Exhibit 10.21
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-COP
BETWEEN
THE BOEING COMPANY
AND
COPA HOLDINGS, S.A.
TABLE OF CONTENTS
PAGE
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Article 1. Subject Matter of Sale................................................................................ 1
Article 2. Price, Taxes, and Payment............................................................................. 1
Article 3. Regulatory Requirements and Certificates.............................................................. 3
Article 4. Detail Specification; Changes......................................................................... 4
Article 5. Representatives, Inspection, Demonstration Flights, Test Data and Performance Guarantee Compliance.... 4
Article 6. Delivery.............................................................................................. 5
Article 7. Excusable Delay....................................................................................... 5
Article 8. Risk Allocation/Insurance............................................................................. 7
Article 9. Assignment, Resale, or Lease.......................................................................... 8
Article 10. Termination of Purchase Agreements for Certain Events................................................. 9
Article 11. Notices............................................................................................... 9
Article 12. Miscellaneous........................................................................................ 10
EXHIBITS
A Buyer Furnished Equipment Provisions Document
B Customer Support Document
C Product Assurance Document
D Escalation Adjustment
APPENDICES
I Insurance Certificate
II Purchase Agreement Assignment
III Post-Delivery Sale Notice
IV Post-Delivery Lease Notice
V Purchaser's/Lessee's Agreement
VI Owner Appointment of Agent - Warranties
VII Contractor Confidentiality Agreement
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AIRCRAFT GENERAL TERMS AGREEMENT NUMBER AGTA-COP
between
The Boeing Company
and
COPA HOLDINGS, S.A.
Relating to
BOEING AIRCRAFT
This Aircraft General Terms Agreement Number AGTA-COP (AGTA) between The
Boeing Company, including its wholly-owned subsidiary ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Corporation (BOEING) and COPA HOLDINGS, S.A. (CUSTOMER) will apply to all Boeing
aircraft contracted for purchase from Boeing by Customer after the effective
date of this AGTA.
Article 1. Subject Matter of Sale.
1.1 Aircraft. Boeing will manufacture and sell to Customer and
Customer will purchase from Boeing aircraft under purchase agreements that
incorporate the terms and conditions of this AGTA.
1.2 Buyer Furnished Equipment. Exhibit A, Buyer Furnished Equipment
Provisions Document to the AGTA, contains the obligations of Customer and Boeing
with respect to equipment purchased and provided by Customer, which Boeing will
receive, inspect, store, and install in an aircraft before delivery to Customer.
This equipment is defined as BUYER FURNISHED EQUIPMENT (BFE).
1.3 Customer Support. Exhibit B, Customer Support Document to the
AGTA, contains the obligations of Boeing relating to Materials (as defined in
Part 3 thereof), training, services, and other things in support of aircraft.
1.4 Product Assurance. Exhibit C, Product Assurance Document to the
AGTA, contains the obligations of Boeing and the suppliers of equipment
installed in each aircraft at delivery relating to warranties, patent
indemnities, software copyright indemnities, and service life policies.
Article 2. Price, Taxes, and Payment.
2.1 Price.
2.1.1 AIRFRAME PRICE is defined as the price of the airframe
for a specific model of aircraft described in a purchase agreement. (For Models
717-200, 737-600, 737-700, 737-800 and 737-900, the Airframe Price includes the
engine price at its basic thrust level.)
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2.1.2 OPTIONAL FEATURES PRICES are defined as the prices for
optional features selected by Customer for a specific model of aircraft
described in a purchase agreement.
2.1.3 ENGINE PRICE is defined as the price set by the engine
manufacturer for a specific engine to be installed on the model of aircraft
described in a purchase agreement (not applicable to Models 717-200, 737-600,
737-700, 737-800 and 737-900).
2.1.4 AIRCRAFT BASIC PRICE is defined as the sum of the
Airframe Price, Optional Features Prices, and the Engine Price, if applicable.
2.1.5 ESCALATION ADJUSTMENT is defined as the price adjustment
to the Airframe Price (which includes the basic engine price for Models 717-200,
737-600, 737-700 and 737-800) and the Optional Features Prices resulting from
the calculation using the economic price formula contained in Exhibit D,
Escalation Adjustment to the AGTA. The price adjustment to the Engine Price for
all other models of aircraft will be calculated using the economic price formula
in the Engine Escalation Adjustment to the applicable purchase agreement.
2.1.6 ADVANCE PAYMENT BASE PRICE is defined as the estimated
price of an aircraft, as of the date of signing a purchase agreement, for the
scheduled month of delivery of such aircraft using commercial forecasts of the
Escalation Adjustment.
2.1.7 AIRCRAFT PRICE is defined as the total amount Customer
is to pay for an aircraft at the time of delivery, which is the sum of the
Aircraft Basic Price, the Escalation Adjustment, and other price adjustments
made pursuant to the purchase agreement.
2.2 Taxes.
2.2.1 Taxes. TAXES are defined as all taxes, fees, charges, or
duties and any interest, penalties, fines, or other additions to tax, including,
but not limited to sales, use, value added, gross receipts, stamp, excise,
transfer, and similar taxes imposed by any domestic or foreign taxing authority,
arising out of or in connection with the performance of the applicable purchase
agreement or the sale, delivery, transfer, or storage of any aircraft, BFE, or
other things furnished under the applicable purchase agreement. Except for U.S.
federal or California State income taxes imposed on Boeing or Boeing's assignee,
and Washington State business and occupation taxes imposed on Boeing or Boeing's
assignee, Customer will be responsible for and pay all Taxes. Customer is
responsible for filing all tax returns, reports, declarations and payment of any
taxes related to or imposed on BFE.
2.2.2 Reimbursement of Boeing. Customer will promptly
reimburse Boeing on demand, net of additional taxes thereon, for any Taxes that
are imposed on and paid by Boeing or that Boeing is responsible for collecting.
2.3 Payment.
2.3.1 Advance Payment Schedule. Customer will make advance
payments to Boeing for each aircraft in the amounts and on the dates indicated
in the schedule set forth in the applicable purchase agreement.
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2.3.2 Payment at Delivery. Customer will pay any unpaid
balance of the Aircraft Price at the time of delivery of each aircraft.
2.3.3 Form of Payment. Customer will make all payments to
Boeing by unconditional wire transfer of immediately available funds in United
States Dollars in a bank account in the United States designated by Boeing.
2.3.4 Monetary and Government Regulations. Customer is
responsible for complying with all monetary control regulations and for
obtaining necessary governmental authorizations related to payments.
Article 3. Regulatory Requirements and Certificates.
3.1 Certificates. Boeing will manufacture each aircraft to conform
to the appropriate Type Certificate issued by the United States Federal Aviation
Administration (FAA) for the specific model of aircraft and will obtain from the
FAA and furnish to Customer at delivery of each aircraft either a Standard
Airworthiness Certificate or an Export Certificate of Airworthiness issued
pursuant to Part 21 of the Federal Aviation Regulations.
3.2 FAA or Applicable Regulatory Authority Manufacturer Changes.
3.2.1 A MANUFACTURER CHANGE is defined as any change to an
aircraft, data relating to an aircraft, or testing of an aircraft required by
the FAA to obtain a Standard Airworthiness Certificate, or by the country of
import and/or registration to obtain an Export Certificate of Airworthiness.
3.2.2 Boeing will bear the cost of incorporating all
Manufacturer Changes into the aircraft:
(i) resulting from requirements issued by the FAA prior to
the date of the Type Certificate for the applicable aircraft;
(ii) resulting from requirements issued by the FAA prior to
the date of the applicable purchase agreement; and
(iii) for any aircraft delivered during the 18 month period
immediately following the date of the applicable purchase agreement (regardless
of when the requirement for such change was issued by the FAA).
3.2.3 Customer will pay Boeing's charge for incorporating all
other Manufacturer Changes into the aircraft, including all changes for
validation of an aircraft required by any governmental agency of the country of
import and/or registration.
3.3 FAA Operator Changes.
3.3.1 An OPERATOR CHANGE is defined as a change in equipment
that is required by Federal Aviation Regulations which (i) is generally
applicable to transport category
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aircraft to be used in United States certified air carriage and (ii) the
required compliance date is on or before the scheduled delivery month of the
aircraft.
3.3.2 Boeing will deliver each aircraft with Operator Changes
incorporated or, at Boeing's option, with suitable provisions for the
incorporation of such Operator Changes, and Customer will pay Boeing's
applicable charges.
3.4 Export License. If an export license is required by United
States law or regulation for any aircraft or any other things delivered under
the purchase agreement, it is Customer's obligation to obtain such license. If
requested, Boeing will assist Customer in applying for any such export license.
Customer will furnish any required supporting documents.
Article 4. Detail Specification; Changes.
4.1 Configuration Changes. The DETAIL SPECIFICATION is defined as
the Boeing document that describes the configuration of each aircraft purchased
by Customer. The Detail Specification for each aircraft may be amended (i) by
Boeing to reflect the incorporation of Manufacturer Changes and Operator Changes
or (ii) by the agreement of the parties. In either case the amendment will
describe the particular changes to be made and any effect on design,
performance, weight, balance, scheduled delivery month, Aircraft Basic Price,
Aircraft Price, and/or Advance Payment Base Price.
4.2 Development Changes. DEVELOPMENT CHANGES are defined as changes
to aircraft that do not affect the Aircraft Price or scheduled delivery month,
and do not adversely affect guaranteed weight, guaranteed performance, or
compliance with the interchangeability or replaceability requirements set forth
in the applicable Detail Specification. Boeing may, at its option, incorporate
Development Changes into the Detail Specification and into an aircraft prior to
delivery to Customer.
4.3 Notices. Boeing will promptly notify Customer of any amendments
to a Detail Specification.
Article 5. Representatives, Inspection, Demonstration Flights, Test Data and
Performance Guarantee Compliance.
5.1 Office Space. Twelve months before delivery of the first
aircraft purchased, and continuing until the delivery of the last aircraft on
firm order, Boeing will furnish, free of charge, suitable office space and
equipment for the accommodation of up to three representatives of Customer in or
conveniently located near the assembly plant.
5.2 Inspection. Customer's representatives may inspect each aircraft
at any reasonable time, provided such inspection does not interfere with
Boeing's performance.
5.3 Demonstration Flights. Prior to delivery, Boeing will fly each
aircraft up to 4 hours to demonstrate to Customer the function of the aircraft
and its equipment using Boeing's production flight test procedures. Customer may
designate up to five representatives to participate as observers.
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5.4 Test Data; Performance Guarantee Compliance. PERFORMANCE
GUARANTEES are defined as the written guarantees in a purchase agreement
regarding the operational performance of an aircraft. Boeing will furnish to
Customer flight test data obtained on an aircraft of the same model to evidence
compliance with the Performance Guarantees. Performance Guarantees will be met
if reasonable engineering interpretations and calculations based on the flight
test data establish that the particular aircraft being delivered under the
applicable purchase agreement would, if actually flown, comply with the
guarantees.
5.5 Special Aircraft Test Requirements. Boeing may use an aircraft
for flight and ground tests prior to delivery, without reduction in the Aircraft
Price, if the tests are considered necessary by Boeing (i) to obtain or maintain
the Type Certificate or Certificate of Airworthiness for the aircraft or (ii) to
evaluate potential improvements that may be offered for production or retrofit
incorporation.
Article 6. Delivery.
6.1 Notices of Delivery Dates. Boeing will notify Customer of the
approximate delivery date of each aircraft at least 30 days before the scheduled
month of delivery and again at least 14 days before the scheduled delivery date.
6.2 Place of Delivery. Each aircraft will be delivered at a facility
selected by Boeing in the same state as the primary assembly plant for the
aircraft.
6.3 ▇▇▇▇ of Sale. At delivery of an aircraft, Boeing will provide
Customer a ▇▇▇▇ of sale conveying good title, free of encumbrances.
6.4 Delay. If Customer delays acceptance of an aircraft beyond the
scheduled delivery date, Customer will reimburse Boeing for all costs incurred
by Boeing as a result of the delay.
Article 7. Excusable Delay.
7.1 General. Boeing will not be liable for any delay in the
scheduled delivery month of an aircraft or other performance under a purchase
agreement caused by (i) acts of God; (ii) war or armed hostilities; (iii)
government acts or priorities; (iv) fires, floods, or earthquakes; (v) strikes
or labor troubles causing cessation, slowdown, or interruption of work; (vi)
inability, after due and timely diligence, to procure materials, systems,
accessories, equipment or parts; or (vii) any other cause to the extent such
cause is beyond Boeing's control and not occasioned by Boeing's fault or
negligence. A delay resulting from any such cause is defined as an EXCUSABLE
DELAY.
7.2 Notice. Boeing will give written notice to Customer (i) of a
delay as soon as Boeing concludes that an aircraft will be delayed beyond the
scheduled delivery month due to an Excusable Delay and, when known, (ii) of a
revised delivery month based on Boeing's appraisal of the facts.
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7.3 Delay in Delivery of Twelve Months or Less. If the revised
delivery month is 12 months or less after the scheduled delivery month, Customer
will accept such aircraft when tendered for delivery, subject to the following:
7.3.1 The calculation of the Escalation Adjustment will be
based on the previously scheduled delivery month.
7.3.2 The advance payment schedule will be adjusted to reflect
the revised delivery month.
7.3.3 All other provisions of the applicable purchase
agreement, including the BFE on-dock dates for the delayed aircraft, are
unaffected by an Excusable Delay.
7.4 Delay in Delivery of More Than Twelve Months. If the revised
delivery month is more than 12 months after the scheduled delivery month, either
party may terminate the applicable purchase agreement with respect to such
aircraft within 30 days of the notice. If either party does not terminate the
applicable purchase agreement with respect to such aircraft, all terms and
conditions of the applicable purchase agreement will remain in effect.
7.5 Aircraft Damaged Beyond Repair. If an aircraft is destroyed or
damaged beyond repair for any reason before delivery, Boeing will give written
notice to Customer specifying the earliest month possible, consistent with
Boeing's other contractual commitments and production capabilities, in which
Boeing can deliver a replacement. Customer will have 30 days from receipt of
such notice to elect to have Boeing manufacture a replacement aircraft under the
same terms and conditions of purchase, except that the calculation of the
Escalation Adjustment will be based upon the scheduled delivery month in effect
immediately prior to the date of such notice, or, failing such election, the
applicable purchase agreement will terminate with respect to such aircraft.
Boeing will not be obligated to manufacture a replacement aircraft if
reactivation of the production line for the specific model of aircraft would be
required.
