETTER AGREEMENT NO. 6 SPECIFICATION MATTERS
LETTER AGREEMENT NO. 7 PRODUCT SUPPORT
LETTER AGREEMENT NO. 8A A319 PERFORMANCE GUARANTEES - CFM
56-5B-6
LETTER AGREEMENT NO. 8B A320 PERFORMANCE GUARANTEES - CFM
56-5B-4
LETTER AGREEMENT NO. 8C A321 PERFORMANCE GUARANTEES - CFM
56-5B-3
LETTER AGREEMENT NO. 9 ***
LETTER AGREEMENT NO. 10 ***
LETTER AGREEMENT NO. 11 PREDELIVERY PAYMENTS
LETTER AGREEMENT NO. 12 ***
LETTER AGREEMENT NO. 13 TECHNICAL DISPATCH RELIABILITY
GUARANTEE
P U R C H A S E A G R E E M E N T
This agreement is made this 31st day of October 1997
between
AVSA, a societe a responsabilite limitee organized and
existing under the laws of the Republic of France, having
its registered office located at
2, rond-point Maurice Bellonte
31700 BLAGNAC
FRANCE
(hereinafter referred to as the "Seller")
and
US Airways Group, Inc. a corporation organized and existing
under the laws of the State of Delaware, United States of
America, having its executive offices located at
2345 Crystal Drive
Arlington, VA 22227
(hereinafter referred to as the "Buyer")
WHEREAS,
a) the Buyer wishes to purchase and the Seller is willing to sell up
to four hundred (400) Airbus Industrie aircraft, upon the terms and
conditions herein provided; and
b) the Seller is a sales subsidiary of Airbus Industrie, G.I.E., and
will purchase the A319, A320 and A321 model aircraft from Airbus
Industrie, G.I.E., for resale to the Buyer.
NOW THEREFORE IT IS AGREED AS FOLLOWS:
1 - DEFINITIONS
-----------
For all purposes of this agreement, except as otherwise
expressly provided or unless the context otherwise requires,
the following terms will have the following meanings:
A319 Aircraft - any or all of the Firm A319 Aircraft,
Reconfirmable A319 Aircraft and Additional Aircraft that the
Buyer selects as A319-100 aircraft and Aircraft that the
Buyer converts into A319-100 aircraft to be purchased by the
Seller and sold to the Buyer pursuant to this Agreement,
together with all components, equipment, parts and
accessories installed in or on such aircraft and the
Propulsion Systems installed thereon upon delivery.
A319 Airframe - any A319 Aircraft, excluding the Propulsion
Systems therefor.
A320 Aircraft - any or all of the Firm A320 Aircraft,
Reconfirmable A320 Aircraft and Additional Aircraft that the
Buyer selects as A320-200 aircraft and Aircraft that the
Buyer converts into A320-200 aircraft to be purchased by the
Seller and sold to the Buyer pursuant to this Agreement,
together with all components, equipment, parts and
accessories installed in or on such aircraft and the
Propulsion Systems installed thereon upon delivery.
A320 Airframe - any A320 Aircraft, excluding the Propulsion
Systems therefor.
A321 Aircraft - any or all of the Additional Aircraft that
the Buyer selects as A321- 200 aircraft and Aircraft that
the Buyer converts into A321-200 aircraft to be purchased by
the Seller and sold to the Buyer pursuant to this Agreement,
together with all components, equipment, parts and
accessories installed in or on such aircraft and the
Propulsion Systems installed thereon upon delivery.
A321 Airframe - any A321 Aircraft, excluding the Propulsion
Systems therefor.
Additional Aircraft - up to one hundred sixty (160)
A319-100, A320-200 and/or A321-200 model aircraft other than
Firm Aircraft and Reconfirmable Aircraft that may be
purchased by the Seller and sold to the Buyer pursuant to
this Agreement, together with all components, equipment,
parts and accessories installed in or on such aircraft and
the Propulsion Systems installed thereon upon delivery.
Affiliate - with respect to any person or entity, any other
person or entity directly or indirectly controlling,
controlled by or under common control with such person or
entity, not including any of the Associated Contractors.
Agreement - this Airbus A319/A320/A321 Purchase Agreement,
including all exhibits, appendices and letter agreements
attached or otherwise incorporated herein and all SCNs, as
the same may be amended or modified (whether by formal
amendment, letter, correspondence or otherwise in writing)
from time to time, and in effect from time to time.
Aircraft - any or all of the A319 Aircraft, A320 Aircraft
and A321 Aircraft to be purchased by the Seller and sold to
the Buyer pursuant to this Agreement, together with all
components, equipment, parts and accessories installed in or
on such aircraft and the Propulsion Systems installed
thereon upon delivery.
Airframe - any Aircraft, excluding the Propulsion Systems
therefor.
Airframe Price Revision Formula - the formula set forth in
Exhibit "G" of this Agreement.
ASC - Airbus Service Company, Inc., a corporation organized
and existing under the laws of the State of Delaware, having
its registered office located at 198 Van Buren Street, Suite
300, Herndon, VA 20170, or any successor thereto.
Associated Contractors - collectively, the members and, for
certain purposes, subcontractors of the Manufacturer from
time to time, which members presently are:
(1) AEROSPATIALE, SOCIETE NATIONALE INDUSTRIELLE
("Aerospatiale"), whose principal office is at
37, Boulevard de Montmorency
75016 Paris
France
(2) BRITISH AEROSPACE (OPERATIONS) LTD, whose principal
office is at
Warwick House
PO Box 87
Farnborough Aerospace Centre
Farnborough
Hants GU14 6YU
England
(3) CONSTRUCCIONES AERONAUTICAS, S.A., whose principal
office is at
404 Avenida de Aragon
28022 Madrid
Spain
(4) DAIMLER-BENZ AEROSPACE AIRBUS, GmbH ("Daimler-Benz"),
whose principal office is at
Kreetslag 10
Postfach 95 01 09
21111 Hamburg
Germany
ATA Specification 100 - the specification issued by the Air
Transport Association of America relating to manufacturers'
technical data.
ATA Specification 101 - the specification issued by the Air
Transport Association of America relating to ground
equipment technical data.
ATA Specification 102 - the specification issued by the Air
Transport Association of America relating to software
programs.
ATA Specification 200 - the specification issued by the Air
Transport Association of America relating to integrated data
processing.
ATA Specification 300 - the specification issued by the Air
Transport Association of America relating to the packaging
of spare parts shipments.
ATA Specification 2000 - the specification issued by the Air
Transport Association of America relating to an
industry-wide communication system linking suppliers and
users for the purposes of spares provisioning, purchasing,
order administration, invoicing and information or data
exchange.
ATA Specification 2100 - the specification issued by the Air
Transport Association of America relating to the standards
for the presentation of technical information prepared as
digital media (magnetic tape or CD ROM).
Base Price - for any Aircraft, Airframe or Propulsion
Systems, as defined in Subclause 4.1 of this Agreement.
Buyer Furnished Equipment - for any Aircraft, all the items
of equipment that will be furnished by the Buyer and
installed in the Aircraft by the Seller, as defined in the
Specification.
***
Commercial Constraints - means delivery positions that are
not available solely because they are under offer to another
customer or because they would require unreasonably
expensive modifications to meet the Specification.
Courseware - computer-based-training programs developed and
owned or licensed by the Seller in conjunction with the
Buyer's training programs.
Customer Originated Changes - as defined in Subclause 14.5.3
of this Agreement.
Deposit - as defined in Subclause 6.2.4 of this Agreement.
Development Changes - as defined in Subclause 3.2 of this
Agreement.
DGAC - the Direction Generale de l'Aviation Civile of
France, or any successor agency thereto.
Excusable Delay - as defined in Subclause 10.1 of this
Agreement.
FAA - the U.S. Federal Aviation Administration, or any
successor agency thereto.
Failure - as defined in Subclause 12.2 of this Agreement.
Final Contract Price - as defined in Subclause 4.2 of this
Agreement.
Firm A319 Aircraft - any or all of the one hundred nine
(109) firm A319-100 aircraft for which the delivery schedule
is set forth in Subclause 9.1.1 hereof to be purchased by
the Seller and sold to the Buyer pursuant to this Agreement,
together with all components, equipment, parts and
accessories installed in or on such aircraft and the
Propulsion Systems installed thereon upon delivery.
Firm A320 Aircraft - any or all of the fifteen (15) firm
A320-200 aircraft for which the delivery schedule is set
forth in Subclause 9.1.1 hereof to be purchased by the
Seller and sold to the Buyer pursuant to this Agreement,
together with all components, equipment, parts and
accessories installed in or on such aircraft and the
Propulsion Systems installed thereon upon delivery.
Firm Aircraft - any or all of the Firm A319 Aircraft and
Firm A320 Aircraft to be purchased by the Seller and sold to
the Buyer pursuant to this Agreement, together with all
components, equipment, parts and accessories installed in or
on such aircraft and the Propulsion Systems installed
thereon upon delivery.
Industrial Constraints - means delivery positions that are
not physically available, because production capacity limits
have been reached.
Inexcusable Delay - as defined in Subclause 11.1 of this
Agreement.
In-house Warranty - as referred to in Subclause 12.1.7 of
this Agreement.
In-house Warranty Labor Rate - as defined in Subclause
12.1.7(v) of this Agreement.
Interface Problem - as defined in Subclause 12.4.1 of this
Agreement.
Item - as defined in Subclause 12.2 of this Agreement.
LBA - Luftfahrt-Bundesamt of Germany or any successor agency
thereto.
LIBOR - for each stated interest period, the rate for
deposits in US dollars being quoted to prime banks in the
London Interbank Market for such an interest period, at
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. Such rate may be displayed on the
Reuters Screen LIBO Page, the Bloomberg LIBOR screen, or in
the Wall Street Journal or The Financial Times. The Buyer
and Seller will consult these sources and agree on the rate.
In the event that agreement cannot be reached, 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), otherwise the rate for that
interest period will be "LIBOR" 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).
Manufacturer - Airbus Industrie, a "Groupement d'Interet
Economique" established under "Ordonnance" No. 67-821 dated
September 23, 1967, of the Republic of France.
Material - as defined in Subclause 1.1 of Letter Agreement
No. 1 to the Agreement.
Material Breach - as defined in Subclause 21.1 of this
Agreement.
Predelivery Payment - any payment made against the Final
Contract Price of an Aircraft, the expected schedule for
which is set forth in Subclause 6.2.2 of this
Agreement.
Predelivery Payment Reference Price - as defined in
Subclause 6.2.3 of this Agreement.
Product Support Agreements - as referred to in Subclause
17.1.1 of this Agreement.
Propulsion Systems - the two (2) powerplants manufactured by
CFM International to be installed, as applicable, on an A319
Aircraft, A320 Aircraft or A321 Aircraft at delivery, each
composed of the powerplant (as such term is defined in
Chapters 70-80 of ATA Specification 100 (Revision 21), but
limited to the equipment, components, parts and accessories
included in the powerplant, as so defined), that have been
sold to the Manufacturer by CFM International, which do not
include the nacelles or thrust reversers.
Qualifying Affiliate - as defined in Subclause 19.5 of this
Agreement.
Reconfirmable A319 Aircraft - any or all of the
reconfirmable A319-100 aircraft that may be purchased by the
Seller and sold to the Buyer pursuant to this Agreement,
together with all components, equipment, parts and
accessories installed in or on such aircraft and the
Propulsion Systems installed thereon upon delivery.
Reconfirmable A320 Aircraft - any or all of the
reconfirmable A320-200 aircraft that may be purchased by the
Seller and sold to the Buyer pursuant to this Agreement,
together with all components, equipment, parts and
accessories installed in or on such aircraft and the
Propulsion Systems installed thereon upon delivery.
Reconfirmable A321 Aircraft - any or all of the
reconfirmable A321-200 aircraft that may be purchased by the
Seller and sold to the Buyer pursuant to this Agreement,
together with all components, equipment, parts and
accessories installed in or on such aircraft and the
Propulsion Systems installed thereon upon delivery.
Reconfirmable Aircraft - any or all of the Reconfirmable
A319 Aircraft, Reconfirmable A320 Aircraft and Reconfirmable
A321 Aircraft that may be purchased by the Seller and sold
to the Buyer pursuant to this Agreement, together with all
components, equipment, parts and accessories installed in or
on such aircraft and the Propulsion Systems installed
thereon upon delivery.
RFC - as defined in Subclause 3.3 of this Agreement.
SCN - as defined in Subclause 3.1 of this Agreement.
Seller Parts - industrial proprietary components, equipment,
accessories or parts of the Manufacturer manufactured to the
detailed design of the Manufacturer or a subcontractor of it
and bearing official part numbers of the Manufacturer or
material for which the Seller has exclusive sales rights in
the United States of America.
Service Life Policy - as referred to in Subclause 12.2 of
this Agreement.
Specifications - as defined in Subclause 2.2 of this
Agreement.
Standard Specifications - as defined in Subclause 2.2 of
this Agreement.
Technical Publications - as defined in Subclause 14.1 of
this Agreement.
Training - as defined in Subclause 16.1 of this Agreement.
Training Conference - as defined in Subclause 16.2.1 of this
Agreement.
Vendor - each manufacturer of Vendor Parts.
Vendor Component - as defined in Subclause 12.4.3 of this
Agreement.
Vendor Parts - any equipment, component, accessory, or part
installed in or intended to be installed in an Aircraft,
other than Warranted Parts, Propulsion Systems and
Buyer Furnished Equipment.
Warranted Part - as defined in Subclause 12.1.1 of this
Agreement.
Warranty Claim - as defined in Subclause 12.1.6(iv) of this
Agreement.
Working Day - with respect to any action to be taken
hereunder, a day other than a Saturday, Sunday or other day
designated as a legal holiday in the jurisdiction in which
such action is required to be taken, provided that for
purposes of determining when any notice or election, any
payment or any delivery of any Aircraft is required to be
made, "Working Days" will mean any day other than a
Saturday, Sunday or other day designated as a legal holiday
or on which banks are permitted to be closed in (a)
Toulouse, France, with respect to A320 Aircraft, (b)
Hamburg, Germany, with respect to A319 Aircraft and A321
Aircraft, (c) New York, New York or (d) any other location
where applicable United States federal offices (such as
those of the FAA) are located.
The terms "herein," "hereof" and "hereunder" and other words
of similar import refer to this Agreement, and not a
particular Clause thereof.
The term "including" as used in this Agreement means
"including, without limitation," unless otherwise specified
or unless the context otherwise requires.
Technical and trade items not otherwise defined herein will
have the meanings assigned to them as generally accepted in
the aircraft manufacturing industry.
2 - SALE AND PURCHASE
2.1 General
The Seller will cause to be manufactured and will sell and
deliver, and the Buyer will buy and take delivery of the
Aircraft subject to the terms and conditions contained
in this Agreement.
2.2 Specification Documents
Each Aircraft will be manufactured, and when delivered will
be in accordance with the Specification for such Aircraft:
(i) in respect of the A319 Aircraft, Standard
Specification Document No. J.000.01000, Issue 3,
Temporary Revision 1, dated August 25, 1995 (the
"A319 Standard Specification"),
(ii) in respect of A320 Aircraft, Standard Specification
Document No. D.000.02000, Issue 4, dated March 30,
1995, (the "A320 Standard Specification"), and
(ii) in respect of A321 Aircraft, Standard Specification
Document No. E.000.02000, Issue 1, dated June 30,
1995 (the "A321 Standard Specification").
Copies of the A319 Standard Specification, A320 Standard
Specification and A321 Standard Specification are annexed
hereto as, respectively, Exhibit "A-1," Exhibit "A-2" and
Exhibit "A-3" to this Agreement (collectively, the "Standard
Specifications"). The Standard Specifications, as amended by
the change orders set forth in Exhibit "B" hereto are
hereinafter referred to as the "Specifications." The
Specifications may be further modified from time to time
pursuant to the provisions of Clause 3 below.
2.3 Certification
Prior to the delivery of the first A319 Aircraft, the first
A320 Aircraft and the first A321 Aircraft, the Seller will
obtain or cause to be obtained a US FAA Type Certificate
(transport category) for the Aircraft pursuant to Part 21
and in compliance with the applicable provisions of Part 25
of the US Federal Aviation Regulations. At or before such
time, the Seller will provide the Buyer with a copy of each
such Type Certificate.
Each Aircraft will be delivered to the Buyer with (i) the
Certificate of Airworthiness for Export issued by the LBA
for A319 Aircraft and A321 Aircraft and DGAC for A320
Aircraft, ***. The Buyer will remain responsible for the
United States registration of the Aircraft. The Seller will
not be liable for any failure to obtain the above
certificates if the Buyer fails to cooperate. The Seller
will have no obligation, whether before, at or after
delivery of any Aircraft, to make any alterations to such
Aircraft to enable such Aircraft to meet FAA requirements
for specific operation on routes unique to the Buyer, ***.
Except as set forth in this Subclause 2.3, the Seller will
not be required to obtain any other certificate or approval
with respect to the Aircraft.
3 - CHANGES
3.1 Specification Change Notices
The Specifications may be amended from time to time by a
Specification Change Notice, a written agreement between the
parties (each such Specification Change Notice being herein
called an "SCN" and being substantially in the form of
Exhibit "C" hereto). Each SCN will set forth in detail the
particular changes to be made in the Specifications, and the
effect, if any, of such changes on design, performance,
weight, balance, time of delivery, Buyer Furnished Equipment
and price (in base year dollars and, for information
purposes only, in then current year dollars) of each
Aircraft affected thereby and interchangeability or
replaceability of parts. SCNs will not be binding on either
party until signed by persons duly authorized in writing by
the Buyer and the Seller, but upon being so signed will
constitute amendments to this Agreement. All SCNs will be
signed on behalf of the Buyer by an officer in its finance
department and an officer in flight operations or
maintenance, or alternatively may be signed by the Buyer's
chief executive officer or president.
3.2 Development Changes
***, the Specifications may also be revised by the Seller
without an SCN or the Buyer's consent solely to incorporate
Manufacturer-decided changes that are deemed necessary or
useful to correct defects, improve the Aircraft or its
process of manufacture, prevent delay, or ensure compliance
with this Agreement and that do not increase the price or
adversely affect the delivery, overall dimensions, weight,
operational or maintenance requirements or performance of
the Aircraft or adversely (i) change the interchangeability
or replaceability requirements of the Specifications with
respect to parts or (ii) *** (hereinafter called
"Development Changes"). *** Such list is called the
Technical Information Document (TID).
3.3 Requests and Approvals
In the event that the Buyer files a Request for Change
("RFC") with the Seller and the RFC does not subsequently
become an SCN for any reason, such RFC will be cancelled
without charge to the Buyer. Upon receipt of any request for
a proposed change, the Seller will consider such request in
good faith and will respond within ten (10) Working Days
with (i) if possible, all appropriate information,
including, a written estimated range of the cost thereof,
the impact on the delivery dates of the applicable Aircraft
and any certification requirements, or (ii) if (i) is not
possible, with a date when the Seller will provide the Buyer
with the information in (i). In the event that the Buyer
requests the Seller in writing to incorporate a proposed
change (excluding Development Changes) in an Aircraft and
the Seller agrees to such request and incorporates such
change, but the change is not subsequently made the subject
of an SCN for any reason (other than the Seller's
unreasonable refusal to sign the SCN or otherwise acting in
bad faith), the Buyer will pay to the Seller the actual
direct cost of design and other work resulting from such
request and incurred by the Seller ***. In the event that
the Buyer requests the Seller in writing to proceed with
a proposed change before any requisite approval of the LBA,
for A319 Aircraft and A321 Aircraft, DGAC, for A320
Aircraft, and FAA has been obtained and subsequently such
LBA, DGAC or FAA approval is not obtained, any SCN which
will have been executed in connection with such proposed
change will be deemed cancelled. ***
3.4 Specification Changes Before Delivery
If, pursuant to the promulgation, adoption, issuance, change
or interpretation of any applicable law or regulation, any
change in the Specifications has to be made before delivery
of any Aircraft to enable ***. For each such change, the
parties will sign an SCN specifying the effect, if any, of
such change on design, performance, weight, balance, time of
delivery, Buyer Furnished Equipment and price of each
Aircraft affected thereby and interchangeability or
replaceability of parts. If the Seller anticipates that the
scheduled delivery of any Aircraft will be postponed by
reason of such change, the delivery date of such Aircraft as
provided in Subclause 9.1 will be extended to the extent
required by reason of such change, ***.
The Seller will use all reasonable efforts to ensure that
each Aircraft that is the subject of such postponement is
"ready for delivery" without discrimination against
the Aircraft.
***
The cost of the changes applicable to Propulsion Systems,
will be borne by the Buyer or the manufacturer thereof in
accordance with such arrangements as may be made separately
between the Buyer and the manufacturer of the Propulsion
Systems.
3.5 Specification Changes After Delivery
Subclause 3.4 will not require the Seller to make any
changes or modifications to or to make any payments or take
any other action with respect to any Aircraft delivered to
the Buyer before any law or regulation referred to in
Subclause 3.4 is to be complied with. Any such changes or
modifications made to an Aircraft after its delivery to the
Buyer will be at the Buyer's expense, except as otherwise
agreed between the Buyer and the Seller.
3.6 Specification Evolution
The Seller will keep the Buyer advised of any evolution in
the design of the A320 family of aircraft and of any new
relevant option that becomes available with respect
to the Aircraft.
4 - PRICE
4.1 Base Price of the Aircraft
The "Base Price" of each Aircraft is the sum of:
(i) the Base Price of the Airframe, and
(ii) the Base Price of the Propulsion Systems.
4.1.1 Base Price of the Airframe
4.1.1.1 A319 Airframe
The Base Price of the A319 Airframe will be the sum of the
Base Prices set forth below in (i) and (ii):
(i) the Base Price of the Standard A319 Airframe, as
defined in the A319 Standard Specification set forth
in Exhibit "A-1" hereto (excluding Buyer Furnished
Equipment, Propulsion Systems and SCNs), at delivery
conditions prevailing in January 1996, which is:
US $ ***
(US dollars-***), and
(ii) the Base Price of any and all SCNs mutually agreed
upon prior to the signature of this Agreement and set
forth in Exhibit "B," at delivery conditions
prevailing in January 1996, which is:
US $ ***
(US dollars-***).
4.1.1.2 A320 Airframe
The Base Price of the A320 Airframe will be the sum of the
Base Prices set forth below in (i) and (ii):
(i) the Base Price of the Standard A320 Airframe, as
defined in the A320 Standard Specification set forth
in Exhibit "A-2" hereto (excluding Buyer Furnished
Equipment, Propulsion Systems and SCNs), at delivery
conditions prevailing in January 1996, which is:
US $ ***
(US dollars-***), and
(ii) the Base Price of any and all SCNs mutually agreed
upon prior to the signature of this Agreement and set
forth in Exhibit "B," at delivery conditions
prevailing in January 1996, which is:
US $ ***
(US dollars-***).
4.1.1.3 A321 Airframe
The Base Price of the A321 Airframe will be the sum of the
Base Prices set forth below in (i) and (ii):
(i) the Base Price of the Standard A321 Airframe, as
defined in the A321 Standard Specification set forth
in Exhibit "A-3" hereto (excluding Buyer Furnished
Equipment, Propulsion Systems and SCNs), at delivery
conditions prevailing in January 1996, which is:
US $ ***
(US dollars-***), and
(ii) the Base Price of any and all SCNs mutually agreed
upon prior to the signature of this Agreement and set
forth in Exhibit "B," at delivery conditions
prevailing in January 1996, which is:
US $ ***
(US dollars-***).
4.1.1.4 The Base Price of the Airframe of each Aircraft will be
revised to the actual delivery date of such Aircraft in
accordance with the Airframe Price Revision Formula.
4.1.2 Base Price of the Propulsion Systems
4.1.2.1 A319 Aircraft
4.1.2.1.1 CFM International CFM 56-5B-6/P Propulsion Systems
The Base Price of a set of two (2) CFM 56-5B-6/P Propulsion
Systems is the sum of the Base Prices quoted below in (i)
and (ii):
(i) Base Price of the CFM 56-5B-6/P Engines
The Base Price of a set of two (2) CFM 56-5B-6/P
engines and additional standard equipment, at
delivery conditions prevailing in January 1996,
which is:
US $ ***
(US dollars-***).
Said Base Price has been calculated with reference
to the Reference Price indicated by CFM
INTERNATIONAL of US $*** as defined by the
Reference Composite Price Index of *** and in
accordance with economic conditions prevailing in ***.
Said Reference Price is subject to adjustment to
the date of delivery of the Aircraft in accordance
with the CFM INTERNATIONAL Price Revision Formula
set forth in Exhibit "H-1" of this Agreement.
(ii) Base Price of Nacelles and Thrust Reversers
The Base Price of a set of two (2) nacelles and two
(2) thrust reversers for the CFM 56-5B-6/P
Propulsion Systems at delivery conditions
prevailing in January 1996, which is:
US $ ***
(US dollars-- ***).
Said Base Price is subject to adjustment to the
date of delivery of the Aircraft in accordance with
the Airframe Price Revision Formula.
4.1.2.2 A320 Aircraft
4.1.2.2.1 CFM International CFM 56-5B-4/P Propulsion Systems
The Base Price of a set of two (2) CFM 56-5B-4/P Propulsion
Systems is the sum of the Base Prices quoted below in (i)
and (ii):
(i) Base Price of the CFM 56-5B-4/P Engines
The Base Price of a set of two (2) CFM 56-5B-4/P
engines and additional standard equipment, at
delivery conditions prevailing in January 1996,
which is:
US $ ***
(US dollars-***).
Said Base Price has been calculated with reference
to the Reference Price indicated by CFM
INTERNATIONAL of US $*** as defined by the
Reference Composite Price Index of *** and in
accordance with economic conditions prevailing in ***.
Said Reference Price is subject to adjustment to
the date of delivery of the Aircraft in accordance
with the CFM INTERNATIONAL Price Revision Formula
set forth in Exhibit "H-2" of this Agreement.
(ii) Base Price of Nacelles and Thrust Reversers
The Base Price of a set of two (2) nacelles and two
(2) thrust reversers for the CFM 56-5A-3/P
Propulsion Systems at delivery conditions
prevailing in January 1996, which is:
US $ ***
(US dollars-***).
Said Base Price is subject to adjustment to the
date of delivery of the Aircraft in accordance with
the Airframe Price Revision Formula.
4.1.2.3 A321 Aircraft
4.1.2.3.1 CFM International CFM 56-5B-3/P Propulsion Systems
The Base Price of a set of two (2) CFM 56-5B-3/P Propulsion
Systems is the sum of the Base Prices quoted below in (i)
and (ii):
(i) Base Price of the CFM 56-5B-3/P Engines
The Base Price of a set of two (2) CFM 56-5B-3/P
engines and additional standard equipment, at
delivery conditions prevailing in January 1996,
which is:
US $ ***
(US dollars-***).
Said Base Price has been calculated with reference
to the Reference Price indicated by CFM
INTERNATIONAL of US$*** as defined by the Reference
Composite Price Index of *** and in accordance with
economic conditions prevailing in ***.
Said Reference Price is subject to adjustment to
the date of delivery of the Aircraft in accordance
with the CFM INTERNATIONAL Price Revision Formula
set forth in Exhibit "H-3" of this Agreement.
(ii) Base Price of Nacelles and Thrust Reversers
The Base Price of a set of two (2) nacelles and two
(2) thrust reversers for the CFM 56-5B-3/P
Propulsion Systems at delivery conditions
prevailing in January 1996, which is:
US $ ***
(US dollars-***).
Said Base Price is subject to adjustment to the
date of delivery of the Aircraft in accordance with
the Airframe Price Revision Formula.
4.2 Final Contract Price
The Final Contract Price of an Aircraft will be the sum of:
(i) the Base Price of the Airframe constituting a
part of such Aircraft, as adjusted to the date of
delivery of such Aircraft in accordance with
Subclause 5.1 of this Agreement;
(ii) the price (as of delivery conditions prevailing
in January 1996) of any SCNs constituting a part
of such Aircraft that are entered into pursuant
to Clause 3 after the date of execution of this
Agreement, as adjusted to the date of delivery of
such Aircraft in accordance with Subclause 5.1 of
this Agreement;
(iii) the Reference Price of the installed Propulsion
Systems constituting a part of such Aircraft, as
adjusted to the date of delivery of such Aircraft
in accordance with Subclause 5.2 of this
Agreement; and
(iv) any other adjustment resulting from any other
provisions of this Agreement and/or any other
written agreement between the Buyer and the
Seller relating to the Aircraft and specifically
stating that such adjustment is to be included in
or taken into account in the Final Contract Price
of an Aircraft, such as the Seller's purchase of
Buyer Furnished Equipment from the Buyer.
4.3 Validity of Propulsion Systems Prices
It is understood that the prices cited above and the price
revision formulas referred to in Subclause 5.2 concerning
the Propulsion Systems and related equipment are based on
information received from the Propulsion Systems
manufacturer and remain subject to any modifications that
might be jointly communicated by the Propulsion Systems
manufacturer and the Buyer to the Seller and the
Manufacturer.
4.4 Taxes, Duties and Imposts
4.4.1 The Seller will bear and pay the amount of any and all
taxes, duties, imposts or similar charges of any nature
whatsoever that are (i) imposed upon the Buyer, or any
assignee pursuant to an assignment as set forth in Clause
19, (ii) imposed upon the Seller with an obligation on the
Buyer to withhold or collect the amount thereof from the
Seller or (iii) imposed upon the Buyer with an obligation on
the Seller to withhold or collect such amount from the
Buyer, and that are levied, assessed, charged or collected
for or in connection with the fabrication, manufacture,
modification, assembly, sale, delivery, use of or payment
under this Agreement for any Aircraft, component, accessory,
service, equipment or part delivered or furnished hereunder,
provided such taxes, duties, imposts or similar charges have
been levied, assessed, charged or collected in the Republic
of France under laws promulgated and enforceable in the
Republic of France, in respect of A320 Aircraft, and Germany
under laws promulgated and enforceable in Germany, in
respect of A319 Aircraft and A321 Aircraft.
4.4.2 The Buyer will bear and pay the amount of any and all taxes,
duties, imposts or similar charges of any nature whatsoever
imposed upon the Seller (except for taxes based on or
measured by the Seller's income), imposed upon the Buyer
with an obligation on the Seller to collect the amount
thereof for the Buyer, or imposed upon the Seller with an
obligation for the Buyer to withhold such amount from the
Seller (except for income taxes collected by withholding),
which are levied, assessed, charged or collected for or in
connection with the sale, delivery or use of (except any use
prior to delivery to the Buyer), or payment under this
Agreement for any Aircraft, component, accessory, equipment
or part delivered or furnished hereunder, provided such
taxes, duties, imposts or similar charges have been
promulgated and are enforceable under any laws ***.
4.4.3 If a claim is made against one party (the "Indemnitee") for
any taxes, duties, imposts or similar charges for which the
other party (the "Indemnitor") has agreed to be liable
pursuant to the provisions of this Agreement, the Indemnitee
will promptly notify the Indemnitor. In lieu of any
direction or request by the Indemnitor received within five
(5) Working Days of the due date specified in said claim,
the Indemnitee may pay the amount of said tax, duty, impost
or charge and claim against the Indemnitor for reimbursement
consistent with Subclause 4.4. However, if requested by the
Indemnitor in writing, the Indemnitee will, at the
Indemnitor's expense, take such action as the Indemnitor may
reasonably direct with respect to such asserted liability
and will not pay such taxes, duties, imposts or similar
charges except under protest, if protest is necessary. If
payment is made, the Indemnitee will, at the Indemnitor's
expense, take such action as the Indemnitor may reasonably
direct to recover payment and will, if requested, permit the
Indemnitor in the Indemnitee's name to file a claim or
commence an action to recover such payment. If the
Indemnitee will receive a refund or credit for all or any
part of such taxes, duties, imposts or similar charges, then
the Indemnitee will promptly repay the Indemnitor the amount
of any such refund or credits which are attributable to the
amount paid by the Indemnitor, including any interest
received thereon, but less any expenses incurred by the
Indemnitee in pursuing such refund or credit.
5 - PRICE REVISION
5.1 Airframe Price Revision Formula
Base Price of the Airframe of each Aircraft will be revised
to the actual delivery date of such Aircraft in accordance
with the Airframe Price Revision Formula, unless otherwise
provided in this Agreement.
5.2 Propulsion Systems Price Revision Formula
The Reference Price of the Propulsion Systems will be
revised to the actual delivery date of the Aircraft on which
such Propulsion Systems are installed in accordance with the
revision formula set forth in, as applicable, Exhibit "H-1,"
Exhibit "H-2" or Exhibit "H-3" hereto, unless otherwise
provided in this Agreement.
6 - PAYMENT TERMS
6.1 Method and Place of Payment
6.1.1 The Buyer will pay all sums due hereunder in immediately
available funds in United States dollars by credit to the
Seller's account at Credit Lyonnais, New York Branch, or to
such other account located in the United States of America
as the Seller will designate by notice to the Buyer.
6.1.2 The Seller will pay all sums due hereunder to the Buyer in
immediately available funds in United States dollars by
credit to the Buyer's account, account no. 2147591, at PNC
Bank in Pittsburgh, Pennsylvania, or to such other account
located in the United States of America as the Buyer
designates by notice to the Seller.
6.2 Predelivery Payments
6.2.1 Predelivery Payments will be paid by the Buyer to the Seller
for each Aircraft and will, in the aggregate, amount to ***
of the Predelivery Payment Reference Price of the Aircraft
defined below in Subclause 6.2.3. ***
6.2.2 Predelivery Payments will be paid according to the following
schedules.
6.2.2.1 Predelivery Payments will be paid according to the following
schedule:
Percentage of the Predelivery
Payment Date Reference Price
*** ***
6.2.2.2 Predelivery Payments for the Reconfirmable Aircraft and
Additional Aircraft will be paid according to the following
schedule:
Percentage of the Predelivery
Payment Date Reference Price
*** ***
6.2.3 The Predelivery Payment Reference Price is defined as:
A = Pb (1 + 0.05N)
where
A = the Predelivery Payment Reference Price for
Aircraft to be delivered in calendar year T.
Pb = the Base Price of the Aircraft as defined in
Subclause 4.1 above.
N = (T -1996).
T = the year of delivery of the relevant Aircraft.
6.2.4 The Seller acknowledges that it has already received from
the Buyer the sum of US$ *** (US dollars-***), which
represents a deposit of US$*** (US dollars-***) for the
first one hundred twenty (120) Firm Aircraft (each a
"Deposit"). Each US$ ***(US dollars-***) deposit paid with
respect to each particular Firm Aircraft will be credited
without interest against the first Predelivery Payment for
such Firm Aircraft due upon execution of this Agreement.
6.3 Payment of Final Contract Price
Concurrently with the transfer of title to each Aircraft,
the Buyer will pay to the Seller the Final Contract Price
thereof, less the total amount of the Predelivery Payments
theretofore received by the Seller for such Aircraft under
Subclause 6.2 above, ***. 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.
6.4 Payment of Other Amounts
Unless otherwise expressly provided for herein, any payments
due hereunder or in respect of an Aircraft in addition to
those referred to in Subclauses 6.2.2 and 6.3 above will be
paid by the Buyer concurrently with the delivery of the
corresponding Aircraft or, if invoiced after delivery of
such Aircraft, within one (1) month after the invoice date.
6.5 Overdue Payments
If any payment due under this Agreement is not received on
the date or dates as agreed upon between the Buyer and the
Seller, the person entitled to receive payments (the
"Recipient") will have the right to claim from the person
owing such payment (the "Payor") and the Payor will promptly
pay to the Recipient *** interest at a rate per annum equal
to *** on the amount of such overdue payment, to be
calculated from and including the due date of such payment
to (but excluding) the date such payment is received by the
Recipient. For purposes of the foregoing sentence, any
period of less than one month will be prorated to include
the period during which the payment is overdue. The
Recipient's right to receive such interest will be in
addition to any other rights of the Recipient hereunder or
at law. ***
6.6 Refund of Predelivery Payments
The Buyer will have no right to any refund of any deposit or
Predelivery Payment received by the Seller, except as
otherwise provided in this Agreement.
6.7 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 and payment
for such Aircraft as provided in this Agreement.
6.8 Tender of Delivery
In addition to any other rights and remedies available to
the Seller, the Seller will not be obligated to tender
delivery of any Aircraft to the Buyer, if, ***, the Buyer is
still in default of its obligation to make any Predelivery
Payment due with respect to such Aircraft.
6.9 Payment in Full
The Buyer's obligation to make payments to the Seller
hereunder will not be affected by and will be determined
without regard to any setoff, counterclaim, recoupment,
defense or other right that the Buyer may have against the
Seller or any other person and all such payments will be
made without deduction or withholding of any kind.
7 - PLANT REPRESENTATIVES - INSPECTION
7.1 Inspection Procedures
7.1.1 All work to be carried out on the Aircraft and all materials
and parts thereof will at all reasonable times during
business hours be open to inspection by duly authorized
representatives of the Buyer or its designee at the
respective works of the Associated Contractors and, if
possible, at the works of their respective subcontractors,
and such representatives will, to carry out the aforesaid
inspection, have access to such relevant technical data as
is reasonably necessary for this purpose (except that, if
access to any part of the respective works where
construction is in progress or materials or parts are stored
is restricted for security reasons, the Associated
Contractors will be allowed a reasonable time to make the
items available for inspection elsewhere). The actual
detailed inspection of the Aircraft, materials and parts
thereof will take place only in the presence of the
respective inspection department personnel of the Associated
Contractors or their subcontractors. The procedures for such
inspections will be agreed upon with the Buyer prior to any
inspection, based on modifications to the Manufacturer's
Quality Instruction document.
7.1.2 For the purposes of Subclause 7.1.1 above and commencing
with the date of this Agreement until the delivery of the
last Aircraft, the Seller will furnish free-of-charge
adequate secretarial assistance and suitable, private and
secure (with access limited and controlled by the Buyer in
its sole discretion) space, office equipment,
telecommunications (including telephone and facsimile lines
and equipment for professional use only) and facilities in
or conveniently located with respect to each of
Daimler-Benz's works in Hamburg, Germany, with respect to
A319 Aircraft and A321 Aircraft, and Aerospatiale's works in
Toulouse, France, with respect to A320 Aircraft, for the use
of not more than six (6) (or more if reasonably necessary)
representatives of the Buyer during the aforementioned
period.
7.1.3 All inspections, examinations and discussions with the
Seller's, the Associated Contractors' or their respective
subcontractors' engineering or other personnel by the Buyer
and its said representatives will be performed in such
manner as not to unreasonably delay or hinder the work to be
carried out on the Aircraft or the proper performance of
this Agreement. In no event will the Buyer or its
representatives be permitted to inspect any aircraft other
than the Aircraft. The Seller will not permit, and will
cause the Manufacturer not to permit, any representatives,
employees, agents or personnel of any other airline or
customer to inspect, or to have access to, the Aircraft or
any designs or specifications relating thereto.
7.2 INDEMNITY
7.2.1 SCOPE
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS
CLAUSE 7, THE SELLER AND THE BUYER PROVIDE THE INDEMNITIES
SET FORTH IN SUBCLAUSES 7.2.2 AND 7.2.3.
7.2.2 SELLER'S 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 OR DEATH OF THE BUYER'S REPRESENTATIVES
PARTICIPATING IN ANY TESTS, CHECKOUTS OR INSPECTIONS
OR CONTROLS UNDER THIS CLAUSE 7) CAUSED BY 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 BUYER OR ITS
REPRESENTATIVES,
ARISING OUT OF OR IN CONNECTION WITH ANY SUCH TESTS,
CHECKOUTS, INSPECTIONS OR CONTROLS UNDER THIS CLAUSE 7.
THIS INDEMNITY OF THE SELLER WILL NOT APPLY FOR ANY SUCH
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISING OUT
OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE
OF THE BUYER'S SAID REPRESENTATIVES.
7.2.3 BUYER'S INDEMNITY
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, THE
MANUFACTURER, 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
(I) FOR INJURIES TO OR DEATHS OF THE BUYER'S SAID
REPRESENTATIVES PARTICIPATING IN ANY TESTS,
CHECKOUTS, INSPECTIONS OR CONTROLS UNDER THIS
CLAUSE 7,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE BUYER'S
SAID REPRESENTATIVES, AND
(III) ARISING OUT OF OR CAUSED BY 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, THE
MANUFACTURER'S OR ANY OF THE ASSOCIATED CONTRACTORS' OR
THEIR RESPECTIVE SUBCONTRACTORS' OR THEIR RESPECTIVE
OFFICERS', AGENTS' OR EMPLOYEES' WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE.
7.2.4 CLAIMS
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 7.2, THE FORMER
(INDEMNITEE) WILL PROMPTLY GIVE NOTICE TO THE OTHER PARTY
(INDEMNITOR), AND THE INDEMNITOR WILL HAVE THE RIGHT TO
INVESTIGATE, AND THE RIGHT IN ITS SOLE DISCRETION TO ASSUME
AND CONDUCT THE DEFENSE OF OR SETTLE OR COMPROMISE, SUCH
CLAIM, ACTION, PROCEEDING OR LAWSUIT. HOWEVER, IF IN THE
REASONABLE OPINION OF THE INDEMNITEE, SUCH DEFENSE,
SETTLEMENT OR COMPROMISE INVOLVES THE POTENTIAL IMPOSITION
OF CRIMINAL LIABILITY ON THE INDEMNITEE OR A CONFLICT OF
INTEREST BETWEEN THE INDEMNITOR AND THE INDEMNITEE, THE
INDEMNITOR WILL NOT BE ENTITLED TO ASSUME AND CONDUCT THE
DEFENSE OF ANY SUCH CLAIM, ACTION, PROCEEDING OR LAWSUIT.
THE INDEMNITEES WILL BE ENTITLED, AT THEIR OWN EXPENSE,
ACTING THROUGH ONE (1) COUNSEL, TO PARTICIPATE IN ANY CLAIM,
ACTION, PROCEEDING OR LAWSUIT THE DEFENSE OF WHICH HAS BEEN
ASSUMED BY THE INDEMNITOR PURSUANT TO THE PRECEDING
PROVISIONS, PROVIDED, THAT SUCH PARTICIPATION DOES NOT, IN
THE REASONABLE OPINION OF INDEPENDENT COUNSEL OF THE
INDEMNITOR, INTERFERE WITH THE CONDUCT OF SUCH DEFENSE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, NO SETTLEMENT OR
COMPROMISE WILL BE ENTERED INTO WITHOUT THE PRIOR WRITTEN
CONSENT OF THE INDEMNITEE, WHICH CONSENT WILL NOT BE
UNREASONABLY WITHHELD OR DELAYED. EACH INDEMNITEE WILL
COOPERATE WITH THE INDEMNITOR IN THE INVESTIGATION AND
CONDUCT OF THE DEFENSE OF ANY CLAIM, ACTION, PROCEEDING OR
LAWSUIT INDEMNIFIED HEREUNDER.
IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND CONDUCT
THE DEFENSE OF THE CLAIM OR LAWSUIT, 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. FOR THE
PURPOSE OF THIS SUBCLAUSE 7.2, A CLAIM OR LAWSUIT AGAINST
THE MANUFACTURER OR ANY OF THE ASSOCIATED CONTRACTORS OR ANY
OF THEIR RESPECTIVE SUBCONTRACTORS OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE
DEEMED TO BE A LAWSUIT AGAINST THE SELLER.
8 - BUYER'S ACCEPTANCE
8.1 Acceptance Procedures
8.1.1 The Seller or any Affiliate thereof acting as the Seller's
designee will give to the Buyer not less than thirty (30)
days' notice of the proposed date and time when the Buyer's
acceptance tests will be conducted, and, in the event that
the Buyer elects to attend the said tests, the Buyer will
cooperate in complying with the reasonable requirements of
the Seller with the intention of completing all tests within
five (5) Working Days after commencement. The tests will
take place at Daimler-Benz's works in Hamburg, Germany, for
A319 Aircraft and A321 Aircraft, and at Aerospatiale's works
near Toulouse, France, for A320 Aircraft, and will be
carried out by the personnel of the Manufacturer
(accompanied, if the Buyer so wishes, by representatives of
the Buyer up to a total of six (6) (or more if reasonably
requested by the Buyer) acting as observers, of whom not
more than two (2) will have access to the cockpit at any one
time and of whom one (1) may act as copilot, subject to such
person's appropriate certification). During flight tests,
these representatives will comply with the instructions of
the Manufacturer's representatives. The Manufacturer will
not normally be required in the course of such acceptance
tests to fly any of the Aircraft for more than an aggregate
of three (3) hours, unless more time is necessary to
complete the acceptance tests.
8.1.2 The Seller will cause ASC, at no cost to the Buyer, to
brief, and provide one (1) free-of-charge four (4) hour
simulator session for each new set of acceptance pilots.
This briefing will provide specific information related to
acceptance flights.
8.1.3 The acceptance tests will be designed to demonstrate the
satisfactory functioning of the Aircraft and all systems
relating thereto, and compliance with the terms,
requirements and conditions of this Agreement, including
conformity to the Specifications and ***. During such
acceptance tests the Seller will make available to the Buyer
all records and logs relating to the Aircraft and related
systems, and the Buyer will have access to interior
equipment, parts and components and will be permitted to
perform ground checks, and, with respect to the Propulsion
Systems, engine runs, engine borescoping and performance
acceptance checks. The successful completion of such
acceptance tests will also be deemed to demonstrate
compliance with the Specifications. The acceptance tests
will be conducted in accordance with the Manufacturer's
aircraft acceptance procedure, as amended to incorporate the
Buyer's reasonable requests. At the time of delivery, the
Aircraft will comply with all relevant limits and tolerances
specified in the Aircraft Maintenance Manual. In the event
that the Buyer does not attend the tests or fails to so
cooperate, the Seller may complete them in the absence of
the Buyer, provided that the Seller has given the Buyer
reasonable prior written notice of not less than seven (7)
days of its intention to complete such tests and the Buyer
remains absent or uncooperative. The Buyer will be deemed to
have accepted the tests, if such tests are reasonably deemed
satisfactory by the Seller, and the Seller will furnish such
data with respect to such tests as the Buyer may reasonably
request. Notwithstanding the above, said acceptance by the
Buyer will not impair the rights of the Buyer that derive
from the warranties relating to the Aircraft.
8.1.4 If the acceptance tests for an Aircraft are not successfully
completed or there is a defect, the Buyer, within two (2)
days after such tests, will give notice to the Seller
specifying such unsuccessful completion or defect.
Thereafter the Seller will, without unreasonable hindrance
from the Buyer, carry out any necessary changes and, as soon
as practicable thereafter, resubmit the Aircraft for new
acceptance tests, including flight tests if necessary,
demonstrate the elimination of the defect, such tests to be
held and carried out in accordance with this Subclause 8.1.
In order to avoid a delay in the delivery of any Aircraft
found to have one or more defects, the Buyer may elect with
the consent of the Seller (such consent not to be
unreasonably withheld) to take delivery of such Aircraft
prior to the correction of such defects and without
prejudice to any rights the Buyer may have under this
Agreement against the Seller by reason of such defects.
In the event the Buyer elects to take delivery of an
Aircraft with defects pursuant to the preceding paragraph,
delivery of such Aircraft will be made as originally
scheduled, and such defects will be corrected, at the
Seller's expense, by the Buyer or the Seller at such
subsequent time as is mutually acceptable to the Buyer and
the Seller, and as will be set forth in a written agreement
that will state the settlement agreed by the Buyer and the
Seller with respect to such defects.
8.1.5 Within three (3) months of execution of the Agreement, the
Buyer and the Seller will review the technical documentation
provided by the Seller at delivery of each Aircraft, and, if
practicable, will agree on any reasonable changes to such
documentation deemed necessary by the Buyer.
8.2 Seller's Use of Aircraft
The Seller will be entitled to use, without compensation to
the Buyer, each Aircraft prior to its delivery as may be
necessary to obtain the certificates required under Clause 2
hereof, and such use will not *** affect the Buyer's
obligation to accept delivery of any Aircraft hereunder. ***
All damage incurred in connection with the Seller's use of
the Aircraft will be repaired ***.
8.3 Certificate of Acceptance
When the Aircraft is "ready for delivery" as defined below
in Subclause 9.2, the Buyer will forthwith give to the
Seller a signed Certificate of Acceptance in the form
attached as Exhibit "E" in respect of the relevant Aircraft.
Should the Buyer fail to so deliver the said Certificate,
then the Buyer will be deemed to be in default as though it
had without warrant rejected delivery of such Aircraft when
duly tendered to it hereunder and will thereafter bear all
costs and expenses resulting from such delay in delivery.
The execution and delivery of a Certificate of Acceptance by
the Buyer in respect of an Aircraft will not constitute
waiver by the Buyer of any rights and remedies it may have
in respect of any Aircraft under Clauses 12 and 13 of this
Agreement.
8.4 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.
8.5 INDEMNITY
8.5.1 SCOPE
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS
CLAUSE 8, THE SELLER AND THE BUYER PROVIDE THE INDEMNITIES
SET FORTH IN SUBCLAUSES 8.5.2 AND 8.5.3.
8.5.2 SELLER'S 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
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 BUYER OR ITS
REPRESENTATIVES,
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 WILLFUL MISCONDUCT OR GROSS NEGLIGENCE
OF THE BUYER'S SAID REPRESENTATIVES.
