AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-AAT
between
THE BOEING COMPANY
and
American Trans Air, Inc.
TABLE OF CONTENTS
PAGE
ARTICLES NUMBER
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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, Demonstration Flights,
Test Data and Performance Guarantee Compliance 4
6. Delivery 5
7. Excusable Delay 5
8. Risk Allocation/Insurance 7
9. Assignment, Resale or Lease 8
10. Termination for Certain Events 9
11. Notices 10
12. Miscellaneous 10
EXHIBITS
A Buyer Furnished Equipment Provisions Document
B Customer Support Document
C Product Assurance Document
APPENDICES
I Insurance Certificate
II Purchase Agreement Assignment
III Post-Delivery Sale Notice
IV Post-Delivery Lease Notice
V Purchaser's/Lessee's Agreement
VI Owner Appointment of Agent - Warranties
VII Contractor Confidentiality Agreement
AIRCRAFT GENERAL TERMS AGREEMENT NUMBER AGTA-AAT
between
The Boeing Company
and
American Trans Air, Inc.
Relating to
BOEING AIRCRAFT
This Aircraft General Terms Agreement Number AGTA-AAT (AGTA)
between The Boeing Company, including its wholly-owned subsidiary ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Corporation, (Boeing) and American Trans Air, Inc. (Customer) will apply
to all Boeing aircraft contracted for purchase from Boeing by Customer after the
effective date of this AGTA.
Article 1. Subject Matter of Sale.
----------------------
1.1 Aircraft. Boeing will manufacture and sell to Customer and
Customer will purchase from Boeing aircraft under purchase agreements that
incorporate the terms and conditions of this AGTA.
1.2 Buyer Furnished Equipment. Exhibit A, Buyer Furnished
Equipment Provisions Document to the AGTA, contains the obligations of Customer
and Boeing with respect to equipment purchased and provided by Customer, which
Boeing will receive, inspect, store, and install in an aircraft before delivery
to Customer. This equipment is defined as Buyer Furnished Equipment (BFE).
1.3 Customer Support. Exhibit B, Customer Support Document to
the AGTA, contains the obligations of Boeing relating to Materials (as defined
in Part 3 thereof), training, services, and other things in support of aircraft.
1.4 Product Assurance. Exhibit C, Product Assurance Document
to the AGTA, contains the obligations of Boeing and the suppliers of equipment
installed in each aircraft at delivery relating to warranties, patent
indemnities, software copyright indemnities, and service life policies.
Article 2. Price, Taxes, and Payment.
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2.1 Price.
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2.1.1 Airframe Price is defined as the price of the airframe for a specific
model of aircraft described in a purchase agreement. (For Models 717-200,
737-600, 737-700, 737-800 and 737-900, the Airframe Price includes the engine
price at its basic thrust level.)
2.1.2 Optional Features Prices are defined as the prices for optional
features selected by Customer for a specific model of aircraft described in a
purchase agreement.
2.1.3 Engine Price is defined as the price set by the engine manufacturer
for a specific engine to be installed on the model of aircraft described in a
purchase agreement (not applicable to Models 717-200, 737-600, 737-700, 737-800
and 737-900).
2.1.4 Aircraft Basic Price is defined as the sum of the Airframe Price,
Optional Features Prices, and the Engine Price, if applicable.
2.1.5 Escalation Adjustment is defined as the price adjustment to the
Airframe Price (which includes the basic engine price for Models 717-200,
737-600, 737-700 737-800 and 737-900) and the Optional Features Prices resulting
from the calculation using the economic price formula contained in the Airframe
Escalation Adjustment to the applicable purchase agreement. 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 rounded to the nearest thousand dollars, as of the date of signing a
purchase agreement, for the scheduled month of delivery of such aircraft using
commercial forecasts of the Escalation Adjustment.
2.1.7 Aircraft Price is defined as the total amount Customer is to pay for
an aircraft at the time of delivery, which is the sum of the Aircraft Basic
Price, the Escalation Adjustment, and other price adjustments made pursuant to
the purchase agreement.
2.2 Taxes.
-----
2.2.1 Taxes. Taxes are defined as all taxes, fees, charges, or duties and
any interest, penalties, fines, or other additions to tax, including, but
not limited to sales, use, value added, gross receipts, stamp, excise, transfer,
and similar taxes imposed by any domestic or foreign taxing authority, arising
out of or in connection with the performance of the applicable purchase
agreement or the sale, delivery, transfer, or storage of any aircraft, BFE, or
other things furnished under the applicable purchase agreement. Except for U.S.
federal or California State income taxes imposed on Boeing or Boeing's assignee,
and Washington State business and occupation taxes imposed on Boeing or Boeing's
assignee, Customer will be responsible for and pay all Taxes. Customer is
responsible for filing all tax returns, reports, declarations and payment of any
taxes related to or imposed on BFE.
2.2.2 Reimbursement of Boeing. Customer will promptly reimburse Boeing on
demand, net of additional taxes thereon, for any Taxes
that are imposed on and paid by Boeing or that Boeing is responsible for
collecting.
2.3 Payment.
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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 wire transfer of immediately available funds in United States
Dollars in a bank account in the United States designated by Boeing.
2.3.4 Monetary and Government Regulations. Customer is responsible for
complying with all monetary control regulations and for obtaining necessary
governmental authorizations related to payments.
Article 3. Regulatory Requirements and Certificates.
----------------------------------------
3.1 Certificates. Boeing will manufacture each aircraft to
conform to the appropriate Type Certificate issued by the United States Federal
Aviation Administration (FAA) for the specific model of aircraft and will obtain
from the FAA and furnish to Customer at delivery of each aircraft either a
Standard Airworthiness Certificate or an Export Certificate of Airworthiness
issued pursuant to Part 21 of the Federal Aviation Regulations.
3.2 FAA or Applicable Regulatory Authority Manufacturer Changes.
3.2.1 A Manufacturer Change is defined as any change to an aircraft, data
relating to an aircraft, or testing of an aircraft required by the FAA to obtain
a Standard Airworthiness Certificate, or by the country of import and/or
registration to obtain an Export Certificate of Airworthiness.
3.2.2 Boeing will bear the cost of incorporating all Manufacturer Changes
into the aircraft:
(i) resulting from requirements issued by the FAA prior to the date of the
Type Certificate for the applicable aircraft;
(ii) resulting from requirements issued by the FAA prior to the date of
the applicable purchase agreement; and
(iii) for any aircraft delivered during the 18 month period immediately
following the date of the applicable purchase agreement (regardless of when the
requirement for such change was issued by the FAA).
3.2.3 Customer will pay Boeing's charge for incorporating all other
Manufacturer Changes into the aircraft, including all changes for validation of
an aircraft required by any governmental agency of the country of import and/or
registration.
3.3 FAA Operator Changes.
--------------------
3.3.1 An Operator Change is defined as a change in equipment that is
required by Federal Aviation Regulations which (i) is generally applicable to
transport category aircraft to be used in United States certified air carriage
and (ii) the required compliance date is on or before the scheduled delivery
month of the aircraft.
3.3.2 Boeing will deliver each aircraft with Operator Changes incorporated
or, at Boeing's option, with suitable provisions for the incorporation of such
Operator Changes, and Customer will pay Boeing's applicable charges.
3.4 Export License. If an export license is required by United
States law or regulation for any aircraft or any other things delivered under
the purchase agreement, it is Customer's obligation to obtain such license. If
requested, Boeing will assist Customer in applying for any such export license.
Customer will furnish any required supporting documents.
Article 4. Detail Specification; Changes.
-----------------------------
4.1 Configuration Changes. The Detail Specification is defined
as the Boeing document that describes the configuration of each aircraft
purchased by Customer. The Detail Specification for each aircraft may be amended
(i) by Boeing to reflect the incorporation of Manufacturer Changes and Operator
Changes or (ii) by the agreement of the parties. In either case the amendment
will describe the particular changes to be made and any effect on design,
performance, weight, balance, scheduled delivery month, Aircraft Basic Price,
Aircraft Price, and/or Advance Payment Base Price.
4.2 Development Changes. Development Changes are defined as
changes to aircraft that do not affect the Aircraft Price or scheduled delivery
month, and do not adversely affect guaranteed weight, guaranteed performance, or
compliance with the interchangeability or replaceability requirements set forth
in the applicable Detail Specification. Boeing may, at its option, incorporate
Development Changes into the Detail Specification and into an aircraft prior to
delivery to Customer.
4.3 Notices. Boeing will promptly notify Customer of any amendments to a
Detail Specification.
Article 5. Representatives, Inspection, Demonstration Flights, Test Data
and Performance Guarantee Compliance.
5.1 Office Space. Twelve months before delivery of the first aircraft
purchased, and continuing until the delivery of the last aircraft on firm order,
Boeing will furnish, free of charge, suitable office space and equipment for the
accommodation of up to three representatives of Customer in or conveniently
located near the assembly plant.
5.2 Inspection. Customer's representatives may inspect each aircraft at any
reasonable time, provided such inspection does not interfere with Boeing's
performance.
5.3 Demonstration Flights. Prior to delivery, Boeing will fly each aircraft
up to 4 hours to demonstrate to Customer the function of the aircraft and its
equipment using Boeing's production flight test procedures. Customer may
designate up to five representatives to participate as observers.
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.
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6.1 Notices of Delivery Dates. Boeing will notify Customer of the
approximate delivery date of each aircraft at least 30 days before the scheduled
month of delivery and again at least 14 days before the scheduled delivery date.
6.2 Place of Delivery. Each aircraft will be delivered at a facility
selected by Boeingin the same state as the primary assembly plant for the
aircraft.
6.3 ▇▇▇▇ of Sale. At delivery of an aircraft, Boeing will provide Customer
a ▇▇▇▇ of sale conveying good title, free of encumbrances.
6.4 Delay. If Customer delays acceptance of an aircraft beyond the
scheduled delivery date, Customer will reimburse Boeing for all costs incurred
by Boeing as a result of the delay.
Article 7. Excusable Delay.
---------------
7.1 General. Boeing will not be liable for any delay in the scheduled
delivery month of an aircraft or other performance under a purchase agreement
caused by (i) acts of God; (ii) war or armed hostilities; (iii) government acts
or priorities; (iv) fires, floods, or earthquakes; (v) strikes or labor troubles
causing cessation, slowdown, or interruption of work; (vi) inability, after due
and timely diligence, to procure materials, systems, accessories, equipment or
parts; or (vii) any other cause to the extent such cause is beyond Boeing's
control and not occasioned by Boeing's fault or negligence. A delay resulting
from any such cause is defined as an Excusable Delay.
7.2 Notice. Boeing will give written notice to Customer (i) of a delay as
soon as Boeing concludes that an aircraft will be delayed beyond the scheduled
delivery month due to an Excusable Delay and, when known, (ii) of a revised
delivery month based on Boeing's appraisal of the facts.
7.3 Delay in Delivery of Twelve Months or Less. If the revised delivery
month is 12 months or less after the scheduled delivery month, Customer will
accept such aircraft when tendered for delivery, subject to the following:
7.3.1 The calculation of the Escalation Adjustment will be based on the
previously scheduled delivery month.
7.3.2 The advance payment schedule will be adjusted to reflect the revised
delivery month.
7.3.3 All other provisions of the applicable purchase agreement, including
the BFE on-dock dates for the delayed aircraft, are unaffected by an Excusable
Delay.
7.4 Delay in Delivery of More Than Twelve Months. If the revised delivery
month is more than 12 months after the scheduled delivery month, either party
may terminate the applicable purchase agreement with respect to such aircraft
within 30 days of the notice. If either party does not terminate the applicable
purchase agreement with respect to such aircraft, all terms and conditions of
the applicable purchase agreement will remain in effect.
7.5 Aircraft Damaged Beyond Repair. If an aircraft is destroyed or damaged
beyond repair for any reason before delivery, Boeing will give written notice to
Customer specifying the earliest month possible, consistent with Boeing's other
contractual commitments and production capabilities, in which Boeing can deliver
a replacement. Customer will have 30 days from receipt of such notice to elect
to have Boeing manufacture a replacement aircraft under the same terms and
conditions of purchase, except that the calculation of the Escalation Adjustment
will be based upon the scheduled delivery month in effect immediately prior to
the date of such notice, or, failing such election, the applicable purchase
agreement will terminate with respect to such aircraft. Boeing will not be
obligated to manufacture a replacement aircraft if reactivation of the
production line for the specific model of aircraft would be required.
7.6 Termination. Termination under this Article will discharge all
obligations and liabilities of Boeing and Customer with respect to any aircraft
and all related undelivered Materials (as defined in Exhibit B, Customer Support
Document), training, services, and other things terminated under the applicable
purchase agreement, except that Boeing will return to Customer, without
interest, an amount equal to all advance payments paid by Customer for the
aircraft. If Customer terminates the applicable purchase agreement as to any
aircraft, Boeing may elect, by written notice to Customer within 30 days, to
purchase from Customer any BFE related to the aircraft at the invoice prices
paid, or contracted to be paid, by Customer.
7.7 Exclusive Rights. The termination rights in this Article are in
substitution for all other rights of termination or any claim arising by
operation of law due to delays in performance covered by this Article.
Article 8. Risk Allocation/Insurance.
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8.1 Title and Risk with Boeing.
--------------------------
8.1.1 Boeing's Indemnification of Customer. Until transfer of title to an
aircraft to Customer, Boeing will indemnify and hold harmless Customer and
Customer's observers from and against all claims and liabilities, including all
expenses and attorneys' fees incident thereto or incident to establishing the
right to indemnification, for injury to or death of any person(s), including
employees of Boeing but not employees of Customer, or for loss of or damage to
any property, including an aircraft, arising out of or in any way related to the
operation of an aircraft during all demonstration and test flights conducted
under the provisions of the applicable purchase agreement, whether or not
arising in tort or occasioned by the negligence of Customer or any of Customer's
observers.
8.1.2 Definition of Customer. For the purposes of this Article, "Customer"
is defined as American Trans Air, 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. The form of the insurance certificate, attached as Appendix I, states
the terms, limits, provisions, and coverages required by this Article 8.2.1. The
failure of Boeing to demand compliance with this 8.2.1 in any year will not in
any way relieve Customer of its obligations hereunder nor constitute a waiver by
Boeing of these obligations.
8.2.2 Noncompliance with Insurance Requirements. If Customer fails to
comply with any of the insurance requirements of Article 8.2.1 or if any of the
insurers fails to pay a claim covered by the insurance or otherwise fails to
meet any of insurer's obligations required by Appendix I, Customer will provide
the same protection to Boeing as that required by Article 8.2.1 above.
8.2.3 Definition of Boeing. For purposes of this article, "Boeing" is
defined as The Boeing Company, its divisions, subsidiaries, affiliates,
assignees of each, and their respective directors, officers, employees, and
agents.
Article 9. Assignment, Resale, or Lease.
----------------------------
9.1 Assignment. This AGTA and each applicable purchase agreement are for
the benefit of the parties and their respective successors and assigns. No
rights or duties of either party may be assigned or delegated, or contracted to
be assigned or delegated, without the prior written consent of the other party,
except:
9.1.1 Either party may assign its interest to a corporation that (i)
results from any merger, reorganization, or acquisition of such party and (ii)
acquires substantially all the assets of such party;
9.1.2 Boeing may assign its rights to receive money; and
9.1.3 Boeing may assign any of its rights and duties to any wholly-owned
subsidiary of Boeing.
9.1.4 Boeing may assign any of its rights and duties with respect to Part
1, Articles 1, 2, 4 and 5 of Exhibit B, Customer Support Document to the AGTA,
to FlightSafety Boeing Training International L.L.C.
9.2 Transfer by Customer at Delivery. Boeing will take any requested action
reasonably required for the purpose of causing an aircraft, at time of delivery,
to be subject to an equipment trust, conditional sale, lien, or other
arrangement for Customer to finance the aircraft. However, no such action will
require Boeing to divest itself of title to or possession of the aircraft until
delivery of and payment for the aircraft. A sample form of assignment acceptable
to Boeing is attached as Appendix II.
9.3 Sale or Lease by Customer After Delivery. If, following delivery of an
aircraft, Customer sells or leases the aircraft (including any sale and
lease-back for financing purposes), all of Customer's rights with respect to the
aircraft under the applicable purchase agreement will inure to the benefit of
the purchaser or lessee of such aircraft, effective upon Boeing's receipt of the
written agreement of the purchaser or lessee, in a form satisfactory to Boeing,
to comply with all applicable terms and conditions of the applicable purchase
agreement. Sample forms of agreement acceptable to Boeing are attached as
Appendices III and IV.
9.4 Notice of Sale or Lease After Delivery. Customer will give notice to
Boeing as soon as practicable of the sale or lease of an aircraft, including in
the notice the name of the entity or entities with title and/or possession of
such aircraft.
9.5 Exculpatory Clause in Post-Delivery Sale or Lease. If, following the
delivery of an aircraft, Customer sells or leases such aircraft and obtains from
the transferee any form of exculpatory clause protecting Customer from liability
for loss of or damage to the aircraft, and/or related incidental or
consequential damages, including without limitation loss of use, revenue, or
profit, Customer shall obtain for Boeing the purchaser's or lessee's written
agreement to be bound by terms and conditions substantially as set forth in
Appendix V. This Article 9.5 applies only if purchaser or lessee has not
provided to Boeing the written agreement described in Article 9.3 above.
9.6 Appointment of Agent - Warranty Claims. If, following delivery of an
aircraft, Customer appoints an agent to act directly with Boeing for the
administration of claims relating to the warranties under the applicable
purchase agreement, Boeing will deal with the agent for that purpose, effective
upon Boeing's receipt of the agent's written agreement, in a form satisfactory
to Boeing, to comply with all applicable terms and conditions of the applicable
purchase agreement. A sample form of agreement acceptable to Boeing is attached
as Appendix VI.
9.7 No Increase in Boeing Liability. No action taken by Customer or Boeing
relating to the resale or lease of an aircraft or the assignment of Customer's
rights under the applicable purchase agreement will subject Boeing to any
liability beyond that in the applicable purchase agreement or modify in any way
Boeing's obligations under the applicable purchase agreement.
Article 10. Termination of Purchase Agreements for Certain Events.
-----------------------------------------------------
10.1 Termination. If either party
(i) ceases doing business as a going concern, or
suspends all or substantially all its business
operations, or makes an assignment for the benefit of
creditors, or generally does not pay its debts as
they become due, or admits in writing its inability
to pay its debts; or
(ii) petitions for or acquiesces in the appointment
of any receiver, trustee or similar officer to
liquidate or conserve its business or any substantial
part of its assets; commences any legal proceeding
such as bankruptcy, reorganization, readjustment of
debt, dissolution, or liquidation available for the
relief of financially distressed debtors; or becomes
the object of any such proceeding, unless the
proceeding is dismissed or stayed within a reasonable
period, not to exceed 60 days,
the other party may terminate any purchase agreement with respect to any
undelivered aircraft, Materials, training, services, and other things by giving
written notice of termination.
10.2 Repayment of Advance Payments. If Customer terminates the applicable
purchase agreement under this Article, Boeing will repay to Customer, without
interest, an amount equal to any advance payments received by Boeing from
Customer with respect to undelivered aircraft.
Article 11. Notices.
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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: American Trans Air, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: Treasurer
Boeing: Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Attention: Vice President - Contracts
Mail Code 21-34
Article 12. Miscellaneous.
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12.1 Government Approval. Boeing and Customer will assist each other in
obtaining any governmental consents or approvals required to effect
certification and sale of aircraft under the applicable purchase agreement.
12.2 Headings. Article and paragraph headings used in this AGTA and in any
purchase agreement are for convenient reference only and are not intended to
affect the interpretation of this AGTA or any purchase agreement.
12.3 GOVERNING LAW. THIS AGTA AND ANY PURCHASE AGREEMENT WILL BE
INTERPRETED UNDER AND GOVERNED BY THE LAWS OF THE STATE OF WASHINGTON, U.S.A.,
EXCEPT THAT WASHINGTON'S CHOICE OF LAW RULES SHALL NOT BE INVOKED FOR THE
PURPOSE OF APPLYING THE LAW OF ANOTHER JURISDICTION.
12.4 Waiver/Severability. Failure by either party to enforce any provision
of this AGTA or any purchase agreement will not be construed as a waiver. If any
provision of this AGTA or any provision of any purchase agreement are held
unlawful or otherwise ineffective by a court of competent jurisdiction, the
remainder of the AGTA or the applicable purchase agreement will remain in
effect.
12.5 Survival of Obligations. The Articles and Exhibits of this AGTA
including but not limited to those relating to insurance, DISCLAIMER AND RELEASE
and the EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES will survive termination or
cancellation of any purchase agreement or part thereof.
12.6 AGTA Changes. The intent of the AGTA is to simplify the standard
contracting process for terms and conditions which are related to the sale and
purchase of all Boeing aircraft. This AGTA has been mutually agreed to by the
parties as of the date indicated below. From time to time the parties may elect,
by mutual agreement to update, or modify the existing articles as written. If
such changes are made, any existing executed Purchase Agreement(s) will be
governed by the terms and conditions of the Revision level of the AGTA in effect
based on the date of the executed Purchase Agreement.
DATED AS OF June 30, 2000
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AMERICAN TRANS AIR, INC. THE BOEING COMPANY
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇. ▇. ▇▇▇▇▇▇
------------------------------- --------------------
Its: Executive Vice President & CFO Its: Attorney-In-Fact
------------------------------- ---------------------
EXHIBIT A
to
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-AAT
between
THE BOEING COMPANY
and
American Trans Air, Inc.
BUYER FURNISHED equipment provisions document
BUYER FURNISHED EQUIPMENT PROVISIONS DOCUMENT
1. General.
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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.
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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 requirements for BFE certification.
