Exhibit 10.15
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-CAL
between
THE BOEING COMPANY
and
CONTINENTAL AIRLINES, INC.
TABLE OF CONTENTS
PAGE
ARTICLES NUMBER
1. Subject Matter of Sale 1
2. Price, Taxes and Payment 1
3. Regulatory Requirements and Certificates 3
4. Detail Specification; Changes 4
5. Representatives, Inspection, Flight Tests,
Test Data and Performance Guarantee Compliance
4
6. Delivery 5
7. Excusable Delay 5
8. Risk Allocation/Insurance 6
9. Assignment, Resale or Lease 7
10. Termination for Certain Events 9
11. Notices 9
12. Miscellaneous 10
EXHIBITS
A Buyer Furnished Equipment Provisions Document
B Customer Support Document
C Product Assurance Document
D Escalation Adjustment
APPENDICES
I Listing of Insurance Requirements
II Post-Delivery Sale Notice
III Post-Delivery Lease Notice
IV Owner Appointment of Agent - Warranties
V Contractor Confidentiality Agreement
LETTER AGREEMENTS
6-1162-GOC-117 Special Aircraft General Terms Agreement
Provisions
AIRCRAFT GENERAL TERMS AGREEMENT AGTA-CAL
between
The Boeing Company
and
Continental Airlines, Inc.
Relating to
BOEING AIRCRAFT
This Aircraft General Terms Agreement AGTA-CAL
(AGTA) between The Boeing Company (Boeing) and Continental
Airlines, Inc. (Customer) will apply to all Boeing aircraft
contracted for purchase from Boeing by Customer after the date
shown below except this AGTA will not apply to Boeing aircraft
purchased, whether by amendment or otherwise, under contracts
between Boeing and Customer that were executed prior to the date
shown below.
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 which incorporate the terms and conditions of
this AGTA.
1.2 Buyer Furnished Equipment. Exhibit A, Buyer
Furnished Equipment Provisions Document to this 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 in Exhibit A as Buyer Furnished
Equipment (BFE).
1.3 Customer Support. Exhibit B, Customer
Support Document to this 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 this 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 737-600, 737-700 and 737-800, the
Airframe Price includes Engine Price.)
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 737-600, 737-700 and 737-800).
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 and the Optional
Features Prices (and the Engine Price for Models 737-600, 737-700
and 737-800) 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 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 income taxes 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
and 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
for which Boeing is responsible for collecting and for which
Customer is responsible as set forth above.
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.
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 deposit of 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, as
appropriate.
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 or any other United States
governmental agency having jurisdiction, 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 A Manufacturer Change will be
incorporated at no charge to Customer unless:
(i) the FAA issues the requirement
after the date of the applicable purchase agreement in which case
Customer shall pay for any Manufacturer Change which is
incorporated into any aircraft which delivers more than 18 months
after the date of the purchase agreement or 18 months after the
date of the Type Certificate, whichever is later; or
(ii) the requirement is solely
necessary to comply with a requirement of the country of import
and/or registration, other than the United States.
3.2.3 Customer will pay Boeing's charge for
validation of an aircraft required by any governmental agency of
the country of import and/or registration, other than the United
States.
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
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 equipment 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 by (i) Boeing to
reflect the incorporation of Manufacturer Changes and Operator
Changes or (ii) 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 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 the 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 not less than 1 1/2 hours and 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.
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 (i)
notify Customer of the approximate delivery date of each aircraft
at least 30 days before the scheduled month of delivery and (ii)
notify Customer of the scheduled delivery date at least 14 days
before such date.
6.2 Place of Delivery. Each aircraft will be
delivered at a facility selected by Boeing in the State of
Washington.
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; or (vi) 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 (ii) of a revised delivery month based on
Boeing's appraisal of the facts.
7.2.1 If after Boeing gives Customer a
written notice specifying a revised delivery month Boeing concludes
that an aircraft will be further delayed beyond such revised
delivery month, Boeing shall provide Customer with a revised
written notice specifying a new revised delivery month.
7.2.2 If an Excusable Delay occurs after
Boeing has provided Customer with the scheduled delivery date,
Boeing will give prompt verbal and written notice to Customer of
the delay and of the revised delivery date based on Boeing's
appraisal of the facts.