8.5.3 BUYER'S INDEMNITY
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, THE
MANUFACTURER, EACH OF THE ASSOCIATED CONTRACTORS AND THEIR
RESPECTIVE SUBCONTRACTORS 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, AND
(III) ARISING OUT OF OR CAUSED BY 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, THE
MANUFACTURER'S OR ANY OF THE ASSOCIATED CONTRACTORS' OR
THEIR RESPECTIVE SUBCONTRACTORS' OR THEIR RESPECTIVE
OFFICERS', AGENTS' OR EMPLOYEES' WILLFUL MISCONDUCT OR GROSS
NEGLIGENCE.
8.5.4 CLAIMS
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 8.5, THE FORMER
(INDEMNITEE) WILL PROMPTLY GIVE NOTICE TO THE OTHER PARTY
(INDEMNITOR), AND THE INDEMNITOR WILL HAVE THE RIGHT TO
INVESTIGATE, AND THE RIGHT IN ITS SOLE DISCRETION TO ASSUME
AND CONDUCT THE DEFENSE OF OR SETTLE OR COMPROMISE, SUCH
CLAIM, ACTION, PROCEEDING OR LAWSUIT.
HOWEVER, IF IN THE REASONABLE OPINION OF THE INDEMNITEE,
SUCH DEFENSE, SETTLEMENT OR COMPROMISE INVOLVES THE
POTENTIAL IMPOSITION OF CRIMINAL LIABILITY ON THE INDEMNITEE
OR A CONFLICT OF INTEREST BETWEEN THE INDEMNITOR AND THE
INDEMNITEE, THE INDEMNITOR WILL NOT BE ENTITLED TO ASSUME
AND CONDUCT THE DEFENSE OF ANY SUCH CLAIM, ACTION,
PROCEEDING OR LAWSUIT. THE INDEMNITEES WILL BE ENTITLED, AT
THEIR OWN EXPENSE, ACTING THROUGH ONE (1) COUNSEL, TO
PARTICIPATE IN ANY CLAIM, ACTION, PROCEEDING OR LAWSUIT THE
DEFENSE OF WHICH HAS BEEN ASSUMED BY THE INDEMNITOR PURSUANT
TO THE PRECEDING PROVISIONS, PROVIDED, THAT SUCH
PARTICIPATION DOES NOT, IN THE REASONABLE OPINION OF
INDEPENDENT COUNSEL OF THE INDEMNITOR, INTERFERE WITH THE
CONDUCT OF SUCH DEFENSE. NOTWITHSTANDING ANYTHING TO THE
CONTRARY, NO SETTLEMENT OR COMPROMISE WILL BE ENTERED INTO
WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNITEE, WHICH
CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED. EACH
INDEMNITEE WILL COOPERATE WITH THE INDEMNITOR IN THE
INVESTIGATION AND CONDUCT OF THE DEFENSE OF ANY CLAIM,
ACTION, PROCEEDING OR LAWSUIT INDEMNIFIED HEREUNDER.
IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND CONDUCT
THE DEFENSE OF THE CLAIM OR LAWSUIT, 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. FOR THE
PURPOSE OF THIS SUBCLAUSE 8.5, A CLAIM OR LAWSUIT AGAINST
THE MANUFACTURER OR ANY OF THE ASSOCIATED CONTRACTORS OR ANY
OF THEIR RESPECTIVE SUBCONTRACTORS OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE
DEEMED TO BE A LAWSUIT AGAINST THE SELLER.
9 - DELIVERY
9.1 Delivery Locations, Schedule and Notice of Delivery Date
Subject to the provisions of this Agreement, the Seller will
have the Aircraft ready for delivery at Daimler-Benz's works
in Hamburg, Germany, or at Aerospatiale's
works near Toulouse, France, as the case may be.
9.1.1 The Buyer will accept the Aircraft, during the months and
years set forth below in this Subparagraph 9.1.1.
(i) Firm A319 Aircraft
Firm A319 Month of Firm A319 Month of
Aircraft No. Delivery Aircraft No. Delivery
1 October 1998 *** ***
2 October 1998
3 November 1998
4 November 1998
5 December 1998
6 December 1998
7 January 1999
8 January 1999
9 February 1999
10 March 1999
11 May 1999
12 June 1999
13 June 1999
14 July 1999
*** ***
(ii) Firm A320 Aircraft
Firm A320 Month of Firm A320 Month of
Aircraft No. Delivery Aircraft No. Delivery
*** *** *** ***
(iii) Reconfirmable A319 Aircraft
Reconfirmable Month of Reconfirmable Month of
A319 Aircraft Delivery A319 Aircraft Delivery
No. -------- No. --------
*** *** *** ***
9.1.2 The Seller and the Buyer will agree on the type selection
and delivery dates of the remaining thirty-nine (39)
Reconfirmable Aircraft not later than December 31, 1997.
9.1.3 ***
9.1.4 Not later than thirty (30) days prior to the date scheduled
for acceptance tests for a particular Aircraft, the Seller
will give the Buyer notice of the anticipated date on which
such Aircraft will be ready for delivery. Not later than
fifteen (15) days prior to such date notified to the Buyer,
the Seller will (i) confirm to the Buyer that such
anticipated delivery date is firm or (ii) in the event the
Seller cannot confirm such date as being firm, confirm a new
date, which will be no more than two (2) Working Days in
Germany, for A319 Aircraft and A321 Aircraft, and France,
for A320 Aircraft, before or after the originally scheduled
date.
9.2 Certificate of Airworthiness
Each Aircraft will for the purpose of this Agreement be
deemed to be "ready for delivery" upon (a) the satisfactory
completion of its acceptance tests, (b) the issuance of
Certificate of Airworthiness for Export in the "Transport
Category" with respect thereto by the LBA, with respect to
A319 Aircraft and A321 Aircraft, and DGAC, with respect to
A320 Aircraft, and (c) the Seller's compliance with the
other obligations to be performed by it under Subclauses 2.3
and 9.3 hereof.
9.3 Title
Title to and risk of loss of and damage to the Aircraft will
pass to the Buyer upon delivery following execution of the
Certificate of Acceptance and upon payment of the Final
Contract Price for such Aircraft. The Seller will provide
the Buyer with (a) an invoice(s) in form and substance
satisfactory to the Buyer, (b) a bill of sale duly conveying
to the Buyer good title to such Aircraft free and clear of
all liens, claims, charges and encumbrances of any kind
whatsoever, (c) an FAA-approved form bill of sale executed
by the Seller in favor of the Buyer, and (d) such other
appropriate documents of title or other documents as the
Buyer may reasonably request.
9.4 Buyer Delays
In the event that:
(i) the delivery of and payment of the Final Contract
Price for the Aircraft is delayed more than five (5)
days after the firm delivery date established
pursuant to Subclause 9.1 due to any breach of the
Buyer under this Agreement, or
(ii) within two (2) days after delivery of and transfer of
title to the Aircraft the Buyer has failed to remove
such Aircraft for whatever reason (except for reasons
attributable to the Seller or the Manufacturer),
then the Buyer will on demand reimburse the Seller for all
reasonable out-of-pocket costs and expenses sustained by the
Seller and resulting from any such delay or failure. Such
reimbursement will be in addition to any other rights that
the Seller may have under this Agreement as a result of any
such delay or failure.
9.5 Flyaway Expenses
***
10 - EXCUSABLE DELAY
10.1 Scope
Neither the Seller nor the Manufacturer will be responsible
for or be deemed to be in default on account of delays in
delivery or failure to deliver or otherwise in the
performance of this Agreement or any part hereof due to
causes reasonably beyond the Seller's, the Manufacturer's or
any Associated Contractor's control or not occasioned by the
Seller's, the Manufacturer's or any Associated Contractor's
fault, misconduct or negligence ("Excusable Delay").
It is expressly understood and agreed that each of (i) any
delay caused directly or indirectly by the Buyer's failure
to comply with its obligations hereunder, and (ii) any delay
in delivery or otherwise in the performance of this
Agreement by the Seller due in whole or in part to any delay
in or failure of the delivery of, or any other event or
circumstance relating to, the Propulsion Systems or Buyer
Furnished Equipment, will, to the extent attributable to
such delay, constitute Excusable Delay for the Seller,
unless such delay or failure of delivery or other event or
circumstance is attributable to any default by the Seller of
its obligations hereunder or any failure of the Seller to
notify the Buyer and the manufacturer of the Propulsion
Systems in a timely manner of the Seller's need therefor.
The Seller will promptly after becoming aware of any delay
falling within the provisions of this Subclause 10.1 (i)
notify the Buyer of such delay and of the probable extent
thereof, including, without limitation, a description of the
cause thereof and, if possible, a possible date of
rescheduled delivery in accordance with the terms of this
Agreement, and after such prompt initial notice, apprise the
Buyer of the status of such delay and possible date of such
rescheduled delivery, and (ii) subject to the following
provisions, as soon as practicable after the removal of the
cause or causes for delay, resume the performance of those
obligations affected under this Agreement. The Seller and
the Manufacturer will endeavor to limit the extent of any
such delay. The Seller will schedule the delivery of the
Aircraft that is the subject of such delay to a date
compatible with the Aircraft delivery schedule of the Buyer.
10.2 Unanticipated Delay
In the event that the delivery of any Aircraft will be
delayed by reason of an Excusable Delay for a period of more
than twelve (12) months after the end of the calendar month
in which delivery is otherwise required hereunder, the Buyer
will be entitled to terminate this Agreement with respect
only to the Aircraft so affected upon written notice given
to the Seller within thirty (30) days after the expiration
of such twelve (12) month period. In the event such delay
will continue for an additional six (6) month period after
the expiration of such twelve (12) month period, either
party will have the option to terminate this Agreement with
respect to the Aircraft so affected upon written notice
given to the other within thirty (30) days after the end of
such additional six (6) month period. Any termination of
this Agreement in respect of an Aircraft pursuant to this
Subclause 10.2 will discharge all obligations and
liabilities of the parties hereunder with respect to such
affected Aircraft, ***.
10.3 Anticipated Delay
In respect of any Aircraft, the Seller may conclude that
Excusable Delays will (i) cause delay in delivery of such
Aircraft for a period of more than twelve (12) months after
the end of the calendar month in which delivery is otherwise
required or (ii) prevent delivery of such Aircraft. In such
event, in good faith and in accordance with its normal
scheduling procedures, the Seller will give written notice
to the Buyer of either (i) such delay and its related
rescheduling reflecting such delay(s) or (ii) such
nondelivery. Within thirty (30) days after the Buyer's
receipt of such notice, the Buyer may terminate this
Agreement as to such rescheduled or nondeliverable Aircraft
by giving written notice to the Seller. Such termination
will discharge all obligations and liabilities of the
parties hereunder with respect to such affected Aircraft,
except that the Seller will repay to the Buyer, within three
(3) Working Days of the Buyer's giving notice to the Seller,
an amount equal to the entire amount of any Predelivery
Payment received from the Buyer hereunder with respect to
such affected Aircraft, ***.
10.4 Delivery Date
If, following notice of an anticipated delay under Subclause
10.3, this Agreement is not terminated in accordance with
the provisions of Subclause 10.3 (with respect to the
affected Aircraft), then the date of delivery otherwise
required hereunder will be extended by a period equal to the
delay specified in such notice, with a view towards having
each Aircraft subject to such Excusable Delay ready for
delivery as promptly as practicable. ***
10.5 Lost, Destroyed or Damaged Aircraft
10.5.1 If any Aircraft suffers a total loss, is destroyed, or is
damaged beyond economic repair prior to delivery thereof,
then this Agreement will be terminated with respect to such
Aircraft and the obligations and liabilities of the parties
hereunder with respect to such Aircraft will be discharged.
The Seller will repay to the Buyer an amount equal to the
entire amount of any Predelivery Payments received from the
Buyer hereunder with respect to any such Aircraft that is
lost, destroyed or damaged beyond economic repair, ***.
10.5.2 If during the manufacturing process for any Aircraft or at
any other time prior to the delivery and acceptance of any
Aircraft, any Aircraft suffers damages in excess of *** or
is otherwise damaged in any material respect (but not to the
extent within the purview of Subclause 10.5.1), then the
Seller will deliver a notice thereof to the Buyer specifying
the cause and nature thereof in reasonable detail and how
the Seller intends to cure the same.
10.6 Equal Treatment
The Seller will use all reasonable efforts to ensure that
each Aircraft subject to an Excusable Delay is ***.
10.7 Additional Aircraft
In the event of termination of this Agreement in respect of
an Aircraft under Clause 10, the number of Additional
Aircraft specified in Letter Agreement No. 3 to the
Agreement will be increased by one unit. ***
10.8 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 CAUSED BY THE NEGLIGENCE OR FAULT OF THE BUYER
OR ITS REPRESENTATIVES.
11 - INEXCUSABLE DELAY
11.1 Should an Aircraft not be ready for delivery to the Buyer
within thirty (30) days after the date specified in this
Agreement (as such date may otherwise be changed pursuant to
this Agreement) for reasons other than as are covered by
Clause 10 or for circumstances specified in Subclause 11.6
("Inexcusable Delay"), the Buyer will, in respect of any
subsequent delay in delivery of such Aircraft, have the
right to claim and the Seller will in respect of any
subsequent delay, at the Buyer's option, pay or credit to
the Buyer as liquidated damages for such subsequent delay in
delivery of such Aircraft US $*** (US dollars-***) for each
day of subsequent delay in the delivery, until the date of
actual delivery or the effective date of the written notice
of termination referred to in Subclause 11.4 plus any amount
referred to in Subclause 11.4.
The Seller will immediately after becoming aware of any
Inexcusable Delay or any potential Inexcusable Delay (i)
notify the Buyer of such delay and the probable extent
thereof, including, when possible, a detailed description of
the cause thereof and, if possible, a possible date of
rescheduled delivery in accordance with the terms of this
Agreement and after such immediate initial notice, apprise
the Buyer of the status of such delay and possible date of
such rescheduled delivery on a regular basis, and (ii)
subject to the following provisions, as soon as practicable
after the removal of the cause or causes for delay, resume
the performance of those obligations affected under this
Agreement with a view towards having each Aircraft subject
to such Inexcusable Delay ready for delivery as promptly as
practicable.
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 the total sum of US
$*** (US dollars-***) plus any amount referred to in
Subclause 11.3 or 11.4.
11.3 *** Delay
Notwithstanding anything to the contrary in the Agreement,
if the Buyer receives notice that any Aircraft will be
subject to an Inexcusable Delay that exceeds ***, or if an
Inexcusable Delay for any Aircraft occurs that exceeds ***,
regardless of whether notice thereof has been given or
received, ***.
11.4 Six-Month Delay
In the event that an Inexcusable Delay exceeds six (6)
months, the Buyer will have the right, exercisable by
written notice to the Seller given no less than one (1)
month and no more than two (2) months after such six (6)
month period, to terminate this Agreement in respect only of
the Aircraft that is subject to such Inexcusable Delay,
whereupon the Seller will pay the Buyer, within one (1)
month after such notice, an amount equal to all Predelivery
Payments made by the Buyer to the Seller in relation to such
Aircraft, ***.
11.5 Equal Treatment
The Seller will use all reasonable efforts to ensure that
each Aircraft subject to an Inexcusable Delay is ***.
11.6 Special Circumstances
11.6.1 ***
11.6.2 ***
11.6.3 ***
11.6.4 ***
11.6.5 ***
11.7 Additional Aircraft
In the event of termination of this Agreement in respect of
an Aircraft under Subclause 11.4, the number of Additional
Aircraft specified in Letter Agreement No. 3 to the
Agreement will be increased by one unit. ***
11.8 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.
12 - WARRANTIES AND SERVICE LIFE POLICY
12.1 STANDARD WARRANTY
12.1.1 Nature of Warranty
12.1.2 Exceptions
12.1.3 Warranty Periods
12.1.4 Buyer's Remedy and Seller's Obligation
12.1.5 Warranty Claim Requirements
12.1.6 Warranty Administration
12.1.7 In-house Warranty
12.1.8 Standard Warranty Transferability
12.1.9 Warranty for Corrected, Replacement or Repaired Warranted Parts
12.1.10 Good Airline Operation - Normal Wear and Tear
12.2 SELLER SERVICE LIFE POLICY
12.2.1 Definitions
12.2.2 Periods and Seller's Undertakings
12.2.3 Seller's Participation in the Cost
12.2.4 General Conditions and Limitations
12.2.5 Transferability
12.3 VENDOR WARRANTIES
12.3.1 Seller's Support
12.3.2 Vendor's Default
12.4 INTERFACE COMMITMENT
12.4.1 Interface Problem
12.4.2 Seller's Responsibility
12.4.3 Vendor's Responsibility
12.4.4 Joint Responsibility
12.4.5 General
12.5 Performance Standard
12.6 EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS
OF LIABILITY
12.7 DUPLICATE REMEDIES
12.8 SURVIVABILITY
12 - WARRANTIES AND SERVICE LIFE POLICY
The Seller, in its capacity as "Buyer" under its
arrangements with the Manufacturer, has negotiated and
obtained the following Standard Warranty, Service Life
Policy, Vendor Warranties and Interface Commitment from the
Manufacturer with respect to the Aircraft, subject to the
terms, conditions, limitations and restrictions (including,
but not limited to, the Exclusivity of Warranties and
General Limitations of Liability and Duplicate Remedies
provisions) all as hereinafter set out. The Seller hereby
guarantees to the Buyer the performance by the Manufacturer
of the Manufacturer's obligations and assigns to the Buyer,
and the Buyer hereby accepts, all of the rights and
obligations of the Seller in the Seller's capacity as
"Buyer" as aforesaid under the said Standard Warranty,
Service Life Policy, Vendor Warranties and Interface
Commitment and the Seller subrogates the Buyer into all such
rights and obligations in respect of the Aircraft. The
Seller hereby warrants to the Buyer that the Seller has all
requisite authority to make the foregoing assignment and
effect the foregoing subrogation to and in favor of the
Buyer and that the Seller will not enter into any amendment
of the provisions so assigned without the prior written
consent of the Buyer. Capitalized terms utilized in the
following provisions have the meanings assigned thereto in
this Agreement, except that the term "Seller" refers to the
Manufacturer and the term "Buyer" refers to the Seller and
cross-references herein refer to Clauses and Exhibits in
this Agreement or to Paragraphs in any Letter Agreement
hereto.
QUOTE
12.1 STANDARD WARRANTY
12.1.1 Nature of Warranty
Subject to the limitations and conditions as hereinafter
provided, and except as provided in Subclause 12.1.2, the
Seller warrants to the Buyer that each Aircraft and each
Warranted Part will at the time of 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, selection of materials, parts and
components) having regard to the state of the art at
the date of such design,
(iv) be free from defects arising from failure to conform
to the Specifications,
(v) permit complete interchangeability among Aircraft and
parts of like part-numbered parts, and
(vi) be free and clear of all liens and other encumbrances.
For the purposes of this Agreement, the term "Warranted
Part" will mean any Seller proprietary component, equipment,
accessory or part that at the time of delivery of an
Aircraft (a) is installed on or incorporated in such
Aircraft, (b) is manufactured to the detail design of the
Seller or a subcontractor of it and (c) bears a part number
of the Seller.
12.1.2 Exceptions
The warranties set forth in Subclause 12.1.1 will not apply
to Buyer Furnished Equipment, nor to engines, nor to any
component, accessory, equipment or part purchased by the
Buyer that is not a Warranted Part, provided, however, that:
(i) any defect in the Seller's workmanship in respect of
the installation of such items in or on the Aircraft,
including any failure by the Seller to conform to the
installation instructions of the manufacturers of
such items that invalidates any applicable warranty
from such manufacturers, will constitute a defect in
workmanship for the purpose of this Subclause 12.1
and be covered by the warranty set forth in Subclause
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, that impairs the use or function
of such items will constitute a defect in design for
the purposes of this Subclause 12.1 and be covered by
the warranty set forth in Subclause 12.1.1(iii).
12.1.3 Warranty Periods
The warranties described in Subclauses 12.1.1 and 12.1.2
hereinabove will be limited to those defects that become
apparent within thirty-six (36) months after delivery of
the affected Aircraft.
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 Subclauses 12.1.1 and 12.1.2 hereinabove are limited
to, at the Seller's expense, the repair, replacement or
correction of, or the supply of modifications kits
rectifying the defect for, any defective Warranted Part, as
mutually agreed between and satisfactory to the Buyer and
the Seller. *** Nothing herein contained will obligate the
Seller to correct any failure to conform to the
Specifications with respect to components, equipment,
accessories or parts that the parties agree in writing at
the time of delivery of the affected Aircraft are acceptable
deviations or have no material adverse effect on the use,
operation or performance of an Aircraft.
If the Seller issues a Service Bulletin that requires ***
retrofit of equipment on a number of delivered Aircraft, the
Buyer can ***.
12.1.4.2 In the event a defect covered by Subclause 12.1.1 becomes
apparent within the period set forth in Subclause 12.1.3 and
the Seller is obligated to correct such defect, the Seller
will also, if so requested by the Buyer in writing and if
reasonably practicable, make such correction in any affected
Aircraft that has not already been delivered to the Buyer.
Rather than accept a delay in delivery of any such Aircraft,
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 Subclauses 12.1.4.1
and 12.1.4.2, the Seller will ***. The above commitment is
subject to the following conditions:
i) ***
ii) ***
iii) ***
12.1.5 Warranty Claim Requirements
The Buyer's remedy and the Seller's obligation and liability
under this Subclause 12.1, with respect to each claimed
defect, are subject to the following conditions
precedent:
(i) the existence of a defect covered by the provisions
of this Subclause 12.1,
(ii) the defect's having become apparent within the
applicable warranty period, as set forth in Subclause
12.1.3,
(iii) the Buyer's having returned as soon as reasonably
practicable the Warranted Part claimed to be
defective to such repair facilities as may be
designated by the Seller (and which are reasonably
acceptable to the Buyer), except where the Buyer
elects to repair a defective Warranted Part in
accordance with the provisions of Subclause 12.1.7,
and
(iv) the Seller's having received a Warranty Claim
fulfilling the conditions of and in accordance with
the provisions of Subclause 12.1.6 below.
12.1.6 Warranty Administration
The warranties set forth in Subclause 12.1 will be
administered as hereinafter provided:
(i) Transportation Costs
Transportation costs associated with the sending of a
defective Warranted Part to the facilities designated
by the Seller and for the return therefrom of a
repaired or replacement Warranted Part will be borne
by the Buyer ***.
(ii) Return of an Aircraft
In the event that the Buyer desires to return an
Aircraft to the Seller for consideration of a
Warranty Claim, the Buyer will notify the Seller of
its intention to do so and the Seller will, 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, provided
that space is available, or at another mutually
acceptable location. Return of any Aircraft by the
Buyer to the Seller and return of such Aircraft to
the Buyer's facilities will be ***. The Buyer and the
Seller will also mutually agree on ***.
(iii) On-Aircraft Work by the Seller
In the event that a defect subject to this Subclause
12.1 may justify the dispatch by the Seller of a
working team to repair or correct such defect at the
Buyer's facilities, or in the event of the Seller's
accepting the return of an Aircraft to perform or
have performed such repair or correction, *** as
determined in accordance with in Subclause
12.1.7(v)(a).
If the Seller is requested to perform the work, the
Seller and the Buyer will agree on a schedule and
place for the work to be performed.
(iv) Warranty Claim Substantiation
For each claim under this Subclause 12.1, the Buyer
will give written notice to the Seller that contains
at least the following data, to the extent reasonably
ascertainable, available and relevant, with respect
to a part or Aircraft, as applicable ("Warranty
Claim"). The absence of data from any Warranty Claim
will not prejudice validity of such Warranty Claim.
The Buyer will endeavor to give the Seller such
Warranty Claim within *** of discovering the defect
giving rise to such Warranty Claim, but in no event
later than *** after such defect becomes apparent.
(a) description of defect and action taken, if any,
(b) date of incident and/or of removal,
(c) description of the defective part,
(d) part number,
(e) serial number (if applicable),
(f) position on Aircraft, according to Catalog
Sequence Number (CSN) of the Illustrated Parts
Catalog, Component Maintenance Manual or
Structural Repair Manual (as such documents
are defined in Clause 14 and Exhibit "F"
hereto) as applicable,
(g) total flying hours or calendar times, as
applicable, at the date of appearance of a
defect,
(h) time since last shop visit at the date of
defect appearance,
(i) Manufacturer's serial number of the Aircraft
and/or its registration number,
(j) Aircraft total flying hours and/or number of
landings at the date of defect appearance,
(k) claim number,
(l) date of claim, and
(m) date of delivery of an Aircraft or part to the
Buyer.
Claims are to be addressed as follows:
AIRBUS INDUSTRIE
CUSTOMER SERVICE DIVISION - SG-C
WARRANTY ADMINISTRATION
ROND-POINT MAURICE BELLONTE
F-31707 BLAGNAC
FRANCE
or to the office of the Resident Customer Support
Representatives assigned to the Buyer under Subclause
15.1.2 of this Agreement.
(v) Acceptance and Rejection
The Seller will accept or reject each Warranty Claim
within *** of receipt thereof. *** The Seller will
provide reasonable written substantiation in case of
rejection of a Warranty Claim. Transportation,
insurance, and any other costs associated with the
sending of any Warranted Part or any other item,
equipment, component or part for which the Buyer's
Warranty Claim is rejected by the Seller will be
borne by the Buyer. The Buyer may at any time appeal
the rejection with the Customer Support Director
referred to in Subclause 15.3 of this Agreement.
(vi) Replacements
Replacements made pursuant to this Subclause 12.1
will be made within the lead time defined in the
Seller's Spare Parts Price List. The Seller will use
all reasonable efforts to achieve expedited handling
of replacements. Replaced components, equipment,
accessories or parts will become the Seller's
property.
Title to and risk of loss of any Aircraft, component,
accessory, equipment or part returned by the Buyer to
the Seller will at all times remain with the Buyer,
except that (i) when the Seller has possession of a
returned Aircraft, component, accessory, equipment or
part to which the Buyer has title, the Seller will
have such responsibility therefor as is chargeable by
law to a bailee for hire, but the Seller will not be
liable for loss of use, and (ii) title to and risk of
loss of a returned component, accessory, equipment or
part will pass to the Seller upon receipt by the
Buyer of any item furnished by the Seller to the
Buyer as a replacement therefor. Upon the Buyer's
receipt of any replacement component, accessory,
equipment or part provided by the Seller pursuant to
this Subclause 12.1, title to and risk of loss of
such component, accessory, equipment or part will
pass to the Buyer.
(vii) Inspection
The Seller will have the right to inspect the
affected Aircraft and documents and other records
relating thereto in the event of any claim under this
Subclause 12.1, on reasonable prior written notice to
the Buyer. Each such inspection will be made during
reasonable times during the Buyer's normal business
day and will not unreasonably interfere with the
Buyer's operation or personnel.
12.1.7 In-house Warranty
(i) Authorization
The Buyer is hereby authorized to perform the repair
of Warranted Parts, subject to the terms of this
Subclause 12.1.7 ("In-house Warranty"). The Buyer
will use reasonable efforts to notify the Seller's
representative of its decision to perform any
In-house repairs before such repairs are commenced,
unless it is not practical to do so, in which case
the Buyer will notify the Seller of the In-house
repair as soon as reasonably practicable.
(ii) Conditions of Authorization
The Buyer will be entitled to the benefits under this
Subclause 12.1.7 for repair of Warranted Parts:
(a) ***, or
(b) if the following conditions are satisfied:
(i) only if adequate facilities and
qualified personnel are available to
the Buyer,
(ii) in accordance with the Seller's written
instructions set forth in documents
such as the Aircraft Maintenance
Manual, Component Maintenance Manual
(Manufacturer), Component Maintenance
Manual (Vendor) and Structural Repair
Manual, and
(iii) only to the extent reasonably necessary
to correct the defect.
(iii) Seller's Rights
The Seller will have the right to have any Warranted
Part, or any part removed therefrom, which is claimed
to be defective, returned to the Seller, as set forth
in Subclause 12.1.6(i), if, in the judgment of the
Seller, the nature of the defect requires technical
investigation.
Subject to applicable safety rules and the Buyer's
contractual obligations with labor unions, the Seller
will further have the right to have a representative
present as an observer during the disassembly,
inspection and testing of any Warranted Part claimed
to be defective. Such representatives will not
unreasonably interfere with the Buyer's operation and
personnel.
(iv) In-house Warranty Claim Substantiation
Claims for In-house Warranty credit will be filed
within the time period set forth in and will contain
the same information required in Warranty Claims
under Subclause 12.1.6(iv) and in addition, to the
extent ascertainable, will include:
(a) a report of technical findings with respect to
the defect,
(b) for parts required to remedy the defect:
- part numbers,
- serial numbers (if applicable),
- description of the parts,
- quantity of parts,
- unit price of parts,
- total price of parts,
- related Seller's or third party's invoices
(if applicable),
(c) detailed number of labor hours,
(d) agreed In-house Warranty Labor Rate (defined
below in Subclause 12.1.7(v)(a)), and
(e) total claim value.
(v) Credit
The Buyer's sole remedy, and the Seller's sole
obligation and liability, in respect of In-house
Warranty claims, will be a credit to the Buyer's
account. The credit to the Buyer's account will be
equal to the direct labor cost expended in performing
a repair and to the direct cost of materials
associated with the repair. Such costs will be
determined as set forth below.
(a) To determine direct labor costs, only
man-hours spent on disassembly, inspection,
repair, reassembly, and final inspection and
test (including flight tests if flight tests
prove necessary to complete a repair under the
In-house Warranty) of the Warranted Part will
be counted. Man-hours required for maintenance
work concurrently being carried out on the
Aircraft or Warranted Part will not be
included, ***.
The man-hours counted as set forth above will
be multiplied by an agreed labor rate
representing the Buyer's composite average
hourly labor rate (***, including all ***,
social security charges, business taxes and
similar items, but excluding fringe benefits)
paid to the Buyer's employees whose jobs are
directly related to the performance of the
repair (the "In-house Warranty Labor Rate").
It is agreed that for the purpose hereof the
In-house Labor Rate is ***.
(b) Direct material costs are determined by the
prices at which the Buyer acquired such
replacement material, excluding any parts and
materials used for overhaul furnished free of
charge by the Seller.
(vi) Limitation on Credit
The Buyer will in no event be credited for repair
costs (including labor and material) for any
Warranted Part exceeding sixty-five percent (65%) of
the Seller's current catalog price for a replacement
of such defective Warranted Part or exceeding those
costs which would have resulted if repairs had been
carried out at the Seller's facilities.
Such cost will be substantiated in writing by the
Seller upon reasonable request by the Buyer.
(vii) Scrapped Material
The Buyer will retain any Warranted Part defective
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 ninety (90) days
after submission of a claim for In-house Warranty
credit relating thereto, whichever is longer. Such
parts will be returned to the Seller within thirty
(30) days of receipt of the Seller's request to that
effect, at the Seller's cost.
Notwithstanding the foregoing, the Buyer may, with
the agreement of the Seller's Field Representative,
scrap any such defective parts that are beyond
economic repair and not required for technical
evaluation.
(viii) LIMITATIONS ON LIABILITY OF SELLER
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 Subclause 12.1 for any
Warranted Part will accrue to the benefit of any owner,
lessor, lessee or operator other than the Buyer, if the
Warranted Part enters into the possession of any such owner,
lessor, lessee or operator as a result of a sale, transfer,
lease or other conveyance or as a result of a pooling or
leasing agreement between such owner, lessor, lessee or
operator and the Buyer (and its successors and assigns), in
accordance with the terms and subject to the limitations and
exclusions of the foregoing warranties, and to applicable
laws or regulations.
12.1.9 Warranty for Corrected, Replacement or Repaired Warranted Parts
Whenever any Warranted Part that contains a defect for which
the Seller is liable under Subclause 12.1 has been
corrected, repaired or replaced pursuant to the terms of
this Clause 12, the period of the Seller's warranty with
respect to such corrected, repaired or replacement Warranted
Part, whichever may be the case, will be ***. In the event
that a defect is attributable to a defective repair or
replacement by the Buyer, a Warranty Claim with respect to
such defect will not be allowable, notwithstanding any
subsequent correction or repairs.
12.1.10 Good Airline Operation - Normal Wear and Tear
The Buyer's rights under this Subclause 12.1 are subject to
the Aircraft and each component, equipment, accessory and
part thereof being maintained, overhauled, repaired and
operated in accordance with ***.
The Seller's liability under this Subclause 12.1 will not
extend to normal wear and tear nor, to the extent caused by
any of the following, to:
(i) any Aircraft or component, equipment, accessory or
part thereof that has been repaired, altered or
modified after delivery by a party other than the
Seller or ***;
(ii) any Aircraft or component, equipment, accessory or
part thereof that has been willfully operated in a
damaged state (other than in the case of operational
necessity); or
(iii) any component, equipment, accessory or part from
which the trademark, trade name, part or serial
number or other identification marks have been
removed.
This limitation of the Seller's liability will apply in the
cases of Subclause 12.1.10(i) and Subclause 12.1.10(ii)
above only to the extent the Seller submits sufficient
evidence proving that the defect arose from or was
contributed to by either of said cases.
12.2 SELLER SERVICE LIFE POLICY
In addition to the warranties set forth in Subclause 12.1
above, the Seller further agrees that should a Failure occur
in any Item, then, subject to the general conditions and
limitations set forth in Subclause 12.2.4 below, the
provisions of this Subclause 12.2 will apply.
12.2.1 Definitions
For the purposes of this Subclause 12.2, the following
definitions will apply:
12.2.1.1 "Item" means any of the Seller components, equipment,
accessories or parts listed in Exhibit "D" hereto which are
installed on an Aircraft at any time during the period of
effectiveness of the Service Life Policy as defined below in
Subclause 12.2.
12.2.1.2 "Failure" means any breakage of, defect in or premature
failure of, an Item that has occurred, or that can
reasonably be expected to occur, based on the Seller's
findings or the experience or expertise of the Buyer or any
other owner or operator of the Seller's aircraft, and that
materially impairs the utility or safety of the Item,
provided that any such breakage of, or defect in, any Item
did not result from any breakage or defect in any other
Aircraft part or component or from any other extrinsic
force, normally covered under hull insurance policy.
12.2.2 Periods and Seller's Undertaking
Subject to the general conditions and limitations set forth
in Subclause 12.2.4 below, the Seller agrees that if a
Failure occurs in an Item within twelve (12) years after the
delivery of said Aircraft to the Buyer, the Seller will, at
its own discretion, as promptly as practicable and for a
price that reflects the Seller's financial participation as
hereinafter provided, either:
12.2.2.1 design and furnish to the Buyer a terminating correction for
such Item subject to 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 Cost
Any part or Item that the Seller is required to furnish to
the Buyer under this Service Life Policy in connection with
the correction or replacement of an Item will be furnished
to the Buyer at the Seller's current sales price therefor,
less the Seller's financial participation, which will be
determined in accordance with the following formula:
C (N - T)
--------------
P = N
where
P: financial participation of the Seller,
C: the Seller's then current sales price for the
required Item or required Seller designed parts,
T: total time in months since delivery of the particular
Aircraft in which the Item subject to a Failure was
originally installed, and
N: one hundred and forty-four (144) months.
12.2.4 General Conditions and Limitations
12.2.4.1 Notwithstanding Subclause 12.2.3, the undertakings given in
this Subclause 12.2 will not be valid during the period
applicable to an Item under Subclause 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 compliance by
the Buyer with the following conditions precedent:
(i) ***, the Buyer will maintain log books and other
historical records with respect to each Item adequate
to enable determination as to whether the alleged
Failure is covered by this Service Life Policy and,
if so, to define the portion of the cost to be borne
by the Seller in accordance with Subclause 12.2.3
above.
(ii) ***, the Buyer will keep the Seller informed of any
significant incidents relating to an Aircraft,
howsoever occurring or recorded.
(iii) The conditions of Subclause 12.1.10 will have been
complied with.
(iv) The Buyer will carry out specific structural
inspection programs for monitoring purposes as may be
established from time to time by the Seller and the
Buyer. Such programs will be compatible with the
Buyer's operational requirements and will be carried
out at ***.
(v) In the case of any breakage or defect, ***, 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 will inform the Seller in sufficient detail
about the breakage or defect to enable the Seller to
determine whether said breakage or defect is subject
to this Service Life Policy, to the extent the Buyer
has such information available.
12.2.4.3 Except as otherwise provided in this Subclause 12.2, any
claim under this Service Life Policy will be administered as
provided in, and will be subject to the terms and conditions
of, Subclause 12.1.6.
12.2.4.4 In the event that the Seller will have issued a modification
applicable to an Aircraft, the purpose of which is to avoid
a Failure, the Seller will offer the necessary modification
kit free of charge or under a prorata formula established by
the Seller. If such a kit is so offered to the Buyer, then,
in respect of such Failure and any Failures that could ensue
therefrom, the validity of the Seller's commitment under
this Subclause 12.2 will be subject to the Buyer's
incorporating such modification in the relevant Aircraft,
within a reasonable time, as promulgated by the Seller and
in accordance with the Seller's instructions.
***
12.2.4.5 THIS SERVICE LIFE POLICY IS NEITHER A WARRANTY, PERFORMANCE
GUARANTEE, NOR AN AGREEMENT TO MODIFY ANY AIRCRAFT OR
AIRFRAME COMPONENTS TO CONFORM TO NEW DEVELOPMENTS OCCURRING
IN THE STATE OF AIRFRAME DESIGN AND MANUFACTURING ART. THE
SELLER'S OBLIGATION UNDER THIS 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 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.
12.3 VENDOR WARRANTIES
12.3.1 Seller's Support
Prior to delivery of the first Aircraft, the Seller will
obtain from all Vendors listed in the Supplier Product
Support Agreements manual enforceable and transferable
warranties, service life policies, and indemnities against
patent infringements for Vendor Parts. The Seller will also
obtain enforceable and transferable Vendor service life
policies from landing gear Vendors for selected structural
landing gear elements. The Seller undertakes to supply to
the Buyer such Vendor warranties, Vendor service life
policies and indemnities against patent infringements
substantially in the form summarized in the Supplier Product
Support Agreements manual.
12.3.2 Vendor's Default
12.3.2.1 In the event that any Vendor under any standard warranty or
indemnity against patent infringements obtained by the
Seller pursuant to Subclause 12.3.1 or Clause 13 hereof
defaults in the performance of any material obligation under
such warranty or indemnity against patent infringements with
respect to a Vendor Part, and the Buyer submits within a
reasonable time to the Seller reasonable evidence that such
default has occurred, then Subclause 12.1 or Clause 13 of
this Agreement will apply to the extent the same would have
been applicable had such Vendor Part been a Warranted Part
except that, for obligations covered under Subclause 12.1,
the shorter of (i) the Vendor's warranty period as indicated
in the Supplier Product Support Agreements manual and (ii)
the Seller's warranty period as indicated in Subclause
12.1.3 of this Agreement will apply.
12.3.2.2 In the event that any Vendor under any Vendor service life
policy obtained by the Seller pursuant to Subclause 12.3.1
hereof defaults in the performance of any material
obligation with respect thereto, and the Buyer submits
within reasonable time to the Seller reasonable evidence
that such default has occurred, then Subclause 12.2 of this
Agreement will apply to the extent the same would have been
applicable had such component, equipment, accessory or part
been listed in Exhibit "D" hereto.
12.3.2.3 At the Seller's request, the Buyer will assign to the
Seller, and the Seller will be subrogated to, all of the
Buyer's rights against the relevant Vendor, with respect to
and arising by reason of such default and the Buyer will
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 (an "Interface Problem"), the Seller will, if
requested by the Buyer, and without additional charge to the
Buyer, promptly conduct or have conducted an investigation
and analysis of such problem to determine, if possible, the
cause or causes of the problem and to recommend such
corrective action as may be feasible. The Buyer will furnish
to the Seller all data and information in the Buyer's
possession relevant to the Interface Problem and will
reasonably cooperate with the Seller in the conduct of the
Seller's investigations and such tests as may be required.
At the conclusion of such investigation the Seller will
promptly advise the 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 Interface Problem is attributable to the design of a
Warranted Part, the Seller will, if requested by the Buyer,
take prompt action to correct the design of such Warranted
Part, pursuant to the terms and conditions of Subclause 12.1
or 12.2, as applicable.
12.4.3 Vendor's Responsibility
If the Interface Problem is attributable to the design of a
component, equipment, accessory or part other than a
Warranted Part ("Vendor Component"), the Seller will, if
requested by the Buyer, promptly assist and cooperate with
the Buyer in processing and enforcing any warranty claim the
Buyer may have against the manufacturer of such Vendor
Component. Further, ***.
12.4.4 Joint Responsibility
If the Interface Problem is attributable partially to the
design of a Warranted Part and partially to the design of
any Vendor Component, the Seller will, if requested by the
Buyer, seek a solution to the Interface Problem through
cooperative efforts of the Seller and any Vendor involved.
The Seller will promptly advise the Buyer of such corrective
action as may be proposed by the Seller and any such Vendor.
Such proposal will be consistent with any then existing
obligations of the Seller hereunder and of any such Vendor
to the Buyer. When the Seller or any Vendor has performed
such corrective action to the reasonable satisfaction of the
Buyer, such correction will constitute full satisfaction of
any claim the Buyer may have against either the Seller or
any such Vendor with respect to such Interface Problem.
12.4.5 All requests under this Subclause 12.4 will be directed to
the Seller.
12.5 Performance Standard
The Seller will take prompt action to perform its
obligations under this Clause 12. ***
12.6 EXCLUSIVITY OF WARRANTIES AND
GENERAL LIMITATIONS OF LIABILITY
THIS CLAUSE 12 (INCLUDING ITS SUBPROVISIONS AND RELATED
LETTER AGREEMENTS) 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 (AND RELATED LETTER AGREEMENTS)
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, UNLESS OTHERWISE PROVIDED FOR IN THIS CLAUSE 12 (AND
RELATED LETTER AGREEMENTS):
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE
OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(3) 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;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL
STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY
REGULATIONS OR STANDARDS IMPOSED BY ANY
INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR
AGENCY;
(6) 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 (AND RELATED
LETTER AGREEMENTS) SHOULD FOR ANY REASON BE HELD UNLAWFUL,
OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS CLAUSE 12
(AND RELATED LETTER AGREEMENTS) WILL REMAIN IN FULL FORCE
AND EFFECT.
12.7 DUPLICATE REMEDIES
THE REMEDIES PROVIDED TO THE BUYER UNDER THIS CLAUSE 12 (AND
RELATED LETTER AGREEMENTS) AS TO ANY DEFECT IN RESPECT OF
THE AIRCRAFT OR ANY PART THEREOF ARE NOT CUMULATIVE. THE
BUYER WILL BE ENTITLED TO THE ONE REMEDY THAT PROVIDES THE
MAXIMUM BENEFIT TO IT, AS THE BUYER MAY ELECT, PURSUANT TO
THE TERMS AND CONDITIONS OF THIS CLAUSE 12 (AND RELATED
LETTER AGREEMENTS) FOR ANY SUCH PARTICULAR DEFECT FOR WHICH
REMEDIES ARE PROVIDED UNDER THIS CLAUSE 12 (AND RELATED
LETTER AGREEMENTS); PROVIDED, HOWEVER, THAT, ALTHOUGH THE
BUYER MAY SIMULTANEOUSLY PURSUE MULTIPLE REMEDIES FOR THE
SAME DEFECT, THE BUYER WILL NOT BE ENTITLED TO ELECT A
REMEDY UNDER ONE PART OF THIS CLAUSE 12 (AND RELATED LETTER
AGREEMENTS) 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
RELATED LETTER AGREEMENTS).
UNQUOTE
IN CONSIDERATION OF THE ASSIGNMENT AND SUBROGATION BY THE
SELLER UNDER THIS CLAUSE 12 (AND RELATED LETTER AGREEMENTS)
IN FAVOR OF THE BUYER IN RESPECT OF THE SELLER'S RIGHTS
AGAINST AND OBLIGATIONS TO THE MANUFACTURER UNDER THE
PROVISIONS QUOTED ABOVE, THE BUYER HEREBY ACCEPTS SUCH
ASSIGNMENT AND SUBROGATION AND AGREES TO BE BOUND BY ALL OF
THE TERMS, CONDITIONS AND LIMITATIONS THEREIN CONTAINED,
SPECIFICALLY INCLUDING, WITHOUT LIMITATION, THE EXCLUSIVITY
OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY
PROVISIONS AND DUPLICATE REMEDIES PROVISIONS.
THIS CLAUSE 12 (INCLUDING ITS SUBPROVISIONS AND RELATED
LETTER AGREEMENTS) 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 (AND RELATED LETTER AGREEMENTS)
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, UNLESS OTHERWISE PROVIDED FOR IN THIS CLAUSE 12 (AND
RELATED LETTER AGREEMENTS):
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE
OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(3) 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;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL
STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY
REGULATIONS OR STANDARDS IMPOSED BY ANY
INTERNATIONAL, NATIONAL, STATE OR LOCAL STATUTE OR
AGENCY;
(6) 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 (AND RELATED
LETTER AGREEMENTS) SHOULD FOR ANY REASON BE HELD UNLAWFUL,
OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS CLAUSE 12
(AND RELATED LETTER AGREEMENTS) WILL REMAIN IN FULL FORCE
AND EFFECT.
The remedies provided to the Buyer under this Clause 12 (and
related Letter Agreements) as to any defect in respect of
the Aircraft or any part thereof are not cumulative. The
Buyer will be entitled to the one remedy that provides the
maximum benefit to it, as the Buyer may elect, pursuant to
the terms and conditions of this Clause 12 (and related
Letter Agreements) for any such particular defect for which
remedies are provided under this Clause 12 (and related
Letter Agreements); provided, however, that, ***, the Buyer
will not be entitled to elect a remedy under one part of
this Clause 12 (and related Letter Agreements) 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 *** arising under these
warranties *** covered by this Clause 12 (and related Letter
Agreements).
12.8 SURVIVABILITY
In respect of all delivered Aircraft, the provisions of this
Clause 12 (and related Letter Agreements) will survive any
termination of this Agreement.
13 - PATENT INDEMNITY
The Seller, in its capacity as "Buyer" under its
arrangements with the Manufacturer, has negotiated and
obtained the following Patent Indemnity from the
Manufacturer with respect to the Aircraft, subject to the
terms, conditions, limitations and restrictions (including,
but not limited to, the waiver, release and renunciation
provision) all as hereinafter set out. The Seller hereby
guarantees to the Buyer the performance by the Manufacturer
of the Manufacturer's obligations and assigns to the Buyer,
and the Buyer hereby accepts, all of the rights and
obligations of the Seller in the Seller's capacity as
"Buyer" as aforesaid under the said Patent Indemnity and the
Seller subrogates the Buyer into all such rights and
obligations in respect of the Aircraft. The Seller hereby
warrants to the Buyer that the Seller has all requisite
authority to make the foregoing assignment and effect the
foregoing subrogation to and in favor of the Buyer and that
the Seller will not enter into any amendment of the
provisions so assigned without the prior written consent of
the Buyer. Capitalized terms utilized in the following
provisions have the meanings assigned thereto in this
Agreement, except that the term "Seller" refers to the
Manufacturer and the term "Buyer" refers to the Seller and
cross-references herein refer to Clauses and Exhibits in
this Agreement or to Paragraphs in any Letter Agreement
hereto.
QUOTE
13.1 Scope
The Seller will indemnify the Buyer from and against any
damages, costs and expenses including reasonable legal costs
(excluding damages, costs, expenses, loss of profits and
other liabilities in respect of or resulting from loss of
use of any Aircraft) in case of any actual or alleged
infringement by any Aircraft or any Warranted Part or the
use thereof of
(i) any British, French, German, Spanish or US patent, or
(ii) any patent issued under the laws of any other country
in which the Buyer may lawfully operate the Aircraft,
provided that
(a) 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 is each a
party to the Chicago Convention on
International Civil Aviation of December 7,
1944, and is bound by and entitled to all
benefits of Article 27 thereof,
or in the alternative,
(b) from such time of design and until
infringement claims are resolved, such country
and the flag country of the Aircraft is each a
party to the International Convention for the
Protection of Industrial property of
March 20, 1883 (known as the "Paris
Convention").
The Seller's undertaking under this Clause 13 will not apply
to components, accessories, equipment or parts which are not
Warranted Parts.
13.2 Seller's Action
Should the Buyer be enjoined (temporarily or permanently)
from using any part of an Aircraft by reason of actual or
alleged infringement of a patent covered by Subclause 13.1,
the Seller will as soon as practicable, after good faith
consultation with the Buyer and at the Seller's expense,
either (i) procure for the Buyer the right to use such part
free of any liability for patent infringement or (ii) as
soon as possible replace such part with a non-infringing
substitute otherwise complying with the requirements of this
Agreement.
13.3 Seller's Obligation
The Seller's obligation hereunder with respect to any actual
or alleged infringement is conditioned upon commencement of
suit against the Buyer for infringement or the Buyer's
receipt of a written claim alleging infringement, and upon
written notice by the Buyer to the Seller within ten (10)
days after receipt by the Buyer of notice of the institution
of such suit or claim, giving particulars thereof. The
Seller will have the option but not the obligation at any
time to conduct negotiations with the party or parties
charging infringement and may intervene in any suit
commenced. Whether or not the Seller intervenes in any such
suit, it will be entitled at any stage of the proceedings to
assume, conduct or control the defense thereof.