3. Customer's Obligations.
----------------------
Customer will:
3.1 comply with and cause the supplier to comply with the provisions of the
BFE Document or BFE Report;
3.1.1 deliver technical data (in English) to Boeing as required to support
installation and FAA certification in accordance with the schedule provided by
Boeing or as mutually agreed upon during the BFE meeting referred to above;
3.1.2 deliver BFE including production and/or flight training spares and
BFE Aircraft Software to Boeing in accordance with the quantities and schedule
provided therein; and
3.1.3 assure that all BFE Aircraft Software is delivered in compliance with
Boeing's then-current Standards for Loadable Systems;
3.1.4 assure that all BFE parts are delivered to Boeing with appropriate
quality assurance documentation;
3.2 authorize Boeing to discuss all details of the BFE directly with the
BFE suppliers;
3.3 authorize Boeing to conduct or delegate to the supplier quality source
inspection and supplier hardware acceptance of BFE at the supplier location;
3.3.1 require supplier's contractual compliance to Boeing defined quality
assurance requirements, source inspection programs and supplier delegation
programs, including availability of adequate facilities for Boeing resident
personnel; and
3.3.2 assure that all BFE supplier's quality systems are approved to
Boeing's then current standards for such systems ;
3.4 obtain from supplier a non-exclusive, perpetual, royalty-free,
irrevocable license for Boeing to copy BFE Aircraft Software. The license is
needed to enable Boeing to load the software copies in (i) the aircraft's mass
storage device (MSD), (ii) media (e.g., diskettes, CD-ROMs, etc.), (iii) the BFE
hardware and/or (iv) an intermediate device or other media to facilitate copying
of the BFE Aircraft Software into the aircraft's MSD, BFE hardware and/or media,
including media as Boeing may deliver to Customer with the aircraft;
3.5 grant Boeing a license, extending the same rights set forth in
paragraph 3.4 above, to copy: a) BFE Aircraft Software and data Customer has
modified and/or b) other software and data Customer has added to the BFE
Aircraft Software;
3.6 provide necessary field service representation at Boeing's facilities
to support Boeing on all issues related to the installation and certification of
BFE;
3.7 deal directly with all BFE suppliers to obtain overhaul data,
provisioning data, related product support documentation and any warranty
provisions applicable to the BFE;
3.8 work closely with Boeing and the BFE suppliers to resolve any
difficulties, including defective equipment, that arise;
3.9 be responsible for modifying, adjusting and/or calibrating BFE as
required for FAA approval and for all related expenses;
3.10 assure that a proprietary information agreement is in place between
Boeing and BFE suppliers prior to Boeing providing any documentation to such
suppliers,
3.11 warrant that the BFE will comply with all applicable FARs and the U.S.
Food and Drug Administration (FDA) sanitation requirements for installation and
use in the Aircraft at the time of delivery. Customer will be responsible for
supplying any data and adjusting, calibrating, re-testing or updating such BFE
and data to the extent necessary to obtain applicable FAA and FDA approval and
shall bear the resulting expenses.
3.12 warrant that the BFE will meet the requirements of the Detail
Specification; and
3.13 be responsible for providing equipment which is FAA certifiable at
time of Aircraft delivery, or for obtaining waivers from the applicable
regulatory agency for non-FAA certifiable equipment.
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.
----------------------
7.1 With respect to Aircraft manufactured in the State of Washington,
title to and risk of loss of BFE provided for such Aircraft will at all times
remain with Customer or other owner. Boeing will have only such liability for
BFE as a bailee for mutual benefit would have, but will not be liable for loss
of use.
7.2 With respect to Aircraft manufactured in the State of California,
Customer agrees to sell and Boeing agrees to purchase each item of BFE
concurrently with its delivery to Boeing. A reasonable shipset price for the BFE
shall be established with Customer. Customer and Boeing agree that the Aircraft
Price will be increased by the amount of said shipset price and such amount will
be included on Boeing's invoice at time of Aircraft delivery. Boeing's payment
for the purchase of each shipset of BFE from Customer will be made at the time
of delivery of the Aircraft in which the BFE is installed.
8. Interchange of BFE
To properly maintain Boeing's production flow and to preserve Boeing's
delivery commitments, Boeing reserves the right, if necessary, due to equipment
shortages or failures, to interchange new items of BFE acquired from or for
Customer with new items of the same part numbers acquired from or for other
customers of Boeing. Used BFE acquired from Customer or from other customers of
Boeing will not be interchanged.
9. Indemnification of Boeing.
-------------------------
Customer hereby indemnifies and holds harmless Boeing from and against
all claims and liabilities, including costs and expenses (including attorneys'
fees) incident thereto or incident to successfully establishing the right to
indemnification, for injury to or death of any person or persons, including
employees of Customer but not employees of Boeing, or for loss of or damage to
any property, including any Aircraft, arising out of or in any way connected
with any nonconformance or defect in any BFE and whether or not arising in tort
or occasioned by the negligence of Boeing. This indemnity will not apply with
respect to any nonconformance or defect caused solely by Boeing's installation
of the BFE.
10. Patent Indemnity.
----------------
Customer hereby indemnifies and holds harmless Boeing from and against
all claims, suits, actions, liabilities, damages and costs arising out of any
actual or alleged infringement of any patent or other intellectual property
rights by BFE or arising out of the installation, sale or use of BFE by Boeing.
11. Definitions.
-----------
For the purposes of the above indemnities, the term "Boeing" includes
The Boeing Company, its divisions, subsidiaries and affiliates, the assignees of
each, and their directors, officers, employees and agents.
EXHIBIT B
to
AIRCRAFT GENERAL TERMS AGREEMENT
AGTA-AAT
between
THE BOEING COMPANY
and
American Trans Air, 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 at Boeing's primary training facility
for the model of aircraft purchased unless otherwise agreed.
1.3 All training will be presented in the English language. If translation
is required, Customer will provide interpreters.
1.4 Customer will be responsible for all expenses of Customer's
personnel. Boeing will transport Customer's personnel between their local
lodging and Boeing's training facility.
2. Training Planning Conferences.
-----------------------------
Customer and Boeing will conduct planning conferences approximately 12
months before the scheduled delivery month of the first aircraft of a model to
define and schedule the maintenance and flight training programs.
3. Operations Engineering Support.
------------------------------
3.1 As long as an aircraft purchased by Customer from Boeing is
operated by Customer in scheduled revenue service, Boeing will provide
operations engineering support. Such support will include:
3.1.1 assistance with the analysis and preparation of performance data to
be used in establishing operating practices and policies for Customer's
operation of aircraft;
3.1.2 assistance with interpretation of the minimum equipment list, the
definition of the configuration deviation list and the analysis of individual
aircraft performance;
3.1.3 assistance with solving operational problems associated with delivery
and route-proving flights;
3.1.4 information regarding significant service items relating to aircraft
performance or flight operations; and
3.1.5 if requested by Customer, Boeing will provide operations engineering
support during an aircraft ferry flight.
4. Training at a Facility Other Than Boeing's.
------------------------------------------
If requested by Customer, Boeing will conduct the classroom portions of
the maintenance and flight training (except for the Performance Engineer
training courses) at a mutually acceptable alternate training site, subject to
the following conditions:
4.1 Customer will provide acceptable classroom space, simulators (as
necessary for flight training) and training equipment required to present the
courses;
4.2 Customer will pay Boeing's then-current per diem charge for each Boeing
instructor for each day, or fraction thereof, that the instructor is away from
their home location , including travel time;
4.3 Customer will reimburse Boeing for the actual costs of round-trip
transportation for Boeing's instructors and the shipping costs of training
Materials between the primary training facility and the alternate training site;
4.4 Customer will be responsible for all taxes, fees, duties, licenses,
permits and similar expenses incurred by Boeing and its employees as a result of
Boeing's providing training at the alternate site or incurred as a result of
Boeing providing revenue service training; and
4.5 Those portions of training that require the use of training devices not
available at the alternate site will be conducted at Boeing's facility or at
some other alternate site.
5. General Terms and Conditions.
----------------------------
5.1 Boeing flight instructor personnel will not be required to work more
than 5 days per week, or more than 8 hours in any one 24-hour period, of which
not more than 5 hours per 8-hour workday will be spent in actual flying. These
foregoing restrictions will not apply to ferry assistance or revenue service
training services, which will be governed by FAA rules and regulations.
5.2 Normal Line Maintenance is defined as line maintenance that Boeing
might reasonably be expected to furnish for flight crew training at Boeing's
facility, and will include ground support and aircraft storage in the open, but
will not include provision of spare parts. Boeing will provide Normal Line
Maintenance services for any aircraft while the aircraft is used for flight crew
training at Boeing's facility in accordance with the Boeing Maintenance Plan
(Boeing document D6-82076) and the Repair Station Operation and Inspection
Manual (Boeing document D6-25470). 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 surrounding states may be used, at Boeing's option. Unless otherwise agreed
in the flight training planning conference, it will be Customer's responsibility
to make arrangements for the use of such airports.
5.5 If Boeing agrees to make arrangements on behalf of Customer for the use
of airports for flight training, Boeing will pay on Customer's behalf any
landing fees charged by any airport used in conjunction with the flight
training. At least 30 days before flight training, Customer will provide Boeing
an open purchase order against which Boeing will invoice Customer for any
landing fees Boeing paid on Customer's behalf. The invoice will be submitted to
Customer approximately 60 days after flight training is completed, when all
landing fee charges have been received and verified. Customer will pay to Boeing
within 30 days of the date of the invoice.
5.6 If requested by Boeing, in order to provide the flight training or
ferry flight assistance, Customer will make available to Boeing an aircraft
after delivery to familiarize Boeing instructor or ferry flight crew personnel
with such aircraft. If flight of the aircraft is required for any Boeing
instructor or ferry flight crew member to maintain an FAA license for flight
proficiency or landing currency, Boeing will be responsible for the costs of
fuel, oil, landing fees and spare parts attributable to that portion of the
flight.
5.7 If any part of the training described in paragraph 1.1 of this Exhibit
is not used by Customer within 12 months after the delivery of the last aircraft
under the relevant purchase agreement, Boeing will not be obligated to provide
such training.
CUSTOMER SUPPORT DOCUMENT
PART 2: FIELD AND ENGINEERING SUPPORT SERVICES
1. Field Service Representation.
----------------------------
Boeing will furnish field service representation to advise Customer
with respect to the maintenance and operation of an aircraft (Field Service
Representatives).
1.1 Field Service representation will be available at or near
Customer's main maintenance or engineering facility beginning before the
scheduled delivery month of the first aircraft and ending 12 months after
delivery of the last aircraft covered by a specific purchase agreement.
1.2 Customer will provide, at no charge to Boeing, suitable furnished
office space and office equipment at the location where Boeing is providing
Field Service Representatives. As required, Customer will assist each Field
Service Representative with visas, work permits, customs, mail handling,
identification passes and formal introduction to local airport authorities.
1.3 Boeing Field Service Representatives are assigned to various
airports around the world. Whenever Customer's aircraft are operating through
any such airport, the services of Boeing's Field Service Representatives are
available to Customer.
2. Engineering Support Services.
----------------------------
Boeing will, if requested by Customer, provide technical advisory
assistance for any aircraft and Boeing Product (as defined in Part I of Exhibit
C). Technical advisory assistance, provided from the Seattle area or at a base
designated by Customer as appropriate, will include:
2.1 Operational Problem Support. If Customer experiences operational
problems with an aircraft, Boeing will analyze the information provided by
Customer to determine the probable nature and cause of the problem and to
suggest possible solutions.
2.2 Schedule Reliability Support. If Customer is not satisfied with the
schedule reliability of a specific model of aircraft, Boeing will analyze
information provided by Customer to determine the nature and cause of the
problem and to suggest possible solutions.
2.3 Maintenance Cost Reduction Support. If Customer is concerned that
actual maintenance costs of a specific model of aircraft are excessive, Boeing
will analyze information provided by Customer to determine the nature and cause
of the problem and to suggest possible solutions.
2.4 Aircraft Structural Repair Support. If Customer is designing
structural repairs and desires Boeing's support, Boeing will analyze and comment
on Customer's engineering releases relating to structural repairs not covered by
Boeing's Structural Repair Manual.
2.5 Aircraft Modification Support. If Customer is designing aircraft
modifications and requests Boeing's support, Boeing will analyze and comment on
Customer's engineering 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 initial maintenance plan
for the introduction of the aircraft into service.
2.7 Post-Delivery Service Support. Boeing will, at Customer's request,
perform work on an aircraft after delivery but prior to the initial departure
flight or upon the return of the aircraft to Boeing's facility prior to
completion of that flight. In that event the following provisions will apply.
2.7.1 Boeing may rely upon the commitment authority of the Customer's
personnel requesting the work.
2.7.2 As title and risk of loss has passed to Customer, the insurance
provisions of Article 8.2 of the AGTA apply.
2.7.3 The provisions of the Boeing Warranty in Part 2 of Exhibit C of this
AGTA apply.
2.7.4 Customer will pay Boeing for requested work not covered by the Boeing
Warranty, if any.
2.7.5 The DISCLAIMER AND RELEASE and EXCLUSION OF
CONSEQUENTIAL AND OTHER DAMAGES provisions in Article 11 of Part 2 of Exhibit C
of this AGTA apply.
2.8 Additional Services. Boeing may, at Customer's request, provide
additional services for an aircraft after delivery, which may include, but not
be limited to, retrofit kit changes (kits and/or information), training, flight
services, maintenance and repair of aircraft. Such additional services will be
subject to a mutually acceptable price, schedule and scope of work. The
DISCLAIMER AND RELEASE and the EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES
provisions in Article 11 of Part 2 of Exhibit C of this AGTA and the insurance
provisions in Article 8.2 of this AGTA will apply to any such work. Title to and
risk of loss of any such aircraft will always remain with Customer.
CUSTOMER SUPPORT DOCUMENT
PART 3: TECHNICAL INFORMATION AND MATERIALS
1. General.
-------
Materials are defined as any and all items that are created by Boeing
or a third party, which are provided directly or indirectly from Boeing and
serve primarily to contain, convey or embody information. Materials may include
either tangible embodiments (for example, documents or drawings), or intangible
embodiments (for example, software and other electronic forms) of information
but excludes Aircraft Software. Aircraft Software is defined as software that is
installed on and used in the operation of the aircraft.
Boeing will furnish to Customer certain Materials to support the
maintenance and operation of the aircraft at no additional charge to Customer,
except as otherwise provided herein. Such Materials will, if applicable, be
prepared generally in accordance with Air Transport Association of America (ATA)
Specification No. 100, entitled "Specification for Manufacturers' Technical
Data". Materials will be in English and in the units of measure used by Boeing
to manufacture an aircraft.
Digitally-produced Materials will, if applicable, be prepared generally
in accordance with ATA Specification No. 2100, dated January 1994, "Digital Data
Standards for Aircraft Support."
2. Materials Planning Conferences.
------------------------------
Customer and Boeing will conduct planning conferences approximately 12
months before the scheduled delivery month of the first aircraft of a model in
order to mutually determine the proper format and quantity of Materials to be
furnished to Customer in support of the aircraft.
When available, Customer may select one Boeing digital format as the
delivery medium. Should a Boeing digital format not be chosen, Customer may
select a reasonable quantity of printed and 16mm microfilm formats, 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. Supplier Technical Data.
-----------------------
7.1 For supplier-manufactured programmed airborne avionics components and
equipment classified as Seller Furnished Equipment (SFE) or Seller Purchased
Equipment (SPE) or Buyer Designated Equipment (BDE) which contain computer
software designed and developed in accordance with Radio Technical Commission
for Aeronautics Document No. RTCA/DO-178 dated January 1982, No. RTCA/DO-178A
dated March 1985, or later as available, Boeing will request that each supplier
of the components and equipment make software documentation available to
Customer.
7.2 The provisions of this Article will not be applicable to items of BFE.
7.3 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.
8. 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.
9. Materials Shipping Charges.
--------------------------
Boeing will pay the reasonable transportation costs of the Materials.
Customer is responsible for any customs clearance charges, duties, and taxes.
10. 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.
-------
All Materials provided by Boeing to Customer and not covered by a
Boeing CSGTA or other agreement between Boeing and Customer defining Customer's
right to use and disclose the Materials and included information will be covered
by, and subject to the terms of this AGTA. Title to all Materials containing,
conveying or embodying confidential, proprietary or trade secret information
(Proprietary Information) belonging to Boeing or a third party (Proprietary
Materials), will at all times remain with Boeing or such third party. Customer
will treat all Proprietary Materials and all Proprietary Information in
confidence and use and disclose the same only as specifically authorized in this
AGTA.
2. License Grant.
-------------
Boeing grants to Customer a worldwide, non-exclusive, non-transferable
license to use and disclose Proprietary Materials in accordance with the terms
and conditions of this AGTA. Customer is authorized to make copies of Materials
(except for Materials bearing the copyright legend of a third party), and all
copies of Proprietary Materials will belong to Boeing and be treated as
Proprietary Materials under this AGTA. Customer will preserve all proprietary
legends, and all copyright notices on all Materials and insure the inclusion of
those legends and notices on all copies.
3. Use of Proprietary Materials and Proprietary Information.
--------------------------------------------------------
Customer is authorized to use Proprietary Materials and Proprietary
Information for the purpose of: (a) operation, maintenance, repair, or
modification of Customer's aircraft for which the Proprietary Materials and
Proprietary Information have been specified by Boeing and (b) development and
manufacture of training devices and maintenance tools 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 and maintenance tools for Customer's use. Before providing Proprietary
Materials to its contractor, Customer will first obtain a written agreement from
the contractor by which the contractor agrees (a) to use the Proprietary
Materials only on behalf of Customer, (b) to be bound by all of the restrictions
and limitations of this Part 5, and (c) that Boeing is a third party beneficiary
under the written agreement. Customer agrees to provide copies of all such
written agreements to Boeing upon request and be liable to Boeing for any breach
of those agreements by a contractor. A sample agreement acceptable to Boeing is
attached as Appendix VII.
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-AAT
between
THE BOEING COMPANY
and
American Trans Air, 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. Applicability.
-------------
This warranty applies to all Boeing Products. Warranties applicable to
Supplier Products are in Part 4. Warranties applicable to engines will be
provided by Supplemental Exhibits to individual purchase agreements.
2. Warranty.
--------
2.1 Coverage. Boeing warrants that at the time of delivery:
(i) the aircraft will conform to the Detail Specification except for
portions stated to be estimates, approximations or design objectives;
(ii) all Boeing Products will be free from defects in material, process of
manufacture and workmanship, including the workmanship utilized to install
Supplier Products, engines and BFE, and;
(iii) all Boeing Products will be free from defects in design, including
selection of materials and the process of manufacture, in view of the state of
the art at the time of design
2.2 Exceptions. The following conditions do not constitute a defect under
this warranty:
(i) conditions resulting from normal wear and tear;
(ii) conditions resulting from acts or omissions of Customer; and
(iii) conditions resulting from failure to properly service and maintain a
Boeing Product .
3. Warranty Periods.
3.1 Warranty. The warranty period begins on the date of aircraft or
Boeing Product delivery and ends: (i) after 48 months for Boeing aircraft models
777-200, -300 or 737-600, -700, -800, or new aircraft models designed and
manufactured with similar, new technology; or, (ii) after 36 months for any
other Boeing aircraft model.
3.2 Warranty on Corrected Boeing Products. The warranty period
applicable to a Corrected Boeing Product, including the workmanship to Correct
and install, resulting from a defect in material or workmanship is the remainder
of the initial warranty period for the defective Boeing Product it replaced. The
warranty period for a Corrected Boeing Product resulting from a defect in design
is 18 months or the remainder of the initial warranty period, whichever is
longer. The 18 month period begins on the date of delivery of the Corrected
Boeing Product or date of delivery of the kit or kits furnished to Correct the
Boeing Product.
3.3 Survival of Warranties. All warranty periods are stated above. The
Performance Guarantees will not survive delivery of the
aircraft.
4. Remedies.
--------
4.1 Correction Options. Customer may, at its option, either perform a
Correction of a defective Boeing Product or return the
Boeing Product to Boeing for Correction.
4.2 Warranty Labor Rate. If Customer or its Authorized Agent Corrects a
defective Boeing Product, Boeing will reimburse Customer for Direct Labor Hours
at Customer's established Warranty Labor Rate. Customer's established Warranty
Labor Rate will be the greater of the standard labor rate or 150% of Customer's
Average Direct Hourly Labor Rate. The standard labor rate paid by Boeing to its
customers is established and published annually. Prior to or concurrently with
submittal of Customer's first claim for Direct Labor reimbursement, Customer may
notify Boeing of Customer's then-current Average Direct Hourly Labor Rate, and
thereafter notify Boeing of any material change in such rate. Boeing will
require information from Customer to substantiate such rates.
4.3 Warranty Inspections. In addition to the remedies to Correct
defects in Boeing Products, Boeing will reimburse Customer for the cost of
Direct Labor to perform certain inspections of the aircraft to determine the
occurrence of a condition Boeing has identified as a covered defect, provided:
4.3.1 the inspections are recommended by a service bulletin or service
letter issued by Boeing during the warranty period; and
4.3.2 such reimbursement will not apply to any inspections performed after
a Correction is available to Customer.
4.4 Credit Memorandum Reimbursement. Boeing will make all reimbursements by
credit memoranda which may be applied toward
the purchase of Boeing goods and services.
4.5 Maximum Reimbursement. Unless previously agreed, the maximum
reimbursement for Direct Labor and Direct Materials used to Correct a defective
Boeing Product will not exceed 65% of Boeing's then-current sales price for a
new replacement Boeing Product.
5. Discovery and Notice.
--------------------
5.1 For a claim to be valid:
(i) the defect must be discovered during the warranty period; and
(ii) Boeing Warranty must receive written notice of the discovery no later
than 90 days after expiration of the warranty period. The notice must include
sufficient information to substantiate the claim.
5.2 Receipt of Customer's or its Authorized Agent's notice of the discovery
of a defect secures Customer's rights to remedies under this Exhibit C, even
though a Correction is performed after the expiration of the warranty period.
5.3 Once Customer has given valid notice of the discovery of a defect, a
claim should be submitted as soon as practicable after performance of the
Correction.
5.4 Boeing may release service bulletins or service letters advising
Customer of the availability of certain warranty remedies. When such advice is
provided, Customer will be deemed to have fulfilled the requirements for
discovery of the defect and submittal of notice under this Exhibit C as of the
date specified in the service bulletin or service letter.
6. Filing a Claim.
--------------
6.1 Authority to File. Claims may be filed by Customer or its Authorized
Agent. Appointment of an Authorized Agent will only be effective upon Boeing's
receipt of the Authorized Agent's express written agreement, in a form
satisfactory to Boeing, to be bound by and to comply with all applicable terms
and conditions of this Aircraft General Terms Agreement.
6.2 Claim Information.
-----------------
6.2.1 Claimant is responsible for providing sufficient information to
substantiate Customer's rights to remedies under this Exhibit C. Boeing may
reject a claim for lack of sufficient information. At a minimum, such
information must include:
(i) identity of claimant;
(ii) serial or block number of the aircraft on which the defective Boeing
Product was delivered;
(iii) part number and nomenclature of the defective Boeing Product;
(iv) purchase order number and date of delivery of the defective spare part
(v) description and substantiation of the defect;
(vi) date the defect was discovered;
(vii) date the Correction was completed;
(viii) the total flight hours or cycles accrued;
(ix) an itemized account of direct labor hours expended in performing the
Correction; and (x) an itemized account of any direct materials incorporated in
the Correction.
