Exhibit 10.43
A330-200 FREIGHTER PURCHASE AGREEMENT
Dated as of June 20, 2007
between
Airbus S.A.S.,
Seller
and
AYR FREIGHTER LLC
Buyer
AYR FREIGHTER LLC - A330-200F - June 2007
C O N T E N T S
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0 - DEFINITIONS
1 - SALE AND PURCHASE
2 - SPECIFICATION
2.1 Airframe Specification
2.2 Propulsion Systems
2.3 Milestones
3 - PRICE
3.1 Base Price of the Aircraft
3.2 Final Contract Price
3.3 Taxes, Duties and Imposts
4 - PRICE REVISION
4.1 Seller Price Revision Formula
4.2 Propulsion Systems Price Revision
5 - PAYMENT TERMS
5.1 Seller's Account
5.2 Predelivery Payments
5.3 Commitment Fee
5.4 Payment of Balance of the Final Contract Price
5.5 Application of Payments
5.6 Setoff Payments
5.8 Proprietary Interest
5.9 Payment in Full
6 - MANUFACTURE PROCEDURE - INSPECTION
AYR FREIGHTER LLC - A330-200F - June 2007
6.1 Manufacture Procedures
6.2 Inspection
6.3 Representatives
7 - CERTIFICATION
7.1 Type Certification
7.2 Export Certificate of Airworthiness
8 - TECHNICAL ACCEPTANCE
8.1 Technical Acceptance Process
8.2 Buyer's Attendance
8.3 Certificate of Acceptance
8.4 Finality of Acceptance
8.5 Aircraft Utilization
9 - DELIVERY
9.1 Delivery Schedule
9.2 Delivery
9.3 Flyaway
10 - EXCUSABLE DELAY AND TOTAL LOSS
10.1 Scope of Excusable Delay
10.2 Consequences of Excusable Delay
10.3 Termination on Excusable Delay
10.4 Total Loss, Destruction or Damage
10.5 Remedies
11 - INEXCUSABLE DELAY
11.1 Liquidated Damages
11.2 Renegotiation
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11.3 Termination
11.4 Remedies
12. WARRANTIES AND SERVICE LIFE POLICY
12.1 Warranty
12.2 Seller Service Life Policy
12.3 Supplier Warranties And Service Life Policies
12.4 Interface Commitment
12.5 Exclusivity Of Warranties
12.6 Duplicate Remedies
12.7 Transferability and Disclosure to Third Party Entity
12.8 Negotiated Agreement
13. PATENT AND COPYRIGHT INDEMNITY
13.1 Indemnity
13.2 Administration of Patent and Copyright Indemnity Claims
14 - TECHNICAL DATA AND FLIGHT AND GROUND INFORMATION SERVICES
14A Technical Data
14B Software Services
14C General Provisions
15 - SELLER REPRESENTATIVES
15.1 Customer Support Director
15.2 Customer Support Representatives
15.3 Buyer's Support
15.4 Temporary Assignment and Withdrawal of Resident Customer Support
Representative
15.5 Indemnities
Appendix A to Clause 15
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16.1 General
16.2 Scope
16.3 Training Organization / Location
16.4 Training Courses
16.5 Prerequisites and Conditions
16.6 Logistics
16.7 Flight Operations Training
16.8 Maintenance Training
16.9 Supplier and Engine Manufacturer Training
16.10 Training Aids for the Buyer's Training Organization
Appendix A to Clause ▇▇
▇▇▇▇▇▇▇▇ ▇ to Clause 16
17 - SUPPLIER PRODUCT SUPPORT
17.1 Equipment Supplier Product Support Agreements
17.2 Supplier Compliance
18 - BUYER FURNISHED EQUIPMENT
18.1 Administration
18.2 Requirements
18.3 Buyer's Obligation and Seller's Remedies
18.4 Title and Risk of Loss
18.5 Disposition of BFE Following Termination
19 - INDEMNITIES AND INSURANCE
19.1 Seller's Indemnities
19.2 Buyer's Indemnities
19.3 Notice and Defense of Claims
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19.4 Insurance
20 - ASSIGNMENTS AND TRANSFERS
20.1 Assignments by Buyer
20.2 Assignments for Predelivery Payments and Delivery Financing
20.3 Assignments on Sale, Merger or Consolidation
20.4 Designations by Seller
20.5 Transfer of Rights and Obligations upon Reorganization
21 - TERMINATION
21.1 Termination Events
21.6 Information Covenants
22 - MISCELLANEOUS PROVISIONS
22.1 Data Retrieval
22.2 Notices
22.3 Waiver
22.4 International Supply Contract
22.5 Certain Representations Of The Parties
22.6 Interpretation And Law
22.7 Waiver of Jury Trial
22.8 No Representations outside of this Agreement.
22.9 Confidentiality
22.10 Severability
22.11 Entire Agreement
22.12 Inconsistencies
22.13 Language
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22.14 Counterparts
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C O N T E N T S
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EXHIBITS
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EXHIBIT A A330-200F STANDARD SPECIFICATION
EXHIBIT B-1 FORM OF SPECIFICATION CHANGE NOTICE
EXHIBIT B-2 SPECIFICATION CHANGE NOTICES
EXHIBIT B-3 FORM OF MANUFACTURER SPECIFICATION CHANGE NOTICE
EXHIBIT C SELLER SERVICE LIFE POLICY - ITEMS COVERED
EXHIBIT D FORM OF CERTIFICATE OF ACCEPTANCE
EXHIBIT E FORM OF ▇▇▇▇ OF SALE
EXHIBIT F TECHNICAL DATA INDEX
EXHIBIT G SELLER PRICE REVISION FORMULA
EXHIBIT H PROPULSION SYSTEMS PRICE REVISION FORMULA
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P U R C H A S E A G R E E M E N T
This agreement is made this 20th day of June 2007
Between AIRBUS S.A.S. organized and existing under the laws of the
Republic of France, having its registered office located at ▇,
▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (hereinafter referred
to as the "Seller")
and AYR FREIGHTER LLC a limited liability company organized and existing
under the laws of the State of Delaware (hereinafter referred to as the
"Buyer").
WHEREAS the Buyer wishes to purchase and the Seller is willing to sell
fifteen (15) Airbus A330-200 Freighter model aircraft, on the terms and
conditions herein provided,
NOW THEREFORE IT IS AGREED AS FOLLOWS:
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0 - DEFINITIONS
For all purposes of this agreement, except as otherwise expressly
provided or unless the context otherwise requires, the following terms
will have the following meanings:
Affiliate - with respect to any person or entity, any other person or
entity directly or indirectly controlling, controlled by or under common
control with such person or entity.
Agreement - this A330-200 Freighter Purchase Agreement, including all
exhibits and appendixes attached hereto, as the same may be amended or
modified and in effect from time to time.
Aircraft - any or all of the fifteen (15) firm A330-200 Freighter
aircraft for which the delivery schedule is set forth in Clause 9.1.1 to
be sold by the Seller and purchased by the Buyer pursuant to this
Agreement, together with all components, equipment, parts and accessories
installed in or on such aircraft and the Propulsion Systems installed
thereon upon delivery.
Aircraft Training Services - all aircraft training courses and training
support provided to the Buyer pursuant to this Agreement, including
flight training, line training, flight assistance, line assistance, and
maintenance support.
Airframe - any A330-200 Freighter Aircraft, excluding the Propulsion
Systems therefore.
ANACS - Airbus North America Customer Services, Inc., a corporation
organized and existing under the laws of Delaware, having its registered
office located at ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or
any successor thereto.
ATA Specification - specification issued by the Air Transport
Association of America relating various aircraft including
manufacturers' technical data, software programs, integrated data
processing, spare parts shipment, industry-wide communication system
linking suppliers and users for the purposes of spares provisioning,
purchasing, order administration, invoicing and information or data
change.
Aviation Authority - when used with respect to any jurisdiction, the
government entity that, under the laws of such jurisdiction, has control
over civil aviation or the registration, airworthiness or operation of
civil aircraft in such jurisdiction.
AYR FREIGHTER LLC - A330-200F - June 2007 10
Balance of the Final Contract Price - means the amount payable by the
Buyer to the Seller on the Delivery Date for an Aircraft after deducting
from the Final Contract Price for such Aircraft the amount of all
Predelivery Payments received by the Seller from the Buyer in respect of
such Aircraft on or before the Delivery Date for such Aircraft.
Base Price - for any Aircraft, Airframe, SCNs or Propulsion Systems, as
more completely defined in Clause 3.1.
BFE Definition - as defined in Clause 18.1.1.
Business Day - with respect to any action to be taken hereunder, a day
other than a Saturday, Sunday or other day designated as a holiday in the
jurisdiction in which such action is required to be taken.
Buyer Furnished Equipment (BFE) - for any Aircraft, all the items of
equipment that will be furnished by the Buyer and installed in the
Aircraft by the Seller, as defined in the Specification.
Commitment Fee - each of the commitment fee amounts described in Clause
5.3.
Customer Originated Changes (COC) - as defined in Clause 14.A.8.
Delivery - the transfer of title to the Aircraft from the Seller to the
Buyer, in accordance with Clause 9.
Delivery Date - the date on which Delivery occurs.
Delivery Location - the facilities of the Seller at the location of
final assembly of the Aircraft.
Development Changes - as defined in Clause 2.1.3.
DGAC - the Direction Generale de l'Aviation Civile of France, or any
successor thereto.
EASA - European Aviation Safety Agency or any successor thereto.
Excusable Delay - delay in delivery or failure to deliver an Aircraft
due to causes as defined in Clause 10.1.
Export Certificate of Airworthiness - an export certificate of
airworthiness, or, with respect to Aircraft to be registered in a Member
State of the European Community, the Statement of Conformity, issued by
the Aviation Authority of the Delivery Location.
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FAA - the U.S. Federal Aviation Administration, or any successor thereto.
Final Contract Price - as defined in Clause 3.2.
Goods and Services - means any goods, excluding Aircraft, and services
that may be purchased by the Buyer from the Seller or its designee.
Inexcusable Delay - as defined in Clause 11.1.
In-house Warranty Repair- as referred to in Clause 12.1.8.
In-house Warranty Labor Rate - as defined in Clause 12.1.8(v)(b).
Initial Operator - the first Operator of an Aircraft in commercial
revenue service following its Delivery hereunder.
Interface Problem - as defined in Clause 12.4.1.
LIBOR - the London Interbank Offered Rate for each stated interest
period, determined on the basis of the offered rates for six-month
deposits in US dollars, appear on the Reuters Screen LIBO Page as of
11:00 a.m., London time, on the day that is two (2) days (other than a
Business Day on which banking institutions are authorized to close in the
London) before the first day of an interest period. If at least two (2)
such offered rates appear on the Reuters Screen LIBO Page, the rate for
that interest period will be the arithmetic mean of such offered rates
rounded to the nearest one-hundred thousandth of a basis point. If only
one (1) offered rate appears, the rate for that interest period will be
"LIBOR" as quoted by National Westminster Bank, plc. "Reuters Screen LIBO
Page" means the display designated as page "LIBO" on the Reuters Monitor
Money Rates Service (or any successor to such page or service).
Manufacturer Specification Change Notice (MSCN) -as defined in Clause
2.1.4.
Operator - Any operator of the Aircraft following Delivery hereunder.
Predelivery Payment - any of the payments made in accordance with Clause
5.2.
Predelivery Payment Reference Price - as defined in Clause 5.2.2.
Propulsion Systems - as set forth in Clause 2.2.
Propulsion Systems Price Revision Formula - the Propulsion Systems price
revision formula set forth in Exhibit H hereto.
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Ready for Delivery - when (i) the Technical Acceptance Process (as
defined in Clause 8.1.1) has been successfully completed for an Aircraft
and (ii) the Export Certificate of Airworthiness has been issued for such
Aircraft.
Reference Price - as set forth in Clause 3.1.3.
Scheduled Delivery Month - as defined in Clause 9.1.1.
Seller Price Revision Formula - the price revision formula set forth in
Exhibit G.
Seller's Representatives - the representatives of the Seller referred to
in Clause 15.
Service Life Policy - as set forth to in Clause 12.2.
Specification - the Standard Specification as amended by the SCNs set
forth in Exhibit B-2 hereto as may be further amended or modified in
accordance with this Agreement.
Specification Change Notice (SCN) - as described in Clause 2.1.2.
Standard Specification - the A330-200F standard specification document
with reference G 000 0F000, Issue 1, dated January 31, 2007, published by
the Seller, a copy of which is annexed as Exhibit A hereto.
Supplier - any supplier of Supplier Parts.
Supplier Part - any component, equipment, accessory or part installed in
an Aircraft at the time of Delivery thereof, not including the Propulsion
Systems or Buyer Furnished Equipment, for which there exists a Supplier
Product Support Agreement.
Supplier Product Support Agreement - an agreement between the Seller and
a Supplier containing, among other things, enforceable and transferable
warranties (and in the case of landing gear suppliers, service life
policies for selected structural landing gear elements).
Technical Data - as set forth in Clause 14.A and Exhibit F.
Termination Event - as defined in Clause 21.1.
Total Loss - as defined in Clause 10.4
Training Conference - as defined in Clause 16.4.1.
Type Certificate - as defined in Clause 7.1
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Warranted Part - as defined in Clause 12.1.1.
Warranty Claim - as defined in Clause 12.1.7(v).
The terms "herein," "hereof" and "hereunder" and other words of similar
import refer to this Agreement, and not a particular Clause thereof. The
definition of a singular in this Clause 0 will apply to plurals of the
same words.
Except as provided in Clause 22.6.4, references in this Agreement to an
exhibit, schedule, article, section, subsection or clause refer to the
appropriate exhibit or schedule to, or article, section, subsection or
clause in this Agreement.
Each agreement defined in this Clause 0 will include all appendices,
exhibits and schedules thereto. If the prior written consent of any
person is required hereunder for an amendment, restatement, supplement or
other modification to any such agreement and the consent of each such
person is obtained, references in this Agreement to such agreement shall
be to such agreement as so amended, restated, supplemented or modified.
References in this Agreement to any statute will be to such statute as
amended or modified and in effect at the time any such reference is
operative.
The term "including" when used in this Agreement means "including without
limitation" except when used in the computation of time periods.
Technical and trade terms not otherwise defined herein will have the
meanings assigned to them as generally accepted in the aircraft
manufacturing industry.
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1 - SALE AND PURCHASE
The Seller will sell and deliver to the Buyer, and the Buyer will
purchase and take delivery of the Aircraft from the Seller, subject
to the terms and conditions in this Agreement.
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2 - SPECIFICATION
2.1 Airframe Specification
The Airframe will be manufactured in accordance with the
Specification.
2.1.1 Specification Amendment
The Seller and Buyer understand and agree that the Specification
may be amended following signature of this Agreement in
accordance with the terms of this Clause 2.
2.1.2 Specification Change Notice
The Specification may be amended by written agreement between the
Seller and Buyer in an SCN. Each SCN will be substantially in the
form set out in Exhibit B-1 and will set out such SCN's scope of
implementation and will also set forth, in detail, the particular
change to be made to the Specification and the effect, if any, of
such change on design, performance, weight, or Scheduled Delivery
Month of the Aircraft affected thereby, and on the text of the
Specification. An SCN may result in an adjustment of the Base
Price of the Aircraft, which adjustment if any, will be specified
in the SCN.
2.1.3 Development Changes
The Specification may also be amended to incorporate changes
deemed necessary by the Seller to improve the Aircraft, prevent
delay or ensure compliance with this Agreement ("Development
Changes"), as set forth hereunder.
2.1.4 Manufacturer Specification Change Notice
Development Changes will result in amendments to the
Specification by the way of such Manufacturer Specification
Change Notice ("MSCN") when such development change has an effect
on design, performance, weight, price or Scheduled Delivery Month
of an Aircraft. MSCNs will be provided to the Buyer, will be
substantially in the form set out in Exhibit B-3 hereto and will
set out such MSCN's scope of implementation as well as, in
detail, the particular change to be made to the Specification,
and the effect, if any, of such change on design, performance,
weight, price, Scheduled Delivery Month of the Aircraft affected
thereby, interchangeability or replaceability requirements of the
Specification and on the text of the Specification. The Buyer's
consent to an MSCN is not required if such MSCN (1) does not
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adversely affect design, performance, weight, price, Delivery
Date of the Aircraft affected thereby, interchangeability or
replaceability requirements of the Specification or (2) is
necessitated by an Aviation Authority directive or by equipment
obsolescence.
If the MSCN does adversely affect the design, performance,
weight, price, Delivery Date of the Aircraft affected thereby or
the interchangeability or replaceability requirements of the
Specification, and provided that the MSCN is not necessitated by
an Aviation Authority directive or by equipment obsolescence, the
Seller will notify the Buyer of a reasonable period of time
following such notice in which the Buyer must accept or reject
such MSCN. If the Buyer does not notify the Seller of an
objection to the MSCN within the time period specified, the MSCN
will be deemed accepted by the Buyer and the corresponding
modification will be accomplished.
2.2 Propulsion Systems
2.2.1 Available Propulsion Systems
Each of the Aircraft shall be equipped with any of the set of
two Rolls ▇▇▇▇▇ ▇▇▇▇▇ 772B engines, or two ▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ engines.
(in each case the "Propulsion Systems"), as shall be selected by
the Buyer pursuant to sub-Clause 2.2.2 below. Each Propulsion
Systems shall include nacelles, thrust reversers and associated
standard equipment, installed on such Aircraft on Delivery.
2.2.2 Propulsion Systems Selection
The Buyer shall notify the Seller of its choice of Propulsion
Systems in writing no later than on the first (1st) day of the
twentieth (20th) month prior to the Scheduled Delivery Month of
each of the Aircraft.
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2.3 Milestones
2.3.1 Customization Milestones Chart
Within a reasonable period following signature of the Agreement,
the Seller will provide the Buyer with a Customization Milestones
Chart setting out how far in advance of the Scheduled Delivery
Month of the Aircraft an SCN must be executed in order to
integrate into the Specification any items requested by the Buyer
from the Specification Changes Catalogues made available by the
Seller (the "Customization Milestone Chart").
2.3.2 Contractual Definition Freeze
The Customization Milestone Chart shall in particular define the
Contractual Definition Freeze ("CDF") date, corresponding to the
latest date prior to an Aircraft Scheduled Delivery Month by
which all SCNs need to have been executed by the Buyer to enable
their incorporation into the manufacturing of the Aircraft.
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3 - PRICE
3.1 As provided in Clause 1 of Schedule 1
3.2 Final Contract Price
The Final Contract Price of an Aircraft will be the sum of:
(i) the Base Price of the Airframe, as adjusted to the applicable
Delivery Date of such Aircraft in accordance with the Seller
Price Revision Formula;
(ii) the price of any SCNs for the Airframe entered into after
the date of signature of this Agreement, as adjusted to the
Delivery Date in accordance with the Seller Price Revision
Formula;
(iii) the Propulsion Systems Reference Price as revised as of the
Delivery Date in accordance with Clause 4.2;
(iv) the price of any SCNs for the Propulsion Systems Reference
Price entered into after the date of signature of this Agreement,
as adjusted to the Delivery Date in accordance with the
Propulsion Systems Price Revision Formula; and
(v) any other amount resulting from any other provisions of this
Agreement and/or any other written agreement between the Buyer
and the Seller relating to the Aircraft.
3.3 Taxes, Duties and Imposts
3.3.1 The Seller will pay any and all taxes, duties, imposts or similar
charges of any nature whatsoever, except for taxes based on or
measured by the income of the Buyer or any taxes of a similar
nature or charges levied against the Buyer or its Affiliates for
the privilege of doing business in any jurisdiction, that are (i)
imposed upon the Buyer, (ii) imposed upon the Seller with an
obligation on the Buyer to withhold or collect the amount thereof
from the Seller or (iii) imposed upon the Buyer with an
obligation on the Seller to withhold or collect such amount from
the Buyer, and that are levied, assessed, charged or collected
for or in connection with the fabrication, manufacture,
modification, assembly, sale, delivery, use of or payment under
this Agreement for any Aircraft, component, accessory, equipment
or part delivered or furnished hereunder, provided such taxes,
duties, imposts or similar charges have been promulgated and are
enforceable under the laws of the country of the Delivery
Location on or before Delivery of such Aircraft.
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3.3.2 The Buyer will pay any and all taxes, duties, imposts or similar
charges of any nature whatsoever, except for taxes based on or
measured by the income of the Seller or any taxes of a similar
nature or charges levied against the Seller or its Affiliates for
the privilege of doing business in any jurisdiction, that are (i)
imposed upon the Seller, (ii) imposed upon the Buyer with an
obligation on the Seller to collect the amount thereof for the
Buyer or (iii) imposed upon the Seller with an obligation for the
Buyer to withhold such amount from the Seller, and that are
levied, assessed, charged or collected for or in connection with
the fabrication, manufacture, modification, assembly, sale,
delivery or use of or payment under this Agreement for any
Aircraft, component, accessory, equipment or part delivered or
furnished hereunder, provided such taxes, duties, imposts or
similar charges have been levied, assessed, charged or collected
under laws promulgated and enforceable in countries other than
the country of the Delivery Location.
3.3.3 The Seller will arrange for the export of the Aircraft from the
country of the Delivery Location and will pay any customs duties,
taxes and fees required to be paid with respect to such
exportation of the Aircraft.
3.3.4 The Buyer will arrange for the import of the Aircraft into any
country or jurisdiction and will pay any customs duties, taxes
and fees required to be paid with respect to such importation of
the Aircraft.
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4 - PRICE REVISION
4.1 Seller Price Revision Formula
The Base Prices of the Airframe and of the SCNs are subject to
revision up to and including the Delivery Date in accordance with
the Seller Price Revision Formula as set forth in Exhibit G
hereto.