The Seller's obligation hereunder with respect to any actual
or alleged infringement is also conditioned upon (i) the
Buyer's promptly furnishing to the Seller all the data,
papers, records and other assistance within the control of
the Buyer material to the resistance of or defense against
any such charge or suits for infringement, (ii) the Buyer's
use of diligent efforts in full cooperation with the Seller
to reduce royalties, damages, costs and expenses involved,
(iii) the Seller's prior approval of the Buyer's payment,
assumption or admission of any liabilities, expenses, costs
or royalties for which the Seller is asked to respond and
(iv) the Buyer's not otherwise acting in a manner
prejudicial to its or the Seller's defense of the action.
13.4 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 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.
UNQUOTE
In consideration of the assignment and subrogation by the
Seller under this Clause 13 in favor of the Buyer in respect
of the Seller's rights against and obligations to the
Manufacturer under the provisions quoted above, the Buyer
hereby accepts such assignment and subrogation and agrees to
be bound by all of the terms, conditions and limitations
therein contained (specifically including, without
limitation, the waiver, release and renunciation provision).
THE INDEMNITY PROVIDED IN THIS CLAUSE 13 AND THE OBLIGATIONS
AND LIABILITIES OF THE SELLER UNDER THIS CLAUSE 13 ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND 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 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 CLAUSE 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.
13.5 SURVIVABILITY
In respect of all delivered Aircraft, the provisions of this
Clause 13 will survive any termination of this Agreement.
14 - TECHNICAL PUBLICATIONS
14.1 Scope
The Seller will provide the Buyer or cause the Buyer to be
provided with a set of technical publications to support the
operation of the Aircraft in accordance with the terms set
forth in this Clause 14 (the "Technical Publications"). Such
Technical Publications are listed in Exhibit "F" of this
Agreement together with the form, type, format and quantity
of each such Technical Publication.
14.2 Specification
14.2.1 The Technical Publications are prepared according to
applicable ATA specifications. Exhibit "F" references the
relevant ATA specification for each affected Technical
Publication.
14.2.2 Technical Publications will be customized as indicated in
Exhibit "F." The Seller will provide ***.
14.2.3 Technical Publications at delivery of the Aircraft will
correspond to the Specifications of the Aircraft as defined
at least six (6) months before such delivery. The Seller
will continuously monitor technological and ATA
specification developments and apply them to the production
and method of transmission of Technical Publications.
14.3 Delivery
The Technical Publications and corresponding revisions that
the Seller will supply or cause to be supplied in accordance
with the terms of this Clause 14 will be sent to
one address only, as defined by the Buyer.
The quantities of the Technical Publications to be delivered
on or before the delivery of the first Aircraft will be
mutually agreed. The Seller will send or cause to be sent
additional quantities of Technical Publications as required
by the Buyer upon thirty (30) days' prior notice.
Technical Publications and their revisions will be shipped
by the quickest transportation methods. The shipments ***.
14.4 Language
The Technical Publications (including drawings) will be
supplied in the English language using aeronautical
terminology in common use.
14.5 Revision Service
14.5.1 General
Unless otherwise specifically stated, ***.
14.5.2 Service Bulletins
Service Bulletin (SB) information will be incorporated into
the Technical Publications after notice from the Buyer of
embodiment of a Service Bulletin. The split effectivity for
the corresponding Service Bulletin will remain in the
Technical Publications until notification from the Buyer
that embodiment of such Service Bulletin has been completed
for all the Aircraft.
14.5.3 Customer Originated Changes
14.5.3.1 Buyer-originated data documented in the Buyer's own Request
for Publication Change ("Customer Originated Changes" or
"COC") may be introduced into the following customized
Technical Publications:
(i) Aircraft Maintenance Manual
(ii) Illustrated Parts Catalog
(iii) Trouble Shooting Manual
(iv) Wiring Manual (Schematics, Wirings, Lists)
14.5.3.2 The Buyer will issue COC in accordance with the provisions
of the "Guidelines for Customer Originated Changes" issued
by the Seller and will label such data "COC."
14.5.3.3 The Seller will use all reasonable efforts to introduce the
COC into the relevant Technical Publications as soon as
possible following the receipt of complete and accurate data
for processing, but no later than two (2) revisions after
submission of the COC.
14.5.3.4 COC data will be incorporated by the Seller in all affected
customized Technical Publications, unless the Buyer
specifies in writing to the Seller into which Technical
Publications the COC data will be incorporated. The
customized Technical Publications into which the COC data
are incorporated will only show the Aircraft configuration
that reflects the COC data and not the configuration before
incorporation of such COC data.
14.5.3.5 The Buyer hereby acknowledges and accepts that the
incorporation of any COC into the Technical Publication
issued by or caused to be issued by the Seller will be
entirely at the Buyer's risk. Accordingly, the Seller will
be under no liability whatsoever in respect of either the
engineering contents of any COC, including any omissions or
inaccuracies therein, or the effect that incorporation of
such COC may have on the Technical Publications.
14.5.3.6 The Seller will not be required to check any COC data
submitted for incorporation as aforementioned, and the Buyer
will ensure that all COC data submitted for incorporation
into a Technical Publication have received prior approval
from its local airworthiness authority.
14.5.3.7 IN THE EVENT THAT THE SELLER AND/OR THE MANUFACTURER IS
REQUIRED UNDER ANY COURT ORDER OR SETTLEMENT TO INDEMNIFY IN
WHOLE OR IN PART ANY THIRD PARTY FOR INJURY, LOSS OR DAMAGE
INCURRED DIRECTLY OR INDIRECTLY AS A RESULT OF INCORPORATION
OF ANY COC INTO THE TECHNICAL PUBLICATIONS ISSUED OR CAUSED
TO BE ISSUED BY THE SELLER, THE BUYER AGREES TO DEFEND,
INDEMNIFY OR HOLD HARMLESS THE SELLER AND/OR THE
MANUFACTURER FOR ALL PAYMENTS OR SETTLEMENTS MADE IN RESPECT
OF SUCH INJURY, LOSS OR DAMAGE INCLUDING ANY EXPENSES
INCURRED BY THE SELLER AND/OR THE MANUFACTURER IN DEFENDING
SUCH CLAIMS, PROVIDED THAT THE BUYER IS PROVIDED AN
OPPORTUNITY TO ASSUME THE DEFENSE AND/OR A SETTLEMENT OF
SUCH CLAIM. THIS INDEMNIFICATION BY THE BUYER WILL IN NO
EVENT BE AFFECTED BY ANY WRITTEN OR ORAL COMMUNICATION THAT
THE SELLER OR THE MANUFACTURER MAY MAKE TO THE BUYER IN
RESPECT OF SUCH DOCUMENTATION.
14.5.3.8 The price for the incorporation of any COC as aforesaid will
be invoiced to the Buyer under conditions specified in the
Seller's then current Support Services Price Catalog. ***
14.6 Vendor Equipment
14.6.1 Information relating to Vendor equipment that is installed
on the Aircraft by the Seller will be included free of
charge in the basic issue of the Technical Publications, to
the extent necessary for the understanding of the systems
concerned.
14.6.2 The Buyer will supply or cause to be supplied to the Seller
the data related to Buyer Furnished Equipment and Seller
Furnished Equipment not covered in the Seller's standard
Seller Furnished Equipment definition at least six (6)
months before the scheduled delivery of the customized
Technical Publications.
14.6.3 The Seller will introduce into the basic issue of the
Technical Publications the data related to Buyer Furnished
Equipment and Seller Furnished Equipment, at no charge to
the Buyer.
14.7 Aircraft Identification for Technical Publications
For the customized Technical Publications the Buyer agrees
to the allocation of Fleet Serial Numbers from 001 up to
999. The sequence will be interrupted only if two (2)
different Propulsion Systems manufacturers are selected
and/or different aircraft models are chosen.
The Buyer will 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 will not constitute any
proprietary, insurable or other interest whatsoever of the
Buyer in any Aircraft prior to delivery of and payment for
such Aircraft as provided in this Agreement.
The relevant customized Technical Publications are:
(i) Aircraft Maintenance Manual
(ii) Illustrated Parts Catalog
(iii) Trouble Shooting Manual
(iv) Wiring Manuals (Schematics, Wirings, Lists)
14.8 Airworthiness Authority
It will be the responsibility of the Buyer to provide its
local airworthiness authority with such Technical
Publications as it may require, using the Technical
Publications delivered by the Seller to the Buyer in
accordance with the terms hereof.
14.9 Additional Requirements
If feasible the Seller will comply with the Buyer's request
to change the form, quantity, type and/or revisions of any
of the data specified in Exhibit "F," upon receipt of the
Buyer's purchase order. The charges for such changes will be
invoiced to the Buyer under conditions specified in the
Seller's then current Support Services Price Catalog.
14.10 Future Developments
The Seller will continuously monitor technological
developments and apply them to document production and
method of transmission where beneficial and economical.
14.11 Proprietary Rights
14.11.1 All proprietary rights, including but not limited to patent,
design and copyrights, relating to Technical Publications
and data supplied under this Agreement, will remain with the
Seller. All such Technical Publications and data are
supplied to the Buyer for the sole use of the Buyer, who
undertakes not to divulge the contents thereof to any third
party save as permitted therein, or as provided in Subclause
14.11.2, or otherwise pursuant to any governmental or legal
requirement imposed upon the Buyer. These proprietary rights
will 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.
14.11.2 This Agreement does not restrict the Buyer from using any
Technical Publications or data supplied by the Seller for
the purpose of maintenance, repair or modification of
Aircraft. Upon the Buyer's resale or lease of any Aircraft,
the purchaser or lessee of such Aircraft may ***, provided
that such purchaser or lessee ***. The Buyer will furnish to
the Seller ***.
14.11.3 Drawings of the Manufacturer are provided to the Buyer under
the express condition that the Manufacturer will have no
liability, whether in contract or tort, arising from or in
connection with the use of a drawing of the Manufacturer by
the Buyer.
14.11.4 In the event that the Seller has authorized the disclosure
to third parties, either under this Agreement or by express
written authorization, the Buyer will undertake to bind such
third party to the same conditions and restrictions as the
Buyer with respect to such disclosure, as set forth in this
Subclause 14.11.
14.12 Warranties as to Technical Publications
The Seller warrants that the Technical Publications are
prepared in accordance with the state of the art at the date
of their conception. Should a Technical Publication prepared
by the Seller contain errors or omissions, the sole and
exclusive liability of the Seller will be, at its option, to
correct or replace such Technical Publication. Any such
correction or replacement will occur ***. Notwithstanding
the above, no warranties of any kind are given for the
Customer Originated Changes, as set forth in Subclause
14.5.3. The Exclusivity of Warranties and General
Limitations of Liability provisions of Subclause 12.6 of
this Agreement will apply to all Technical Publications.
15 - FIELD ASSISTANCE
15.1 Seller's Service
15.1.1 The Seller will provide or cause to be provided at no charge
to the Buyer the following services at the Buyer's main base
or at locations to be designated by the Buyer.
15.1.2 The Seller will provide Resident Customer Support
Representatives acting in an advisory capacity at the
Buyer's main base ***. The actual number of Resident
Customer Support Representatives allocated to the Buyer will
be mutually agreed.
15.1.3 If requested by the Buyer, the Seller will arrange for
similar services to be procured by competent representatives
of the Propulsion Systems manufacturer and, by
representatives of Vendors (other than Vendors of Buyer
Furnished Equipment).
15.1.4 The Seller will provide one (1) Customer Support Director
based in Herndon, Virginia, to liaise between the
Manufacturer and the Buyer on product support matters after
execution of this Agreement for as long as any of the
Aircraft is operated by the Buyer.
15.2 Buyer's Service
For as long as the Customer Support Representative(s)
specified in Subclause 15.1.1 above remain(s) with the
Buyer, the Buyer will furnish without charge, suitable
office space, office equipment and facilities in or
conveniently near the Buyer's maintenance facilities. The
Buyer will provide telecommunications facilities at the
Seller's cost to be invoiced on a monthly basis.
15.3 Advisory Capacity
In providing the technical services contemplated by this
Agreement, all of the Seller's, Manufacturer's and
Associated Contractors, and any of their employees,
representatives, or agents 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 agents or
employees of the Buyer.
15.4 Temporary Assignment of Customer Support Representative
The Buyer agrees that the Seller will have the right upon
notice to and consultation with the Buyer to transfer or
recall any Customer Support Representative(s) 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 facility pursuant to this Subclause
15.4.
15.5 INDEMNITY AND INSURANCE
15.5.1 SCOPE
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS
CLAUSE 15, THE BUYER AND THE SELLER PROVIDE THE INDEMNITIES
SET FORTH IN SUBCLAUSES 15.5.2 AND 15.5.3.
15.5.2 BUYER'S INDEMNITY
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, THE
MANUFACTURER, ASC AND EACH OF THE ASSOCIATED CONTRACTORS AND
THEIR RESPECTIVE SUBCONTRACTORS AND THEIR RESPECTIVE
AFFILIATES, DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM
AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, LOSS OF USE,
COSTS AND EXPENSES
(I) FOR ALL INJURIES TO AND DEATHS OF PERSONS (EXCEPTING
INJURIES TO AND DEATHS OF THE SELLER'S
REPRESENTATIVES PROVIDING THE SERVICES UNDER THIS
CLAUSE) CAUSED BY THE SELLER OR ITS REPRESENTATIVES,
AND
(II) FOR LOSS OF OR DAMAGE TO PROPERTY (EXCEPTING LOSS OF
OR DAMAGE TO PROPERTY OF THE SELLER'S SAID
REPRESENTATIVES), CAUSED BY THE SELLER OR ITS
REPRESENTATIVES.
ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF
SERVICES UNDER THIS CLAUSE 15.
THIS INDEMNITY OF THE BUYER WILL NOT APPLY FOR ANY SUCH
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISING OUT
OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE
OF THE SELLER'S, THE MANUFACTURER'S OR ANY OF THE ASSOCIATED
CONTRACTORS' OR THEIR RESPECTIVE SUBCONTRACTORS' OR THEIR
RESPECTIVE OFFICERS', AGENTS' OR EMPLOYEES' SAID
REPRESENTATIVES.
15.5.3 SELLER'S 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 INJURIES TO OR DEATHS OF THE SELLER'S SAID
REPRESENTATIVES PROVIDING THE SERVICES UNDER THIS
CLAUSE,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S SAID
REPRESENTATIVES, AND
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR
GROSS NEGLIGENCE OF THE SELLER'S SAID
REPRESENTATIVES.
WITH RESPECT TO SUBCLAUSES (I) AND (II) OF THE PRECEDING
SENTENCE, THE SELLER WILL NOT BE OBLIGATED TO INDEMNIFY OR
HOLD HARMLESS THE BUYER WHERE THE SELLER'S LIABILITIES,
DAMAGES, LOSSES, COSTS OR EXPENSES ARISE FROM THE BUYER'S
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
15.5.4 CLAIMS
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 15.5, THE FORMER
(INDEMNITEE) WILL PROMPTLY GIVE NOTICE TO THE OTHER PARTY
(INDEMNITOR), AND THE INDEMNITOR WILL HAVE THE RIGHT TO
INVESTIGATE, AND THE RIGHT IN ITS SOLE DISCRETION TO ASSUME
AND CONDUCT THE DEFENSE OF OR SETTLE OR COMPROMISE, SUCH
CLAIM, ACTION, PROCEEDING OR LAWSUIT.
HOWEVER, IF IN THE REASONABLE OPINION OF THE INDEMNITEE,
SUCH DEFENSE, SETTLEMENT OR COMPROMISE INVOLVES THE
POTENTIAL IMPOSITION OF CRIMINAL LIABILITY ON THE INDEMNITEE
OR A CONFLICT OF INTEREST BETWEEN THE INDEMNITOR AND THE
INDEMNITEE, THE INDEMNITOR WILL NOT BE ENTITLED TO ASSUME
AND CONDUCT THE DEFENSE OF ANY SUCH CLAIM, ACTION,
PROCEEDING OR LAWSUIT. THE INDEMNITEES WILL BE ENTITLED, AT
THEIR OWN EXPENSE, ACTING THROUGH ONE (1) COUNSEL, TO
PARTICIPATE IN ANY CLAIM, ACTION, PROCEEDING OR LAWSUIT THE
DEFENSE OF WHICH HAS BEEN ASSUMED BY THE INDEMNITOR PURSUANT
TO THE PRECEDING PROVISIONS, PROVIDED, THAT SUCH
PARTICIPATION DOES NOT, IN THE REASONABLE OPINION OF
INDEPENDENT COUNSEL OF THE INDEMNITOR, INTERFERE WITH THE
CONDUCT OF SUCH DEFENSE. NOTWITHSTANDING ANYTHING TO THE
CONTRARY, NO SETTLEMENT OR COMPROMISE WILL BE ENTERED INTO
WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNITEE, WHICH
CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED. EACH
INDEMNITEE WILL COOPERATE WITH THE INDEMNITOR IN THE
INVESTIGATION AND CONDUCT OF THE DEFENSE OF ANY CLAIM,
ACTION, PROCEEDING OR LAWSUIT INDEMNIFIED HEREUNDER.
IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND CONDUCT
THE DEFENSE OF THE CLAIM OR LAWSUIT, THEN THE INDEMNITEE
WILL HAVE THE RIGHT TO PROCEED WITH THE 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. FOR THE
PURPOSE OF THIS SUBCLAUSE 15.5, A CLAIM OR LAWSUIT AGAINST
THE MANUFACTURER OR ANY OF THE ASSOCIATED CONTRACTORS OR ANY
OF THEIR RESPECTIVE SUBCONTRACTORS OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE
DEEMED TO BE A CLAIM OR LAWSUIT AGAINST THE SELLER.
15.5.5 INSURANCE
FOR THE PERIOD OF PERFORMANCE DESCRIBED IN THIS CLAUSE, THE
BUYER WILL
(I) INDEMNIFY AND WAIVE ANY RIGHTS OF RECOURSE OR
SUBROGATION AGAINST THE SELLER, THE MANUFACTURER AND
ASC, AND EACH OF THE ASSOCIATED CONTRACTORS AND THEIR
RESPECTIVE SUBCONTRACTORS AND THEIR RESPECTIVE
DIRECTORS, OFFICERS, AGENTS, EMPLOYEES AND
SUBCONTRACTORS IN RESPECT OF ALL RISKS HULL INSURANCE
POLICY, AND
(II) EFFECT INSURANCE TO COVER THIRD-PARTY LIABILITY RISKS
ARISING DURING SAID PERFORMANCE IN AN AMOUNT
SATISFACTORY TO THE SELLER, NAMING THE SELLER AND ITS
DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES AS
ADDITIONAL INSURED.
SUCH INSURANCE WILL CONTAIN A CROSS-LIABILITY CLAUSE AND
WILL ALSO CONTAIN A THIRTY (30)-DAY NOTICE-OF-CANCELLATION
PROVISION. UPON REQUEST, THE BUYER WILL DELIVER TO THE
SELLER A CERTIFICATE OF INSURANCE EVIDENCING THE COVERAGE
REQUIRED BY THIS CLAUSE.
16 - TRAINING
16.1 Scope
The Seller will provide or cause to be provided for the
Buyer's personnel training described in this Clause 16
("Training").
16.2 Course Organization and Administration
16.2.1 Location and Scheduling
In general, Training will be held either at the Airbus
Service Company Training Center, in Miami, Florida (the
"ATC-Miami"), or at the Airbus Training Center in Toulouse,
France (the "ATC-Toulouse"). Subject to availability of
training slots at the time and at the selected location, the
location of the Training will be at the Buyer's choice. The
Seller will ensure that the Buyer's training plans (to be
provided to the Seller reasonably in advance of the delivery
of Aircraft) are implemented for a safe and smooth
entry-into-service of the Aircraft. However, certain
Training courses may also be held at the Buyer's base or
other location, if practicable, under terms and conditions
to be mutually agreed. The Buyer's training plans will
include: (i) just-in-time (determined on a reasonable basis)
training of flight crews, (ii) all necessary simulator time
for regular transition courses, and (iii) aircraft
experience for check pilots, and (iv) maintenance, dispatch
and flight attendant training.
Training courses will be scheduled for a minimum and maximum
number of participants, at dates mutually agreed during a
training conference to be held as soon as practicable (the
"Training Conference").
16.2.2 Course Content
Training courses will include features of the Specifications
required for training purposes, as known at the latest six
(6) months before the first Training course starts. The
Seller will endeavor to incorporate training features that
become known after the six-month deadline. When the Seller
does not provide maintenance or flight attendant training on
the Seller's approved Buyer Furnished Equipment, the Seller
will ensure that the Buyer gets the relevant training
support from the supplier of the said equipment. Training
courses will be FAA approved "Transition Courses." The
Seller will provide the Buyer with A319/A320/A321
differences training for flight crew, maintenance, dispatch
and/or flight attendant personnel.
Training equipment used for flight and maintenance crew
training will reflect the Specifications as closely as
possible and will meet requirements to receive and maintain
the relevant FAA course approval. Maintenance training will
not assume prior knowledge of any Airbus aircraft. The
Seller will be responsible for all Training course syllabi,
training aids, equipment and materials.
16.2.3 Course Guidelines
Courses are designed and approved to bring jet transport
specialists to a professional knowledge of the Aircraft and
satisfy FAA requirements for training and checking. The
Seller will use reasonable efforts to satisfy the Buyer's
requirements and policies regarding training.
In addition:
(i) Training will be conducted in English, and all
training materials are written in English using
common aeronautical terminology.
(ii) Pilot trainees will have the prerequisite jet
transport category experience defined in Appendix "A"
to this Clause 16.
(iii) Avionics courses (listed in Appendix "B" to this
Clause 16) are designed for avionics specialists
knowledgeable of ARINC 429 liaisons.
(iv) The Buyer will give the Seller a list of trainees
enrolling in each Training course.
(v) The Seller will not be liable for the unsatisfactory
performance of individual trainees for any reason
solely and directly outside the Seller's control.
(vi) The Seller will consult with the Buyer if the Seller
finds that a trainee lacks entry-level knowledge.
After such consultation, the trainee will either be
cycled through an entry-level training program or be
withdrawn from the Training course. All costs
associated with such entry-level program and with the
cancellation of the scheduled transition training
will be charged to the Buyer's account.
(vii) The Seller will give all trainees who satisfactorily
complete Training courses a certificate of completion
including the instructor's name and identification
number. This certificate will not represent authority
or qualification by any official civil aviation
authority, although it may be presented to such
authority as an attestation of completion of the
Seller's training courses.
(viii) An extension in duration, a repetition or a deviation
from the standard of any course to be given or in
progress (for reasons due to the Buyer, including,
but not limited to, unsatisfactory performance of the
trainees) will be provided on the Buyer's request
and/or on the Seller's advice and subject to mutual
agreement. The Seller will provide an extension in
the duration of the Training, if necessary, to
satisfactorily complete the flight Training courses.
***
16.2.4 Additional Training
Besides the free-of-charge Training courses provided
pursuant to Subclause 16.3, the Seller will offer additional
training courses and training services at the Buyer's
expense, subject to availability.
16.2.5 Training at the Buyer's Base
16.2.5.1 At the Buyer's request, and if practicable, the Training
will be provided by the Seller's instructors at any location
other than ATC-Miami or ATC-Toulouse. The Buyer will *** any
expenses related to the assignment of the Seller's
instructors and the performance of their duties.
The Buyer may provide the Seller with air travel for the
Seller's instructors to and from ATC-Miami or ATC-Toulouse,
as applicable, and the place of assignment.
16.2.5.2 The Training equipment necessary for course performance on
the Buyer's request at any location other than ATC-Miami or
ATC-Toulouse will be provided by the Buyer in accordance
with the Seller's specifications. In the event the Buyer
cannot make available the relevant equipment, the Seller
will use reasonable efforts to provide this equipment and
send it by air from Miami, Florida, or Toulouse, France, to
the course location and back to Miami, Florida, or Toulouse,
France, at the Buyer's expense.
16.2.6 Practical Training on Aircraft
16.2.6.1 ***
16.2.6.2 Any *** Flight Crew Training involving the use of an
aircraft will be done on the Buyer's delivered Aircraft.
Should the Buyer require on-aircraft Flight Crew Training to
be done before delivery of the first Aircraft, then
(i) the Seller will help the Buyer find a substitute
aircraft, and
(ii) ***.
When on-aircraft Flight Crew Training is performed at
ATC-Toulouse, the Seller will provide free-of-charge line
maintenance, including servicing, preflight checks and
changing of minor components for the contractual training
sessions. In the case that the training is performed on the
Buyer's aircraft, the Buyer will provide a mutually agreed
batch of spare parts as required to support said training
and will bear all other expenses such as fuel, oil and
landing fees. In the event that the Seller is not able to
provide sufficient simulator time to train the Buyer's
crews, and it becomes necessary to use the Aircraft instead,
the Seller will compensate the Buyer US$*** (US dollars-***)
(in 1996 dollars) per flight hour.
Finally, the Buyer will meet the requirement for a
certificate of insurance set forth below in Subclause
16.6.5.
16.2.7 Buyer's Personnel Transportation
When flight crew, flight attendant, dispatch and maintenance
Training is done at ATC-Toulouse, the Seller will provide
free-of-charge local transportation by bus for the Buyer's
trainees to and from designated pick-up points and the
training center. The Seller will also provide each flight
crew with a rental car (with unlimited mileage, the Buyer
paying for gas) or taxi transportation at the end of ground
school to enable crews to attend either simulator or flight
sessions.
When training is done at ATC-Miami, the Seller will provide
a free-of-charge rental car (with unlimited mileage, the
Buyer paying for gas) or taxi transportation for all of the
Buyer's trainees, at the beginning of the Training course.
Due to local laws, the Buyer's trainees must be over
twenty-one (21) years of age to drive rental cars.
16.2.8 Duration
The Training allowances provided in Subclause 16.3 will be
available ***.
16.3 Training Courses
16.3.1 Flight Crew Courses
16.3.1.1 Flight Crew Transition Course
The Seller will train free of charge *** flight crews (each
of which consists of a captain and a first officer) per
delivered Aircraft in accordance with the Buyer's
operational requirements. The training manual will be the
Airbus Industrie Flight Crew Operating Manual (FCOM) or the
Buyer's flight crew training manual at the Buyer's option.
The Buyer's standard operating procedures will be
incorporated into the Seller's Flight Crew Transition
course, provided that the Buyer provides the Seller such
procedures at least one (1) month prior to the start of the
first Flight Crew Transition course. The Buyer will receive
no compensation from the Seller should the Buyer elect to
perform some Flight Crew Transition courses partially or
totally on dry lease.
16.3.1.2 Flight Crew Initial Operating Experience
To assist the Buyer with Initial Operating Experience during
the Buyer's introduction of the Aircraft into revenue
service, the Seller will provide the Buyer instructor-pilots
free of charge ***. This assistance will be provided on the
Aircraft.
***
16.3.1.3 Flight Instructor Familiarization Course
The Seller will provide a certain number of the Buyer's
Instructor pilots with a Flight Instructor Familiarization
Course.
16.3.2 Maintenance Courses
16.3.2.1 Maintenance Training
The Seller will provide free-of-charge Training courses for
ground personnel for a total of *** trainee-days of
instruction. The range of maintenance courses is listed in
Appendix "B" to this Clause 16. The Buyer may elect to use
part of this Training allowance to perform some maintenance
training classes at another US carrier on a space available
basis.
The trainee days will be counted as follows:
(i) For instruction at ATC-Miami or at ATC-Toulouse, the
total number of trainee days counted will be the
number of trainees enrolled at the beginning of a
Training course multiplied by the number of days of
instruction.
(ii) For instruction at locations other than the ATC-Miami
or at the ATC-Toulouse, the total number of trainee
days counted will be the greater of twelve (12) and
the number of trainees enrolled at the beginning of a
Training course multiplied by the number of days of
detachment of the Seller's instructor(s).
16.3.2.2 Maintenance Initial Operating Experience
To help the Buyer with maintenance Initial Operating
Experience, such as Aircraft handling and servicing, flight
crew and maintenance coordination, use of manuals and any
other activities that the instructor might deem necessary
after delivery of the first Aircraft, the Seller will
provide the Buyer free of charge *** maintenance
instructor-days at the Buyer's base. Additional Initial
Operating Experience will be provided at the Buyer's
expense.
16.3.3 Flight Attendants/Operations/Performance Courses
The Seller will provide free of charge *** trainee days of
instruction to be used for the training courses listed in
Appendix "C" to this Clause 16. In the event the Buyer would
like the main features of the Specifications to be covered
during the aircraft visit of the Flight Attendants
Familiarization Course, such visit may be given as of two
(2) weeks before delivery of the first Aircraft.
16.3.4 Familiarization Training
At the Buyer's request the Seller will conduct general
familiarization courses for the Buyer's employees. Training
allowance in Subclause 16.3.2.1 will be used to cover
such courses.
16.3.5 Vendors and Engine Manufacturer Training
The Seller will ensure that the major Vendors and the
Propulsion Systems manufacturer will provide maintenance and
overhaul training on their products at appropriate times as
required by the Buyer.
A list of such major Vendors will be supplied to the Buyer
on request.
16.4 Training Aids and Materials
16.4.1 Training Aids for Trainees at the Seller's Training Centers
For the purposes of this Subclause 16.4.1, it is understood
that training aids and materials provided to the Buyer's
trainees by the Seller (a) are supplied for the sole and
express purpose of providing Training in the courses
described in Subclause 16.3 of this Agreement and therefore
are labeled "For Training Only," (b) are free of charge, (c)
include all cockpit layouts, all printed course materials,
including manuals and supporting documents. Computer
hardware, software and Courseware (including simulators and
simulator data packages) and all other equipment will be
provided to the trainees solely for use during the Seller's
training courses.
Since the Training is for the Buyer's trainees only, the
Buyer undertakes not to divulge the contents of any training
aids or materials to any third party without the prior
agreement of the Seller, save as required pursuant to any
governmental, contractual or legal requirement imposed upon
the Buyer or as permitted by Subclause 16.4.2.
16.4.2 Training Aids for the Buyer's Training Organization
The Seller will provide free of charge *** sets of the
Courseware related to the Aircraft and similar to that used
by the Seller for the Buyer's training organization, except
as provided in this Subclause 16.4.2. Such Courseware will
be for the training of the Buyer's personnel only and will
include a revision service ***.
The Courseware to be provided to the Buyer will be:
(i) supplied with a license in the Buyer's name, and
(ii) compatible with the hardware platform defined by the
Aviation Industry CBT Committee (AICC), which is
fully approved by the Air Transport Association and
International Air Transport Association.
The Buyer may use the Seller's training aids and materials
*** provided: (i) the Buyer obtains ***.
Any additional sets of Courseware and/or any extension to
the Buyer's right to use such Courseware will be subject to
terms and conditions to be mutually agreed. General
conditions for the supply of the Courseware will apply and
will be detailed during the Training Conference.
At least six (6) months prior to the delivery of the first
Aircraft, the Seller will provide free of charge thirty (30)
sets of computer-based-training workstations compatible with
the Courseware provided above in this Subclause 16.4.2 (each
including a computer, a videodisk player and two (2)
monitors).
16.5 Seller's Support
The Seller will help the Buyer with the development and
introduction of Aircraft training programs at the Buyer's
training center, on the Buyer's request and terms to be
agreed. The Seller will provide free-of-charge technical
assistance in modifying the standard Courseware routers to
the Buyer's in-house training programs.
16.6 INDEMNITY AND INSURANCE
16.6.1 SCOPE
IN CONNECTION WITH THE PROVISION OF SERVICES UNDER THIS
CLAUSE 16, THE BUYER AND THE SELLER PROVIDE THE INDEMNITIES
SET FORTH IN SUBCLAUSES 16.6.2 AND 16.6.3.
16.6.2 BUYER'S INDEMNITY
THE BUYER WILL INDEMNIFY AND HOLD HARMLESS THE SELLER, THE
MANUFACTURER, AND EACH OF THE ASSOCIATED CONTRACTORS AND
THEIR RESPECTIVE SUBCONTRACTORS AND THEIR RESPECTIVE
AFFILIATES, DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES FROM
AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, LOSS OF USE,
COSTS AND EXPENSES
(I) FOR ALL INJURIES TO AND DEATHS OF PERSONS (EXCEPTING
INJURIES TO AND DEATHS OF THE SELLER'S
REPRESENTATIVES PROVIDING THE SERVICES UNDER THIS
CLAUSE) CAUSED BY THE SELLER OR ITS REPRESENTATIVES,
AND
(II) FOR LOSS OF OR DAMAGE TO PROPERTY (EXCEPTING LOSS OF
OR DAMAGE TO PROPERTY OF THE SELLER'S SAID
REPRESENTATIVES), CAUSED BY THE SELLER OR ITS
REPRESENTATIVES.
ARISING OUT OF OR IN CONNECTION WITH THE PROVISION OF
SERVICES UNDER THIS CLAUSE 16.
THIS INDEMNITY OF THE BUYER WILL NOT APPLY FOR ANY SUCH
LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISING OUT
OF OR CAUSED BY THE WILLFUL MISCONDUCT OR GROSS NEGLIGENCE
OF THE SELLER'S, THE MANUFACTURER'S OR ANY OF THE ASSOCIATED
CONTRACTORS' OR THEIR RESPECTIVE SUBCONTRACTORS' OR THEIR
RESPECTIVE OFFICERS', AGENTS' OR EMPLOYEES' SAID
REPRESENTATIVES.
16.6.3 SELLER'S 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 INJURIES TO OR DEATHS OF THE SELLER'S SAID
REPRESENTATIVES PROVIDING THE SERVICES UNDER THIS
CLAUSE,
(II) FOR LOSS OF OR DAMAGE TO PROPERTY OF THE SELLER'S SAID
REPRESENTATIVES, AND
(III) ARISING OUT OF OR CAUSED BY THE WILLFUL MISCONDUCT OR
GROSS NEGLIGENCE OF THE SELLER'S SAID
REPRESENTATIVES.
WITH RESPECT TO SUBCLAUSES (I) AND (II) OF THE PRECEDING
SENTENCE, THE SELLER WILL NOT BE OBLIGATED TO INDEMNIFY OR
HOLD HARMLESS THE BUYER WHERE THE SELLER'S LIABILITIES,
DAMAGES, LOSSES, COSTS OR EXPENSES ARISE FROM THE BUYER'S
WILLFUL MISCONDUCT OR GROSS NEGLIGENCE.
16.6.4 CLAIMS
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 16.6, THE FORMER
(INDEMNITEE) WILL PROMPTLY GIVE NOTICE TO THE OTHER PARTY
(INDEMNITOR), AND THE INDEMNITOR WILL HAVE THE RIGHT TO
INVESTIGATE, AND THE RIGHT IN ITS SOLE DISCRETION TO ASSUME
AND CONDUCT THE DEFENSE OF OR SETTLE OR COMPROMISE, SUCH
CLAIM, ACTION, PROCEEDING OR LAWSUIT.
HOWEVER, IF IN THE REASONABLE OPINION OF THE INDEMNITEE,
SUCH DEFENSE, SETTLEMENT OR COMPROMISE INVOLVES THE
POTENTIAL IMPOSITION OF CRIMINAL LIABILITY ON THE INDEMNITEE
OR A CONFLICT OF INTEREST BETWEEN THE INDEMNITOR AND THE
INDEMNITEE, THE INDEMNITOR WILL NOT BE ENTITLED TO ASSUME
AND CONDUCT THE DEFENSE OF ANY SUCH CLAIM, ACTION,
PROCEEDING OR LAWSUIT. THE INDEMNITEES WILL BE ENTITLED, AT
THEIR OWN EXPENSE, ACTING THROUGH ONE (1) COUNSEL, TO
PARTICIPATE IN ANY CLAIM, ACTION, PROCEEDING OR LAWSUIT THE
DEFENSE OF WHICH HAS BEEN ASSUMED BY THE INDEMNITOR PURSUANT
TO THE PRECEDING PROVISIONS, PROVIDED, THAT SUCH
PARTICIPATION DOES NOT, IN THE REASONABLE OPINION OF
INDEPENDENT COUNSEL OF THE INDEMNITOR, INTERFERE WITH THE
CONDUCT OF SUCH DEFENSE. NOTWITHSTANDING ANYTHING TO THE
CONTRARY, NO SETTLEMENT OR COMPROMISE WILL BE ENTERED INTO
WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNITEE, WHICH
CONSENT WILL NOT BE UNREASONABLY WITHHELD OR DELAYED. EACH
INDEMNITEE WILL COOPERATE WITH THE INDEMNITOR IN THE
INVESTIGATION AND CONDUCT OF THE DEFENSE OF ANY CLAIM,
ACTION, PROCEEDING OR LAWSUIT INDEMNIFIED HEREUNDER.
IN THE EVENT THAT THE INDEMNITOR DOES NOT ASSUME AND CONDUCT
THE DEFENSE OF THE CLAIM OR LAWSUIT, THEN THE INDEMNITEE
WILL HAVE THE RIGHT TO PROCEED WITH THE 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. FOR THE
PURPOSE OF THIS SUBCLAUSE 16.6, A CLAIM OR LAWSUIT AGAINST
THE MANUFACTURER OR ANY OF THE ASSOCIATED CONTRACTORS OR ANY
OF THEIR RESPECTIVE SUBCONTRACTORS OR ANY OF THEIR
RESPECTIVE DIRECTORS, OFFICERS, AGENTS OR EMPLOYEES WILL BE
DEEMED TO BE A CLAIM OR LAWSUIT AGAINST THE SELLER.
16.6.5 INSURANCE
FOR THE PERIOD OF PERFORMANCE DESCRIBED IN THIS CLAUSE, THE
BUYER WILL
(I) INDEMNIFY AND WAIVE ANY RIGHTS OF RECOURSE OR
SUBROGATION AGAINST THE SELLER, THE MANUFACTURER, AND
EACH OF THE ASSOCIATED CONTRACTORS AND THEIR
RESPECTIVE SUBCONTRACTORS AND THEIR RESPECTIVE
DIRECTORS, OFFICERS, AGENTS, EMPLOYEES AND
SUBCONTRACTORS IN RESPECT OF ALL RISKS HULL INSURANCE
POLICY, AND
(II) EFFECT INSURANCE TO COVER THIRD-PARTY LIABILITY RISKS
ARISING DURING SAID PERFORMANCE IN AN AMOUNT
SATISFACTORY TO THE SELLER, NAMING THE SELLER AND ITS
DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES AS
ADDITIONAL INSUREDS.
SUCH INSURANCE WILL CONTAIN A CROSS-LIABILITY CLAUSE AND
WILL ALSO CONTAIN A THIRTY (30)-DAY NOTICE-OF-CANCELLATION
PROVISION. UPON REQUEST, THE BUYER WILL DELIVER TO THE
SELLER A CERTIFICATE OF INSURANCE EVIDENCING THE COVERAGE
REQUIRED BY THIS CLAUSE.
CLAUSE 16 - APPENDIX "A"
RECOMMENDED PILOT EXPERIENCE
IN RELATION TO TRANSITION TRAINING
1. CAPTAINS
The Seller recommends that captains have a minimum of 1,000 hours'
experience in command of jet transport category aircraft prior to
transition training provided under Clause 16 of this Agreement.
2. SENIOR CO-PILOTS
Senior co-pilots upgrading to captain and who do not have the
recommended minimum described above in Paragraph 1 will be
considered for transition training provided under
Clause 16 of this Agreement on a case-by-case.
3. CO-PILOTS
The Seller recommends that copilots have a minimum of 500 hours'
experience operating transport aircraft, of which at least 300
hours' should be with jet transport aircraft. This recommended
minimum includes formal basic training.
4. ALL PILOTS
The Seller recognizes that some pilots have no experience with FMS,
AFCS, glass cockpits or two-person (as compared to three-person)
crews, features covered in the Seller's "Introductory Course."
Therefore, the Seller recommends that those pilots take its
"Introductory Course," before taking transition training provided
under Clause 16 of this Agreement. For pilots who do not have jet
transport experience, the Seller recommends its "Jet
Familiarization Course."
CLAUSE 16 - APPENDIX "B"
LIST OF STANDARD A319, A320 AND A321 MAINTENANCE COURSES
The letters "J," "E" and "H" below respectively designate courses for A319,
A320 and A321 aircraft.
J/E/H M01 GENERAL FAMILIARIZATION
J/E/H M02 RAMP AND TRANSIT
J/E/H M31 LINE MECHANICS/AVIONICS (LEVEL 2)
J/E/H M42 BASE MECHANICS, ELECTRICS AND AVIONICS (LEVEL 3)
J/E/H M45 BASE MECHANICS AND ELECTRICS (LEVEL 3)
J/E/H M52 BASE ELECTRICS AND AVIONICS (LEVEL 3 )
J/E/H M07 ENGINE RUN-UP
J/E/H M09 MECHANIC CONTROL RIGGING
J/E/H M10 CABIN INTERIOR AND EMERGENCY EQUIPMENT
J/E/H M11 STRUCTURE REPAIR
J/E/H M12 ON THE JOB PRACTICAL TRAINING
J/E/H M16 SPECIFIC NONDESTRUCTIVE TESTING
J/E/H M17 COMPOSITE STRUCTURE REPAIR
J/E/H M18 ETOPS MAINTENANCE
J/E/H M20 AIRCRAFT INTEGRATED DATA SYSTEM MAINTENANCE
J/E/H MG04 CARGO LOADING AND HANDLING
J/E/H M42E A319/A320/A321 DIFFERENCES
XM15 BASIC DIGITAL AND MICROPROCESSOR
J/E/H M21 STRUCTURE REPAIR FOR ENGINEERS/METALLIC STRUCTURES
J/E/H M23 MATERIALS AND PROCESSES FOR ENGINEERS
Note: The above list of courses is provided for information only and is
subject to modifications.
CLAUSE 16 - APPENDIX "C"
LIST OF A319, A320 AND A321 OPERATIONS/PERFORMANCE COURSES
In the list below, the letters "J," "E" and "H" respectively designate
courses for A319, A320 and A321 aircraft.
J/E/H FC3 FLIGHT ATTENDANT FAMILIARIZATION COURSE
J/E/H G01 MANAGEMENT SURVEY COURSE
J/E/H G02 PERFORMANCE ENGINEER'S COURSE
J/E/H G03 DISPATCHER'S COURSE
J/E/H FC5 FLIGHT CREW GROUND INSTRUCTOR'S COURSE
J/E/H G06 WEIGHT AND BALANCE COURSE
J/E/H G07 LOAD MASTER TRANSITION
J/E/H G08 ETOPS DISPATCHER
J/E/H G38 DISPATCHER TRANSITION AND ETOPS QUALIFICATION
J/E/H G67 WEIGHT AND BALANCE, LOAD MASTER TRANSITION
Note: The above list of courses is provided for information only and is
subject to modifications.
17 - VENDORS' PRODUCT SUPPORT
17.1 Vendor Product Support Agreements
17.1.1 The Seller has obtained product support agreements
transferable to the Buyer from Vendors of Seller Furnished
Equipment listed in the Specifications ("Product Support
Agreements").
17.1.2 These Product Support Agreements are based on the "World
Airlines and Suppliers Guide" and include Vendor 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 Vendor items. Such technical data
and manuals will be prepared in accordance with the
applicable provisions of ATA Specification 100 and 101 in
accordance with Clause 14 of this Agreement, will include
revision service and will be published in the English
language. The Seller recommends that software data, supplied
in the form of an appendix to the Component Maintenance
Manual, be provided in compliance with ATA Specification 102
up to level 3.
17.1.2.2 Warranties and guarantees including Vendors' standard
warranties. In addition, Vendors of landing gear will
provide service life policies for landing gear structures.
17.1.2.3 Training to ensure efficient operation, maintenance and
overhaul of the Vendors' items for the Buyer's instructors,
shop and line service personnel.
17.1.2.4 Spares data in compliance with ATA Specification 200 or
2000, initial provisioning recommendations, spares and
logistics service, including routine and emergency
deliveries.
17.1.2.5 Technical service to assist the Buyer with maintenance,
overhaul, repair, operation and inspection of Vendor items
as well as required tooling and spares provisioning.
17.2 Vendor Compliance
The Seller will monitor Vendor compliance with support
commitments defined in the Product Support Agreements and
will promptly take remedial action.
17.3 Vendor Part Repair Stations
17.3.1 The Manufacturer has developed with the Vendors a program
aimed at building a comprehensive network of repair stations
in North America for those Vendor Parts originating from
outside this territory.
17.3.2 As a result of the above, most Vendor Parts are now
repairable in North America, and corresponding repair
stations are listed in a document, the AOG and Repair Guide,
which is issued and regularly updated by the Manufacturer.
The Seller undertakes that the Vendor Parts that have to be
forwarded for repair outside North America will be sent back
to the Buyer with proper tagging as required
by the FAA.
17.3.3 The Seller will support the Buyer in cases where the agreed
repair turn time of an approved repair station is not met by
causing free-of-charge loans or exchanges (as specified in
the relevant Supplier Product Support Agreements manual) to
be offered to the Buyer ***.
18 - BUYER FURNISHED EQUIPMENT AND DATA
18.1 Installation and Delivery
18.1.1 Without additional charge, and in accordance with the
Specifications, the Seller will cause the Manufacturer to
provide for the installation of the Buyer Furnished
Equipment.
18.1.2 The Seller will cause the Manufacturer to advise the Buyer
reasonably in advance of the dates by which, in the planned
release of engineering for an Aircraft, the Manufacturer
requires a written detailed description of the dimensions
and weight of Buyer Furnished Equipment for such Aircraft
and information necessary for the installation and operation
thereof, and the Buyer will furnish such detailed
description and information by the dates so specified. Such
dimensions and weights will not thereafter be revised unless
mutually agreed and set forth in an SCN.
18.1.3 The Seller will also cause the Manufacturer to furnish
reasonably in advance (but in no event less than eight (8)
months prior to the scheduled delivery date) to the Buyer a
schedule of dates by and locations to which Buyer Furnished
Equipment for such Aircraft must be delivered to the
Manufacturer to permit installation in and delivery of such
Aircraft in accordance with the delivery schedule referred
to in Clause 9. The Buyer will furnish such equipment to the
Manufacturer at such locations by such dates. The Buyer, at
its own expense, will also furnish or cause to be present at
the works where such Buyer Furnished Equipment is to be
installed, when requested by the Manufacturer, field service
representatives to provide the Manufacturer technical advice
regarding the installation and calibration of Buyer
Furnished Equipment.
18.2 Specification and Airworthiness Approvals
The Buyer will ensure that all Buyer Furnished Equipment
will meet the requirements of the Specifications, will
comply with applicable LBA, for A319 Aircraft and A321
Aircraft, DGAC, for A320 Aircraft, and FAA regulations and
will be approved by the LBA, DGAC, and the FAA for
installation and use on an Aircraft at the time of delivery
of such Aircraft. The Seller will bear no expense in
connection with adjusting and calibrating Buyer Furnished
Equipment to the extent necessary to obtain LBA, DGAC and
FAA approval, unless such adjusting and calibrating is made
necessary by improper installation by the Seller of the
Buyer Furnished Equipment.
18.3 Delay and Nonperformance
Any delay or failure in complying with the obligation in the
foregoing Subclause 18.2, in providing the descriptive
information and services mentioned in Subclause 18.1 hereof,
in furnishing the Buyer Furnished Equipment or in obtaining
any required approval of such equipment under the LBA, for
A319 Aircraft and A321 Aircraft, DGAC for A320 Aircraft, or
FAA regulations *** will be, to the extent that such delay
or failure will in turn,
(i) delay the performance of any act to be performed by
or on behalf of the Seller or the Manufacturer, or
(ii) cause the Final Contract Price of the Aircraft to be
increased by the amount of the Seller's reasonable
additional costs, if any, attributable to such delay
or failure by the Buyer, including, without
limitation, storage, taxes, insurance and costs of
out-of-sequence installation,
the responsibility of the Buyer, and any resulting cost will
be borne by the Buyer.
Further, in any such event, the Seller may elect to take any
of the actions set forth below in Subclauses 18.3.2, 18.3.3
or 18.3.4:
18.3.2 The Seller will be entitled to cause the Manufacturer to
select, purchase and install the Buyer Furnished Equipment
involved, in which event the Final Contract Price of the
affected Aircraft will be increased by the purchase price of
such Buyer Furnished Equipment plus reasonable costs and
expenses incurred by the Manufacturer for handling charges,
transportation, insurance, packaging and, if so required and
not already provided for in the Final Contract Price of such
Aircraft, for adjustment and calibration.
18.3.3 If (i) delivery of the Buyer Furnished Equipment is delayed
by more than thirty (30) days after the date specified by
the Manufacturer for the delivery of such Buyer Furnished
Equipment or (ii) the Buyer Furnished Equipment required to
obtain certification of the Aircraft in accordance with
Subclause 2.3 hereof is not approved by the LBA, for A319
Aircraft and A321 Aircraft, DGAC, for A320 Aircraft, or FAA
within thirty (30) days after the date specified by the
Manufacturer for the delivery of such Buyer Furnished
Equipment, then, notwithstanding the terms of Subclause 2.3,
the Seller will be entitled to deliver the affected Aircraft
without installing the Buyer Furnished Equipment, but
otherwise in full compliance with the terms, conditions and
requirements of this Agreement (including, without
limitation, Subclause 2.3) and all performance guarantees.