7.6 Termination. Termination under this Article will discharge all
obligations and liabilities of Boeing and Customer with respect to any aircraft
and all related undelivered Materials (as defined in Exhibit B, Customer Support
Document), training, services, and other things terminated under the applicable
purchase agreement, except that Boeing will return to Customer, without
interest, an amount equal to all advance payments paid by Customer for the
aircraft. If Customer terminates the applicable purchase agreement as to any
aircraft, Boeing may elect, by written notice to Customer within 30 days, to
purchase from Customer any BFE related to the aircraft at the invoice prices
paid, or contracted to be paid, by Customer.
7.7 Exclusive Rights. The termination rights in this Article are in
substitution for all other rights of termination or any claim arising by
operation of law due to delays in performance covered by this Article.
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Article 8. Risk Allocation/Insurance.
8.1 Title and Risk with Boeing.
8.1.1 Boeing's Indemnification of Customer. Until transfer of
title to an aircraft to Customer, Boeing will indemnify and hold harmless
Customer and Customer's observers from and against all claims and liabilities,
including all expenses and attorneys' fees incident thereto or incident to
establishing the right to indemnification, for injury to or death of any
person(s), including employees of Boeing but not employees of Customer, or for
loss of or damage to any property, including an aircraft, arising out of or in
any way related to the operation of an aircraft during all demonstration and
test flights conducted under the provisions of the applicable purchase
agreement, whether or not arising in tort or occasioned by the negligence of
Customer or any of Customer's observers.
8.1.2 Definition of Customer. For the purposes of this
Article, "Customer" is defined as COPA HOLDINGS, S.A., its divisions,
subsidiaries, affiliates, the assignees of each, and their respective directors,
officers, employees, and agents.
8.2 Insurance.
8.2.1 Insurance Requirements. Customer will purchase and
maintain insurance acceptable to Boeing and will provide a certificate of such
insurance that names Boeing as an additional insured for any and all claims and
liabilities for injury to or death of any person or persons, including employees
of Customer but not employees of Boeing, or for loss of or damage to any
property, including any aircraft, arising out of or in any way relating to
Materials, training, services, or other things provided under Exhibit B of the
AGTA, which will be incorporated by reference into the applicable purchase
agreement, whether or not arising in tort or occasioned by the negligence of
Boeing, except with respect to legal liability to persons or parties other than
Customer or Customer's assignees arising out of an accident caused solely by a
product defect in an aircraft. Customer will provide such certificate of
insurance at least thirty (30) days prior to the scheduled delivery of the first
aircraft under a purchase agreement. The insurance certificate will reference
each aircraft delivered to Customer pursuant to each applicable purchase
agreement. Annual renewal certificates will be submitted to Boeing before the
expiration of the policy periods. The form of the insurance certificate,
attached as Appendix I, states the terms, limits, provisions, and coverages
required by this Article 8.2.1. The failure of Boeing to demand compliance with
this 8.2.1 in any year will not in any way relieve Customer of its obligations
hereunder nor constitute a waiver by Boeing of these obligations.
8.2.2 Noncompliance with Insurance Requirements. If Customer
fails to comply with any of the insurance requirements of Article 8.2.1 or if
any of the insurers fails to pay a claim covered by the insurance or otherwise
fails to meet any of insurer's obligations required by Appendix I, Customer will
provide the same protection to Boeing as that required by Article 8.2.1 above.
8.2.3 Definition of Boeing. For purposes of this article,
"Boeing" is defined as The Boeing. Company, its divisions, subsidiaries,
affiliates, assignees of each, and their respective directors, officers,
employees, and agents.
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Article 9. Assignment, Resale, or Lease.
9.1 Assignment. This AGTA and each applicable purchase agreement are
for the benefit of the parties and their respective successors and assigns. No
rights or duties of either party may be assigned or delegated, or contracted to
be assigned or delegated, without the prior written consent of the other party,
except:
9.1.1 Either party may assign its interest to a corporation
that (i) results from any merger, reorganization, or acquisition of such party
and (ii) acquires substantially all the assets of such party;
9.1.2 Boeing may assign its rights to receive money; and
9.1.3 Boeing may assign any of its rights and duties to any
wholly-owned subsidiary of Boeing.
9.1.4 Boeing may assign any of its rights and duties with
respect to Part 1, Articles 1, 2, 4 and 5 of Exhibit B, Customer Support
Document to the AGTA, to FlightSafety Boeing Training International L.L.C.
9.2 Transfer by Customer at Delivery. Boeing will take any requested
action reasonably required for the purpose of causing an aircraft, at time of
delivery, to be subject to an equipment trust, conditional sale, lien, or other
arrangement for Customer to finance the aircraft. However, no such action will
require Boeing to divest itself of title to or possession of the aircraft until
delivery of and payment for the aircraft. A sample form of assignment acceptable
to Boeing is attached as Appendix II.
9.3 Sale or Lease by Customer After Delivery. If, following delivery
of an aircraft, Customer sells or leases the aircraft (including any sale and
lease-back for financing purposes), all of Customer's rights with respect to the
aircraft under the applicable purchase agreement will inure to the benefit of
the purchaser or lessee of such aircraft, effective upon Boeing's receipt of the
written agreement of the purchaser or lessee, in a form satisfactory to Boeing,
to comply with all applicable terms and conditions of the applicable purchase
agreement. Sample forms of agreement acceptable to Boeing are attached as
Appendices III and IV.
9.4 Notice of Sale or Lease After Delivery. Customer will give
notice to Boeing as soon as practicable of the sale or lease of an aircraft,
including in the notice the name of the entity or entities with title and/or
possession of such aircraft.
9.5 Exculpatory Clause in Post-Delivery Sale or Lease. If, following
the delivery of an aircraft, Customer sells or leases such aircraft and obtains
from the transferee any form of exculpatory clause protecting Customer from
liability for loss of or damage to the aircraft, and/or related incidental or
consequential damages, including without limitation loss of use, revenue, or
profit, Customer shall obtain for Boeing the purchaser's or lessee's written
agreement to be bound by terms and conditions substantially as set forth in
Appendix V. This
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Article 9.5 applies only if purchaser or lessee has not provided to Boeing the
written agreement described in Article 9.3 above.
9.6 Appointment of Agent - Warranty Claims. If, following delivery
of an aircraft, Customer appoints an agent to act directly with Boeing for the
administration of claims relating to the warranties under the applicable
purchase agreement, Boeing will deal with the agent for that purpose, effective
upon Boeing's receipt of the agent's written agreement, in a form satisfactory
to Boeing, to comply with all applicable terms and conditions of the applicable
purchase agreement. A sample form of agreement acceptable to Boeing is attached
as Appendix VI.
9.7 No Increase in Boeing Liability. No action taken by Customer or
Boeing relating to the resale or lease of an aircraft or the assignment of
Customer's rights under the applicable purchase agreement will subject Boeing to
any liability beyond that in the applicable purchase agreement or modify in any
way Boeing's obligations under the applicable purchase agreement.
Article 10. Termination of Purchase Agreements for Certain Events.
10.1 Termination. If either party
(i) ceases doing business as a going concern, or suspends all or
substantially all its business operations, or makes an assignment
for the benefit of creditors, or generally does not pay its debts
as they become due, or admits in writing its inability to pay its
debts; or
(ii) petitions for or acquiesces in the appointment of any
receiver, trustee or similar officer to liquidate or conserve its
business or any substantial part of its assets; commences any
legal proceeding such as bankruptcy, reorganization, readjustment
of debt, dissolution, or liquidation available for the relief of
financially distressed debtors; or becomes the object of any such
proceeding, unless the proceeding is dismissed or stayed within a
reasonable period, not to exceed 60 days,
the other party may terminate any purchase agreement with respect to any
undelivered aircraft, Materials, training, services, and other things by giving
written notice of termination.
10.2 Repayment of Advance Payments. If Customer terminates the
applicable purchase agreement under this Article, Boeing will repay to Customer,
without interest, an amount equal to any advance payments received by Boeing
from Customer with respect to undelivered aircraft.
Article 11. Notices.
All notices required by this AGTA or by any applicable purchase
agreement will be in English, will be effective on the date of receipt, and will
be transmitted by any customary means of written communication, addressed as
follows:
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Customer: COPA HOLDINGS, S.A.
Apartado 1572
Avenida ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ y ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Boeing: Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Attention: Vice President - Contracts
Mail Stop 75-38
Article 12. Miscellaneous.
12.1 Government Approval. Boeing and Customer will assist each other
in obtaining any governmental consents or approvals required to effect
certification and sale of aircraft under the applicable purchase agreement.
12.2 Headings. Article and paragraph headings used in this AGTA and
in any purchase agreement are for convenient reference only and are not intended
to affect the interpretation of this AGTA or any purchase agreement.
12.3 GOVERNING LAW. THIS AGTA AND ANY PURCHASE AGREEMENT WILL BE
INTERPRETED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF WASHINGTON, U.S.A.,
EXCEPT THAT WASHINGTON'S CHOICE OF LAW RULES SHALL NOT BE INVOKED FOR THE
PURPOSE OF APPLYING THE LAW OF ANOTHER JURISDICTION.
12.4 Waiver/Severability. Failure by either party to enforce any
provision of this AGTA or any purchase agreement will not be construed as a
waiver. If any provision of this AGTA or any provision of any purchase agreement
are held unlawful or otherwise ineffective by a court of competent jurisdiction,
the remainder of the AGTA or the applicable purchase agreement will remain in
effect.
12.5 Survival of Obligations. The Articles and Exhibits of this AGTA
including but not limited to those relating to insurance, DISCLAIMER AND RELEASE
and the EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES will survive termination or
cancellation of any purchase agreement or part thereof.
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12.6 AGTA Changes. The intent of the AGTA is to simplify the
standard contracting process for terms and conditions which are related to the
sale and purchase of all Boeing aircraft. This AGTA has been mutually agreed to
by the parties as of the date indicated below. From time to time the parties may
elect, by mutual agreement to update, or modify the existing articles as
written. If such changes are made, any existing executed Purchase Agreement(s)
will be governed by the terms and conditions of the Revision level of the AGTA
in effect based on the date of the executed Purchase Agreement.
DATED AS OF Nov. 25, 1998
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EXHIBIT A
TO
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-COP
BETWEEN
THE BOEING COMPANY
AND
COPA HOLDINGS, S.A.
BUYER FURNISHED EQUIPMENT PROVISIONS DOCUMENT
A
BUYER FURNISHED EQUIPMENT PROVISIONS DOCUMENT
1. General.
Certain equipment to be installed in the Aircraft is furnished to Boeing
by Customer at Customer's expense. This equipment is designated "Buyer Furnished
Equipment" (BFE) and is listed in the Detail Specification. Boeing will provide
to Customer a BFE Requirements On-Dock/Inventory Document (BFE Document) or an
electronically transmitted BFE Report which may be periodically revised, setting
forth the items, quantities, on-dock dates and shipping instructions relating to
the in sequence installation of BFE as described in the applicable Supplemental
Exhibit to this Exhibit A in a purchase agreement at the time of aircraft
purchase.
2. Supplier Selection.
Customer will:
2.1 Select and notify Boeing of the suppliers of BFE items by those dates
appearing in Supplemental Exhibit BFE1 to the applicable purchase agreement at
the time of aircraft purchase.
2.2 Meet with Boeing and such selected BFE suppliers promptly after such
selection to:
2.2.1 complete BFE configuration design requirements for such BFE;
and
2.2.2 confirm technical data submittal requirements for BFE
certification.
3. Customer's Obligations.
Customer will:
3.1 comply with and cause the supplier to comply with the provisions of
the BFE Document or BFE Report;
3.1.1 deliver technical data (in English) to Boeing as required to
support installation and FAA certification in accordance with the schedule
provided by Boeing or as mutually agreed upon during the BFE meeting referred to
above;
3.1.2 deliver BFE including production and/or flight training spares
and BFE Aircraft Software to Boeing in accordance with the quantities and
schedule provided therein; and
3.1.3 assure that all BFE Aircraft Software is delivered in
compliance with Boeing's then-current Standards for Loadable Systems;
3.1.4 assure that all BFE parts are delivered to Boeing with
appropriate quality assurance documentation;
3.2 authorize Boeing to discuss all details of the BFE directly with the
BFE suppliers;
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3.3 authorize Boeing to conduct or delegate to the supplier quality source
inspection and supplier hardware acceptance of BFE at the supplier location;
3.3.1 require supplier's contractual compliance to Boeing defined
quality assurance requirements, source inspection programs and supplier
delegation programs, including availability of adequate facilities for Boeing
resident personnel; and
3.3.2 assure that all BFE supplier's quality systems are approved to
Boeing's then current standards for such systems;
3.4 obtain from supplier a non-exclusive, perpetual, royalty-free,
irrevocable license for Boeing to copy BFE Aircraft Software. The license is
needed to enable Boeing to load the software copies in (i) the aircraft's mass
storage device (MSD), (ii) media (e.g., diskettes, CD-ROMs, etc.), (iii) the BFE
hardware and/or (iv) an intermediate device or other media to facilitate copying
of the BFE Aircraft Software into the aircraft's MSD, BFE hardware and/or media,
including media as Boeing may deliver to Customer with the aircraft;
3.5 grant Boeing a license, extending the same rights set forth in
paragraph 3.4 above, to copy: a) BFE Aircraft Software and data Customer has
modified and/or b) other software and data Customer has added to the BFE
Aircraft Software;
3.6 provide necessary field service representation at Boeing's facilities
to support Boeing on all issues related to the installation and certification of
BFE;
3.7 deal directly with all BFE suppliers to obtain overhaul data,
provisioning data, related product support documentation and any warranty
provisions applicable to the BFE;
3.8 work closely with Boeing and the BFE suppliers to resolve any
difficulties, including defective equipment, that arise;
3.9 be responsible for modifying, adjusting and/or calibrating BFE as
required for FAA approval and for all related expenses;
3.10 assure that a proprietary information agreement is in place between
Boeing and BFI suppliers prior to Boeing providing any documentation to such
suppliers,
3.11 warrant that the BFE will comply with all applicable FARs and the
U.S. Food and Drug Administration (FDA) sanitation requirements for installation
and use in the Aircraft at the time of delivery. Customer will be responsible
for supplying any data and adjusting, calibrating, re-testing or updating such
BFE and data to the extent necessary to obtain applicable FAA and FDA approval
and shall bear the resulting expenses.
3.12 warrant that the BFE will meet the requirements of the Detail
Specification; and
3.13 be responsible for providing equipment which is FAA certifiable at
time of Aircraft delivery, or for obtaining waivers from the applicable
regulatory agency for non-FAA certifiable equipment.