7.3 Anticipated 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 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 Anticipated Delay in Delivery of More Than
Twelve Months. If the revised delivery month is more than 12
months after the scheduled delivery month, or more than 12 months
after a revised delivery month in the case of the occurrence of a
second event of Excusable Delay, 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 pursuant to this Article 7,
Boeing may elect, by written notice to Customer within 30 days of
such termination, 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.
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
purpose of this Article, "Customer" is defined as Continental
Airlines, Inc., 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. 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 constitutes 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.
Article 9. Assignment, Resale or Lease.
9.1 Assignment. The applicable purchase
agreement is 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 or reorganization
of such party or (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, provided that
Boeing will remain fully responsible to Buyer for all obligations
that Boeing assigns to a wholly-owned subsidiary and Buyer may
continue to deal exclusively with 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 the extent it
relates to maintenance and flight training, to FlightSafety Boeing
Training International L.L.C, provided that Boeing will remain
fully responsible to Buyer for all obligations that Boeing assigns
to FlightSafety Boeing Training International L.L.C. and Buyer may
continue to deal exclusively with Boeing.
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.
9.3 Transfer of Unexpired Rights. 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 reasonably
satisfactory to Boeing, to comply with all applicable terms and
conditions of the applicable purchase agreement. Sample forms of
agreements acceptable to Boeing are attached as Appendices II and
III.
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 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 from the
purchaser or lessee the same protection.
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 V.
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 for Certain Events.
10.1 Termination. If either party
(i) ceases doing business as a going
concern, 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:
Customer: Continental Airlines, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: V.P. Fleet Management
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 LAW 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.
DATED AS OF October 10, 1997
CONTINENTAL AIRLINES, INC. THE BOEING COMPANY
By /s/ ▇▇▇▇▇ ▇▇▇▇▇ By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Its Vice President Its Attorney in Fact
EXHIBIT A
to
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-CAL
between
THE BOEING COMPANY
and
CONTINENTAL AIRLINES, INC.
BUYER FURNISHED EQUIPMENT PROVISIONS DOCUMENT
BUYER FURNISHED EQUIPMENT PROVISIONS DOCUMENT
The parties acknowledge Boeing intends to implement
a new Buyer Furnished Equipment Process for Buyer Furnished
Equipment in 1998. New documentation reflecting the new process
will be offered to Customers as soon as practicable. It is the
intention of the parties to replace this Exhibit with a mutually
agreeable new process when such a new process becomes available.
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 BFE1to 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 dates 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 to Boeing in accordance with the quantities
and schedule provided therein; and
3.1.3 deliver appropriate quality assurance
documentation to Boeing as required with each BFE part (D6-56586,
"BFE Product Acceptance Requirements");
3.2 authorize Boeing to discuss all details of the BFE
directly with the BFE suppliers;
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 source inspection and supplier delegation
programs, including availability of adequate facilities for Boeing
resident personnel; and
3.3.2 assure that Boeing identified supplier's
quality systems be approved to Boeing document D1-9000;
3.4 use reasonable commercial efforts to obtain from the
supplier's thereof, a non-exclusive, perpetual, royalty-free,
irrevocable license for Boeing to copy BFE Aircraft Software 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: (i) BFE Aircraft
Software and data Customer has modified and/or (ii)) 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 warrant that the BFE will meet the requirements of
the Detail Specification; and
3.11 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.
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 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.
Title to and risk of loss of BFE 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.
8. 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.
9. 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.
10. 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.
EXHIBIT B
to
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-CAL
between
THE BOEING COMPANY
and
CONTINENTAL AIRLINES, INC.
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
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 in the Seattle area
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 living 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.
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 the Seattle area,
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 Seattle area 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.
5.4 If the flight training is based at Boeing's
facility, several airports in the states of Washington, Montana and
Oregon, as well as the services of the fixed base operator at Grant
County Airport at Moses Lake, Washington, may be used. 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.
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 Representatives will be available at
a facility designated by Customer 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 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 12 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
12 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.
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 pursuant to this
AGTA, 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.