Upon such delivery the Seller will be relieved of all
obligations to install such Buyer Furnished Equipment.
18.3.4 If (i) the Buyer Furnished Equipment is delayed by more than
thirty (30) days after the date specified by the
Manufacturer for the delivery of such Buyer Furnished
Equipment or (ii) the Buyer Furnished Equipment is not
required for certification of the Aircraft and is not
approved by the LBA, for A319 Aircraft and A321 Aircraft,
DGAC, for A320 Aircraft, or FAA within thirty (30) days
after the date specified by the Manufacturer for the
delivery of such Buyer Furnished Equipment, then the Seller
will be entitled to deliver the Aircraft with no obligation
to install such Buyer Furnished Equipment. The Buyer may
also elect to have the Aircraft so delivered, whereupon the
Seller will be relieved of all obligations to install such
Buyer Furnished Equipment.
18.4 Tax-Free Zones
The Buyer will cause all Buyer Furnished Equipment to be
delivered at its own expense to tax-free zones at the
following addresses, unless the Seller notifies the Buyer
otherwise in writing. Final destinations are specified in
the Buyer Furnished Equipement delivery instructions.
For A320 Aircraft, at:
AEROSPATIALE, SOCIETE NATIONALE INDUSTRIELLE
316, Route de Bayonne
31300 TOULOUSE
FRANCE
For A319 Aircraft and A321 Aircraft, at:
DAIMLER-BENZ AEROSPACE AIRBUS GmbH
Division Hamburger Flugzeugbau
Kreetslag 10
21129 HAMBURG
GERMANY
The Seller represents and warrants that there are no taxes,
duties, imposts or similar charges of any nature whatsoever
in connection with the delivery of Buyer Furnished Equipment
in the tax-free zones specified above (or subsequently by
the Seller).
18.5 Risk of Loss
Title to and risk of loss of Buyer Furnished Equipment will
at all times remain with the Buyer. When Buyer Furnished
Equipment is in the possession of the Seller, the Seller
will have only such responsibility therefor as is chargeable
by law to a bailee for hire, but will not be liable for loss
of use.
18.6 Seller-Supplied Buyer Furnished Equipment
If the Buyer requests the Seller to cause the Manufacturer
to supply directly certain items that are considered Buyer
Furnished Equipment pursuant to the Specifications, and if
compliance with such request by the Seller and the
Manufacturer in their judgment will not affect the delivery
date of an Aircraft referred to in Clause 9, then the Seller
will order such items subject to the execution of an SCN
reflecting the effect on price and any other items and
conditions of this Agreement. In such a case, the Seller
will be entitled to the payment of a reasonable handling
charge (with respect to Buyer Furnished Equipement not
manufactured by the Manufacturer) and will bear no liability
in respect of any delay caused and product support
commitments assumed by the Vendor of such Buyer Furnished
Equipment, provided that the Seller has exercised due
diligence in procuring such Buyer Furnished Equipment. The
provisions of Subclauses 18.2 and 18.3 will apply to Buyer
Furnished Equipment covered under this Subclause 18.6 in the
event of any delay in approval or delivery of such Buyer
Furnished Equipment.
18.7 At the time of delivery of each Aircraft, the seller will,
or will cause the Manufacturer to, ***.
19 - ASSIGNMENT
19.1 Successors and Assigns
Subject to the provisions of this Subclause 19.1, this
Agreement will inure to the benefit of and be binding upon
the successors and assigns of the parties hereto. This
Agreement will not be assigned in whole or in part by either
party without the prior written consent of the other party,
such consent not to be unreasonably withheld.
Notwithstanding anything herein to the contrary, the Seller
may at any time, without the Buyer's consent, assign any of
its rights to receive money, and any of its duties to effect
sale and delivery of any Aircraft, or any of its
responsibilities, duties or obligations to perform any other
obligations hereunder to the Manufacturer, any of the
Associated Contractors, ASC or any Affiliate of the Seller,
the Manufacturer or of any Associated Contractor provided
that (i) such assignment will not release or diminish the
obligations and liabilities of the Seller hereunder or in
respect of any Aircraft and (ii) such assignment does not
increase the obligations, liabilities, risk, burden, costs
or expenses of the Buyer hereunder.
19.2 Seller's Designations
The Seller may at any time by notice to the Buyer designate
particular facilities or particular personnel of the
Manufacturer, ASC, any of the Associated Contractors or any
Affiliate of the Manufacturer or any Associated Contractor
at which or by whom the services to be performed under this
Agreement will be performed provided that (i) such
designation will not release or diminish the obligations and
liabilities of the Seller hereunder or in respect of any
Aircraft, and (ii) such designation does not increase the
obligations, liabilities, risk, burden, costs or expenses of
the Buyer hereunder. The Seller may also designate the
Manufacturer, any Associated Contractor or any Affiliate of
the Manufacturer or any Associated Contractor as the party
responsible on behalf of the Seller for providing to the
Buyer all or any of the services described in this Agreement
provided that (i) such designation will not release or
diminish the obligations and liabilities of the Seller
hereunder or in respect of any Aircraft, and (ii) such
designation does not increase the obligations, liabilities,
risk, burden, costs or expenses of the Buyer hereunder.
19.3 Assignment in Case of Resale or Lease
In the event of the resale or lease of any Aircraft,
pursuant to a financing arrangement, by the Buyer before,
upon, or after delivery thereof to the Buyer, the Buyer's
rights with respect to such Aircraft under this Agreement,
other than the Buyer's rights under Clauses 3, 14, 15, 16
and 17 hereof and Letter Agreements hereto, other than
Letter Agreement No. 1, may be assigned to the extent
necessary to complete the financing on commercially
reasonable terms. The Seller will consent to such assignment
provided that, prior to such assignment, the Buyer furnishes
to the Seller a true copy of such agreement with such
purchaser or lessor, clearly stating that such purchaser or
lessor acknowledges that it is bound by and will comply with
all applicable terms, conditions and limitations of this
Agreement.
19.4 Assignment in Case of ***
The Buyer will have the right to assign the portions of the
Agreement necessary to ***.
19.5 ***
19.6 ***
20 - DATA RETRIEVAL
On the Seller's reasonable request, the Buyer may provide
the Seller with data customarily compiled by the Buyer and
pertaining to the operation of the Aircraft, to assist the
Seller in making an efficient and coordinated survey of all
reliability, maintenance, operational and cost data with a
view to improving the safety, availability and operational
costs of the Aircraft.
21 - TERMINATION FOR CERTAIN EVENTS
21.1 Seller's Termination Rights
21.1.1 Any of the following will be considered a material breach of
the Buyer's obligations under this Agreement ("Material
Breach"):
(1) The Buyer or any other party will commence any case,
proceeding or other action with respect to the Buyer
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 and such case, proceeding or action
remains undismissed or unstayed for more than ninety
(90) consecutive days.
(2) An action is commenced seeking the appointment of a
receiver, trustee, custodian or other similar
official for the Buyer for all or substantially all
of its assets and such action remains undismissed or
unstayed for more than ninety (90) consecutive days,
or the Buyer makes a general assignment for the
benefit of its creditors.
(3) An action is commenced against the Buyer seeking
issuance of a warrant of attachment, execution,
distraint or similar process against all or any
substantial part of its assets and such action
remains undismissed or unstayed for more than ninety
(90) consecutive days.
(4) The Buyer generally admits in writing that it is
unable to pay its debts as they come due.
(5) There is a voluntary liquidation, winding up or
analogous event with respect to the Buyer.
(6) The Buyer is in default on its obligation to make any
Predelivery Payment pursuant to Subclause 6.2 of this
Agreement and ***.
.
(7) The Buyer defaults on any payment obligation relating
to any Aircraft and such default is not cured within
the applicable grace periods, with respect to
***.
(8) The Buyer is in default for more than thirty (30)
consecutive days in its obligation to take delivery
of an Aircraft as provided in Subclause 9.3 of this
Agreement, subject to the provisions of Subclause
22.3.4.
21.1.2 In the event of any Material Breach by the Buyer, the Seller
will at its option by written notice to the Buyer have the
right to resort to any remedy provided herein or under
applicable law, including, without limitation, the right by
written notice, effective immediately, to (i) suspend its
performance with respect to undelivered Aircraft under the
Agreement, (ii) reschedule the delivery dates for Aircraft
or for other goods and services to be provided with respect
to undelivered Aircraft, (iii) terminate this Agreement with
respect to any or all undelivered Aircraft, and to any or
all services, data and other items with respect to
undelivered Aircraft on the effective date of such
termination and (iv) retain, as part of the damages for
breach and not as a penalty, an amount equal to all
Predelivery Payments and all other payments made theretofore
under this Agreement.
21.2 ***
21.2.1 ***
21.2.2 ***
22 - MISCELLANEOUS PROVISIONS
22.1 Notices
All notices and requests required or authorized hereunder
will be given in writing either by personal delivery to a
responsible officer of the party to whom the same is given
or by commercial express courier, facsimile or other
mutually agreeable electronic transmission at the addresses
and numbers set forth below. The date upon which any such
notice or request is so personally delivered, or if such
notice or request is given by commercial express courier,
facsimile or other electronic transmission, the date upon
which sent, will be deemed to be the effective date of
receipt of such notice or request.
The Seller will be addressed at:
2, rond-point Maurice Bellonte
31700 BLAGNAC FRANCE
Attention: Director - Contracts
Telephone: (33) 5 61 30 40 12
Fax: (33) 5 61 30 40 11
Telex: AVSA 521155F
The Buyer will be addressed at:
2345 Crystal Drive
Arlington, VA 22227
Attention: Treasurer
Telephone: 703-872-5918
Fax: 703-872-5936
with a copy to the attention of the Buyer's Office of
the General Counsel at the same address:
Attention: Aircraft Counsel
Fax: 703-872-5252
From time to time, the party receiving the notice or request
may designate another address or another person.
22.2 Waiver
The failure of either party to enforce at any time any of
the provisions of this Agreement, to exercise any right
herein provided or to require at any time performance by the
other party of any of the provisions hereof will in no way
be construed to be a present or future waiver of such
provisions nor in any way to affect the validity of this
Agreement or any part hereof or the right of the other party
thereafter to enforce each and every such provision. The
express waiver by either party of any provision, condition
or requirement of this Agreement will not constitute a
waiver of any future obligation to comply with such
provision, condition or requirement.
22.3 INTERPRETATION AND LAW; SUBMISSION TO JURISDICTION; WAIVER
OF IMMUNITY; DISPUTE RESOLUTION
22.3.1 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.
22.3.2 SUBMISSION TO JURISDICTION
EACH OF THE BUYER AND THE SELLER IRREVOCABLY AGREES THAT ANY
LEGAL ACTION OR PROCEEDING ARISING UNDER THIS AGREEMENT MAY
BE BROUGHT AND DETERMINED IN THE SUPREME COURT OF THE STATE
OF NEW YORK, NEW YORK COUNTY, IN THE GENERAL DISTRICT COURTS
OF FAIRFAX COUNTY OR ARLINGTON COUNTY, VIRGINIA, OR IN THE
UNITED STATES DISTRICT COURTS FOR THE SOUTHERN DISTRICT OF
NEW YORK, OR THE EASTERN DISTRICT OF VIRGINIA AND
IRREVOCABLY ACCEPTS WITH REGARD TO ANY SUCH ACTION OR
PROCEEDING THE NONEXCLUSIVE JURISDICTION OF THOSE COURTS.
The Seller hereby irrevocably designates CT Corporation, New
York City offices, to receive for and on its behalf service
of process in any proceeding with respect to any matter as
to which it submits to jurisdiction as set forth above, it
being agreed that service upon CT Corporation will
constitute valid service upon the Seller in any legal action
or proceeding with respect to this Agreement.
22.3.3 Waiver of Immunity
The Seller irrevocably waives the benefit of Articles 14 and
15 of the French Civil Code, for the purpose of this
Agreement. The Seller hereby irrevocably waives, and agrees
not to assert, the defense of sovereign immunity, and, to
the extent permitted by law, the defense that the action or
proceeding is brought in an inconvenient forum, that the
venue of the action or proceeding is improper, or that this
Agreement may not be enforced in or by such courts.
22.3.4 Dispute Resolution
***
22.4 Confidentiality
Subject to any legal or governmental requirements of
disclosure, the parties (which for this purpose will include
their employees, agents and advisors) will maintain the
terms and conditions of this Agreement, any reports or other
data furnished, and other documents furnished by the Seller
hereunder strictly confidential. Without limiting the
generality of the foregoing, each party will use its best
efforts to limit the disclosure of the contents of this
Agreement to the extent legally permissible in any filing
required to be made by it 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, the disclosing party agrees to submit
to the other party a copy of the proposed document to be
filed or disclosed and will give the other party a
reasonable period of time in which to review the said
document. The Buyer and the 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. The provisions of this Subclause
22.4 will survive any termination of this Agreement.
22.5 Severability
In the event that any provision of this Agreement should for
any reason be held to be without effect, the remainder of
this Agreement will remain in full force and effect. To the
extent permitted by applicable law, each party hereto hereby
waives any provision of law which renders any provision of
this Agreement prohibited or unenforceable in any respect.
22.6 Alterations to Contract
This Agreement, including its Exhibits, Appendixes and
Letter Agreements, contains the entire agreement between the
parties with respect to the subject matter hereof and
thereof and supersedes any previous understanding,
commitments or representations whatsoever, whether oral or
written (including, without limitation, that certain AVSA
Term Sheet dated November 5, 1996 (Reference AVSA 5183.8),
between the Seller and the Buyer and all letter agreements
ancillary thereto). This Agreement will not be varied except
by an instrument in writing of even date herewith or
subsequent hereto executed by both parties or by their fully
authorized representatives.
22.7 Inconsistencies
In the event of any inconsistency between the terms of this
Agreement and the terms contained in either (i) the
Specifications, or (ii) any other Exhibit or Letter
Agreement attached to this Agreement, in each such case the
terms of such Specifications, Exhibit or Letter Agreement
will prevail over the terms of this Agreement. For the
purpose of this Subclause 22.7, the term Agreement will not
include the Specifications or any other Exhibit or Letter
Agreement hereto.
22.8 Language
All correspondence, documents and any other written matters
in connection with this Agreement will be in English.
22.9 Headings
All headings in this Agreement are for convenience of
reference only and do not constitute a part of this
Agreement.
22.10 Counterparts
This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and
delivered will be an original, but all such counterparts
will together constitute but one and the same instrument.
IN WITNESS WHEREOF, these presents were entered into as of the day and year
first above written.
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
-------------------------
Title: Chief Executive Officer
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------
Title: Treasurer
CONSENT AND GUARANTY
Airbus Industrie, G.I.E., established under "Ordonnance" No.
67-821 dated September 23, 1967, of the Republic of France (the
"Guarantor"), hereby acknowledges notice of and consents to all of the
terms of the Airbus A319/A320/A321 Purchase Agreement dated as of October
31, 1997 (as amended, modified, or supplemented from time to time, the
"Agreement"), between AVSA, S.A.R.L. (the "Seller"), and US Airways Group,
Inc. (the "Buyer"), including, without limitation, the assignments of the
Seller's rights under its agreements with the Guarantor, contained in
Clauses 12 and 13, Letter Agreements Nos. 1, 8A, 8B, 8C, 9, 10, 12 and 13
of such Agreement, and hereby irrevocably and unconditionally guarantees
the due and punctual payment and performance by the Seller of all of the
latter's liabilities and obligations as set forth in the said Agreement
subject to the terms and limitations therein contained. The Guarantor
hereby agrees that its obligations hereunder will be unconditional and
absolute and, without limiting the generality of the foregoing, will not be
released, discharged or otherwise affected by (i) any modification or
amendment of or supplement to said Agreement (other than release, discharge
or waiver of this guarantee hereunder) or (ii) any assignment of said
Agreement or of any rights or obligations thereunder made in accordance
with Clause 19 thereof. The Guarantor further agrees that it will execute
and deliver such other and further instruments as may be reasonably
requested by the Buyer (as such term is defined in the said Agreement), its
successors or assigns to reaffirm its obligations hereunder. This Consent
and Guaranty constitutes a guaranty of performance and of payment, and the
Guarantor agrees that, in case of default by the Seller, the Buyer will not
be required to file suit against the Seller as a condition to enforcement
of this Consent and Guaranty.
The Guarantor irrevocably agrees that any legal action or
proceeding against the Guarantor with respect to this Consent and Guaranty
may be brought and determined in the Supreme Court of the State of New
York, New York County, in the General District Courts of Fairfax County or
Arlington County, Virginia, in the United States District Courts for the
Southern District of New York or the Eastern District of Virginia, or in
the commercial Court ("Tribunal de Commerce") of Toulouse, France, and
irrevocably accepts with regard to any such action or proceeding the
nonexclusive jurisdiction of those courts. The Guarantor irrevocably waives
the benefit of Articles 14 and 15 of the French Civil Code. The Guarantor
hereby irrevocably waives, and agrees not to assert, the defense of
sovereign immunity, and, to the extent permitted by law, the defense that
the action or proceeding is brought in an inconvenient forum, that the
venue of the action or proceeding is improper, or that this Consent and
Guaranty may not be enforced in or by such courts. However, the preceding
sentence will not be construed as a waiver of any requirement of service of
process. The Guarantor hereby irrevocably designates CT Corporation as the
Guarantor's agent to receive service of process in any legal action or
proceeding with respect to this Consent and Guaranty.
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.
Airbus Industrie, G.I.E.,
By: /s/ Jean Pierson
------------------------
Title: Managing Director
EXHIBIT "A-1"
The A319 Standard Specification is contained in a separate
folder.
EXHIBIT "A-2"
The A320 Standard Specification is contained in a separate
folder.
EXHIBIT "A-3"
The A321 Standard Specification is contained in a separate
folder.
EXHIBIT "B"
Change Orders to Standard Specification (SCNs)
<TABLE>
<CAPTION>
EXHIBIT "B"
US AIRWAYS TECHNICAL APPENDIX
EPAC-TDU TITLE VENDOR BFE notes A320 A319 A321 COMMENTS
==============================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
02-10-111-01 FAA certification *** *** ***
03-20-220-02 MTOW Increase to 77T -A320 / 75.5T -
A319 / 89T - A321 *** *** ***
09-10-104-02 737 Tow bar fitting *** *** ***
21-28-110-03 Ventilation system aft cargo compt 1 *** *** ***
21-27-107-02 Avionics Ventilation fan alternate CHOICE *** *** ***
21-27-108-01 Avionics ventilation filter alternate CHOICE *** *** ***
21-20-108-01 Cabin Recirc filter alternate CHOICE *** *** ***
21-43-104-0X Installation of heating system for Liebherr or
after cargo compt. CHOICE *** *** *** Hamilton Std
22-70-122-01 FMS / ACARS broadcast/ Extended FMS
/ACARS *** *** ***
22-70-106-01 Automatic erasing of flight planning
data after landing *** *** ***
22-70-113-02 Time constraint / 10 characters 2 *** *** ***
22-70-121-01 FMS cross loading 2 *** *** ***
22-70-101-04 FMS Data base memory extension 2 *** *** ***
22-70-150-XX New standard for FMS CHOICE * 2 *** Honeywell or
Smiths
73-20-107-XX Selectable derate via the MCDU * 3 *** study item for
new FMS
23-12-147-06 Third VHF system installation CHOICE *** *** ***
23-11-111-01 Full provisions for Dual HF *** *** ***
46-21-100-02 Provisions for Air Traffic Services Unit
(ATSU) for ACARS *** *** ***
46-21-200-01 Installation of Air Traffic Services
Unit (ATSU) for ACARS *** *** ***
46-21-201-01 ATSU Data loading capability for ACARS BFE *** *** *** acars software
23-70-101-01 CVR hot mike capability *** *** ***
23-13-101-01 Installation of 3rd RMP *** *** ***
23-71-103-XX Installation of Cockpit Voice Recorder CHOICE *** *** *** charge for 2hr
unit only
23-51-136-16 Installation of Alternate Boomsets CHOICE *** *** *** Single jack
plug
25-11-101-01 3rd occupant seat armrest in cockpit *** *** ***
25-11-117-02 Pilots seat headrests *** *** ***
25-11-108-01 Installation of 4th Occupant seat *** *** ***
25-20-182-01 Cargo floor panels for heavy usage *** *** ***
25-50-40x-01 syst/struct provisions for ACE cargo
loading system 6 *** *** ***
25-50-4xx-01 Installation of ACE cargo loading
system (SFE) 6 *** *** ***
26-16-102-01 dual loop smoke detection system aft
cargo compartment *** ***
26-16-103-01 dual loop smoke detection system fwd
cargo compartment *** *** ***
26-23-103-01 Fire extinguisher system for fwd and aft
cargo compartments *** *** ***
27-00-113-02 Installation of A319 SFCC on A320 *** *** ***
27-92-101-02 Simultaneous sidestick indication
(aural/visual) *** *** ***
29-10-110-01 ABEX alt vendor EDPs *** *** ***
29-21-104-01 ABEX alt vendor EHPs *** *** ***
29-22-101-01 Installation of Sundstrand RAT on A320 *** *** ***
30-70-108-01 Cold weather package installation *** *** *** Latest Standard
30-11-104-01 Grimes alt vendor WAI valve *** *** ***
31-00-107-01 Use of US units rather than metric
31-14-103-01 Overhead toggle panel switch
reorientation * *** *** ***
31-36-101-XX Installation of DMU (AIDS) inc PCMCIA
card *** *** *** $50,660 w/0
pmcia card
31-64-100-01 Installation of single cue V-Bar flight
director * *** *** ***
31-33-200-XX Installation of SSFDR CHOICE *** *** ***
32-11-104-01 Installation of Radial Tyres 46x17 R20 *** *** ***
32-48-103-02 Installation of Brake cooling fans *** *** ***
32-48-xxx-xx Installation of automatic brake cooling
fans 4 ***
33-xx-xxx-xx NO LAPTOP signs in place of illuminated
NO SMOKING signs * 4 ***
34-10-116-01 ADIRS equipment 4MCU CHOICE *** *** ***
34-20-202-01 Standby instruments on LCD display *** *** ***
34-43-127-25 Installation TCAS II CHOICE BFE *** *** *** plus @
$100,000 BFE
34-43-129-02 TCAS display option *** *** ***
34-52-143-02 ATC transponders Arinc 900 CHOICE *** *** ***
34-55-102-01 VOR/Marker alternate vendor CHOICE *** *** ***
34-42-101-01 Radio altimeter alternate vendor CHOICE *** *** ***
34-42-117-01 Radio altitude automatic call outs *** *** *** To be defined
34-42-XXX-01 Weather radar specific Control panel CHOICE *** *** *** Dual sweep/gain
34-42-XXX-02 Single weather radar and windshear
prediction CHOICE *** *** ***
34-51-101-08 DME interrogator Arinc 900 CHOICE *** *** ***
34-52-XXX-01 System provisions for EGPWS
34-52-XXX-01 Installation of Enhanced GPWS *** *** ***
34-XX-XXX-01 System provisions for Multi Mode
Receiver (Replaces ILS
and GPS) 1 *** *** ***
34-XX-XXX-02 Installation of a Multi Mode Receiver
(Replaces ILS and
GPS) CHOICE *** *** ***
35-11-101-02 Flight crew O2 bottle 115 cuft steel *** *** ***
35-31-XXX-01 Installation of four oxygen masks per PSU *** *** ***
49-00-105-01 Installation of APU CHOICE *** *** *** APIC OR ALLIED
51-20-10X-XX Exterior paint process CHOICE *** *** *** low voc
Courtalds or
AKZO
02-40-101-01 Exterior livery *** *** *** D112-11135 /
D111-77111
02-40-101-XX Aditional exterior markings *** *** *** USA to advise
52-33-203-01 Bulk cargo door deletion *** *** ***
56-10-102-05 Cockpit windows (PPG) CHOICE *** *** ***
72-00-112-XX Engine selection for CFM 56-5Bxx *** *** *** See Purchase
Agreement
77-32-100-01 Installation of ENDEVCO engine vibration
monitoring unit
(EVMU) 5 ***
79-00-101-01 ESSO 2380 engine and APU oil *** *** ***
79-40-101-XX IDG oil level viewing port *** *** ***
23-32-011-XX Install. pre-recorded announc. &
boarding music BFE *** *** ***
23-32-010-XX System provisions and installation for
pax audio entertainment CHOICE BFE *** *** ***
23-36-010-XX Provisions and Installation of video
with PSU mounted
screens, -VCC in fwd stowage CHOICE BFE *** *** ***
23-36-020-0X Video (PA) in use light in flight
compartment *** *** ***
23-73-000-10 CIDS - Common director on A320 *** *** ***
23-73-002-22 CIDS - Common handsets on A320 *** *** ***
23-73-000-20 CIDS-Common lighting panel on A320 *** *** ***
23-73-001-10 2-zone passenger address *** *** ***
23-73-001-20 PA priority for first attendant *** *** ***
23-73-002-30 Conference call between all cabin
attendants and flight
compartment *** *** ***
23-73-002-31 Cabin interphone Monitoring via Flight
compartment *** *** ***
23-73-002-61 Installation of an all cabin attendants
call push button in the
flt compartment *** *** ***
23-73-003-10 2 zone passenger to cabin attendant call *** *** ***
23-73-003-40 Passenger call indication on attendant
indication panels *** *** ***
23-73-005-10 2 zone cabin illum. cntl from the fwd
attendant panel and the
attendant panel aft *** *** ***
23-73-006-21 EVAC signal via all cabin attendant and
passenger compt loudspeakers *** *** ***
23-73-007-10 Lav. smoke warning tone via cabin
attendant station loudspeakers only *** *** ***
23-73-009-10 Slides ARMED and doors CLOSED indication
at fwd attendant station *** *** ***
23-53-102-01 Cabin ready for takeoff indication from
the fwd attendant station (ECAM solution) *** *** ***
Emerg.
Equip. Emergency Equipment installation CHOICE BFE *** *** ***
Cabin interior colour spec
25-28-100 Alternate non-textile floor covering
(Taraflex) - BFE CHOICE BFE *** *** ***
Inst of BFE NTF in Lavs BFE
Textile covered dado panels BFE
Textile covered Bulkheads BFE
Tedlar covering for OHSC doors
C/A seats with leather covering BFE
Global
cabinXX Cabin layout - one or two class. CHOICE BFE *** *** ***
25-22-300 Wall-mounted single C/A seat for inst.
in front of fwd door
and in aft door area *** *** ***
25-22-500 Swivel C/A seat in place of basic single
C/A *** *** ***
25-31-010 Transversal galley location in front of
fwd door RH - GI CHOICE BFE *** *** ***
25-33-050 Transversal galley location of aft door
- GV CHOICE BFE *** *** ***
25-24-100 Lockable door for OHSC *** *** ***
25-27-112 Standard literature pocket (SFE) - 4
additional pockets *** *** ***
25-40-540 Additional handles for handicapped pax.
- 3 Lavs *** *** ***
*** *** *** total see notes
25-52-100-XX Inst. of slide rafts at fwd and aft door
(Overwater option on
selected aircraft only) *** *** *** Selected
aircraft
NOTES Total does not include, Slideraft
installation, Selectable
derate via the MCDU, installation of
Endevco EVMU installation/provisions
for ace cargo loading sytem.
1) These items offered free of charge as
per the termsheet app 2 and 3
2) NEW STANDARD FMS includes ten
charactures, X Loading and extended
data base memory. This is offered at
a price of Scheduled availability of new
std FMS is end 1998(Honeywell & mid
1999 for Sextant) AVSA price for *** *** ***
retrofit of New FMS will not exeed the
production price. This will cover any
updates required to peripheral
computers but the actual FMS/MCDUs will
be the responsibility of the selected vendor.
3) Selectable derates will be part of the
new STD FMS the option price will be * *** *** ***
4) Automatic brake cooling fans and NO
LAPTOP SIGNS are still under study
price TBD
5) The leadtime for Endevco will be 18 to
24 months from SCN acceptance at a price of ***
6) The price for the system provisions for
ACE cargo loading systems is as follows *** *** ***
The price for the Installation of the
ACE cargo loading systems SFE will be: *** *** *** Requires
prior AC
of provisions
*) For the marked items AVSA assures that
the option price for USA will be equal
or less than any other Airbus
operator. This condition will also apply
to GPS Sole means of navigation, DGPS,
and Primary LCD displays when
available. All prices are in jan 96
delivery conditions.
</TABLE>
EXHIBIT "C"
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
TITLE
DESCRIPTION
EFFECT ON WEIGHT
Manufacturer's Weight Empty Change:
Operational Weight Empty Change:
Allowable Payload Change:
REMARKS/REFERENCES
Response to RFC
SPECIFICATION CHANGED BY THIS SCN
THIS SCN REQUIRES PRIOR OR CONCURRENT ACCEPTANCE OF THE FOLLOWING SCN(s)
PRICE PER AIRCRAFT
US DOLLARS: Base Year:_____________ Current Year: ___________
AT DELIVERY CONDITIONS: _____________ _______________
This change will be effective on __________________ Aircraft No. ___________
and subsequent provided approval is received by _______________________.
BUYER APPROVAL SELLER APPROVAL
By: By:
Title: (Authorized finance department officer) Date:
By:
Title: (Authorized maintenance or flight operations officer)
Date:
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
After contractual agreement with respect to weight, performance, delivery,
etc., the indicated part of the specification wording will read as follows:
AVSA SCN No.
SPECIFICATION CHANGE NOTICE Issue
(SCN) Dated
Page No.
SCOPE OF CHANGE (FOR INFORMATION ONLY)
EXHIBIT "D"
SELLER SERVICE LIFE POLICY
1. The Items of primary and auxiliary structure described hereunder
are covered by the Service Life Policy described in Subclause
12.2 of the Agreement.
2. WINGS - CENTER AND OUTER WING BOX
2.1 Spars, Spar Webs, Chords and Stiffeners
2.2 Ribs Inside the Wing Box
2.3 Upper and Lower Panels of the Wing Box
2.4 Fittings
2.4.1 Attachment fittings for the flap structure
2.4.2 Attachment fittings for the engine pylons and engine mounts
2.4.3 Attachment fittings and support structure for the main landing gear
2.4.4 Attachment fittings for the center wing box
2.4.5 Wing-to-body structural attachments
2.5 Auxiliary Support Structure
2.5.1 For the slats:
2.5.1.1 Ribs supporting the track rollers on wing box structure
2.5.1.2 Ribs supporting the actuators on wing box structure
2.5.2 For the ailerons:
2.5.2.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.5.2.2 Actuator fittings/support stays on wing box rear spar or shroud box
2.5.3 For airbrakes, spoilers, lift dumpers:
2.5.3.1 Hinge brackets and ribs on wing box rear spar or shroud box
2.5.3.2 Actuator fittings on wing box rear spar or shroud box
2.5.3.3 Trailing edge support structure
2.6 Engine pylons
3. FUSELAGE
3.1 Fuselage Structure
3.1.1 Fore and aft bulkheads
3.1.2 Pressurized floors and bulkheads surrounding/including the main
and nose gear wheel well and center wing box
3.1.3 Skins with doublers, stringers/longitudinal 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 Escape hatches
3.1.6 Passenger and cargo doors internal structure and fixed attachment
3.1.7 Sills excluding scuff plates and upper beams surrounding
passenger and cargo door apertures
3.1.8 Cockpit floor structure and passenger cabin floor beams
excluding floor panels and seat rails
3.1.9 Keel beam structure
3.2 Fittings
3.2.1 Landing gear attachment fittings
3.2.2 Support structure and attachment fittings for the vertical and
horizontal stabilizers
4. STABILIZERS
4.1 Horizontal Stabilizer Main Structural Box
4.1.1 Spars, chords, webs and stiffeners
4.1.2 Ribs
4.1.3 Upper and lower skins and stringers
4.1.4 Attachment fittings 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, chords, webs and stiffeners
4.2.2 Ribs
4.2.3 Skins and stringers
4.2.4 Attachment fittings to fuselage
4.2.5 Rudder support structure
4.2.5.1 Hinge brackets
4.2.5.2 Servocontrol attachment brackets
5. Bearing and roller assemblies, bearing surfaces, bushings,
bolts, rivets, access and inspection doors, including manhole
doors, latching mechanisms, all system components, commercial
interior parts, insulation and related installation and
connecting devices are excluded from this Seller Service Life
Policy.
EXHIBIT "E"
CERTIFICATE OF ACCEPTANCE
In accordance with the terms of that certain Airbus A319/A320/A321 Purchase
Agreement (the "Purchase Agreement") dated as of ________, 19___ between
AVSA, S.A.R.L. ("AVSA") and US Airways Group, Inc. (the "Buyer"), the
acceptance inspection relating to the AIRBUS [A319] [A320] [A321] aircraft
(the "Aircraft"), manufacturer's serial no. ___, FAA Registration No:
__________, with ____ (__) series propulsion systems installed thereon,
serial nos. _____ (position #1), and _____ (position #2) has taken place at
[Toulouse, France,] [Hamburg, Germany,] on the ____ day of _________, ____.
In view of said inspection having been carried out with satisfactory
results, the Buyer hereby accepts delivery of the Aircraft as being in
conformity with the provisions of the Purchase Agreement.
This acceptance will not impair the rights of the Buyer that derive from
the warranties and patent indemnities relating to the Aircraft set forth in
the Purchase Agreement.
The Buyer specifically recognizes that it has waived any right it may have
at law or otherwise to revoke this acceptance of the Aircraft.
RECEIPT AND ACCEPTANCE OF THE
ABOVE-DESCRIBED AIRCRAFT
ACKNOWLEDGED
US Airways Group, Inc.
By: ___________________________
Title: _________________________
EXHIBIT "F"
TECHNICAL PUBLICATIONS
GENERAL
This Exhibit F lists the form, type, quantity and delivery dates
for the Technical Publications to be provided to the Buyer
pursuant to Clause 14 of the Agreement.
The Technical Publications are published in accordance with ATA
Specification 100 revision 23, with the exception of certain
Component Maintenance Manuals, which may be written to an ATA
Specification 100 revision other than revision 23.
The designation "C" after the title of a Technical Publication
indicates that such Technical Publication may be customized.
1. ENGINEERING DOCUMENTS
1.1 Installation and Assembly Drawings (IAD)--C
The IAD will be delivered according to the Buyer's standard for
the major Assembly and Installation drawings, including detail
drawings.
1.2 Drawing Number Index (DNI)--C
The DNI lists applicable drawings of the Aircraft delivered
under the Agreement.
1.3 Process and Material Specification (PMS)
The PMS contains data related to manufacturing processes,
material identification and treatments used in the construction
and assembly of the Aircraft.
1.4 Standards Manual (SM)
The SM contains data about Seller approved standards and
includes cross reference lists. The SM will include US
standards/equivalents for all hardware clamps, O-rings,
bearings, fasteners, sealants, adhesive and compounds, raw
materials, processes and procedures.
2. MAINTENANCE AND ASSOCIATED MANUALS
2.1 APU Build-up Manual (ABM)
The ABM follows the format adopted for the Power Plant Build-up
Manual.
2.2 Aircraft Maintenance Manual (AMM)--C
The component location section of the AMM will show those
components detailed in the AMM maintenance procedures. The
trouble shooting part is covered in Subparagraph 2.21 below.
*Aircraft Maintenance Manual Chapter 05 Time Limits (Service
Life Limits) and Maintenance Checks are only delivered in hard
copies.
2.3 Aircraft Schematics Manual (ASM)--C
The ASM is part of the Wiring Manual. Supplied as a separate
manual for schematics.
2.4 Aircraft Wiring Manual (AWM)--C
The AWM is part of the Wiring Manual. Supplied as a separate
manual for wirings.
2.5 Aircraft Wiring Lists (AWL)--C
The AWL is part of the Wiring Manual. Supplied as a separate
document for lists. The AWL includes wire terminations,
connector, terminal, strip locations, wire routings, and
clamping diagrams.
2.6 Consumable Material List (CML)
The CML details the characteristics and gives procurement
sources of consumable materials such as grease, oil, etc.
2.7 Duct Repair Manual (DRM)
The DRM contains all the data necessary to locate, identify,
repair and/or replace sub-assemblies of metallic ducts. It also
includes details of tests necessary after repair.
2.8 Fuel Pipe Repair Manual (FPRM)
The FPRM provides workshop repair procedures and data for
specific fuel pipes, after removal from any aircraft of the
Manufacturer of the type of the Aircraft.
2.9 Illustrated Parts Catalog (IPC)--C
The IPC identifies and illustrates all line replaceable parts
and units of the aircraft, excluding the power plant parts.
2.10 Illustrated Parts Catalog (power plant) (PPIPC)--C
The PPIPC covers line replaceable parts and units of the power
plant, provided by the Propulsion Systems manufacturer.
2.11 Illustrated Tool and Equipment Manual (TEM)
The TEM provides information on Ground Equipment and Tools
listed in the Seller's Aircraft Maintenance Manual.
2.12 Maintenance Facility Planning (MFP)
The MFP provides information that will assist airline personnel
concerned with long term planning of ramp or terminal
operations, Aircraft maintenance on the ramp and in the hangar,
overhaul and testing of structure and system components.
2.13 Maintenance Planning Document (MPD)
The MPD provides maintenance data necessary to plan and conduct
Aircraft maintenance checks and inspections.
2.14 Power Plant Build-up Manual (PPBM)
The PPBM provides instructions for the installation of a quick
engine change kit on a bare engine.
2.15 Support Equipment Summary (SES)
The SES lists support equipment recommended by the Seller, the
Propulsion Systems manufacturer and Vendors.
2.16 Time Limits and Maintenance Checks/Service Limits and
Maintenance Checks (TLMC\SLMC)
The TLMC\SLMC document provides the Manufacturer's recommended
scheduled time limits for inspections and maintenance checks.
2.17 Tool\Equipment Drawings (TED)
TED's will be supplied in the form of aperture cards for the
Seller and, when available, Vendor maintenance tools.
2.18 Tool and Equipment Drawing Index (TEI)
The TEI is an alpha-numeric listing of the TED's.
2.19 Tool and Equipment Bulletin (TEB)
The TEB provides advance information related to tools and test
equipment development.
2.20 Trouble Shooting Manual (TSM)--C
The TSM complements the CFDS and provides trouble-shooting data
in the following three levels:
Level 1 - Aimed at line use. Fault isolation guidance for
systems or parts of systems monitored mainly by CFDS.
Also guidance for systems not monitored by CFDS.
Level 2 - Aimed at hangar use. Fault isolation guidance for
non-CFDS monitored systems in the form of functional
block diagrams, charts and tables.
Level 3 - Aimed at engineering use. List of CFDS messages
and decoding of trouble shooting data (decoding of
coded messages provided by the CFDS). Level 3 is
supplied on floppy disk.
3. MISCELLANEOUS DOCUMENTATION
3.1 Airplane Characteristics for Airport Planning (AC)
The AC will be in general accordance with Specification NAS
3601.
3.2 Aircraft Recovery Manual (ARM)
The ARM provides the following planning information: preparing
and moving a disabled aircraft that may be obstructing airport
traffic.
3.3 Cargo Loading System Manual (CLS)
The CLS details handling procedures for the Cargo Loading
System.
3.4 Crash Crew Chart (CCC)
The CCC provides information concerning access to the Aircraft
interior, location of safety equipment, hazardous liquids, etc.
3.5 Guidelines for Customer Originated Changes (GCOC)
The GCOC provides production and presentation rules for the data
covering Buyer originated changes on the Aircraft to be
incorporated by the Seller in the Technical Publications as per
Subclause 14.11 of the Agreement.
3.6 List of Radioactive and Hazardous Elements (LRE)
The LRE provides information on components and materials for
which specific precautions have to be taken.
3.7 List of Applicable Publications (LAP)--C
The LAP will record the Seller's various Airframe Technical
Publications indicating the last valid revision number and issue
date.
3.8 Livestock Transportation Manual (LTM)
The LTM details the facilities, equipment and procedures
necessary for live animal transportation in aircraft of the
Manufacturer of the type of the Aircraft.
3.9 Service Bulletins (SB)--C
The Buyer will receive all Service Bulletins applicable to the
Aircraft.
3.10 Service Bulletin Index (SBI)
The SBI is a listing of all Service Bulletins issued in ATA 100
chapter sequence.
The SBI provides details of SB number, SB title, associated
modification number, issue status, Vendor SB number (if
applicable) and affected fleet.
3.11 Service Information Letters (SIL)
SILs give information of a general nature and also about minor
changes or inspections the Buyer may wish to apply under the
Buyer's authority.
3.12 Transportability Manual (TM)
The TM gives cargo hold dimensions for currently available cargo
Aircraft, transportation information and requirements for large
Aircraft components. Component dimensions, weights and shelf
life limitations are also given.
3.13 Supplier Product Support Agreements (SPSA)
The SPSA is a collection of product support conditions
negotiated by the Manufacturer with the suppliers of Aircraft
equipment.
3.14 Vendor Information Manual (VIM)
The VIM provides Vendor contact information.
3.15 Vendor Information Manual (GSE) (VIM/GSE)
The VIM/GSE gives contact names and addresses of Ground Support
Equipment (GSE) vendors and their product support organizations.
4. OPERATIONAL MANUALS
4.1 Abnormal\Emergency Check List\Quick Reference Handbook (CL\QRH)--C
The CL is an extract from the FCOM presented as a booklet for
quick in-flight use.
4.2 FAA Approved Flight Manual (FM)--C
The AFM provides Aircraft performance operating limitations and
other flight data required by the relevant airworthiness
authorities for certification. It includes the
Configuration Deviation List (CDL).
4.3 Flight Crew Operating Manual (FCOM)--C
The FCOM provides Aircraft and systems descriptions, normal,
abnormal and emergency procedures as well as operational
performance.
4.4 Master Minimum Equipment List (MMEL)
The MMEL defines the components and the related conditions under
which, when the components are defective, the Aircraft may be
cleared for flight. In addition, the MMEL provides the necessary
information to establish the Buyer's own Minimum Equipment List
(MEL).
4.5 Performance Engineering Program (PEP)
The PEP consists of a Low Speed Performance data base and a High
Speed Performance data base together with their respective
programs. The Performance Engineering Program may be used by the
Buyer under the license conditions set forth in Appendix A to
this Exhibit F.
The Low Speed Performance programs consist of the Take-off and
Landing Chart computation program (TLC) which permits the
computation of:
- regulatory take-off and landing performance,
- noncertified take-off performance accounting for runway data
and weather, together with the Tabulation and Interpolation
program (TAB), issued with the AFM, which permits the reading,
editing and interpolation of the tables listed in the AFM.
The High Speed Performance programs are the In Flight
Performance computation program (IFP) which permits computation
of Aircraft performance for each flight phase and the Aircraft
Performance Monitoring program (APM) which permits analysis of
Aircraft cruise performance from data recorded during stabilized
flight periods.
4.6 Performance Program Manual (PPM)
The PPM is the users' guide for the Performance Engineering
Program (PEP).
4.7 Weight and Balance Manual (WBM) and
Weight and Balance Manual Supplements--C
The corresponding supplements:
-Delivery Weighing Report,
-Equipment List,
will be delivered with each Aircraft.
5. OVERHAUL DATA
5.1 Cable Fabrication Manual (CFM)
The CFM contains all the data necessary to locate, identify,
manufacture and test control cables used on the Aircraft. An
appendix contains cable end fitting specification sheets, and
detailed manufacturing instructions.
5.2 Component Documentation Status (CDS)--C
The CDS lists Component Maintenance Manuals in accordance with
Subparagraphs 5.4 and 5.5 below.
5.3 Component Evolution List (CEL)
The CEL is a noncustomized document listing all components on
the Aircraft and also gives the evolution of each component.
The information is provided in order of:
- part number
- FSCM
- ATA reference.
5.4 Component Maintenance Manual Manufacturer (CMMM)
The CMMM contains all the data necessary to locate, identify and
maintain Aircraft components manufactured by the Seller.
5.5 Component Maintenance Manual Vendor (CMMV)
The Seller will to ensure that each Vendor of repairable
components will deliver to the Buyer a Component Maintenance
Manual Vendor with revision service.
6. STRUCTURAL MANUALS
6.1 Nondestructive Testing Manual (NTM)
The NTM supplies Airframe data necessary to carry out
nondestructive testing.
6.2 Structural Repair Manual (SRM)
The SRM contains descriptive information for identification and
repair of the Airframe primary and secondary structure and will
include substantial structural analysis.
FORM
AC APERTURE CARD. Refers to 35mm film contained on punched aperture
cards.
CD CD-ROM.
D FLOPPY DISK
F MICROFILM. Refers to 16mm roll film in 3M type cartridges.
MP Refers to paper printed one side, unpunched quality will be
suitable for further reproduction or microfilming.
MT MAGNETIC TAPE
P1 PRINTED ONE SIDE. Refers to manuals in paper with print on one side
of the sheets only.
P2 PRINTED BOTH SIDES. Refers to manuals with print on both sides of
the sheets.
SMF SILVER MASTER FILM. Refers to thick diazo film suitable for further
reproduction.
+ Denotes a combined A319/A320/A321 Technical Publication.
* Denotes Technical Publications will be supplied in SGML format if
such format becomes available from the Manufacturer.
TYPE
C CUSTOMIZED. Refers to manuals which are customized to specific MSNs.
E ENVELOPE. Refers to manuals which are not customized.
P PRELIMINARY. Refers to preliminary data or manuals which may
consist of:
-either one time issue not maintained by revision service, or
-preliminary issues maintained by revision service until final
manual or data delivery, or
-supply of best available data under final format with progressive
completion through revision service.
DELIVERY
Manual delivery is expressed either as the number of days prior to delivery
of the first Aircraft or as nil (0), which designates the date of delivery
of the first Aircraft.
It is agreed that the number of days indicated will be rounded up to the
next regular revision release date.
MANUALS AVAILABLE (headlines)
1 - ENGINEERING DOCUMENTS
2 - MAINTENANCE & ASSOCIATED MANUALS
3 - MISCELLANEOUS PUBLICATIONS
4 - OPERATIONAL MANUALS AND DATA
5 - OVERHAUL DATA
6 -
<TABLE>
<CAPTION>
MANUALS AVAILABLE Abbr Form Type Qty. Rev Deliv.
---- ---- ---- ---- --- ------
(detailed)
1.
<S> <C> <C> <C> <C> <C> <C>
ENGINEERING DOCUMENTS
+ Installation and Assembly IAD AC C *** AN1 0
* Drawings (including detail
drawings)
+ Parts Usage (Effectivity) PU P2 E *** AN 0
MT E *** AN 0
+ Schedule (Drawing S P2 E *** AN 0
* Nomenclature)
+ Drawing Number Index DNI P2 C *** AN 0
*
+ Process and Material PMS F E *** AN 0
* Specification SMF E *** AN 0
+ Standards Manual SM F E *** AN 0
SMF E *** AN 0
+ Electrical Load Analysis ELA P2 E *** AN 0
*
- --------
(1) Revision service for the manufacture drawings is restricted to cover
the Aircraft configuration at delivery.
</TABLE>
<TABLE>
<CAPTION>
MANUALS AVAILABLE Abbr Form Type Qty. Rev Deliv.
---- ---- ---- --- ------
(detailed)
<S> <C> <C> <C> <C> <C> <C>
2. MAINTENANCE & ASSOCIATED MANUALS
+ APU Build-up Manual ABM MT E *** AN 90
F E *** AN 90
SMF E *** AN 90
+ Aircraft Maintenance Manual AMM F C *** 4 90
SMF C *** 4 90
MP C *** 4 90
P2 C *** 4 90
MT C *** 4 90
+ Aircraft Schematics Manual ASM SMF C *** 4 90
MT C *** 4 90
F C *** 4 90
MP C *** 4 90
P1 C *** 4 90
+ Aircraft Wiring Manual AWM F1 C *** 4 90
P1 C *** 4 90
MP C *** 4 90
MT C *** 4 90
+ Aircraft Wiring Lists AWL P2 C *** 4 90
MT C *** 4 90
(text)
F C *** 4 90
SMF C *** 4 90
+ Consumable Material List CML P2 E *** AN 90
* F E *** AN 90
SMF E *** AN 90
+ Component Location Manual CLM P *** 4 90
+ Duct Repair Manual DRM P2 E *** AN 90
SMF E *** AN 90
+ Fuel Pipe Repair Manual FPRM P2 E *** AN 90
SMF E *** AN 90
+ Illustrated Parts Catalog IPC MT C *** 4 90
(Airframe) F C *** 4 90
SMF C *** 4 90
MP C *** 4 90
+ Illustrated Parts Catalog PIPC MT C *** 4 90
(Power Plant)5 MP C *** 4 90
F C *** 4 90
+ Illustrated Tool and Equipment TEM P2 E *** AN 360
* Manual
+ Maintenance Facility Planning MFP P2 E *** AN 90
*
+ Maintenance Planning MPD P2 E *** AN 360
* Document
- --------
(5)Supplied by the Propulsion Systems Manufacturer
</TABLE>
<TABLE>
<CAPTION>
MANUALS AVAILABLE Abbr Form Type Qty. Rev Deliv.