A-2
4. Boeing's Obligations.
Other than as set forth below, Boeing will provide for the installation of
and install the BFE and obtain certification of the Aircraft with the BFE
installed.
5. Nonperformance by Customer.
If Customer's nonperformance of obligations in this Exhibit or in the BFE
Document causes a delay in the delivery of the Aircraft or causes Boeing to
perform out-of-sequence or additional work, Customer will reimburse Boeing for
all resulting expenses and be deemed to have agreed to any such delay in
Aircraft delivery. In addition Boeing will have the right to:
5.1 provide and install specified equipment or suitable alternate
equipment and increase or decrease the price of the Aircraft accordingly; and/or
5.2 deliver the Aircraft to Customer without the BFE installed.
6. Return of Equipment.
BFE not installed in the Aircraft will be returned to Customer in
accordance with Customer's instructions and at Customer's expense.
7. Title and Risk of Loss.
7.1 With respect to Aircraft manufactured in the State of Washington,
title to and risk of loss of BFE provided for such Aircraft will at all times
remain with Customer or other owner. Boeing will have only such liability for
BFE as a bailee for mutual benefit would have, but will not be liable for loss
of use.
7.2 With respect to Aircraft manufactured in the State of California,
Customer agrees to sell and Boeing agrees to purchase each item of BFE
concurrently with its delivery to Boeing. A reasonable shipset price for the BFE
shall be established with Customer. Customer and Boeing agree that the Aircraft
Price will be increased by the amount of said shipset price and such amount will
be included on Boeing's invoice at time of Aircraft delivery. Boeing's payment
for the purchase of each shipset of BFE from Customer will be made at the time
of delivery of the Aircraft in which the BFE is installed.
8. Interchange of BFE
To properly maintain Boeing's production flow and to preserve Boeing's
delivery commitments, Boeing reserves the right, if necessary, due to equipment
shortages or failures, to interchange new items of BFE acquired from or for
Customer with new items of the same part numbers acquired from or for other
customers of Boeing. Used BFE acquired from Customer or from other customers of
Boeing will not be interchanged.
A-3
9. Indemnification of Boeing.
Customer hereby indemnifies and holds harmless Boeing from and against all
claims and liabilities, including costs and expenses (including attorneys' fees)
incident thereto or incident to successfully establishing the right to
indemnification, for injury to or death of any person or persons, including
employees of Customer but not employees of Boeing, or for loss of or damage to
any property, including any Aircraft, arising out of or in any way connected
with any nonconformance or defect in any BFE and whether or not arising in tort
or occasioned by the negligence of Boeing. This indemnity will not apply with
respect to any nonconformance or defect caused solely by Boeing's installation
of the BFE.
10. Patent Indemnity.
Customer hereby indemnifies and holds harmless Boeing from and against all
claims, suits, actions, liabilities, damages and costs arising out of any actual
or alleged infringement of any patent or other intellectual property rights by
BFE or arising out of the installation, sale or use of BFE by Boeing.
11. Definitions.
For the purposes of the above indemnities, the term "Boeing" includes The
Boeing Company, its divisions, subsidiaries and affiliates, the assignees of
each, and their directors, officers, employees and agents.
A-4
EXHIBIT B
TO
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-COP
BETWEEN
THE BOEING COMPANY
AND
COPA HOLDINGS, S.A.
CUSTOMER SUPPORT DOCUMENT
This document contains:
Part 1: Maintenance and Flight Training Programs; Operations
Engineering Support
Part 2: Field Services and Engineering Support Services
Part 3: Technical Information and Materials
Part 4: Alleviation or Cessation of Performance
Part 5: Protection of Proprietary Information and Proprietary Materials
B
CUSTOMER SUPPORT DOCUMENT
PART 1: BOEING MAINTENANCE AND FLIGHT TRAINING
PROGRAMS; OPERATIONS ENGINEERING SUPPORT
1. Boeing Training Programs.
1.1 Boeing will provide maintenance training and flight training programs
to support the introduction of a specific model of aircraft into service. The
training programs will consist of general and specialized courses and will be
described in a Supplemental Exhibit to the applicable purchase agreement.
1.2 Boeing will conduct all training at Boeing's primary training facility
for the model of aircraft purchased unless otherwise agreed.
1.3 All training will be presented in the English language. If translation
is required, Customer will provide interpreters.
1.4 Customer will be responsible for all expenses of Customer's personnel.
Boeing will transport Customer's personnel between their local lodging and
Boeing's training facility.
2. Training Planning Conferences.
Customer and Boeing will conduct planning conferences approximately 12
months before the scheduled delivery month of the first aircraft of a model to
define and schedule the maintenance and flight training programs.
3. Operations Engineering Support.
3.1 As long as an aircraft purchased by Customer from Boeing is operated
by Customer in scheduled revenue service, Boeing will provide operations
engineering support. Such support will include:
3.1.1 assistance with the analysis and preparation of performance
data to be used in establishing operating practices and policies for Customer's
operation of aircraft;
3.1.2 assistance with interpretation of the minimum equipment list,
the definition of the configuration deviation list and the analysis of
individual aircraft performance;
3.1.3 assistance with solving operational problems associated with
delivery and route-proving flights;
3.1.4 information regarding significant service items relating to
aircraft performance or flight operations; and
3.1.5 if requested by Customer, Boeing will provide operations
engineering support during an aircraft ferry flight.
B
4. Training at a Facility Other Than Boeing's.
If requested by Customer, Boeing will conduct the classroom portions of
the maintenance and flight training (except for the Performance Engineer
training courses) at a mutually acceptable alternate training site, subject to
the following conditions:
4.1 Customer will provide acceptable classroom space, simulators (as
necessary for flight training) and training equipment required to present the
courses;
4.2 Customer will pay Boeing's then-current per diem charge for each
Boeing instructor for each day, or fraction thereof, that the instructor is away
from their home location, including travel time;
4.3 Customer will reimburse Boeing for the actual costs of round-trip
transportation for Boeing's instructors and the shipping costs of training
Materials between the primary training facility and the alternate training site;
4.4 Customer will be responsible for all taxes, fees, duties, licenses,
permits and similar expenses incurred by Boeing and its employees as a result of
Boeing's providing training at the alternate site or incurred as a result of
Boeing providing revenue service training; and
4.5 Those portions of training that require the use of training devices
not available at the alternate site will be conducted at Boeing's facility or at
some other alternate site.
5. General Terms and Conditions.
5.1 Boeing flight instructor personnel will not be required to work more
than 5 days per week, or more than 8 hours in any one 24-hour period, of which
not more than 5 hours per 8-hour workday will be spent in actual flying. These
foregoing restrictions will not apply to ferry assistance or revenue service
training services, which will be governed by FAA rules and regulations.
5.2 NORMAL LINE MAINTENANCE is defined as line maintenance that Boeing
might reasonably be expected to furnish for flight crew training at Boeing's
facility, and will include ground support and aircraft storage in the open, but
will not include provision of spare parts. Boeing will provide Normal Line
Maintenance services for any aircraft while the aircraft is used for flight crew
training at Boeing's facility. Customer will provide such services if flight
crew training is conducted elsewhere. Regardless of the location of such
training, Customer will be responsible for providing all maintenance items
(other than those included in Normal Line Maintenance) required during the
training, including, but not limited to, fuel, oil, landing fees and spare
parts.
5.3 If the training is based at Boeing's facility, and the aircraft is
damaged during such training, Boeing will make all necessary repairs to the
aircraft as promptly as possible. Customer will pay Boeing's reasonable charge,
including the price of parts and materials, for making the repairs. If Boeing's
estimated labor charge for the repair exceeds $25,000, Boeing and Customer will
enter into an agreement for additional services before beginning the repair
work.
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5.4 If the flight training is based at Boeing's facility, several airports
in surrounding states may be used, at Boeing's option. Unless otherwise agreed
in the flight training planning conference, it will be Customer's responsibility
to make arrangements for the use of such airports.
5.5 If Boeing agrees to make arrangements on behalf of Customer for the
use of airports for flight training, Boeing will pay on Customer's behalf any
landing fees charged by any airport used in conjunction with the flight
training. At least 30 days before flight training, Customer will provide Boeing
an open purchase order against which Boeing will invoice Customer for any
landing fees Boeing paid on Customer's behalf. The invoice will be submitted to
Customer approximately 60 days after flight training is completed, when all
landing fee charges have been received and verified. Customer will pay to Boeing
within 30 days of the date of the invoice.
5.6 If requested by Boeing, in order to provide the flight training or
ferry flight assistance, Customer will make available to Boeing an aircraft
after delivery to familiarize Boeing instructor or ferry flight crew personnel
with such aircraft. If flight of the aircraft is required for any Boeing
instructor or ferry flight crew member to maintain an FAA license for flight
proficiency or landing currency, Boeing will be responsible for the costs of
fuel, oil, landing fees and spare parts attributable to that portion of the
flight.
5.7 If any part of the training described in paragraph 1.1 of this Exhibit
is not used by Customer within 12 months after the delivery of the last aircraft
under the relevant purchase agreement, Boeing will not be obligated to provide
such training.
B
CUSTOMER SUPPORT DOCUMENT
PART 2: FIELD AND ENGINEERING SUPPORT SERVICES
1. Field Service Representation.
Boeing will furnish field service representation to advise Customer with
respect to the maintenance and operation of an aircraft (FIELD SERVICE
REPRESENTATIVES).
1.1 Field Service representation will be available at or near Customer's
main maintenance or engineering facility beginning before the scheduled delivery
month of the first aircraft and ending 12 months after delivery of the last
aircraft covered by a specific purchase agreement.
1.2 Customer will provide, at no charge to Boeing, suitable furnished
office space and office equipment at the location where Boeing is providing
Field Service Representatives. As required, Customer will assist each Field
Service Representative with visas, work permits, customs, mail handling,
identification passes and formal introduction to local airport authorities.
1.3 Boeing Field Service Representatives are assigned to various airports
around the world. Whenever Customer's aircraft are operating through any such
airport, the services of Boeing's Field Service Representatives are available to
Customer.
2. Engineering Support Services.
Boeing will, if requested by Customer, provide technical advisory
assistance for any aircraft and Boeing Product (as defined in Part I of Exhibit
C). Technical advisory assistance, provided from the Seattle area or at a base
designated by Customer as appropriate, will include:
2.1 Operational Problem Support. If Customer experiences operational
problems with an aircraft, Boeing will analyze the information provided by
Customer to determine the probable nature and cause of the problem and to
suggest possible solutions.
2.2 Schedule Reliability Support. If Customer is not satisfied with the
schedule reliability of a specific model of aircraft, Boeing will analyze
information provided by Customer to determine the nature and cause of the
problem and to suggest possible solutions.
2.3 Maintenance Cost Reduction Support. If Customer is concerned that
actual maintenance costs of a specific model of aircraft are excessive, Boeing
will analyze information provided by Customer to determine the nature and cause
of the problem and to suggest possible solutions.
2.4 Aircraft Structural Repair Support. If Customer is designing
structural repairs and desires Boeing's support, Boeing will analyze and comment
on Customer's engineering releases relating to structural repairs not covered by
Boeing's Structural Repair Manual.
2.5 Aircraft Modification Support. If Customer is designing aircraft
modifications and requests Boeing's support, Boeing will analyze and comment on
Customer's engineering
B
proposals for changes in, or replacement of, systems, parts, accessories or
equipment manufactured to Boeing's detailed design. Boeing will not analyze or
comment on any major structural change unless Customer's request for such
analysis and comment includes complete detailed drawings, substantiating
information (including any information required by applicable government
agencies), all stress or other appropriate analyses, and a specific statement
from Customer of the substance of the review and the response requested.
2.6 Facilities, Ground Equipment and Maintenance Planning Support. Boeing
will, at Customer's request, evaluate Customer's technical facilities, tools and
equipment for servicing and maintaining aircraft, to recommend changes where
necessary and to assist in the formulation of an overall maintenance plan.
2.7 Post-Delivery Service Support. Boeing will, at Customer's request,
perform work on an aircraft after delivery but prior to the initial departure
flight or upon the return of the aircraft to Boeing's facility prior to
completion of that flight. In that event the following provisions will apply.
2.7.1 Boeing may rely upon the commitment authority of the
Customer's personnel requesting the work.
2.7.2 As title and risk of loss has passed to Customer, the
insurance provisions of Article 8.2 of the AGTA apply.
2.7.3 The provisions of the Boeing Warranty in Part 2 of Exhibit C
of this AGTA apply.
2.7.4 Customer will pay Boeing for requested work not covered by the
Boeing Warranty, if any.
2.7.5 The DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND
OTHER DAMAGES provisions in Article 11 of Part 2 of Exhibit C of this AGTA
apply.
2.8 Additional Services. Boeing may, at Customer's request, provide
additional services for an aircraft after delivery, which may include retrofit
kit changes (kits and/or information), training, maintenance and repair of
aircraft. Such additional services will be subject to a mutually acceptable
price, schedule and scope of work. The DISCLAIMER AND RELEASE and the EXCLUSION
OF CONSEQUENTIAL AND OTHER DAMAGES provisions in Article 11 of Part 2 of Exhibit
C of this AGTA and the insurance provisions in Article 8.2 of this AGTA will
apply to any such work. Title to and risk of loss of any such aircraft will
always remain with Customer.
B
CUSTOMER SUPPORT DOCUMENT
PART 3: TECHNICAL INFORMATION AND MATERIALS
1. General.
MATERIALS are defined as any and all items that are created by Boeing or a
third party, which are provided directly or indirectly from Boeing and serve
primarily to contain, convey or embody information. Materials may include either
tangible embodiments (for example, documents or drawings), or intangible
embodiments (for example, software and other electronic forms) of information
but excludes Aircraft Software. AIRCRAFT SOFTWARE is defined as software that is
installed on and used in the operation of the aircraft.
Boeing will furnish to Customer certain Materials to support the
maintenance and operation of the aircraft at no additional charge to Customer,
except as otherwise provided herein. Such Materials will, if applicable, be
prepared generally in accordance with Air Transport Association of America (ATA)
Specification No. 100, entitled "Specification for Manufacturers' Technical
Data". Materials will be in English and in the units of measure used by Boeing
to manufacture an aircraft.
Digitally-produced Materials will, if applicable, be prepared generally in
accordance with ATA Specification No. 2100, dated January 1994, "Digital Data
Standards for Aircraft Support."
2. Materials Planning Conferences.
Customer and Boeing will conduct planning conferences approximately 12
months before the scheduled delivery month of the first aircraft of a model in
order to mutually determine the proper format and quantity of Materials to be
furnished to Customer in support of the aircraft.
