Exhibit 1.1
26,100,000 Shares
AERCAP HOLDINGS N.V.
ORDINARY SHARES, NOMINAL VALUE €0.01 PER SHARE
UNDERWRITING AGREEMENT
November [ ], 2006
November [
], 2006
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
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c/o Morgan Stanley & Co. Incorporated
|
|
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1585 Broadway
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New York, New York 10036
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Ladies and Gentlemen:
AerCap Holdings N.V., a public company with
limited liability (
naamloze vennootschap
)
formed in The Netherlands (the “
Company
”),
proposes to issue and sell to the several Underwriters named in Schedule II
hereto (the “
Underwriters
”), and certain
shareholders of the Company (the “
Selling
Shareholders
”) named in Schedule I hereto severally propose to sell
to the several Underwriters, an aggregate of 26,100,000 ordinary shares, nominal
value €0.01 per share, of the Company (the “
Firm
Shares
”), of which 6,800,000 shares are to be issued and sold by the
Company and 19,300,000 shares are to be sold by the Selling Shareholders, each
Selling Shareholder selling the amount set forth opposite such Selling
Shareholder’s name in Schedule I hereto.
The Selling Shareholders also propose to sell
to the several Underwriters not more than an additional 3,915,000 ordinary shares,
nominal value €0.01 per share (the “
Additional Shares
”),
if and to the extent that you, as the representatives (the “
Representatives
”) on behalf of the Underwriters, shall have
determined to exercise the right to purchase the Additional Shares granted to
the Underwriters in Section 3 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the “
Shares
.” The ordinary shares, nominal value €0.01 per share, of the
Company to be outstanding after giving effect to the sales contemplated hereby
are hereinafter referred to as the “
Ordinary
Shares
.” The Company and the Selling Shareholders are
hereinafter collectively referred to as the “
Sellers
.”
The Company has filed with the Securities and
Exchange Commission (the “
Commission
”)
a registration statement, including a prospectus, relating to the Shares. The
registration statement as amended at the time it becomes effective, including
the information (if any) deemed to be part of the registration statement at the
time of effectiveness pursuant to Rule 430A under the Securities Act of
1933, as amended (the “
Securities Act
”),
is hereinafter referred to as the “
Registration
Statement
;” the
prospectus in the form first used to confirm sales of Shares (or in the form
first made available to the Underwriters by the Company to meet requests of purchasers
pursuant to Rule 173 under the Securities Act) is hereinafter referred to as
the “
Prospectus
.” If the Company has filed an abbreviated
registration statement to register additional Ordinary Shares pursuant to Rule 462(b)
under the Securities Act (the “
Rule 462
Registration Statement
”), then any reference herein to the term “
Registration Statement
” shall be deemed to
include such Rule 462 Registration Statement.
For purposes of this Agreement, “
free writing prospectus
” has the meaning
set forth in Rule 405 under the Securities Act, “
Time of Sale Prospectus
” means the preliminary prospectus
together with the free writing prospectuses, if any, each identified in
Schedule III hereto, and “
broadly available
road show
” means a “bona fide electronic road show” as defined in
Rule 433(h)(5) under the Securities Act that has been made available without
restriction to any person.
References in this Agreement to the Company’s,
counsel’s or any other person’s knowledge shall mean to such person’s knowledge
after due inquiry.
1.
Representations and Warranties of the Company
.
The Company represents and warrants to and agrees with each of the Underwriters
that:
(a)
The
Registration Statement has become effective; no stop order suspending the
effectiveness of the Registration Statement is in effect, and no proceedings
for such purpose are pending before or threatened by the Commission.
(b)
(i)
The Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and the applicable rules and regulations of the Commission
thereunder, (iii) the Time of Sale Prospectus does not, and at the time of each
sale of the Shares in connection with the offering when the Prospectus is not
yet available to prospective purchasers, the Time of Sale Prospectus, as then
amended or supplemented by the Company, if applicable, will not, contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the
2
statements
therein, in the light of the circumstances under which they were made, not
misleading, (iv) each broadly available road show, if any, when considered
together with the Time of Sale Prospectus, does not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading and (v) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in the Registration Statement,
the Time of Sale Prospectus, any broadly available roadshow or the Prospectus
based upon information relating to any Underwriter furnished to the Company in
writing by such Underwriter through you expressly for use therein.
(c)
The
Company is not an “ineligible issuer” in connection with the offering pursuant
to Rules 164, 405 and 433 under the Securities Act. Any free writing prospectus
that the Company is required to file pursuant to Rule 433(d) under the
Securities Act has been, or will be, filed with the Commission in accordance
with the requirements of the Securities Act and the applicable rules and
regulations of the Commission thereunder. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d) under the
Securities Act or that was prepared by or on behalf of or used or referred to by
the Company complies or will comply in all material respects with the
requirements of the Securities Act and the applicable rules and regulations of
the Commission thereunder. Except for the free writing prospectuses, if any,
identified in Schedule III hereto, and broadly available road shows, if any, each
furnished to you before first use, the Company has not prepared, used or
referred to, and will not, without your prior consent, prepare, use or refer
to, any free writing prospectus.
(d)
The
Company has been duly incorporated, is validly existing as a public company
with limited liability under the laws of the jurisdiction of its incorporation,
has the corporate power and authority to own its property and to conduct its
business as described in the Time of Sale Prospectus and is duly qualified to
transact business in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries, taken as a
whole (a “
Material Adverse Effect
”).
(e)
Each
Significant Subsidiary (as defined below) of the Company has been duly
incorporated, is validly existing as a limited liability company or a corporation,
as the case may be, in good standing, where such concept exists, under the laws
of the jurisdiction of its incorporation, has the corporate power and authority
to own its property and to conduct its business as described in the Time
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of Sale Prospectus
and is duly qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or leasing
of property requires such qualification, except to the extent that the failure
to be so qualified or be in good standing would not have a Material Adverse
Effect; all of the issued shares of capital stock of each Significant Subsidiary
of the Company have been duly and validly authorized and issued, are fully paid
and non-assessable and are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims, except as described
in the Time of Sale Prospectus. As used herein, each of AerVenture and Bella
Aircraft Leasing Limited shall be considered a “Significant Subsidiary” and any
other entity consolidated in the Company’s financial statements shall be
considered a “subsidiary” of the Company. As used herein, a “
Significant Subsidiary
” shall mean any subsidiary of the Company
which would be a “significant subsidiary” pursuant to the conditions specified
in 1-02(w) of Regulation S-X, substituting 2 percent for 10 percent each place
it appears therein. The Significant Subsidiaries are listed on Schedule IV
hereto.
(f)
Each
of Dragon (International) Aviation Leasing Company Limited and AerDragon
Aviation Partners Limited (each a “
Company Joint Venture
”),
has been duly organized, is validly existing as a limited liability company under
the laws of the jurisdiction of its organization, has the corporate power and
authority to own its property and to conduct its business as described in the
Time of Sale Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not
have a Material Adverse Effect; the issued shares of capital stock of each Company
Joint Venture that are owned by the Company or its subsidiaries have been duly
and validly authorized and issued, are fully paid and non-assessable and are owned
directly by the Company or its subsidiaries, free and clear of all liens,
encumbrances, equities or claims, except as described in the Time of Sale
Prospectus.
(g)
This
Agreement has been duly authorized, executed and delivered by the Company.
(h)
The
authorized capital stock of the Company conforms as to legal matters to the
description thereof contained in each of the Time of Sale Prospectus and the
Prospectus.
(i)
The
Ordinary Shares (including the Shares to be sold by the Selling Shareholders)
outstanding prior to the issuance of the Shares to be sold by the Company have
been duly authorized and are validly issued, fully paid and non-assessable.
(j)
The
Shares to be sold by the Company have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement,
4
will be
validly issued, fully paid and non-assessable, and the issuance of such Shares
will not be subject to any preemptive or similar rights.
(k)
The
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement will not contravene any provision of
applicable law or the articles of association of the Company or any agreement
or other instrument binding upon the Company or any of its subsidiaries, that
is material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company or any of its subsidiaries, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the performance by the Company of its
obligations under this Agreement, except such as may be required by the
securities or Blue Sky laws of the various U.S. states in connection with the
offer and sale of the Shares.
(l)
There
has not occurred any material adverse change, or any development involving a
prospective material adverse change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its subsidiaries,
taken as a whole, from that set forth in the Time of Sale Prospectus.
(m)
There
are no legal or governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of the properties
of the Company or any of its subsidiaries is subject (i) other than proceedings
accurately described in all material respects in the Time of Sale Prospectus
and proceedings that would not have a Material Adverse Effect, or have a
material adverse effect on the power or ability of the Company to perform its
obligations under this Agreement or to consummate the transactions contemplated
by the Time of Sale Prospectus or (ii) that are required to be described in the
Registration Statement or the Prospectus and are not so described; and there
are no statutes, regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
(n)
Each
preliminary prospectus filed as part of the registration statement as
originally filed or as part of any amendment thereto, or filed pursuant to Rule 424
under the Securities Act, complied when so filed in all material respects with
the Securities Act and the applicable rules and regulations of the Commission
thereunder.
(o)
The
Company is not, and after giving effect to the offering and sale of the Shares
to be sold by the Company and the application of the proceeds thereof as
described in the Time of Sale Prospectus will not be, required to
5
register as an
“investment company” as such term is defined in the Investment Company Act of
1940, as amended.
(p)
The
Company and its subsidiaries (i) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants (“
Environmental
Laws
”), (ii) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a Material Adverse
Effect.
(q)
Except
as disclosed in the Time of Sale Prospectus, there are no costs or liabilities
associated with Environmental Laws (including, without limitation, any capital
or operating expenditures by the Company or any of its subsidiaries, required
for clean-up, closure of properties or compliance with Environmental Laws or
any permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) for the account of
the Company or its subsidiaries, which would, singly or in the aggregate, have
a Material Adverse Effect.
(r)
Except
as disclosed in the Time of Sale Prospectus, there are no contracts, agreements
or understandings between the Company and any person granting such person the
right to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to require the
Company to include such securities with the Shares registered pursuant to the
Registration Statement.
(s)
The
Company is not a party to any contractual arrangement currently in effect
relating to the offer, sale, distribution or delivery of the Shares or any
other securities of the Company other than this Agreement and the arrangements
disclosed in the Registration Statement, the Time of Sale Prospectus and the
Prospectus.
(t)
Subsequent
to the respective dates as of which information is given in each of the
Registration Statement, the Time of Sale Prospectus and the Prospectus, (i) the
Company, its subsidiaries and, to the Company’s knowledge, Company Joint
Ventures, have not incurred any liability or obligation, direct or contingent,
nor entered into any transaction, in each case that is material to the Company
and its subsidiaries, taken as a whole; (ii) the Company has not purchased any
of its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock; and (iii) there has
not been any change in the capital stock of the Company or its subsidiaries or
6
any material change
in the consolidated short-term debt or long-term debt of the Company or, to the
Company’s knowledge, Company Joint Ventures, in each case except as described
in each of the Registration Statement, the Time of Sale Prospectus and the
Prospectus.
(u)
The
Company and its subsidiaries have good and marketable title to all real
property and good and marketable title to all personal property owned by them,
which property is material to the business of the Company and its subsidiaries,
taken as a whole, in each case free and clear of all liens, encumbrances and
defects except such liens, encumbrances and defects as are described in the Time
of Sale Prospectus or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings which are material to the Company and its subsidiaries, taken as a
whole, and are held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries, in each case
except as described in the Time of Sale Prospectus.
(v)
The
Company and its subsidiaries own, lease or manage directly, or indirectly, the
aircraft described in the Time of Sale Prospectus under “Business—Our Aircraft
Business,” “Business—Joint Ventures” and “Business—Aircraft Services,” in each
case, as of the dates indicated therein (collectively, the “
Company Aircraft Portfolio
”); except as described in the
Time of Sale Prospectus, (x) the Company and its subsidiaries have, directly or
indirectly, good and marketable title to, economic rights equivalent to holding
good and marketable title or hold valid and enforceable leases in respect of, the
Company’s Owned Aircraft and (y) to the Company’s knowledge, the Company’s
management contracts with the entities which own (or have the right to the
economic benefits of ownership) the Managed Aircraft are in full force and
effect and the Company has no notice of any claim of default or other material
claim which, individually or in the aggregate, could materially adversely
affect the Company’s consolidated revenues derived from such management
contracts. As used herein, Owned Aircraft and Managed Aircraft have such
meanings as are ascribed to such terms in the Time of Sale Prospectus under “Prospectus
Summary—Explanatory Note Regarding Our Aircraft Portfolio.”
(w)
All
of the lease agreements, lease addenda, side letters, assignment of warranties,
option agreements or similar agreements material to the business of the Company
and its subsidiaries, taken as a whole (collectively, the “
Lease
Documents
”), are in full force and effect; and to the Company’s
knowledge, no event which with the giving of notice or passage of time or both
would become an event of default (as so defined) under any Lease Document has
occurred.
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(x)
All
of the agreements which provide for the formation, governance, shareholding or
similar rights relating to Company Joint Ventures (collectively, the “
Joint Venture Agreements
”) are in full force and effect,
and, except as described in the Time of Sale Prospectus, neither the Company
nor any of its subsidiaries has notice of any claim of default or other
material claim adverse to the Company or any of its subsidiaries asserted under
any Joint Venture Agreement, or affecting or questioning any material rights of
the Company or any of its subsidiaries with respect to any Joint Venture
Agreement.
(y)
The
Company, its subsidiaries and the Company Joint Ventures have entered into
aircraft purchase agreements (the “
Aircraft Purchase
Documents”
) and letters of intent for the purchase of aircraft as
described in the Time of Sale Prospectus. Except as described in the Time of
Sale Prospectus (i) the Aircraft Purchase Documents are in full force and
effect and no event of default (as defined in the applicable Aircraft Purchase
Document) has occurred and is continuing under any Aircraft Purchase Document,
(ii) the letter of intent relating to 20 Airbus A330 aircraft described in the
Time of Sale Prospectus has not been modified in a manner materially adverse to
the Company or its subsidiaries or terminated and (iii) the remaining letters
of intent have not been modified or terminated such that any modification or
termination, individually or in the aggregate, could have a Material Adverse
Effect.
(z)
Except
as disclosed in the Time of Sale Prospectus with respect to the right to use
the AerCap name in the United States, the Company and its subsidiaries own or
possess, or can acquire on reasonable terms, all patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information, systems
or procedures), trademarks, service marks and trade names, which are material
to the Company and its subsidiaries, taken as a whole, and are currently
employed by the Company or its subsidiaries in connection with the business now
operated by them, and neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with asserted rights of
others with respect to any of the foregoing which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect.
(aa)
No
material labor dispute with the employees of the Company or any of its Significant
Subsidiaries exists, except as described in the Time of Sale Prospectus, or, to
the Company’s knowledge, is imminent; and neither the Company nor any or its
subsidiaries is aware of any existing, threatened or imminent labor disturbance
by the employees of any of their principal suppliers, manufacturers or
contractors that could have a Material Adverse Effect.
(bb)
The
Company and each of its Significant Subsidiaries, and their respective owned
and leased properties, are insured by insurers of recognized
8
financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which they are engaged.
(cc)
Neither
the Company nor any of its subsidiaries has sustained since the date of the
latest audited financial statements included in the Time of Sale Prospectus any
material loss or interference with its business by fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any court or
governmental action, order or decree, otherwise than as set forth in such Time
of Sale Prospectus, except for any such loss or interference that would not,
singly or in the aggregate, have a Material Adverse Effect.
(dd)
The
Company and its subsidiaries and, to the Company’s knowledge, Company Joint
Ventures, possess all certificates, authorizations and permits issued by the
appropriate U.S. federal or state or Dutch, Irish or other non-U.S. regulatory
authorities necessary to conduct their respective businesses, and neither the
Company nor any of its subsidiaries or, to the Company’s knowledge, any Company
Joint Venture, has received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect, except as described in
the Time of Sale Prospectus.
(ee)
The
Company, its subsidiaries and, to the Company’s knowledge, Company Joint
Ventures, are in compliance with all applicable laws, regulations or other
requirements of the United States Federal Aviation Administration, the European
Aviation Safety Agency and similar aviation regulatory bodies (collectively, “
Aviation Laws
”), and neither the Company nor any of its
subsidiaries or, to the Company’s knowledge, any Company Joint Venture, has
received any notice of a failure to comply with applicable Aviation Law, except
for any failures to comply that would not, singly or in the aggregate, have a
Material Adverse Effect.
(ff)
The
audited consolidated financial statements of the Company included in the Registration
Statement and the Time of Sale Prospectus (the “
Consolidated
Financial Statements
”) were prepared in accordance with accounting
principles generally accepted in the United States (“
US GAAP
”)
consistently applied and present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries, as at the relevant
dates, and the results of operations and changes in cash flows of the Company
and its consolidated subsidiaries for the periods in respect of which they have
been prepared, and all non-GAAP financial information included in the
Registration Statement complies with the requirements of Regulation G and Item
10 of Regulation S-K under the Act. The unaudited consolidated interim
financial statements of the Company and its consolidated subsidiaries as at September
30, 2006 and for the nine-month periods ended September 30, 2006 and 2005
included in the Registration Statement and the Time of Sale Prospectus (i) have
9
been compiled
on a basis consistent with that of the Consolidated Financial Statements except
as disclosed in the Time of Sale Prospectus and (ii) contain all adjustments,
consisting only of normal recurring adjustments, necessary for the fair
presentation of the financial condition and results of operations of the
Company and its consolidated subsidiaries for the periods shown. The pro forma
combined financial statements of the Company and AeroTurbine, Inc. and the
related notes thereto set forth in the Registration Statement and the Time of
Sale Prospectus have been prepared in accordance with the applicable
requirements of Rule 11-02 of Regulation S-X promulgated by the Commission and
have been properly compiled on the pro forma bases described therein and the
assumptions used in the preparation thereof are reasonable and the adjustments
used therein are appropriate to give effect to the transactions or circumstances
referred to therein. No other financial statements or supporting schedules,
other than the Financial Data Schedule required by Item 601(c) of Regulation
S-K under the Securities Act, are required to be included in the Registration
Statement or Time of Sale Prospectus.
(gg)
The
audited consolidated financial statements of AeroTurbine, Inc. included in the
Time of Sale Prospectus were prepared in accordance with US GAAP consistently
applied and present fairly in all material respects the financial position of
AeroTurbine, Inc. and its consolidated subsidiaries, as at the relevant dates
and the results of operations and changes in cash flows of AeroTurbine, Inc. and
its consolidated subsidiaries for the periods in respect of which they have
been prepared. No other financial statements or supporting schedules relating
to AeroTurbine, Inc., other than the Financial Data Schedule required by Item
601(c) of Regulation S-K under the Securities Act, are required to be included
in the Registration Statement or Time of Sale Prospectus.
(hh)
PricewaterhouseCoopers
LLP, who has audited the Company’s Consolidated Financial Statements and who
will deliver the letters referred to in Section 6(h), is an independent
registered public accounting firm with respect to the Company and its
subsidiaries within the meaning of the Securities Act and the applicable
published rules and regulations thereunder.
(ii)
KPMG
LLP, who has audited AeroTurbine, Inc.’s financial statements and who will
deliver the letters referred to in Section 6(h), is an independent registered
public accounting firm with respect to AeroTurbine, Inc. and its subsidiaries
within the meaning of the Securities Act and the applicable published rules and
regulations thereunder.
(jj)
The
Company, each of its subsidiaries and the other entities that are consolidated in
the Company’s Consolidated Financial Statements maintain a system of internal
accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
10
accounting
principles and to maintain asset accountability; (iii) access to assets is
permitted only in accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets is compared
with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences. Except as described in the Time of Sale Prospectus,
since the end of the Company’s most recent audited fiscal year, there has been
(i) no material weakness in the Company’s internal control over financial
reporting (whether or not remediated) and (ii) no change in the Company’s
internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over
financial reporting.
(kk)
The
Company and each of its subsidiaries have duly filed all tax declarations and
relevant submissions and paid all taxes and duties due and payable, except for
any failure to file a tax declaration or pay taxes or duties due that would
not, singly or in the aggregate, have a Material Adverse Effect. Except as
disclosed in the Time of Sale Prospectus, to the Company’s knowledge, no
objections have been raised by competent tax authorities on tax declarations
and submissions made by the Company and its subsidiaries in prior years that
could, singly or in the aggregate, have a Material Adverse Effect.
(ll)
Except
as described in the Time of Sale Prospectus, the Company has not sold, issued
or distributed any Ordinary Shares during the six-month period preceding the
date hereof, including any sales pursuant to Rule 144A under, or
Regulation D or S of, the Securities Act.
(mm)
To
the Company’s knowledge, neither the Company nor any of its subsidiaries or any
Company Joint Venture, Company Legal Entity (as defined below) or Company
Managed Entity (as defined below), nor any director, officer, agent or employee
of any of the foregoing, has (A) used any corporate funds for any unlawful
contributions, gift, entertainment or other unlawful expense relating to
political activity, (B) made any direct or indirect unlawful payment to any
foreign or domestic government official from corporate funds, (C) violated or
is in violation of any provision of the Foreign Corrupt Practices Act of 1977
or (D) made any bribe, rebate, payoff, influence payment, kickback or other
unlawful payment. The term “
Company Legal Entity
”
means any corporate entity or other legal structure which owns, holds or
manages aircraft, aircraft engines or aircraft or engine parts that were sold
or transferred to such corporate entity or legal structure by the Company or
any of its subsidiaries and from which the Company or its subsidiaries receive,
on an on-going basis, at least 20% of the economic benefit derived from the
operation or sale of such sold or transferred assets. The term “
Company Managed Entity
” means any corporate entity or other
legal structure which owns or leases aircraft and for which the Company or any
of its subsidiaries provides management or administrative services and excludes
Company Joint Ventures.
11
(nn)
Under
the current laws and regulations of The Netherlands all dividends and other
distributions declared and payable on Ordinary Shares in cash may be freely
transferred out of The Netherlands and may be paid in, or freely converted into,
United States dollars, in each case without there being required any consent,
approval, authorization or order of, or qualification with, any court or
governmental agency or body in The Netherlands; and except as disclosed in the Time
of Sale Prospectus, all such dividends and other distributions will not be
subject to withholding, value added or other taxes under the laws and
regulations of The Netherlands.
(oo)
No
stamp or other issuance or transfer taxes or duties are payable by or on behalf
of the Underwriters to The Netherlands or any political subdivision or taxing
authority thereof in connection with the issuance, sale or delivery of the
Shares to the Underwriters.
(pp)
The
Company is a “foreign private issuer,” as defined in Rule 405 of the Securities
Act.
(qq)
To
the Company’s knowledge, the factual information contained in the report of Simat
Helliesen & Eichner (“
SH&E
”) contained
in the Registration Statement and the Time of Sale Prospectus (the “
Independent Expert’s Report
”) is true and accurate in all
material aspects. SH&E is not an affiliate of the Company and, to the
Company’s knowledge, does not have a substantial interest, direct or indirect,
in the Company. To the Company’s knowledge, none of the officers or directors
of SH&E is connected with the Company or any of its affiliates as an
officer, employee, promoter, underwriter, trustee, partner, director or person
performing a similar function.
2.
Representations and Warranties of the Selling
Shareholders
. Each Selling Shareholder represents and warrants to
and agrees with each of the Underwriters that:
(a)
This
Agreement has been duly authorized, executed and delivered by or on behalf of
such Selling Shareholder.
(b)
The
execution and delivery by such Selling Shareholder of, and the performance by
such Selling Shareholder of its obligations under, this Agreement and the Power
of Attorney appointing certain individuals as such Selling Shareholder’s
attorneys-in-fact to the extent set forth therein, relating to the transactions
contemplated hereby and by the Time of Sale Prospectus (the “
Power of Attorney
”) will not contravene any
provision of applicable law, or the formation documents of such Selling
Shareholder, or any agreement or other instrument binding upon such Selling
Shareholder or any judgment, order or decree of any governmental body, agency
or court having jurisdiction over such Selling Shareholder, and no consent,
approval, authorization or order of, or qualification with, any governmental
body or agency is required for the
12
performance by
such Selling Shareholder of its obligations under this Agreement or the Power
of Attorney of such Selling Shareholder, except such as may be required by the
securities or Blue Sky laws of the various U.S. states in connection with the
offer and sale of the Shares.
(c)
Such
Selling Shareholder has, and on the Closing Date will have, valid title to, or
a valid “security entitlement” within the meaning of Section 8-501 of the New
York Uniform Commercial Code in respect of, the Shares to be sold by such
Selling Shareholder free and clear of all security interests, claims, liens,
equities or other encumbrances and the legal right and power, and all
authorization and approval required by law, to enter into this Agreement and
the Power of Attorney and to sell, transfer and deliver the Shares to be sold
by such Selling Shareholder or a security entitlement in respect of such
Shares.
(d)
The
Power of Attorney has been duly authorized, executed and delivered by such
Selling Shareholder and is a valid and binding agreement of such Selling
Shareholder.
(e)
Upon
payment for the Shares to be sold by such Selling Shareholder pursuant to this Agreement,
delivery of such Shares, as directed by the Underwriters, to Cede & Co. (“
Cede
”) or such other nominee as may be designated by the
Depository Trust Company (“
DTC
”),
registration of such Shares in the name of Cede or such other nominee and the
crediting of such Shares on the books of DTC to securities accounts of the
Underwriters (assuming that neither DTC nor any such Underwriter has notice of
any adverse claim (within the meaning of Section 8-105 of the New York Uniform
Commercial Code (the “
UCC
”)) to such
Shares), (A) DTC shall be a “protected purchaser” of such Shares within the
meaning of Section 8-303 of the UCC, (B) under Section 8-501 of the UCC, the
Underwriters will acquire a valid security entitlement in respect of such
Shares, (C) no action based on any “adverse claim”, within the meaning of
Section 8-102 of the UCC and as interpreted under the laws of The Netherlands,
to such Shares may be asserted against DTC or its nominee with respect to such
security entitlement and (D) no action based on any “adverse claim”, within the
meaning of Section 8-102 of the UCC, to such Shares may be asserted against the
Underwriters with respect to such security entitlement; for purposes of this
representation, such Selling Shareholder may assume that when such payment,
delivery and crediting occur, (x) such Shares will have been registered in the
name of Cede or another nominee designated by DTC, in each case on the Company’s
share registry in accordance with its certificate of incorporation, bylaws and
applicable law, (y) DTC will be registered as a “clearing corporation” within
the meaning of Section 8-102 of the UCC and (z) appropriate entries to the
accounts of the several Underwriters on the records of DTC will have been made
pursuant to the UCC.
(f)
Such
Selling Shareholder has not entered into any contractual arrangements relating
to the offer, sale, distribution or delivery of the Shares or
13
any other
securities of the Company other than this Agreement and the arrangements
disclosed in the Registration Statement, the Time of Sale Prospectus or the
Prospectus.
(g)
(i)
The Registration Statement, when it became effective, did not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the
Time of Sale Prospectus does not, and at the time of each sale of the Shares in
connection with the offering when the Prospectus is not yet available to
prospective purchasers, the Time of Sale Prospectus, as then amended or
supplemented by the Company, if applicable, will not, contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, (iii) each broadly available road show, if any, when
considered together with the Time of Sale Prospectus, does not contain any
untrue statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading,
provided
that
the representations and warranties set forth in this paragraph 2(h) are limited
to statements or omissions made in reliance upon information relating to such
Selling Shareholder furnished to the Company in writing by such Selling
Shareholder expressly for use in the Registration Statement, the Time of Sale
Prospectus, the Prospectus, each broadly available roadshow or any amendments
or supplements thereto.
3.
Agreements to Sell and Purchase.
Each
Seller, severally and not jointly, hereby agrees to sell to the several
Underwriters, and each Underwriter, upon the basis of the representations and
warranties herein contained, but subject to the conditions hereinafter stated,
agrees, severally and not jointly, to purchase from such Seller at $[ ] a share
(the “
Purchase Price
”) the number
of Firm Shares (subject to such adjustments to eliminate fractional shares as
you may determine) that bears the same proportion to the number of Firm Shares
to be sold by such Seller as the number of Firm Shares set forth in Schedule II
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares.
On the basis of the representations and
warranties contained in this Agreement, and subject to its terms and
conditions, the Selling Shareholders agree to sell to the Underwriters the
Additional Shares, and the Underwriters shall have the right to purchase,
severally and not jointly, up to 3,915,000 Additional Shares at the Purchase
Price. You, as Representatives, may exercise this right on behalf of the Underwriters
in whole or from time to time in part by giving written notice not later than
30 days after the date of this Agreement. Any exercise notice shall
14
specify the
number of Additional Shares to be purchased by the Underwriters and the date on
which such Additional Shares are to be purchased. Each purchase date must be at
least one business day after the written notice is given and may not be earlier
than the closing date for the Firm Shares nor later than ten business days
after the date of such notice. Additional Shares may be purchased as provided
in Section 5 hereof solely for the purpose of covering over-allotments
made in connection with the offering of the Firm Shares. On each day, if any,
that Additional Shares are to be purchased (an “
Option Closing Date
”), each Underwriter agrees, severally and
not jointly, to purchase from such Selling Shareholder the number of Additional
Shares (subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Additional
Shares to be purchased on such Option Closing Date as the number of Firm Shares
set forth in Schedule II hereto opposite the name of such Underwriter
bears to the total number of Firm Shares.
Each Seller hereby agrees that, without the
prior written consent of the Representatives on behalf of the Underwriters, it
will not, during the period ending 180 days after the date of the Prospectus,
(1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any Ordinary Shares or any securities convertible into or
exercisable or exchangeable for Ordinary Shares or (2) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Ordinary Shares, whether any such
transaction described in clause (1) or (2) above is to be settled by
delivery of Ordinary Shares or such other securities, in cash or otherwise or
(3) file any registration statement with the Commission relating to the
offering of any Ordinary Shares or any securities convertible into or
exercisable or exchangeable for Ordinary Shares.
The restrictions contained in the preceding
paragraph shall not apply to (a) the Shares to be sold hereunder, (b) the
issuance by the Company of Ordinary Shares of which the Representatives have
been advised in writing upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof and which is described
in the Time of Sale Prospectus, (c) transactions by a Selling Shareholder
relating to Ordinary Shares or other securities acquired in open market
transactions after the completion of the offering of the Shares,
provided
that no filing under Section 16(a) of the
Securities Exchange Act of 1934, as amended (the “
Exchange Act
”),
shall be required or shall be voluntarily made in connection with subsequent
sales of Ordinary Shares or other securities acquired in such open market
transactions, (d) transfers by a Selling Shareholder of Ordinary Shares or any
security convertible into Ordinary Shares as a bona fide gift, or (e)
distributions by a Selling Shareholder of Ordinary Shares or any security
convertible into Ordinary Shares to limited partners or stockholders of the
Selling Shareholder or to shareholders of stockholders of the Selling
Shareholder;
provided
that in the case of any
transfer or distribution pursuant to
15
clause (d)
or (e), (i) each donee or distributee shall enter into a written agreement
accepting the restrictions set forth in the preceding paragraph and this
paragraph as if it were a Selling Shareholder and (ii) no filing under
Section 16(a) of the Exchange Act, reporting a reduction in beneficial
ownership of Ordinary Shares, shall be required or shall be voluntarily made in
respect of the transfer or distribution during the 180-day restricted period. In
addition, each Selling Shareholder, agrees that, without the prior written
consent of the Representatives on behalf of the Underwriters, it will not,
during the period ending 180 days after the date of the Prospectus, make any
demand for, or exercise any right with respect to, the registration of any Ordinary
Shares or any security convertible into or exercisable or exchangeable for Ordinary
Shares. Each Selling Shareholder consents to the entry of stop transfer
instructions with the Company’s transfer agent and registrar against the
transfer of any Ordinary Shares held by such Selling Shareholder except in
compliance with the foregoing restrictions. Notwithstanding the foregoing, if
(1) during the last 17 days of the 180-day restricted period the Company
issues an earnings release or material news or a material event relating to the
Company occurs; or (2) prior to the expiration of the 180-day restricted
period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the 180-day period, the restrictions
imposed by this agreement shall continue to apply until the expiration of the
18-day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event. The Company shall promptly
notify the Representatives of any earnings release, news or event that may give
rise to an extension of the initial 180-day restricted period.
4.
Terms of Public Offering
. The Sellers are
advised by you that the Underwriters propose to make a public offering of their
respective portions of the Shares as soon after the Registration Statement and
this Agreement have become effective as in your judgment is advisable. The Sellers
are further advised by you that the Shares are to be offered to the public
initially at $[ ] a share (the “
Public
Offering Price
”) and to certain dealers selected by you at a price
that represents a concession not in excess of $[ ] a share under the Public
Offering Price, and that any Underwriter may allow, and such dealers may
reallow, a concession, not in excess of $[ ] a share, to any Underwriter or to
certain other dealers.
5.
Payment and Delivery.
Payment for the Firm
Shares to be sold by each Seller shall be made to such Seller in Federal or
other funds immediately available in New York City against delivery of such
Firm Shares for the respective accounts of the several Underwriters at 10:00
a.m., New York City time, on November [ ], 2006, or at such other time on the
same or such other date, not later than November [ ], 2006, as shall be
designated in writing by you. The time and date of such payment are hereinafter
referred to as the “
Closing Date
.”
Payment for any Additional Shares shall be
made to the Selling Shareholders in Federal or other funds immediately
available in New York City against delivery of such Additional Shares for the
respective accounts of the
16
several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
corresponding notice described in Section 3 or at such other time on the
same or on such other date, in any event not later than November [ ], 2006, as
shall be designated in writing by you.
The Firm Shares and Additional Shares shall
be registered in such names and in such denominations as you shall request in
writing not later than one full business day prior to the Closing Date or the
applicable Option Closing Date, as the case may be. The Firm Shares and
Additional Shares shall be delivered to you on the Closing Date or an Option
Closing Date, as the case may be, for the respective accounts of the several
Underwriters, with any transfer taxes payable in connection with the transfer
of the Shares to the Underwriters duly paid, against payment of the Purchase
Price therefor.
6.
Conditions to the Underwriters’ Obligations
.
The obligations of the Sellers to sell the Shares to the Underwriters and the
several obligations of the Underwriters to purchase and pay for the Shares on
the Closing Date are subject to the condition that the Registration Statement
shall have become effective not later than [ ] (New York City time) on the date
hereof.
The several obligations of the Underwriters
are subject to the following further conditions:
(a)
Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date:
(i)
there shall not have occurred
any downgrading, nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating accorded any of
the securities of the Company, any of its subsidiaries or any securitization
vehicle established, or holding assets transferred or sold, by the Company or
any of its subsidiaries by any “nationally recognized statistical rating
organization,” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act; and
(ii)
there shall not have occurred
any change, or any development involving a prospective change, in the
condition, financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that set forth in
the Time of Sale Prospectus that, in your judgment, is material and adverse and
that makes it, in your judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Time of Sale Prospectus.
(b)
The
Underwriters shall have received on the Closing Date a certificate, dated the
Closing Date and signed by an executive officer of the
17
Company, to
the effect set forth in Section 6(a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such
certificate may rely upon the best of his or her knowledge as to proceedings
threatened.
(c)
The
Underwriters shall have received on the Closing Date an opinion of NautaDutilh
NV, Dutch counsel for the Company, dated the Closing Date, covering the matters
set forth in Exhibit A hereto.
(d)
The
Underwriters shall have received on the Closing Date an opinion of Milbank,
Tweed, Hadley & McCloy LLP, special U.S. counsel for the Company, dated the
Closing Date, covering the matters set forth in Exhibit B hereto.
(e)
The
Underwriters shall have received on the Closing Date an opinion of Wouter M.
den Dikken, Chief Legal Officer of the Company, dated the Closing Date,
covering the matters set forth in Exhibit C hereto.
(f)
The
Underwriters shall have received on the Closing Date an opinion of Arendt &
Medernach, counsel for the Selling Shareholders, dated the Closing Date, covering
the matters set forth in Exhibit D hereto.
(g)
The
Underwriters shall have received on the Closing Date an opinion of Davis Polk
& Wardwell, counsel for the Underwriters, dated the Closing Date, in a form
acceptable to the Underwriters.
With respect to paragraph (ix) in Exhibit B
hereto and paragraph (x) in Exhibit C hereto above, Milbank, Tweed, Hadley
& McCloy LLP and Mr. den Dikken may state that their opinions and beliefs
are based upon their participation in the preparation of the Registration
Statement, the Time of Sale Prospectus and the Prospectus and any amendments or
supplements thereto and review and discussion of the contents thereof, but are
without independent check or verification, except as specified. With respect to
the opinions set forth in Exhibit D hereto, Arendt & Medernach may rely
with respect to factual matters and to the extent such counsel deems
appropriate, upon the representations of each Selling Shareholder contained
herein and in the Power of Attorney of such Selling Shareholder and in other
documents and instruments.
The opinions of NautaDutilh NV, Milbank,
Tweed, Hadley & McCloy LLP, Mr. den Dikken and Arendt & Medernach described
in Sections 6(c), (d), (e) and (f) above shall be rendered to the Underwriters
at the request of the
18
Company or one
or more of the Selling Shareholders, as the case may be, and shall so state
therein.
(h)
The
Underwriters shall have received, on each of the date hereof and the Closing
Date, a letter dated the date hereof or the Closing Date, as the case may be,
in form and substance satisfactory to the Underwriters, from each of PricewaterhouseCoopers
LLP, independent public accountants for the Company, and KPMG LLP, independent
public accountants for AeroTurbine, Inc., containing statements and information
of the type ordinarily included in accountants’ “comfort letters” to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement, the Time of Sale
Prospectus and the Prospectus;
provided
that the letters delivered on the Closing Date shall use a “cut-off date” not
earlier than the date hereof.
(i)
The
“lock-up” agreements, between you and the officers and directors of the Company,
each substantially in the form of Exhibit E hereto, and between you and each
shareholder of the Company, each substantially in the form of Exhibit F hereto,
relating to sales and certain other dispositions of Ordinary Shares or certain
other securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
(j)
The
Shares to be delivered on the Closing Date or Additional Closing Date, as the
case may be, shall have been approved for listing on the New York Stock
Exchange, subject to official notice of issuance (if applicable).
The several obligations of the Underwriters
to purchase Additional Shares hereunder are subject to the delivery to you on
the applicable Option Closing Date of such documents as you may reasonably
request with respect to the good standing of the Company, the due authorization
and issuance of the Additional Shares to be sold on such Option Closing Date
and other matters related to the issuance of such Additional Shares.
7.
Covenants of the Company
. The Company
covenants with each Underwriter as follows:
(a)
To
furnish to you, without charge, four signed copies of the Registration
Statement (including exhibits thereto) and for delivery to each other
Underwriter a conformed copy of the Registration Statement (without exhibits
thereto) and to furnish to you in New York City, without charge, prior to 10:00 a.m.
New York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Sections 7(f) or 7(g) below,
as many copies of the Time of Sale Prospectus, the Prospectus and any
supplements and amendments thereto or to the Registration Statement as you may
reasonably request.
19
(b)
Before
amending or supplementing the Registration Statement, the Time of Sale
Prospectus or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object, and to file with the Commission
within the applicable period specified in Rule 424(b) under the Securities
Act any prospectus required to be filed pursuant to such Rule.
(c)
To
furnish to you a copy of each proposed free writing prospectus to be prepared
by or on behalf of, used by, or referred to by the Company and not to use or
refer to any proposed free writing prospectus to which you reasonably object.
(d)
Not
to take any action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under the
Securities Act a free writing prospectus prepared by or on behalf of the
Underwriter that the Underwriter otherwise would not have been required to file
thereunder.
(e)
To
satisfy the conditions under Rule 433 under the Securities Act to avoid a
requirement to file with the Commission any electronic road show.
(f)
If
the Time of Sale Prospectus is being used to solicit offers to buy the Shares
at a time when the Prospectus is not yet available to prospective purchasers
and any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Time of Sale Prospectus in order to make
the statements therein, in the light of the circumstances when the Time of Sale
Prospectus is delivered to a prospective purchaser, not misleading, or if any
event shall occur or condition exist as a result of which the Time of Sale
Prospectus conflicts with the information contained in the Registration
Statement then on file, or if, in the opinion of counsel for the Underwriters,
it is necessary to amend or supplement the Time of Sale Prospectus to comply
with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to any dealer upon
request, either amendments or supplements to the Time of Sale Prospectus so
that the statements in the Time of Sale Prospectus as so amended or
supplemented will not, in the light of the circumstances when the Time of Sale
Prospectus is delivered to a prospective purchaser, be misleading or so that
the Time of Sale Prospectus, as amended or supplemented, will no longer
conflict with the Registration Statement, or so that the Time of Sale
Prospectus, as amended or supplemented, will comply with applicable law.
(g)
If,
during such period after the first date of the public offering of the Shares as
in the opinion of counsel for the Underwriters the Prospectus (or in lieu
thereof the notice referred to in Rule 173(a) under the Securities Act) is
required by law to be delivered in connection with sales by an Underwriter or
dealer, any event shall occur or condition exist as a result of which it is
necessary
20
to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances when the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act) is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to comply
with applicable law, forthwith to prepare, file with the Commission and
furnish, at its own expense, to the Underwriters and to the dealers (whose
names and addresses you will furnish to the Company) to which Shares may have
been sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in the
light of the circumstances when the Prospectus (or in lieu thereof the notice
referred to in Rule 173(a) under the Securities Act) is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or supplemented,
will comply with applicable law.
(h)
To
endeavor to qualify the Shares for offer and sale under the securities or Blue
Sky laws of such jurisdictions as you shall reasonably request.
(i)
To
make generally available to the Company’s security holders and to you as soon
as practicable an earning statement covering a period of at least 12 months
beginning with the first fiscal quarter of the Company occurring after the date
of this Agreement which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission thereunder.
8.
Expenses
. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
agrees to pay or cause to be paid 24%, and each Selling Shareholder agrees,
jointly and severally, to pay or cause to be paid 19%, of all expenses incident
to the performance of the obligations of the Company and the Selling
Shareholders under this Agreement, including: (i) the fees, disbursements and
expenses of the Company’s counsel and counsel for the Selling Shareholders in
connection with the registration and delivery of the Shares under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Time of Sale Prospectus, the Prospectus, any free writing
prospectus prepared by or on behalf of, used by, or referred to by the Company
and amendments and supplements to any of the foregoing, including all printing
costs associated therewith, and the mailing and delivering of copies thereof to
the Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky memorandum in connection with the
offer and sale of the Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and sale under state
securities laws as provided in Section 7(h) hereof, including filing fees
and the reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the
21
Blue Sky
memorandum, (iv) all filing fees and the reasonable fees and disbursements of
counsel to the Underwriters incurred in connection with the review and
qualification of the offering of the Shares by the National Association of
Securities Dealers, Inc., including any counsel fees incurred on behalf of or
disbursements by Morgan Stanley & Co. Incorporated (“
Morgan
Stanley
”) in its capacity as “qualified independent underwriter”, (v)
all fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Ordinary Shares and all
costs and expenses incident to listing the Shares on the New York Stock
Exchange, (vi) the cost of printing certificates representing the Shares, (vii)
the costs and charges of any transfer agent, registrar or depositary, (viii)
the costs and expenses of the Company and the Selling Shareholders relating to
investor presentations on any “road show” undertaken in connection with the
marketing of the offering of the Shares, including, without limitation,
expenses associated with the preparation or dissemination of any electronic
roadshow, expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company, travel and
lodging expenses of the representatives and officers of the Company and any
such consultants, and the cost of any aircraft chartered in connection with the
road show, (ix) the document production charges and expenses associated with
printing this Agreement and (x) all other costs and expenses incident to the
performance of the obligations of the Company and the Selling Shareholders
hereunder for which provision is not otherwise made in this Section, provided,
however, that the Company shall pay all expenses relating to services provided
by the Company’s accountants in connection with the transactions contemplated
by this Agreement. It is understood, however, that except as provided in this
Section, Section 10 entitled “Indemnity and Contribution” and the last
paragraph of Section 12 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
The provisions of this Section shall not
supersede or otherwise affect any agreement that the Sellers may otherwise have
for the allocation of such expenses among themselves.
9.
Covenants of the Underwriters
. Each
Underwriter severally covenants with the Company not to take any action that
would result in the Company being required to file with the Commission under
Rule 433(d) a free writing prospectus prepared by or on behalf of such
Underwriter that otherwise would not be required to be filed by the Company
thereunder, but for the action of the Underwriter.
10.
Indemnity and Contribution.
(a) The Sellers, jointly and severally, agree to
indemnify and hold harmless each Underwriter, each person, if any, who controls
any Underwriter within the meaning of either Section 15 of the Securities
22
Act or Section 20
of the Exchange Act, and each affiliate of any Underwriter within the meaning
of Rule 405 under the Securities Act from and against any and all losses,
claims, damages and liabilities (including, without limitation, any legal or
other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
any amendment thereof, any preliminary prospectus, the Time of Sale Prospectus,
any issuer free writing prospectus as defined in Rule 433(h) under the
Securities Act, any Company information that the Company has filed, or is
required to file, pursuant to Rule 433(d) of the Securities Act, or the
Prospectus or any amendment or supplement thereto, or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein;
provided
that the foregoing indemnity granted by the
Selling Shareholders is limited to statements or omissions made in reliance
upon information relating to such Selling Shareholder furnished to the Company
in writing by such Selling Shareholder expressly for use in the Registration
Statement, the Time of Sale Prospectus, any issuer free writing prospectus as
defined in Rule 433(h), the Prospectus or any amendments or supplements thereto.
The Sellers, jointly and severally, also
agree to indemnify and hold harmless Morgan Stanley and each person, if any,
who controls Morgan Stanley within the meaning of either Section 15 of the Act,
or Section 20 of the Exchange Act, from and against any and all losses, claims,
damages, liabilities and judgments incurred as a result of Morgan Stanley’s
participation as a “qualified independent underwriter” within the meaning of
Rule 2720 of the National Association of Securities Dealers’ Conduct Rules in
connection with the offering of the Shares, except for any losses, claims,
damages, liabilities, and judgments resulting from Morgan Stanley’s, or such
controlling person’s, willful misconduct.
(b)
Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Selling Shareholders, the directors of the Company, the officers
of the Company who sign the Registration Statement and each person, if any, who
controls the Company or any Selling Shareholder within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act
from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred
in connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any preliminary
prospectus, the Time of Sale Prospectus, any issuer free writing prospectus as
23
defined in
Rule 433(h) under the Securities Act or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but only with reference to information relating to such
Underwriter furnished to the Company in writing by such Underwriter through you
expressly for use in the Registration Statement, any preliminary prospectus, the
Time of Sale Prospectus, any issuer free writing prospectus or the Prospectus
or any amendment or supplement thereto.
(c)
In
case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to Section 10(a) or 10(b), such person (the “
indemnified party
”) shall promptly notify
the person against whom such indemnity may be sought (the “
indemnifying party
”) in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding
and shall pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for (i) the fees and expenses
of more than one separate firm (in addition to any local counsel) for all
Underwriters and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act or who are affiliates of any Underwriter within the meaning of
Rule 405 under the Securities Act, (ii) the fees and expenses of more than
one separate firm (in addition to any local counsel) for the Company, its
directors, its officers who sign the Registration Statement and each person, if
any, who controls the Company within the meaning of either such Section and
(iii) the fees and expenses of more than one separate firm (in addition to any
local counsel) for all Selling Shareholders and all persons, if any, who control
any Selling Shareholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons and
affiliates of any Underwriters, such firm shall be designated in writing by the
Representatives. In the case of any such separate firm for the Company, and
such directors, officers and control persons of the Company, such firm shall be
designated in writing by the Company. In the case
24
of any such
separate firm for the Selling Shareholders and such control persons of any
Selling Shareholders, such firm shall be designated in writing by the persons
named as attorneys-in-fact for the Selling Shareholders under the Powers of
Attorney. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second and third sentences of this paragraph,
the indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is
entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding and does not include a statement as to admission of fault,
culpability or a failure to act by or on behalf of an indemnified party.
Notwithstanding anything contained herein to
the contrary, if indemnity may be sought pursuant to Section 10 hereof in
respect of such action or proceeding, then in addition to such separate firm
for the indemnified parties, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in addition to
any local counsel) for Morgan Stanley in its capacity as a “qualified
independent underwriter” and all persons, if any, who control Morgan Stanley
within the meaning of either Section 15 of the Act or Section 20 of the
Exchange Act.
(d)
To
the extent the indemnification provided for in Section 10(a) or 10(b) is
unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified party
thereunder, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party or parties on the
other hand from the offering of the Shares or (ii) if the allocation provided
by clause 10(d)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause 10(d)(i) above but also the relative fault of the indemnifying
party or parties on the one
25
hand and of
the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Sellers on the one hand and the Underwriters
on the other hand in connection with the offering of the Shares shall be deemed
to be in the same respective proportions as the net proceeds from the offering
of the Shares (before deducting expenses) received by the Sellers and the total
underwriting discounts and commissions received by the Underwriters, in each
case as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. The relative fault of the Sellers
on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Sellers or by the
Underwriters and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The
Underwriters’ respective obligations to contribute pursuant to this Section 10(d)
are several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(e)
The
Sellers and the Underwriters agree that it would not be just or equitable if
contribution pursuant to Section 10(d) were determined by
pro rata
allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation that does not take account of the equitable considerations
referred to in Section 10(d). The amount paid or payable by an indemnified
party as a result of the losses, claims, damages and liabilities referred to in
Section 10(d) shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of Section 10(d), (i) no Selling
Shareholder shall be required to contribute or make any other payments under
this Agreement which in the aggregate exceed the proceeds received by it, and
(ii) no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies provided for
in this Section 10 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law or in
equity
(f)
The
indemnity and contribution provisions contained in this Section 10 and the
representations, warranties and other statements of the Company and the Selling
Shareholders contained in this Agreement shall remain operative and in full
force and effect regardless of (i) any termination of this
26
Agreement, (ii)
any investigation made by or on behalf of any Underwriter, any person
controlling any Underwriter or any affiliate of any Underwriter, any Selling
Shareholder or any person controlling any Selling Shareholder, or the Company,
its officers or directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Shares.
11.
Termination
. The Underwriters may
terminate this Agreement by notice given by you to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been
suspended or materially limited on, or by, as the case may be, any of the New
York Stock Exchange, the American Stock Exchange, the Nasdaq National Market,
the Chicago Board of Options Exchange, the Chicago Mercantile Exchange or the
Chicago Board of Trade, (ii) trading of any securities of the Company shall
have been suspended on any exchange or in any over-the-counter market, (iii) a
material disruption in securities settlement, payment or clearance services in
the United States or The Netherlands shall have occurred, (iv) any moratorium
on commercial banking activities shall have been declared by Federal or New
York State authorities or authorities in The Netherlands or (v) there shall
have occurred any outbreak or escalation of hostilities, or any change in
financial markets or any calamity or crisis that, in your judgment, is material
and adverse and which, singly or together with any other event specified in
this clause (v), makes it, in your judgment, impracticable or inadvisable
to proceed with the offer, sale or delivery of the Shares on the terms and in
the manner contemplated in the Time of Sale Prospectus or the Prospectus.
12.
Effectiveness; Defaulting Underwriters
. This
Agreement shall become effective upon the execution and delivery hereof by the
parties hereto.
If, on the Closing Date or an Option Closing
Date, as the case may be, any one or more of the Underwriters shall fail or
refuse to purchase Shares that it has or they have agreed to purchase hereunder
on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is not
more than one-tenth of the aggregate number of the Shares to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions that the number of Firm Shares set forth opposite their respective
names in Schedule II bears to the aggregate number of Firm Shares set
forth opposite the names of all such non-defaulting Underwriters, or in such
other proportions as you may specify, to purchase the Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
on such date;
provided
that in no
event shall the number of Shares that any Underwriter has agreed to purchase
pursuant to this Agreement be increased pursuant to this Section 12 by an
amount in excess of one-ninth of such number of Shares without the written
consent of such Underwriter. If, on the Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Firm Shares and the aggregate
number of Firm Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Firm Shares to be purchased on
27
such date, and
arrangements satisfactory to you, the Company and the Selling Shareholders for
the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Shareholders. In any
such case either you or the relevant Seller shall have the right to postpone
the Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement, in the Time of Sale
Prospectus, in the Prospectus or in any other documents or arrangements may be
effected. If, on an Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than one-tenth
of the aggregate number of Additional Shares to be purchased on such Option
Closing Date, the non-defaulting Underwriters shall have the option to (i) terminate
their obligation hereunder to purchase the Additional Shares to be sold on such
Option Closing Date or (ii) purchase not less than the number of Additional
Shares that such non-defaulting Underwriters would have been obligated to
purchase in the absence of such default. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the
Underwriters, or any of them, because of any failure or refusal on the part of any
Seller to comply with the terms or to fulfill any of the conditions of this
Agreement, or if for any reason any Seller shall be unable to perform its
obligations under this Agreement, the Sellers will reimburse the Underwriters
or such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder.
13.
Submission to Jurisdiction; Appointment of Agent for Service.
Each
of the Sellers irrevocably submits to the non-exclusive jurisdiction of any New
York State or United States Federal court sitting in The City of New York over
any suit, action or proceeding arising out of or relating to this Agreement,
the Time of Sale Prospectus, the Prospectus, the Registration Statement or the
offering of the Shares. The Sellers irrevocably waive, to the fullest extent
permitted by law, any objection which they may now or hereafter have to the
laying of venue of any such suit, action or proceeding brought in such a court
and any claim that any such suit, action or proceeding brought in such a court
has been brought in an inconvenient forum. Each of the Sellers hereby
irrevocably appoints CT Corporation System, with offices at 111 Eighth Avenue,
New York, New York, 10011 as its agent for service of process in any suit,
action or proceeding described in the preceding paragraph and agrees that
service of process in any such suit, action or proceeding may be made upon it at
the office of such agent. Each of the Sellers waives, to the fullest extent
permitted by law, any other requirements of or objections to personal
jurisdiction with respect thereto.
28
Each of the
Sellers represents and warrants that such agent has agreed to act as its agent
for service of process, and each of the Sellers agrees to take any and all
action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect.
14.
Waiver of Immunity.
To the extent that the Company or either
Selling Shareholder may be entitled in any jurisdiction in which judicial
proceedings may at any time be commenced hereunder, to claim for itself or its
revenues or assets any immunity, including sovereign immunity, from suit,
jurisdiction, attachment in aid of execution of a judgment or prior to a
judgment, execution of a judgment or any other legal process with respect to
its obligations hereunder and to the extent that in any such jurisdiction there
may be attributed to the Company such an immunity (whether or not claimed), the
Company hereby irrevocably agrees not to claim and irrevocably waives such
immunity to the maximum extent permitted by law. Each such waiver is binding
under the law of The Netherlands and Luxembourg and remains in full force and
effect. Notwithstanding the foregoing, any action based on this Agreement may
be instituted by the Underwriters in any competent court in The Netherlands or
Luxembourg.
15.
Judgment Currency
. If for the purposes of obtaining judgment
in any court it is necessary to convert a sum due hereunder into any currency
other than United States dollars, the parties hereto agree, to the fullest
extent permitted by law, that the rate of exchange used shall be the rate at
which in accordance with normal banking procedures the Underwriters could
purchase United States dollars with such other currency in The City of New York
on the business day preceding that on which final judgment is given. The
obligation of each of the Sellers with respect to any sum due from it to any
Underwriter or any person controlling any Underwriter shall, notwithstanding
any judgment in a currency other than United States dollars, not be discharged
until the first business day following receipt by such Underwriter or
controlling person of any sum in such other currency, and only to the extent
that such Underwriter or controlling person may in accordance with normal
banking procedures purchase United States dollars with such other currency. If
the United States dollars so purchased are less than the sum originally due to
such Underwriter or controlling person hereunder, each of the Sellers agrees as
a separate obligation and notwithstanding any such judgment, to indemnify such
Underwriter or controlling person against such loss. If the United States
dollars so purchased are greater than the sum originally due to such
Underwriter or controlling person hereunder, such Underwriter or controlling
person agrees to pay to the Company or such Selling Shareholder, as applicable,
an amount equal to the excess of the dollars so purchased over the sum
originally due to such Underwriter or controlling person hereunder.
16.
Foreign Taxes
. All payments made by the Company and each
Selling Shareholder under this Agreement, if any, will be made without
29
withholding or
deduction for or on account of any present or future taxes, duties, assessments
or governmental charges of whatever nature imposed or levied by or on behalf of
The Netherlands, Luxembourg or any political subdivision or any taxing
authority thereof or therein unless the Company or such Selling Shareholder is
or becomes required by law to withhold or deduct such taxes, duties,
assessments or other governmental charges. In such event, the Company or such
Selling Shareholder, severally and not jointly, will pay such additional
amounts as will result, after such withholding or deduction, in the receipt by
each Underwriter and each person controlling any Underwriter, as the case may
be, of the amounts that would otherwise have been receivable in respect
thereof, except to the extent such taxes, duties, assessments or other
governmental charges are imposed or levied by reason of such Underwriter’s or
controlling person’s being connected with The Netherlands or Luxembourg other
than by reason of its being an Underwriter or a person controlling any
Underwriter under this Agreement.
17.
Entire Agreement
. (a) This Agreement, together with any
contemporaneous written agreements and any prior written agreements (to the
extent not superseded by this Agreement) that relate to the offering of the
Shares, represents the entire agreement between the Company and the Selling
Shareholders, on the one hand, and the Underwriters, on the other, with respect
to the preparation of any preliminary prospectus, the Time of Sale Prospectus, the
Prospectus, the conduct of the offering, and the purchase and sale of the
Shares.
(b)
The
Company and the Selling Shareholders acknowledge that in connection with the
offering of the Shares: (i) the Underwriters have acted at arm’s length, are
not agents of, and owe no fiduciary duties to, the Company, the Selling
Shareholders or any other person, (ii) the Underwriters owe the Company and the
Selling Shareholders only those duties and obligations set forth in this
Agreement and prior written agreements (to the extent not superseded by this
Agreement), if any, and (iii) the Underwriters may have interests that differ
from those of the Company and the Selling Shareholders. The Company and the
Selling Shareholders waive to the full extent permitted by applicable law any
claims it may have against the Underwriters arising from an alleged breach of
fiduciary duty in connection with the offering of the Shares.
18.
Counterparts
. This Agreement may be signed
in two or more counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
19.
Applicable Law
. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
New York.
20.
Headings
. The headings of the sections of
this Agreement have been inserted for convenience of reference only and shall
not be deemed a part of this Agreement.
30
21.
Notices
. All communications hereunder shall be in writing and effective only
upon receipt and if to the Underwriters shall be delivered, mailed or sent to
you in care of Morgan Stanley & Co. Incorporated, 1585 Broadway,
New York, New York 10036, Attention: Equity Syndicate Desk, with a copy to
the Legal Department; Goldman, Sachs & Co. One New York Plaza, 42nd
Floor, New York, New York 10004, Attention: Registration Department, fax:
212-902-3000; Lehman Brothers Inc., 745 Seventh Avenue, New York, New York
10019, Attention: Syndicate Registration, fax: 646-834-8133 with a copy to the
Director of Litigation, fax: 212-520-0421; if to the Company shall be delivered, mailed or sent to Evert van de
Beekstraat 312, 1118 CX Schiphol Airport, The Netherlands; and if to the
Selling Shareholders shall be delivered, mailed or sent to Cerberus Capital
Management, L.P., 299 Park Avenue, New York, New York 10171.
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Very truly yours,
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AERCAP HOLDINGS N.V.
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By:
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Name:
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Title:
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31
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The Selling Shareholders named in
Schedule I hereto, acting severally
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By:
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[Attorney-in Fact]
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The Selling Shareholders named in
Schedule I hereto, acting severally
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By:
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[Attorney-in Fact]
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The Selling Shareholders named in
Schedule I hereto, acting severally
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By:
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[Attorney-in Fact]
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The Selling Shareholders named in
Schedule I hereto, acting severally
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By:
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[Attorney-in Fact]
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Accepted as of the date hereof
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Morgan Stanley & Co. Incorporated
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Goldman, Sachs & Co.
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Lehman Brothers Inc.
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Acting severally on behalf of themselves
and the several Underwriters named
in Schedule II hereto.
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By:
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Morgan Stanley & Co. Incorporated
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By:
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Name:
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Title:
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32
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By:
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Goldman, Sachs & Co.
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By:
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Name:
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Title:
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By:
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Lehman Brothers Inc.
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By:
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Name:
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Title:
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33
SCHEDULE I
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Selling Shareholder
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Number of Firm Shares
To Be Sold
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Fern
S.à.r.l.
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4,825,000
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Fern II
S.à.r.l.
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4,825,000
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Fern III
S.à.r.l.
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4,825,000
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Fern IV
S.à.r.l.
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4,825,000
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Total:
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19,300,000
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34
SCHEDULE II
|
Underwriter
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Number of Firm Shares
To Be Purchased
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Morgan
Stanley & Co. Incorporated
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Goldman,
Sachs & Co.
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Lehman
Brothers Inc.
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Merrill
Lynch, Pierce, Fenner & Smith Incorporated
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UBS
Securities LLC
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Wachovia
Capital Markets, LLC
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JP Morgan
Securities Inc.
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Citigroup
Global Markets Inc.
|
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Calyon
Securities (USA) Inc.
|
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Total:
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26,100,000
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II-1
SCHEDULE III
Time of Sale Prospectus
1.
Preliminary
Prospectus issued November 2, 2006.
2.
Any
free writing prospectuses filed by the Company under Rule 433(d) of the
Securities Act and information communicated orally by the Underwriters to
purchasers of the Shares relating to the public offering price of the Shares,
the number of Shares offered to the public and related matters.