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 to certain Materials to be identified in the
planning conference conducted for a specific model of aircraft,
reflecting 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 at no charge, with the first aircraft of a model.
Revisions to the Computer Software Index applicable to such model
of aircraft will be issued to Customer at no charge, 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 For supplier-manufactured programmed airborne
avionics components and equipment classified as Seller Furnished
Equipment (SFE) or Seller Purchased Equipment (SPE) 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
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.
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.
CUSTOMER SUPPORT DOCUMENT
PART 5: PROTECTION OF PROPRIETARY INFORMATION
AND PROPRIETARY MATERIALS
1. General.
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 or the CSGTA, and
except to the extent required by law.
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. A sample agreement acceptable
to Boeing is attached as Appendix VII.
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.
EXHIBIT C
to
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-CAL
between
THE BOEING COMPANY
and
CONTINENTAL AIRLINES, INC.
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
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 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.
PRODUCT ASSURANCE DOCUMENT
PART 2: BOEING WARRANTY
1. Warranty Applicability.
This warranty applies to all Boeing Products and other
items as specified. Additional warranties applicable to Supplier
Products are in Part 4. Additional 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
aircraft delivery:
(i) the aircraft, including all Boeing Products,
engines, and Supplier Products will conform
to the Detail Specification except for
portions stated to be estimates,
approximations or design objectives;
(ii) all Boeing Products in the aircraft will be
free from defects in material and
workmanship, including process of
manufacture;
(iii) all Boeing Products in the aircraft 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, and
(iv) the workmanship utilized to install Supplier
Products, engines and BFE will be free from
defects.
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 acts or omissions
of Customer; and
(iii) conditions resulting from failure to
properly service and maintain the aircraft.
3. Warranty Periods.
3.1 Warranty. The warranty period begins on the date of
aircraft 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 warranty period for
the defective Boeing Product it replaced. The warranty period for
a Corrected Boeing Product resulting from a defect in design is (i)
18 months or the remainder of the initial warranty period,
whichever is longer; or (ii) 6 months following the initial
installation of the Corrected Boeing Product provided that such
time period shall not be greater than 6 months past 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 Defect Correction. At Customer's option, Boeing
will either Correct or reimburse Customer to Correct defects in
Boeing Products discovered during the warranty period.
4.2 Warranty Labor Rate. If Customer or its Authorized
Agent Corrects a defective Boeing Product, reimbursement to
Customer for Direct Labor hours will be provided 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 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 will 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 cost of Direct Labor to perform inspections of the
aircraft to determine whether or not a covered defect exists in a
Boeing Product, 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 or such other percentage as may be mutually established in
an AOG situation.
5. Discovery and Notice.
5.1 For a claim to be valid:
(i) the defect must be discovered during the
warranty period; and
(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 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; and,
(vii) date the Correction was completed.
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 and
reasonable substantiation of such rejection.
7. Limited Warranty for Certain Materials.
7.1 Boeing warrants that, at the time of delivery, all
Materials created by Boeing will be free from errors and defects in
media.
7.2 Warranty Periods and Claims. The warranty period
with respect to an error or a defect in any Materials created by
Boeing begins at delivery of the Materials in which the error or
defect is discovered and ends 48 months after delivery of the
Materials.
The claimed error or defect must become apparent to
Customer within the applicable warranty period, and Boeing Product
Assurance Contracts must receive written notice of such error or
defect at the earliest practicable time after the error or defect
is discovered by Customer, but in no event, later than 90 days
after expiration of the applicable warranty period.
7.3 Remedy. Customer's remedy for an error or a defect
in media is replacement of the erroneous or defective Materials
created by Boeing with Materials free from such error or defect.
8. Corrections Performed by Customer or Its Authorized Agent.
8.1 Facilities Requirements. 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 certified by Customer's Civil Aviation Authority or the
Federal Aviation Authority.
8.2 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.
8.3 Reimbursement.
8.3.1 Boeing will reimburse for 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.
8.3.2 Reimbursement for Direct Labor hours to
perform Corrections stated in a service bulletin will be based on
the labor estimates in the service bulletin. Boeing will review
the rembursement amount if Customer's actual Direct Labor hours
exceed the service bulletin estimates by 25%.