When available, Customer may select Boeing standard digital format as the
delivery medium or, alternatively, Customer may select a reasonable quantity of
printed and 16mm microfilm formats. When Boeing standard digital format is
selected, Customer may also select up to 5 copies of printed or microfilm format
copies, with the exception of the Illustrated Parts Catalog, which will be
provided in one selected format only.
3. Information and Materials - Incremental Increase.
Until one year after the month of delivery of the last aircraft covered by
a specific purchase agreement, Customer may annually request in writing a
reasonable increase in the quantity of Materials with the exception of microfilm
master copies, digital formats, and others for which a specified number of
copies are provided. Boeing will provide the additional quantity at no
additional charge beginning with the next normal revision cycle. Customer may
request a decrease in revision quantities at any time.
4. Advance Representative Copies.
All advance representative copies of Materials will be selected by Boeing
from available sources. Such advance copies will be for advance planning
purposes only.
B
5. Customized Materials.
All customized Materials will reflect the configuration of each aircraft
as delivered.
6. Revisions.
6.1 Revision Service. Boeing will provide revisions free of charge for
those Materials which have a revision service. Such Materials will be identified
in the planning conference conducted for a specific model of aircraft. The
revision service will reflect changes developed by Boeing, as long as Customer
operates an aircraft of that model.
6.2 Revisions Based on Boeing Service Bulletin Incorporation. If Boeing
receives written notice that Customer intends to incorporate, or has
incorporated, any Boeing service bulletin in an aircraft, Boeing will at no
charge issue revisions to Materials with revision service reflecting the effects
of such incorporation into such aircraft.
7. Computer Software Documentation for Boeing Manufactured Airborne
Components and Equipment.
Boeing will provide to Customer a Computer Software Index containing a
listing of (i) all programmed airborne avionics components and equipment
manufactured by Boeing or a Boeing subsidiary, designed and developed in
accordance with Radio Technical Commission for Aeronautics Document No.
RTCA/DO-178 dated January 1982, No. RTCA/DO-178A dated March 1985, or later as
available, and installed by Boeing in aircraft covered by the applicable
purchase agreement and (ii) specific software documents (SOFTWARE DOCUMENTATION)
available to Customer from Boeing for the listed components and equipment.
Two copies of the Computer Software Index will be furnished to Customer
with the first aircraft of a model. Revisions to the Computer Software Index
applicable to such model of aircraft will be issued to Customer as revisions are
developed by Boeing for so long as Customer operates the aircraft.
Software Documentation will be provided to Customer upon written request.
The charge to Customer for Software Documentation will be Boeing's price to
reproduce the Software Documentation requested. Software Documentation will be
prepared generally in accordance with ATA Specification No. 102 revised April
20, 1983, "Specification for Computer Software Manual" but Software
Documentation will not include, and Boeing will not be obligated to provide, any
code (including, but not limited to, original source code, assembled source
code, or object code) on computer sensible media.
8. Supplier Technical Data.
8.1 8.1 For supplier-manufactured programmed airborne avionics components
and equipment classified as Seller Furnished Equipment (SFE) or Seller Purchased
Equipment (SPE) or Buyer Designated Equipment (BDE) which contain computer
software designed and developed in accordance with Radio Technical Commission
for Aeronautics Document No. RTCA/DO-178 dated January 1982, No. RTCA/DO-178A
dated March 1985, or later as
B
available, Boeing will request that each supplier of the components and
equipment make software documentation available to Customer in a manner similar
to that described in Article 7 above.
8.2 The provisions of this Article will not be applicable to items of BFE.
8.3 Boeing will furnish to Customer a document identifying the terms and
conditions of the product support agreements between Boeing and its suppliers
requiring the suppliers to fulfill Customer's requirements for information and
services in support of the specific model of aircraft.
9. Buyer Furnished Equipment Data.
Boeing will incorporate BFE information into the customized Materials
providing Customer makes the information available to Boeing at least nine
months prior to the scheduled delivery month of Customer's first aircraft of a
specific model. Customer agrees to furnish the information in Boeing standard
digital format if Materials are to be delivered in Boeing standard digital
format.
10. Materials Shipping Charges.
Boeing will pay the reasonable transportation costs of the Materials.
Customer is responsible for any customs clearance charges, duties, and taxes.
11. Customer's Shipping Address.
The Materials furnished to Customer hereunder are to be sent to a single
address to be specified. Customer will promptly notify Boeing of any change to
the address.
B
CUSTOMER SUPPORT DOCUMENT
PART 4: ALLEVIATION OR CESSATION OF PERFORMANCE
Boeing will not be required to provide any Materials, services, training or
other things at a facility designated by Customer if any of the following
conditions exist:
1. a labor stoppage or dispute in progress involving Customer;
2. wars or warlike operations, riots or insurrections in the country
where the facility is located;
3. any condition at the facility which, in the opinion of Boeing, is
detrimental to the general health, welfare or safety of its
personnel or their families;
4. the United States Government refuses permission to Boeing personnel
or their families to enter into the country where the facility is
located, or recommends that Boeing personnel or their families leave
the country; or
5. the United States Government refuses permission to Boeing to deliver
Materials, services, training or other things to the country where
the facility is located.
After the location of Boeing personnel at the facility, Boeing further reserves
the right, upon the occurrence of any of such events, to immediately and without
prior notice to Customer relocate its personnel and their families.
B
CUSTOMER SUPPORT DOCUMENT
PART 5: PROTECTION OF PROPRIETARY INFORMATION
AND PROPRIETARY MATERIALS
1. General.
All Materials provided by Boeing to Customer and not covered by a Boeing CSGTA
or other agreement between Boeing and Customer defining Customer's right to use
and disclose the Materials and included information will be covered by, and
subject to the terms of this AGTA. Title to all Materials containing, conveying
or embodying confidential, proprietary or trade secret information (Proprietary
Information) belonging to Boeing or a third party (Proprietary Materials), will
at all times remain with Boeing or such third party. Customer will treat all
Proprietary Materials and all Proprietary Information in confidence and use and
disclose the same only as specifically authorized in this AGTA.
2. License Grant.
Boeing grants to Customer a worldwide, non-exclusive, non-transferable license
to use and disclose Proprietary Materials in accordance with the terms and
conditions of this AGTA. Customer is authorized to make copies of Materials
(except for Materials bearing the copyright legend of a third party), and all
copies of Proprietary Materials will belong to Boeing and be treated as
Proprietary Materials under this AGTA. Customer will preserve all proprietary
legends, and all copyright notices on all Materials and insure the inclusion of
those legends and notices on all copies.
3. Use of Proprietary Materials and Proprietary Information.
Customer is authorized to use Proprietary Materials and Proprietary Information
for the purpose of: (a) operation, maintenance, repair, or modification of
Customer's aircraft for which the Proprietary Materials and Proprietary
Information have been specified by Boeing and (b) development and manufacture of
training devices for use by Customer.
4. Providing of Proprietary Materials to Contractors.
Customer is authorized to provide Proprietary Materials to Customer's
contractors for the sole purpose of maintenance, repair, or modification of
Customer's aircraft for which the Proprietary Materials have been specified by
Boeing. In addition, Customer may provide Proprietary Materials to Customer's
contractors for the sole purpose of developing and manufacturing training
devices for Customer's use. Before providing Proprietary Materials to its
contractor, Customer will first obtain a written agreement from the contractor
by which the contractor agrees (a) to use the Proprietary Materials only on
behalf of Customer, (b) to be bound by all of the restrictions and limitations
of this Part 5, and (c) that Boeing is a third party beneficiary under the
written agreement. Customer agrees to provide copies of all such written
agreements to Boeing upon request and be liable to Boeing for any breach of
those agreements by a contractor. A sample agreement acceptable to Boeing is
attached as Appendix VII.
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5. Providing of Proprietary Materials and Proprietary Information to
Regulatory Agencies.
When and to the extent required by a government regulatory agency having
jurisdiction over Customer or an aircraft, Customer is authorized to provide
Proprietary Materials and to disclose Proprietary Information to the agency for
use in connection with Customer's operation, maintenance, repair, or
modification of such aircraft. Customer agrees to take all reasonable steps to
prevent the agency from making any distribution, disclosure, or additional use
of the Proprietary Materials and Proprietary Information provided or disclosed.
Customer further agrees to notify Boeing immediately upon learning of any (a)
distribution, disclosure, or additional use by the agency, (b) request to the
agency for distribution, disclosure, or additional use, or (c) intention on the
part of the agency to distribute, disclose, or make additional use of
Proprietary Materials or Proprietary Information.
B
EXHIBIT C
TO
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-COP
BETWEEN
THE BOEING COMPANY
AND
COPA HOLDINGS, S.A.
PRODUCT ASSURANCE DOCUMENT,
This document contains:
Part 1: Exhibit C Definitions
Part 2: Boeing Warranty
Part 3: Boeing Service Life Policy
Part 4: Supplier Warranty Commitment
Part 5: Boeing Interface Commitment
Part 6: Boeing Indemnities against Patent and
Copyright Infringement
C
PRODUCT ASSURANCE DOCUMENT
PART 1: EXHIBIT C DEFINITIONS
AUTHORIZED AGENT - Agent appointed by Customer to perform corrections and
to administer warranties (see Appendix VI to the AGTA for a form acceptable to
Boeing).
AVERAGE DIRECT HOURLY LABOR RATE - the average hourly rate (excluding all
fringe benefits, premium-time allowances, social charges, business taxes and the
like) paid by Customer to its Direct Labor employees.
BOEING PRODUCT - any system, accessory, equipment, part or Aircraft
Software that is manufactured by Boeing or manufactured to Boeing's detailed
design with Boeing's authorization.
CORRECT - to repair, modify, provide modification kits or replace with a
new product.
CORRECTION - a repair, a modification, a modification kit or replacement
with a new product.
CORRECTED BOEING PRODUCT - a Boeing Product which is free of defect as a
result of a Correction.
DIRECT LABOR - Labor spent by Customer's or its Authorized Agent's direct
labor employees to remove, disassemble, modify, repair, inspect and bench test a
defective Boeing Product, and to reassemble, reinstall a Corrected Boeing
Product and perform final inspection.
DIRECT MATERIALS - Items such as parts, gaskets, grease, sealant and
adhesives, installed or consumed in performing a Correction, excluding
allowances for administration, overhead, taxes, customs duties and the like.
SOURCE CONTROL DRAWING (SCD) - a Boeing document defining specifications
for certain Supplier Products.
SUPPLIER - the manufacturer of a Supplier Product.
SUPPLIER PRODUCT - any system, accessory, equipment, part or Aircraft
Software that is not manufactured to Boeing's detailed design. This includes but
is not limited to parts manufactured to a SCD, all standards, and other parts
obtained from non-Boeing sources.
C
PRODUCT ASSURANCE DOCUMENT
PART 2: BOEING WARRANTY
1. Applicability.
This warranty applies to all Boeing Products. Warranties applicable to Supplier
Products are in Part 4. Warranties applicable to engines will be provided by
Supplemental Exhibits to individual purchase agreements.
2. Warranty.
2.1 Coverage. Boeing warrants that at the time of delivery:
(i) the aircraft will conform to the Detail Specification except
for portions stated to be estimates, approximations or design
objectives;
(ii) all Boeing Products will be free from defects in material,
process of manufacture and workmanship, including the
workmanship utilized to install Supplier Products, engines and
BFE, and;
(iii) all Boeing Products will be free from defects in design,
including selection of materials and the process of
manufacture. in view of the state of the art at the time of
design
2.2 Exceptions. The following conditions do not constitute a defect
under this warranty:
(i) conditions resulting from normal wear and tear;
(ii) conditions resulting from abuse or omissions of Customer; and
(iii) conditions resulting from failure to properly service and
maintain a Boeing Product.
3. Warranty Periods.
3.1 Warranty. The warranty period begins on the date of aircraft or Boeing
Product delivery and ends: (i) after 48 months for Boeing aircraft models
777-200, -300 or 737-600, -700, -800, or new aircraft models designed and
manufactured with similar, new technology; or, (ii) after 36 months for any
other Boeing aircraft model.
3.2 Warranty on Corrected Boeing Products. The warranty period applicable
to a Corrected Boeing Product, including the workmanship to Correct and install,
resulting from a defect in material or workmanship is the remainder of the
initial warranty period for the
C
defective Boeing Product it replaced. The warranty period for a Corrected Boeing
Product resulting from a defect in design is 18 months or the remainder of the
initial warranty period, whichever is longer. The 18 month period begins on the
date of delivery of the Corrected Boeing Product or date of delivery of the kit
or kits furnished to Correct the Boeing Product.
3.3 Survival of Warranties. All warranty periods are stated above. The
Performance Guarantees will not survive delivery of the aircraft.
4. Remedies.
4.1 Correction Options. Customer may, at its option, either perform a
Correction of a defective Boeing Product or return the Boeing Product to Boeing
for Correction.
4.2 Warranty Labor Rate. If Customer or its Authorized Agent Corrects a
defective Boeing Product, Boeing will reimburse Customer for Direct Labor Hours
at Customer's established Warranty Labor Rate. Customer's established Warranty
Labor Rate will be the greater of the standard labor rate or 150% of Customer's
Average Direct Hourly Labor Rate. The standard labor rate paid by Boeing to its
customers is established and published annually. Prior to or concurrently with
submittal of Customer's first claim for Direct Labor reimbursement, Customer may
notify Boeing of Customer's then-current Average Direct Hourly Labor Rate, and
thereafter notify Boeing of any material change in such rate. Boeing will
require information from Customer to substantiate such rates.
4.3 Warranty Inspections. In addition to the remedies to Correct defects
in Boeing Products, Boeing will reimburse Customer for the cost of Direct Labor
to perform certain inspections of the aircraft to determine the occurrence of a
condition Boeing has identified as a covered defect, provided:
4.3.1 the inspections are recommended by a service bulletin or
service letter issued by Boeing during the warranty period; and
4.3.2 such reimbursement will not apply to any inspections performed
after a Correction is available to Customer.
4.4 Credit Memorandum Reimbursement. Boeing will make all reimbursements
by credit memoranda which may be applied toward the purchase of Boeing goods and
services.
4.5 Maximum Reimbursement. Unless previously agreed, the maximum
reimbursement for Direct Labor and Direct Materials used to Correct a defective
Boeing Product will not exceed 65% of Boeing's then-current sales price for a
new replacement Boeing Product.