III-1
SCHEDULE IV
The following is a complete list of Significant Subsidiaries of the
Company:
2
EXHIBIT A
(i)
The
Company has been duly incorporated and is validly existing as a naamloze
vennootschap (public company with limited liability);
(ii)
Each
Significant Subsidiary has been duly incorporated and is validly existing as a
besloten vennootschap met beperkte aansprakelijkheid (private company with
limited liability);
(iii)
The
Company has corporate power to enter into the Underwriting Agreement, to
perform its obligations thereunder, including the effectuation of the Offering,
the appointment of a process agent, to waive any objection to the laying of
suit, and the Company and each Significant Subsidiary has corporate power to
conduct its business as described in the Time of Sale Prospectus and the F-1
under “Business”;
(iv)
The
Company has taken all corporate action required by its Articles of Association
and Netherlands Law in connection with the entering into and the performance of
the Underwriting Agreement, including the effectuation of the Offering;
(v)
The
Underwriting Agreement has been validly signed on behalf of the Company;
(vi)
The
Netherlands courts will recognise and give effect to the choice of the laws of
New York to govern the Underwriting Agreement;
(vii)
The
obligations of the Company under the Underwriting Agreement are enforceable
against the Company in the Netherlands in accordance with their terms;
(viii)
The
entering into and performance of the Underwriting Agreement including the
effectuation of the Offering by the Company does not result in a violation of
Netherlands Law or the Articles of Association;
(ix)
The
submission in clause 13 of the Underwriting Agreement to the non-exclusive
jurisdiction of the New York State or United States Federal court sitting in
the city of New York will be recognised by the Netherlands courts. The waiver
by the Company of any objection to any proceedings being brought before such
court in clause 13 of the Underwriting Agreement is valid. The appointment of
CT Corporation System, 111 Eight Avenue, New York, NY as an authorized agent
for the service of process pursuant to clause 13 of the Underwriting Agreement
is a valid appointment. Service of process against the Company at the offices
of CT Corporation System at 111 Eight Avenue, New York, NY in accordance with
its appointment as agent for service of process will recognised by the courts
of the Netherlands as a valid service of process;
A-1
(x)
No
authorisation, consent, approval, license or order from or notice to or filing
with any regulatory or other authority, governmental body or court of the
Netherlands is required by any of the Company and any Significant Subsidiary in
connection with the conduct of its business in the Netherlands as described in
the Time of Sale Prospectus and the F-1 under “Business”, and no authorisation, consent, approval, license
or order from or notice to or filing with any regulatory or other authority,
governmental body or court of the Netherlands is required by the Company in
connection with entering into the Underwriting Agreement and the transactions
contemplated thereby or the performance of its obligations thereunder, which,
if not obtained or made, would adversely affect the enforceability of the
Underwriting Agreement in the Netherlands or the capacity of the Company to
effectuate the Offering;
(xi)
Neither
the Company nor any of its assets has any immunity under the laws of the
Netherlands;
(xii)
The
statements in the Time of Sale Prospectus and the F-1 under the headings “Tax Considerations
– Netherlands Tax Considerations”, to the extent that they purport to
constitute summaries of Netherlands tax law and do not relate to factual
statements, “Description of Ordinary
Shares” and “Management – Board of Directors – General” and “Management – Board
of Directors – Netherlands Corporate Governance”, to the extent that they
purport to constitute a summary of the Articles of Association of the Company
or the laws and regulations of the Netherlands and do not relate to factual
statements fairly summarize the matters described therein in all material
respects;
(xiii)
The
Existing Shares to be sold by the Selling Shareholders in the Offering, have
been validly created, have been validly issued to the Selling Shareholders,
have been fully paid up as to their nominal value and are non-assessable. As
far as we are aware, and except as disclosed in the Time of Sale Prospectus and
the F-1, (i) the Selling Shareholders are the registered holders of the
Existing Shares and, (ii) hold valid title to the Existing Shares, (iii) upon
transfer of the Existing Shares by the Selling Shareholders to the DTC pursuant
to the Fern Deeds of Transfer (and upon execution of Cross Receipt by the
underwriters, accepting such transfer on behalf of DTC), valid title to the
Existing Shares will be conferred upon DTC, (iv) the Existing Shares are free
of any right of pledge, usufruct or encumbrance, encumbrance, and (v)
immediately upon transfer to DTC the Existing Shares will be free of any adverse claim;
(xiv)
The
New Shares to be issued by the Company in the Offering, when fully paid up as
contemplated in the F-1, are validly issued, fully paid up and non-assessable.
As far as we are aware, and except as disclosed in the Time of Sale Prospectus
and the F-1, the New Shares are free of any right of pledge, usufruct or
encumbrance;
A-2
(xv)
The
issued shares of each Significant Subsidiary have been validly created, have
been fully paid up and are non-assessable. As far as we are aware and except as
disclosed in the Time of Sale Prospectus and the F-1, such shares are free of
any right of pledge, usufruct or other encumbrance;
(xvi)
The
Shares are not subject to transfer restrictions pursuant to the Articles of
Association or applicable provisions of Netherlands law;
(xvii)
Dividends
and other distributions declared and payable on the Shares in cash may be
freely transferred out of the Netherlands and may be freely paid in United
States dollars without there being required any authorisation, consent,
approval, license or order from any regulatory or other authority or governmental
body of the Netherlands;
(xviii)
No
stamp duty or similar documentary tax or duty is or will be payable in the
Netherlands in connection with the offering of the Shares or in respect of the
execution or performance of the Underwriting Agreement; and
(xix)
As
far as we are aware the Company is not a party to litigation pending before the District Court of Amsterdam.
A-3
EXHIBIT B
(i)
this Agreement has been duly executed and
delivered by the Company insofar as the laws of the State of New York apply;
(ii)
the execution and delivery by the Company
of, and the performance by the Company of its obligations under, this Agreement
will not contravene any provision of U.S. Federal or New York law or, to the
such counsel’s knowledge, any agreement or other instrument governed by New
York law that is binding upon the Company or any of its subsidiaries and is
listed on a schedule to the opinion or, to such counsel’s knowledge, any
judgment, order or decree of any governmental body, agency or court of the
United States or the State of New York having jurisdiction over the Company or
any of its subsidiaries, and no consent, approval, authorization or order of,
or qualification with, any U.S. Federal or New York State governmental body or
agency is required for the performance by the Company of its obligations under
this Agreement, except such as may be required by the securities or Blue Sky
laws of the various U.S. states in connection with the offer and sale of the
Shares;
(iii)
the statements relating to legal matters,
documents or proceedings included in the Time of Sale Prospectus and the
Prospectus under the caption “Tax Considerations—U.S. Tax Considerations”, in
each case fairly summarize in all material respects such matters, documents or
proceedings;
(iv)
the Company is not, and after giving effect
to the offering and sale of the Shares to be sold by the Company and the
application of the proceeds thereof as described in the Time of Sale Prospectus
will not be, required to register as an “investment company” as such term is
defined in the Investment Company Act of 1940, as amended;
(vi)
the Company and its subsidiaries possess all
certificates, authorizations and permits issued by the appropriate U.S. federal
or New York State regulatory authorities necessary to conduct their respective
businesses, such counsel has no notice of any proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect, except as described in
the Time of Sale Prospectus and except that such counsel need not opine as to
any law specifically relating to the regulation of the airplane industry or
involving the Federal Aviation Administration;
(vii)
the Company is a “foreign private issuer,” as
defined in Rule 405 of the Securities Act;
(viii)
under the laws of the State of New York
relating to the submission to personal jurisdiction, the Company has, pursuant
to Section 13 of this
B-1
Agreement,
validly and irrevocably submitted to the personal jurisdiction of any New York
Court, and any appellate court thereof, in any suit, action or proceeding
arising out of or based upon this Agreement and has validly and irrevocably
waived any objection to the venue of a proceeding in any such court, and has
validly appointed the authorized agent named in Section 13 of this Agreement
for the purposes described therein, and service of process effected in the
manner set forth in Section 13 of this Agreement will be effective to confer
valid personal jurisdiction over the Company;
(ix)
(A) in the opinion of such counsel, the Registration Statement and the
Prospectus (except for the financial statements and financial schedules and
other financial data included therein, as to which such counsel need not
express any belief) appear on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act and the applicable
rules and regulations of the Commission thereunder, and (B) nothing has come to
the attention of such counsel that causes such counsel to believe that (1) the
Registration Statement or the prospectus included therein (except for the
financial statements and financial schedules and other financial data included
therein, as to which such counsel need not express any belief) at the time the
Registration Statement became effective contained any untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, (2) the Time of
Sale Prospectus (except for the financial statements and financial schedules
and other financial data included therein, as to which such counsel need not
express any belief) as of the date of this Agreement contained any untrue
statement of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading or (3) the Prospectus (except for the
financial statements and financial schedules and other financial data included
therein, as to which such counsel need not express any belief) as of its date
or as amended or supplemented, if applicable, as of the Closing Date contained
or contains any untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
(x)
upon payment for the Shares to be sold by
the Selling Shareholders pursuant to
this Agreement, delivery of such Shares, as directed by the Underwriters, to
Cede or such other nominee as may be designated by DTC, registration of such
Shares in the name of Cede or such other nominee and the crediting of such
Shares on the books of DTC to securities accounts of the Underwriters (assuming
that neither DTC nor any such Underwriter has notice of any adverse claim
(within the meaning of Section 8-105 of the UCC) to such Shares), (A) DTC shall
be a “protected purchaser” of such Shares within the meaning of Section 8-303
of the UCC, (B) under Section 8-501 of the UCC, the Underwriters will acquire a
valid security entitlement in respect of such Shares and (C) no action based on
any “adverse claim”, within the meaning of Section 8-102
B-2
of the UCC, to
such Shares may be asserted against the Underwriters with respect to such
security entitlement; in giving this opinion, counsel for the Selling
Shareholders may assume that when such payment, delivery and crediting occur,
(x) such Shares will have been registered in the name of Cede or another
nominee designated by DTC, in each case on the Company’s share registry in
accordance with its certificate of incorporation, bylaws and applicable law,
(y) DTC will be registered as a “clearing corporation” within the meaning of
Section 8-102 of the UCC and (z) appropriate entries to the accounts of the
several Underwriters on the records of DTC will have been made pursuant to the
UCC.
B-3
EXHIBIT C
(i)
each
Significant Subsidiary has been duly incorporated, is validly existing as a
corporation or limited liability company in good standing under the laws of the
jurisdiction of its incorporation, where such concept exists, has the corporate
power and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a Material Adverse Effect;
(ii)
AerVenture
has been duly incorporated, is validly existing as a limited liability company
under the laws of the jurisdiction of its incorporation, has the corporate
power and authority to own its property and to conduct its business as
described in the Time of Sale Prospectus and is duly qualified to transact
business and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be
in good standing would not have a Material Adverse Effect; the issued shares of
capital stock of AerVenture that are owned by the Company or its subsidiaries
have been duly and validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company or its subsidiaries, free
and clear of all liens, encumbrances, equities or claims, except as described
in the Time of Sale Prospectus;
(iii)
all
of the issued shares of capital stock of each Significant Subsidiary have been
duly and validly authorized and issued, are fully paid and non-assessable and
are owned directly by the Company, free and clear of all liens, encumbrances,
equities or claims, except as described in the Time of Sale Prospectus;
(iv)
except
as disclosed in the Time of Sale Prospectus, to such counsel’s knowledge, there
are no contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any securities
of the Company or to require the Company to include such securities with the
Shares registered pursuant to the Registration Statement;
(v)
except
as disclosed in the Time of Sale Prospectus, to such counsel’s knowledge, the
Company is not a party to any contractual arrangements currently in effect
relating to the offer, sale, distribution or delivery of the Shares or any
other securities of the Company other than this Agreement and the arrangements
disclosed in the Registration Statement, the Time of Sale Prospectus or the
Prospectus;
C-1
(vi)
the
execution and delivery by the Company of, and the performance by the Company of
its obligations under, this Agreement will not contravene (i) any provision of
applicable law or the certificate of incorporation or articles of association
of the Company or (ii) to such counsel’s knowledge, any agreement or other
instrument binding upon the Company, any of its subsidiaries, any Company Joint
Venture or Company Legal Entity, that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company, any of
its Significant Subsidiaries or any Company Joint Venture or Company Legal
Entity;
(vii)
the
statements relating to legal matters, documents or proceedings included in the
Time of Sale Prospectus and the Prospectus under the caption “Indebtedness”
fairly summarize in all material respects such matters, documents or
proceedings;
(viii)
such
counsel does not have notice of any claim of default relating to any material
Lease Document or any Joint Venture Agreement which adversely affects or
questions the rights of the Company or its subsidiaries under any such Lease
Document or Joint Venture Agreement;
(ix)
such
counsel does not know of any legal or governmental proceedings pending or
threatened to which the Company, any of its subsidiaries or Company Joint
Ventures and Company Legal Entities is a party or to which any of the
properties of the Company, any of its subsidiaries or any Company Joint Venture
or Company Legal Entity is subject that is material to the Company and its
subsidiaries, taken as a whole, and not described in the Time of Sale
Prospectus; and
(x)
nothing
has come to the attention of such counsel that causes such counsel to believe
that (1) the Registration Statement or the prospectus included therein (except
for the financial statements and financial schedules and other financial data
included therein, as to which such counsel need not express any belief) at the
time the Registration Statement became effective contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (2) the
Time of Sale Prospectus (except for the financial statements and financial
schedules and other financial data included therein, as to which such counsel
need not express any belief) as of the date of this Agreement contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (3) the Prospectus
(except for the financial statements and financial schedules and other
financial data included therein, as to which such counsel need not express any
belief) as of its date or as amended or
C-2
supplemented, if applicable, as of the Closing Date contained or
contains any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
C-3
EXHIBIT D
(i)
the
Companies are in the form of sociétés à responsabilité limitée duly
incorporated before a Luxembourg notary for an unlimited duration and validly
existing under Luxembourg Law;
(ii)
the
Companies have the necessary corporate power and capacity to execute the
Contractual Documents and to perform their obligations under the Contractual
Documents and have taken all necessary corporate action to authorize the
execution and the performance of the Contractual Documents;
(iii)
if
signed by any Class A manager of the Companies, acting jointly with any Class B
manager, or signed by Mr. Bob Warden, acting alone by virtue of a power of
attorney granted by the Companies, the Contractual Documents to which the
Companies are a party have been duly executed and delivered by and on behalf of
each of the Companies in accordance with Luxembourg Law, the Articles of
Association and the Companies’ Board Resolutions;
(iv)
the
execution and delivery by the Companies of, and the performance by them of
their obligations, under the Contractual Documents will not contravene any
provision of applicable law, or the Articles of Association of the Companies,
or to our knowledge, and without having made any further verification, any
agreement or other instrument binding upon the Companies or, to our knowledge,
and without having made any further verification, any judgment, order or decree
of any governmental body, agency or court having jurisdiction over the
Companies, and no consent, approval, authorization or order of, or
qualification with, any governmental body or agency is required for the
performance by the Companies of their obligations under the Contractual
Documents;
(v)
the
Contractual Documents are legal, valid and binding agreements of the Companies
and are enforceable against the Companies in accordance with their terms;
(vi)
the
submission by the Companies in the Contractual Documents to the jurisdiction of
the courts of New York, USA is legal, valid, binding and enforceable under
Luxembourg Law; and
(vii)
a
judgment upon the Contractual Documents obtained from a court of competent
jurisdiction in New York, USA in respect of the Contractual Documents will be
enforceable in Luxembourg.
D-1
EXHIBIT E
FORM OF DIRECTOR AND OFFICER LOCK-UP LETTER
November , 2006
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Ladies and Gentlemen:
The undersigned understands that Morgan
Stanley & Co. Incorporated (“
Morgan
Stanley
”), Goldman, Sachs & Co. (“
Goldman
”)
and Lehman Brothers Inc. (“
Lehman
”)
propose to enter into an Underwriting Agreement (the “
Underwriting Agreement
”) with AerCap
Holdings N.V., a company with limited liability (
naamloze vennootshap
)
formed in The Netherlands (the “
Company
”)
and certain shareholders of the Company (the “
Selling
Shareholders
”), providing for the public offering (the “
Public Offering
”) by the several
Underwriters, including Morgan Stanley, Goldman and Lehman (the “
Underwriters
”), of 26,100,000 ordinary
shares, nominal value €0.01 per share of the Company.
To induce the Underwriters that may
participate in the Public Offering to continue their efforts in connection with
the Public Offering, the undersigned hereby agrees that, without the prior
written consent of the Representatives on behalf of the Underwriters, it will
not, directly or indirectly, during the period commencing on the date hereof
and ending 180 days after the date of the final prospectus (the “
Prospectus
”) relating to the Public
Offering (such 180-day period, the “Lock-Up Period”), (1) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any
E-1
option, right
or warrant to purchase, lend, or otherwise transfer or dispose of, directly or
indirectly, any ordinary shares or preferred shares (collectively, the “
Bermuda Shares
”) of Cerberus Fern Holdings Ltd (Bermuda),
Cerberus Fern Holdings II Ltd (Bermuda), Cerberus Fern Holdings III Ltd
(Bermuda) and Cerberus Fern Holdings IV Ltd (Bermuda) (collectively, the “
Bermuda Companies
”) or any securities convertible into or
exercisable or exchangeable for Bermuda Shares or (2) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Bermuda Shares, whether any such
transaction described in clause (1) or (2) above is to be settled by
delivery of Bermuda Shares or such other securities, in cash or otherwise.
The foregoing shall not apply to (a)
transfers of Bermuda Shares or any security convertible into Bermuda Shares as
a bona fide gift, (b) to any trust for the direct or indirect benefit of the
undersigned or the immediate family of the undersigned, provided that any such
transfer shall not involve a disposition for value, (c) transfers of Bermuda
Shares upon the death of the undersigned prior to the expiration of the Lock-Up
Period as a result of probate or intestate succession laws; or (d)
distributions of Bermuda Shares or any security convertible into Bermuda Shares
to limited partners or stockholders of the undersigned; provided that in the
case of any transfer or distribution pursuant to clause (a), (b), (c) or (d),
each transferee, donee or distributee shall sign and deliver a lock up letter
substantially in the form of this letter. For purposes of this Lock Up
Agreement, “immediate family” shall mean any relationship by blood, marriage or
adoption, not more remote than first cousin. In addition, the undersigned
agrees that, without the prior written consent of the Representatives on behalf
of the Underwriters, it will not, during the Lock Up Period, make any demand
for or exercise any right with respect to, the registration of any Bermuda
Shares or any security convertible into or exercisable or exchangeable for
Bermuda Shares. The undersigned also agrees and consents to the entry of stop
transfer instructions with the Bermuda Companies’ transfer agents and
registrars against the transfer of the undersigned’s Bermuda Shares except in
compliance with the foregoing restrictions.
If:
(1)
during the last 17 days of the Lock Up
Period the Company issues a earnings release or material news or a material
event relating to the Company occurs; or
(2)
prior to the expiration of the Lock Up
Period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the Lock Up Period;
the
restrictions imposed by this agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
E-2
The undersigned shall not engage in any
transaction that may be restricted by this agreement during the 34-day period
beginning on the last day of the initial Lock Up Period unless the undersigned
requests and receives prior written confirmation from the Company or the
Representatives that the restrictions imposed by this agreement have expired.
The undersigned understands that the Company
and the Underwriters are relying upon this agreement in proceeding toward
consummation of the Public Offering. The undersigned further understands that
this agreement is irrevocable and shall be binding upon the undersigned’s
heirs, legal representatives, successors and assigns.
Whether or not the Public Offering actually
occurs depends on a number of factors, including market conditions. Any Public
Offering will only be made pursuant to an Underwriting Agreement, the terms of
which are subject to negotiation between the Company and the Underwriters.
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(Address)
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E-3
EXHIBIT F
FORM OF
SHAREHOLDER LOCK-UP LETTER
November , 2006
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Lehman Brothers Inc.
745 Seventh Avenue
New York, New York 10019
c/o Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Dear Ladies and Gentlemen:
The undersigned understands that Morgan
Stanley & Co. Incorporated (“
Morgan
Stanley
”), Goldman, Sachs & Co. (“
Goldman
”)
and Lehman Brothers Inc. (“
Lehman
”)
propose to enter into an Underwriting Agreement (the “
Underwriting Agreement
”) with AerCap
Holdings N.V., a company with limited liability (
naamloze
vennootshap
) formed in The Netherlands (the “
Company
”) and certain shareholders of the
Company (the “
Selling Shareholders
”), providing
for the public offering (the “
Public Offering
”)
by the several Underwriters, including Morgan Stanley, Goldman and Lehman (the “
Underwriters
”), of 26,100,000 ordinary
shares (the “
Shares
”), nominal
value €0.01 per share of the Company (the “
Ordinary
Shares
”).
To induce the Underwriters that may
participate in the Public Offering to continue their efforts in connection with
the Public Offering, the undersigned hereby agrees that, without the prior
written consent of the Representatives on behalf of the Underwriters, it will
not, directly or indirectly, during the period commencing on the date hereof
and ending 180 days after the date of the final prospectus (the “
Prospectus
”) relating to the Public
Offering (such 180-day period, the “
Lock Up Period
”),
(1) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, lend, or otherwise transfer or dispose of,
F-1
directly or
indirectly, any Ordinary Shares or any securities convertible into or
exercisable or exchangeable for Ordinary Shares or (2) enter into any swap
or other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of the Ordinary Shares, whether any such
transaction described in clause (1) or (2) above is to be settled by
delivery of Ordinary Shares or such other securities, in cash or otherwise. The
foregoing sentence shall not apply to (a) transactions relating to Ordinary
Shares or other securities acquired in open market transactions after the
completion of the Public Offering,
provided
that
no filing under Section 16(a) of the Securities Exchange Act of 1934, as
amended (the “
Exchange Act
”), shall be required
or shall be voluntarily made in connection with subsequent sales of Ordinary
Shares or other securities acquired in such open market transactions, (b) transfers
of Ordinary Shares or any security convertible into Ordinary Shares as a bona
fide gift, (c) distributions of Ordinary Shares or any security convertible
into Ordinary Shares to limited partners or stockholders of the undersigned or
to shareholders of stockholders of the Selling Shareholder or (d) the issuance
of Ordinary Shares in connection with the acquisition of, or a joint venture
with, another company if the aggregate number of Ordinary Shares issued in such
transactions, taken together, does not exceed 5% of the aggregate number of Ordinary
Shares issued in the offering; provided that in the case of any transfer or
distribution pursuant to clause (b), (c) or (d), (i) each donee or distributee
shall sign and deliver a lock up letter substantially in the form of this
letter and (ii) no filing under Section 16(a) of the Exchange Act, reporting a
reduction in beneficial ownership of Ordinary Shares, shall be required or
shall be voluntarily made during the restricted period referred to in the
foregoing sentence. In addition, the undersigned agrees that, without the prior
written consent of the Representatives on behalf of the Underwriters, it will
not, during the Lock Up Period, make any demand for or exercise any right with
respect to, the registration of any Ordinary Shares or any security convertible
into or exercisable or exchangeable for Ordinary Shares. The undersigned also
agrees and consents to the entry of stop transfer instructions with the Company’s
transfer agent and registrar against the transfer of the undersigned’s Ordinary
Shares except in compliance with the foregoing restrictions.
If:
(1)
during the last 17 days of the Lock Up
Period the Company issues a earnings release or material news or a material
event relating to the Company occurs; or
(2)
prior to the expiration of the Lock Up
Period, the Company announces that it will release earnings results during the
16-day period beginning on the last day of the Lock Up Period;
the
restrictions imposed by this agreement shall continue to apply until the
expiration of the 18-day period beginning on the issuance of the earnings
release or the occurrence of the material news or material event.
F-2
The undersigned shall not engage in any
transaction that may be restricted by this agreement during the 34-day period
beginning on the last day of the initial Lock Up Period unless the undersigned
requests and receives prior written confirmation from the Company or the
Representatives that the restrictions imposed by this agreement have expired.
The undersigned understands that the Company
and the Underwriters are relying upon this agreement in proceeding toward
consummation of the Public Offering. The undersigned further understands that
this agreement is irrevocable and shall be binding upon the undersigned’s
heirs, legal representatives, successors and assigns.
Whether or not the Public Offering actually
occurs depends on a number of factors, including market conditions. Any Public
Offering will only be made pursuant to an Underwriting Agreement, the terms of
which are subject to negotiation between the Company and the Underwriters.
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Very truly yours,
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(Name of Shareholder)
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(Address)
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Very truly yours,
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Cerberus Capital Management, L.P.
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(Address)
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F-3
Exhibit 3.1
NOTE: THIS IS A TRANSLATION INTO ENGLISH OF THE
ARTICLES OF ASSOCIATION (
STATUTEN
) OF A
DUTCH COMPANY WITH LIMITED LIABILITY
(NAAMLOZE VENNOOTSCHAP
).
IN THE EVENT OF A CONFLICT BETWEEN THE ENGLISH AND DUTCH TEXTS, THE DUTCH TEXT
SHALL PREVAIL.
AMENDMENT TO THE ARTICLES OF ASSOCIATION OF
AERCAP HOLDINGS N.V.
On
this the tenth day of November two thousand and six, appeared before me,
Wijnand Hendrik Bossenbroek, civil law notary at Amsterdam:
Robrecht Anton Frits Timmermans, employed at my office
at 1077 XV Amsterdam, Strawinskylaan 1999, born in Ghent, Belgium, on the fifteenth
day of May nineteen hundred and seventy-three
.
The
person appearing declared that the general meeting of shareholders of
AerCap Holdings N.V.
, a limited liability company, (
naamloze vennootschap
), having its corporate seat at Amsterdam
(address: 1118 CX Luchthaven Schiphol, Evert van de Beekstraat 312, trade
register number: 34251954), held at Haarlemmermeer on the tenth day of November
two thousand and six, has resolved to amend the articles of association of the
company in their entirety.
The
articles of association were last amended on the twenty-seventh day of September
two thousand and six before W.H. Bossenbroek, civil law notary at Amsterdam.
Further
to this resolution the person appearing stated that the articles of association
of the aforementioned company are amended as follows:
ARTICLES OF ASSOCIATION
NAME AND
SEAT
Article 1
1.1
The name of the
company is:
AerCap Holdings N.V.
1.2
The company is
established in Amsterdam.
OBJECTS
Article 2
The objects of the Company are:
a.
to enter into
financial engagements, particularly into financial and operational lease
agreements, with respect to airplanes and helicopters, airplane and helicopter
engines, (spare) components of airplanes and helicopters, as well as related
technical equipments and other technical equipment as the company deems fit;
b.
to enter into
service agreements which support the before mentioned engagements;
c.
to acquire,
exploit and sell the before mentioned objects;
1
d.
to participate
in, to finance, to collaborate with, to conduct the management of and provide
advice and other services to legal persons and other enterprises with the same
or similar objects;
e.
to acquire, use
and/or assign industrial and intellectual property rights;
f.
to provide
security for the debts of legal persons or of any other company;
g.
to do anything
which is, in the widest sense of the word, connected with or may be conducive
to the attainment of these objects.
SHARE CAPITAL
Article 3
The
authorised share capital of the Company is two million euros (EUR 2,000,000), divided
into two hundred million (200,000,000) ordinary shares, each having a nominal
value of one eurocent (EUR 0.01).
ISSUANCE
OF SHARES AND PAYMENT ON SHARES
Article 4
4.1
Upon a proposal
of the Board of Directors containing the price and further terms and conditions
of issue, the general meeting of shareholders shall have the power to resolve
upon the issuance of shares and, with due observance of the proposal of the
Board of Directors, to determine the price and further terms and conditions of
such share issuance. The general meeting of shareholders may designate the
Board of Directors as the authorized corporate body for this purpose. A
designation as referred to above shall only be valid for a specific period of
no more than five years and may from time to time be extended with a period of
not more than five years. Unless the designation provides otherwise, it may not
be withdrawn. The designation shall specify the number of shares which may be
issued.
4.2
As long as the
Board of Directors is authorized to resolve upon the issuance of shares
pursuant to paragraph 1 hereof, the general meeting of shareholders cannot pass
resolutions to issue shares.
4.3
Without prejudice
to what has been provided in article 2:80 paragraph 2 of the Dutch Civil Code,
shares shall at no time be issued below par. Shares must be fully paid up upon
issuance.
4.4
Payment must be
made in cash to the extent that no other contribution has been agreed upon. If
the company so agrees, payment in cash can be made in a currency other than
euro. In the event of payment in a foreign currency the obligation to pay is
fulfilled to the extent of the amount for which the payment is freely
convertible into euro, the decisive factor being the rate of exchange on the
day of payment, or, as the case may be, after application of the next sentence,
on the day mentioned therein. The company may require payment at the rate of
exchange on a certain day within two months prior to the ultimate day on which
payment must be made, provided the shares shall immediately upon their issuance
be admitted to a listing at a stock exchange outside of the Netherlands.
2
4.5
The provisions of
this article 4 shall equally apply to the granting of rights to subscribe for
shares, but shall not apply to the issuance of shares to a person who exercises
a previously acquired right to subscribe for shares. The Board of Directors
shall be authorized to issue such shares.
4.6
The company is
authorized to cooperate in the issuance of depository receipts for shares.
4.7
The Board of Directors will be authorized to perform the legal acts as referred
to in article 2:94 of the Dutch Civil Code without the prior approval of the
general meeting of shareholders.
PRE-EMPTIVE
RIGHTS
Article 5
5.1
In the event of
an issuance of shares, each shareholder shall have a pre-emptive right pro rata
to the number of shares held by each such shareholder.
5.2
Should a
shareholder who is entitled to a pre-emptive right not or not fully exercise
such right, the other shareholders shall be similarly entitled to pre-emption
rights in respect of those shares which have not been claimed. If the latter
collectively do not or do not fully exercise their pre-emptive rights either,
then the authorized corporate body will be free to decide to whom the shares
which have not been claimed shall be issued.
In
respect of the issuance of shares there shall be no pre-emptive right to shares
issued against a contribution other than in cash or issued to employees of the
company or of a group company.
5.3
The general
meeting of shareholders will have the power to limit or exclude the pre-emptive
rights. The pre-emptive right may also be restricted or excluded by the Board
of Directors designated pursuant to article 4 paragraph 1 of these articles,
if, by a resolution of the general meeting of shareholders, it was designated
and authorised for a specified period, not exceeding five years, to restrict or
exclude such pre-emptive right. The designation may be extended, from time to
time, for a period not exceeding five years. Unless the designation provides
otherwise, it may not be withdrawn.
5.4
As long as the
Board of Directors is authorized to limit or exclude the pre-emptive rights
pursuant to paragraph 3 hereof, the general meeting of shareholders cannot pass
such resolutions.
5.5
A resolution by
the general meeting of shareholders to limit or exclude the pre-emptive rights
or to designate the Board of Directors as the authorized corporate body for
this purpose in accordance with paragraph 3 hereof requires, in order to be
validly adopted, a majority of at least two-thirds of the votes cast in a
meeting of shareholders if less than half of the issued share capital is
present or represented at such meeting.
5.6
The company shall
announce any issuance of shares with pre-emptive
3
rights
in the Staatscourant (Gazette) and in a national daily newspaper and - in the
event that shares have been listed on Euronext Amsterdam N.V. - in the
Officiële Prijscourant (Official Price List) of Euronext Amsterdam N.V., and
the period of time within which such pre-emptive right can be exercised.
Such pre-emptive right can be
executed during at least two weeks after the day of notice in the Staatscourant
(Gazette).
ACQUISITION
BY THE COMPANY OF ITS SHARES
Article 6
6.1
The company may
acquire shares in its own share capital for valuable consideration if and in so
far as:
a.
its shareholders’
equity less the purchase price to be paid by the company for such shares is not
less than the aggregate amount of the paid up and called for part of the issued
share capital and the reserves which must be maintained pursuant to the law or
these articles of association;
b.
the aggregate par
value of the shares in its share capital which the company acquires, (already)
holds or on which it holds a right of pand (pledge), or which are held by a
subsidiary of the company, amounts to no more than one-tenth of the aggregate
par value of the issued share capital; and
c.
the general
meeting of shareholders has authorized the Board of Directors to acquire such
shares, which authorization shall be valid for no more than eighteen months on
each occasion,
notwithstanding
any further applicable statutory provisions and the provisions of these
articles of association.
6.2
Shares thus
acquired may again be disposed of by the company. If depository receipts for
shares in the share capital of the company have been issued, such depository
receipts shall for the application of the provisions of this paragraph and
paragraph 1 hereof be treated as shares.
6.3
In the general
meeting of shareholders no votes may be cast in respect of:
a.
share(s) held by
the company or by a subsidiary of the company;
b.
share(s),
depository receipts of which are held by the company or by a subsidiary of the
company; and
c.
share(s) on which
the company or a subsidiary of the company holds a right of usufruct or a right
of pledge.
However,
the holders of a right of usufruct and the holders of a right of pledge on
shares held by the company or by a subsidiary of the company are nonetheless
not excluded from the right to vote such shares, if the right of usufruct or
the right of pledge was granted prior to the time such share was acquired by
the company or by a subsidiary of the company.
Shares
in respect of which voting rights may not be exercised shall not be
4
taken
into account when determining to what extent the shareholders have cast their
votes, to what extent they are present or represented at the general meeting of
shareholders or to what extent the share capital is provided or represented.
REDUCTION
OF SHARE CAPITAL
Article 7
7.1
The general
meeting of shareholders may resolve to reduce the issued share capital of the
company by cancelling shares or by reducing the par value of shares by an
amendment to the articles of association, provided that the amount of the
issued share capital does not fall below the minimum share capital as required
by law in effect at the time of the resolution.
A
resolution of the general meeting of shareholders shall require a two-thirds majority
vote if less than half of the issued share capital is present or represented at
such meeting.
7.2
Cancellation of
shares may apply to shares which are held by the company itself or to shares
for which the company holds depository receipts (beneficial rights).
Partial
repayment on shares shall be made on all shares.
7.3
Reduction of the
par value of shares without repayment or partial repayment on shares shall be
effected pro rata to all shares. The pro rata requirements may be waived by agreement
of all shareholders concerned.
7.4
The notice of a
general meeting of shareholders at which a resolution referred to in this
article is to be adopted shall include the purpose of the reduction of the
issued share capital and the manner in which such reduction shall be
effectuated. The resolution to reduce the issued share capital shall specify
the shares to which the resolution applies and shall describe how such a
resolution shall be implemented.
7.5
The company shall
file a resolution to reduce the issued share capital with the trade register
and shall publish such filing in a national daily newspaper.
7.6
Within two months
after publication of the filing referred to above in paragraph 5 hereof, any
creditor may oppose the resolution to reduce the issued share capital of the
company.
7.7
A resolution to
reduce the issued share capital shall not take effect as long as opposition may
be instituted. If opposition has been instituted within the two month period,
the resolution shall take effect upon the withdrawal of the opposition or upon
a court order setting aside the opposition.
SHARES
AND SHARE CERTIFICATES
Article 8
8.1
The shares shall
be in registered form. No share certificates shall be issued for the ordinary
shares of type I, as referred to in the next paragraph.
8.2
Shares shall be
available, at the option of the shareholder concerned, either:
5
(i)
in the form of an
entry in the share register without issuance of a share certificate; such shares
are referred to in these articles of association as type I shares; or
(ii)
in the form of an
entry in the share register with the issuance of a share certificate, which
share certificate shall consist of a mantel (main part) only without dividend
sheet; such shares and share certificates are referred to in these articles of
association as shares of type II.
8.3
Notwithstanding
the competence of a shareholder to exchange its type I shares into type II
shares, and vice versa, the Board of Directors may resolve that the registration
in the share register of type I shares shall take place for one or more numbers
of shares to be further determined by the Board of Directors.
8.4
Share
certificates of type II shall be available in such denominations as the Board
of Directors shall determine.
8.5
All share
certificates shall be signed by or on behalf of a director; the signature may
be effected by printed facsimile. In addition all share certificates may be validly
signed by one or more persons designated by the Board of Directors for that
purpose.
8.6
All share
certificates shall be identified by numbers and/or letters in such manner to be
determined by the Board of Directors.
8.7
The Board of
Directors may determine the form and contents of share certificates.
8.8
The expression
share certificate as used in these articles of association shall include a
share certificate in respect of more than one share.
8.9
The company may,
pursuant to a resolution of the Board of Directors, cooperate in the issuance
of depository receipts in bearer form.
MISSING
OR DAMAGED SHARE CERTIFICATES
Article 9
9.1
Upon written
request by or on behalf of a shareholder, missing or damaged share certificates
may be replaced by new share certificates or duplicates bearing the same
numbers and/or letters, provided the shareholder who has made such request, or
the person making such request on his behalf, provides satisfactory evidence of
his title and, in so far as applicable, the loss of the share certificates to
the Board of Directors, and further subject to such conditions as the Board of
Directors may deem appropriate.
9.2
The issuance of a
new share certificate or a duplicate shall render the share certificates which
it replaces invalid.
9.3
The issuance of
new share certificates or duplicates for share certificates may in appropriate
cases, at the discretion of the Board of Directors, be published in newspapers
to be determined by the Board of Directors.
SHAREHOLDERS’
REGISTER
6
Article 10
10.1
With due observance of the
applicable statutory provisions in respect of registered shares, a
shareholders’ register shall be kept by or on behalf of the company, which
shareholders’ register shall be regularly updated and, at the discretion of the
Board of Directors, may, in whole or in part, be kept in more than one copy and
at more than one address. At least one copy shall be kept at the office of the
company in the Netherlands.
Part
of the shareholders’ register may be kept abroad in order to comply with applicable
provisions set by a foreign stock exchange.
10.2
Each shareholder’s name, his
address and such further information as required by law and the information as
the Board of Directors deems appropriate, whether at the request of a
shareholder or not, shall be recorded in the shareholders’ register.
10.3
The form and the contents of
the shareholders’ register shall be determined by the Board of Directors with
due observance of the provisions of paragraphs 1 and 2 hereof.
The
Board of Directors may determine that the shareholders’ register shall vary as
to its form and contents according to whether it relates to type I shares or to
type II shares.
10.4
Upon his request a shareholder
shall be provided with written evidence of the contents of the shareholders’
register with regard to the shares registered in his name free of charge, and
the statement so issued may be validly signed on behalf of the company by a director
or by a person to be designated for that purpose by the Board of Directors.
10.5
The provisions of paragraphs 1
up to and including 4 hereof shall equally apply to persons who hold a right of
usufruct or a right of pledge on one or more shares.
10.6
The Board of Directors shall
have power and authority to permit inspection of the shareholders’ register by
and to provide information recorded therein, as well as any other information
regarding the direct or indirect share holding of a shareholder of which the
company has been notified by that shareholder, to the authorities entrusted with
the supervision and/or implementation of the trading of securities on a foreign
stock exchange on behalf of the company and its shareholders, in order to
comply with applicable foreign statutory provisions or applicable provisions
set by such foreign stock exchange, if and to the extent such requirements
apply to the company and its shareholders as a result of the listing of shares
in the share capital of the company on such foreign stock exchange or the
registration of such shares or the registration of an offering of such shares
under applicable foreign securities laws.
EXCHANGE
OF SHARES
Article 11
7
11.1
Subject to the provisions of
article 8, a holder of an entry in the share register for one or more shares of
type I may, upon his request, obtain one or more share certificates of type II
up to an equal nominal amount.
11.2
Subject to the provisions of
article 8, a holder of a share certificate of type II registered in his name
may, after submitting the share certificate to the company, upon his request
obtain an entry in the share register for one or more shares of type I up to an
equal nominal amount.
11.3
The Board of Directors may
require a request for exchange, as referred to in this article 11, to be made
on a special form, to be provided to the shareholder free of charge, to be
signed by such shareholder. Any requests made pursuant to and in accordance
with the provisions of articles 8, 9, 10 and this article 11 may be sent to the
company at such address(es) as to be determined by the Board of Directors, at
all times including an address in the municipality or city where a stock
exchange on which shares in the share capital of the company are listed has its
principal place of business.
11.4
The company is entitled to
charge amounts, at no more than cost, and to be determined by the Board of
Directors, to those persons who request any services to be carried out pursuant
to articles 8 to 11 inclusive.
TRANSFER
OF SHARES
Article 12
12.1
Unless the law provides
otherwise and except as provided by the provisions of the following paragraphs
of this article, the transfer of a share shall require an instrument intended
for such purpose and, unless the Company itself is a party to the transaction,
the written acknowledgement of the transfer by the company; service upon the
company of such instrument of transfer or of a copy or extract thereof signed
as a true copy by a civil law notary or the transferor shall be considered to
have the same effect as an acknowledgement.
12.2
In cases where a share of type
I is transferred, an instrument of transfer on a form to be supplied by the
company free of charge, must be submitted to the company.
12.3
In cases where a share of type
II is transferred, the relative share certificate must be submitted to the company,
provided that an instrument of transfer printed on the back of the share
certificate, has been duly completed and signed by or on behalf of the
transferor, or a separate instrument is submitted together with the share certificate.
12.4
If a transfer of a share of
type II has been effected by service upon the company of a relative share
certificate with or without a separate instrument of transfer, the company
shall, at the discretion of the Board of Directors, either endorse the transfer
on the share certificate or cancel the share certificate and issue to the
transferee one or more share certificates registered in his name up to an equal
nominal amount.
8
12.5
The company’s written
acknowledgement of a transfer of a share of type II shall, at the discretion of
the Board of Directors, be effected either by endorsement of the transfer on
the share certificate as proof of the acknowledgement or by the issuance to the
transferee of one or more share certificates registered in his name up to an
equal nominal amount.
12.6
If the transfer of a share
does not take place in accordance with the provisions of paragraphs 2 and 3 of
this article, the transfer of a share can only take place with the permission
of the Board of Directors. The Board of Directors may make its permission
subject to such conditions as the Board of Directors may deem necessary or
desirable. The applicant shall always be entitled to demand that said permission
be granted on the condition that transfer takes place to a person designated by
the Board of Directors. The permission shall be deemed to have been granted,
should the Board of Directors not have decided on granting permission for the request
within six weeks of being requested to do so.
12.7
The provisions of the
preceding paragraphs of this article shall apply correspondingly to the
allotment of shares in the event of a division of any share constituting joint
property, the transfer of a shares as a consequence of a writ of execution and
the creation of limited rights on a share.
RIGHT OF
PLEDGE
Article 13
13.1
A right of pledge may be
created on the shares.
13.2
If a right of pledge is
created on shares, the shareholder shall be exclusively entitled to the voting
rights attached to the shares concerned and the voting rights may not be
conferred on the holder of the right of pledge.
13.3
The holder of the right of
pledge shall not be entitled to any of the rights which the law grants a holder
of depository receipts issued with the cooperation of the company.
13.4
The provisions of article 12
shall equally apply to the creation or release of a right of pledge on shares.
13.5
The company may accept a
pledge on its own shares only if:
a.
the shares to be
pledged are fully paid-up;
b.
the nominal
amount of its own shares to be pledged and those already held by it or pledged
to it do not together amount to more than one-tenth of the issued share
capital; and
c.
the general
meeting of shareholders has approved the pledge agreement.
RIGHT OF
USUFRUCT
Article 14
14.1
A right of usufruct may be
created on the shares.
14.2
If a right of usufruct is
created on shares, the shareholder shall be exclusively entitled to the voting
rights attached to the shares concerned and voting
9
rights
may not be conferred on the holder of the right of usufruct.
14.3
The holder of the right of
usufruct shall not be entitled to any of the rights which the law grants a
holder of depository receipts issued with the cooperation of the company.
14.4
The provisions of article 12
shall equally apply to the creation, transfer or release of a right of usufruct
on shares.
BOARD OF
DIRECTORS
Article 15
15.1
The company has a one-tier
board structure. The company will be managed by the Board of Directors. The
Board of Directors is consisting of at least three (3) and at most twelve (12)
directors. The Board of Directors shall determine the number of directors,
taking into account the previous sentence. Only natural persons may be
appointed as director.
15.2
The general
meeting of shareholders shall appoint the directors.
A resolution to
appoint a director may be passed by an absolute majority of the valid votes
cast, provided that the resolution is passed further to a proposal by the Board
of Directors. The general meeting of shareholders may appoint a director,
without there being a proposal by the Board of Directors to this effect, by a
resolution passed by an absolute majority of the valid votes cast representing
at least one-third of the issued capital.
15.3
The directors are appointed for a period of four years starting
on the day after the day of the general meeting of shareholders on which they
are appointed and ending on the day of the annual general meeting of
shareholders that will be held in the fourth year upon their appointment.
15.4
The general meeting of
shareholders may at any time suspend or remove any director. A resolution to
remove or suspend a director may be passed by an absolute majority of the valid
votes cast, provided that the resolution is passed further to a proposal by the
Board of Directors. The general meeting of shareholders may remove or suspend a
director, without there being a proposal by the Board of Directors to this
effect, by a resolution passed by an absolute majority of the valid votes cast
representing at least one-third of the issued capital.
15.5
If the general
meeting of shareholders has suspended a director, the general meeting of
shareholders shall within three months after the suspension has taken effect
resolve either to dismiss such director, or to terminate or continue the
suspension, failing which the suspension shall lapse.
A
resolution to continue the suspension may be adopted only once and in such event
the suspension may be continued for a maximum period of three months commencing
on the day the general meeting of shareholders has adopted the resolution to
continue the suspension.
If
within the period of continued suspension the general meeting of shareholders
has not resolved either to dismiss the director concerned or to terminate
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the
suspension, the suspension shall lapse.
A director who
has been suspended shall be given the opportunity to account for his actions at
the general meeting of shareholders.
15.6
The Board of
Directors shall appoint from its number one or more executive directors of whom
one shall have the title of Chief Executive Officer (“CEO”). The executive
directors shall be charged with the day-to-day affairs of the Company. The
other directors shall be non-executive directors.
15.7
The Board of
Directors shall further appoint from the number of directors one of the
non-executive directors as chairman of the Board of Directors and, if the Board
of Directors resolves so, one of the non-executive directors as vice-chairman
of the Board of Directors.
15.8
The general
policy with regard to the remuneration of the Board of Directors shall be
determined by the general meeting of shareholders, upon a proposal of the
nomination and compensation committee of the Board of Directors. The
remuneration policy shall, at a minimum, address the items set out in Articles
2:383c up to and including 2:383e of the Dutch Civil Code, to the extent that these
relate to the Board of Directors. The remuneration policy shall be presented in
writing to the works council for information purposes at the same time as it is
submitted to the general meeting of shareholders.
15.9
The remuneration
of directors shall be set, with due regard for the remuneration policy, by the
Board of Directors. With regard to arrangements concerning remuneration in the
form of shares or share options, the Board of Directors shall submit a proposal
to the general meeting of shareholders for its approval. This proposal must, at
a minimum, state the number of shares or share options that may be granted to
directors and the criteria that apply to the granting of such shares or share
options or the alteration of such arrangements.
DUTIES AND
POWERS
Article
16
16.1
The Board of
Directors is charged with the management of the Company, subject to the
restrictions contained in these articles of association.
16.2
The Board of
Directors shall draw up rules governing its internal affairs. Such rules may
also contain an allocation of duties and delegation of powers to one or more
directors or committees. Such rules may not violate the provisions of these
articles of association. If the Board of Directors has established rules
governing its internal affairs, resolutions of the Board of Directors shall be
adopted in accordance with these articles of association and the provisions of
such rules.
16.3
The chairman
shall use its best efforts to see to it that the majority of the meetings of
the Board of Directors shall be held in the Netherlands and a
11
majority of the written resolutions adopted in
accordance with paragraph 5 of this article, shall be deemed to be adopted in
the Netherlands.
16.4
The contemporaneous
linking together by telephone conference or audio-visual communication
facilities of the directors, shall be deemed to constitute a meeting of the
Board of Directors for the duration of the connection. Any director taking
part, shall be deemed present in person at the meeting and shall be entitled to
vote or counted in quorum accordingly. Such meeting shall be deemed to be held
in the Netherlands if the majority of the participants are in the Netherlands
for the full duration of the meeting.
16.5
Resolutions of
the Board of Directors may, instead of in a meeting, be passed in writing -
including any electronic message and facsimile, or in the form of a message
transmitted by any accepted means of communication and received or capable of
being produced in writing - provided that all directors are familiar with the
resolution to be passed and none of them objects to this decision-making
process and provided that the resolution is signed by a majority of the
directors in office. A resolution shall be deemed to be adopted in the
Netherlands if a majority of the directors executing the resolution are in the
Netherlands when signing the resolution.
16.6
The Board of
Directors shall establish a group executive committee, a group portfolio and
investment committee, a group treasury and accounting committee, an audit
committee and a nomination and compensation committee. The Board of Directors
may establish any other committee as the Board of Directors shall decide.
The Board of Directors shall draw up rules governing a
committee’s internal affairs.
16.7
Without prejudice to any other
applicable provision in these articles of association, the Board of Directors
shall require the approval of the general meeting of shareholders for
resolutions of the Board of Directors with regard to an important change in the
identity or character of the Company or the enterprise, including in any event:
a.
the transfer of
the enterprise or almost the entire enterprise to a third party;
b.
entry into or
termination of any long-term cooperation by the Company or a subsidiary of the
Company with another legal entity company or partnership, or as a fully liable
partner in a limited or general partnership, if such cooperation or termination
thereof is of far-reaching significance to the Company;
c.
acquisition or
disposal by the Company, or a subsidiary of the Company, of a participating
interest in the capital of a Company with a value of at least one third of the
amount of the assets as shown on the balance sheet with explanatory notes or,
if the Company prepares a
12
consolidated balance sheet, as shown on the consolidated balance sheet
with explanatory notes according to the most recently adopted annual accounts
of the Company.
The absence of approval by the general meeting of shareholders of a
resolution as referred to in this paragraph shall not affect the representative
authority of the directors.
16.8
Where one or more
directors are absent or prevented from acting, the remaining director(s) shall
be charged with the entire management of the Company. Where all directors or
the only director are/is absent or prevented from acting, the management shall
be conducted temporarily by one or more persons to be appointed for that purpose
by the general meeting of shareholders.
REPRESENTATION
Article
17
17.1
The Board of
Directors, as well the CEO acting individually, is entitled to represent the
company.
17.2
Where a director
has an interest which conflicts directly or indirectly with the company’s
interests, the company may nevertheless be represented in accordance with the
provisions contained in the previous paragraph, such without prejudice of
paragraph 4 of this article. The general meeting of shareholders shall always
have the power to designate one or more other persons for such purpose. The
director(s) in respect of whom there is a conflict of interests may be the
person(s) designated, provided that due regard is had to the provisions of
these articles of association.
17.3
The company may
grant special and general powers of attorney, whether or not such persons are
employed by the company, authorizing them to represent the company and bind it
vis-à-vis third parties.
17.4
For
the purposes of the implementation of article 18, each director shall have the
authority to represent the company, unless the director in question would claim
indemnification from the company under article 18. If, upon the implementation
of article 18, the company has a conflict of interests with all of the directors
arising from individual rights of each of these directors under article 18, the
company shall be represented by two or more persons to be designated by the
Board of Directors. Such persons may not be directors.
INDEMNIFICATION
Article 18
18.1
Subject to the limitations
included in this article, every person or legal entity who is, or has been, a
director, proxy-holder, staff member or officer (specifically including the
Chief Financial Officer and the Chief Legal Officer as from time to time
designated by the Board of Directors), who is made, or threatened to be made, a
party to any claim, action, suit or proceeding
13
in
which he/she or it becomes involved as a party or otherwise by virtue of
his/her or its being, or having been, a director, proxy-holder, staff member or
officer of the company, shall be indemnified by the company, to the fullest
extent permitted under the laws of the Netherlands, concerning (A) any and all
liabilities imposed on him/her or on it, including judgements, fines and
penalties, (B) any and all expenses, including costs and attorneys’ fees,
reasonably incurred or paid by him/her or by it, and (C) any and all amounts
paid in settlement by him/her or by it, in connection with any such claim,
action, suit or other proceeding.
18.2
A director, proxy-holder,
staff member or officer shall, however, have no right to be indemnified against
any liability in any matter if it shall have been finally determined that such
liability resulted from the
intent, wilful
recklessness or serious culpability
of such person or legal entity.
18.3
Furthermore, a director,
proxy-holder, staff member or officer shall have no right to be indemnified
against any liability in any matter if it shall have been finally determined
that such person or legal entity did not act in good faith and in the
reasonable belief that his or its action was in the best interest of the
company.
18.4
In the event of a settlement,
a director, proxy-holder, staff member or officer shall not lose his/her or its
right to be indemnified unless there has been a determination that such person
or legal entity engaged in
intent, wilful
recklessness or serious culpability
in the conduct of his or its
office or did not act in good faith and in the reasonable belief that his/her
or its action was in the best interest of the company:
(i)
by the court or
other body approving settlement; or
(ii)
by a resolution
duly adopted by the general meeting of shareholders; or
(iii)
by written
opinion of independent counsel to be appointed by the Board of Directors.
18.5
The right to indemnification
herein provided (i) may be insured against by policies maintained by the
company, (ii) shall be severable, (iii) shall not affect any other rights to
which any director, proxy-holder, staff member or officer may now or hereafter
be entitled, (iv) shall continue as to a person or legal entity who has ceased
to be a director, proxy-holder, staff member or officer, and (v) shall also
inure to the benefit of the heirs, executors, administrators or successors of
such person or legal entity.
18.6
Nothing included herein shall
affect any right to indemnification to which persons or legal entities other
than a director, proxy-holder, staff member or officer may be entitled by
contract or otherwise.
18.7
Subject to such procedures as
may be determined by the Board of Directors, expenses in connection with the
preparation and presentation of a defence to any claim, action, suit or
proceeding of the character described in
14
this
article 18 may be advanced to the director, proxy-holder, staff member or
officer by the company prior to final disposition thereof upon receipt of an
undertaking by or on behalf of such director, proxy-holder, staff member or
officer to repay such amount if it is ultimately determined that he or it is
not entitled to indemnification under this article 18.
GENERAL
MEETING OF SHAREHOLDERS
Article 19
19.1
The annual general meeting of
shareholders shall be held within six months after the close of the financial
year.
19.2
At this general meeting of
shareholders the following subjects shall be considered:
a.
the written
annual report prepared by the Board of Directors on the course of business of
the company and the conduct of its affairs during the past financial year;
b.
the adoption of
the annual accounts;
c.
discussion
regarding the company’s reserves and dividend policy and justification thereof
by the Board of Directors;
d.
if applicable,
the proposal to pay a dividend;
e.
the discharge of
the directors in respect of their management during the previous financial
year;
f.
the appointment
of directors;
g.
the designation
of the person referred to in article 16.8;
h.
each substantial
change in the corporate governance structure of the company; and
i.
the proposals
placed on the agenda by the Board of Directors together with proposals made by
shareholders in accordance with the provisions of these articles of
association.
19.3
Extraordinary general meetings
of shareholders shall be held as often as deemed necessary by the Board of
Directors and shall be held if one or more shareholders and other persons
entitled to attend such meetings jointly representing at least one-tenth of the
issued share capital make a written request to that effect to the Board of
Directors, specifying in detail the business to be considered.
19.4
If the Board of Directors
fails to comply with a request referred to in paragraph 1 hereof in such manner
that the general meeting of shareholders can be held within six weeks after the
request, the persons who have made the request may be authorized by the president
of the district court in Amsterdam to convene the meeting themselves.
PLACE AND
NOTICE OF THE GENERAL MEETING OF
SHAREHOLDERS
Article 20
20.1
General meetings of
shareholders shall be held in Amsterdam, Haarlemmermeer
15
(Schiphol
Airport), Rotterdam or The Hague. The notice convening the meeting shall inform
the shareholders and other persons entitled to attend meetings of shareholders
accordingly.
20.2
All notices to shareholders
and persons entitled to attend meetings of shareholders shall be published in a
national daily newspaper and in a foreign country in at least one newspaper in
each of those countries where the shares have been admitted to an official quotation
at the request of the company.
20.3
The notice convening a general
meeting of shareholders shall be published by either the Board of Directors, or
by the persons who according to the law or these articles of association are
entitled thereto.
NOTICE
PERIOD AND AGENDA
Article 21
21.1
The notice convening a general
meeting of shareholders shall be published no later than on the fifteenth day
prior to the day of the meeting. The notice shall always contain or be
accompanied by the agenda for the meeting, or shall mention where such agenda
can be obtained, which shall in any event be at the office of the company in
the Netherlands, notwithstanding the statutory provisions regarding reduction
of issued share capital and amendment of articles of association.
21.2
The agenda shall contain such
subjects to be considered at the meeting as the person(s) convening the meeting
shall decide, and furthermore such other subjects, as one or more shareholders
and others entitled to attend the meetings, representing at least one-hundredth
of the issued share capital or representing a value of at least fifty million
euro (EUR 50,000,000.—), have so requested the Board of Directors in writing to
include in the agenda, at least sixty days before the date on which the meeting
is convened. The Board of Directors may decide not to place items so requested
on the agenda, in the event the Board of Directors is of the opinion that doing
so would be detrimental to vital interests of the company. No valid resolutions
can be adopted at a general meeting of shareholders in respect of subjects
which are not mentioned in the agenda.
CHAIRMAN OF GENERAL MEETINGS OF SHAREHOLDERS AND MINUTES
Article 22
22.1
General meetings of
shareholders shall be presided by the chairman of the Board of Directors. In
case of absence of the chairman of the Board of Directors the meeting shall be
presided by any other person nominated by the Board of Directors. The chairman of
the meeting shall appoint the secretary of that meeting.
22.2
The secretary of the meeting
shall keep the minutes of the business transacted at the meeting, which minutes
shall be adopted and signed by the
16
chairman
and the secretary of the meeting.
22.3
The chairman of the Board of
Directors may request a civil law notary to include the proceedings at the
meeting in a notarial report.
ATTENDANCE
OF GENERAL MEETING OF SHAREHOLDERS
Article 23
23.1
All shareholders and persons
entitled to attend meetings are entitled to attend general meetings of shareholders,
to address the general meeting of shareholders and - to the extent they have
the voting rights to the shares - to vote the shares thereat.
23.2
Prior to being admitted at a
general meeting of shareholders, a shareholder or its proxy shall have to sign
an attendance list, stating his name and the number of votes that can be cast
by him. A proxy shall also state the name(s) of the person(s) for whom he acts.
23.3
The Board of Directors may
determine that paragraph 1 will be applicable to those who (i) are a shareholder
as per a certain date, determined by the Board of Directors, such date
hereinafter referred to as: the “record date”, and (ii) who are as such
registered in a register (or one or more parts thereof) designated thereto by
the Board of Directors, hereinafter referred to as: the “register”, in as far
as (iii) at the request of the applicant, the holder of the register has given
notice in writing to the company prior to the general meeting of shareholders,
that the shareholder mentioned in this paragraph has the intention to attend
the general meeting of shareholders, regardless who will be shareholder at the
time of the general meeting of shareholders. The notice will contain the name
and the number of shares the shareholder will represent in the general meeting
of shareholders. The provision above under (iii) about the notice to the
company also applies to the proxy holder of a shareholder, who has a written
proxy.
23.4
The record date mentioned in
paragraph 3 and the date mentioned in that paragraph on which the intention to
attend the general meeting of shareholders has to be given at the latest,
cannot be determined earlier than on a certain time on the seventh day and not
later than on the third day, prior to the date of the general meeting of
shareholders. The notice of the general meeting of shareholders will contain
those times, the place of meeting and the proceedings for registration and
notification.
23.5
In case the Board
of Directors does not exercise its right as determined in paragraph 3, it shall
be necessary for each holder of shares, to notify the company in writing of his
intention to attend the meeting no later than on the day and furthermore at the
place mentioned in the notice, stating — in so far as it concerns shares of
type II — the identifying number of the share certificate. They may only
exercise the said rights at the meeting for the shares registered in their name
both on the day referred to above and on the day of the meeting.
17
23.6
In case the Board of Directors
exercises its right as determined in paragraph 3, those who have a written
proxy shall give their proxy to the holder of the register prior to the
notification described in paragraph 4. The holder of the register will send the
proxies together with the notification to the company as described in paragraph
3 sub (iii). The Board of Directors may resolve that the proxies of holders of
voting rights will be attached to the attendance list. In case the Board of
Directors does not exercise its rights as determined in paragraph 3, the
written proxies must be deposited ultimately on the day mentioned in the convocation
and at the office of the company.
23.7
Shareholders and other persons
entitled to attend meetings of shareholders may be represented by proxies duly
authorized in writing, and such proxies shall be admitted upon production of
such written instrument.
23.8
The general meeting of
shareholders may adopt rules regarding, inter alia, the length of time for
which shareholders may speak. In so far as such rules are not applicable, the
chairman may determine the time for which shareholders may speak if he considers
this desirable with a view to the orderly proceeding of the meeting.
23.9
All matters regarding the
admittance to the general meeting of shareholders, the exercise of voting
rights and the result of votings, as well as any other matters regarding the proceedings
at the general meeting of shareholders shall be decided upon by the chairman of
that meeting, with due observance of the provisions of article 2:13 of the
Dutch Civil Code.
VOTES AND
ADOPTION OF RESOLUTIONS
Article 24
24.1
At the general meeting of
shareholders each share entitles its holder to one (1) vote.
24.2
Unless otherwise stated in
these articles of association, resolutions shall be validly adopted if adopted
by absolute majority of votes cast. Blank and invalid votes shall not be
counted. The chairman of the meeting shall decide on the method of voting and
on the possibility of voting by acclamation.
ANNUAL
ACCOUNTS AND REPORT OF THE BOARD OF DIRECTORS
Article 25
25.1
The financial year of the
company shall coincide with the calendar year.
25.2
Each year, within five months
after expiry of the financial year, the Board of Directors shall cause annual
accounts to be drawn up, consisting of a balance sheet and a profit and loss
account in respect of the preceding financial year, together with the
explanatory notes thereto. The Board of Directors shall furthermore prepare a
report on the course of business of the company in the preceding year.
25.3
The Board of Directors shall
draw up the annual accounts in accordance with applicable generally accepted
accounting principles and all other applicable provisions of the law.
18
The
annual accounts shall be signed by all directors. Should the signature of one
or more of them be missing, then mention shall be made thereof, stating the
reason.
25.4
The Board of Directors shall
cause the annual accounts to be examined by one or more registered accountant(s)
or other experts designated for the purpose in accordance with article 2:393 of
the Dutch Civil Code by the general meeting of shareholders. The auditor or the
other expert designated shall report on his examination to the Board of
Directors and shall issue a certificate containing the results thereof.
25.5
Copies of the annual accounts
accompanied by the certificate of the expert referred to in the preceding
paragraph, the annual report of the Board of Directors, and the information to
be added to each of such documents pursuant to the law, shall be made freely
available at the office of the company for the shareholders and the other
persons entitled to attend meetings of shareholders, and - in the event that
shares have been listed on the Amsterdam Stock Exchange - at a bank in
Amsterdam, to be mentioned in the notice calling the general meeting of shareholders,
as from the date of the notice convening the general meeting of shareholders at
which meeting they shall be discussed, until the close thereof.
25.6
The general meeting of
shareholders decides on the adoption of the annual accounts.
DISTRIBUTIONS
Article 26
26.1
From the profits, as apparent
from the annual accounts adopted by the general meeting of shareholders such
amounts shall be reserved as the Board of Directors shall determine.
26.2
The profits that remain after
the application of paragraph 1 hereof shall be distributed to the shareholders
pro rata to the number of shares held by each such shareholder.
26.3
Dividends payable in cash
shall be paid in United States Dollars, unless the Board of Directors
determines that payment shall be made in another currency.
26.4
The company can only declare
distributions insofar as its shareholders’ equity exceeds the amount of the
paid up and called portion of the issued share capital, plus the statutory
reserves.
26.5
Subject to the provisions of
article 2:105 paragraph 4 of the Dutch Civil Code and with due observance of
the provisions of paragraph 4 of this Article, the Board of Directors may
resolve to declare any interim dividends and/or other interim distributions.
Such dividends and/or distributions shall be made to shareholders pro rata to
the number of shares held by each shareholder.
Article 27
19
27.1
Distributions pursuant to
article 26 shall be payable as from a date to be determined by the Board of
Directors. The date of payment set in respect of shares of type II may differ
from the date of payment set in respect of type I shares.
27.2
Distributions under article 26
shall be made payable at an address or addresses in the Netherlands, to be
determined by the Board of Directors, and in any case at least at one address
in each other country where the shares of the company are listed on a stock exchange.
27.3
The Board of Directors may
determine the method of payment in respect of cash distributions on type I
shares.
27.4
The person entitled to a
distribution under article 26 on shares shall be the person in whose name the
share is registered, or in the event of others entitled thereto, if their right
is sufficiently established, at the date to be fixed for that purpose by the
Board of Directors in respect of each distribution for the different types of
shares.
27.5
Notice of distributions and of
the dates and places referred to in the preceding paragraphs of this article
shall at least be published in a national daily newspaper and abroad in at
least one daily newspaper appearing in each of those countries where the
shares, on the application of the company, have been admitted for official
quotation, and further in such manner as the Board of Directors may deem desirable.
27.6
Distributions in cash under
article 26 that have not been collected within five years and two days after
have become due and payable shall revert to the company.
27.7
The Board of Directors may
cause the company to declare distributions to shareholders under article 26 in
full or partially in the form of shares in the share capital of the company.
In
the case of a distribution in the form of shares in the share capital of the company,
any shares in the company not claimed within a period to be determined by the
Board of Directors shall be sold for the account of the persons entitled to the
distribution who failed to claim the shares. The net proceeds of such sale
shall thereafter be held at the disposal of the above persons in proportion to
their entitlement; the right to the proceeds shall lapse, however, if the
proceeds are not claimed within thirty years after the date on which the
distribution in shares was made payable.
27.8
In the case of a distribution
in the form of shares in the company, those shares shall be registered in the
shareholders’ register of the company. In respect of a share certificate of
type II, certificates shall be issued to the holders thereof.
27.9
The provisions of paragraphs 4
and 7 shall apply correspondingly in respect of any other distributions that do
not take place pursuant to article 26.