6.2.2 Additional information may be required based on the nature of the
defect and the remedies requested.
6.3 Boeing Claim Processing.
-----------------------
6.3.1 Any claim for a Boeing Product returned by Customer or
its Authorized Agent to Boeing for Correction must accompany the Boeing Product.
Any claim not associated with the return of a Boeing Product must be signed and
submitted in writing directly by Customer or its Authorized Agent to Boeing
Warranty.
6.3.2 Boeing will promptly review the claim and will give
notification of claim approval or rejection. If the claim is rejected, Boeing
will provide a written explanation.
7. Corrections Performed by Customer or Its Authorized Agent.
---------------------------------------------------------
7.1 Facilities Requirements. Provided Customer, its Authorized Agent or
its third party contractor, as appropriate, are certified by the appropriate
Civil Aviation Authority or Federal Aviation Authority, Customer or its
Authorized Agent may, at its option, Correct defective Boeing Products at its
facilities, or may subcontract Corrections to a third party contractor.
7.2 Technical Requirements. All Corrections done by Customer, its
Authorized Agent or a third party contractor must be performed in accordance
with Boeing's applicable service manuals, bulletins or other written
instructions, using parts and materials furnished or approved by Boeing.
7.3 Reimbursement.
-------------
7.3.1 Boeing will reimburse Customer's reasonable costs of
Direct Materials and Direct Labor (excluding time expended for overhaul) at
Customer's Warranty Labor Rate to Correct a defective Boeing Product. Claims for
reimbursement must contain sufficient information to substantiate Direct Labor
hours expended and Direct Materials consumed. Customer or its Authorized Agent
may be required to produce invoices for materials.
7.3.2 Reimbursement for Direct Labor hours to perform
Corrections stated in a service bulletin will be based on the labor estimates in
the service bulletin.
7.3.3 Boeing will reimburse Customer's freight charges
associated with a Correction of a defect on a Boeing Product performed by its
Authorized Agent or a third party contractor.
7.4 Disposition of Defective Boeing Products Beyond Economical Repair.
7.4.1 A defective Boeing Product found to be beyond economical
repair (see Para. 4.5 Maximum Reimbursement) will be retained for a period of 60
days from the date Boeing receives Customer's claim. During the 60 day period,
Boeing may request return of such Boeing Products for inspection and
confirmation of a defect.
7.4.2 After the 60 day period, a defective Boeing Product with
a value of U.S. $2000 or less may be scrapped without notification to Boeing. If
such Boeing Product has a value greater than U.S. $2000, Customer must obtain
confirmation of unrepairability by Boeing's on-site Customer Services
Representative prior to scrapping. Confirmation may be in the form of the
Representative's signature on Customer's claim or through direct communication
between the Representative and Boeing Warranty.
8. Corrections Performed by Boeing.
-------------------------------
8.1 Freight Charges. Customer or its Authorized Agent will pay shipping
charges to return a Boeing Product to Boeing. Boeing will reimburse Customer or
its Authorized Agent for the charge for any item determined to be defective
under this Aircraft General Terms Agreement. Boeing will pay shipping charges to
return the Corrected Boeing Product.
8.2 Customer Instructions. The documentation shipped with the returned
defective Boeing Product may include specific technical instructions for
additional work to be performed on the Boeing Product. The absence of such
instructions will evidence Customer's authorization for Boeing to perform all
necessary Corrections and work required to return the Boeing Product to a
serviceable condition.
8.3 Correction Time Objectives.
--------------------------
8.3.1 Boeing's objective for making Corrections is 10 working
days for avionics and electronic Boeing Products, 30 working days for
Corrections of other Boeing Products performed at Boeing's facilities, and 40
working days for Corrections of other Boeing Products performed at a Boeing
subcontractor's facilities. The objectives are measured from the date Boeing
receives the defective Boeing Product and a valid claim to the date Boeing ships
the Correction.
8.3.2 If Customer has a critical parts shortage because Boeing
has exceeded a Correction time objective and Customer has procured spare Boeing
Products for the defective Boeing Product in quantities shown in Boeing's
Recommended Spare Parts List (RSPL) or Spares Planning and Requirements
Evaluation Model (M-SPARE), then Boeing will either expedite the Correction or
provide an interchangeable Boeing Product on a no charge loan or lease basis
until the Corrected Boeing Product is returned.
8.4 Title Transfer and Risk of Loss.
-------------------------------
8.4.1 Title to and risk of loss of any Boeing Product returned to Boeing
will at all times remain with Customer or any other title holder of such Boeing
Product. While Boeing has possession of the returned Boeing Product, Boeing will
have only such liabilities as a bailee for mutual benefit would have, but will
not be liable for loss of use.
8.4.2 If a Correction requires shipment of a new Boeing Product, then at
the time Boeing ships the new Boeing Product, title to and risk of loss for the
returned Boeing Product will pass to Boeing, and title to and risk of loss for
the new Boeing Product will pass to Customer.
9. Returning an Aircraft.
---------------------
9.1 Conditions. An aircraft may be returned to Boeing's facilities for
Correction only if:
(i) Boeing and Customer agree a covered defect exists;
(ii) Customer lacks access to adequate facilities, equipment or qualified
personnel to perform the Correction; and
(iii) it is not practical, in Boeing's estimation, to dispatch Boeing
personnel to perform the Correction at a remote site.
9.2 Correction Costs. Boeing will perform the Correction at no charge to
Customer. Subject to the conditions of Article 9.1, 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.
9.3 Separate Agreement. Boeing and Customer will enter into a separate
agreement covering return of the aircraft and performance of the Correction.
Authorization by Customer for Boeing to perform additional work that is not part
of the Correction must be received within 24 hours of Boeing's request. If such
authorization is not received within 24 hours, Customer will be invoiced for
work performed by Boeing that is not part of the Correction.
10. Insurance.
---------
The provisions of Article 8.2 "Insurance", of this AGTA, will apply to
any work performed by Boeing in accordance with Customer's specific technical
instructions, to the extent any legal liability of Boeing is based upon the
content of such instructions.
11. Disclaimer and Release; Exclusion of Liabilities.
------------------------------------------------
11.1 DISCLAIMER AND RELEASE. THE WARRANTIES, OBLIGATIONS AND
LIABILITIES OF BOEING AND THE REMEDIES OF CUSTOMER IN THIS EXHIBIT C ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND CUSTOMER HEREBY WAIVES, RELEASES AND
RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF BOEING AND ALL
OTHER RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST BOEING, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR
DEFECT IN ANY AIRCRAFT, MATERIALS, TRAINING, SERVICES OR OTHER THING PROVIDED
UNDER THIS AGTA AND THE APPLICABLE PURCHASE AGREEMENT, INCLUDING, BUT NOT
LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR
NOT ARISING FROM THE NEGLIGENCE OF BOEING; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE
TO ANY AIRCRAFT.
11.2 EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. BOEING WILL HAVE NO
OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT,
WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING, OR OTHERWISE, FOR LOSS OF
USE, REVENUE OR PROFIT, OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES
WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT, MATERIALS,
TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THIS AGTA AND THE APPLICABLE
PURCHASE AGREEMENT.
11.3 Definitions. For the purpose of this Article, "BOEING" or "Boeing"
is defined as The Boeing Company, its divisions, subsidiaries, affiliates, the
assignees of each, and their respective directors, officers, employees and
agents.
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 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 for the replacement part
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 is discovered.
4.2 Customer must provide reasonable evidence that the claimed defect
or failure is covered by this Policy and if requested by Boeing, that such
defect or failure was not the result of (i) a defect or failure in a component
not covered by this Policy, (ii) an extrinsic force, (iii) an act or omission of
Customer, or (iv) operation or maintenance contrary to applicable governmental
regulations or Boeing's instructions.
4.3 If return of a defective or failed SLP Component is practicable and
requested by Boeing, Customer will return such SLP Component to Boeing at
Boeing's expense.
4.4 Customer's rights and remedies under this Policy are limited to the
receipt of a Correction at prices calculated pursuant to Article 3 above.
5. Disclaimer and Release; Exclusion of Liabilities.
------------------------------------------------
This Part 3 and the rights and remedies of Customer and the obligations
of Boeing are subject to the DISCLAIMER AND RELEASE and EXCLUSION OF
CONSEQUENTIAL AND OTHER DAMAGES provisions of Article 11 of Part 2 of this
Exhibit C.
PRODUCT ASSURANCE DOCUMENT
PART 4: SUPPLIER WARRANTY COMMITMENT
1. Supplier Warranties and Supplier Patent and Copyright Indemnities.
-----------------------------------------------------------------
Boeing will use diligent efforts to obtain warranties and indemnities
against patent and copyright infringement enforceable by Customer from Suppliers
of Supplier Products (except for BFE and engines) installed on the aircraft at
the time of delivery that were selected and purchased by Boeing, but not
manufactured to Boeing's detailed design. Boeing will furnish copies of the
warranties and patent and copyright indemnities to Customer contained in
Supplier Product Support and Product Assurance Agreements, prior to the
scheduled delivery month of the first aircraft under the initial purchase
agreement to the AGTA.
2. Boeing Assistance in Administration of Supplier Warranties.
----------------------------------------------------------
Customer will be responsible for submitting warranty claims directly to
Suppliers; however, if Customer experiences problems enforcing any Supplier
warranty obtained by Boeing for Customer, Boeing will conduct an investigation
of the problem and assist Customer in the resolution of those claims.
3. Boeing Support in Event of Supplier Default.
-------------------------------------------
3.1 If the Supplier defaults in the performance of a material
obligation under its warranty, and Customer provides evidence to Boeing that a
default has occurred, then Boeing will furnish the equivalent warranty terms as
provided by the defaulting Supplier.
3.2 At Boeing's request, Customer will assign to Boeing, and Boeing
will be subrogated to, its rights against the Supplier provided by the Supplier
warranty.
PRODUCT ASSURANCE DOCUMENT
PART 5: BOEING INTERFACE COMMITMENT
1. Interface Problems.
------------------
An Interface Problem is defined as a technical problem in the operation
of an aircraft or its systems experienced by Customer, the cause of which is not
readily identifiable by Customer but which Customer believes to be attributable
to either the design characteristics of the aircraft or its systems or the
workmanship used in the installation of Supplier Products. In the event Customer
experiences an Interface Problem, Boeing will, without additional charge to
Customer, promptly conduct an investigation and analysis to determine the cause
or causes of the Interface Problem. Boeing will promptly advise Customer at the
conclusion of its investigation of Boeing's opinion as to the causes of the
Interface Problem and Boeing's recommendation as to corrective action.
2. Boeing Responsibility.
---------------------
If Boeing determines that the Interface Problem is primarily
attributable to the design or installation of any Boeing Product, Boeing will
Correct the design or workmanship to the extent of any then-existing obligations
of Boeing under the provisions of the applicable Boeing Warranty or Boeing
Service Life Policy.
3. Supplier Responsibility.
-----------------------
If Boeing determines that the Interface Problem is primarily
attributable to the design or installation of a Supplier Product, Boeing will
assist Customer in processing a warranty claim against the Supplier.
4. Joint Responsibility.
--------------------
If Boeing determines that the Interface Problem is partially
attributable to the design or installation of a Boeing Product and partially to
the design or installation of a Supplier Product, Boeing will seek a solution to
the Interface Problem through the cooperative efforts of Boeing and the Supplier
and will promptly advise Customer of the resulting corrective actions and
recommendations.
5. General.
-------
Customer will, if requested by Boeing, assign to Boeing any of its
rights against any supplier as Boeing may require to fulfill its obligations
hereunder.
6. Disclaimer and Release; Exclusion of Liabilities.
------------------------------------------------
This Part 5 and the rights and remedies of Customer and the obligations
of Boeing herein are subject to the DISCLAIMER AND RELEASE and EXCLUSION OF
CONSEQUENTIAL AND OTHER DAMAGES provisions of Article 11 of Part 2 of this
Exhibit C.
PRODUCT ASSURANCE DOCUMENT
PART 6: BOEING INDEMNITIES AGAINST PATENT
AND COPYRIGHT INFRINGEMENT
1. Indemnity Against Patent Infringement.
-------------------------------------
Boeing will defend and indemnify Customer with respect to all claims,
suits and liabilities arising out of any actual or alleged patent infringement
through Customer's use, lease or resale of any aircraft or any Boeing Product
installed on an aircraft at delivery.
2. Indemnity Against Copyright Infringement.
----------------------------------------
Boeing will defend and indemnify Customer with respect to all claims,
suits and liabilities arising out of any actual or alleged copyright
infringement through Customer's use, lease or resale of any Boeing created
Materials and Aircraft Software installed on an aircraft at delivery.
3. Exceptions, Limitations and Conditions.
--------------------------------------
3.1 Boeing's obligation to indemnify Customer for patent infringement
will extend only to infringements in countries which, at the time of the
infringement, were party to and fully bound by either (a) Article 27 of the
Chicago Convention on International Civil Aviation of December 7, 1944, or (b)
the International Convention for the Protection of Industrial Property (Paris
Convention).
3.2 Boeing's obligation to indemnify Customer for copyright
infringement is limited to infringements in countries which, at the time of the
infringement, are members of The Berne Union and recognize computer software as
a "work" under The Berne Convention.
3.3 The indemnities provided under this Part 6 will not apply to any
(i) BFE, (ii) engines, (iii) Supplier Product (iv) Boeing Product used other
than for its intended purpose, or (v) Aircraft Software not created by Boeing.
3.4 Customer must deliver written notice to Boeing (i) within 10 days
after Customer first receives notice of any suit or other formal action against
Customer and (ii) within 20 days after Customer first receives any other
allegation or written claim of infringement covered by this Part 6.
3.5 At any time, Boeing will have the right at its option and expense
to: (i) negotiate with any party claiming infringement, (ii) assume or control
the defense of any infringement allegation, claim, suit or formal action, (iii)
intervene in any infringement suit or formal action , and/or (iv) attempt to
resolve any claim of infringement by replacing an allegedly infringing Boeing
Product or Aircraft Software with a noninfringing equivalent.
3.6 Customer will promptly furnish to Boeing all information, records
and assistance within Customer's possession or control which Boeing considers
relevant or material to any alleged infringement covered by this Part 6.
3.7 Except as required by a final judgment entered against Customer by
a court of competent jurisdiction from which no appeals can be or have been
filed, Customer will obtain Boeing's written approval prior to paying,
committing to pay, assuming any obligation or making any material concession
relative to any infringement covered by these indemnities.
3.8 Boeing will have no obligation or liability under this Part 6 for
loss of use, revenue or profit, or for any other incidental or consequential
damages. The obligations of Boeing and remedies of Customer in this Part 6 are
exclusive and in substitution for, and Customer hereby waives, releases and
renounces all other indemnities, obligations and liabilities of Boeing and all
other rights, claims and remedies of Customer against Boeing, express or
implied, arising by law or otherwise, with respect to any actual or alleged
patent, copyright OR OTHER INTELLECTUAL PROPERTY infringement or the like by any
aircraft, AIRCRAFT SOFTWARE, MATERIALS, TRAINING, SERVICES or other thing
provided under this AGTA and the applicaBLE PURCHASE AGREEMENT.
3.9 For the purposes of this Part 6, "BOEING or Boeing" is defined as
The Boeing Company, its divisions, subsidiaries, affiliates, the assignees of
each and their respective directors, officers, employees and agents.
SAMPLE
Insurance Certificate
================================================================================
BROKER'S LETTERHEAD
================================================================================
[ date ]
Certificate of Insurance
ISSUED TO: The Boeing Company
Post Office Box 3707
Mail Stop 13-57
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Manager - Aviation Insurance for
Vice President - Employee Benefits,
Insurance and Taxes
CC: Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
Mail Stop 21-34
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇.▇.▇.
Attn: Vice President - Contracts
NAMED INSURED: American Trans Air, 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).
(717-200) US$300,000,000
(737-500/600) US$350,000,000
(737-300/700) US$400,000,000
(737-400) US$450,000,000
(737-800) US$500,000,000
(757-200) US$525,000,000
(757-300) US$550,000,000
(767-200) US$550,000,000
(767-300) US$700,000,000
(767-400ERX) US$750,000,000
(777-200X) US$750,000,000
(MD-11) US$800,000,000
(777-200/300) US$800,000,000
(777-300X) US$900,000,000
(747-400) US$900,000,000
(In regard to all other models and/or derivatives, to be specified by Boeing).
(In regard to Personal Injury coverage, limits are US$25,000,000 any one
offense/aggregate.)
DEDUCTIBLES / SELF-INSURANCE
Any deductible and/or self-insurance amount (other than standard market
deductibles) are to be disclosed and agreed by Boeing.
SPECIAL PROVISIONS APPLICABLE TO BOEING:
It is certified that Insurers are aware of the terms and conditions of AGTA-AAT
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-AAT 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-AAT 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.
(signature)
---------
(typed name)
(title)
SAMPLE
Purchase Agreement Assignment
THIS PURCHASE AGREEMENT ASSIGNMENT (Assignment) dated as of ________
20__ between American Trans Air, Inc., a company organized under the laws of
________________ (Assignor) and ________________________, a company organized
under the laws of ________________ (Assignee). Capitalized terms used herein
without definition will have the same meaning as in the Boeing Purchase
Agreement.
Assignor and The Boeing Company, a Delaware corporation (Boeing), are
parties to the Boeing Purchase Agreement, providing, among other things, for the
sale by Boeing to Assignor of certain aircraft, engines and related equipment,
including the Aircraft.
Assignee wishes to acquire the Aircraft and certain rights and
interests under the Boeing Purchase Agreement and Assignor, on the following
terms and conditions, is willing to assign to Assignee certain of Assignor's
rights and interests under the Boeing Purchase Agreement. Assignee is willing to
accept such assignment.
It is agreed as follows:
1. For all purposes of this Assignment, the following terms will have the
following meanings:
Aircraft -- one Boeing Model ______ aircraft, bearing manufacturer's
serial number _______, together with all engines and parts installed on such
aircraft on the Delivery Date.
Boeing -- Boeing shall include Boeing Sales Corporation (a wholly-owned
subsidiary of Boeing), a Guam corporation, and its successors and assigns.
Boeing Purchase Agreement -- Purchase Agreement No. ________ dated as
of ____________ between Boeing and Assignor, as amended, but excluding
______________, providing, among other things, for the sale by Boeing to
Assignor of the Aircraft, as said agreement may be further amended to the extent
permitted by its terms. The Purchase Agreement incorporated by reference
Aircraft General Terms Agreement AGTA/____ (AGTA).
Delivery Date -- the date on which the Aircraft is delivered by Boeing
to Assignee pursuant to and subject to the terms and conditions of the Boeing
Purchase Agreement and this Assignment.
2. Assignor does hereby assign to Assignee all of its rights and
interests in and to the Boeing Purchase Agreement, as and to the extent that the
same relate to the Aircraft and the purchase and operation thereof, except as
and to the extent expressly reserved below, including, without limitation, in
such assignment:
[TO BE COMPLETED BY THE PARTIES.]
{EXAMPLES
(a) the right upon valid tender to purchase the Aircraft pursuant to the
Boeing Purchase Agreement subject to the terms and conditions thereof and the
right to take title to the Aircraft and to be named the "Buyer" in the ▇▇▇▇ of
sale for the Aircraft;
(b) the right to accept delivery of the Aircraft;
(c) all claims for damages arising as a result of any default under the
Boeing Purchase Agreement in respect of the Aircraft;
(d) all warranty and indemnity provisions contained in the Boeing Purchase
Agreement, and all claims arising thereunder, in respect of the Aircraft; and
(e) any and all rights of Assignor to compel performance of the terms of
the Boeing Purchase Agreement in respect of the Aircraft.}
Reserving exclusively to Assignor, however:
{EXAMPLES
(i) all Assignor's rights and interests in and to the Boeing Purchase
Agreement as and to the extent the same relates to aircraft other than the
Aircraft, or to any other matters not directly pertaining to the Aircraft;
(ii) all Assignor's rights and interests in or arising out of any advance
or other payments or deposits made by Assignor in respect of the Aircraft under
the Boeing Purchase Agreement and any amounts credited or to be credited or paid
or to be paid by Boeing in respect of the Aircraft;
(iii) the right to obtain services, training, information and demonstration
and test flights pursuant to the Boeing Purchase Agreement; and
(iv) the right to maintain plant representatives at Boeing's plant pursuant
to the Boeing Purchase Agreement.}
Assignee hereby accepts such assignment.
3. Notwithstanding the foregoing, so long as no event of default or
termination under [specify document] has occurred and is continuing, Assignee
hereby authorizes Assignor, to the exclusion of Assignee, to exercise in
Assignor's name all rights and powers of Customer under the Boeing Purchase
Agreement in respect of the Aircraft.
4. For all purposes of this Assignment, Boeing will not be deemed to
have knowledge of or need recognize the occurrence, continuance or the
discontinuance of any event of default or termination under [specify document]
unless and until Boeing receives from Assignee written notice thereof, addressed
to its Vice President - Contracts, Boeing Commercial Airplane Group at ▇.▇. ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, if by mail, or to 32-9430 Answerback BOEINGREN
RNTN, if by telex. Until such notice has been given, Boeing will be entitled to
deal solely and exclusively with Assignor. Thereafter, until Assignee has
provided Boeing written notice that any such events no longer continue, Boeing
will be entitled to deal solely and exclusively with Assignee. Boeing may act
with acquittance and conclusively rely on any such notice.
5. It is expressly agreed that, anything herein contained to the
contrary notwithstanding: (a) prior to the Delivery Date Assignor will perform
its obligations with respect to the Aircraft to be performed by it on or before
such delivery, (b) Assignor will at all times remain liable to Boeing under the
Boeing Purchase Agreement to perform all obligations of Customer thereunder to
the same extent as if this Assignment had not been executed, and (c) the
exercise by Assignee of any of the assigned rights will not release Assignor
from any of its obligations to Boeing under the Boeing Purchase Agreement,
except to the extent that such exercise constitutes performance of such
obligations.