5. Discovery and Notice.
5.1 For a claim to be valid:
(i) the defect must be discovered during the warranty period; and
C
(ii) Boeing Product Assurance Contracts must receive written notice
of the discovery no later than 90 days after expiration of the
warranty period. The notice must include sufficient
information to substantiate the claim.
5.2 Receipt of Customer's or its Authorized Agent's notice of the
discovery of a defect secures Customer's rights to remedies under this Exhibit
C, even though a Correction is performed after the expiration of the warranty
period.
5.3 Once Customer has given valid notice of the discovery of a defect, a
claim should be submitted as soon as practicable after performance of the
Correction.
5.4 Boeing may release service bulletins or service letters advising
Customer of the availability of certain warranty remedies. When such advice is
provided, Customer will be deemed to have fulfilled the requirements for
discovery of the defect and submittal of notice under this Exhibit C as of the
date specified in the service bulletin or service letter.
6. Filing a Claim.
6.1 Authority to File. Claims may be filed by Customer or its Authorized
Agent. Appointment of an Authorized Agent will only be effective upon Boeing's
receipt of the Authorized Agent's express written agreement, in a form
satisfactory to Boeing, to be bound by and to comply with all applicable terms
and conditions of this Aircraft General Terms Agreement.
6.2 Claim Information.
6.2.1 Claimant is responsible for providing sufficient information
to substantiate Customer's rights to remedies under this Exhibit C. Boeing may
reject a claim for lack of sufficient information. At a minimum, such
information must include:
(i) identity of claimant;
(ii) serial or block number of the aircraft on which the defective
Boeing Product was delivered;
(iii) part number and nomenclature of the defective Boeing Product;
(iv) purchase order number and date of delivery of the defective
spare part
(v) description and substantiation of the defect;
(vi) date the defect was discovered;
(vii) date the Correction was completed;
(viii) the total flight hours or cycles accrued;
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(ix) an itemized account of direct labor hours expended in
performing the Correction; and
(x) an itemized account of any direct materials incorporated in
the Correction.
6.2.2 Additional information may be required based on the nature of
the defect and the remedies requested.
6.3 Boeing Claim Processing.
6.3.1 Any claim for a Boeing Product returned by Customer or its
Authorized Agent to Boeing for Correction must accompany the Boeing Product. Any
claim not associated with the return of a Boeing Product must be signed and
submitted in writing directly by Customer or its Authorized Agent to Boeing
Product Assurance Contracts.
6.3.2 Boeing will promptly review the claim and will give
notification of claim approval or rejection. If the claim is rejected, Boeing
will provide a written explanation.
7. Corrections Performed by Customer or Its Authorized Agent.
7.1 Facilities Requirements. Provided Customer, its Authorized Agent or
its third party contractor, as appropriate, are certified by the appropriate
Civil Aviation Authority or Federal Aviation Authority, Customer or its
Authorized Agent may, at its option, Correct defective Boeing Products at its
facilities, or may subcontract Corrections to a third party contractor.
7.2 Technical Requirements. All Corrections done by Customer, its
Authorized Agent or a third party contractor must be performed in accordance
with Boeing's applicable service manuals, bulletins or other written
instructions, using parts and materials furnished or approved by Boeing.
7.3 Reimbursement.
7.3.1 Boeing will reimburse Customer's reasonable costs of Direct
Materials and Direct Labor (excluding time expended for overhaul) at Customer's
Warranty Labor Rate to Correct a defective Boeing Product. Claims for
reimbursement must contain sufficient information to substantiate Direct Labor
hours expended and Direct Materials consumed. Customer or its Authorized Agent
may be required to produce invoices for materials.
7.3.2 Reimbursement for Direct Labor hours to perform Corrections
stated in a service bulletin will be based on the labor estimates in the service
bulletin.
7.3.3 Boeing will reimburse Customer's freight charges associated
with a Correction of a defect on a Boeing Product performed by its Authorized
Agent or a third party contractor.
7.4 Disposition of Defective Boeing Products Beyond Economical Repair.
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7.4.1 A defective Boeing Product found to be beyond economical
repair (see Para. 4.5 Maximum Reimbursement) will be retained for a period of 60
days from the date Boeing receives Customer's claim. During the 60 day period,
Boeing may request return of such Boeing Products for inspection and
confirmation of a defect.
7.4.2 After the 60 day period, a defective Boeing Product with a
value of U.S. $2000 or less may be scrapped without notification to Boeing. If
such Boeing Product has a value greater than U.S. $2000, Customer must obtain
confirmation of unrepairability by Boeing's on-site Customer Services
Representative prior to scrapping. Confirmation may be in the form of the
Representative's signature on Customer's claim or through direct communication
between the Representative and Boeing Product Assurance Contracts.
8. Corrections Performed by Boeing.
8.1 Freight Charges. Customer or its Authorized Agent will pay shipping
charges to return a Boeing Product to Boeing. Boeing will reimburse Customer or
its Authorized Agent for the charge for any item determined to be defective
under this Aircraft General Terms Agreement. Boeing will pay shipping charges to
return the Corrected Boeing Product.
8.2 Customer Instructions. The documentation shipped with the returned
defective Boeing Product may include specific technical instructions for
additional work to be performed on the Boeing Product. The absence of such
instructions will evidence Customer's authorization for Boeing to perform all
necessary Corrections and work required to return the Boeing Product to a
serviceable condition.
8.3 Correction Time Objectives.
8.3.1 Boeing's objective for making Corrections is 10 working days
for avionics and electronic Boeing Products, 30 working days for Corrections of
other Boeing Products performed at Boeing's facilities, and 40 working days for
Corrections of other Boeing Products performed at a Boeing subcontractor's
facilities. The objectives are measured from the date Boeing receives the
defective Boeing Product and a valid claim to the date Boeing ships the
Correction.
8.3.2 If Customer has a critical parts shortage because Boeing has
exceeded a Correction time objective and Customer has procured spare Boeing
Products for the defective Boeing Product in quantities shown in Boeing's
Recommended Spare Parts List (RSPL) or Spares Planning and Requirements
Evaluation Model (M-SPARE), then Boeing will either expedite the Correction or
provide an interchangeable Boeing Product on a no charge loan or lease basis
until the Corrected Boeing Product is returned.
8.4 Title Transfer and Risk of Loss.
8.4.1 Title to and risk of loss of any Boeing Product returned to
Boeing will at all times remain with Customer or any other title holder of such
Boeing Product. While Boeing has possession of the returned Boeing Product,
Boeing will have only such liabilities as a bailee for mutual benefit would
have, but will not be liable for loss of use.
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8.4.2 If a Correction requires shipment of a new Boeing Product,
then at the time Boeing ships the new Boeing Product, title to and risk of loss
for the returned Boeing Product will pass to Boeing, and title to and risk of
loss for the new Boeing Product will pass to Customer.
9. Returning an Aircraft.
9.1 Conditions. An aircraft may be returned to Boeing's facilities for
Correction only if:
(i) Boeing and Customer agree a covered defect exists;
(ii) Customer lacks access to adequate facilities, equipment or
qualified personnel to perform the Correction; and
(iii) it is not practical, in Boeing's estimation, to dispatch
Boeing personnel to perform the Correction at a remote site.
9.2 Correction Costs. Boeing will perform the Correction at no charge to
Customer. Subject to the conditions of Paragraph 9.1 of Part 2 of Exhibit C to
this AGTA, Boeing will reimburse Customer for the costs of fuel, oil and landing
fees incurred in ferrying the aircraft to Boeing and back to Customer's
facilities. Customer will minimize the length of both flights.
9.3 Separate Agreement. Boeing and Customer will enter into a separate
agreement covering return of the aircraft and performance of the Correction.
Authorization by Customer for Boeing to perform additional work that is not part
of the Correction must be received within 24 hours of Boeing's request. If such
authorization is not received within 24 hours, Customer will be invoiced for
work performed by Boeing that is not part of the Correction.
10. Insurance.
The provisions of Article 8.2 "Insurance", of this AGTA, will apply to any
work performed by Boeing in accordance with Customer's specific technical
instructions, to the extent any legal liability of Boeing is based upon the
content of such instructions.
11. Disclaimer and Release; Exclusion of Liabilities.
11.1 DISCLAIMER AND RELEASE. THE WARRANTIES, OBLIGATIONS AND LIABILITIES
OF BOEING AND THE REMEDIES OF CUSTOMER IN THIS EXHIBIT C ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND CUSTOMER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER
WARRANTIES, OBLIGATIONS AND LIABILITIES OF BOEING AND ALL OTHER RIGHTS, CLAIMS
AND REMEDIES OF CUSTOMER AGAINST BOEING, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT,
MATERIALS, TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THIS AGTA AND THE
APPLICABLE PURCHASE AGREEMENT, INCLUDING, BUT NOT LIMITED TO:
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(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE,
COURSE OF DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT,
WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF
OR DAMAGE TO ANY AIRCRAFT.
11.2 EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. BOEING WILL HAVE NO
OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT,
WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING, OR OTHERWISE, FOR LOSS OF
USE, REVENUE OR PROFIT, OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES
WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT, MATERIALS,
TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THIS AGTA AND THE APPLICABLE
PURCHASE AGREEMENT.
11.3 Definitions. For the purpose of this Article, "BOEING" or "Boeing" is
defined as The Boeing Company, its divisions, subsidiaries, affiliates, the
assignees of each, and their respective directors, officers, employees and
agents.
C
PRODUCT ASSURANCE DOCUMENT
PART 3: BOEING SERVICE LIFE POLICY
1. Definitions.
SLP COMPONENT - any of the primary structural elements (excluding industry
standard parts) of the landing gear, wing, fuselage, vertical or horizontal
stabilizer listed in the applicable purchase agreement for a specific model of
aircraft that is installed in the aircraft at time of delivery or is purchased
from Boeing by Customer as a spare part. The detailed SLP Component listing will
be in Supplemental Exhibit SLP 1 to each Purchase Agreement.
2. Service Life Policy.
2.1 SLP Commitment. If a failure or defect is discovered in a SLP
Component within the time periods specified in Article 2.2 below, Boeing will,
at a price calculated pursuant to Article 3 below, Correct the SLP Component.
2.2 SLP Policy Periods.
2.2.1 The policy period for SLP Components initially installed on an
aircraft is 12 years after the date of delivery of the aircraft.
2.2.2 The policy period for SLP Components purchased from Boeing by
Customer as spare parts is 12 years from delivery of such SLP Component or 12
years from the date of delivery of the last aircraft produced by Boeing of a
specific model, whichever first expires.
3. Price.
The price that Customer will pay for the Correction of a defective or
failed SLP Component will be calculated pursuant to the following formula:
P = CT
---
144
where:
P = price to Customer
C = SLP Component sales price at time of Correction
T = total age in months of the defective or failed SLP
Component from
the date of delivery to Customer to the date of discovery
of such condition.
4. Conditions.
Boeing's obligations under this Policy are conditioned upon the following:
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4.1 Customer must notify Boeing in writing of the defect or failure within
three months after it is discovered.
4.2 Customer must provide reasonable evidence that the claimed defect or
failure is covered by this Policy and if requested by Boeing, that such defect
or failure was not the result of (i) a defect or failure in a component not
covered by this Policy, (ii) an extrinsic force, (iii) an act or omission of
Customer, or (iv) operation or maintenance contrary to applicable governmental
regulations or Boeing's instructions.
4.3 If return of a defective or failed SLP Component is practicable and
requested by Boeing, Customer will return such SLP Component to Boeing at
Boeing's expense.
4.4 Customer's rights and remedies under this Policy are limited to the
receipt of a Correction at prices calculated pursuant to Article 3 above.
5. Disclaimer and Release; Exclusion of Liabilities.
This Part 3 and the rights and remedies of Customer and the obligations of
Boeing are subject to the DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL
AND OTHER DAMAGES provisions of Article 11 of Part 2 of this Exhibit C.
C
PRODUCT ASSURANCE DOCUMENT
PART 4: SUPPLIER WARRANTY COMMITMENT
1. Supplier Warranties and Supplier Patent and Copyright Indemnities.
Boeing will use diligent efforts to obtain warranties and indemnities
against patent and copyright infringement enforceable by Customer from Suppliers
of Supplier Products (except for engines) installed on the aircraft at the time
of delivery that were selected and purchased by Boeing, but not manufactured to
Boeing's detailed design. Boeing will furnish copies of the warranties and
patent and copyright indemnities to Customer contained in Supplier Product
Support and Product Assurance Agreements, prior to the scheduled delivery month
of the first aircraft under the initial purchase agreement to the AGTA.
2. Boeing Assistance in Administration of Supplier Warranties.
Customer will be responsible for submitting warranty claims directly to
Suppliers; however, if Customer experiences problems enforcing any Supplier
warranty obtained by Boeing for Customer, Boeing will conduct an investigation
of the problem and assist Customer in the resolution of those claims.
3. Boeing Support in Event of Supplier Default.
3.1 If the Supplier defaults in the performance of a material obligation
under its warranty, and Customer provides evidence to Boeing that a default has
occurred, then Boeing will furnish the equivalent warranty terms as provided by
the defaulting Supplier.
3.2 At Boeing's request, Customer will assign to Boeing, and Boeing will
be subrogated to, its rights against the Supplier provided by the Supplier
warranty.
C
PRODUCT ASSURANCE DOCUMENT
PART 5: BOEING INTERFACE COMMITMENT
1. Interface Problems.
An INTERFACE PROBLEM is defined as a technical problem in the operation of
an aircraft or its systems experienced by Customer, the cause of which is not
readily identifiable by Customer but which Customer believes to be attributable
to either the design characteristics of the aircraft or its systems or the
workmanship used in the installation of Supplier Products. In the event Customer
experiences an Interface Problem, Boeing will, without additional charge to
Customer, promptly conduct an investigation and analysis to determine the cause
or causes of the Interface Problem. Boeing will promptly advise Customer at the
conclusion of its investigation of Boeing's opinion as to the causes of the
Interface Problem and Boeing's recommendation as to corrective action.
2. Boeing Responsibility.
If Boeing determines that the Interface Problem is primarily attributable
to the design or installation of any Boeing Product, Boeing will Correct the
design or workmanship to the extent of any then-existing obligations of Boeing
under the provisions of the applicable Boeing Warranty or Boeing Service Life
Policy.
3. Supplier Responsibility.
If Boeing determines that the Interface Problem is primarily attributable
to the design or installation of a Supplier Product, Boeing will assist Customer
in processing a warranty claim against the Supplier.
4. Joint Responsibility.
If Boeing determines that the Interface Problem is partially attributable
to the design or installation of a Boeing Product and partially to the design or
installation of a Supplier Product, Boeing will seek a solution to the Interface
Problem through the cooperative efforts of Boeing and the Supplier and will
promptly advise Customer of the resulting corrective actions and
recommendations.