AMENDMENT
ARTICLES OF ASSOCIATION
20
Article 28
28.1
The general meeting of
shareholders may resolve to amend the articles of association of the company,
provided that such resolution has been proposed to the general meeting of
shareholders by the Board of Directors.
28.2
The complete proposal to amend
the articles of association shall be made freely available for the shareholders
and the other persons entitled to attend meetings of shareholders, at the
office of the company as from the day of notice convening such meeting until
the close of that meeting.
DISSOLUTION
AND LIQUIDATION
Article 29
29.1
The company shall be dissolved
pursuant to a resolution of the general meeting of shareholders, provided that
such resolution has been proposed to the general meeting of shareholders by the
Board of Directors. The provisions of article 28 shall apply correspondingly.
29.2
If the company is dissolved,
the liquidation shall be carried out by the Board of Directors.
29.3
The liquidation shall take
place with due observance of the provisions of the law. During the liquidation
period these articles of association shall, to the extent possible, remain in
full force and effect.
29.4
The balance of the assets of
the company remaining after all liabilities have been paid shall be distributed
to the shareholders pro rata to the number of shares held by each such
shareholder.
29.5
After settling the
liquidation, the liquidators shall render account in accordance with the
provisions of the law.
29.6
After the company has ceased
to exist, the books and records of the company shall remain in the custody of
the person designated for that purpose by the liquidators during a seven-year
period.
CHOICE OF LAW AND EXCLUSIVE JURISDICTION
Article 30
The
rights and obligations among or between (a) the company, (b) any of its current
or former directors, proxy-holders, officers and staff members, and/or (c) any
of its current or former holders of shares in the capital of the company and
derivatives thereof, shall be governed in each case exclusively by the laws of
the Netherlands, unless such rights or obligations do not pertain to or arise
out of the above-mentioned capacities, insofar as permitted by mandatory law.
Any dispute, suit, claim, pre-trial action or other legal proceeding, including
summary or injunctive proceedings, by and between those persons pertaining to
or arising out of the above-mentioned capacities shall be exclusively submitted
to the courts of the Netherlands. In relation to any such legal action or
proceedings, all current and former directors, proxy-holders, officers and
staff members of the company (a) shall irrevocably submit to the exclusive
jurisdiction of the Dutch courts, (b) shall waive any objections to such legal
action or proceedings in such courts on
21
the
grounds of venue or on the grounds that such legal action or proceedings have
been brought in an inappropriate forum, (c) shall irrevocably and
unconditionally agree that a judgment in any such legal action or proceedings
brought in the courts of the Netherlands shall be conclusive and binding upon
them and may be enforced in the courts of any other jurisdiction and (d) elect
domicile at the offices of the company in Amsterdam, The Netherlands for the
service of any document relating to such legal action or proceedings.
FINAL PROVISION
Finally, the person appearing declared:
-
that by this deed of amendment each ordinary share, having a nominal
value of one euro (EUR 1), was split into one hundred (100) ordinary shares,
each share having a nominal value of one eurocent (EUR 0.01);
-
that by the execution of this deed the condition precedent with respect
to the issuance of certain shares in the capital of the company
has been fulfilled, as a result of which seventy-three million seven
hundred thirty-six thousand eight hundred fifty-seven (73,736,857) ordinary
shares have been issued. At the time of the execution of this deed the total
issued share capital of the company amounts to seven hundred eighty-two
thousand three hundred sixty-nine euro and fifty-seven eurocents (EUR
782,369.57), consisting of seventy-eight million two hundred thirty-six
thousand nine hundred fifty-seven (78,236,957) ordinary shares, each ordinary
share with a nominal amount of one eurocent (EUR 0.01);
-
that he has been
appointed by the abovementioned general meeting of shareholders to apply for
the declaration of no objection as mentioned in article 2:125 of the Dutch
Civil Code and after obtaining that declaration to lay down and confirm the
amendment of the articles of association by notarial deed;
-
that the
abovementioned declaration was issued as appears from a Ministerial
Declaration, attached to this Deed, under number N.V. 1384230, dated the ninth
day of November two thousand and six.
The
person appearing is known to me, civil law notary.
This
Deed was executed in Amsterdam on the date mentioned in its heading.
After I, civil law notary, had
conveyed and explained the contents of the Deed in substance to the person
appearing, he declared that he had taken note of the contents of the Deed, was
in agreement with the contents and did not wish them to be read out in full.
Following a partial reading,
the Deed was signed by the person appearing and by me, civil law notary.
(Signed) R.A.F. Timmermans,
W.H. Bossenbroek
|
|
ISSUED FOR TRUE COPY
|
|
|
(Signed: W.H. Bossenbroek)
|
22
STATUTENWIJZIGING
AERCAP
HOLDINGS N.V.
Heden, tien november tweeduizend zes, verscheen voor
mij, Mr Wijnand Hendrik
Bossenbroek, notaris te Amsterdam:
de
heer Mr Robrecht Anton Frits Timmermans, werkzaam ten kantore van mij, notaris,
te 1077 XV Amsterdam, Strawinskylaan 1999, geboren te Gent, België, op vijftien
mei negentienhonderd drieënzeventig.
De
comparant verklaarde dat de algemene vergadering van aandeelhouders van
AerCap Holdings N.V.
, een naamloze vennootschap, statutair
gevestigd te Amsterdam (adres: 1118 CX Luchthaven Schiphol, Evert van de
Beekstraat 312, handelsregisternummer: 34251954), gehouden te Haarlemmermeer op
tien november tweeduizend zes, besloten heeft de statuten van voormelde vennootschap
algeheel te wijzigen. De statuten zijn laatstelijk gewijzigd op zevenentwintig
september tweeduizend zes voor Mr Wijnand Hendrik Bossenbroek, notaris te Amsterdam.
Ter
uitvoering van voormeld besluit verklaarde de comparant de statuten van voormelde
vennootschap bij deze als volgt te wijzigen:
NAAM EN ZETEL
Artikel 1
1.1
De vennootschap is genaamd:
AerCap Holdings N.V.
1.2
Zij is gevestigd te Amsterdam.
DOEL
Artikel 2
Het doel van de vennootschap is:
a.
het aangaan van
financieringscontracten, met name financial en operational leaseovereenkomsten,
met betrekking tot vliegtuigen en helikopters, vliegtuig- en helikoptermotoren,
(reserve)onderdelen van vliegtuigen en helikopters, alsmede met betrekking tot
alle daarmee verband houdende technische benodigdheden en alle andere
technische benodigdheden welke de vennootschap passend acht;
b.
het aangaan van
servicecontracten ter ondersteuning van bovengenoemde overeenkomsten;
c.
het verkrijgen,
exploiteren en vervreemden van alle hiervoor genoemde voorwerpen;
d.
het deelnemen in,
het financieren van, het samenwerken met, het voeren van directie over en het
verlenen van adviezen en andere diensten aan rechtspersonen en andere
ondernemingen met een soortgelijk of aanverwant doel;
e. het verkrijgen, exploiteren en/of
vervreemden van industriële en intellectuele eigendomsrechten;
f.
het verstrekken
van zekerheden voor schulden van rechtspersonen of
1
andere vennootschappen;
g.
het verrichten
van al hetgeen met het vorenstaande in de ruimste zin verband houdt of daartoe
bevorderlijk kan zijn.
AANDELENKAPITAAL
Artikel 3
Het
maatschappelijk kapitaal van de vennootschap bedraagt twee miljoen euro (EUR
2.000.000,—), verdeeld in tweehonderd miljoen (200.000.000) gewone aandelen,
elk nominaal groot één eurocent (EUR 0,01).
UITGIFTE VAN AANDELEN
EN STORTING OP AANDELEN
Artikel 4
4.1
De algemene vergadering van aandeelhouders is - op voorstel van de raad
van bestuur, welk voorstel de koers en de verdere voorwaarden van de uitgifte
omvat - bevoegd tot uitgifte van aandelen te besluiten en, met inachtneming van
het voorstel van de raad van bestuur, tot het vaststellen van de koers en de
verdere voorwaarden van een dergelijke uitgifte van aandelen. De algemene
vergadering van aandeelhouders kan de raad van bestuur aanwijzen als het
daartoe bevoegde orgaan. Een aanwijzing als hierboven bedoeld kan slechts voor
een bepaalde duur van ten hoogste vijf jaren geschieden en zal telkens met niet
meer dan vijf jaren kunnen worden verlengd. Tenzij uit de aanwijzing anders
blijkt, mag de aanwijzing niet worden ingetrokken. De aanwijzing zal het aantal
aandelen welke uitgegeven mogen worden vermelden.
4.2
Indien en voor zover de raad van bestuur bevoegd is te besluiten tot
uitgifte van aandelen overeenkomstig lid 1 van dit artikel, kan de algemene
vergadering van aandeelhouders geen besluiten tot het uitgeven van aandelen nemen.
4.3
Onverminderd het bepaalde in artikel 2:80 lid 2 van het Burgerlijk Wetboek,
geschiedt de uitgifte van aandelen nimmer beneden pari. De aandelen moeten bij
uitgifte worden volgestort.
4.4
Storting moet in geld geschieden voor zover niet een andere inbreng is
overeengekomen. Storting in geld kan in vreemd geld geschieden indien de
vennootschap daarin toestemt. Met storting in vreemd geld wordt aan de
stortingsplicht voldaan voor het bedrag waartegen het gestorte bedrag vrijelijk
in euro kan worden omgewisseld. Bepalend is de wisselkoers op de dag van
storting dan wel, na toepassing van de volgende zin, op de daar bedoelde dag.
De vennootschap kan storting verlangen tegen de wisselkoers op een bepaalde dag
binnen twee maanden voor de laatste dag waarop moet worden gestort, mits de
aandelen onverwijld na de uitgifte zullen worden toegelaten tot de officiële
notering van een effectenbeurs buiten Nederland.
4.5
Dit artikel 4 is van overeenkomstige toepassing op het verlenen van
rechten tot het nemen van aandelen, doch is niet van toepassing op het
2
uitgeven van aandelen aan iemand die een voordien reeds
verkregen recht tot het nemen van aandelen uitoefent. Tot de uitgifte van
zodanige aandelen is de raad van bestuur bevoegd.
4.6
De vennootschap is bevoegd om mee te werken aan de uitgifte van certificaten
van aandelen.
4.7
De raad van bestuur is bevoegd tot het verrichten van rechtshandelingen
als bedoeld in artikel 2:94 van het Burgerlijk Wetboek zonder voorafgaande
goedkeuring van de algemene vergadering van aandeelhouders.
VOORKEURSRECHT
Artikel 5
5.1
In geval van een uitgifte van aandelen heeft iedere aandeelhouder een voorkeursrecht
in verhouding tot het aantal aandelen dat hij bezit.
5.2
Indien een aandeelhouder, aan wie een voorkeursrecht toekomt, daarvan
niet of niet volledig gebruik maakt, komt voor het vrijvallend gedeelte het
voorkeursrecht op gelijke wijze toe aan de overige aandeelhouders. Maken deze
aandeelhouders tezamen niet of niet volledig van het voorkeursrecht gebruik,
dan is het bevoegde orgaan vrij in de keuze van degenen, aan wie uitgifte van
het vrijvallend gedeelte zal geschieden.
Bij uitgifte van aandelen bestaat geen voorkeursrecht op
aandelen die worden uitgegeven tegen inbreng anders dan in geld of die worden
uitgegeven aan werknemers van de vennootschap of van een groepsvennootschap.
5.3
De algemene vergadering van aandeelhouders is bevoegd te besluiten tot
het beperken of uitsluiten van de voorkeursrechten. Het voorkeursrecht kan
tevens worden beperkt of uitgesloten door de raad van bestuur die daartoe
ingevolge artikel 4.1 krachtens besluit van de algemene vergading van
aandeelhouders voor een periode van ten hoogste vijf jaren is aangewezen. Een
aanwijzing als hierboven bedoeld kan telkens met niet meer dan vijf jaren
worden verlengd. Tenzij uit de aanwijzing anders blijkt, mag de aanwijzing niet
worden ingetrokken.
5.4
Indien en voor zover de raad van bestuur bevoegd is te besluiten tot het
beperken of uitsluiten van de voorkeursrechten overeenkomstig lid 3 van dit
artikel, kan de algemene vergadering van aandeelhouders dergelijke besluiten
niet nemen.
5.5
Voor de geldigheid van besluiten van de algemene vergadering van
aandeelhouders tot het beperken of uitsluiten van de voorkeursrechten of tot
aanwijzing van de raad van bestuur als het daartoe bevoegde orgaan
overeenkomstig lid 3 van dit artikel, is een meerderheid van ten minste twee
derden van de uitgebrachte stemmen in een vergadering van aandeelhouders
vereist indien minder dan de helft van het geplaatste kapitaal in die vergadering
aanwezig of vertegenwoordigd is.
3
5.6
De vennootschap maakt een uitgifte van aandelen met voorkeursrechten
bekend in de Staatscourant en in een landelijk verspreid dagblad en - in het
geval dat aandelen zijn toegelaten tot de officiële notering aan Euronext
Amsterdam - in de Officiële Prijscourant van Euronext Amsterdam N.V., alsmede
de periode waarin een dergelijk voorkeursrecht kan worden uitgeoefend.
Een dergelijk voorkeopursrecht kan worden uitgeoefend
gedurende ten minste twee weken na de dag van bekendmaking in de Staatscourant.
VERKRIJGING DOOR DE
VENNOOTSCHAP VAN EIGEN AANDELEN
Artikel 6
6.1
De vennootschap kan onder bezwarende titel eigen aandelen verwerven
indien en voor zover:
a.
haar eigen vermogen, verminderd met de door de vennootschap voor die aandelen
te betalen verkrijgingsprijs, niet kleiner is dan het gestorte en opgevraagde
deel van het geplaatste kapitaal vermeerderd met de reserves die krachtens de
wet of deze statuten moeten worden aangehouden;
b.
het nominale bedrag van de aandelen in haar kapitaal die de vennootschap
verkrijgt, houdt of in pand houdt, of die worden gehouden door een dochtermaatschappij,
niet meer beloopt dan een tiende van het nominale bedrag van het geplaatste kapitaal;
en
c.
de algemene vergadering van aandeelhouders daartoe machtiging heeft
verleend aan de raad van bestuur, welke machtiging telkens voor ten hoogste
achttien maanden kan worden verleend,
onverminderd enig andere toepasselijke wettelijke
bepaling en de bepalingen van deze statuten.
6.2
Aldus verworven aandelen kunnen weer vervreemd worden door de
vennootschap.
Indien certificaten van aandelen in het aandelenkapitaal
van de vennootschap zijn uitgegeven, worden voor de toepassing van dit lid en
lid 1 van dit artikel zodanige certificaten met aandelen gelijkgesteld.
6.3
In de algemene vergadering van aandeelhouders kan geen stem worden
uitgebracht voor:
a.
een aandeel dat toebehoort aan de vennootschap of aan een dochtermaatschappij
daarvan;
b.
een aandeel waarvan de vennootschap of een dochtermaatschappij daarvan de
certificaten houdt;
c.
een aandeel dat de vennootschap of een dochtermaatschappij daarvan in
vruchtgebruik heeft of in pand houdt.
Vruchtgebruikers en pandhouders van aandelen die aan de
vennootschap of haar dochtermaatschappijen toebehoren, zijn evenwel
4
niet van hun stemrecht uitgesloten, indien het
vruchtgebruik of pandrecht was gevestigd voordat het aandeel aan de
vennootschap of een dochtermaatschappij daarvan toebehoorde.
Bij de vaststelling in hoeverre de aandeelhouders
stemmen, in hoeverre zij aanwezig of vertegenwoordigd zijn in de algemene
vergadering van aandeelhouders, of in hoeverre het aandelenkapitaal wordt
verschaft of vertegenwoordigd is, wordt geen rekening gehouden met aandelen
waarvoor geen stem kan worden uitgebracht.
KAPITAALVERMINDERING
Artikel 7
7.1
De algemene vergadering van aandeelhouders kan besluiten tot vermindering
van het geplaatste kapitaal van de vennootschap door intrekking van aandelen of
door het nominale bedrag van de aandelen bij statutenwijziging te verminderen,
mits het gestorte deel van het geplaatste kapitaal niet kleiner wordt dan het
ten tijde van het besluit laatst vastgestelde wettelijk minimumkapitaal.
Voor de geldigheid van besluiten van de algemene
vergadering van aandeelhouders, is een meerderheid van ten minste twee derden
van de uitgebrachte stemmen vereist indien minder dan de helft van het geplaatste
kapitaal in die vergadering aanwezig of vertegenwoordigd is.
7.2
Intrekking van aandelen kan betreffen aandelen die de vennootschap zelf
houdt of waarvan zij de certificaten houdt.
Gedeeltelijke terugbetaling op aandelen geschiedt op
alle aandelen.
7.3
Vermindering van het nominale bedrag van aandelen zonder terugbetaling
dan wel gedeeltelijke terugbetaling op aandelen moet naar evenredigheid op alle
aandelen geschieden. Van het vereiste van evenredigheid mag worden afgeweken
met instemming van alle betrokken aandeelhouders.
7.4
De oproeping tot een algemene vergadering van aandeelhouders waarin een
in dit artikel genoemd besluit wordt genomen, vermeldt het doel van de
kapitaalvermindering en de wijze van uitvoering. In het besluit tot
kapitaalvermindering moeten de aandelen waarop het besluit betrekking heeft,
worden aangegeven en moet de uitvoering van het besluit zijn geregeld.
7.5
De vennootschap legt een besluit tot vermindering van het geplaatste
kapitaal neer ten kantore van het handelsregister en kondigt de nederlegging
aan in een landelijk verspreid dagblad.
7.6
Binnen twee maanden na publicatie van de nederlegging als bedoeld in lid
5 van dit artikel kan elke crediteur verzet aantekenen tegen het besluit tot
vermindering van het geplaatste kapitaal van de vennootschap.
7.7
Een besluit tot vermindering van het geplaatste kapitaal wordt niet van
5
kracht, indien en zolang verzet kan worden gedaan.
Indien binnen de twee maanden termijn verzet is gedaan, wordt het besluit eerst
van kracht, zodra het verzet is ingetrokken of de opheffing van het verzet
uitvoerbaar is.
AANDELEN
EN AANDEELBEWIJZEN
Artikel 8
8.1
De aandelen
luiden op naam. Aandeelbewijzen worden voor de aandelen volgens model I, zoals
omschreven in het volgende lid, niet uitgegeven.
8.2
De aandelen zijn,
ter keuze van de desbetreffende aandeelhouder, verkrijgbaar:
(i)
in de vorm van
een inschrijving in het aandelenregister zonder afgifte van een aandeelbewijs;
zodanige aandelen worden in deze statuten aangeduid als aandelen volgens model
I;
(ii)
of in de vorm van een
inschrijving in het aandelenregister, met afgifte van een aandeelbewijs, welk
aandeelbewijs slechts uit een mantel zonder dividendblad bestaat; zodanige
aandelen en aandeelbewijzen worden in deze statuten aangeduid als aandelen en
aandeelbewijzen volgens model II.
8.3
Onverminderd de
bevoegdheid van een aandeelhouder zijn aandelen volgens model I om te wisselen
in aandelen volgens model II, en omgekeerd, kan de raad van bestuur bepalen dat
inschrijving in het aandelenregister van aandelen volgens model I zal kunnen
geschieden voor een of meer nader door hem vast te stellen aantallen aandelen
tegelijk.
8.4
Aandeelbewijzen volgens model II zijn verkrijgbaar voor zoveel aantallen
aandelen als de raad van bestuur zal bepalen.
8.5
Alle aandeelbewijzen worden getekend door of namens een lid van de raad
van bestuur; de ondertekening zal mogen geschieden door middel van
facsimiledruk. Bovendien kunnen alle aandeelbewijzen geldig worden getekend
door een of meer daartoe door de raad van bestuur aan te wijzen personen.
8.6
Alle aandeelbewijzen worden gekentekend door nummers en/of letters op
door de raad van bestuur te bepalen wijzen.
8.7
De raad van bestuur bepaalt de vorm en inhoud van de aandeelbewijzen.
8.8
Onder “aandeelbewijs” wordt in deze statuten mede begrepen een bewijs van
meer dan één aandeel.
8.9
De vennootschap
kan, krachtens besluit van de raad van
bestuur, medewerking verlenen aan de uitgifte van certificaten aan
toonder.
VERMISTE
OF BESCHADIGDE AANDEELBEWIJZEN
Artikel 9
6
9.1
Op schriftelijk verzoek van of namens een aandeelhouder, kunnen voor
aandeelbewijzen die worden vermist of zijn beschadigd, nieuwe aandeelbewijzen
of duplicaatbewijzen met gelijke nummers en/of letters worden uitgereikt,
wanneer de aandeelhouder die daarom verzocht of de persoon die namens hem
daarom verzocht ten genoegen van de raad van bestuur van zijn recht en, in
geval van vermissing, van de vermissing doet blijken, en voorts onder zodanige
voorwaarden als de raad van bestuur zal nodig oordelen.
9.2
Door de afgifte van nieuwe of duplicaatbewijzen worden de oorspronkelijke
stukken van onwaarde.
9.3
De afgifte van nieuwe of duplicaatbewijzen voor aandeelbewijzen kan in de
daarvoor naar het oordeel van de raad van bestuur in aanmerking komende
gevallen worden bekendgemaakt in door de raad van bestuur aan te wijzen dagbladen.
REGISTER VAN AANDEELHOUDERS
Artikel 10
10.1
Met inachtneming van het in de wet bepaalde wordt door of namens de
vennootschap met betrekking tot de aandelen op naam een aandelenregister
gehouden, dat regelmatig wordt bijgehouden en dat, geheel of gedeeltelijk, uit
meerdere exemplaren kan bestaan en op meerdere plaatsen kan berusten, een en
ander zoals de raad van bestuur zal bepalen. Ten minste één exemplaar zal ten
kantore van de vennootschap in Nederland berusten.
Een gedeelte van het aandelenregister kan in het
buitenland berusten teneinde te voldoen aan de door een buitenlandse
effectenbeurs gestelde regels.
10.2
In het aandelenregister wordt ten aanzien van iedere aandeelhouder
aangetekend zijn naam, zijn adres en alle andere gegevens die daarin krachtens
de wet moeten worden opgenomen, alsmede zodanige verdere gegevens als de raad
van bestuur, al dan niet op verzoek van een aandeelhouder, wenselijk oordeelt.
10.3
De raad van bestuur bepaalt de vorm en de inhoud van het aandelenregister
met inachtneming van het in de leden 1 en 2 van dit artikel bepaalde. De raad
van bestuur kan beslissen dat het aandelenregister verschillend zal zijn van
vorm en inhoud al naargelang het betrekking heeft op aandelen volgens model I,
of op aandelen volgens model II.
10.4
Op zijn verzoek wordt aan een aandeelhouder om niet een schriftelijke
verklaring verstrekt van hetgeen het aandelenregister vermeldt omtrent de te
zijnen name ingeschreven aandelen, welke verklaring namens de vennootschap kan
worden ondertekend door een lid van de raad van bestuur of door een daartoe
door een lid van de raad van bestuur aan te
7
wijzen bijzondere persoon.
10.5
Het in de leden 1 tot en met 4 van dit artikel bepaalde is van overeenkomstige
toepassing ten aanzien van hen die een recht van vruchtgebruik of een pandrecht
hebben op een of meer aandelen.
10.6
De raad van bestuur is bevoegd om inspectie van het aandelenregister toe
te staan door, en daarin opgenomen informatie, alsmede iedere andere informatie
met betrekking tot het directe of indirecte aandelenbezit van een aandeelhouder
waarvan de vennootschap door die aandeelhouder is geïnformeerd, te verstrekken
aan de autoriteiten die zijn belast met het toezicht en/of de uitvoering van de
handel in effecten op een buitenlandse effectenbeurs namens de vennootschap en
haar aandeelhouders, teneinde te voldoen aan de betrokken buitenlandse
wettelijke bepalingen of de door de betrokken buitenlandse effectenbeurs te
stellen eisen, indien en voor zover dergelijke eisen van toepassing zijn op de
vennootschap en haar aandeelhouders ten gevolge van de officiële notering van
de aandelen in het geplaatste kapitaal van de vennootschap aan een dergelijke
buitenlandse effectenbeurs of van de registratie van dergelijke aandelen of de
registratie van opties op dergelijke aandelen onder de betrokken buitenlandse
effectenwetgeving.
OMWISSELING
VAN AANDELEN
Artikel 11
11.1
Een aandeelhouder
die is ingeschreven in het aandelenregister voor een of meer aandelen volgens
model I kan, op zijn verzoek, behoudens het in artikel 8 bepaalde, een of meer
aandeelbewijzen volgens model II tot een gelijk nominaal bedrag verkrijgen.
11.2
Een houder van
een aandeelbewijs volgens model II dat te zijnen name is gesteld, kan na inlevering
bij de vennootschap van het aandeelbewijs, op zijn verzoek, behoudens het in
artikel 8 bepaalde, een inschrijving in het aandelenregister voor een of meer
aandelen volgens model I tot een gelijk nominaal bedrag verkrijgen.
11.3
De raad van bestuur kan verlangen dat een verzoek tot omwisseling, als
bedoeld in dit artikel 11, wordt ingediend op een aan de aandeelhouder
kosteloos te verstrekken formulier, door de desbetreffende aandeelhouder
ondertekend. Elk verzoek gedaan volgens en in overeenstemming met het bepaalde
in de artikelen 8, 9 en 10 en dit artikel 11 kan worden gezonden naar het
daartoe door de raad van bestuur aan te wijzen adres, waaronder in ieder geval
een adres in de gemeente of stad waar een effectenbeurs waar aandelen in het
kapitaal van de vennootschap tot de officiële notering zijn toegelaten, haar
hoofdkantoor heeft.
11.4
De vennootschap is gerechtigd zodanige door de raad van bestuur vast te
stellen bedragen, tegen ten hoogste kostprijs, in rekening te brengen
8
aan hen die een verzoek hebben gedaan volgens het
bepaalde in de artikelen 8 tot en met 11.
LEVERING
VAN AANDELEN
Artikel 12
12.1
Tenzij de wet
anders bepaalt en onverminderd het in de volgende leden van dit artikel
bepaalde, zijn voor de levering van een aandeel vereist een daartoe bestemde
akte alsmede, behoudens in het geval dat de vennootschap zelf bij de
rechtshandeling partij is, schriftelijke erkenning door de vennootschap van de
levering; met de erkenning staat gelijk de betekening van de akte of van een
notarieel of door de vervreemder gewaarmerkt afschrift of uittreksel van de akte
aan de vennootschap.
12.2
In het geval een
aandeel volgens model I wordt overgedragen, dient een akte van levering volgens
een door de vennootschap kosteloos te verstrekken formulier bij de vennootschap
te worden ingeleverd.
12.3
In het geval een
aandeel waarvoor een aandeelbewijs volgens model II is verstrekt, wordt
overgedragen, dient het aandeelbewijs te worden ingeleverd bij de vennootschap,
mits de akte gedrukt op de achterzijde van het aandeelbewijs volledig is
ingevuld en getekend door of namens degene die wenst over te dragen, dan wel
tezamen met het aandeelbewijs een afzonderlijke akte van levering wordt ingeleverd.
12.4
Indien een levering
van een aandeel volgens model II heeft plaatsgevonden door de betekening van
een akte van levering aan de vennootschap, zal de vennootschap, zulks ter
beoordeling van de raad van bestuur,
hetzij de levering aantekenen op het aandeelbewijs, hetzij het aandeelbewijs intrekken
en aan degene, aan wie de levering plaats vond een of meer te zijnen name
gestelde aandeelbewijzen uitreiken tot een gelijk nominaal bedrag.
12.5
Een schriftelijke
erkenning door de vennootschap van een levering van een aandeel volgens model
II zal, zulks ter beoordeling van de raad
van bestuur, hetzij plaatsvinden door aantekening waaruit van de
erkenning blijkt op het aandeelbewijs, hetzij door afgifte aan degene, aan wie
de levering plaats vond, van een of meer te zijnen name gestelde aandeelbewijzen
tot een gelijk nominaal bedrag.
12.6
Indien de
levering van een aandeel niet geschiedt conform het bepaalde in de leden 2 en 3
van dit artikel, kan de overdracht van een aandeel slechts plaatsvinden met
toestemming van de raad van bestuur.
Aan de toestemming van de raad van bestuur
kunnen zodanige voorwaarden worden verbonden als de raad van bestuur wenselijk of noodzakelijk oordeelt. De verzoeker
zal steeds kunnen vorderen, dat de toestemming wordt
9
verleend
onder de voorwaarde, dat wordt overgedragen aan een door de raad van bestuur aan te wijzen persoon. De
toestemming wordt geacht te zijn verleend, indien de raad van bestuur niet binnen zes weken na het verzoek om toestemming
op dat verzoek heeft beslist.
12.7
Het in de
voorgaande leden van dit artikel bepaalde vindt overeenkomstige toepassing ten
aanzien van de toedeling van aandelen bij verdeling van enige vorm van
gemeenschap, de levering van een aandeel als gevolg van executie en het
vestigen van beperkte rechten op een aandeel.
PANDRECHT
Artikel 13
13.1
Op de aandelen kan pandrecht worden gevestigd.
13.2
Indien op aandelen pandrecht is gevestigd, is uitsluitend de
aandeelhouder gerechtigd het aan die aandelen verbonden stemrecht uit te
oefenen en kan het stemrecht niet aan de pandhouder worden toegekend.
13.3
Aan de pandhouder die geen stemrecht heeft, komen niet de rechten toe,
die door de wet zijn toegekend aan houders van certificaten, indien die
certificaten met medewerking van de vennootschap zijn uitgegeven.
13.4
Het bepaalde in artikel 12 vindt overeenkomstige toepassing op de vestiging
of afstand van een pandrecht op aandelen.
13.5
De vennootschap kan haar eigen aandelen alleen verpanden, indien:
a.
de te verpanden aandelen volledig zijn volgestort;
b.
het nominale bedrag van haar eigen, te verpanden aandelen en die zij reeds zelf houdt of in
pand houdt tezamen niet meer beloopt dan een tiende van het geplaatste
kapitaal; en
c.
de algemene vergadering van aandeelhouders de pandovereenkomst heeft goedgekeurd.
VRUCHTGEBRUIK
Artikel 14
14.1
Op aandelen kan vruchtgebruik worden gevestigd.
14.2
Indien op aandelen vruchtgebruik is gevestigd, is uitsluitend de
aandeelhouder gerechtigd het aan die aandelen verbonden stemrecht uit te
oefenen en kan het stemrecht niet aan de vruchtgebruiker worden toegekend.
14.3
Aan de vruchtgebruiker die geen stemrecht heeft, komen niet de rechten
toe, die door de wet zijn toegekend aan houders van certificaten, indien die
certificaten met medewerking van de vennootschap zijn uitgegeven.
14.4
Het bepaalde in artikel 12 vindt overeenkomstige toepassing op de vestiging,
levering of afstand van een recht van vruchtgebruik op aandelen.
RAAD VAN BESTUUR
Artikel 15
15.1
De vennootschap heeft een monistisch bestuursmodel. De vennootschap
10
wordt bestuurd door de raad van bestuur. De raad van
bestuur bestaat uit ten minste drie en ten hoogste twaalf leden. De raad van
bestuur stelt, met inachtneming van de vorige volzin, het aantal leden van de
raad van bestuur vast. Slechts natuurlijk personen kunnen tot lid van de raad
van bestuur worden benoemd.
15.2
De benoeming van de leden van de raad van bestuur geschiedt door de
algemene vergadering van aandeelhouders. Besluiten tot benoeming van een lid
van de raad van bestuur geschieden met volstrekte meerderheid van de geldig
uitgebrachte stemmen, mits het voorstel daartoe door de raad van bestuur wordt
gedaan. De algemene vergadering van aandeelhouders
kan
een lid van de raad van bestuur, anders dan op voorstel van de raad van
bestuur, benoemen bij besluit genomen
met
volstrekte meerderheid van de geldig uitgebrachte stemmen, indien die meerderheid
ten minste een derde van het geplaatste kapitaal vertegenwoordigt.
15.3
De leden van de raad van bestuur worden benoemd voor een periode van vier
jaar aanvangend op de dag na de algemene vergadering van aandeelhouders waarin
zij benoemd zijn en aflopend op de dag van de jaarlijkse algemene vergadering
van aandeelhouders te houden in het vierde jaar van hun benoeming.
15.4
De algemene vergadering van aandeelhouders is te allen tijde bevoegd ieder
lid van de raad van bestuur te schorsen of te ontslaan. Besluiten tot schorsing
of ontslag van een lid van de raad van bestuur kunnen worden genomen met
volstrekte meerderheid van de
geldig
uitgebrachte stemmen
, mits genomen op voorstel
van de raad van bestuur. De algemene vergadering van aandeelhouders kan een lid
van de raad van bestuur, anders dan op voorstel van de raad van bestuur,
schorsen of ontslaan, bij besluit genomen met volstrekte meerderheid
van de geldig uitgebrachte stemmen,
indien die meerderheid ten minste een derde van het geplaatste kapitaal vertegenwoordigt.
15.5
Indien de algemene vergadering van aandeelhouders een lid van de raad van
bestuur heeft geschorst, dient de algemene vergadering van aandeelhouders
binnen drie maanden na ingang van de schorsing te besluiten hetzij tot ontslag
hetzij tot opheffing of handhaving van de schorsing; bij gebreke daarvan vervalt
de schorsing. Een besluit tot handhaving van de schorsing kan slechts eenmaal
worden genomen en de schorsing kan daarbij ten hoogste worden gehandhaafd voor
drie maanden, ingaande op de dag waarop de algemene vergadering van aandeelhouders
het besluit tot handhaving heeft genomen.
Indien de algemene vergadering van aandeelhouders niet
binnen de voor de handhaving bepaalde termijn tot ontslag of tot opheffing van
de schorsing heeft besloten, vervalt de schorsing.
11
Een geschorst lid van de raad van bestuur wordt in de gelegenheid gesteld
zich in de algemene vergadering van aandeelhouders te verantwoorden.
15.6
De raad van
bestuur wijst uit zijn midden één of meer uitvoerende leden (
executive director
) aan, waarvan één de titel “Chief
Executive Officer” (“CEO”) zal hebben. De uitvoerende leden zijn met de
dagelijkse gang van zaken van de vennootschap belast. De andere leden van de
raad van bestuur zijn niet-uitvoerende leden (
non-executive
directors
).
15.7
De raad van
bestuur wijst voorts één van de niet-uitvoerende leden aan als voorzitter van
de raad van bestuur en, indien de raad van bestuur daartoe besluit, één van de
niet-uitvoerende leden als vice-voorzitter van de raad van bestuur.
15.8
Het beleid op het
terrein van bezoldiging van de raad van bestuur wordt, op voorstel van de
nomination and compensation committee, vastgesteld door de algemene vergadering
van aandeelhouders. In het bezoldigingsbeleid komen ten minste de in de
artikelen 2:383c tot en met 2:383e van het Burgerlijk Wetboek omschreven
onderwerpen aan de orde, voor zover deze de raad van bestuur betreffen. Het
bezoldigingsbeleid wordt schriftelijk en gelijktijdig met de aanbieding aan de
algemene vergadering van aandeelhouders ter kennisneming aan de ondernemingsraad
aangeboden.
15.9
De bezoldiging
van de leden van de raad van bestuur wordt met inachtneming van het
bezoldigingsbeleid vastgesteld door de raad van bestuur. De raad van bestuur
legt ten aanzien van regelingen in de vorm van aandelen of rechten tot het
nemen van aandelen een voorstel ter goedkeuring voor aan de algemene
vergadering van aandeelhouders. In dit voorstel moet ten minste zijn bepaald
hoeveel aandelen of rechten tot het nemen van aandelen aan de raad van bestuur
mogen worden toegekend en welke criteria gelden voor toekenning of wijziging.
TAAK EN BEVOEGDHEDEN
Artikel 16
16.1
Behoudens de
beperkingen volgens deze statuten is de raad van bestuur belast met het
besturen van de vennootschap.
16.2
De raad van
bestuur stelt een reglement op waarin zijn interne aangelegenheden worden
geregeld. Een dergelijk reglement kan een toekenning van werkzaamheden aan één
of meer leden van de raad van bestuur of commissies van de raad van bestuur
bevatten. Een dergelijk reglement mag niet in strijd zijn met het bepaalde in
deze statuten. Indien een reglement betreffende interne aangelegenheden van de
raad van bestuur is opgesteld, zullen besluiten van de raad van bestuur in
overeenstemming met deze statuten en dit reglement worden genomen.
16.3
De voorzitter zal
zich ervoor inspannen dat de meerderheid van de
12
vergaderingen van de raad van bestuur gehouden zullen worden in
Nederland en dat een meerderheid van de schriftelijke besluiten genomen in overeenstemming
met het bepaalde in lid 5 van dit artikel geacht zullen worden te zijn genomen
in Nederland.
16.4
Een gelijktijdige
telefonische- of beeldverbinding met geluid tot stand gebracht tussen de leden
van de raad van bestuur, wordt geacht gedurende het bestaan van deze verbinding
een vergadering van de raad van bestuur te vormen. Een deelnemend lid van de
raad van bestuur zal geacht worden in persoon aanwezig te zijn bij de
vergadering en zal bevoegd zijn te stemmen en worden meegerekend bij het
bepalen van het aanwezig quorum. Een zodanige vergadering zal worden geacht in
Nederland te zijn gehouden indien de meerderheid van de deelnemers zich voor de
volledige duur van de vergadering in Nederland bevonden.
16.5
Besluiten van de
raad van bestuur kunnen in plaats van in een vergadering ook schriftelijk -
waaronder begrepen ieder elektronisch bericht en telefaxbericht, alsmede via
ieder ander gangbaar communicatiekanaal overgebracht en op schrift ontvangen of
voor schriftelijke weergave vatbaar bericht - worden genomen, mits alle leden
van de raad van bestuur in het te nemen besluit gekend zijn en geen van hen
zich tegen deze wijze van besluiten verzet en mits het besluit is getekend door
de meerderheid van de in functie zijnde leden van de raad van bestuur. Een
besluit wordt geacht te zijn genomen in Nederland indien de meerderheid van de
leden van de raad van bestuur het besluit in Nederland heeft getekend.
16.6
De raad van
bestuur zal een group executive committee, een group portfolio and investment
committee, een group treasury and accounting committee, een audit committee en
een nomination and compensation committee instellen. De raad van bestuur kan
zodanige andere commissies instellen als hij zal besluiten. De raad van bestuur
zal een reglement opstellen waarin de interne aangelegenheden van een commissie
worden geregeld.
16.7
Voorzover in deze
statuten niet anders is bepaald, behoeft de raad van bestuur de goedkeuring van
de algemene vergadering van aandeelhouders voor de besluiten omtrent een
belangrijke verandering van de identiteit of het karakter van de vennootschap
of de onderneming, waaronder in ieder geval:
a. overdracht van de onderneming of
vrijwel de gehele onderneming aan een derde;
b. het aangaan of verbreken van
duurzame samenwerking van de vennootschap of een dochtermaatschappij met een
andere rechtspersoon of vennootschap dan wel als volledige aansprakelijke
vennote in een commanditaire vennootschap of
13
vennootschap onder firma, indien deze
samenwerking of verbreking van ingrijpende betekenis is voor de vennootschap;
c. het nemen of afstoten van een
deelneming in het kapitaal van een vennootschap ter waarde van ten minste een
derde van het bedrag van de activa volgens de balans met toelichting of, indien
de vennootschap een geconsolideerde balans opstelt, volgens de geconsolideerde
balans met toelichting volgens de laatst vastgestelde jaarrekening van de
vennootschap, door haar of een dochtermaatschappij.
Het ontbreken van
de ingevolge dit lid vereiste goedkeuring tast de vertegenwoordigingsbevoegdheid
van de leden van de raad van bestuur niet aan.
16.8
Ingeval van
ontstentenis of belet van één of meer leden van de raad van bestuur, zijn/is de
overblijvende leden/het overblijvende lid van de raad van bestuur met het
gehele bestuur belast; ingeval van ontstentenis of belet van alle leden van de
raad van bestuur of van het enige lid van de raad van bestuur, berust het
bestuur tijdelijk bij één of meer personen, daartoe door de algemene vergadering
van aandeelhouders aan te wijzen.
VERTEGENWOORDIGING
Artikel 17
17.1
De raad van bestuur, zomede de CEO afzonderlijk, is bevoegd de vennootschap
te vertegenwoordigen.
17.2
Onverminderd het bepaalde in lid 4 van dit artikel vindt vertegenwoordiging
van de vennootschap
in alle gevallen waarin de vennootschap een
tegenstrijdig belang heeft met één of meer leden van de raad van bestuur
niettemin plaats overeenkomstig het bepaalde in het vorige lid. De algemene
vergadering van aandeelhouders is steeds bevoegd één of meer andere personen
daartoe aan te wijzen. De aanwijzing kan tevens betreffen het lid/de leden van
de raad van bestuur ten aanzien van wie het tegenstrijdig belang bestaat.
17.3
De vennootschap kan aan personen, al dan niet in dienst van de vennootschap,
een specifieke of algemene volmacht verlenen tot het vertegenwoordigen van de
vennootschap en tot het haar binden jegens derden.
17.4
Bij de uitvoering
van artikel 18 is ieder lid van de raad van bestuur bevoegd de vennootschap te
vertegenwoordigen, tenzij het desbetreffende lid een tegenstrijdig belang heeft
met de vennootschap dat voortvloeit uit een verzoek tot schadeloosstelling van dat lid op grond van artikel 18. Indien de
vennootschap bij de uitvoering van artikel 18 een tegenstrijdig belang heeft
met alle leden van de raad van bestuur voortvloeiende uit een verzoek tot schadeloosstelling van die leden van de
raad van bestuur op grond van artikel 18, wordt de
14
vennootschap
vertegenwoordigd door twee of meer door de raad van bestuur aan te wijzen personen.
Zodanige personen kunnen geen lid zijn van de raad van bestuur.
VRIJWARING
Artikel 18
18.1
Met inachtneming van de beperkingen opgenomen in dit artikel, wordt elke
persoon of rechtspersoon die lid van de raad van bestuur, procuratiehouder
, werknemer of staf functionaris (daar onder uitdrukkelijk begrepen de
“Chief Financial Officer” en de “Chief Legal Officer” zoals deze van tijd tot
tijd zullen zijn aangewezen door de raad van bestuur)
is of is geweest, die als partij of anderszins wordt betrokken of dreigt
betrokken te geraken bij een aanspraak, actie, rechtsingang of procedure
vanwege het feit dat hij/zij een lid van de raad van bestuur, procuratiehouder
, werknemer of staf functionaris
van de
vennootschap is of is geweest, schadeloos gesteld door de vennootschap voor
zover toegestaan naar Nederlands recht terzake van (A) enigerlei verplichting
die aan hem/haar is opgelegd, daaronder begrepen veroordelingen, boetes en
geldstraffen, (B) alle kosten, daaronder begrepen kosten en honoraria van
advocaten, die hij/zij redelijkerwijs heeft opgelopen of door hem/haar zijn
betaald, en (C) alle door hem/haar, in verband met zodanige aanspraak, actie,
rechtsingang of andere procedure in het kader van een schikking betaalde
bedragen.
18.2
Een lid van de raad van bestuur, procuratiehouder
, werknemer of staf functionaris
heeft
echter geen recht op schadeloosstelling terzake van enige aansprakelijkheid in
wat voor zaak dan ook, indien definitief is komen vast te staan dat zodanige
aansprakelijkheid het resultaat was van
opzet,
bewuste roekeloosheid, of ernstige verwijtbaarheid
van zodanige
persoon of rechtspersoon.
18.3
Voorts heeft een lid van de raad van bestuur, procuratiehouder
, werknemer of staf functionaris
geen
recht op schadeloosstelling terzake van enige aansprakelijkheid in wat voor
zaak dan ook, indien definitief is komen vast te staan dat zodanige persoon of
rechtspersoon niet te goeder trouw heeft gehandeld en redelijkerwijs niet mocht
veronderstellen dat zijn handelen in het belang van de vennootschap was.
18.4
In geval van een schikking verliest een lid van de raad van bestuur, procuratiehouder
, werknemer of staf functionaris
zijn/haar recht op schadeloosstelling niet, tenzij is vastgesteld dat die
persoon of rechtspersoon zijn of haar functie opzettelijk,
met bewuste roekeloosheid, of ernstige verwijtbaarheid
heeft uitgeoefend of dat hij/zij niet te goeder trouw heeft gehandeld en
redelijkerwijs niet mocht veronderstellen dat zijn handelen in het beste belang
van de
15
vennootschap was:
(i)
door het gerecht of andere autoriteit die de schikking heeft goedgekeurd;
of
(ii)
door een besluit genomen door de algemene vergadering van aandeelhouders;
of
(iii)
door een schriftelijk oordeel van een onafhankelijk juridisch adviseur,
te benoemen door de
raad van bestuur.
18.5
Het recht op schadevergoeding zoals in dit artikel bepaald (i) kan door
de vennootschap worden verzekerd, (ii) zal aan een ieder afzonderlijk toekomen,
(iii) zal geen afbreuk doen aan andere rechten die een lid van de raad van
bestuur, procuratiehouder
, werknemer of staf
functionaris
heden of in de toekomst zal
toekomen, (iv) zal blijven toekomen aan een persoon of rechtspersoon die
opgehouden is lid van de raad van bestuur, procuratiehouder
, werknemer of staf functionaris
te zijn
en (v) zal eveneens toekomen aan de erfgenamen, executeurs, bewindvoerders of
rechtsopvolgers van die persoon of rechtspersoon.
18.6
Niets van hetgeen in dit artikel is bepaald, zal enig recht op schadeloosstelling
aantasten dat de personen of rechtspersonen die geen lid van de raad van
bestuur, procuratiehouder
, werknemer of staf
functionaris
zijn krachtens overeenkomst of
anderszins toekomt.
18.7
Met inachtneming van door de
raad van bestuur vast te stellen regelingen, kunnen onkosten aan
een lid van de raad van bestuur,
procuratiehouder
, werknemer of staf
functionaris
door de vennootschap worden
vooruitbetaald ter dekking van uitgaven in verband met de voorbereidingen en
het voeren van de verdediging tegen enige aanspraak, actie, rechtsingang of
procedure zoals omschreven in dit artikel 18, voordat de zaak definitief is beslist,
één en ander indien door of namens dat lid van de
raad van bestuur, procuratiehouder
, werknemer of staf functionaris
de
verplichting is aangegaan om het desbetreffende bedrag terug te betalen indien
uiteindelijk is komen vast te staan dat hij of zij niet tot schadeloosstelling
is gerechtigd ingevolge dit artikel 18.
ALGEMENE VERGADERING VAN AANDEELHOUDERS
Artikel 19
19.1
De jaarlijkse algemene vergadering van aandeelhouders wordt binnen zes
maanden na afloop van het boekjaar gehouden.
19.2
In deze algemene
vergadering van aandeelhouders komen de volgende onderwerpen aan de orde:
a.
het door de raad van bestuur schriftelijk uitgebrachte verslag omtrent de
gang van zaken in de vennootschap en het gevoerde bestuur gedurende het
afgelopen boekjaar;
b. de
vaststelling van de jaarrekening;
c.
de behandeling van het reserveringsbeleid en dividendbeleid van
16
de vennootschap en de verantwoording door de raad van
bestuur van het reserveringsbeleid - en dividendbeleid;
d. indien
van toepassing, het voorstel tot uitkering van dividend;
e.
de decharge van de leden van de raad van bestuur voor het in het
afgelopen boekjaar gevoerde bestuur;
f. de
benoeming van leden van de raad van bestuur;
g. de
aanwijzing van de persoon als bedoeld in artikel 16.8;
h.
elke substantiële wijziging in de corporate governance structuur van de
vennootschap;
i.
de voorstellen die door de raad van bestuur op de agenda zijn geplaatst
alsmede de voorstellen van de aandeelhouders, overeenkomstig de bepalingen van
deze statuten.
19.3
Buitengewone algemene vergaderingen van aandeelhouders worden gehouden zo
dikwijls de raad van bestuur dat nodig acht en moeten worden gehouden, indien
een of meer aandeelhouders en overige vergadergerechtigden, die ten minste een
tiende gedeelte van het geplaatste kapitaal vertegenwoordigen, dit
schriftelijk, onder nauwkeurige opgave van de te behandelen onderwerpen, aan de
raad van bestuur verzoeken.
19.4
Indien de raad van bestuur in gebreke blijft aan een verzoek als bedoeld
in het voorgaande lid gevolg te geven, zodanig dat de algemene vergadering van
aandeelhouders binnen zes weken na het verzoek kan worden gehouden, kunnen de
verzoekers door de President van de Arrondissementsrechtbank te Amsterdam,
worden gemachtigd zelf de oproeping te doen.
PLAATS EN OPROEPING VAN DE
ALGEMENE VERGADERING VAN AANDEELHOUDERS
Artikel 20
20.1
De algemene vergaderingen van aandeelhouders worden gehouden te
Amsterdam, Haarlemmermeer (Luchthaven Schiphol), Rotterdam of ‘s-Gravenhage. De
oproeping voor de vergadering zal de aandeelhouders en de overige vergadergerechtigden
dienaangaande inlichten.
20.2
Alle oproepingen van aandeelhouders en overige vergadergerechtigden
worden bekendgemaakt in een landelijk verspreid dagblad en in het buitenland in
ten minste één nieuwsblad in elk land waar de aandelen op verzoek van de
vennootschap tot een officiële notering zijn toegelaten.
20.3
De oproeping tot een algemene vergadering van aandeelhouders gaat uit van
de raad van bestuur of van diegenen, die daartoe wettelijk of volgens deze
statuten de bevoegdheid bezitten.
OPROEPINGSTERMIJN EN AGENDA
Artikel 21
21.1
De oproeping tot een algemene vergadering van aandeelhouders
17
geschiedt niet later dan op de vijftiende dag vóór die
van de vergadering. De oproeping zal altijd bevatten of vergezeld gaan van de
agenda voor de vergadering of zal vermelden waar die agenda kan worden verkregen,
hetgeen te allen tijde zal kunnen op het kantoor van de vennootschap in
Nederland, zulks onverminderd hetgeen terzake overigens in de wet is bepaald
met betrekking tot kapitaalvermindering en statutenwijziging.
21.2
De agenda vermeldt de op de vergadering te behandelen onderwerpen welke
de persoon/personen die de vergadering heeft/hebben opgeroepen daarop
heeft/hebben geplaatst en verder de onderwerpen
waarvan de behandeling
schriftelijk is verzocht door een of meer houders van aandelen en andere
vergadergerechtigden die alleen of gezamenlijk ten minste één honderdste
gedeelte van het geplaatste kapitaal vertegenwoordigen of een waarde vertegenwoordigen
van tenminste vijftig miljoen euro (EUR 50.000.000,—), indien het verzoek niet
later dan op de zestigste dag voor oproeping van de vergadering heeft
ontvangen. De raad van bestuur kan
besluiten de onderwerpen waarvan behandeling is verzocht niet op de agenda te
plaatsen, indien de raad van bestuur
van mening is dat een zwaarwichtig belang van de vennootschap zich daartegen
verzet. Over andere onderwerpen dan die, welke op de agenda voorkomen, wordt in
de algemene vergadering van aandeelhouders geen besluit genomen.
VOORZITTER VAN DE ALGEMENE
VERGADERING VAN AANDEELHOUDERS EN NOTULEN
Artikel 22
22.1
De algemene vergaderingen van aandeelhouders worden geleid door de
voorzitter van de raad van bestuur. Bij afwezigheid van de voorzitter van de
raad van bestuur wordt de vergadering geleid door elk ander daartoe door de
raad van bestuur benoemd persoon. De voorzitter van de vergadering wijst de
secretaris van die vergadering aan.
22.2
Van het verhandelde in de vergadering worden door de secretaris van de
vergadering notulen gehouden, die door de voorzitter en de secretaris van die
vergadering worden vastgesteld en getekend.
22.3
De voorzitter van de raad van bestuur kan een notaris opdracht geven tot
het opmaken van een notarieel proces-verbaal van het verhandelde in de
vergadering.
BIJWONEN VAN DE ALGEMENE VERGADERING VAN AANDEELHOUDERS
Artikel 23
23.1
Alle aandeelhouders en overige vergadergerechtigden zijn gerechtigd de
vergaderingen van aandeelhouders bij te wonen, aldaar het woord te voeren en -
voor zover zij het stemrecht op de aandelen hebben - te
18
stemmen.
23.2
Een aandeelhouder of zijn gevolmachtigde moet vóór de vergadering een presentielijst
tekenen, onder vermelding van zijn naam en het aantal stemmen dat door hem kan
worden uitgebracht. Een gevolmachtigde vermeldt ook de naam van zijn volmachtgever.
23.3
De raad van bestuur kan bepalen dat voor de
toepassing van het bepaalde in lid 1 als gerechtigden hebben te gelden zij die
(i) op een door de raad van bestuur
te bepalen tijdstip aandeelhouder zijn, dat tijdstip hierna te noemen: het
“registratietijdstip” en (ii) als zodanig zijn ingeschreven in een door de raad van bestuur aangewezen register (of
een of meer delen daarvan), hierna te noemen: het “register”, mits (iii) de houder
van het register op verzoek van de desbetreffende gerechtigde vóór de algemene
vergadering schriftelijk aan de vennootschap kennis heeft gegeven dat de
desbetreffende aandeelhouder voornemens is de algemene vergadering van
aandeelhouders bij te wonen, ongeacht wie ten tijde van de algemene vergadering
van aandeelhouders aandeelhouder is. De kennisgeving vermeldt de naam en het
aantal aandelen waarvoor de aandeelhouder gerechtigd is de algemene vergadering
van aandeelhouders bij te wonen. Het hiervoor onder (iii) bepaalde omtrent de
kennisgeving aan de vennootschap geldt tevens voor de schriftelijk gevolmachtigde
van een aandeelhouder.
23.4
Het in lid 3
bedoelde registratietijdstip en het in dat lid bedoelde tijdstip waarop
uiterlijk het voornemen om de algemene vergadering van aandeelhouders bij te
wonen moet zijn kenbaar gemaakt, kunnen niet vroeger gesteld worden dan op een
tijdstip op de zevende dag en niet later dan op een tijdstip op de derde dag
vóór die van de algemene vergadering van aandeelhouders. Bij de oproeping van
de algemene vergadering van aandeelhouders worden die tijdstippen vermeld,
alsmede waar en de wijze waarop registratie casu quo kennisgeving dient te
geschieden.
23.5
Maakt de raad van bestuur geen gebruik van de in
lid 3 bedoelde bevoegdheid, dan moet iedere houder van aandelen de vennootschap
schriftelijk in kennis stellen, zulks uiterlijk op de dag en voorts op de
plaats die in de oproeping is vermeld, en tevens - voor zover het aandelen
volgens model II betreft - onder opgave van het nummer van het aandeelbewijs.
Zij kunnen de bedoelde rechten ter vergadering slechts uitoefenen voor de
aandelen die zowel op de hiervoor bedoelde dag, als op de dag van de vergadering
op hun naam staan.
23.6
Indien de raad van bestuur gebruik maakt van de in
lid 3 bedoelde bevoegdheid, moeten schriftelijk gevolmachtigden hun volmacht
afgeven aan de houder van het register voordat de kennisgeving als
19
bedoeld
in lid 4 geschiedt. De houder van het register zal de afgegeven volmachten
meezenden met de schriftelijke kennisgeving aan de vennootschap als bedoeld in
lid 3 sub (iii). De raad van bestuur
kan bepalen dat de volmachten van stemgerechtigden aan de presentielijst worden
gehecht. Indien de raad van bestuur
geen gebruik maakt van de in lid 3 bedoelde bevoegdheid, moeten de
schriftelijke volmachten gedeponeerd worden uiterlijk op de dag als in de
oproeping vermeld en ten kantore van de vennootschap.
23.7
Aandeelhouders en overige vergadergerechtigden kunnen zich door een
schriftelijk gevolmachtigde doen vertegenwoordigen en die gevolmachtigde wordt
toegelaten na overlegging van de schriftelijke volmacht.
23.8
De algemene vergadering van aandeelhouders kan een reglement vaststellen
onder meer inhoudende de mogelijkheid van het toestaan van de duur van de
spreektijd. Voor zover een reglement niet van toepassing is, kan de voorzitter
de spreektijd rantsoeneren indien hij zulks met het oog op een goed verloop van
de vergadering gewenst acht.
23.9
Over alle zaken betreffende de toegang tot de algemene vergadering van aandeelhouders,
het uitoefenen van stemrecht en de uitslag van een stemming evenals over elke
andere zaak betreffende de orde op de algemene vergadering van aandeelhouders
wordt besloten door de voorzitter van die vergadering, met inachtneming van het
bepaalde in artikel 2:13 van het Burgerlijk Wetboek.
STEMRECHT EN
BESLUITVORMING
Artikel 24
24.1
Elk aandeel geeft recht op één (1) stem in de algemene vergadering van
aandeelhouders.
24.2
Tenzij deze statuten anders bepalen, worden besluiten genomen met volstrekte
meerderheid van stemmen. Blanco stemmen en stemmen die van onwaarde zijn,
worden niet meegeteld. De voorzitter van de vergadering bepaalt de wijze van
stemming, alsmede de mogelijkheid van stemming bij acclamatie.
JAARREKENING
EN VERSLAG VAN DE RAAD VAN BESTUUR
Artikel 25
25.1
Het boekjaar is gelijk aan het kalenderjaar.
25.2
De raad van bestuur maakt jaarlijks binnen vijf maanden na afloop van elk
boekjaar een jaarrekening op, bestaande uit een balans en een winst- en
verliesrekening over het afgelopen boekjaar met de toelichting op deze stukken.
Voorts stelt de raad van bestuur een verslag op omtrent de gang van zaken in de
vennootschap gedurende het afgelopen jaar.
25.3
De raad van bestuur is verplicht de jaarrekening volgens normen die in
20
het maatschappelijk verkeer als aanvaardbaar worden
beschouwd op te maken, en alle andere wettelijke bepalingen dienaangaande.
De jaarrekening wordt ondertekend door alle leden van de
raad van bestuur. Ontbreekt de ondertekening van een of meer van hen, dan wordt
daarvan onder opgaaf van de reden melding gemaakt.
25.4
De raad van bestuur doet de jaarrekening onderzoeken door een door de
algemene vergadering van aandeelhouders aan te wijzen register-accountant of
andere daartoe overeenkomstig artikel 2:393 van het Burgerlijk Wetboek aangewezen
deskundige.
De register-accountant of de andere aangewezen
deskundige brengt aan de raad van bestuur verslag uit omtrent zijn onderzoek en
geeft de uitslag van zijn onderzoek weer in een verklaring.
25.5
Afschriften van de opgemaakte jaarrekening vergezeld van de verklaring
van de deskundige als bedoeld in het vorige lid, van het jaarverslag van de
raad van bestuur en van de krachtens de wet toe te voegen gegevens worden vanaf
de dag van de oproeping tot de algemene vergadering van aandeelhouders, bestemd
voor hun behandeling tot na afloop van die vergadering ten kantore van de
vennootschap en - in geval aandelen zijn toegelaten tot de officiële notering
aan de Amsterdamse Effectenbeurs - bij een in de oproeping tot de algemene
vergadering van aandeelhouders te vermelden bank te Amsterdam voor de aandeelhouders
en de overige vergadergerechtigden verkrijgbaar gesteld.
25.6
De algemene vergadering van aandeelhouders besluit over de vaststelling
van de jaarrekening.
UITKERINGEN
Artikel 26
26.1
Van de winst die blijkt uit de door de algemene vergadering van aandeelhouders
vastgestelde jaarrekening worden zodanige bedragen gereserveerd als de raad van
bestuur zal bepalen.
26.2
Het gedeelte van de winst dat overblijft na toepassing van lid 1 van dit
artikel, wordt uitgekeerd aan de aandeelhouders naar evenredigheid van het
aantal aandelen dat iedere aandeelhouder houdt.
26.3
Dividend betaalbaar in geld wordt betaald in Amerikaanse dollars, tenzij
de raad van bestuur bepaalt dat betaling plaats zal vinden in een andere valuta.
26.4
De vennootschap kan slechts uitkeringen doen voor zover haar eigen
vermogen groter is dan het gestorte en opgevraagde deel van het kapitaal,
vermeerderd met de wettelijke reserves.
26.5
De raad van bestuur kan, met inachtneming van het bepaalde in artikel
2:105 lid 4 van het Burgerlijk Wetboek en lid 4 van dit artikel, besluiten tot
uitkering van interim-dividenden en/of andere uitkeringen.
21
Dergelijke dividenden en/of uitkeringen worden aan de
aandeelhouders uitgekeerd naar evenredigheid van het aantal aandelen dat iedere
aandeelhouder houdt.
Artikel 27
27.1
Uitkeringen op grond van artikel 26 zullen betaalbaar zijn vanaf een door
de raad van bestuur te bepalen datum. De datum waarop een uitkering
plaatsvindt, kan ten aanzien van aandelen volgens model II een andere zijn dan
die ten aanzien van aandelen volgens model I.
27.2
Uitkeringen krachtens artikel 26 zullen betaalbaar zijn op de door de
raad van bestuur te bepalen plaats of plaatsen in Nederland, en in ieder geval
ten minste op één plaats in elk ander land waar aandelen van de vennootschap
tot de officiële notering van een effectenbeurs zijn toegelaten.
27.3
Ten aanzien van uitkeringen in contanten op de aandelen volgens model I
kan de raad van bestuur de betalingswijze vaststellen.
27.4
Tot een uitkering op aandelen krachtens artikelen 26 is diegene gerechtigd
te wiens name het aandeel is gesteld dan wel, ingeval anderen daartoe
gerechtigd zijn, degene wiens recht deugdelijk blijkt, op de door de raad van
bestuur met betrekking tot iedere uitkering voor de onderscheiden modellen van
aandelen te bepalen datum.
27.5
Kennisgevingen betreffende uitkeringen, alsmede betreffende data en
plaatsen als bedoeld in de voorgaande leden van dit artikel, worden gepubliceerd
in ten minste één landelijk verspreid dagblad en in het buitenland in ten
minste één dagblad in elk van die landen waar de aandelen op verzoek van de
vennootschap tot een officiële notering zijn toegelaten en bovendien nog op
zodanige wijze als de raad van bestuur wenselijk acht.
27.6
Vorderingen tot betaling van uitkeringen in contanten krachtens artikel
26 vervallen voor zover deze uitkeringen binnen vijf jaren en twee dagen na de
datum waarop zij betaalbaar zijn geworden, niet zijn geïnd.
27.7
De raad van bestuur kan de vennootschap doen besluiten tot uitkeringen
aan aandeelhouders krachtens artikel 26 geheel of gedeeltelijk in de vorm van
aandelen in het kapitaal van de vennootschap.
In geval van een uitkering in de vorm van aandelen in
het kapitaal van de vennootschap zullen de aandelen welke niet binnen een door
de raad van bestuur te bepalen termijn zijn opgevraagd voor rekening van de
rechthebbenden die de aandelen niet hebben opgevraagd, worden verkocht. Na
zodanige verkoop wordt de netto-opbrengst van zodanige verkoop gehouden ten
behoeve van de hiervoor genoemde personen in verhouding van hun gerechtigdheid;
het recht op de opbrengst vervalt echter na verloop van dertig jaar gerekend na
de datum waarop de aandelen konden worden opgevraagd.
22
27.8
In geval van een uitkering in de vorm van aandelen in de vennootschap,
zullen deze aandelen in het aandelenregister worden bijgeschreven.
Aan houders van aandelen volgens
model II zal een aandeelbewijs worden uitgereikt.
27.9
Het in de leden 4 en 7 bepaalde vindt overeenkomstige toepassing voor wat
betreft uitkeringen die niet plaats vinden op grond van artikel 26.