4.2 Propulsion Systems Price Revision
4.2.1 Each Propulsion Systems Reference Price is subject to revision in
accordance with the applicable Propulsion Systems Price Revision
Formula up to and including the Delivery Date as set forth in
Exhibit H hereto.
4.2.2 Modification of Propulsion Systems Reference Price and Propulsion
Systems Price Revision Formula
The Reference Price of the Propulsion Systems, the prices of the
related equipment and the Propulsion Systems Price Revision
Formula are based on information received from the respective
Propulsions Systems manufacturers and are subject to amendment by
the Propulsion Systems manufacturer at any time prior to
Delivery. If the Propulsion Systems manufacturers make any such
amendment, the amendment will be deemed to be incorporated into
this Agreement and the Reference Price of the applicable
Propulsion Systems, the prices of the related equipment and the
Propulsion Systems Price Revision Formulae will be adjusted
accordingly. The Seller agrees to notify the Buyer as soon as the
Seller receives notice of any such amendment from any of the
Propulsion Systems manufacturers.
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5 - PAYMENT TERMS
5.1 Seller's Account
The Buyer will pay the Predelivery Payments, the Balance of the
Final Contract Price and any other amount due hereunder in
immediately available funds in United States dollars to: AIRBUS
S.A.S., Acct. No. 0121 635 000 100 CAYLON, Swift ▇▇▇▇▇▇▇▇, ABA
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇,
or to such other account as may be designated by the Seller.
5.2 Predelivery Payments
5.2.1 Predelivery Payments are non-refundable and will be paid by the
Buyer to the Seller for Aircraft. The aggregate Predelivery
Payment amount is thirty percent (30 %) of the Predelivery
Payment Reference Price defined below in Clause 5.2.2.
5.2.2 The Predelivery Payment Reference Price for an Aircraft to be
delivered in calendar year T is defined below:
A = Pb (1 + 0.03N)
where
A = the Predelivery Payment Reference Price for an Aircraft to be
delivered in calendar year T.
Pb = the Base Price of the Aircraft as defined in Clause 3 above.
N = (T - 2006).
T = the year of delivery of the relevant Aircraft.
In the absence of a Propulsion System selection by the Buyer for
any Aircraft, the Base Price of the Aircraft to calculate the
Predelivery Payment Reference Price with above formula shall be
the sum of:
(i) the Base Price of the Airframe and
(ii) the Rolls ▇▇▇▇▇ ▇▇▇▇▇ 772B Propulsion System Base Price.
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5.2.3 As provided in Clause 2 of Schedule 1
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5.2.4 The Seller will be entitled to hold and use any Predelivery
Payment as absolute owner thereof, subject only to the obligation
to deduct an amount equal to Predelivery Payments from the Final
Contract Price, when calculating the Balance of the Final
Contract Price. The Seller will be under no obligation to
segregate any Predelivery Payment, or any amount equal thereto,
from the Seller's funds generally.
5.2.5 Specification Change Notice Predelivery Payments
The Seller shall be entitled to request Predelivery Payments for
each SCN executed after signature of this Agreement:
(i) for each SCN executed prior to the first day of the fifteenth
(15th) month prior to the Scheduled Delivery Month, this
Predelivery Payment shall correspond to a percentage of the SCN
price equal to the aggregate percentage of Predelivery Payments
as defined in Clause 5.2.1 above and shall be paid on the first
day of the twelfth (12th) month prior to the Scheduled Delivery
Month;
(ii) for each SCN executed between fifteen (15) and twelve (12)
months prior to the Scheduled Delivery Month this payment shall
amount to fifty percent (50 %) of the SCN price and shall be paid
on the first day of the sixth (6) month prior to the Scheduled
Delivery Month ;
(iii) each of the above Predelivery Payments shall be credited
against the Final Contract Price of the corresponding Aircraft.
5.3 Commitment Fee
The Seller acknowledges that it has received from the Buyer the
sum of USD 11,250,000 (U.S. dollars -eleven million two hundred
fifty thousand), which represents a non-refundable commitment fee
of USD 750,000 (US dollars - seven hundred fifty thousand) for
each Aircraft (the "Commitment Fee"). The Commitment Fee paid
with respect to each particular Aircraft will be credited without
interest against the first Predelivery Payment for such Aircraft.
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5.4 Payment of Balance of the Final Contract Price
Concurrent with the Delivery of each Aircraft, the Buyer will pay
to the Seller the Balance of the Final Contract Price for the
applicable Aircraft. The Seller's receipt of the full amount of
all Predelivery Payments and of the Balance of the Final Contract
Price, including any amounts due under Clause 5.7, will be a
condition precedent to the Seller's obligation to deliver such
Aircraft to the Buyer.
5.5 Application of Payments
Notwithstanding any other rights the Seller may have at contract
or at law, the Buyer and the Seller hereby agree that should any
amount under this Agreement become due and payable by the Buyer,
and not be paid in full in immediately available funds on the
date due, then the Seller will have the right to debit and apply,
in whole or in part, the Predelivery Payments paid to the Seller
by the Buyer against such unpaid amount. The Seller will promptly
notify the Buyer in writing after such debiting and application,
and the Buyer will immediately pay to the Seller the amount
required to comply with Clause 5.2.3.
5.6 Setoff Payments
Notwithstanding anything to the contrary contained herein, before
being required to make any payments, the Seller will have the
right to apply any and all sums previously paid by the Buyer to
the Seller with respect to an Aircraft to the payment of any
other amounts the Buyer owes to the Seller or any Affiliate
thereof under this Agreement. No other setoff by the Seller shall
be permitted.
5.7 Overdue Payments
If any payment due to the Seller under this Agreement including
but not limited to any Predelivery Payment, commitment fee,
option fees for the Aircraft as well as any payment due to the
Seller for any spare parts, data, documents, training and
services, is not received on the due date, without prejudice to
the Seller's other rights under this Agreement and at law, the
Seller shall be entitled to interest for late payment calculated
on the amount due from and including the due date of payment up
to and including the date when the payment is received by the
Seller at a rate equal to the LIBOR plus three percent (3 %) per
year (part year to be prorated).
All interest payable under this Agreement shall be compounded
monthly and calculated on the basis of the actual number of days
elapsed in the month and assuming a thirty (30) day month and a
three hundred and sixty (360) day year.
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5.8 Proprietary Interest
Notwithstanding any provision of law to the contrary, the Buyer
will not, by virtue of anything contained in this Agreement
(including, without limitation, any Commitment Fee or Predelivery
Payments hereunder, or any designation or identification by the
Seller of a particular Aircraft as an Aircraft to which any of
the provisions of this Agreement refer) acquire any proprietary,
insurable or other interest whatsoever in (or, except as
expressly agreed in writing, including this Agreement, between
the Seller and Buyer, have any liability with respect to)any
Aircraft before Delivery of and payment for such Aircraft, as
provided in this Agreement.
5.9 Payment in Full
The Buyer's obligation to make payments to the Seller hereunder
will not be affected by and will be determined without regard to
any setoff, counterclaim, recoupment, defense or other right that
the Buyer may have against the Seller or any other person and all
such payments will be made without deduction or withholding of
any kind other than any U.S., State or local income withholding
Taxes or income withholding taxes imposed by any Seller
jurisdiction. The Buyer shall ensure that the sums received by
the Seller under this Agreement will be equal to the full amounts
expressed to be due the Seller hereunder, without deduction or
withholding on account of and free from any and all taxes,
levies, imposts, duties or charges of whatever nature, except
that if the Buyer is compelled by law to make any such deduction
or withholding (other than U.S. federal, state or local income
withholding taxes or Seller jurisdiction income withholding
taxes), the Buyer will pay such additional amounts, to the Seller
as may be necessary so that the net amount received by the Seller
after such deduction or withholding will equal the amounts that
would have been received in the absence of such deduction or
withholding.
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6 - MANUFACTURE PROCEDURE - INSPECTION
6.1 Manufacture Procedures
The Airframe will be manufactured in accordance with the
requirements of the laws of the jurisdiction of incorporation of
the Seller or of its relevant Affiliate as enforced by the
Aviation Authority of such jurisdiction.
6.2 Inspection
6.2.1 All work to be carried out on the Aircraft and all materials and
parts thereof will be open to inspection during business hours by
duly authorized representatives of the Buyer or its designee at
the respective works of the relevant manufacture facility of the
Seller or the Affiliates and, if possible, at the works of their
respective subcontractors. These representatives will have access
to such relevant technical data as are reasonably necessary for
this purpose (except that, if access to any part of the
respective works where construction is in progress or materials
or parts are stored is restricted for security reasons, the
Seller or the Affiliate or relevant subcontractors will be
allowed a reasonable time to make the items available for
inspection elsewhere). The actual detailed inspection of the
Aircraft, materials and parts thereof will take place only in the
presence of the respective inspection department personnel of the
Seller or their subcontractors. The procedures for such
inspections will be agreed on with the Buyer before any
inspection.
6.2.2 All inspections, examinations and discussions with the Seller's,
its Affiliate or relevant subcontractors' or their respective
subcontractors' engineering or other personnel by the Buyer and
its representatives will be performed in such a manner as not to
unreasonably delay or hinder either the work to be carried out on
the Aircraft or the proper performance of this Agreement. In no
event will the Buyer or its representatives be permitted to
inspect any aircraft other than the Aircraft.
6.3 Representatives
For the purposes of Clause 6.2, starting at a mutually agreed
date until Delivery of the last Aircraft, the Seller will furnish
suitable space, office equipment and facilities in or
conveniently located with respect to the Delivery Location for
the use of not more than four (4) representatives of the Buyer
during the aforementioned period. The Seller will provide access
to electronic mail, facsimile and a telephone at the Buyer's cost
to be invoiced on a monthly basis.
AYR FREIGHTER LLC - A330-200F - June 2007 27
7 - CERTIFICATION
Except as set forth in this Clause 7, the Seller will not be
required to obtain any certificate or approval with respect to
the Aircraft.
7.1 Type Certification
The Aircraft shall have been type certificated under European
Aviation Safety Agency (EASA) procedures in the transport
category. The Seller shall have obtained the relevant type
certificate (the "Type Certificate") to allow the issuance of the
Export Certificate of Airworthiness. The Seller confirms that it
shall have obtained an FAA Type Certificate (transport category)
for the Aircraft pursuant to Part 21 and in compliance with the
applicable provisions of Federal Aviation Regulations (`FAR")
Part 25.
7.2 Export Certificate of Airworthiness
7.2.1 Each Aircraft shall be delivered to the Buyer with the Export
Certificate of Airworthiness shall have incorporated all means of
compliance with all applicable EASA and FAA Airworthiness
Directives, on a terminating basis if available, and in a
condition enabling the Buyer (or an eligible person under then
applicable law) to obtain at time of Delivery a standard
airworthiness certificate issued pursuant to FAR Part 21.
However, the Seller will have no obligation to make and will not
be responsible for any costs of alterations or modifications to
such Aircraft to enable such Aircraft to meet FAA or U.S.
Department of Transportation requirements for specific operation
on the Buyer's routes, except as may be provided for in this
Agreement, whether before, at or after Delivery of any Aircraft.
7.2.2 If any law or regulation is promulgated or becomes effective or
an interpretation of any law is issued before an Aircraft
purchased under this Agreement is Ready for Delivery to the Buyer
and such law, regulation or interpretation requires any change to
the Specification as it may be modified pursuant to Clause 2 in
order to obtain the Type Certificates and Export Certificate of
Airworthiness as hereinabove provided for such Aircraft (a
"Change in Law"), the Seller shall make the requisite variation
or modification.
The cost of implementing the required modifications referred to
in Clause 7.2.2 shall be:
(i) for the account of the Seller if a Change in Law became
effective before the date of this Agreement, and
(ii) shared equally by the Seller and the Buyer if Change in Law
becomes effective after the date of this Agreement but before the
Aircraft is Ready for Delivery.
(iii) for the Buyer for any operational requirements to be
complied with by
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any Operator or changes other than those set forth in
sub-paragraph (i) and (ii) above.
If the Seller anticipates that the Scheduled Delivery Month of
any Aircraft will be postponed by reason of such change it shall
promptly notify the Buyer and the provisions of Clause 10
(Excusable Delay) will apply.
In the event of such a variation or modification being made
pursuant to this sub-Clause, the parties hereto shall sign a SCN,
in which the effects, if any, upon performances, weights,
interchangeability and Delivery shall be specified and agreed
between the Buyer and the Seller.
Nothing in Clause 7.2.2 will require the Seller to make any
changes or modifications to, or to make any payments or take any
other action with respect to, any Aircraft that is Ready for
Delivery before the compliance date of any law or regulation
referred to in Clause 7.2.2. Any such changes or modifications
made to an Aircraft after it is Ready for Delivery will be at the
Buyer's expense.
7.2.3 Notwithstanding the provisions of sub-Clause 7.2.2, if any such
change is applicable to Propulsion Systems, engine accessories,
quick engine change units or thrust reversers, or to Buyer
Furnished Equipment, the costs of such change shall be borne in
accordance with such arrangements as may be made separately
between the Buyer and the Propulsion System and/or Buyer
Furnished Equipment manufacturers.
7.2.4 The Seller shall as far as practicable take into account the
information available to it concerning any proposed new
regulations of EASA, the FAA and the relevant Operator's Aviation
Authorities in order to minimize the costs of changes which may
appear necessary to obtain the Export Certificate of
Airworthiness after such proposed new regulations have become
mandatory.
7.2.5 In the event that type certification has not been previously
undertaken by the Seller in a country where the Buyer intends to
lease an Aircraft to an Operator, then subject to due notice from
the Buyer to the Seller at least nine months prior to the month
of Delivery of the relevant Aircraft (or such lesser period that
the Seller acting reasonably agrees is practicable), the Seller
shall use all reasonable efforts to promptly obtain such type
certification, and shall not charge the Buyer with its costs for
the necessary documentation and justification work to demonstrate
the aircraft specification compliance for such type certification
purposes.
7.2.6 Upon the Buyer's request, to be provided to the Seller with
adequate notice, the Seller shall identify the changes that may
be required in order for an Aircraft to be eligible for a
standard airworthiness certificate to be
AYR FREIGHTER LLC - A330-200F - June 2007 29
issued by the airworthiness authority designated by the Buyer for
the registration of such Aircraft (the "Designated Airworthiness
Authority").
Where the Buyer's Designated Airworthiness Authority requires a
modification to comply with additional import aviation
requirements prior to the issuance of the Export Certificate of
Airworthiness, the Seller shall incorporate such modification at
reasonable costs to be borne by the Buyer, provided that the
Buyer's request is made at a time reasonably in advance of the
Scheduled Delivery Month for such Aircraft.
Such changes shall be made the subject of an SCN to be agreed
between the parties, which shall specify the corresponding
effect, if any, on the price and time of Delivery of the relevant
Aircraft.
If the Seller anticipates that the Scheduled Delivery Month of
the relevant Aircraft will be postponed by reason of such change
it shall promptly notify the Buyer and the Scheduled Delivery
Month of such Aircraft as provided in sub-Clause 9.1 will be
extended to the extent of such postponement as agreed in such
SCN.
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8 - TECHNICAL ACCEPTANCE
8.1 Technical Acceptance Process
8.1.1 Prior to Delivery, the Aircraft will undergo a technical
acceptance process developed by the Seller (the "Technical
Acceptance Process"). Successful completion of the Technical
Acceptance Process will demonstrate the satisfactory functioning
of the Aircraft and will be deemed to demonstrate compliance with
the Specification. Should the Aircraft fail to complete the
Technical Acceptance Process satisfactorily, the Seller will
without hindrance from the Buyer be entitled to carry out any
necessary changes and, as soon as practicable thereafter,
resubmit the Aircraft to the Technical Acceptance Process to the
extent necessary to demonstrate full compliance with the
requirements of the Technical Acceptance Process.
8.1.2 The Technical Acceptance Process will
(i) commence on a date notified by the Seller to the Buyer as per
Clause 9.1.2,
(ii) take place at the Delivery Location,
(iii) be carried out by the personnel of the Seller, and
(iv) include a technical acceptance flight (the "Technical
Acceptance Flight") that will not exceed three (3) hours.
8.2 Buyer's Attendance
8.2.1 The Buyer is entitled to attend and observe the Technical
Acceptance Process.
8.2.2 If the Buyer attends the Technical Acceptance Process, the Buyer
(i) will comply with the reasonable requirements of the Seller,
with the intention of completing the Technical Acceptance Process
within five (5) Business Days, and
(ii) may have a maximum of four (4) of its representatives (no
more than two (2) of whom will have access to the cockpit at any
one time) accompany the Seller's representatives on the Technical
Acceptance Flight, during which the Buyer's representatives will
comply with the instructions of the Seller's representatives.
8.2.3 If the Buyer does not attend or fails to cooperate in the
Technical Acceptance Process, the Seller will be entitled to
complete the Technical
AYR FREIGHTER LLC - A330-200F - June 2007 31
Acceptance Process in compliance with Clause 8.1 without the
Buyer's attendance, and the Buyer will be deemed to have accepted
that the Technical Acceptance Process has been completed, in all
respects.
8.3 Certificate of Acceptance
Upon successful completion of the Technical Acceptance, the Buyer
will, on or before the Delivery Date, sign and deliver to the
Seller a certificate of acceptance in respect of the Aircraft in
the form of Exhibit D (the "Certificate of Acceptance").
8.4 Finality of Acceptance
The Buyer's signature of the Certificate of Acceptance for the
Aircraft will constitute waiver by the Buyer of any right it may
have under the Uniform Commercial Code as adopted by the State of
New York or otherwise to revoke acceptance of the Aircraft for
any reason, whether known or unknown to the Buyer at the time of
acceptance.
8.5 Aircraft Utilization
The Seller will, without payment or other liability, be entitled
to use the Aircraft before Delivery to obtain the certificates
required for the Aircraft under Clause 7. Such use in itself will
not limit the Buyer's obligation to accept Delivery hereunder.
The Seller will be authorized to use the Aircraft for up to a
maximum of twenty (20) hours for any other purpose without
specific agreement of the Buyer.
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9 - DELIVERY
9.1 Delivery Schedule
9.1.1 Subject to the express provisions of Clauses 2, 7, 8, 10 and 18,
the Seller will have the Aircraft Ready for Delivery at the
Delivery Location within the months listed in Clause 3 of
Schedule 1 (each a "Scheduled Delivery Month"):
9.1.2 The Seller will give the Buyer at least thirty (30) days' written
notice of the anticipated date on which the Aircraft will be
Ready for Delivery. Such notice will also include the starting
date and the planned schedule of the Technical Acceptance Process
set forth in Clause 8. Thereafter the Seller will notify the
Buyer of any change to such dates.
9.2 Delivery
9.2.1 The Buyer will send its representatives to the Delivery Location
to take Delivery within seven (7) days after the date on which
the Aircraft is Ready for Delivery.
9.2.2 The Seller will transfer title to the Aircraft to the Buyer free
and clear of all encumbrances, provided that the Balance of the
Final Contract Price has been paid by the Buyer pursuant to
Clause 5.4 and that the Certificate of Acceptance has been signed
and delivered to the Seller pursuant to Clause 8.3. The Seller
will provide the Buyer with a ▇▇▇▇ of sale in the form of Exhibit
E (the "▇▇▇▇ of Sale") and/or such other documentation confirming
transfer of title and receipt of the Final Contract Price as may
reasonably be requested by the Buyer. Title to and risk of loss
of or damage to the Aircraft will pass to the Buyer
contemporaneously with the delivery by the Seller to the Buyer of
such ▇▇▇▇ of Sale.
9.2.3 If the Buyer fails to (i) deliver the signed Certificate of
Acceptance to the Seller on or before the Delivery Date, or (ii)
pay the Balance of the Final Contract Price for the Aircraft to
the Seller on the Delivery Date, then the Buyer will be deemed to
have rejected Delivery wrongfully when the Aircraft was duly
tendered to the Buyer hereunder. If such a deemed rejection
arises, the Seller will retain title to the Aircraft and the
Buyer will indemnify and hold the Seller harmless against any and
all costs (including but not limited to any parking, storage, and
insurance costs) and consequences resulting from the Buyer's
rejection, it being understood that the Seller will be under no
duty to the Buyer to store, park, or otherwise protect the
Aircraft. These rights of the Seller will be in addition to the
Seller's other rights and remedies in this Agreement.
AYR FREIGHTER LLC - A330-200F - June 2007 33
9.3 Flyaway
9.3.1 The Buyer and the Seller will cooperate to obtain any licenses
that may be required by the relevant Aviation Authority for the
purpose of exporting the Aircraft.
9.3.2 All expenses of, or connected with, flying the Aircraft from the
Delivery Location after Delivery will be borne by the Buyer. The
Buyer will make direct arrangements with the supplying companies
for the fuel and oil required for all post-Delivery flights.