6. Notwithstanding anything contained in this Assignment to the
contrary (but without in any way releasing Assignor from any of its obligations
under the Boeing Purchase Agreement), Assignee confirms for the benefit of
Boeing that, insofar as the provisions of the Boeing Purchase Agreement relate
to the Aircraft, in exercising any rights under the Boeing Purchase Agreement,
or in making any claim with respect to the Aircraft or other things (including,
without limitation, Material, training and services) delivered or to be
delivered pursuant to the Boeing Purchase Agreement, the terms and conditions of
the Boeing Purchase Agreement, including, without limitation, the DISCLAIMER AND
RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in Article 11 of Part 2
of Exhibit C to the Aircraft General Terms Agreement which was incorporated by
reference into the Boeing Purchase Agreement and the insurance provisions in
Article 8.2 of the Aircraft General Terms Agreement which was incorporated by
reference into the Boeing Purchase Agreement therein, will apply to and be
binding on Assignee to the same extent as if Assignee had been the original
"Customer" thereunder. Assignee further agrees, expressly for the benefit of
Boeing, upon the written request of Boeing, Assignee will promptly execute and
deliver such further assurances and documents and take such further action as
Boeing may reasonably request in order to obtain the full benefits of Assignee's
agreements in this paragraph.
7. Nothing contained herein will subject Boeing to any liability to
which it would not otherwise be subject under the Boeing Purchase Agreement or
modify in any respect the contract rights of Boeing thereunder, or require
Boeing to divest itself of title to or possession of the Aircraft or other
things until delivery thereof and payment therefor as provided therein.
8. Notwithstanding anything in this Assignment to the contrary, after
receipt of notice of any event of default or termination under [specify
document], Boeing will continue to owe to Assignor moneys in payment of claims
made or obligations arising before such notice, which moneys may be subject to
rights of set-off available to Boeing under applicable law. Similarly, after
receipt of notice that such event of default or termination no longer continues,
Boeing will continue to owe to Assignee moneys in payment of claims made or
obligations arising before such notice, which moneys may be subject to rights of
set-off available to Boeing under applicable law.
9. Effective at any time after an event of default has occurred, and
for so long as such event of default is continuing, Assignor does hereby
constitute Assignee, Assignor's true and lawful attorney, irrevocably, with full
power (in the name of Assignor or otherwise) to ask, require, demand, receive,
and give acquittance for any and all moneys and claims for moneys due and to
become due under or arising out of the Boeing Purchase Agreement in respect of
the Aircraft, to the extent assigned by this Assignment.
10. Assignee agrees, expressly for the benefit of Boeing and Assignor
that it will not disclose, directly or indirectly, any terms of the Boeing
Purchase Agreement; provided, that Assignee may disclose any such information
(a) to its special counsel and public accountants, (b) as required by applicable
law to be disclosed or to the extent that Assignee may have received a subpoena
or other written demand under color of legal right for such information, but it
will first, as soon as practicable upon receipt of such requirement or demand,
furnish an explanation of the basis thereof to Boeing, and will afford Boeing
reasonable opportunity, to obtain a protective order or other reasonably
satisfactory assurance of confidential treatment for the information required to
be disclosed, and (c) to any bona fide potential purchaser or lessee of the
Aircraft. Any disclosure pursuant to (a) and (c) above will be subject to
execution of a confidentiality agreement substantially similar to this paragraph
10.
11. This Assignment may be executed by the parties in separate
counterparts, each of which when so executed and delivered will be an original,
but all such counterparts will together constitute but one and the same
instrument.
12. This Assignment will be governed by, and construed in accordance with,
the laws of [----------------------].
-------------------------- --------------------------
as Assignor as Assignee
By _______________________ By _______________________
Name: Name:
Title: Title:
[If the Assignment is further assigned by Assignee in connection with a
financing, the following language needs to be included.]
Attest:
The undersigned, as [Indenture Trustee/Agent for the benefit of the Loan
Participants/Mortgagee] and as assignee of, and holder of a security interest
in, the estate, right, and interest of the Assignee in and to the foregoing
Purchase Agreement Assignment and the Purchase Agreement pursuant to the terms
of a certain [Trust Indenture/Mortgage] dated as of _____________, agrees to the
terms of the foregoing Purchase Agreement Assignment and agrees that its rights
and remedies under such [Trust Indenture/Mortgage] shall be subject to the terms
and conditions of the foregoing Purchase Agreement Assignment, including,
without limitation, paragraph 6.
[Name of Entity],
--------------
as Indenture Trustee/Agent
By:____________________________
Name:
Title:
6
CONSENT AND AGREEMENT OF
THE BOEING COMPANY
THE BOEING COMPANY, a Delaware corporation (Boeing), hereby
acknowledges notice of and consents to the foregoing Purchase Agreement
Assignment (Assignment). Boeing confirms to Assignee that: all representations,
warranties, indemnities and agreements of Boeing under the Boeing Purchase
Agreement with respect to the Aircraft will, subject to the terms and conditions
thereof and of the Assignment, inure to the benefit of Assignee to the same
extent as if Assignee were originally named "Customer" therein.
This Consent and Agreement will be governed by, and construed in
accordance with, the law of the State of Washington, excluding the conflict of
laws principles thereof.
Dated as of ____________________, 20___.
THE BOEING COMPANY
By ________________________
Name:
Title: Attorney-in-Fact
Aircraft Manufacturer's Serial Number(s) ____________
SAMPLE
Post-Delivery Sale Notice
Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President - Contracts
Mail Stop 21-34
Ladies and Gentlemen:
In connection with the sale by American Trans Air, Inc. (Seller) to
________________ (Purchaser) of the aircraft identified below, reference is made
to Purchase Agreement No. _____ dated as of ___________, 20__, 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-AAT
(AGTA).
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
Seller has sold the Aircraft, including in that sale the transfer to Purchaser
of all remaining rights related to the Aircraft under the Purchase Agreement. To
accomplish this transfer of rights, as authorized by the provisions of the
Purchase Agreement:
(1) Purchaser acknowledges it has reviewed the Purchase Agreement and agrees to
be bound by and comply with all applicable terms and conditions of the Purchase
Agreement, including, without limitation, the DISCLAIMER AND RELEASE and
EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in Article 11 of Part 2 of Exhibit
C to the AGTA and the insurance provisions in Article 8.2 of the AGTA. Purchaser
further agrees upon the written request of Boeing, to promptly execute and
deliver such further assurances and documents and take such further action as
Boeing may reasonably request in order to obtain the full benefits of
Purchaser's agreements in this paragraph; and
(2) Seller will remain responsible for any payments due Boeing as a result of
obligations relating to the Aircraft incurred by Seller to Boeing prior to the
effective date of this letter.
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,
American Trans Air, Inc. Purchaser
By By
-----------------------------------
Its Its
-----------------------------------
Dated Dated
-------------------------------
Receipt of the above letter is acknowledged and transfer of rights under the
Purchase Agreement with respect to the Aircraft is confirmed, effective as of
this date.
THE BOEING COMPANY
By
-----------------------------------
Its Attorney-in-Fact
-----------------------------------
Dated
-------------------------------
Aircraft Manufacturer's Serial Number ____________
SAMPLE
Post-Delivery Lease Notice
Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President - Contracts
Mail Stop 21-34
Ladies and Gentlemen:
In connection with the lease by American Trans Air, Inc. (Lessor) to ___________
(Lessee) of the aircraft identified below, reference is made to Purchase
Agreement No. ____ dated as of ________, 20__, 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-AAT
(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 21-34, Boeing Commercial Airplane Group, ▇.▇.
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. Until Boeing receives such notice,
Boeing is entitled to deal exclusively with Lessee with respect to the Aircraft
under the Purchase Agreement. With respect to the rights and obligations of
Lessor under the Purchase Agreement, all actions taken or agreements entered
into by Lessee during the period prior to Boeing's receipt of this notice are
final and binding on Lessor. Further, any payments made by Boeing as a result of
claims made by Lessee will be made to the credit of Lessee.
(2) Lessee accepts the authorization above, acknowledges it has reviewed the
Purchase Agreement and agrees to be bound by and comply with all applicable
terms and conditions of the Purchase Agreement including, without limitation,
the DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES in
Article 11 of Part 2 of Exhibit C AGTA and the insurance provisions in Article
8.2 of the AGTA. Lessee further agrees, upon the written request of Boeing, to
promptly execute and deliver such further assurances and documents and take such
further action as Boeing may reasonably request in order to obtain the full
benefits of Lessee's agreements in this paragraph.
(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,
American Trans Air, Inc. 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 ____________
SAMPLE
Purchaser's/Lessee's Agreement
Boeing Commercial Airplane Group
P. O. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention Vice President - Contracts
Mail Stop 21-34
Ladies and Gentlemen:
In connection with the sale/lease by American Trans Air, Inc. (Seller/Lessor) to
_______________________ (Purchaser/Lessee) of the aircraft identified below,
reference is made to the following documents:
(i) Purchase Agreement No. _____ dated as of ___________, 20__, between The
Boeing Company (Boeing) and Seller/Lessor (the Purchase Agreement) under which
Seller/Lessor purchased certain Boeing Model ________ aircraft, including the
aircraft bearing Manufacturer's Serial No.(s) ______________________ (the
Aircraft); and
(ii) Aircraft Sale/Lease Agreement dated as of ___________, 20__, between
Seller/Lessor and Purchaser/Lessee (the Aircraft Agreement) under which
Seller/Lessor is selling/leasing the Aircraft.
Capitalized terms used herein without definition will have the same meaning as
in the Aircraft Agreement.
1. Seller/Lessor has sold/leased the Aircraft under the Aircraft Agreement,
including therein a form of exculpatory clause protecting Seller/Lessor from
liability for loss of or damage to the aircraft, and/or related incidental or
consequential damages, including without limitation loss of use, revenue or
profit.
2. Disclaimer and Release; Exclusion of Liabilities
2.1 In accordance with Seller/Lessor's obligation under Article 9.5 of
AGTA-AAT which was incorporated by reference into the Purchase Agreement,
Purchaser/Lessee hereby agrees that:
2.2 DISCLAIMER AND RELEASE. IN CONSIDERATION OF THE SALE/LEASE OF THE
AIRCRAFT, PURCHASER/LESSEE HEREBY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES,
OBLIGATIONS AND LIABILITIES OF BOEING AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES
OF PURCHASER/LESSEE AGAINST BOEING, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT, BOEING
PRODUCT, MATERIALS, TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THE
AIRCRAFT AGREEMENT, INCLUDING, BUT NOT LIMITED TO:
(A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
(C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR
NOT ARISING FROM THE NEGLIGENCE OF BOEING; AND
(D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE
TO ANY AIRCRAFT.
2.3 EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES. BOEING WILL HAVE NO
OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT,
WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOEING, OR OTHERWISE, FOR LOSS OF
USE, REVENUE OR PROFIT, OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES
WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT IN ANY AIRCRAFT, MATERIALS,
TRAINING, SERVICES OR OTHER THING PROVIDED UNDER THE AIRCRAFT AGREEMENT.
2.4 Definitions. For the purpose of this paragraph ▇, "▇▇▇▇▇▇" ▇▇
"▇▇▇▇▇▇" is defined as The Boeing Company, its divisions, subsidiaries,
affiliates, the assignees of each, and their respective directors, officers,
employees and agents.
American Trans Air, Inc. (Seller/Lessor) Purchaser/Lessee
By By
-----------------------------------
Its Its
-----------------------------------
Dated Dated
-------------------------------
SAMPLE
Owner Appointment of Agent - Warranties
Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President - Contracts
Mail Stop 21-34
Ladies and Gentlemen:
1. Reference is made to Purchase Agreement No. ____ dated as of __________,
20__, between The Boeing Company (Boeing) and American Trans Air, 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-AAT (AGTA).
Capitalized terms used herein without definition will have the same meaning as
in the Purchase Agreement.
To accomplish the appointment of an agent, Customer confirms:
A. Customer has appointed ____________________ as agent (Agent) to act
directly with Boeing with respect to the remaining warranties under the Purchase
Agreement and requests Boeing to treat Agent as Customer for the administration
of claims with respect to such warranties; provided however, Customer remains
liable to Boeing to perform the obligations of Customer under the Purchase
Agreement.
B. Boeing may continue to deal exclusively with Agent concerning the
matters described herein unless and until Boeing receives written notice from
Customer to the contrary, addressed to Vice President - Contracts, Mail Stop
21-34, Boeing Commercial Airplane Group, ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, ▇.▇.▇. With respect to the rights and obligations of Customer under
the Purchase Agreement, all actions taken by Agent or agreements entered into by
Agent during the period prior to Boeing's receipt of such notice are final and
binding on Customer. Further, any payments made by Boeing as a result of claims
made by Agent will be made to the credit of Agent unless otherwise specified
when each claim is submitted.
C. Customer will remain responsible for any payments due Boeing as a result
of obligations relating to the Aircraft incurred by Customer to Boeing prior to
the effective date of this Notice.
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,
American Trans Air, 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 11 of Part 2 of Exhibit C to the AGTA. Agent further agrees, upon the
written request of Boeing, to promptly execute and deliver such further
assurances and documents and take such further action as Boeing may reasonably
request in order to obtain the full benefits of the warranties under the
Purchase Agreement.
Very truly yours,
Agent
By
-------------------------------
Its
-------------------------------
Dated
---------------------------
Receipt of the above letter is acknowledged and the appointment of Agent with
respect to the above-described rights under the Purchase Agreement is confirmed,
effective as of this date.
THE BOEING COMPANY
By
-------------------------------
Its
-------------------------------
Dated
---------------------------
Aircraft Manufacturer's Serial Number __________
SAMPLE
Contractor Confidentiality Agreement
Boeing Commercial Airplane Group
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Vice President - Contracts
Mail Stop 21-34
Ladies and Gentlemen:
This Agreement is entered into between ____________________ (Contractor) and
American Trans Air, 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 _______ , 20___ 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.
Individual copies of all Materials are provided to Contractor subject to
copyrights therein, and all such copyrights are retained by Boeing or, in some
cases, by Third Parties. Contractor is authorized to make copies of Materials
(except for Materials bearing the copyright legend of a Third Party) provided,
however, Contractor preserves the restrictive legends and proprietary notices on
all copies. All copies of Proprietary Materials will belong to Boeing and be
treated as Proprietary Materials under this Agreement.
3. Contractor specifically agrees not to use Proprietary Materials or
Proprietary Information in connection with the manufacture or sale of any part
or design. Unless otherwise agreed with Boeing in writing, Proprietary Materials
and Proprietary Information may be used by Contractor only for work on the
Aircraft for which such Proprietary Materials have been specified by Boeing.
Customer and Contractor recognize and agree that they are responsible for
ascertaining and ensuring that all Materials are appropriate for the use to
which they are put.
4. Contractor will not attempt to gain access to information by reverse
engineering, decompiling, or disassembling any portion of any software provided
to Contractor pursuant to this Agreement.
5. Upon Boeing's request at any time, Contractor will promptly return to Boeing
(or, at Boeing's option, destroy) all Proprietary Materials, together with all
copies thereof and will certify to Boeing that all such Proprietary Materials
and copies have been so returned or destroyed.
6. To the extent required by a government regulatory agency having jurisdiction
over Contractor, Customer or the Aircraft, Contractor is authorized to provide
Proprietary Materials and disclose Proprietary Information to the agency for the
agency's use in connection with Contractor's, authorized use of such Proprietary
Materials and/or Proprietary Information in connection with Contractor's
maintenance, repair, or modification of the Aircraft. Contractor agrees to take
reasonable steps to prevent such agency from making any distribution or
disclosure, or additional use of the Proprietary Materials and Proprietary
Information so provided or disclosed. Contractor further agrees to promptly
notify Boeing upon learning of any (i) distribution, disclosure, or additional
use by such agency, (ii) request to such agency for distribution, disclosure, or
additional use, or (iii) intention on the part of such agency to distribute,
disclose, or make additional use of the Proprietary Materials or Proprietary
Information.
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: _____________________, 20___
American Trans Air, Inc. Contractor
By By
-----------------------------------
Its Its
-----------------------------------
PURCHASE AGREEMENT NUMBER 2262
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Relating to Boeing Model 737-83N Aircraft
TABLE OF CONTENTS
SA
ARTICLES NUMBER
1. Quantity, Model and Description
2. Delivery Schedule
3. Price
4. Payment
5. Miscellaneous
TABLE
1. Aircraft Information Table
EXHIBIT
A. Aircraft Configuration
B. Aircraft Delivery Requirements and Responsibilities
SUPPLEMENTAL EXHIBITS
AE1. Escalation Adjustment/Airframe and Optional Features
BFE1. BFE Variables
CS1. Customer Support Variables
(Confidential Material Omitted)
SLP1. Service Life Policy Components
SA
LETTER AGREEMENTS NUMBER
2262-01 Demonstration Flight Waiver
2262-02 Spares Intial provisioning
(Confidential Material Omitted)
Purchase Agreement No. 2262
between
The Boeing Company
and
American Trans Air, Inc.
------------------------------
This Purchase Agreement No. 2262 dated as of between The Boeing Company
(Boeing) and American Trans Air, Inc. (Customer) relating to the purchase and
sale of Model 737-83N aircraft incorporates the terms and conditions of the
Aircraft General Terms Agreement dated as of between the parties, identified as
AGTA-AAT (AGTA).
Article 1. Quantity, Model and Description.
-------------------------------
The aircraft to be delivered to Customer will be designated as
Model 737-83N aircraft (the Aircraft). Boeing will manufacture and sell to
Customer Aircraft conforming to the configuration described in Exhibit A, which
is part of this Purchase Agreement, in the quantities listed in Table 1 to the
Purchase Agreement.
Article 2. Delivery Schedule.
-----------------
The scheduled months of delivery of the Aircraft are listed in
the attached Table 1, which is part of this Purchase Agreement. Exhibit B, which
is part of this Purchase Agreement, describes certain responsibilities for both
Customer and Boeing in order to accomplish the delivery of the Aircraft.
Article 3. Price.
-----
3.1 Aircraft Basic Price. The Aircraft Basic Price is listed in Table 1 in
subject to escalation dollars.
3.2 Advance Payment Base Prices. The Advance Payment Base
Prices listed in Table 1 were calculated utilizing the latest escalation factors
available to Boeing on the date of this Purchase Agreement projected to the
month of scheduled delivery.
Article 4. Payment.
-------
4.1 Boeing acknowledges receipt of a deposit in the amount shown in Table 1
for each Aircraft (Deposit).
4.2 The standard advance payment schedule for the Model 737-83N aircraft
requires Customer to make certain advance payments, expressed in a percentage of
the Advance Payment Base Price of each Aircraft beginning with a payment of 1%,
less the Deposit, on the effective date of the Purchase Agreement for the
Aircraft. Additional advance payments for each aircraft are due on the first
business day of the months listed in the attached Table 1.
4.3 For any Aircraft whose scheduled month of delivery is less than 24
months from the date of this Purchase Agreement, the total amount of advance
payments due for payment upon signing of this Purchase Agreement will include
all advance payments which are past due in accordance with the standard advance
payment schedule set forth in paragraph 4.2 above.
4.4 Customer will pay the balance of the Aircraft Price of each Aircraft at
delivery.
Article 5. Miscellaneous.
-------------
5.1 Aircraft Information Table. Table 1 consolidates information contained
in Articles 1, 2, 3 and 4 with respect to (i) quantity of Aircraft, (ii)
applicable Detail Specification, (iii) month and year of scheduled deliveries,
(iv) Aircraft Basic Price, (v) applicable escalation factors and (vi) Advance
Payment Base Prices and advance payments and their schedules.
5.2 Escalation Adjustment/Airframe and Optional Features. Supplemental
Exhibit AE1 contains the applicable airframe and optional features escalation
formula.
5.3 Buyer Furnished Equipment Variables. Supplemental Exhibit BFE1 contains
vendor selection dates, on dock dates and other variables applicable to the
Aircraft.
5.4 Customer Support Variables. Supplemental Exhibit CS1 contains the
variable information applicable to information, training services and other
things furnished by Boeing in support of the Aircraft.
5.5 Engine Escalation Variables. Supplemental Exhibit EE1 contains the
applicable engine escalation formula, the engine warranty and the engine patent
indemnity for the Aircraft.
5.6 Service Life Policy Component Variables. Supplemental Exhibit SLP1
lists the airframe and landing gear components covered by the Service Life
Policy for the Aircraft.
5.7 Negotiated Agreement; Entire Agreement. This Purchase Agreement,
including the provisions of Article 8.2 of the AGTA relating to insurance, and
Article 11 of Part 2 of Exhibit C of the AGTA relating to DISCLAIMER AND RELEASE
and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES, has been the subject of
discussion and negotiation and is understood by the parties; the Aircraft Price
and other agreements of the parties stated in this Purchase Agreement were
arrived at in consideration of such provisions. This Purchase Agreement,
including the AGTA, contains the entire agreement between the parties and
supersedes all previous proposals, understandings, commitments or
representations whatsoever, oral or written, and may be changed only in writing
signed by authorized representatives of the parties.
DATED AS OF June 30, 2000
--------------
American Trans Air, Inc. THE BOEING COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------- ---------------------
Its: Executive Vice President & CFO Its: Attorney-In-Fact
-------------------------------- ---------------------
Table 1 to Purchase Agreement No. 2262
Aircraft Delivery, Description, Price and Advance Payments
(Confidential Material Omitted)
AIRCRAFT CONFIGURATION
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Exhibit A to Purchase Agreement Number 2262
AIRCRAFT CONFIGURATION
Dated ___________________
relating to
BOEING MODEL 737-83N AIRCRAFT
The Detail Specification is Boeing Detail Specification D019A001-B
dated as of November 11, 1998. Such Detail Specification will be amended to
incorporate the Options listed herein, including the effects on Manufacturer's
Empty Weight (MEW) and Operating Empty Weight (OEW). As soon as practicable but
in no case later than delivery of the first Aircraft, Boeing will furnish to
Buyer copies of the Detail Specification, which copies will reflect such
Options. The Aircraft Basic Price reflects and includes all effects of such
Options, except such Aircraft Basic Price does not include the price effects of
any Buyer Furnished Equipment or Seller Purchased Equipment.
OPTION TITLE PRICE PER PRICE PER
AIRCRAFT AIRCRAFT
($1999 STE) ($1999 STE)
(Confidential Material Omitted)
AIRCRAFT DELIVERY REQUIREMENTS AND RESPONSIBILITIES
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Exhibit B to Purchase Agreement Number 2262
AIRCRAFT DELIVERY REQUIREMENTS AND RESPONSIBILITIES
relating to
BOEING MODEL 737-83N AIRCRAFT
Both Boeing and Customer have certain documentation and approval
responsibilities at various times during the construction cycle of Customer's
Aircraft that are critical to making the delivery of each Aircraft a positive
experience for both parties. This Exhibit B documents those responsibilities and
indicates recommended completion deadlines for the actions to be accomplished.
1. GOVERNMENT DOCUMENTATION REQUIREMENTS.
-------------------------------------
Certain actions are required to be taken by Customer in advance of the scheduled
delivery month of each Aircraft with respect to obtaining certain government
issued documentation.