STATUTENWIJZIGING
Artikel 28
28.1
De algemene vergadering van aandeelhouders kan besluiten de statuten van
de vennootschap te wijzigen, mits de raad van bestuur daartoe een voorstel
heeft gedaan.
28.2
Het volledige voorstel tot statutenwijziging zal van de dag van de oproeping
tot de algemene vergadering van aandeelhouders tot na afloop van die
vergadering ten kantore van de vennootschap voor de aandeelhouders en overige
vergadergerechtigden kosteloos beschikbaar zijn geweest.
ONTBINDING EN VEREFFENING.
Artikel 29
29.1
De vennootschap wordt ontbonden door een besluit van de algemene
vergadering van aandeelhouders, mits de raad van bestuur daartoe een voorstel
heeft gedaan. Het bepaalde in artikel 28 is van overeenkomstige toepassing.
29.2
Bij ontbinding van de vennootschap geschiedt de vereffening door de raad
van bestuur.
29.3
De vereffening geschiedt met inachtneming van de wettelijke bepalingen.
Tijdens de vereffening blijven deze statuten voor zover mogelijk van kracht.
29.4
Hetgeen na voldoening van alle schulden van het vermogen van de vennootschap
is overgebleven, wordt aan de aandeelhouders uitgekeerd naar evenredigheid van
het aantal aandelen dat door iedere aandeelhouder wordt gehouden.
29.5
Nadat de vereffening is voltooid, leggen de vereffenaars verantwoording
af in overeenstemming met de wettelijke bepalingen.
29.6
Nadat de rechtspersoon heeft opgehouden te bestaan blijven de boeken en
bescheiden van de vennootschap gedurende zeven jaar berusten onder degene die
daartoe door de vereffenaars is aangewezen.
RECHTSKEUZE
Artikel 30
De
rechten en verplichtingen tussen (a) de vennootschap, (b) ieder van haar huidige
of voormalige leden van de raad van bestuur, procuratiehouders, werknemers en
stafleden en/of (c) ieder van haar huidige of voormalige houders van aandelen
in het kapitaal van de vennootschap of daarvan afgeleide effecten,
23
worden
voorzover zulks niet in strijd is met dwingend recht beheerst door Nederlands
recht, tenzij deze rechten en verplichtingen geen betrekking hebben op, of niet
voortvloeien uit de hiervoor genoemde hoedanigheden. Ieder geschil, vordering,
procedure, bewarende maatregel, of andere gerechtelijke stap, daaronder begrepen
procedures tot het verkrijgen van voorlopige voorzieningen, geïnitieerd door en
aangespannen tegen voornoemde personen in voornoemde hoedanigheden, zullen
worden beslecht door de bevoegde Nederlandse rechter met uitsluiting van iedere
andere rechter. In verband met zulke geschillen, vorderingen, procedures,
bewarende maatregelen, of andere gerechtelijke stappen, daaronder begrepen
procedures tot het verkrijgen van voorlopige voorzieningen, hebben alle huidige
en voormalige leden van de raad van bestuur, procuratiehouders, werknemers en
stafleden van de vennootschap zich onherroepelijk en onvoorwaardelijk (a)
onderworpen aan de exclusieve jurisdictie van de Nederlandse rechter, (b)
afstand gedaan van het recht om de bevoegdheid van die rechter te betwisten en
(c) verklaard dat een onherroepelijk vonnis van een Nederlandse rechter in
hoogste ressort gewezen hen zal binden en (d) domicilie gekozen ten kantore van
de vennootschap in Haarlemmermeer (Schiphol), Nederland.
SLOTVERKLARING
De comparant verklaarde tenslotte:
-
dat
bij deze statutenwijziging ieder gewoon aandeel in het geplaatste kapitaal van
de vennootschap, nominaal groot één euro (EUR 1,—), is gesplitst in éénhonderd
(100) gewone aandelen, nominaal groot één eurocent (EUR 0,01);
-
dat
door het passeren van deze akte de opschortende voorwaarde met betrekking tot
de uitgifte van bepaalde aandelen in het kapitaal van de vennootschap is vervuld,
ten gevolge waarvan drieënzeventig miljoen zevenhonderd zesendertig duizend
achthonderd zevenenvijftig (73.736.857) gewone aandelen zijn uitgegeven, zodat
mitsdien per het moment van het passeren van deze akte achtenzeventig miljoen
tweehonderd zesendertig duizend negenhonderd zevenenvijftig (78.236.957) gewone
aandelen zijn geplaatst en het totale geplaatste kapitaal van de vennootschap
per laatstgenoemd moment derhalve zevenhonderd tweeëntachtig duizend
driehonderd negenenzestig euro en zevenenvijftig cent (EUR 782.369,57) bedraagt;
-
dat hij door voormelde algemene
vergadering van aandeelhouders is aangewezen om de verklaring als bedoeld in
artikel 2:125 van het Burgerlijk Wetboek aan te vragen of te doen aanvragen en
om na het verkrijgen van die verklaring de notariële akte van statutenwijziging
te doen verlijden;
-
dat bedoelde verklaring is verkregen
blijkens een aan deze akte gehechte Ministeriële verklaring nummer N.V. 1384230
de dato negen november tweeduizend zes.
24
De
comparant is mij, notaris, bekend.
Deze
akte is verleden te Amsterdam op de dag aan het begin van deze akte vermeld.
Nadat vooraf door mij, notaris, de zakelijke inhoud van deze akte aan de comparant
is medegedeeld en door mij, notaris, is toegelicht, heeft hij verklaard van de
inhoud daarvan te hebben kennisgenomen, met de inhoud in te stemmen en op
volledige voorlezing daarvan geen prijs te stellen. Onmiddellijk na beperkte
voorlezing is deze akte door de comparant en mij, notaris, ondertekend.
(w.g) R.A.F. Timmermans, W.H. Bossenbroek
UITGEGEVEN VOOR AFSCHRIFT
25
Exhibit 10.1
CONFIDENTIAL TREATMENT HAS BEEN GRANTED WITH RESPECT TO CERTAIN
INFORMATION IN THIS AGREEMENT. THIS
INFORMATION HAS BEEN REDACTED AND DENOTED BY ASTERISKS [***].
AIRCRAFT
PURCHASE AGREEMENT
BETWEEN
A I R B U S
S.A.S.
as Seller
AND
AER VENTURE
LIMITED
as Buyer
CONTENTS
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CLAUSES
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TITLES
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0
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DEFINITIONS AND INTERPRETATION
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1
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SALE AND PURCHASE
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2
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SPECIFICATION
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3
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PRICES
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4
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PRICE REVISION
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5
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PAYMENTS
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6
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MANUFACTURE PROCEDURE - INSPECTION
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7
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CERTIFICATION
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8
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BUYER'S TECHNICAL ACCEPTANCE
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9
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DELIVERY
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10
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EXCUSABLE DELAY
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11
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NON-EXCUSABLE DELAY
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12
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WARRANTIES AND SERVICE LIFE POLICY
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13
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PATENT AND COPYRIGHT INDEMNITY
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14
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TECHNICAL DATA AND SOFTWARE SERVICES
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15
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SELLER'S REPRESENTATIVES
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16
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TRAINING AND TRAINING AIDS
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17
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EQUIPMENT SUPPLIER PRODUCT SUPPORT
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18
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BUYER FURNISHED EQUIPMENT
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19
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INDEMNIFICATION AND INSURANCE
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20
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TERMINATION
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21
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ASSIGNMENTS AND TRANSFERS
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22
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MISCELLANEOUS PROVISIONS
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2
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EXHIBITS
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TITLES
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Exhibit
A
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SPECIFICATION
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Exhibit
B
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FORM OF SPECIFICATION CHANGE NOTICE
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Exhibit
C
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PART 1 AIRFRAME PRICE REVISION FORMULA
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PART 2 PROPULSION SYSTEMS PRICE REVISION FORMULA
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Exhibit
D
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FORM OF CERTIFICATE OF ACCEPTANCE
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Exhibit
E
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FORM OF BILL OF SALE
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Exhibit
F
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SERVICE LIFE POLICY - ITEMS OF PRIMARY STRUCTURE
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Exhibit
G
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TECHNICAL DATA INDEX
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Exhibit
H
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MATERIAL SUPPLY AND SERVICES
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Exhibit
I
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FORM OF ASSIGNMENT OF AIRFRAME WARRANTY AND SUPPORT RIGHTS AND
PARTICIPATION AGREEMENT
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3
AIRCRAFT
PURCHASE AGREEMENT
This Aircraft Purchase Agreement (the "
Agreement
") is made as of December 30, 2005
BETWEEN
:
AIRBUS S.A.S.
,
a société par actions simplifiée
,
legal successor of Airbus S.N.C., formerly
known as Airbus G.I.E. and Airbus Industrie G.I.E. created and existing under
French law having its registered office at 1 Rond-Point Maurice Bellonte, 31707
Blagnac-Cedex, France and registered with the Toulouse
Registre du Commerce
under number RCS Toulouse 383 474 814 (the
"
Seller
"),
and
AerVenture Limited
a company organised under the laws of the
Republic of Ireland having its principal place of business located at debis
AirFinance House, Shannon, County Clare, Ireland (the "
Buyer
").
WHEREAS
subject to the terms and conditions of this
Agreement, the Seller desires to sell the Aircraft to the Buyer and the Buyer
desires to purchase the Aircraft from the Seller.
NOW THEREFORE IT IS AGREED AS FOLLOWS
:
4
0
DEFINITIONS AND
INTERPRETATION
In addition to words and terms elsewhere defined in this Agreement, the
initially capitalised words and terms used in this Agreement shall have the
meaning set out below.
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Affiliate
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means 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.
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Affiliated Training Centers
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has the meaning set out in Clause 16.3.1.
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Agreement
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this Aircraft Purchase Agreement, including all exhibits, appendixes
and letter agreements attached hereto, as the same may be amended or modified
in writing by the parties and in effect from time to time.
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Aircraft
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any or all of the seventy (70) Airbus A320 family aircraft to be sold
by the Seller to the Buyer pursuant to this Agreement – comprising twenty
five (25) A319-100 model aircraft and forty five (45) A320-200 model
aircraft, subject to any subsequently agreed conversion – together with all
components, equipment, parts and accessories installed in or on such aircraft
and the Propulsion Systems installed thereon upon Delivery.
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Aircraft Training Services
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means all training courses, flight training, line training, flight
assistance, line assistance, maintenance support, maintenance training
(including Practical Training) or training support performed on aircraft and
provided to the Buyer pursuant to this Agreement, whether or not provided in
the Seller's or Seller's Affiliate facilities.
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Airframe
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means the Aircraft excluding the Propulsion Systems.
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Airframe Basic Price
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has the meaning set out in Clause 3.2.
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Airframe Price Revision
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Formula
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is set out in Part 1 of Exhibit C.
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5
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Assignment of Airframe
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Warranty and Support
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Rights
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with respect to an Aircraft, means the assignment of airframe
warranty and support rights entered into or to be entered into between the
Buyer and its Operator in the form or substantially in the form of
Exhibit I (and as consented to by the Seller).
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Approved List
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has the meaning set out in Clause 18.5.2.
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Approved Suppliers
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has the meaning set out in Clause 18.5.2.
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Aviation Authority
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means when used in respect of any jurisdiction the government entity,
which under the laws of such jurisdiction has control over civil aviation or
the registration, airworthiness or operation of aircraft in such
jurisdiction.
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Balance of Final Price
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has the meaning set out in Clause 5.4.1
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Basic Price
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means the sum of the Airframe Basic Price and the Propulsion Systems
Basic Price.
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Bill of Sale
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with respect to a Aircraft, means a bill of sale in the form of
Exhibit E.
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Buyer Furnished
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Equipment
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has the meaning set out in Clause 18.1.1.
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Certificate of Acceptance
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with respect to an Aircraft, means a certificate of acceptance in the
form of Exhibit D.
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Default Rate
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means the default rate of interest as defined in Clause 5.7.
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Delivery
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with respect to an Aircraft, means the transfer of title to the
Aircraft from the Seller to the Buyer in accordance with Clause 9.
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Delivery Date
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with respect to an Aircraft, means the date on which Delivery shall
occur.
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Delivery Location
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with respect to an Aircraft, means the facilities of the Seller at
the location of final assembly of the
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6
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Aircraft which depending on the Aircraft model is either in France or
in Germany.
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Delivery Period
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has the meaning ascribed thereto in Clause 9.2.1.
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Deposit
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has the meaning set out in Clause 5.2.
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Designated AirworthinessAuthority
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has the meaning set out in Clause 7.2.6.
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Development Changes
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as defined in sub-Clause 2.1.3 of this Agreement
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Excusable Delay
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has the meaning set out in Clause 10.1.
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Export Airworthiness
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Certificate
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with respect to an Aircraft, means an export certificate of
airworthiness issued by the Aviation Authority of the Delivery Location.
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Failure
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has the meaning set out in Clause 12.2.1.
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Final Price
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has the meaning set out in Clause 3.4
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Gross Negligence
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means any act or omission done with either (i) intent to cause
damage or (ii) recklessly and with knowledge that damage would probably
result or (iii) where the risk of damage resulting from such act
omission would be obvious to a person acting reasonably and in knowledge of
the same facts as the offending party but the offending party has not
considered the possible existence of such risk.
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Ground Training Services
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means all training courses performed in classrooms (classical or
Airbus CBT courses), full flight simulator sessions, fixed base simulator
sessions, field trips and any other services provided to the Buyer on the
ground pursuant to this Agreement and which are not Aircraft Training
Services.
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Initial Operator
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with respect to an Aircraft, means the first operator of such
Aircraft in commercial revenue service following its Delivery by the Seller
to the Buyer.
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7
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Item
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has the meaning set out in Clause 12.2.1.
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Manufacture Facilities
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means the various manufacture facilities of the Seller, its
Affiliates or any sub-contractor, where the Airframe or its pads are
manufactured or assembled.
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Material
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has the meaning set out in Clause 1.1 of Exhibit H.
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Operator
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with respect to an Aircraft, means any operator of such Aircraft
following Delivery hereunder.
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Non-Excusable Delay
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has the meaning set out in Clause 11.1.
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Participation Agreement
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with respect to an Aircraft means the participation agreement
relating to such Aircraft entered into or to be entered into between the
Buyer and the relevant Operator in the form or substantially in the form of
Exhibit I (and as consented to by the Seller).
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Predelivery Payment
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means the payment(s) determined in accordance with Clause 5.3.
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Predelivery Payment
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Reference Price
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with respect to an Aircraft, means the predelivery reference price
for such Aircraft determined in accordance with Clause 5.3.1.
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Propulsion Systems
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with respect to an Aircraft, means either (i) the two
(2) IAE propulsion systems selected as per sub-Clause 3.3.6 hereof
and installed on such Aircraft on Delivery, each composed of the powerplant
(as such term is defined in Chapters 70-80 of ATA Specification 100 (Revision
21), but limited to the equipment, components, parts and accessories included
in the powerplant, as so defined), and including nacelles and thrust
reversers, that have been sold to the Seller by International Aero Engines;
or (ii) the two (2) CFM International CFM propulsion systems
selected as per sub-Clause 3.3.6 hereof and installed on such Aircraft
on Delivery, each composed of the powerplant (as such term is defined in
Chapters 70-80 of ATA Specification 100 (Revision 21), but limited to the
equipment,
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8
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components, parts and accessories included in the powerplant, as so
defined) that have been sold to the Seller by CFM international
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Propulsion Systems BasicPrice
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with respect to a set of Propulsion Systems, means the price of such
set of Propulsion Systems as set out in Clause 3.3.
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Propulsion SystemsReference Price
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with respect to a set of Propulsion Systems, means the reference
price for such set of Propulsion Systems as set out in Part 2 of
Exhibit C.
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Propulsion SystemsManufacturer
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with respect to an Aircraft, means the manufacturer of the Propulsion
Systems selected by the Buyer pursuant to sub-Clause 3.3.6 for that
Aircraft.
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Propulsion Systems PriceRevision Formula
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is set out in Part 2 of Exhibit C
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Ready for Delivery
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|
with respect to an Aircraft, means the time when (i) the
Technical Acceptance Process has been successfully completed and
(ii) the Export Airworthiness Certificate has been issued for that
Aircraft.
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Scheduled Delivery Month
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has the meaning set out in Clause 9.1.
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Seller's Representatives
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means the representatives of the Seller referred to in
Clause 15.2.
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Seller RepresentativesServices
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|
means the services provided by the Seller to the Buyer pursuant to
Clause 15.
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Seller Service Life Policy
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has the meaning set out in Clause 12.2.
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Seller's Training Course
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Catalog
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has the meaning set out in Clause 16.4.1.
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Seller's Training Center
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has the meaning set out in Clause 16.3.1.
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9
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Spare Parts
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means the items of equipment and material which may be provided
pursuant to Exhibit H.
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Specification Change
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Notice or SCN
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means an agreement in writing between the parties to amend the
Specification pursuant to Clause 2.
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Specification
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|
with respect to an Aircraft, means either (a) the Standard
Specification if no SCNs are applicable or (b) if SCNs are issued in
this Agreement, the Standard Specification as amended by all applicable SCNs
for that Aircraft.
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SSBFE
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has the meaning set out in Clause 18.5.1.
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Standard Specification
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with respect to an Aircraft, means the Seller's relevant standard
specification document number, issue and issue date, as well as the relevant
design weights relating to the aircraft purchased and sold in this Agreement
a copy of which has been annexed as an Exhibit A to this Agreement.
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Supplier
|
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has the meaning set out in Clause 12.3.1.1.
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Supplier Part
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has the meaning set out in Clause 12.3.1.2.
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Supplier Product
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Support Agreement
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has the meaning set out in Clause 12.3.1.3.
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Technical AcceptanceProcess
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|
with respect to an Aircraft, means the technical acceptance process
for such Aircraft to be performed pursuant to Clause 8 including without
limitation the acceptance tests performed on the Aircraft in order to
demonstrate the satisfactory functioning of the Aircraft and compliance with
the Specification.
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Technical Data
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has the meaning set out in Clause 14
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Total Loss
|
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has the meaning set out in Clause 10.4.
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Training Conference
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has the meaning set out in Clause 16.4.1
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10
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Type Certificate
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has the meaning set out in Clause 7.1.
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Warranty Part
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has the meaning set out in Clause 12.1.1.
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Warranted Period
|
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has the meaning set out in Clause 12.1.3
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Working Day
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with respect to (i) 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 or (ii) any
payment to be made hereunder, any day other than a Saturday, Sunday or
a
day that is a legal holiday or a day on which banking institutions
are authorised to close in the City of New York, USA, the Republic of
Ireland, Amsterdam, The Netherlands, Hamburg, Germany or Paris, France.
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0.2
Clause headings and the
Index are inserted for convenience of reference only and shall be ignored in
the interpretation of this Agreement.
0.3
In this Agreement unless
the context otherwise requires:
(a)
references to Clauses, paragraphs,
Appendices, Schedules and Exhibits are to be construed as references to the
Clauses of, paragraphs of and Appendices, Schedules and Exhibits to this
Agreement and references to this Agreement include its Schedules, Exhibits and
Appendices;
(b)
words importing the plural shall include the
singular and vice versa; and
(c)
references to a person shall be construed as
including, without limitation, references to an individual, firm, company,
corporation, unincorporated body of persons and any state or agency of a state.
11
1
SALE
AND PURCHASE
The Seller will cause to be manufactured and will sell and deliver, and
the Buyer will buy and take delivery of each of the Aircraft subject to the
terms and conditions contained in this Agreement.
12
2
SPECIFICATION
2.1
Airframe Specification
2.1.1
Specification
The A319-100 aircraft (the "A319 Aircraft") will be manufactured
in accordance with the Standard Specification, Document J.000.01000, Issue 5
dated January 31, 2005, as amended to reflect 70t MTOW, 61t MLW, 57t MZFW
(as so amended, the "Standard Specification", a copy of which is
annexed hereto as Exhibit A-1).
The A320-200 aircraft (the "A320 Aircraft") will be
manufactured in accordance with the Standard Specification, Document
D.000.02000, Issue 6 dated January 31, 2005, as amended to
reflect 77t MTOW, 64.5t MLW, 61t MZFW (as so amended, the "Standard
Specification", a copy of which is annexed hereto as Exhibit A-2).
2.1.2
Specification Change Notice
(SCN)
The Specification may be amended by written agreement between the
parties in a Specification Change Notice.
Each Specification Change Notice shall be substantially in the form set
out in Exhibit B and shall set out in detail the particular change to be
made to the Specification and the effect, if any, of such change on design,
performance, weight, time of Delivery of the relevant Aircraft, and on the text
of the Specification. Such SCN may
result in an adjustment of the Basic Price.
2.1.3
Development Changes
The Specification may also be revised by the Seller without the Buyer's
consent in order to incorporate development changes if such changes do not
adversely affect price, time of delivery, weight or performance of the
Aircraft, interchangeability or replaceability requirements under the
Specification. In any other case the
Seller shall issue to the Buyer a Manufacturer Specification Change Notice. Development changes are changes deemed
necessary by the Seller to improve the Aircraft, prevent delay or ensure
compliance with this Agreement (the "Development Changes").
2.1.4
Specification Change
Notices for Certification
The provisions relating to Specification Change Notices for
certification are set out in Clauses 7.2. and 7.3.
13
2.1.5
Buyer Import Requirements
The provisions relating to Specification Change Notices for Buyer
import requirements are set out in Clause 7.4.
2.1.6
Inconsistency
In the event of any inconsistency between the Specification and any
other part of this Agreement, this Agreement shall prevail to the extent of
such inconsistency.
2.2
Propulsion Systems
Each of the Aircraft shall be equipped with either a set of IAE or CFMI
Propulsion Systems as may be selected by the Buyer pursuant to sub-Clause 3.3.6
below.
2.3
Customisation Milestones
Chart
As part of the Agreement, the Seller is I providing the Buyer with an
agreed Customisation Milestones Chart setting out the minimum lead times prior
to the Scheduled Delivery Month of the Aircraft, when a mutual agreement shall
be reached (execution of a SCN) in order to integrate into the Specification,
any items requested by the Buyer from the Specification Changes Catalogues made
available by the Seller.
14
3
PRICES
3.1
Basic Price of the Aircraft
3.1.1
The "Basic Price" of each Aircraft
is the sum of:
(i)
the Basic Price of the Airframe, and
(ii)
the Basic Price of the Propulsion Systems.
3.2
Airframe Basic Price
3.2.1
The A319-100 Airframe Basic Price is the sum
of:
(i)
the basic price of the A319-100 Airframe as
defined in the Standard Specification (excluding Buyer Furnished Equipment, but
including specifically nacelles and thrust reversers), which is:
US$ [***]
([***])
(ii)
the sum of the basic prices of all SCNs as
set forth in Exhibit B-1 to the Agreement, which is:
US$ [***]
(US Dollars [***])
3.2.2
The A320-200 Airframe Basic Price is the sum
of:
(iii)
the basic price of the A320-200 Airframe as
defined in the Standard Specification (excluding Buyer Furnished Equipment, but
including specifically nacelles and thrust reversers), which is:
US$ [***]
([***])
(iv)
the sum of the basic prices of all SCNs as
set forth in Exhibit B-1 to the Agreement, which is:
US$ [***]
(US Dollars [***])
3.2.3
The Airframe Basic Price has been
established in accordance with the average economic conditions prevailing in
December 2003, January 2004
[***] Confidential treatment requested by AerCap Holdings N.V.
15
and February 2004 and corresponding to a theoretical delivery in
January 2005 - (the “
Base Period
”).
3.3
Propulsion Systems Basic
Price
3.3.1
The A319 IAE Propulsion Systems
The Basic Price of the IAE V2524-A5 Propulsion System (excluding
specifically nacelles and thrust reversers) for the A319 Aircraft, at delivery
conditions prevailing in January 2005, is:
US $ [***]
(US dollars [***]).
3.3.2
The A319 CFMI Propulsion Systems
The Basic Price of the CFMI CFM56-5B6/P Propulsion System for the A319
Aircraft, at delivery conditions prevailing in January 2005 is:
US $ [***]
(US dollars [***]).
3.3.3
The A320 IAE Propulsion Systems
The Basic Price of a IAE V2527-A5 Propulsion System (excluding
specifically nacelles and thrust reversers) for the A320 Aircraft, at delivery
conditions prevailing in January 2005, is:
US $ [***]
(US dollars [***]).
3.3.4
The A320 CFMI Propulsion Systems
The Basic Price of a CFMI CFM56-5B4/P Propulsion System for the A320
Aircraft, at delivery conditions prevailing in January 2005, is:
US $ [***]
(US dollars [***]).
3.3.5
Propulsion Systems Reference Period
The Propulsion Systems Basic Price has been established in
January 2005 delivery conditions and has been calculated from the
Propulsion Systems Reference Price. The
Propulsion Systems Reference Price is set forth in the [***] in Exhibit C2
and C3 for [***] respectively.
[***] Confidential treatment requested by AerCap Holdings N.V.
16
3.3.6
Selection of Propulsion Systems
The Buyer shall notify the Seller in writing within six months from the
date hereof of its initial selection of the Propulsion Systems to be installed
on the Aircraft at Delivery. The Buyer
shall then have the flexibility up to the first day of the [***] month
prior to the Scheduled Delivery Month of each Aircraft to change its initial
Propulsion Systems selection, by giving written notice of any such change to
the Seller.
3.4
Final Price
With respect to each Aircraft, the Final Price of such Aircraft shall
be the sum of:
(i)
the Airframe Basic Price as revised as of
the Delivery Date in accordance with Clause 4.1; plus
(ii)
the aggregate of all increases or decreases
to the Airframe Basic Price as agreed in any Specification Change Notice or
part thereof applicable to the Airframe subsequent to the date of this
Agreement as revised as of the Delivery Date in accordance with
Clause 4.1; plus
(iii)
the Propulsion Systems Reference Price as
revised as of the Delivery Date in accordance with Clause 4.2; plus
(iv)
the aggregate of all increases or decreases
to the Propulsion Systems Reference Price as agreed in any Specification Change
Notice or part thereof applicable to the Propulsion Systems subsequent to the
date of this Agreement as revised as of the Delivery Date in accordance with
Clause 4.2; plus
(v)
any further amount resulting from any other
provisions of this Agreement and/or any other written agreement between the
Buyer and the Seller, in each case, relating to the Aircraft and specifically
making reference to the Final Price of an Aircraft.
[***] Confidential treatment requested by AerCap Holdings N.V.
17
4
PRICE
REVISION
4.1
Revision of Airframe Basic
Price
The Airframe Basic Price is subject to revision in accordance with the
relevant Airframe Price Revision Formula up to and including the Delivery Date
as set forth in the relevant attachment to this Agreement.
4.2
Revision of Propulsion
Systems Reference Price
4.2.1
The Propulsion Systems Reference Price is
subject to revision in accordance with the relevant Propulsion Systems Price
Revision Formula up to and including the Delivery Date, as set forth in
Part 2 of Exhibit C.
4.2.2
Modification of Propulsion
Systems Reference Price and Propulsion Systems Price Revision Formula
The Propulsion Systems Reference Price, the prices of the related
equipment and the Propulsion Systems Price Revision Formula are based on
information received from the Propulsions Systems Manufacturer and are subject
to amendment by the Propulsion Systems Manufacturer at any time prior to the
Delivery Date. If the Propulsion Systems
Manufacturer makes any such amendment, the amendment shall be automatically
incorporated into this Agreement, and the Propulsion Systems Reference Price,
the prices of the related equipment and the Propulsion Systems Price Revision
Formula shall be adjusted accordingly.
The Seller agrees to notify the Buyer as soon as it receives notice of
any such amendment from the Propulsion Systems Manufacturer.
18
5
PAYMENTS
5.1
Seller's Account
The Buyer shall pay the Predelivery Payments, the Balance of Final
Price and/or any other amount due by the Buyer to the Seller, to the Seller's
account:
Beneficiary Name: AIRBUS
account identification: [***]
with:
[***]
SWIFT: [***]
ABA: [***]
[***]
or to such other account as may be designated by the Seller in writing
no later than three (3) Working Days prior to the date on which such
payment is due.
5.2
Deposit
An amount equal to [***] US dollars (US$[***]) (the “Deposit”) per
Aircraft specified in this Agreement already paid by the Buyer to the Seller
prior to the date of execution of this Agreement shall be deducted from the
first Predelivery Payment due under this Agreement, with respect to such
Aircraft.
5.3
Predelivery Payments
5.3.1
With respect to each Aircraft, the Buyer
shall pay Predelivery Payments to the Seller calculated on the Predelivery
Payment Reference Price of the relevant Aircraft. The Predelivery Payment Reference Price is
determined by the following formula:
A = Pb (1 + [***])
Where
A
:
The Predelivery Payment Reference Price for
Aircraft to be delivered in year T;
T
:
the year of Delivery of the relevant
Aircraft
[***] Confidential treatment requested by AerCap Holdings N.V.
19
Pb
:
the Basic Price;
N
:
(T- 2005)
5.3.2
Such Predelivery Payments shall be made in
accordance with the following schedule:
|
DUE DATE OF PAYMENTS
|
|
PERCENTAGE OF
PREDELIVERY PAYMENT
REFERENCE PRICE
|
|
|
|
|
|
Upon signature of this Agreement
|
|
US $ [***] (less the Deposit)
|
|
|
|
|
|
On the first day of each of the
following months prior to the
Scheduled Delivery Month
[***]
|
|
[***]
|
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|
|
|
|
Total Payment prior to Delivery
|
|
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5.3.3
Any Predelivery Payment received by the
Seller shall constitute an instalment in respect of the Final Price of the
relevant Aircraft. The Seller shall be
entitled to hold and use any Predelivery Payment as absolute owner thereof,
subject only to (i) the obligation to deduct any such Predelivery Payment
from the Final Price when calculating the Balance of Final Price or
(ii) the obligation to repay to the Buyer an amount equal to the
Predelivery Payments pursuant to any other provision of this Agreement.
5.3.4
If any Predelivery Payment is not received
on the relevant due date specified in Clause 5.3.2 then, and in addition
to any other rights and remedies available to Seller, the Seller shall have the
right to set back the Scheduled Delivery Month for the relevant Aircraft, by a
period of one (1) month for each thirty (30) days such payment is
delayed.
Furthermore, if such delay is greater than sixty (60) days, the
Seller shall have no obligation to deliver the relevant Aircraft within the
Scheduled Delivery Month for such Aircraft, as modified pursuant to the
preceding paragraph. Upon receipt of the
full amount of all delayed Predelivery Payments, together with Default Interest
pursuant to Clause 5.7, the Seller shall inform the Buyer of a new
Scheduled Delivery Month for such Aircraft consistent with the Seller's other
commitments and production capabilities.
5.4
Balance of Final Price
[***] Confidential treatment
requested by AerCap Holdings N.V.
20
5.4.1
With respect to each Aircraft, the Balance
of Final Price payable by the Buyer to the Seller on the Delivery Date shall be
the Final Price of such Aircraft less the amount of Predelivery Payments
received by the Seller on or before the Delivery Date with respect to such
Aircraft.
5.4.2
Upon receipt of the Seller's invoice, and
immediately prior to Delivery, the Buyer shall pay to the Seller the Balance of
Final Price with respect to such Aircraft.
5.5
Other Charges
Unless expressly stipulated otherwise, any other charges due under this
Agreement other than those set out in Clauses 5.2, 5.3 and 5.4 shall be
paid by the Buyer at the same time as payment of the Balance of Final Price or,
if invoiced after the Delivery Date, within [***] days after receipt of the
invoice by the Buyer.
5.6
Method of Payment
5.6.1
All payments provided for in this Agreement
shall be made in the United States Dollars (USD) in immediately available
funds.
5.6.2
All payments due to the Seller hereunder
shall be made in full, without deduction or withholding of any kind. Consequently, the Buyer shall procure that
the sums received by the Seller under this Agreement shall be equal to the full
amounts expressed to be due to the Seller hereunder, without deduction or
withholding on account of and free from any and all taxes, levies, imposts, dues
or charges of whatever nature. If the
Buyer is compelled by law to make any such deduction or withholding the Buyer
shall pay such additional amounts as may be necessary in order that the net
amount received by the Seller after such deduction or withholding shall be
equal to the amounts which would have been received in the absence of such
deduction or withholding and pay to the relevant taxation or other authorities
within the period for payment permitted by applicable law, the full amount of
the deduction or withholding. If the
Seller receives a refund of any amount with respect to which the Buyer has paid
an additional amount as described above the Seller shall pay to the Buyer, as
soon as practicable after the refund has been made (but not before the Buyer
has made all payments to the Seller required under this Clause), an amount
equal to such refund, provided that after such payment the Seller shall be in
no worse position in respect of its overall tax position than it would have
been if no such payment had been made.
5.7
Default Interest
If any payment due to the Seller under this Agreement including but not
limited to any predelivery payment, or deposit for the Aircraft as well as any
payment for any spare parts, data, documents, training and services
[***] Confidential treatment requested by AerCap Holdings N.V.
21
due to the Seller is not received within three (3) Working Days of
the due date, without prejudice to the Seller's other rights under this
Agreement or at law, the Seller shall be entitled to interest for late payment
calculated on the amount due from but excluding such date up to and including
the date when the payment is received by the Seller at a rate equal to LIBOR
for six (6) months deposits in US Dollars (as published in the Reuters
screen or its successor screen on the due date) plus [***]
per annum.
5.8
Taxes
5.8.1
The amounts stated in this Agreement to be
payable by the Buyer are exclusive of value added tax chargeable under the laws
of the Delivery Location (“VAT”) and accordingly the Buyer shall pay any VAT
chargeable in respect of supplies to the Buyer as contemplated by this
Agreement provided that the Seller shall reasonably cooperate with the Buyer to
mitigate the imposition of any tax liability on the Buyer with respect to such
circumstances.
5.8.2
The Seller shall, in respect of the
Aircraft, services, parts, instructions or data delivered or furnished
hereunder (i) pay all taxes, duties or similar charges of any nature
whatsoever, whenever and wheresoever levied, assessed, charged, collected for
in connection with the execution of this Agreement and the fabrication,
manufacture and assembly of the Aircraft, or the sale or delivery to the Seller
of any component of the Aircraft by a sub-contractor, a Supplier or an
Affiliate of the Seller in connection with [***].
5.8.3
The Buyer shall bear the costs of and pay
any and all taxes, duties or similar charges of any nature whatsoever not
assumed by the Seller under Clause 5.8.2 including but not limited to any
duties or taxes due upon or in relation to the importation or registration of
the Aircraft in the Buyer's country and/or any withholdings or deductions
levied or required in the Buyer's country in respect of the payment to the
Seller of any amount due by the Buyer hereunder.
5.9
Proprietary Interest
The Buyer shall not, by virtue of anything contained in this Agreement
(including, without limitation, any Predelivery Payments hereunder, or any
designation or identification by the Seller of a particular aircraft as an
Aircraft to which any of the provisions of this Agreement refer) acquire any
proprietary, insurable or other interest whatsoever in any Aircraft before
Delivery of such Aircraft, as provided in this Agreement.
5.10
Set-Off
The Seller may set-off any matured obligation owed by the Buyer to the
Seller and/or its Affiliates against any obligation (whether or not matured)
[***] Confidential treatment requested by AerCap Holdings N.V.
22
owed by the Seller to the Buyer, regardless of the place of payment or
currency. The Seller will promptly
notify the Buyer in writing following the exercise by it of such right of
set-off.
23
6
MANUFACTURE
PROCEDURE – INSPECTION
6.1
Manufacture Procedure
Each Airframe shall be manufactured in accordance with the relevant
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
Subject to providing the Seller with
certificates evidencing compliance with the insurance requirements set forth in
Clause 19, the Buyer or its duly authorised representatives (which may
include, without limitation, a reasonable number of representatives from the
Initial Operator with respect to any Aircraft) (the “
Buyer's Inspector(s)
”) shall be entitled to inspect the
manufacture of each Airframe and all materials and parts obtained by the Seller
for the manufacture of such Airframe on the following terms and conditions;
(i)
any inspection shall be made according to a
procedure to be agreed upon with the Buyer but shall be conducted pursuant to
the Seller's own system of inspection as developed under the supervision of the
relevant Aviation Authority;
(ii)
the Buyer's Inspector(s) shall have access
to such relevant technical data as is reasonably necessary for the purpose of
the inspection;
(iii)
any inspection and any related discussions
with the Seller and other relevant personnel by the Buyer's Inspector(s) shall
be at reasonable times during business hours and shall take place in the
presence of relevant inspection department personnel of the Seller;
(iv)
the inspections shall be performed in a
manner not to unduly delay or hinder the manufacture or assembly of the
Aircraft or the performance of this Agreement by the Seller or any other work
in progress at the Manufacture Facilities.
6.2.2
Location of Inspections
The Buyer's Inspector(s) shall be entitled to conduct any such
inspection at the relevant Manufacture Facility of the Seller or its relevant
Affiliate and where possible at the Manufacture Facilities of the
sub-contractors provided that if access to any part of the Manufacture
Facilities where the Airframe manufacture is in progress or materials or parts
are stored are restricted for security or confidentiality reasons, the Seller
shall be allowed reasonable time to make the relevant items available elsewhere.
24
6.3
Seller's Service for
Buyer's Inspector(s)
For the purpose of the inspections, and commencing with the date of
this Agreement until the Delivery Date of the final Aircraft hereunder, the
Seller shall furnish without additional charge suitable space and office
equipment (including reasonable telephone communications) in or conveniently
located with respect to the Delivery Location for the use of a reasonable
number of Buyer's Inspector(s).
25
7
CERTIFICATION
7.1
Type Certification
Each Aircraft is type certificated under European Aviation Safety
Agency (EASA) procedures for joint certification in the transport
category. The Seller has obtained the relevant
type certificate (the “
Type Certificate
”)
to allow the issuance of the Export Airworthiness Certificate.
The Seller confirms that it has obtained an FAA Type Certificate
(transport category) for the Aircraft pursuant to Part 21 and in
compliance with the applicable provisions of Part 25 of the US Federal
Aviation Regulations.
7.2
Export Airworthiness
Certificate
7.2.1
Each Aircraft will be delivered to the Buyer
with the Export Airworthiness Certificate and 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 Part 21 of the US
Federal Aviation Regulations.
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 which
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 Airworthiness Certificate as hereinabove provided for
such Aircraft, the Seller shall make the requisite variation or modification.
The effect on price of such a change shall be borne:
(i) by the Seller insofar as it results from laws, regulations or
interpretations that are to be complied with by the Seller before the Delivery
of the relevant Aircraft. In addition,
the Seller will provide the Buyer with the kits and labor necessary to
terminate any Airworthiness Directive or other “mandatory continuing
airworthiness information” issued by the state of manufacture under Ch. 4.2 of
Annex 8 to the international Convention on Civil Aviation that has been
issued prior to the Delivery of the relevant Aircraft but which is not required
to be terminated by the Seller, provided that such kits have been defined
pursuant to the then applicable airworthiness requirement described above.
(ii) by the Buyer for any operational requirements to be complied with
by any Operator or changes other than those set forth in sub-paragraph (i)
above.
26
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.
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 the Seller's Aviation Authorities in order to minimize the costs
of changes which may appear necessary to obtain the Export Airworthiness
Certificate 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 Initial 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 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 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 and/or
supply of additional data, prior to the issuance of the Export Airworthiness
Certificate, the Seller shall incorporate such modification and/or provide such
data at 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 and in accordance with the Seller's lead times for specification
changes.
[***] Confidential treatment requested by AerCap Holdings N.V.
27
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.
28
8
BUYER'S
TECHNICAL ACCEPTANCE
8.1
Technical Acceptance
Process
Prior to Delivery each Aircraft shall undergo the Technical Acceptance
Process. The Seller will give to the
Buyer not less than [***] days written notice of the proposed time when the
Technical Acceptance Process will commence.
Completion of the Technical Acceptance Process shall demonstrate the
satisfactory functioning of the relevant Aircraft and shall be deemed to
demonstrate compliance with the Specification.
Should it be established that the relevant Aircraft does not comply with
the Technical Acceptance Process requirements, the Seller shall without
hindrance from the Buyer be entitled to carry out any necessary changes and, as
soon as practicable thereafter, resubmit the relevant Aircraft to such further
Technical Acceptance Process as is necessary to demonstrate the elimination of
the non-compliance . The Seller will
keep the Buyer informed as to progress with such changes and, as soon as
practicable thereafter, will be entitled to resubmit the relevant Aircraft for
new acceptance tests to demonstrate the elimination of such non-compliance or
defect, such tests to be held and carried out in accordance with this
Clause 8.
The Technical Acceptance Process shall, without limitation, include
a
technical acceptance flight which shall not exceed three (3) hours
duration (save as may be extended by agreement between the Buyer and the
Seller).
8.2
Buyer's Attendance
8.2.1
The Buyer shall be entitled to elect to
attend the Technical Acceptance Process.
8.2.2
If the Buyer elects to attend the Technical
Acceptance Process, the Buyer;
(i)
shall co-operate in complying with the
reasonable requirements of the Seller with the intention of completing the
Technical Acceptance Process within [***] Working Days after its
commencement;
(ii)
may have a maximum of four (4) of the
Buyer's representatives (with no more than three (3) such representatives
having access to the cockpit at any one time) accompany the Seller's
representatives on a technical acceptance flight and during such flight the
Buyer's representatives shall comply with the instructions of the Seller's
representatives.
8.2.3
If the Buyer does not attend and/or fails to
co-operate in the Technical Acceptance Process, the Seller shall be entitled to
complete the Technical Acceptance Process and the Buyer shall be deemed to have
accepted the
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requested by AerCap Holdings N.V.
29
Technical Acceptance Process as satisfactory in all respects and the
Seller will furnish such data with respect to such tests as the Buyer may
reasonably request, [***]
8.3
Certificate of Acceptance
Once the relevant Aircraft is Ready for Delivery, the Buyer shall, on
or before the Delivery Date, sign and deliver to the Seller a Certificate of
Acceptance in respect of such Aircraft.
8.4
Finality of Acceptance
Delivery by the Buyer of a signed and dated Certificate of Acceptance
with respect to the relevant Aircraft will be irrevocable and the Buyer shall
have no right to revoke such acceptance for any reason, whether known or
unknown to the Buyer at the time of acceptance.
8.5
Seller's Use of Aircraft
The Seller will be entitled to use, without compensation to the Buyer
or other liability, each Aircraft prior to its Delivery as may be necessary to
obtain the certificates required under Clause 6 hereof, and such use will
not affect the Buyer's obligation to accept Delivery of any Aircraft
hereunder. [***]
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30
9
DELIVERY
9.1
Delivery Schedule
9.1.1
Subject to the provisions of this Agreement,
the Seller shall have each Aircraft Ready for Delivery at the Delivery Location
within the months specified hereto.
Each such month shall be, with respect to the corresponding Aircraft,
the “
Scheduled Delivery Month
” for
such Aircraft.
|
Year
|
|
A319
|
|
A320
|
|
Total
|
|
|
2007
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
2008
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
2009
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
2010
|
|
[***]
|
|
[***]
|
|
[***]
|
|
|
TOTAL
|
|
25
|
|
45
|
|
70
|
|
9.1.2
The Seller shall give the Buyer at least
[***]. Thereafter the Seller shall
notify the Buyer of any change in such date necessitated by the conditions of
manufacture or flight. In addition, the
Seller shall give the Buyer at least [***] days prior written notice of the anticipated
week during which the relevant Aircraft shall be Ready for Delivery.
9.2
Delivery
9.2.1
The Buyer shall send its representatives to
the Delivery Location to take Delivery of, and collect, the relevant Aircraft
within seven (7) days after the date on which such Aircraft is Ready for
Delivery (the “Delivery Period”) and shall pay the Balance of the Final Price
on or before the Delivery Date.
9.2.2
Title to and risk of loss of or damage to
the relevant Aircraft will pass to the Buyer upon Delivery following the
execution and delivery of the Certificate of Acceptance by the Buyer and upon
payment of the Final Price for such Aircraft.
The Seller shall deliver and transfer title to the relevant Aircraft
free and clear of all encumbrances and will provide the Buyer with such
appropriate documents of title (such as a full warranty Bill of Sale
(except for warranties in respect of any Buyer Furnished Equipment converted to
Seller Furnished Equipment and other Buyer Furnished Equipment, which shall be
as received by the Seller from the suppliers of such Buyer Furnished
Equipment), certificate of transfer, or other documents) as the Buyer may
reasonably request.
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9.2.3
Should the Buyer fail to:
(i)
deliver the signed Certificate of Acceptance
to the Seller, when required to do so pursuant to Clause 8.3, within the
Delivery Period; or
(ii)
pay the Balance of the Final Price for the
relevant Aircraft to the Seller on or before the Delivery Date;
(iii)
within two (2) Working Days after
Delivery of the relevant Aircraft, remove such Aircraft from the Delivery
Location for whatever reason (except for reasons directly attributable to the
Seller),
then the Buyer will on demand reimburse the Seller for all reasonable
costs and expenses (including, without limitation, costs and expenses
attributable to storage, preservation and protection, insurance and taxes)
sustained by the Seller and resulting from any such delay or failure. Such reimbursement will be in addition to any
other rights that the Seller may have as a result of any such delay or failure.
9.3
Fly Away
9.3.1
The Buyer and the Seller shall co-operate to
obtain any licenses which may be required by the Aviation Authority of the
Delivery Location for the purpose of exporting the Aircraft. The Seller shall not charge the Buyer for
such assistance.
9.3.2
Except for expenses to be borne by the
Seller as provided in Clause 5.8.2 of this Agreement, all expenses of, or
connected with, flying the Aircraft from the Delivery Location after Delivery
shall be borne by the Buyer. The Buyer
shall make direct arrangements with the supplying companies for the fuel
required for all post-Delivery flights [***].
In addition, it is understood between the parties that at delivery the
Aircraft should be serviced with all lubricating and hydraulic fluid levels
full to the normal operating levels.
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32
10
EXCUSABLE DELAY
10.1
The Buyer acknowledges that the Aircraft are
to be manufactured by Seller in performance of this Agreement and that the
Scheduled Delivery Months are based on the assumption that there shall be no
delay due to causes beyond the control of the Seller. Accordingly, Seller shall not be responsible
for any delay in the Delivery of the Aircraft or delay or interruption in the
performance of the other obligations of the Seller hereunder due to causes
beyond its control, and not occasioned by its fault or negligence including
(but without limitation) acts of God or the public enemy, war, civil war,
warlike operations, terrorism, insurrections or riots, fires, explosions,
natural disasters, compliance with any applicable foreign or domestic
governmental regulation or order, labour disputes causing cessation, slowdown
or interruption of work, inability after due and timely diligence to procure
materials, equipment or parts, general hindrance in transportation or failure
of a sub-contractor or Supplier to furnish materials, components, accessories,
equipment or parts, for any of the reasons referred to above. Any delay or interruption resulting from any
of the foregoing causes (including any delay pursuant to Clause 7.2.2) is
referred to as an “
Excusable Delay
”.
10.2
If an Excusable Delay
occurs:
(i)
the Seller shall notify the Buyer of such
Excusable Delay as soon as practicable after becoming aware of the same; [***]
(ii)
the Seller shall not be responsible for any damages arising from or in
connection with such Excusable Delay suffered or incurred by the Buyer;
(iii)
the Seller shall not be deemed to be in default in the performance of
its obligations hereunder as a result of such Excusable Delay; and
(iv)
the Seller shall as soon as practicable after the removal of the cause
of the delay resume performance of its obligations under this Agreement and in
particular shall promptly notify to the Buyer the revised Scheduled Delivery
Month for the relevant Aircraft, which shall be determined in a non
discriminatory manner compared with other customers of the Seller similarly
affected.
10.3
Termination on Excusable
Delay
10.3.1
If the Delivery of any Aircraft is delayed as a result of an Excusable
Delay for a period of more than [***] after the last day of the Scheduled
Delivery Month of such Aircraft as at the commencement of such Excusable Delay,
the Buyer will be entitled to terminate this Agreement with respect only to
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33
the Aircraft so affected by giving written notice to the Seller within
thirty (30) days after the expiry of such [***] period.
In the event that such delay will continue for an additional [***]
month period after the expiration of such [***] months period, either
party will have the option to terminate this Agreement with respect only to the
Aircraft so affected by giving written notice to the other party within [***]
days after the expiry of such additional [***] month period.
The Buyer shall not be entitled to terminate this Agreement pursuant to
this Clause if the Excusable Delay results from a cause within its control.
Such termination will discharge all obligations and liabilities of the
parties hereunder with respect to such affected Aircraft, except that the
Seller will repay to the Buyer an amount equal to the entire amount of any
Predelivery Payments received from the Buyer hereunder with respect to such
affected Aircraft, [***].
10.3.2
If, in respect of any Aircraft, the Seller
concludes that the Delivery of such Aircraft shall be delayed for more than
[***] months after the last day of the Scheduled Delivery Month of such
Aircraft as at the commencement of such Excusable Delay, due to an Excusable
Delay and as a result thereof reschedules Delivery of such Aircraft to a
date or month reflecting such delay then the Seller shall promptly notify the
Buyer in writing to this effect and shall include in such notification the new
Scheduled Delivery Month. Either party
may thereupon terminate this Agreement with respect to such Aircraft by giving
written notice to the other party within [***] days after receipt by the Buyer
of the notice of anticipated delay.
Such termination will discharge all obligations and liabilities of the
parties hereunder with respect to such affected Aircraft, except that the
Seller will repay to the Buyer an amount equal to the entire amount of any
Predelivery Payments received from the Buyer hereunder with respect to such affected
Aircraft, [***].
10.3.3
If this Agreement shall not have been
terminated with respect to the delayed Aircraft during the [***] day
period referred to in either Clause 10.3.1 or 10.3.2 above, then the
Seller shall be entitled to reschedule Delivery and the new Scheduled
Delivery Month shall be notified to the Buyer and shall be binding on the
parties.
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 repair (“
Total Loss Aircraft
”), the Seller shall
notify the Buyer to this effect, as soon as practicable, but in any event,
within one (1) month of such occurrence.
The Seller shall include in said notification (or as soon after the
issue of the notice as such
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34
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 shall be extended as specified in the Seller’s notice
to accommodate the delivery of the replacement aircraft; provided, however,
that in the event the specified extension of the Scheduled Delivery Month is to
a month exceeding [***] months after the last day of the original Scheduled
Delivery Month then this Agreement shall 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
(ii)
the parties execute an amendment to this Agreement recording the
variation in the Scheduled Delivery Month;
provided, however, that nothing herein shall 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 which includes the Aircraft purchased hereunder.
In the event that the Agreement with respect to such Total Loss
Aircraft is terminated pursuant to this sub-Clause 10.4, the obligations
and liabilities of the parties hereunder with respect to such Aircraft will be
discharged. The Seller will repay to the
Buyer an amount equal to the entire amount of any Predelivery Payments received
from the Buyer hereunder with respect to any such Total Loss Aircraft, [***].
10.5
Termination Rights Exclusive
In the event that this Agreement shall be terminated as provided for
under the terms of Clauses 10.3 or 10.4, such termination shall discharge
all obligations and liabilities of the parties hereunder with respect to such
affected Aircraft and undelivered material, services, data or other items
applicable thereto and to be furnished hereunder and neither party shall have
any claim against the other for any loss resulting from such non-delivery. The Seller shall in no circumstances have any
liability whatsoever for Excusable Delay other than as set forth in this
Clause 10.
[***] Confidential treatment requested by AerCap Holdings N.V.
35
11
NON-EXCUSABLE DELAY
11.1
Liquidated Damages
Should any of the Aircraft not be Ready for Delivery to the Buyer [***]
and such delay is not as a result of an Excusable Delay or Total Loss (a “
Non-Excusable Delay
”), then the Buyer shall
have the right to claim, and the Seller shall pay upon demand by way of liquidated
damages to the Buyer, the following amounts:
(a)
In the event that the Seller has notified the Buyer of the anticipated
delay at the latest three (3) months prior to the first day of the
Scheduled Delivery Month (as it may have been amended by mutual
agreement): US Dollars [***] (US$ [***])
for each day of delay commencing on the [***] day following the last day of the
Scheduled Delivery Month and ending on the day of Delivery of the relevant
Aircraft;
(b)
In the event that the Seller has notified the Buyer of the anticipated
delay less than three (3) months prior to the first day of the Scheduled
Delivery Month (as it may have been amended by mutual agreement) but prior to
the date on which the Seller informs the Buyer of the Notified Delivery Date: US Dollars [***] (US$ [***]) for each day of
delay commencing on the [***] day following the last day of the Scheduled
Delivery Month and ending on the day of Delivery of the relevant Aircraft;
(c)
In the event that the Seller has notified the Buyer of the anticipated
delay on or after the date on which the Seller informs the Buyer of the
Notified Delivery Date : US Dollars
[***] (US$ [***]) for each day of delay which falls within the Scheduled
Delivery Month, commencing on the [***] day following the Notified Delivery
Date and increasing to US Dollars [***] (US$ [***]) for each such day of delay
which continues beyond the last day of the Scheduled Delivery Month;
The amount of such liquidated damages shall in no event exceed the
total of US Dollars [***] (US$[***]) in respect of any one Aircraft.
11.2
[***]
In the event that such delay in Delivery exceeds [***] months, the
Buyer will have the further right, exercisable by written notice to the Seller
given no more than one (1) month after such [***] month period, to
terminate this Agreement in respect only of the Aircraft that is the subject of
such delay, whereupon the Seller will pay the Buyer, within ten
(10) Working Days after receipt of such notice, an amount equal to [***],
together with interest in an amount equal to LIBOR for six month deposits of a
similar amount
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36
plus [***]% per cent over the period from date of receipt of the
relevant Predelivery Payment to date of reimbursement hereunder. Such payment will be in addition to any
amount due pursuant to sub Clause 11.1 above.
11.3
Termination
In the event that (i) the Buyer has not exercised its right to
terminate under Clause 11.2 hereof and (ii) such subsequent delay in
Delivery exceeds twelve (12) months, either party will have the right,
exercisable by written notice to the other party given no more than one
(1) month after such twelve (12) month period, to terminate this
Agreement in respect only of the Aircraft that is subject to such delay,
whereupon the Seller will pay the Buyer, within ten (10) Working Days
after such notice, an amount equal to all Predelivery Payments made by the
Buyer to the Seller in relation to such Aircraft, together with interest in an
amount equal to LIBOR for six month deposits of a similar amount plus [***]%
per cent over the period from date of receipt of the relevant Predelivery
Payment to date of reimbursement hereunder.
Such payment will be in addition to any amount due pursuant to
sub-Clause 11.1 above.
11.4
[***].
11.5
Limitation of Damages
The Buyer and the Seller agree that payment by the Seller of the
amounts due pursuant to Clause 11.1 shall be considered to be liquidated
damages and have been calculated to compensate the Buyer for its entire damages
for all losses of any kind due to Non-Excusable Delay. The Seller shall not in any circumstances
have any liability whatsoever for Non-Excusable Delay other than as set forth
in this Clause 11.
11.6
Remedies
THIS CLAUSE 11 SETS FORTH THE SOLE AND EXCLUSIVE REMEDY OF THE
BUYER FOR DELAYS IN DELIVERY OR FAILURE TO DELIVER, OTHER THAN SUCH DELAYS AS
ARE COVERED BY CLAUSE 10, AND THE BUYER HEREBY WAIVES ALL RIGHTS,
INCLUDING WITHOUT LIMITATION ANY RIGHTS TO INCIDENTAL AND CONSEQUENTIAL DAMAGES
OR SPECIFIC PERFORMANCE, TO WHICH IT WOULD OTHERWISE BE ENTITLED IN RESPECT
THEREOF. 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 WILFULL MISCONDUCT OF THE BUYER OR ITS REPRESENTATIVES.
[***] Confidential treatment requested by AerCap Holdings N.V.
37
12
WARRANTIES AND SERVICE LIFE
POLICY
This Clause covers the terms and conditions of the warranty and service
life policy.
12.1
Standard Warranty
12.1.1
Nature of Warranty
Subject to the conditions and limitations as hereinafter provided for
and except as provided for in Clause 12.1.2, the Seller warrants to the
Buyer that each Aircraft and all Warranted Parts as defined hereinafter shall
at Delivery to the Buyer:
(i)
be free from defects in material;
(ii)
be free from defects in workmanship, including without limitation
processes of manufacture;
(iii)
be free from defects in design (including without limitation the
selection of materials) having regard to the state of the art at the date of
such design; and
(iv)
be free from defects arising from failure to conform to the
Specification, except to those portions of the Specification relating to
performance or where it is expressly stated that they are estimates,
approximations or design aims.
For the purpose of this Agreement the term “
Warranted Part
” shall mean any Seller proprietary component,
equipment, accessory or part as installed on an Aircraft at Delivery of such
Aircraft and
(a)
which is manufactured to the detailed design of the Seller or a
subcontractor of the Seller and
(b)
which bears a part number of the Seller at the time of such delivery.
12.1.2
Exclusions
The warranties set forth in Clause 12.1.1 shall not apply to Buyer
Furnished Equipment, nor to the Propulsion Systems (in the case of CFM
Propulsion System, excluding nacelles and thrust reversers), nor to any
component, equipment, accessory or part purchased by the Seller that is not a
Warranted Part except that:
(i)
any defect in the Seller’s workmanship
incorporated in the installation of such items in the Aircraft, including any
failure by the Seller to conform to the installation instructions of the
manufacturer
38
of such item that invalidates any applicable warranty from such
manufacturer, shall constitute a defect in workmanship for the purpose of this
Clause and be covered by the warranty set forth in sub-Clause 12.1.1(ii);
and
(ii)
any defect inherent in the Seller’s design of the installation, in view
of the state of the art at the date of such design, which impair the use of
such item shall constitute a defect in design for the purpose of this Clause
and be covered by the warranty set forth in sub-Clause 12.1.1(iii).
12.1.3
Warranty Period
The warranties contained in Clauses 12.1.1 and 12.1.2 shall be
limited to those defects which become apparent within thirty six
(36) months after Delivery of the affected Aircraft (“
Warranty Period
”).
12.1.4
Buyer’s Remedy and Seller’s
Obligation
12.1.4.1
The Buyer’s remedy and the Seller’s
obligation and liability under Clauses 12.1.1 and 12.1.2 are limited to
the [***], repair, replacement or correction of any Warranted Part which is
defective [***] or to the supply of modification kits rectifying the defect, at
the Seller’s expense and option.
The Seller may equally at its option furnish a credit to the Buyer
equal to the price at which the Buyer is entitled to purchase a replacement for
the defective Warranted Part.
12.1.4.2
In the event of a defect covered by
sub-Clauses 12.1.1(iii), 12.1.1(iv) and 12.1.2(ii) becoming
apparent within the Warranty Period and the Seller being obliged to correct
such defect, the Seller shall also, if so requested by the Buyer, make such
correction in any Aircraft which has not yet been delivered to the Buyer;
provided, however,
(i)
that the Seller shall not be responsible nor
deemed to be in default on account of any delay in Delivery of any Aircraft or
otherwise, in respect of the performance of this Agreement due to the Seller’s
undertaking to make such correction and provided further
(ii)
that, rather than accept a delay in the Delivery of any such Aircraft,
the Buyer and the Seller may agree to deliver such Aircraft with subsequent
correction of the defect by the Buyer at the Seller’s expense, or the Buyer may
elect to accept Delivery and thereafter file a warranty claim as though the
defect had become apparent immediately after Delivery of such Aircraft.
12.1.4.3
In addition to the remedies setforth in Clauses 12.1.4.1 and
12.1.4.2, the Seller shall reimburse the direct labor costs spent by the Buyer
in
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performing inspections of the Aircraft to determine whether or not a
defect exists in any Warranted Part within the Warranty Period or until the
corrective technical solution removing the need for the inspection is provided
by the Seller.
The above commitment is subject to the following conditions:
(i)
such inspections are recommended by a Seller
Service Bulletin to be performed within the Warranty Period;
(ii)
the inspection is performed outside of a scheduled maintenance check as
recommended by the Seller’s Maintenance Planning Document;
(iii)
the reimbursement shall not apply for any inspections performed as an
alternative to accomplishing corrective action when such corrective action has
been made available at no charge to the Buyer and such corrective action could
have reasonably been accomplished by the Buyer at the time such inspections are
performed or earlier,
(iv)
the labor rate to be used for the reimbursement shall be labor rate
defined in Clause 12.1.7, and
(v)
the manhours used to determine such reimbursement shall not exceed the
Seller’s reasonable estimate of the manhours required by the Buyer for such
inspections unless reasonably proven that more man-hours than the Seller’s
reasonable estimate were required.
12.1.5
Warranty Claim Requirements
Each Buyer’s warranty claim (“
Warranty
Claim
”) shall be considered by the Seller only if the following
conditions are first fulfilled:
(i)
the defect having become apparent within the
Warranty Period;
(ii)
the Buyer having submitted to the Seller evidence reasonably
satisfactory to the Seller that the claimed defect is due to
a
matter
embraced within this Clause 12.1, and that such defect has not resulted
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 or any matter covered in
Clause 12.1.10;
(iii)
the
Buyer having returned as soon as practicable the Warranted Part claimed to be
defective to the repair facilities as may be designated by the Seller, except
when the Buyer elects to repair a
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defective Warranted Part in accordance with the provisions of
Clause 12.1.7;
(iv)
the Seller having received a Warranty Claim as set forth in
Clause 12.1.6.
12.1.6
Warranty Administration
The warranties set forth in Clause 12.1 shall be administered as
hereinafter provided for:
(i)
Claim Determination
Warranty Claim determination by the Seller shall be reasonably based
upon the claim details, reports from the Seller’s local representative, historical
data logs, inspection, tests, findings during repair, defect analysis and other
suitable documents.
(ii)
Transportation Costs
Transportation costs for sending a defective Warranted Part to the
facilities designated by the Seller and for the return therefrom of a repaired
or replaced Warranted Part shall be borne by the Buyer.
(iii)
Return of an Aircraft
In the event of the Buyer desiring to return an Aircraft to the Seller
for consideration of a Warranty Claim, the Buyer shall notify the Seller of its
intention to do so and the Seller shall, prior to such return, have the right
to inspect such Aircraft and thereafter, without prejudice to its rights
hereunder, to repair such Aircraft, at its sole option, either at the Buyer’s
facilities or at another place acceptable to the Seller. Return of any Aircraft by the Buyer to the
Seller and return of such Aircraft to the Buyer’s facilities shall be at the
Buyer’s expense.
(iv)
On-Aircraft Work by the
Seller
In the event that a defect subject to this Clause 12.1 may justify
the dispatch by the Seller of
a
working team to
repair or correct such defect through the embodiment of one or several Seller’s
Service Bulletins at the Buyer’s facilities, or in the event of the Seller
accepting the return of an Aircraft to perform or have performed such repair or
correction, then the labor costs for such on-Aircraft work are to be borne by
the [***].
All related expenses, including but not limited to reasonable travel
and living expenses, in excess of the labour costs as defined
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above, incurred in performing such repair or correction shall be borne
by the Buyer, unless otherwise mutually agreed.
The condition which has to be fulfilled for on-Aircraft work by the
Seller is that in the opinion of the Seller, the work necessitates the
technical expertise of the Seller as manufacturer of the Aircraft.
If said condition is fulfilled and if the Seller is requested to
perform the work, the Seller and the Buyer shall agree on a schedule and place
for the work to be performed.