AYR FREIGHTER LLC - A330-200F - June 2007 34
10 - EXCUSABLE DELAY AND TOTAL LOSS
10.1 Scope of Excusable Delay
Neither the Seller nor any Affiliate of the Seller, will be
responsible for or be deemed to be in default on account of
delays in delivery or failure to deliver or otherwise in the
performance of this Agreement or any part hereof due to causes
reasonably beyond the Seller's, or any Affiliate's control or not
occasioned by the Seller's or any Affiliate's fault or negligence
("Excusable Delay"), including, but not limited to: (i) acts of
God or the public enemy, natural disasters, fires, floods, storms
beyond ordinary strength, explosions or earthquakes; epidemics or
quarantine restrictions; serious accidents; total or constructive
total loss; any law, decision, regulation, directive or other act
(whether or not having the force of law) of any government or of
the Council of the European Community or the Commission of the
European Community or of any national, Federal, State, municipal
or other governmental department, commission, board, bureau,
agency, court or instrumentality, domestic or foreign;
governmental priorities, regulations or orders affecting
allocation of materials, facilities or a completed Aircraft; war,
civil war or warlike operations, terrorism, insurrection or
riots; failure of transportation; strikes or labor troubles
causing cessation, slow down or interruption of work; delay in
obtaining any airworthiness or type certification; inability
after due and timely diligence to procure materials, accessories,
equipment or parts; general hindrance in transportation; or
failure of a subcontractor or Supplier to furnish materials,
components, accessories, equipment or parts; (ii) any delay
caused directly or indirectly by the action or inaction of the
Buyer ; and (iii) delay in delivery or otherwise in the
performance of this Agreement by the Seller due in whole or in
part to any delay in or failure of the delivery of, or any other
event or circumstance relating to, the Propulsion Systems or
Buyer Furnished Equipment.
10.2 Consequences of Excusable Delay
10.2.1 If an Excusable Delay occurs the Seller will
(1) notify the Buyer of such Excusable Delay as soon as
practicable after becoming aware of the same;
(2) not be deemed to be in default in the performance of its
obligations hereunder as a result of such Excusable Delay;
(3) not be responsible for any damages arising from or in
connection with such Excusable Delay suffered or incurred by the
Buyer;
(4) as soon as practicable after the removal of the cause of such
Excusable Delay resume performance of its obligations under this
Agreement and in particular will notify the Buyer of the revised
Scheduled Delivery Month.
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10.3 Termination on Excusable Delay
10.3.1 If any Delivery is delayed as a result of an Excusable Delay for
a period of more than twelve (12) months after the last day of
the Scheduled Delivery Month, then either party may terminate
this Agreement with respect to the affected Aircraft, by giving
written notice to the other party within thirty (30) days after
the expiration of such twelve (12) month period. However, the
Buyer will not be entitled to terminate this Agreement pursuant
to this Clause 10.3.1 if the Excusable Delay is caused directly
or indirectly by the action or inaction of the Buyer.
10.3.2 If the Seller advises the Buyer in its notice of a revised
Scheduled Delivery Month pursuant to Clause 10.2.1(iv) that there
will be a delay in Delivery of an Aircraft of more than twelve
(12) months after the last day of the Scheduled Delivery Month,
then either party may terminate this Agreement with respect to
the affected Aircraft. Termination will be made by giving written
notice to the other party within thirty (30) days after the
Buyer's receipt of the notice of a revised Scheduled Delivery
Month.
10.3.3 If this Agreement is not terminated under the terms of Clause
10.3.1 or 10.3.2, then the Seller will be entitled to re-schedule
Delivery. The Seller will notify the Buyer of the new Scheduled
Delivery Month after expiration of the thirty (30) day period
referred to in Clause 10.3.1 or 10.3.2, and this new Scheduled
Delivery Month will be deemed to be an amendment to the
applicable Scheduled Delivery Month in Clause 9.1.1.
10.4 Total Loss, Destruction or Damage
If, prior to Delivery, any Aircraft is lost, destroyed or in the
reasonable opinion of the Seller is damaged beyond economic
repair ("Total Loss"), the Seller will notify the Buyer to this
effect within one (1) month of such occurrence. The Seller will
include in said notification (or as soon after the issue of the
notice as such information becomes available to the Seller) the
earliest date consistent with the Seller's other commitments and
production capabilities that an aircraft to replace the Aircraft
may be delivered to the Buyer and the Scheduled Delivery Month
will be extended as specified in the Seller's notice to
accommodate the delivery of the replacement aircraft; provided,
however, that if the Scheduled Delivery Month is extended to a
month that is later than twelve (12) months after the last day of
the original Scheduled Delivery Month then this Agreement will
terminate with respect to said Aircraft unless:
(i)the Buyer notifies the Seller within one (1) month of the date
of receipt of the Seller's notice that it desires the Seller to
provide a replacement aircraft during the month quoted in the
Seller's notice; and
AYR FREIGHTER LLC - A330-200F - June 2007 36
(ii) the parties execute an amendment to this Agreement recording
the change in the Scheduled Delivery Month.
Nothing herein will require the Seller to manufacture and deliver
a replacement aircraft if such manufacture would require the
reactivation of its production line for the model or series of
aircraft that includes the Aircraft. Any termination pursuant to
this Clause 10.4 as to a particular Aircraft will discharge the
obligations and liabilities of the parties hereunder with respect
to such Aircraft.
10.5 Remedies
THIS CLAUSE 10 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE
BUYER FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN
SUCH DELAYS AS ARE COVERED BY CLAUSE 11, AND THE BUYER HEREBY
WAIVES ALL RIGHTS TO WHICH IT WOULD OTHERWISE BE ENTITLED IN
RESPECT THEREOF, INCLUDING, WITHOUT LIMITATION, ANY RIGHTS TO
INCIDENTAL AND CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE. THE
BUYER WILL NOT BE ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE
BENEFITS PROVIDED IN THIS CLAUSE 10 WHERE THE DELAY REFERRED TO
IN THIS CLAUSE 10 IS CAUSED BY THE NEGLIGENCE OR FAULT OF THE
BUYER OR ITS REPRESENTATIVES.
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11 - INEXCUSABLE DELAY
11.1 Liquidated Damages
Should an Aircraft not be Ready for Delivery within thirty (30)
days after the last day of the Scheduled Delivery Month (as such
month may be changed pursuant to Clauses 2, 7 or 10) and such
delay is not as a result of an Excusable Delay or Total Loss,
then such delay will be termed an "Inexcusable Delay." In the
event of an Inexcusable Delay, the Buyer will have the right to
claim, and the Seller will pay the Buyer liquidated damages of US
$ 15,000 (US dollars- fifteen thousand) for each day of delay in
the Delivery, starting thirty-one (31) days following the
scheduled delivery date within the Scheduled Delivery Month (or,
if no such date has been set, the last day of the Scheduled
Delivery Month).
In no event will the amount of liquidated damages exceed the
total of US $ 2,400,000 (US dollars-two million four hundred
thousand) in respect of any one Aircraft.
The Buyer's right to liquidated damages in respect of an Aircraft
is conditioned on the Buyer's submitting a written claim for
liquidated damages to the Seller not later than thirty (30) days
after the last day of the Scheduled Delivery Month.
11.2 Renegotiation
If, as a result of an Inexcusable Delay, Delivery does not occur
within six (6) months after the last day of the Scheduled
Delivery Month the Buyer will have the right, exercisable by
written notice to the Seller given between fifteen (15) days and
thirty (30) days after lapse of such six (6) month period, to
require from the Seller a renegotiation of the Scheduled Delivery
Month for the affected Aircraft. Unless otherwise agreed between
the Seller and the Buyer during such renegotiation, the said
renegotiation will not prejudice Buyer's right to receive
liquidated damages in accordance with Clause 11.1.
11.3 Termination
If, as a result of an Inexcusable Delay, Delivery does not occur
within twelve (12) months after the last day of the Scheduled
Delivery Month and the parties have not renegotiated the Delivery
Date pursuant to Clause 11.2, then both parties will have the
right exercisable by written notice to the other party, given
between one (1) and sixty (60) days after the lapse of such
twelve (12) month period, to terminate this Agreement in respect
of the affected Aircraft. In the event of termination, neither
party will have any claim against the other, except that the
Seller will pay to the Buyer
AYR FREIGHTER LLC - A330-200F - June 2007 38
any amounts due pursuant to Clause 11.1 and will pay the Buyer an
amount equal to the Predelivery Payments received from the Buyer
hereunder in respect of the Aircraft as to which this Agreement
has been terminated.
11.4 Remedies
THIS CLAUSE 11 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE
BUYER FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN
SUCH DELAYS AS ARE COVERED BY CLAUSE 10, AND THE BUYER HEREBY
WAIVES ALL RIGHTS TO WHICH IT WOULD OTHERWISE BE ENTITLED IN
RESPECT THEREOF, INCLUDING WITHOUT LIMITATION ANY RIGHTS TO
INCIDENTAL AND CONSEQUENTIAL DAMAGES OR SPECIFIC PERFORMANCE. THE
BUYER WILL NOT BE ENTITLED TO CLAIM THE REMEDIES AND RECEIVE THE
BENEFITS PROVIDED IN THIS CLAUSE 11 WHERE THE DELAY REFERRED TO
IN THIS CLAUSE 11 IS CAUSED BY THE NEGLIGENCE OR FAULT OF THE
BUYER OR ITS REPRESENTATIVES.
AYR FREIGHTER LLC - A330-200F - June 2007 39
12. WARRANTIES AND SERVICE LIFE POLICY
12.1 Warranty
12.1.1 Nature of Warranty
Subject to the limitations and conditions hereinafter provided,
and except as provided in Clause 12.1.2, the Seller warrants to
the Buyer that Aircraft and each Warranted Part will at the time
of Delivery to the Buyer be free from defects:
(i) in material,
(ii) in workmanship, including, without limitation, processes of
manufacture,
(iii) in design (including, without limitation, selection of
materials) having regard to the state of the art at the date of
such design, and
(iv) arising from failure to conform to the Specification, except
as to those portions of the Specification that are expressly
stated in the Specification to be estimates or approximations or
design aims.
For the purposes of this Agreement, the term "Warranted Part"
will mean any Seller proprietary component, equipment, software,
or part, that (a) is installed on an Aircraft at Delivery, (b) is
manufactured to the detail design of the Seller or a
subcontractor of the Seller and (c) bears a manufacturers part
number at the time of Delivery.
12.1.2 Exclusions
The warranties set forth in Clause 12.1.1 will not apply to Buyer
Furnished Equipment, Propulsion Systems, or to any component,
accessory, equipment or part purchased by the Buyer that is not a
Warranted Part, provided, however, that:
(i) any defect in the Seller's workmanship in respect of the
installation of such items in the Aircraft, including any failure
by the Seller to conform to the installation instructions of the
manufacturers of such items that invalidates any applicable
warranty from such manufacturers, will constitute a defect in
workmanship for the purpose of this Clause 12.1 and be covered by
the warranty set forth in Clause 12.1.1(ii), and
(ii) any defect inherent in the Seller's design of the
installation, considering the state of the art at the date of such
design, that impairs the use of such items will constitute a
defect in design for the purposes of this
AYR FREIGHTER LLC - A330-200F - June 2007 40
Clause 12.1 and be covered by the warranty set forth in Clause
12.1.1(iii).
12.1.3 Warranty Periods
The warranties described in Clauses 12.1.1 and 12.1.2 hereinabove
will be limited to those defects that become apparent within
thirty-six (36) months after Delivery of the affected Aircraft
(the "Warranty Period").
12.1.4 Limitations of Warranty
12.1.4.1 The Buyer's remedy and the Seller's obligation and liability
under Clauses 12.1.1 and 12.1.2 are limited to, at the Seller's
expense and option, the repair, replacement or correction (to
include, in the case of software, supply of a comparable product
with equivalent function) of any defective Warranted Part. The
Seller may elect to effect such repair, replacement or correction
by supplying modification kits designed to rectify the defect or
by furnishing a credit to the Buyer for the future purchase of
goods and services (not including Aircraft) or redeemable for
cash equal to the price at which the Buyer is then entitled to
acquire a replacement for the defective Warranted Part.
12.1.4.2 If the Seller corrects a defect covered by Clause 12.1.1(iii)
that becomes apparent within the Warranty Period, on the Buyer's
written request the Seller will correct any such defect of the
same type in any Aircraft that has not already been delivered to
the Buyer. The Seller will not be responsible for, nor deemed to
be in default on account of any delay in Delivery of any Aircraft
or otherwise, in respect of performance of this Agreement, due to
the Seller's undertaking to make such correction. Alternatively,
the Buyer and the Seller may agree to deliver such Aircraft with
subsequent correction of the defect by the Buyer at the Seller's
expense, or the Buyer may elect to accept Delivery and thereafter
file a Warranty Claim as though the defect had become apparent
immediately after Delivery of such Aircraft.
12.1.5 Cost of Inspection
12.1.5.1 In addition to the remedies set forth in Clauses 12.1.4.1 and
12.1.4.2, the Seller will reimburse the direct labor costs
incurred by the Buyer in performing inspections of the Aircraft
that are conducted:
(i) to determine whether a defect exists in any Warranted Part
within the Warranty Period or
(ii) pending the Seller's provision of a corrective technical
solution.
AYR FREIGHTER LLC - A330-200F - June 2007 41
12.1.5.2 The Seller's liability under Clause 12.1.5.1 is subject to the
following conditions:
such inspections are recommended in a Seller Service Bulletin to
be performed within the Warranty Period;
the labor rate for the reimbursements will be the In-house
Warranty Labor Rate, and
the hours used to determine such reimbursement will not exceed
the Seller's reasonable estimate of the hours required for such
inspections.
12.1.6 Warranty Claim Requirements
The Buyer's remedy and the Seller's obligation and liability
under this Clause 12.1 with respect to each claimed defect are
subject to the following conditions:
(j) the defect has become apparent within the Warranty Period,
(k) the Buyer has filed a Warranty Claim within ninety (90) days
of a defect becoming apparent;
(l) the Buyer has submitted to the Seller evidence reasonably
satisfactory to the Seller that (i) the claimed defect is due to
a matter covered under the provisions of this Clause 12, and (ii)
that such defect did not result from any act or omission of the
Buyer, including but not limited to, any failure to operate and
maintain the affected Aircraft or part thereof in accordance with
the standards set forth in Clause 12.1.11 or from any act or
omission of any third party;
(m) the Buyer returns the Warranted Part claimed to be defective
to the repair facilities designated by the Seller as soon as
practicable, unless the Buyer elects to repair a defective
Warranted Part in accordance with the provisions of Clause
12.1.8; and
(n) the Seller's receives a Warranty Claim complying with the
provisions of Clause 12.1.7(v).
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12.1.7 Warranty Administration
The warranties set forth in this Clause 12.1 will be administered
as hereinafter provided:
(i) Claim Determination
Determination by the Seller as to whether any claimed defect in
any Warranted Part is a valid Warranty Claim will be made by the
Seller and will be based on claim details, reports from the
Seller's regional representative, historical data logs,
inspections, tests, findings during repair, defect analysis and
other relevant documents and information.
(ii) Transportation Costs
The cost of transporting a Warranted Part claimed to be defective
to the facilities designated by the Seller will be borne by the
Buyer.
(iii) On-Aircraft Work by the Seller
If either (a) the Seller determines that a defect subject to this
Clause 12.1 requires the dispatch by the Seller of a Seller's
working team to the Buyer's facilities, to repair or correct such
defect through implementation of one or more Seller's Service
Bulletins, or (b) the Seller accepts the return of an Aircraft to
perform or have performed a repair or correction, then, the labor
costs for such on-Aircraft work will be borne by the Seller at
the In-House Labor Rate.
On-Aircraft work by the Seller will be undertaken only if, in the
Seller's opinion, the work requires the Seller's technical
expertise. In such case, the Seller and the Buyer will agree on a
schedule and place for the work to be performed.
(iv) Return of an Aircraft
If the Buyer and the Seller mutually agree, prior to such return,
that it is necessary to return an Aircraft to the Seller for
consideration of a Warranty Claim, the Seller shall bear the
direct costs of fuel and landing fees to and from the Seller's
facilities for such return of the Aircraft. The Buyer shall make
its reasonable efforts to minimize the duration of the
corresponding flights.
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(v) Warranty Claim Substantiation
For each claim under this Clause 12.1 the Buyer will give written
notice ("a "Warranty Claim") to the Seller that contains at least
the data listed below with respect to an Aircraft or Warranted
Part, as applicable. The Buyer will deliver the Warranty Claim
within ninety (90) days of discovering each defect giving rise to
a claim by the Buyer under this Clause 12.
(a) Description of the defect and any action taken,
(b) Date of incident and/or removal,
(c) Description of the Warranted Part claimed to be defective.
(d) Part number,
(e) Serial number (if applicable),
(f) Position on Aircraft, according to Catalog Sequence Number
(CSN) of the Illustrated Parts Catalog, Component Maintenance
Manual or Structural Repair Manual (as such documents are defined
in Exhibit F) as applicable,
(g) Total flying hours or calendar times, as applicable, at the
date of appearance of a defect,
(h) Time since last shop visit at the date of appearance of
defect,
(i) Manufacturer's serial number (MSN) of the Aircraft and/or its
registration number,
(j) Aircraft total flying hours and/or number of landings at the
date of appearance of defect,
(k) Claim number,
(l) Date of claim and
(m) Date of Delivery of an Aircraft to the Buyer.
AYR FREIGHTER LLC - A330-200F - June 2007 44
Warranty Claims are to be addressed as follows:
AIRBUS
CUSTOMER SERVICES DIRECTORATE
WARRANTY ADMINISTRATION
ROND-POINT ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇.▇. ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
(vi) Replacements
Replaced components, equipment, accessories or parts will become
the Seller's property.
Title to and risk of loss of any Aircraft, component, accessory,
equipment or part returned by the Buyer to the Seller will at all
times remain with the Buyer, except that (i) when the Seller has
possession of a returned Aircraft, component, accessory,
equipment or part to which the Buyer has title, the Seller will
have such responsibility therefor as is chargeable by law to a
bailee for hire, but the Seller will not be liable for loss of
use, and (ii) title to and risk of loss of a returned component,
accessory, equipment or part will pass to the Seller on shipment
by the Seller to the Buyer of any item furnished by the Seller to
the Buyer as a replacement therefor. Upon the Seller's shipment
to the Buyer of any replacement component, accessory, equipment
or part provided by the Seller pursuant to this Clause 12.1,
title to and risk of loss of such replacement component,
accessory, equipment or part will pass to the Buyer.
(vii) Rejection
The Seller will provide reasonable written substantiation in case
of rejection of a Warranty Claim. The Buyer will pay to the
Seller reasonable inspection and test charges incurred by the
Seller in connection with the investigation and processing of a
rejected Warranty Claim.
(viii) Inspection
The Seller will have the right to inspect the affected Aircraft
and documents and other records relating thereto in the event of
any claim under this Clause 12.1.
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12.1.8 In-house Warranty
(i) Authorization
The Buyer is hereby authorized to repair Warranted Parts, subject
to the terms of this Clause 12.1.8 ("In-house Warranty Repair").
When the estimated cost of an In-house Warranty repair exceeds
$15,000 (fifteen thousand US dollars), the Buyer will notify the
Resident Customer Support Representative, of its decision to
perform any in-house repairs before such repairs are commenced.
The Buyer's notice will include sufficient detail regarding the
defect, estimated labor hours and material to allow the Seller to
ascertain the reasonableness of the estimate. The Seller will use
reasonable efforts to ensure a prompt response and will not
unreasonably withhold authorization.
(ii) Conditions of Authorization
The Buyer will be entitled to the benefits under this Clause
12.1.8 for repair of Warranted Parts:
(a) if the Buyer complies with the terms of Clause 12.1.8
(i);
(b) if adequate facilities and qualified personnel are
available to the Buyer.
(c) provided that repairs are to be performed in accordance
with the Seller's written instructions set forth in
applicable Technical Data and
(d) only to the extent specified by the Seller, or, in the
absence of the Seller's specifying, to the extent
reasonably necessary to correct the defect, in
accordance with the standards set forth in Clause
12.1.11.
(iii) Seller's Rights
The Seller will have the right to require the return to Seller of
any Warranted Part, or any part removed therefrom, that is
claimed to be defective, if, in the Seller's judgment, the nature
of the claimed defect requires technical investigation. Such
delivery will be subject to the provisions of Clause 12.1.7(ii).
The Seller will have the right to have a representative present
during the disassembly, inspection and testing of any Warranted
Part claimed to be defective, subject to such presence being
practical and not unduly delaying the repair.(iv) In-house
Warranty Claim Substantiation
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Claims for In-house Warranty Repair credit will comply with the
requirements for Warranty Claims under Clause 12.1.6(v) and in
addition will include:
(a) a report of technical findings with respect to the
defect,
(b) for parts required to remedy the defect:
part numbers,
serial numbers (if applicable),
description of the parts,
quantity of parts,
unit price of parts,
- copies of related Seller's or third party's
invoices (if applicable), total price of parts
(c) detailed number of labor hours,
(d) In-house Warranty Labor Rate, and
(e) total claim value.
(v) Credit
The Buyer's sole remedy, and the Seller's sole obligation and
liability, in respect of In-house Warranty Repair claims, will be
a credit to the Buyer's account. Such credit will be equal to the
sum of the direct labor cost expended in performing such repair,
plus the direct cost of materials incorporated in the repair.
Such costs will be determined as set forth below.
To determine direct labor costs, only the manhours spent on
removal from the Aircraft disassembly, inspection, repair,
reassembly, and final inspection and test of the Warranted Part,
and reinstallation thereof on the Aircraft will be counted. The
hours required for maintenance work concurrently being carried
out on the Aircraft or Warranted Part will not be included.
AYR FREIGHTER LLC - A330-200F - June 2007 47
The manhours permissible above will be multiplied by a labor rate
("In-house- Warranty Labour Rate") equal to either:
(i) The Inhouse Warranty Labor Rate applicable pursuant to any
existing agreement between the Seller and the Operator of
the Aircraft in the event that such Operator operates Airbus
aircraft, or
(ii) A labor rate to be agreed between the Buyer and the Seller
and corresponding to the Inhouse Warranty Labor Rate
generally applicable to Operators of Airbus aircraft in the
region, in the event that the Operator of the Buyer's
Aircraft is not an Airbus aircraft operator.
(iii) Direct material costs are determined by the prices at which
the Buyer acquired such material, excluding any parts and
materials used for overhaul furnished free of charge by the
Seller.