1.1 Airworthiness and Registration Documents.
----------------------------------------
Not later than 6 months prior to delivery of each Aircraft, Customer will
notify Boeing of the registration number to be painted on the side of the
Aircraft. In addition, and not later than 3 months prior to delivery of each
Aircraft, Customer will, by letter to the regulatory authority having
jurisdiction, authorize the temporary use of such registration numbers by Boeing
during the pre-delivery testing of the Aircraft.
Customer is responsible for furnishing any Temporary or Permanent Registration
Certificates required by any governmental authority having jurisdiction to be
displayed aboard the Aircraft after delivery.
1.2 Certificate of Sanitary Construction.
1.2.1 U.S. Registered Aircraft. Boeing will obtain from the UnitedStates
Public Health Service, a United States Certificate of Sanitary Construction to
be displayed aboard each Aircraft after delivery to Customer.
1.2.2 Non-U.S. Registered Aircraft. If Customer requires a UnitedStates
Certificate of Sanitary Construction at the time of delivery of the Aircraft,
Customer will give written notice thereof to Boeing at least 3 months prior to
delivery. Boeing will then use its reasonable best efforts to obtain the
Certificate from the United States Public Health Service and present it to
Customer at the time of Aircraft delivery.
1.3 Customs Documentation.
1.3.1 Import Documentation. If the Aircraft is intended to be exported from
the United States, Customer must notify Boeing not later than 3 months prior to
delivery of each Aircraft of any documentation required by the customs
authorities or by any other agency of the country of import.
1.3.2 General Declaration - U.S. If the Aircraft is intended to be exported
from the United States, Boeing will prepare Customs Form 7507, General
Declaration, for execution by U.S. Customs immediately prior to the ferry flight
of the Aircraft. For this purpose, Customer will furnish to Boeing not later
than 20 days prior to delivery a complete crew and passenger list and a complete
ferry flight itinerary, including point of exit from the United States for the
Aircraft.
If Customer intends, during the ferry flight of an Aircraft, to land at a U.S.
airport after clearing Customs at delivery, Customer must notify Boeing not
later than 20 days prior to delivery of such intention. If Boeing receives such
notification, Boeing will provide to Customer the documents constituting a
Customs permit to proceed, allowing such Aircraft to depart after any such
landing. Sufficient copies of completed Form 7507, along with passenger
manifest, will be furnished Customer to cover U.S. stops scheduled for the ferry
flight.
1.3.3 Export Declaration - U.S. If the Aircraft is intended to beexported
from the United States, Boeing will prepare Form 7525V and, immediately prior to
the ferry flight, will submit such Form to U.S. Customs in Seattle in order to
obtain clearance for the departure of the Aircraft, including any cargo, from
the United States. U.S. Customs will deliver the Export Declaration to the U.S.
Department of Commerce after export.
2. Insurance CertificateS.
----------------------
Unless provided earlier, Customer will provide to Boeing not later than 30
days prior to delivery of the first Aircraft, a copy of the requisite annual
insurance certificate in accordance with the requirements of Article 8 of the
AGTA.
3 NOTICE OF FLYAWAY CONFIGURATION.
-------------------------------
Not later than 20 days prior to delivery of the Aircraft, Customer will
provide to Boeing a configuration letter stating the requested "flyaway
configuration" of the Aircraft for its ferry flight. This configuration letter
should include:
(i) the name of the company which is to furnish fuel for the ferry flight
and any scheduled post-delivery flight training, the method of payment for such
fuel, and fuel load for the ferry flight;
(ii) the cargo to be loaded and where it is to be stowed on board the
Aircraft, the address where cargo is to be shipped after flyaway and
notification of any hazardous materials requiring special handling;
(iii) any BFE equipment to be removed prior to flyaway and returned to
Boeing BFE stores for installation on Customer's subsequent Aircraft;
(iv) a complete list of names and citizenship of each crew member and
non-revenue passenger who will be aboard the ferry flight; and
(v) a complete ferry flight itinerary.
4. DELIVERY ACTIONS BY BOEING.
--------------------------
4.1 Schedule of Inspections. All FAA, Boeing, Customer and, if
required,Customs Bureau inspections will be scheduled by Boeing for completion
prior to delivery or departure of the Aircraft. Customer will be informed of
such schedules.
4.2 Schedule of Demonstration Flights. All FAA and Customer demonstration
flights will be scheduled by Boeing for completion prior to delivery of the
Aircraft.
4.3 Schedule for Customer's Flight Crew. Boeing will inform Customer of the
date that a flight crew is required for acceptance routines associated with
delivery of the Aircraft.
4.4 Fuel Provided by Boeing. Boeing will provide to Customer, without
charge, the amount of fuel shown in U.S. gallons in the table below for the
model of Aircraft being delivered and full capacity of engine oil at the time of
delivery or prior to the ferry flight of the Aircraft.
Aircraft Model Fuel Provided
-------------- -------------
737 1,000
747 4,000
757 1,600
767 2,000
777 3,000
4.5 Flight Crew and Passenger Consumables. Boeing will provide reasonable
quantities of food, coat hangers, towels, toilet tissue, drinking cups and soap
for the first segment of the ferry flight for the Aircraft.
4.6 Delivery Papers, Documents and Data. Boeing will have available at the
time of delivery of the Aircraft certain delivery papers, documents and data for
execution and delivery. If title for the Aircraft will be transferred to
Customer through a Boeing sales subsidiary and if the Aircraft will be
registered with the FAA, Boeing will pre-position in Oklahoma City, Oklahoma,
for filing with the FAA at the time of delivery of the Aircraft an executed
original Form 8050-2, Aircraft ▇▇▇▇ of Sale, indicating transfer of title to the
Aircraft from Boeing's sales subsidiary to Customer.
4.7 Delegation of Authority. If specifically requested in advance by
Customer, Boeing will present a certified copy of a Resolution of Boeing's Board
of Directors, designating and authorizing certain persons to act on its behalf
in connection with delivery of the Aircraft.
5. DELIVERY ACTIONS BY CUSTOMER.
----------------------------
5.1 Aircraft Radio Station License. At delivery Customer will provide its
Aircraft Radio Station License to be placed on board the Aircraft following
delivery.
5.2. Aircraft Flight Log. At delivery Customer will provide the Aircraft
Flight Log for the Aircraft.
5.3 Delegation of Authority. Customer will present to Boeing at delivery of
the Aircraft an original or certified copy of Customer's Delegation of Authority
designating and authorizing certain persons to act on its behalf in connection
with delivery of the specified Aircraft.
ESCALATION ADJUSTMENT
AIRFRAME AND OPTIONAL FEATURES
between
THE BOEING COMPANY
and
America Trans Air, inc.
Supplemental Exhibit AE1 to Purchase Agreement Number 2262
(For Model 717-200, 737-600, 737-700, 737-800 and
737-900 the Airframe Price Includes the Engine Price at
its basic thrust level.)
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 this 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+B)(L + M) - P
Where:
Pa = Airframe Price Adjustment. (For Model
717-200, 737-600, 737-700, 737-800 and
737-900, the Airframe Price includes the
Engine Price at its basic thrust level.)
L = .65 x ( ECI
-----
ECIb )where ECIb is the base
year index (as set forth in
Table 1 of this Purchase
Agreement)
M = .35 x ( ICI
-----
ICIb )where ICIb is the base year index
(as set forth in Table 1 of this
Purchase Agreement)
P = Airframe Price plus Optional Features Price
(as set forth in Table 1 of this Purchase Agreement).
B = 0.005 x (N/12) x (P) where N is the calendar month
and year of scheduled Aircraft
delivery minus the calendar
month and year of the Base
Price Year, both as shown in
Table 1 of this Purchase
Agreement.
ECI is a value determined using the U.S. Department of
Labor, Bureau of Labor Statistics "Employment Cost Index
for workers in aerospace manufacturing - Wages and
Salaries" (ECI code 3721W), calculated by establishing a
three-month arithmetic average value (expressed as a
decimal and rounded to the nearest tenth) using the values
for the fifth, sixth and seventh months prior to the month
of scheduled delivery of the applicable Aircraft. As the
Employment Cost Index values are only released on a
quarterly basis, the value released for the month of March
will be used for the months of January and February; the
value for June 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 is
provided by Boeing in Table 1 of this Purchase Agreement.
iv. The final value of Pa will be rounded to the nearest dollar.
vi. The Airframe Price Adjustment will not be made if it will result in a
decrease in the Aircraft Basic Price.
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
Aircraft Price of any affected Aircraft to reflect an allowance for increases or
decreases in labor compensation and material costs occurring since February of
the price base year shown in the Purchase Agreement which is consistent with the
applicable provisions of paragraph 1 of this Supplemental Exhibit AE1.
2.4 If within 12 months of Aircraft delivery, the published index
values are revised due to an acknowledged error by the Bureau of Labor
Statistics, the Airframe Price Adjustment will be re-calculated using the
revised index values (this does not include those values noted as preliminary by
the Bureau of Labor Statistics). A credit memorandum or supplemental invoice
will be issued for the Airframe Price Adjustment difference. Interest charges
will not apply for the period of original invoice to issuance of credit
memorandum or supplemental invoice.
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, subject always to paragraph 2.4 above.
ii. The maximum number of digits to the right of the decimal after
rounding 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.
BUYER FURNISHED EQUIPMENT VARIABLES
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Supplemental Exhibit BFE1 to Purchase Agreement Number 2262
BUYER FURNISHED EQUIPMENT VARIABLES
relating to
BOEING MODEL 737-83N AIRCRAFT
This Supplemental Exhibit BFE1 contains vendor selection dates, on-dock dates
and other variables applicable to the Aircraft.
1. Supplier Selection.
Customer will:
1.1 Select and notify Boeing of the suppliers and part numbers of the
following BFE items by the following dates:
Galley System Complete
Galley Inserts Complete
Seats (passenger) Complete
Overhead & Audio System Complete
Miscellaneous Emergency Equipment Complete
Cargo Handling Systems* August 8, 2000
* For a previously certified system.
2. On-dock Dates
On or before August 2000, 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. For planning purposes, a preliminary BFE on-dock schedule is set forth
below:
Preliminary On-Dock Dates
Aircraft Delivery
(Confidential Material Omitted)
Aircraft Delivery
(Confidential Material Omitted)
Aircraft Delivery
(Confidential Material Omitted)
Preliminary On-Dock Dates (Continued)
Aircraft Delivery
(Confidential Material Omitted)
CUSTOMER SUPPORT VARIABLES
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Supplemental Exhibit CS1 to Purchase Agreement Number 2262
CUSTOMER SUPPORT VARIABLES
relating to
BOEING MODEL 737-83N AIRCRAFT
Customer and Boeing will conduct planning conferences approximately 12 months
before delivery of the first Aircraft, or as otherwise agreed, to develop and
schedule a customized Customer Support Program to be furnished by Boeing in
support of the Aircraft.
The customized Customer Services Program will be based upon and equivalent to
the entitlements summarized below.
1. MAINTENANCE TRAINING.
--------------------
1.1 Airplane General Familiarization Course; 1 class of 24 students;
1.2 Mechanical/Power Plant Systems Course; 2 classes of 15 students;
1.3 Electrical Systems Course; 2 classes of 15 students;
1.4 Avionics Systems Course; 2 classes of 15 students;
1.5 Corrosion Prevention & Control Course; 1 class of 10 students;
1.6 Aircraft Rigging Course; 1 class of 6 students;
1.7 Composite Repair for Technicians - Basic; 1 class of 8 students;
1.8 Training materials will be provided to each student. In addition, one
set of training materials used in Boeing's training program, including visual
aids, Computer Based Training Courseware, instrument panel wall charts,
text/graphics, video programs, etc. will be provided for use in Customer's own
training program.
2. FLIGHT TRAINING.
---------------
2.1 Transition training for 8 flight crews (16 pilots) in 2 classes; The
training will consist of ground school (utilizing computer based training),
fixed base simulator, full flight simulator and actual aircraft training on
Customer's Aircraft.
2.2 Flight Dispatcher training; 2 classes of 6 students;
2.3 Flight Attendant training; 2 classes of 12 students;
2.4 Performance Engineer training in Boeing's regularly scheduled courses;
schedules are published twice yearly.
2.5 Training materials will be provided to each student. In addition, one
set of training materials as used in Boeing's training program, including visual
aids, Computer Based Training Courseware, instrument panel wall charts,
text/graphics, video programs, Flight Attendant Manuals, etc. will be provided
for use in Customer's own training program.
2.6 Additional Flight Operations Services:
a. Boeing flight crew personnel to assist in ferrying the first aircraft to
Customer's main base;
b. Instructor pilots for 90 calendar days for revenue service training
assistance;
c. An instructor pilot to visit Customer 6 months after revenue service
training to review Customer's flight crew operations for a 2 week period.
3. PLANNING ASSISTANCE.
-------------------
3.1 MAINTENANCE AND GROUND OPERATIONS.
---------------------------------
Upon request, Boeing will visit Customer's main base to
evaluate aircraft maintenance facilities, develop
recommendations and assist in maintenance planning.
3.2 SPARES.
------
a) RECOMMENDED SPARES PARTS LIST (RSPL)
------------------------------------
customized RSPL, data and documents will be provided
to identify spare parts required for Customer's
support program.
b) ILLUSTRATED PARTS CATALOG (IPC)
-------------------------------
A customized IPC in accordance with ATA 100 will be
provided.
c) PROVISIONING TRAINING
Provisioning training will be provided for Customer's
personnel at Boeing's facilities, where documentation
and technical expertise are available. Training is
focused on the initial provisioning process and
calculations reflected in the Boeing RSPL.
d) SPARES PROVISIONING CONFERENCE
A provisioning conference will be conducted, normally
at Boeing's facilities where technical data and
personnel are available.
4: TECHNICAL DATA AND DOCUMENTS
4.1. FLIGHT OPERATIONS.
-----------------
Airplane Flight Manual
Operations Manual
Quick Reference Handbook
Weight and Balance Manual
Dispatch Deviation Procedures Guide
Flight Crew Training Manual
Performance Engineer's Manual
Jet Transport Performance Methods
FMC Supplemental Data Document
Operational Performance Software
Fault Reporting Manual
ETOPS Guide Vol. III
Flight Planning and Performance Manual
4.2. MAINTENANCE.
-----------
Aircraft Maintenance Manual
Wiring Diagram Manual
Systems Schematics Manual
Connector Part Number Options Document
Structural Repair Manual
Overhaul/Component Maintenance Manual
Standard Overhaul Practices Manual
Standard Wiring Practices Manual
Non-Destructive Test Manual
Service Bulletins and Index
Corrosion Prevention Manual
Fault Isolation Manual
Fuel Measuring Stick Calibration Document Power Plant Buildup
Manual Central Maintenance Computer System Reporting Table In
Service Activity Report All Operator Letters Service Letters
Structural Item Interim Advisory Maintenance Tips Combined
Index
4.3. MAINTENANCE PLANNING. -------------------- Maintenance Planning Data
Document Maintenance Planning Data Tasks Masterfile Maintenance Task Cards and
Index Maintenance Inspection Intervals Report ETOPS Guide Vol. II Configuration
Maintenance and Procedures for Extended Range Operations
4.4. SPARES.
------
Illustrated Parts Catalog
Standards Books
4.5. FACILITIES AND EQUIPMENT PLANNING.
---------------------------------
Facilities and Equipment Planning Document
Special Tool and Ground Handling Equipment Drawings and Index
Supplementary Tooling Documentation
Illustrated Tool and Equipment List/Manual
Aircraft Recovery Document
Airplane Characteristics for Airport Planning Document
Airplane Rescue and Fire Fighting Document
Engine Handling Document
ETOPS Guide Vol. I
4.6. SUPPLIER TECHNICAL DATA.
-----------------------
Service Bulletins
Ground Support Equipment Data
Provisioning Information
Component Maintenance/Overhaul Manuals and Index
Publications Index
Product Support Supplier Directory
(Confidential Letter Omitted)
SERVICE LIFE POLICY COMPONENTS
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Supplemental Exhibit SLP1 to Purchase Agreement Number 2262
SERVICE LIFE POLICY COMPONENTS
relating to
BOEING MODEL 737 AIRCRAFT
This is the listing of SLP Components for the Aircraft which relate to Part 3,
Boeing Service Life Policy of Exhibit C, Product Assurance Document to the AGTA
and is a part of Purchase Agreement No. 2262.
1. Wing.
----
(a) Upper and lower skins and stiffeners between the forward and rear wing
spars.
(b) Wing spar webs, chords and stiffeners.
(c) Inspar wing ribs.
(d) Inspar splice plates and fittings.
(e) Main landing gear support structure.
(f) Wing center section floor beams, lower beams and spanwise beams, but
not the seat tracks attached to floor beams.
(g) Engine strut support fittings attached directly to wing primary
structure.
(h) Wing-to-body structural attachments.
(i) Support structure in the wing for spoilers and spoiler actuators; for
aileron hinges and reaction links; and for leading edge devices and trailing
edge flaps.
(j) Trailing edge flap tracks and carriages.
(k) Aileron leading edge device and trailing edge flap internal, fixed
attachment and actuator support structure.
2. Body.
----
(a) External surface skins and doublers, longitudinal stiffeners, longerons
and circumferential rings and frames between the forward pressure bulkhead and
the vertical stabilizer rear spar bulkhead and structural support and enclosure
for the APU but excluding all system components and related installation and
connecting devices, insulation, lining, and decorative panels and related
installation and connecting devices.
(b) Window and windshield structure but excluding the windows and
windshields.
(c) Fixed attachment structure of the passenger doors, cargo doors and
emergency exits, excluding door mechanisms and movable hinge components. ▇▇▇▇▇
and frames around the body openings for the passenger doors, cargo doors and
emergency exits, excluding scuff plates and pressure seals.
(d) Nose wheel well structure, including the wheel well walls, pressure
deck, bulkheads, and gear support structure.
(e) Main gear wheel well structure including pressure deck and landing gear
beam support structure.
(f) Floor beams and support posts in the control cab and passenger cabin
area, but excluding seat tracks.
(g) Forward and aft pressure bulkheads.
(h) Keel structure between the wing front spar bulkhead and the main gear
wheel well aft bulkhead including splices.
(i) Wing front and rear spar support bulkheads, and vertical and horizontal
stabilizer front and rear spar support bulkheads including terminal fittings but
excluding all system components and related installation and connecting devices,
insulation, lining, decorative panels and related installation and connecting
devices.
(j) Support structure in the body for the stabilizer pivot and stabilizer
screw.
3. Vertical Stabilizer.
-------------------
(a) External skins between front and rear spars.
(b) Front, rear and auxiliary spar chords, webs and stiffeners and
attachment fittings.
(c) Inspar ribs.
(d) Rudder hinges and supporting ribs, excluding bearings.
(e) Support structure in the vertical stabilizer for rudder hinges,
reaction links and actuators.
(f) Rudder internal, fixed attachment and actuator support structure.
4. Horizontal Stabilizer.
---------------------
(a) External skins between front and rear spars.
(b) Front and rear spar chords, webs and stiffeners.
(c) Inspar ribs.
(d) Stabilizer center section including hinge and screw support structure.
(e) Support structure in the horizontal stabilizer for the elevator hinges,
reaction links and actuators.
(f) Elevator internal, fixed attachment and actuator support structure.
5. Engine Strut.
------------
(a) Strut external surface skin and doublers and stiffeners.
(b) Internal strut chords, frames and bulkheads.
(c) Strut to wing fittings and diagonal brace.
(d) Engine mount support fittings attached directly to strut structure and
including the engine-mounted support fittings.
6. Main Landing Gear.
-----------------
(a) Outer cylinder.
(b) Inner cylinder, including axles.
(c) Upper and lower side struts, including spindles, universals and
reaction links.
(d) Drag strut.
(e) ▇▇▇▇ crank.
(f) Orifice support tube.
(g) Trunnion link.
(h) Downlock links including spindles and universals.
(i) Torsion links.
(j) Actuator beam, support link and beam arm.
7. Nose Landing Gear.
-----------------
(a) Outer cylinder.
(b) Inner cylinder, including axles.
(c) Orifice support tube.
(d) Upper and lower drag strut, including lock links.
(e) Steering plates and steering collars.
(f) Torsion links.
NOTE: The Service Life Policy does not cover any bearings, bolts, bushings,
clamps, brackets, actuating mechanisms or latching mechanisms used in or on
the Covered Components.
American Trans Air, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇ International Airport
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Subject: Demonstration Flight Waiver
Reference: Purchase Agreement 2262 (the Purchase Agreement) between The
Boeing Company (Boeing) and American Trans Air, Inc. (Customer) relating to
Model 737-83N aircraft (the Aircraft)
This Letter Agreement amends and supplements the Purchase Agreement. All terms
used but not defined in this Letter Agreement shall have the same meaning as in
the Purchase Agreement.
Definition of Terms:
Correction Costs: Customer's direct labor costs and the cost of any material
required to correct a Flight Discrepancy where direct labor costs are equal to
the warranty labor rate in effect between the parties at the time such labor is
expended.
Flight Discrepancy: A failure or malfunction of an Aircraft, or the accessories,
equipment or parts installed on the Aircraft which results from a defect in the
Aircraft, Boeing Product, engine or Supplier Product or a nonconformance to the
Detail Specification for the Aircraft.
The AGTA provides that each aircraft will be test flown prior to delivery for
the purpose of demonstrating the functioning of such Aircraft and its equipment
to Customer; however, Customer may elect to waive this test flight. For each
test flight waived, Boeing agrees to provide Customer an amount of jet fuel at
delivery that, including the standard fuel entitlement, totals the following
amount of fuel:
--------------- -------------------------------------------------
Aircraft Model Total Fuel Entitlement (U.S. Gallons)
--------------- -------------------------------------------------
--------------- -------------------------------------------------
737 Full tanks (approx. 5,300 to 6,800, depending
on model)
--------------- -------------------------------------------------
--------------- -------------------------------------------------
747 26,000
--------------- -------------------------------------------------
--------------- -------------------------------------------------
757 9,600
--------------- -------------------------------------------------
--------------- -------------------------------------------------
767 11,000
--------------- -------------------------------------------------
--------------- -------------------------------------------------
777 10,300
--------------- -------------------------------------------------
Further, Boeing agrees to reimburse Customer for any Correction Costs incurred
as a result of the discovery of a Flight Discrepancy during the first flight of
the aircraft by Customer following delivery to the extent such Correction Costs
are not covered under a warranty provided by Boeing, the engine manufacturer or
any of Boeing's suppliers.