(v)
Warranty Claim
Substantiation
In connection with each claim by the Buyer made under this
Clause 12.1, the Buyer shall file a warranty claim on the Buyer’s form
within sixty (60) days after a defect became apparent. Such form must contain at least the following
data:
a)
description of defect and action taken, if
any,
b)
date of incident and/or removal date,
c)
description of the defective part,
d)
part number,
e)
serial number (if applicable),
f)
position on Aircraft,
g)
total flying hours or calendar time, as
applicable at the date of defect appearance,
h)
time since last shop visit at the date of
defect appearance,
i)
manufacturer serial number (“
Manufacturer’s Serial Number
”) of the
Aircraft and/or its registration,
j)
Aircraft total flying hours and/or number of
landings at the date of defect appearance,
k)
Warranty Claim number,
l)
date of Warranty Claim,
m)
delivery date of Aircraft or part to the
Buyer, Warranty Claims are to be addressed as follows:
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AIRBUS
CUSTOMER SERVICE DIRECTORATE
WARRANTY ADMINISTRATION
Rond-Point Maurice Bellonte
B.P. 33
F-31707 BLAGNAC CEDEX
FRANCE
(vi)
Replacements
Components, equipment, accessories or parts, which the Seller has
replaced pursuant to this Clause, shall become the Seller’s property. The replacement components, equipment,
accessories or parts provided by the Seller to the Buyer pursuant to this
Clause shall become the Buyer’s property.
(vii)
Seller’s Reply and/or
Rejection
The Seller shall use all reasonable endeavours to reply to any Warranty
Claim within fourteen (14) days of receipt. In case of rejection of any Warranty Claim,
the Seller shall in addition provide reasonable written substantiation thereof
In the event that such Warranty Claim is reasonably shown to be unjustified,
the Buyer shall refund to the Seller reasonable inspection and test charges
incurred in connection therewith.
(viii)
Seller’s Inspection
The Seller shall have the right to inspect the affected Aircraft and
documents and other records relating thereto in the event of any Warranty Claim
under this Clause 12.1.
(ix)
Turn-Around Time
The Seller will endeavor to repair defective Warranted Parts within
fifteen (15) days of receipt of such item(s) at the repair facilities
designated by the Seller, and if such repair is not effected within such
fifteen (15) day period, the Seller will supply a free forward exchange of
the items in question.
12.1.7
lnhouse Warranty
(i)
Seller’s Authorization
The Seller hereby authorizes the Buyer to perform the repair of
Warranted Parts (“
Inhouse Warranty
”)
subject to the terms of this Clause 12.1.7.
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(ii)
Conditions for Seller’s
Authorization
The Buyer shall be entitled to repair such Warranted Parts only:
•
if the Buyer notifies the Seller’s Representative
of its intention to perform Inhouse Warranty repairs before any such
repairs are started where the estimated cost of such repair is in excess of US
Dollars [***] (US$ [***]). The Buyer’s
notification shall include sufficient detail regarding the defect, estimated
labor hours and material to allow the Seller to ascertain the reasonableness of
the estimate. The Seller agrees to use
all reasonable efforts to ensure a prompt response and shall not unreasonably
withhold authorization;
•
if adequate facilities and qualified
personnel are available to the Buyer;
•
in accordance with the Seller’s written
instructions set forth in the applicable Seller’s technical documentation;
•
to the extent specified by the Seller, or,
in the absence of such specification, to the extent reasonably necessary to
correct the defect, in accordance with the standards set forth in
Clause 12.1.10.
(iii)
Seller’s Rights
The Seller shall have the right to have any Warranted Part, or any part
removed therefrom, claimed to be defective, returned to the Seller, as set
forth in sub-Clause 12.1.6(ii) if, in the judgement of the Seller,
the nature of the defect requires technical investigation. The Seller shall further have the right to
have a representative present during the disassembly, inspection and testing of
any Warranted Part claimed to be defective, subject to its presence being
practical and not unduly delaying the repair.
(iv)
In house Warranty Claim
Substantiation
Claims for In house Warranty credit shall contain the same information
as that required for Warranty Claims under sub-Clause 12.1.6(v) and
in addition shall 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),
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•
parts description,
•
quantity of parts,
•
unit
price of parts,
•
related Seller’s or third party’s invoices (if
applicable),
•
total price of parts,
c)
detailed number of labor hours,
d)
Inhouse Warranty Labor Rate,
e)
total claim value.
(v)
Credit
The Buyer’s account shall be credited with an amount equal to the
mutually agreed direct labor costs expended in performing the repair of a
Warranted Part and to the direct costs of materials incorporated in said
repair.
•
For the determination of direct labor costs
only 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 are permissible. Any man hour required
for maintenance work concurrently being carried out on the Aircraft or
Warranted Part is not included.
•
The manhours permissible above shall be
multiplied by an agreed labor rate, (“
Inhouse
Warranty Labour Rate
”) and representing the Buyer’s composite labor
rate meaning the average hourly rate (excluding all fringe benefits, premium
time allowances, social charges, business taxes and the like) paid to the Buyer’s
employees whose jobs are directly related to the performance of the repair.
•
Direct material costs are determined by the
prices at which the Buyer acquired such material, excluding any parts and
materials used for overhaul and as may be furnished by the Seller at no charge.
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(vi)
Limitation
The Buyer shall in no event be credited for repair costs (including
labor and material) in excess of [***] per cent ([***]%) of the current
catalogue price for a replacement of the defective Warranted Part,
or
where the repair cost (including labor and material) is in excess of US
Dollars [***] (US$ [***]) unless previously approved by the Seller in
accordance with sub-Clause 12.1.7(ii).
(vii)
Scrapped Material
The Buyer shall retain any defective Warranted Part beyond economic
repair and any defective part removed from a Warranted Part during repair for a
period of either [***] days after the date of completion of repair or [***]
days after submission of a claim for Inhouse Warranty credit relating thereto,
whichever is longer. Such parts shall be
returned to the Seller within [***] days of receipt of the Seller’s request to
that effect.
Notwithstanding the foregoing, the Buyer may scrap any such defective
parts which are beyond economic repair and not required for technical
evaluation locally with the agreement of the Seller’s local
representative. Scrapped Warranted Parts
shall be evidenced by a record of scrapped material certified by an authorized
representative of the Buyer.
12.1.8
Standard Warranty
Transferability
The warranties provided for in this Clause 12.1 for any Warranted
Part shall 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 or leasing agreement
between such airlines and the Buyer, in accordance with the terms and subject
to the limitations and exclusions of the foregoing warranties, and to the
extent permitted by any applicable law or regulations.
12.1.9
Warranty for Corrected,
Replaced or Repaired Warranted Parts
Whenever any Warranted Part which contains a defect for which the
Seller is liable under Clause 12.1 has been corrected, replaced or
repaired pursuant to the terms of this Clause 12.1, the period of the
Seller’s warranty with respect to such corrected, replaced or repaired
Warranted Part whichever may be the case, shall be the remaining portion of the
original Warranty Period of the repaired or replaced Warranted Part, or twelve
months, whichever is last to expire.
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12.1.10
Accepted Industry Standard Practices - 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, overhauled, repaired, and operated in accordance with accepted
industry standard practices, all technical documentation and any other
instructions issued by the Seller and the Suppliers and the Propulsion Systems
Manufacturer and all applicable rules, regulations and directives of relevant
Aviation Authorities.
12.1.10.1
The Seller’s liability under this
Clause 12.1 shall not extend to normal wear and tear nor to:
(i)
any Aircraft or component, equipment,
accessory or part thereof which has been repaired, altered or modified after
Delivery except by the Seller or in a manner approved by the Seller;
(ii)
any Aircraft or component, equipment, accessory or part thereof which
has been operated in a damaged state;
(iii)
any component, equipment, accessory and part from which the trademark,
name, part or serial number or other identification marks have been removed;
unless in any such case (except in the case of (iii) above) the
Buyer submits reasonable evidence to the Seller that the defect did not arise
from nor was contributed to by any one or more of the said causes.
12.2
Seller Service Life Policy
12.2.1
In addition to the warranties set forth in
Clause 12.1, the Seller further agrees that should any item listed in
Exhibit ”F” (“Item”) sustain any breakage or defect which can reasonably
be expected to occur on a fleetwide basis, and which materially impairs the
utility of the Item (“Failure”), and subject to the general conditions and
limitations set forth in Clause 12.2.4, then the provisions of this
Clause 12.2 (“Seller Service Life Policy”) shall apply.
12.2.2
Periods and Seller’s
Undertakings
The Seller agrees that if a Failure occurs in an Item before the
Aircraft in which such Item has been originally installed has completed [***]
flying hours, or has completed [***] flight cycles, or within [***] years after
the Delivery of said Aircraft to the Buyer, whichever shall first occur, the
Seller shall at its own discretion and as promptly as practicable and with the
Seller’s financial participation as hereinafter provided either
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12.2.2.1
design and furnish to the Buyer a correction
for such Item with a Failure and provide any parts required for such correction
(including Seller designed standard parts but excluding industry standard
parts), or,
12.2.2.2
replace such Item.
12.2.3
Seller’s Participation in
the Costs
Any part or Item which the Seller is required to furnish to the Buyer
under this Service Life Policy in connection with the correction or replacement
of an Item shall be furnished to the Buyer with the Seller’s financial
participation determined in accordance with the following formula:
P= C(N -T) IN
where:
P:
financial
participation of the Seller,
C:
Seller’s
then current sales prices for the required Item or
Seller designed parts,
(i)
T:
total flying time in hours of the Aircraft
in which the Item subject to a Failure has been originally
installed,
and,
N: [***] hours,
or,
(ii)
T:
total number of flight cycles which have
been accumulated by the Aircraft in which the Item
subject to a Failure has been originally
installed,
and,
N: [***] flight cycles,
or,
(iii)
T:
total time in months since Delivery of the
Aircraft in which the Item subject to a Failure has been originally
installed,
and,
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N: (***) months,
[***]
12.2.4
General Conditions and
Limitations
12.2.4.1
The undertakings given in this
Clause 12.2 shall be valid after the period of the Seller’s warranty
applicable to an Item under Clause 12.1.
12.2.4.2
The Buyer’s remedy and the Seller’s
obligation and liability under this Service Life Policy are subject to the
prior compliance by the Buyer with the following conditions:
(i)
the Buyer shall maintain log books and other
historical records with respect to each Item adequate to enable determination
of whether the alleged Failure is covered by this Service Life Policy and if so
to define the costs to be borne by the Seller in accordance with
Clause 12,2.3;
(ii)
the Buyer shall keep the Seller informed of any significant incidents
relating to an Aircraft howsoever occurring or recorded;
(iii)
the Buyer shall comply with the conditions of Clause 12.1.10;
(iv)
the Buyer shall carry out specific structural inspection programs for
monitoring purposes as may be established from time to time by the Seller. Such programs shall be as compatible as
possible with the Buyer’s operational requirements and shall be carried out at
the Buyer’s expense. Reports relating
thereto shall be regularly furnished to the Seller;
(v)
in the case of any breakage or defect, the Buyer must have reported the
same in writing to the Seller within [***] days after any breakage or defect in
an Item becomes apparent whether or not said breakage or defect can reasonably
be expected to occur in any other aircraft, and the Buyer shall have informed
the Seller of the breakage or defect in sufficient detail 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 for in this
Clause 12.2, any claim under this Service Life Policy shall be
administered as provided for in and shall be subject to the terms and conditions
of Clause 12.1.6.
12.2.4.4
In the event that the Seller shall have issued a 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. If such a kit
is so offered to the Buyer, then, to the extent of such
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Failure and any Failures that could ensue therefrom, the validity of
the Seller’s commitment under this Clause 12.2 shall be subject to the
Buyer’s incorporating such modification in the relevant Aircraft, as
promulgated by the Seller and in accordance with the Seller’s instructions,
within a reasonable time.
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 herein is to furnish only those corrections to
the Items or provide replacement therefor as provided for in
Clause 12.2.2.
The Buyer’s sole remedy and relief for the non-performance of any
obligation or liability of the Seller arising under or by virtue of this
Service Life Policy shall be in monetary damages, limited to the amount the
Buyer reasonably expends in procuring a correction or replacement for any Item
which is the subject of
a
Failure covered by this Service Life Policy
and to which such non-performance is related.
The Buyer hereby waives, releases and renounces all claims to any
further damages, direct, incidental or consequential, including loss of profits
and all other rights, claims and remedies, arising under or by virtue of this
Service Life Policy.
12.2.5
Transferability
The Buyer’s rights under this Clause 12.2 shall not be assigned,
sold, leased, transferred or otherwise alienated by operation of law or
otherwise, without the Seller’s prior consent thereto, which shall not be
unreasonably withheld and given in writing.
Any unauthorized assignment, sale, lease, transfer or other alienation
of the Buyer’s rights under this Service Life Policy shall, as to the
particular Aircraft involved, immediately void this Service Life Policy in its
entirety.
12.3
Supplier Product Support
Agreements
Prior to the Delivery of the first Aircraft, the Seller shall provide
the Buyer with all enforceable and transferable warranties and service life
policies with respect to Supplier Parts that the Seller has obtained pursuant
to each Supplier Product Support Agreement.
12.3.1
Definitions
12.3.1.1
“
Supplier
” means any
supplier of Supplier Parts.
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12.3.1.2
“
Supplier
Part
” means any component, equipment, accessory or part installed in
an Aircraft at the time of Delivery thereof as to which there exists a Supplier
Product Support Agreement. The
Propulsion Systems and Buyer Furnished Equipment and other equipment selected
by the Buyer to be supplied by Suppliers with whom the Seller has no Supplier
Product Support Agreement are not Supplier Parts.
12.3.1.3
“
Supplier
Product Support Agreement
” means an agreement between the Seller and
a Supplier containing enforceable and transferable warranties and in the case
of landing gear suppliers, service life policies for selected structural
landing gear elements.
12.3.2
Supplier’s Default
12.3.2.1
In the event of any Supplier, under any standard
warranty obtained by the Seller pursuant to Clause 12.3, 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 12.1 shall apply to the extent the same would
have been applicable had such Supplier Part been a Warranted Part, except that
the Supplier’s warranty period as indicated in the Supplier Product Support
Agreement shall 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, 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 F, 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 shall
assign to the Seller, and the Seller shall be subrogated to, all of the Buyer’s
rights against the relevant Supplier with respect to and arising by reason of
such default and shall provide reasonable assistance to enable the Seller to
enforce the rights so assigned.
12.4
Interface Commitment
12.4.1
Interface Problem
If the Buyer experiences any technical problem in the operation of an
Aircraft or its systems due to a malfunction, the cause of which, after due and
reasonable investigation, is not readily identifiable by the Buyer, but which
the Buyer reasonably believes to be attributable to the design characteristics
of one or more components of the relevant Aircraft
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(“
Interface Problem
”), the
Seller shall, if so requested by the Buyer, and without additional charge to
the Buyer (except for transportation of the Seller’s personnel to the Buyer’s
facilities, the cost of which shall be mutually agreed between the Buyer and
the Seller), 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 shall furnish to the Seller all
data and information in the Buyer’s possession relevant to the Interface
Problem, and shall 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 shall 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 shall, if so
requested by the Buyer and pursuant to the terms and conditions of
Clause 12.1, correct the design of such Warranted Part to the extent of
the Seller’s obligation as defined in 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 shall, if so
requested by the Buyer, reasonably assist the Buyer (at no additional charge to
the Buyer) in processing any warranty claim the Buyer may have against the
Supplier.
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 shall, if so requested by the Buyer, seek a solution
within a reasonable time to the Interface Problem through cooperative efforts
of the Seller and any Supplier involved.
The Seller shall promptly advise the Buyer of such corrective action as
may be proposed by the Seller and any such Supplier. Such proposal shall be consistent with any
then existing obligations of the Seller hereunder and of any such Supplier to
the Buyer. Such corrective action when
accepted by the Buyer shall constitute full satisfaction of any claim the Buyer
may have against either the Seller or any such Supplier with respect to such
Interface Problem.
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12.4.5
General
12.4.5.1
All requests under this Clause 12.4
shall be directed to both the Seller and the Supplier.
12.4.5.2
Except as specifically set forth in this
Clause 12.4, this Clause shall not be deemed to impose on the Seller any
obligations not expressly set forth elsewhere in this Clause 12.
12.4.5.3
All reports, recommendations, data and other
documents furnished by the Seller to the Buyer pursuant to this
Clause 12.4 shall be deemed to be delivered under this Agreement and shall
be subject to the terms, covenants and conditions set forth in this
Clause 12.
12.5
Waiver, Release and
Renunciation
12.5.1
SUBJECT TO CLAUSE 12.5.2 THE
WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND
REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 12 ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER
WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND
RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, AND/OR ITS
SUPPLIERS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO ANY
NON-CONFORMITY OR DEFECT IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY,
PART, SOFTWARE OR DATA DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT LIMITED
TO:
(A)
ANY WARRANTY AGAINST HIDDEN DEFECTS;
(B)
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C)
ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
(D)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER CONTRACTUAL
OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE SELLER’S AND/OR ITS SUPPLIERS’
NEGLIGENCE, ACTUAL OR IMPUTED; AND
(E)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA DELIVERED
UNDER THIS AGREEMENT.
53
THE SELLER AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY,
HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR
DEFECT IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA
DELIVERED UNDER THIS AGREEMENT.
FOR THE PURPOSES OF THIS CLAUSE 12.5, “THE SELLER” SHALL INCLUDE
THE SELLER AND ITS AFFILIATES.
12.5.2
NOTHING IN THIS CLAUSE 12.5 SHALL
CONSTITUTE A WAIVER, RELEASE OR RENUNCIATION BY THE BUYER OR ANY AFFILIATE OF
THE BUYER OF ANY EXPRESS OBLIGATIONS OR LIABILITIES OWED BY ANY SUPPLIER OR ANY
AFFILIATE OF THE SELLER TO THE BUYER OR ANY AFFILIATE OF THE BUYER PURSUANT TO
ANY AGREEMENT BETWEEN SUCH SUPPLIER OR SUCH AFFILIATE OF THE SELLER AND THE
BUYER OR ITS AFFILIATE.
THE PROVISIONS OF THIS CLAUSE 12.5 SHALL BE WITHOUT PREJUDICE TO
THE PROVISIONS OF CLAUSES 14.9 AND 14.11 OF THIS AGREEMENT,
CLAUSES 5.4 AND 6.9.6 OF EXHIBIT H TO THIS AGREEMENT, CLAUSE 11
OF ANY SOFTWARE LICENCE AND CLAUSE 8.2 OF ANY CBT LICENCE AND THE
OBLIGATIONS OF THE SELLER EXPRESSLY PRESERVED THEREUNDER;
12.6
Duplicate Remedies
The Seller shall not be obliged to provide any remedy which duplicates
any other remedy already provided to the Buyer in respect of the same defect
under any part of this Clause 12 as such Clause may be amended,
complemented or supplemented by other contractual agreements or by other
Clauses of this Agreement.
12.7
Negotiated Agreement
The Buyer and the Seller agree that this Clause 12 has been the
subject of discussion and negotiation and is fully understood by the parties
and that the price of the Aircraft and the other mutual agreements of the
parties 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 and General Limitations of Liability provisions
and the Duplicate Remedies provisions set forth in Clause 12.6.
54
13
PATENT AND COPYRIGHT
INDEMNITY
13.1
Indemnity
13.1.1
Subject to the provisions of
Clause 13.2.3, the Seller shall indemnify the Buyer from and against any
damages, costs or expenses including, without limitation legal costs and any
costs incurred by the Buyer in obtaining the release of any Aircraft pursuant
to clause 13.2.1(iii) (but 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 any
Airframe (or any part or software installed therein at Delivery) of:
(i)
any British, French, German, Spanish or U.S.
patent;
and
(ii)
any patent issued under the laws of any other country in which the
Buyer may lawfully operate the relevant Aircraft, provided that:
(1)
at the time of such infringement or claim, such country and the flag country
of the relevant Aircraft are each a party 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 in the alternative,
(2)
at the time of such infringement or claim, such country and the flag
country of the relevant Aircraft are each a party to the International
Convention for the Protection of Industrial Property of March 20, 1883 (“Paris
Convention”);
and
(iii)
in respect of computer software installed on the relevant Aircraft, any
copyright, provided that the Seller’s obligation to indemnify shall be limited
to infringements in countries which, at the time of infringement, are members
of The Berne Union and recognise computer software as a “work” under the Berne
Convention.
13.1.2
Clause 13.1.1 shall not apply to
(i)
Buyer Furnished Equipment or Propulsion
Systems; or
(ii)
parts not supplied pursuant to a Supplier Product Support Agreement; or
55
(iii)
software not created by the Seller.
13.1.3
In the event that the Buyer is prevented
from using the Aircraft (or any of them) (whether by a valid judgement of a
court of competent jurisdiction or by a settlement arrived at between claimant,
Seller and Buyer), the Seller shall at its expense either:
(i)
procure for the Buyer the right to use the
same free of charge to the Buyer; or
(ii)
replace the infringing part of the relevant Aircraft as soon as
possible with a non-infringing substitute complying in all other respects with
the requirements of this Agreement.
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 commenced against the Buyer for infringement of a patent
or copyright referred to in Clause 13.1, the Buyer shall:
(i)
forthwith notify the Seller giving
particulars thereof;
(ii)
in so far as permitted by law and the regulatory authorities having
jurisdiction over the Buyer, 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 such suit or claim provided always that
nothing in this sub-Clause (iii) shall prevent the Buyer from paying such
sums as may be required in order to obtain the release of the relevant
Aircraft, provided such payment is accompanied by a denial of liability and is
made without prejudice;
(iv)
[***] fully co-operate with, and render all such assistance to, the
Seller as may be pertinent to the defense or denial of the suit or claim;
(v)
[***] mitigate damages and / or to reduce the amount of royalties which
may be payable as well as to minimise costs and expenses.
13.2.2
The Seller shall 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 which, in the Seller’s opinion, it deems proper.
[***] Confidential treatment
requested by AerCap Holdings N.V.
56
13.2.3
The Seller’s liability hereunder shall be
conditional upon the strict and timely compliance by the Buyer with the terms
of this Clause and is in lieu of any other liability to the Buyer express or
implied which the Seller might incur at law as a result of any infringement or
claim of infringement of any patent or copyright.
57
14
TECHNICAL DATA AND SOFTWARE
SERVICES
This Clause covers the terms and conditions for the supply of technical
data and software services (hereinafter “
Technical
Data
”) to support the Aircraft operation.
14.1
Scope
The Technical Data shall be supplied in the English language using the
aeronautical terminology in common use.
Range, form, type, format, Air Transport Association (“
ATA
”)
I
Non ATA compliance, quantity and delivery schedule of the Technical
Data to be provided under this Agreement are covered in Exhibit G.
Not used or only partially used Technical Data provided pursuant to
this Clause shall not be compensated or credited to the Buyer.
14.2
Aircraft Identification for
Technical Data
14.2.1
For the customized Technical Data the Buyer
agrees to the allocation of fleet serial numbers (“
Fleet Serial Numbers
”) in the form of block of numbers
selected in the range from 001 to 999.
14.2.2
The sequence shall not be interrupted except
if two (2) different Propulsion Systems or two (2) different Aircraft
models are selected.
14.2.3
The Buyer shall indicate to the Seller the
Fleet Serial Number allocated to each Aircraft corresponding to the Aircraft
rank in the Delivery schedule set forth in Clause 9.1.1 hereof within
[***] days or as soon as is reasonably practicable after execution of this
Agreement. The subsequent allocation of
such Fleet Serial Numbers to Manufacturer’s Serial Numbers for the purpose of
producing customized Technical Data shall not constitute any property,
insurable or other interest of the Buyer whatsoever in any Aircraft prior to
the Delivery of such Aircraft as provided for in this Agreement.
The affected customized Technical Data are:
•
Aircraft Maintenance Manual,
•
Illustrated Parts Catalog,
•
Trouble Shooting Manual,
•
Aircraft Wiring Manual,
•
Aircraft Schematics Manual,
[***] Confidential treatment requested by AerCap Holdings N.V.
58
•
Aircraft Wiring Lists.
14.3
Integration of Equipment
Data
14.3.1
Supplier Equipment
Information relating to Supplier equipment which is installed on the
Aircraft by the Seller shall be introduced into the customized Technical Data
to the extent necessary for the comprehension of the systems concerned, at no
additional charge to the Buyer for the Technical Data basic issue.
14.3.2
Buyer Furnished Equipment
14.3.2.1
The Seller shall introduce Buyer Furnished
Equipment data, for equipment which is installed on the Aircraft by the Seller,
into the customized Technical Data at no additional charge to the Buyer for the
Technical Data basic issue, provided such data is provided in accordance with
the conditions set forth in Clauses 14.3.2.2 through 14.3.2.5 hereunder.
14.3.2.2
The Buyer shall supply the data related to
Buyer Furnished Equipment to the Seller at least six (6) months before the
scheduled delivery of the customized Technical Data. The Buyer Furnished Equipment data supplied
to the Buyer by the Seller shall be in English Language.
14.3.2.3
The supplied Buyer Furnished Equipment data
shall be established in compliance with ATA 2200 standard Specification, in the
Revision applicable to the corresponding Aircraft type.
Subsequent revisions of the ATA Specification shall be considered as
applicable.
14.3.2.4
The Buyer and the Seller shall agree on the
requirements for the provision to the Seller of BFE data for “on-aircraft
maintenance”, such as but not limited to timeframe, media and format, for
integration of such data into Technical Data, with the aim of managing the BFE
data integration process in an efficient, expedite and economic manner.
14.3.2.5
The Buyer Furnished Equipment data shall be
delivered in digital format (SGML) and/or in Portable Document Format (PDF), as
shall have been agreed between the Buyer and the Seller.
14.3.2.6
All costs related to the delivery to the
Seller of the applicable Buyer Furnished Equipment data shall be borne by the
Buyer.
14.3.2.7
In the event of the Seller providing
directly certain items, which are considered as Buyer Furnished Equipment
according to the Specification pursuant to and in accordance with Clause 18.1.4,
this Clause 14.3.2 shall
59
remain fully applicable to the data related
to such Buyer Furnished Equipment.
14.4
Delivery
14.4.1
The Technical Data are delivered on-line
and/or off-line, as set forth in Exhibit G hereto.
14.4.2
For Technical Data not delivered on-line,
the Technical Data and corresponding revisions to be supplied by the Seller
shall be sent to one address only as advised by the Buyer.
14.4.3
Packing and shipment of the Technical Data
and their revisions shall be carried out in consideration of the quickest
transportation methods. The shipment
shall be Free Carrier (FCA) TOULOUSE, FRANCE and/or Free Carrier (FCA) HAMBURG,
FEDERAL REPUBLIC OF GERMANY, as the term Free Carrier (FCA) is defined by
publication n° 560 of the International Chamber of Commerce, published in
January 2000.
14.4.4
The delivery schedule of the Technical Data
shall be phased as mutually agreed to correspond with each of the Aircraft
Deliveries. The Buyer agrees to provide
forty (40) days notice when requesting a change to the delivery schedule.
14.4.5
It shall be the responsibility of the Buyer,
in conjunction with any Operator to coordinate and satisfy local Aviation
Authorities’ needs for Technical Data.
Reasonable quantities of such Technical Data shall be supplied by the
Seller at no charge to the Duty Unpaid (DDU) TOULOUSE, FRANCE and/or Duty
Unpaid (DDU) HAMBURG, FEDERAL REPUBLIC OF GERMANY.
14.5
Revision Service
Unless otherwise specifically stated, revision service shall be
provided on a free of charge basis for a period of [***] after Delivery of the
last firmly ordered Aircraft covered under this Agreement, as such Delivery is
scheduled under Clause 9 of the Agreement (and as such schedule may be
subsequently amended).Thereafter revision service shall be provided at the
standard conditions set forth in the then current Seller’s Customer Services
Catalog.
Mandatory changes shall be incorporated into the Technical Data [***].
14.6
Service Bulletins (SB)
Incorporation
Upon the Buyer’s request for incorporation, which shall be made within
[***] after issuance of a Service Bulletin or if later, within [***] from
Delivery of the last firmly ordered aircraft covered under this Agreement,
Seller’s
60
Service Bulletin information shall 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 shall
remain in the Technical Data until notification from the Buyer that embodiment
has been completed on all the Buyer’s Aircraft.
The above is applicable for Technical Data relating to maintenance. For the operational Data only the pre or post
Service Bulletin status shall be shown.
14.7
Future Developments
The Seller shall continuously monitor technological developments and
apply them to data and document production and methods of transmission where
beneficial and economical. The Buyer
accepts to consider any new development proposed by the Seller for possible
implementation.
14.8
Technical Data
Familiarization
Upon request by the Buyer, the Seller is ready to provide per Operator
a one (1) week Technical Data familiarization training at the Seller’s or
at the Buyer’s or its designated Operator’s facilities. If such familiarization is conducted at the
Buyer’s or such Operators facilities, the Buyer or the relevant Operator (as
applicable) shall reimburse the Seller for all air travel (business class) and
reasonable expenses (including but not limited to lodging, food and local
transportation to and from the place of lodging and the training course
location) of the representatives of the Seller conducting such
familiarization. For the purposes of
this Clause 14.8 in the event that such training is conducted at the
Operator’s facilities or for the benefit of any Operator the Seller’s
representatives conducting such training shall fly business class with the
relevant Operator subject to this being feasible and practical.
14.9
Customer Originated Changes
(COC)
14.9.1
Buyer (or its Operator if approved in
writing by the Buyer) originated data may be introduced as COC into the
following customized Technical Data:
•
Aircraft Maintenance Manual,
•
Illustrated Parts Catalog,
•
Trouble Shooting Manual,
•
Aircraft Wiring Manual,
•
Aircraft Schematics Manual,
•
Aircraft Wiring Lists,
61
•
Flight Crew Operating Manual,
•
Quick Reference Handbook.
14.9.2
COC data shall be established by the Buyer
(or its Operator, if approved in writing by the Buyer) according to the
Customer Guide for Customer Originated Changes, as issued by the Seller. The Buyer or its Operator (as applicable)
shall ensure that any such data is in compliance with the requirements of its
local Aviation Authorities.
COC data shall be incorporated within two (2) revisions by the
Seller into all affected customized Technical Data unless the Buyer specifies
in writing the documents of its choice into which the COC data shall be
incorporated. The customized Technical
Data into which the COC data are incorporated shall only show the Aircraft
configuration reflecting the COC data and not the configuration before such COC
data’s incorporation.
14.9.3.1
The Buyer hereby acknowledges and accepts
that the incorporation of any COC into the Technical Data issued by the Seller
shall be entirely at the Buyer’s risk and that the Seller shall not be required
to check any COC data submitted for incorporation save that the Seller shall
incorporate accurately the COC as legibly supplied, within two
(2) revisions.
Further, the Buyer acknowledges full liability for the effects,
including all related costs, which any COC may have on any subsequent Service
Bulletins and/or modifications.
14.9.3.2
THE SELLER HEREBY EXPRESSLY DISCLAIMS ANY
AND ALL WARRANTIES OR LIABILITIES, EXPRESSED OR IMPLIED, ORAL OR WRITTEN,
ARISING BY LAW, COURSE OF DEALING OR OTHERWISE, AND WITHOUT LIMITATION ALL
WARRANTIES AS TO QUALITY, OPERATION, MERCHANTABILITY, FITNESS FOR ANY INTENDED
PURPOSE, AND ALL OTHER CHARACTERISTICS WHATSOEVER, INCLUDING ANY OMISSIONS OR
INACCURACIES THEREIN, IN RESPECT OF ANY CUSTOMER ORIGINATED CHANGES
INCORPORATED INTO THE TECHNICAL DATA ISSUED BY THE SELLER SAVE THAT THIS CLAUSE 14.9.3.2
SHALL BE WITHOUT PREJUDICE TO ANY EXPRESS OBLIGATION ASSUMED BY THE SELLER IN
THIS CLAUSE 14.9.
THE FOREGOING DISCLAIMER SHALL ALSO APPLY TO ANY OTHER PORTION OF THE
SELLER’S TECHNICAL DATA TO THE EXTENT (BUT ONLY TO THE EXTENT) THAT SUCH SELLER’S
TECHNICAL DATA IS ADVERSELY AFFECTED BY ANY SUCH CUSTOMER ORIGINATED CHANGES.
14.9.3.3
In the event of the Seller being required
under any court order or settlement to indemnify any third party for injury,
loss or damage incurred
62
directly or indirectly as a result of incorporation of any COC into the
Technical Data issued by the Seller, the Buyer agrees to reimburse the Seller
for all payments or settlements made in respect of such injury, loss or damage
including any expenses incurred by the Seller in defending such claims.
14.9.3.4
In the event of the Buyer selling, leasing
or otherwise transferring any Aircraft to which the COC data applies, the Buyer
hereby agrees that, unless the COC data is removed from the Technical Data at
the Buyer’s request and expense prior to such transfer:
(i)
the Buyer shall remain fully liable for the
COC data and any and all effects of its incorporation, as set forth in this
Clause 14.9;
(ii)
the Seller may disclose the COC data to the subsequent owner(s) or
Operator(s) of the transferred Aircraft;
(iii)
it shall be the sole responsibility of the Buyer to notify, or cause to
be notified, the subsequent owner(s) or Operator(s) of the existence of the
such COC data in the Technical Data applicable to the corresponding Aircraft.
The Seller hereby disclaims any and all liabilities whatsoever for the
COC data in the event of transfer, sale or lease as set forth in
clause 14.9.3.2.
14.9.4
The incorporation of any COC as aforesaid
shall be performed under the conditions specified in the Seller’s then current
Customer Services Catalog.
14.10
Software Services
14.10.1
Performance Engineer’s Programs
14.10.1.1
In addition to the standard operational
manuals, the Seller shall provide to the Buyer software components and
databases composing the Performance Engineer’s Programs (PEP) for the Aircraft
type covered under this Agreement under licence conditions as defined in
Appendix A to this Clause.
14.10.1.2
Use of the PEP shall be limited to one
(1) copy to be used on one (1) computer. The PEP is intended for use on ground only
and shall not be embarked on board of the Aircraft.
14.10.1.3
The licence to use the PEP shall be granted
free of charge for as long as the revisions of the PEP are free of charge in
accordance with Clause 14.5. At the
end of such period, the yearly revision service for the PEP shall be provided
to the Buyer at the standard commercial conditions set forth in the then
current Seller’s Customer Services Catalog.
63
14.10.2
AirN@v and/or ADOC
N@vigator Based Consultation
Certain Technical Data are provided on DVD and/or on line under licence
conditions as defined in Appendix A to this Clause.
The affected Technical Data under AirN@v are the following:
•
Trouble Shooting Manual,
•
Aircraft Maintenance Manual,
•
Illustrated Parts Catalog (Airframe),
•
Aircraft Schematics Manual,
•
Aircraft Wiring Lists,
•
Aircraft Wiring Manual,
•
Electrical Standard Practices Manual,
•
Consumable Material List,
•
Standards Manual.
The affected Technical Data covered under an Advanced Consultation Tool
based on ADOC N@vigator browser are:
•
Engineering Documentation Combined Index
•
Engineering Drawings Parts Usage
•
Engineering Drawings Parts List
The licence to use AirN@v and/or ADOC N@vigator based products shall be
granted free of charge for each Aircraft for as long as the revisions of such
Technical Data are free of charge in accordance with Clause 14.5. At the end of such period, the yearly
revision service for AirN@v and/or ADOC N@vigator based products shall be
provided to the Buyer at the standard commercial conditions set forth in the
then current Seller’s Customer Services Catalog.
14.10.3
Airbus|World Customer
Portal
14.10.3.1
The Buyer (and its Operators) shall be
entitled to obtain access to a wide range of information and services,
including Technical Data, available in the secure zone of Airbus’ Customer
Portal Airbus|World (“
Airbus|World
”).
Access to the secure zone of Airbus|World, which is reserved to Airbus
owners and operators (the “
Secure Zone
”),
shall be subject to the prior signature by the Buyer or its Operators (as
applicable) of the “General Terms and Conditions of Access to and Use of Airbus
Secure Area of Customer Portal” (hereinafter the “
GTC
.”).
A description of the Basic Services, which are available to the Buyer
and its Operators in the Secure Zone and are provided to the Buyer and its
Operators free of charge after signature of the GTC with respect to each
64
Aircraft, for as long as the Buyer owns or such Operator operates the
relevant Aircraft, is set forth in Appendix B to this Clause 14.
Furthermore, although part of the data available on Airbus|World is
neither sensitive nor confidential and is also available to the general
internet public in the public zone of the portal (the “
Public Zone
”), it is however recommended
that for simplicity of access the Buyer find this information in the Secure
Zone.
14.10.3.2
On-Line Technical Data
14.10.3.2.1
The Technical Data defined in Exhibit ”G”
as being provided on-line shall be made available to the Buyer and its
Operators through the Secure Zone.
Such provision shall be at no cost as long as revision service for such
Technical Data is free of charge in accordance with Clause 14.5
14.10.3.2.2
The list of the Technical Data available
on-line may be extended from time to time.
For any Technical Data which is or becomes available on-line, the
Seller reserves the right to suppress other formats for the concerned Technical
Data.
14.10.3.3
Access to the Secure Zone shall be granted
free of charge for a maximum of [***] of the Buyer’s or its Operators users per
Operator (including one Buyer Administrator) (or more as the Buyer and the
Seller may agree, at the Buyer’s request) for the Technical Data related to the
Aircraft
14.10.3.4
For the sake of clarification, it is hereby
specified that Technical Data accessed through the Secure Zone - which access
shall be covered by terms and conditions set forth in the GTC – shall remain
subject to the conditions of this Clause 14.
In addition, should the Secure Zone provide access to Technical Data in
software format, the use of such software shall be further subject to the
conditions of Appendix A hereto.
14.11
Warranties
14.11.1
The Seller warrants that the Technical Data are prepared in accordance
with the state of art at the date of their conception. Should any Technical Data prepared by the
Seller contain non-conformity or defect, the sole and exclusive liability of
the Seller shall be to take all reasonable and proper steps to, at its option,
correct or replace such Technical Data.
Notwithstanding the above, no warranties of any kind are given for the
Customer Originated Changes, as set forth in Clause 14.9.
[***] Confidential treatment
requested by AerCap Holdings N.V.
65
14.11.2
THE WARRANTIES, OBLIGATIONS AND LIABILITIES
OF THE SELLER AND/OR ITS SUPPLIERS AND REMEDIES OF THE BUYER SET FORTH IN THIS
CLAUSE 14 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY
WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND
LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS AND REMEDIES
OF THE BUYER AGAINST THE SELLER AND/OR ITS SUPPLIERS, EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN
ANY TECHNICAL DATA DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT LIMITED TO:
(A)
ANY WARRANTY AGAINST HIDDEN DEFECTS;
(B)
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C)
ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
(D)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER CONTRACTUAL
OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE SELLER’S AND/OR ITS SUPPLIERS’
NEGLIGENCE, ACTUAL OR IMPUTED; AND
(E)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART THEREOF OR ANY TECHNICAL
DATA DELIVERED HEREUNDER.
THE SELLER AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY,
HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT,
INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR
DEFECT IN ANY TECHNICAL DATA DELIVERED UNDER THIS AGREEMENT.
FOR THE PURPOSES OF THIS CLAUSE 14.11.2, “THE SELLER” SHALL
INCLUDE THE SELLER AND ITS AFFILIATES NOTHING IN THIS CLAUSE 14.11 SHALL
CONSTITUTE A WAIVER, RELEASE OR RENUNCIATION BY THE BUYER OR ANY AFFILIATE OF
THE BUYER OF ANY EXPRESS OBLIGATIONS OR LIABILITIES OWED BY ANY SUPPLIER OR ANY
AFFILIATE OF THE SELLER TO THE BUYER OR ANY OF ITS AFFILIATES PURSUANT TO ANY
AGREEMENT BETWEEN SUCH SUPPLIER OR ANY AFFILIATE OF THE SELLER AND THE BUYER OR
ITS AFFILIATE.
66
THE PROVISIONS OF THIS CLAUSE 14.11 SHALL BE WITHOUT PREJUDICE TO
THE PROVISIONS OF CLAUSES 12.5 AND 14.9 OF THIS AGREEMENT,
CLAUSES 5.4 AND 6.9.6 OF EXHIBIT H TO THIS AGREEMENT, CLAUSE 11
OF ANY SOFTWARE LICENCE AND CLAUSE 8.2 OF ANY CBT LICENCE AND THE OBLIGATIONS
OF THE SELLER EXPRESSLY PRESERVED THEREUNDER;
14.12
Proprietary Rights
14.12.1
All proprietary rights, including but not
limited to patent, design and copyrights, relating to Technical Data shall
remain with the Seller and/or its Affiliates as the case may be.
These proprietary rights shall also apply to any translation into a
language or languages or media that may have been performed or caused to be
performed by the Buyer.
14.12.2
Whenever this Agreement provide for
manufacturing by the Buyer, the consent given by the Seller shall not be
construed as express or implicit approval howsoever neither of the Buyer nor of
the manufactured products. The supply of
the Technical Data shall not be construed as any further right for the Buyer to
design or manufacture any Aircraft or part thereof or spare part.
14.13
Confidentiality
14.13.1
The Technical Data and their content are
designated as confidential. All such
Technical Data 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 save as permitted therein or otherwise
pursuant to any government or legal requirement imposed upon the Buyer.
14.13.2
In the case of the Seller having authorized
the disclosure to third parties either under this Agreement, or by an express
prior written authorization, the Buyer shall undertake that such third party
agrees to be bound by the same conditions and restrictions as the Buyer with
respect to the disclosed Technical Data.
67
APPENDIX A
TO CLAUSE 14
LICENCE FOR
USE
OF
SOFTWARE
68
LICENCE FOR USE OF SOFTWARE
1.
Definitions
For the purposes of this licence the following definitions shall apply:
“Agreement
”
means the aircraft purchase agreement dated December ,
2005 and entered in between the Licensor as Seller and the Licensee as Buyer
with respect to up to seventy (70) Airbus A320 family aircraft including all
exhibits, appendices and letter agreements attached thereto and as the same may
be modified in writing by the parties thereto from time to time.
“Licensor
” means the Seller.
“
Licensee
”
means the Buyer.
“
Software
”
means the set of programs, configurations,
processes, rules and, if applicable, documentation related to the operation of
the data processing.
“Freeware
”
means the Software furnished free of charge to the Licensee.
“
Composite Work
”
means the work composed of various elements,
such as database, software or data, and which necessitates the use of the
Software.
“User Guide
”
means the documentation, which may be in electronic format, designed
to assist the Licensee to use the Software, Freeware or Composite Work, as
applicable.
Capitalized terms used herein and not otherwise defined in this
Software Licence shall have the meaning assigned thereto in this Agreement.
2.
Grant
The Licensor grants the Licensee the right to use the Software under
the conditions set forth below (“the Software Licence”). The Software Licence shall also apply to any
Freeware and/or Composite Work delivered by the Licensor.
3.
Personal Licence
The sole right granted to the Licensee under this Software Licence is
the right to use the Software. The
Software Licence is personal to the Licensee, for its own internal use, and
subject to Clause 15.1, is non-transferable and non-exclusive.
4.
Copies
Use of the Software is limited to the number of copies delivered by the
Licensor to the Licensee and to the medium on which the Software is
delivered. No reproduction shall be made
without the written consent of the Licensor.
It is however agreed that the Licensee is authorized to copy the
Software for back-up
69
and archiving purposes. Any copy
authorized by the Licensor to be made by the Licensee shall be performed under
the sole responsibility of the Licensee.
The Licensee agrees to reproduce the copyright and other notices as they
appear on or within the original media on any copies that the Licensee makes of
the Software.
5.
Term
Subject to the Licensee having complied with the terms of this Software
Licence, the rights under the Software Licence shall be granted by the Licensor
to the Licensee from the date of first delivery of the Software to the Licensee
for so long as the Licensee owns or leases the Aircraft (or any of them).
The Licensee may terminate the Software Licence by notifying in writing
to the Licensor its desire to terminate the Software Licence. Such notification shall be received by the
Licensor not later than November 30
th
of the current year.
For clarification purposes, it is hereby expressly stated that the
Software may be offered for a limited period.
In the event that the Licensor should offer a replacement product, the
conditions for using such product shall be based on the general conditions
agreed herein but shall be subject to a separate agreement.
6.
Conditions of Use
Under the present Software Licence, the Licensee shall:
do its utmost to maintain the Software and the relating documentation
in good working condition, in order to ensure the correct operation thereof;
use the Software in accordance with such documentation and the User
Guide, and ensure that the staff using the Software has received the
appropriate training;
use the Software exclusively in the technical environment defined in
the applicable User Guide, except as otherwise agreed in writing between the
parties (subject to said agreement, decompilation may be exceptionally agreed
to by the Licensor in order for the Licensee to obtain the necessary
information to enable the Software to function in another technical
environment);
use the Software for its own internal needs and on its network only,
when technically possible, and exclusively on the machine referenced and the
site declared;
not alter, reverse engineer, modify or adapt the Software, nor
integrate all or part of the Software in any manner whatsoever into another
software product;
when the source code is provided to the Licensee, the Licensee shall
have the right to study and test the Software, under conditions to be expressly
specified by
70
the Licensor, but in no event shall the Licensee have the right to
correct, modify or translate the Software;
nor correct the Software, except that such correction right may
exceptionally be granted to the Licensee by the Licensor in writing
not translate, disassemble or decompile the Software, nor create a
software product derived from the Software;
not attempt to or authorize a third party to discover or re-write the
Software source codes in any manner whatsoever;
not delete any identification or declaration relative to the
intellectual property rights, trademarks or any other information related to
ownership or intellectual property rights provided in the Software by the
Licensor;
not pledge, sell, distribute, grant, sub-licence (without the prior
written consent of the Licensor), lease, lend, whether on a free-of-charge
basis or against payment, or permit access on a time-sharing basis or any other
utilization of the Software, whether in whole or in part, for the benefit of a
third party;
other than pursuant to an assignment or transfer of this Software
Licence to which the Licensor has given its express consent, not permit any
third party to use the Software in any manner, including but not limited to,
any outsourcing, loan, commercialization of the Software or commercialization
by merging the Software into another software or adapting the Software, without
prior written consent from the Licensor.
The Licensor shall be entitled, subject to providing reasonable prior
written notice thereof to the Licensee, and subject to such inspections not
disturbing the Licensee’s work or operations to come and verify in the Licensee’s
facilities whether the conditions specified in the present Software Licence are
respected. This shall not however engage
the responsibility of the Licensor in any way whatsoever.
7.
Training
In addition to the User Guide provided with the Software, training and
other assistance shall be provided upon the Licensee’s request on a
non-chargeable basis.
8.
Proprietary Rights
The Software is proprietary to the Licensor or the Licensor has
acquired the intellectual property rights necessary to grant this Software
Licence. The copyright and all other
proprietary rights in the Software are and shall remain the property of the
Licensor.
71
The Licensor reserves the right to modify any Software at its sole
discretion without prior notice to the Licensee.
9.
Copyright Indemnity
The Licensor shall defend and indemnify the Licensee against any claim
that the Software infringes the intellectual property rights of any third
party, provided that the Licensee:
•
Immediately notifies the Licensor of any
such claim;
•
Makes no decision or settlement of any claim
without the prior written consent of the Licensor;
•
Allows the Licensor to have sole control
over all negotiations for its settlement;
•
Gives the Licensor all reasonable assistance
in connection therewith.
Should the Licensee be prevented from using the Software by any
enforceable court decision, the Licensor shall at its own costs and at its
choice either modify the Software to avoid infringement or obtain for the
Licensee the right to use the Software.
10.
Confidentiality
The Software and its contents are designated as confidential. The Licensee undertakes not to disclose the
Software or parts thereof to any third party without the prior written consent
of the Licensor. In so far as it is
necessary to disclose aspects of the Software to the employees, such disclosure
is permitted solely for the purpose for which the Software is supplied and only
to those employees who need to know the same.
The obligations of the Licensee to maintain confidentiality shall
survive the termination of the Software Licence grant for a period of five
(5) years.
11.
Warranty
The Licensor warrants that the Software is prepared in accordance with
the state of art at the date of its conception and shall perform substantially
in accordance with its functional and technical specification at the time of
delivery. Should the Software be found
to contain any non-conformity or defect, the Licensee shall notify the Licensor
promptly thereof and the sole and exclusive liability of the Licensor under
this Software Licence shall be to correct the same.
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LICENSOR AND/OR ITS
SUPPLIERS AND REMEDIES OF THE LICENSEE ARE EXCLUSIVE AND IN SUBSTITUTION FOR,
AND THE LICENSEE HEREBY
72
WAIVES, RELEASE AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND
LIABILITIES OF THE LICENSOR AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS AND
REMEDIES OF THE LICENSEE AGAINST THE LICENSOR, AND/OR ITS SUPPLIERS, EXPRESS OR
IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY
OR DEFECT IN ANY SOFTWARE DELIVERED UNDER THIS SOFTWARE LICENCE INCLUDING BUT
NOT LIMITED TO:
(A)
ANY WARRANTY AGAINST HIDDEN DEFECTS;
(B)
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C)
ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
(D)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER CONTRACTUAL
OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE LICENSOR’S AND/OR ITS
SUPPLIERS’ NEGLIGENCE, ACTUAL OR IMPUTED; AND
(E)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART THEREOF OR ANY SOFTWARE
DELIVERED HEREUNDER.
THE LICENSOR AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR
LIABILITY, HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY
OTHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY
NON-CONFORMITY OR DEFECT IN ANY SOFTWARE DELIVERED UNDER THIS SOFTWARE LICENCE.
FOR THE PURPOSES OF THIS CLAUSE 11, “THE LICENSOR” SHALL INCLUDE
THE LICENSOR AND ITS AFFILIATES.
NOTHING IN THIS CLAUSE 11 SHALL CONSTITUTE A WAIVER, RELEASE OR
RENUNCIATION BY THE LICENSEE OR ANY AFFILIATE OF THE LICENSEE OF ANY EXPRESS
OBLIGATIONS OR LIABILITIES OWED BY ANY SUPPLIER OR ANY AFFILIATE OF THE
LICENSOR TO THE LICENSEE OR ANY AFFILIATE OF THE LICENSEE PURSUANT TO ANY
AGREEMENT BETWEEN SUCH LICENSEE OR ITS AFFILIATE AND SUCH SUPPLIER OR ANY
AFFILIATE OF THE LICENSOR.
THE PROVISIONS OF THIS CLAUSE 11 SHALL BE WITHOUT PREJUDICE TO THE
PROVISIONS OF CLAUSES 12.5, 14.9, AND 14.11 OF THIS AGREEMENT,
CLAUSES 5.4 AND 6.9.6 OF EXHIBIT H TO THE AGREEMENT AND
CLAUSE 8.2 OF ANY CBT LICENCE AND THE OBLIGATIONS OF THE LICENSOR
EXPRESSLY PRESERVED THEREUNDER;
73
The Licensor shall have no liability for data that is entered into the
Software by the Licensee and/or used for computation purposes.
12.
Liability and Indemnity
The Software is supplied under the express condition that save as
provided in this Software Licence, the Licensor shall have no liability in
contract or in tort arising from or in connection with the use or possession by
the Licensee of the Software and that the Licensee shall indemnify and hold the
Licensor harmless from and against any liabilities and claims resulting from
such use or possession save to the extent (but only to the extent) that such
claim or liability does not relate to (i) an intellectual property
infringement claim contemplated by Clause 9 nor (ii) any failure by
the Licensor to comply with its obligations under Clause 11 or any other
provision of this Software Licence.
13.
Excusable Delays
13.1
The Licensor shall not be responsible nor be
deemed to be in default on account of delays in delivery or otherwise in the
performance of this Software Licence or any part thereof due to causes
reasonably beyond Licensor’s or its subcontractors’ control and not occasioned
by the fault or negligence of the Licensor or its subcontractors including but
not limited to: natural disasters,
fires, floods, explosions or earthquakes, epidemics or quarantine restrictions,
serious accidents, total or constructive total loss, any act of the government
of the country of the Licensee or the governments of the countries of Licensor
or its subcontractors, war, insurrections or riots, failure of transportation,
communications or services, strikes or labor troubles causing cessation, slow
down or interruption of services, inability after due and timely diligence to
procure materials, accessories, equipment or parts, failure of a subcontractor
or vendor to furnish materials, accessories, equipment or parts due to causes
reasonably beyond such subcontractor’s or vendor’s control or failure of the
Licensee to comply with its obligations arising out of the present Software
Licence. The Licensor shall use all
reasonable endeavours to minimize such delays.
13.2
The Licensor shall, as soon as practicable
after becoming aware of any delay falling within the provisions of this Clause,
notify the Licensee of such delay and of the probable extent thereof and shall,
subject to the conditions as hereinafter provided and as soon as practicable
after the removal of the cause or causes for delay, resume performance under
the Software Licence.
13.3
Should an event of force majeure last for a
period extending beyond three (3) months, the Software Licence shall be
automatically terminated, as a matter of right, unless otherwise agreed in
writing, without compensation for either the Licensor or the Licensee.
74
14.
Termination
In the event of breach of an obligation set forth in this Software
Licence by either the Licensor or the Licensee, which is not cured within
30 days from the date of receipt of a written notice notifying the breach,
the non-breaching party shall be entitled to terminate this Software Licence.
In the event of termination for any cause, the Licensee shall no longer
have any right to use the Software and shall return to the Licensor all copies
of the Software and any relating documentation together with an affidavit to
that effect. In case of breach by the
Licensee, the Licensor shall be entitled to retain any amount paid for the
ongoing year.
15.
General Provisions
15.1
This Software Licence or part thereof shall
not be assigned to
a
third party without the prior written consent
of the other party except that the Licensor may assign this Licence to any of
the Licensor’s Affiliates.
15.2
This Software Licence shall be governed by
the laws of England. All disputes
arising in connection with this Software Licence shall be submitted to the
competent courts of England and the provisions of clause 22.4 of the
Agreement shall be incorporated herein (with all necessary changes).
15.3
In the event that any provision of this
Software Licence should for any reason be held ineffective, the remainder of
this Software Licence shall remain in full force and effect.
The invalid provision shall be replaced by such valid one as the
parties would have chosen had they been aware of such invalidity.
15.4
All notices and requests required or authorized
hereunder shall be given in writing either by registered mail (return receipt
requested) or by telefax. In the case of
any such notice or request being given by registered mail, the date upon which
the answerback is recorded by the addressee or, in case of a telefax, the date
upon which the answerback is recorded by the sender’s telefax machine, shall be
deemed to be the effective date of such notice or request.
75
APPENDIX B
TO CLAUSE 14
Airbus|World
Customer Portal
SECURE ZONE
BASIC
SERVICES
76
1.
General services
1.1
GCS General Information
Providing general information such as:
•
Airbus Abbreviations Dictionary (AAD)
•
Airbus Monitored Retrofit Campaign
•
Engineering and Technical Services (Contact
List)
•
Events & Symposium
•
On-line Services General Information
•
Training Catalogues
•
Monthly Service Report
•
Tutorials
•
Spares Information
•
Fast Magazine
•
Upgrade Services
1.2
FTP Site
This service provides access on an ad-hoc basis to specific documents
or data that first need to be downloaded onto the user’s local workstation for
display and use, after prior arrangement with the corresponding Airbus
technical counterpart.
1.3
“What is New” facility and E-mail notification
The “What is New function” allows a user to be informed of new
information put On-Line within a specific date range (default value is between
user’s last login and “now”).
This facility is applicable to following services:
•
AIDA (Drawings)
•
AOG RG
•
CAWA
•
ETDS
77
•
General Information
•
SPSA
•
TPPO
•
VIM
As a complementary service to the “What is New facility”, a
subscription to e-mail notification is available for some mainly used
documents.
This function provides information of new data on-line, with direct
access links, via e-mail, according to the user’s subscription.
2.
Technical Data
2.1
ETDS (Engineering Technical Documentation) service
The service provides access via a document index to the contents of:
•
Service Bulletins – all SB in PDF, but SB
issued after July 1997 in PDF and SGML
•
Technical Follow-Up (TFU) - all
•
Modification Information Document (MID) -
all
•
All Operators Telex (AOT) - all
•
Operators Information Telex (OIT) - all
•
Flight Operations Telex (FOT) - all
•
Service Information Letter (SIL) - all
•
Consignes de Navigabilité (CN) - all
•
Advisory Directives (AD) -all
In addition, links between such documents are available through the
service.
Documents can be printed or downloaded, depending of their electronic
format.
SBs available in SGML format can be downloaded in SGML.
Printing will be based on PDF format.
78
2.2
STDO (Supplier Technical Manuals) service
The Supplier Technical Manuals service provides an on-line consultation
of Suppliers’ component maintenance manuals (CMMv) available in PDF.
It allows access to Suppliers’ CMMs that are effective for the Buyer’s
fleet.
Through the application interface, users are able to:
•
Search documents by Aircraft type, ATA
references, document type, Supplier code and Part number;
•
Access, print and download via the PDF
reader plug in (Acrobat Reader) the available release of the Suppliers’
technical documentation.
3.
Spare Parts and Repair
3.1
ARG (AOG and Repair Guide) service
Access to vendor and repairs stations by P/N.
3.2.1
ASDS (Airbus Support Data for Supplier) service
This service offers for all Airbus aircraft:
•
Part number information such as price,
lead-time, manufacturer code, stock status and location
•
Part number interchangeability
•
Single purchase order status
•
Useful information such as contact details,
help function and e-mail
•
Internet parts ordering
•
Information link to selected in-house
forwarders
•
Support guide and excess inventory list
3.3
VIM (Vendor Information Manual) service
The service offers:
•
List of Airbus vendors with location, fax,
phones, addresses and contacts
•
List of repairs stations
•
List of equipment manufactured by the
vendors
79
3.4
SPSA (Supplier Product Support Agreements) service
Information relative to agreements negotiated between Airbus and Aircraft
Equipment Suppliers.
DMC and MTBUR are available for the main Suppliers
3.5
Spares services
This service is already available in an autonomous mode through the
Spares Portal (http://spares.airbus.com).
The service offers for all AIRBUS aircraft:
•
Part number information such as price,
lead-time, manufacturer code, stock status and location
•
Part number interchangeability
•
Single purchase order status
•
Useful information such as contact details,
help function and e-mail
•
Internet parts ordering
•
Information link to selected in-house
forwarders
•
Support guide and excess inventory list
4.
Warranty
4.1
CAWA (Contracts and Warranty Administration) service
The Warranty Claim Service proposes four main functions:
•
Warranty claims booking
•
Consultation of the warranty claims status
•
Consultation of statistics on response time
regarding closed/open files
•
Consultation of warranty guide
5.
Customize & Deliver
5.1
ACCL (A/C
Comparison List) service
Aircraft configuration comparison list, 6 months and 1 month
before Delivery.
80
5.2
CDIS (Customization and Delivery Information) services
The following service provides access to:
•
RFC (Request For Change)
•
AIR (Aircraft Inspection Report)
•
SCN (Specification change Notices)
•
CCR (Customer Change Register)
•
Concessions
81
15
SELLER
REPRESENTATIVES
15.1
Customer Support Manager
The Seller shall assign one (1) customer support manager based at
the Seller’s main office to coordinate customer support matters between the
Seller’s main office and the Buyer following the signature of this Agreement
for as long as [***] is operated by an Operator or is still owned by the
Buyer.
15.2
Customer Services
Representatives
15.2.1
The Seller shall provide free of charge the
services of Seller customer services representatives (“
Seller’s Representatives
”) acting in an
advisory capacity in accordance with the allocation set forth in Appendix A
of this Clause 15.
15.2.2
The Seller has set up a global technical
services network available for the non-exclusive use by each Operator. The Buyer and each Operator will have free
access to this global network at any time in the course of the Aircraft
operation and, in particular in the event of a need for non-routine technical
assistance, the Buyer and its Operators shall have non-exclusive access to the
Seller’s Representatives closest to the Buyer’s or relevant Operator’s (as
applicable) main base after the end of the assignment of the Seller’s
Representatives referred to in Appendix A of this Clause 15. A list of the contacts for the Seller’s
Representatives closest to the Buyer’s or relevant Operator’s (as applicable)
main base shall be provided to the Buyer and such Operator.
15.2.3
The Seller shall cause similar services to
be provided by competent representatives of the Propulsion System Manufacturer
and by Supplier representatives when necessary and applicable.
15.2.4
The Seller shall provide to the Buyer an
annual written accounting of the consumed man-months and any remaining
man-month balance. Such accounting shall
be deemed as final and acceptable to the Buyer unless the Seller receives written
objection from the Buyer within thirty (30) days of receipt of such
accounting.
15.2.5
If requested by the Buyer, Seller
Representative services exceeding the allocation specified in Appendix A
of this Clause 15 may be provided by the Seller subject to terms and
conditions to be mutually agreed.
15.3
Buyers Service
15.3.1
From the date of arrival of the first of the
Seller’s Representatives and for the duration of the assignment, the Buyer or
its Operator (as applicable) shall provide free of charge a suitable lockable
office, conveniently located
[***] Confidential treatment requested by AerCap Holdings N.V.
82
with respect to the Buyer’s or Operator’s (as applicable) maintenance
facilities, with complete office furniture and equipment for the sole use of
the Seller’s Representatives. The Buyer
or its Operator (as applicable) shall provide or cause to be provided
telecommunications facilities.
15.3.2
In accordance with the Operator’s
regulations, the Buyer or its Operator (as applicable) shall provide at no cost
to the Seller:
(a)
airline tickets in business class confirmed and guaranteed between the
locations mentioned in Clause 15.1 and 15.2 and the international airport
nearest Toulouse, France that is on the relevant Operator’s network for the
Seller’s Representatives mentioned in Clause 15.1 or
Clause 15.2. When the use of the
relevant Operators’ route network is not feasible or practical, the relevant
Operator shall reimburse the Seller for business class travel on other airlines;
and
(b)
when the Seller’s Representatives are assigned away from the locations
mentioned in Clause 15.1 or 15.2 at the relevant Operator’s or Buyers’
request, transportation between the said locations and the place of assignment.
15.3.4
The Buyer or its Operator (as applicable)
shall assist the Seller to obtain from the civil authorities of the Buyer’s or
Operator’s country those documents which are necessary to permit the Seller’s
Representatives to live and work in the Buyer’s or Operator’s (as applicable)
country. Failure of the Seller to obtain
the necessary documents shall relieve the Seller of any obligation to the Buyer
or Operator under the provisions of Clause 15.2.
15.3.5
The Buyer or its Operator (as applicable)
shall reimburse to the Seller charges, taxes, duties, imposts or levies of any
kind whatsoever, imposed by authorities of the Buyer’s or its Operator’s (as
applicable) country upon:
•
the entry into or exit from the Buyer’s or
Operator’s country of the Seller’s Representatives and their families,
•
the entry into or the exit from the Buyer’s
or Operator’s country of the Seller’s Representatives and their families’
personal property,
•
the entry into or the exit from the Buyer’s
or Operator’s country of the Seller’s property.
15.4
Withdrawal of the Seller’s
Representatives
The Seller shall have the right to withdraw its assigned Seller
Representatives as it sees fit if conditions arise which are in the Seller’s
[***] Confidential treatment requested by AerCap Holdings N.V.
83
opinion dangerous to their safety or health or prevent them from
fulfilling their contractual tasks.
15.5
Seller’s Representatives’
Status
In providing the above technical services, the Seller’s Representatives
and other employees are deemed to be acting in an advisory capacity only and at
no time shall they be deemed to act as Buyer’s employees or agents, either
directly or indirectly.
15.6
Indemnities
INDEMNIFICATION PROVISIONS APPLICABLE TO THIS CLAUSE 15 ARE SET
FORTH IN CLAUSE 19.
84
APPENDIX A
SELLER REPRESENTATIVE ALLOCATION
The Seller Representative allocation that is provided to the Buyer or
its Operator (as applicable) pursuant to Clause 15.2 is set out below.
1
The Buyer shall be provided a total of [***]
man-months of Seller Representative services per Aircraft at the Buyer’s main
base or at other locations to be mutually agreed including, without limitation,
the base of any Operator.
2
For clarification, such Seller
Representatives’ services shall include initial Aircraft Entry Into Service (
EIS
) assistance and sustaining support
services.
3
The number of the Seller’s Representatives
assigned to the Buyer or to its Operator at any one time shall be mutually
agreed, but at no time shall it exceed [***] men per Operator.