5. General.
Customer will, if requested by Boeing, assign to Boeing any of its rights
against any supplier as Boeing may require to fulfill its obligations hereunder.
6. Disclaimer and Release; Exclusion of Liabilities.
This Part 5 and the rights and remedies of Customer and the obligations of
Boeing herein are subject to the DISCLAIMER AND RELEASE and EXCLUSION OF
CONSEQUENTIAL AND OTHER DAMAGES provisions of Article 11 of Part 2 of this
Exhibit C.
C
PRODUCT ASSURANCE DOCUMENT
PART 6: BOEING INDEMNITIES AGAINST PATENT
AND COPYRIGHT INFRINGEMENT
1. Indemnity Against Patent Infringement.
Boeing will defend and indemnify Customer with respect to all claims,
suits and liabilities arising out of any actual or alleged patent infringement
through Customer's use, lease or resale of any aircraft or any Boeing Product
installed on an aircraft at delivery.
2. Indemnity Against Copyright Infringement.
Boeing will defend and indemnify Customer with respect to all claims,
suits and liabilities arising out of any actual or alleged copyright
infringement through Customer's use, lease or resale of any Boeing created
Materials and Aircraft Software installed on an aircraft at delivery.
3. Exceptions, Limitations and Conditions.
3.1 Boeing's obligation to indemnify Customer for patent infringement will
extend only to infringements in countries which, at the time of the
infringement, were party to and fully bound by either (a) Article 27 of the
Chicago Convention on International Civil Aviation of December 7, 1944, or (b)
the International Convention for the Protection of Industrial Property (Paris
Convention).
3.2 Boeing's obligation to indemnify Customer for copyright infringement
is limited to infringements in countries which, at the time of the infringement,
are members of The Berne Union and recognize computer software as a "work" under
The Berne Convention.
3.3 The indemnities provided under this Part 6 will not apply to any (i)
BFE, (ii) engines, (iii) Supplier Product (iv) Boeing Product used other than
for its intended purpose, or (v) Aircraft Software not created by Boeing.
3.4 Customer must deliver written notice to Boeing (i) within 10 days
after Customer first receives notice of any suit or other formal action against
Customer and (ii) within 20 days after Customer first receives any other
allegation or written claim of infringement covered by this Part 6.
3.5 At any time, Boeing will have the right at its option and expense to:
(i) negotiate with any party claiming infringement, (ii) assume or control the
defense of any infringement allegation, claim, suit or formal action, (iii)
intervene in any infringement suit or formal action, and/or (iv) attempt to
resolve any claim of infringement by replacing an allegedly infringing Boeing
Product or Aircraft Software with a noninfringing equivalent.
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3.6 Customer will promptly furnish to Boeing all information, records and
assistance within Customer's possession or control which Boeing considers
relevant or material to any alleged infringement covered by this Part 6.
3.7 Except as required by a final judgment entered against Customer by a
court of competent jurisdiction from which no appeals can be or have been filed,
Customer will obtain Boeing's written approval prior to paying, committing to
pay, assuming any obligation or making any material concession relative to any
infringement covered by these indemnities.
3.8 BOEING WILL HAVE NO OBLIGATION OR LIABILITY UNDER THIS PART 6 FOR LOSS
OF USE, REVENUE OR PROFIT, OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES.
THE OBLIGATIONS OF BOEING AND REMEDIES OF CUSTOMER IN THIS PART 6 ARE EXCLUSIVE
AND IN SUBSTITUTION FOR, AND CUSTOMER HEREBY WAIVES, RELEASES AND RENOUNCES ALL
OTHER INDEMNITIES, OBLIGATIONS AND LIABILITIES OF BOEING AND ALL OTHER RIGHTS,
CLAIMS AND REMEDIES OF CUSTOMER AGAINST BOEING, EXPRESS OR IMPLIED, ARISING BY
LAW OR OTHERWISE, WITH RESPECT TO ANY ACTUAL OR ALLEGED PATENT, COPYRIGHT OR
OTHER INTELLECTUAL PROPERTY INFRINGEMENT OR THE LIKE BY ANY AIRCRAFT, AIRCRAFT
SOFTWARE, MATERIALS, TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THIS AGTA
AND THE APPLICABLE PURCHASE AGREEMENT.
3.9 For the purposes of this Part 6, "BOEING or Boeing" is defined as The
Boeing Company, its divisions, subsidiaries, affiliates, the assignees of each
and their respective directors, officers, employees and agents.
C
EXHIBIT D
TO
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-COP
BETWEEN
THE BOEING COMPANY
AND
COPA HOLDINGS, S.A.
ESCALATION ADJUSTMENT
AIRFRAME AND OPTIONAL FEATURES
(FOR MODEL 717-200, 737-600, 737-700, 737-800 AND 737-900,
THE AIRFRAME PRICE INCLUDES THE ENGINE PRICE AT ITS BASIC THRUST LEVEL.)
D
EXHIBIT D
ESCALATION ADJUSTMENT
1. Formula.
Airframe and Optional Features price adjustments (Airframe Price
Adjustment); are used to allow prices to be stated in current year dollars at
the signing of the applicable purchase agreement and to adjust the amount to be
paid by Customer at delivery for the effects of economic fluctuation. The
Airframe Price Adjustment will be determined at the time of aircraft delivery in
accordance with the following formula:
P(a) = (P+B)(L + M) - P
Where:
P(a) = Airframe Price Adjustment. (For Model 717-200, 737-600,
737-700, 737-800 and 737-900, the Airframe Price includes the
Engine Price at its basic thrust level.)
L = .65 x ECI where ECI(b) is the base year index (as set
--- forth in Table 1 of the applicable purchase
ECI(b) agreement)
M = .35 x ICI where ICI(b) is the base year index (as set
--- forth in Table 1 of the applicable purchase
ICI(b) agreement)
P = Airframe Price plus Optional Features Price (as set forth in
the applicable purchase agreement).
B = 0.005 x (N/12) x (P) where N is the calendar month and year
of scheduled Aircraft delivery minus the
calendar month and year of the Base Price
Year, both as shown in Table 1 of the
applicable purchase agreement.
ECI is a value determined using the U.S. Department of Labor, Bureau
of Labor Statistics "Employment Cost Index for workers in aerospace
manufacturing - Wages and Salaries" (ECI code 3721W), calculated by
establishing a three-month arithmetic average value (expressed as a
decimal and rounded to the nearest tenth) using the values for the
fifth, sixth and seventh months prior to the month of scheduled
delivery of the applicable aircraft. As the Employment Cost Index
values are only released on a quarterly basis, the value released
for the month of March will be used for the months of January and
February; the value for June
D
used for April and May; the value for September used for July and
August; and the value for December used for October and November.
ICI is a value determined using the U.S. Department of Labor, Bureau
of Labor Statistics "Producer Prices and Price Index - Industrial
Commodities Index ", calculated as a 3-month arithmetic average of
the released monthly values (expressed as a decimal and rounded to
the nearest tenth) using the values for the 5th, 6th and 7th months
prior to the month of scheduled delivery of the applicable aircraft.
As an example, for an aircraft scheduled to be delivered in the
month of January, the months June, July and August of the preceding
year will be utilized in determining the value of ECI and ICI.
Note: i. In determining the values of L and M, all calculations and resulting
values will be expressed as a decimal rounded to the nearest
ten-thousandth.
ii. .65 is the numeric ratio attributed to labor in the Airframe Price
Adjustment formula.
iii. .35 is the numeric ratio attributed to materials in the Airframe
Price Adjustment formula.
iv. The denominators (base year indices) are the actual average values
reported by the U.S. Department of Labor, Bureau of Labor Statistics
(base year June 1989 = 100). The applicable base year and corresponding
denominator will be provided by Boeing in the applicable purchase
agreement.
v. If the calculated sum of L + M is less than 1.0000, then the value
of the sum is adjusted to 1.0000.
2. Values to be Utilized in the Event of Unavailability.
2.1 If the Bureau of Labor Statistics substantially revises the
methodology used for the determination of the values to be used to determine the
ECI and ICI values (in contrast to benchmark adjustments or other corrections of
previously released values), or for any reason has not released values needed to
determine the applicable Airframe Price Adjustment, the parties will, prior to
the delivery of any such aircraft, select a substitute from other Bureau of
Labor Statistics data or similar data reported by non-governmental
organizations. Such substitute will result in the same adjustment, insofar as
possible, as would have been calculated utilizing the original values adjusted
for fluctuation during the applicable time period. However, if within 24 months
after delivery of the aircraft, the Bureau of Labor Statistics should resume
releasing values for the months needed to determine the Airframe Price
Adjustment, such values will be used to determine any increase or decrease in
the Airframe Price Adjustment for the aircraft from that determined at the time
of delivery of the aircraft.
D
2.2 Notwithstanding Article 2.1 above, if prior to the scheduled delivery
month of an aircraft the Bureau of Labor Statistics changes the base year for
determination of the ECI and ICI values as defined above, such re-based values
will be incorporated in the Airframe Price Adjustment calculation.
2.3 In the event escalation provisions are made non-enforceable or
otherwise rendered void by any agency of the United States Government, the
parties agree, to the extent they may lawfully do so, to equitably adjust the
Purchase Price of any affected aircraft to reflect an allowance for increases or
decreases in labor compensation and material costs occurring since February,
1995, which is consistent with the applicable provisions of paragraph 1 of this
Exhibit D.
Note: i. The values released by the Bureau of Labor Statistics and available to
Boeing 30 days prior to the scheduled delivery month of an aircraft will
be used to determine the ECI and ICI values for the applicable months
(including those noted as preliminary by the Bureau of Labor Statistics)
to calculate the Airframe Price Adjustment for the aircraft invoice at the
time of delivery. The values will be considered final and no Aircraft
Price Adjustments will be made after Aircraft delivery for any subsequent
changes in published Index values.
ii. The maximum number of digits utilized in any part of the Airframe
Price Adjustment equation will be 4, where rounding of the fourth
digit will be increased to the next highest digit when the 5th digit is
equal to 5 or greater.
D
SAMPLE
INSURANCE CERTIFICATE
BROKER'S LETTERHEAD
[ date ]
Certificate of Insurance
ISSUED TO: The Boeing Company
Post Office Box 3707
Mail Stop 13-57
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager - Aviation Insurance for
Vice President - Employee Benefits,
Insurance and Taxes
CC: Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
Mail Stop 75-38
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Attn: Vice President - Contracts
NAMED INSURED: COPA HOLDINGS, S.A.
We hereby certify that in our capacity as Brokers to the Named Insured, the
following described insurance is in force on this date:
INSURER POLICY NO. PARTICIPATION
POLICY PERIOD: From [date and time of inception of the Policy(ies)] to [date and
time of expiration].
GEOGRAPHICAL LIMITS: Worldwide (however, as respects "Aircraft Hull War and
Allied Perils" Insurance, as agreed by Boeing).
App. I
SAMPLE
INSURANCE CERTIFICATE
AIRCRAFT INSURED: All Boeing manufactured aircraft owned or operated by
the Named Insured which are the subject of the
following purchase agreement(s), entered into between
The Boeing Company and _____________ (hereinafter
"Aircraft"):
Purchase Agreement No.____ dated ____
Purchase Agreement No.____ dated ____
COVERAGES:
1. AIRCRAFT "ALL RISKS" HULL (GROUND AND FLIGHT)
2. AIRCRAFT HULL WAR AND ALLIED PERILS (AS PER LSW 555, OR ITS SUCCESSOR
WORDING)
3. AIRLINE LIABILITY
Including, but not limited to, Bodily Injury, Property Damage, Aircraft
Liability, Liability War Risks, Passenger Legal Liability, Premises/Operations
Liability, Completed Operations/Products Liability, Baggage Legal Liability
(checked and unchecked), Cargo Legal Liability, Contractual Liability and
Personal Injury.
The above-referenced Airline Liability insurance coverage is subject to War and
Other Perils Exclusion Clause (AV48B) but all sections, other than section (b)
are reinstated as per AV52C, or their successor endorsements.
LIMITS OF LIABILITY:
To the fullest extent of the Policy limits that the Named Insured carries from
the time of delivery of the first Aircraft under the first Purchase Agreement
listed under "Aircraft Insured" and thereafter at the inception of each policy
period, but in any event no less than the following:
Combined Single Limit Bodily Injury and Property Damage: U.S.$ any one
occurrence each Aircraft (with aggregates as applicable).
(717-200) US$300,000,000
(737-500/600) US$350,000,000
(737-300/700) US$400,000,000
(737-400) US$450,000,000
(737-800) US$500,000,000
(757-200) US$525,000,000
(757-300) US$550,000,000
(767-200) US$550,000,000
(767-300) US$700,000,000
(767-400ERX) US$750,000,000
(777-200X) US$750,000,000
(MD-11) US$800,000,000
App. I
SAMPLE
INSURANCE CERTIFICATE
(777-200/300) US$800,000,000
(777-300X) US$900,000,000
(747-400) US$900,000,000
(In regard to all other models and/or derivatives, to be specified by Boeing).
(In regard to Personal Injury coverage, limits are US$25,000,000 any one
offense/aggregate.)
DEDUCTIBLES / SELF-INSURANCE
Any deductible and/or self-insurance amount (other than standard market
deductibles) are to be disclosed and agreed by Boeing.
SPECIAL PROVISIONS APPLICABLE TO BOEING:
It is certified that Insurers are aware of the terms and conditions of AGTA-COP
and the following purchase agreements:
PA ____ dated ____
PA ____ dated ____
PA ____ dated ____
Each Aircraft manufactured by Boeing which is delivered to the Insured pursuant
to the applicable purchase agreement during the period of effectivity of the
policies represented by this Certificate will be covered to the extent specified
herein.
Insurers have agreed to the following:
A. In regard to Aircraft "all risks" Hull Insurance and Aircraft Hull
War and Allied Perils Insurance, Insurers agree to waive all rights of
subrogation or recourse against Boeing in accordance with AGTA-COP which was
incorporated by reference into the applicable purchase agreement.
B. In regard to Airline Liability Insurance, Insurers agree:
(1) To include Boeing as an additional insured in accordance with
Customer's undertaking in Article 8.2.1 of AGTA-COP which was incorporated by
reference into the applicable purchase agreement.