8.3.3 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.
8.4 Disposition of Defective Boeing Products Beyond
Economical Repair.
8.4.1 A defective Boeing Product with a value of
U.S. $2000 or less may be scrapped without notification to Boeing.
If such 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.
8.4.2 A defective Boeing Product with a value
greater than $2000 found to be beyond economical repair will be
retained for a period of 60 days from the date Boeing receives
Customer's claim unless previously approved to be scrapped as
provided in paragraph 8.4.1. Customer may scrape such defective
Boeing Product after 60 days. Boeing may request return of such
defective Boeing Product during the 60 day period for inspection
and confirmation of a defect.
9. Corrections Performed by Boeing.
9.1 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 AGTA.
Boeing will pay shipping charges to return the Corrected Boeing
Product.
9.2 Customer Instructions. The documentation shipped
with the returned defective Boeing Product may include specific
technical instructions for 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.
9.3 Correction Time Objectives.
9.3.1 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.
9.3.2 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) as agreed to by Customer, then Boeing will either
expedite the Correction or provide a similar Boeing Product on a no
charge loan or lease basis until a Corrected Boeing Product is
returned.
9.4 Title Transfer and Risk of Loss.
9.4.1 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.
9.4.2 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.
10. Returning an Aircraft.
10.1 Conditions. An aircraft may be returned to Boeing's
facilities for Correction only if:
(i) Boeing and Customer agree a 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.
10.2 Correction Costs. Boeing will perform the
Correction at no charge to Customer. Subject to the conditions of
Article 10.1, 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.
10.3 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 at Boeing's standard rates.
11. 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.
12. Disclaimer and Release; Exclusion of Liabilities.
12.1 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:
(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.
12.2 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.
12.3 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.
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 SLP1 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 delivery of a
replacement 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:
4.1 Customer must notify Boeing in writing of the defect
or failure within three months after it becomes apparent.
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
12 of Part 2 of this Exhibit 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 adequate
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 in Boeing Document D6-56115, Product Support and Product
Assurance Supplier Defined Equipment Information, 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 this AGTA.
3.2 At Boeing's request, Customer will assign to Boeing,
and Boeing will be subrogated to, Customer's rights against the
Supplier provided by the Supplier warranty.
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 the
design characteristics of the aircraft or its systems. 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 of any Boeing Product, Boeing
will Correct the design 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 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 of a Boeing Product and
partially to the design 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 Customer's 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 12 of Part 2 of this Exhibit C.
PRODUCT ASSURANCE DOCUMENT
PART 6: BOEING INDEMNITIES AGAINST PATENT
AND COPYRIGHT INFRINGEMENT
1. Indemnity Against Patent Infringement.
Boeing will defend, indemnify and hold harmless Customer
with respect to all claims, suits, costs 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, indemnify and hold harmless Customer
with respect to all claims, suits, costs 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 written 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, Materials or Aircraft Software
with a noninfringing equivalent.
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 OF CUSTOMER. 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.
3.10 For the purposes of this Part 6, "Customer" is
defined as Continental Airlines, Inc, its divisions, subsidiaries,
affiliates, the assignees of each and their respective directors,
officers, employees and agents.
EXHIBIT D
to
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-CAL
between
THE BOEING COMPANY
and
CONTINENTAL AIRLINES, INC.
ESCALATION ADJUSTMENT
AIRFRAME AND OPTIONAL FEATURES
(For Model 737-600, 737-700 and 737-800, Airframe
Price Includes the Engine Price)
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:
Pa = (P)(L + M - 1)
Where:
Pa = Airframe Price Adjustment. (For Model 737-600,
737-700 and 737-800, the Airframe Price includes
the Engine Price.)
L = .65 x ECI
ECIb where ECIb is the base year index
(as set forth in Table 1 of the
applicable purchase agreement)
M = .35 x ICI
ICIb where ICIb is the base year index
(as set forth in Table 1 of the
applicable purchase agreement)
P = Airframe Price plus Optional Features Price (as set
forth in 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" (ECI code 3721),
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 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.
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.
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.