4
Absence
of an assigned Seller’s Representative during normal statutory vacation periods
are covered by the Seller’s Representatives as defined in Clause 15.2.2 and
as such are accounted against the total allocation provided in item 1
above.
[***] Confidential treatment
requested by AerCap Holdings N.V.
85
16
TRAINING
AND TRAINING AIDS
16.1
General
This Clause 16 covers the terms and conditions for the supply of
training and training aids for the Buyer’s and its Operator’s personnel 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.
16.2.2.1
With respect to Maintenance Training,
training courses shall be provided up to one (1) year after Delivery of
the last firm Aircraft ordered under this Agreement.
16.2.2.2
With respect to Flight Operations Training,
the quantity of training allocated to each Aircraft shall be provided up to one
(1) year after Delivery of each corresponding Aircraft.
16.3
Training Organisation
I
Location
16.3.1
The Seller shall provide training at its
training center in Blagnac, France, or in Hamburg, Germany (each the “
Seller’s Training Center
”) or one of its
affiliated training centers in Miami, U.S.A., or Beijing, China (the “
Affiliated Training Centers
”).
16.3.2
In the event of the non-availability of
facilities or scheduling imperatives making training by the Seller impractical,
the Seller shall make arrangements for the provision to the Buyer or its
Operator (as applicable) of such training support elsewhere. Provided that the Buyer’s or its Operator’s
(as applicable) requirements have been indicated to the Seller ideally nine
(9) months prior to Delivery of the relevant Aircraft but in any event as
early as such Operator of the relevant Aircraft is known to the Buyer and in
the event that the Seller is unable to accommodate the Buyer’s or its Operator’s
(as applicable) requirements for training at a convenient location, [***].
16.3.3.1
Upon the Buyer’s request, the Seller may
also provide certain training at a location other than the Seller’s Training
Centers or Affiliated Training Centers, including one of the Operator’s 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 shall be borne by the Buyer or
its relevant Operator (as applicable).
16.3.3.2
If the training as set forth in
Clause 16.3.3.1 above is either an Airbus EASA — Part 147 (for maintenance
training) or a Type Rating Training
[***] Confidential treatment requested by
AerCap Holdings N.V.
86
Organisation (TRTO) (for flight operation training) approved course,
the Buyer or its relevant Operator (as applicable) shall provide access to its
training facilities to the Seller’s and the relevant Aviation Authorities’
representatives for the necessary approval of such facilities for the training.
16.3.3.3
Training courses provided for the Buyer’s or
Operator’s (as applicable) personnel shall be scheduled according to plans
mutually agreed upon during a Training Conference to be held with the relevant
Operator as soon as such Operator is known.
The Seller shall use its best efforts to accommodate the Buyer’s or its
Operator’s (as applicable) requirements provided that such are confirmed to the
Seller at the latest nine (9) months prior to Delivery of the relevant
Aircraft. In the event that such
requirements are communicated to the Seller after such nine (9) months period,
the Seller shall cooperate with the Buyer or its Operator (as applicable) to
schedule the requested training so as to provide a training program as close as
possible to the Buyer’s or Operator’s (as applicable) requirements, subject to
the Seller’s then prevailing constraints.
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 or Operator’s
(as applicable) personnel, are defined in the applicable brochure describing
the various Seller’s training courses (the “
Seller’s
Training Course Catalog
”
)
and
shall be scheduled as mutually agreed upon during a training conference (“the
Training Conference
”) to be held between
nine (9) and twelve (12) months prior to Delivery of the first
Aircraft to each Operator.
16.4.2
When training is performed by the Seller:
(i)
Training courses shall be the Seller’s
standard courses as described in the applicable Seller’s Training Course
Catalog valid at the time of the execution of the course. The Seller shall be responsible for all training
course syllabi, training aids and training equipment necessary for the
organisation of the training courses; however, for the purpose of performing
training, training equipment does not include aircraft. The academic curricula and equipment used for
the training of flight and maintenance personnel shall not be fully customized;
however, they shall be configured in order to obtain the relevant approval and
to support the Seller’s teaching programs.
The equipment used for training of flight and maintenance personnel
shall not be fully customised, however such equipment and the training
curricula used for training of flight and/or maintenance personnel shall be configured
in order to obtain the
87
relevant Aviation Authorities’ approval and to support the Seller’s
training programs. Training data and
documentation shall not be revised;
(ii)
Training data and documentation for trainees receiving the training at
the Seller’s Training Centers or Affiliated Training Centers shall be
free-of-charge. Training data and
documentation shall be marked “FOR TRAINING ONLY” and as such are supplied for
the sole and express purpose of training;
(iii)
Upon the Buyer’s request, the Seller shall collect and pack for consolidated
shipment to the Buyer’s facility, all training data and documentation of the
Buyer’s trainees attending training at the Seller’s Training Centers or
Affiliated Training Centers at no charge to the Buyer;
The above shipment shall be delivered Free Carrier (“FCA”) to the
airport closest to the location at which the training actually takes place, as
the term Free Carrier (“FCA”) is defined by publication N°560 of the
International Chamber of Commerce published in January 2000. Title to and risk of loss of said shipment
shall pass to the Buyer upon delivery.
16.4.3
When the Seller’s training courses are
provided by the Seller’s instructors, the Seller shall deliver a Certificate of
Recognition, a Certificate of Course Completion or an Attestation, as
applicable, at the end of any such training course. Any such certificate shall not represent
authority or qualification by any Aviation Authorities but may be presented to
such Aviation Authorities in order to obtain relevant formal qualification.
In the event of the training courses being provided by a training
provider selected by the Seller, the Seller shall cause such training provider
to deliver a Certificate of Recognition, a Certificate of Course Completion or
an Attestation, as applicable, at the end of any such training course. Any such certificate shall not represent
authority or qualification by any Aviation Authorities but may be presented to
such Aviation Authorities in order to obtain relevant formal qualification.
16.5
Prerequisites and
Conditions
16.5.1
Training shall be conducted in English and
all training aids are written in English using common aeronautical
terminology. Trainees shall have the
prerequisite knowledge and experience defined in Appendix ”B” to this
Clause 16.
The Buyer hereby acknowledges that the Seller’s training courses are “Standard
Transition Training Courses” and not “Ab lnitio Training Courses”.
88
The Buyer or its Operator (as applicable) shall 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 (as applicable)
shall 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 check the
trainees’ proficiency and previous professional experience. The Seller shall in no case warrant or
otherwise be held liable for any trainee’s performance as a result of any
training provided.
16.5.2.2
The Buyer or its Operator (as applicable)
shall further return to the Seller the “Airbus Pre-Training Survey” or the “Maintenance
Training Survey”, as applicable, detailing the trainees’ associated background
at the latest two (2) months before the start of the training course.
16.5.2.3
In the event of the Buyer or its Operator
(as applicable) having to make a change to the trainees attendance list within
the two (2) month period stated in Clause 16.5.2.2, the Buyer or its
Operator (as applicable) shall immediately inform the Seller thereof and send
to the Seller an updated Airbus Pre-Training Survey or Maintenance Training
Survey reflecting such change.
16.5.3
Upon the Buyer’s or its Operator’s (as
applicable) request, the Seller may be consulted to direct the above mentioned
trainee(s) through a relevant entry level training program, which shall be at
the Buyer’s or its Operator’s (as applicable) charge, and, if necessary, to
coordinate with competent outside organisations for this purpose. Such consultation shall be held during the
Training Conference.
In the event of the Seller determining that a trainee lacks the
required entry level, following consultation with the Buyer or its Operator (as
applicable), such trainee shall be withdrawn from the program.
16.6
Logistics
16.6.1
Trainees
16.6.1.1
The Seller shall provide free local
transportation by bus for the Buyer’s or Operator’s (as applicable) trainees to
and from designated pick-up points and the Seller’s Training Centers or
Affiliated Training Centers.
16.6.1.2
Living and travel expenses for the Buyer’s
or Operator’s (as applicable) trainees shall be borne by the Buyer or the
Operator (as applicable).
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16.6.2
Training at External
Location - Seller’s Instructors
In the event of training being provided at an external location
specifically at the Seller’s request, the conditions relative to expenses shall
be the same as those which would have been applicable if the training had been
provided at the Seller’s Training Centers or Affiliated Training Centers.
In the event of training being provided by the Seller’s instructors at
any location other than the Seller’s Training Centers or Affiliated Training
Centers at the Buyer’s or Operator’s (as applicable) request or as otherwise
detailed in this Clause 16, the Buyer or Operator (as applicable) shall
reimburse the Seller for all the expenses related to the assignment of such
instructors and their performance of the duties as aforesaid.
16.6.2.1
Living Expenses
Such expenses, covering the entire period from day of departure from to
day of return to the Seller’s base, shall include but shall not be limited to
lodging, food and local transportation to and from the place of lodging and the
training course location. The Buyer
shall reimburse the Seller for such expenses at the per diem rate currently
used by the Seller for its personnel.
16.6.2.2
Air Travel
Airline reservations for travel between the Buyer’s or Operator’s (as
applicable) designated training site and the Seller’s Training Centers or
Affiliated Training Centers shall be guaranteed and confirmed to the Seller’s
instructors in business class on the relevant Operator’s route network. When the use of such Operator’s route network
is not feasible or practical, the Buyer or such Operator (as applicable) shall
reimburse the Seller for business class travel for such journey on other
airlines.
16.6.2.3
Training Material
The Buyer or its Operator (as applicable) shall reimburse the Seller
the cost of shipment for the training material needed to conduct such courses.
16.6.2.4
Transportation
The Buyer shall be solely liable for any and all delay in the
performance of the training outside of the Seller’s or the Seller’s Affiliated
Training Centers associated with any transportation described in this
Clause 16.6 same where such training is provided at such external location
at the Seller’s request.
16.6.3
Training Equipment
Availability - Training at External Location
Training equipment necessary for course performance at any course
location other than the Seller’s Training Centers or Affiliated Training
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Centers or the facilities of the training provider selected by the
Seller shall be provided by the Buyer or its Operator (as applicable) 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 shall perform a flight crew
training course program (standard transition course or a cross crew
qualification program as applicable) for [***] of each Operator’s flight crews,
each of which shall consist of one (1) captain and one (1) first officer,
as defined in Appendix A to this Clause 16. The training manual used shall be the Seller’s
Flight Crew Operating Manual (FCOM), except for base Flight training, for which
such Operator’s customized FCOM shall be used.
16.7.1.2
Base Flight Training
16.7.1.2.1
Each Operator shall use its delivered Aircraft,
or any other aircraft operated by such Operator, for any base flight training,
which shall not exceed [***] per pilot, according to the related Airbus
training course definition.
16.7.1.2.2
In the event of it being necessary to ferry
the relevant Operator’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 training field shall not be deducted from
the base flight training allowance.
However, 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 relevant Operator’s qualified
pilots, in accordance with the Aviation Authorities’ regulations related to the
place of performance of the base flight training.
16.7.2
Flight Crew Line Initial
Operating Experience
16.7.2.1
To assist each Operator with initial
operating experience after Delivery of the first Aircraft to such Operator, the
Seller shall provide to the relevant Operator pilot instructor(s) as defined in
Appendix A to this Clause 16.
16.7.2.2
The relevant Operator shall reimburse the
expenses for [***]. Additional pilot
instructors can be provided at such Operator’s expense and upon conditions to
be mutually agreed upon.
[***] Confidential treatment
requested by AerCap Holdings N.V.
91
16.7.3
Instructor Cabin Attendants’ Familiarization Course
The Seller shall provide instructor cabin attendants’ course(s) to each
Operator’s cabin attendants, as defined in Appendix A to this
Clause 16, at one of the locations defined in Clause 16.3.1.
The instructor cabin attendants’ course, when incorporating the
features of the relevant Operator’s Aircraft, can be given at the earliest two
(2) weeks before the Delivery Date of such Operator’s first Aircraft.
16.7.4
Performance / Operations
Course
The Seller shall provide performance/operations training for each
Operator’s personnel as defined in Appendix A to this Clause 16.
The available courses are listed in the Seller’s applicable Training
Courses Catalog.
16.7.5
Transition Type Rating
Instructor (TRI) Course
The Seller shall provide transition type rating instructor (TRI)
training for each Operator’s flight crew instructors as defined in
Appendix A to this Clause 16.
This course provides the Operator’s instructors with the training in
flight instruction and synthetic instruction required to instruct on Airbus
aircraft.
16.7.6
During any and all flights performed in
accordance with this Clause 16.7, the relevant Operator shall bear full
responsibility for the aircraft upon which the flight is performed, including
but not limited to any required maintenance, all expenses such as fuel, oil or
landing fees and the provision of insurance in line with Clause 16.12.
16.8
Maintenance Training
The Seller shall provide maintenance training for each Operator’s
ground personnel as defined in Appendix A to this Clause 16.
The available courses are listed in the Seller’s applicable Training
Courses Catalog.
The relevant Operator shall provide the Seller with an attendance list
of trainees at the latest one (1) month before the start of the training
course.
The practical training provided in the frame of maintenance training is
performed exclusively on the training devices in use in the Seller’s Training
Centers or Affiliated Training Centers.
92
In the event of practical training on aircraft being requested by an
Operator (as applicable), such practical training can be organized with the
assistance of the Seller, in accordance with Clause 16.8.1 hereunder.
16.8.1
Practical Training on
Aircraft
If the practical training does not need to be covered by an EASA –
Part 147 (or equivalent) certificate, the Seller may assist the Operator
in organizing such practical training on aircraft, at the relevant Operator’s
expense.
In the event of an Operator requiring a full EASA – Part 147
certificate from the Seller, the practical training on aircraft shall be
conducted by the Seller, at the relevant Operator’s expense, in a EASA –
Part 145 facility approved and selected by the Seller.
In the event of an Operator requiring such practical training to be
conducted at the relevant Operator’s EASA – Part 145 (or equivalent)
approved facilities, such training shall be subject to prior approval by the
Seller of the facilities at which the training is to be conducted.
The provision of an instructor by the Seller for the practical training
shall be deducted from the trainee days allowance defined in Appendix A to
this Clause 16, subject to the conditions detailed in Paragraph 3.2
thereof.
The relevant Operator shall reimburse the expenses for said
instructor(s) in accordance with Clause 16.6.2.
16.8.2
Line Maintenance Initial
Operating Experience Training
In order to assist the relevant Operator during the entry into service of
the Aircraft, the Seller shall provide to each Operator maintenance
instructor(s) at the relevant Operator’s base as defined in Appendix A to
this Clause 16.
16.8.2.1
This line maintenance training shall cover
training in handling and servicing of Aircraft, flight crew / maintenance
coordination, use of Technical Data and any other activities that may be deemed
necessary after Delivery of the first Aircraft to the relevant Operator.
16.8.2.2
The relevant Operator shall reimburse the
expenses for said instructor(s) in accordance with Clause 16.6.2. Additional maintenance instructors can be
provided at the Operator’s expense.
16.9
Supplier and Propulsion
System Manufacturer Training
Upon the Buyer’s or its Operator’s request, the Seller shall provide to
the Buyer or its Operator (as applicable) the list of the maintenance and
93
overhaul training courses (the “Supplier Training Catalog”) provided by
major Suppliers and the applicable Propulsion Systems Manufacturer on their
products.
16.10
Training Aids for the Buyer’s
or its Operator’s Training Organisation
16.10.1
With respect to each Aircraft, the Seller
shall provide to the Buyer or its Operator (as applicable) training aids,
including the
Airbus Computer Based Training
(
Airbus CBT
), as used in the
Seller’s Training Centers, and the
Virtual
Aircraft
(
Walk around and
Component Location
), free of charge as defined in Appendix A to
this Clause 16.
The Airbus CBT and training aids supplied to the Buyer and its Operator
(as applicable) shall be similar to those used in the Seller’s Training Centers
for the training provided for the Buyer or its Operators (as applicable). The Airbus CBT and Virtual Aircraft in use at
the Seller’s Training Centers are revised on a regular basis and with respect
to each Aircraft, such revision shall be provided to the Buyer or its Operator
(as applicable) during the period when training courses provided under
Appendix A of this Clause 16 are performed for the Buyer or its relevant
Operator or up to three (3) years after delivery of the Airbus CBT or the
Virtual Aircraft to the Buyer or its relevant Operator (as applicable) under
this Agreement, whichever first occurs.
16.10.2
Delivery
16.10.2.1
With respect to each Aircraft, the Seller
shall deliver to the Buyer or its Operator (as applicable) the Airbus CBT and
training aids, as defined in Appendix A to this Clause 16, at a date
to be mutually agreed during the Training Conference.
16.10.2.2
The items supplied to the Buyer or its
Operator’s (as applicable) pursuant to Clause 16.10.1 shall be delivered
FCA Toulouse, Blagnac Airport. Title to
and risk of loss of said items shall pass to the Buyer upon delivery.
16.10.2.3
All costs related to transportation and
insurance of said items from the FCA point to the Buyer’s or its Operator’s (as
applicable) facilities shall be at the Buyer’s or its Operator’s (as
applicable) expense.
16.10.3
Installation of the Airbus
CBT
16.10.3.1.1
With respect to each Aircraft, before the
initial delivery of the Airbus CBT, as defined in Appendix A hereto, the
Seller shall provide to up to six (6) trainees of the Buyer or its
Operator, at the Buyer’s or its Operator’s facilities, the Airbus CBT
Administrator Course, as defined in Appendix C hereto.
94
To conduct the course, the workstations and/or “Servers”, as
applicable, shall be ready for use and shall comply with the latest “Airbus CBT
Workstation Technical Specification” or “Airbus CBT Server Technical
Specification”, as applicable (collectively “the Airbus CBT Technical
Specification”).
16.10.3.1.2
The Airbus CBT shall be installed by the
Buyer’s or its Operator’s (as applicable) personnel, who shall have followed
the Airbus CBT Administrator Course. The
Seller shall 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 by the Buyer’s or its Operator’s (as applicable)
personnel.
16.10.3.2
Upon the Buyer’s or its Operator’s (as
applicable) request and subject to conditions to be quoted by the Seller, the
Seller may assist the Buyer or its Operator (as applicable) with the initial
installation of the Airbus CBT at the Buyer’s or its Operator’s (as applicable)
facilities. Such assistance shall follow
notification in writing that the various components, which shall be in
accordance with the specifications defined in the Airbus CBT Technical
Specification, are ready for installation and available at the Buyer’s or is
Operator’s (as applicable) facilities.
16.10.3.3
The Buyer or its Operator (as applicable)
shall reimburse the expenses in accordance with Clause 16.6.2, for the
Seller’s personnel required at the Buyer’s or its Operator’s (as applicable)
facilities to conduct the Airbus CBT Administrator Course and/or provide
installation assistance.
16.10.4
Licences
16.10.4.1
Airbus CBT License
16.10.4.1.1
The Seller shall grant the Buyer a Licence
to use the Airbus CBT, under conditions defined in Appendix C to this
Clause 16.
16.10.4.1.2
Supply of sets of CBT Courseware, as defined
in Appendix C, and additional to those indicated in Appendix A, as
well as any extension to the Licence of such CBT Courseware, shall be subject
to terms and conditions to be mutually agreed.
16.10.4.2
Virtual Aircraft License
16.10.4.2.1
The Seller shall grant the Buyer a Licence
to use the Virtual Aircraft, under conditions defined in Appendix C to
this Clause 16. For the purpose of
such Licence, the term “Airbus CBT” as used in such License shall mean the “Virtual
Aircraft”.
16.10.4.2.2
Supply of sets of Virtual Aircraft Software,
as defined in Appendix C, and additional to those indicated in
Appendix A, as well as any extension to
95
the Licence of such Virtual Aircraft Software, shall 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, the Virtual Aircraft and any other
training aids provided under this Clause 16.10.
16.11
Proprietary Rights
The Seller’s training data and documentation, Airbus CBT, Virtual
Aircraft and training aids are proprietary to the Seller and/or its Affiliates
and/or its suppliers and the Buyer agrees not to disclose the content of the
courseware or any information or documentation provided by the Seller in
relation to training, in whole or in part, to any third party without the prior
written consent of the Seller.
16.12
Indemnities and Insurance
INDEMNIFICATION PROVISIONS AND INSURANCE REQUIREMENTS APPLICABLE TO
THIS CLAUSE 16 ARE AS SET FORTH IN CLAUSE 19.
THE BUYER OR ITS OPERATOR (AS APPLICABLE) WILL PROVIDE THE SELLER WITH
AN ADEQUATE INSURANCE CERTIFICATE PRIOR TO ANY TRAINING ON AIRCRAFT.
96
APPENDIX ”A” TO CLAUSE 16
TRAINING ALLOWANCE
For the avoidance of doubt, all quantities indicated below are the
total quantities granted for the [whole of the Buyer’s fleet under this
Agreement, unless otherwise specified.
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 including LVO (standard transition course or CCQ as applicable) free
of charge for [***] of the relevant Operator’s flight crews, which shall
consist of [***] per firmly ordered Aircraft.
1.2
Flight Crew Line Initial Operating
Experience
The Seller shall provide to the relevant Operator pilot instructor(s)
free of charge for a period of [***] pilot instructor [***] per Aircraft.
1.2.1
The maximum number of pilot instructors
present at any one time shall be limited to three (3) pilot instructors,
unless otherwise mutually agreed.
1.2.2
The Seller shall provide to the Buyer 3
instructor cabin attendants’ familiarization courses per firmly ordered
Aircraft.
1.3
Performance / Operations Course(s)
1.3.1
The Seller shall provide to the Buyer [***]
trainee days of performance / operations training free of charge for each
Initial Operator personnel per Initial Operator.
1.3.2
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 Operator one (1) transition type
rating instructor training (transition or CCQ, as applicable) free of charge
per Aircraft.
[***] Confidential treatment requested by AerCap Holdings N.V.
97
2
MAINTENANCE TRAINING
2.1
Maintenance Training Courses
2.1.1
The Seller shall provide to the Buyer [***]
trainee days of maintenance training free of charge for each Operator’s
personnel per Aircraft.
2.1.2
The above trainee days shall be used solely
for the Maintenance training courses as defined in the Seller’s applicable
Training Courses Catalog.
2.1.3
Within the trainee days allowance in
Paragraph 2.1.1 above, the number of Engine Run-up courses shall be
limited to one (1) course for three (3) trainees per firmly ordered
Aircraft and to a maximum of nine (9) courses in total.
3
TRAINEE DAYS ACCOUNTING
Trainee days are counted as follows:
3.1
For instruction at the Seller’s Training
Centers or Affiliated Training Centers:
one (1) day of instruction for one (1) trainee equals one
(1) trainee day. The number of
trainees originally registered at the beginning of the course shall be counted
as the number of trainees to have taken the course.
3.2
For instruction outside of the Seller’s
Training Centers or Affiliated Training Centers: 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.
3.3
For 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.
3.4
In the event of training being provided
outside of the Seller’s Training Centers or Affiliated Training Centers
specifically at the Seller’s request, Paragraph 3.1 hereabove shall be
applicable to the trainee days accounting for such training.
4
TRAINING AIDS FOR BUYER’S
TRAINING ORGANISATION
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
[***] Confidential treatment requested by AerCap Holdings N.V.
98
applicable). The detailed
description of the Airbus CBT shall 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.
99
APPENDIX ”B”
TO CLAUSE 16
MINIMUM RECOMMENDED QUALIFICATION
IN RELATION TO TRAINING REQUIREMENTS
The prerequisites listed below are the minimum recommended requirements
specified for Airbus training. If the
appropriate Aviation Authorities or the specific airline policy of the trainee
demand greater or additional requirements, they shall apply as prerequisites.
FLIGHT CREW Standard Transition Courses)
Captain prerequisites:
•
Previously qualified on JAR/FAR/CS 25
aircraft and commercial operations
•
Valid and Current Airline Transport Pilot
License (ATPLY)
•
Previous command experience
•
Fluency in English (able to write, read and
communicate at an adequately understandable level in English language)
•
Jet experience
•
Flight time:
•
1500 hours as pilot
•
1000 hours on JAR/FAR/CS 25 aircraft
•
200 hours experience as airline, corporate
or military transport pilot
First Officer prerequisites
:
•
Previously qualified on JAR/FAR/CS 25
aircraft and commercial operations
•
Aircraft and commercial operations valid and
current CPL (Commercial pilot license) with Instrument rating,
•
Fluency in English (able to write, read and
communicate at an adequately understandable level in English language)
•
Jet experience
•
Flight time:
100
•
500 hours as pilot
•
300 hours on JAR/FAR/CS 25 aircraft
•
200 hours experience as airline, corporate
or military transport pilot
If the Trainee does not speak English or is not fluent enough to follow
the Standard Transition course, he shall follow the Adapted language transition
and provide a translator as indicated by the Seller.
If no Jet experience, both CAPTAIN and/or FIRST OFFICER must follow
before entering the transition course, a dedicated “Jet Familiarization entry
level course”. Such course(s), if
required, shall be at the Buyer’s or the relevant Operator’s expense (as
applicable).
101
First type
rating course
This course is designed for Ab initio pilots who do not hold an
aircraft type rating on their pilot license
Pilot prerequisites
•
Valid and current CPL (commercial pilot
license)
•
Valid and current Instrument Rating on multi
engine aircraft
•
APTLY written examination
•
Fluency in English (able to write, read and
communicate at an adequately understandable level in English language)
•
Flight experience:
•
220 hours as pilot
•
100 hours as pilot in command (PlC)
•
25 hours on multi engine aircraft (up to 10
hours can be completed in a simulator)
In addition to the above conditions and in accordance to the JAR Flight
Crew Licensing (FCL) and the Airbus Training Policy, a pilot applying for a
first type rating must have followed either an approved JAR Multi Crew
Cooperation (MCC) program or regulatory equivalent or the “Airbus Entry Level
Training (ELT) program” (combined MCC and Jet familiarization course). Such course, if required, shall be at the
relevant Operator’s expense.
CCQ additional prerequisites
In addition to the prerequisites set forth for the Flight Crew Standard
Transition Course, both CAPTAIN and FIRST OFFICER must:
•
be qualified and current on the base
aircraft type
•
have 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 relevant Operator to:
102
•
select instructor candidate(s) with
airmanship and behaviour 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 personnel
prerequisites
The relevant Operator’s performance and operations personnel shall be
fluent in English (able to write, read and communicate at an adequately
understandable level in English language).
All further detailed prerequisites shall be provided by the Seller to
the Buyer and its Operator during the Training Conference, depending on the
type of training course(s) selected by the Buyer or its Operator as applicable.
Maintenance Personnel prerequisites
Fluency in English (understanding of English (able to write, read and
communicate at an adequately understandable level in English language) adequate
to be able to follow the training (If this is not the case, the Buyer or the
relevant Operator (as applicable) shall assign a minimum of one
(1) translator for eight (8) trainees).
Technical experience in the line or/and base maintenance activity of
commercial jet aircraft
Additional prerequisites for Aircraft Rigging Course
Qualification as line or line and base mechanic on one type of Airbus
aircraft family
Additional prerequisites for Maintenance Initial Operating Experience
Qualification as line or line and base mechanic on the concerned Airbus
aircraft type (for Course)
Maintenance Training Difference Courses
additional prerequisites
In addition to the prerequisites set forth for Maintenance Personnel,
the personnel shall be current and operating on the base aircraft
103
APPENDIX C
TO CLAUSE 16
LICENCE FOR
USE OF AIRBUS COMPUTER BASED TRAINING
104
LICENCE FOR
USE OF AIRBUS COMPUTER BASED TRAINING (AIRBUS CBT)
1
DEFINITIONS
1.1
For the purpose
of this Airbus CBT Licence (the “Airbus CBT Licence”), the
following definitions shall apply:
“
Agreement
” means the
aircraft purchase agreement dated December_, 2005 and entered into between the
Seller and the Buyer with respect to up to seventy (70) Airbus A320 formerly
aircraft including all exhibit appendices and letter agreements attached
thereto and as the same may be modified in writing by the parties thereto from
time to time.
1.1.1
“
Airbus
CBT
” means the combination of the Airbus CBT Software and the Airbus
CBT Courseware.
1.1.2
“
Airbus
CBT Courseware
”
means
the programmed instructions that provide flight crew and maintenance training.
1.1.3
“
Airbus
CBT Software
”
means
the system software that permits the use
of the Airbus CBT Courseware.
1.1.4
“
Student/Instructor
Mode
”
means the mode that
allows the Buyer to run the Airbus CBT Courseware.
1.1.5
“
Airbus
CBT Administrator Course
”
means
the training enabling the Buyer to load and use the Airbus CBT either on
stand-alone workstations or in a Server mode.
1.1.6
“
Network
”
means
the group of the Buyer’s
computers connected to each other through cables and allowing the transmission
of data and instructions, which can be used by all of the Buyer’s computers so
linked.
1.1.7
“
Server
”
means the computer dedicated to the administration of a Network and on which
the Airbus CBT is installed and can be reached through the Network.
1.1.8
“
Technical
Specification
” means either the “Airbus CBT Workstation Technical
Specification” or the “Airbus CBT Server Technical Specification”, as
applicable.
1.1.9
“
Intranet
”
means the Buyer’s private and local Network using the same technical protocols
as internet but which is not open to public connection.
1.1.10
“
Extranet
”
means the network constituted of an external lntranet, allowing communication
between the Buyer and certain defined external entities.
105
1.1.11
“
User
Guide
” means the documentation, which may be in electronic format,
designed to assist the Buyer to use the Airbus CBT.
1.1.12
“
Term
”
has the meaning ascribed thereto in Clause 4 of this Airbus CBT Licence.
1.2
Capitalised terms used herein and not
otherwise defined in this Airbus CBT Licence shall have the meaning assigned
thereto in this Agreement.
1.3
Any and all hardware required for the operation
of the Airbus CBT is not part of the Airbus CBT and shall be procured under the
sole responsibility of the Buyer. The
Seller shall not be responsible for any incompatibility of such hardware with
the Airbus CBT.
2
GRANT
The Seller grants the Buyer the right, pursuant to the terms and
conditions herein, to use the Airbus CBT for the Term of this Airbus CBT
Licence.
3
COPIES
Use of the Airbus CBT is limited to the number of copies delivered by
the Seller to the Buyer and to the medium on which the Airbus CBT is
delivered. No reproduction shall be made
without the prior written consent of the Seller. Notwithstanding the above, specific rights as
detailed hereafter shall be granted for respectively the Airbus CBT Software
and the Airbus CBT Courseware.
3.1
Airbus CBT Software
The Buyer shall be permitted to copy the Airbus CBT Software for
back-up and archiving purposes and for loading of the Airbus CBT Software
exclusively on the Buyer’s workstations or Server, as applicable. In such cases, the Buyer shall advise the
Seller in writing of the number of any copies made. Any other copy for any other purpose is
strictly prohibited.
3.2
Airbus CBT Courseware
The Buyer shall be permitted to copy the Airbus CBT Courseware for the
sole purpose of internal training of the Buyer’s personnel, explicitly such
copies shall be used by the Buyer’s employees only on their laptops for
training purposes.
In such cases, the Buyer shall advise the Seller in writing of the
number of copies made and shall cause its employees to strictly comply with the
conditions of use and the confidentiality provisions of this Airbus CBT
Licence. In particular, the Buyer’s
employees shall agree to use such copy for training purposes only and to make
no additional copy. The
106
Buyer shall further ensure that any copy provided to an employee is
returned to the Buyer either upon request by the Buyer or upon termination of
the employment of the employee. Any
other copy for any other purpose is strictly prohibited.
3.3
Any copy made by the Buyer shall be
performed under the sole responsibility of the Buyer The Buyer agrees to
reproduce the copyright and other notices as they appear on or within the
original media on any copies that the Buyer makes of the Airbus CBT Software or
the Airbus CBT Courseware. The Seller
shall not provide revision service for any copies made.
4
TERM
The rights under this Airbus CBT Licence shall be granted to the Buyer
for as long as the Buyer operates or owns the Seller’s Aircraft model to which
the Airbus CBT Software and the Airbus CBT Courseware apply (“the Term”). At the end of the Term, the Buyer shall
return the Airbus CBT and any copies thereof to the Seller, accompanied by a
note certifying that the Buyer has returned all existing copies.
5
PERSONAL ON-SITE LICENCE
The sole right granted to the Buyer under this Airbus CBT Licence is
the right to use the Airbus CBT. The
Airbus CBT Licence is personal to the Buyer, for its own internal use, and is
non-exclusive. Save with the prior
written consent of the Seller, the Buyer shall not assign or transfer this
Airbus CBT Licence to any third party.
6
CONDITIONS OF USE
6.1
The Buyer shall:
•
do its utmost to maintain the Airbus CBT and
the relating documentation in good working condition, in order to ensure the
correct operation thereof;
•
use the Airbus CBT in accordance with such
documentation and the User Guide, and ensure that the staff using the Airbus
CBT has received the appropriate training;
•
use the Airbus CBT exclusively in the
technical environment defined in the Technical Specification, except as
otherwise agreed in writing between the parties;
•
use the Airbus CBT for its own internal
needs and on its Network, when technically possible, only and exclusively on
the machine referenced and the site declared;
107
•
not transmit the Airbus CBT electronically
by any means, nor use the Airbus CBT on either the internet, Intranet or
Extranet;
•
not alter, reverse engineer, modify or adapt
the Airbus CBT, or integrate all or part of the Airbus CBT in any manner
whatsoever into another software product;
•
not correct the Airbus CBT, except that such
correction right may exceptionally be granted to the Buyer by the Seller in
writing;
•
not translate, disassemble or decompile the
Airbus CBT Software or create a software product derived from the Airbus CBT
Software;
•
not attempt to or authorise a third party to
discover or re-write the Airbus CBT source codes in any manner whatsoever;
•
not delete any identification or declaration
relative to the intellectual property rights, trademarks or any other
information related to ownership or intellectual property rights provided in
the Airbus CBT by the Seller;
•
not pledge, sell, distribute, grant,
sub-license (without the prior written consent of the Seller), lease, lend,
whether on a free-of-charge basis or against payment, or permit access on a
time-sharing basis or any other utilisation of the Airbus CBT, whether in whole
or in part, for the benefit of a third party;
•
other than pursuant to or an assignment or
transfer of this Airbus CBT Licence to which the Seller has given its express
consent, not permit any third party to use the Airbus CBT in any manner,
including but not limited to, any outsourcing, loan, commercialisation of the
Airbus CBT or commercialisation by merging the Airbus CBT into another software
or adapting the Airbus CBT, without prior written consent from the Seller.
The Seller shall be entitled, subject to providing reasonable prior
written notice thereof to the Buyer and subject to any such inspections not
disturbing the Buyer’s or the Operator’s (as applicable) work or operations, to
come and verify in the Buyer’s facilities whether the conditions specified in
this Airbus CBT License are respected.
This shall not however commit the responsibility of the Seller in any
way whatsoever.
6.2
Use of the Airbus CBT
Software
Notwithstanding Clause 6.1 above, the Buyer shall use the Airbus
CBT Software for the exclusive purpose of, for the student delivery mode:
108
(i)
rostering students for one or several
courses syllabi in order to follow students’ progression,
(ii)
rearranging courses syllabi or creating new
ones using available courseware modules.
However, the Seller disclaims any responsibility regarding any
course(s) that may be modified or rearranged by the Buyer.
6.3
Use of the Airbus CBT
Courseware
Notwithstanding Clause 5 above, the Buyer shall use the Airbus CBT
Courseware for the exclusive purpose of performing training of its personnel,
or of third party personnel contracted to perform maintenance work on the Buyer’s
Aircraft on behalf of the Buyer. Such
training shall be performed exclusively at the Buyer’s facility.
7
PROPRIETARY RIGHTS AND NON
DISCLOSURE
The Airbus CBT Software and Airbus CBT Courseware, the copyrights and
any and all other author rights, intellectual, commercial or industrial
proprietary rights of whatever nature in the Airbus CBT Software and Airbus CBT
Courseware are and shall remain with the Seller and/or its Affiliates or
suppliers, as the case may be. The
Airbus CBT Software and Airbus CBT Courseware and their contents are designated
as confidential. The Buyer shall not
take any commercial advantage by copy or presentation to third parties of the
Airbus CBT Software, the documentation, the Airbus CBT Courseware, and/or any
rearrangement, modification or copy thereof.
The Buyer acknowledges the Seller’s proprietary rights in the Airbus
CBT and undertakes not to disclose the Airbus CBT Software or Airbus CBT
Courseware or parts thereof or their contents to any third party without the
prior written consent of the Seller.
Insofar as it is necessary to disclose aspects of the Airbus CBT
Software and Airbus CBT Courseware to the Buyer’s personnel, such disclosure is
permitted only for the purpose for which the Airbus CDT Software and Airbus CBT
Courseware are supplied to the Buyer under the present Airbus CBT Licence.
8
WARRANTY
8.1
The Seller warrants that the Airbus CBT is
prepared in accordance with the state of art at the date of its
conception. Should the Airbus CBT be
found to contain any non-conformity or defect, the Buyer shall promptly notify
the Seller thereof and the sole and exclusive liability of the Seller under
this Clause 8.1 shall be to correct the same at its own expense.
109
8.2
THE WARRANTIES, OBLIGATIONS AND LIABILITIES
OF THE SELLER AND/OR ITS SUPPLIERS AND REMEDIES OF THE BUYER SET FORTH IN THE
AIRBUS CBT LICENCE ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY
WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND
LIABILITIES OF THE SELLER AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS AND REMEDIES
OF THE BUYER AGAINST THE SELLER AND/OR ITS SUPPLIERS EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN THE
AIRBUS CBT DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT LIMITED TO:
(A)
ANY WARRANTY AGAINST HIDDEN DEFECTS;
(B)
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS;
(C)
ANY IMPLIED WARRANTY ARISING FROM COURSE OF
PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
(D)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR
REMEDY, WHETHER CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE
SELLER’S AND/OR ITS SUPPLIERS’ NEGLIGENCE, ACTUAL OR IMPUTED; AND
(E)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR
REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY
OR PART THEREOF OR THE AIRBUS CBT DELIVERED HEREUNDER.
THE SELLER AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY,
HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON
-
CONFORMITY
OR DEFECT IN THE AIRBUS CBT DELIVERED UNDER THIS AGREEMENT.
FOR THE PURPOSES OF THIS CLAUSE 8.2, “THE SELLER” SHALL INCLUDE
THE SELLER, AND ITS AFFILIATES.
NOTHING IN THIS CLAUSE 8 SHALL CONSTITUTE A WAIVER, RELEASE OR
RENUNCIATION BY THE BUYER OR ANY AFFILIATE OR THE BUYER OF ANY EXPRESS
OBLIGATIONS OR LIABILITIES OWED BY ANY SUPPLIER OR ANY AFFILIATE OF THE SELLER
TO THE BUYER OR ITS AFFILIATE PURSUANT TO ANY AGREEMENT BETWEEN SUCH SUPPLIER
OR SUCH AFFILIATE OF THE SELLER AND THE BUYER OR ITS AFFILIATE.
110
THE PROVISIONS OF THIS CLAUSE 11 SHALL BE WITHOUT PREJUDICE TO THE
PROVISIONS OF CLAUSE 12.5, CLAUSE 14.9 AND CLAUSE 14.11 OF THIS AGREEMENT, CLAUSES 5.4 AND 6.9.6
OF EXHIBIT H TO THE AGREEMENT AND CLAUSE 11 OF ANY SOFTWARE LICENCE
AND THE OBLIGATIONS OF THE SELLER EXPRESSLY PRESERVED THEREUNDER;
111
17
EQUIPMENT
SUPPLIER PRODUCT SUPPORT
17.1
Equipment Supplier Product
Support Agreements
17.1.1
The Seller has obtained enforceable and
transferable product support agreements from Suppliers of Seller Furnished
Equipment listed in the Specification.
17.1.2
These agreements are based on the “World
Airlines Suppliers Guide” and include Supplier commitments as contained in the “
Supplier Product Support Agreements
” which
include the following provisions:
17.1.2.1
Technical data and manuals required to
operate, maintain, service and overhaul the Supplier Parts. Such technical data and manuals shall be
prepared in accordance with the applicable provisions of ATA Specification 2200
(iSpec2200) Information Standards for Aviation Maintenance (Revision 2005 or
latest applicable) including revision service and be published in the English
language. The Seller shall recommend
that software data, where applicable, be supplied in the form of an appendix to
the Component Maintenance Manual, such data shall be provided in compliance
with the applicable ATA Specification.
17.1.2.2
Warranties and guarantees including standard
warranties. In addition, landing gear
Suppliers shall provide service life policies for selected structural landing
gear elements.
17.1.2.3
Training to ensure efficient operation,
maintenance and overhaul of the Supplier Parts for the Buyer’s instructors,
shop and line service personnel.
17.1.2.4
Spares data in compliance with ATA 200/2000
Specification, initial provisioning recommendations, spare parts and logistic
service including routine and expedited deliveries.
17.1.2.5
Technical service to assist the Buyer with
maintenance, overhaul, repair, operation and inspection of Supplier Parts as
well as required tooling and spares provisioning.
17.2
Supplier Compliance
The Seller shall monitor Supplier compliance with support commitments
defined in the Supplier Product Support Agreements and shall take remedial
action together with the Buyer and/or Operators if requested by the Buyer
and/or Operators.
112
18
BUYER
FURNISHED EQUIPMENT
18.1
Administration
18.1.1
With respect to each Aircraft, without
additional charge, the Seller shall provide for the installation and testing of
those items of equipment which are identified in the Specification as being
furnished by the Buyer (“
Buyer Furnished
Equipment
” or “
BFE
”),
provided that they are referred to in the Airbus BFE Catalog of Approved
Suppliers by Products valid at time of ordering of the concerned BFE.
The Seller shall advise the Buyer of the dates by which, in the planned
release of engineering for the relevant Aircraft, the Seller requires a written
detailed engineering definition including the description of the dimensions and
weight of BFE, the information related to its certification and information
necessary for the installation and operation thereof. The Buyer shall furnish such detailed
description and information by the dates so specified. Such information, dimensions and weights
shall not thereafter be revised unless authorised by a Specification Change Notice.
The Seller shall also furnish in due time to the Buyer a schedule of
dates and indication of shipping addresses for delivery of BFE and, where
requested by the Seller, additional spare BFE to permit installation in the
relevant Aircraft and delivery of the relevant Aircraft in accordance with the
delivery schedule. The Buyer shall
provide such equipment by such dates in a serviceable condition, in order to
allow performance of any assembly, test, or acceptance process in accordance
with the industrial schedule.
The Buyer shall also provide, when requested by the Seller, at AIRBUS
FRANCE S.A.S. works in TOULOUSE (FRANCE) and/or at AIRBUS DEUTSCHLAND GmbH,
Division Hamburger Flugzeugbau Works in HAMBURG (FEDERAL REPUBLIC OF GERMANY)
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 Seller shall be entitled to refuse any
item of BFE which it considers incompatible with the Specification, the above
mentioned engineering definition or the certification requirements.
18.1.3
The BFE shall be imported into FRANCE or
into the FEDERAL REPUBLIC OF GERMANY by the Buyer under a suspensive customs
system (“Régime de l’entrepôt industriel pour fabrication coordonnée” or “Zollverschluss”)
without application of any French or German tax or customs duty, and shall be
Delivered Duty Unpaid (DDU) according to the Incoterms definition.
113
Shipping Addresses:
AIRBUS FRANCE S.A.S.
316 Route de Bayonne
31300 TOULOUSE
FRANCE
or
AIRBUS DEUTSCHLAND GmbH
Division Hamburger Flugzeugbau
Kreetslag 10
21129 HAMBURG
FEDERAL REPUBLIC OF GERMANY
as provided in Clause 18.1.
18.1.4
If the Buyer requests the Seller to supply
directly certain items which are considered as BFE according to the
Specification and if such request is notified to the Seller in due time in
order not to affect the Scheduled Delivery Month of the relevant Aircraft, the
Seller may agree to order such items subject to the execution of a
Specification Change Notice reflecting the effect on price, escalation
adjustment, and any other conditions of this Agreement. In such a case the Seller shall be entitled
to the payment of a reasonable handling charge and shall bear no liability in
respect of delay and product support commitments for such items which shall be
the subject of separate arrangements between the Buyer and the relevant
supplier.
18.2
Aviation Authorities’ Requirements
The Buyer is responsible for, at its expense, and warrants that BFE
shall be manufactured by a qualified supplier, shall meet the requirements of
the applicable Specification, shall comply with applicable requirements
incorporated by reference to the Type Certificate and listed in the Type
Certificate Data Sheet, shall be approved by the EASA and the Designated
Authorities 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.
114
18.3
Buyer’s Obligation and
Seller’s Remedies
18.3.1
Any delay or failure in complying with the
foregoing warranty or in providing the descriptive information or service
representatives mentioned in Clause 18.1 or in furnishing the BFE in
serviceable condition at the requested delivery date or in obtaining any
required approval for such equipment under the above mentioned Aviation
Authorities regulations may delay the performance of any act to be performed by
the Seller, and cause the Final Price of the relevant Aircraft to be adjusted
in accordance with the updated delivery schedule and to include in particular
the amount of the Seller’s additional reasonable costs, attributable to such
delay or failure such as storage, taxes, insurance and costs of out-of sequence
installation.
18.3.2
Further, in any such event, the Seller may:
(i)
select, purchase and install an equipment
similar to the involved one, in which event the Final Price of the affected
Aircraft shall also be increased by the purchase price of such equipment plus
reasonable costs and expenses incurred by the Seller for handling charges,
transportation, insurance, packaging and if so required and not already
provided for in the price of the relevant Aircraft for adjustment and
calibration; or
(ii)
if the BFE shall be so delayed by more than
thirty (30) days after the date specified by the Seller for the delivery
of such Buyer Furnished Equipment, or unapproved within thirty (30) days
after the date specified by the Seller for the delivery of such Buyer Furnished
Equipment (and in each case, unless the Seller is in a position to allow, with
no costs to the Seller, a longer delay period) deliver the relevant Aircraft
without the installation of such equipment, notwithstanding the terms of
Clause 7 insofar as it may otherwise have applied, and the Seller shall
thereupon be relieved of all obligations to install such equipment. The Buyer may also elect to have the relevant
Aircraft so delivered.
18.4
Title and Risk of Loss
Title to and risk of loss of any BFE shall 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) shall be with the Seller for as long as
such BFE shall be under the care, custody and control of the Seller.
[***] Confidential treatment requested by AerCap Holdings N.V.
115
18.5
Seller-Supplied Buyer
Furnished Equipment
18.5.1
General
With respect to each Aircraft, subject to the provisions of this
sub-Clause 18.5, the Buyer has the right to request the Seller, no later
than fifteen (15) months prior to the relevant Scheduled Delivery Month ,
to supply directly all (but not some) of the items that are referenced as Buyer
Furnished Equipment pursuant to the Standard Specification and Exhibit B “Baseline”
for all the Aircraft, such items to be procured from the Approved List as
referred to in sub-Clause 18.5.2 below.
If compliance with such request by the Seller in its judgment will not
affect the Delivery Date of the Aircraft referred to in Clause 9, then the
Seller will order such items as Seller-Supplied Buyer Furnished Equipment (“SSBFE”)
subject to the execution of an SCN amending the Exhibit B “Baseline” and
reflecting the effect on price and any other items and conditions of this
Agreement.
In the event that it becomes evident, before signing an SCN for any
SSBFE, that an Approved Supplier as referred to in sub-Clause 18.5.2 below
selected by the Buyer cannot meet the Seller’s required leadtimes for orders
and deliveries for the corresponding equipments, the Seller shall inform the
Buyer forthwith and both parties shall define a mutually agreeable alternative
solution.
Following agreement between the Buyer and the Seller as to the
specification and selection of the SSBFE, the Seller shall procure the selected
equipment directly from the respective Approved Suppliers as referred to in sub-Clause 18.5.2
below and shall be responsible for such SSBFE as if it were Seller Furnished
Equipment (“SFE”), and shall manage the logistic and handling process, testing
and installation of the SSBFE into the Aircraft. For the avoidance of doubt, the provisions of
sub-Clauses 18.2 and 18.3 will not therefore apply to SSBFE covered under
this sub-Clause 18.5 in the event of any delay in approval or delivery of
such SSBFE, provided that (i) such SSBFE has been ordered from the then
current Approved List as referred to in sub-Clause 18.5.2 below; and
(ii) the Buyer has duly selected SSBFE and executed the relevant SCN
within the leadtimes indicated by the Seller.
18.5.2
Price
For the purposes of selection of SSBFE as provided for in the above
paragraph, the Seller shall provide the Buyer with a list (the “Approved List”)
indicating BFE Suppliers (“Approved Suppliers”) and BFE items approved by
Airbus together with a basic catalogue price from which the Buyer shall make
its equipment selection. The Seller shall
provide the Buyer with such Approved List within three (3) months
following execution
116
of the Purchase Agreement, provided always that such Approved List
remains subject to revision by the Seller from time to time.
Upon Delivery and technical acceptance of each Aircraft, the Buyer
shall pay to the Seller the actual invoice amount paid by the Seller for the
SSBFE, it being understood and agreed that the Buyer shall negotiate directly
with the selected Approved Suppliers the amount of any price discounts or other
incentives that the respective suppliers may give for the direct benefit of the
Buyer.
The incorporation of BFE as SSBFE shall be subject to the payment by
the Buyer of handling charge limited to [***] of the sum of the actual invoice
amount paid by the Seller for such equipment less any price discounts
negotiated by the Buyer with the selected Approved Suppliers (and the Buyer
agrees to furnish full copies of any such discount agreements/arrangements to
the Seller at least forty (40) days prior to any Aircraft Delivery to
enable the Seller to calculate the appropriate handling charge). [***]. The product support provisions applicable to
the equipment that the Buyer shall have designated as SSBFE shall be as
negotiated between the Buyer and the relevant Approved Suppliers, and as
further negotiated between the Buyer and such suppliers.
For the avoidance of doubt, the Seller reserves the right to refuse to
supply as SSBFE any BFE items which the Buyer chooses to select from BFE
suppliers not listed in the then current Approved List.
[***] Confidential treatment requested by AerCap Holdings N.V.
117
19
INDEMNIFICATION
AND INSURANCE
19.1
Indemnities Relating to
Inspection, Technical Acceptance Process and Ground Training
19.1.1
The Seller shall, except in case of Gross
Negligence of the Buyer, its directors, officers, agents or employees, be
solely liable for and shall indemnify and hold harmless the Buyer, its
directors, officers, agents and employees, and its Affiliates from and against
all liabilities, claims, damages, costs and expenses (including legal expenses
and attorney fees) in respect of loss of or damage to the Seller’s property
and/or injury to or death of the directors, officers, agents or employees of
the Seller and/or from and against all liabilities, claims, damages, costs and
expenses (including legal expenses and attorney fees) for any damage caused by
the Seller to third parties arising out of or in any way connected with any
ground check, check or controls under Clause 6 or Clause 8 of this
Agreement and/or Ground Training Services and for any damage caused by the
Buyer and/or the Seller to third parties arising out of or in any way connected
with technical acceptance flights under Clause 8 of this Agreement.
19.1.2
The Buyer shall, except in case of Gross
Negligence of the Seller, its directors, officers, agents or employees, be
solely liable for and shall indemnify and hold harmless the Seller, its
Affiliates, and its Suppliers from and against all liabilities, claims,
damages, costs and expenses (including legal expenses and attorney fees) in
respect of loss of or damage to the Buyer’s property and/or injury to or death
of the directors, officers, agents or employees of the Buyer and/or from and
against all liabilities, claims, damages, costs and expenses (including legal
expenses and attorney fees) for any damage caused by the Buyer to third
parties, arising out of or in any way connected with any ground check, check or
controls under Clause 6 or Clause 8 of this Agreement and/or Ground
Training Services.
The indemnity in Clause 19.1.2 shall not apply with respect to the
Seller’s legal liability to any person other than the Buyer, its directors,
officers, agents or employees arising out of and an accident caused solely by a
product defect in the Aircraft.
19.2
Indemnities Relating to
Training on Aircraft after Delivery
19.2.1
The Buyer shall, except in the case of Gross
Negligence of the Seller, its directors, officers, agents and employees, be
solely liable for and shall indemnify and hold harmless the Seller, its
Affiliates, and its Suppliers from and against all liabilities, claims,
damages, costs and expenses (including legal expenses and attorney fees)
incident thereto or incident to successfully establishing the right to indemnification,
for injury to or death
118
of any person (including any of the Buyer’s
directors, officers, agents and employees utilising such training services, but
not directors, officers, agents and employees of the Seller) and/or for loss of
or damage to any property and/or for loss of use thereof arising (including the
aircraft on which the training services are performed), arising out of or in
any way connected to the performance of any Aircraft Training Services.
19.2.2
The foregoing indemnity shall not apply with
respect to the Seller’s legal liability towards any person other than the
Buyer, its directors, officers, agents or employees arising out of an accident
caused solely by a product defect in the Aircraft delivered to and accepted by
the Buyer hereunder.
19.3
Indemnities relating to
Seller Representatives Services
19.3.1
The Buyer shall, except in case of Gross
Negligence of the Seller, its directors, officers, agents or employees, be
solely liable for and shall indemnify and hold harmless the Seller, its
Affiliates, and its Suppliers from and against all liabilities, claims,
damages, costs and expenses (including legal expenses and attorney fees) for
all injuries to or death of persons (excepting injuries to or death of the
Seller’s Representatives) and for loss of or damage to property and/or loss of
use thereof howsoever arising out of or in connection with the Seller’s
Representatives’ Services.
19.3.2
The Seller shall, except in case of Gross
Negligence of the Buyer, its directors, officers, agents or employees, be
solely liable for and shall indemnify and hold harmless the Buyer, its directors,
officers, agents and employees, and its Affiliates from and against all
liabilities, claims, damages, costs and expenses (including legal expenses and
attorney fees) for all injuries to or death of the Seller’s Representatives in
connection with the Seller’s Representatives’ Services.
19.4
Insurances
For all training periods on aircraft, the Buyer shall cause the Seller,
as defined in Clause 19.5 hereof, its Affiliates and its Suppliers to be
named as additional insureds under the Buyer’s Comprehensive Aviation Legal
Liability insurance policies, including War Risks and Allied Perils, to the
extent of the Buyer’s undertaking set forth in Clause 19.2.1. With respect to the Buyer’s Hull All Risks
and Hull War Risks insurances and Allied Perils, the Buyer shall cause the
insurers of the Buyer’s hull insurance policies to waive all rights of
subrogation against the Seller, as defined in Clause 19.5 hereof, its
Affiliates and its Suppliers to the extent of the Buyer’s undertaking set forth
in Clause 19.2.1.
Any applicable deductible shall be borne by the Buyer. With respect to the above policies, the Buyer
shall furnish to the Seller, not less than seven
119
(7) Working Days prior to the start of any such training period,
certificates of insurance, in English, evidencing the limit of liability cover
and period of insurance in a form acceptable to the Seller from the Buyer’s
insurance broker(s) certifying that such policies have been endorsed as follows:
(i)
under the Comprehensive Aviation Legal
Liability Insurances, the Buyer’s policies are primary and non-contributory to
any insurance maintained by the Seller;
(ii)
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
(iii)
under any such cover, all rights of
subrogation against the Seller, its Affiliates and its Suppliers have been
waived to the extent of the Buyer’s undertaking and specifically referring to
Clause 19.2.1 and to this Clause 19.4.
19.5
Seller and Affiliates
For the purposes of this Clause 19, “the Seller and its Affiliates”
include the Seller, its subsidiaries, Airbus North America Customer Services,
Hua-Ou Airbus - CASC Aviation Training Center, its shareholders, each of
the sub-contractors, the assignees of each of the foregoing, and their
respective directors, officers, agents and employees.
19.6
Notice of Claims
If any claim is made or suit is brought against either party (or its
respective directors, officers, agents or employees) for damages for which
liability has been assumed by the other party in accordance with the provisions
of this Agreement, the party against which a claim is so made or suit is so
brought shall promptly give notice to the other party, and the latter shall
(unless otherwise requested by the former party against which a claim is so
made or suit is so brought, in which case the other party nevertheless shall
have the right to) assume and conduct the defence thereof, or effect any
settlement which it, in its opinion, deems proper.
19.7
Participation Agreement
19.8
With respect to each Aircraft, the
provisions of Clause 19 are subject to the provisions of Clause 3 of
any Participation Agreement.
120
20
TERMINATION
20.1
Termination for Insolvency
In the event [***]:
(a)
makes a general assignment for the benefit
of creditors or becomes insolvent;
(b)
flies a voluntary petition in bankruptcy;
(c)
petitions for or acquiesces in the
appointment of any receiver, trustee or similar officer to liquidate or
conserve its business or any substantial part of its assets;
(d)
commences under the laws of any competent
jurisdiction any proceeding involving its insolvency, bankruptcy, readjustment
of debt, liquidation or any other similar proceeding for the relief of
financially distressed debtors;
(e)
becomes the object of any proceeding or
action of the type described in (c) or (d) above and such proceeding
or action remains undismissed or unstayed for a period of at least
[***] days; or
[***], to the full extent permitted by law, by written notice, terminate
all or part of this Agreement.
20.2
Termination for Non-Payment
of Predelivery Payments
If for any Aircraft the Buyer fails to make any Predelivery Payments at
the time, in the manner and in the amount specified in Clause 5.3 and such
delay continues for [***] Working Days the Seller may, by written notice,
terminate all or part of this Agreement with respect to undelivered Aircraft.
20.3
Termination for Failure to
Take Delivery
If the Buyer fails to comply with its obligations as set forth under
Clause 8 and/or Clause 9, or fails to pay the Final Price of the
Aircraft, the Seller shall have the right to put the Buyer on notice to do so
within a period of [***] Working Days after the date of deemed delivery of such
notification.
If the Buyer has not cured such default within such period of [***]
Working Days after the date of deemed delivery of such notification, the Seller
may, by written notice, terminate all or part of this Agreement with respect to
undelivered Aircraft.
[***] Confidential treatment requested by AerCap Holdings N.V.
121
All costs referred to in Clause 9.2.3 and relating to the period
between the notified date of delivery (as referred to in Clause 9.2.3) and
the date of termination of all or part of this Agreement shall be borne by the
Buyer.
[***]
20.4
Not Applicable
20.5
General
20.5.1
To the full extent permitted by law, the
termination of all or part of this Agreement pursuant to Clauses 20.1,
20.2, 20.3 and 20.4 shall become effective immediately upon receipt by the
[***] of the notice of termination sent by the [***] without it being necessary
for [***] to take any further action or to seek any consent from the [***] or
any court having jurisdiction.
20.5.2
The right for [***] under Clause 20.1
and for the Seller under Clauses 20.2, 20.3, and 20.4 to terminate all or
part of this Agreement shall be without prejudice to any other rights and
remedies available to [***] to seek termination of all or part of this Agreement
before any court having jurisdiction pursuant to any failure by the [***] to
perform its obligations under this Agreement.
20.5.3
If [***] taking the initiative of
terminating this Agreement decides to terminate part of it only, the notice
sent to the [***] shall specify those provisions of this Agreement which shall
be terminated.
20.5.4
In the event of termination of this
Agreement following a default from the Buyer, including but not limited to a
default under Clauses 20.1, 20.2, 20.3 and 20.4, the Seller without
prejudice to any other rights and remedies available under this Agreement or by
law, shall retain all Predelivery Payments, commitment fees, option fees and
any other moneys paid by the Buyer to the Seller under this Agreement and corresponding
to the Aircraft, services, data and other items covered by such termination.
20.5.5
In the event of termination of this
Agreement by the Buyer following an event relative to the Seller under
sub-Clause 20.1, the Seller, without prejudice to any other rights and
remedies available under this Agreement or by law, shall reimburse an amount
equal to all Predelivery Payments paid by the Buyer to the Seller under this
Agreement and corresponding to any undelivered Aircraft covered by such
termination, together with interest thereon at [***] for the period from date
of receipt to each such predelivery payments, commitment fees, option fees and
any other monies paid by the Buyer to the Seller under this Agreement to date
of reimbursement.
[***] Confidential treatment
requested by AerCap Holdings N.V.
122
21
ASSIGNMENTS
AND TRANSFERS
21.1
Assignments by Buyer
Except as hereinafter provided, the Buyer may not sell, assign, novate
or transfer its rights and obligations under this Agreement to any person
without the prior written consent of the Seller, which shall not unreasonably
be withheld.
21.1.1
Assignments for Predelivery
Financing
The Buyer shall be entitled to assign its rights under this Agreement at
any time in order to provide security for the financing of any Predelivery
Payments subject to such assignment being in form and substance acceptable to
the Seller. [***]
21.1.2
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 acceptable to the
Seller.
21.2
Assignments by Seller
[***]
21.2.1
Transfer of Rights and
Obligations upon Restructuring
In the event that the Seller is subject to a corporate restructuring
(the “Restructuring”) having as its object the transfer of, or succession by
operation of law in, all or a substantial part of its assets and liabilities,
rights and obligations, including those existing under this Agreement, to a
person (“
the Successor
”) under the
control of the ultimate controlling shareholders 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
shall be completed without consent of the Buyer following notification by the
Seller to the Buyer in writing, provided that the Buyer’s rights and obligations
are not adversely affected by such Restructuring. The Buyer recognises that succession of the
Successor to this Agreement by operation of law, which is valid under the law
pursuant to which that succession occurs, shall be binding upon the Buyer.
21.3
Assignment in Case of Lease
or Sale
21.3.1
In the context of the lease or sale of any
Aircraft by the Buyer, and subject to the consent of the Seller, which consent
shall not be unreasonably
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123
withheld (and shall be granted where the conditions referred to in
clause 21 .3.2 are satisfied):
(Acceptance) and 9 (Delivery) to any such Operator or purchaser; and
(a)
the Buyer may also sub-licence to any such
Operator its rights under any Airbus CBT Licence or Software Licence entered
into pursuant to this Agreement; and
(b)
for the purposes of such assignment,
transfer or delegation, the Buyer may disclose to the Operator or purchaser the
provisions of clauses 8,9, 12, 13, 14, 15, 16, 17, 19 and 21 in so far as
the same relate to such assignment, transfer or delegation
21.3.2
Any assignment under this Clause 21 .3
shall be subject to all of the following conditions:
(1)
that the assignee agrees , in a form
reasonably satisfactory to the Seller (and Seller agrees that execution by the
Buyer and an Operator of an Assignment of Airframe Warranty and Support Rights
and a Participation Agreement will fulfill this requirement), to be bound by all
relevant terms, conditions and limitations of this Agreement (including without
limitation Clauses 12, 13, 14, 15, 16, 17, 19 and 21), and
(2)
that no assignment or transfer by the Buyer
pursuant to this Clause 21 .3 shall subject the Seller to any liability,
increased risk, costs or expenses to which it would not otherwise be subject
hereunder or modify in any way the Seller’s contractual rights hereunder, and
(3)
no further assignment or transfer is
permitted except in accordance with the provisions of this sub-Clause.
Provided that the above conditions are met, the Buyer shall be released
from the obligations and liabilities of the Buyer so assumed by the Buyer’s
assignee.
124
22
MISCELLANEOUS
PROVISIONS
22.1
Data Retrieval
The Buyer shall provide the Seller, as the Seller may reasonably
request, 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
efficient and coordinated survey of all reliability, maintainability,
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 shall be given
in writing either by personal delivery to an authorized representative of the
party to whom the same is given or by registered mail (return receipt
requested), express mail (tracking receipt requested) or by facsimile, to be
confirmed by subsequent registered mail, and the date upon which any such
notice or request is so personally delivered or if such notice or request is
given by registered mail, the date upon which it is received by the addressee
or, if given by facsimile, the date upon which it is sent with a correct
confirmation printout, provided that if such date of receipt is not a Working
Day notice shall be deemed to have been received on the first following Working
Day, shall be deemed to be the effective date of such notice or request.