(2) To provide that such insurance will be primary and not
contributory nor excess with respect to any other insurance available for the
protection of Boeing;
(3) To provide that with respect to the interests of Boeing, such
insurance shall not be invalidated or minimized by any action or inaction,
omission or misrepresentation by the Insured or any other person or party (other
than Boeing) regardless of any breach or violation of any warranty, declaration
or condition contained in such policies;
App. I
SAMPLE
INSURANCE CERTIFICATE
(4) To provide that all provisions of the insurance coverages
referenced above, except the limits of liability, will operate to give each
Insured or additional insured the same protection as if there were a separate
Policy issued to each.
C. In regard to all of the above referenced policies:
(1) Boeing will not be responsible for payment, set-off, or
assessment of any kind or any premiums in connection with the policies,
endorsements or coverages described herein;
(2) If a policy is canceled for any reason whatsoever, or any
substantial change is made in the coverage which affects the interests of Boeing
or if a policy is allowed to lapse for nonpayment of premium, such cancellation,
change or lapse shall not be effective as to Boeing for thirty (30) days (in the
case of war risk and allied perils coverage seven (7) days after sending, or
such other period as may from time to time be customarily obtainable in the
industry) after receipt by Boeing of written notice from the Insurers or the
authorized representatives or Broker of such cancellation, change or lapse; and
(3) For the purposes of the Certificate, "Boeing" is defined as
The Boeing Company, its divisions, subsidiaries, affiliates, the assignees of
each and their respective directors, officers, employees and agents.
SUBJECT TO THE TERMS, CONDITIONS, LIMITATIONS AND EXCLUSIONS OF THE RELATIVE
POLICIES.
(signature)
(typed name)
(title)
App. I
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
THIS PURCHASE AGREEMENT ASSIGNMENT (Assignment) dated as of _____ 19_
between COPA HOLDINGS, S.A., a company organized under the laws of
________________ (Assignor) and ____________________, a company organized under
the laws of ___________ (Assignee). Capitalized terms used herein without
definition will have the same meaning as in the Boeing Purchase Agreement.
Assignor and The Boeing Company, a Delaware corporation (Boeing), are
parties to the Boeing Purchase Agreement, providing, among other things, for the
sale by Boeing to Assignor of certain aircraft, engines and related equipment,
including the Aircraft.
Assignee wishes to acquire the Aircraft and certain rights and interests
under the Boeing Purchase Agreement and Assignor, on the following terms and
conditions, is willing to assign to Assignee certain of Assignor's rights and
interests under the Boeing Purchase Agreement. Assignee is willing to accept
such assignment.
It is agreed as follows:
1. For all purposes of this Assignment, the following terms will have
the following meanings:
Aircraft -- one Boeing Model ___________ aircraft, bearing manufacturer's
serial number _________, together with all engines and parts installed on such
aircraft on the Delivery Date.
Boeing -- Boeing shall include Boeing Sales Corporation (a wholly-owned
subsidiary of Boeing), a Guam corporation, and its successors and ------
assigns.
Boeing Purchase Agreement -- Purchase Agreement No. __________ dated as of
_________ between Boeing and Assignor, as amended, but excluding __________,
providing, among other things, for the sale by Boeing to Assignor of the
Aircraft, as said agreement may be further amended to the extent permitted by
its terms. The Purchase Agreement incorporated by reference Aircraft General
Terms Agreement AGTA/_____ (AGTA).
Delivery Date -- the date on which the Aircraft is delivered by Boeing to
Assignee pursuant to and subject to the terms and conditions of the Boeing
Purchase Agreement and this Assignment.
2. Assignor does hereby assign to Assignee all of its rights and
interests in and to the Boeing Purchase Agreement, as and to the extent that the
same relate to the Aircraft and the purchase and operation thereof, except as
and to the extent expressly reserved below, including, without limitation, in
such assignment: [TO BE COMPLETED BY THE PARTIES.]
App. II
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
{EXAMPLES
(a) the right upon valid tender to purchase the Aircraft pursuant to the
Boeing Purchase Agreement subject to the terms and conditions
thereof and the right to take title to the Aircraft and to be named
the "Buyer" in the ▇▇▇▇ of sale for the Aircraft;
(b) the right to accept delivery of the Aircraft;
(c) all claims for damages arising as a result of any default under the
Boeing Purchase Agreement in respect of the Aircraft;
(d) all warranty and indemnity provisions contained in the Boeing
Purchase Agreement, and all claims arising thereunder, in respect of
the Aircraft; and
(e) any and all rights of Assignor to compel performance of the terms of
the Boeing Purchase Agreement in respect of the Aircraft.}
Reserving exclusively to Assignor, however:
{EXAMPLES
(i) all Assignor's rights and interests in and to the Boeing Purchase
Agreement as and to the extent the same relates to aircraft other
than the Aircraft, or to any other matters not directly pertaining
to the Aircraft;
(ii) all Assignor's rights and interests in or arising out of any advance
or other payments or deposits made by Assignor in respect of the
Aircraft under the Boeing Purchase Agreement and any amounts
credited or to be credited or paid or to be paid by Boeing in
respect of the Aircraft;
(iii) the right to obtain services, training, information and
demonstration and test flights pursuant to the Boeing Purchase
Agreement; and
(iv) the right to maintain plant representatives at Boeing's plant
pursuant to the Boeing Purchase Agreement.}
Assignee hereby accepts such assignment.
3. Notwithstanding the foregoing, so long as no event of default or
termination under [specify document] has occurred and is continuing, Assignee
hereby authorizes Assignor, to the exclusion of Assignee, to exercise in
Assignor's name all rights and powers of Customer under the Boeing Purchase
Agreement in respect of the Aircraft.
App. II
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
4. For all purposes of this Assignment, Boeing will not be deemed to
have knowledge of or need recognize the occurrence, continuance or the
discontinuance of any event of default or termination under [specify document]
unless and until Boeing receives from Assignee written notice thereof, addressed
to its Vice President - Contracts, Boeing Commercial Airplane Group at ▇.▇. ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, if by mail, or to 32-9430 Answerback BOEINGREN
RNTN, if by telex. Until such notice has been given, Boeing will be entitled to
deal solely and exclusively with Assignor. Thereafter, until Assignee has
provided Boeing written notice that any such events no longer continue, Boeing
will be entitled to deal solely and exclusively with Assignee. Boeing may act
with acquittance and conclusively rely on any such notice.
5. It is expressly agreed that, anything herein contained to the
contrary notwithstanding: (a) prior to the Delivery Date Assignor will perform
its obligations with respect to the Aircraft to be performed by it on or before
such delivery, (b) Assignor will at all times remain liable to Boeing under the
Boeing Purchase Agreement to perform all obligations of Customer thereunder to
the same extent as if this Assignment had not been executed, and (c) the
exercise by Assignee of any of the assigned rights will not release Assignor
from any of its obligations to Boeing under the Boeing Purchase Agreement,
except to the extent that such exercise constitutes performance of such
obligations.
6. Notwithstanding anything contained in this Assignment to the
contrary (but without in any way releasing Assignor from any of its obligations
under the Boeing Purchase Agreement), Assignee confirms for the benefit of
Boeing that, insofar as the provisions of the Boeing Purchase Agreement relate
to the Aircraft, in exercising any rights under the Boeing Purchase Agreement,
or in making any claim with respect to the Aircraft or other things (including,
without limitation, Material, training and services) delivered or to be
delivered pursuant to the Boeing Purchase Agreement, the terms and conditions of
the Boeing Purchase Agreement, including, without limitation, the DISCLAIMER AND
RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in Article 11 of Part 2
of Exhibit C to the Aircraft General Terms Agreement which was incorporated by
reference into the Boeing Purchase Agreement and the insurance provisions in
Article 8.2 of the Aircraft General Terms Agreement which was incorporated by
reference into the Boeing Purchase Agreement therein, will apply to and be
binding on Assignee to the same extent as if Assignee had been the original
"Customer" thereunder. Assignee further agrees, expressly for the benefit of
Boeing, upon the written request of Boeing, Assignee will promptly execute and
deliver such further assurances and documents and take such further action as
Boeing may reasonably request in order to obtain the full benefits of Assignee's
agreements in this paragraph.
7. Nothing contained herein will subject Boeing to any liability to
which it would not otherwise be subject under the Boeing Purchase Agreement or
modify in any respect the contract rights of Boeing thereunder, or require
Boeing to divest itself of title to or possession of the Aircraft or other
things until delivery thereof and payment therefor as provided therein.
App. II
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
8. Notwithstanding anything in this Assignment to the contrary, after
receipt of notice of any event of default or termination under [specify
document], Boeing will continue to owe to Assignor moneys in payment of claims
made or obligations arising before such notice, which moneys may be subject to
rights of set-off available to Boeing under applicable law. Similarly, after
receipt of notice that such event of default or termination no longer continues,
Boeing will continue to owe to Assignee moneys in payment of claims made or
obligations arising before such notice, which moneys may be subject to rights of
set-off available to Boeing under applicable law.
9. Effective at any time after an event of default has occurred, and
for so long as such event of default is continuing, Assignor does hereby
constitute Assignee, Assignor's true and lawful attorney, irrevocably, with full
power (in the name of Assignor or otherwise) to ask, require, demand, receive,
and give acquittance for any and all moneys and claims for moneys due and to
become due under or arising out of the Boeing Purchase Agreement in respect of
the Aircraft, to the extent assigned by this Assignment.
10. Assignee agrees, expressly for the benefit of Boeing and Assignor
that it will not disclose, directly or indirectly, any terms of the Boeing
Purchase Agreement; provided, that Assignee may disclose any such information
(a) to its special counsel and public accountants, (b) as required by applicable
law to be disclosed or to the extent that Assignee may have received a subpoena
or other written demand under color of legal right for such information, but it
will first, as soon as practicable upon receipt of such requirement or demand,
furnish an explanation of the basis thereof to Boeing, and will afford Boeing
reasonable opportunity, to obtain a protective order or other reasonably
satisfactory assurance of confidential treatment for the information required to
be disclosed, and (c) to any bona fide potential purchaser or lessee of the
Aircraft. Any disclosure pursuant to (a) and (c) above will be subject to
execution of a confidentiality agreement substantially similar to this paragraph
10.
11. This Assignment may be executed by the parties 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.
12. This Assignment will be governed by, and construed in accordance
with, the laws of [_________________].
-------------------------- ----------------------------
as Assignor as Assignee
By By
------------------------ --------------------------
App. II
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
Name: Name:
Title: Title:
[If the Assignment is further assigned by Assignee in connection with a
financing, the following language needs to be included.]
Attest:
The undersigned, as [Indenture Trustee/Agent for the benefit of the Loan
Participants/Mortgagee] and as assignee of, and holder of a security interest
in, the estate, right, and interest of the Assignee in and to the foregoing
Purchase Agreement Assignment and the Purchase Agreement pursuant to the terms
of a certain [Trust Indenture/Mortgage] dated as of _____________, agrees to the
terms of the foregoing Purchase Agreement Assignment and agrees that its rights
and remedies under such [Trust Indenture/Mortgage] shall be subject to the terms
and conditions of the foregoing Purchase Agreement Assignment, including,
without limitation, paragraph 6.
[Name of Entity],
as Indenture Trustee/Agent
By
------------------------
Name:
Title:
App. II
SAMPLE
PURCHASE AGREEMENT ASSIGNMENT
CONSENT AND AGREEMENT OF
THE BOEING COMPANY
THE BOEING COMPANY, a Delaware corporation (Boeing), hereby acknowledges
notice of and consents to the foregoing Purchase Agreement Assignment
(Assignment). Boeing confirms to Assignee that: all representations, warranties,
indemnities and agreements of Boeing under the Boeing Purchase Agreement with
respect to the Aircraft will, subject to the terms and conditions thereof and of
the Assignment, inure to the benefit of Assignee to the same extent as if
Assignee were originally named "Customer" therein.
This Consent and Agreement will be governed by, and construed in
accordance with, the law of the State of Washington, excluding the conflict of
laws principles thereof.
Dated as of ___________, 199__
THE BOEING COMPANY
By
------------------------
Name:
Title: Attorney-in-Fact
Aircraft Manufacturer's Serial Number(s) ______________
App. II
SAMPLE
POST-DELIVERY SALE NOTICE
Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
In connection with the sale by COPA HOLDINGS, S.A. (Seller) to _______________
(Purchaser) of the aircraft identified below, reference is made to Purchase
Agreement No. ______ dated as of ________, 19_, between The Boeing Company
(Boeing) and Seller (the Purchase Agreement) under which Seller purchased
certain Boeing Model ________ aircraft, including the aircraft bearing
Manufacturer's Serial No.(s) _________________ (the Aircraft). The Purchase
Agreement incorporated by reference Aircraft General Terms Agreement AGTA-COP
(AGTA).
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
Seller has sold the Aircraft, including in that sale the transfer to Purchaser
of all remaining rights related to the Aircraft under the Purchase Agreement. To
accomplish this transfer of rights, as authorized by the provisions of the
Purchase Agreement:
(1) Purchaser acknowledges it has reviewed the Purchase Agreement and agrees to
be bound by and comply with all applicable terms and conditions of the Purchase
Agreement, including, without limitation, the DISCLAIMER AND RELEASE and
EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in Article 11 of Part 2 of Exhibit
C to the AGTA and the insurance provisions in Article 8.2 of the AGTA. Purchaser
further agrees upon the written request of Boeing, to promptly execute and
deliver such further assurances and documents and take such further action as
Boeing may reasonably request in order to obtain the full benefits of
Purchaser's agreements in this paragraph; and
(2) Seller will remain responsible for any payments due Boeing as a result of
obligations relating to the Aircraft incurred by Seller to Boeing prior to the
effective date of this letter.
App. III
SAMPLE
POST-DELIVERY SALE NOTICE
We request that Boeing acknowledge receipt of this letter and confirm the
transfer of rights set forth above by signing the acknowledgment and forwarding
one copy of this letter to each of the undersigned.
Very truly yours,
COPA HOLDINGS, S.A. Purchaser
By By
------------------------ ---------------------------
Its Its
----------------------- --------------------------
Dated Dated
--------------------- ------------------------
Receipt of the above letter is acknowledged and transfer of rights under the
Purchase Agreement with respect to the Aircraft is confirmed, effective as of
this date.
THE BOEING COMPANY
By
------------------------
Its Attorney-in-Fact
-----------------------
Dated
---------------------
Aircraft Manufacturer's Serial Number _______________
App. III
SAMPLE
POST-DELIVERY LEASE NOTICE
Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
In connection with the lease by COPA HOLDINGS, S.A. (Lessor) to ____________
(Lessee) of the aircraft identified below, reference is made to Purchase
Agreement No. ______ dated as of _________, 19__, between The Boeing Company
(Boeing) and Lessor (the Purchase Agreement) under which Lessor purchased
certain Boeing Model _______ aircraft, including the aircraft bearing
Manufacturer's Serial No.(s) ___________________ (the Aircraft). The Purchase
Agreement incorporated by reference Aircraft General Terms Agreement AGTA-COP
(AGTA).