---- ---- ---- --- ------
(detailed)
<S> <C> <C> <C> <C> <C> <C>
+ Power Plant Build-up Manual 5 PPBM MT E *** AN 90
P2 E *** AN 90
F E *** AN 90
SMF E *** AN 90
+ Support Equipment Summary SES P2 E *** AN 360
* F E *** AN 360
SMF E *** AN 360
+ Time Limits and Maintenance TLMC/ P2 C *** 4 90
Checks/Service Limits and SLMC
Maintenance Checks
+ Tool and Equipment Drawings TED MT E *** AN 360
AC E *** AN 360
+ Tool and Equipment Drawing TEI P2 E *** AN 360
* Index
+ Trouble Shooting Manual TSM F C *** 4 90
SMF C *** 4
P2 C *** 4
MT C *** 4
+ Aircraft Documentation ADRES CD C *** 4 90
* Retrieval System
+ Computer Assisted Aircraft CAATS CD C *** 4 90
* Troubleshooting
+ Time Limits and Maintenance TLMC P2 c *** 4 90
Checks
3. MISCELLANEOUS PUBLICATIONS
+ Airplane Characteristics for AC P2 E *** AN 360
* Airport Planning
+ Aircraft Recovery Manual ARM P2 E *** AN 90
* F E *** AN 90
SMF E *** AN 90
Crash Crew Chart CCC P1 E *** AN 180
+ Guidelines for Customer GCOC P2 E *** AN 0
Originated Changes
+ List of Radioactive and LRE P2 E *** AN 90
Hazardous Elements
+ List of Applicable Publications LAP P2 C *** 4 90
+ Livestock Transportation LTM P2 E *** AN 90
Manual
+ Service Bulletins SB P2 C *** AN 0
* SMF C *** AN 0
F C *** AN 0
+ Service Bulletin Index SBI P1 E *** AN 90
*
+ Service Information Letters SIL P2 E *** AN 0
*
+ Technical Publications TPCI CD C *** AN 90
* Combined Index
+ Transportability Manual TM P2 E *** AN 90
SMF E *** AN
Supplier Product Support SPSA P2 E *** AN 360
Agreements (SPSA)
* Vendor Information Manual VIM D E *** AN 360
+ Vendor Information Manual VIM\ P2 E *** AN 360
* GSE GSE
4. OPERATIONAL MANUALS AND DATA
+ Check CL/QRH P2 C *** AN 90
List/Abnormal/Emergency/
Quick Reference Handbook
+ FAA Approved Flight Manual AFM P1 C *** AN 0
+ Flight Crew Operating Manual FCOM P2 C *** AN 90
+ Master Minimum Equipment MMEL P2 E *** AN 90
List
+ Performance Engineering PEP D E *** AN 90
Program
+ Performance Program Manual PPM P2 E *** AN 90
* MT E *** AN 90
+ Weight and Balance Manual WBM P1 C *** AN 0
5. OVERHAUL DATA
+ Cable Fabrication Manual CFM P2 E *** AN 90
*
+ Component Documentation CDS P2 C *** AN 180
* Status F C *** AN 180
SMF C *** AN 180
+ Component Evolution List6 CEL F E *** AN 180
SMF E *** AN 1
+ Component Maintenance CMMM F E *** AN 180
* Manual Airframe Manufacturer SMF E *** AN 180
+ Component Maintenance CMMV P2 E *** AN 180
* Manual Vendor
6. STRUCTURAL MANUALS
+ Nondestructive Testing Manual NTM P2 E *** 4 90
*
+ Structural Repair Manual SRM F E *** 4 90
* SMF E *** 4 0
- --------
6 Optional - Delivered as follow-on for CDS.
</TABLE>
EXHIBIT "F"
LICENSE FOR USE
OF THE PERFORMANCE ENGINEERING PROGRAMS (PEP)
1. GRANT
The Seller grants to the Buyer the right to use the Performance
Engineering Programs (PEP) in machine readable form on a single
computer during the term of this license agreement (the
"License Agreement").
Use of the PEP in readable form will be limited to one (1) copy.
However, the Seller may make duplicate copies, provided that they
are either contained in the same computer as the original copy, or
produced for checkpoint and restart purposes or made with the
consent of the Seller for a specific need.
2. 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 License Agreement, the Buyer will
remove the PEP 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 on any copies that the
Buyer makes of the PEP.
3. PERSONAL LICENSE
The above described license is personal to the Buyer,
nontransferable and nonexclusive.
4. INSTALLATION
It is the Buyer's responsibility to install the PEP and to perform
any mergings and checks. The Seller will, however, assist the
Buyer's operations engineers in the initial phase following the
delivery of the PEP until such personnel reach the familiarization
level required to make inputs and correlate outputs.
5. PROPRIETARY RIGHTS AND NONDISCLOSURE
5.1 The PEP and the copyright and other proprietary rights of whatever
nature in the PEP are and will remain with the Seller. The PEP and
its contents are designated as confidential.
5.2 The Buyer undertakes not to disclose the PEP, parts thereof or its
contents to any third party without the prior written consent of
the Seller. Insofar 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.
6. CONDITIONS OF USE
6.1 The Seller does not warrant that the PEP will contain no errors.
However, should the PEP be found to contain any error at delivery,
the Buyer will notify the Seller promptly thereof and the Seller
will take all proper steps to correct the same at its own expense.
6.2 The Buyer will ensure that the PEP is correctly used in appropriate
machines as indicated in the Performance Programs Manual (PPM) and
that staff are properly trained to use the same, to trace and
correct running faults, to restart and recover after fault and to
operate suitable checks for accuracy of input and output.
6.3 It is understood that the PPM is the user's guide of the PEP and
that the Buyer will undertake to use the PEP in accordance with the
PPM.
6.4 The PEP is supplied under the express condition that the Seller
will have no liability in contract or in tort arising from or in
connection with the Buyer's use of or inability to use the PEP.
7. DURATION
Subject to the Buyer's compliance with the terms of this License
Agreement, the rights under this License Agreement will be granted
to the Buyer for as long as the Buyer operates an
Aircraft to which the PEP refers.
EXHIBIT "G"
AIRFRAME PRICE REVISION FORMULA
l. BASE PRICE
The Base Price of the Airframe is as quoted in Subclause 4.1.1.1,
4.1.1.2 or 4.1.1.3 of the Agreement, as applicable.
The Base Price of a set of two (2) nacelles and two (2) thrust
reversers is as quoted in Subclause 4.1.2.1.1(ii), 4.1.2.2.1(ii),
or 4.1.2.3.1(ii) of the Agreement, as applicable.
2. BASE PERIOD
***
These Base Prices are subject to adjustment for changes in economic
conditions as measured by data obtained from the United States
Department of Labor, Bureau of Labor Statistics, and in accordance
with the provisions of Paragraphs 4 and 5 of this Exhibit "G."
ECIb and ICb index values indicated in Paragraph 4 of this Exhibit
"G" are based on publications available at the date of signature of
the Agreement and are United States Department of Labor Bureau of
Labor Statistics computations corresponding to certain base years
as stipulated below in Paragraph 3. Should the Bureau of Labor
Statistics change such base year, it will be necessary to restate
such values in an appropriate manner. Other changes (such as
benchmark revision), except those related to established errors
from the Bureau of Labor Statistics, will not be taken into
consideration.
3. REFERENCE INDEXES
***
Material Index: "Industrial Commodities Index" (hereinafter
referred to as "ICI-Index"), published monthly by the United States
Department of Labor, Bureau of Labor Statistics, in "Producer
Prices and Price Indexes" (Table 6: "Producer prices and price
indexes for commodity groupings and individual items"). (Base year
1982 = 100.)
4 - REVISION FORMULA
***
In determining the Revised Base Price at delivery of the Aircraft,
each quotient will be calculated to the nearest ten thousandth (4
decimals). If the next succeeding place is five (5) or more, the
preceding decimal place will be raised to the next higher figure.
The final factor will be rounded to the nearest ten thousandth
(4 decimals).
After final computation, Pn will be rounded to the next whole
number (0.5 or more rounded to l).
5. GENERAL PROVISIONS
5.1 Substitution of Indexes
In the event that:
(i) the United States Department of Labor substantially revises
its methodology for calculating any of the indexes referred
to hereabove, or
(ii) the United States Department of Labor discontinues, either
temporarily or permanently, any of the indexes referred to
hereabove and publication thereof, or
(iii) the data samples used to calculate any of the indexes
referred to hereabove are substantially changed,
The Seller and the Buyer will agree on a substitute index.
Such substitute index will reflect as closely as possible the
actual variations in wage rates or in material prices, as the case
may be, used in the calculation of the original index.
As a result of this selection of a substitute index, the Seller and
the Buyer will agree on appropriate adjustments to be made to the
price revision formula; such adjustments may include, but will not
be limited to, allowing to combine the successive utilization of
the original index and of the substitute index, and other
methodologies designed to ensure consistency in the numerators and
denominators of the various quotients.
5.2 Final Index Values
The Revised Base Price at the date of Aircraft delivery will be
final and will not be subject to further adjustments, of any kind,
to the applicable indexes as published at the date of Aircraft
delivery.
EXHIBIT "H-1"
CFM INTERNATIONAL PRICE REVISION FORMULA FOR A319 AIRCRAFT
l. REFERENCE PRICE
The Reference Price of a set of two (2) CFM International CFM
56-5B-6/P engines and additional equipment is as quoted in
Subclause 4.1.2.1.1(i) of the Agreement.
This Reference Price is valid for Aircraft delivered no later than
December 31, 1999, and is subject to adjustment for changes in
economic conditions as measured by data obtained from the United
States Department of Labor, Bureau of Labor Statistics, and in
accordance with the provisions of Paragraphs 4 and 5 of this
Exhibit "H-1."
2. REFERENCE PERIOD - REFERENCE COMPOSITE PRICE INDEX
The above Reference Price has been established in accordance with
the economic conditions prevailing in September 1990 (March 1991
theoretical delivery conditions), as defined, according to CFM
International, by the Reference Composite Price Index of 126.54.
3. REFERENCE INDEXES
Labor Index: "Aircraft Engines and Engine Parts," Standard
Industrial Classification 3724-- Average hourly earnings
(hereinafter referred to as "HE SIC 3724"), published by the United
States Department of Labor, Bureau of Labor Statistics, in
"Employment and Earnings," Establishment Data: Hours and Earnings
(Table B-15: Average hours and earnings of production or
nonsupervisory workers on private nonfarm payrolls by detailed
industry).
Material Index (I): "Industrial Commodities" (hereinafter referred
to as "IC-Index"), published by the United States Department of
Labor, Bureau of Labor Statistics, in "Producer Prices and Price
Indexes" (Table 6: Producer prices and price indexes for commodity
groupings and individual items). (Base year 1982 = 100.)
Material Index (II): "Metals and Metal Products" Code l0
(hereinafter referred to as "MMP-Index"), published by the United
States Department of Labor, Bureau of Labor Statistics, in
"Producer Prices and Price Indexes" (Table 6: Producer prices and
price indexes for commodity groupings and individual items). (Base
year 1982 = 100.)
Energy Index: "Fuels and Related Products and Power" Code 5
(hereinafter referred to as "EP-Index"), published by the United
States Department of Labor, Bureau of Labor Statistics, in
"Producer Prices and Price Indexes" (Table 6: Producer prices and
price indexes for commodity groupings and individual items). (Base
year 1982 = 100.)
4. REVISION FORMULA
Pn = Pb x CPIn
------
126.54
Where
Pn = Revised Reference Price of a set of two (2) engines
at delivery of the Aircraft.
Pb = Reference Price as defined above.
CPIn = Composite Price Index for the sixth month prior to
the month of delivery of the Aircraft.
Said Composite Price Index is composed as follows:
CPIn = 0.55 (HEn x 100) + 0.10 ICn + 0.25 MMPn + 0.10 EPn
---
(11.16 )
Where
HEn = HE SIC 3724 for the sixth month prior to the month
of delivery of the Aircraft; the quotient HEn/11.16
is rounded to the nearest third decimal place. The
product by 0.55 is rounded to the nearest second
decimal place.
ICn = IC-Index for the sixth month prior to the month of
delivery of the Aircraft.
MMPn = MMP-Index for the sixth month prior to the month of
delivery of the Aircraft. The product by 0.25 is
rounded to the nearest second decimal place.
EPn = EP-Index for the sixth month prior to the month of
delivery of the Aircraft.
The Composite Price Index will be determined to the second decimal
place. If the next succeeding decimal place is five (5) or more,
the preceding decimal figure will be raised to the next higher
figure.
The final factor will be rounded to the nearest thousandth (3
decimals).
5. GENERAL PROVISIONS
5.1 The Revised Reference Price at delivery of the Aircraft will be the
final price and will not be subject to further adjustments in the
indexes.
5.2 If no final index value is available for any of the applicable
months, the published preliminary figures will be the basis on
which the Revised Reference Price will be computed.
5.3 If the United States Department of Labor substantially revises the
methodology of calculation of the indexes referred to in this
Exhibit "H-1" or discontinues any of these indexes, the
Seller will, in agreement with CFM International, apply a
substitute for the revised or discontinued index, such substitute
index to lead in application to the same adjustment result, insofar
as possible, as would have been achieved by continuing the use of
the original index as it may have fluctuated had it not been
revised or discontinued.
Appropriate revision of the formula will be made to accomplish this
result.
5.4 Should the above escalation provisions become null and void by
action of the United States Government, the Reference Price will be
adjusted to reflect increases in the cost of labor, material and
fuel which have occurred from the period represented by the
applicable Reference Price Indexes to the sixth month prior to the
scheduled delivery of the Aircraft.
5.5 The Revised Reference Price at delivery of the Aircraft in no event
will be less than the Reference Price defined in Paragraph 1 of
this Exhibit "H-1."
EXHIBIT" H-2"
CFM INTERNATIONAL PRICE REVISION FORMULA FOR A320 AIRCRAFT
l. REFERENCE PRICE
The Reference Price of a set of two (2) CFM International CFM
56-5B-4/P engines and additional equipment is as quoted in
Subclause 4.1.2.2.1(i) of the Agreement.
This Reference Price is subject to adjustment for changes in
economic conditions as measured by data obtained from the United
States Department of Labor, Bureau of Labor Statistics, and in
accordance with the provisions of Paragraphs 4 and 5 of this
Exhibit "H-2."
2. REFERENCE PERIOD - REFERENCE COMPOSITE PRICE INDEX
The above Reference Price has been established in accordance with
the economic conditions prevailing in October 1985 (April 1986
theoretical delivery conditions), as defined, according to CFM
International, by the Reference Composite Price Index of 108.66.
3. REFERENCE INDEXES
Labor Index: "Aircraft Engines and Engine Parts," Standard
Industrial Classification 3724-- Average hourly earnings
(hereinafter referred to as "HE SIC 3724"), published by the United
States Department of Labor, Bureau of Labor Statistics, in
"Employment and Earnings," Establishment Data: Hours and Earnings
(Table B-15: Average hours and earnings of production or
nonsupervisory workers on private nonfarm payrolls by detailed
industry).
Material Index (I): "Industrial Commodities" (hereinafter referred
to as "IC-Index"), published by the United States Department of
Labor, Bureau of Labor Statistics, in "Producer Prices and Price
Indexes" (Table 6: Producer prices and price indexes for commodity
groupings and individual items). (Base year 1982 = 100.)
Material Index (II): "Metals and Metal Products" Code l0
(hereinafter referred to as "MMP-Index"), published by the United
States Department of Labor, Bureau of Labor Statistics, in
"Producer Prices and Price Indexes" (Table 6: Producer prices and
price indexes for commodity groupings and individual items). (Base
year 1982 = 100.)
Energy Index: "Fuels and Related Products and Power" Code 5
(hereinafter referred to as "EP-Index"), published by the United
States Department of Labor, Bureau of Labor Statistics, in
"Producer Prices and Price Indexes" (Table 6: Producer prices and
price indexes for commodity groupings and individual items). (Base
year 1982 = 100.)
4. REVISION FORMULA
Pn = Pb x CPIn
108.66
Where
Pn = Revised Reference Price of a set of two (2) engines
at delivery of the Aircraft.
Pb = Reference Price as defined above.
CPIn = Composite Price Index for the sixth month prior to
the month of delivery of the Aircraft.
Said Composite Price Index is composed as follows:
CPIn = 0.55 (HEn x 100) + 0.10 ICn + 0.25 MMPn + 0.10 EPn
---
(11.16 )
Where
HEn = HE SIC 3724 for the sixth month prior to the month
of delivery of the Aircraft; the quotient HEn/11.16
is rounded to the nearest third decimal place. The
product by 0.55 is rounded to the nearest second
decimal place.
ICn = IC-Index for the sixth month prior to the month of
delivery of the Aircraft.
MMPn = MMP-Index for the sixth month prior to the month of
delivery of the Aircraft. The product by 0.25 is
rounded to the nearest second decimal place.
EPn = EP-Index for the sixth month prior to the month of
delivery of the Aircraft.
The Composite Price Index will be determined to the second decimal
place. If the next succeeding decimal place is five (5) or more,
the preceding decimal figure will be raised to the next higher
figure.
The final factor will be rounded to the nearest thousandth (3
decimals).
5. GENERAL PROVISIONS
5.1 The Revised Reference Price at delivery of the Aircraft will be the
final price and will not be subject to further adjustments in the
indexes.
5.2 If no final index value is available for any of the applicable
months, the published preliminary figures will be the basis on
which the Revised Reference Price will be computed.
5.3 If the United States Department of Labor substantially revises the
methodology of calculation of the indexes referred to in this
Exhibit "H-2" or discontinues any of these indexes, the Seller
will, in agreement with CFM International, apply a substitute for
the revised or discontinued index, such substitute index to lead in
application to the same adjustment result, insofar as possible, as
would have been achieved by continuing the use of the original
index as it may have fluctuated had it not been revised or
discontinued.
Appropriate revision of the formula will be made to accomplish this
result.
5.4 Should the above escalation provisions become null and void by
action of the United States Government, the Reference Price will be
adjusted to reflect increases in the cost of labor, material and
fuel which have occurred from the period represented by the
applicable Reference Price Indexes to the sixth month prior to the
scheduled delivery of the Aircraft.
5.5 The Revised Reference Price at delivery of the Aircraft in no event
will be less than the Reference Price defined in Paragraph 1 of
this Exhibit "H-2."
EXHIBIT "H-3"
CFM INTERNATIONAL PRICE REVISION FORMULA FOR A321 AIRCRAFT
l. REFERENCE PRICE
The Reference Price of a set of two (2) CFM International CFM
56-5B-3/P engines and additional equipment is as quoted in
Subclause 4.1.2.3.1(i) of the Agreement.
This Reference Price is valid for Aircraft delivered no later than
December 31, 1999, and is subject to adjustment for changes in
economic conditions as measured by data obtained from the United
States Department of Labor, Bureau of Labor Statistics, and in
accordance with the provisions of Paragraphs 4 and 5 of this
Exhibit "H-3."
2. REFERENCE PERIOD - REFERENCE COMPOSITE PRICE INDEX
The above Reference Price has been established in accordance with
the economic conditions prevailing in October 1987 (April 1988
theoretical delivery conditions), as defined, according to CFM
International, by the Reference Composite Price Index of 111.82.
3. REFERENCE INDEXES
Labor Index: "Aircraft Engines and Engine Parts," Standard
Industrial Classification 3724-- Average hourly earnings
(hereinafter referred to as "HE SIC 3724"), published by the United
States Department of Labor, Bureau of Labor Statistics, in
"Employment and Earnings," Establishment Data: Hours and Earnings
(Table B-15: Average hours and earnings of production or
nonsupervisory workers on private nonfarm payrolls by detailed
industry).
Material Index (I): "Industrial Commodities" (hereinafter referred
to as "IC-Index"), published by the United States Department of
Labor, Bureau of Labor Statistics, in "Producer Prices and Price
Indexes" (Table 6: Producer prices and price indexes for commodity
groupings and individual items). (Base year 1982 = 100.)
Material Index (II): "Metals and Metal Products" Code l0
(hereinafter referred to as "MMP-Index"), published by the United
States Department of Labor, Bureau of Labor Statistics, in
"Producer Prices and Price Indexes" (Table 6: Producer prices and
price indexes for commodity groupings and individual items). (Base
year 1982 = 100.)
Energy Index: "Fuels and Related Products and Power" Code 5
(hereinafter referred to as "EP-Index"), published by the United
States Department of Labor, Bureau of Labor Statistics, in
"Producer Prices and Price Indexes" (Table 6: Producer prices and
price indexes for commodity groupings and individual items). (Base
year 1982 = 100.)
4. REVISION FORMULA
Pn = Pb x CPIn
111.82
Where
Pn = Revised Reference Price of a set of two (2) engines
at delivery of the Aircraft.
Pb = Reference Price as defined above.
CPIn = Composite Price Index for the sixth month prior to
the month of delivery of the Aircraft.
Said Composite Price Index is composed as follows:
CPIn = 0.55 (HEn x 100) + 0.10 ICn + 0.25 MMPn + 0.10 EPn
---
(11.16 )
Where
HEn = HE SIC 3724 for the sixth month prior to the month
of delivery of the Aircraft; the quotient HEn/11.16
is rounded to the nearest third decimal place. The
product by 0.55 is rounded to the nearest second
decimal place.
Icn = IC-Index for the sixth month prior to the month of
delivery of the Aircraft.
MMPn = MMP-Index for the sixth month prior to the month of
delivery of the Aircraft. The product by 0.25 is
rounded to the nearest second decimal place.
EPn = EP-Index for the sixth month prior to the month of
delivery of the Aircraft.
The Composite Price Index will be determined to the second decimal
place. If the next succeeding decimal place is five (5) or more,
the preceding decimal figure will be raised to the next higher
figure.
The final factor will be rounded to the nearest thousandth (3
decimals).
5. GENERAL PROVISIONS
5.1 The Revised Reference Price at delivery of the Aircraft will be the
final price and will not be subject to further adjustments in the
indexes.
5.2 If no final index value is available for any of the applicable
months, the published preliminary figures will be the basis on
which the Revised Reference Price will be computed.
5.3 If the United States Department of Labor substantially revises the
methodology of calculation of the indexes referred to in this
Exhibit "H-3" or discontinues any of these indexes, the Seller
will, in agreement with CFM International, apply a substitute for
the revised or discontinued index, such substitute index to lead in
application to the same adjustment result, insofar as possible, as
would have been achieved by continuing the use of the original
index as it may have fluctuated had it not been revised or
discontinued.
Appropriate revision of the formula will be made to accomplish this
result.
5.4 Should the above escalation provisions become null and void by
action of the United States Government, the Reference Price will be
adjusted to reflect increases in the cost of labor, material and
fuel which have occurred from the period represented by the
applicable Reference Price Indexes to the sixth month prior to the
scheduled delivery of the Aircraft.
5.5 The Revised Reference Price at delivery of the Aircraft in no event
will be less than the Reference Price defined in Paragraph 1 of
this Exhibit "H-3."
LETTER AGREEMENT NO. 1
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: SPARE PARTS PROCUREMENT
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
1 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. The terms "herein," "hereof" and "hereunder" and
words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
CONTENTS
CLAUSES
1 - GENERAL
2 - INITIAL PROVISIONING
3 - STORES
4 - DELIVERY
5 - PRICE
6 - PAYMENT PROCEDURES AND CONDITIONS
7 - TITLE
8 - PACKAGING
9 - DATA RETRIEVAL
10 - BUY-BACK
11 - WARRANTIES
12 - LEASING
13 - TURN-AROUND-TIME ***
14 - TERMINATION
15 - ASSIGNMENT
1. GENERAL
1.1 Material
This Letter Agreement covers the terms and conditions for
the services offered by the Seller to the Buyer ("Material
Support") in respect of Aircraft spare parts and other
equipment itemized below in Subparagraphs 1.1(a) through
1.1(f) ("Material") and is intended by the parties to be and
will constitute an agreement of sale of all Material
furnished to the Buyer by the Seller pursuant hereto, except
as to Material leased to the Buyer pursuant to Clause 12 of
this Letter Agreement.
The Material will comprise:
(a) Seller Parts
(b) Vendor Parts classified as rotable line replacement
units.
(c) Vendor Parts classified as expendable line
maintenance parts.
(d) Ground support equipment (GSE) and special-to-type
tools.
(e) Hardware and standard material.
(f) Consumables and raw material.
It is expressly understood that Seller Parts will not
include parts manufactured pursuant to a Parts Manufacturing
Authority.
1.2 Scope of Material Support
1.2.1 The Material Support to be provided by the Seller under the
conditions hereunder covers the following:
(a) all Material purchased by the Buyer from the Seller
during the Initial Provisioning Period (defined below
in Paragraph 2) (the "Initial Provisioning") and all
items in Subparagraphs 1.1(a) through 1.1(d) for
purchases additional to the Initial Provisioning
Period, and
(b) the Seller's leasing of Seller Parts to the Buyer for
the Buyer's use on its Aircraft in air transport
service as set forth in Paragraph 12 of this Letter
Agreement.
1.2.2 Propulsion Systems, including associated parts and spare
parts therefore, are not covered under this Letter Agreement
and will be subject to direct negotiations between the Buyer
and the relevant Propulsion Systems manufacturer(s).
1.2.3 During a period commencing on the date hereof and continuing
as long as at least five (5) aircraft of the type of the
Aircraft are operated by airlines in commercial air
transport service (the "Term"), the Seller will maintain or
cause to be maintained such stock of Seller Parts as the
Seller deems reasonable (upon consultation with the Buyer)
and will furnish Seller Parts adequate to meet the Buyer's
needs for repairs and replacements on the Aircraft. Such
Seller Parts will be priced, sold and delivered in
accordance with Paragraphs 4 and 5 of this Letter Agreement,
upon receipt of the Buyer's orders.
The Seller will use its best efforts to obtain a similar
service from all Vendors of parts that are originally
installed on the Aircraft and not manufactured by the
Seller.
1.3 Purchase Source of Seller Parts
The Buyer agrees to purchase from the Seller's designee ASC
the Seller Parts required for the Buyer's own needs during
the Term, provided that this Paragraph 1.3 will not in any
way prevent the Buyer from resorting to the stocks of Seller
Parts of other airlines operating aircraft of the type of
the Aircraft or from purchasing items equivalent to Seller
Parts from said airlines, distributors or dealers, on the
condition that said Seller Parts have been designed and
manufactured by, or obtained from, the Seller, and provided
also that this Paragraph 1.3 will not prevent the Buyer from
exercising its rights under Subparagraph 1.4 of this Letter
Agreement.
1.4 Manufacture of Seller Parts *** by the Buyer
1.4.1 The provisions of Subparagraph 1.3 of this Letter Agreement
notwithstanding, the Buyer may manufacture or have
manufactured for its own use or may purchase from any other
source whatsoever Seller Parts in the following cases:
(a) after expiration of the Term, if at such time the
Seller is out of stock of a required Seller Part;
(b) at any time, to the extent Seller Parts are needed to
effect AOG repairs on any Aircraft 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 said Seller Parts,
provided the Buyer will sell or lease such Seller
Parts only if they are assembled in an Aircraft that
is sold or leased;
(c) in the event that the Seller fails to fulfill its
obligations with respect to any Seller Parts pursuant
to Subparagraph 1.2 above within a reasonable period
after written notice thereof from the Buyer;
(d) when, with respect to certain Seller Parts, the
Seller has granted, under the Illustrated Parts
Catalog supplied in accordance with this Letter
Agreement, the right of local manufacture of Seller
Parts, and
(e) after written approval by the Seller, ***.
1.4.2 ***
1.4.3 The rights granted to the Buyer in Subparagraph 1.4.1 will
not in any way be construed as a license, nor will they in
any way obligate the Buyer to pay any license fee, royalty
or obligation whatsoever, nor will they in any way be
construed to affect the rights of third parties.
1.4.4 The Seller will provide the Buyer with all technical data
reasonably necessary to manufacture Seller Parts ***, in the
event the Buyer is entitled to do so pursuant to
Subparagraphs 1.4.1 and 1.4.2 of this Letter Agreement. The
proprietary rights to such technical data will be subject to
the terms of Subclause 14.10.1 of the Agreement.
1.5 ***
The Seller hereby agrees to provide *** for a period ***
after delivery of the first Aircraft.
***
1.6 Language
1.6.1 Words and expressions used in this Letter Agreement will
have the same meanings as they do in the rest of the
Agreement, unless otherwise stated in this Letter Agreement.
1.6.2 Technical and trade items used but not defined herein or in
the Agreement will be defined as generally accepted in the
aircraft manufacturing industry.
2. INITIAL PROVISIONING
The period up to and expiring on the ninetieth (90th) day
after delivery of the last Aircraft subject to firm order
under the Agreement will hereinafter be referred to as the
Initial Provisioning Period.
2.1 Seller-Supplied Data
The Seller will prepare and supply to the Buyer the
following documents:
2.1.1 Initial Provisioning Data
The Seller will provide the Buyer initial provisioning data
provided for in Chapter 1 of ATA 2000 for the Aircraft
("Initial Provisioning Data") in a form, format and within a
time period to be mutually agreed upon.
A revision service will be provided free of charge and will
be effected every ninety (90) days or more frequently if
reasonably requested by the Buyer, up to the end of the
Initial Provisioning Period, or until the configuration of
the Buyer's delivered Aircraft is included.
In any event, the Seller will ensure that Initial Provisioning
Data are released to the Buyer in time to allow the necessary
evaluation time by the Buyer and the on-time delivery of
ordered Material.
2.1.2 Supplementary Data
The Seller will provide the Buyer with Local Manufacture
Tables (X-File), as part of the Illustrated Parts Catalog
(Additional Cross-Reference Tables), which will be a part of
the Initial Provisioning Data Package.
2.1.3 Initial Provisioning Data for Reconfirmable Aircraft
2.1.3.1 All Reconfirmable Aircraft and Additional Aircraft which are
acquired by the Buyer (the "Reconfirmed Aircraft") pursuant
to the terms and conditions of Letter Agreement No. 2 to the
Agreement will be included in the revision to the
provisioning data that is issued after reconfirmation of a
Reconfirmable Aircraft or the Buyer's exercise of its option
to purchase an Additional Aircraft, if such revision is not
scheduled to be issued within four (4) weeks from the date
of reconfirmation or of the date of exercise of such option.
If the date of reconfirmation or the date of the exercise of
the option does not allow the Seller four (4) weeks'
preparation time, the Aircraft concerned will be included in
the next scheduled revision.
2.1.3.2 The Seller will, from the date of reconfirmation of an
Aircraft until three (3) months after delivery of such
Aircraft, submit to the Buyer details of particular Vendor
components being installed on the Aircraft and will
recommend the quantity to order. A list of such Vendor
components will be supplied at the time of the provisioning
data revision as specified above.
2.1.3.3 The Seller will deliver to the Buyer T-files for particular
Vendor components, as applicable, in time to allow the
Buyer's planning of repair and overhaul tasks.
2.1.3.4 At delivery of each Reconfirmed Aircraft, the data with
respect to Material will at least cover such Aircraft's
technical configuration as known six (6) months before
Aircraft delivery and will be updated to reflect the final
build status of such Aircraft. Such update will be included
in the data revisions issued three (3) months after delivery
of such Aircraft.
2.2 Vendor-Supplied Data
2.2.1 General
Vendors will prepare and issue T-files in the English
language for those Vendor components for which the Buyer has
elected to receive data.
Said data (initial issue and revisions) will be transmitted
to the Buyer through the Seller. The Seller will review the
compliance of such data with relevant ATA requirements, but
will not be responsible for the substance of such data,
other than any errors or omissions attributable to the
Seller's compilation of the data. The Seller will use its
best efforts to ensure that such data will be adequate to
enable the Buyer to undertake in-house repair and/or
overhaul of such components.
In any event, the Seller will exert its best efforts to
supply Initial Provisioning Data to the Buyer in time to
allow the necessary evaluations by the Buyer and on-time
deliveries.
2.2.2 Initial Provisioning Data
Initial Provisioning Data for Vendor products provided for
in Chapter 1 of ATA 2000 for the Aircraft will be furnished
as mutually agreed upon during a Preprovisioning Meeting
(defined below), with free-of-charge revision service
assured up to the end of the Initial Provisioning Period, or
until it reflects the configuration of the delivered
Aircraft.
2.3 Preprovisioning Meeting
2.3.1 The Seller will organize a meeting at its Material Support
Center in Hamburg, Germany ("MSC"), to formulate an
acceptable schedule and working procedure to accomplish the
Initial Provisioning of Material (the "Preprovisioning
Meeting").
2.3.2 The date and location of the Preprovisioning Meeting will be
mutually agreed upon.
2.4 Initial Provisioning Training
The Seller will furnish, at the Buyer's request and at no
charge, training courses related to the Seller's
provisioning documents, purchase order administration and
handling at MSC.
2.5 Initial Provisioning Conference
The Seller will organize an Initial Provisioning conference
at MSC that will include Vendor participation, as agreed
upon during the Preprovisioning Meeting (the "Initial
Provisioning Conference").
2.6 Initial Provisioning Data Compliance
2.6.1 Initial Provisioning Data generated by the Seller and
supplied to the Buyer will comply with the latest
configuration of the Aircraft to which such data relate, as
known three (3) months before the data are issued. Said data
will enable the Buyer to order Material conforming to its
Aircraft as required for maintenance and overhaul.
This provision will not cover parts embodying those Buyer
modifications that are unknown to the Seller, and parts
embodying modifications neither agreed to nor designed
by the Seller.
2.6.2 During the Initial Provisioning Period, Material will
conform with the latest configuration standard of the
affected Aircraft and with the Initial Provisioning Data
transmitted by the Seller. Should the Seller default in this
obligation, it will immediately replace such parts and/or
authorize return shipment at no transportation cost to the
Buyer. The Buyer will make reasonable efforts to minimize
such cost, in particular by using its own airfreight system
for transportation *** at no charge to the Seller, ***. The
Seller, in addition, will use its best efforts to cause
Vendors to provide a similar service for their items.
2.7 Delivery of Initial Provisioning Material
2.7.1 To support the operation of the Aircraft, the Seller will
use its best efforts to deliver Initial Provisioning
Material in Subparagraph 1.1(a) of this Letter Agreement
against the Buyer's orders from the Seller and according to
the following schedule, provided the orders are received by
the Seller in accordance with published lead time:
Each block of Aircraft referred to in the schedule below
will be defined in the Initial Provisioning Conference.
(a) At least fifty percent (50%) of the ordered quantity
of each Line Replacement or Line Maintenance item
three (3) months before delivery of the first
Aircraft of each block of Aircraft for which the
Buyer has placed Initial Provisioning orders for
Material defined above in Subparagraph 1.1(a).
(b) At least seventy-five percent (75%) of the ordered
quantity of each Line Replacement or Line Maintenance
item one (1) month (for items identified as line
station items, two (2) months) before delivery of the
first Aircraft of each block of Aircraft for which
the Buyer has placed Initial Provisioning orders for
Material defined above in Subparagraph 1.1(a).
(c) Fifty percent (50%) of the ordered quantity of each
item except as specified in Subparagraphs 2.7.1 (a)
and 2.7.1 (b) above at delivery of the first Aircraft
of each block of Aircraft for which the Buyer has
placed Initial Provisioning orders for Material
defined above in Subparagraph 1.1(a).
(d) One hundred percent (100%) of the ordered quantity of
each item, including line station items, three (3)
months after delivery of the first Aircraft of each
block of Aircraft for which the Buyer has placed
Initial Provisioning orders for Material, as defined
above in Subparagraph 1.1(a). If said one hundred
percent (100%) cannot be accomplished, the Seller
will have such items available at its facilities for
immediate supply, in case of an AOG.
2.7.2 In the event that less than eighty-five percent (85%) of the
Buyer's orders of Initial Provisioning Material defined
above in Subparagraph 1.1(a), supporting each block of
Aircraft (the "IP Block"), is delivered by the Seller to the
Buyer in accordance with the provisions set forth above in
Subparagraph 2.7.1(d) for reasons other than Excusable Delay
as defined in Clause 10 of the Agreement, then the Seller
will provide the Buyer with a credit equal to (i)
eighty-five percent (85%) minus the actual percentage of the
IP Block delivered, up to a maximum of ten percent (10%),
multiplied by (ii) the aggregate value of the undelivered
portion of the IP Block ordered by the Buyer from the Seller
in accordance with all published lead times. Subparagraph
4.4 of this Letter Agreement will apply to the Seller's
undertakings under this Subparagraph 2.7.2.
Such credit will be made available by the Seller to the
Buyer upon mutual agreement of the computation.
2.7.3 The Buyer may, subject to the Seller's agreement, cancel or
modify Initial Provisioning orders placed with the Seller
with no cancellation charge as follows:
(a) "Long Lead-Time Material" (lead time exceeding twelve
(12) months) not later than six (6) months before
scheduled delivery of said Material,
(b) normal lead time Material not later than three (3)
months before scheduled delivery of said Material,
(c) Buyer-specific Material and Material in Subparagraphs
1.1(b) through 1.1(f) no later than the quoted lead
time before scheduled delivery of said Material.
2.7.4 Should the Buyer cancel or modify any orders for Material
outside the time limits defined above in Subparagraph 2.7.3,
the Seller will have no liability for the cancellation or
modification, and the Buyer will reimburse the Seller for
any direct cost incurred in connection therewith to the
extent that such cost has been properly documented by the
Seller to the satisfaction of the Buyer.
3. STORES
3.1 ASCO Spares Center
The Seller has established and will maintain or cause to be
maintained, as long as at least five (5) aircraft of the
type of the Aircraft are operated by US airlines in
commercial air transport service (the "US Term"), a US store
adjacent to Dulles International Airport, Washington, DC,
known as the ASCO Spares Center - Washington ("ASCO Spares
Center"). The ASCO Spares Center will be operated
twenty-four (24) hours/day, seven (7) days/week, all year,
for the handling of AOG and critical orders for Seller
Parts. ASCO Spares Center will maintain a stock of Seller
Parts, including Leased Parts listed in Appendix A to this
Letter Agreement. In the event of the recurrence of the
nonavailability to the Buyer of a part from the ASCO Spares
Center, the Seller will take all necessary steps to ensure
availability thereof at the ASCO Spares Center at the
Buyer's next request. In the event that the Buyer is still
operating one or more Aircraft at the end of the Term, the
Seller will use its best efforts to ensure the Buyer's
access to Seller Parts.
3.2 Material Support Center, Germany
The Manufacturer has set up and will maintain or cause to be
maintained during the Term a store of Seller Parts at MSC.
MSC will be operated twenty-four (24) hours/day, seven (7)
days/week, all year.
3.3 Other Points of Shipment
The Seller reserves the right to effect deliveries from
distribution centers other than the ASCO Spares Center or
MSC and from any of the production facilities of the
Associated Contractors.
4. DELIVERY
4.1 General
The Buyer's purchase orders will be administered in
accordance with ATA Specification 2000.
The provisions of this Paragraph 4 do not apply to Initial
Provisioning Data and Material.
4.2 Lead Times
4.2.1 In general, the lead times are (and, unless otherwise
agreed, will at all times be) in accordance with the
definition in the "World Airline and Suppliers Guide" (1994
edition).
4.2.2 Material will be dispatched within the lead times quoted in
the published Seller's price catalog for Material described
in Subparagraph 1.1(a), and within the Vendor's or
supplier's lead time augmented by the Seller's own order and
delivery processing time (such in-house processing time not
to exceed fifteen (15) days) for Material described in
Subparagraphs 1.1(b) through 1.1(d). The Seller will
endeavor to improve its lead times and neither the Seller,
the Manufacturer nor any of their Affiliates will
discriminate against the Buyer in delivery processing time.
4.2.3 Expedite Service
The Seller operates a twenty-four (24) hour-a-day, seven (7)
day-a-week expedite service to supply the relevant Seller
Parts available in the Seller's stock, workshops and
assembly line, including high-cost long- lead-time items, to
the international airport nearest the location of such items
(the "Expedite Service").
The Expedite Service is operated in accordance with the
"World Airline and Suppliers Guide." Accordingly, the Seller
will notify the Buyer of the action taken to effect the
Expedite Service as follows:
(a) four (4) hours after receipt of an AOG order,
(b) twenty-four (24) hours after receipt of a critical
order (imminent AOG or work stoppage),
(c) seven (7) days after receipt of an expedite order
from the Buyer.
The Seller and its subcontractors will deliver Seller Parts
requested on expedite basis against normal orders previously
placed by the Buyer or upon requests by telephone or telex
by the Buyer's representatives, such requests to be
confirmed by the Buyer's subsequent order for such Seller
Parts within a reasonable time.
4.3 Delivery Status
The Seller agrees to report to the Buyer the status of
supplies against orders on a monthly basis.
4.4 Excusable Delay
Subclause 10.1 of the Agreement will apply to the Material
Support as defined in Paragraph 1 of this Letter Agreement.
4.5 Shortages, Overshipments, Nonconformance in Orders
4.5.1 Within thirty (30) days after receipt of Material delivered
pursuant to a purchase order, the Buyer will use all best
efforts to advise the Seller of any alleged shortages or
overshipments with respect to such order and of all
nonconformance to specification of parts in such order
inspected by the Buyer.
In the event that the Buyer has not reported such alleged
shortages, overshipments or nonconformance within the above
defined period, the Buyer will be deemed to have accepted
the deliveries unless the Buyer can prove within a
reasonable period of time that it did not receive the
Material.
4.5.2 In the event that the Buyer reports overshipments or
nonconformance to the specifications within the period
defined above in Subparagraph 4.5.1, the Seller will, if
accepted, either replace the Material concerned or credit
the Buyer for Material returned. In such case,
transportation charges will be borne by the Seller.
The Buyer will endeavor to minimize such costs, particularly
by using its own airfreight system on a space-available
basis for transportation at no charge to the Seller.
4.6 Delivery Performance of Material
The Seller hereby agrees to participate in a Material
delivery performance incentive.
Based upon the Material delivery performance criteria for
response under Expedite Service as set forth in Subparagraph
4.2.3 and for routine orders in accordance with the Seller's
published lead times, and provided all above shipments ***
(the "Delivery Criteria"), the Seller commits to an overall
delivery performance of eighty-five percent (85%) on an
annual basis. In the event that the Seller's performance
falls below the eighty-five percent (85%) level, the Seller
will provide the Buyer with a credit equal to (i)
eighty-five (85%) minus the actual percentage of orders
delivered on time, up to a maximum of ten percent (10%),
multiplied by (ii) the aggregate value of the orders
delivered late according to the Delivery Criteria set forth
above. Subparagraph 4.4 above will apply to the Seller's
undertakings under this Subparagraph 4.6.
At the end of each year following delivery of the first
Aircraft, the Seller will compute the above-described
figures in order to determine a credit or debit for the
account of the Buyer.
In the event the Seller records a credit for the account of
the Buyer, the Seller will make available to the Buyer a
credit memorandum in the amount described in this
Subparagraph 4.6 for the purchase of Material from the
Seller.
4.7 Exclusivity of Remedy
The remedies provided to the Buyer under Subparagraphs 2.7.2
and 4.6 above are mutually exclusive and not cumulative.
4.8 Cessation of Deliveries
The Seller reserves the right to stop or otherwise suspend
deliveries of Material if the Buyer fails to meet its
obligations under Paragraphs 6 and 7 of this Letter
Agreement.
5. PRICE
5.1 Point of Shipment
***
5.2 Validity of Prices
5.2.1 The prices are the Seller's published prices in effect on
the date of receipt of the order (subject to reasonable
quantities and delivery time) and will be expressed in US
dollars. Payment will be made by the Buyer to the Seller in
US dollars as set forth below in Subparagraph 6.1.
5.2.2 Prices of Seller Parts will be in accordance with the then
current Seller's Spare Parts Price List. Prices will be firm
for each calendar year. The Seller, however, reserves the
right to revise the prices of Seller Parts during the course
of the calendar year in the event of manifest error in
estimation or expression of any price.
In the event of a significant revision in manufacturing
costs or a significant revision in the purchase price to the
Manufacturer of Seller Parts (including significant
variation in exchange rate) during any particular calendar
year, the Seller will notify the Buyer of such revisions,
whereupon the Buyer may, within such quantities of affected
Seller Parts still available for sale at the former prices,
order such quantities of said Seller Parts reasonably
required to maintain its customary stock levels of such
Seller Parts for the remainder of the calendar year in
effect at that time provided the Seller is not thereby
required to deplete the Seller's AOG inventory level unless
such Seller Parts are required by the Buyer on an AOG basis.
In the event the Seller is out of stock of such Seller Parts
at the former prices, the Seller will, upon request by the
Buyer, reasonably substantiate the price revisions affecting
such Seller Parts.
5.2.3 ***
5.2.4 Prices of Material as defined above in Subparagraphs 1.1(b)
through 1.1(d) will be the valid list prices of the Vendor
or supplier augmented by the Seller's handling charge. The
percentage of the handling charge will vary with the
Material's value and will be determined item by item.
5.2.5 The Seller warrants that, should the Buyer purchase from the
Seller one hundred percent (100%) of the recommended Initial
Provisioning of Material defined above in Subparagraphs
1.1(b) through 1.1(d), the average handling charge on the
total package will not exceed fifteen percent (15%). This
average handling charge will be increased to eighteen
percent (18%) in the event that all orders have not been
placed nine (9) months prior to delivery of the first
Aircraft.
5.2.6 Prices of Material as defined above in Subparagraphs 1.1(e)
and 1.1(f) will be the Seller's purchase prices augmented by
a variable percentage of handling charge.
6. PAYMENT PROCEDURES AND CONDITIONS
6.1 Currency
Payment will be made in immediately available funds in US
dollars.
6.2 Time and Means of Payment
Payment will be made by the Buyer to the Seller within
thirty (30) days from the date of invoice. It is also agreed
that the Seller will provide the Buyer with a credit equal
to one percent (1%) of each payment, provided such payment
is received within ten (10) days from the date of invoice.
6.3 Bank Accounts
The Buyer will make all payments hereunder in full without
setoff or counterclaim, and without deduction of any kind to
the accounts listed below, unless otherwise directed by
the Seller:
(a) For wire transfer, in favor of Airbus Service Company:
CoreStates Bank N.A.
Account Number 14096-31312
ABA Number 031000011
(b) For direct deposit (lockbox), in favor of Airbus Service
Company:
Airbus Service Company
PO Box 8500-4555
Philadelphia, PA 19178-4555
6.4 No Setoff
All payments due the Seller hereunder will be made in full
without setoff or counterclaim and without deduction or
withholding of any kind. Consequently, the Buyer will assure
that the sums received by the Seller under this Letter
Agreement will be equal to the full amounts expressed to be
due the Seller hereunder.
6.5 If any payment due the Seller is not received in accordance
with the time period provided above in Subparagraph 6.2, the
Seller will have the right to claim from the Buyer and the
Buyer will promptly pay to the Seller interest on the unpaid
amount at a rate equal to three percent (3%) over LIBOR to
be calculated from (and including) the due date to (but
excluding) the date payment is received by the Seller. The
Seller's claim to such interest will not prejudice any other
rights the Seller may have under this Letter Agreement.
7. TITLE
Title to any Material purchased under this Letter Agreement
will ***.
8. PACKAGING
All material will be packaged in accordance with ATA 300
specification, Category III for consumable/expendable
Material and Category II for rotables. Category I containers
will be used if requested by the Buyer and the difference
between Category I and Category II packaging costs will be
paid by the Buyer together with payment for the respective
Material.
9. DATA RETRIEVAL
On the Seller's reasonable request, the Buyer may provide
periodically to the Seller, during the Term, a quantitative
list of the parts used for maintenance and overhaul of the
Aircraft as customarily compiled by the Buyer and pertaining
to the operation of the Aircraft to assist the Seller in
making an efficient and coordinated survey of spare parts
data with a view to improving maintenance and overhaul of
the Aircraft. The range and contents of this list will be
established by mutual agreement between the Seller and the
Buyer.
10. BUY-BACK
10.1 Buy-Back of Obsolete Material
The Seller agrees to buy back unused Seller Parts that may
become obsolete for the Buyer's fleet *** to the Buyer as a
result of mandatory modifications required by the Buyer's or
Seller's airworthiness authorities, subject to the
following:
(a) the Seller Parts involved will be those which the
Seller directs the Buyer to scrap or dispose of and
which cannot be reworked or repaired to satisfy the
revised standard;
(b) the Seller will grant the Buyer a credit equal to the
purchase price paid by the Buyer for any such
obsolete parts, such credit being limited to
quantities ordered in the Initial Provisioning
recommendation; and
(c) the Seller will use its reasonable efforts to obtain
for the Buyer the same protection from Vendors.
10.2 Buy-Back of Surplus Material
10.2.1 The Seller agrees that at any time within twelve (12) months
after the end of the Initial Provisioning Period, the Buyer
will have the right to return to the Seller, at a credit of
one hundred percent (100%) of the original purchase price
paid by the Buyer, unused and undamaged Material set forth
above in Subparagraphs 1.1(a) and 1.1(b) originally
purchased from the Seller under the terms hereof, provided
(i) that the selected protection level for all Material does
not exceed ninety-six percent (96%) with a turnaround time
of forty-five (45) days, (ii) ***, and (iii) that the
Material is returned with the Seller's original
documentation and any such documentation (including tags,
certificates) required to identify, substantiate the
condition of and enable the resale of such Material.
10.2.2 The Seller's agreement in writing is necessary before any
Material in excess of the Seller's recommendation may be
considered for buy-back.
10.2.3 It is expressly understood and agreed that the rights
granted to the Buyer under this Subparagraph 10.2 will not
apply to Material that may become obsolete at any time or
for any reason other than as set forth in Subparagraph 10.1
above.