Listing of Insurance Requirements
The following is a listing of the terms, limits, provisions and
coverages required by Article 8.2.1.
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: Continental Airlines, Inc.
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).
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).
(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$450,000,000
(757-300) US$550,000,000
(767-200) US$550,000,000
(767-300) US$700,000,000
(767-400ER) US$750,000,000
(777-200/300) US$800,000,000
(777-200X) US$750,000,000
(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-CAL 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-CAL 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-CAL
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;
(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.
Boeing Commercial Airplane Group
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Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
In connection with the sale by Continental Airlines, Inc. (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-CAL (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 12 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.
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,
Continental Airlines, Inc. Purchaser
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 ____________
Boeing Commercial Airplane Group
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Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
In connection with the lease by # (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-CAL (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 12 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.
(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,
# 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 ____________
Boeing Commercial Airplane Group
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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
Continental Airlines, Inc. (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-
CAL (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 with respect to the
Aircraft 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 relating to the administration
of such warranty claims 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.
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,
Continental Airlines, Inc.
By _______________________
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 12 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 __________
Boeing Commercial Airplane Group
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Attention: Vice President - Contracts
Mail Stop 75-38
Ladies and Gentlemen:
This Agreement is entered into between ____________________
(Contractor) and Continental Airlines, Inc. (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.
"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, except to the extent such disclosure is
required by law. 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, excluding ground
support equipment and related tools that Boeing has specifically
designed for Customer use. 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.
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___
Continental Airlines, Inc. Contractor
By _____________________ _______________________
Its ____________________ _______________________
October 10, 1997
6-1162-GOC-117
Continental Airlines, Inc.
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Subject: Special Aircraft General Terms Agreement Provisions
Reference: Aircraft General Terms Agreement (the AGTA) between
The Boeing Company (Boeing) and Continental
Airlines, Inc. (Customer)
Ladies and Gentlemen:
This Letter Agreement amends and supplements the AGTA. All terms
used but not defined in this Letter Agreement have the same
meaning as in the AGTA.
Boeing and Customer agree that the following provisions shall
apply in lieu of the provisions currently contained in the
referenced AGTA.
1. Article 2 - Price, Taxes and Payment
Remove and replace, in their entirety, Articles 2.2.1 and
2.2.2, with the following:
"In addition to the Purchase Price, Customer shall pay to
Boeing upon demand, which shall be accompanied by appropriate
documentation and invoice, (a) the amount of any sales, use,
value added or other similar transfer taxes, together with any
penalties, fines or interest thereon (other than any such
penalties, fines or interest resulting from the failure of Boeing
seasonably to pay any such tax which it has reason to believe is
applicable, unless such nonpayment is directed by Customer)
imposed by any federal, state or local taxing authority within
the United States and the amount of all taxes imposed by any
taxing authority outside the United States, required to be paid
by Boeing as a result of any sale, use, delivery, storage or
transfer of any Aircraft, accessory, equipment, part, Buyer
Furnished Equipment (as defined in paragraph 1.2 to the AGTA),
services, instructions or data furnished or delivered under any
Purchase Agreement incorporating this AGTA, and (b) if any such
Purchase Agreement has been assigned as to any Aircraft, pursuant
to Article 9.2 of this AGTA, the amount of any other fees, taxes
and related penalties, fines or interest thereon (other than any
such penalties, fines or interest resulting from the failure of
Boeing seasonably to pay any such fee or tax which it has reason
to believe is applicable, unless such nonpayment is directed by
Customer) imposed by any federal, state or local taxing authority
within the United States required to be paid by Boeing as a
result of the sale or delivery of any such Aircraft, accessory,
equipment, part, Buyer Furnished Equipment, services,
instructions or data furnished or delivered under any Purchase
Agreement incorporating this AGTA to the assignee. If Boeing has
reason to believe that any such tax is applicable, Boeing shall
separately state the amount of such tax in its invoice. If claim
is made against Boeing for any such tax, Boeing shall promptly
notify Customer. If seasonably requested by Customer in writing,
Boeing shall, at Customer's expense, take such action as Customer
may reasonably direct with respect to such claim, and any payment
by Boeing of such tax shall be made under protest, if protest is
necessary and proper. If payment is made, Boeing shall, at
Customer's expense, take such action as Customer may reasonably
direct to recover such payment and shall, if requested, permit
Customer in Boeing's name to file a claim or prosecute an action
to recover such payment."