Should a Flight Discrepancy be detected by Customer which requires the return of
the Aircraft to Boeing's facilities at Seattle, Washington, so that Boeing may
correct such Flight Discrepancy, Boeing and Customer agree that title to and
risk of loss of such Aircraft will remain with Customer. In addition, it is
agreed that Boeing will have responsibility for the Aircraft while it is on the
ground at Boeing's facilities in Seattle, Washington, as is chargeable by law to
a bailee for mutual benefit, but Boeing shall not be chargeable for loss of use.
To be reimbursed for Correction Costs, Customer shall submit a written itemized
statement describing any flight discrepancies and indicating the Correction Cost
incurred by Customer for each discrepancy. This request must be submitted to
Boeing's Contracts Regional Director at Renton, Washington, within ninety (90)
days after the first flight by Customer.
Very truly yours,
THE BOEING COMPANY
By /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------------
Its: Attorney-In-Fact
--------------------------------------
ACCEPTED AND AGREED TO this
Date: June 30 ,2000
-------------------------------
AMERICAN TRANS AIR, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Its: Executive Vice President & CFO
------------------------------------------
American Trans Air, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇ International Airport
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Subject: Spares Initial Provisioning
Reference: Purchase Agreement 2262 (the Purchase Agreement) between The
Boeing Company (Boeing) and American Trans Air, Inc. (Customer) relating to
Model 737-83N aircraft (the Aircraft)
This Letter Agreement is entered into on the date below, and amends and
supplements the Purchase Agreement. All terms used but not defined in this
Letter Agreement have the same meaning as in the Purchase Agreement.
1. Applicability.
-------------
This letter will apply to initial provisioning for the Model
737-83N Aircraft purchased by Customer under the Purchase Agreement.
2. Initial Provisioning Meeting.
----------------------------
Boeing will conduct an initial provisioning meeting (Initial
Provisioning Meeting) with Customer to establish mutually agreeable procedures
to accomplish Customer's initial provisioning of spare parts for the Aircraft.
The parties will agree, during the Initial Provisioning Meeting on the
operational data to be provided by Customer for Boeing's use in preparing its
quantity recommendations for initial provisioning of spare parts for the
Aircraft, exclusive of special tools, ground support equipment, engines and
engine parts (Provisioning Items). Such operational data to be provided by
Customer will be the data described in Chapter 6 of Boeing Manual D6-81834,
entitled "Spares Provisioning Products Guide" (Boeing Spares Provisioning
Products Guide) which will be furnished to Customer prior to the Initial
Provisioning Meeting. The parties will also agree on the provisioning
documentation to be provided by Boeing as described in Boeing Spares
Provisioning Products Guide (such data will be hereinafter referred to
collectively as the "Provisioning Data"). Boeing will provide instruction in the
use of the initial provisioning documentation. This instruction will be provided
in conjunction with the Initial Provisioning Meeting. In addition, the parties
will discuss spares ordering procedures and other matters related to the
provisioning for the Aircraft. The time and location for such Initial
Provisioning Meeting will be mutually agreed upon between the parties; however,
Boeing and Customer will use their best efforts to convene such meeting within
30 days after execution of the Purchase Agreement.
3. Initial Provisioning Documentation.
----------------------------------
3.1 Provisioning Data. Boeing will furnish Provisioning Data to
Customer on or about August 25, 2000. The Provisioning Data will be as complete
as possible and will cover Provisioning Items selected by Boeing for review by
Customer for initial provisioning for the Aircraft. The Provisioning Data will
set forth the prices for Provisioning Items which are Boeing Spare Parts and
such prices will be firm and remain in effect until the date or dates set forth
below in Paragraph 4.1, Boeing Spare Parts, by which orders must be placed with
Boeing. Boeing will, from time to time, until a date approximately 90 days
following delivery of the last Aircraft or until the delivery configuration of
each of the Aircraft is reflected in the Provisioning Data, whichever is later,
furnish to Customer revisions to the Provisioning Data.
3.2 Provisioning IPC. Boeing will, on or about August 18, 2000,
furnish to Customer a Boeing Illustrated Parts Catalog (IPC), hereinafter
referred to as the "Provisioning IPC". The Provisioning IPC will be as complete
as possible and will cover Provisioning Items selected by Boeing for review by
Customer for initial provisioning for the Aircraft. Boeing will, from time to
time, until a date approximately 90 days following delivery of the last
Aircraft, or until the delivery configuration of each of the Aircraft is
reflected in the Provisioning IPC, whichever is later, furnish to Customer
revisions to the Provisioning IPC.
3.3 Buyer Furnished Equipment (BFE) Provisioning Data.
-------------------------------------------------
3.3.1 Boeing's Responsibility. Boeing will include BFE end items in the
Provisioning Data and Provisioning IPC for BFE installed on Customer's Aircraft
provided such equipment has been installed on other Aircraft by Boeing and
Boeing has data on the BFE.
3.3.2 Customer's Responsibility. Customer will be responsible for ensuring
BFE data is provided to Boeing by the BFE supplier in a format acceptable to
Boeing for BFE not covered by 3.3.1 above. If the data is not provided to Boeing
in a timely manner and in a format acceptable to Boeing, such BFE equipment will
not be included in Boeing's Provisioning Data or IPC.
3.4 Other Data. Boeing will submit to Customer listings of Raw
Materials,Standard Parts and Bulk Materials to be used by Customer in the
maintenance and repair of the Aircraft.
4. Purchase from Boeing of Spare Parts as Initial Provisioning for the
Aircraft.
4.1 Boeing Spare Parts. Customer will place orders for Provisioning Items
by November 17, 2000; provided, however, that in those instances where Boeing
submits any revision to the Provisioning Data, Customer will place orders for
Boeing Spare Parts covered by such revision within 60 days following the date of
such submittal. At Customer's request, Boeing will process "controlled
shipments" by shipping full or partial quantities of an order on a schedule
specified by Customer, provided the final shipment is made no later than 24
months after receipt of the order.
4.2 Supplier Provisioning Items. Customer may place orders with Boeing for
Provisioning Items which are manufactured by suppliers or to their detailed
design and are covered by the Provisioning Data as initial provisioning for the
Aircraft. The price to Customer for any such supplier Provisioning Item will be
112% of the supplier's quoted price to Boeing therefor. If Customer elects to
purchase such supplier Provisioning Items from Boeing, Customer will place its
orders therefor in accordance with the provisions of Paragraph 4.1, Boeing Spare
Parts.
4.3 Ground Support Equipment and Special Tools. Customer may place orders
with Boeing for ground support equipment (GSE) and special tools manufactured by
suppliers which Customer determines it will initially require for maintenance,
overhaul and servicing of the Aircraft and/or engines. The price to Customer for
such GSE or special tools will be one hundred twelve percent (112%) of the
supplier's quoted price to Boeing therefor. If Customer elects to purchase such
GSE and special tools from Boeing, Customer will place its orders therefor by
the date set forth in Paragraph 4.1, Boeing Spare Parts or such later date as
the parties may mutually agree.
4.4 Spare Engines and Engine Spare Parts. Customer may place orders with
Boeing for spare engines and/or engine spare parts which Customer determines it
will initially require for support of the Aircraft or for maintenance and
overhaul of the engines. The price to Customer for such spare engines or such
engine spare parts, will be 105% of the engine manufacturer's quoted price to
Boeing for the engine, and 112% of the engine manufacturer's quoted price to
Boeing for the engine spare parts. If Customer elects to purchase such spare
engines or engine spare parts through Boeing, Customer will place its orders on
a date to be mutually agreed upon during the Initial Provisioning Meeting.
4.5 QEC Kits. Boeing will, on or about June 30, 2000, furnish to Customer a
listing of all components which could be included in the Quick Engine Change
(QEC) kits which may be purchased by Customer from Boeing. Customer agrees to
review such listing and indicate by marking on one copy of such listing those
components that Customer desires included in its QEC kits. Customer will return
such marked copy to Boeing within 30 days after Customer's receipt of such
listing. Within 30 days after Boeing's receipt of such marked copy, Boeing will
republish such listing to reflect only those components selected by Customer and
will provide copies of such republished listing to Customer. Boeing will from
time to time furnish revisions to such republished listing until a date
approximately 90 days after delivery of the last QEC kit ordered by Customer for
the Aircraft. Boeing will furnish to Customer as soon as practicable a statement
setting forth a firm price for the QEC kit configuration selected by Customer.
Customer agrees to place orders with Boeing for the QEC kits for the Aircraft by
August 25, 2000.
4.6 Payment for Provisioning Items. The payment provisions of the Customer
Services General Terms Agreement (CSGTA) between Boeing and Customer will be
applicable to Provisioning Items ordered by Customer from Boeing for the
Aircraft.
5. Delivery.
--------
Boeing will, insofar as reasonably possible, deliver to Customer
the Spare Parts ordered by Customer in accordance with the provisions of this
letter on dates reasonably calculated to conform to Customer's anticipated needs
in view of the scheduled deliveries of the Aircraft. Customer and Boeing will
agree upon the date to begin delivery of the Provisioning Spare Parts ordered in
accordance with this letter. Where appropriate, Boeing will arrange for shipment
of such Spare Parts, which are manufactured by suppliers, directly to Customer
from the applicable supplier's facility. The routing and method of shipment for
initial deliveries and all subsequent deliveries of such Spare Parts will be as
mutually agreed between Boeing and Customer.
6. Substitution for Obsolete Spare Parts.
-------------------------------------
6.1 Obligation to Substitute. In the event that, prior to delivery
of the first Aircraft pursuant to the Purchase Agreement, any Spare Part
purchased by Customer from Boeing in accordance with this letter is rendered
obsolete or unusable due to the redesign of the Aircraft or of any accessory,
equipment or part therefor, (other than a redesign at Customer's request),
Boeing will deliver to Customer new and usable Spare Parts in substitution for
such obsolete or unusable Spare Parts and Customer will return the obsolete or
unusable Spare Parts to Boeing. Boeing will credit Customer's account with
Boeing with the price paid by Customer for any such obsolete or unusable Spare
Part and will invoice Customer for the purchase price of any such substitute
Spare Part delivered to Customer.
6.2 Delivery of Obsolete Spare Parts and Substitutes Therefor.
Obsolete or unusable Spare Parts returned by Customer pursuant to this Item will
be delivered to Boeing at its Seattle Distribution Center, or such other
destination as Boeing may reasonably designate. Spare Parts substituted for such
returned obsolete or unusable Spare Parts will be delivered to Customer at
Boeing's Seattle Distribution Center, or such other Boeing shipping point as
Boeing may reasonably designate. Boeing will pay the freight charges for the
shipment from Customer to Boeing of any such obsolete or unusable Spare Part and
for the shipment from Boeing to Customer of any such substitute Spare Part.
7. Repurchase of Provisioning Items.
--------------------------------
7.1 Obligation to Repurchase. During a period commencing 1 year
after delivery of the first Aircraft under the Purchase Agreement, and ending 5
years after such delivery, Boeing will, upon receipt of Customer's written
request and subject to the exceptions in Paragraph 7.2, Exceptions, repurchase
unused and undamaged Provisioning Items which (i) were recommended by Boeing in
the Provisioning Data as initial provisioning for the Aircraft, (ii) were
purchased by Customer from Boeing, and (iii) are surplus to Customer's needs.
7.2 Exceptions. Boeing will not be obligated under Paragraph 7.1,
Obligation to Repurchase, to repurchase any of the following: (i) quantities of
Provisioning Items in excess of those quantities recommended by Boeing in the
Provisioning Data for the Aircraft, (ii) QEC Kits, Bulk Material Kits, Raw
Material Kits, Service Bulletin Kits, Standards Kits and components thereof
(except those components listed separately in the Provisioning Data), (iii)
Provisioning Items for which an order was received by Boeing more than 5 months
after delivery of the last Aircraft, (iv) Provisioning Items which have become
obsolete or have been replaced by other Provisioning Items as a result of (a)
Customer's modification of the Aircraft or (b) design improvements by Boeing or
the supplier (other than Provisioning Items which have become obsolete because
of a defect in design if such defect has not been remedied by an offer by Boeing
or the supplier to provide no charge retrofit kits or replacement parts which
correct such defect), and (v) Provisioning Items which become excess as a result
of a change in Customer's operating parameters, provided to Boeing pursuant to
the Initial Provisioning meeting in Paragraph 2, which were the basis of
Boeing's initial provisioning recommendations for the Aircraft.
7.3 Notification and Format. Customer will notify Boeing, in
writing, when Customer desires to return Provisioning Items which Customer's
review indicates are eligible for repurchase by Boeing under the provisions of
this Repurchase of Provisioning Items paragraph. Customer's notification will
include a detailed summary, in part number sequence, of the Provisioning Items
Customer desires to return. Such summary will be in the form of listings, tapes,
diskettes or other media as may be mutually agreed between Boeing and Customer,
and will include part number, nomenclature, purchase order number, purchase
order date and quantity to be returned. Within 5 business days after receipt of
Customer's notification, Boeing will advise Customer, in writing, when Boeing's
review of such summary will be completed.
7.4 Review and Acceptance by Boeing. Upon completion of Boeing's
review of any detailed summary submitted by Customer pursuant to Paragraph 7.3,
Boeing will issue to Customer a Material Return Authorization (MRA) for those
Provisioning Items Boeing agrees are eligible for repurchase in accordance with
this Repurchase of Provisioning Items paragraph. Boeing will advise Customer of
the reason that any spare part included in Customer's detailed summary is not
eligible for return. Boeing's MRA will state the date by which Provisioning
Items listed in the MRA must be redelivered to Boeing and Customer will arrange
for shipment of such Provisioning Items accordingly.
7.5 Price and Payment. The price of each Provisioning Item
repurchased by Boeing pursuant to this Repurchase of Provisioning Items
paragraph will be an amount equal to 100% of the original invoice price thereof.
In the case of Provisioning Items manufactured by a supplier which were
purchased pursuant to ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ from Boeing of Spare Parts as
Initial Provisioning for the Aircraft, hereof the repurchase price will not
include Boeing's 12% handling charge. Boeing will pay the repurchase price by
issuing a credit memorandum in favor of Customer which may be applied against
amounts due Boeing for the purchase of aircraft, Spare Parts, services or data.
7.6 Delivery of Provisioning Items. Provisioning Items repurchased
by Boeing pursuant to this Repurchase of Provisioning Items paragraph will be
delivered to Boeing F.O.B. at its Seattle Distribution Center, or such other
destination as Boeing may reasonably designate. Customer will pay the freight
charges for the shipment from Customer to Boeing of any such Provisioning Items.
8. Obsolete Spare Parts and Surplus Provisioning Items - Title and Risk of
Loss.
Title to and risk of loss of any obsolete or unusable Spare Parts
returned to Boeing pursuant to Paragraph 6, Substitution for Obsolete Spare
Parts, will pass to Boeing upon delivery thereof to Boeing. Title to and risk of
loss of any Spare Part substituted for an obsolete or unusable Spare Part
pursuant to Paragraph 6, Substitution for Obsolete Spare Parts, will pass to
Customer upon delivery thereof to Customer. Title to and risk of loss of any
Provisioning Item repurchased by Boeing pursuant to ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ of
Provisioning Items, will pass to Boeing upon delivery thereof to Boeing. With
respect to the obsolete or unusable Spare Parts which may be returned to Boeing
and the Spare Parts substituted therefor, pursuant to Paragraph 6, and the
Provisioning Items which may be repurchased by Boeing, pursuant to Paragraph 7,
the party which has risk of loss of any such Spare Part or Provisioning Item
will have the responsibility of providing any insurance coverage for it desired
by such party.
9. Supplier Support.
----------------
Boeing has entered, or anticipates entering, into product support
agreements with suppliers (Boeing Suppliers) of major system components
manufactured by such Suppliers to be installed on the Aircraft (Supplier
Components). Such product support agreements commit, or are expected to commit,
the Boeing Suppliers to provide to Boeing's customers and/or such customer's
designees support services with respect to the Supplier Components which can be
reasonably expected to be required during the course of normal operation. This
support includes but is not limited to shelf-stock of certain spare parts,
emergency spare parts, timely delivery of spare parts, and technical data
related to the Supplier Components. Copies of such product support agreements
will be provided to Customer on or about September 22, 2000, in Boeing Document
D6-56115, Volumes 1 and 2. In the event Customer has used due diligence in
attempting to resolve any difficulty arising in normal business transactions
between Customer and a Boeing Supplier with respect to product support for a
Supplier Component manufactured by such Supplier and if such difficulty remains
unresolved, Boeing will, if requested by Customer, assist Customer in resolving
such difficulty. Assistance will be provided by the Customer Supplier Services
organization.
10. Termination for Excusable Delay.
-------------------------------
In the event of termination of the Purchase Agreement with respect
to any Aircraft pursuant to Article 7 of the AGTA, such termination will, if
Customer so requests by written notice received by Boeing within 15 days after
such termination, also discharge and terminate all obligations and liabilities
of the parties as to any Spare Parts which Customer had ordered pursuant to the
provisions of this letter as initial provisioning for such Aircraft and which
are undelivered on the date Boeing receives such written notice.
Very truly yours,
THE BOEING COMPANY
By /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------------
Its Attorney-In-Fact
--------------------------------------
ACCEPTED AND AGREED TO this
Date: June 30 , 2000
-------------------------------
AMERICAN TRANS AIR, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Its Executive Vice President & CFO
------------------------------------------
(Confidential Letter Omitted)
(Confidential Letter Omitted)
(Confidential Letter Omitted)
PURCHASE AGREEMENT NUMBER 2285
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Relating to Boeing Model 757-33N Aircraft
TABLE OF CONTENTS
SA
ARTICLES NUMBER
1. Quantity, Model and Description
2. Delivery Schedule
3. Price
4. Payment
5. Miscellaneous
TABLE
1. Aircraft Information Table
EXHIBIT
A. Aircraft Configuration
B. Aircraft Delivery Requirements and Responsibilities
SUPPLEMENTAL EXHIBITS
AE1. Escalation Adjustment/Airframe and Optional Features
BFE1. BFE Variables
CS1. Customer Support Variables
(CONFIDENTIAL MATERIAL OMITTED)
SLP1. Service Life Policy Components
LETTER AGREEMENTS
2285-01 Demonstration Flight Waiver
2285-02 Spares Intial provisioning
2285-03 Flight Crew Training Spare Parts Support
(CONFIDENTIAL MATERIAL OMITTED)
Purchase Agreement No. 2285
between
The Boeing Company
and
American Trans Air, Inc.
------------------------------
This Purchase Agreement No. 2285 dated as of etween The Boeing
Company (BOEING) and American Trans Air, Inc.CUSTOMER)relating to the purchase
and sale of Model 757-33N aircraft incorporates the terms and conditions of the
Aircraft General Terms Agreement dated as of -------- between the parties,
identified as AGTA-AAT (AGTA).
Article 1. QUANTITY, MODEL AND DESCRIPTION.
-------------------------------
The aircraft to be delivered to Customer will be designated as
Model 757-33N aircraft (the AIRCRAFT). Boeing will manufacture and sell to
Customer Aircraft conforming to the configuration described in Exhibit A, which
is part of this Purchase Agreement, in the quantities listed in Table 1 to the
Purchase Agreement.
Article 2. DELIVERY SCHEDULE.
-----------------
The scheduled months of delivery of the Aircraft are listed in
the attached Table 1, which is part of this Purchase Agreement. Exhibit B, which
is part of this Purchase Agreement, describes certain responsibilities for both
Customer and Boeing in order to accomplish the delivery of the Aircraft.
Article 3. PRICE.
-----
3.1 AIRCRAFT BASIC PRICE. The Aircraft Basic Price is listed in Table 1 in
subject to escalation dollars.
3.2 ADVANCE PAYMENT BASE PRICES. The Advance Payment Base Prices listed in
Table 1 were calculated utilizing the latest escalation factors available to
Boeing on the date of this Purchase Agreement projected to the month of
scheduled delivery.
3.3 Boeing has not yet established the Aircraft Basic Price for Aircraft
scheduled to be delivered after December 31, 2004. The prices listed in Table 1
for such Aircraft are only to provide Customer with an estimate of the
applicable Advance Payment Base Prices. Accordingly, the Aircraft Basic Price
for such Aircraft will be the sum of the Airframe Price, Optional Features
Prices and the Engine Price first published by Boeing for the same model of
aircraft and engines to be delivered after December 31, 2004.
Article 4. PAYMENT.
-------
4.1 Boeing acknowledges receipt of a deposit in the amount shown in Table 1
for each Aircraft (DEPOSIT).
4.2 The standard advance payment schedule for the Model 757-33N aircraft
requires Customer to make certain advance payments, expressed in a percentage of
the Advance Payment Base Price of each Aircraft beginning with a payment of 1%,
less the Deposit, on the effective date of the Purchase Agreement for the
Aircraft. Additional advance payments for each aircraft are due on the first
business day of the months listed in the attached Table 1.
4.3 For any Aircraft whose scheduled month of delivery is less than 24
months from the date of this Purchase Agreement, the total amount of advance
payments due for payment upon signing of this Purchase Agreement will include
all advance payments which are past due in accordance with the standard advance
payment schedule set forth in paragraph 4.2 above.
4.4 Customer will pay the balance of the Aircraft Price of each Aircraft at
delivery.
Article 5. MISCELLANEOUS.
-------------
5.1 AIRCRAFT INFORMATION TABLE. Table 1 consolidates information contained
in Articles 1, 2, 3 and 4 with respect to (i) quantity of Aircraft, (ii)
applicable Detail Specification, (iii) month and year of scheduled deliveries,
(iv) Aircraft Basic Price, (v) applicable escalation factors and (vi) Advance
Payment Base Prices and advance payments and their schedules.
5.2 ESCALATION ADJUSTMENT/AIRFRAME AND OPTIONAL FEATURES. Supplemental
Exhibit AE1contains the applicable airframe and optional features escalation
formula.
5.3 BUYER FURNISHED EQUIPMENT VARIABLES. Supplemental Exhibit BFE1 contains
vendor selection dates, on dock dates and other variables applicable to the
Aircraft.
5.4 CUSTOMER SUPPORT VARIABLES. Supplemental Exhibit CS1 contains the
variable information applicable to information, training services and other
things furnished by Boeing in support of the Aircraft.
5.5 ENGINE ESCALATION VARIABLES. Supplemental Exhibit EE1 contains the
applicable engine escalation formula, the engine warranty and the engine patent
indemnity for the Aircraft.
5.6 SERVICE LIFE POLICY COMPONENT VARIABLES. Supplemental Exhibit SLP1
lists the airframe and landing gear components covered by the Service Life
Policy for the Aircraft.