10.2.4 Further, it is expressly understood and agreed that all
credits referred to above in Subparagraph 10.1(b) will be
provided by the Seller to the Buyer exclusively by means of
credit notes to be entered into the Buyer's account with the
Seller for
Material.
10.3 All transportation costs for the return of obsolete and
surplus Material under this Paragraph 10, including any
applicable insurance and customs duties or other related
expenditures, will be borne by the Seller, in the case of
obsolete Material and by the Buyer, in the case of surplus
Material.
11. WARRANTIES
The Seller in its capacity as "Buyer" under its arrangements
with the Manufacturer has negotiated and obtained the
following warranties for Seller Parts from the Manufacturer,
in its capacity as "Seller", with respect to the Seller
Parts, subject to the terms, conditions, limitations and
restrictions all as hereinafter set out. The Seller hereby
guarantees to the Buyer the performance by the Manufacturer
of the Manufacturer's obligations and assigns to the Buyer,
and the Buyer hereby accepts, all of the rights and
obligations of the Seller in the Seller's capacity as
"Buyer" as aforesaid under the said warranties for Seller
Parts delivered to the Buyer pursuant to this Letter
Agreement and the Seller subrogates the Buyer as to all such
rights and obligations in respect of such Seller Parts. The
Seller hereby warrants to the Buyer that the Seller has all
the requisite authority to make the foregoing assignment and
effect the foregoing subrogation to and in favor of the
Buyer and that the Seller will not enter into any amendment
of the provisions so assigned or subrogated without the
prior written consent of the Buyer. Capitalized terms
utilized in the following provisions have the meanings
assigned thereto in this Letter Agreement, except that the
term "Seller" refers to the Manufacturer and the term
"Buyer" refers to the Seller. References to clauses and
paragraphs in the following provisions refer to clauses in
the Agreement and/or to paragraphs in this Letter Agreement.
QUOTE
11.1 Seller Parts
Subject to the limitations and conditions as hereinafter
provided, the Seller warrants to the Buyer that all Seller
Parts as defined above in Subparagraph 1.1(a) will at the
time of delivery to the Buyer:
(a) be free from defects in material,
(b) be free from defects in workmanship, including,
without limitation, processes of manufacture,
(c) conform to the applicable specification for such part,
(d) be free from defects in design (including, without
limitation, selection of materials) having regard to
the state of the art at the date of such design,
(e) permit complete interchangeability among Aircraft and
parts of like part-numbered parts, and
(f) be free and clear of all liens and other encumbrances.
11.2 Warranty Period
The standard warranty period for defects (i) for Seller
Parts defined above in Subparagraphs 1.1(a) is thirty-six
(36) months after delivery of such Seller Parts to the Buyer
(the "Warranty Period(s)").
11.3 Buyer's Remedy and Seller's Obligation
The Buyer's remedy and Seller's obligation and liability
under this Paragraph 11 are limited to, at the Seller's
expense, the repair, replacement or correction of, any
defective Seller Part, ***.
The Seller, at its option, may 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 Part.
The provisions of Subclauses 12.1.5, 12.1.6, 12.1.7 and
12.1.8 of the Agreement will, as applicable, also apply to
this Paragraph 11.
11.4 Exclusivity of Warranties and General Limitations of Liability
and Duplicate Remedies
The Buyer and the Seller recognize and agree that the
Exclusivity of Warranties and General Limitations of
Liability provisions and the Duplicate Remedies provisions
contained in Clause 12 of the Agreement will also apply to
the foregoing warranties provided for in this Paragraph 11.
UNQUOTE
In consideration of the assignment and subrogation by the
Seller under this Paragraph 11 in favor of the Buyer in
respect of the Seller's rights against and obligations to
the Manufacturer under the provisions quoted above, the
Buyer hereby accepts such assignment and subrogation and
agrees to be bound by all of the terms, conditions and
limitations therein contained.
EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS
OF LIABILITY AND DUPLICATE REMEDIES
THIS PARAGRAPH 11 (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 LETTER
AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR
NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY SELLER PART
DELIVERED UNDER THIS LETTER AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND
REMEDIES IN THIS PARAGRAPH 11 ARE ADEQUATE AND SUFFICIENT TO
PROTECT THE BUYER FROM ANY DEFECT OR NONCONFORMITY OR
PROBLEM OF ANY KIND IN THE GOODS AND SERVICES SUPPLIED UNDER
THIS LETTER 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 SELLER PART DELIVERED UNDER THIS LETTER
AGREEMENT, INCLUDING BUT NOT LIMITED TO, UNLESS OTHERWISE
PROVIDED FOR IN THIS PARAGRAPH 11:
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(3) ANY RIGHT, CLAIM OR REMEDY FOR TORT, INCLUDING ACTIONS
FOR NEGLIGENCE, RECKLESSNESS, INTENTIONAL TORTS, IMPLIED
WARRANTY IN TORT AND/OR STRICT LIABILITY;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE, OR ANY OTHER STATE OR FEDERAL STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY
REGULATIONS OR STANDARDS IMPOSED BY ANY INTERNATIONAL,
NATIONAL, STATE OR LOCAL STATUTE OR AGENCY;
(6) 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 THE AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THE AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES PROVIDED BY THIS LETTER AGREEMENT WILL NOT BE
EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT
SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT ANY
PROVISION OF THIS PARAGRAPH 11 SHOULD FOR ANY REASON BE HELD
UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS
PARAGRAPH 11 WILL REMAIN IN FULL FORCE AND EFFECT.
The remedies provided to the Buyer under this Paragraph 11
as to any defect in respect of the Aircraft or any part
thereof are not cumulative. The Buyer will be entitled to
the one remedy that provides the maximum benefit to it, as
the Buyer may elect, pursuant to the terms and conditions of
this Paragraph 11 for any such particular defect for which
remedies are provided under this Paragraph 11; provided,
however, that, ***, the Buyer will not be entitled to elect
a remedy under one part of this Paragraph 11 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 *** arising under these
warranties *** covered by this Paragraph 11.
12. LEASING
12.1 Applicable Terms
The terms and conditions of this Paragraph 12 will apply to
the Lessor's (as defined below) stock of Seller Parts listed
in Appendix "A" to this Paragraph 12 ("Leased Parts") and
will form a part of each lease of any Leased Part by the
Buyer from the Seller after the date hereof. Except for the
description of the Leased Part, the Lease Term, the Leased
Part delivery and return locations and the Lease Charges
(defined below in Subparagraph 12.4), all other terms and
conditions appearing on any order form or other document
pertaining to Leased Parts will be deemed inapplicable, and
in lieu thereof the terms and conditions of this Paragraph
12 will prevail. For purposes of this Paragraph 12, the term
"Lessor" refers to the Seller and the term "Lessee" refers
to the Buyer. Parts not included in Appendix "A" to this
Paragraph 12 may be supplied under a separate lease
agreement between the Seller and the Buyer.
12.2 Lease Procedure: Spare Parts Leased
At the Lessee's request by telephone (to be confirmed
promptly in writing), telegram, letter or other written
instrument, the Lessor will lease Leased Parts, which will
be made available in accordance with Subparagraph 4.2.3 of
this Letter Agreement, to the Lessee as substitutes for
parts withdrawn from an Aircraft for repair or overhaul.
Each lease of Leased Parts will be evidenced by a lease
document ("Lease") issued by the Lessor to the Lessee no
later than seven (7) days after delivery of the Leased Part.
12.3 Lease Term: Return
The term of the lease ("Lease Term") will commence on the
date of receipt of the Leased Part by the Lessee or its
agent at the Lessee's facility in a serviceable condition
and will end on the date of receipt at the Lessor's facility
of the Leased Part in a serviceable condition. The Lease
Term will not exceed ninety (90) days after the Lessee's
receipt of the Leased Part, unless extended by written
agreement between Lessor and Lessee within such ninety
(90)-day period (such extension not to exceed an additional
ninety (90) days). Notwithstanding the foregoing, the Lease
Term will end in the event, and upon the date, of exercise
of the Lessee's option to purchase the Leased Part, as
provided herein.
12.4 Lease Charges and Taxes
The Lessee will pay the Lessor (a) a daily rental charge for
the Lease Term in respect of each Leased Part equal to
one-three-hundred-sixty-fifth (1/365) of the Catalog Price
of such Leased Part, as set forth in the Seller's Spare
Parts Price List in effect on the date of commencement of
the Lease Term, (b) any reasonable additional costs which
may be incurred by the Lessor solely and directly as a
result of such Lease, such as inspection, test, repair,
overhaul and repackaging costs as required to place the
Leased Part in serviceable condition, (c) all transportation
and insurance charges and (d) any taxes (excluding any taxes
based on income or gross receipts), charges or customs
duties imposed upon the Lessor or its property as a result
of the lease, sale, delivery, storage or transfer of any
Leased Part (the "Lease Charges"). All payments due
hereunder will be made in accordance with Paragraph 6 of
this Letter Agreement.
In the event that the Leased Part has not been returned to
the Lessor's designated facilities within the time period
provided in Subparagraph 12.3 above, the Lessor will be
entitled, in addition to any other remedy it may have at law
or under this Paragraph 12, to charge to the Lessee, and the
Lessee will pay, all of the charges referred to in this
Subparagraph 12.4 accruing for each day after the end of the
Lease Term and for as long as such Leased Part is not
returned to the Lessor and as though the Lease Term were
extended to the period of such delay.
Notwithstanding the foregoing, the Lessor hereby agrees not
to charge the Lessee any daily rental charge as referred to
above in Subparagraph 12.4(a) from the date that is ninety
(90) days after the date of receipt of the Leased Part by
the Lessee, provided that (i) the Lessee reasonably
demonstrates that the repair station designated by the
Lessor and to which the Lessee has sent the damaged item
(which is the cause of the lease described in this Paragraph
12) (the "Damaged Item") has failed to perform the repair of
the Damaged Item within ninety (90) days, and (ii) the
repair station is unable to provide adequate and
satisfactory reasons for its nonperformance.
12.5 Title
Title to each Leased Part will remain with the Lessor at all
times unless the Lessee exercises its option to purchase or
exchange it in accordance with Subparagraph 12.8 of this
Letter Agreement, in which case title will pass to the
Lessee in accordance with Paragraph 7 of this Letter
Agreement.
12.6 Risk of Loss
Except for normal wear and tear, each Leased Part will be
returned to the Lessor in the same condition as when
delivered to the Lessee. However, the Lessee will not
without the Lessor's prior written consent repair, modify or
alter any Leased Part (other than routine maintenance). Risk
of loss or damage to each Leased Part will 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
will be deemed to have exercised its option to purchase the
part in accordance with Subparagraph 12.8 of this Letter
Agreement, as of the date of such loss or damage.
12.7 Record of Flight Hours
All flight hours accumulated by the Lessee on each Leased
Part during the Lease Term will be documented by the Lessee.
Records will 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 to maintain said Leased Part serviceable in
accordance with the standards of the Lessor will be
delivered to the Lessor upon return of the Leased Part to
the Lessor on termination of the Lease.
Such documentation will 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.
12.8 Option to Purchase
The Lessee may at its option, exercisable by written notice
given to the Lessor, elect during or at the end of the Lease
Term 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 will be paid by the
Lessee to the Lessor. The immediately preceding sentence
will apply to new Leased Parts only. In the event the Leased
Part is not new at commencement of the Lease Term,
eighty-five percent (85%) of the then current purchase price
for such Leased Part will be paid by the Lessee to the
Lessor. Such option will 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, *** of the Lease rental charges already invoiced
pursuant to Subparagraph 12.4 (a) will be credited to the
Lessee against the said purchase price of the Leased Part.
Should the Lessee fail to return the Leased Part to the
Lessor at the end of the Lease Term, such failure will be
deemed to be an election by the Lessee to purchase the
Leased Part.
In the event of purchase, the Leased Part will be warranted
in accordance with Clause 11 of this Letter Agreement as
though such Leased Part were a Seller Part, provided,
however, that (i) the Seller will prorate the full Warranty
Period granted to the Buyer according to the actual usage of
such Leased Part and (ii) in no event will such Warranty
Period be less than six (6) months from the date of purchase
of such Leased Part. A warranty granted under this
Subparagraph 12.8.3 will be in substitution for the warranty
granted under Subparagraph 12.9 at the commencement of the
Lease Term.
12.9 Warranties
The Lessor, in its capacity as "Lessee," under its
arrangements with the Manufacturer, in its capacity as
"Lessor," has negotiated and obtained the following
warranties from the Manufacturer with respect to the Leased
Parts, subject to the terms, conditions, limitations and
restrictions all as hereinafter set out. The Lessor hereby
assigns to the Lessee, and the Lessee hereby accepts, all of
the rights and obligations of the Lessor in the Lessors's
capacity as "Lessee" as aforesaid under the said warranties
and the Lessor subrogates the Lessee as to all such rights
and obligations in respect of Leased Parts during the Lease
Term with respect thereto. The Lessor hereby warrants to the
Lessee that the Lessor has all requisite authority to make
the foregoing assignment and effect the foregoing
subrogation to and in favor of the Lessee and that the
Lessor will not enter into any amendment of the provisions
so assigned or subrogated without the prior written consent
of the Lessee. Capitalized terms utilized in the following
provisions have the meanings assigned thereto in this Letter
Agreement, except that the term "Lessor" refers to the
Manufacturer and the term "Lessee" refers to the Lessor.
References to clauses and paragraphs in the following
provisions refer to clauses in the Agreement and/or to
paragraphs in this Letter Agreement.
QUOTE
12.9.1 The Lessor warrants that each Leased Part will at the time
of delivery thereof:
(a) be free from defects in material,
(b) be free from defects in workmanship, including,
without limitation, processes of manufacture,
(c) conform to the applicable specification for such part,
(d) be free from defects in design (including, without
limitation, selection of materials) having regard to
the state of the art at the date of such design,
(e) permit complete interchangeability among Aircraft and
parts of like part-numbered parts, and
(f) be free and clear of all liens and other encumbrances.
12.9.2 Survival of Warranties
With respect to each Leased Part, the warranty set forth
above in Subparagraph 12.9.1(a) will not survive delivery,
and the warranties set forth above in Subparagraphs
12.9.1(b) through 12.9.1(f) will survive delivery only upon
the conditions and subject to the limitations set forth
below in Subparagraphs 12.9.3 through 12.9.8.
12.9.3 Warranty and Notice Periods
The Lessee's remedy and the Lessor's obligation and
liability under this Subparagraph 12.9, with respect to each
defect, are conditioned upon (i) the defect having become
apparent within the Lease Term and (ii) the Lessor's
warranty administrator having received written notice of the
defect from the Lessee within *** of discovering the defect
giving rise to a warranty claim under this Subparagraph
12.9, but in no event later than *** after such defect
becomes apparent.
12.9.4 Return and Proof
The Lessee's remedy and the Lessor's obligation and
liability under this Subparagraph 12.9, with respect to each
defect, are also conditioned upon:
(a) 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
agreeable, of the Leased Part claimed to be
defective, and
(b) the submission by the Lessee to the Lessor's warranty
administrator of reasonable proof that the claimed
defect is due to a matter embraced within the
Lessor's warranty under this Subparagraph 12.9 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 the Lessee's
FAA-approved maintenance program.
12.9.5 Remedies
The Lessee's remedy and the Lessor's obligation and
liability under this Subparagraph 12.9 with respect to each
defect are limited to the repair of such defect in the
Leased Part in which the defect appears, or, as mutually
agreed, to the replacement of such Leased Part with a
similar part free from defect.
Any replacement part furnished under this Subparagraph
12.9.5 will for the purposes of this Letter Agreement be
deemed to be the Leased Part so replaced.
12.9.6 Suspension and Transportation Costs
12.9.6.1 If a Leased Part is found to be defective and is covered by
this warranty, the Lease Term and the Lessee's obligation to
pay rental charges as provided in Subparagraph 12.4(a) of
this Letter Agreement will 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 withdrawn such defective Leased Part from
use, promptly after giving such notice to the Lessor. If the
defective Leased Part is replaced, such replacement will be
deemed to no longer be a Leased Part under the Lease as of
the date on which such part was received by the Lessor at
the return location specified in the applicable Lease.
If a Leased Part is found to be defective on first use by
the Lessee and is covered by this warranty, no rental or
other charges as provided in Subparagraph 12.4(a) will
accrue and be payable by the Lessee until the date on which
the Lessor has repaired, corrected or replaced the defective
Leased Part in a manner satisfactory to the Lessee.
12.9.6.2 All transportation and insurance costs associated with the
return of the defective Leased Part to the Lessor and the
return of the repaired, corrected or replacement part to the
Lessee will be borne by the Lessor.
12.9.7 Wear and Tear
Normal wear and tear and the need for regular maintenance
and overhaul will not constitute a defect or nonconformance
under this Subparagraph 12.9.
12.9.8 Exclusivity of Warranties and General Limitations of Liability
and Duplicate Remedies
The Lessee and the Lessor recognize and agree that the
Exclusivity of Warranties and General Limitations of
Liability provisions and the Duplicate Remedies provisions
contained in Clause 12 of the Agreement will also apply to
the foregoing warranties provided for in this Subparagraph
12.9.
UNQUOTE
In consideration of the assignment and subrogation by the
Seller under this Subparagraph 12.9 in favor of the Buyer in
respect of the Seller's rights against and obligations to
the Manufacturer under the provisions quoted above, the
Buyer hereby accepts such assignment and subrogation and
agrees to be bound by all of the terms, conditions and
limitations therein contained.
EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS
OF LIABILITY and DUPLICATE REMEDIES
THIS PARAGRAPH 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 LETTER
AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR
NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY LEASED PART
DELIVERED UNDER THIS LETTER AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND
REMEDIES IN THIS PARAGRAPH 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 LETTER 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 LEASED PART DELIVERED UNDER THIS LETTER
AGREEMENT, INCLUDING BUT NOT LIMITED TO, UNLESS OTHERWISE
PROVIDED FOR IN THIS PARAGRAPH 12:
(1) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(2) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(3) ANY RIGHT, CLAIM OR REMEDY FOR TORT, INCLUDING ACTIONS
FOR NEGLIGENCE, RECKLESSNESS, INTENTIONAL TORTS, IMPLIED
WARRANTY IN TORT AND/OR STRICT LIABILITY;
(4) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE, OR ANY OTHER STATE OR FEDERAL STATUTE;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY
REGULATIONS OR STANDARDS IMPOSED BY ANY INTERNATIONAL,
NATIONAL, STATE OR LOCAL STATUTE OR AGENCY;
(6) 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 THE AGREEMENT;
(b) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT,
COMPONENT, EQUIPMENT, ACCESSORY OR PART PROVIDED
UNDER THE AGREEMENT;
(c) LOSS OF PROFITS AND/OR REVENUES;
(d) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES PROVIDED BY THIS LETTER AGREEMENT WILL NOT BE
EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT
SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT ANY
PROVISION OF THIS PARAGRAPH 12 SHOULD FOR ANY REASON BE HELD
UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS
PARAGRAPH 12 WILL REMAIN IN FULL FORCE AND EFFECT.
The remedies provided to the Buyer under this Paragraph 12
as to any defect in respect of the Aircraft or any part
thereof are not cumulative. The Buyer will be entitled to
the one remedy which provides the maximum benefit to it, as
the Buyer may elect, pursuant to the terms and conditions of
this Paragraph 12 for any such particular defect for which
remedies are provided under this Paragraph 12; provided,
however, that, ***, the Buyer will not be entitled to elect
a remedy under one part of this Paragraph 12 which
constitutes a duplication of any remedy elected by it under
any other part hereof for the same defect. The Buyer's
rights and remedies *** arising under these warranties ***
covered by this Paragraph 12.4.
APPENDIX "A" TO CLAUSE 12
SELLER PARTS LEASING LIST
(Leased Parts)
AILERONS
AUXILIARY POWER UNIT (APU) DOORS
CARGO DOORS
PASSENGER DOORS
ELEVATORS
FLAPS
LANDING GEAR DOORS
RUDDER
TAIL CONE
WING SLATS
SPOILERS
AIRBRAKES
WING TIPS
RADOMES
13. TURN-AROUND-TIME ***
13.1 In respect of Seller Parts (excluding Leased Parts), the
Seller *** from receipt of a given Seller Part at the repair
facility to dispatch of the repaired Seller Part to the
Buyer's facility ("Seller Part TAT"). Should the Seller
determine that the Seller Part TAT will not be met, the
Seller will promptly notify the Buyer and ***.
13.2 In respect of Leased Parts (other than nose gear and main
landing gear), the Seller *** from receipt of a given Leased
Part at the repair facility to dispatch of the repaired
Leased Part to the Buyer's facility ("Leased Part TAT").
During this ***, conditions outlined in the first paragraph
of Subparagraph 12.4 above will apply. Should the Seller
determine that the Leased Part TAT will not be met, the
Seller will promptly notify the Buyer and ***.
13.3 In respect of the nose gear and main landing gear, the
Seller *** from receipt of a given component at the repair
facility to dispatch of the repaired component to the
Buyer's facility ("Gear TAT"). With respect to any
replacement component the Buyer temporarily leases during
this ***, the Buyer will pay the Seller ***.
13.4 In respect of Vendor spare parts, *** are set forth in the
Supplier Product Support Agreements. ***
14. TERMINATION
Any termination under Clause 10, 11 or 21 of the Agreement
or under the Letter Agreements thereto will discharge all
obligations and liabilities of the parties hereunder with
respect to such undelivered Material, services, data or
other items to be purchased hereunder that are applicable to
those undelivered Aircraft as to which the Agreement has
been terminated. Termination under this Paragraph 14
notwithstanding new and unused Material in excess of the
Buyer's requirements due to such Aircraft cancellation will
be repurchased by the Seller as provided in Subparagraph
10.2 of this Letter Agreement.
15. ASSIGNMENT
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
-----------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
----------------------
Its: Treasurer
Date: October 31, 1997
LETTER AGREEMENT NO. 2
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: DELIVERIES
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said
Agreement. The Buyer and the Seller have agreed to set forth in this Letter
Agreement No. 2 (the "Letter Agreement") certain additional terms and
conditions regarding the sale of the Aircraft. Capitalized terms used
herein and not otherwise defined in this Letter Agreement will have the
meanings assigned thereto in the Agreement. The terms "herein," "hereof"
and "hereunder" and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will
constitute an integral, nonseverable part of said Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. ***
2. RECONFIRMABLE AIRCRAFT
In order to provide the Buyer with flexibility to meet its
future fleet mix requirements, the Seller grants the Buyer
the right to reconfirm its order for each and any
Reconfirmable Aircraft. The Buyer will notify the Seller in
writing by no later than *** (***) *** before the scheduled
month of delivery of a Reconfirmable Aircraft as to whether
it reconfirms the order for the applicable Reconfirmable
Aircraft.
In respect of Reconfirmable Aircraft for which the Buyer
does not reconfirm its order, ***. Upon such
nonreconfirmation, the Buyer's rights with respect to the
Reconfirmable Aircraft that was not reconfirmed will expire
and the parties will have no further obligations to one
another with respect to such Reconfirmable Aircraft.
3. *** DELIVERIES
3.1 ***
3.2 ***
4. ***
4.1 ***
4.2 ***
5. LEASED AIRCRAFT
If the Buyer wishes to lease A319, A320 or A321 aircraft,
the Seller will assist the Buyer in locating such aircraft
(the "Leased Aircraft") from leasing companies. In the event
that the Leased Aircraft need to have a ***.
6. ***
6.1 ***
***
6.2 ***
7. EXCUSABLE DELAYS
7.1 Unanticipated Delay
Subclause 10.2 of the Agreement is hereby amended as
follows:
***
The remainder of such Subclause 10.2 remains unchanged.
***
The remainder of such Subclause 10.3 remains unchanged.
8. INEXCUSABLE DELAYS
8.1 Subclause 11.1 of the Agreement is hereby amended as follows:
***
8.2 Subclause 11.4 of the Agreement is hereby amended as follows:
***
9. ***
The Seller will consider in good faith a request of the
Buyer to ***. The Buyer will pay all of the Seller's
out-of-pocket expenses arising out of ***.
10. BUYER FURNISHED EQUIPMENT
***
11. ASSIGNMENT
This Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any
manner without the prior written consent of the Seller, and
any attempted assignment or transfer in contravention of the
provisions of this Paragraph 11 will be void and of no force
or effect. Notwithstanding the preceding sentence, the terms
of Subclauses 19.5 and 19.6 of the Agreement will apply to
this Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
---------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
--------------------
Its: Treasurer
Date: October 31, 1997
LETTER AGREEMENT NO. 3
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: ADDITIONAL AIRCRAFT
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said
Agreement. The Buyer and the Seller have agreed to set forth in this Letter
Agreement No. 3 (the "Letter Agreement") certain additional terms and
conditions regarding the sale of the Aircraft. Capitalized terms used
herein and not otherwise defined in this Letter Agreement will have the
meanings assigned thereto in the Agreement. The terms "herein," "hereof"
and "hereunder" and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will
constitute an integral, nonseverable part of said Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. SCOPE
The terms and conditions set out in the Agreement will be
extended to apply for the Additional Aircraft, so long as
all deliveries for the Additional Aircraft are scheduled by
***. However, in the event that the Manufacturer's
Commercial Constraints prevent the Seller from scheduling
delivery of an Additional Aircraft by ***, such deadline
will be extended to such later delivery date relating to the
applicable Additional Aircraft.
2. DELIVERIES
Upon the Buyer's written request from time to time, the
Seller will offer the Buyer delivery positions for
Additional Aircraft by month and year subject to the
Manufacturer's Commercial Constraints and Industrial
Constraints at the time of request. ***
Delivery positions offered by the Seller for Additional
Aircraft will be held for the Buyer during the five (5)
Working Day period following the Seller's offer. The Buyer
may exercise its option to purchase each such Additional
Aircraft by written notice to the Seller and by making any
Predelivery Payment then due as set forth in Subclause
6.2.2.2 of the Agreement. ***
3. ***
3.1 ***
3.2 ***
4. ASSIGNMENT
This Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any
manner without the prior written consent of the Seller, and
any attempted assignment or transfer in contravention of the
provisions of this Paragraph 4 will be void and of no force
or effect. Notwithstanding the preceding sentence, the terms
of Subclauses 19.5 and 19.6 of the Agreement will apply to
this Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------
Its: Treasurer
Date: October 31, 1997
LETTER AGREEMENT NO. 4
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: CONVERSION RIGHTS
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said
Agreement. The Buyer and the Seller have agreed to set forth in this Letter
Agreement No. 4 (the "Letter Agreement") certain additional terms and
conditions regarding the sale of the Aircraft. Capitalized terms used
herein and not otherwise defined in this Letter Agreement will have the
meanings assigned thereto in the Agreement. The terms "herein," "hereof"
and "hereunder" and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will
constitute an integral, nonseverable part of said Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. CONVERSION RIGHT
1.1 In order to provide the Buyer with additional flexibility to
meet its future fleet mix requirements, the Seller grants
the Buyer aircraft type conversion rights under the terms
and conditions contained in this Paragraph 1 (the
"Conversion Right").
(i) The Conversion Right will grant the Buyer the right
to convert from time to time into either A319 model
aircraft, A320 model aircraft or A321 model aircraft
(a) *** scheduled to be delivered as set forth in
Clause 9 of the Agreement ***, and
(b) *** scheduled to be delivered as set forth in
Clause 9 of the Agreement.
(ii) The Conversion Right will be exercised by the Buyer
no later than
(a) ***, and
(b) ***.
The Seller will endeavor to ***, subject to (i) the
Manufacturer's then existing Commercial Constraints
and Industrial Constraints and (ii) offers to other
carriers.
Further, should the Seller or the Manufacturer or any
of their Affiliates engaged in the sale of aircraft
of the same type as the Aircraft ***.
(iii) The Conversion Right will be subject to the
Manufacturer's Commercial Constraints and Industrial
Constraints at the time the Buyer elects to exercise
its Conversion Right.
1.2 The Buyer's exercise of its Conversion Right with respect to
a particular Aircraft will result in an adjustment to the
Predelivery Payment Reference Price and Predelivery Payments
due in respect of the converted Aircraft (a "Converted
Aircraft").
If the Predelivery Payment Reference Price for a Converted
Aircraft is higher than it was for the Aircraft from which
it was converted (the "Original Aircraft"), then the
difference between the Predelivery Payments the Buyer has
paid and what it would have paid had the Converted Aircraft
been an Original Aircraft will be due within three (3)
Working Days of conversion, and conversion will be effective
when the Buyer pays such difference.
***
2. ***
***
3. ASSIGNMENT
This Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any
manner without the prior written consent of the Seller, and
any attempted assignment or transfer in contravention of the
provisions of this Paragraph 3 will be void and of no force
or effect. Notwithstanding the preceding sentence, the terms
of Subclauses 19.5 and 19.6 of the Agreement will apply to
this Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
---------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------
Its: Treasurer
Date: October 31, 1997
LETTER AGREEMENT NO. 5
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: PURCHASE INCENTIVES
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said
Agreement. The Buyer and the Seller have agreed to set forth in this Letter
Agreement No. 5 (the "Letter Agreement") certain additional terms and
conditions regarding the sale of the Aircraft. Capitalized terms used
herein and not otherwise defined in this Letter Agreement will have the
meanings assigned thereto in the Agreement. The terms "herein," "hereof"
and "hereunder" and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will
constitute an integral, nonseverable part of said Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. ***
1.1 ***
***
1.2 ***
***
1.3 ***
***
1.4. ***
***
1.5 ***
***
1.6 ***
1.7 ***
1.7.1 ***
1.7.2 ***
1.8 ***
2. ***
2.1 ***
2.1.1 ***
2.1.2 ***
2.1.3 ***
2.2 ***
3. PROPULSION SYSTEMS INCENTIVES
Except as otherwise agreed to by the Buyer and the
manufacturer of the Propulsion Systems and notified to the
Seller, the Propulsion Systems Reference Prices for the
engines and the CFM Credit are subject to escalation to the
date of delivery of the applicable Aircraft by applying the
Propulsion Systems' manufacturers' price revision formulas
(set forth in Exhibit "H" to the Agreement) and to changes
imposed by the Propulsion Systems' manufacturers.
The Buyer will negotiate directly with the Propulsion Systems'
manufacturers engine pricing, credits, escalation, and other
commercial issues. As a result of such negotiation, the
Propulsion Systems' manufacturer's price revision formula in
Exhibit "H" to this Agreement may be revised.
4. ASSIGNMENT
This Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any
manner without the prior written consent of the Seller, and
any attempted assignment or transfer in contravention of the
provisions of this Paragraph 4 will be void and of no force
or effect. Notwithstanding the preceding sentence, the terms
of Subclauses 19.5 and 19.6 of the Agreement will apply to
this Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
---------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
--------------------
Its: Treasurer
Date: October 31, 1997
LETTER AGREEMENT NO. 6
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: SPECIFICATION MATTERS
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said
Agreement. The Buyer and the Seller have agreed to set forth in this Letter
Agreement No. 6 (the "Letter Agreement") certain additional terms and
conditions regarding the sale of the Aircraft. Capitalized terms used
herein and not otherwise defined in this Letter Agreement will have the
meanings assigned thereto in the Agreement. The terms "herein," "hereof"
and "hereunder" and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will
constitute an integral, nonseverable part of said Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. ***
***
2. ***
2.1 ***
2.2 ***
3. ***
3.1 ***
3.2 ***
3.3 ***
4. AIRWORTHINESS DIRECTIVES
4.1 ***
4.2 ***
5. ***
***
6. SERVICE BULLETINS
***
7. ENGINE CHOICE
The Buyer has initially selected the CFM International
Propulsion systems to equip the Aircraft. Should the Buyer
choose at a later stage to equip the Aircraft with International
Aero Engines Propulsion Systems (the "New Propulsion Systems:),
the Seller ***.
8. ***
8.1 ***
8.2 ***
8.3 ***
9. ASSIGNMENT
This Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any
manner without the prior written consent of the Seller, and
any attempted assignment or transfer in contravention of the
provisions of this Paragraph 8 will be void and of no force
or effect. Notwithstanding the preceding sentence, the terms
of Subclauses 19.5 and 19.6 of the Agreement will apply to
this Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
-------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
Its: Treasurer
Date: October 31, 1997
LETTER AGREEMENT NO. 7
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: PRODUCT SUPPORT
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A319/A320 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, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
7 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. The terms "herein," "hereof" and "hereunder" and
words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will
constitute an integral, nonseverable part of said Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
1. PRODUCT SUPPORT RESPONSIVENESS
1.1 The Seller and the Manufacturer will promptly respond to,
and deal with, any correspondence or request from the Buyer
with respect to product support issues.
1.2 The precise contents of the product support package may be
adjusted over time, by way of exchanges within the envelope
of such package, to better match the Buyer's product support
needs.
2. WARRANTIES
2.1 Use of Credits
***
2.2 ***
2.3 ***
2.4 Vendor Warranty Period
2.4.1 ***
2.4.2 The Seller will assist the Buyer in its efforts ***.
2.5 No Fault-Found Policy
The Seller has developed a "No Fault Found Policy" covering
Vendor Parts and Seller Parts, as specified in the booklet
SG-S/921.0067/96. Such policy will not be changed
in a manner adverse to the Buyer.
3. SERVICE LIFE POLICY
3.1 The Service Life Policy period specified in Subclause 12.2.2
of the Agreement ***.
3.2 The Service Life Policy formula specified in Subclause
12.2.3 of the Agreement ***.
4. TECHNICAL PUBLICATIONS
4.1 The Buyer and the Seller agree that an integral portion of
the Technical Publications product support is the
implementation of a functioning "E-Pubs" system by the Buyer
prior to delivery of the first Aircraft. Accordingly, the
Buyer and the Seller will together devise a plan to (a) make
available to the Buyer on such "E-Pubs" system all Technical
Publications now only available on CD-ROM, (b) the Buyer and
the Seller will commit to implement "E-Pubs" as soon as
practicable, and (c) agree on the allocation of the costs
of any necessary interim implementation.
4.2 Aircraft MSG-3 analysis will be provided to the Buyer as
part of the Technical Publications package.
4.3 The Seller will provide the Buyer an interior and exterior
aircraft placards manual specifying which placards are
required for aircraft dispatch.
4.4 ***
4.5 On the Buyer's request, the Seller will provide the Buyer
certification data for specific material, including
flammability coupons, when such data is available to the
Seller.
4.6 ***
5. TRAINING
5.1 ***
5.2 ***
5.3 ***
5.4.1 At the Buyer's request, the Seller will provide the Buyer
with *** data as developed by the Seller, ***.
5.4.2 ***
5.5 The Buyer will have access to the Seller's ***.
6. MAINTENANCE PLANNING
6.1 ***
6.2 ***
7. ENTRY-INTO-SERVICE
7.1 ***, the Seller will provide the Buyer with *** Customer
Support Representatives and Maintenance Instructors ***.
7.2 The Seller and the Buyer will review the operations and
maintenance of the Buyer's aircraft fleet after the end of
the second year of the Buyer's operation of the Aircraft,
***.
8. TOOLING
8.1 Following the Initial Provisioning Conference, the Buyer
will endeavor to obtain from the relevant Vendors routine
maintenance equipment and tooling prior to the delivery of
the first Aircraft. The Seller will assist the Buyer in such
process, ***.
8.2 ***
8.3 On the reasonable request of the Buyer, the Seller will
cooperate with the Buyer in connection with the ***.
8.4 ***
9. ***
9.1 ***
9.2 ***
9.3 ***
9.4 ***
9.5 ***
10. ASSIGNMENT
This Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any
manner without the prior written consent of the Seller, and
any attempted assignment or transfer in contravention of the
provisions of this Paragraph 10 will be void and of no force
or effect. Notwithstanding the preceding sentence, the terms
of Subclauses 19.5 and 19.6 of the Agreement will apply to
this Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
Its: Treasurer
Date: October 31, 1997
LETTER AGREEMENT NO. 8A
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: A319-112 PERFORMANCE GUARANTEES
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L.
(the "Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said
Agreement. The Buyer and the Seller have agreed to set forth in this Letter
Agreement No. 8A (the "Letter Agreement") certain additional terms and
conditions regarding the sale of the Aircraft. Capitalized terms used
herein and not otherwise defined in this Letter Agreement will have the
meanings assigned thereto in the Agreement. The terms "herein," "hereof"
and "hereunder" and words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will
constitute an integral, nonseverable part of said Agreement, that the
provisions of said Agreement are hereby incorporated herein by reference,
and that this Letter Agreement will be governed by the provisions of said
Agreement, except that if the Agreement and this Letter Agreement have
specific provisions which are inconsistent, the specific provisions
contained in this Letter Agreement will govern.
The Seller, in its capacity as "Buyer" under its arrangement
with the Manufacturer, has negotiated and obtained the following
performance and weight guarantees (the "Guarantees") from the Manufacturer,
in its capacity as "Seller" with respect to the Aircraft, subject to the
terms, conditions, limitations and restrictions all as hereinafter set out.
The Seller hereby guarantees to the Buyer the performance by the
Manufacturer of the Manufacturer's obligations and assigns to the Buyer and
the Buyer hereby accepts, as to each A319 Aircraft delivered to the Buyer
under the Agreement, all of the rights and obligations of the Seller with
respect to such A319 Aircraft in the Seller's capacity as "Buyer" as
aforesaid under the said Guarantees and the Seller subrogates the Buyer
into all such rights and obligations in respect of such A319 Aircraft. The
Seller hereby warrants to the Buyer that it has all the requisite authority
to make the foregoing assignment and effect the foregoing subrogation to
and in favor of the Buyer and that it will not enter into any amendment of
the provisions so assigned or subrogated without the prior written consent
of the Buyer.
Capitalized terms used in the following quoted provisions
and not otherwise defined herein will have the meanings assigned thereto in
the Agreement except that the term "Seller" refers to the Manufacturer and
the term "Buyer" refers to the Seller (as defined in the Agreement).
QUOTE
PREAMBLE
The guarantees defined below (the "Guarantees") are applicable
to the A319 Aircraft as described in the Technical Specification
J.000.02000 Issue 3 dated 29 March 1995 amended by Specification
Change Notices for:
i) the fitting CFM International CFM 56-5B-6 propulsion systems
ii) the increase in the Maximum Take-Off Weight to 166,450 lb
(75,500 kg)
without taking into account any further changes thereto as
provided in the Agreement.
Notwithstanding the foregoing the Seller reserves the right to
increase the Design Weights above the weights shown in the
Specification in order to satisfy the Guarantees.
1 GUARANTEED PERFORMANCE
1.1 Take-off
1.1.1 FAR take-off field length at an A319 Aircraft gross weight of
166,450 lb (75,500 kg) at the start of ground run at sea level
pressure altitude at a temperature of 84(degree)F will be not
more than a guaranteed value of 8,980 feet.
1.1.2 When operated under the following conditions (representative of
PHX 08R):
Pressure altitude : 1,133 ft
Ambient temperature : 100(degree)F
Take-off run available ("TOR") : 10,300 feet
Take-off distance available : 10,300 feet
Accelerate-stop distance available : 10,300 feet
Slope : 0.20% uphill
Wind : Zero
Obstacles (height and distance : 15 feet/1,438 feet
from end of TOR) : 418 feet/17,285 feet
the maximum permissible weight at the start of ground run will
be not less than a guaranteed value of 158,250 lb.
1.1.3 When operated under the following conditions (representative of
DEN 09):
Pressure altitude : 5,431 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 12,000 feet
Take-off distance available : 12,000 feet
Accelerate-stop distance available : 12,000 feet
Slope : 0.01% uphill
Wind : Zero
Obstacles : None
the maximum permissible weight at the start of ground run will
be not less than a guaranteed value of 158,700 lb.
1.2 Second Segment
The A319 Aircraft will meet FAR 25 regulations for one engine
inoperative climb after takeoff, 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 Subparagraph 1.1.
1.3 Initial Cruise Altitude
At an A319 Aircraft gross weight of 145,000 lb in
ISA+10(degree)C conditions the pressure altitude for:
1) Level flight at a true Mach number of 0.78 using a thrust
not exceeding maximum cruise thrust
2) A rate of climb of not less than 300 ft/min at a true Mach
number of 0.78 using a thrust not exceeding maximum climb
thrust
3) A buffet maneuver margin of not less than 0.3g at a true
Mach number of 0.78
will be not less than a guaranteed value of 37,000 ft.
1.4 Speed
Level flight speed at an A319 Aircraft gross weight of 145,000
lb at a pressure altitude of 35,000 ft in ISA+10(degree)C
conditions using a thrust not exceeding maximum cruise thrust
will be not less than a guaranteed true Mach number of 0.805.
1.5 Specific Range
1.5.1 The nautical miles per pound of fuel at an A319 Aircraft gross
weight of 145,000 lb at a pressure altitude of 35,000 ft in
ISA+10(degree)C conditions at a true Mach number of 0.78 will be
not less than a guaranteed value of 0.0833 nm/lb.
1.5.2 The nautical miles per pound of fuel at an A319 Aircraft gross
weight of 140,000 lb at a pressure altitude of 37,000 ft in
ISA+10(degree)C conditions at a true Mach number of 0.78 will be
not less than a guaranteed value of 0.0867 nm/lb.
1.6 En-route One Engine Inoperative
The A319 Aircraft will meet FAR regulations minimum en-route
climb one engine inoperative and the other operating at the
maximum continuous thrust with anti-icing off at an A319
Aircraft gross weight of 145,000 lb in the cruise configuration
in ISA+10(degree)C conditions at a guaranteed pressure altitude
of not less than 16,000 ft.
1.7 Landing Field Length
1.7.1 FAR certified wet landing field length at an A319 Aircraft gross
weight of 134,480 lb (61,000 kg) at sea level pressure altitude
will be not greater than 5,720 feet.
1.7.2 FAR certified wet landing field length at an A319 Aircraft gross
weight of 134,480 lb (61,000 kg) at a pressure altitude of 5,431
ft will be not greater than 6,500 feet.
2 MISSION GUARANTEES
2.1 The A319 Aircraft will be capable of carrying a guaranteed
payload of not less than *** over a still air stage distance of
2,610 nautical miles (representative of PHL to SFO with a 65
knot headwind) when operated under the conditions defined below:
2.1.1 The departure airport conditions (representative of PHL 09R) are
as follows:
Pressure altitude : 21 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 10,499 feet
Take-off distance available : 10,499 feet
Accelerate-stop distance available : 10,499 feet
Slope : 0.10% downhill
Wind : Zero
Obstacles (height and distance : 17 feet/1,090 feet
from end of TOR) : 57 feet/4,306 feet
: 178 feet/9,500 feet
The destination airport conditions are such as to allow the
required landing weight to be used without restriction. Pressure
altitude is 11 feet.
2.1.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.1.3 An allowance of 505 lb of fuel is included for take-off and
climb to 1,500 ft above the departure airport at 84(degree)F
with acceleration to climb speed.
2.1.4 Climb from 1,500 ft above the departure airport up to cruise
altitude using maximum climb thrust and cruise at a fixed Mach
number of 0.78 at pressure altitudes of 35,000 ft and 39,000 ft
and descent to 1,500 ft above the destination airport are
conducted in ISA+10(degree)C conditions. Climb and descent
speeds below 10,000 ft will be 250 knots CAS.
2.1.5 An allowance of 190 lb of fuel is included for approach and land
at the destination airport.
2.1.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.1.4 above.
2.1.7 At the end of approach and land 7,110 lb of fuel will remain in
the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.2 The A319 Aircraft will be capable of carrying a guaranteed
payload of not less than *** over a still air stage distance of
1,545 nautical miles (representative of STT to PHL with a 37
knot headwind) when operated under the conditions defined below:
2.2.1 The departure airport conditions (representative of STT 10) are
as follows:
Pressure altitude : 24 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 7,000 feet
Take-off distance available : 7,000 feet
Accelerate-stop distance available : 7,000 feet
Slope : 0.20% downhill
Wind : Zero
Obstacle (height and distance : 17 feet/2,083 feet
from end of TOR)
The destination airport conditions are such as to allow the
required landing weight to be used without restriction. Pressure
altitude is 21 feet.
2.2.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.2.3 An allowance of 445 lb of fuel is included for take-off and
climb to 1,500 ft above the departure airport at 84(degree)F
with acceleration to climb speed.
2.2.4 Climb from 1,500 ft above the departure airport up to cruise
altitude using maximum climb thrust and cruise at a fixed Mach
number of 0.78 at pressure altitudes of 35,000 ft and 39,000 ft
and descent to 1,500 ft above the destination airport are
conducted in ISA+10(degree)C conditions. Climb and descent
speeds below 10,000 ft will be 250 knots CAS.
2.2.5 An allowance of 200 lb of fuel is included for approach and land
at the destination airport.
2.2.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.2.4 above.
2.2.7 At the end of approach and land 7,140 lb of fuel will remain in
the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.3 In carrying a fixed payload of 26,760 lb over a still air stage
distance of 2,000 nautical miles when operated under the
conditions defined below the Block Fuel will be not more than a
guaranteed value of ***.
2.3.1 The departure airport conditions are such as to allow the
required take-off weight to be used without restriction.
The destination airport conditions are such as to allow the
required landing weight to be used without restriction.
2.3.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.3.3 An allowance of 430 lb of fuel is included for take-off and
climb to 1,500 ft pressure altitude with acceleration to climb
speed at a temperature of 84(degree)F.
2.3.4 Climb from 1,500 ft pressure altitude up to cruise altitude
using maximum climb thrust and cruise at a fixed Mach number of
0.78 at pressure altitudes of 35,000 ft and 39,000 ft and
descent to 1,500 ft pressure altitude are conducted in
ISA+10(degree)C conditions. Climb and descent speeds below 10,000
ft will be 250 knots CAS.
2.3.5 An allowance of 200 lb of fuel is included for approach and
landing at the destination airport.
2.3.6 An allowance of 70 lb of fuel is included for taxi at the
destination airport.
2.3.7 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.3.4 above.
Block Fuel is defined as the fuel burnt during taxi, take-off,
climb, cruise, descent and approach and landing as described in
Subparagraphs 2.3.2 to 2.3.6 inclusive.
2.3.8 At the end of approach and landing 6,890 lb of fuel will remain
in the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft pressure altitude above the destination
airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.4 The A319 Aircraft will be capable of carrying a fixed payload of
*** over a guaranteed still air stage distance of not less than
*** nautical miles when operated under the conditions
defined below:
2.4.1 The departure airport conditions are such as to allow the
required take-off weight to be used without restriction.
The destination airport conditions are such as to allow the
required landing weight to be used without restriction.
2.4.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.4.3 An allowance of 490 lb of fuel is included for take-off and
climb to 1,500 ft pressure altitude with acceleration to climb
speed in ISA+10(degree)C conditions.
2.4.4 Climb from 1,500 ft pressure altitude up to cruise altitude
using maximum climb thrust and cruise at a fixed Mach number of
0.78 at pressure altitudes of 35,000 ft and 39,000 ft and
descent to 1,500 ft pressure altitude are conducted in
ISA+10(degree)C conditions. Climb and descent speeds below 10,000
ft will be 250 knots CAS.
2.4.5 An allowance of 200 lb of fuel is included for approach and
landing at the destination airport.
2.4.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.4.4 above.
2.4.7 At the end of approach and landing 7,080 lb of fuel will remain
in the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft pressure altitude above the destination
airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.5 The A319 Aircraft will be capable of carrying a fixed payload of
*** a guaranteed still air stage distance of not less than
*** when operated under the conditions defined below:
2.5.1 The departure airport conditions are such as to allow the
required take-off weight to be used without restriction.
The destination airport conditions are such as to allow the
required landing weight to be used without restriction.
2.5.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.5.3 An allowance of 470 lb of fuel is included for take-off and
climb to 1,500 ft pressure altitude with acceleration to climb
speed in ISA+10(degree)C conditions.
2.5.4 Climb from 1,500 ft pressure altitude up to cruise altitude
using maximum climb thrust and cruise at a fixed Mach number of
0.78 at pressure altitudes of 35,000 ft and 39,000 ft and
descent to 1,500 ft pressure altitude are conducted in
ISA+10(degree)C conditions. Climb and
descent speeds below 10,000 ft will be 250 knots CAS.
2.5.5 An allowance of 200 lb of fuel is included for approach and
landing at the destination airport.
2.5.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.5.4 above.
2.5.7 At the end of approach and landing 6,890 lb of fuel will remain
in the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft pressure altitude above the destination
airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.6 The mission payload guarantee defined in Subparagraph 2.1 and
the mission fuel burn guarantee defined in Subparagraph 2.3 and
the mission ranges defined in Subparagraphs 2.4 and 2.5 are
based on the Buyer's Manufacturer's Weight Empty as defined in
Subparagraph 3.3 below plus a fixed allowance of 10,730 lb for
Customer Changes and Operators Items.
The mission payload guarantee defined in Subparagraph 2.2 is
based on the Buyer's Manufacturer's Weight Empty as defined in
Subparagraph 3.3 below plus a fixed allowance of 12,230 lb for
Customer Changes and Operators Items.
3 MANUFACTURER'S WEIGHT EMPTY AND USABLE LOAD
--------------------------------------------
3.1 The Seller guarantees a Buyer's Manufacturer's Weight Empty
of ***.
3.2 The Seller guarantees that the difference between the Buyer's
Manufacturer's Weight Empty and the Maximum Zero Fuel Weight
will be not less than ***.