Seller’s address for notices is:
AIRBUS
Attention: Vice-President
Contracts
[***]
France Fax: [***]
Tel : [***]
Buyer’s address for notices is:
AERVENTURE
Attention: Company Secretary
[***]
Ireland
Fax: [***]
Tel : [***]
[***] Confidential treatment requested by AerCap Holdings N.V.
125
or such other address or such other person as the party receiving the
notice or request may reasonably designate from time to time.
22.3
Waiver
The failure of either party to enforce at any time any of the
provisions of this Agreement, or to exercise any right herein provided, or to
require at any time performance by the other party of any of the provisions
hereof, shall in no way be construed to be a present or future waiver of such
provisions nor in any way to affect the validity of this Agreement, or any part
thereof or the right of the other party thereafter to enforce each and every
such provision. The express waiver
(whether made one (1) or several times) by either party of any provision,
condition or requirement of this Agreement shall not constitute a waiver of any
future obligation to comply with such provision, condition or requirement.
22.4
Law and Jurisdiction
22.4.1
This Agreement shall be governed by and
construed in accordance with the laws of England.
Any dispute arising out of or in connection with this Agreement shall
be within the exclusive jurisdiction of the
Courts of England.
22.5
The Seller appoints
Airbus UK Ltd
, New Filton House, Filton,
Bristol, United Kingdom (fax: [***]) as its process agent to be served with
court documents relating to this Agreement.
The Seller agrees that if its process agent does not notify it about
any court documents served on it, this will not affect the proceedings
concerned. The Seller shall forthwith
notify the Buyer of any change in the identity or address of its process agent.
The Seller agrees that court documents can be served on its process
agent by faxing, posting or hand delivery a copy to such process agent at the
address above.
The Buyer appoints Norose Notices Limited, Attention of Director of
Administration at the address of its registered office from time to time
(currently Kempson House, Camomile Street, London EC3A 7AN) Reference AA91745 as
its process agent to be served with court documents relating to this Agreement.
The Buyer agrees that if its process agent does not notify it about any
court documents served on it, this will not affect the proceedings
[***] Confidential treatment requested by AerCap Holdings N.V.
126
concerned. The Buyer shall
forthwith notify the Seller of any change in the identity or address of its
process agent.
The Buyer agrees that court documents can be served on its process
agent by faxing, posting or hand delivery a copy to such process agent at the
address above.
22.6
Contracts (Rights of Third
Parties) Act
1999
The parties do not intend that any term of this Agreement shall be
enforceable solely by virtue of the Contracts (Rights of Third Parties) Act
1999 by any person who is not a party to this Agreement.
Subject only to Clause 21, the parties may rescind, vary, waive,
release, assign, novate or otherwise dispose of all or any of their respective
rights or obligations under this Agreement in accordance with the terms hereof
without the consent of any person who is not party to this Agreement.
22.7
International Supply
Contract
The Buyer and the Seller recognise 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 herein were arrived at in
consideration of, inter alia, all the provisions hereof specifically including
all waivers, releases and renunciations by the Buyer set out herein.
The Buyer and the Seller hereby also agree that the United Nations
Convention on Contracts for the International Sale of Goods will not apply to
this transaction.
22.8
Severability
In the event that any provision of this Agreement should for any reason
be held ineffective, the remainder of this Agreement shall remain in full force
and effect. To the extent permitted by
applicable law, each party hereto hereby waives any provision of law which
renders any provision of this Agreement prohibited or unenforceable in any
respect.
22.9
Alterations to Contract
This Agreement contains the entire agreement between the parties with
respect to the subject matter hereof and supersedes any previous
understandings, commitments or representations whatsoever oral or written in
respect thereto. This Agreement shall
not be varied except by an instrument in writing of date even herewith or
subsequent hereto executed by both parties or by their duly authorised
representatives.
127
22.10
Language
All correspondence, documents and any other written matters in
connection with this Agreement shall be in English.
22.11
Counterparts
This Agreement has been executed in two (2) original copies. Notwithstanding the above, this Agreement may
be executed by the parties in separate counterparts, each of which when so
executed and delivered shall be an original, but all such counterparts shall
together constitute one and the same Agreement.
22.12
Confidentiality
This Agreement including any Exhibits, other documents or data
exchanged between the Buyer and the Seller for the fulfilment 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 its members and their shareholders
(such members and their shareholders to sign or have signed Non Disclosure
agreements) or to professional advisors for the purpose of implementation
hereof.
In particular, both parties agree:
•
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.
•
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 [***]. 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 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:
(i)
the contact details of the Receiving Party,
(ii)
the extent of the Personal Information
subject to disclosure,
(iii)
[***]
[***] Confidential treatment
requested by AerCap Holdings N.V.
128
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 agree on the terms and conditions of the document to be filed or
disclosed.
The provisions of this Clause 22.12 shall survive any termination
of this Agreement for a period of five (5) years.
129
IN WITNESS WHEREOF
this Agreement was entered into the day and
year first above written.
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For and on behalf of
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For and on behalf of
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AERVENTURE Limited
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AIRBUS S.A.S.
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Name:
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Name:
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Title:
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Title
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Name:
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Name:
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Title: Head of Trading
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Title: SALES DIRECTOR
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130
EXHIBIT A-1
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CUSTOMER:
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AerVenture
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|
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AIRCRAFT TYPE:
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A319-l00
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|
|
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A319-100 baseline Specification
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|
|
|
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Standard Specification 5.0
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issue 1
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Catalogue
item
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TITLE
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COMMENTS
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|
|
|
|
|
|
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02.10.111
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FAA
Type Design items
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03.20.220
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MTOW
at 70 t
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Included
in airframe price
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|
|
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|
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23.11.111
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Full
Provisions for 2 HF
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|
|
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23.13.101
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Installation
of a 3rd Radio Management Panel
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|
|
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23.32.011
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|
Boarding
Music / Announcement System
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|
Equipment
BFE
|
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23.33.010
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|
Additional
System Provisions for PES
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|
|
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23.36.009
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|
System
Provisions for Video Monitor system
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PSU
mounted
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|
|
|
|
|
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25.11.108
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Fourth
Occupant Seat in Cockpit
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Cabin
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Cabin
Configuration all Y/C 144 Pax including:
•
Galley Configuration G1 and G5
•
Installation of Lavatory A, D and E
(Vacuum)
•
Handicapped
Provisions Lavatory A and E
•
Stretcher Loading Capability Lavatory D
•
Direct
View Windscreen
•
Swivel Type Cabin Attendant Seat
•
Double Bench CAS
aft of Lavatory E
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Cabin
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Cabin
Emergency Equipment Installation
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in
cabin layout price
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Cabin
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Interior
Colours
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in
cabin layout price
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34.43.200
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TCAS
installation
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Equipment
BFE
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34.53.109
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System
provisions for second ADF System
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|
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|
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|
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35.20.010
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Installation
of 4 mask oxygen pax boxes
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|
|
|
|
|
|
|
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Total price, per aircraft
in Delivery Conditions
[***]
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USD
[***]
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[***] Confidential treatment requested by AerCap Holdings N.V.
131
EXHIBIT A-2
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CUSTOMER:
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AerVenture
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AIRCRAFT TYPE:
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A320-200
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A320-200 baseline Specification
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|
|
|
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Standard Specification 6.0
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issue 1
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Catalogueitem
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TITLE
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COMMENTS
|
|
|
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|
|
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02.10.111
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FAA
Type Design items
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|
|
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|
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03.20.200
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MTOW
at 77 t
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|
Included
in airframe price
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|
|
|
|
|
|
|
23.11.111
|
|
Full
Provisions for 2 HF
|
|
|
|
23.13.101
|
|
Installation
of a 3rd Radio Management Panel
|
|
|
|
23.32.011
|
|
Boarding
Music / Announcement System
|
|
|
|
23.33.010
|
|
Additional
System Provisions for PES
|
|
|
|
23.36.009
|
|
System
Provisions for Video Monitor system
|
|
PSU
mounted
|
|
|
|
|
|
|
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25.11.108
|
|
Fourth
Occupant Seat in Cockpit
|
|
|
|
|
|
|
|
|
|
Cabin
|
|
Cabin
Configuration all Y/C 179 Pax including:
•
Galley Configuration G1 and G5,
provisions for G2
•
Installation of Lavatory A, D and E
(Vacuum)
•
Handicapped Provisions Lavatory A and E
•
Stretcher Loading Capability Lavatory D
•
Direct View Windscreen
•
Swivel Type Cabin Attendant Seat
•
Double Bench CAS aft of Lavatory E
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|
|
|
|
|
|
|
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|
Cabin
|
|
Cabin
Emergency Equipment Installation
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|
in
cabin layout price
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Cabin
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|
Interior
Colours
|
|
in
cabin layout price
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|
|
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|
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34.43.200
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|
TCAS
installation
|
|
Equipment
BFE
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34.53.109
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|
System
provisions for second ADF System
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|
|
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35.20.010
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Installation
of 4 Mask Oxygen Pax Boxes
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|
|
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|
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Total price, per aircraft
in Delivery Conditions
[***]
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USD
[***]
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[***] Confidential treatment requested by AerCap Holdings N.V.
132
EXHIBIT B
FORM OF SCN
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For
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SPECIFICATION CHANGE NOTICE
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SCN
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Number
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(SCN
)
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Issue
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Dated
|
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Page
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Title:
|
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Description
|
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Remarks /
References
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Specification changed by this SCN
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This SCN requires prior or concurrent acceptance of rite following
SCN (s):
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Price per aircraft
|
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US
DOLLARS:
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|
|
|
|
AT
DELIVERY CONDITIONS:
|
|
|
|
|
|
|
|
This
change wilt be effective on
|
AIRCRAFT
N
|
and
subsequent.
|
|
|
|
|
|
Provided
approval is received by
|
|
|
|
|
|
|
|
Buyer approval
|
Seller approval
|
|
|
|
|
|
|
By
:
|
By
:
|
|
|
|
|
|
|
|
|
|
|
Date
:
|
Date
:
|
|
133
EXHIBIT C
PART 1 – AIRFRAME PRICE REVISION FORMULA
1.1
Basic Prices
The Basic Prices quoted in Clause 3.2 hereto are subject to
adjustment for changes in economic conditions as measured by data obtained from
the US Department of Labor, Bureau of Labor Statistics and in accordance with
the provisions hereof.
1.2
Base Period
The Basic Prices have been established in accordance with the average
economic Conditions prevailing in December 2003, January 2004,
February 2004 and corresponding to a theoretical delivery in
January 2005 as defined by “ECIb” and “lCb” index values indicated
hereafter.
“ECIb” and “ICb” index values indicated hereof shall not be subject to
any revision.
1.3
Indexes
Labor Index: “Employment Cost Index for Workers in Aerospace
manufacturing” hereinafter referred to as “ECI SIC 3721W”, quarterly published
by the US Department of Labor, Bureau of Labor Statistics, in “NEWS”, and found
in: Table 6, “WAGES and SALARIES (not seasonally adjusted): Employment Cost Indexes for Wages and
Salaries for private industry workers by industry and occupational group”, or
such other name that may be from time to time used for the publication title
and/or table, (Aircraft manufacturing, standard industrial classification code
SIC 3721, base month and year June 1989 =
100).
The quarterly value released for a certain month (March, June,
September and December) shall be the one deemed to apply for the two
(2) preceding months.
Index code for access on the Web site of the US Bureau of Labor
Statistics: ECU28102i.
Material Index: “Industrial Commodities” (hereinafter referred to as “IC”)
as published in “PPI Detailed report” (found in Table 6. “Producer price
indexes and percent changes for commodity groupings and individual items not
seasonally adjusted” or such other names that may be from time to time used for
the publication title and/or table). (Base Year 1982 = 100).
134
Index code for access on the Web site of the US Bureau of Labor
Statistics: WPU03THRU15.
1.4
Revision Formula
Pn = (Pb + F) ([***]ECIn/ECIb + [***]ICn/ICb)
Where:
Pn:
Basic Price as revised at delivery of the
Aircraft
Pb:
Basic Price at economic conditions
December 2003, January 2004, February 2004 averaged
(January 2005 delivery conditions)
F:
([***] x N x Pb)
Where N = the calendar year of delivery of the Aircraft minus 2005.
ECIn:
the arithmetic average of the latest
published values of the [***] available at the date of Aircraft delivery for
the 11
th
, 12
th
and 13
th
month prior to the
month of delivery of the Aircraft
ECIb:
[***] for December 2003,
January 2004, February 2004 averaged (=
[***]
)
ICn:
the arithmetic average of the latest
published values of the IC-Index available at the date of Aircraft delivery for
the 11
th
, 12
th
and 13
th
month prior to the
month of Aircraft delivery.
ICb:
IC-index for December 2003, January 2004,
February 2004 averaged (=
[***]
)
1.5
General Provisions
1.5.1
Rounding
The Labor index average and the Materiel Index average shall be
computed to the first decimal. If the
next succeeding place is five (5) or more, the preceding decimal place shall
be raised to the next higher figure.
Each quotient shall be rounded to the nearest then thousandth (4
decimals). If the next succeeding place
is five (5) or more, the preceding decimal place shall be raised to the
next higher figure.
The final factor shall be rounded to the nearest ten thousandth (4
decimals).
[***] Confidential treatment requested by AerCap Holdings N.V.
135
The final price shall be rounded to the nearest whole number (0.5 or more
rounded to 1).
1.5.2
Substitution of Indexes
In the event that:
(i)
the U.S. Department of Labor substantially
revises the methodology of calculation of the Labor or the Material Index as
used in this Aircraft Price Revision Formula, or
(ii)
the U.S. Department of Labor discontinues,
either temporarily or permanently, such Labor and Material Index, or
(iii)
the data samples used to calculate such
Labor and Material Index are substantially changed,
The Seller shall select a substitute index for inclusion in this
Aircraft Price Revision Formula (the “
Substitute
Index
”).
The Substitute Index shall reflect as closely as possible [***].
As a result of this selection of the Substitute Index, the Seller shall
make an appropriate adjustment to this Aircraft Price Revision Formula, to
combine the successive utilization of the original Labor or Material Index (as
the case may be) and of the Substitute Index.
1.5.3
Final Index Values
The index values as defined in Clause 1.4. hereof shall be
considered final and no further adjustment to the basic prices as revised at
delivery of the Aircraft shall be made after Aircraft delivery for any
subsequent changes in the published index values.
PART 2 – PROPULSION SYSTEMS PRICE REVISION
FORMULA
CFM Price Revision Formula
1
Reference Price of the
Propulsion Systems
The Reference Price for a set of two (2) CFM INTERNATIONAL
CFMS6-5B is:
|
|
CFM 56-5B6/P
|
|
US$[***]
|
|
|
CFM 56-5B4/PUS$[***]
|
|
|
This Reference Price is subject to adjustment for changes in economic
conditions as measured by data obtained from the US Department of
[***] Confidential treatment requested by AerCap Holdings N.V.
136
Labor, Bureau of Labor Statistics and in accordance with the provisions
of Clauses 4 and 5 hereof.
2
Reference Period
The Reference Price has been established in accordance with the
economic conditions prevailing for a theoretical delivery in January 2002
as defined by [***].
3
Indexes
Labor Index: “Employment Cost
Index for Workers in Aerospace manufacturing” hereinafter referred to as “
ECI SIC 3721W
”,
quarterly published by the US Department of Labor, Bureau of
Labor Statistics, in “NEWS”, and found in:
Table 6, “WAGES and SALARIES (not seasonally adjusted): Employment Cost Indexes for Wages and
Salaries for private industry workers by industry and occupational group”, or
such other name that may be from time to time used for the publication title
and/or table, (Aircraft manufacturing, standard industrial classification code
SIC 3721, base month and year June 1989 = 100.)
The quarterly value released for a certain month (March, June,
September and December) shall be the one deemed to apply for the two
(2) preceding months.
Index code for access on the Web site of the US Bureau of Labor
Statistics: ECU28102i
Material Index
: “Industrial Commodities”
(hereinafter referred to as “
IC
”)
as published in “ Producer Price Indexes detailed report” (found in
Table 6. “Producer price indexes and percent changes for commodity
groupings and individual items not seasonally adjusted” or such other names
that may be from time to time used for the publication title and/or table).
(Base Year 1982 = 100).
Index code for access on the Web site of the US Bureau of Labor
Statistics: WPU03THRU15.
4
Revision Formula
Pn = (Pb + F) x
CPIn/ [***]
Where:
Pn:
revised Reference Price at delivery of the
Aircraft
Pb:
Reference Price at delivery conditions
January 2002
[***] Confidential treatment requested by AerCap Holdings N.V.
137
F:
([***] x N x Pb)
where N
= the calendar year of delivery of the
Aircraft minus2002
CPIn:
The Composite Price Index (CPI) applicable
for the month of Aircraft delivery. This
Composite Price Index is composed as follows:
CPIn =
[***] x ECln + [***] x ICn
Where:
ECIn:
The arithmetic average of the [***]
available at the delivery date of the Aircraft for the 11
th
, 12
th
and 13
th
month prior to the month of Aircraft delivery
lCn:
The arithmetic average of the IC-Index
available at the delivery date of the Aircraft for the 11
th
, 12
th
and 13
th
month prior to the month of Aircraft delivery.
5
General Provisions
5.1
Roundings
(i)
The Material index average (ICn) shall be
rounded to the nearest second decimal place and the labor index average (ECIn)
shall be rounded to the nearest first decimal place.
(ii)
CPIn shall be rounded to the nearest second
decimal place.
(iii)
The final factor (CPln/[***]) shall be
rounded to the nearest third decimal place.
If the next succeeding place is five (5) or more, the preceding decimal
place shall be raised to the next higher figure. After final computation Pn shall be rounded
to the nearest whole number (0.5 rounds to 1).
5.2
Final Index Values
The revised Reference price at the date of Aircraft delivery shall not
be subject to any further adjustments in the indexes.
5.3
Interruption of Index Publication
If the US Department of Labor substantially revises the methodology of
calculation or discontinues any to these indexes referred to hereabove, the
Seller shall reflect the substitute for the revised or discontinued index
[***] Confidential treatment requested by AerCap Holdings N.V.
138
selected by [***], such substitute index to lead in application to the
same adjustment result, insofar as possible, as would have been achieved by
continuing the use of the original index as it may have fluctuated had it not
been revised or discontinued.
Appropriate revision of the formula shall be made to accomplish this
result.
5.4
Annulment of the Formula
Should the above escalation provisions become null and void by action
of the US Government, the Reference Price shall be adjusted due to increases in
the costs of labor and materiel which have occurred from the period represented
by the applicable Reference Composite Price Index to the twelfth (12
th
) month
prior to the scheduled month of Aircraft delivery.
5.5
Limitation
Should the ratio CPIn/[***] be lower than 1, Pn shall be equal to Pb +
F.
[***] Confidential treatment requested by AerCap Holdings N.V.
139
PART 2— PROPULSION SYSTEMS PRICE
REVISION FORMULA
IAE Price Revision Formula
1
Reference Price of the
Propulsion Systems
The Reference Price for a set of two (2) INTERNATIONAL AERO
ENGINES V2500 series Engines is:
IAE V2524-A5: US$ [***]
IAE V2527-A5: US$ [***]
This Reference Price is subject to adjustment for changes in economic
conditions as measured by data obtained from the US Department of Labor, Bureau
of Labor Statistics, and in accordance with the provisions hereof.
2
Reference Period
The above Reference Price has been established in accordance with the
averaged economic conditions prevailing in June 2000, July 2000 and
August 2000 (delivery conditions January 2001), as defined, according
to INTERNATIONAL AERO ENGINES by the ECIb and ICb, index values indicated in
Clause 4 hereof
3
Indexes
Labor Index: “Employment Cost
Index for Workers in Aerospace manufacturing” hereinafter referred to as “
EClsic372lW
”, quarterly published by the US
Department of Labor, Bureau of Labor Statistics, in “NEWS”, and found in: Table 6, “WAGES and SALARIES (not
seasonally adjusted): Employment Cost
Indexes for Wages and Salaries for private industry workers by industry and
occupational group”, or such other name that may be from time to time used for
the publication title and/or table, (Aircraft manufacturing, standard
industrial classification code SIC 3721, base month and year June 1989 =
100.)
The quarterly value released for a certain month (March, June,
September and December) shall be the one deemed to apply for the two preceding
months.
Index code for access on the Web site of the US Bureau of Labor
Statistics: ECU28102i
Material Index
: “Industrial Commodities”
(hereinafter referred to as “
IC
”)
as published in “ Producer Price Indexes detailed report” (found in
Table 6. “Producer price indexes and percent changes for commodity
groupings and individual items not seasonally adjusted” or such other
140
names that may be from time to time used for the publication title
and/or table). (Base Year 1982 = 100).
Index code for access on the Web site of the US Bureau of Labor Statistics: WPU03THRU15.
4
Revision Formula
Pn = (Pb + F) x ([***]ECIn/ECIb
+ [***]ICn/lCb)
Where:
F:
([***] x N x Pb)
Where N = the calendar year of
delivery of the Aircraft minus 2001.
Pn:
revised Reference Price at Aircraft
delivery.
Pb:
Reference Price at averaged economic
conditions June 2000, July 2000 and August 2000
ECln:
[***]-Index for the fifth (5
th
),
sixth (6
th
) and seventh (7
th
) month averaged prior
to the month of Aircraft delivery
ECIb:
[***] for June 2000, July 2000 and
August 2000 averaged [***])
ICn:
IC-Index for the fifth (5
th
),
sixth (6
th
) and seventh (7
th
) month averaged prior
to the month of Aircraft delivery
ICb:
IC-Index for June 2000, July 2000
and August 2000 averaged ( [***])
5
General Provisions
5.1
Roundings
(iv)
ECIn and ICn shall be calculated to the
nearest tenth (1 decimal).
(v)
Each quotient (ECIn/ECIb and ICn/ICb) shall
be calculated to the nearest ten-thousandth (4 decimals).
(vi)
The final factor shall be rounded to the
nearest ten-thousandth (4 decimals).
If the next succeeding place is five (5) or more the preceding
decimal place shall be raised to the nearest higher figure.
[***] Confidential treatment requested by AerCap Holdings N.V.
141
After final computation Pn shall be rounded to the nearest whole number
(0.5 rounds to 1).
5.2
Final Index Values
The revised Reference Price at the date of Aircraft delivery shall be
the final price and shall not be subject to any further adjustments in the
indexes.
If no final index values are available for any of the applicable month,
the then published preliminary figures shall be the basis on which the Revised
Reference Price shall be computed.
5.3
Interruption of Index Publication
If the US Department of Labor substantially revises the methodology of
calculation or discontinues any of these indexes referred to hereabove, the
Seller shall reflect the substitute for the revised or discontinued index
selected by [***], such substitute index to lead in application to the same
adjustment result, insofar as possible, as would have been achieved by
continuing the use of the original index as it may have fluctuated had it not
been revised or discontinued.
Appropriate revision of the formula shall be made to accomplish this
result.
5.4
Annulment of Formula
Should the above escalation provisions become null and void by action
of the US Government, the Reference Price shall be adjusted due to increases in
the costs of labor and materiel which have occurred from the period represented
by the applicable Reference Price Indexes to the fifth (5
th
), sixth
(6
th
) and seventh (7
th
) month prior to the scheduled
Aircraft delivery.
5.5
Limitation
Should the revised Reference Price be lower than the Reference Price,
the final price shall be computed with the Reference Price.
[***] Confidential treatment requested by AerCap Holdings N.V.
142
EXHIBIT D
CERTIFICATE
OF ACCEPTANCE
In accordance with the terms of the A[ ]
purchase agreement dated
[ ] and
made between Buyer and AIRBUS S.A.S., as amended (the “
Purchase Agreement
”), the acceptance tests
relating to the A[ ] aircraft,
Manufacturer's Serial Number:
[ ], Registration Marks: [ ] (the “
Aircraft
”), have taken place at Blagnac or
Hamburg Works on the
[ ] day of
[ ].
In view of said tests having been carried out with satisfactory
results, Buyer hereby approves and accepts the Aircraft as being in conformity
with the provisions of the Purchase Agreement.
Such acceptance does not impair the rights that may be derived from the
warranties relating to the Aircraft set forth in the Purchase Agreement.
Any right at law or otherwise to revoke this acceptance of the Aircraft
is hereby waived.
The [ ] day of
[ ]
Buyer
By:
Its:
143
EXHIBIT E
BILL OF
SALE
Know all men by these presents that Airbus S.A.S. (the “
Seller
”), “société par actions simplifiée”
existing under French law and whose address is 1 rond-point Maurice Bellonte,
31707 Blagnac Cedex, FRANCE, is, this
[ ] 2004, the owner of the
title to the following airframe (the “
Airframe
”),
the engines as specified (the “
Engines
”)
and all appliances, components, parts, instruments, accessories, furnishings,
modules and other equipment of any nature, excluding Buyer Furnished Equipment
(“
BFE
”), incorporated therein,
installed thereon or attached thereto on the date hereof (the “
Parts
”):
|
AIRFRAME
:
|
|
ENGINES
:
|
|
|
|
|
|
AIRBUS Model A3[ ]
|
|
[EM's name] Model
|
|
|
|
|
|
MANUFACTURER'S
|
|
ENGINE SERIAL NUMBERS
:
|
|
|
|
|
|
SERIAL NUMBER
:
[ ]
|
|
LH: [ ]
|
|
|
|
RH: [ ]
|
REGISTRATION MARKS
:
[ ]
and has such title to the BFE as was transferred to the Seller by
[ ] by a bill of sale
dated [ ] (the “BFE Bill of Sale”).
The Airframe, Engines and Parts are hereafter together referred to as
the Aircraft (the “
Aircraft
”).
The Seller does hereby on this
[ ] day of
[ ] sell, transfer and
deliver all of its above described rights, title and interest to the Aircraft
and the BFE to the following company and to its successors and assigns forever,
said Aircraft and the BFE to be the property thereof:
[Name of Buyer]
The Seller hereby warrants to the Buyer, its successors and assigns
that it has this day (i) good and lawful right to sell, deliver and
transfer title to the Aircraft to the Buyer and that there is hereby conveyed
to the Buyer good, legal and valid title to the Aircraft, free and clear of all
liens, claims, charges, encumbrances and rights of others and that the Seller
will warrant and defend such title forever against all claims and demands
whatsoever and (ii) such title to the BFE as the Seller acquired from
pursuant to the BFE Bill of Sale.
This Bill of Sale shall be governed by and construed in accordance with
the laws of England.
144
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed by its duly authorized representative this day
of
[ ]
AIRBUS S.A.S.
By:
Title:
145
EXHIBIT F
SERVICE
LIFE POLICY
ITEMS OF
PRIMARY STRUCTURE
146
SELLER
SERVICE LIFE POLICY
|
1
|
|
The Items covered by the Service Life Policy pursuant to
Clause 12.2 are those Seller Items of primary and auxiliary structure
described hereunder.
|
|
|
|
|
|
2
|
|
WINGS - CENTER AND OUTER WING BOX (LEFT AND
RIGHT)
|
|
|
|
|
|
2.1
|
|
Wing Structure
|
|
|
|
|
|
2.1.1
|
|
Spars
|
|
|
|
|
|
2.1.2
|
|
Ribs and stringers inside the wing box
|
|
|
|
|
|
2.1.3
|
|
Upper and lower wing skin panels of the wing box
|
|
|
|
|
|
2.2
|
|
Fittings
|
|
|
|
|
|
2.2.1
|
|
Support structure and attachment fittings for the flap structure
|
|
|
|
|
|
2.2.2
|
|
Support structure and attachment fitting for the engine pylons
|
|
|
|
|
|
2.2.3
|
|
Support structure and attachment fitting for the main landing gear
|
|
|
|
|
|
2.2.4
|
|
Support structure and attachment fitting for the center wing box
|
|
|
|
|
|
2.3
|
|
Auxiliary Support Structure
|
|
|
|
|
|
2.3.1
|
|
For the slats:
|
|
|
|
|
|
2.3.1.1
|
|
Ribs supporting the track rollers on wing box structure
|
|
|
|
|
|
2.3.1.2
|
|
Ribs supporting the actuators on wing box structure
|
|
|
|
|
|
2.3.2
|
|
For the ailerons:
|
|
|
|
|
|
2.3.2.1
|
|
Hinge brackets and ribs on wing box rear spar or shroud box
|
|
|
|
|
|
2.3.2.2
|
|
Actuator fittings on wing box rear spar or shroud box
|
|
|
|
|
|
2.3.3
|
|
For airbrakes, spoilers, lift dumpers:
|
|
|
|
|
|
2.3.3.1
|
|
Hinge brackets and ribs on wing box rear spar or shroud box
|
|
|
|
|
|
2.3.3.2
|
|
Actuator fittings on wing box rear spar or shroud box
|
|
|
|
|
|
2.4
|
|
Pylon
|
|
|
|
|
|
2.4.1
|
|
For the Pylon Main Structural Box
|
|
|
|
|
|
2.4.1.1
|
|
Spars
|
147
|
2.4.1.2
|
|
Ribs
|
|
|
|
|
|
2.4.1.3
|
|
Skin, doublers and stiffeners
|
|
|
|
|
|
2.4.1.4
|
|
Support structure and attachment fitting for engine supports
|
|
|
|
|
|
3
|
|
FUSELAGE
|
|
|
|
|
|
3.1
|
|
Fuselage structure
|
|
|
|
|
|
3.1.1
|
|
Fore and aft bulkheads
|
|
|
|
|
|
3.1.2
|
|
Pressurized floors and bulkheads surrounding the main and nose gear
wheel well and center wing box
|
|
|
|
|
|
3.1.3
|
|
Skins with doublers, stringers and frames from the forward pressure
bulkheads to the frame supporting the rear attachment of horizontal
stabilizer
|
|
|
|
|
|
3.1.4
|
|
Window and windscreen attachment structure but excluding
transparencies
|
|
|
|
|
|
3.1.5
|
|
Passenger and cargo doors internal structure
|
|
|
|
|
|
3.1.6
|
|
Sills, excluding scuff plates, and upper beams surrounding passenger
and cargo door apertures
|
|
|
|
|
|
3.1.7
|
|
Cockpit floor structure and passenger cabin floor beams excluding
floor panels and seat rails
|
|
|
|
|
|
3.1.8
|
|
Keel beam structure
|
|
|
|
|
|
3.2
|
|
Fittings
|
|
|
|
|
|
3.2.1
|
|
Landing gear support structure and attachment fitting
|
|
|
|
|
|
3.2.2
|
|
Support structure and attachment fittings for the vertical and
horizontal stabilizers
|
|
|
|
|
|
3.2.3
|
|
Support structure and attachment fitting for the APU
|
|
|
|
|
|
4
|
|
STABILIZERS
|
|
|
|
|
|
4.1
|
|
Horizontal Stabilizer Main Structural Box
|
|
|
|
|
|
4.1.1
|
|
Spars
|
|
|
|
|
|
4.1.2
|
|
Ribs
|
148
|
4.1.3
|
|
Upper and lower skins and stringers
|
|
|
|
|
|
4.1.4
|
|
Support structure and attachment fitting to fuselage and trim screw
actuator
|
|
|
|
|
|
4.1.5
|
|
Elevator support structure
|
|
|
|
|
|
4.1.5.1
|
|
Hinge bracket
|
|
|
|
|
|
4.1.5.2
|
|
Servocontrol attachment brackets
|
|
|
|
|
|
4.2
|
|
Vertical Stabilizer Main Structural Box
|
|
|
|
|
|
4.2.1
|
|
Spars
|
|
|
|
|
|
4.2.2
|
|
Ribs
|
|
|
|
|
|
4.2.3
|
|
Skins and stringers
|
|
|
|
|
|
4.2.4
|
|
Support structure and attachment fitting to fuselage
|
|
|
|
|
|
4.2.5
|
|
Rudder support structure
|
|
|
|
|
|
4.2.5.1
|
|
Hinge brackets
|
|
|
|
|
|
4.2.5.2
|
|
Servocontrol attachment brackets
|
|
|
|
|
|
5
|
|
EXCLUSIONS
|
|
|
|
|
|
|
|
Bearing and roller assemblies, bearing surfaces, bushings, fittings
other than those listed above, access and inspection doors, including manhole
doors, latching mechanisms, all system components, commercial interior parts,
insulation and related installation and connecting devices are excluded from
this Seller Service Life Policy.
|
149
EXHIBIT G
TECHNICAL DATA INDEX
150
TECHNICAL DATA INDEX
Where
applicable data will be established in general compliance with ATA
Specification 2200 (iSpec2200), Information Standards for Aviation Maintenance
(Revision 2003).
The
following index identifies the Technical Data provided in support of the
Aircraft.
The
explanation of the table is as follows:
|
NOMENCLATURE
|
|
Self-explanatory.
|
|
|
|
|
|
ABBREVIATED
DESIGNATION (Abbr)
|
|
Self-explanatory.
|
AVAILABILITY
(Avail)
Technical
Data can be available:
•
ON-LINE (ON) through the relevant Service on
Airbus Customer Portal, and / or
•
OFF-LINE (OFF) through the most suitable
means applicable to the size of the concerned document (e.g CD or DVD).
FORMAT (Form)
Following
Data formats can be used
•
SGML - Standard Generalized Mark-up
Language, which allows further data processing by the Buyer.
•
XML - Evolution of the SGML format to cope
with WEB technology requirements.
•
PDF (PDF) - Portable Document Format
allowing data consultation.
•
Advanced Consultation Tool - refers to
Technical Data Consultation application that offers advanced consultation &
navigation functionality compared with PDF.
Both browser software & Technical Data are packaged together.
•
P1/P2, refers to manuals printed on one
side, or both sides of the sheet.
•
CD-P - refers to CD-Rom including Portable
Document Format (PDF) Data.
151
EXHIBIT G
|
TYPE
|
|
C
|
|
CUSTOMIZED.
Refers to manuals that are applicable to an individual Airbus
customer/operator fleet or aircraft.
|
|
|
|
|
|
|
|
|
|
G
|
|
GENERIC.
Refers to manuals that are applicable for all Airbus aircraft
types/models/series.
|
|
|
|
|
|
|
|
|
|
E
|
|
ENVELOPE.
Refers to manuals that are applicable to a whole group of Airbus customers
for a specific aircraft type/model/series.
|
|
|
|
QUANTITY
(Qty)
|
Self-explanatory
for physical media.
|
|
|
|
|
DELIVERY
(Deliv)
|
Delivery
refers to expressed in either prior to first Aircraft the first delivery day
scheduled delivery dates and is the number of corresponding days delivery, or
nil (0) corresponding to the first delivery day.
|
|
|
|
|
|
The
number of days indicated shall be rounded up to the next regular revision
release date.
|
|
|
|
|
|
|
|
Exhibit G1 - LIST OF TECHNICAL PUBLICATIONS FOR THE LESSEE
152
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
|
|
|
|
|
|
|
|
|
|
|
|
Flight Crew Operating Manual
|
|
FCOM
|
|
OFF
|
|
P2*
|
|
C
|
|
2
|
|
90
|
|
* Per crew quantity / Plus one copy per Aircraft
at Delivery
|
|
|
|
FCOM
|
|
OFF
|
|
CD-P
|
|
C
|
|
5
|
|
90
|
|
PDF is fallback solution to paper for on-ground
consultation only
|
|
|
|
FCOM
|
|
ON
|
|
Advanced Consultation Tool
|
|
C
|
|
N/A
|
|
90
|
|
If LPC is used for aircraft operation, no FCOM
paper shall be delivered.
|
|
|
|
FCOM
|
|
OFF
|
|
Advanced Consultation Tool on CD
|
|
C
|
|
5
|
|
90
|
|
FCOM Module including OEB & TR download &
consultationIf LPC is used for aircraft operation, no FCOM paper shall be delivered.
|
|
|
|
FCOM
|
|
OFF
|
|
SGML
|
|
C
|
|
1
|
|
90
|
|
SGML shall be used to process Buyer’s own FCOM
for delivery to flight crew
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Applicable for SA and LR Aircraft.
|
|
Flight Crew Training Manual
|
|
FCTM
|
|
OFF
|
|
CD-P
|
|
C
|
|
10
|
|
90
|
|
FCTM is a supplement to FCOM / a “Pilot’s guide”
for use in training and in operations
|
|
|
|
FCTM
|
|
OFF
|
|
XML
|
|
C
|
|
1
|
|
90
|
|
XML data for further processing/customization by
the Buyer
|
|
Flight Manual
|
|
FM
|
|
OFF
|
|
P2
|
|
C
|
|
1
|
|
0
|
|
Plus one copy per Aircraft at Delivery
|
|
Master Minimum Equipment List
|
|
MMEL
|
|
OFF
|
|
P2
|
|
C
|
|
2
|
|
0
|
|
Per crew quantity / Plus one copy per Aircraft at
Delivery
|
|
|
|
MMEL
|
|
OFF
|
|
CD-P
|
|
C
|
|
2
|
|
0
|
|
PDF CD is fallback solution to paper for
on-ground consultation only (For Temporary Revisions & OEB’s, refer to
paper)
|
|
|
|
MMEL
|
|
OFF
|
|
SGML
|
|
C
|
|
1
|
|
180
|
|
Applicable for SA and LR Aircraft.
SGML data, including Parts 1 and 2, for further processing by the Buyer.
Recommended for issue of MEL by using the ADOC Starter Pack (for conversion
of SGML Data to e.g. Framemaker or MS Word RTF format)
|
|
Quick Reference Handbook
(if required by Airworthiness Authorities)
|
|
QRH
|
|
OFF
|
|
P2
|
|
C
|
|
2
|
|
0
|
|
Per crew quantity / Plus one copy per Aircraft at
Delivery
|
|
Trim Sheet
|
|
TS
|
|
OFF
|
|
WordDoc
|
|
C
|
|
1
|
|
0
|
|
Office Automation format (.doc) for further
processing by the Buyer
|
|
Weight and Balance Manual
|
|
WBM
|
|
OFF
|
|
P1
|
|
C
|
|
1
|
|
0
|
|
Fleet customized WBM for reference in central
Library
(*) plus one copy per Aircraft at Delivery. For the WBM the flight
|
153
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
deck copy is an advance copy only of the
customized manual, not subject to revision or updating. Weighing Equipment
List delivered two weeks after Aircraft Delivery
|
WB =
Wide Body: A310/A300-600 / SA = Single Aisle:
A318/A319/A320/A321 / LR = Long Range:
A330/A340
154
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Performance Engineer’s Programs
|
|
PEP
|
|
ON
|
|
Advanced Consultation Tool
|
|
C
|
|
1
|
|
90
|
|
Delivered to initial Operator.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PEP
|
|
OFF
|
|
Advanced Consultation Tool on CD
|
|
C
|
|
N/A
|
|
90
|
|
Delivered to initial Operator.
|
|
Performance Programs Manual
|
|
PPM
|
|
OFF
|
|
Advanced Consultation Tool on CD
|
|
C
|
|
1
|
|
90
|
|
Included in the PEP CD
|
155
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MAINTENANCE AND ASSOCIATED
MANUALS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
AirN@v, including :
|
|
AirN@v
|
|
ON
|
|
Advanced Consultation Tool
|
|
C
|
|
N/A
|
|
90
|
|
|
|
Aircraft Maintenance Manual
|
|
AirN@v
|
|
OFF
|
|
Advanced Consultation Tool on DVD
|
|
C
|
|
5
|
|
90
|
|
Recommended basic delivery quantity
|
|
Illustrated Parts Catalog (Airframe)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trouble Shooting Manual
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aircraft Schematics Manual Aircraft Wiring Lists
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Aircraft Wiring Manual
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Electrical Standard Practices Manual
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consumable Material List Standards Manual
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Technical Follow-up
|
|
TFU
|
|
OFF
|
|
CD-P
|
|
E
|
|
5
|
|
90
|
|
TFU for Trouble shooting & maintenance, to be
used with AirN@v
|
|
Aircraft Maintenance Manual
|
|
AMM
|
|
ON
|
|
PDF
|
|
C
|
|
N/A
|
|
90
|
|
|
|
|
|
AMM
|
|
OFF
|
|
CD-P
|
|
C
|
|
3
|
|
90
|
|
Fallback solution to AirN@v.
|
|
|
|
AMM
|
|
OFF
|
|
SGML
|
|
C
|
|
1
|
|
90
|
|
Applicable for SA and LR Aircraft.
If selected by the Buyer, SGML format will not be automatically supplied. Effective
delivery will only take place upon explicit request from the Buyer (Graphics
in TIFF or CGM, to be specified).
|
|
Aircraft Schematics Manual
|
|
ASM
|
|
ON
|
|
PDF
|
|
C
|
|
N/A
|
|
90
|
|
|
|
|
|
ASM
|
|
OFF
|
|
CD-P
|
|
C
|
|
3
|
|
90
|
|
Fallback solution to AirN@v
|
|
|
|
ASM
|
|
OFF
|
|
SGML
|
|
C
|
|
1
|
|
90
|
|
Applicable for SA and LR Aircraft
|
156
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
If selected by the Buyer, SGML format will not be
automatically supplied. Effective delivery will only take place upon explicit
request from the Buyer (Graphics in TIFF or CGM, to be specified).
|
157
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MAINTENANCE AND ASSOCIATED
MANUALS (Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
Aircraft Wiring List
|
|
AWL
|
|
ON
|
|
PDF
|
|
C
|
|
N/A
|
|
90
|
|
|
|
|
|
AWL
|
|
OFF
|
|
CD-P
|
|
C
|
|
3
|
|
90
|
|
Fallback solution to AirN@v
|
|
|
|
AWL
|
|
OFF
|
|
SGML
|
|
C
|
|
1
|
|
90
|
|
Applicable for SA and LR Aircraft.
If selected by the Buyer, SGML format will not be automatically supplied. Effective
delivery will only take place upon explicit request from the Buyer (Graphics
in TIFF or COM, to be specified).
|
|
Aircraft Wiring Manual
|
|
AWM
|
|
ON
|
|
PDF
|
|
C
|
|
N/A
|
|
90
|
|
|
|
|
|
AWM
|
|
OFF
|
|
CD-P
|
|
C
|
|
3
|
|
90
|
|
Fallback solution to AirN@v
|
|
|
|
AWM
|
|
OFF
|
|
SGML
|
|
C
|
|
1
|
|
90
|
|
Applicable for SA and LR Aircraft.
If selected by the Buyer, SGML format will not be automatically supplied. Effective
delivery will only take place upon explicit request from the Buyer (Graphics
in TIFF or CGM, to be specified).
|
|
Component Location Manual
|
|
CLM
|
|
ON
|
|
PDF
|
|
C
|
|
N/A
|
|
90
|
|
For SA and LR Aircraft
|
|
|
|
CLM
|
|
OFF
|
|
CD-P
|
|
C
|
|
3
|
|
90
|
|
|
|
Consumable Marerial List
|
|
CML
|
|
ON
|
|
PDF
|
|
G
|
|
N/A
|
|
180
|
|
|
|
|
|
CML
|
|
OFF
|
|
CD-P
|
|
G
|
|
5
|
|
180
|
|
Falllback solution to AirN@v.
|
|
|
|
CML
|
|
OFF
|
|
SGML
|
|
G
|
|
1
|
|
180
|
|
If selected by the Buyer, SGML format will not be
automatically supplied. Effective delivery will only take place upon explicit
request from the Buyer
|
|
Duct Repair Manual
|
|
DRM
|
|
ON
|
|
PDF
|
|
G
|
|
N/A
|
|
90
|
|
|
|
|
|
DRM
|
|
OFF
|
|
CD-P
|
|
G
|
|
1
|
|
90
|
|
|
|
Ecam System Logic Data
|
|
ESLD
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
90
|
|
For SA & LR aircraft
|
|
|
|
ESLD
|
|
OFF
|
|
CD-P
|
|
E
|
|
5
|
|
90
|
|
|
158
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MAINTENANCE AND ASSOCIATED
MANUALS (Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
Electrical Load Analysis
|
|
ELA
|
|
OFF
|
|
PDF/RTF/ Excel
|
|
C
|
|
1
|
|
+30
|
|
One ELA supplied for each Aircraft, delivered one
month after Aircraft Delivery.
PDF File + Office automation format RTF &
Excel file delivered on one single CD for ELA updating by the Buyer
|
|
Electrical Standard Practices Manual
|
|
ESPM
|
|
ON
|
|
PDF
|
|
G
|
|
N/A
|
|
90
|
|
|
|
|
|
ESPM
|
|
OFF
|
|
CD-P
|
|
G
|
|
3
|
|
90
|
|
Fallback solution to AirN@v
|
|
|
|
ESPM
|
|
OFF
|
|
SGML
|
|
G
|
|
1
|
|
90
|
|
If selected by the Buyer, SGML format will not be
automatically supplied. Effective delivery will only take place upon explicit
request from the Buyer (Graphics format in TIFF or CGM, to be specified).
|
|
Electrical Standard Practices booklet
|
|
ESP
|
|
OFF
|
|
P2*
|
|
G
|
|
20
|
|
90
|
|
*Pocket size format booklets for ground mechanics
|
|
Flight Data Recording Parameter Library
|
|
FDRPL
|
|
OFF
|
|
Advanced Consultation Tool on CD
|
|
E
|
|
5
|
|
90
|
|
For WB (A310 & A300-600), SA & LR
aircraft
|
|
Fuel Pipe Repair Manual
|
|
FPRM
|
|
ON
|
|
PDF
|
|
G
|
|
N/A
|
|
90
|
|
|
|
|
|
FPRM
|
|
OFF
|
|
CD-P
|
|
G
|
|
1
|
|
90
|
|
|
159
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MAINTENANCE AND ASSOCIATED
MANUALS (Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
Illustrated Parts Catalog (Airframe)
|
|
IPC
|
|
ON
|
|
PDF
|
|
C
|
|
N/A
|
|
90
|
|
|
|
|
|
IPC
|
|
OFF
|
|
CD-P
|
|
C
|
|
3
|
|
90
|
|
Fallback solution to AirN@v
|
|
|
|
(PC
|
|
OFF
|
|
SGML
|
|
C
|
|
1
|
|
90
|
|
Applicable for SA and LR Aircraft.
If selected by the Buyer, SGML format will not be automatically supplied. Effective
delivery will only take place upon explicit request from the Buyer (Graphics
in TIFF or CGM, to be specified).
|
|
Illustrated Parts Catalog (Powerplant)
|
|
PIPC
|
|
ON
|
|
PDF
|
|
C
|
|
N/A
|
|
90
|
|
|
|
|
|
PIPC
|
|
OFF
|
|
CD-P
|
|
C
|
|
5
|
|
90
|
|
Integrated in the SA aircraft IPC for IAE V2500
A1/A3 Engines
Integrated in the LR A340-500/-600 aircraft IPC for RR Trent 500 Engines.
*For other Aircraft and engine types, supplied by Propulsion Systems
Manufacturer concurrently with the Airframe IPC.
|
|
Maintenance Planning Document
|
|
MPD
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
360
|
|
Includes 3 files : PDF, Excel and Text File
|
|
|
|
MPD
|
|
OFF
|
|
CD-P
|
|
E
|
|
5
|
|
360
|
|
|
|
Maintenance Review Board Report
|
|
MRBR
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
360
|
|
MRS Report document includes the Certification
Maintenance Requirements (CMR) and Airworthiness Limitation Items (ALI)
documents.
|
|
|
|
MRBR
|
|
OFF
|
|
CD-P
|
|
E
|
|
5
|
|
360
|
|
|
|
Support Equipment Summary / SES Tool and
Equipment Index / TEI Illustrated Tool and Equipment Manual / TEM
|
|
STT
|
|
ON
|
|
PDF
|
|
G
|
|
N/A
|
|
360
|
|
|
|
|
|
STT
|
|
OFF
|
|
CD-P
|
|
G
|
|
5
|
|
360
|
|
SES, TEI & TEM are grouped on a single CD
|
|
Tool & Equipment Bulletins
|
|
TEB
|
|
OFF
|
|
P2
|
|
E
|
|
5
|
|
N/A
|
|
|
|
Tool and Equipment Drawings
|
|
TED
|
|
ON
|
|
Advanced Consultation
Tool
|
|
E
|
|
N/A
|
|
360
|
|
On-line Consultation from Engineering Drawings
Service
|
160
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MAINTENANCE AND ASSOCIATED
MANUALS (Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
Engineering Documentation Combined Index,
|
|
EDCI
|
|
ON
|
|
Advanced Consultation
Tool
|
|
C
|
|
N/A
|
|
90
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
including:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Airworthiness Directives / AD
|
|
EDCI
|
|
OFF
|
|
Advanced Consultation
Tool on DVD
|
|
C
|
|
5
|
|
90
|
|
Outstations with no On-Line connection to Airbus
Customer Portal to be supplied with one DVD set
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Consignes de
Navigabilite / CN (French DGAC)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Operator Telex / AOT
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operator Information Telex / OIT
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Flight Operator Teiex / FOT
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Modification / MOD
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Modification Proposal / MP
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service Bulletin / SB
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service Information Letter/ SIL
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Technical Follow-Up / TFU
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Vendor Service Bulletin / VSB
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Trouble Shooting Manual
|
|
TSM
|
|
ON
|
|
PDF
|
|
C
|
|
N/A
|
|
90
|
|
|
|
|
|
TSM
|
|
OFF
|
|
CD-P
|
|
C
|
|
3
|
|
90
|
|
Fallback solution to AirN@v
|
161
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TSM
|
|
OFF
|
|
SGML
|
|
C
|
|
1
|
|
90
|
|
Applicable for SA and LR Aircraft.
If selected by the Buyer, SGML format will not be automatically supplied Effective
delivery will only take place upon explicit request from the Buyer Graphics
in TIFF or CGM format to be specified
|
162
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
STRUCTURAL MANUALS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nondestructive Testing Manual
|
|
NTM
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
90
|
|
|
|
|
|
NTM
|
|
OFF
|
|
CD-P
|
|
E
|
|
5
|
|
90
|
|
|
|
|
|
NSRM
|
|
OFF
|
|
CD-P
|
|
E
|
|
10
|
|
90
|
|
|
|
Structural Repair Manual
|
|
SRM
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
90
|
|
|
|
|
|
SRM
|
|
OFF
|
|
CD-P
|
|
E
|
|
10
|
|
90
|
|
|
|
|
|
SRM
|
|
OFF
|
|
SGML
|
|
E
|
|
1
|
|
90
|
|
Applicable for SA and LR Aircraft.
If selected by the Buyer, SGML format will not be automatically supplied. Effective
delivery will only take place upon explicit request from theBuyer Graphics
format in TIFF or CGM to be specified
|
163
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
OVERHAUL DATA
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Component Documentation Status
|
|
CDS
|
|
OFF
|
|
D
|
|
C
|
|
1
|
|
180
|
|
Revised until 180 days after Aircraft
Delivery
|
|
Component Evolution List
|
|
CEL
|
|
ON
|
|
PDF
|
|
G
|
|
N/A
|
|
-
|
|
|
|
|
|
CEL
|
|
OFF
|
|
CD-P
|
|
G
|
|
1
|
|
-
|
|
Delivered as follow-on for CDS.
|
|
Component Maintenance Manual – Manufacturer
|
|
CMMM
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
180
|
|
|
|
|
|
CMMM
|
|
OFF
|
|
CD-P
|
|
E
|
|
1
|
|
180
|
|
|
|
Component Maintenance Manual – Vendor
|
|
CMMV
|
|
OFF
|
|
CD-P
|
|
E
|
|
1
|
|
180
|
|
PDF on CD to be provided by Vendors. If more than
one Airbus aircraft type in operation with the Buyer, dispatch of the
“common” CMMV only
|
|
|
|
CMMV
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
180
|
|
Available from the “Suppliers Technical Manuals “
Service in the Airbus Customer Portal
|
164
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ENGINEERING DOCUMENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Parts Usage (Effectivity)
|
|
PU
|
|
ON
|
|
Advanced Consultation Tool
|
|
C
|
|
N/A
|
|
0
|
|
On-line Consultation from Engineering Drawings
Service in Airbus Customer Portal
|
|
Parts List
|
|
PL
|
|
ON
|
|
Advanced Consultation Tool
|
|
c
|
|
N/A
|
|
0
|
|
On-line Consultation from Engineering Drawings
Service in Airbus Customer Portal
|
|
Standards Manual
|
|
SM
|
|
ON
|
|
PDF
|
|
G
|
|
N/A
|
|
180
|
|
|
|
|
|
SM
|
|
OFF
|
|
CD-P
|
|
G
|
|
1
|
|
180
|
|
Fallback solution to AirN@v
|
|
|
|
SM
|
|
OFF
|
|
SGML
|
|
G
|
|
1
|
|
180
|
|
If selected by the Buyer, SGML format wiil not be
automatically supplied. Effective delivery will only take place upon explicit
request from the Buyer
|
|
Process and Material Specification
|
|
PMS
|
|
ON
|
|
PDF
|
|
G
|
|
N/A
|
|
0
|
|
|
|
|
|
PMS
|
|
OFF
|
|
CD-P
|
|
G
|
|
1
|
|
0
|
|
|
165
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MISCELLANEOUS PUBLICATIONS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Airplane Characteristics for Airport Planning /AC
Maintenance Facility Planning / MFP Ground Support Equipment Vendor
Information Manual / GSE VIM
|
|
AMVG
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
360
|
|
Available On-Line from the Airbus Customer Portal
|
|
|
|
AMVG
|
|
OFF
|
|
CD-P
|
|
E
|
|
5
|
|
360
|
|
AC, MFP and GSE VIM are grouped on one single CD
/ Back-up set to On-Line access
|
|
ATA 100 Breakdown
|
|
ATAB
|
|
OFF
|
|
CD-P
|
|
E
|
|
5
|
|
360
|
|
6 Digits ATA 100 Breakdown
|
|
CADETS (Technical Publications Training)
|
|
CADETS
|
|
OFF
|
|
Advanced Consultation Tool on CD
|
|
G
|
|
5
|
|
360
|
|
|
|
Aircraft Recovery Manual
|
|
ARM
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
90
|
|
|
|
|
|
ARM
|
|
OFF
|
|
CD-P
|
|
E
|
|
1
|
|
90
|
|
|
|
Aircraft Rescue & Firefighting Chart
|
|
ARFC
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
180
|
|
Available On-Line from the Airbus Customer Portal
|
|
Crash Crew Chart
|
|
CCC
|
|
OFF
|
|
P1
|
|
E
|
|
20
|
|
180
|
|
|
|
Cargo Loading System Manual
|
|
CLS
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
180
|
|
|
|
|
|
CLS
|
|
OFF
|
|
CD-P
|
|
E
|
|
1
|
|
180
|
|
One CLS per delivered AircraftCLS is Envelope
(E) for SA and LR aircraft and Customized for WB aircraft
|
|
List of Applicable Publications
|
|
LAP
|
|
OFF
|
|
PDF
|
|
C
|
|
N/A
|
|
90
|
|
|
|
List of Radioactive and Hazardous Elements
|
|
LRE
|
|
ON
|
|
PDF
|
|
G
|
|
N/A
|
|
90
|
|
|
|
|
|
LRE
|
|
OFF
|
|
CD-P
|
|
G
|
|
1
|
|
90
|
|
|
|
Livestock Transportation Manual
|
|
LTM
|
|
ON
|
|
PDF
|
|
E
|
|
N/A
|
|
90
|
|
|
|
|
|
LTM
|
|
OFF
|
|
CD-P
|
|
E
|
|
1
|
|
90
|
|
Number of sets depends on Buyer’s needs.
|
|
Service Bulletins
|
|
SB
|
|
ON
|
|
Advanced Consultation Tool
|
|
C
|
|
N/A
|
|
0
|
|
Full content available from the Airbus Customer
Portal / SB Index available from EDCI on DVD
|
|
|
|
SB
|
|
OFF
|
|
CD-P
|
|
C
|
|
1
|
|
0
|
|
One CD per SB issued and/or revised
|
166
|
NOMENCLATURE
|
|
Abbr
|
|
Avail
|
|
Form
|
|
Type
|
|
Qty
|
|
Deliv
|
|
Comments
|
|
OPERATIONAL MANUALS AND DATA
(Cont’d)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
MISCELLANEOUS PUBLICATIONS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplier Product Support Agreements 2000
|
|
SPSA
|
|
ON
|
|
PDF
|
|
G
|
|
N/A
|
|
360
|
|
Based on General Conditions of Purchase (GCP)
2000 issue 5
|
|
|
|
SPSA
|
|
OFF
|
|
CD-P
|
|
G
|
|
5
|
|
360
|
|
|
|
Transportability Manual
|
|
TM
|
|
OFF
|
|
CD-P
|
|
G
|
|
1
|
|
180
|
|
|
|
Vendor Information Manual
|
|
VIM
|
|
ON
|
|
Advanced Consultation Tool
|
|
G
|
|
N/A
|
|
360
|
|
|
|
|
|
VIM
|
|
OFF
|
|
Advanced Consultation Tool on CD
|
|
G
|
|
5
|
|
360
|
|
|
167
Exhibit G2
– ADDITIONAL TECHNICAL PUBLICATIONS
In addition
to the Technical Publications to be provided by the Seller to the Buyer
pursuant to Clause 14 of the Agreement, the Seller shall provide to the
Buyer the following free of charge Technical Publications:
|
NOMENCLATURE
|
|
Abbr
|
|
Form
|
|
Type
|
|
QTY
|
|
MISCELLANEOUS
PUBLICATIONS
|
|
|
|
|
|
|
|
|
|
Aircraft Maintenance
Manual
|
|
AMM
|
|
OL-A
|
|
C
|
|
N/A
|
|
Trouble Shooting Manual
|
|
TSM
|
|
OL-A
|
|
C
|
|
N/A
|
|
Aircraft Wiring Manual
/Aircraft Schematic
Manual
Aircraft Wiring List
|
|
AWM/
ASM
AWL
|
|
OL-A
|
|
C
|
|
N/A
|
|
Illustrated Parts
Catalog (Airframe)
|
|
IPC
|
|
OL-A
|
|
C
|
|
N/A
|
|
Maintenance Planning
Document
|
|
MPD
|
|
OL-A
|
|
E
|
|
N/A
|
|
Structural Repair
Manual
|
|
SRM
|
|
OL-A
|
|
E
|
|
N/A
|
|
Service Bulletins
|
|
SB
|
|
OL-A
|
|
C
|
|
N/A
|
|
Installation and
Assembly Drawings (mechanical)
|
|
IAD
|
|
OL-A
|
|
C
|
|
N/A
|
|
Flight Crew Operating
Manual
|
|
FCOM
|
|
CD-P
|
|
C
|
|
1
|
|
Flight Manual
|
|
FM
|
|
CD-P
|
|
C
|
|
1
|
The above
documents shall be provided in format “CD-P” (PDF Technical Data on CD), “OL-A”
(on-line) or in the latest available format as provided by the Manufacturer.
168
EXHIBIT “H”
MATERIAL
SUPPLY AND SERVICES
169
1
GENERAL
1.1
This Exhibit defines the terms and
conditions for the material support services offered by the Seller to the Buyer
in the following areas:
•
Initial provisioning of data and material
•
Replenishment of material
•
Lease of certain Seller Parts
1.1.1
Capitalized terms used herein and not
otherwise defined in this Exhibit ”H” shall have the same meanings
assigned thereto in the Agreement.
1.1.2
References made to Clauses or sub-Clauses
shall refer to Clauses or sub-Clauses of this Exhibit ”H” unless otherwise
specified.
1.2
Scope of Material Support
Material is classified into the following categories (hereinafter
referred to as “
Material
):
(vii)
Seller Parts (Seller’s proprietary Material bearing an official part
number of the Seller or Material for which the Seller has the exclusive sales
rights);
(viii)
Supplier Parts classified as Repairable Line Maintenance Parts in
accordance with SPEC 2000;
(ix)
Supplier Parts classified as Expendable Line Maintenance Parts in
accordance with SPEC 2000;
(x)
Ground Support Equipment and Specific (To
Type) Tools.
1.2.1
Certain Seller Parts listed in
Appendix A of Clause 6 are available for lease by the Seller to the
Buyer.
1.2.2
The Material support to be provided
hereunder by the Seller covers items classified as Material in
sub-Clauses 1.2(i) through (iv) both for initial provisioning as
described in Clause 2 (“
Initial
Provisioning
”) and for replenishment as described in Clause 3.
Repairable Line Maintenance Parts as specified in
sub-Clauses 1.2(i) and 1.2(ii) above having less than [***]
flight-hours are considered as new.
1.2.3
Propulsion Systems, nacelles (as applicable), quick engine change kit
and thrust reverser (as applicable), accessories and parts, including
associated parts, are not covered under this Exhibit ”H” and shall be
subject to direct agreements between the Buyer and the relevant Propulsion
System Manufacturer. The Seller shall
use its reasonable
[***] Confidential treatment
requested by AerCap Holdings N.V.
170
efforts to assist the Buyer in case of any difficulties with
availability of Propulsion Systems and associated spare parts.
1.2.4
During a period commencing on the date
hereof and continuing for as long as at least [***] covered under this
Agreement are operated in commercial air transport service (the “
Term
”), the Seller shall maintain or have
maintained such stock of Seller Parts as is deemed reasonable by the Seller and
shall furnish at reasonable prices Seller Parts adequate to meet the Buyer’s
needs for maintenance of the Aircraft.
The Seller shall use its reasonable efforts to obtain a similar service
from all Suppliers of parts which are originally installed on the Aircraft and
not manufactured by the Seller.
1.3
Airbus Spares Support and
Services Headquarter
1.3.1
The Seller has established its Airbus Spares
Support Centre in HAMBURG, FEDERAL REPUBLIC OF GERMANY
(
“
Airbus
Spares Support Centre
”) and shall maintain or cause to be maintained
during the Term a central store of Seller Parts.
1.3.2
The Airbus Spares Support Centre is operated
twenty-four (24) hours/day and seven (7) days/week.
1.3.3
The Seller reserves the right to effect
deliveries from distribution centres other than Airbus Spares Support Centre or
from any designated production or Suppliers’ facilities.
For efficient and convenient deliveries, the Seller and its Affiliate
companies operate regional satellite stores.
1.4
Agreements of the Buyer
1.4.1
The Buyer agrees to purchase from the Seller
or its licensee(s) (“the Licensees”) the Seller Parts required for the Buyer’s
own needs during the Term, provided that the provisions of this Clause 1.4
shall not in any way prevent the Buyer from resorting to the Seller Parts
stocks of other operators using the same Aircraft or from purchasing Seller
Parts from said operators or from distributors, provided said Seller Parts have
been designed by the Seller and manufactured by the Seller or its Licensee(s).
1.4.2
The Buyer may manufacture or have
manufactured for its own use without paying any license fee to the Seller parts
equivalent to Seller Parts:
1.4.2.1
after expiration of the Term if at such time
the Seller Parts are out of stock,
1.4.2.2
at any time, to the extent Seller Parts are needed to effect aircraft
on ground (“
AOG
”) repairs upon any
Aircraft delivered under the Agreement
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and are not available from the Seller or its Licensees within a lead
time shorter than or equal to the time in which the Buyer can procure such
Seller Parts, and provided the Buyer shall not sell such Seller Parts,
1.4.2.3
in the event that the Seller fails to fulfil
its obligations with respect to any Seller Parts pursuant to Clause 1.2
within a reasonable time after written notice thereof from the Buyer,
1.4.2.4
in those instances where a Seller Part is
identified as “Local Manufacture” in the Illustrated Parts Catalog (IPC).
1.4.3.1
The rights granted to the Buyer in
Clause 1.4.2 shall not in any way be construed as a license, nor shall
they in any way obligate the Buyer to the payment of any license fee or
royalty, nor shall they in any way be construed to affect the rights of third
parties.
1.4.3.2
Furthermore, in the event of the Buyer
manufacturing or having manufactured any parts, subject to the conditions of
Clause 1.4.2, such manufacturing and any use made of the manufactured part
shall be under the sole liability of the Buyer and the consent given by the
Seller shall not be construed as express or implicit approval howsoever either
of the Buyer or of the manufactured parts.
It shall further be the Buyer’s responsibility to ensure that such
manufacturing is performed in accordance with the relevant procedures and
Aviation Authority requirements.