(vi) Limitation on Credit
The Buyer will only be credited for repair costs (labor and
material) for any Warranted Part up to sixty-five percent (65%)
of the Seller's then-current catalog price for a replacement of
such defective Warranted Part provided such replacement part is
available for purchase.
The Seller will substantiate such Seller costs in writing on
reasonable request by the Buyer.
(vii) Scrapped Material
The Buyer may, with the agreement of the Seller's Resident
Customer Support Representative, scrap any such defective
Warranted Parts that are beyond economic repair and not required
for technical evaluation.
If the Buyer does not obtain the agreement of the Seller's
Resident Customer Support Representative to scrap a Warranted
Part immediately, the Buyer will retain such Warranted Part and
any defective part removed from a Warranted Part during repair
for a period of either one hundred and twenty (120) days after
the date of completion of repair or sixty (60) days after
submission of a claim for In-house Warranty Repair credit
relating thereto, whichever is longer. Such parts will be
returned to the Seller within thirty (30) days of receipt of the
Seller's request therefor, made within such retention periods.
AYR FREIGHTER LLC - A330-200F - June 2007 48
A record of scrapped Warranted Parts, certified by an authorized
representative of the Buyer, will be kept in the Buyer's file for
at least the duration of the Warranty Period.
(viii) DISCLAIMER OF SELLER LIABILITY FOR BUYER'S REPAIR
THE SELLER WILL NOT BE LIABLE FOR, AND THE BUYER WILL INDEMNIFY
THE SELLER AGAINST, THE CLAIMS OF ANY THIRD PARTIES FOR LOSSES
DUE TO ANY DEFECT, NONCONFORMANCE OR PROBLEM OF ANY KIND, ARISING
OUT OF OR IN CONNECTION WITH ANY REPAIR OF WARRANTED PARTS
UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE 12.1.8 OR ANY OTHER
ACTIONS UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE 12.1.8, WHETHER
SUCH CLAIM IS ASSERTED IN CONTRACT OR IN TORT, OR IS PREMISED ON
ALLEGED, ACTUAL, IMPUTED, ORDINARY OR INTENTIONAL ACTS OR
OMISSIONS OF THE BUYER OR THE SELLER .
12.1.9 Warranty Transferability
Notwithstanding the provisions of Clause 20.1, The warranties
provided for in this Clause 12.1 for any Warranted Part will
accrue to the benefit of any airline in revenue service other
than the Buyer, if the Warranted Part enters into the possession
of any such airline as a result of a pooling agreement between
such airline and the Buyer, in accordance with the terms and
subject to the limitations and exclusions of the foregoing
warranties and to applicable laws or regulations.
12.1.10 Warranty for Corrected, Replacement or Repaired Warranted Parts
Whenever any Warranted Part that contains a defect for which the
Seller is liable under this Clause 12.1 has been corrected,
repaired or replaced pursuant to the terms hereof, the period of
the Seller's warranty with respect to such corrected, repaired or
replacement Warranted Part, will be the remaining portion of the
original warranty in respect of such corrected, repaired or
replaced Warranted Part or twelve (12) months, whichever is
longer. If a defect is attributable to a defective repair or
replacement by the Buyer, a Warranty Claim with respect to such
defect will be rejected, notwithstanding any subsequent
correction or repair, and will immediately terminate the
remaining warranties under this Clause 12.1 in respect of the
affected Warranted Part.
12.1.11 Good Airline Operation - Normal Wear and Tear
The Buyer's rights under this Clause 12.1 are subject to the
Aircraft and each component, equipment, accessory and part
thereof being maintained,
AYR FREIGHTER LLC - A330-200F - June 2007 49
overhauled, repaired and operated in accordance with good
commercial airline practice, all technical documentation and any
other instructions issued by the Seller, the Suppliers or the
manufacturer of the Propulsion Systems and all applicable rules,
regulations and directives of the relevant Aviation Authorities.
The Seller's liability under this Clause 12.1 will not extend to
normal wear and tear or to
(i) any Aircraft or component, equipment, accessory or part
thereof that has been repaired, altered or modified after
Delivery in a manner other than that approved by the Seller;
(ii) any Aircraft or component, equipment, accessory or part
thereof that has been knowingly operated in a damaged state; or
(iii) any component, equipment, accessory or part from which the
trademark, trade name, part or serial number or other
identification marks have been intentionally removed.
AYR FREIGHTER LLC - A330-200F - June 2007 50
12.2 Seller Service Life Policy
12.2.1 Scope and Definitions
In addition to the warranties set forth in Clause 12.1, the
Seller agrees that should a Failure occur in any Item (as these
terms are defined below), then, subject to the general conditions
and limitations set forth in Clause 12.2.4, the provisions of
this Clause 12.2 will apply.
For the purposes of this Clause 12.2:
"Item" means any of the Seller components, equipment,
accessories or parts listed in Exhibit C that are installed on an
Aircraft at any time during the period of effectiveness of the
Service Life Policy as defined in Clause 12.2.2.
"Failure" means any breakage of, or defect in, an Item that
(a) materially impairs the utility or safety of the Item
(provided that any such breakage of, or defect in, such Item did
not result from any breakage or defect in any other Aircraft part
or component or from any other extrinsic force) and (b) has
occurred or can reasonably be expected to occur on a repetitive
or fleetwide basis.
The Seller's obligations under this Clause 12.1.2 are referred to
as the "Service Life Policy."
12.2.2 Periods and Seller's Undertaking
Subject to the general conditions and limitations set forth in
Clause 12.2.4, the Seller agrees that if a Failure occurs in an
Item before the Aircraft in which such Item is installed has
completed forty five thousand (45,000) flying hours or twelve
thousand (12,000) flight cycles or within twelve (12) years after
the Delivery of such Aircraft, the Seller will, at its
discretion, as promptly as practicable and for a price that
reflects the Seller's financial participation as hereinafter
provided either:
design and furnish to the Buyer a correction for such Item and
provide any parts required for such correction (including Seller
designed standard parts but excluding industry standard parts),
or
replace such Item
AYR FREIGHTER LLC - A330-200F - June 2007 51
12.2.3 Seller's Participation in the Cost
Any part or Item or part that the Seller is required to furnish
to the Buyer under this Service Life Policy will be furnished to
the Buyer at the Seller's current sales price therefor, less the
Seller's financial participation, which will be determined in
accordance with the following formula:
P = C (N - T)
--------------
N
Where:
P: financial participation of the Seller,
C: the Seller's then current sales price for the required Item or
required Seller designed parts, and,
(i) T: total flying time in hours of the Aircraft since Delivery
of the Aircraft in which the Item subject to a Failure was
originally installed, and,
N: forty-five thousand (45,000) flying hours
or
(ii) T: total number of flight cycles since Delivery that have
been accumulated by the Aircraft in which the Item subject to a
Failure was originally installed, and,
N: twelve thousand (12,000) flight cycles,
or,
(iii) T: total time in months since Delivery of the Aircraft in
which the Item subject to a Failure was originally installed,
and,
N: one hundred forty-four (144) months.
whichever of the foregoing clauses (i), (ii) and (iii) yields the
lowest ratio of:
N - T
-------
N
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12.2.4 General Conditions and Limitations
12.2.4.1 Notwithstanding any provision of this Clause 12.2, during the
Warranty Period, all Items will be covered by the provisions of
Clause 12.1 of this Agreement and not by the provisions of this
Clause 12.2.
12.2.4.2 The Buyer's remedies and the Seller's obligations and liabilities
under this Service Life Policy are subject to the following
conditions:
(i) The Buyer maintains log books and other historical records
with respect to each Item adequate to enable the Seller to
determine whether the alleged Failure is covered by this Service
Life Policy and, if so, to define the portion of the cost to be
borne by the Seller in accordance with Clause 12.2.3.
(ii) The Buyer keeps the Seller informed of any significant
incidents relating to an Aircraft, howsoever occurring or
recorded.
(iii) The Buyer complies with the conditions of Clause 12.1.11.
(iv) The Buyer implements specific structural inspection programs
for monitoring purposes as may be established from time to time
by the Seller. Such programs will be, to the extent possible,
compatible with the Buyer's operational requirements and will be
carried out at the Buyer's expense, reports relating thereto to
be regularly furnished to the Seller.
(v) The Buyer reports in writing any breakage or defect to the
Seller within sixty (60) days after any breakage or defect in an
Item becomes apparent, whether or not the breakage or defect can
reasonably be expected to occur in any other Aircraft, and the
Buyer provides the Seller with sufficient detail (to the extent
then available to the Buyer) about the breakage or defect to
enable the Seller to determine whether said breakage or defect is
subject to this Service Life Policy.
12.2.4.3 Except as otherwise provided in this Clause 12.2, any claim under
this Service Life Policy will be administered as provided in, and
will be subject to the terms and conditions of, Clause 12.1.6.
12.2.4.4 If the Seller has issued a service bulletin modification
applicable to an Aircraft, the purpose of which is to avoid a
Failure, the Seller may elect to supply the necessary modification
kit free of charge or under a pro rata formula established by the
Seller. If such a kit is so offered to the Buyer, then, in respect
of such Failure and any Failures that could ensue therefrom, the
validity of the Seller's commitment under this Clause 12.2 will be
subject to the Buyer's incorporating such modification in the
AYR FREIGHTER LLC - A330-200F - June 2007 53
relevant Aircraft, within a reasonable time, in accordance with
the Seller's instructions.
12.2.4.5 THIS SERVICE LIFE POLICY IS NEITHER A WARRANTY, PERFORMANCE
GUARANTEE, NOR AN AGREEMENT TO MODIFY ANY AIRCRAFT OR AIRFRAME
COMPONENTS TO CONFORM TO NEW DEVELOPMENTS OCCURRING IN THE STATE
OF AIRFRAME DESIGN AND MANUFACTURING ART. THE SELLER'S OBLIGATION
UNDER THIS CLAUSE 12.2 IS TO MAKE ONLY THOSE CORRECTIONS TO THE
ITEMS OR FURNISH REPLACEMENTS THEREFOR AS PROVIDED IN THIS CLAUSE
12.2. THE BUYER'S SOLE REMEDY AND RELIEF FOR THE NONPERFORMANCE
OF ANY OBLIGATION OR LIABILITY OF THE SELLER ARISING UNDER OR BY
VIRTUE OF THIS SERVICE LIFE POLICY WILL BE IN MONETARY DAMAGES,
LIMITED TO THE AMOUNT THE BUYER REASONABLY EXPENDS IN PROCURING A
CORRECTION OR REPLACEMENT FOR ANY ITEM THAT IS THE SUBJECT OF A
FAILURE COVERED BY THIS SERVICE LIFE POLICY AND TO WHICH SUCH
NONPERFORMANCE IS RELATED, LESS THE AMOUNT THAT THE BUYER
OTHERWISE WOULD HAVE BEEN REQUIRED TO PAY UNDER THIS CLAUSE 12.2
IN RESPECT OF SUCH CORRECTED OR REPLACEMENT ITEM. WITHOUT
LIMITING THE EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF
LIABILITY PROVISIONS SET FORTH IN CLAUSE 12.5, THE BUYER HEREBY
WAIVES, RELEASES AND RENOUNCES ALL CLAIMS TO ANY FURTHER DIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS
AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES, ARISING UNDER OR BY
VIRTUE OF THIS SERVICE LIFE POLICY.
AYR FREIGHTER LLC - A330-200F - June 2007 54
12.3 Supplier Warranties And Service Life Policies
12.3.1 Seller's Support
Before Delivery of the first Aircraft, the Seller will provide
the Buyer with the warranties and service life policies that the
Seller has obtained pursuant to the Supplier Product Support
Agreements.
12.3.2 Supplier's Default
12.3.2.1 If any Supplier under any warranty referred to in Clause 12.3.1
defaults in the performance of any material obligation under such
warranty with respect to a Supplier Part and the Buyer submits
reasonable evidence, within a reasonable time, that such default
has occurred, then Clause 12.1 of this Agreement will apply to
the extent it would have applied had such Supplier Part been a
Warranted Part, to the extent the Seller can reasonably perform
said Supplier's obligations, except that the Supplier's warranty
period indicated in the Supplier Product Support Agreements will
apply.
12.3.2.2 In the event of any Supplier, under any Supplier Service Life
Policy obtained by the Seller pursuant to Clause 12.3.1,
defaulting in the performance of any material obligation with
respect thereto and the Buyer submitting in reasonable time to
the Seller reasonable proof that such default has occurred, then
Clause 12.2 shall apply to the extent the same would have been
applicable had such Supplier Item been listed in Exhibit C,
Seller Service Life Policy, except that the Supplier's Service
Life Policy period as indicated in the Supplier Product Support
Agreement shall apply.
12.3.2.3 At the Seller's request, the Buyer will assign to the Seller, and
the Seller will be subrogated to, all of the Buyer's rights
against the relevant Supplier with respect to, and arising by
reason of, such default and the Buyer will provide reasonable
assistance to enable the Seller to enforce the rights so
assigned.
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12.4 Interface Commitment
12.4.1 Interface Problem
If the Buyer experiences any technical problem in the operation
of an Aircraft or its systems due to a malfunction, the cause of
which, after due and reasonable investigation, is not readily
identifiable by the Buyer, but which the Buyer reasonably
believes to be attributable to the design characteristics of one
or more components of the Aircraft (an "Interface Problem"), the
Seller will, if requested by the Buyer, and without additional
charge to the Buyer, except for transportation of the Seller's or
its designee's personnel to the Buyer's facilities, promptly
conduct or have conducted an investigation and analysis of such
problem to determine, if possible, the cause or causes of the
problem and to recommend such corrective action as may be
feasible. The Buyer will furnish to the Seller all data and
information in the Buyer's possession relevant to the Interface
Problem and will cooperate with the Seller in the conduct of the
Seller's investigations and such tests as may be required. At the
conclusion of such investigation the Seller will promptly advise
the Buyer in writing of the Seller's opinion as to the cause or
causes of the Interface Problem and the Seller's recommendations
as to corrective action.
12.4.2 Seller's Responsibility
If the Seller determines that the Interface Problem is primarily
attributable to the design of a Warranted Part, the Seller will,
if requested by the Buyer, correct the design of such Warranted
Part pursuant to the terms and conditions of Clause 12.1.
12.4.3 Supplier's Responsibility
If the Seller determines that the Interface Problem is primarily
attributable to the design of any Supplier Part, the Seller will
at the Buyer's request, reasonably assist the Buyer in processing
any warranty claim the Buyer may have against the manufacturer of
such Supplier Part.
12.4.4 Joint Responsibility
If the Seller determines that the Interface Problem is
attributable partially to the design of a Warranted Part and
partially to the design of any Supplier Part, the Seller will, if
requested by the Buyer, seek a solution to the Interface Problem
through cooperative efforts of the Seller and any Supplier
involved. The Seller will promptly advise the Buyer of any
corrective action proposed by the Seller and any such Supplier.
Such proposal will be consistent with any then existing
obligations of the Seller hereunder and of any such Supplier to
the Buyer. Such corrective action, unless reasonably
AYR FREIGHTER LLC - A330-200F - June 2007 56
rejected by the Buyer, will constitute full satisfaction of any
claim the Buyer may have against either the Seller or any such
Supplier with respect to such Interface Problem.
AYR FREIGHTER LLC - A330-200F - June 2007 57
12.4.5 General
12.4.5.1 All requests under this Clause 12.4 will be directed both to the
Seller and to the affected Suppliers.
12.4.5.2 Except as specifically set forth in this Clause 12.4, this Clause
12.4 will not be deemed to impose on the Seller any obligations
not expressly set forth elsewhere in this Agreement.
12.4.5.3 All reports, recommendations, data and other documents furnished
by the Seller to the Buyer pursuant to this Clause 12.4 will be
deemed to be delivered under this Agreement and will be subject
to the terms, covenants and conditions set forth in this Clause
12 and in Clause 22.7.
12.5 Exclusivity Of Warranties
THIS CLAUSE 12 SETS FORTH THE EXCLUSIVE WARRANTIES, EXCLUSIVE
LIABILITIES AND EXCLUSIVE OBLIGATIONS OF THE SELLER, AND THE
EXCLUSIVE REMEDIES AVAILABLE TO THE BUYER, WHETHER UNDER THIS
AGREEMENT OR OTHERWISE, ARISING FROM ANY DEFECT OR NONCONFORMITY
OR PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT, EQUIPMENT,
ACCESSORY, PART, SOFTWARE, DATA OR SERVICE DELIVERED BY THE
SELLER UNDER THIS AGREEMENT.
THE BUYER RECOGNIZES THAT THE RIGHTS, WARRANTIES AND REMEDIES IN
THIS CLAUSE 12 ARE ADEQUATE AND SUFFICIENT TO PROTECT THE BUYER
FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN THE
GOODS AND SERVICES SUPPLIED UNDER THIS AGREEMENT. THE BUYER
HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES,
OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER AND ALL
OTHER RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE
SELLER, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR
STATUTORY LAW OR OTHERWISE, WITH RESPECT TO ANY NONCONFORMITY OR
DEFECT OR PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR SERVICE DELIVERED
BY THE SELLER UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:
(1) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND/OR FITNESS FOR
ANY GENERAL OR PARTICULAR PURPOSE;
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(2) ANY IMPLIED OR EXPRESS WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(3) ANY RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;
(4) ANY RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF
LIABILITY, HOWEVER ALLEGED, INCLUDING, BUT NOT LIMITED TO,
ACTIONS AND/OR CLAIMS FOR NEGLIGENCE, GROSS NEGLIGENCE,
INTENTIONAL ACTS, WILLFUL DISREGARD, IMPLIED WARRANTY, PRODUCT
LIABILITY, STRICT LIABILITY OR FAILURE TO WARN;
(5) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER THE UNIFORM
COMMERCIAL CODE OR ANY OTHER STATE OR FEDERAL STATUTE;
(6) ANY RIGHT, CLAIM OR REMEDY ARISING UNDER ANY REGULATIONS OR
STANDARDS IMPOSED BY ANY INTERNATIONAL, NATIONAL, STATE OR LOCAL
STATUTE OR AGENCY;
(7) ANY RIGHT, CLAIM OR REMEDY TO RECOVER OR BE COMPENSATED FOR:
(i) LOSS OF USE OR REPLACEMENT OF ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS AGREEMENT;
(ii) LOSS OF, OR DAMAGE OF ANY KIND TO, ANY AIRCRAFT, COMPONENT,
EQUIPMENT, ACCESSORY OR PART PROVIDED UNDER THIS AGREEMENT;
(iii) LOSS OF PROFITS AND/OR REVENUES;
(iv) ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGE.
THE WARRANTIES AND SERVICE LIFE POLICY PROVIDED BY THIS AGREEMENT
WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN
INSTRUMENT SIGNED BY THE SELLER AND THE BUYER. IN THE EVENT THAT
ANY PROVISION OF THIS CLAUSE 12 SHOULD FOR ANY REASON BE HELD
UNLAWFUL, OR OTHERWISE UNENFORCEABLE, THE REMAINDER OF THIS
CLAUSE 12 WILL REMAIN IN FULL FORCE AND EFFECT. FOR THE PURPOSE
OF THIS CLAUSE 12.5, "SELLER" WILL BE
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UNDERSTOOD TO INCLUDE THE SELLER, ITS AFFILIATES AND SUPPLIERS.
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12.6 Duplicate Remedies
The remedies provided to the Buyer under Clause 12.1 and Clause
12.2 as to any defect in respect of the Aircraft or any part
thereof are mutually exclusive and not cumulative. The Buyer will
be entitled to the remedy that provides the maximum benefit to
it, as the Buyer may elect, pursuant to the terms and conditions
of this Clause 12 for any particular defect for which remedies
are provided under this Clause 12; provided, however, that the
Buyer will not be entitled to elect a remedy under both Clause
12.1 and Clause 12.2 for the same defect. The Buyer's rights and
remedies herein for the nonperformance of any obligations or
liabilities of the Seller arising under these warranties will be
in monetary damages limited to the amount the Buyer expends in
procuring a correction or replacement for any covered part
subject to a defect or nonperformance covered by this Clause 12,
and the Buyer will not have any right to require specific
performance by the Seller.
12.7 Transferability and Disclosure to Third Party Entity
12.7.1. The Buyer's rights under this Clause 12 will not be assigned,
sold, transferred, novated or otherwise alienated by operation of
law or otherwise, without the Seller's prior written consent. Any
unauthorized assignment, sale, transfer, novation or other
alienation of the Buyer's rights under this Clause 12 will, as to
the particular Aircraft involved, immediately void this Clause 12
in its entirety.
12.7.2. In the event of the Buyer intending to designate a third party
entity (a "Third Party Entity") to administrate this Clause 12,
the Buyer shall notify the Seller of such intention prior to any
disclosure of this Clause to the selected Third Party Entity and
shall cause such Third Party Entity to enter into a
confidentiality agreement and or any other relevant documentation
with the Seller solely for the purpose of administrating this
Clause 12.
12.8 Negotiated Agreement
The Parties each acknowledge that:
(i) the Specification has been agreed upon after careful
consideration by the Buyer using its judgment as a professional
operator of, and maintenance provider with respect to, aircraft
used in public transportation and as such is a professional
within the same industry as the Seller;
(ii) this Agreement, and in particular this Clause 12, has been
the subject of discussion and negotiation and is fully understood
by the Buyer; and
AYR FREIGHTER LLC - A330-200F - June 2007 61
(iii) the price of the Aircraft and the other mutual agreements
of the Buyer set forth in this Agreement were arrived at in
consideration of, inter alia, the provisions of this Clause 12,
specifically including the Exclusivity of Warranties set forth in
Clause 12.5.