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
Lessor has leased the Aircraft, including in that lease the transfer to Lessee
of all remaining rights related to the Aircraft under the Purchase Agreement. To
accomplish this transfer of rights, as authorized by the provisions of the
Purchase Agreement:
(1) Lessor authorizes Lessee to exercise, to the exclusion of Lessor, all rights
and powers of Lessor with respect to the remaining rights related to the
Aircraft under the Purchase Agreement. This authorization will continue until
Boeing receives written notice from Lessor to the contrary, addressed to Vice
President - Contracts, Mail Stop 75-38, Boeing Commercial Airplane Group, ▇.▇.
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. Until Boeing receives such notice,
Boeing is entitled to deal exclusively with Lessee with respect to the Aircraft
under the Purchase Agreement. With respect to the rights and obligations of
Lessor under the Purchase Agreement, all actions taken or agreements entered
into by Lessee during the period prior to Boeing's receipt of this notice are
final and binding on Lessor. Further, any payments made by Boeing as a result of
claims made by Lessee will be made to the credit of Lessee.
(2) Lessee accepts the authorization above, acknowledges it has reviewed the
Purchase Agreement and agrees to be bound by and comply with all applicable
terms and conditions of the Purchase Agreement including, without limitation,
the DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in
Article 11 of Part 2 of Exhibit C AGTA and the insurance provisions in Article
8.2 of the AGTA. Lessee further agrees, upon the written request of Boeing, to
promptly execute and deliver such further assurances and documents and take such
further action as Boeing may reasonably request in order to obtain the full
benefits of Lessee's agreements in this paragraph.
App. IV
SAMPLE
POST-DELIVERY LEASE NOTICE
(3) Lessor will remain responsible for any payments due Boeing as a result of
obligations relating to the Aircraft incurred by Lessor to Boeing prior to the
effective date of this Notice.
We request that Boeing acknowledges receipt of this letter and confirm the
transfer of rights set forth above by signing the acknowledgment and forwarding
one copy of this letter to each of the undersigned.
Very truly yours,
COPA HOLDINGS, S.A. Lessee
By By
------------------------ ---------------------------
Its Its
----------------------- --------------------------
Dated Dated
--------------------- ------------------------
Receipt of the above letter is acknowledged and transfer of rights under the
Purchase Agreement with respect to the Aircraft is confirmed, effective as of
this date.
THE BOEING COMPANY
By
------------------------
Its
-----------------------
Dated
---------------------
Aircraft Manufacturer's Serial Number _______________
App. IV
SAMPLE
PURCHASER'S/LESSEE'S AGREEMENT
Boeing Commercial Airplane Group
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
In connection with the sale/lease by COPA HOLDINGS, S.A. (Seller/Lessor) to
____________ (Purchaser/Lessee) of the aircraft identified below, reference is
made to the following documents:
(i) Purchase Agreement No. ______ dated as of ________, 19__, between The
Boeing Company (Boeing) and Seller/Lessor (the Purchase Agreement) under which
Seller/Lessor purchased certain Boeing Model ____________ aircraft, including
the aircraft bearing Manufacturer's Serial No.(s) _____________ (the Aircraft);
and
(ii) Aircraft Sale/Lease Agreement dated as of _________, 19__, between
Seller/Lessor and Purchaser/Lessee (the Aircraft Agreement) under which
Seller/Lessor is selling/leasing the Aircraft.
Capitalized terms used herein without definition will have the same meaning as
in the Aircraft Agreement.
1. Seller/Lessor has sold/leased the Aircraft under the Aircraft Agreement,
including therein a form of exculpatory clause protecting Seller/Lessor from
liability for loss of or damage to the aircraft, and/or related incidental or
consequential damages, including without limitation loss of use, revenue or
profit.
2. Disclaimer and Release; Exclusion of Liabilities
2.1 In accordance with Seller/Lessor's obligation under Article 9.5 of
AGTA-COP which was incorporated by reference into the Purchase Agreement,
Purchaser/Lessee hereby agrees that:
2.2 DISCLAIMER AND RELEASE. IN CONSIDERATION OF THE SALE/LEASE OF THE
AIRCRAFT, PURCHASER/LESSEE HEREBY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES,
OBLIGATIONS AND LIABILITIES OF BOEING AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES
OF PURCHASER/LESSEE AGAINST BOEING, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT, BOEING
App. V
SAMPLE
PURCHASER'S/LESSEE'S AGREEMENT
PRODUCT, MATERIALS, TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THE
AIRCRAFT AGREEMENT, INCLUDING, BUT NOT LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER
OR NOT ARISING FROM THE NEGLIGENCE OF BOEING; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR
DAMAGE TO ANY AIRCRAFT.
2.3 EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. BOEING WILL HAVE NO
OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT,
WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING, OR OTHERWISE, FOR LOSS OF
USE, REVENUE OR PROFIT, OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES
WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT, MATERIALS,
TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THE AIRCRAFT AGREEMENT.
2.4 Definitions. For the purpose of this paragraph ▇, "▇▇▇▇▇▇" ▇▇
"▇▇▇▇▇▇" is defined as The Boeing Company, its divisions, subsidiaries,
affiliates, the assignees of each, and their respective directors, officers,
employees and agents.
COPA HOLDINGS, S.A. Purchaser/Lessee
(Seller/Lessor)
By By
------------------------ ---------------------------
Its Its
----------------------- --------------------------
Dated Dated
--------------------- ------------------------
App. V
SAMPLE
OWNER APPOINTMENT OF AGENT - WARRANTIES
Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
1. Reference is made to Purchase Agreement No. ____ dated as of __________,
19__, between The Boeing Company (Boeing) and COPA HOLDINGS, S.A. (Customer)
(the Purchase Agreement), under which Customer purchased certain Boeing Model
____________ aircraft including the aircraft bearing Manufacturer's Serial
No.(s) ____________ (the Aircraft). The Purchase Agreement incorporated by
reference Aircraft General Terms Agreement AGTA-COP (AGTA).
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
To accomplish the appointment of an agent, Customer confirms:
A. Customer has appointed _____________ as agent (Agent) to act directly with
Boeing with respect to the remaining warranties under the Purchase Agreement and
requests Boeing to treat Agent as Customer for the administration of claims with
respect to such warranties; provided however, Customer remains liable to Boeing
to perform the obligations of Customer under the Purchase Agreement.
B. Boeing may continue to deal exclusively with Agent concerning the matters
described herein unless and until Boeing receives written notice from Customer
to the contrary, addressed to Vice President - Contracts, Mail Stop 75-38,
Boeing Commercial Airplane Group, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
▇.▇.▇. With respect to the rights and obligations of Customer under the Purchase
Agreement, all actions taken by Agent or agreements entered into by Agent during
the period prior to Boeing's receipt of such notice are final and binding on
Customer. Further, any payments made by Boeing as a result of claims made by
Agent will be made to the credit of Agent unless otherwise specified when each
claim is submitted.
C. Customer will remain responsible for any payments due Boeing as a result
of obligations relating to the Aircraft incurred by Customer to Boeing prior to
the effective date of this Notice.
App. VI
SAMPLE
OWNER APPOINTMENT OF AGENT - WARRANTIES
We request that Boeing acknowledge receipt of this letter and confirm the
appointment of Agent as stated above by signing the acknowledgment and
forwarding one copy of this letter to each of the undersigned.
Very truly yours,
COPA HOLDINGS, S.A.
By
------------------------
App. VI
SAMPLE
OWNER APPOINTMENT OF AGENT - WARRANTIES
AGENT'S AGREEMENT
Agent accepts the appointment as stated above, acknowledges it has reviewed the
Purchase Agreement and agrees that, in exercising any rights or making any
claims thereunder, Agent will be bound by and comply with all applicable terms
and conditions of the Purchase Agreement including, without limitation, the
DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in
Article 11 of Part 2 of Exhibit C to the AGTA. Agent further agrees, upon the
written request of Boeing, to promptly execute and deliver such further
assurances and documents and take such further action as Boeing may reasonably
request in order to obtain the full benefits of the warranties under the
Purchase Agreement.
Very truly yours,
Agent
By
----------------------------------
Its
---------------------------------
Dated
-------------------------------
Receipt of the above letter is acknowledged and the appointment of Agent with
respect to the above-described rights under the Purchase Agreement is confirmed,
effective as of this date.
THE BOEING COMPANY
By
----------------------------------
Its
---------------------------------
Dated
-------------------------------
Aircraft Manufacturer's Serial Number ________________
App. VI
SAMPLE
CONTRACTOR CONFIDENTIALITY AGREEMENT
Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
This Agreement is entered into between ______________________ (Contractor) and
COPA HOLDINGS, S.A. (Customer) and will be effective as of the date stated
below.
In connection with Customer's provision to Contractor of certain Materials,
Proprietary Materials and Proprietary Information, reference is made to Purchase
Agreement No. ______ dated as of __________, 19__ between The Boeing Company
(Boeing) and Customer.
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
Boeing has agreed to permit Customer to make certain Materials, Proprietary
Materials and Proprietary Information relating to Customer's Boeing Model ______
aircraft, Manufacturer's Serial Number ______, Registration No. ____ (the
Aircraft) available to Contractor in connection with Customer's contract with
Contractor (the Contract) to maintain/repair/modify the Aircraft. As a condition
of receiving the Proprietary Materials and Proprietary Information, Contractor
agrees as follows:
1. For purposes of this Agreement:
"AIRCRAFT SOFTWARE" means software that is installed and used in the
operation of an Aircraft.
"MATERIALS" are defined as any and all items that are created by Boeing or a
third party, which are provided directly or indirectly from Boeing and serve
primarily to contain, convey or embody information. Materials may include either
tangible embodiments (for example, documents or drawings), or intangible
embodiments (for example, software and other electronic forms) of information
but excludes Aircraft Software.
"PROPRIETARY INFORMATION" means any and all proprietary, confidential and/or
trade secret information owned by Boeing or a Third Party which is contained,
conveyed or embodied in Proprietary Materials.
"PROPRIETARY MATERIALS" means Materials that contain, convey, or embody
Proprietary Information.
App. VII
SAMPLE
CONTRACTOR CONFIDENTALITY AGREEMENT
"THIRD PARTY" means anyone other than Boeing, Customer and Contractor.
2. Boeing has authorized Customer to grant to Contractor a worldwide,
non-exclusive, personal and nontransferable license to use Proprietary Materials
and Proprietary Information, owned by Boeing, internally in connection with
performance of the Contract or as may otherwise be authorized by Boeing in
writing. Contractor will keep confidential and protect from disclosure to any
person, entity or government agency, including any person or entity affiliated
with Contractor, all Proprietary Materials and Proprietary Information.
Individual copies of all Materials are provided to Contractor subject to
copyrights therein, and all such copyrights are retained by Boeing or, in some
cases, by Third Parties. Contractor is authorized to make copies of Materials
(except for Materials bearing the copyright legend of a Third Party) provided,
however, Contractor preserves the restrictive legends and proprietary notices on
all copies. All copies of Proprietary Materials will belong to Boeing and be
treated as Proprietary Materials under this Agreement.
3. Contractor specifically agrees not to use Proprietary Materials or
Proprietary Information in connection with the manufacture or sale of any part
or design. Unless otherwise agreed with Boeing in writing, Proprietary Materials
and Proprietary Information may be used by Contractor only for work on the
Aircraft for which such Proprietary Materials have been specified by Boeing.
Customer and Contractor recognize and agree that they are responsible for
ascertaining and ensuring that all Materials are appropriate for the use to
which they are put.
4. Contractor will not attempt to gain access to information by reverse
engineering, decompiling, or disassembling any portion of any software provided
to Contractor pursuant to this Agreement.
5. Upon Boeing's request at any time, Contractor will promptly return to Boeing
(or, at Boeing's option, destroy) all Proprietary Materials, together with all
copies thereof and will certify to Boeing that all such Proprietary Materials
and copies have been so returned or destroyed.
6. To the extent required by a government regulatory agency having jurisdiction
over Contractor, Customer or the Aircraft, Contractor is authorized to provide
Proprietary Materials and disclose Proprietary Information to the agency for the
agency's use in connection with Contractor's, authorized use of such Proprietary
Materials and/or Proprietary Information in connection with Contractor's
maintenance, repair, or modification of the Aircraft. Contractor agrees to take
reasonable steps to prevent such agency from making any distribution or
disclosure, or additional use of the Proprietary Materials and Proprietary
Information so provided or disclosed. Contractor further agrees to promptly
notify Boeing upon learning of any (i) distribution, disclosure, or additional
use by such agency, (ii) request to such agency for distribution, disclosure, or
additional use, or (iii) intention on the part of such agency to distribute,
disclose, or make additional use of the Proprietary Materials or Proprietary
Information.
App. VII
SAMPLE
CONTRACTOR CONFIDENTIALITY AGREEMENT
7. Boeing is a third-party beneficiary under this Agreement, and Boeing may
enforce any and all of the provisions of the Agreement directly against
Contractor. Contractor hereby submits to the jurisdiction of the Washington
state courts and the United States District Court for the Western District of
Washington with regard to any claims Boeing may make under this Agreement. It is
agreed that Washington law (excluding Washington's conflict-of-law principles)
governs this Agreement.
8. No disclosure or physical transfer by Boeing or Customer to Contractor, of
any Proprietary Materials or Proprietary Information covered by this Agreement
will be construed as granting a license, other than as expressly set forth in
this Agreement or any ownership right in any patent, patent application,
copyright or proprietary information.
9. The provisions of this Agreement will apply notwithstanding any markings or
legends, or the absence thereof, on any Proprietary Materials.
10. This Agreement is the entire agreement of the parties regarding the
ownership and treatment of Proprietary Materials and Proprietary Information,
and no modification of this Agreement will be effective as against Boeing unless
in writing signed by authorized representatives of Contractor, Customer and
Boeing.
11. Failure by either party to enforce any of the provisions of this Agreement
will not be construed as a waiver of such provisions. If any of the provision of
this Agreement is held unlawful or otherwise ineffective by a court of competent
jurisdiction, the remainder of the Agreement will remain in full force.
ACCEPTED AND AGREED TO this
Date: ____________, 19___
COPA HOLDINGS, S.A. Contractor
By By
---------------------------------- ----------------------------------
Its Its
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App. VII