3.3 For the purposes of this Paragraph 3 and of Subparagraph 2.6
above the Buyer's Manufacturer's Weight Empty is the
Manufacturer's Weight Empty defined in Section 13- 10.00.00 of
the Specification amended by the Specification Changes defined
in the Preamble to this Letter Agreement and is subject to
adjustment as defined in Subparagraph 7.2.
For information only an analysis of the Buyer's Manufacturer's
Weight Empty, Customer Changes, Operators Items and Operating
Weight Empty is shown in Appendix A to this Letter Agreement.
4 NOISE
4.1 External
4.1.1 The Seller guarantees that the A319 Aircraft will be certified
in accordance with FAR Part 36 Noise Standards, issue 1988,
including Amendment 36-15, Stage 3. The applicable noise limits
are as defined in paragraphs 36.201 and c36.5 (3).
4.1.2 ***
4.1.3 ***
4.2 Internal
4.2.1 Cockpit noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.78
in still air under ISA conditions, the guaranteed A-Weighted
Sound Pressure Level (SPL) will not exceed *** and
the Speech Interference Level (SIL) will not exceed ***.
4.2.2 Cabin noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.78
in still air under ISA conditions, the guaranteed A-Weighted
Sound Pressure Level (SPL) and the Speech Interference Level
(SIL) will be as follows:
- the A-Weighted SPL will not exceed *** over the whole seating
area.
- the SIL will not exceed *** along the front 40% of the
passenger compartment and will not exceed *** along the
remaining 60% of the passenger compartment length.
4.2.3 On the ground and under the conditions defined in Subparagraph
5.9 below the noise levels in the passenger compartment with
passenger doors open or closed the A-weighted Sound Pressure
Level ("SPL") will not exceed *** and the Speech Interference
Level ("SIL") will
not exceed ***.
5 GUARANTEE CONDITIONS
5.1 The performance and noise certification requirements for the
A319 Aircraft, except where otherwise noted, will be as stated
in Section 02 of the Specification.
5.2 For the determination of FAR take-off and landing performance a
hard level dry runway surface with no runway strength
limitations, no obstacles, zero wind, atmosphere according to
ISA, except as otherwise noted and the use of speedbrakes,
flaps, landing gear and engines in the conditions liable to
provide the best results will be assumed.
When establishing take-off and second segment performance no air
will be bled from the engines for cabin air conditioning or
anti-icing.
5.3 The en-route one engine inoperative climb performance will be
established with the amount of engine air bleed associated with
the maximum cabin altitude as specified in Section 21- 30.32 of
the Specification and an average ventilation rate not less than
the amount defined in the Specification but no air will be bled
from the engines for anti-icing.
5.4 Climb, cruise and descent performance associated with the
Guarantees will include allowances for normal electrical load
and for normal engine air bleed and power extraction associated
with maximum cabin differential pressure as defined in Section
21-30.31 of the Specification. Cabin air conditioning management
during performance demonstration as described in Subparagraph
6.3 below may be such as to optimize the A319 Aircraft
performance while meeting the minimum air conditioning
requirements defined above. Unless otherwise stated no air will
be bled from the engines for anti-icing.
5.5 The engines will be operated using not more than the engine
manufacturer's maximum recommended outputs for take-off, maximum
go-round, maximum continuous, maximum climb and cruise for
normal operation unless otherwise stated.
5.6 Where applicable the Guarantees assume the use of an approved
fuel having a density of 6.7 lb/US gallon and a lower heating
value of 18,590 BTU/lb.
5.7 Speech interference level (SIL) is defined as the arithmetic
average of the sound pressure levels in the 1,000, 2,000, and
4,000 Hz octave bands. A-weighted sound level (dBA) is as
defined in the American National Standard Specification
ANSI.4-1971. ***
5.8 The sound levels guaranteed in Subparagraph 4.2
i) will be measured at the positions defined in Section
03-83.10 of the Specification
ii) refer to an A319 Aircraft with standard acoustic insulation
and an interior completely furnished. The effect on noise
of Buyer Furnished Equipment other than passenger seats
will be the responsibility of the Buyer.
5.9 For the purposes of the sound levels guaranteed in Subparagraph
4.2.3 the APU and air conditioning system will be operating.
Sound level measurements may be made at the prevailing ambient
temperature with the air conditioning packs controlled to
approximate air conditioning machinery rotational speed
appropriate to an ambient temperature of 25(degree)C.
6 GUARANTEE COMPLIANCE
6.1 Compliance with the Guarantees will be demonstrated using
operating procedures and limitations in accordance with those
defined by the certifying Airworthiness Authority and
by the Seller unless otherwise stated.
6.2 Compliance with the take-off, second segment, en-route one
engine inoperative, landing and certified noise elements of the
Guarantees will be demonstrated with reference to the
approved Flight Manual.
6.3 Compliance with those parts of the Guarantees defined in
Paragraphs 1 and 2 above not covered by the requirements of the
certifying Airworthiness Authority will be demonstrated by
calculation based on data obtained during flight tests conducted
on one (or more, as agreed between the Buyer and the Seller)
A319 aircraft of the same aerodynamic configuration as those
A319 Aircraft purchased by the Buyer.
6.4 Compliance with the Manufacturer's Weight Empty and Usable Load
guarantees defined in Paragraph 3 will be demonstrated with
reference to a weight compliance report.
6.5 Compliance with the mission guarantees defined in Paragraph 2
will be demonstrated with reference to the weight compliance
report described in Subparagraph 6.4.
6.6 Compliance with the guarantees defined in Subparagraphs 4.1.2
and 4.1.3 will be based on data collected for noise
certification purposes. ***
6.7 Compliance with the noise guarantees defined in Subparagraph 4.2
will be demonstrated with reference to noise surveys conducted
on one (or more, at the Seller's discretion) A319 aircraft of an
acoustically similar standard as the A319 Aircraft.
6.8 Data derived from tests and noise surveys will be adjusted as
required using conventional methods of correction, interpolation
or extrapolation in accordance with established aeronautical
practices to show compliance with the Guarantees.
6.9 Compliance with the Guarantees is not contingent on engine
performance defined in the engine manufacturer's specification.
6.10 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 A319
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 A319 Aircraft configuration or
performance or both required to obtain certification the
Guarantees will be appropriately modified to reflect the effect
of any such change.
7.2 The Guarantees apply to the A319 Aircraft as described in the
Preamble to this Letter Agreement and may be adjusted in the
event of:
a) Any further configuration change which is the subject of a
SCN
b) Variation in actual weights of items defined in Section
13-10 of the Specification
c) Changes required to obtain certification which cause changes
to the performance or weight of the A319 Aircraft
8 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and
all other performance and weight guarantees of any nature which
may be stated, referenced or incorporated in the Specification or
any other document.
9 UNDERTAKING; REMEDIES
***
If a deficiency is shown to exist the Seller may develop and
install a fix to correct such deficiency. The delay period to
correct such deficiency will not exceed *** of the affected
A319 Aircraft.
If such a deficiency is not corrected as set forth in the
immediately preceding paragraph the Seller will, *** in respect
of such deficient A319 Aircraft pay to the Buyer by way of
liquidated damages on the anniversary date of the delivery the
following amounts:
i) *** per pound deficient resulting from the average of the
deviations from the guaranteed payloads and/or
ii) *** per pound deficient of guaranteed Manufacturer's Weight
Empty and/or
iii) *** per one percent deficiency resulting from the average
of the deviations from the guaranteed Specific Ranges defined in
Subparagraph 1.5 and the guaranteed Fuel Burn defined in
Subparagraph 2.2 (parts of a percentage to be prorated).
Damages will be computed on the basis of the figures defined in
(i) and (ii) above and will be paid ***.
The Seller's maximum liability in respect of all deficiencies in
performance of any A319 Aircraft will be limited to the payment
of liquidated damages *** for each A319 Aircraft whichever
occurs first. Payment of liquidated damages as aforesaid will be
deemed to settle any and all claims and remedies of the Buyer
against the Seller in respect of performance deficiencies.
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Letter Agreement in favor of the Buyer in respect of
the Seller's rights against and obligations to the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer
and Seller recognize and agree that, except as otherwise
expressly provided in Paragraph 8 of this Letter Agreement, all
the provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations
of Liability and Duplicate Remedies therein contained, will
apply to the foregoing performance guarantees.
ASSIGNMENT
This Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any
manner without the prior written consent of the Seller, and any
attempted assignment or transfer in contravention of the
provisions of this paragraph will be void and of no force or
effect. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this
Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
--------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
Its: Treasurer
Date: October 31, 1997
1 Manufacturer's Weight Empty and Operating Weight Empty
At the time of this Agreement the Buyer's Manufacturer's Weight
Empty and the Operating Weight Empty for the purposes of
Subparagraphs 2.6 and Paragraph 3 of this Letter Agreement
are defined as follows:
Manufacturer's Weight Empty as defined in the
Specification Reference J 000.02000 Issue 3 : 79,642 lb
Specification Change for the fitting of CFM56-5B6
engines : 611 lb
Specification Change for the increase in Design Weights : 0 lb
-----------
Buyer's Manufacturer's Weight Empty according to the
Preamble of this Letter Agreement and for the purposes
of Subparagraph 2.6 and Paragraph 3 of this Letter
Agreement : ***
Specification changes as defined in Subparagraph 2.1
of this Appendix A (including USAir livery) : 1,165 lb
Operators Items as defined in Subparagraph 2.2.1 of
this Appendix A : 9,566 lb
-----------
Operating Weight Empty of the A319 Aircraft for the
purposes of Subparagraphs 2.1 and 2.3 to 2.5 inclusive
of this Letter Agreement : 90,984 lb
Operators items as defined in Subparagraph 2.2.2 of
this Appendix A : 11,066 lb
-----------
Operating Weight Empty of the A319 Aircraft for the
purposes of Subparagraphs 2.2 of this Letter Agreement : 92,484 lb
*Note As of the date hereof the Operating Weight Empty has not been
completely defined. The payloads, fuel burn and ranges guaranteed
in Paragraph 2 are based on the estimated Operating Weight Empty as
shown above.
2 Specification Changes and Operators Items
2.1 Weight of Specification Changes
As of the date of this draft the complete list of USAir
Specification Changes is unknown.
It is estimated that the weight of such Specification
Changes is: : 1,105 lb
USAir livery : 60 lb
2.2 Weights of Operators Items
Oil for engines and APU : 117 lb
Unusable fuel : 143 lb
Water for galleys and toilets : 441 lb
Waste tank pre-charge : 29 lb
A319 Aircraft documents and tool kits : 42 lb
Passenger seats and life jackets : 3,504 lb
Phone equipment : 170 lb
Galley structure and fixed equipment : 1,225 lb
Chillers : 195 lb
Catering and service equipment : 1,938 lb
Cabin supplies : 180 lb
Emergency equipment : 542 lb
Crew and bags : 1,040 lb
-----------
2.2.1 Total Operators Items for the purposes of Subparagraphs
and 2.3 to 2.5 inclusive of this Letter Agreement : 9,566 lb
Additional items for over water operation : 1,500 lb
-----------
2.2.2 Total Operators Items for the purposes of
Subparagraph 2.2 of this Letter Agreement : 11,066 lb
LETTER AGREEMENT NO. 8B
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: A320-214 PERFORMANCE GUARANTEES
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
8B (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. The terms "herein," "hereof" and "hereunder" and
words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, in its capacity as "Buyer" under its arrangement with
the Manufacturer, has negotiated and obtained the following performance and
weight guarantees (the "Guarantees") from the Manufacturer, in its capacity
as "Seller" with respect to the A320 Aircraft, subject to the terms,
conditions, limitations and restrictions all as hereinafter set out. The
Seller hereby guarantees to the Buyer the performance by the Manufacturer
of the Manufacturer's obligations and assigns to the Buyer and the Buyer
hereby accepts, as to each A320 Aircraft delivered to the Buyer under the
Agreement, all of the rights and obligations of the Seller with respect to
such A320 Aircraft in the Seller's capacity as "Buyer" as aforesaid under
the said Guarantees and the Seller subrogates the Buyer into all such
rights and obligations in respect of such A320 Aircraft. The Seller hereby
warrants to the Buyer that it has all the requisite authority to make the
foregoing assignment and effect the foregoing subrogation to and in favor
of the Buyer and that it will not enter into any amendment of the
provisions so assigned or subrogated without the prior written consent of
the Buyer.
Capitalized terms used in the following quoted provisions and not
otherwise defined herein will have the meanings assigned thereto in the
Agreement except that the term "Seller" refers to the Manufacturer and the
term "Buyer" refers to the Seller (as defined in the Agreement).
QUOTE
PREAMBLE
The guarantees defined below (the "Guarantees") are applicable
to the A320 Aircraft as described in the Technical Specification
D.000.02000 Issue 4 dated 30 March 1995 amended by Specification
Change Notices for:
i) the fitting CFM International CFM 56-5B-4 (with Enhanced
Take-Off rating) propulsion systems
ii) the increase in the Maximum Take-Off Weight to 169,750 lb
(77,000 kg)
without taking into account any further changes thereto as
provided in the Agreement.
Notwithstanding the foregoing the Seller reserves the right to
increase the Design Weights above the weights shown in the
Specification in order to satisfy the Guarantees.
1 GUARANTEED PERFORMANCE
1.1 Take-off
1.1.1 FAR take-off field length at an A320 Aircraft gross weight of
169,750 lb (77,000 kg) at the start of ground run at sea level
pressure altitude at a temperature of 84(degree)F will be not more
than a guaranteed value of 7,420 feet.
1.1.2 When operated under the following conditions (representative of PHX
08R):
Pressure altitude : 1,133 ft
Ambient temperature : 100(degree)F
Take-off run available ("TOR") : 10,300 feet
Take-off distance available : 10,300 feet
Accelerate-stop distance available : 10,300 feet
Slope : 0.20% uphill
Wind : Zero
Obstacles (height and distance : 15 feet/1,438 feet
from end of TOR) : 418 feet/17,285 feet
the maximum permissible weight at the start of ground run will
be not less than a guaranteed value of 166,850 lb.
1.1.3 When operated under the following conditions (representative of DEN
09):
Pressure altitude : 5,431 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 12,000 feet
Take-off distance available : 12,000 feet
Accelerate-stop distance available : 12,000 feet
Slope : 0.01% uphill
Wind : Zero
Obstacles : None
the maximum permissible weight at the start of ground run will
be not less than a guaranteed value of 165,900 lb.
1.2 Second Segment
The A320 Aircraft will meet FAR 25 regulations for one engine
inoperative climb after takeoff, 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 Subparagraph 1.1.
1.3 Initial Cruise Altitude
At an A320 Aircraft gross weight of 160,000 lb in
ISA+10(degree)C conditions the pressure altitude for:
1) Level flight at a true Mach number of 0.78 using a thrust
not exceeding maximum cruise thrust
2) A rate of climb of not less than 300 ft/min at a true Mach
number of 0.78 using a thrust not exceeding maximum climb
thrust
3) A buffet maneuver margin of not less than 0.3g at a true
Mach number of 0.78
will be not less than a guaranteed value of 35,000 ft.
1.4 Speed
Level flight speed at an A320 Aircraft gross weight of 160,000
lb at a pressure altitude of 35,000 at in ISA+10(degree)C
conditions using a thrust not exceeding maximum cruise thrust
will be not less than a guaranteed true Mach number of 0.790.
1.5 Specific Range
1.5.1 The nautical miles per pound of fuel at an A320 Aircraft gross
weight of 155,000 lb at a pressure altitude of 35,000 ft in
ISA+10(degree)C conditions at a true Mach number of 0.78 will be
not less than a guaranteed value of 0.0783 nm/lb.
1.5.2 The nautical miles per pound of fuel at an A320 Aircraft gross
weight of 145,000 lb at a pressure altitude of 37,000 ft in
ISA+10(degree)C conditions at a true Mach number of 0.78 will be
not less than a guaranteed value of 0.0839 nm/lb.
1.6 En-route One Engine Inoperative
The A320 Aircraft will meet FAR regulations minimum en-route
climb one engine inoperative and the other operating at the
maximum continuous thrust with anti-icing off at an A320
Aircraft gross weight of 155,000 lb in the cruise configuration
in ISA+10(degree)C conditions at a guaranteed pressure altitude
of not less than 14,500 ft.
1.7 Landing Field Length
1.7.1 FAR certified wet landing field length at an A320 Aircraft gross
weight of 142,200 lb (64,500 kg) at sea level pressure altitude
will be not greater than 6,040 feet.
1.7.2 FAR certified wet landing field length at an A320 Aircraft gross
weight of 142,200 lb (64,500 kg) at a pressure altitude of 5,431
ft will be not greater than 6,800 feet.
2 MISSION GUARANTEES
2.1 The A320 Aircraft will be capable of carrying a guaranteed
payload of not less than *** over a still air stage distance of
2,610 nautical miles (representative of PHL to SFO with a 65
knot headwind) when operated under the conditions defined below:
2.1.1 The departure airport conditions (representative of PHL 09R) are as
follows:
Pressure altitude : 21 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 10,499 feet
Take-off distance available : 10,499 feet
Accelerate-stop distance available : 10,499 feet
Slope : 0.10% downhill
Wind : Zero
Obstacles (height and distance : 17 feet/1,090 feet
from end of TOR) : 57 feet/4,306 feet
: 178 feet/9,500 feet
The destination airport conditions are such as to allow the
required landing weight to be used without restriction. Pressure
altitude is 11 feet.
2.1.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.1.3 An allowance of 520 lb of fuel is included for take-off and
climb to 1,500 ft above the departure airport at 84(degree)F
with acceleration to climb speed.
2.1.4 Climb from 1,500 ft above the departure airport up to cruise
altitude using maximum climb thrust and cruise at a fixed Mach
number of 0.78 at pressure altitudes of 35,000 ft and 39,000 ft
and descent to 1,500 ft above the destination airport are
conducted in ISA+10(degree)C conditions. Climb and descent
speeds below 10,000 ft will be 250 knots CAS.
2.1.5 An allowance of 180 lb of fuel is included for approach and land
at the destination airport.
2.1.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.1.4 above.
2.1.7 At the end of approach and land 7,210 lb of fuel will remain in
the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.2 The A320 Aircraft will be capable of carrying a guaranteed
payload of not less than *** over a still air stage distance of
1,545 nautical miles (representative of STT to PHL with a 37
knot headwind) when operated under the conditions defined below:
2.2.1 The departure airport conditions (representative of STT 10) are
as follows:
Pressure altitude : 24 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 7,000 feet
Take-off distance available : 7,000 feet
Accelerate-stop distance available : 7,000 feet
Slope : 0.20% downhill
Wind : Zero
Obstacle (height and distance : 17 feet/2,083 feet
from end of TOR)
The destination airport conditions are such as to allow the
required landing weight to be used without restriction. Pressure
altitude is 21 feet.
2.2.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.2.3 An allowance of 500 lb of fuel is included for take-off and
climb to 1,500 ft above the departure airport at 84(degree)F
with acceleration to climb speed.
2.2.4 Climb from 1,500 ft above the departure airport up to cruise
altitude using maximum climb thrust and cruise at a fixed Mach
number of 0.78 at a pressure altitude of 35,000 ft and descent
to 1,500 ft above the destination airport are conducted in
ISA+10(degree)C conditions. Climb and descent speeds below
10,000 ft will be 250 knots CAS.
2.2.5 An allowance of 190 lb of fuel is included for approach and land
at the destination airport.
2.2.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.2.4 above.
2.2.7 At the end of approach and land 7,500 lb of fuel will remain in
the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.3 In carrying a fixed payload of 31,665 lb over a still air stage
distance of 2,000 nautical miles when operated under the
conditions defined below the Block Fuel will be not more than a
guaranteed value of ***.
2.3.1 The departure airport conditions are such as to allow the
required take-off weight to be used without restriction.
The destination airport conditions are such as to allow the
required landing weight to be used without restriction.
2.3.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.3.3 An allowance of 470 lb of fuel is included for take-off and
climb to 1,500 ft pressure altitude with acceleration to climb
speed at a temperature of 84(degree)F.
2.3.4 Climb from 1,500 ft pressure altitude up to cruise altitude
using maximum climb thrust and cruise at a fixed Mach number of
0.78 at a pressure altitude of 35,000 ft and descent to 1,500 ft
pressure altitude are conducted in ISA+10(degree)C conditions.
Climb and descent speeds below 10,000 ft will be 250 knots CAS.
2.3.5 An allowance of 190 lb of fuel is included for approach and
landing at the destination airport.
2.3.6 An allowance of 70 lb of fuel is included for taxi at the
destination airport.
2.3.7 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.3.4 above.
Block Fuel is defined as the fuel burnt during taxi, take-off,
climb, cruise, descent and approach and landing as described in
Subparagraphs 2.3.2 to 2.3.6 inclusive.
2.3.8 At the end of approach and landing 7,190 lb of fuel will remain
in the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft pressure altitude.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.4 The A320 Aircraft will be capable of carrying a fixed payload of
38,700 lb over a guaranteed still air stage distance of not less
than *** nautical miles when operated under the conditions
defined below:
2.4.1 The departure airport conditions are such as to allow the
required take-off weight to be used without restriction.
The destination airport conditions are such as to allow the
required landing weight to be used without restriction.
2.4.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.4.3 An allowance of 510 lb of fuel is included for take-off and
climb to 1,500 ft pressure altitude with acceleration to climb
speed in ISA+10(degree)C conditions.
2.4.4 Climb from 1,500 ft pressure altitude up to cruise altitude
using maximum climb thrust and cruise at a fixed Mach number of
0.78 at a pressure altitudes of 35,000 ft and descent to 1,500
ft pressure altitude are conducted in ISA+10(degree)C
conditions. Climb and descent speeds below 10,000 ft will be 250
knots CAS.
2.4.5 An allowance of 190 lb of fuel is included for approach and
landing at the destination airport.
2.4.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.4.4 above.
2.4.7 At the end of approach and landing 7,490 lb of fuel will remain
in the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft pressure altitude above the destination
airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.5 The A320 Aircraft will be capable of carrying a fixed payload of
31,665 lb over a guaranteed still air stage distance of not less
than *** when operated under the conditions defined
below:
2.5.1 The departure airport conditions are such as to allow the
required take-off weight to be used without restriction.
The destination airport conditions are such as to allow the
required landing weight to be used without restriction.
2.5.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.5.3 An allowance of 500 lb of fuel is included for take-off and
climb to 1,500 ft pressure altitude with acceleration to climb
speed in ISA+10(degree)C conditions.
2.5.4 Climb from 1,500 ft pressure altitude up to cruise altitude
using maximum climb thrust and cruise at a fixed Mach number of
0.78 at a pressure altitude of 35,000 ft and descent to 1,500 ft
pressure altitude are conducted in ISA+10(degree)C conditions.
Climb and descent speeds below 10,000 ft will be 250 knots CAS.
2.5.5 An allowance of 190 lb of fuel is included for approach and
landing at the destination airport.
2.5.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.5.4 above.
2.5.7 At the end of approach and landing 7,190 lb of fuel will remain
in the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft pressure altitude above the destination
airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.6 The mission payload guarantee defined in Subparagraph 2.1 and
the mission fuel burn guarantee defined in Subparagraph 2.3 and
the mission range guarantees defined in Subparagraphs 2.4 and
2.5 are based on the Buyer's Manufacturer's Weight Empty as
defined in Subparagraph 3.3 below plus a fixed allowance of
11,970 lb for Customer Changes and
Operators Items.
The mission payload guarantee defined in Subparagraph 2.2 is
based on the Buyer's Manufacturer's Weight Empty as defined in
Subparagraph 3.3 below plus a fixed allowance of 13,470 lb for
Customer Changes and Operators Items.
3 MANUFACTURER'S WEIGHT EMPTY AND USABLE LOAD
3.1 The Seller guarantees a Buyer's Manufacturer's Weight Empty
of ***.
3.2 The Seller guarantees that the difference between the Buyer's
Manufacturer's Weight Empty and the Maximum Zero Fuel Weight
will be not less than ***.
3.3 For the purposes of this Paragraph 3 and of Subparagraph 2.6
above the Buyer's Manufacturer's Weight Empty is the
Manufacturer's Weight Empty defined in Section 13- 10.00.00 of
the Specification amended by the Specification Changes defined
in the Preamble to this Letter Agreement and is subject to
adjustment as defined in Subparagraph 7.2.
For information only an analysis of the Buyer's Manufacturer's
Weight Empty, Customer Changes, Operators Items and Operating
Weight Empty is shown in Appendix A to this Letter Agreement.
4 NOISE
4.1 External
4.1.1 The Seller guarantees that the A320 Aircraft will be certified
in accordance with FAR Part 36 Noise Standards, issue 1978,
including Amendment 36-15, Stage 3. The applicable noise limits
are as defined in paragraphs 36.201 and c36.5 (3).
4.1.2 ***
4.1.3 ***
4.2 Internal
4.2.1 Cockpit noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.78
in still air under ISA conditions, the guaranteed A-Weighted
Sound Pressure Level (SPL) will not exceed *** and
the Speech Interference Level (SIL) will not exceed ***.
4.2.2 Cabin noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.78
in still air under ISA conditions, the guaranteed A-Weighted
Sound Pressure Level (SPL) and the Speech Interference Level
(SIL) will be as follows:
- the A-Weighted SPL will not exceed *** over the whole seating
area.
- the SIL will not exceed *** along the front 40% of the
passenger compartment and will not exceed *** along the
remaining 60% of the passenger compartment length.
4.2.3 On the ground and under the conditions defined in Subparagraph
5.9 below the noise levels in the passenger compartment with
passenger doors open or closed the A-weighted Sound Pressure
Level ("SPL") will not exceed *** and the Speech Interference
Level ("SIL") will
not exceed ***.
5 GUARANTEE CONDITIONS
5.1 The performance and noise certification requirements for the
A320 Aircraft, except where otherwise noted, will be as stated
in Section 02 of the Specification.
5.2 For the determination of FAR take-off and landing performance a
hard level dry runway surface with no runway strength
limitations, no obstacles, zero wind, atmosphere according to
ISA, except as otherwise noted and the use of speedbrakes,
flaps, landing gear and engines in the conditions liable to
provide the best results will be assumed.
5.2.1 When establishing take-off and second segment performance no air
will be bled from the engines for cabin air conditioning or
anti-icing.
5.3 The en-route one engine inoperative climb performance will be
established with the amount of engine air bleed associated with
the maximum cabin altitude as specified in Section 21- 30.32 of
the Specification and an average ventilation rate not less than
the amount defined in the Specification but no air will be bled
from the engines for anti-icing.
5.4 Climb, cruise and descent performance associated with the
Guarantees will include allowances for normal electrical load
and for normal engine air bleed and power extraction associated
with maximum cabin differential pressure as defined in Section
21-30.31 of the Specification. Cabin air conditioning management
during performance demonstration as described in Subparagraph
6.3 below may be such as to optimize the A320 Aircraft
performance while meeting the minimum air conditioning
requirements defined above. Unless otherwise stated no air will
be bled from the engines for anti-icing.
5.5 The engines will be operated using not more than the engine
manufacturer's maximum recommended outputs for take-off, maximum
go-round, maximum continuous, maximum climb and cruise for
normal operation unless otherwise stated.
5.6 Where applicable the Guarantees assume the use of an approved
fuel having a density of 6.7 lb/US gallon and a lower heating
value of 18,590 BTU/lb.
5.7 Speech interference level (SIL) is defined as the arithmetic
average of the sound pressure levels in the 1,000, 2,000, and
4,000 Hz octave bands. A-weighted sound level (dBA) is as
defined in the American National Standard Specification
ANSI.4-1971. ***
5.8 The sound levels guaranteed in Subparagraph 4.2:
i) will be measured at the positions defined in Section
03-83.10 of the Specification
ii) refer to an A320 Aircraft with standard acoustic insulation
and an interior completely furnished. The effect on noise of
Buyer Furnished Equipment other than passenger seats
will be the responsibility of the Buyer.
5.9 For the purposes of the sound levels guaranteed in Subparagraph
4.2.3 the APU and air conditioning system will be operating.
Sound level measurements may be made at the prevailing ambient
temperature with the air conditioning packs controlled to
approximate air conditioning machinery rotational speed
appropriate to an ambient temperature of 25(degree)C.
6 GUARANTEE COMPLIANCE
6.1 Compliance with the Guarantees will be demonstrated using
operating procedures and limitations in accordance with those
defined by the certifying Airworthiness Authority and
by the Seller unless otherwise stated.
6.2 Compliance with the take-off, second segment, en-route one
engine inoperative, landing and certified noise elements of the
Guarantees will be demonstrated with reference to the
approved Flight Manual.
6.3 Compliance with those parts of the Guarantees defined in
Paragraphs 1 and 2 above not covered by the requirements of the
certifying Airworthiness Authority will be demonstrated by
calculation based on data obtained during flight tests conducted
on one (or more, as agreed between the buyer and the Seller)
A320 aircraft of the same aerodynamic configuration as those
A320 Aircraft purchased by the Buyer.
6.4 Compliance with the Manufacturer's Weight Empty and Usable Load
guarantees defined in Paragraph 3 will be demonstrated with
reference to a weight compliance report.
6.5 Compliance with the mission guarantees defined in Paragraph 2
will be demonstrated with reference to the weight compliance
report described in Subparagraph 6.4.
6.6 Compliance with the guarantees defined in Subparagraphs 4.1.2
and 4.1.3 will be based on data collected for noise
certification purposes. ***
6.7 Compliance with the noise guarantees defined in Subparagraph 4.2
will be demonstrated with reference to noise surveys conducted
on one (or more, at the Seller's discretion) A320 aircraft of an
acoustically similar standard as the A320 Aircraft.
6.8 Data derived from tests and noise surveys will be adjusted as
required using conventional methods of correction, interpolation
or extrapolation in accordance with established aeronautical
practices to show compliance with the Guarantees.
6.9 Compliance with the Guarantees is not contingent on engine
performance defined in the engine manufacturer's specification.
6.10 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 A320
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 A320 Aircraft configuration or
performance or both required to obtain certification the
Guarantees will be appropriately modified to reflect the effect
of any such change.
7.2 The Guarantees apply to the A320 Aircraft as described in the
Preamble to this Letter Agreement and may be adjusted in the
event of:
a) Any further configuration change which is the subject of a
SCN
b) Variation in actual weights of items defined in Section
13-10 of the Specification
c) Changes required to obtain certification which cause changes
to the performance or weight of the A320 Aircraft
8 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and
all other performance and weight guarantees of any nature which
may be stated, referenced or incorporated in the
Specification or any other document.
9 UNDERTAKING; REMEDIES
***
If a deficiency is shown to exist the Seller may develop and
install a fix to correct such deficiency. The delay period to
correct such deficiency will not exceed *** of the affected
A320 Aircraft.
If such a deficiency is not corrected as set forth in the
immediately preceding paragraph the Seller will, *** in respect
of such deficient A320 Aircraft pay to the Buyer by way of
liquidated damages on the anniversary date of the delivery the
following amounts:
i) *** per pound deficient resulting from the average of the
deviations from the guaranteed payloads and/or
ii) *** per pound deficient of guaranteed Manufacturer's Weight
Empty and/or
iii) *** per one percent deficiency resulting from the average
of the deviations from the guaranteed Specific Ranges defined
in Subparagraph 1.5 and the guaranteed Fuel Burn defined in
Subparagraph 2.2 (parts of a percentage to be prorated).
Damages will be computed on the basis of the figures defined in
(i) and (ii) above and will be paid ***.
The Seller's maximum liability in respect of all deficiencies in
performance of any A320 Aircraft will be limited to the payment
of liquidated damages *** for each A320 Aircraft whichever
occurs first. Payment of liquidated damages as aforesaid will be
deemed to settle any and all claims and remedies of the Buyer
against the Seller in respect of performance deficiencies.
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Letter Agreement in favor of the Buyer in respect of
the Seller's rights against and obligations to the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer
and Seller recognize and agree that, except as otherwise
expressly provided in Paragraph 8 of this Letter Agreement, all
the provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations
of Liability and Duplicate Remedies therein contained, will
apply to the foregoing performance guarantees.
ASSIGNMENT
This Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any
manner without the prior written consent of the Seller, and any
attempted assignment or transfer in contravention of the
provisions of this paragraph will be void and of no force or
effect. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this
Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
Its: Treasurer
Date: October 31, 1997
APPENDIX A
1 Manufacturer's Weight Empty and Operating Weight Empty
At the time of this Agreement the Buyer's Manufacturer's Weight
Empty and the Operating Weight Empty for the purposes of
Subparagraph 2.6 and Paragraph 3 of this Letter Agreement are
defined as follows:
Manufacturer's Weight Empty as defined in the
Specification Reference D 000.02000 Issue 4 : 81,966 lb
Specification Change for the fitting of CFM56-5B4
engines : 582 lb
Specification Change for the increase in Design Weight : 220 lb
-----------
Buyer's Manufacturer's Weight Empty according to the
Preamble of this Letter Agreement and for the purposes
of Subparagraph 2.6 and Paragraph 3 of this Letter
Agreement : ***
Specification changes as defined in Subparagraph 2.1
of this Appendix A (including USAir livery) : 1,197 lb
Operators Items as defined in Subparagraph 2.2.1 of
this Appendix A : 10,776 lb
-----------
Operating Weight Empty of the A320 Aircraft for the
purposes of Subparagraphs 2.1 and 2.3 to 2.5 inclusive
of this Letter Agreement : 94,741 lb
Operators items as defined in Subparagraph 2.2.2 of
this Appendix A : 11,276 lb
-----------
Operating Weight Empty of the A320 Aircraft for the
purposes of Subparagraphs 2.2 of this Letter
Agreement : 96,241 lb
-----------
*Note As of the date hereof the Operating Weight Empty has not been
completely defined. The payloads, fuel burn and ranges
guaranteed in Paragraph 2 are based on the estimated Operating
Weight Empty as shown above.
APPENDIX A
2 Specification Changes and Operators Items
2.1 Weight of Specification Changes
As of the date of this draft the complete list of USAir
Specification Changes is unknown.
It is estimated that the weight of such Specification
Changes is : 1,137 lbs
USAir livery : 60 lb
2.2 Weights of Operators Items
Oil for engines and APU : 117 lb
Unusable fuel : 143 lb
Water for galleys and toilets : 441 lb
Waste tank pre-charge : 29 lb
A320 Aircraft documents and tool kits : 42 lb
Passenger seats and life jackets : 4,216 lb
Phone equipment : 170 lb
Galley structure and fixed equipment : 1,265 lb
Chillers : 195 lb
Catering and service equipment : 2,354 lb
Cabin supplies : 213 lb
Emergency equipment : 551 lb
Crew and bags : 1,040 lb
----------
2.2.1 Total Operators Items for the purposes of
Subparagraphs 2.1 and 2.3 to 2.5 inclusive of this
Letter Agreement : 10,776 lb
Additional items for over water operation : 1,500 lb
----------
2.2.2 Total Operators Items for the purposes of
Subparagraph 2.2 of this Letter Agreement : 12,276 lb
LETTER AGREEMENT NO. 8C
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: A321-211 PERFORMANCE GUARANTEES
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
8C (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. The terms "herein," "hereof" and "hereunder" and
words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, in its capacity as "Buyer" under its arrangement
with the Manufacturer, has negotiated and obtained the following
performance and weight guarantees (the "Guarantees") from the Manufacturer,
in its capacity as "Seller" with respect to the A321 Aircraft, subject to
the terms, conditions, limitations and restrictions all as hereinafter set
out. The Seller hereby guarantees to the Buyer the performance by the
Manufacturer of the Manufacturer's obligations and assigns to the Buyer and
the Buyer hereby accepts, as to each A321 Aircraft delivered to the Buyer
under the Agreement, all of the rights and obligations of the Seller with
respect to such A321 Aircraft in the Seller's capacity as "Buyer" as
aforesaid under the said Guarantees and the Seller subrogates the Buyer
into all such rights and obligations in respect of such A321 Aircraft. The
Seller hereby warrants to the Buyer that it has all the requisite authority
to make the foregoing assignment and effect the foregoing subrogation to
and in favor of the Buyer and that it will not enter into any amendment of
the provisions so assigned or subrogated without the prior written consent
of the Buyer.
Capitalized terms used in the following quoted provisions and
not otherwise defined herein will have the meanings assigned thereto in the
Agreement except that the term "Seller" refers to the Manufacturer and the
term "Buyer" refers to the Seller (as defined in the Agreement).
QUOTE
PREAMBLE
The guarantees defined below (the "Guarantees") are applicable
to the A321 Aircraft as described in the Technical Specification
E.000.02000 Issue 1 dated 30 June 1995 and fitted with CFM
International CFM 56-5B-3 propulsion systems without taking into
account any further changes thereto as provided in the
Agreement.
Notwithstanding the foregoing the Seller reserves the right to
increase the Design Weights above the weights shown in the
Specification in order to satisfy the Guarantees.
1 GUARANTEED PERFORMANCE
1.1 Take-off
1.1.1 FAR take-off field length at an A321 Aircraft gross weight of
196,210 lb (89,000 kg) at the start of ground run at sea level
pressure altitude at a temperature of 84(degree)F will be not more
than a guaranteed value of 8,090 feet.
1.1.2 When operated under the following conditions (representative of PHX
08R):
Pressure altitude : 1,133 ft
Ambient temperature : 100(degree)F
Take-off run available ("TOR") : 10,300 feet
Take-off distance available : 10,300 feet
Accelerate-stop distance available : 10,300 feet
Slope : 0.20% uphill
Wind : Zero
Obstacles (height and distance : 15 feet/1,438 feet
from end of TOR) : 418 feet/17,285 feet
the maximum permissible weight at the start of ground run will be
not less than a guaranteed value of 180,300 lb.
1.1.3 When operated under the following conditions (representative of DEN
09):
Pressure altitude : 5,431 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 12,000 feet
Take-off distance available : 12,000 feet
Accelerate-stop distance available : 12,000 feet
Slope : 0.01% uphill
Wind : Zero
Obstacles : None
the maximum permissible weight at the start of ground run will
be not less than a guaranteed value of 176,400 lb.
1.2 Second Segment
The A321 Aircraft will meet FAR 25 regulations for one engine
inoperative climb after take-off, undercarriage retracted, at a
weight corresponding to the stated weight at the start of ground
run at the altitude and temperature and in the configuration of
flap angle and safety speed required to comply with the performance
guaranteed in Subparagraph 1.1.
1.3 Initial Cruise Altitude
At an A321 Aircraft gross weight of 185,000 lb in ISA+10(degree)C
conditions the pressure altitude for:
1) Level flight at a true Mach number of 0.78 using a thrust not
exceeding maximum cruise thrust
2) A rate of climb of not less than 300 ft/min at a true Mach
number of 0.78 using a thrust not exceeding maximum climb thrust
3) A buffet maneuver margin of not less than 0.3g at a true Mach
number of 0.78
will be not less than a guaranteed value of 33,000 ft.
1.4 Speed
Level flight speed at an A321 Aircraft gross weight of 185,000 lb
at a pressure altitude of 33,000 ft in ISA+10(degree)C conditions
using a thrust not exceeding maximum cruise thrust will be not less
than a guaranteed true Mach number of 0.790.
1.5 Specific Range
1.5.1 The nautical miles per pound of fuel at an A321 Aircraft gross
weight of 170,000 lb at a pressure altitude of 35,000 ft in
ISA+10(degree)C conditions at a true Mach number of 0.78 will be
not less than a guaranteed value of 0.0702 nm/lb.
1.5.2 The nautical miles per pound of fuel at an A321 Aircraft gross
weight of 160,000 lb at a pressure altitude of 37,000 ft in
ISA+10(degree)C conditions at a true Mach number of 0.78 will be
not less than a guaranteed value of 0.0741 nm/lb.
1.6 En-route One Engine Inoperative
The A321 Aircraft will meet FAR regulations minimum en-route climb
one engine inoperative and the other operating at the maximum
continuous thrust with anti-icing off at an A321 Aircraft gross
weight of 170,000 lb in the cruise configuration in ISA+10(degree)C
conditions at a guaranteed pressure altitude of not less than
15,000 ft.
1.7 Landing Field Length
1.7.1 FAR certified wet landing field length at an A321 Aircraft gross
weight of 166,450 lb (75,500 kg) at sea level pressure altitude
will be not greater than 6,270 feet.
1.7.2 FAR certified wet landing field length at an A321 Aircraft gross
weight of 166,450 lb (75,500 kg) at a pressure altitude of 5,431 ft
will be not greater than 7,100 feet.
2 MISSION GUARANTEES
2.1 The A321 Aircraft will be capable of carrying a guaranteed payload
of not less than *** over a still air stage distance of 2,610
nautical miles (representative of PHL to SFO with a 65 knot
headwind) when operated under the conditions defined below:
2.1.1 The departure airport conditions (representative of PHL 09R) are as
follows:
Pressure altitude : 21 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 10,499 feet
Take-off distance available : 10,499 feet
Accelerate-stop distance available : 10,499 feet
Slope : 0.10% downhill
Wind : Zero
Obstacles (height and distance : 17 feet/1,090 feet
from end of TOR) : 57 feet/4,306 feet
: 178 feet/9,500 feet
The destination airport conditions are such as to allow the
required landing weight to be used without restriction. Pressure
altitude is 11 feet.
2.1.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.1.3 An allowance of 530 lb of fuel is included for take-off and climb
to 1,500 ft above the departure airport at 84(degree)F with
acceleration to climb speed.
2.1.4 Climb from 1,500 ft above the departure airport up to cruise
altitude using maximum climb thrust and cruise at a fixed Mach
number of 0.78 at pressure altitudes of 35,000 ft and 39,000 ft and
descent to 1,500 ft above the destination airport are conducted in
ISA+10(degree)C conditions. Climb and descent speeds below 10,000
ft will be 250 knots CAS.
2.1.5 An allowance of 230 lb of fuel is included for approach and land at
the destination airport.
2.1.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.1.4 above.
2.1.7 At the end of approach and land 7,370 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.2 The A321 Aircraft will be capable of carrying a guaranteed payload
of not less than *** a still air stage distance of 1,545 nautical
miles (representative of STT to PHL with a 37 knot
headwind) when operated under the conditions defined below:
2.2.1 The departure airport conditions (representative of STT 10) are as
follows:
Pressure altitude : 24 ft
Ambient temperature : 84(degree)F
Take-off run available ("TOR") : 7,000 feet
Take-off distance available : 7,000 feet
Accelerate-stop distance available : 7,000 feet
Slope : 0.20% downhill
Wind : Zero
Obstacle (height and distance : 17 feet/2,083 feet
from end of TOR)
The destination airport conditions are such as to allow the
required landing weight to be used without restriction. Pressure
altitude is 21 feet.
2.2.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.2.3 An allowance of 670 lb of fuel is included for take-off and climb
to 1,500 ft above the departure airport at 84(degree)F with
acceleration to climb speed.
2.2.4 Climb from 1,500 ft above the departure airport up to cruise
altitude using maximum climb thrust and cruise at a fixed Mach
number of 0.78 at pressure altitudes of 31,000 ft and 35,000 ft and
descent to 1,500 ft above the destination airport are conducted in
ISA+10(degree)C conditions. Climb and descent speeds below 10,000
ft will be 250 knots CAS.
2.2.5 An allowance of 270 lb of fuel is included for approach and land at
the destination airport.
2.2.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.2.4 above.
2.2.7 At the end of approach and land 8,760 lb of fuel will remain in the
tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft above the destination airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.3 In carrying a fixed payload of 37,690 lb over a still air stage
distance of 2,000 nautical miles when operated under the conditions
defined below the Block Fuel will be not more than a guaranteed
value of ***.
2.3.1 The departure airport conditions are such as to allow the required
take-off weight to be used without restriction.
The destination airport conditions are such as to allow the
required landing weight to be used without restriction.
2.3.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.3.3 An allowance of 630 lb of fuel is included for take-off and climb
to 1,500 ft pressure altitude with acceleration to climb speed at a
temperature of 84(degree)F.
2.3.4 Climb from 1,500 ft pressure altitude up to cruise altitude using
maximum climb thrust and cruise at a fixed Mach number of 0.78 at a
pressure altitude of 35,000 ft and descent to 1,500 ft pressure
altitude are conducted in ISA+10(degree)C conditions. Climb and
descent speeds below 10,000 ft will be 250 knots CAS.
2.3.5 An allowance of 260 lb of fuel is included for approach and landing
at the destination airport.
2.3.6 An allowance of 70 lb of fuel is included for taxi at the
destination airport.
2.3.7 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.3.4 above.
Block Fuel is defined as the fuel burnt during taxi, take-off,
climb, cruise, descent and approach and landing as described in
Subparagraphs 2.3.2 to 2.3.6 inclusive.
2.3.8 At the end of approach and landing 8,300 lb of fuel will remain in
the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft pressure altitude.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.4 The A321 Aircraft will be capable of carrying a fixed payload of
48,750 lb over a guaranteed still air stage distance of not less
than *** when operated under the conditions defined below:
2.4.1 The departure airport conditions are such as to allow the required
take-off weight to be used without restriction.
The destination airport conditions are such as to allow the
required landing weight to be used without restriction.
2.4.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.4.3 An allowance of 680 lb of fuel is included for take-off and climb
to 1,500 ft pressure altitude with acceleration to climb speed in
ISA+10(degree)C conditions.
2.4.4 Climb from 1,500 ft pressure altitude up to cruise altitude using
maximum climb thrust and cruise at a fixed Mach number of 0.78 at
pressure altitudes of 31,000 ft and 35,000 ft and descent to 1,500
ft pressure altitude are conducted in ISA+10(degree)C conditions.
Climb and descent speeds below 10,000 ft will be 250 knots CAS.
2.4.5 An allowance of 260 lb of fuel is included for approach and landing
at the destination airport.
2.4.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.4.4 above.
2.4.7 At the end of approach and landing 8,790 lb of fuel will remain in
the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft pressure altitude above the destination
airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.5 The A321 Aircraft will be capable of carrying a fixed payload of
37,690 lb over a guaranteed still air stage distance of not less
than *** when operated under the conditions defined below:
2.5.1 The departure airport conditions are such as to allow the required
take-off weight to be used without restriction.
The destination airport conditions are such as to allow the
required landing weight to be used without restriction.
2.5.2 An allowance of 220 lb of fuel is included for taxi at the
departure airport.
2.5.3 An allowance of 640 lb of fuel is included for take-off and climb
to 1,500 ft pressure altitude with acceleration to climb speed in
ISA+10(degree)C conditions.
2.5.4 Climb from 1,500 ft pressure altitude up to cruise altitude using
maximum climb thrust and cruise at a fixed Mach number of 0.78 at a
pressure altitude of 35,000 ft and descent to 1,500 ft pressure
altitude are conducted in ISA+10(degree)C conditions. Climb and
descent speeds below 10,000 ft will be 250 knots CAS.
2.5.5 An allowance of 260 lb of fuel is included for approach and landing
at the destination airport.
2.5.6 Stage distance is defined as the distance covered during climb,
cruise and descent as described in Subparagraph 2.5.4 above.
2.5.7 At the end of approach and landing 8,300 lb of fuel will remain in
the tanks. This represents the estimated fuel required for:
1) Missed approach
2) Diversion consisting of climb and cruise in ISA+10(degree)C
conditions over a still air distance of 150 nautical miles
starting at 1,500 ft pressure altitude above the destination
airport.
3) Holding for 45 minutes at 20,000 ft pressure altitude in
ISA+10(degree)C conditions.
2.6 The mission payload guarantee defined in Subparagraph 2.1 and the
mission fuel burn guarantee defined in Subparagraph 2.3 and the
mission range guarantees defined in Subparagraphs 2.3 and 2.4 are
based on the Buyer's Manufacturer's Weight Empty as defined in
Subparagraph 3.3 below plus a fixed allowance of 14,370 lb for
Customer Changes and Operators Items.
The mission payload guarantee defined in Subparagraph 2.2 is based
on the Buyer's Manufacturer's Weight Empty as defined in
Subparagraph 3.3 below plus a fixed allowance of 15,870 lb for
Customer Changes and Operators Items.
3 MANUFACTURER'S WEIGHT EMPTY AND USABLE LOAD
3.1 The Seller guarantees a Buyer's Manufacturer's Weight Empty of ***.
3.2 The Seller guarantees that the difference between the Buyer's
Manufacturer's Weight Empty and the Maximum Zero Fuel Weight will
be not less than ***.
3.3 For the purposes of this Paragraph 3 and of Subparagraph 2.6 above
the Buyer's Manufacturer's Weight Empty is the Manufacturer's
Weight Empty defined in Section 13-10.00.00 of the Specification
and is subject to adjustment as defined in Subparagraph 7.2.
For information only an analysis of the Buyer's Manufacturer's
Weight Empty, Customer Changes, Operators Items and Operating
Weight Empty is shown in Appendix A to this Letter Agreement.
4 NOISE
4.1 External
4.1.1 The Seller guarantees that the A321 Aircraft will be certified in
accordance with FAR Part 36 Noise Standards, issue 1978, including
Amendment 36-15 Stage 3. The applicable noise limits are as defined
in paragraphs 36.201 and c36.5 (3).
4.1.2 ***
4.1.3 ***
4.2 Internal
4.2.1 Cockpit noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.78 in
still air under ISA conditions, the guaranteed A-Weighted Sound
Pressure Level (SPL) will not exceed *** and the
Speech Interference Level (SIL) will not exceed ***.