5.7 NEGOTIATED AGREEMENT; ENTIRE AGREEMENT. This Purchase Agreement,
including the provisions of Article 8.2 of the AGTA relating to insurance, and
Article 11 of Part 2 of Exhibit C of the AGTA relating to DISCLAIMER AND RELEASE
and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES, has been the subject of
discussion and negotiation and is understood by the parties; the Aircraft Price
and other agreements of the parties stated in this Purchase Agreement were
arrived at in consideration of such provisions. This Purchase Agreement,
including the AGTA, contains the entire agreement between the parties and
supersedes all previous proposals, understandings, commitments or
representations whatsoever, oral or written, and may be changed only in writing
signed by authorized representatives of the parties.
DATED AS OF June 30 , 2000
------------------------------
American Trans Air, Inc. THE BOEING COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By /s/ ▇.▇. ▇▇▇▇▇▇
---------------------------------------- -------------------------
Its Executive Vice President & CFO Its ATTORNEY-IN-FACT
--------------------------------------- -------------------------
Table 1 to Purchase Agreement No. 2285
Aircraft Delivery, Description, Price and Advance Payments
(Confidential Material Omitted)
AIRCRAFT CONFIGURATION
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Exhibit A to Purchase Agreement Number 2285
AIRCRAFT CONFIGURATION
Dated ___________________
relating to
BOEING MODEL 757-33N AIRCRAFT
The Detail Specification is Boeing Detail Specification D019N001-A
dated as of August 7, 1998. Such Detail Specification will be amended to
incorporate the Options listed herein, including the effects on Manufacturer's
Empty Weight (MEW) and Operating Empty Weight (OEW). As soon as practicable but
in no case later than delivery of the first Aircraft, Boeing will furnish to
Buyer copies of the Detail Specification, which copies will reflect such
Options. The Aircraft Basic Price reflects and includes all effects of such
Options, except such Aircraft Basic Price does not include the price effects of
any Buyer Furnished Equipment or Seller Purchased Equipment.
OPTION TITLE PRICE PER
AIRCRAFT
($1999 STE)
(Confidential Material Omitted)
AIRCRAFT DELIVERY REQUIREMENTS AND RESPONSIBILITIES
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Exhibit B to Purchase Agreement Number 2285
AIRCRAFT DELIVERY REQUIREMENTS AND RESPONSIBILITIES
relating to
BOEING MODEL 757-33N AIRCRAFT
Both Boeing and Customer have certain documentation and approval
responsibilities at various times during the construction cycle of Customer's
Aircraft that are critical to making the delivery of each Aircraft a positive
experience for both parties. This Exhibit B documents those responsibilities and
indicates recommended completion deadlines for the actions to be accomplished.
1. GOVERNMENT DOCUMENTATION REQUIREMENTS.
-------------------------------------
Certain actions are required to be taken by Customer in advance of the scheduled
delivery month of each Aircraft with respect to obtaining certain government
issued documentation.
1.1 AIRWORTHINESS AND REGISTRATION DOCUMENTS.
----------------------------------------
Not later than 6 MONTHS PRIOR TO DELIVERY of each Aircraft, Customer will
notify Boeing of the registration number to be painted on the side of the
Aircraft. In addition, and not later than 3 MONTHS PRIOR TO DELIVERY of each
Aircraft, Customer will, by letter to the regulatory authority having
jurisdiction, authorize the temporary use of such registration numbers by Boeing
during the pre-delivery testing of the Aircraft.
Customer is responsible for furnishing any Temporary or Permanent Registration
Certificates required by any governmental authority having jurisdiction to be
displayed aboard the Aircraft after delivery.
1.2 CERTIFICATE OF SANITARY CONSTRUCTION.
------------------------------------
1.2.1 U.S. REGISTERED AIRCRAFT. Boeing will obtain from the United States
Public Health Service, a United States Certificate of Sanitary Construction to
be displayed aboard each Aircraft after delivery to Customer.
1.2.2 NON-U.S. REGISTERED AIRCRAFT. If Customer requires a United States
Certificate of Sanitary Construction at the time of delivery of the Aircraft,
Customer will give written notice thereof to Boeing at least 3 MONTHS PRIOR TO
DELIVERY. Boeing will then use its reasonable best efforts to obtain the
Certificate from the United States Public Health Service and present it to
Customer at the time of Aircraft delivery.
1.3 CUSTOMS DOCUMENTATION.
1.3.1 IMPORT DOCUMENTATION. If the Aircraft is intended to be exported from
the United States, Customer must notify Boeing not later than 3 MONTHS PRIOR TO
DELIVERY of each Aircraft of any documentation required by the customs
authorities or by any other agency of the country of import.
1.3.2 GENERAL DECLARATION - U.S. If the Aircraft is intended to be exported
from the United States, Boeing will prepare Customs Form 7507, General
Declaration, for execution by U.S. Customs immediately prior to the ferry flight
of the Aircraft. For this purpose, Customer will furnish to Boeing not later
than 20 DAYS PRIOR TO DELIVERY a complete crew and passenger list and a complete
ferry flight itinerary, including point of exit from the United States for the
Aircraft.
If Customer intends, during the ferry flight of an Aircraft, to land at a U.S.
airport after clearing Customs at delivery, Customer must notify Boeing not
later than 20 DAYS PRIOR TO DELIVERY of such intention. If Boeing receives such
notification, Boeing will provide to Customer the documents constituting a
Customs permit to proceed, allowing such Aircraft to depart after any such
landing. Sufficient copies of completed Form 7507, along with passenger
manifest, will be furnished Customer to cover U.S. stops scheduled for the ferry
flight.
1.3.3 EXPORT DECLARATION - U.S. If the Aircraft is intended to be exported
from the United States, Boeing will prepare Form 7525V and, IMMEDIATELY PRIOR TO
THE FERRY FLIGHT, will submit such Form to U.S. Customs in Seattle in order to
obtain clearance for the departure of the Aircraft, including any cargo, from
the United States. U.S. Customs will deliver the Export Declaration to the U.S.
Department of Commerce after export.
2. INSURANCE CERTIFICATES.
----------------------
Unless provided earlier, Customer will provide to Boeing not later than 30
DAYS PRIOR TO DELIVERY of the first Aircraft, a copy of the requisite annual
insurance certificate in accordance with the requirements of Article 8 of the
AGTA.
3 NOTICE OF FLYAWAY CONFIGURATION.
-------------------------------
Not later than 20 DAYS PRIOR TO DELIVERY of the Aircraft, Customer will
provide to Boeing a configuration letter stating the requested "flyaway
configuration" of the Aircraft for its ferry flight. This configuration letter
should include:
(i) the name of the company which is to furnish fuel for the ferry flight
and any scheduled post-delivery flight training, the method of payment for such
fuel, and fuel load for the ferry flight;
(ii) the cargo to be loaded and where it is to be stowed on board the
Aircraft, the address where cargo is to be shipped after flyaway and
notification of any hazardous materials requiring special handling;
(iii) any BFE equipment to be removed prior to flyaway and returned to
Boeing BFE stores for installation on Customer's subsequent Aircraft;
(iv) a complete list of names and citizenship of each crew member and
non-revenue passenger who will be aboard the ferry flight; and
(v) a complete ferry flight itinerary.
4. DELIVERY ACTIONS BY BOEING.
--------------------------
4.1 SCHEDULE OF INSPECTIONS. All FAA, Boeing, Customer and, if required,
U.S. Customs Bureau inspections will be scheduled by
Boeing for completion prior to delivery or departure of the Aircraft. Customer
will be informed of such schedules.
4.2 SCHEDULE OF DEMONSTRATION FLIGHTS. All FAA and Customer demonstration
flights will be scheduled by Boeing for completion prior to delivery of the
Aircraft.
4.3 SCHEDULE FOR CUSTOMER'S FLIGHT CREW. Boeing will inform Customer of the
date that a flight crew is required for acceptance routines associated with
delivery of the Aircraft.
4.4 FUEL PROVIDED BY BOEING. Boeing will provide to Customer, without
charge, the amount of fuel shown in U.S. gallons in the table below for the
model of Aircraft being delivered and full capacity of engine oil at the time of
delivery or prior to the ferry flight of the Aircraft.
AIRCRAFT MODEL FUEL PROVIDED
-------------- -------------
737 1,000
747 4,000
757 1,600
767 2,000
777 3,000
4.5 FLIGHT CREW AND PASSENGER CONSUMABLES. Boeing will provide reasonable
quantities of food, coat hangers, towels, toilet tissue, drinking cups and soap
for the first segment of the ferry flight for the Aircraft.
4.6 DELIVERY PAPERS, DOCUMENTS AND DATA. Boeing will have available at the
time of delivery of the Aircraft certain delivery papers, documents and data for
execution and delivery. If title for the Aircraft will be transferred to
Customer through a Boeing sales subsidiary and if the Aircraft will be
registered with the FAA, Boeing will pre-position in Oklahoma City, Oklahoma,
for filing with the FAA at the time of delivery of the Aircraft an executed
original Form 8050-2, Aircraft ▇▇▇▇ of Sale, indicating transfer of title to the
Aircraft from Boeing's sales subsidiary to Customer.
4.7 DELEGATION OF AUTHORITY. If specifically requested in advance by
Customer, Boeing will present a certified copy of a Resolution of Boeing's Board
of Directors, designating and authorizing certain persons to act on its behalf
in connection with delivery of the Aircraft.
5. DELIVERY ACTIONS BY CUSTOMER.
----------------------------
5.1 AIRCRAFT RADIO STATION LICENSE. At delivery Customer will provide its
Aircraft Radio Station License to be placed on board the Aircraft following
delivery.
5.2. AIRCRAFT FLIGHT LOG. At delivery Customer will provide the Aircraft
Flight Log for the Aircraft.
5.3 DELEGATION OF AUTHORITY. Customer will present to Boeing at delivery of
the Aircraft an original or certified copy of Customer's Delegation of Authority
designating and authorizing certain persons to act on its behalf in connection
with delivery of the specified Aircraft.
ESCALATION ADJUSTMENT
AIRFRAME AND OPTIONAL FEATURES
between
THE BOEING COMPANY
and
America Trans Air, inc.
Supplemental Exhibit AE1 to Purchase Agreement Number 2285
(FOR MODEL 717-200, 737-600, 737-700, 737-800 AND 737-900
THE AIRFRAME PRICE INCLUDES THE ENGINE PRICE AT ITS BASIC THRUST
LEVEL.)
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 this 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+B)(L + M) - P
Where:
Pa = Airframe Price Adjustment. (For Model
717-200, 737-600, 737-700, 737-800 and
737-900, the Airframe Price includes the
Engine Price at its basic thrust level.)
L = .65 x ( ECI
-----
ECIb )where ECIb is the base
year index (as set forth in
Table 1 of this Purchase
Agreement)
M = .35 x ( ICI
-----
ICIb )where ICIb is the base year index
(as set forth in Table 1 of this
Purchase Agreement)
P = Airframe Price plus Optional Features Price (as set
forth in Table 1 of this Purchase Agreement).
B = 0.005 x (N/12) x (P)where N is the calendar month and
year of scheduled Aircraft
delivery minus the calendar month
and year of the Base Price Year,
both as shown in Table 1
of this Purchase Agreement.
ECI is a value determined using the U.S. Department of
Labor, Bureau of Labor Statistics "Employment Cost Index
for workers in aerospace manufacturing - Wages and
Salaries" (ECI code 3721W), calculated by establishing a
three-month arithmetic average value (expressed as a
decimal and rounded to the nearest tenth) using the values
for the fifth, sixth and seventh months prior to the month
of scheduled delivery of the applicable Aircraft. As the
Employment Cost Index values are only released on a
quarterly basis, the value released for the month of March
will be used for the months of January and February; the
value for June 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 is
provided by Boeing in Table 1 of this Purchase Agreement.
iv. The final value of Pa will be rounded to the nearest dollar.
vi. The Airframe Price Adjustment will not be made if it will result in a
decrease in the Aircraft Basic Price.
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
Aircraft Price of any affected Aircraft to reflect an allowance for increases or
decreases in labor compensation and material costs occurring since February of
the price base year shown in the Purchase Agreement which is consistent with the
applicable provisions of paragraph 1 of this Supplemental Exhibit AE1.
2.4 If within 12 months of Aircraft delivery, the published index
values are revised due to an acknowledged error by the Bureau of Labor
Statistics, the Airframe Price Adjustment will be re-calculated using the
revised index values (this does not include those values noted as preliminary by
the Bureau of Labor Statistics). A credit memorandum or supplemental invoice
will be issued for the Airframe Price Adjustment difference. Interest charges
will not apply for the period of original invoice to issuance of credit
memorandum or supplemental invoice.
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, subject always to paragraph 2.4 above.
ii. The maximum number of digits to the right of the decimal after rounding
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.
BUYER FURNISHED EQUIPMENT VARIABLES
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Supplemental Exhibit BFE1 to Purchase Agreement Number 2285
BUYER FURNISHED EQUIPMENT VARIABLES
relating to
BOEING MODEL 757-33N AIRCRAFT
This Supplemental Exhibit BFE1 contains vendor selection dates, on-dock dates
and other variables applicable to the Aircraft.
1. SUPPLIER SELECTION.
------------------
Customer will:
1.1 Select and notify Boeing of the suppliers and part numbers of the
following BFE items by the following dates:
Galley System JULY 24, 2000
Galley Inserts JULY 24, 2000
Seats (passenger) COMPLETE
Overhead & Audio System COMPLETE
Miscellaneous Emergency Equipment JULY 24, 2000
Cargo Handling Systems* COMPLETE
* For a previously certified system
2. ON-DOCK DATES
On or before October, 2000, 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. For planning purposes, a preliminary BFE on-dock schedule is set forth
below:
PRELIMINARY ON-DOCK DATES
--------------------------------------------------------------------------------
AIRCRAFT DELIVERY
--------------------------------------------------------------------------------
(CONFIDENTIAL MATERIAL OMITTED)
--------------------------------------------------------------------------------
AIRCRAFT DELIVERY
--------------------------------------------------------------------------------
(CONFIDENTIAL MATERIAL OMITTED)
-------------------------------------------------------------------------------
CUSTOMER SUPPORT VARIABLES
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Supplemental Exhibit CS1 to Purchase Agreement Number 2285
CUSTOMER SUPPORT VARIABLES
relating to
BOEING MODEL 757-33N AIRCRAFT
Customer currently operates an aircraft of the same model as the Aircraft. Upon
Customer's request, Boeing will develop and schedule a customized Customer
Support Program to be furnished in support of the Aircraft. The customized
program will be based upon and equivalent to the entitlements summarized below.
1. MAINTENANCE TRAINING.
--------------------
1.1 Maintenance Training Minor Model Differences Course, if
required, covering operational, structural or systems
differences between Customer's newly-purchased Aircraft and an
aircraft of the same model currently operated by Customer; 1
class of 15 students;
1.2 Training materials, if applicable, will be provided to each
student. In addition, one set of training materials as used in
Boeing's training program, including visual aids, text and
graphics will be provided for use in Customer's own training
program.
2. FLIGHT TRAINING.
---------------
Boeing will provide, if required, one classroom course to acquaint up
to 15 students with operational, systems and performance differences
between Customer's newly-purchased Aircraft and an aircraft of the same
model currently operated by Customer.
Any training materials used in Flight Training, if required, will be
provided for use in Customer's own training program.
3. PLANNING ASSISTANCE.
-------------------
3.1 MAINTENANCE AND GROUND OPERATIONS.
---------------------------------
Upon request, Boeing will provide planning assistance
regarding Minor Model Differences requirements for facilities,
tools and equipment.
3.2 SPARES.
------
Boeing will revise, as applicable, the customized Recommended
Spares Parts List (RSPL) and Illustrated Parts Catalog (IPC).
4. TECHNICAL DATA AND DOCUMENTS.
----------------------------
Boeing will revise, as applicable, technical data and documents
provided with previously delivered aircraft.
(CONFIDENTIAL LETTER OMITTED)
SERVICE LIFE POLICY COMPONENTS
between
THE BOEING COMPANY
and
American Trans Air, Inc.
Supplemental Exhibit SLP1 to Purchase Agreement Number 2285
SERVICE LIFE POLICY COMPONENTS
relating to
BOEING MODEL 757 AIRCRAFT
This is the listing of Covered Components for the Aircraft which relate to Part
3, BOEING SERVICE LIFE POLICY of Exhibit C, PRODUCT ASSURANCE DOCUMENT to the
AGTA and is a part of Purchase Agreement No. 2285.
1. WING.
----
(a) Upper and lower skins and stiffeners between the forward and rear wing
spars.
(b) Wing spar webs, chords, and stiffeners.
(c) Inspar wing ribs.
(d) Inspar splice plates and fittings.
(e) Main landing gear support structure.
(f) Wing center section lower beams, spanwise beams and floor beams, but
not the seat tracks attached to the beams.
(g) Wing-to-body structural attachments.
(h) Engine strut support fittings attached directly to wing primary
structure.
(i) Support structure in the wing for spoilers and spoiler actuators; for
aileron hinges and reaction links; and for leading edge devices and trailing
edge flaps.
(j) Trailing edge flap tracks and carriages.
(k) Aileron leading edge device and trailing edge flap internal, fixed
attachment and actuator support structure.
2. BODY.
----
(a) External surface skins and doublers, longitudinal stiffeners, longerons
and circumferential rings and frames between the forward pressure bulkhead and
the vertical stabilizer rear spar bulkhead, and structural support and enclosure
for the APU but excluding all system components and related installation and
connecting devices, insulation, lining, and decorative panels and related
installation and connecting devices.
(b) Window and windshield structure but excluding the windows and
windshields.
(c) Fixed attachment structure of the passenger doors, cargo doors and
emergency exits, excluding door mechanisms and movable hinge components. ▇▇▇▇▇
and frames around the body openings for the passenger doors, cargo doors and
emergency exits, excluding scuff plates and pressure seals.
(d) Nose wheel well structure, including the wheel well walls, pressure
deck, forward and aft bulkheads, and the gear support structure.
(e) Main gear wheel well structure including pressure deck, bulkheads and
landing gear beam support structure.
(f) Floor beams and support posts in the control cab and passenger cabin
area, but excluding seat tracks.
(g) Forward and aft pressure bulkheads.
(h) Keel structure between the wing front spar bulkhead and the main gear
wheel well aft bulkhead, including splices.
(i) Wing front and rear spar support bulkheads, and vertical and horizontal
stabilizer front and rear spar support bulkheads including terminal fittings but
excluding all system components and related installation and connecting devices,
insulation, lining, decorative panels, and related installation and connecting
devices.
(j) Support structure in the body for the stabilizer pivot and stabilizer
screw.
3. VERTICAL STABILIZER.
-------------------
(a) External skins between front and rear spars.
(b) Front, rear and auxiliary spar chords, webs, and stiffeners, and
attachment fittings between vertical stabilizer and body.
(c) Inspar ribs.
(d) Support structure in the vertical stabilizer for rudder hinges,
reaction links and actuator.
(e) Rudder internal, fixed attachment and actuator support structure.
(f) Rudder hinges and supporting ribs, excluding bearings.
4. HORIZONTAL STABILIZER.
---------------------
(a) External skins between front and rear spars.
(b) Front, rear and auxiliary spar chords, webs, and stiffeners.
(c) Inspar ribs.
(d) Stabilizer center splice fittings, pivot and screw support structure.
(e) Support structure in the horizontal stabilizer for the elevator hinges,
reaction links and actuators.
(f) Elevator internal, fixed attachment and actuator support structure.
5. ENGINE STRUT.
------------
(a) Strut external surface skin and doublers and stiffeners.
(b) Internal strut chords, frames and bulkheads.
(c) Strut to wing fittings and diagonal brace.
(d) Engine mount support fittings attached directly to strut structure.
(e) For Aircraft equipped with ▇▇▇▇▇ & ▇▇▇▇▇▇▇ engines only, the engine
mounted support fittings.
6. MAIN LANDING GEAR.
-----------------
(a) Outer cylinder.
(b) Inner cylinder.
(c) Upper and lower side struts, including spindles and universals.
(d) Drag strut.
(e) Side strut reaction link.
(f) Side strut support link.
(g) Downlock links including spindles and universals.
(h) Orifice plate.
(i) Trunnion link.
(j) Truck beam.
(k) Axles.
(l) Torsion links.
(m) Stabilizer link.
7. NOSE LANDING GEAR.
-----------------
(a) Outer cylinder.
(b) Inner cylinder.
(c) Upper and lower drag strut, including lock links.
(d) Axles.
(e) Torsion links.
(f) Steering plates and steering collar.
(g) Orifice plate.
NOTE: The Service Life Policy does not cover any bearings, bolts, bushings,
clamps, brackets, actuating mechanisms or latching mechanisms used in or on
the Covered Components.
American Trans Air, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇ International Airport
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Subject: Demonstration Flight Waiver
Reference: Purchase Agreement 2285 (the Purchase Agreement) between The
Boeing Company (Boeing) and American Trans Air, Inc. (Customer) relating to
Model 757-33N aircraft (the Aircraft)
This Letter Agreement amends and supplements the Purchase Agreement. All
terms used but not defined in this Letter Agreement shall have the same meaning
as in the Purchase Agreement.
DEFINITION OF TERMS:
CORRECTION COSTS: Customer's direct labor costs and the cost of any material
required to correct a Flight Discrepancy where direct labor costs are equal to
the warranty labor rate in effect between the parties at the time such labor is
expended.
FLIGHT DISCREPANCY: A failure or malfunction of an Aircraft, or the accessories,
equipment or parts installed on the Aircraft which results from a defect in the
Aircraft, Boeing Product, engine or Supplier Product or a nonconformance to the
Detail Specification for the Aircraft.
The AGTA provides that each aircraft will be test flown prior to delivery for
the purpose of demonstrating the functioning of such Aircraft and its equipment
to Customer; however, Customer may elect to waive this test flight. For each
test flight waived, Boeing agrees to provide Customer an amount of jet fuel at
delivery that, including the standard fuel entitlement, totals the following
amount of fuel:
---------------------- -----------------------------------------------
AIRCRAFT MODEL TOTAL FUEL ENTITLEMENT
(U.S. GALLONS)
---------------------- -----------------------------------------------
---------------------- -----------------------------------------------
737 Full tanks (approx. 5,300 to 6,800, depending
on model)
---------------------- -----------------------------------------------
---------------------- -----------------------------------------------
747 26,000
---------------------- -----------------------------------------------
---------------------- -----------------------------------------------
757 9,600
---------------------- -----------------------------------------------
---------------------- -----------------------------------------------
767 11,000
---------------------- -----------------------------------------------
---------------------- -----------------------------------------------
777 10,300
---------------------- -----------------------------------------------
Further, Boeing agrees to reimburse Customer for any Correction Costs incurred
as a result of the discovery of a Flight Discrepancy during the first flight of
the aircraft by Customer following delivery to the extent such Correction Costs
are not covered under a warranty provided by Boeing, the engine manufacturer or
any of Boeing's suppliers.