2. [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
3. Article 5 - Representatives, Inspection, Demonstration
Flights, Test Data and Performance Guarantee Compliance
Revise Article 5.5 - Special Aircraft Test Requirements, to
read as follows:
"Boeing and Customer shall mutually agree on the number of
aircraft that Boeing may use for flight and ground tests prior to
delivery if such tests are deemed necessary by Boeing
(a) to obtain the certificates required under Article 3.1,
and
(i) other aircraft of the type purchased under the
applicable Purchase Agreement incorporating this AGTA are not
available for such tests, or
(ii) special features incorporated in the aircraft
(but not incorporated in other aircraft of the type purchased
under the applicable Purchase Agreement incorporating this AGTA)
necessitate such tests, or
(iii) the Engines (as defined in Exhibit A to the
applicable Purchase Agreement) to be installed on the aircraft
are of different manufacture or type from those installed on
other aircraft of the type purchased under the applicable
Purchase Agreement incorporating this AGTA; or
(b) with Customer's prior written consent, to evaluate
actual or contemplated changes for the improvement of aircraft of
the type purchased under the applicable Purchase Agreement
incorporating this AGTA which may be offered for incorporation,
in production or by retrofit, in any aircraft.
Customer shall accept delivery of any aircraft used for such
flight and ground tests without any reduction in price for
depreciation or wear and tear resulting therefrom."
4. [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
5. [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
6. Article 9 - Exculpatory Clause in Post-Delivery Sale or
Lease
Revise Article 9.5, Exculpatory Clause in Post-Delivery Sale
or Lease, to read as follows:
"If Customer, at any time up to three (3) years following
delivery of any Aircraft, sells or leases such Aircraft and
obtains from the transferee any exculpatory or indemnity clause
protecting Customer, Customer shall include in such clause equal
protection for Boeing (as Boeing is defined in Article 12.3 of
Part 2 to Exhibit C to the AGTA)."
7. Article 12 - Miscellaneous
Add a new Article 12.6, Amendments, that reads as follows:
"This AGTA may be changed only in writing signed by
authorized representatives of Boeing and Customer."
Add a new Article 12.7, Sample Certificates and Forms, that
reads as follows:
"The Certificates and Forms attached to this AGTA as
Appendix II through Appendix V are samples which illustrate a
form that is acceptable to Boeing. The actual form of any
required Certificate or Form is subject to future negotiation to
establish terms and conditions and Boeing agrees to accept
reasonable changes requested by Customer."
8. [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
9. [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
9.3 Warranty Claim Processing. Notwithstanding the
provisions of paragraph 6.3.2 of Part 2 of Exhibit C to the AGTA,
Boeing agrees to give written disposition of warranty claims to
Customer, and acknowledging Customer's request that such written
disposition occur within twenty (20) days of receipt of a
warranty claim from Customer, Boeing hereby agrees to give best
reasonable efforts to provide such disposition within 30 calendar
days or 20 business days.
9.4 Correction Time Objective. Revise the last sentence
of paragraph 9.3.1 of Part 2 of Exhibit C to the AGTA to read
"The objectives are measured from the date Boeing receives the
defective Boeing Product and a valid claim or repair order
describing the work to the date Boeing ships the correction."
10. [CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT]
11. Confidential Treatment
Boeing and Customer understand that certain information
contained in this Letter Agreement is considered by both parties
to be confidential. Boeing and Customer agree that each party
will treat this Letter Agreement and the information contained
herein as confidential and will not, without the other party's
prior written consent, disclose this Letter Agreement or any
information contained herein to any other person or entity except
(i) as may be required by applicable law or governmental
regulations, or (ii) in connection with the financing of the
Aircraft in accordance with the requirements of any Purchase
Agreement.
Very truly yours,
THE BOEING COMPANY
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Its Attorney-In-Fact
ACCEPTED AND AGREED TO this
Date: October 10, 1997
CONTINENTAL AIRLINES, INC.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
Its Vice President