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13. PATENT AND COPYRIGHT INDEMNITY
13.1 Indemnity
13.1.1 Subject to the provisions of Clause 13.2.3, the Seller will
indemnify the Buyer from and against any damages, costs and
expenses including reasonable legal costs (excluding damages,
costs, expenses, loss of profits and other liabilities in respect
of or resulting from loss of use of the Aircraft) resulting from
any infringement or claim of infringement by the Airframe or any
part or software installed therein at Delivery of
- any British, French, German, Spanish or U.S. patent; and
- any patent issued under the laws of any other country in which
the Buyer may lawfully operate the Aircraft, provided that from
the time of design of such Airframe or any part or software
installed therein at Delivery and until infringement claims are
resolved, the country of the patent and the flag country of the
Aircraft are both parties to:
the Chicago Convention on International Civil Aviation of
December 7, 1944, and are each fully entitled to all benefits of
Article 27 thereof, or,
the International Convention for the Protection of Industrial
Property of March 20, 1883 (the "Paris Convention"); and
- in respect of computer software installed on the Aircraft, any
copyright, provided that the Seller's obligation to indemnify
will be limited to infringements in countries which, at the time
of infringement, are members of The Berne Union and recognize
computer software as a "work" under the Berne Convention.
13.1.2 Clause 13.1.1 will not apply to
Buyer Furnished Equipment;
the Propulsion Systems;
Supplier Parts; or
software not developed by the Seller.
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13.1.3 If the Buyer, due to circumstances contemplated in Clause 13.1.1,
is prevented from using the Aircraft (whether by a valid judgment
of a court of competent jurisdiction or by a settlement arrived
at among the claimant, the Seller and the Buyer), the Seller will
at its expense either within a reasonable time period
(i) procure for the Buyer the right to use the affected
Airframe, part or software free of charge; or
(ii) replace the infringing part or software as soon as
possible with a non-infringing substitute.
13.2 Administration of Patent and Copyright Indemnity Claims
13.2.1 If the Buyer receives a written claim or a suit is threatened
or begun against the Buyer for infringement of a patent or
copyright referred to in Clause 13.1, the Buyer will
(i) forthwith notify the Seller, giving particulars thereof;
(ii) furnish to the Seller all data, papers and records within
the Buyer's control or possession relating to such patent or
claim;
(iii) refrain from admitting any liability or making any payment,
or assuming any expenses, damages, costs or royalties, or
otherwise acting in a manner prejudicial to the defense or denial
of the suit or claim, it being agreed that nothing in this Clause
13.2.1(iii) will prevent the Buyer from paying the sums that may
be required to obtain the release of the Aircraft, provided that
payment is accompanied by a denial of liability and is made
without prejudice;
(iv) fully cooperate with, and render all assistance to, the
Seller as may be pertinent to the defense or denial of the suit
or claim; and
(v) act to mitigate damages and/or to reduce the amount of
royalties that may be payable, and act to minimize costs and
expenses.
The Seller will be entitled either in its own name or on behalf
of the Buyer to conduct negotiations with the party or parties
alleging infringement and may assume and conduct the defense or
settlement of any suit or claim in the manner that, in the
Seller's opinion, it deems proper.
13.2.2 The Seller's liability hereunder will be conditioned on the
strict and timely compliance by the Buyer with the terms of this
Clause 13 and is in lieu of any other liability to the Buyer,
whether express or implied, which the
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Seller might incur at law as a result of any infringement or claim
of infringement of any patent or copyright.
THE INDEMNITY PROVIDED IN THIS CLAUSE 13 AND THE OBLIGATIONS AND
LIABILITIES OF THE SELLER UNDER THIS CLAUSE 13 ARE EXCLUSIVE AND
IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND
RENOUNCES ALL OTHER INDEMNITIES, WARRANTIES, OBLIGATIONS,
GUARANTEES AND LIABILITIES ON THE PART OF THE SELLER AND RIGHTS,
CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE (INCLUDING WITHOUT
LIMITATION ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY
ARISING FROM OR WITH RESPECT TO LOSS OF USE OR REVENUE OR
CONSEQUENTIAL DAMAGES), WITH RESPECT TO ANY ACTUAL OR ALLEGED
PATENT INFRINGEMENT OR THE LIKE BY ANY AIRFRAME, PART OR SOFTWARE
INSTALLED THEREIN AT DELIVERY, OR THE USE OR SALE THEREOF,
PROVIDED THAT, IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS
SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE,
THE REMAINDER OF THIS CLAUSE WILL REMAIN IN FULL FORCE AND
EFFECT. THIS INDEMNITY AGAINST PATENT AND COPYRIGHT INFRINGEMENTS
WILL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN
INSTRUMENT SIGNED BY THE SELLER AND THE BUYER.
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14 - TECHNICAL DATA AND FLIGHT AND GROUND INFORMATION SERVICES
This Clause sets forth the terms and conditions for the supply of
technical data ("Technical Data") and software services
("Software Services").
14A Technical Data
14A.1 General
14.A.1.1 The Technical Data will be supplied in the English language using
aeronautical terminology in common use.
14A.1.2 Range, form, type, format, ATA/non-ATA compliance, revision and
quantity of the Technical Data are covered in Exhibit F hereto.
14A.1.3 The Buyer will not receive credit or compensation for any
partially used or unused Technical Data provided pursuant to this
Clause 14.
14A.2 Aircraft Identification for Technical Data
For those Technical Data that are customized to the Buyer's
specific operations and Aircraft as indicated in the Airbus
Customer Services Catalog (the "CSC"), the Buyer agrees to the
allocation of fleet serial numbers ("Fleet Serial Numbers
(FSNs)") in the form of a block of numbers selected in the range
from 001 to 999.
The sequence will be interrupted only if two (2) different
Propulsion Systems or different Aircraft models are selected.
The Buyer will indicate to the Seller the FSNs corresponding to
the Aircraft as listed in Clause 9 of this Agreement within
forty-five (45) days after execution of this Agreement. The
allocation of FSNs to such Aircraft will not constitute any
proprietary, insurable or other interest of the Buyer in any
Aircraft before delivery of and payment for Aircraft as provided
in this Agreement.
The Technical Data that may be customized are:
Aircraft Maintenance Manual
Illustrated Parts Catalog
Trouble Shooting Manual
Aircraft Wiring Manual
Aircraft Schematics Manual
Aircraft Wiring Lists
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14A.3 Integration of Equipment Data
14A.3.1 Supplier Equipment
If necessary for the understanding of the affected systems,
information relating to Supplier equipment that is installed on
the Aircraft by the Seller will be included free of charge in the
first issue ("First Issue") of the customized Technical Data.
14A.3.2 Buyer Furnished Equipment
14A.3.2.1 The Seller will introduce Buyer Furnished Equipment data for BFE
which is installed on the Aircraft by the Seller ("BFE Data")
into the customized Technical Data at no additional charge to the
Buyer for the First Issue, provided such data is provided in
accordance with the conditions set forth in Clauses 14A.3.2.2
through 14A.3.2.6.
14A.3.2.2 The Buyer will supply the BFE Data to the Seller, in English and
in a format compliant with ATA 2200 standard specification and
all applicable revisions, at least six (6) months before the
scheduled delivery of the customized Technical Data and Software
Services.
14A.3.2.3 The Buyer and the Seller will enter into a separate agreement
addressing the time frame, media and format in which BFE Data
will be provided to the Seller to facilitate the process of BFE
Data integration in an efficient, expedited and economic manner.
14A.3.2.4 Such agreement will specify that the BFE Data will be delivered
in digital format (SGML) and/or in Portable Document Format
(PDF).
14A.3.2.5 All costs related to the delivery to the Seller of the applicable
BFE Data will be borne by the Buyer.
14A.3.2.6 This Clause 14A.3.2 will also apply to the data related to the
Buyer Furnished Equipment procured by the Seller in accordance
with Clause 18.1.3.
14A.4 Delivery of Technical Data
14A.4.1 Technical Data will be delivered as set forth in Exhibit F.
14A.4.2 The Technical Data and corresponding revisions to be supplied by
the Seller in a format other than on-line will be sent to two (2)
addresses only.
14A.4.3 Technical Data and revisions will be packed and shipped by the
quickest
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transportation methods reasonably available. Shipment will be
Delivery Duty Unpaid (DDU) as defined in Incoterms 2000 published
by the International Chamber of Commerce, Toulouse, France, and/or
Delivery Duty Unpaid (DDU) Hamburg, Germany.
14A.4.4 The Technical Data will be delivered according to a mutually
agreed schedule, designed to correspond to Aircraft deliveries.
The Buyer will provide no less than forty (40) days' notice to
the Seller if a change is requested to the delivery schedule for
the Technical Data.
14A.4.5 The Buyer will be responsible for the coordination with and
satisfaction of local Aviation Authorities' requirements for
Technical Data.
14A.5 Revision Service for Technical Data
Unless otherwise specifically stated, revision service will be
offered free of charge for three (3) years after Delivery of each
Aircraft covered under this Agreement (the "Revision Service
Period"). Thereafter, revision service will be provided in
accordance with the terms and conditions found in the then
current Airbus Customer Services Catalog (the "Airbus CS
Catalog").
14A.6 Service Bulletin (SB) Incorporation for Technical Data
During the period of revision service and upon the Buyer's
request for incorporation of Seller's Service Bulletin
information into the Technical Data, which must be made within
two years after issuance of the applicable Service Bulletin, such
information will be incorporated into the Technical Data for the
Buyer's Aircraft after formal notification by the Buyer of its
intention to accomplish a Service Bulletin. The split effectivity
for the corresponding Service Bulletin will remain in the
Technical Data until notification from the Buyer to the Seller
that embodiment has been completed on all the Buyer's Aircraft.
For operational data either the pre or post (but not both)
Service Bulletin status will be shown.
14A.7 Technical Data Familiarization
Upon request by the Buyer, the Seller will provide one (1) week
of Technical Data familiarization training, at the Seller's or
Buyer's facility. If such familiarization is conducted at the
Buyer's facilities, the Buyer will reimburse the Seller for
business class air transportation and reasonable living expenses
of the representative(s) of Seller conducting the familiarization
training.
14A.8 Customer Originated Changes (COC)
Upon the Buyer's request Buyer-originated data ("COC Data") may be
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incorporated into any of the Technical Data eligible for
customization as defined in the then current Airbus CS Catalog.
COC Data will be developed by the Buyer according to the methods
and tools for achieving such introduction issued by the Seller.
The Buyer will ensure that any COC Data is in compliance with the
requirements of its local Aviation Authorities.
Incorporation of any COC Data will be at the Buyer's sole risk,
and the Buyer will indemnify the Seller against any liability
whatsoever with respect to:
the contents of any COC Data (including any omissions or
inaccuracies therein)
any effect that the incorporation of such COC Data may have on
the Technical Data or
any costs of any nature that any COC may have on all subsequent
Service Bulletins and modifications.
14A.9 AirN@v Services
14A.9.1 The Technical Data listed below will be provided through an
advanced consultation tool (hereinafter referred to as AirN@v
Services). The applicable Technical Data is as follows:
AirN@v Maintenance
Aircraft Maintenance Manual,
Illustrated Parts Catalog (Airframe/Powerplant),
Trouble Shooting Manual,
Aircraft Schematics Manual,
Aircraft Wiring Lists,
Aircraft Wiring Manual,
Electrical Standard Practices Manual,
AirN@v Associated Data
Consumable Material List
Standards Manual
AirN@v Engineering
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14A.9.2 The licensing conditions for the use of AiN@v Services will be as
set forth in Appendix A to this Clause 14 to the Agreement,
"General Conditions of Licensing of Software".
14A.9.3 The license to use AirN@v Services will be granted free of charge
for the Aircraft for as long as the revisions of the applicable
Technical Data are free of charge in accordance with Clause
14A.5. At the end of the Revision Service Period, the yearly
revision service for AirN@v Services and the associated license
fee will be provided to the Buyer at the standard commercial
conditions set forth in the then current Airbus CS Catalog.
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14A.10 On-Line Services; Customer Portal
14A.10.1 The Buyer will be provided with access to a Secure Area of The
Airbus World/Online Services through which a variety of on-line
products and services related to the Aircraft including Technical
Data, are available, pursuant to the General Terms and Conditions
of Access to and Use of The Secure Area of the World/Online
Services, Appendix B to this Clause 14.
14A.10.2 The Seller reserves the right to suppress other formats of
Technical Data that is available on-line.
14A.10.3 Access to the Secure Area will be at no cost for the duration
of the Revision Service Period set forth in Clause 14A.5
herein.
14A.10.4 Access to the Secure Area shall be granted free of charge for a
maximum of fifty (50) of the Buyer's users (including one Buyer
Administrator) for the Technical Data related to the Aircraft
which shall be operated by the Buyer.
14A.11 Warranty
The provisions of Clause 12 and in particular of Clause 12.5
(EXCLUSIVITY OF WARRANTIES AND GENERAL LIMITATIONS OF LIABILITY),
will apply to the provision of Technical Data under this Clause
14.
14A.12 Proprietary Rights
All proprietary rights, including but not limited to patent,
design and copyrights, relating to Technical Data will remain
with the Seller. All Technical Data are supplied to the Buyer for
the sole use of the Buyer, who undertakes not to divulge the
contents thereof to any third party save as permitted herein or
otherwise pursuant to any governmental or legal requirement
imposed on the Buyer.
These proprietary rights will also apply to any translation into
a language or languages or media that may have been performed or
caused to be performed by the Buyer.
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14B Software Services
14B.1 Performance Engineer's Program
In addition to the standard operational manuals, the Seller will
provide to the Buyer the Performance Engineer's Programs (PEPs)
under the terms and conditions of the General Conditions of
Licensing For Use Of Software, attached as Appendix A hereto. Use
of the PEP will be limited to one (1) copy installed on one (1)
computer. PEP is intended for use on ground only and will not be
installed on an Aircraft. The Seller will provide the Buyer with
a three-day installation and review visit regarding the PEPs.
The license for use of PEP will be granted free of charge for a
period equal to the Revision Service Period. At the expiration of
that period, the Buyer will be entitled to continue to use the
PEP free of charge, but the Buyer will be charged for all
revisions, in accordance with the terms and conditions of the
then current Airbus CS Catalog.
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14C General Provisions
14C.1 Future Developments in Technical Data
The Buyer agrees to consider for implementation any new
technological development applicable to, and deemed by the Seller
to be beneficial and economical for, the production and
transmission of data and documents.
14C.2 Confidentiality.
The Technical Data, the Software Services and their content are
designated as confidential. All such Technical Data and Software
Services are supplied to the Buyer for the sole use of the Buyer
who undertakes not to disclose the contents thereof to any third
party without the prior written consent of the Seller as
permitted therein or otherwise pursuant to any government or
legal requirement imposed upon the Buyer.
If the Seller authorizes the disclosure of any of the Technical
Data to third parties, either under this Agreement or otherwise,
the Buyer will assure that such third party agrees to be bound by
the same conditions as the Buyer with respect to the
confidentiality of the Technical Data and/or Software Services.
If the Buyer intends to designate a maintenance and repair
organization (MRO) to perform the maintenance of the Aircraft,
the Buyer will notify the Seller of such intention prior to any
disclosure of this Clause and/or the Technical Data and/or the
Software Services to the selected MRO and will cause such MRO to
enter into a confidentiality agreement with the Seller and, in
the case of Software Services, appropriate licensing conditions,
and to commit to use such Technical Data and Software Services
solely for the purpose of maintaining the Buyer's Aircraft.
14C.3 Transferability
Buyer's rights under this Clause 14 will not be assigned, sold,
transferred, novated or otherwise alienated by operation of law
or otherwise, without the Seller's prior written consent.
Any unauthorized assignment, sole, transfer, novation, or other
alienation of the Buyer's rights under this Clause 14 will, as to
the particular Aircraft involved, immediately void this Clause 14
in its entirety.
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15 - SELLER REPRESENTATIVES
The Seller will provide or cause to be provided at no charge to
the Buyer's Initial Operator the services described in this
Clause 15, at the Buyer's Initial Operator main base or at other
locations to be mutually agreed.
15.1 Customer Support Director
The Seller shall assign the services of one (1) Customer Support
Director based at the Seller's or its Affiliates office to liaise
between the Seller and the Buyer on product support matters after
signature of this Agreement for as long as at least one (1)
Aircraft is operated by an Operator or is still owned by the
Buyer.
15.2 Customer Support Representatives
15.2.1 The Seller shall provide free of charge to the Buyer the services
of Seller customer support representative(s), provided in
Appendix A to this Clause 15 (each a "Seller Representative"), at
the Initial Operator's main base or such other locations as the
parties may agree.
15.2.2 In providing the services as described hereabove, any Seller's
employees, including specifically Seller Representatives, are
deemed to be acting in an advisory capacity only and at no time
shall they be deemed to be acting as Buyer's employees or agents,
either directly or indirectly.
15.2.3 The Seller shall provide to the Buyer an annual written
accounting of the consumed man-months and any remaining man-month
balance from the allowance defined in Appendix A. Such accounting
shall be deemed final and accepted by the Buyer unless the Seller
receives written objection from the Buyer within thirty (30)
calendar days of receipt of such accounting.
15.2.4 In the event of a need for Aircraft On Ground ("AOG") technical
assistance after the end of the assignment referred to in
Appendix A to this Clause 15, the Buyer or its Operator shall
have non-exclusive access to:
a) AIRTAC (Airbus Technical AOG Center);
b) The Seller Representative network closest to the Buyer's
Operator main base. A list of contacts of the Seller
Representatives closest to the Buyer's Operator main base shall
be provided to the Buyer or its Operator.
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As a matter of reciprocity, the Buyer shall authorize the Seller
Representative(s), during his assignment at the Buyer's
Operator's, to provide similar assistance to another airline.
15.2.5 Should the Buyer request Seller Representative services exceeding
the allocation specified in Appendix A to this Clause 15, the
Seller may provide such additional services subject to terms and
conditions to be mutually agreed.
15.2.6 The Seller shall cause similar services to be provided by
representatives of the Propulsion Systems Manufacturer and
Suppliers, when necessary and applicable.
15.3 Buyer's Support
15.3.1 From the date of arrival of the first Seller Representative and
for the duration of the assignment, the Buyer shall provide or
shall cause its Operator to provide free of charge a suitable
lockable office, conveniently located with respect to the Buyer's
Operator maintenance facilities, with complete office furniture
and equipment including telephone, internet, email and facsimile
connections for the sole use of the Seller Representative(s). All
related communication costs shall be borne by the Seller upon
receipt by the Seller of all relevant justifications, however the
Buyer shall not impose on the Seller any charges other than the
direct cost of such communications.
15.3.2 The Buyer shall reimburse the Seller the costs for the initial
and termination assignment travel of the Seller Representatives
of one (1) confirmed ticket, Business Class, to and from their
place of assignment and TOULOUSE, FRANCE.
The Buyer shall also reimburse the Seller the costs for air
transportation for the annual vacation of the Seller
Representatives to and from their place of assignment and
TOULOUSE, FRANCE.
15.3.3 Should the Buyer request any Seller Representative referred to in
Clause 15.2 above to travel on business to a city other than his
usual place of assignment, the Buyer shall be responsible for all
related transportation costs and expenses.
15.3.4 Absence of an assigned Seller Representative during normal
statutory vacation periods are covered by the Seller
Representatives as defined in Clause 15.2.4 and as such are
accounted against the total allocation provided in Appendix A
hereto.
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15.3.5 The Buyer or the Buyer's Operator shall assist the Seller in
obtaining from the civil authorities of the Buyer's or the
Buyer's Operator's country those documents that are necessary to
permit the Seller Representative to live and work in the Buyer's
or Buyer's Operator's country. Failure of the Seller to obtain
the necessary documents shall relieve the Seller of any
obligation to the Buyer under the provisions of Clause 15.2.
15.3.6 The Buyer shall reimburse to the Seller charges, taxes, duties,
imposts or levies of any kind whatsoever, imposed by the
authorities of the Buyer's country upon:
- the entry into or exit from the Buyer's country of the Seller
Representatives and their families,
- the entry into or the exit from the Buyer's country of the
Seller Representatives and their families' personal property,
- the entry into or the exit from the Buyer's country of the
Seller's property, for the purpose of providing the Seller
Representatives services.
15.4 Temporary Assignment and Withdrawal of Resident Customer Support
Representative
The Seller will have the right upon written notice to and
communication with the Buyer to transfer or recall any Seller's
Representative on a temporary or permanent basis if, in the
Seller's opinion, conditions are dangerous to the Seller's
Representative's safety or health or prevent the fulfillment of
such Seller's Representative's contractual tasks. The man-days
during which any Seller's Representative is absent from the
Buyer's facility pursuant to this Clause 15 will not be deducted
from the total to which the Buyer is entitled under Clause 15.
15.5 Indemnities
INDEMNIFICATION PROVISIONS APPLICABLE TO THIS CLAUSE 15 ARE SET
FORTH IN CLAUSE 19.
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Appendix A to Clause 15
SELLER REPRESENTATIVE ALLOCATION
The Seller Representative allocation that is provided to the Buyer pursuant to
Clause 15.2 is set out below.
The Buyer's Initial Operator shall be provided a total of twelve (12)
man-months of Seller Representative services per Aircraft at the
Buyer's Initial Operator main base or at other locations to be mutually
agreed.
For clarification, such Seller Representatives' services shall include
initial Aircraft Entry Into Service (EIS) assistance and sustaining
support services.
The number of the Seller's Representatives assigned to the Buyer's
Initial Operator at any one time shall be mutually agreed, but at no
time shall it exceed three (3) men.
Absence of an assigned Seller's Representative during normal statutory
vacation periods are covered by the Seller's Representatives as defined
in Clause 15.3.5 and as such are accounted against the total allocation
provided in item 1 above.