Should a Flight Discrepancy be detected by Customer which requires the return of
the Aircraft to Boeing's facilities at Seattle, Washington, so that Boeing may
correct such Flight Discrepancy, Boeing and Customer agree that title to and
risk of loss of such Aircraft will remain with Customer. In addition, it is
agreed that Boeing will have responsibility for the Aircraft while it is on the
ground at Boeing's facilities in Seattle, Washington, as is chargeable by law to
a bailee for mutual benefit, but Boeing shall not be chargeable for loss of use.
To be reimbursed for Correction Costs, Customer shall submit a written itemized
statement describing any flight discrepancies and indicating the Correction Cost
incurred by Customer for each discrepancy. This request must be submitted to
Boeing's Contracts Regional Director at Renton, Washington, within ninety (90)
days after the first flight by Customer.
Very truly yours,
THE BOEING COMPANY
By /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------------
Its ATTORNEY-IN-FACT
--------------------------------------
ACCEPTED AND AGREED TO this
Date: June 30 , 2000
-------------------------------
AMERICAN TRANS AIR, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Its Executive Vice President & CFO
------------------------------------------
2285-02
American Trans Air, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇ International Airport
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Subject: Spares Initial Provisioning
Reference: Purchase Agreement 2285 (the Purchase Agreement) between The
Boeing Company (Boeing) and American Trans Air, Inc. (Customer) relating to
Model 757-33N aircraft (the Aircraft)
This Letter Agreement is entered into on the date below, and amends and
supplements the Purchase Agreement. All terms used but not defined in this
Letter Agreement have the same meaning as in the Purchase Agreement.
1. APPLICABILITY.
-------------
This letter will apply to initial provisioning for the Model
757-33N Aircraft purchased by Customer under the Purchase Agreement.
2. INITIAL PROVISIONING MEETING.
----------------------------
Boeing will conduct an initial provisioning meeting (Initial
Provisioning Meeting) with Customer to establish mutually agreeable procedures
to accomplish Customer's initial provisioning of spare parts for the Aircraft.
The parties will agree, during the Initial Provisioning Meeting on the
operational data to be provided by Customer for Boeing's use in preparing its
quantity recommendations for initial provisioning of spare parts for the
Aircraft, exclusive of special tools, ground support equipment, engines and
engine parts (Provisioning Items). Such operational data to be provided by
Customer will be the data described in Chapter 6 of Boeing Manual D6-81834,
entitled "Spares Provisioning Products Guide" (Boeing Spares Provisioning
Products Guide) which will be furnished to Customer prior to the Initial
Provisioning Meeting. The parties will also agree on the provisioning
documentation to be provided by Boeing as described in Boeing Spares
Provisioning Products Guide (such data will be hereinafter referred to
collectively as the "Provisioning Data"). Boeing will provide instruction in the
use of the initial provisioning documentation. This instruction will be provided
in conjunction with the Initial Provisioning Meeting. In addition, the parties
will discuss spares ordering procedures and other matters related to the
provisioning for the Aircraft. The time and location for such Initial
Provisioning Meeting will be mutually agreed upon between the parties; however,
Boeing and Customer will use their best efforts to convene such meeting within
30 days after execution of the Purchase Agreement.
3. INITIAL PROVISIONING DOCUMENTATION.
----------------------------------
3.1 PROVISIONING DATA. Boeing will furnish Provisioning Data to
Customer on or about August 25, 2000. The Provisioning Data will be as complete
as possible and will cover Provisioning Items selected by Boeing for review by
Customer for initial provisioning for the Aircraft. The Provisioning Data will
set forth the prices for Provisioning Items which are Boeing Spare Parts and
such prices will be firm and remain in effect until the date or dates set forth
below in Paragraph 4.1, BOEING SPARE PARTS, by which orders must be placed with
Boeing. Boeing will, from time to time, until a date approximately 90 days
following delivery of the last Aircraft or until the delivery configuration of
each of the Aircraft is reflected in the Provisioning Data, whichever is later,
furnish to Customer revisions to the Provisioning Data.
3.2 PROVISIONING IPC. Boeing will, on or about August 18, 2000;
furnish to Customer a Boeing Illustrated Parts Catalog (IPC), hereinafter
referred to as the "Provisioning IPC". The Provisioning IPC will be as complete
as possible and will cover Provisioning Items selected by Boeing for review by
Customer for initial provisioning for the Aircraft. Boeing will, from time to
time, until a date approximately 90 days following delivery of the last
Aircraft, or until the delivery configuration of each of the Aircraft is
reflected in the Provisioning IPC, whichever is later, furnish to Customer
revisions to the Provisioning IPC.
3.3 BUYER FURNISHED EQUIPMENT (BFE) PROVISIONING DATA.
-------------------------------------------------
3.3.1 BOEING'S RESPONSIBILITY. Boeing will include BFE end -items in the
Provisioning Data and Provisioning IPC for BFE installed on Customer's Aircraft
provided such equipment has been installed on other Aircraft by Boeing and
Boeing has data on the BFE.
3.3.2 CUSTOMER'S RESPONSIBILITY. Customer will be responsible for ensuring
BFE data is provided to Boeing by the BFE supplier in a format acceptable to
Boeing for BFE not covered by 3.3.1 above. If the data is not provided to Boeing
in a timely manner and in a format acceptable to Boeing, such BFE equipment will
not be included in Boeing's Provisioning Data or IPC.
3.4 OTHER DATA. Boeing will submit to Customer listings of Raw Materials,
Standard Parts and Bulk Materials to be used by Customer in the maintenance and
repair of the Aircraft.
4. PURCHASE FROM BOEING OF SPARE PARTS AS INITIAL PROVISIONING FOR THE AIRCRAFT.
---------------------------------------------- -----------------------------
4.1 BOEING SPARE PARTS. Customer will place orders for Provisioning
Items by November 17, 2000, provided, however, that in those instances where
Boeing submits any revision to the Provisioning Data, Customer will place orders
for Boeing Spare Parts covered by such revision within 60 days following the
date of such submittal. At Customer's request, Boeing will process "controlled
shipments" by shipping full or partial quantities of an order on a schedule
specified by Customer, provided the final shipment is made no later than 24
months after receipt of the order.
4.2 SUPPLIER PROVISIONING ITEMS. Customer may place orders with
Boeing for Provisioning Items which are manufactured by suppliers or to their
detailed design and are covered by the Provisioning Data as initial provisioning
for the Aircraft. The price to Customer for any such supplier Provisioning Item
will be 112% of the supplier's quoted price to Boeing therefor. If Customer
elects to purchase such supplier Provisioning Items from Boeing, Customer will
place its orders therefor in accordance with the provisions of Paragraph 4.1,
BOEING SPARE PARTS.
4.3 GROUND SUPPORT EQUIPMENT AND SPECIAL TOOLS. Customer may place
orders with Boeing for ground support equipment (GSE) and special tools
manufactured by suppliers which Customer determines it will initially require
for maintenance, overhaul and servicing of the Aircraft and/or engines. The
price to Customer for such GSE or special tools will be one hundred twelve
percent (112%) of the supplier's quoted price to Boeing therefor. If Customer
elects to purchase such GSE and special tools from Boeing, Customer will place
its orders therefor by the date set forth in Paragraph 4.1, BOEING SPARE PARTS
or such later date as the parties may mutually agree.
4.4 SPARE ENGINES AND ENGINE SPARE PARTS. Customer may place orders
with Boeing for spare engines and/or engine spare parts which Customer
determines it will initially require for support of the Aircraft or for
maintenance and overhaul of the engines. The price to Customer for such spare
engines or such engine spare parts, will be 105% of the engine manufacturer's
quoted price to Boeing for the engine, and 112% of the engine manufacturer's
quoted price to Boeing for the engine spare parts. If Customer elects to
purchase such spare engines or engine spare parts through Boeing, Customer will
place its orders on a date to be mutually agreed upon during the Initial
Provisioning Meeting.
4.5 QEC KITS. Boeing will, on or about June 30, 2000, furnish to
Customer a listing of all components which could be included in the Quick Engine
Change (QEC) kits which may be purchased by Customer from Boeing. Customer
agrees to review such listing and indicate by marking on one copy of such
listing those components that Customer desires included in its QEC kits.
Customer will return such marked copy to Boeing within 30 days after Customer's
receipt of such listing. Within 30 days after Boeing's receipt of such marked
copy, Boeing will republish such listing to reflect only those components
selected by Customer and will provide copies of such republished listing to
Customer. Boeing will from time to time furnish revisions to such republished
listing until a date approximately 90 days after delivery of the last QEC kit
ordered by Customer for the Aircraft. Boeing will furnish to Customer as soon as
practicable a statement setting forth a firm price for the QEC kit configuration
selected by Customer. Customer agrees to place orders with Boeing for the QEC
kits for the Aircraft by August 25, 2000.
4.6 PAYMENT FOR PROVISIONING ITEMS. The payment provisions of the
Customer Services General Terms Agreement (CSGTA) between Boeing and Customer
will be applicable to Provisioning Items ordered by Customer from Boeing for the
Aircraft.
5. DELIVERY.
--------
Boeing will, insofar as reasonably possible, deliver to Customer
the Spare Parts ordered by Customer in accordance with the provisions of this
letter on dates reasonably calculated to conform to Customer's anticipated needs
in view of the scheduled deliveries of the Aircraft. Customer and Boeing will
agree upon the date to begin delivery of the Provisioning Spare Parts ordered in
accordance with this letter. Where appropriate, Boeing will arrange for shipment
of such Spare Parts, which are manufactured by suppliers, directly to Customer
from the applicable supplier's facility. The routing and method of shipment for
initial deliveries and all subsequent deliveries of such Spare Parts will be as
mutually agreed between Boeing and Customer.
6. SUBSTITUTION FOR OBSOLETE SPARE PARTS.
-------------------------------------
6.1 OBLIGATION TO SUBSTITUTE. In the event that, prior to delivery
of the first Aircraft pursuant to the Purchase Agreement, any Spare Part
purchased by Customer from Boeing in accordance with this letter is rendered
obsolete or unusable due to the redesign of the Aircraft or of any accessory,
equipment or part therefor, (other than a redesign at Customer's request),
Boeing will deliver to Customer new and usable Spare Parts in substitution for
such obsolete or unusable Spare Parts and Customer will return the obsolete or
unusable Spare Parts to Boeing. Boeing will credit Customer's account with
Boeing with the price paid by Customer for any such obsolete or unusable Spare
Part and will invoice Customer for the purchase price of any such substitute
Spare Part delivered to Customer.
6.2 DELIVERY OF OBSOLETE SPARE PARTS AND SUBSTITUTES THEREFOR.
Obsolete or unusable Spare Parts returned by Customer pursuant to this Item will
be delivered to Boeing at its Seattle Distribution Center, or such other
destination as Boeing may reasonably designate. Spare Parts substituted for such
returned obsolete or unusable Spare Parts will be delivered to Customer at
Boeing's Seattle Distribution Center, or such other Boeing shipping point as
Boeing may reasonably designate. Boeing will pay the freight charges for the
shipment from Customer to Boeing of any such obsolete or unusable Spare Part and
for the shipment from Boeing to Customer of any such substitute Spare Part.
7. REPURCHASE OF PROVISIONING ITEMS.
--------------------------------
7.1 OBLIGATION TO REPURCHASE. During a period commencing 1 year
after delivery of the first Aircraft under the Purchase Agreement, and ending 5
years after such delivery, Boeing will, upon receipt of Customer's written
request and subject to the exceptions in Paragraph 7.2, EXCEPTIONS, repurchase
unused and undamaged Provisioning Items which (i) were recommended by Boeing in
the Provisioning Data as initial provisioning for the Aircraft, (ii) were
purchased by Customer from Boeing, and (iii) are surplus to Customer's needs.
7.2 EXCEPTIONS. Boeing will not be obligated under Paragraph 7.1,
OBLIGATION TO REPURCHASE, to repurchase any of the following: (i) quantities of
Provisioning Items in excess of those quantities recommended by Boeing in the
Provisioning Data for the Aircraft, (ii) QEC Kits, Bulk Material Kits, Raw
Material Kits, Service Bulletin Kits, Standards Kits and components thereof
(except those components listed separately in the Provisioning Data), (iii)
Provisioning Items for which an order was received by Boeing more than 5 months
after delivery of the last Aircraft, (iv) Provisioning Items which have become
obsolete or have been replaced by other Provisioning Items as a result of (a)
Customer's modification of the Aircraft or (b) design improvements by Boeing or
the supplier (other than Provisioning Items which have become obsolete because
of a defect in design if such defect has not been remedied by an offer by Boeing
or the supplier to provide no charge retrofit kits or replacement parts which
correct such defect), and (v) Provisioning Items which become excess as a result
of a change in Customer's operating parameters, provided to Boeing pursuant to
the Initial Provisioning meeting in Paragraph 2, which were the basis of
Boeing's initial provisioning recommendations for the Aircraft.
7.3 NOTIFICATION AND FORMAT. Customer will notify Boeing, in
writing, when Customer desires to return Provisioning Items which Customer's
review indicates are eligible for repurchase by Boeing under the provisions of
this Repurchase of Provisioning Items paragraph. Customer's notification will
include a detailed summary, in part number sequence, of the Provisioning Items
Customer desires to return. Such summary will be in the form of listings, tapes,
diskettes or other media as may be mutually agreed between Boeing and Customer,
and will include part number, nomenclature, purchase order number, purchase
order date and quantity to be returned. Within 5 business days after receipt of
Customer's notification, Boeing will advise Customer, in writing, when Boeing's
review of such summary will be completed.
7.4 REVIEW AND ACCEPTANCE BY BOEING. Upon completion of Boeing's
review of any detailed summary submitted by Customer pursuant to Paragraph 7.3,
Boeing will issue to Customer a Material Return Authorization (MRA) for those
Provisioning Items Boeing agrees are eligible for repurchase in accordance with
this Repurchase of Provisioning Items paragraph. Boeing will advise Customer of
the reason that any spare part included in Customer's detailed summary is not
eligible for return. Boeing's MRA will state the date by which Provisioning
Items listed in the MRA must be redelivered to Boeing and Customer will arrange
for shipment of such Provisioning Items accordingly.
7.5 PRICE AND PAYMENT. The price of each Provisioning Item
repurchased by Boeing pursuant to this Repurchase of Provisioning Items
paragraph will be an amount equal to 100% of the original invoice price thereof.
In the case of Provisioning Items manufactured by a supplier which were
purchased pursuant to ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ FROM BOEING OF SPARE PARTS AS
INITIAL PROVISIONING FOR THE AIRCRAFT, hereof the repurchase price will not
include Boeing's 12% handling charge. Boeing will pay the repurchase price by
issuing a credit memorandum in favor of Customer which may be applied against
amounts due Boeing for the purchase of aircraft, Spare Parts, services or data.
7.6 DELIVERY OF PROVISIONING ITEMS. Provisioning Items repurchased
by Boeing pursuant to this Repurchase of Provisioning Items paragraph will be
delivered to Boeing F.O.B. at its Seattle Distribution Center, or such other
destination as Boeing may reasonably designate. Customer will pay the freight
charges for the shipment from Customer to Boeing of any such Provisioning Items.
8. OBSOLETE SPARE PARTS AND SURPLUS PROVISIONING ITEMS - TITLE AND RISK OF LOSS.
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Title to and risk of loss of any obsolete or unusable Spare Parts
returned to Boeing pursuant to Paragraph 6, SUBSTITUTION FOR OBSOLETE SPARE
PARTS, will pass to Boeing upon delivery thereof to Boeing. Title to and risk of
loss of any Spare Part substituted for an obsolete or unusable Spare Part
pursuant to Paragraph 6, SUBSTITUTION FOR OBSOLETE SPARE PARTS, will pass to
Customer upon delivery thereof to Customer. Title to and risk of loss of any
Provisioning Item repurchased by Boeing pursuant to ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇ OF
PROVISIONING ITEMS, will pass to Boeing upon delivery thereof to Boeing. With
respect to the obsolete or unusable Spare Parts which may be returned to Boeing
and the Spare Parts substituted therefor, pursuant to Paragraph 6, and the
Provisioning Items which may be repurchased by Boeing, pursuant to Paragraph 7,
the party which has risk of loss of any such Spare Part or Provisioning Item
will have the responsibility of providing any insurance coverage for it desired
by such party.
9. SUPPLIER SUPPORT.
----------------
Boeing has entered, or anticipates entering, into product support
agreements with suppliers (Boeing Suppliers) of major system components
manufactured by such Suppliers to be installed on the Aircraft (Supplier
Components). Such product support agreements commit, or are expected to commit,
the Boeing Suppliers to provide to Boeing's customers and/or such customer's
designees support services with respect to the Supplier Components which can be
reasonably expected to be required during the course of normal operation. This
support includes but is not limited to shelf-stock of certain spare parts,
emergency spare parts, timely delivery of spare parts, and technical data
related to the Supplier Components. Copies of such product support agreements
will be provided to Customer on or about September 22, 2000, in Boeing Document
D6-56115, Volumes 1 and 2. In the event Customer has used due diligence in
attempting to resolve any difficulty arising in normal business transactions
between Customer and a Boeing Supplier with respect to product support for a
Supplier Component manufactured by such Supplier and if such difficulty remains
unresolved, Boeing will, if requested by Customer, assist Customer in resolving
such difficulty. Assistance will be provided by the Customer Supplier Services
organization.
10. TERMINATION FOR EXCUSABLE DELAY.
-------------------------------
In the event of termination of the Purchase Agreement with respect
to any Aircraft pursuant to Article 7 of the AGTA, such termination will, if
Customer so requests by written notice received by Boeing within 15 days after
such termination, also discharge and terminate all obligations and liabilities
of the parties as to any Spare Parts which Customer had ordered pursuant to the
provisions of this letter as initial provisioning for such Aircraft and which
are undelivered on the date Boeing receives such written notice.
Very truly yours,
THE BOEING COMPANY
By /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------------------
Its ATTORNEY-IN-FACT
--------------------------------------
ACCEPTED AND AGREED TO this
Date: June 30 , 2000
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AMERICAN TRANS AIR, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
Its Executive Vice President & CFO
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2285-03
American Trans Air, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇▇▇ International Airport
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Subject: Flight Crew Training Spare Parts Support
Reference: Purchase Agreement 2285 (the Purchase Agreement) between The
Boeing Company (Boeing) and American Trans Air, Inc. (Customer) relating to
Model 757-33N aircraft (the Aircraft)
This Letter Agreement is entered into on the date below, and amends and
supplements the Agreement. All terms used but not defined in this
Letter Agreement have the same meaning as in the Agreement.
DEFINITION OF TERMS:
FLIGHT CREW TRAINING: Flight training conducted by Boeing and occurring
immediately following delivery of the Aircraft.
REMOVED PARTS: Parts removed from an Aircraft during Flight Crew Training.
REPLACEMENT PARTS: Parts taken from Boeing inventory and installed in an
Aircraft because no Standby Parts are available.
STANDBY PARTS: Parts which are owned by Customer and located at Customer's
designated storage area at Boeing to support Flight Crew Training.
TRAINING AIRCRAFT: The Aircraft delivered to Customer and used for Flight
Crew Training.
1. PROVISIONING OF SPARE PARTS
To support Flight Crew Training, Boeing agrees to provide
normal line maintenance and expendable spare parts at no charge on the
Training Aircraft; and Customer agrees to provide Standby Parts for the
Training Aircraft. The Standby Parts list, including part numbers,
exact quantities and on-dock dates, will be established during the
provisioning meeting.
If parts other than those discussed above fail on the Training
Aircraft during Flight Crew Training, Boeing will attempt to provide
Replacement Parts for those failed parts. If Boeing is unable to
provide Replacement Parts, Customer will be responsible for providing
those parts.
2. DISPOSITION OF REMOVED PARTS
With respect to Removed Parts, Boeing may:
(i) repair such Removed Parts, at no charge to Customer, and either retain
such parts as Standby Spare Parts or return the Removed Parts to Customer, at
Customer expense;
(ii) return the Removed Parts to Customer at Customer's expense; or
(iii) return the Removed Parts to the manufacturer for repair or
replacement under such manufacturer's warranty. Upon Boeing's receipt of the
repaired Removed Parts or their replacements, Boeing may retain such Removed
Parts or their replacements as Standby Parts or return such Removed Parts or
their replacements to Customer, at Customer's expense.
Any Removed Parts returned to Customer, or replacements, will
be accomplished in accordance with any written instructions from
Customer received by Boeing prior to such return.
3. REDELIVERY OF STANDBY PARTS
Standby Parts not installed in the Training Aircraft will be
redelivered to Customer on board the last aircraft used for Flight Crew
Training.
4. NON-PERFORMANCE BY CUSTOMER
If Customer's non-performance of obligations in this Letter
Agreement causes a delay in the Flight Crew Training, Customer will be
deemed to have agreed to any such delay in Flight Crew Training. In
addition, Boeing will have the right to:
(i) purchase Standby Spare Parts and invoice Customer for the price of such
Parts and for any necessary adjustment and calibration of such Parts;
(ii) cancel or reschedule the Flight Crew Training.
(iii) invoice Customer for any expenses, including but not limited to
ground handling expenses, maintenance costs and storage costs, that are directly
attributable to the delay in the Flight Crew Training.
5. CUSTOMER WARRANTY
Customer warrants that the Standby Parts will meet the
requirements of the Detail Specification and be in a condition to pass
Boeing's receiving inspection and functional test, and if not in a new
condition, will have an attached FAA Serviceable Parts Tag.
6. TITLE AND RISK OF LOSS
Title to and risk of loss of any Standby Parts or Removed
Parts will remain with Customer. Boeing will have only such liability
for Standby Parts and Removed Parts as a bailee for mutual benefit
would have, but will not be liable for loss of use. For Replacement
Parts, title will transfer to Customer at the time such part is
installed on the Training Aircraft.
Very truly yours,
THE BOEING COMPANY
By /s/ ▇.▇. ▇▇▇▇▇▇
--------------------------------
Its ATTORNEY-IN-FACT
--------------------------------
ACCEPTED AND AGREED TO this
Date: June 30 , 2000
----------------------
AMERICAN TRANS AIR, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Its Executive Vice President & CFO
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