4.2.2 Cabin noise
At a pressure altitude of 35,000 ft and a Mach number of M=0.78 in
still air under ISA conditions, the guaranteed A-Weighted Sound
Pressure Level (SPL) and the Speech Interference Level (SIL) will
be as follows:
- the A-Weighted SPL will not exceed *** over the whole seating area.
- the SIL will not exceed *** along the front 40% of the passenger
compartment and will not exceed *** along the remaining 60% of
the passenger compartment length.
4.2.3 On the ground and under the conditions defined in Subparagraph 5.9
below the noise levels in the passenger compartment with passenger
doors open or closed the A-weighted Sound Pressure Level ("SPL")
will not exceed *** and the Speech Interference Level ("SIL") will
not exceed ***.
5 GUARANTEE CONDITIONS
5.1 The performance and noise certification requirements for the A321
Aircraft, except where otherwise noted, will be as stated in
Section 02 of the Specification.
5.2 For the determination of FAR take-off and landing performance a
hard level dry runway surface with no runway strength limitations,
no obstacles, zero wind, atmosphere according to ISA, except as
otherwise noted and the use of speedbrakes, flaps, landing gear and
engines in the conditions liable to provide the best results will
be assumed.
When establishing take-off and second segment performance no air
will be bled from the engines for cabin air conditioning or
anti-icing.
5.3 The en-route one engine inoperative climb performance will be
established with the amount of engine air bleed associated with the
maximum cabin altitude as specified in Section 21-30.32 of the
Specification and an average ventilation rate not less than the
amount defined in the Specification but no air will be bled from
the engines for anti-icing.
5.4 Climb, cruise and descent performance associated with the
Guarantees will include allowances for normal electrical load and
for normal engine air bleed and power extraction associated with
maximum cabin differential pressure as defined in Section 21-30.31
of the Specification. Cabin air conditioning management during
performance demonstration as described in Subparagraph 6.3 below
may be such as to optimize the A321 Aircraft performance while
meeting the minimum air conditioning requirements defined above.
Unless otherwise stated no air will be bled from the engines for
anti-icing.
5.5 The engines will be operated using not more than the engine
manufacturer's maximum recommended outputs for take-off, maximum
go-round, maximum continuous, maximum climb and cruise for normal
operation unless otherwise stated.
5.6 Where applicable the Guarantees assume the use of an approved fuel
having a density of 6.7 lb/US gallon and a lower heating value of
18,590 BTU/lb.
5.7 Speech interference level (SIL) is defined as the arithmetic
average of the sound pressure levels in the 1,000, 2,000, and 4,000
Hz octave bands. A-weighted sound level (dBA) is as defined in the
American National Standard Specification ANSI.4-1971. ***
5.8 The sound levels guaranteed in Subparagraph 4.2:
i) will be measured at the positions defined in Section 03-83.10 of
the Specification
ii) refer to an A321 Aircraft with standard acoustic insulation
and an interior completely furnished. The effect on noise of
Buyer Furnished Equipment other than passenger seats will be
the responsibility of the Buyer.
5.9 For the purposes of the sound levels guaranteed in Subparagraph
4.2.3 the APU and air conditioning system will be operating. Sound
level measurements may be made at the prevailing ambient
temperature with the air conditioning packs controlled to
approximate air conditioning machinery rotational speed appropriate
to an ambient temperature of 25(degree)C.
6 GUARANTEE COMPLIANCE
6.1 Compliance with the Guarantees will be demonstrated using operating
procedures and limitations in accordance with those defined by the
certifying Airworthiness Authority and by the Seller unless
otherwise stated.
6.2 Compliance with the take-off, second segment, en-route one engine
inoperative, landing abd certified noise elements of the Guarantees
will be demonstrated with reference to the approved Flight Manual.
6.3 Compliance with those parts of the Guarantees defined in Paragraphs
1 and 2 above not covered by the requirements of the certifying
Airworthiness Authority will be demonstrated by calculation based
on data obtained during flight tests conducted on one (or more, as
agreed between the Buyer and the Seller) A321 aircraft of the same
aerodynamic configuration as those A321 Aircraft purchased by the
Buyer.
6.4 Compliance with the Manufacturer's Weight Empty and Usable Load
guarantees defined in Paragraph 3 will be demonstrated with
reference to a weight compliance report.
6.5 Compliance with the mission guarantees defined in Paragraph 2 will
be demonstrated with reference to the weight compliance report
described in Subparagraph 6.4.
6.6 Compliance with the guarantees defined in Subparagraphs 4.1.2 and
4.1.3 will be based on data collected for noise certification
purposes. ***
6.7 Compliance with the noise guarantees defined in Subparagraph 4.2
will be demonstrated with reference to noise surveys conducted on
one (or more, at the Seller's discretion) A321 aircraft
of an acoustically similar standard as the A321 Aircraft.
6.8 Data derived from tests and noise surveys will be adjusted as
required using conventional methods of correction, interpolation or
extrapolation in accordance with established aeronautical
practices to show compliance with the Guarantees.
6.9 Compliance with the Guarantees is not contingent on engine
performance defined in the engine manufacturer's specification.
6.10 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 A321 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 A321 Aircraft configuration or
performance or both required to obtain certification the Guarantees
will be appropriately modified to reflect the effect of any such
change.
7.2 The Guarantees apply to the A321 Aircraft as described in the
Preamble to this Letter Agreement and may be adjusted in the event
of:
a) Any further configuration change which is the subject of a SCN
b) Variation in actual weights of items defined in Section 13-10 of
the Specification
c) Changes required to obtain certification which cause changes to
the performance or weight of the A321 Aircraft
8 EXCLUSIVE GUARANTEES
The Guarantees are exclusive and are provided in lieu of any and
all other performance and weight guarantees of any nature which may
be stated, referenced or incorporated in the Specification or any
other document.
9 UNDERTAKING; REMEDIES
***
If a deficiency is shown to exist the Seller may develop and
install a fix to correct such deficiency. The delay period to
correct such deficiency will not exceed *** of the affected A321
Aircraft.
If such a deficiency is not corrected as set forth in the
immediately preceding paragraph the Seller will, *** in respect of
such deficient A321 Aircraft pay to the Buyer by way of liquidated
damages on the anniversary date of the delivery the following
amounts:
i) *** per pound deficient resulting from the average of the
deviations from the guaranteed payloads and/or
ii) *** per pound deficient of guaranteed Manufacturer's Weight
Empty and/or
iii) *** per one percent deficiency resulting from the average of
the deviations from the guaranteed Specific Ranges defined in
Subparagraph 1.5 and the guaranteed Fuel Burn defined in
Subparagraph 3 (parts of a percentage to be prorated).
Damages will be computed on the basis of the figures defined in (i)
and (ii) above and will be paid ***.
The Seller's maximum liability in respect of all deficiencies in
performance of any A321 Aircraft will be limited to the payment of
liquidated damages *** for each A321 Aircraft whichever occurs
first. Payment of liquidated damages as aforesaid will be deemed to
settle any and all claims and remedies of the Buyer against the
Seller in respect of performance deficiencies.
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Letter Agreement in favor of the Buyer in respect of the
Seller's rights against and obligations to the Manufacturer under
the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer and
Seller recognize and agree that, except as otherwise expressly
provided in Paragraph 8 of this Letter Agreement, all the
provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations of
Liability and Duplicate Remedies therein contained, will apply to
the foregoing ***.
ASSIGNMENT
This Letter Agreement and the rights and obligations of the Buyer
hereunder will not be assigned or transferred in any manner without
the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
paragraph will be void and of no force or effect. Notwithstanding
the preceding sentence, the terms of Subclauses 19.5 and 19.6 of
the Agreement will apply to this Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
-----------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------
Its: Treasurer
Date: October 31, 1997
APPENDIX A
1 Manufacturer's Weight Empty and Operating Weight Empty
At the time of this Agreement the Buyer's Manufacturer's Weight
Empty and the Operating Weight Empty for the purposes of
Subparagraph 2.6 and Paragraph 3 of this Letter Agreement are
defined as follows:
Manufacturer's Weight Empty as defined in the Specification
Reference E 000.02000 Issue 1 : 93,110 lb
-----------
Buyer's Manufacturer's Weight Empty according to the
Preamble of this Letter Agreement and for the purposes
of Subparagraph 2.6 and Paragraph 3 of this Letter
Agreement : ***
Specification changes as defined in Subparagraph 2.1
of this Appendix A (including USAir livery) : 1,543 lb
Operators Items as defined in Subparagraph 2.2.1 of
this Appendix A : 12,829 lb
-----------
Operating Weight Empty of the A321 Aircraft for
the purposes of Subparagraphs 2.1 and 2.3 to 2.5
inclusive of this Letter :107,482 lb
Operators items as defined in Subparagraph 2.2.2 of
this Appendix A : 14,329 lb
----------
Operating Weight Empty of the A321 Aircraft for the
purposes of Subparagraphs 2.2 of this Letter
Agreement :108,982 lb
----------
*Note As of the date hereof the Operating Weight Empty has not
been completely defined. The payloads, fuel burn and ranges
guaranteed in Paragraph 2 are based on the estimated
Operating Weight Empty as shown above.
APPENDIX A
2 Specification Changes and Operators Items
2.1 Weight of Specification Changes
As of the date of this draft the complete list of USAir
Specification Changes is unknown. It is estimated that the weight
of such Specification Changes is:
: 1,483 lb
USAir livery : 60 lb
2.2 Weights of Operators Items
Oil for engines and APU : 117 lb
Unusable fuel : 154 lb
Water for galleys and toilets : 441 lb
Waste tank pre-charge : 29 lb
A321 Aircraft documents and tool kits : 42 lb
Passenger seats and life jackets : 5,184 lb
Phone equipment : 170 lb
Galley structure and fixed equipment : 1,512 lb
Chillers : 195 lb
Catering and service equipment : 2,829 lb
Cabin supplies : 252 lb
Emergency equipment : 704 lb
Crew and bags : 1,200 lb
----------
2.2.1 Total Operators Items for the purposes of
Subparagraphs 2.1 and 2.3 to 2.5 inclusive of this
Letter Agreement : 12,829 lb
Additional items for over water operation : 1,500 lb
-----------
2.2.2 Total Operators Items for the purposes of
Subparagraph 2.2 of this Letter Agreement : 14,329 lb
LETTER AGREEMENT NO. 9
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: ***
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320 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, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
9 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. The terms "herein," "hereof" and "hereunder" and
words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, under its arrangement with the Manufacturer, has
negotiated and obtained the following *** from the Manufacturer with
respect to the Aircraft, subject to the terms, conditions, limitations and
restrictions all as hereinafter set out. The Seller hereby warrants the
performance by the Manufacturer of the Manufacturer's obligations and
hereby assigns to the Buyer, and the Buyer hereby accepts, all of the
rights and obligations of the Seller as aforesaid under the said *** and
the Seller subrogates the Buyer into all such rights and obligations in
respect of the Aircraft. The Seller hereby warrants to the Buyer that the
Seller has all requisite authority to make the foregoing assignment and
effect the foregoing subrogation to and in favor of the Buyer and that the
Seller will not enter into any amendment of the provisions so assigned or
subrogated without the prior written consent of the Buyer. Capitalized
terms used in the following quoted provisions and not otherwise defined
therein will have the meanings assigned thereto in the Agreement, except
that the term "Seller" refers to the Manufacturer and the term "Buyer"
refers to the Seller.
QUOTE
1. ***
1.1 ***
1.2 ***
1.3 ***
2. ***
3. ***
4. ***
4.1 ***
4.2 ***
4.3 ***
5 ***
5.1 ***
5.2 ***
6. ***
7. ***
7.1 ***
7.2 ***
7.3 ***
8. ***
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Letter Agreement in favor of the Buyer in respect of
the Seller's rights against and obligations to the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer
and the Seller recognize and agree that the Exclusivity of
Warranties and General Limitations of Liability provisions
contained in Clause 12 of the Agreement will apply to the
foregoing ***.
ASSIGNMENT
This Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any
manner without the prior written consent of the Seller, and any
attempted assignment or transfer in contravention of the
provisions of this paragraph will be void and of no force or
effect. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this
Letter Agreement.
If the foregoing correctly sets forth our understanding, please
execute this Letter Agreement in the space provided below.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
-------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
------------------------
Its: Treasurer
Date: October 31, 1997
APPENDIX 1
***
APPENDIX 2
***
LETTER AGREEMENT NO. 10
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: ***
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
10 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. The terms "herein," "hereof" and "hereunder" and
words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, under its arrangement with the Manufacturer, has
negotiated and obtained the following *** from the Manufacturer with
respect to the Aircraft, subject to the terms, conditions, limitations and
restrictions all as hereinafter set out. The Seller hereby warrants the
performance by the Manufacturer of the Manufacturer's obligations and
hereby assigns to the Buyer, and the Buyer hereby accepts, all of the
rights and obligations of the Seller as aforesaid under the said *** and
the Seller subrogates the Buyer into all such rights and obligations in
respect of the Aircraft. The Seller hereby warrants to the Buyer that the
Seller has all requisite authority to make the foregoing assignment and
effect the foregoing subrogation to and in favor of the Buyer and that the
Seller will not enter into any amendment of the provisions so assigned or
subrogated without the prior written consent of the Buyer. Capitalized
terms used in the following quoted provisions and not otherwise defined
therein will have the meanings assigned thereto in the Agreement, except
that the term "Seller" refers to the Manufacturer and the term "Buyer"
refers to the Seller.
QUOTE
1. ***
1.1 ***
1.2 ***
1.2.1 ***
1.2.2 ***
1.2.3 ***
1.3 ***
1.4 ***
2. ***
2.1 ***
2.2 ***
2.3 ***
2.4 ***
2.5 ***
2.6 ***
2.6.1 ***
2.6.2 ***
2.7 ***
3. ***
4. ***
4.1 ***
4.1.1 ***
4.1.2 ***
4.2 ***
5. ***
5.1 ***
5.2 ***
6. ***
7. ***
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Letter Agreement in favor of the Buyer in respect of
the Seller's rights against and obligations to the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer
and the Seller recognize and agree that the Exclusivity of
Warranties and General Limitations of Liability provisions
contained in Clause 12 of the Agreement will apply to the
foregoing ***.
ASSIGNMENT
This Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any
manner without the prior written consent of the Seller, and any
attempted assignment or transfer in contravention of the
provisions of this paragraph will be void and of no force or
effect. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this
Letter Agreement.
If the foregoing correctly sets forth our understanding,
please execute this Letter Agreement in the space provided below,
whereupon this Letter Agreement will constitute part of the
Agreement.
Very truly yours,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
---------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
-----------------------------
Its: Treasurer
Date: October 31, 1997
Appendix 1
***
LETTER AGREEMENT NO. 11
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: PREDELIVERY PAYMENTS
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
11 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. The terms "herein," "hereof" and "hereunder" and
words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
1. PREDELIVERY PAYMENT REFERENCE PRICE CALCULATION METHOD
Notwithstanding the provisions of Subclause 6.2.3 of the Agreement,
the Predelivery Payment Reference Price for the Aircraft is ***.
2. PREDELIVERY PAYMENT REFERENCE PRICE VALUES
The Predelivery Payment Reference Price values to be used by the
Seller are listed in Table 1, attached to this Letter Agreement,
for the Aircraft for each year of delivery through ***. Such values
are based on the amounts of SCNs specified in Subclauses 4.1.1.1
(ii), 4.1.1.2 (ii) and 4.1.1.3 (ii) of the Agreement, and will be
readjusted in the event that any amount entering into the
calculation of the Predelivery Payment Reference Price is modified.
***
3. ASSIGNMENT
This Letter Agreement and the rights and obligations of the Buyer
hereunder will not be assigned or transferred in any manner without
the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 3 will be void and of no force or effect. Notwithstanding
the preceding sentence, the terms of Subclauses 19.5 and 19.6 of
the Agreement will apply to this Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
-------------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------------
Its: Treasurer
Date: October 31, 1997
TABLE 1
Predelivery Payment Reference Prices for All Aircraft
***
LETTER AGREEMENT NO. 12
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: ***
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
12 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. The terms "herein," "hereof" and "hereunder" and
words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, in its capacity as "Buyer" under its arrangement with
the Manufacturer, has negotiated and obtained the following *** from the
Manufacturer, in its capacity as "Seller" with respect to the Aircraft,
subject to the terms, conditions, limitations and restrictions all as
hereinafter set out. The Seller hereby guarantees to the Buyer the
performance by the Manufacturer of the Manufacturer's obligations and
assigns to the Buyer and the Buyer hereby accepts, as to each Aircraft
delivered to the Buyer under the Agreement, all of the rights and
obligations of the Seller with respect to such Aircraft in the Seller's
capacity as "Buyer" as aforesaid under the said *** and the Seller
subrogates the Buyer into all such rights and obligations in respect of
such Aircraft. The Seller hereby warrants to the Buyer that it has all the
requisite authority to make the foregoing assignment and effect the
foregoing subrogation to and in favor of the Buyer and that it will not
enter into any amendment of the provisions so assigned or subrogated
without the prior written consent of the Buyer.
Capitalized terms used in the following quoted provisions and not
otherwise defined herein will have the meanings assigned thereto in the
Agreement except that the term "Seller" refers to the Manufacturer and the
term "Buyer" refers to the Seller (as defined in the Agreement).
QUOTE
1 ***
1.1 ***
1.2 ***
1.3 ***
1.4 ***
2 ***
2.1 ***
2.2 ***
2.3 ***
2.4 ***
2.5 ***
3 ***
3.1 ***
3.1.1 ***
3.2 ***
4 ***
4.1 ***
4.2 ***
4.3 ***
4.4 ***
4.5 ***
4.6.1 ***
4.6.2 ***
4.6.3 ***
5 ***
5.1 ***
5.2 ***
5.2.1 ***
5.3 ***
5.3.1 ***
5.3.2 ***
6 ***
6.1 ***
6.2 ***
6.3 ***
6.4 ***
7 ***
7.1 ***
7.2 ***
8 ***
8.1 ***
8.2 ***
8.3 ***
8.4 ***
9 ***
9.1 ***
9.2 ***
UNQUOTE
In consideration of the assignment and subrogation by the Seller
under this Letter Agreement in favor of the Buyer in respect of
the Seller's rights against and obligations to the Manufacturer
under the provisions quoted above, the Buyer hereby accepts such
assignment and subrogation and agrees to be bound by all of the
terms, conditions and limitations therein contained. The Buyer
and Seller recognize and agree that, except as otherwise
expressly provided in Paragraph 7 of this Letter Agreement, all
the provisions of Clause 12 of the Agreement, including without
limitation the Exclusivity of Warranties and General Limitations
of Liability and Duplicate Remedies therein contained, will
apply to the foregoing ***.
ASSIGNMENT
This Letter Agreement and the rights and obligations of the
Buyer hereunder will not be assigned or transferred in any
manner without the prior written consent of the Seller, and any
attempted assignment or transfer in contravention of the
provisions of this paragraph will be void and of no force or
effect. Notwithstanding the preceding sentence, the terms of
Subclauses 19.5 and 19.6 of the Agreement will apply to this
Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
----------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
----------------------------
Its: Treasurer
Date: October 31, 1997
APPENDIX A
***
1 ***
2 ***
3 ***
4 ***
5 ***
6 ***
LETTER AGREEMENT NO. 13
As of October 31, 1997
US Airways Group, Inc.
2345 Crystal Drive
Arlington, VA 22227
Re: TECHNICAL DISPATCH RELIABILITY GUARANTEE
Ladies and Gentlemen:
US Airways Group, Inc. (the "Buyer"), and AVSA, S.A.R.L. (the
"Seller"), have entered into an Airbus A319/A320/A321 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, under the terms and conditions set forth in said Agreement. The
Buyer and the Seller have agreed to set forth in this Letter Agreement No.
13 (the "Letter Agreement") certain additional terms and conditions
regarding the sale of the Aircraft. Capitalized terms used herein and not
otherwise defined in this Letter Agreement will have the meanings assigned
thereto in the Agreement. The terms "herein," "hereof" and "hereunder" and
words of similar import refer to this Letter Agreement.
Both parties agree that this Letter Agreement will constitute an
integral, nonseverable part of said Agreement, that the provisions of said
Agreement are hereby incorporated herein by reference, and that this Letter
Agreement will be governed by the provisions of said Agreement, except that
if the Agreement and this Letter Agreement have specific provisions which
are inconsistent, the specific provisions contained in this Letter
Agreement will govern.
The Seller, under its arrangement with the Manufacturer, has
negotiated and obtained the following Technical Dispatch Reliability
Guarantee from the Manufacturer with respect to the Aircraft, subject to
the terms, conditions, limitations and restrictions all as hereinafter set
out. The Seller hereby guarantees to the Buyer the performance by the
Manufacturer of its obligations under this Technical Dispatch Reliability
Guarantee and hereby assigns to the Buyer, and the Buyer hereby accepts,
all of the rights and obligations of the Seller as aforesaid under the said
Technical Dispatch Reliability Guarantee, and the Seller subrogates the
Buyer into all such rights and obligations in respect of the Aircraft. The
Seller hereby warrants to the Buyer that it has all requisite authority to
make the foregoing assignment and effect the foregoing subrogation to and
in favor of the Buyer and that it will not enter into any amendment of the
provisions so assigned or subrogated without the prior written consent of
the Buyer. Capitalized terms used in the following quoted provisions and
not otherwise defined therein will have the meanings assigned thereto in
the Agreement, except that the term "Seller" refers to the Manufacturer and
the term "Buyer" refers to the Seller.
QUOTE
1. SCOPE, COMMENCEMENT, DURATION
This dispatch reliability guarantee (the "Guarantee") extends to
the Aircraft fleet, will commence with delivery of the first
Aircraft and will remain in force for a period of *** (the
"Term"), ***.
2. DEFINITION
2.1 Revenue Flight
A "Revenue Flight" is a flight as stipulated in the Buyer's time
table, and any scheduled charter flight of the Aircraft.
2.2 Aircraft Inherent Malfunction
An "Aircraft Inherent Malfunction" is a condition whereby
maintenance action is necessary to reestablish serviceability of
the Aircraft.
2.3 Dispatched
An Aircraft will be deemed to have been "Dispatched" when it leaves
the gate for a Revenue Flight.
2.4 Chargeable Delay
A "Chargeable Delay" will be deemed to have occurred when, by more
than fifteen (15) minutes and for reasons other than those defined
under "Excluded Delay," a primary Aircraft Inherent Malfunction
causes a Revenue Flight to depart later than the scheduled
departure time.
2.5 Excluded Delay
Any delay which is not a Chargeable Delay is an "Excluded Delay."
Excluded Delays are specifically excluded from this Guarantee, even
if consequently the Aircraft is subject to a delay. These Excluded
Delays include delays in scheduled departure due to:
- SERVICING - NO CORRECTIVE MAINTENANCE PERFORMED
Struts
Oil
Hydraulic fluid
Lubrication
All servicing activities that do not require the mechanic to
physically adjust or replace or defer structural repair and
replace hardware/software
Fueling related
Deicing
Water and waste
Sanitizing / flushing
Moisture condensation
Printer paper replacement
Routine cleaning
Tire pressure servicing
- PRECAUTIONARY MAINTENANCE - NO CORRECTIVE MAINTENANCE PERFORMED
Hydraulic leaks - within limits
Fuel leak - within limits
Manual closing or cycling passenger/crew/cargo door
Decals/paint/appearance items
Passenger amenity lamps
Tires - worn past limits
Brakes - worn past limits
Resetting circuit breakers - no corrective maintenance performed
according to FAA-
approved FCOM
- SCHEDULED MAINTENANCE ACTIVITIES
COMPLETION OF SCHEDULED / PLANNED WORK CONTENT OF SCHEDULED:
Maintenance checks
Maintenance set-ups
- PARTS DELAYS AND CANCELLATIONS
- EXTERNAL FORCE DAMAGE: AIRCRAFT DAMAGE/LIGHTNING STRIKES, ETC.
- KNOWN PERSONNEL ERROR
- SECONDARY DELAY / CANCELLATION :
A previous delay(s) or cancellation(s) of subsequent scheduled
flights on the same day caused by the same problem that caused
the primary delay(s) or cancellation(s).
- Delays caused by systems or components being designated as "Go
if" in the Minimum-Equipment List (MEL) as approved by the
Buyer's airworthiness authorities for the Buyer's operation
of the Aircraft.
- Delays attributable to the Propulsion Systems.
2 .6 Cancellation
A "Cancellation" occurs when a Revenue Flight does not take place.
The cancellation of any or all of the flight legs of a multi-leg
flight constitutes only one (1) Cancellation. One (1) Cancellation
is counted as one (1) event.
2.7 Achieved Dispatch Reliability
"Achieved Dispatch Reliability" is the actual Dispatch Reliability
obtained by the Aircraft fleet in regular revenue service and
adjusted to the clauses of this Guarantee. ETOPS flights are not
included in this Guarantee.
Achieved Dispatch Reliability, expressed as a percent, will be
computed every three months ("the Computation Period") and will be
compared to the Guaranteed Dispatch Reliability level (as defined
in Paragraph 3) at the end of each Computation Period.
Total number of Revenue Flights
without Chargeable Delays or
Achieved Cancellations during the
Dispatch = Computation Period X 100
-----------------------------------
Reliability Total number of Scheduled Revenue
Flights during the Computation
Period
3. GUARANTEE
The Seller guarantees the "Guaranteed Dispatch Reliability," set
forth below in Subparagraph 3.1 and 3.2.
3.1 First *** Years of Guarantee
The Seller guarantees that, from the first three-month Computation
Period following delivery of the first Aircraft and for Aircraft in
commercial service, an Aircraft available for dispatch will, on
average, have a *** percent probability of being dispatched without
a Chargeable Delay. This probability will be maintained until the
end of the *** year of operation of the Aircraft fleet following
delivery of the first Aircraft.
3.2 Remaining Years of Guarantee
The Seller guarantees that, from the first three-month Computation
Period after the beginning of the *** year of operation of the
Aircraft fleet in commercial service until the end of the Term, on
average, an Aircraft available for dispatch will have a *** percent
probability of being Dispatched without a Chargeable Delay.
4. BUYER'S AND SELLER'S OBLIGATION
4.1 Buyer's and Seller's Obligations
The Buyer's and Seller's specialists will mutually agree on the
details of a Chargeable Delay reporting procedure not later than
three (3) months before delivery of the first Aircraft.
4.2 Buyer's Obligations
a) The Buyer will regularly submit Chargeable Delay data on a
monthly basis not later than twenty (20) days after the end of
the reporting month. Such data must contain detailed information
on delays and Cancellations to allow the Seller to assess the
nature of system or component malfunctions.
b) The Buyer will notify the Seller at any time that the Achieved
Dispatch Reliability is below the Guaranteed Dispatch
Reliability Level. After such notice, the Seller will promptly
take corrective actions. Upon request, all reasonably necessary
additional detailed operational and engineering information will
be provided by the Buyer in order to allow the Seller to
determine the necessary action.
c) The Buyer will incorporate in and apply to the Aircraft the
procedures and modifications recommended by the Seller to the
extent necessary in order to improve the Achieved Dispatch
Reliability. Said modifications will be incorporated and such
procedures will be applied as soon as is reasonably possible,
consistent with the Buyer's maintenance program, following
receipt of instructions and parts (if applicable) by the Buyer,
provided that:
i) the effect of such a procedure or modification is substantiated
to the Buyer's satisfaction,
ii) application of such a procedure or modification is economical
and practical as determined by the Buyer's customary analysis
practice, and
iii)***.
In the event of a disagreement between the Seller and the Buyer
as to the effectiveness of procedures or modifications proposed
by the Seller to increase the achieved level, the Buyer will
demonstrate to the Seller that pursuant to its analysis, such a
modification or procedure is not effective.
Notwithstanding the Buyer's obligations above, the Buyer may, at
its option, decline to install such modification or decline to
follow such revised procedures as are referred to above. If the
Buyer so declines, the Seller may adjust the Guaranteed Dispatch
Reliability Level downwards by an amount consistent with the
improvement in the Achieved Dispatch Reliability Level, based on
reasonable substantiation to the Buyer and on other operators'
experience, if any, that of the reliability benefits of such
modification or such revised procedures are expected to cause.
d) Furthermore, the Buyer agrees to set its Aircraft fleet
technical dispatch reliability goals as shown in the Buyer's
regular reliability report (or equivalent) at a level equal to
or greater than the Guaranteed Dispatch Reliability Level, so
that both the Buyer's and Seller's technical staff can
aggressively pursue attainment of the Guaranteed Dispatch
Reliability Level.
4.3 Seller's Obligations
During the Term, the Seller will provide technical and operational
analyses of delays and cancellations and will develop corrections
intended to reduce delays and, in the event that the Achieved
Dispatch Reliability is below the Guaranteed Dispatch Reliability
Level the Seller will, not later than six (6) months where
practicable after notification by the Buyer and at no charge to the
Buyer:
a) provide modified Manufacturer's items, either hardware of software,
to improve Achieved Dispatch Reliability,
b) make recommendations concerning the Aircraft operation and
maintenance programs, publications, and policies to improve
Achieved Dispatch Reliability,
c) assist the Buyer to cause Vendors action to improve the Achieved
Dispatch Reliability.
5. ADJUSTMENT
Any design, certification, regulatory, organizational structure or
Aircraft operation changes outside the Seller's control that may
have an effect upon the operation and dispatch characteristics of
the Aircraft will be cause for reevaluation or adjustment of this
Guaranteed Dispatch Reliability Level by mutual agreement between
the Buyer and the Seller.
6. ACHIEVED DISPATCH RELIABILITY REVIEW MEETINGS
An Achieved Dispatch Reliability review meeting between the
Seller's and the Buyer's representatives will be scheduled at the
end of each six (6) month period of Aircraft operation, or at some
other period to be mutually agreed. Representatives of the Buyer
and the Seller will participate in the meeting and will:
a) review current Achieved Dispatch Reliability,
b) eliminate unsupported or non-Aircraft-inherent delay claims from
delay records to compute Achieved Dispatch Reliability,
c) consider corrective action, if required,
d) review the Buyer's incorporation of modifications as stated in
Subparagraph 4.2 of this Letter Agreement and requirements, if
any, for reduction of the Guaranteed Dispatch Reliability Level,
e) review possible design, certification, regulatory,
organizational structure or Aircraft operation changes and
requirements, if any, necessitating adjustment of the Guaranteed
Dispatch Reliability Level.
7. LIABILITY LIMITATION
The Seller's liability for failure to meet the Dispatch Reliability
Guarantee values will be governed solely by the terms of this
Dispatch Reliability Guarantee.
8. ASSIGNMENT
This Letter Agreement and the rights and obligations of the Buyer
hereunder will not be assigned or transferred in any manner without
the prior written consent of the Seller, and any attempted
assignment or transfer in contravention of the provisions of this
Paragraph 8 will be void and of no force or effect. Notwithstanding
the preceding sentence, the terms of Subclauses 19.5 and 19.6 of
the Agreement will apply to this Letter Agreement.
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
------------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------------
Its: Treasurer
Date: October 31, 1997
AIRCRAFT FINANCING LETTER AGREEMENT
As of October 31, 1997
US Airways, Inc.
2345 Crystal Drive
Arlington, VA 22227
Attention: Treasurer
Re: Aircraft Financing
Ladies and Gentlemen:
US Airways Group, Inc. and AVSA, S.A.R.L. (together with its successors and
permitted assigns, the "Seller") have entered into an Airbus A319/A320/A321
Purchase Agreement dated as of even date herewith (together with all
exhibits thereto and all letter agreements currently existing or hereafter
entered into that by their terms constitute part of such purchase
agreement, and as such purchase agreement may be amended, modified or
supplemented from time to time, the "Purchase Agreement"), which covers,
among other things, the sale by the Seller and the purchase by the Buyer
(as hereinafter defined) of the A319, A320 and A321 aircraft referred to
therein (the "Aircraft"). Clause 19 of the Purchase Agreement outlines the
terms and conditions upon which Buyer may assign its rights and
responsibilities under the Purchase Agreement to another party or other
parties. The term "Buyer" as used in this Aircraft Financing Letter
Agreement shall mean US Airways Group, Inc. or any and all assignees of US
Airways Group, Inc. in accordance with the provisions of Clause 19 of the
Purchase Agreement and any successors of US Airways Group, Inc. Any
references to Buyer in the singular are intended to include the plural and
vice versa, and to include each, any or all Buyers. As an inducement for
the Buyer to enter into the Purchase Agreement and consummate the
transactions therein described, Seller has agreed to enter into this
Aircraft Financing Letter Agreement with US Airways, Inc. (together with
all successors and permitted assigns "Airways"). The Aircraft shall have
installed thereon engines of a make and model to be selected by the Buyer
which are owned by the Buyer or by or on behalf of a financing party which
also owns the related airframe. The Seller and Airways have agreed to set
forth in this Aircraft Financing Letter Agreement (as amended, supplemented
or otherwise modified from time to time, the "Letter Agreement") the terms
of financial assistance offered to Airways by the Seller in connection with
the Buyer's acquisition of the Aircraft. The Buyer or Airways will obtain
*** The terms "herein", "hereof" and "hereunder" and words of similar
import refer to this Letter Agreement. Any references to *** (as defined in
Paragraph 4 hereof) in the singular are intended to include the plural and
vice versa.
This Letter Agreement shall not constitute part of the Purchase
Agreement, but shall be a separate and independent contract of financial
accomodation.
1. Seller's Financing Commitment and General Provisions
(a) The Seller hereby commits to provide or cause to be provided ***
(the "Seller Commitment"). ***. Each such ***.
(b) Except to the extent provided therein, ***.
(c) ***
(d) The financial assistance obligations of the Seller
contained in this Letter Agreement ***.
(e) Airways will provide to Seller, on a ***.
***
2. ***
3. ***
4. General Terms and Conditions
Unless expressly agreed to the contrary elsewhere in this
Letter Agreement, the terms outlined below shall apply to all
Seller Financings ***.
Borrower: ***
***
Payments: Principal and interest shall be payable ***.
***
Documentation: Seller and Airways shall mutually agree upon
each financing's documentation ***.
5. ***
6. Conditions Precedent
During the term of this Letter Agreement, the obligations of the
Seller *** shall be subject to the non-existence of any of the following
events ***
***
7. Termination
During the term of this Letter Agreement, each of the financing
commitments of the Seller set forth herein shall be subject to the
non-occurrence of any of the events described in this Paragraph (each a
"Termination Event"), ***.
***
8. Assignment
Subject to the provisions of this Paragraph 8, this Letter
Agreement shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto. This Letter Agreement ***.
9. Miscellaneous
(a) Notices
All notices and requests required or authorized hereunder shall
be given and shall become effective in the manner set forth in
Clause 22.1 of the Purchase Agreement. As of the date hereof,
the addresses for notices to Airways are the same as for
notices to Buyer.
(b) Waiver
The failure of either party to enforce at any time any of the
provisions of this Letter 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 Letter Agreement
or any part thereof or the right of the other party thereafter
to enforce each and every such provision. The express waiver by
either party of any provision, condition or requirement of this
Letter Agreement shall not constitute a waiver of any future
obligation to comply with such provision, condition or
requirement.
(c) INTERPRETATION AND LAW
THIS LETTER 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.
(d) SUBMISSION TO JURISDICTION
EACH BORROWER AND THE SELLER IRREVOCABLY AGREE THAT ANY LEGAL
ACTION OR PROCEEDING ARISING UNDER THIS LETTER AGREEMENT MAY BE
BROUGHT AND DETERMINED IN THE SUPREME COURT OF THE STATE OF NEW
YORK, NEW YORK COUNTY, IN THE GENERAL DISTRICT COURTS OF
FAIRFAX COUNTY OR ARLINGTON COUNTY, VIRGINIA, OR IN THE UNITED
STATES DISTRICT COURTS FOR THE SOUTHERN DISTRICT OF NEW YORK,
OR IN THE EASTERN DISTRICT OF VIRGINIA, AND IRREVOCABLY ACCEPTS
WITH REGARD TO ANY SUCH ACTION OR PROCEEDINGS THE NONEXCLUSIVE
JURISDICTION OF THOSE COURTS. The Seller hereby irrevocably
designates CT Corporation, New York City offices, to receive
for and on its behalf service of process in any proceeding with
respect to any matter as to which it submits to jurisdiction as
set forth above, it being agreed that service upon CT
Corporation will constitute valid service upon the Seller in
any legal action or proceeding with respect to this Letter
Agreement.
(e) Confidentiality
Subject to any legal or governmental requirements of
disclosure, the parties (which for this purpose shall include
their employees, agents and advisors) shall maintain the terms
and conditions of this Letter Agreement strictly confidential.
Without limiting the generality of the foregoing, each Borrower
and the Seller will limit the disclosure of the contents of
this Letter Agreement, to the extent legally permissible, in
any filing required to be made with any governmental agency and
shall make such applications as shall be necessary to implement
the foregoing. Each Borrower and the Seller shall consult with
each other prior to the making of any public disclosure or
filing, otherwise permitted hereunder, of this Letter Agreement
or the terms and conditions hereof. The provisions of this
Paragraph 9(e) shall survive any termination of this Letter
Agreement.
(f) Severability
In the event that any provision of this Letter Agreement should
for any reason be held to be without effect, the remainder of
this Letter 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 Letter Agreement prohibited or unenforceable in any
respect.
(g) Alterations to Contract
This Letter Agreement contains the entire agreement between the
parties with respect to the subject matter hereof and
supersedes any previous understanding, commitments or
representations whatsoever, oral or written. This Letter
Agreement shall not be varied except by an instrument in
writing executed by both parties.
(h) Language
All correspondence, documents and any other written matters in
connection with this Letter Agreement shall be in English.
(i) Headings
All headings in this Letter Agreement are for convenience of
reference only and do not constitute a part of this Letter
Agreement.
(j) Counterparts
This Letter Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall
together constitute but one and the same instrument.
(k) ***
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
-------------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways, Inc.
By: /s/ Thomas A. Fink
-----------------------------
Its: Treasurer
Date: October 31, 1997
US Airways Group, Inc.
By: /s/ Thomas A. Fink
-----------------------------
Its: Treasurer
Date: October 31, 1997
CONSENT AND GUARANTY
Airbus Industrie G.I.E., established under "Ordonnance" No. 67-821
dated September 23, 1967, of the Republic of France (the "Guarantor"),
hereby acknowledges notice of and consents to all of the terms of the
Aircraft Financing Letter Agreement dated as of October 31, 1997 (as
amended, modified, or supplemented from time to time, the "Agreement"),
between AVSA, S.A.R.L. (the "Seller"), and US Airways, Inc.("Airways"), and
hereby irrevocably and unconditionally guarantees the due and punctual
payment and performance by the Seller of all of the latter's liabilities
and obligations as set forth in the said Agreement subject to the terms and
limitations therein contained. The Guarantor hereby agrees that its
obligations hereunder will be unconditional and absolute and, without
limiting the generality of the foregoing, will not be released, discharged
or otherwise affected by (i) any modification or amendment of or supplement
to said Agreement (other than release, discharge or waiver of this Guaranty
hereunder) or (ii) any assignment of said Agreement or of any rights or
obligations thereunder made in accordance with Paragraph 8 thereof. The
Guarantor further agrees that it will execute and delivery such other and
further instruments as may be reasonably requested by Airways, its
successors or assigns to reaffirm its obligations hereunder. This Consent
and Guaranty constitutes a guaranty of performance and of payment, and
Guarantor agrees that, in case of default by the Seller, Airways will not
be required to file suit against the Seller as a condition to enforcement
of this Consent and Guaranty.
The Guarantor irrevocably agrees that any legal action or proceeding
against the Guarantor with respect to this Consent and Guaranty may be
brought and determined in the Supreme Court of the State of New York, New
York County, in the General District Court of Fairfax County or Arlington
County, Virginia, in the United States District Courts for the Southern
District of New York or the Eastern District of Virginia, or in the
commercial Court ("Tribunal de Commerce") of Toulouse, France, and
irrevocably accepts with regard to any such action or proceeding the
nonexclusive jurisdiction of those courts. The Guarantor irrevocably waives
the benefit of Articles 14 and 15 of the French Civil Code. The Guarantor
hereby irrevocably waives, and agrees not to assert, the defense of
sovereign immunity, and, to the extent permitted by law, the defense that
any such action or proceeding is brought in an inconvenient forum, that the
venue of any such action or proceeding is improper, or that this Consent
and Guaranty may not be enforced in or by such courts. However, the
preceding sentence will not be construed as a waiver of any requirement of
service of process. The Guarantor hereby irrevocably designates CT
Corporation as the Guarantor's agent to receive service of process in any
legal action or proceeding with respect to this Consent and Guaranty.
THIS CONSENT AND GUARANTY WILL BE GOVERNED BY AND CONSTRUED AND THE
PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK.
Airbus Industrie G.I.E.
By: /s/ Jean Pierson
----------------------------
Title: Managing Director
Attachment A
Partners of Airbus Industrie G.I.E.
As of October 31, 1997
Name Percentage Share
Aerospatiale, Societe Nationale Industrielle 37.9%
Daimler-Benz Aerospace Airbus, GmbH 37.9%
British Aerospace (Operations) LTD 20%
Construcciones Aeronauticas, S.A. 4.2%
*** LETTER AGREEMENT
As of October 31, 1997
US Airways, Inc.
2345 Crystal Drive
Arlington, VA 22227
Attention: Treasurer
Re: ***
Ladies and Gentlemen:
US Airways Group, Inc. and AVSA, S.A.R.L. (together with its successors and
permitted assigns, the "Seller") have entered into an Airbus A319/A320/A321
Purchase Agreement dated as of even date herewith (together with all
exhibits thereto and all letter agreements currently existing or hereafter
entered into that by their terms constitute part of such purchase
agreement, and as such purchase agreement may be amended, modified or
supplemented from time to time, the "Purchase Agreement"), which covers,
among other things, the sale by the Seller and the purchase by the Buyer
(as hereinafter defined) of the A319, A320 and A321 aircraft referred to
therein (the "Aircraft"). Clause 19 of the Purchase Agreement outlines the
terms and conditions upon which Buyer may assign its rights and
responsibilities under the Purchase Agreement to another party or other
parties. The term "Buyer" as used in this *** Letter Agreement shall mean
US Airways Group, Inc. or any and all assignees of US Airways Group, Inc.
in accordance with the provisions of Clause 19 of the Purchase Agreement
and any successors of US Airways Group, Inc. Any references herein to Buyer
in the singular are intended to include the plural and vice versa, and to
include each, any or all Buyers. As an inducement for the Buyer to enter
into the Purchase Agreement and consummate the transactions therein
described, Seller has agreed to enter into this *** Letter Agreement with
US Airways, Inc. (together with all successors and permitted assigns
"Airways"). The Seller and Airways have agreed to set forth in this ***
Letter Agreement (as amended, supplemented or otherwise modified from time
to time, the "Letter Agreement") the terms of *** in connection with the
Buyer's acquisition of the Aircraft. The terms "herein", "hereof" and
"hereunder" and words of similar import refer to this Letter Agreement. Any
references herein to *** (as defined in Paragraph 4 hereof) in the singular
are intended to include the plural and vice versa.
This Letter Agreement shall not constitute part of the Purchase
Agreement, but shall be a separate and independent contract of financial
accommodation.
1. General
At the request of Airways, the Seller shall arrange or cause to
be arranged a financing facility ***.
2. ***
3. ***
4. ***
5. ***
6. ***
7. ***
8. ***
9. ***
10. ***
11. ***
12. ***
13. ***
14. ***
15. ***
16. ***
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,
AVSA, S.A.R.L.
By: /s/ Christophe Mourey
-------------------------------
Its: Chief Executive Officer
Date: October 31, 1997
Accepted and Agreed
US Airways, Inc.
By: /s/ Thomas A. Fink
------------------------------
Its: Treasurer
Date: October 31, 1997
US Airways Group, Inc.
By: /s/ Thomas A. Fink
------------------------------
Its: Treasurer
Date: October 31, 1997
CONSENT AND GUARANTY
Airbus Industrie G.I.E., established under "Ordonnance" No. 67-821
dated September 23, 1967, of the Republic of France (the "Guarantor"),
hereby acknowledges notice of and consents to all of the terms of the ***
Letter Agreement dated as of October 31, 1997 (as amended, modified or
supplemented from time to time the "Agreement"), between AVSA, S.A.R.L.
(the "Seller"), and US Airways, Inc. ("Airways"), and hereby irrevocably
and unconditionally guarantees the due and punctual payment and performance
by the Seller of all of the latter's liabilities and obligations as set
forth in the said Agreement subject to the terms and limitations therein
contained. The Guarantor hereby agrees that its obligations hereunder will
be unconditional and absolute and, without limiting the generality of the
foregoing, will not be released, discharged or otherwise affected by (i)
any modification or amendment of or supplement to said Agreement (other
than release, discharge or waiver of this Guaranty hereunder) or (ii) any
assignment of said Agreement or of any rights or obligations thereunder
made in accordance with Paragraph 14 thereof. The Guarantor further agrees
that it will execute and delivery such other and further instruments as may
be reasonably requested by Airways, its successors or assigns to reaffirm
its obligations hereunder. This Consent and Guaranty constitutes a guaranty
of performance and of payment, and the Guarantor agrees that, in case of
default by Seller, Airways will not be required to file suit against the
Seller as a condition to enforcement of this Consent and Guaranty.
The Guarantor irrevocably agrees that any legal action or proceeding
against the Guarantor with respect to this Consent and Guaranty may be
brought and determined in the Supreme Court of the State of New York, New
York County, in the General District Court of Fairfax County or Arlington
County, Virginia, in the United States District Courts for the Southern
District of New York or the Eastern District of Virginia, or in the
commercial Court ("Tribunal de Commerce") of Toulouse, France, and
irrevocably accepts with regard to any such action or proceeding the
nonexclusive jurisdiction of those courts. The Guarantor irrevocably waives
the benefit of Articles 14 and 15 of the French Civil Code. The Guarantor
hereby irrevocably waives, and agrees not to assert, the defense of
sovereign immunity, and, to the extent permitted by law, the defense that
any such action or proceeding is brought in an inconvenient forum, that the
venue of any such action or proceeding is improper, or that this Consent
and Guaranty may not be enforced in or by such courts. However, the
preceding sentence will not be construed as a waiver of any requirement of
service of process. The Guarantor hereby irrevocably designates CT
Corporation as the Guarantor's agent to receive service of process in any
legal action or proceeding with respect to this Consent and Guaranty.
THIS CONSENT AND GUARANTY WILL BE GOVERNED BY AND CONSTRUED
AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Airbus Industrie G.I.E.
By: /s/ Jean Pierson
------------------------------
Title: Managing Director
AIRCRAFT FINANCING LETTER AGREEMENT AMENDMENT
As of November 24, 1998
US Airways, Inc.
2345 Crystal Drive
Arlington, VA 22227
Attention: Treasurer
Re: Aircraft Financing
US Airways Group, Inc. and AVSA, S.A.R.L. have entered into an Airbus
A330/A340 Purchase Agreement dated as of even date herewith (together with
all exhibits thereto and all letter agreements currently existing or
hereafter entered into that by their terms constitute part of such purchase
agreement, and as such purchase agreement may be amended, modified or
supplemented from time to time, the "A330/A340 Purchase Agreement), which
covers among other things, the sale by the Seller and the purchase by the
Buyer of A330/A340 Aircraft referred to therein (the "A330/A340 Aircraft).
As an inducement for the Buyer to enter into the A330/A340 Purchase
Agreement and consummate the transactions therein described, AVSA S.A.R.L.
agrees to amend the terms of the Aircraft Financing Letter Agreement (as
amended, modified or supplemented from time to time) dated as of October
31, 1997 between AVSA, S.A.R.L. and US Airways, Inc. (together with its
successors and permitted assigns, "Airways")(the "Letter Agreement") ***.
Unless otherwise defined, capitalized terms used herein shall have the
meanings set forth in the Letter Agreement.
The Letter Agreement is hereby amended as follows:
1. ***
2. The following new paragraph shall be inserted immediately
following the introductory paragraph: "Except as otherwise set forth
herein, the following defined terms shall have the meanings set forth
below for the remainder of this Letter Agreement:
***
3. The first sentence of Section 1(a) shall be amended and restated
in its entirety as follows: "The Seller hereby commits to provide or
cause to be provided ***.
4. ***
5. ***
6. Section 1(d) shall be amended and restated in its entirety as
follows: "The financial assistance obligations of the Seller
contained in this Letter Agreement ***.
7. ***
8. The last sentence under the caption *** in Section 4 shall be
amended and restated in its entirety as follows: ***
9. The following new paragraph is added to the end of Section 4
following the summary of terms and conditions.
***
10. ***
11. A new paragraph following *** shall be added and shall read
in its entirety as follows:
***
12. Section 6(a) shall be amended by addition of the following clause at
the end of the present text:
***
13. ***
14. The final paragraph of Section 7 ***.
Except as provided herein, all other provisions of the Letter Agreement
shall remain unchanged.
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,
AVSA, S.A.R.L.
By: /s/ Michele Lascaux
-------------------------------
Its: Director Contracts
Date:
Accepted and Agreed
US Airways, Inc.
By: /s/ Thomas A. Fink
---------------------------
Its: Vice President, Purchasing
& Treasurer
Date: February 3, 1999
Accepted and Agreed
US Airways Group, Inc.
By: /s/ Thomas A. Fink
---------------------------
Its: Vice President, Purchasing
& Treasurer
Date: February 3, 1999