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16 - TRAINING AND TRAINING AIDS
16.1 General
This Clause sets forth the terms and conditions for the supply of
training and training aids for the Buyer's personnel or the
personnel of its Operators to support the Aircraft operation.
16.2 Scope
16.2.1 The range and quantity of training and training aids to be
provided free of charge under this Agreement are covered in
Appendix A to this Clause 16. The Seller will arrange
availability of such training and training aids in relation to
the delivery schedule for the Aircraft set forth in Clause 9.1.1.
16.2.2 The contractual training courses, defined in Appendix A to this
Clause 16, will be provided up to one (1) year after delivery of
each corresponding Aircraft.
16.2.3 In the event that the Buyer or its Operators should use none or
only part of the training or training aids to be provided
pursuant to this Clause, no compensation or credit of any sort
will be provided.
16.3 Training Organization / Location
16.3.1 The Seller shall provide training at its training center in
Blagnac, France, or in Hamburg, Germany or one of its Affiliated
training centers in Miami, U.S.A., or Beijing, China (each the
"Seller's Training Center").
16.3.2 If unavailability of facilities or scheduling difficulties make
training by the Seller impractical at the training centers
referenced in Clause 16.3.1, the Seller will ensure that the
Buyer or its Operators are provided the training support
described in this Clause 16 at locations other than those named
in Clause 16.3.1.
16.3.3 Upon the Buyer's or its Operators' request, the Seller may also
provide certain training at a location other than the Seller's
Training Centers, including one of the Buyer's or its Operators'
bases, if and when practicable for the Seller, under terms and
conditions to be mutually agreed upon. In this event, all
additional charges listed in Clause 16.6.2 will be borne by the
Buyer or its Operators.
16.3.4 If the Buyer's Operator request an Airbus approved course at a
location as indicated in Clause 16.3.3, the Buyer will assure
that the training facilities are approved prior to the
performance of such training. The Buyer's
AYR FREIGHTER LLC - A330-200F - June 2007 78
Operator will, as necessary and in due time prior to the
performance of such training, provide access to the training
facilities set forth in Clause 16.3.3 to the Seller's and the
Aviation Authority's representatives for approval of such
facilities.
16.4 Training Courses
16.4.1 Training courses, as well as the minimum and maximum numbers of
trainees per course provided for the Buyer's personnel or the
personnel of its Operators, are defined in the applicable
training course catalog published by the Seller (the "Training
Course Catalog") and will be scheduled as mutually agreed upon
during a training conference (the "Training Conference") that
will be held as soon as practicable after signature of this
Agreement and no later than nine (9) months prior to Delivery of
the first Aircraft.
16.4.2 The following terms will apply when training is performed by the
Seller
(i) Subject to 16.4.2(ii) below, training courses will be
standard Airbus courses as described in the Training Course
Catalog valid at the time of execution of the course. The Seller
will be responsible for all training course syllabi, training
aids and training equipment (not to include aircraft) necessary
for the organization of the training courses.
Where the Seller agrees to perform training using Buyer's or its
Operator's standard courses, the Buyer or its Operator will be
responsible for (a) taking all steps necessary to assure approval
by applicable Aviation Authorities of such training (including
any needed approvals of specific Seller's instructors) and (b)
the costs of instructor hours spent preparing for being qualified
for use of Buyer's or its Operator's standard courses.
The training curricula and the training equipment used for flight
crew, cabin crew and maintenance training will not be fully
customized but will be configured in order to obtain the relevant
Aviation Authority's approval and to support the Seller's
training programs.
Training data and documentation necessary for training detailed
in Appendix A to this Clause 16 will be free-of-charge and will
not be revised. Training data and documentation will be marked
"FOR TRAINING ONLY" and as such will be supplied for the sole and
express purpose of training.
Upon the request of the Buyer and at no charge to the Buyer, the
Seller will collect and pack for consolidated shipment to the
Buyer's or its Operators' facility, all training data and
documentation of the Buyer's or its Operators' trainees attending
training at the Seller's Training Center. This training data and
documentation will be delivered Free Carrier (FCA)
AYR FREIGHTER LLC - A330-200F - June 2007 79
as defined by Incoterms 2000 of the International Chamber of
Commerce published January 2000, the airport nearest to the
location where the training takes place. It is understood that
title to and risk of loss of the training data and documentation
will pass to the Buyer upon delivery.
16.4.3.1 If the Buyer or its Operator decides to cancel fully or partially
or reschedule, a training course, a minimum advance notification
of at least sixty (60) calendar days prior to the relevant
training course start date is required.
16.4.3.2 If such notification is received by the Seller less than sixty
(60) but no more than thirty (30) calendar days prior to such
training, a cancellation fee corresponding to fifty percent (50%)
of such training will be, as applicable, either deducted from the
training allowance defined in Appendix A or invoiced at the price
corresponding to such training at the Seller's then applicable
price.
16.4.3.3 If such notification is received by the Seller in less than
thirty (30) calendar days prior to such training, a cancellation
fee corresponding to one hundred (100%) of such training will be,
as applicable, either deducted from the training allowance
defined in Appendix A or invoiced at the price corresponding to
such training at the Seller's then applicable price.
16.4.4 In fulfillment of its obligation to provide training courses,
when the Seller performs the training courses, the Seller will
deliver to the trainees a certificate of completion or a
certificate of recognition (each a "Certificate") or an
attestation ("Attestation"), as applicable, at the end of any
such training course. Seller Certificate or Seller Attestation
does not represent authority or qualification by any official
Aviation Authorities but may be presented to such officials in
order to obtain relevant formal qualification.
If training is provided by a training provider other than the
Seller that is selected by the Seller, the Seller will cause such
training provider to deliver a Certificate or an Attestation at
the end of any such training course. Such Certificate or
Attestation will not represent authority or qualification by any
official Aviation Authority but may be presented to such
officials in order to obtain relevant formal qualification.
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16.5 Prerequisites and Conditions
16.5.1 Training will be conducted in English and all training aids are
written in English using common aeronautical terminology.
Trainees must have the prerequisite experience as defined in
Appendix B to this Clause 16.
All training courses conducted pursuant to this Clause 16 are
"Standard Transition Training Courses" and not "Ab Initio
Training Courses."
The Buyer or its Operators will be responsible for the selection
of the trainees and for any liability with respect to the entry
knowledge level of the trainees.
16.5.2.1 The Buyer or its Operator will provide the Seller with an
attendance list of the trainees for each course with the
validated qualification of each trainee. The Seller reserves the
right to verify the trainees' proficiency and previous
professional experience. The Seller will in no case warrant or
otherwise be held liable for any trainee's performance as a
result of any training services provided.
16.5.2.2 The Buyer or its Operator will also complete and provide to the
Seller the "Airbus Pre-Training Survey" detailing the trainees'
associated background at the time of reservation of the training
course and in no event any later than sixty (60) calendar days
prior to the start of the training course. If the Buyer or its
Operator makes a change to the attendance list pursuant to Clause
16.5.2.1 the Buyer or its Operator will immediately inform the
Seller thereof and send to the Seller an updated Airbus
Pre-Training Survey reflecting such change. The notice provision
in Clause 16.4.3.1 and 16.4.3.2 apply for changes.
16.5.3 Upon the Buyer's or its Operator's request, the Seller may be
consulted to direct the above mentioned trainee(s) through a
relevant entry level training program, which will be at the
Buyer's charge, and, if necessary, to coordinate with competent
outside organizations for this purpose. Such consultation will be
held during the Training Conference.
If the Seller should determine that a trainee lacks the required
entry level training, such trainee will, following consultation
with the Buyer or its Operator, be withdrawn from the program or
be directed to a relevant entry level training program, which
will be at the Buyer's or its Operator's expense.
Upon such withdrawal, the Seller will deduct the corresponding
allowance from the total allowance for the applicable training in
accordance with the
AYR FREIGHTER LLC - A330-200F - June 2007 81
provisions set forth in Clause 16.4.3.2.
16.5.4 The Seller will in no case warrant or otherwise be held liable
for any trainee's performance as a result of any training
provided.
16.6 Logistics
16.6.1 Trainees
16.6.1.1 The Seller shall provide free local transportation by bus for the
Buyer's trainees or for the Operator's trainees to and from
designated pick-up points and the Seller's Training Centers.
16.6.1.2 Living expenses for the Buyer's or its Operator's trainees are to
be borne by the Buyer or its Operator.
16.6.2 Training at External Location
16.6.2.1 Seller's Instructors
If at the Buyer's or its Operator's request, training is provided
by the Seller's instructors at any location other than the
Seller's training centers, the Buyer or its Operator will
reimburse the Seller for all the expenses, as provided below in
Clauses 16.6.2.2, 16.6.2.3, 16.6.2.4 and 16.6.2.5 related to the
assignment of such instructors and their performance of the
duties as aforesaid.
16.6.2.2 Living Expenses for the Seller's Instructors
Such expenses, covering the entire period from day of assignment
to day of return to the Seller's base, will include but will not
be limited to lodging, food and local transportation to and from
the place of lodging and the training course location. The Buyer
or its Operator will reimburse the Seller for such actual
expenses.
16.6.2.3 Air Travel
The Buyer or its Operator will reimburse the Seller for the
transportation costs of the Seller's instructors in confirmed
business class to and from the Buyer's or its Operator's
designated training site and the Seller's Training Center.
16.6.2.4 Training Material
The Buyer or its Operator will reimburse the Seller for the cost
of shipping the training material needed to conduct such courses.
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16.6.2.5 Buyer's Indemnity
The Buyer or its Operator will be solely liable for any and all
cancellation or delay in the performance of the training outside
of the Seller's Training Centers that is associated with the
transportation provided under Clause 16.6.2.3 and will indemnify
and hold the Seller harmless from such delay and any consequences
arising therefrom. The Seller will not be liable to the Buyer or
its Operator for any delay or cancellation.
16.6.2.6 Training Equipment Availability
Training equipment necessary for course performance at any course
location other than the Seller's training centers or the
facilities of the training provider selected by the Seller will
be provided by the Buyer or its Operator in accordance with the
Seller's specifications.
16.7 Flight Operations Training
16.7.1 Flight Crew Training Course
16.7.1.1 The Seller will perform a flight crew training course program as
defined in Appendix A to this Clause 16, for the Buyer's Operator
flight crews. A flight crew will consist of two (2) crew members
who will be either captains or first officers. Except for
in-flight training, for which the Operator's customized Flight
Crew Operating Manual will be used, the training manual used for
all flight crew training courses will be the Seller's Flight Crew
Operating Manual. If the Seller agrees to use the Operator's
Flight Crew Operating Manual for other flight crew training, the
Buyer or its Operator will be responsible for obtaining any
necessary approvals required by applicable Aviation Authorities
and for any costs associated therewith, including time spent by
any Airbus instructor to achieve such approvals.
16.7.1.2 Base Flight Training
16.7.1.2.1 The Buyer's Operator will use its delivered Aircraft or any
aircraft it operates for any required in-flight training and will
pay all costs associated with such use. This training will not
exceed one (1) session of forty-five (45) minutes per pilot,
according to the related Airbus training course definition (the
"Base Flight Training").
16.7.1.2.2 In the event of it being necessary to ferry the Buyer's delivered
Aircraft to the location where the Base Flight Training shall
take place, the additional flight time required for the ferry
flight to and/or from the Base Flight Training field shall not be
deducted from the Base Flight Training time.
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16.7.1.2.3 If the Base Flight Training is performed outside of the zone
where the Seller usually performs such training, the ferry flight
to the location where the Base Flight Training shall take place
shall be performed by a crew composed of the Seller's and/or the
Operator's qualified pilots, in accordance with the relevant
Aviation Authority's regulations related to the place of
performance of the Base Flight Training.
16.7.1.2.4 If necessary, the Operator shall assist the Seller in obtaining
the validation of the licenses of the Seller's pilots performing
such Base Flight Training by the Aviation Authority of the place
of registration of the Aircraft.
16.7.1.3 In all cases, the Buyer or its Operator will bear the expenses of
fuel, oil and landing fees.
16.7.2 Flight Crew Line Initial Operating Experience
16.7.2.1 In order to assist the Buyer or its Operator with initial
operating experience after Delivery of the first Aircraft, the
Seller will provide to the Operator pilot instructor(s) as
defined in Appendix A to this Clause 16. The maximum number of
Seller's pilot instructors present at the Operator's site at one
time will be limited to two (2).
16.7.2.2 In the event of the Buyer requesting, subject to the Seller's
consent, such Seller pilot Instructors to perform any other
flight support during the flight crew line initial period such as
but not limited to line assistance, demonstration flight(s),
ferry flight(s) or any flight(s) required by the Buyer during the
period of entry into service of the Aircraft, it is understood
that such flight(s) shall be deducted from the flight crew line
initial operating experience allowance set forth in Appendix A
hereto.
It is hereby understood by the Parties that the Seller's pilot
Instructors shall only perform the above flight support services
to the extent they bear the relevant qualifications to do so.
In addition to the number of pilots specified in Appendix A
attached hereto, the Seller may provide pilot instructors, at the
Buyer's or its Operator's expense upon conditions to be mutually
agreed.
16.7.2.3 Prior to any flight training to be performed by the Seller on the
Buyer's Aircraft, the Buyer will provide to the Seller a copy of
the certificate of insurance as requested in Clause 19.
16.7.3 Instructor Cabin Attendants' Familiarization Course
The Seller will provide cabin attendants training in accordance
with
AYR FREIGHTER LLC - A330-200F - June 2007 84
Appendix A to this Clause 16. The instructor cabin
attendants' course, when incorporating the features of the
Aircraft, will be given no earlier than (2) weeks before the
Delivery Date of the first Aircraft.
16.7.4 Performance/Operations Course
The Seller will provide performance/operations training for the
Buyer's personnel or the personnel of its Operator a defined in
Appendix A to this Clause 16
The available courses are listed in the Seller `s applicable
Training Courses Catalog.
16.7.4 Transition Type Rating Instructor (TRI) Course
The Seller will provide transition type rating instructor (TRI)
training for the Buyer's Operator flight crew instructors, as
defined in Appendix A to this Clause 16.
This course provides the Operator's pilots and/or instructors
with the training in both flight-instruction and
synthetic-instruction required in order to enable them to
instruct on Airbus aircraft.
16.8 Maintenance Training
16.8.1 The Seller will provide maintenance training for the Buyer's or
its Operator's ground personnel as defined in Appendix A to this
Clause 16.
The available courses are listed in the Seller's applicable
Training Course Catalog.
The practical training provided in the frame of maintenance
training shall be performed on the training devices in use in the
Seller's Training Centers.
16.8.2 Line Maintenance Initial Operating Experience Training
In order to assist the Operator during the entry into service of
the Aircraft, the Seller will provide to the Operator maintenance
instructor(s) at the Operator's base as defined in Appendix A to
this Clause 16. The maximum number of instructors to be assigned
to Operator's base at one time will be two (2).
16.8.2.1 This line maintenance initial operating experience training will
cover training in handling and servicing of Aircraft, flight crew
and maintenance coordination, use of Technical Data and/or any
other activities which may be deemed necessary after delivery of
the first Aircraft.
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16.8.2.2 The Buyer or its Operator will reimburse the expenses for said
instructor(s) in accordance with Clause 16.6.2. Additional
maintenance instructors can be provided at the Buyer's or its
Operator's expense.
16.9 Supplier and Engine Manufacturer Training
Upon the Buyer's request, the Seller will provide to the Buyer a
list of the courses provided by major Suppliers and the
applicable Propulsions Systems manufacturer on their products.
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16.10 Training Aids for the Buyer's Training Organization
16.10.1 The Seller will provide to the Buyer the Airbus Computer Based
Training ("Airbus CBT") training aids, as used in the Seller's
Training Centers together with the Virtual Aircraft walk around
component, subject to Buyer's execution of appropriate agreements
for the license and use of such Airbus CBT and Virtual Aircraft.
The training aids supplied to the Buyer shall be similar to those
used in the Seller's Training Centers at the time of such
training aids' delivery for the training provided for the Buyer.
16.10.2 The Seller will deliver the Airbus CBT, training aids and Virtual
Aircraft, at a date to be mutually agreed during the Training
Conference.
The items supplied to the Buyer pursuant to Clause 16.10.1 will
be delivered FCA Toulouse, Blagnac Airport. Title to and risk of
loss of said items will pass to the Buyer upon delivery thereof.
16.10.3 Installation of the Airbus CBT and the Virtual Aircraft
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16.10.3.1 Before the initial delivery of the Airbus CBT System and of the
Virtual Aircraft, the Seller will provide up to six (6) trainees
of the Buyer, at the Buyer's facilities, a training course
enabling the Buyer to load and use the Airbus CBT System and the
Virtual Aircraft either on stand-alone workstations or in a
"Server" mode (the "Airbus CBT Administrator Course").
To conduct the course, the workstations and/or Servers, as
applicable, will be ready for use and will comply with the latest
"Airbus CBT Workstation Technical Specification" or "Airbus CBT
Server Technical Specification", as applicable (collectively "the
Airbus CBT Technical Specification").
16.10.3.2 The Airbus CBT System and the Virtual Aircraft will be installed
by the Buyer's personnel, who will have completed the Airbus CBT
Administrator Course. The Seller will be held harmless from any
injury to person and/or damage to property caused by or in any
way connected with the handling and/or installation of the Airbus
CBT and the Virtual Aircraft by the Buyer's personnel.
16.10.3.3 Upon the Buyer's request and subject to conditions to be quoted
by the Seller, the Seller may assist the Buyer with the initial
installation of the Airbus CBT System and the Virtual Aircraft at
the Buyer's facilities. Such assistance will follow notification
in writing that the various components, which will be in
accordance with the specifications defined in the Airbus CBT
Technical Specification, are ready for installation and available
at the Buyer's facilities.
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16.10.4 Airbus CBT and Virtual Aircraft License
16.10.4.1 The use of the Airbus CBT System and of the Virtual Aircraft will
be subject to license conditions defined in Appendix C to this
Clause 16 (License For Use Of Airbus Computer Based Training
(Airbus CBT")), hereinafter "the License".
For the purpose of the Virtual Aircraft, the term "Airbus CBT
System" as used in such License will mean "Airbus CBT including
the Virtual Aircraft".
16.10.4.2 Supply of sets of CBT Courseware or sets of Virtual Aircraft
Software, as defined in Appendix C and additional to those
indicated in Appendix A, as well as any extension to the License
will be subject to terms and conditions to be mutually agreed.
16.10.5 The Seller shall not be responsible for and hereby disclaims any
and all liabilities resulting from or in connection with the use
by the Buyer of the Airbus CBT System, the Virtual Aircraft and
any other training aids provided under this Clause 16.10.
16.10.6 Proprietary Rights
The Seller's training data and documentation, including the
Airbus CBT System, the Virtual Aircraft and other training aids
are proprietary to Seller and/or its Affiliates and the Buyer
agrees not to disclose the content of any courseware,
documentation or other information relating thereto, in whole or
in part, to any third party without the prior written consent of
the Seller.
16.10.7 Transferability
Notwithstanding the provisions of Clause 20.1, the Buyer's rights
under this Clause 16 will not be assigned, sold, transferred,
novated or otherwise alienated by operation of law or otherwise
without the Seller's prior written consent thereto, which will
not be reasonably withheld.
Any unauthorized assignment, sale, transfer or other alienation
of the Buyer's rights under this Clause 16 will, as to the
particular Aircraft involved immediately void this Clause 16 in
its entirety.
16.10.8 Indemnities and Insurance
INDEMNIFICATION PROVISIONS AND INSURANCE REQUIREMENTS APPLICABLE
TO THIS CLAUSE 16 ARE AS SET FORTH IN CLAUSE 19.
THE BUYER SHALL PROVIDE THE SELLER WITH AN ADEQUATE INSURANCE
CERTIFICATE PRIOR TO ANY TRAINING ON AIRCRAFT.
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Appendix A to Clause 16
TRAINING ALLOWANCES
The contractual training courses defined in this Appendix A shall be provided
up to two (2) years after Delivery of each Aircraft delivered under this
Agreement.
1. FLIGHT OPERATIONS TRAINING
1.1 Flight Crew Training (standard transition course or cross crew
qualification (CCQ) as applicable)
With respect to each Aircraft, the Seller shall provide flight
crew training (standard transition course or CCQ as applicable)
free of charge for eight (8) of the relevant Operator's flight
crews per firmly ordered Aircraft.
1.2 Flight Crew Line Initial Operating Experience
The Seller will provide to the Buyer pilot instructor(s) free of
charge for a period of one (1) pilot instructor month per firmly
ordered Aircraft to assist with flight-crew initial operating
experience.
The maximum number of Seller's pilot instructors present at the
Buyer's site at any one time will be limited to two (2) pilot
instructors.
1.3 Performance/Operations Course(s)
The Seller shall provide to the Buyer two hundred (200) trainee
days of performance/ operations training free of charge per each
of the Buyer's Initial Operators.
The above trainee days shall be used solely for the
performance/operations training courses as defined in the
Seller's applicable Training Course Catalog.
1.4 Transition Type Rating Instructor (TRI) Course
The Seller shall provide to the Buyer one (1) transition type
rating instructor training (transition or CCQ, as applicable)
free of charge per Aircraft.
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2. MAINTENANCE TRAINING
2.1 Maintenance Training Courses
The Seller shall provide to the Buyer two hundred (200) trainee
days of maintenance training free of charge per each Aircraft for
the Buyer's Initial Operators' personnel.
These trainee days shall be used solely for the Maintenance
training courses either defined in the Seller's applicable
Training Course Catalog or as otherwise supplied by the Seller.
Within the maintenance trainee days allowance above, the number
of Engine Run-Up Courses will be limited to one (1) course for
three (3) trainees per firmly ordered Aircraft and to a maximum
of nine (9) courses in total.
2.2 Trainee Days Accounting
Trainee days are counted as follows:
(i) For instruction at the Seller's training center or affiliated
training center, one day of instruction for one (1) trainee
equals one (1) trainee day, and the number of trainees as
confirmed by the Buyer sixty (60) days before the beginning of
the course will be counted as the number of trainees considered
to have taken the course.
(ii) For instruction outside of the Seller's training center or
affiliated training center, not including practical training, one
(1) day of instruction by one (1) Seller instructor equals the
actual number of trainees attending the course or a minimum of
twelve (12) trainee days except for the structure maintenance
training course: one (1) day of instructor by one (1) Seller
instructor equals the actual number of trainees attending the
course or a minimum of six (6) trainee days and a maximum of
eight (8) trainee days.
(iii) For instruction outside of the Seller's training center or
affiliated training center that is practical training, one (1)
day of instruction by one (1) Seller instructor equals the actual
number of trainees attending the course or a minimum of six (6)
trainee days.
If training being provided outside of the Seller's training
center or affiliated training centers specifically at the
Seller's request, Paragraph 3(i) above shall be applicable to the
trainee days accounting for such training facility.
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3 TRAINING AIDS FOR BUYER'S TRAINING ORGANIZATION
3.1 Delivery
The Seller shall provide to the Buyer free of charge:
one (1) Airbus CBT (flight and/or maintenance) related to the
Aircraft type(s) as covered by this Agreement (including one (1)
set of CBT Courseware and one (1) set of CBT Software for flight
and one (1) set of CBT Courseware and one (1) set of CBT Software
for maintenance, as applicable). The detailed description of the
Airbus CBT will be provided to the Buyer at the Training
Conference;
one (1) Virtual Aircraft (Walk around and Component Location)
related to the Aircraft type(s) as covered in this Agreement.
one (1) set of training documentation on CD-ROM;
one (1) CD-ROM of cockpit panels for training.
3.2 Revision Service
The Airbus CBT and Virtual Aircraft in use at the Seller's
Training Center are revised on a regular basis and such revision
will be provided to the Buyer during the period when training
courses provided under this Clause 16 are performed for the Buyer
or up to three (3) years after initial delivery of the Airbus CBT
or the Virtual Aircraft to the Buyer under this Agreement,
whichever occurs first.
AYR FREIGHTER LLC - A330-200F - June 2007 ▇▇
▇▇▇▇▇▇▇▇ ▇ to Clause 16
MINIMUM RECOMMENDED QUALIFICATION
IN RELATION TO TRAINING REQUIREMENTS
(Standard Transition Courses)
The prerequisites listed below are the minimum recommended requirements
specified for Airbus training. If the appropriate Aviation Authority or the
specific airline policy of the trainee demands greater or additional
requirements, such requirements will be considered as prerequisites.
- CAPTAIN prerequisites:
..Fluency in English (able to write, read and communicate at an adequately
understandable level in English language)
..Valid and Current Airline Transport Pilot License (ATPL)
..Previously qualified on FAR/EASA/CS 25 aircraft and commercial operations
..Jet experience
..Previous command experience
..1500 hours minimum flying experience as pilot
..1000 hours experience on FAR/JAR 25 aircraft
..200 hours experience as airline, corporate pilot or military pilot
..Must have flown transport type aircraft, as flying pilot, within the last 12
months.
- FIRST OFFICER prerequisites:
..Fluency in English (able to write, read and communicate at an adequately
understandable level in English language)
..Previously qualified on FAR/EASA/CS 25 aircraft and commercial operations
..Aircraft and commercial operations valid and current CPL (Commercial pilot
license) with Instrument rating,
..Jet experience
..500 hours minimum flying experience as pilot of fixed wing aircraft
..300 hours experience on FAR/JAR 25 aircraft
..200 hours flying experience as airline pilot or a corporate pilot or military
pilot
..Must have flown transport type aircraft, as flying pilot, within the last 12
months.
For both CAPTAIN and FIRST OFFICER, if one or several of the above criteria are
not met, the trainee must follow
(i) an adapted course or
(ii) an Entry Level Training (ELT) program before entering the regular or the
adapted course.
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Such course(s), if required, will be at the Buyer's expense.
- FIRST TYPE RATING COURSE prerequisites:
This course is designed for Ab initio pilots who do not hold an aircraft
type rating on their pilot license.
..Valid and current commercial pilot license
..Valid and current instrument rating on multi engine aircraft at European
standards ATPL written examination
..Fluency in English (able to write, read and communicate at an adequately
understandable level in English language)
..220 hours flying experience as a pilot
..100 hours flying experience as pilot-in-command (PIC)
..25 hours experience on multi-engine aircraft (up to 10 hours can be completed
in a simulator
In addition to the above conditions and in accordance with the Airbus Training
Policy, a pilot applying for a first type rating must have followed a program
equivalent to the "Airbus Entry Level Training (ELR) program" (combined MCC and
Jet familiarization course). Such course, if required, will be at the Buyer's
expense.
- CCQ ADDITIONAL prerequisites:
..Captain or First officer prerequisites as applicable
..Be qualified and current on the base aircraft type
..150 hours minimum and 3 months minimum of operations on the base aircraft type
- TRI COURSE ADDITIONAL prerequisites
In addition to the prerequisites set forth for the Flight Crew Standard
Transition Course, it is the responsibility of the Buyer to:
..select instructor candidate(s) with airmanship and behavior corresponding to
the role and responsibility of an airline instructor
..designate instructor candidate(s) with the Airbus prerequisite, which
corresponds to the JAR requirements (ref JAR - FCL 1 - Requirements/ Subparts H
- Instructor rating (Aeroplane)
- PERFORMANCE AND OPERATIONS prerequisites:
..Fluent in English (able to write, read and communicate at an adequately
understandable level in English language)
..All other prerequisites, depending upon type of training course selected, will
be provided by Seller to the Buyer during the Training Conference
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- MAINTENANCE PERSONNEL prerequisites:
(i) For all Maintenance courses:
Trainees must be fluent in English (able to write, read and communicate
at an adequately understandable level in English language) and have
technical experience in the line and/or base maintenance of commercial
jet aircraft
(ii) For Aircraft Rigging Courses:
Qualification on the related systems Airbus aircraft family as aviation
maintenance technician (AMT) or holder of a basis"B1" license or
equivalent
(iii) For Maintenance Initial Operating Experience Courses:
Personnel attending this training course must have successfully
completed the theoretical training element of the related Aircraft type
course
(iv) For Maintenance Training Difference Courses:
In addition to the Maintenance Personnel prerequisites in (i), (ii) and
(iii) above, trainees must be currently qualified and operating on the
base Aircraft.
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17 - SUPPLIER PRODUCT SUPPORT
17.1 Equipment Supplier Product Support Agreements
17.1.1 The Seller will at no charge to the Buyer transfer to the Buyer the
Supplier Product Support Agreements transferable to the Buyer from
Suppliers of seller furnished equipment listed in the Specification.
These agreements are based on the "World Airlines and Suppliers Guide"
and include Supplier commitments contained in the Supplier Product
Support Agreements, which include the following:
(i) Technical data and manuals required to operate, maintain, service
and overhaul the Supplier items that will (a) be prepared in accordance
with the provisions of the applicable ATA Specification in accordance
with Clause 14, (b) include revision service, and (c) be published in
the English language.
(ii) Warranties and guarantees, including Suppliers' standard
warranties, and in the case of Suppliers of landing gear, service life
policies for selected landing gear structures,
(iii) Training to ensure efficient operation, maintenance and overhaul
of the Suppliers' items for the Buyer's instructors, shop and line
service personnel,
(iv) Spares data in compliance with ATA Specification 200 or 2000,
initial provisioning recommendations, spares and logistics service,
including routine and emergency deliveries, and
(v) Technical service to assist the Buyer with maintenance, overhaul,
repair, operation and inspection of Supplier items as well as required
tooling and spares provisioning.
17.2 Supplier Compliance
The Seller will monitor Supplier compliance with support commitments
defined in the Supplier Product Support Agreements.
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18 - BUYER FURNISHED EQUIPMENT
18.1 Administration
18.1.1 Without additional charge and in accordance with the Specification, the
Seller provide for the installation of the Buyer Furnished Equipment
("BFE"), provided that the BFE is referred to in the Airbus BFE catalog
of approved suppliers by products valid at the time the BFE is ordered.
The Seller will advise the Buyer of the dates by and location to which,
in the planned release of engineering for the Aircraft, the Seller
requires a written detailed engineering definition, (the "BFE
Definition"). This BFE Definition will include the definition of the
dimensions and weight of BFE, the information related to its
certification and information necessary for the installation and
operation thereof. The Buyer will furnish such BFE Definition by the
dates specified. Thereafter, no information, dimensions or weights will
be revised except by an SCN executed in accordance with Clause 2.
The Seller will also provide the Buyer in due time with a schedule of
dates and shipping addresses for delivery of BFE, including, additional
spare BFE (if such spare BFE has been requested by the Seller) in order
to permit installation of the BFE in the Aircraft and delivery of the
Aircraft in accordance with the delivery schedule. The Buyer will
provide the BFE by such dates in a serviceable condition, to allow
performance of any assembly, test, or acceptance process in accordance
with the Seller's industrial schedule.
The Buyer will also arrange, when requested by the Seller, at the
Seller's facilities in Toulouse, France or Hamburg, as applicable and
needed, adequate field service, including support from BFE suppliers to
act in a technical advisory capacity to the Seller in the installation,
calibration and possible repair of any BFE.
18.1.2 The BFE will be imported into France or into Germany by the Buyer under
a suspensive customs system ("Regime de l'entrepot industriel pour
fabrication coordonnee" or "Zollverschluss") without application of any
French or German tax or customs duty, and will be Delivered Duty Unpaid
(DDU) (as defined in Incoterms 2000:ICC Official Rules for the
Interpretation of Trade Terms, published by the International Chamber of
Commerce), to
AIRBUS FRANCE S.A.S.
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or
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AIRBUS DEUTSCHLAND GMBH
Division Hamburger Flugzeugbau
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18.1.3 If the Buyer requests the Seller to supply directly certain items that
are considered BFE according to the Specification, and if such request
is notified to the Seller in due time in order not to affect the
Delivery Date of the Aircraft, the Seller may agree to order under the
terms of a separate agreement entered into between the Buyer and the
relevant BFE Supplier such items subject to the execution of an SCN
reflecting the effect on price, escalation adjustment, and any other
conditions of the Agreement. In such case the Seller will be entitled to
the payment of a reasonable handling charge and will bear no liability
in respect of delay and product support commitments for such items.
18.2 Requirements
The Buyer is responsible for assuring and warranting, at its expense,
that BFE will (i) be manufactured by a qualified supplier in accordance
with the provisions of Clause 18.1.1 above, (ii) meet the requirements
of the applicable Specification, (iii) comply with applicable
requirements incorporated by reference to the Type Certificate and
listed in the Type Certificate Data Sheet, and (iv) be approved by the
applicable Aviation Authority delivering the Export Certificate of
Airworthiness and by the Buyer's Aviation Authority for installation and
use on the Aircraft at the time of Delivery of such Aircraft. The Seller
will be entitled to refuse any item of BFE that it considers
incompatible with the Specification, the Engineering Definition or the
certification requirements.
18.3 Buyer's Obligation and Seller's Remedies
18.3.1 Any delay or failure in
(i) furnishing the BFE in serviceable condition at the requested
delivery date,
(ii) complying with the warranty in Clause 18.2 or in providing the
BFE Definition or field service support mentioned in Clause
18.1.1, or
(iii) in obtaining any required approval for such equipment under the
above mentioned Aviation Authority's regulations
may delay the performance of any act to be performed by the Seller and
cause the Final Contract Price of the Aircraft to be adjusted in
accordance with the updated delivery schedule, and result in additional
costs to be incurred by the
AYR FREIGHTER LLC - A330-200F - June 2007 98
Seller. Any costs the Seller incurs that are attributable to the delay or
failure described above, such as storage, taxes, insurance and costs of
out-of sequence installation will be borne by the Buyer.
18.3.2 In addition to the consequences outlined in Clause 18.3.1, in the event
of a delay or failure described in Clause 18.3.1,
(i) the Seller may select, purchase and install equipment similar to the
BFE at issue, in which event the Final Contract Price of the affected
Aircraft will also be increased by the purchase price of such equipment,
and the Buyer will be responsible for the reasonable costs and expenses
incurred by the Seller for handling charges, transportation, insurance,
packaging and, if required and not already provided for in the price of
the Aircraft, for adjustment and calibration; or
(ii) if the BFE is delayed more than thirty (30) days beyond, or
unapproved within thirty (30) days of the date specified in Clause
18.1.1, then the Seller may deliver or the Buyer may elect to have the
Aircraft delivered without the installation of such equipment,
notwithstanding the terms of Clause 7.2 insofar as it may otherwise have
applied, whereon the Seller will be relieved of all obligations to
install such equipment.
18.4 Title and Risk of Loss
Title to and risk of loss of BFE will at all times remain with the
Buyer, except that risk of loss (limited to cost of replacement of said
BFE and excluding in particular loss of use) will be with the Seller for
as long as the BFE is in the care, custody and control of the Seller.
18.5 Disposition of BFE Following Termination
18.5.1 If a termination of this Agreement pursuant to the provisions of Clause
21 occurs with respect to an Aircraft in which all or any part of the
BFE has been installed prior to the date of such termination, the Seller
will be entitled, but not required, to remove all items of BFE that can
be removed without damage to the Aircraft and to undertake commercially
reasonable efforts to facilitate the sale of such items of BFE to other
customers, retaining and applying the proceeds of such sales to reduce
Seller's damages resulting from the termination.
18.5.2 The Buyer will cooperate with the Seller in facilitating the sale of BFE
pursuant to Clause 18.5.1 and will be responsible for all costs incurred
by the Seller in removing and facilitating the sale of such BFE. The
Buyer will reimburse the Seller for all such costs within five (5)
Business Days of receiving documentation of such costs from the Seller.
AYR FREIGHTER LLC - A330-200F - June 2007 99
18.5.3 The Seller will notify the Buyer as to those items of BFE not sold by
the Seller pursuant to Clause 18.5.1 above and, at the Seller's request,
the Buyer will undertake to remove such items from the Seller' facility
within thirty (30) days of the date of such notice. The Buyer will have
no claim against the Seller for damage or destruction of any item of BFE
removed from the Aircraft and not removed from Seller's facility within
such period.
18.5.4 The Buyer will have no claim against the Seller for damage to or
destruction of any item of BFE damaged or destroyed in the process of
being removed from the Aircraft, provided that the Seller will use
reasonable care in such removal.
18.5.5 The Buyer will grant title to the Seller for any BFE items that cannot
be removed from the Aircraft without causing damage to the Aircraft or
rendering any system in the Aircraft unusable.
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19 - INDEMNITIES AND INSURANCE
19.1 Seller's Indemnities
The Seller will, except in the case of gross negligence or willful
misconduct of the Buyer, its directors, officers, agents and/or
employees, be solely liable for and will indemnify and hold the Buyer,
its Affiliates, its subcontractors, and each of their respective
directors, officers, agents, employees and insurers harmless against all
losses, liabilities, claims, damages, costs and expenses, including
court costs and reasonable attorneys' fees ("Losses"), arising from:
(a)claims for injuries to, or death of, the Seller's directors,
officers, agents or employees, or loss of, or damage to, property of the
Seller or its employees when such Losses occur during or are incidental
to either party's exercise of any right or performance of any obligation
under this Agreement, and
(b)claims for injuries to, or death of, third parties, or loss of, or
damage to, property of third parties, occurring during or incidental to
the Technical Acceptance Process.
19.2 Buyer's Indemnities
The Buyer will, except in the case of gross negligence or willful
misconduct of the Seller, its directors, officers, agents and/or
employees, be solely liable for and will indemnify and hold the Seller,
its Affiliates, its subcontractors, and each of their respective
directors, officers, agents, employees and insurers, harmless against
all Losses arising from:
claims for injuries to, or death of, the Buyer's directors, officers,
agents or employees, or loss of, or damage to, property of the Buyer or
its employees, when such Losses occur during or are incidental to either
party's exercise of any right or performance of any obligation under
this Agreement, and
claims for injuries to, or death of, third parties, or loss of, or
damage to, property of third parties, occurring during or incidental to
(i) the provision of Seller Representatives services under Clause 15 or
(ii) the provision of Aircraft Training Services to the Buyer.
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19.3 Notice and Defense of Claims
If any claim is made or suit is brought against a party or entity
entitled to indemnification under this Clause 19 (the "Indemnitee") for
damages for which liability has been assumed by the other party under
this Clause 19 (the "Indemnitor"), the Indemnitee will promptly give
notice to the Indemnitor and the Indemnitor (unless otherwise requested
by the Indemnitee) will assume and conduct the defense, or settlement,
of such claim or suit, as the Indemnitor will deem prudent. Notice of
the claim or suit will be accompanied by all information pertinent to
the matter as is reasonably available to the Indemnitee and will be
followed by such cooperation by the Indemnitee as the Indemnitor or its
counsel may reasonably request, at the expense of the Indemnitor.
If the Indemnitor fails or refuses to assume the defense of any claim or
suit notified to it under this Clause 19, the Indemnitee will have the
right to proceed with the defense or settlement of the claim or suit as
it deems prudent and will have a claim against the Indemnitor for any
judgments, settlements, costs or expenses, including reasonable
attorneys' fees. Further, in such event, the Indemnitor will be deemed
to have waived any objection or defense to the Indemnitee's claim based
on the reasonableness of any settlement.
19.4 Insurance
For all Aircraft Training Services, to the extent of the Buyer's
undertaking set forth in Clause 19.2, the Buyer will:
cause the Seller, its Affiliates, its subcontractors and each of their
respective directors, officers, agents and employees to be named as
additional insured under the Buyer's Comprehensive Aviation Legal
Liability insurance policies, including War Risks and Allied Perils
(such insurance to include the AVN 52E Extended Coverage Endorsement or
any further Endorsement replacing AVN 52E as may be available as well as
any excess coverage in respect of War and Allied Perils Third Parties
Legal Liabilities Insurance), and
with respect to the Buyer's Hull All Risks and Hull War Risks insurances
and Allied Perils, cause the insurers of the Buyer's hull insurance
policies to waive all rights of subrogation against the Seller, its
Affiliates, its subcontractors and each of their respective directors,
officers, agents, employees and insurers.
Any applicable deductible will be borne by the Buyer. The Buyer will
furnish to the Seller, not less than seven (7) working days prior to the
start of any Aircraft Training Services, certificates of insurance, in
English, evidencing the limits of liability cover and period of
insurance coverage in a form acceptable to the Seller from the Buyer's
insurance broker(s), certifying that such policies have been endorsed as
follows:
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under the Comprehensive Aviation Legal Liability Insurances, the Buyer's
policies are primary and non-contributory to any insurance maintained by
the Seller,
such insurance can only be cancelled or materially altered by the giving
of not less than thirty (30) days (but seven (7) days or such lesser
period as may be customarily available in respect of War Risks and
Allied Perils) prior written notice thereof to the Seller, and
under any such cover, all rights of subrogation against the Seller, its
Affiliates, its subcontractors and each of their respective directors,
officers, agents, employees and insurers have been waived.
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20 - ASSIGNMENTS AND TRANSFERS
20.1 Assignments by Buyer
Except as hereinafter provided, the Buyer may not sell, assign or
transfer its rights or obligations under this Agreement to any person
without the prior written consent of the Seller.
20.2.1 Assignments for Delivery Financing
The Buyer shall be entitled to assign its rights under this Agreement at
any time in connection with the financing of its obligation to pay the
Final Price subject to such assignment being in form and substance
reasonably acceptable to the Seller.
20.2.2 Assignments for Predelivery Payment Financing
The Buyer shall be entitled to assign its rights under this Agreement at
any time in connection with the financing of its obligation to pay the
Predelivery Payment subject to such assignment being in form and
substance reasonably acceptable to the Seller.
20.3 Assignments on Sale, Merger or Consolidation
The Buyer will be entitled to assign its rights under this Agreement at
any time due to a merger, consolidation or a sale of all or
substantially all of its assets, provided the Buyer first obtains the
written consent of the Seller. The Seller will provide its consent if
(i) the surviving or acquiring entity is organized and existing under
the laws of the United States, Ireland or another country
reasonably acceptable to the Seller;
(ii) the surviving or acquiring entity has executed an assumption
agreement, in form and substance reasonably acceptable to the
Seller, agreeing to assume all of the Buyer's obligations under
this Agreement;
(iii) at the time, and immediately following the consummation, of the
merger, consolidation or sale, no event of default exists or will
have occurred and be continuing;
(iv) there exists with respect to the surviving or acquiring entity no
basis for a Termination Event;
(v) the surviving or acquiring entity substantially remains an
operating lessor or wholly-owned subsidiary of an operating lessor
at the time, and
AYR FREIGHTER LLC - A330-200F - June 2007 104
immediately following the consummation, of such sale, merger or
consolidation; and
(vi) immediately following the sale, merger or consolidation, in a
financial condition at least equal to that of the Buyer at time
of execution of the Agreement.
20.4 Designations by Seller
The Seller may at any time by notice to the Buyer designate facilities
or personnel of ANACS or any Affiliate of the Seller at which or by whom
the services to be performed under this Agreement will be performed.
Notwithstanding such designation, the Seller will remain ultimately
responsible for fulfillment of all obligations undertaken by the Seller
in this Agreement.
20.5 Transfer of Rights and Obligations upon Reorganization
In the event that the Seller is subject to a corporate restructuring
having as its object the transfer of, or succession by operation of law
in, all or substantially all of its assets and liabilities, rights and
obligations, including those existing under this Agreement, to a person
("the Successor") that is an Affiliate of the Seller at the time of that
restructuring, for the purpose of the Successor carrying on the business
carried on by the Seller at the time of the restructuring, such
restructuring will be completed without consent of the Buyer following
notification by the Seller to the Buyer in writing. The Buyer recognizes
that succession of the Successor to the Agreement by operation of law,
which is valid under the law pursuant to which that succession occurs,
will be binding upon the Buyer.
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21 - TERMINATION
21.1 Termination Events
Each of the following will constitute a "Termination Event"
(1) The Buyer or any of its Affiliates commences in any jurisdiction any
case, proceeding or other action with respect to the Buyer or any of its
Affiliates or their properties relating to bankruptcy, insolvency,
reorganization, winding-up, liquidation, dissolution or other relief
from, or with respect to, or readjustment of, its debts or obligations.
(2) An action is commenced in any jurisdiction seeking the appointment
of a receiver, trustee, custodian or other similar official for the
Buyer or any of its respective Affiliates or for all or any substantial
part of their respective assets, and such action remains unstayed,
undismissed or undischarged for sixty (60) days, or the Buyer or any of
its Affiliates makes a general assignment for the benefit of its
creditors.
(3) An action is commenced in any jurisdiction against the Buyer or any
of its respective Affiliates seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of their respective assets, and such action remains
unstayed, undismissed or undischarged for sixty (60) days.
(4) The Buyer or any of its Affiliates becomes the object, in any
jurisdiction, of a case, proceeding or action similar or analogous to
any of the events mentioned in Clause 21.1. (1), (2) or (3).
(5) The Buyer or any of its Affiliates is generally not able, or is
expected to be unable to, or will admit in writing its inability to, pay
its debts as they become due.
(6) The Buyer or any of its Affiliates commences negotiations with
significant creditors, existing or potential, either with the intention
of restructuring all or a substantial part of all of its outstanding
obligations or in preparation for a bankruptcy filing under the U.S.
Bankruptcy Code.
(7) The Buyer or any of its Affiliates fails to make payment of (i) any
payment required to be made under this Agreement or any other material
agreement between the Buyer or any of its Affiliates and the Seller or
any of its Affiliates when such payment is due, (ii) any Predelivery
Payment required to be made under this Agreement when such payment is
due, or (iii) payment of all or part of the Final Contract Price of any
Aircraft required to be made under this Agreement.
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(8) The Buyer repudiates, cancels or terminates this Agreement in whole
or in part.
(9) The Buyer defaults in its obligation to take delivery of an Aircraft
as provided in Clause 9.2.
(10) The Buyer or any of its Affiliates defaults in the observance or
performance of any other covenant, undertaking or obligation contained
in this Agreement or any other material agreement between the Buyer or
its Affiliates, on the one hand, and the Seller or its Affiliates on the
other hand, provided that, if such breach or default is capable of being
cured and such breach or default is not cured within any specified cure
period, or if no cure period is specified, within ten (10) days of such
breach or default.
(11) Any other event that the parties will agree in writing constitutes
a Termination Event hereunder.
21.2 If a Termination Event occurs, the Buyer will be in material breach of
this Agreement, and the Seller will have the right to resort to any
remedy under applicable law, and may, without limitation, by written
notice to the Buyer, immediately:
Elect to: (i) suspend its performance under this Agreement with respect
to any or all Aircraft, (ii) reschedule the Scheduled Delivery Month of
any or all Aircraft remaining to be delivered under this Agreement,
(iii) reschedule the date for performance under this Agreement with
respect to any or all equipment, services, data and other items, and/or
(iv) cancel or terminate this Agreement (a "Termination") with respect
to any or all Aircraft, and/or equipment, services, data and/or other
items related thereto or terminate; and
claim and receive payment from the Buyer of a sum equal to Seller's
actual damages resulting from Seller's exercise of the remedies set
forth in the foregoing 21 (2) (i), (ii) or (iii) and, in the case of a
Termination under the foregoing 21 (2) (iv) only, the Seller will in
lieu of actual damage be entitled to receive payment from the Buyer, as
liquidated damages and not as a penalty, an amount equal to, for each
Affected Aircraft (as defined below), the sum of:
the greater of
(i) all Predelivery Payments previously received by the Seller
from the Buyer under this Agreement with respect to such
Affected Aircraft and
(ii) the amount set forth as follows:
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if the Applicable Date (as defined below) occurs before
the first day of the 48th month prior to the Scheduled
Delivery Month of such Aircraft: six percent (6) of the
Escalated Price per such Aircraft,
b. if the Applicable Date occurs on or after the first day
of the 36th month but before the first day of the 30th
month prior to the Scheduled Delivery Month of such
Aircraft: twelve percent (12) of the Escalated Price per
such Aircraft,
if the Applicable Date occurs on or after the first day of
the 30th month but before the first day of the 24th month
prior to the Scheduled Delivery Month of such aircraft:
eighteen percent (18) of the Escalated Price per such
Aircraft,
if the Applicable Date occurs on or after the first day of
the 24th month but before the first day of the 18th month
prior to the Scheduled Delivery Month of such Aircraft:
twenty-four percent (24) of the Escalated Price per such
Aircraft,
if the Applicable Date occurs if on or after the first day
of the 12th month before Scheduled Delivery Month but
before the Delivery Date of such Aircraft: thirty percent
(30) of the Escalated Price per such Aircraft, and
(B) interest on the foregoing amounts at the rate of 1.5% per
month from the relevant Applicable Date to the date of actual
payment of such amount.
(3)Liquidated damages will be payable by Buyer promptly, and in any
event within ten (10) days of the date of written notice and demand
therefor from Seller, such demand to set forth in reasonable detail the
calculation of such liquidated damages and to identify the Termination
Event upon which the Seller is relying. The parties agree that the
remedy of liquidated damages is not to be denied to the Seller due to
the inability of Seller to deliver a notice and demand for payment
thereof due to the operation of law following a bankruptcy or other
Termination Event under Clause 21.1.(1) - (4). The parties further agree
that in circumstances where a Termination Event has occurred and the
Seller does not cancel this Agreement as to any or all Aircraft, but
instead seeks to recover its actual damages resulting therefrom, the
amount of actual damages payable by the Buyer will not exceed the amount
of liquidated damages that could have been claimed by Seller pursuant to
Clause 21.2 (2) had the Seller elected to claim, as a result of such
Termination Event, liquidated damages pursuant to Clause 21.2 (2).
(4)The parties to this Agreement are commercially sophisticated parties
represented by competent counsel. The parties expressly agree and
declare that damages for material breach of this Agreement by the Buyer
AYR FREIGHTER LLC - A330-200F - June 2007 108
resulting in a Termination of this Agreement as to any or all Aircraft
have been liquidated at amounts which are reasonable in light of the
anticipated or actual harm caused by the Buyer's breach, the
difficulties of proof of loss and the nonfeasibility of otherwise
obtaining an adequate remedy. It is understood and agreed by the parties
that the amount of liquidated damages set forth herein is the total
amount of monetary damages, no more and no less, to which the Seller
will be entitled for and with respect to any Aircraft as recovery for
material breach of this Agreement by Buyer resulting in a Termination by
the Seller of this Agreement as to such Aircraft.
21.3 For purposes of this Clause 21, the terms "Affected Aircraft",
"Applicable Date and "Escalated Price" are defined as follows:
(i) "Affected Aircraft" -any or all Aircraft with respect to which the
Seller has cancelled or terminated this Agreement pursuant to Clause 21.
2 (1) (iv),
(ii) "Applicable Date" - for any Affected Aircraft the date of the
Termination Event which the Seller specifies in its notice and demand
for payment of liquidated damages delivered under Clause 21.2 (3).
(iii) "Escalated Price" - the sum of (i) the Base Price of the Airframe,
(ii) the Base Price of SCNs and MSCNs entered into after the date of
this Agreement, and (iii) the Reference Price of the Propulsion Systems,
all as escalated to the Applicable Date in accordance with the
provisions of Clause 4.
21.4. Promptly upon becoming aware of the occurrence of a Termination Event by
the Buyer, the Buyer will notify the Seller of such occurrence in
writing, provided, that any failure by the Buyer to notify the Seller
will not prejudice the Seller's rights or remedies hereunder.
21.5 If at any time prior to scheduled Delivery Date of an Aircraft, the
Seller has reasonable grounds for insecurity as to the ability of the
Buyer to perform its obligation to take Delivery of such Aircraft, then
the Seller will send the Buyer a written demand for adequate assurance
of performance. If adequate assurance acceptable to the Seller is not
received within thirty (30) days following the date of such written
demand, then the Seller will have the right to either (a) exercise the
remedies provided under Section 2-609 of the Uniform Commercial Code or
(b) exercise any of its remedies under Clause 21.2.
21.6 Information Covenants
The Buyer hereby covenants and agrees that, from the date of this
Agreement until no further Aircraft are to be delivered hereunder, the
Buyer will furnish or cause to be furnished to the Seller, within ninety
(90) days of the end of the financial reporting period, the following:
AYR FREIGHTER LLC - A330-200F - June 2007 109
(a) Annual Financial Statements. For any relevant reporting
period during which shares in Aircastle Limited are not
publically traded, the consolidated balance sheet of Aircastle
Limited and its Subsidiaries, as at the end of such fiscal year
and the related consolidated statements of operations, of common
stockholders' equity (deficit) (in the case of Aircastle Limited
and its Subsidiaries) and of cash flows for such fiscal year,
setting forth comparative consolidated figures as of the end of
and for the preceding fiscal year, and examined by any firm of
independent public accountants of recognized standing selected by
Aircastle Limited and reasonably acceptable to the Seller, whose
opinion will not be qualified as to the scope of audit or as to
the status of Aircastle Limited as a going concern, and (ii) a
certificate of such accounting firm stating that its audit of the
business of Aircastle Limited was conducted in accordance with
generally accepted auditing standards.
(b) Quarterly Financial Statements. For any relevant reporting
period during which shares in Aircastle Limited are not
publically traded, the consolidated balance sheet of Aircastle
Limited and its Subsidiaries, as at the end of such quarterly
period and the related consolidated statements of operations for
such quarterly period and for the elapsed portion of the fiscal
year ended with the last day of such quarterly period and in each
case setting forth comparative consolidated figures as of the end
of and for the related periods in the prior fiscal year, all of
which will be certified by an Authorized Officer of Aircastle
Limited, subject to changes resulting from audit and normal
year-end audit adjustments.
For the purposes of this Clause 21, (x) an "Authorized Officer"
of the Buyer will mean the Chief Executive Officer or the Chief
Financial Officer and above who reports directly or indirectly to
the Chief Financial Officer and (y) "Subsidiaries" will mean, as
of any date of determination, those companies owned by the Buyer
whose financial results the Buyer is required to include in its
statements of consolidated operations and consolidated balance
sheets.
AYR FREIGHTER LLC - A330-200F - June 2007 110
22 - MISCELLANEOUS PROVISIONS
22.1 Data Retrieval
On the Seller's reasonable request, the Buyer will provide the Seller
with all the necessary data, as customarily compiled by the Buyer and
pertaining to the operation of the Aircraft, to assist the Seller in
making an efficient and coordinated survey of all reliability,
maintenance, operational and cost data with a view to improving the
safety, availability and operational costs of the Aircraft.
22.2 Notices
All notices and requests required or authorized hereunder will be given
in writing either by personal delivery to a responsible officer of the
party to whom the same is given or by commercial courier, certified air
mail (return receipt requested) or facsimile at the addresses and
numbers set forth below. The date on which any such notice or request is
so personally delivered, or if such notice or request is given by
commercial courier, certified air mail or facsimile, the date on which
sent, will be deemed to be the effective date of such notice or request.
The Seller will be addressed at:
▇, ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇
Attention: Director - Contracts
Telephone: ▇▇ ▇▇ ▇▇ ▇▇ ▇▇ ▇▇
Telecopy: 33 05 61 30 40 11
The Buyer will be addressed at:
AYR FREIGHTER LLC
c/o Aircastle Advisor LLC
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇
Attention General Counsel
Fax: ▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
From time to time, the party receiving the notice or request may
designate another address or another person.
AYR FREIGHTER LLC - A330-200F - June 2007 111
22.3 Waiver
The failure of either party to enforce at any time any of the provisions
of this Agreement, to exercise any right herein provided or to require
at any time performance by the other party of any of the provisions
hereof will in no way be construed to be a present or future waiver of
such provisions nor in any way to affect the validity of this Agreement
or any part hereof or the right of the other party thereafter to enforce
each and every such provision. The express waiver by either party of any
provision, condition or requirement of this Agreement will not
constitute a waiver of any future obligation to comply with such
provision, condition or requirement.
22.4 International Supply Contract
The Buyer and the Seller recognize that this Agreement is an
international supply contract which has been the subject of discussion
and negotiation, that all its terms and conditions are fully understood
by the parties, and that the Specification and price of the Aircraft and
the other mutual agreements of the parties set forth hereof specifically
including all waivers, releases and remunerations by the Buyer set out
herein.
THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS
TRANSACTION.
22.5 Certain Representations Of The Parties
22.5.1 Buyer's Representations
The Buyer represents and warrants to the Seller:
(i) the Buyer is a limited liability company organized and existing in
good standing under the laws of the State of Delaware and has the
corporate power and authority to enter into and perform its obligations
under this Agreement;
(ii) neither the execution and delivery by the Buyer of this Agreement,
nor the consummation of any of the transactions by the Buyer
contemplated thereby, nor the performance by the Buyer of the
obligations thereunder, constitutes a breach of any agreement to which
the Buyer is a party or by which its assets are bound;
(iii) this Agreement has been duly authorized, executed and delivered by
the Buyer and constitutes the legal, valid and binding obligation of the
Buyer enforceable against the Buyer in accordance with its terms.
AYR FREIGHTER LLC - A330-200F - June 2007 112
22.5.2 Seller's Representations
The Seller represents and warrants to the Buyer:
(i) the Seller is organized and existing in good standing under the laws
of the Republic of France and has the corporate power and authority to
enter into and perform its obligations under the Agreement;
(ii) neither the execution and delivery by the Seller of this Agreement,
nor the consummation of any of the transactions by the Seller
contemplated thereby, nor the performance by the Seller of the
obligations there under, constitutes a breach of any agreement to which
the Seller is a party or by which its assets are bound;
(iii) this Agreement has been duly authorized, executed and delivered by
the Seller and constitutes the legal, valid and binding obligation of
the Seller enforceable against the Seller in accordance with its terms.
22. 6 Interpretation And Law
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE
THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT
WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
Each of the Seller and the Buyer (i) hereby irrevocably submits itself
to the nonexclusive jurisdiction of the courts of the state of New York,
New York County, of the United States District Court for the Southern
District of New York, for the purposes of any suit, action or other
proceeding arising out of this Agreement, the subject matter hereof or
any of the transactions contemplated hereby brought by any party or
parties hereto, and (ii) hereby waives, and agrees not to assert, by way
of motion, as a defense or otherwise, in any such suit, action or
proceeding, to the extent permitted by applicable law, any defense based
on sovereign or other immunity or that the suit , action or proceeding
which is referred to in clause (i) above is brought in an inconvenient
forum, that the venue of such suit, action or proceeding is improper, or
that this Agreement or the subject matter hereof or any of the
transactions contemplated hereby may not be enforced in or by these
courts.
22.6.1 The Buyer for itself and its successors and assigns hereby designates
and appoints the Secretary of the Buyer duly elected from time to time
as its legal agent and attorney-in-fact upon whom all processes against
the Buyer in any suit, action or proceeding in respect of any matter as
to which it has submitted to jurisdiction under Clause 22.6 may be
AYR FREIGHTER LLC - A330-200F - June 2007 113
served with the same effect as if the Buyer were a corporation organized
under the laws of the State of New York and had lawfully been served
with such process in such state, it being understood that such
designation and appointments will become effective without further
action on the part of its Corporate Secretary.
22.6.2 The assumption in Clause 22.6.1 made for the purpose of effecting the
service of process will not affect any assertion of diversity by either
party hereto initiating a proceeding in the New York Federal Courts or
seeking transfer to the New York Federal Courts on the basis of
diversity.
22.6.3 Service of process in any suit, action or proceeding in respect of any
matter as to which the Seller or the Buyer has submitted to jurisdiction
under Clause 22.6 (i) may be made on the Seller by delivery of the same
personally or by dispatching the same via Federal Express, UPS, or
similar international air courier service prepaid to, CT Corporation,
New York City offices as agent for the Seller, it being agreed that
service upon CT Corporation will constitute valid service upon the
Seller or by any other method authorized by the laws of the State of New
York, and (ii) may be made on the Buyer by delivery of the same
personally or by dispatching the same by Federal Express, UPS, or
similar international air courier service prepaid to: General Counsel,
Aircastle Advisor Limited, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ or by any other method authorized by the laws of the State of New
York.
22.6.4 Headings
All headings in this Agreement are for convenience of reference only and
do not constitute a part of this Agreement.
22.7 Waiver of Jury Trial
EACH OF THE PARTIES HERETO WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY
LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT AND FOR ANY
COUNTERCLAIM OR CROSS-CLAIM THEREIN.
22.8 No Representations outside of this Agreement.
The parties declare that, prior to the execution of this Agreement, they,
with the advice of their respective counsel, apprised themselves of
sufficient relevant data in order that they might intelligently exercise
their own judgments in deciding whether to execute this Agreement and in
deciding on the contents of this Agreement. Each party further declares
that its decision to execute this Agreement is not predicated on or
influenced by any declarations or representations by any other person,
party, or any predecessors in interest, successors, assigns, officers,
directors, employees, agents or attorneys of any said person or party,
except as set forth in this Agreement. This Agreement resulted from
negotiation involving counsel for all of the parties hereto and no
AYR FREIGHTER LLC - A330-200F - June 2007 114
term herein will be construed or interpreted against any party under the
contra proferentem or any related doctrine.
22.9 Confidentiality
This Agreement including any Exhibits, other documents or data exchanged
between the Buyer and the Seller for the fulfillment of their respective
obligations under the Agreement shall be treated by both parties as
confidential and shall not be released in whole or in part to any third
party except as may be required by law, or to professional advisors for
the purpose of administration and/or implementation hereof, or, in the
case of the Buyer, to the employees or directors of Aircastle Advisor
LLC and Fortress Investment Group involved in the administration and/or
implementation hereof.
In particular, both parties agree:
(i) not to make any press release concerning the whole or any part of
the contents and/or subject matter hereof or of any future
addendum hereto without the prior written consent of the other
party hereto and,
(ii) that any and all terms and conditions of the transaction
contemplated in this Agreement are strictly personal and
exclusive to the Buyer, including in particular, but not limited
to, the Aircraft pricing (the "Personal Information"). The Buyer
therefore agrees to enter into consultations with the Seller
reasonably in advance of any required disclosure of Personal
Information to financial institutions, including operating
lessors, investment banks and their agents or other relevant
institutions for aircraft sale and leaseback or any other
Aircraft or Predelivery Payment financing purposes (the
"Receiving Party").
Without prejudice to the foregoing, any disclosure of Personal
Information to a Receiving Party shall be subject to written agreement
between the Buyer and the Seller, including in particular, but not
limited to:
the contact details of the Receiving Party,
the extent of the Personal Information subject to disclosure,
the Aircraft pricing to be provided to the Receiving Party.
Furthermore, the Buyer shall use its best efforts to limit the
disclosure of the contents of this Agreement to the extent legally
permissible in any filing required to be made by the Buyer with any
governmental or regulatory agency. The Buyer agrees that prior to any
such disclosure or filing, the Seller and the Buyer shall jointly review
and use reasonable efforts agree on the terms and conditions of the
document to be filed or disclosed.
The provisions of this Clause 22.9 shall survive any termination of this
Agreement for a period of eight (8) years.
AYR FREIGHTER LLC - A330-200F - June 2007 115
22.10 Severability
If any provision of this Agreement should for any reason be held
ineffective, the remainder of this Agreement will remain in full force
and effect. To the extent permitted by applicable law, each party hereto
hereby waives any provision of law that renders any provision of this
Agreement prohibited or unenforceable in any respect.
22.11 Entire Agreement
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and thereof and supersedes any
previous understanding, commitments or representations whatsoever,
whether oral or written. This Agreement will not be amended or modified
except by an instrument in writing of even date herewith or subsequent
hereto executed by both parties or by their fully authorized
representatives.
22.12 Inconsistencies
In the event of any inconsistency between the terms of this Agreement
and the terms contained in either (i) the Specification, or (ii) any
other Exhibit, in each such case the terms of this Agreement will
prevail over the terms of the Specification or any other Exhibit. For
the purpose of this Clause 22.12, the term Agreement will not include
the Specification or any other Exhibit hereto.
22.13 Language
All correspondence, documents and any other written matters in
connection with this Agreement will be in English.
22.14 Incidental and Consequential Damages
The parties agree that in no case will either of them be liable to the
other for any incidental or consequential damages for any breach of this
Agreement.
22.15 Counterparts
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered will be an
original, but all such counterparts will together constitute but one and
the same instrument.
AYR FREIGHTER LLC - A330-200F - June 2007 116
IN WITNESS WHEREOF this Agreement was entered into the day and year first above
written.
For and on behalf of For and on behalf of
AYR FREIGHTER LLC AIRBUS S.A.S.
Name: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇ Name: /s/ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------- ---------------------
Title: Authorized Signatory Title: Senior Vice President Contracts
AYR FREIGHTER LLC - A330-200F - June 2007 117