1.4.3.3
The Buyer shall allocate or cause to be
allocated its own part number to any part manufactured or caused to be
manufactured subject to Clause 1.4.2 above. The Buyer shall not be allowed to use or
cause to be used the Airbus Partnumber of the Seller Part to which such
manufactured part is equivalent.
1.4.3.4
Notwithstanding any right provided to the
Buyer under Clause 1.4.2, the Buyer shall not be entitled under any
circumstances to sell any part manufactured or caused to be manufactured under
Clause 1.4.2 to any third party.
172
2
INITIAL PROVISIONING
2.1
Initial Provisioning Period
The
Initial Provisioning Period
is defined as the period up to and expiring on the [***] day after
Delivery of the last Aircraft subject to firm order under the Agreement.
2.2
Pre-Provisioning Meeting
2.2.1
The Seller shall organize a pre-provisioning
meeting (“
Pre-Provisioning Meeting
”)
at its .Airbus Spares Support Centre for the purpose of formulating an
acceptable schedule and working procedure to accomplish the initial
provisioning of Material.
2.2.2
The date of the meeting shall be mutually
agreed upon, allowing a minimum preparation time of [***] weeks for the
Initial Provisioning Conference referred to in Clause 2.4 below.
2.3
Initial Provisioning
Training
Upon the request of the Buyer, the Seller can provide Initial
Provisioning training for the Buyer’s provisioning and purchasing
personnel. The following areas shall be
covered:
(i)
The Seller during the Pre-Provisioning
Meeting shall familiarize the Buyer with the provisioning documents.
(ii)
The technical function as well as the necessary technical and
commercial Initial Provisioning Data shall be explained during the Initial
Provisioning Conference.
(iii)
A familiarization with the Seller’s purchase order administration
system shall be conducted during the Initial Provisioning Conference.
2.4
Initial Provisioning
Conference
The Seller shall organize an Initial Provisioning conference (“
Initial Provisioning Conference
”) at the
Airbus Spares Support Centre, including participation of major Suppliers as
mutually agreed upon during the Pre-Provisioning Meeting.
Such conference shall not take place earlier than [***] weeks
after Manufacturer Serial Number allocation, Buyer Furnished Equipment
selection or Contractual Definition Freeze, whichever is the latest
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2.5
Seller-Supplied Data
The Seller shall prepare and supply to the Buyer the data set forth
hereunder.
2.5.1
Initial Provisioning Data
Initial Provisioning data elements generally in accordance with SPEC
2000, Chapter 1, (“
Initial Provisioning
Data
”) shall be supplied by the Seller to the Buyer in a form,
format and a time-scale to be mutually agreed upon during the Pre-Provisioning
Meeting.
2.5.1.1
Revision service shall be provided every
[***] days, up to the end of the Initial Provisioning Period.
2.5.1.2
In any event, the Seller shall ensure that
Initial Provisioning Data is released to the Buyer in due time to give the Buyer
sufficient time to perform any necessary evaluation and allow the on-time
delivery of any ordered Material.
2.5.2
Supplementary Data
The Seller shall provide the Buyer with supplementary data to the
Initial Provisioning Data, including Local Manufacture Tables (X-File) and
Ground Support Equipment and Specific (To-Type) Tools (W-File) in accordance
with SPEC 2000, Chapter 1.
2.5.3
Data for Standard Hardware
The Initial Provisioning Data provided to the Buyer shall include data
for hardware and standard material.
2.6
Supplier-Supplied Data
2.6.1
General
The Seller shall obtain from Suppliers agreements to prepare and issue
for their own products as per Clause 1.2(ii) repair/overhaul Initial
Provisioning Data in the English language, for those components for which the
Buyer has elected to receive data.
Said data (initial issue and revisions) shall be transmitted to the
Buyer through the Suppliers and/or the Seller.
The Seller shall not be responsible for the substance of such data.
In any event, the Seller shall exert its reasonable efforts to supply
such Data to the Buyer in due time to give the Buyer sufficient time to perform
any necessary evaluation and allow on-time deliveries.
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2.6.2
Initial Provisioning Data
Initial Provisioning Data elements for Supplier Parts as per
sub-Clause 1.2(ii) generally in accordance with SPEC 2000,
Chapter 1, shall be furnished as mutually agreed upon during a
Pre-Provisioning Meeting with revision service assured up to the end of the
Initial Provisioning period.
2.7
Initial Provisioning Data
Compliance
2.7.1
Initial Provisioning Data generated by the
Seller and supplied to the Buyer shall comply with the latest configuration of
the Aircraft to which such data relate as known [***] months before the
date of issue. Said data shall enable
the Buyer to order Material conforming to its Aircraft as required for
maintenance and overhaul.
This provision shall not cover:
•
Buyer modifications not known to the Seller,
•
modifications not agreed to by the Seller.
2.8
Commercial Offer
2.8.1
At the end of the Initial Provisioning
Conference, the Seller shall, at the Buyer’s request, submit a commercial offer
for all Material as defined in Clauses 1.2(i) thru
1.2(iv) mutually agreed as being Initial Provisioning based on the Seller’s
sales prices valid at the time of finalization of the Initial Provisioning
Conference. This commercial offer shall
be valid for a period to be mutually agreed upon, irrespective of any price
changes for Seller Parts during this period, except for significant error
and/or price alterations due to part number changes and/or Supplier price
changes.
2.8.2
During the Initial Provisioning Period the
Seller shall supply Material, as defined in Clause 1.2 and ordered from
the Seller, which shall be in conformity with the configuration standard of the
concerned Aircraft and with the Initial Provisioning Data transmitted by the Seller.
2.8.3
The Seller shall in addition use its
reasonable efforts to cause Suppliers to provide a similar service for their
items.
2.9
Delivery of Initial
Provisioning Material
2.9.1
To cover the requirements in Material for entry into service of the
Aircraft, the Seller shall use its reasonable efforts to deliver Material
ordered during the Initial Provisioning Period against the Buyer’s orders and
according to a mutually agreed schedule.
Such deliveries shall cover the Material requirements in line with the
Aircraft fleet build up, only up to that portion
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of the ordered quantity that is recommended for the number of Aircraft
operated during the Initial Provisioning Period.
The Seller shall in addition use its reasonable efforts to cause
Suppliers to provide to the Buyer a similar service for their items.
2.9.2
The Buyer may, subject to the Seller’s
agreement, cancel or modify Initial Provisioning orders placed with the Seller,
with no cancellation charge, not later than the quoted lead-time before
scheduled delivery of said Material.
2.9.3
In the event of the Buyer cancelling or
modifying (without any liability of the Seller for the cancellation or
modification) any orders for Material outside the time limits defined in
Clause 2.9.2, the Buyer shall reimburse the Seller for any costs incurred
in connection therewith.
2.9.4
All transportation costs for the return of
Material under this Clause 2, including any insurance, customs and duties
applicable or other related expenditures, shall be borne by the Buyer.
2.10
Initial Provisioning Data
for Exercised Options
2.10.1
All Aircraft for which the Buyer exercises
its option shall be included into the revision of the provisioning data that is
issued after execution of the relevant amendment to the Agreement if such
revision is not scheduled to be issued within four (4) weeks from the
date of execution. If the execution date
does not allow four (4) weeks preparation time for the Seller, the
concerned Aircraft shall be included in the subsequent revision as may be
mutually agreed upon.
2.10.2
The Seller shall, from the date of execution
of the relevant amendment to the Agreement until three (3) months after
Delivery of each Aircraft, submit to the Buyer details of particular Supplier
components being installed on each Aircraft, with recommendations regarding
order quantity. A list of such
components shall be supplied at the time of the provisioning data revision as
specified above.
2.10.3
The data concerning Material shall at the
time of each Aircraft Delivery at least cover such Aircraft’s technical
configuration as it existed six (6) months prior to Aircraft Delivery and
shall be updated to reflect the final status of the concerned Aircraft once
manufactured. Such update shall be
included in the data revisions issued three (3) months after Delivery of
such Aircraft.
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3
REPLENISHMENT AND DELIVERY
3.1
General
Buyer’s purchase orders are administered in accordance with SPEC 2000,
Chapter 3.
For the purpose of clarification it is expressly stated that the
provisions of Clause 3.2 do not apply to Initial Provisioning Data and
Material as described in Clause 2.
3.2
Lead times
In general, lead times are in accordance with the provisions of the “World
Airlines and Suppliers’ Guide” (Latest Edition).
3.2.1
Seller Parts as per sub-Clause 1.2(i) listed
in the Seller’s Spare Parts Price Catalog can be dispatched within the lead
times defined in the Spare Parts Price Catalog.
Lead times for Seller Parts, which are not published in the Seller’s
Spare Parts Price Catalog, are quoted upon request.
3.2.2
Material of
sub-Clauses 1.2(ii) thru 1.2(iv) can be dispatched within the
Supplier’s lead-time augmented by the Seller’s own order and delivery
processing time.
3.2.3
Expedite Service
The Seller shall provide a [***] hours-a-day, [***] days-a-week
expedite service to provide for the supply of the relevant Seller Parts
available in the Seller’s stock, workshops and assembly line including long
lead time spare parts, to the international airport nearest to the location of
such part (“
Expedite Service
”).
3.2.3.1
The Expedite Service is operated in
accordance with the “World Airlines and Suppliers’ Guide”, and the Seller shall
notify the Buyer of the action taken to satisfy the expedite within:
•
[***] hours after receipt of an AOG
Order,
•
[***] hours after receipt of a Critical
Order (imminent AOG or work stoppage),
•
[***] days after receipt of an Expedite
Order from the Buyer.
3.2.3.2
The Seller shall deliver Seller Parts requested on an Expedite basis
against normal orders placed by the Buyer, or upon telephone or telex
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requests by the Buyer’s representatives. Such telephone or telex requests shall be
confirmed by subsequent Buyer’s orders for such Seller Parts within a
reasonable time.
3.3
Delivery Status
The Seller shall make available to the Buyer on the Airbus Spares
Portal the status of supplies against orders.
3.4
Excusable Delay
Clause 10.1 of the Agreement shall apply to the Material support.
3.5
Shortages, Overshipments,
Non-Conformity in Orders
3.5.1
The Buyer shall immediately and not later
than [***] days after receipt of Material delivered pursuant to a purchase
order advise the Seller
a)
of any alleged shortages or overshipments
with respect to such order,
b)
of all non-conformities to specification of
parts in such order subjected to inspections by the Buyer.
In the event of the Buyer not having advised the Seller of any such
alleged shortages, overshipments or non-conformity within the above defined
period, the Buyer shall be deemed to have accepted the deliveries.
3.5.2
In the event of the Buyer reporting
overshipments or non-conformity to the specifications within the period defined
in Clause 3.5.1 the Seller shall, if the Seller accepts such overshipment
or non-conformity, either replace the concerned Material or credit the Buyer
for the returned Material. In such case,
transportation costs shall be borne by the Seller.
The Buyer shall endeavour to minimize such costs, particularly through
the use of its own airfreight system for transportation at no charge to the
Seller.
3.6
Packaging
All Material shall be packaged in accordance with ATA 300
Specification, Category Ill for consumable/expendable material and Category II
for rotables. Category I containers
shall be used if requested by the Buyer and the difference between Category I
and Category II packaging costs shall be paid by the Buyer together with
payment for the respective Material.
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3.7
Cessation of Deliveries
The Seller reserves the right to restrict, stop or otherwise suspend
deliveries if the Buyer fails to meet its obligations defined in
Clauses 4.2 thru 4.4.
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4
COMMERCIAL CONDITIONS
4.1
Price
4.1.1
The Material prices shall be:
•
Free Carrier (FCA) the Airbus Spares Support
Centre for deliveries from the Airbus Spares Support Centre.
•
Free Carrier (FCA) place specified by the
Seller for deliveries from other Seller or Supplier facilities as the term Free
Carrier (FCA) is defined by the publication N° 560 of the International Chamber
of Commerce published in January 2000.
4.1.2
Prices shall be the Seller’s sales prices in
effect on the date of receipt of the order (subject to reasonable quantities
and delivery time) and shall be expressed in US-Dollars.
4.1.3
Prices of Seller Parts shall be in accordance
with the current Seller’s Spare Parts Price Catalog. Prices shall be firm for each calendar
year. The Seller, however, reserves the
right to revise the prices of said parts during the course of the calendar year
in the following cases:
•
significant revision in manufacturing costs,
•
significant revision in manufacturer’s
purchase price of parts or materials (including significant variation of
exchange rates),
•
significant error in estimation or
expression of any price.
4.1.4
Prices of Material as defined in
sub-Clauses 1.2(ii) thru 1.2(iv) shall be the valid list prices of the
Supplier augmented by the Seller’s handling charge. The percentage of the handling charge shall
vary with the Material’s value and shall be determined item by item.
4.2
Payment Procedures and
Conditions
4.2.1
Payment shall be made in immediately
available funds in the quoted currency.
In case of payment in any other free convertible currency, the exchange
rate valid on the day of actual money transfer shall be applied for conversion.
4.2.2
Payment shall be made by the Buyer to the
Seller within [***] days from date of the invoice to the effect that the
value date of the credit to the Seller’s account of the payment falls within
this [***] day period.
4.2.3
The Buyer shall make all payments hereunder to the Seller’s account
with:
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VEREINS & WESTBANK AG -
20457
Hamburg -
Germany
Account: [***]
Swift Address: VUWB DE HH,
using international IBAN Code:
DE[***]
or as otherwise directed by the Seller.
4.2.4
All payments due to the Seller hereunder
shall be made in full without deduction or withholding of any kind. Consequently, the Buyer shall procure that
the sums received by the Seller under this Exhibit ”H” shall be equal to
the full amounts expressed to be due to the Seller hereunder, without deduction
or withholding on account of and free from any and all taxes, levies, imposts,
dues or charges of whatever nature except that if the Buyer is compelled by law
to make any such deduction or withholding the Buyer shall pay such additional
amounts as may be necessary in order that the net amount received by the Seller
after such deduction or withholding shall equal the amounts which would have
been received in the absence of such deduction or withholding. If the Seller receives a refund of any amount
with respect to which the Buyer has paid an additional amount as described
above the Seller shall pay to the Buyer, as soon as practicable after the
refund has been made (but not before the Buyer has made all payments to the
Seller required under this Clause), an amount equal to such refund, provided
that after such payment the Seller shall be in no worse position in respect of
its overall tax position than it would have been if no such payment had been
made.
4.2.5
If any payment due to the Seller is not
received in accordance with the timescale provided in Clause 4.2.2,
without prejudice to the Seller’s other rights under this Exhibit ”H”, the
Seller shall be entitled to interest for late payment calculated on the amount
due from and including the date falling [***] Working Days after due date
of payment up to and including the date when the payment is received by the
Seller at a rate equal to the London Interbank Offered Rate (LIBOR) for
[***] months deposits in US Dollars (as published in the Financial Times
on the due date) plus [***]
per year (part year to be prorated).
4.3
Title
Title to any Material purchased under this Exhibit ”H” remains
with the Seller until full payment of the invoices and any interest thereon has
been received by the Seller.
The Buyer shall undertake that Material, title to which has not passed
to the Buyer, shall be kept free from any debenture or mortgage or any similar
charge or claim in favour of any third party.
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4.5
Buy-Back
4.5.1
Buy-Back of Obsolete
Material
The Seller agrees to buy back unused Seller Parts which may become
obsolete before Delivery of the first Aircraft to the Buyer as a result of
mandatory modifications required by the Buyer’s or the Seller’s Aviation
Authorities, subject to the following:
4.5.1.1
The Seller Parts involved shall be those,
which the Buyer is directed by the Seller to scrap or dispose of and which
cannot be reworked or repaired to satisfy the revised standard.
4.5.1.2
The Seller shall credit to the Buyer the
purchase price paid by the Buyer for any such obsolete parts, provided that the
Seller’s liability in this respect does not extend to quantities in excess of
the Seller’s Initial Provisioning recommendation.
4.5.1.3
The Seller shall use its reasonable efforts
to obtain for the Buyer the same protection from Suppliers.
4.5.2
Buy-Back of Initial Provisioning Surplus
Material
4.5.2.1
The Seller agrees that at any time after
[***] year and within [***] years after Delivery of the first
Aircraft to the Buyer, the Buyer shall have the right to return to the Seller,
at a credit of [***]
of the original purchase price paid by the
Buyer, unused and undamaged Material as per sub-Clause 1.2(i) and at
a credit of [***]
of the original Supplier list price, unused
and undamaged Material as per sub-Clause 1.2(ii) originally purchased
from the Seller under the terms hereof, provided that the selected protection
level does not exceed [***]
with a transit time of [***] days and
said Material was recommended for the Buyer’s purchase in the Seller’s Initial
Provisioning recommendations to the Buyer and does not exceed the provisioning
quantities recommended by the Seller, and is not shelflife limited, or does not
contain any shelfiife limited components with less than [***]
shelflife
remaining when returned to the Seller and provided that the Material is
returned with the Seller’s original documentation (tag, certificates).
4.5.2.2
In the event of the Buyer electing to
procure Material in excess of the Seller’s recommendation, the Buyer shall notify
the Seller thereof in writing, with due reference to the present Clause. The Seller’s agreement in writing is
necessary before any Material in excess of the Seller’s recommendation shall be
considered for buy-back.
4.5.2.3
It is expressly understood and agreed that
the rights granted to the Buyer under this Clause 4.5.2 shall not apply to
Material which may become
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182
surplus to requirements due to obsolescence at any time or for any
reason other than those set forth in Clause 4.5.1 above.
4.5.2.4
Further, it is expressly understood and
agreed that all credits described in this Clause shall be provided by the
Seller to the Buyer exclusively by means of credit notes to be entered into the
Buyer’s spares account with the Seller.
4.5.3
All transportation costs for the return of
obsolete or surplus Material under this Clause 4, including any insurance
and customs duties applicable or other related expenditures, shall be borne by
the Buyer.
4.6
Inventory Usage Data
The Buyer undertakes to provide periodically to the Seller a
quantitative list of the parts used for maintenance and overhaul of the
Aircraft. The range and contents of this
list shall be established according to SPEC 2000, Chapter 5, or as
mutually agreed between the Seller and the Buyer.
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5
WARRANTIES
5.1
Seller Parts
Subject to the limitations and conditions as hereinafter provided, the
Seller warrants to the Buyer that all Seller Parts in
sub-Clause 1.2(i) shall at delivery to the Buyer:
(i)
be free from defects in material,
(ii)
be free from defects in workmanship, including without limitation
processes of manufacture,
(iii)
be free from defects arising from failure to conform to the applicable
specification for such part.
5.2
Warranty Period
5.2.1
The standard warranty period for new Seller
Parts is [***] months after delivery of such parts to the Buyer.
5.2.2
The standard warranty period for used Seller
Parts delivered by and/or repaired, modified, overhauled or exchanged by the
Seller is [***] months after delivery of such parts to the Buyer.
5.3
Buyer’s Remedy and Seller’s
Obligation
The Buyer’s remedy and Seller’s obligation and liability under this
Clause 5 are limited to the repair, replacement or correction, at the
Seller’s expense and option, of any Seller Part which is defective.
The Seller may equally at its option furnish a credit to the Buyer for
the future purchase of Seller Parts equal to the price at which the Buyer is
then entitled to acquire a replacement for the defective Seller Parts.
The provisions of Clauses 12.1.5 thru 12.1.10 of the Agreement
shall apply to this Clause 5 of this Exhibit ”H”.
5.4
Waiver, Release and
Renunciation
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS
SUPPLIERS AND REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 5 ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES,
ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND/OR ITS
SUPPLIERS AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, ITS
SUPPLIERS AND/OR THEIR INSURERS EXPRESS OR IMPLIED,
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ARISING BY LAW OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR
DEFECT IN ANY MATERIAL DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT LIMITED
TO:
(A)
ANY WARRANTY AGAINST HIDDEN DEFECTS;
(B)
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(C)
ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
(D)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER CONTRACTUAL
OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE SELLER’S AND/OR ITS SUPPLIERS’
NEGLIGENCE, ACTUAL OR IMPUTED; AND
(E)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO
ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART THEREOF OR MATERIAL
DELIVERED HEREUNDER.
THE SELLER AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY,
HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR
DEFECT IN ANY MATERIAL DELIVERED UNDER THIS AGREEMENT.
FOR THE PURPOSES OF THIS CLAUSE 5.4, THE “SELLER” SHALL INCLUDE
THE SELLER AND ITS AFFILIATES.
NOTHING IN THIS CLAUSE 5.4 SHALL CONSTITUE A WAIVER, RELEASE OR
RENUNCIATION BY THE BUYER OR ANY AFFILIATE OF THE BUYER OF ANY EXPRESS
OBLIGATIONS OR LIABILITIES OWED BY ANY SUPPLIER OR ANY AFFILIATE OF THE SELLER
TO THE BUYER OR ITS AFFILIATE PURSUANT TO ANY AGREEMENT BETWEEN SUCH SUPPLIER
OR AFFILIATE OF THE SELLER AND THE BUYER OR ITS AFFILIATE.
THE PROVISIONS OF THIS CLAUSE 5.4 SHALL BE WITHOUT PREJUDICE TO
THE PROVISIONS OF CLAUSES 14.9 AND CLAUSE 14.11 OF THIS AGREEMENT,
CLAUSE 6.9.6 OF THIS EXHIBIT H, CLAUSE 11 OF ANY SOFTWARE
LICENCE AND CLAUSE 8.2 OF ANY CBT LICENCE AND THE OBLIGATIONS OF THE
SELLER EXPRESSLY PRESERVED THEREUNDER;
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6
SELLER PARTS LEASING
6.1
General
The terms and conditions of this Clause 6 shall apply for the
leasing of Seller Parts listed in Appendix A to this Clause 6,
hereinafter “
Leased Parts
” or a “
Leased Part
”, and shall form a part of each
lease of Seller Parts by the Buyer from the Seller.
6.1.1
The terms and conditions of this
Clause 6 shall prevail over all other terms and conditions appearing on
any order form or other document pertaining to Leased Parts. The Seller’s current proprietary parts Repair
Guide shall be provided to the Buyer and shall be used, along with this
Agreement, as the basis for Seller Parts lease transactions between the Buyer
and the Seller. In case of discrepancy,
this Agreement shall prevail.
6.1.2
For the purposes of this Clause 6, the
term “
Lessor
” refers to the Seller
and the term “
Lessee
” refers to
the Buyer.
6.1.3
Parts not included in Appendix A to
this Clause 6 shall be the subject of a separate lease agreement supplied
by the Seller at the Buyer’s request.
6.2
Leasing Procedure
Upon the Lessee’s request by telephone (to be confirmed promptly in
writing), facsimile, cable, SITA, letter or other written instrument, the
Lessor shall lease such Leased Parts, which shall be made available in
accordance with Clause 3.2.3 for the purpose of being substituted for a
part removed from an Aircraft for repair or overhaul. Each lease of Leased Parts shall be evidenced
by a lease document (hereinafter “
Lease
”)
issued by the Lessor to the Lessee not later than [***] days after
delivery of the Leased Part.
6.3
Lease Period
6.3.1
The total term of the Lease (hereinafter “
Lease Period
”) shall be counted from
inclusively the day the Leased Part is delivered Free Carrier (FCA) up to
inclusively the day of receipt of the Leased Part back at the Lessor or at any
other address indicated by the Lessor.
6.3.2
If a Leased Part is not returned by the Lessee within [***] days,
the Lease shall be converted into a sale.
Should the Lessee not return the Leased Part to the Lessor within [***]
days and if the Lessor so elects, by giving prompt written notice to the
Lessee, such non return shall be deemed to be an election by the Lessee to
purchase the Leased Part and, upon the happening of such event, the Lessee
shall pay the Lessor all amounts due under Clauses 6.4 and 6.8 for the
Leased Part for the Lease Period of
[***] Confidential treatment requested by AerCap Holdings N.V.
186
[***] days plus the current sales price of the Leased Part at the
moment of the conversion of the Lease.
6.3.3
Notwithstanding the foregoing, the Lease
Period shall end in the event of, and upon the date that, the Lessee acquiring
title to a Leased Part as a result of exercise of the Lessee’s option to
purchase the Leased Part, as provided for herein.
6.3.4
The chargeable period to lease a part is a
minimum of [***] days. If the shipment
of the Leased Part has been arranged and the Lessee cancels the lease order,
the minimum chargeable period of [***] days shall apply.
6.4
Lease Charges and Taxes
The Lessee shall pay the Lessor:
(i)
a Lease fee per day of the Lease Period
amounting to [***] of the part’s sales price as set forth in the Seller’s Spare
Parts Price Catalog in effect on the date of the commencement of the Lease
Period;
(ii)
any reasonable additional costs which may be incurred by the Lessor as
a direct result of such Lease, such as recertification, inspection, test,
repair, overhaul, removal of paint and/or repackaging costs as required to
place the Leased Part in a satisfactory condition for lease to a subsequent
customer;
(iii)
all transportation and insurance charges; and
(iv)
any taxes, charges or custom duties imposed upon the Lessor or its
property as a result of the Lease, sale, delivery, storage or transfer of any
Leased Part. All payments due hereunder
shall be made in accordance with Clause 4.
6.5
Risk of Loss, Maintenance,
Storing and Repair of the Leased Part
(i)
The Lessee shall be liable for maintaining
and storing the Leased Part in accordance with all applicable rules of the
relevant aviation authorities and the technical documentation and other
instructions issued by the Lessor.
(ii)
Except for normal wear and tear, each Leased Part shall be returned to
the Lessor in the same condition as when delivered to the Lessee.
(iii)
The
Leased Part shall be repaired solely at repair stations approved by the
Lessor. If during the Lease Period any
inspection, maintenance, rework and/or repair is carried out to maintain the
[***] Confidential treatment requested by AerCap Holdings N.V.
187
Leased Part serviceable, in accordance with the standards of the
Lessor, the Lessee shall provide details and documentation about the scope of
the work performed, including respective inspection, work and test reports.
(iv)
All documentation shall include, but not be limited to, evidence of
incidents such as hard landings, abnormalities of operation and corrective
action taken by the Lessee as a result of such incidents.
(v)
The Leased Part must not be lent to a third party.
(vi)
Risk of loss or damage to each Leased Part shall remain with the Lessee
until such Leased Part is redelivered to the Lessor at the return location
specified in the applicable Lease. If a
Leased Part is lost, damaged beyond economical repair or damaged unrepairable,
the Lessee shall be deemed to have exercised its option to purchase said Leased
Part in accordance with Clause 6.8 as of the date of such loss or damage.
6.6
Title
Title to each Leased Part shall remain with the Lessor at all times
unless the Lessee exercises its option to purchase in accordance with
Clause 6.8, in which case title shall pass to the Lessee upon receipt by
the Lessor of the payment for the purchased Leased Part.
6.7
Return of Leased Part
6.7.1
The Lessee shall return the Leased Part at
the end of the Lease Period to the address indicated on the individual lease
document provided by the Lessor at the start of each Lease transaction.
6.7.2
The return shipping document shall indicate
the reference of the Lease document and the removal data, such as:
(i)
aircraft manufacturer serial number
(ii)
removal date
(iii)
total flight hours and flight cycles for the period the Leased Part was
installed on the aircraft
(iv)
documentation in accordance with Clause 6.5.
If the Lessee cannot provide the above mentioned data and documentation
for the Leased Part to be returned from Lease, lease charges of [***] of the
Lessor’s current sales price for a new part plus [***]
of the accumulated Lease fees shall be invoiced. According to the
[***] Confidential treatment requested by AerCap Holdings N.V.
188
Lessor’s quality standards, parts are not serviceable without the
maintenance history data outlined above and have to be scrapped on site.
6.7.3
The unserviceable or serviceable tag issued
by the Lessee and the original Lessor certification documents must be attached
to the Leased Part.
6.7.4
Except for normal wear and tear, each Leased
Part shall be returned to the Lessor in the same condition as when delivered to
the Lessee. The Leased Part shall be
returned with the same painting as when delivered (Airbus grey or primary
paint). If the Lessee is not in a
position to return the Leased Part in the same serviceable condition, the
Lessee has to contact the Lessor for instructions.
6.7.5
The Leased Part is to be returned in the
same shipping container as that delivered by the Lessor. The container must be in a serviceable
condition, normal wear and tear excepted.
6.7.6
The return of an equivalent part different
from the Leased Part delivered by the Lessor is not allowed without previous
written agreement of the Lessor.
6.8
Option to Purchase
6.8.1
The Lessee may at its option, exercisable by
written notice given to the Lessor during the Lease Period, elect to purchase
the Leased Part, in which case the then current sales price for such Leased
Part as set forth in the Seller’s Spare Parts Price Catalog shall be paid by
the Lessee to the Lessor. Should the
Lessee exercise such option, [***]
of the Lease rental charges due pursuant to
sub-Clause 6.4(i) shall be credited to the Lessee against said
purchase price of the Leased Part.
6.8.2
In the event of purchase, the Leased Part
shall be warranted in accordance with Clause 5 as though such Leased Part
were a Seller Part, but the warranty period shall be deemed to have commenced
on the date such part was first installed on any Aircraft; provided, however,
that in no event shall such warranty period be less than [***] months from
the date of purchase of such Leased Part.
A warranty granted under this Clause 6.8.2 shall be in substitution
for the warranty granted under Clause 6.9 at the commencement of the Lease
Period.
6.9
Warranties
6.9.1
The Lessor warrants that each Leased Part
shall at the time of delivery be free from defects in material and workmanship
which could materially impair the utility of the Leased Part.
[***] Confidential treatment
requested by AerCap Holdings N.V.
189
6.9.2
Warranty and Notice Periods
The Lessee’s remedy and the Lessor’s obligation and liability under
this Clause 6.9, with respect to each defect, are conditioned upon:
(i)
the defect having become apparent to the
Lessee within the Lease Period and
(ii)
the return by the Lessee as soon as practicable to the return location
specified in the applicable Lease, or such other place as may be mutually
agreed upon, of the Leased Part claimed to be defective and
(iii)
the Lessor’s warranty administrator having received written notice of
the defect from the Lessee within [***] days after the defect becomes apparent
to the Lessee, with reasonable proof that the claimed defect is due to a matter
embraced within the Lessor’s warranty under this Clause 6.9 and that such
defect did not result from any act or omission of the Lessee, including but not
limited to any failure to operate or maintain the Leased Part claimed to be
defective or the Aircraft in which it was installed in accordance with
applicable governmental regulations and the Lessor’s applicable written
instructions.
6.9.3
Remedies
The Lessee’s remedy and the Lessor’s obligation and liability under
this Clause 6.9 with respect to each defect are limited to the repair of
such defect in the Leased Part in which the defect appears, or, as mutually
agreed, to the replacement of such Leased Part with a similar part free from
defect.
Any replacement part furnished under this Clause 6.9.3 shall be
deemed to be the Leased Part so replaced.
6.9.4
Suspension and
Transportation Costs
6.9.4.1
If a Leased Part is found to be defective and covered by this warranty,
the Lease Period and the Lessee’s obligation to pay rental charges as provided
for in sub-Clause 6.4(i) shall be suspended from the date on which
the Lessee notifies the Lessor of such defect until the date upon which the
Lessor has repaired, corrected or replaced the defective Leased Part, provided,
however, that the Lessee has, promptly after giving such notice to the Lessor,
withdrawn such defective Leased Part from use.
If the defective Leased Part is replaced, such replaced part shall be
deemed to no longer be a Leased Part under the Lease as of the date upon which
such part was received by the Lessor at the return location specified in the
applicable Lease.
[***] Confidential treatment
requested by AerCap Holdings N.V.
190
If a Leased Part is found to be defective upon first use by the Lessee
and is covered by this warranty, no rental charges as provided in
sub-Clause 6.4(i) shall accrue and be payable by the Lessee until the
date on which the Lessor has repaired, corrected or replaced the defective
Leased Part.
6.9.4.2
All transportation and insurance costs of
returning the defective Leased Part and returning the repaired, corrected or
replacement part to the Lessee shall be borne by the Lessor.
6.9.5
Wear and Tear
Normal wear and tear and the need for regular maintenance and overhaul
shall not constitute a defect or non-conformance under this Clause 6.9.
6.9.6
Waiver, Release and
Renunciation
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LESSOR AND/OR ITS
SUPPLIERS AND REMEDIES OF THE LESSEE SET FORTH IN THIS CLAUSE 6 ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE LESSEE HEREBY WAIVES, RELEASES AND
RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LESSOR
AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS AND REMEDIES OF THE LESSEE AGAINST THE
LESSOR, ITS SUPPLIERS AND/OR THEIR INSURERS EXPRESS OR IMPLIED, ARISING BY LAW
OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY LEASED
PART DELIVERED UNDER THESE LEASING CONDITIONS INCLUDING BUT NOT LIMITED TO:
(F)
ANY WARRANTY AGAINST HIDDEN DEFECTS;
(G)
ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
(H)
ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
(I)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR
REMEDY, WHETHER CONTRACTUAL OR DELICTUAL AND WHETHER OR NOT ARISING FROM THE
LESSOR’S OR ITS SUPPLIERS’ NEGLIGENCE, ACTUAL OR IMPUTED; AND
(J)
ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR
REMEDY FOR LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR
PART THEREOF OR ANY LEASED PART DELIVERED HEREUNDER.
191
THE LESSOR AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY,
HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR
DEFECT IN ANY LEASED PART DELIVERED UNDER THESE LEASING CONDITIONS.
FOR THE PURPOSES OF THIS CLAUSE 6.9.6, “THE LESSOR” SHALL INCLUDE
THE LESSOR AND ITS AFFILIATES.
NOTHING IN THIS CLAUSE 6.9.6 SHALL CONSTITUE A WAIVER, RELEASE OR
RENUNCIATION BY THE BUYER OR ANY AFFILIATE OF THE BUYER OF ANY EXPRESS
OBLIGATIONS OR LIABILITIES OWED BY ANY SUPPLIER OR ANY AFFILIATE OF THE SELLER
TO THE BUYER OR ITS AFFILIATE PURSUANT TO ANY AGREEMENT BETWEEN SUCH SUPPLIER
OR AFFILIATE OF THE SELLER AND THE BUYER OR ITS AFFILIATE.
THE PROVISIONS OF THIS CLAUSE 6.9.6 SHALL BE WITHOUT PREJUDICE TO
THE PROVISIONS OF CLAUSES 14.9 AND CLAUSE 14.11 OF THIS AGREEMENT,
CLAUSE 5.4 OF THIS EXHIBIT H, CLAUSE 11 OF ANY SOFTWARE LICENCE
AND CLAUSE 8.2 OF ANY CBT LICENCE AND THE OBLIGATIONS OF THE SELLER
EXPRESSLY PRESERVED THEREUNDER;
APPENDIX ”A” TO CLAUSE 6 OF EXHIBIT ”H”
SELLER PARTS AVAILABLE FOR LEASING
AILERONS
APU DOORS
CARGO DOORS
PASSENGER DOORS
ELEVATORS
FLAPS
LANDING GEAR DOORS
RUDDER
TAIL CONE
SLATS
192
SPOILERS
AIRBRAKES
WING TIPS
WINGLETS
193
7
TERMINATION OF SPARES PROCUREMENT
COMMITMENTS
7.1
In the event of the Agreement being
terminated with respect to any Aircraft due to causes provided for in
Clauses 10, 11 or 20 of the Agreement, such termination may also affect
the terms of this Exhibit ”H” to the extent set forth in Clause 7.2
below.
7.2
Any termination under Clauses 10, 11 or
20 of the Agreement shall discharge all obligations and liabilities of the
parties hereunder with respect to such undelivered spare parts, services, data
or other items to be purchased hereunder which are applicable to those Aircraft
for which the Agreement has been terminated.
Unused spare parts in excess of the Buyer’s requirements due to such
Aircraft cancellation shall be repurchased by the Seller as provided for in
Clause 4.5.2.
194
ENGLISH LAW VERSION
AIRFRAME
WARRANTY AND SUPPORT ASSIGNMENT
Dated
[ ]
between
[LEASING
COMPANY]
as Assignor
and
[AIRLINE]
as Assignee
in respect of one (1) Airbus
A3[ ]-[ ] Aircraft
bearing Manufacturer’s Serial Number [ ]
196
TABLE OF
CONTENTS
|
Clause
|
|
|
Page
|
|
|
|
|
|
|
1.
|
|
Definitions and Interpretation
|
1
|
|
|
|
|
|
|
2.
|
|
Assignment
|
3
|
|
|
|
|
|
|
3.
|
|
Rights and Obligations of the Assignor and
Assignee
|
3
|
|
|
|
|
|
|
4.
|
|
Termination
|
4
|
|
|
|
|
|
|
5.
|
|
Onward Transfer of Rights
|
5
|
|
|
|
|
|
|
6.
|
|
Notification
|
5
|
|
|
|
|
|
|
7.
|
|
Non-disclosure
|
5
|
|
|
|
|
|
|
8.
|
|
Further Acts
|
6
|
|
|
|
|
|
|
9.
|
|
Waiver
|
6
|
|
|
|
|
|
|
10.
|
|
Illegality
|
6
|
|
|
|
|
|
|
11.
|
|
Notices
|
6
|
|
|
|
|
|
|
12.
|
|
Counterparts
|
8
|
|
|
|
|
|
|
13.
|
|
Effective Date
|
8
|
|
|
|
|
|
|
14.
|
|
Governing Law and Jurisdiction
|
8
|
SCHEDULE 1
THE WARRANTIES
SCHEDULE 2
CONSENT AND AGREEMENT
197
THIS AIRFRAME WARRANTY AND SUPPORT ASSIGNMENT
(the “
Agreement
”)
dated [ ] is made by way of deed
BETWEEN:
(1)
[
LEASING
COMPANY]
, a company organised and existing under the laws of
[ ] having its principal office at
[ ] (the “
Assignor
”); and
(2)
[AIRLINE]
a company organised and existing under the
laws of
[ ]
having its principal office at
[ ]
(the “
Assignee
”)
WHEREAS:
(A)
Pursuant to a purchase agreement dated
[ ] between
Airbus and the Assignor (the “
Purchase
Agreement
”), the Assignor agreed, among other things, to purchase
the Aircraft (as defined below) from Airbus.
(B)
Pursuant to an aircraft lease agreement
dated [ ] between the Assignor and the
Assignee, (the “
Lease Agreement
”),
the Assignor has agreed to lease the Aircraft to the Assignee.
(C)
Pursuant to a participation agreement dated
[ ] between the Assignor and the
Assignee, (the “
Participation Agreement
”),
the Assignor has authorised the Assignee to participate in certain operations
relating to the Aircraft and to receive the benefit of certain customer support
in respect of the Aircraft prior to Delivery.
(D)
The Assignor wishes to assign to the
Assignee its interest in and to the Warranties (as defined below) and the
Support Rights (as defined below) upon the terms and subject to the conditions
of this Agreement.
1
NOW, IT IS AGREED AS FOLLOWS
:
1.
Definitions and
Interpretation
1.1
In this Agreement, including the recitals
and schedules, the following terms shall have the following meaning:
“
Aircraft
” means
collectively the Airframe and the aircraft engines installed thereon;
“
Airframe
” means the
Airbus A3[ ]-[ ] aircraft bearing manufacturer’s serial
number [ ] (excluding the aircraft engines installed thereon)
together with all parts incorporated in, installed on or attached to such
airframe on the Delivery Date;
“
Airbus
” means Airbus
S.A.S. (legal successor of Airbus S.N.C., formerly known as Airbus G.l.E. and
Airbus Industrie G.l.E.), a
Société
par Actions Simplifiée
duly
created and existing under French Law, and includes its successors and assigns;
“
Business Day
” means a day
(other than a Saturday or a Sunday) on which banks and foreign exchange markets
are open for business in [ ]
and
France;
“
Consent and Agreement
”
means the consent of Airbus to this Agreement and the agreement of the Assignor
and the Assignee to the terms of such consent substantially in the form set out
in Schedule 2;
[“
Delivery
” means the
delivery of and transfer of title to the Aircraft in accordance with the
Purchase Agreement; -or
in
case
of
an
assignment other than to an
Initial Operator the delivery of the Aircraft by the Assignor to the Assignee
pursuant to the Lease Agreement.
]
“
Delivery Date
” for the
Aircraft means the date on which Delivery shall occur;
“
Event of Default
” means
the events of default set out in
Clause [ ] of the
Lease Agreement;
“
Support Rights
” means the
support rights in respect of the Aircraft pursuant to
Clauses [ ]
and [ ]
of the Purchase Agreement as set out in
Schedule [ ] of the
Participation Agreement, and which remain available as of the date hereof;
2
“
Warranties
” means the
warranty rights given by Airbus in respect of the Airframe to the Assignor
pursuant to Clause 12 (Warranties and Service Life Policy) and
Clause 13 (Patent Indemnity) of the Purchase Agreement, as set out in
Schedule 1 including all post-delivery rights in respect thereof.
1.2
In this Agreement a reference to any Clause,
paragraph or Schedule is a reference to such Clause, paragraph or Schedule of
this Agreement, and the headings of Clauses and Schedules are inserted for
convenience of reference only and shall not affect the interpretation.
1.3
Reference to any document or agreement means
such document or agreement as originally signed, or as modified, amended,
varied, or supplemented from time to time.
2.
Assignment
Subject to the terms and conditions of this Agreement, the Assignor
assigns to the Assignee all of its rights and interest in and to the Warranties
and the Support Rights (together the “
Assigned
Rights
”) and the Assignee hereby accepts such assignment.
3.
Rights and Obligations of
the Assignor and Assignee
3.1
The terms and conditions of the Purchase
Agreement shall apply to all claims made in respect of the Warranties and any
exercise of the Assigned Rights and shall be binding upon the Assignee and the
Assignee shall be subject to all obligations, restrictions, limitations and
conditions of the Purchase Agreement with respect to the exercise of such
rights or the making of such claim (including, without limitation, (i) the
Waiver, Release and Renunciation in Clause 12.5 and (ii) the
indemnities and insurance provisions in Clause 19 (copies of which are
attached in Exhibit 3 of the Participation Agreement) of the Purchase
Agreement) in accordance with Clause 3 of the Participation Agreement, in
each case to the same extent as if the Assignee had been named “Buyer”
thereunder.
3
3.2
For as long as this Agreement is in full
force and effect, the Assignee and not the Assignor will be responsible for
compliance with Clauses 12.5 and Clause 19 of the Purchase Agreement
(to the extent provided in the Participation Agreement) in each case in respect
of the Aircraft. Upon termination of
this Agreement in accordance with Clause 4, the Assignor shall once again
be bound by such Clauses with respect to the Aircraft.
3.3
The assignment referred to in Clause 2
shall not constitute a novation of the Purchase Agreement and save as provided
in Clause 3.2 and in the Participation Agreement, the Assignor shall not
be discharged from any of its obligations under the Purchase Agreement by
reason of this Agreement.
3.4
The parties agree, and stipulate in favour
of Airbus, that, save to the extent rights are hereby assigned to the Assignee,
all other terms of the Purchase Agreement shall continue to apply and have full
effect between the Assignor and Airbus and save as provided in Clause 3.2,
nothing herein shall modify in any way the rights of Airbus under the Purchase
Agreement or subject Airbus to any liability to which it would not otherwise be
subject.
3.5
For the avoidance of doubt, the Assignee
agrees that it will not, and does not have the power or the authority to enter
into any agreement with Airbus which would amend, modify, rescind, cancel or
terminate the Purchase Agreement without the prior written consent of the
Assignor.
4.
Termination
4.1
Upon expiration or termination of the Lease
Agreement, then this Agreement shall be automatically terminated in respect of
the Aircraft, whereupon the Assigned Rights shall be deemed to be re-assigned
by the Assignee to the Assignor without the requirement of any further act or
action (other than the notice required to be given to Airbus in accordance with
Clause 4.2).
4.2
The Assignor shall promptly notify Airbus in
writing of the termination of this Agreement in accordance with Clause 4.1
and Airbus shall not be deemed to
4
have knowledge of any such termination unless
and until Airbus shall have received such written notice.
5.
Onward Transfer of Rights
Neither the Assignor nor the Assignee may assign, sell, transfer, delegate
or otherwise dispose of any of its respective rights or obligations under this
Agreement without the prior written consent of the other party and Airbus.
6.
Notification
(i) This Agreement (and any re-assignment pursuant to Clause 4.1)
shall at the Assignee’s expense be notified to Airbus on or within 14 days
following the Delivery Date in accordance with the provisions of
Article 1690 of the French Civil Code.
(ii) The Assignor undertakes that it shall, on or prior to the Delivery
Date, notify Airbus of this Agreement in accordance with Clause 136 of the
Law of Property Act (1925) and obtain the execution by Airbus of the Consent
and Agreement.
7.
Non-disclosure
Each of the Assignor and the Assignee agrees that it shall not disclose
to any person the terms of Clauses 12,13, [ ] and [ ]of the
Purchase Agreement or this Agreement except (a) as required by any
applicable law or governmental regulations, or (b) with the prior written
consent of Airbus.
or
(1) [Each of the Assignor and the Assignee agrees that it shall not
disclose to any person the terms of Clauses 12, 13, [ ] and [ ]
of the Purchase Agreement or this Agreement, except (a) as required by
applicable law or governmental regulations, (b) as required in connection
with any legal proceedings arising from
(1)
Alternative wording to be used in case of
ECA financing
5
or in connection with this Agreement or (c) to the Export Credit
Agencies, (d) with the prior written consent of Airbus.]
8.
Further Acts
The parties agree that at any time and from time to time, and at the
cost of the Assignee, they shall promptly and duly execute and deliver any and
all such further instruments and documents and take such further action as may
reasonably be necessary in order to give full effect to this Agreement and the
rights and powers herein granted.
9.
Waiver
No term or provision of this Agreement may be changed, waived,
discharged or terminated except by written instruments signed by or on behalf
of each of the parties and previously consented to in writing by Airbus.
10.
Illegality
10.1
If at any time any provision of this
Agreement is or becomes illegal, invalid or unenforceable in any respect
neither the legality, validity or enforceability of the remaining provisions
shall in any way be affected or impaired.
10.2
Any provision of this Agreement which may
prove to be or become illegal, invalid or unenforceable in whole or in part
shall so far as reasonably possible be performed according to the spirit and
purpose of this Agreement.
11.
Notices
Any notice or other communication given or made under this Agreement
shall be in writing and, provided it shall be addressed as set out below, shall
be deemed to have been duly given:
(a)
if sent by personal delivery, upon delivery
at the address of the relevant party (provided that if the date of delivery is
not a Business
6
Day, notice shall be deemed to have been received on the first
following Business Day);
(b)
if sent by post, then five Business Days after
posting;
(c)
if sent by facsimile, when dispatched with
correct confirmation printout (provided that if the date of receipt is not a
Business Day, notice shall be deemed to have been received on the first
following Business Day),
to the parties as follows:
in the case of the Assignor to:
[Assignor address]
Attention:
Telefax:
in the case of the Assignee to:
[Assignee address]
Attention:
Telefax:
in the case of Airbus to:
Airbus S.A.S.
1, rond-point Maurice Bellonte
31707 Blagnac Cedex
France
Attention:
Executive Vice President Customer Services
Telefax:
(33) 5.61.93.46.65
7
12.
Counterparts
This Agreement may be executed by the parties hereto in separate
counterparts and any single counterpart or set of counterparts executed and
delivered by the parties hereto shall constitute one and the same Agreement and
a full original Agreement for all purposes.
13.
Effective Date
This Agreement shall enter into effect and be binding upon the parties
with effect from the Delivery Date.
14.
Governing Law and
Jurisdiction
14.1
This Agreement shall be governed by and
construed in accordance with the laws of England and Wales.
14.2
The parties irrevocably agree that the
courts of England shall have exclusive jurisdiction to settle any disputes
arising out of or in connection with this Agreement.
14.3
[Each of the parties irrevocably and
unconditionally waives (a) any immunity from the jurisdiction of any court
mentioned in Clause 14.2 and any immunity from suit, judgement, execution,
set-off, attachment, arrest, specific performance, injunction or other judicial
order or remedy to which it or any of its assets may be entitled at present or
in the future in any jurisdiction in respect of any legal action or proceedings
with respect to or in connection with this Agreement and (b) any
objections to such jurisdiction on the ground of venue or
forum non conveniens
or any similar grounds.]
8
IN WITNESS WHEREOF
the parties have executed this Agreement in
[ ] originals on the
day and year first above written.
[LEASING COMPANY]
|
Name:
|
|
Title:
|
|
Signature
|
|
In the presence of:
|
|
|
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|
|
[AIRLINE]
|
|
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Name:
|
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Title:
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Signature:
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In the presence of:
|
9
SCHEDULE 1
THE
WARRANTIES
[Copy of Clauses 12 and 13 of the
Purchase Agreement]
10
SCHEDULE 2
CONSENT AND
AGREEMENT
(Airbus
A3[ ]
Aircraft MSN
[ ])
1.
Consent
The undersigned, Airbus, consents to the assignment provisions
contained in Article 2 of the airframe warranty and support assignment
made between [LEASING COMPANY] (the “
Assignor
”)
and [AIRLINE] (the “
Assignee
”) and
dated
[ ],
200[ ] (the “
Assignment
”).
2.
Interpretation
Capitalised terms used in this Consent and Agreement shall have the
meaning ascribed to them in the Assignment.
3.
Rights and Obligations of
the Parties
3.1.
Save as provided in Clause 3.2 of the
Assignment, nothing herein or in the Assignment shall modify in any way the
rights of Airbus under the Purchase Agreement or subject Airbus to any
obligations, costs, expenses or liabilities to which it would not otherwise be
subject.
3.2.
No novation shall take place by reason of
the execution and performance of the Assignment and this Consent and Agreement
in relation to the obligations contained in the Purchase Agreement and the
Assignor shall not be discharged from any of its obligations under the Purchase
Agreement save to the extent that such duties or obligations are performed by
the Assignee.
3.3.
The Assignee agrees expressly for the
benefit of Airbus that the terms and conditions of the Purchase Agreement shall
apply to all claims made in respect of the Warranties and shall be binding upon
the Assignee and the Assignee shall be subject to all obligations,
restrictions, limitations and conditions of the Purchase Agreement with respect
to the making of such claim (including, without limitation,
11
the Waiver, Release and Renunciation in
Clause 12 of the Purchase Agreement) to the same extent as if the Assignee
had been named “Buyer” thereunder.
3.4.
Airbus shall not be deemed to have knowledge
of any termination of the assignment referred to Clause 4.1 of the
Assignment unless and until Airbus shall have received the written notice
required by Clause 4.2 thereof;
3.5.
Airbus accepts the stipulations in its
favour contained in the Assignment.
4.
Indemnities
Each of the Assignor and the Assignee hereby jointly and severally
indemnifies and hold harmless Airbus from and against any and all costs,
expenses, losses and liabilities (including any taxes or duties of any kind)
imposed on, incurred by or asserted against Airbus in any way relating to or
arising out of this Consent and Agreement and the Assignment or any action or
inaction of the Assignor in connection with this Consent and Agreement and the
Assignment, unless and except to the extent that such costs, expenses, losses
and liabilities are attributable to the gross negligence or wilful misconduct
of Airbus. Any claim for payment by
Airbus, as the case may be, shall be substantiated by the certificate of its Vice-President,
Contracts Administration and Delivery Transactions (which certificate shall, in
the absence of manifest error, be conclusive and binding on the parties).
5.
Non-disclosure
Each of the Assignor and the Assignee agrees that it shall not disclose
to any person the terms of Clauses 12, 13, [ ]and [ ]of the
Purchase Agreement or this Agreement except (a) as required by any
applicable law or governmental regulations, or (b) with the prior written
consent of Airbus.
or
12
(2) [Each of the Assignor and the Assignee agrees that it shall not
disclose to any person the terms of Clauses 12, 13, [ ] and [ ]
of the Purchase Agreement or this Agreement, except (a) as required by
applicable law or governmental regulations, (b) as required in connection
with any legal proceedings arising from or in connection with this Agreement or
(c) to the Export Credit Agencies, (d) with the prior written consent
of Airbus.]
6.
Illegality
If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect neither the legality, validity or
enforceability of the remaining provisions shall in any way be affected or
impaired.
7.
Counterparts
This Consent and Agreement may be executed by the parties in separate
counterparts and any single counterpart or set of counterparts executed and
delivered by the parties shall constitute one and the same Agreement and a full
original Agreement for all purposes.
8.
Governing Law and
Jurisdiction
This Consent and Agreement shall be governed by and construed in
accordance with the laws of England and Wales.
The courts of England shall have exclusive jurisdiction over any dispute
arising hereunder.
9.
Purchase Agreement Consent
This Consent and Agreement shall constitute the consent of Airbus
required in respect of the Assignment by the Purchase Agreement.
(2)
alternative wording to be used in case of
ECA financing
13
|
Dated
|
200[ ]
|
|
|
|
|
|
AIRBUS S.A.S.
|
|
|
|
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Name
|
:
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|
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Title
|
:
|
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|
|
|
Signature
|
:
|
|
|
|
Accepted and Agreed
|
|
|
|
[LEASING COMPANY]
|
|
|
|
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Name
|
:
|
|
|
|
|
Title
|
:
|
|
|
|
|
Signature
|
:
|
|
|
|
Accepted and Agreed
|
|
|
|
|
[AIRLINE]
|
|
|
|
|
Name
|
:
|
|
|
|
|
Title
|
:
|
|
|
|
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Signature
|
:
|
14
Exhibit 10.14
Execution
Copy
|
|
AERVENTURE LIMITED
|
(1)
|
|
|
as Borrower
|
|
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|
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CALYON S.A.
|
(2)
|
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as Lender
|
|
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CALYON S.A.
|
(3)
|
|
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as Security Trustee
|
|
|
|
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|
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CALYON S.A.
|
(4)
|
|
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as Agent
|
|
FACILITY
AGREEMENT
relating to pre-delivery payments in respect
of up to twelve (12) Airbus A319-100 Aircraft
and eighteen (18) Airbus A320-200 Aircraft
Contents
|
Clause
|
|
Page
|
|
|
|
|
|
1
|
Purpose and definitions
|
1
|
|
|
|
|
|
2
|
The Facility Amount; Conversion
Rights
|
10
|
|
|
|
|
|
3
|
Conditions Precedent
|
11
|
|
|
|
|
|
4
|
Advances
|
12
|
|
|
|
|
|
5
|
Interest and Interest Periods;
alternative interest rates
|
13
|
|
|
|
|
|
6
|
Repayment and prepayment; withdrawal
of Aircraft from Facility
|
14
|
|
|
|
|
|
7
|
Expenses; VAT; stamp duty
|
16
|
|
|
|
|
|
8
|
Payments and Taxes; accounts and calculations
|
17
|
|
|
|
|
|
9
|
Representations and warranties
|
19
|
|
|
|
|
|
10
|
Undertakings
|
21
|
|
|
|
|
|
11
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Equity Contribution
|
23
|
|
|
|
|
|
12
|
Negative Pledge
|
24
|
|
|
|
|
|
13
|
[Intentionally omitted]
|
24
|
|
|
|
|
|
14
|
Financial Covenants
|
24
|
|
|
|
|
|
15
|
Events of Default and Termination
|
25
|
|
|
|
|
|
16
|
Indemnities
|
28
|
|
|
|
|
|
17
|
Illegality; increased costs;
mitigation
|
29
|
|
|
|
|
|
18
|
Assignment, transfer and lending
offices
|
31
|
|
|
|
|
|
19
|
Notices and other matters
|
31
|
|
|
|
|
|
20
|
Governing law
|
33
|
|
|
|
|
|
21
|
Jurisdiction
|
33
|
|
|
|
|
|
Schedule 1 The Lenders
|
34
|
|
|
|
|
|
Schedule 2 Form of Drawdown
Notice
|
35
|
|
|
|
|
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Schedule 3 Documents and
evidence required as conditions precedent
|
37
|
|
|
|
|
|
Schedule 4 Financial Schedules
|
38
|
|
|
|
|
|
THIS FACILITY AGREEMENT
is dated 3 November 2006 (this “
Agreement
”)
and made
BETWEEN
:
(1)
AERVENTURE
LIMITED
, a company incorporated and existing under
the laws of Ireland having its registered office at AerCap House, Shannon,
County Clare, Ireland (the “
Borrower
”);
(2)
CALYON
S.A.
, a
société anonyme
established
and existing under the laws of France acting through its registered office at
9, quai du President Paul Doumer, 92920 Paris La Défense, France in its
capacity as Lender;
(3)
CALYON
S.A.
, a
société anonyme
established
and existing under the laws of France acting through its registered office at
9, quai du President Paul Doumer, 92920 Paris La Défense, France in its
capacity as security trustee for and on behalf of the Lenders (in such capacity
the “
Security Trustee
” which expression
shall include any successor thereto); and
(4)
CALYON
S.A.
, a
société anonyme
established
and existing under the laws of France acting through its registered office at
9, quai du President Paul Doumer, 92920 Paris La Défense, France in its
capacity as agent for and on behalf of the Lenders (in such capacity the “
Agent
” which expression shall include any successor
thereto).
IT IS AGREED
as follows:
1
Purpose and definitions
1.1
Purpose
This Agreement sets out the terms and
conditions upon which the Lenders have agreed to make available to the Borrower
a loan facility of up to the Maximum Loan Amount to be used for the purpose of
funding the obligations of the Borrower to make certain Pre-Delivery Payments
due to the Manufacturer pursuant to the Purchase Agreement.
1.2
Definitions
In this Agreement, unless the context
otherwise requires:
“
Advance
” means
each borrowing of a portion of the Commitment by the Borrower or (as the
context may require) the principal amount of such borrowing;
“
AerCap
” means
AerCap B.V., a company organised and existing under the laws of The Netherlands
whose registered office is at Evert van de Beekstraat 312, 1118 CX Schiphol
Airport, Amsterdam, The Netherlands;
“
AerCap Holdings
”
means AerCap Holdings C.V., a limited partnership (“
commanditaire
vennootschap
”) organised and existing under the laws of The Netherlands
whose registered office is at Evert van de Beekstraat 312, 1118 CX Schiphol
Airport, Amsterdam, The Netherlands or, as the case may be, following the
transfer of the entire issued share capital of AerCap to AerCap Holdings N.V.,
AerCap Holdings N.V., a
“naamlooze vennootschap”
organised and existing under the laws of The Netherlands whose registered
office is at Evert van de Beekstraat 312, 1118 CX Schiphol Airport Amsterdam,
The Netherlands;
“
AerCap Ireland
”
means AerCap Ireland Limited a company incorporated and existing under the laws
of Ireland having its registered office at AerCap House, Shannon, County Clare,
Ireland;
“
Airbus Letter Agreement
”
means the letter agreement dated of even date herewith and made between the
Security Trustee, the Borrower and the Manufacturer pursuant to which the
Manufacturer has agreed to make an additional credit memorandum available in
respect of certain of the Aircraft, on the specific, and strictly confidential,
terms set out therein;
1
“
Aircraft
”
means, subject to clause 2.3, together (or, if the context so requires, one or
more of) the twelve (12) Airbus A319-100 and eighteen (18) Airbus A320-200
Aircraft which are the subject of the Purchase Agreement, and references in
this Agreement to “
Aircraft N°1
”, “
Aircraft N°2
”, “
Aircraft N°3
”, “
Aircraft N°4
”, “
Aircraft N°5
”, “
Aircraft N°6
”, “
Aircraft N°7
” ,
“
Aircraft N°8
”, “
Aircraft N°9
”,
“
Aircraft N°10
”, “
Aircraft
N°11
”, “
Aircraft N°12
”,
“
Aircraft N°13
”, “
Aircraft N°14
”,
“
Aircraft N°15
”, “
Aircraft
N°16
”, “
Aircraft N°17
”,
“
Aircraft N°18
”, “
Aircraft
N°19
”, “
Aircraft N°20,
“
Aircraft N°21
”, “
Aircraft N°22
”,
“
Aircraft N°23
”, “
Aircraft
N°24
”, “
Aircraft N°25
”,
“
Aircraft N°26
”, “
Aircraft
N°27
”, “
Aircraft N°28
”,
“
Aircraft N°29
” and “
Aircraft N°30
” shall be deemed to be references to each such
Aircraft in the order of their respective Delivery Dates and any reference to
an Aircraft herein shall be deemed to include the Manuals and Technical Records
and the Engines which are to be delivered with such Aircraft;
“
Applicable Law
”
means, in relation to:
(a)
any jurisdiction, any law,
regulation, regulatory requirement, judgment, order or direction or any other
act of any Government Entity of such jurisdiction; and
(b)
the European Union, any law,
regulation, directive, decision, regulatory requirement, judgment, order or
direction or any act of any EU Institution,
with which any Finance Party or the
Borrower is required to comply, or compliance with which is customary by
persons carrying on the same business either in the same jurisdiction(s) as
such Finance Party or the Borrower or as the case may be, in the European
Union;
“
Basel Paper
”
means the paper entitled “International Convergence of Capital Measurement and
Capital Standards” dated July 1988 and prepared by the Committee on
Banking Regulations and Supervisory Practices (now the Basel Committee on
Banking Supervision) as amended, modified or varied prior to the date hereof;
“
Basel II Paper
”
means the Revised Framework for International Convergence for Capital
Measurement and Capital Standards issued by the Basel Committee on Banking
Supervision in June 2004 and the proposals published by the European
Parliament and Council recasting Directives 2000/12/EC and 93/6/EEC (the Capital
Requirement Directives) and as amended and supplemented from time to time prior
to the date hereof;
“
Borrower Group
”
means the Borrower and its Subsidiaries from time to time;
“
Break Funding Costs
”
means any cost, loss or expense (excluding any loss of Margin) sustained or
incurred by any Lender in maintaining or funding all or any part of the
Loan or in liquidating or re-employing deposits from third parties acquired, or
contracted for, to fund all or any part of the Loan or any other amount
owing to the Lender;
“
Break Funding Gains
”
means any net monetary benefit which is actually realised by any Lender in
maintaining or funding all or any part of the Loan or in liquidating or re-employing
deposits from third parties acquired, or contracted for, to fund all or any part of
the Loan or any other amount owing to the Lender;
“
Business Day
”
means a day (other than a Saturday or Sunday or holiday scheduled by law) on
which banks are open for business in London, Paris, Amsterdam and New York
City;
“
Business Plan
”
means the five (5) year business plan of the Borrower as provided by the Borrower
to the Agent prior to the first Drawdown Date;
“
Buyer Furnished Equipment
”
means, in respect of any Aircraft, the buyer furnished equipment for that
Aircraft;
“
Capital Adequacy
Requirement
” means a request or requirement relating to the
maintenance of capital, including one which makes any change to, or is based on
any alteration in, the interpretation of the Basel Paper and/or the Basel II
Paper or which increases the amounts of capital required thereunder, other
than, with respect to any Lender, a request or requirement
2
made by way of implementation of the Basle
Paper and/or the Basel II Paper in the manner in which it is being implemented
at the date hereof by the regulatory authority or authorities supervising such
Lender in the jurisdiction in which such Lender is incorporated or the
jurisdiction through which it is acting for the purposes of this Agreement;
“
CFM
” means CFM
International S.A.;
“
CFM Engine Assignment
”
means the engine warranties and engine credit assignment entered, or to be
entered, into between the Borrower, the Security Trustee and CFM;
“
CFM General Terms
Agreement
” means the general terms agreement, with reference number
9-4196, dated as of 31 August 2006, together with letter agreement no. 1
dated as of 31 August 2006, in each case between CFM and the Borrower;
“
Change in Law
”
means any enactment, introduction, adoption, abolition, making or variation of,
or any change in or in the interpretation, pursuant to a circular issued by a
Government Entity or judgment of a court, of, deletion from or amendment or
addition to, any Applicable Law, in each case, having the force of law in any jurisdiction;
“
Commitment
”
means in relation to the Lenders at any relevant time the Maximum Loan Amount
as reduced by any relevant term of this Agreement and so that, if at such time
the Commitment has been reduced to zero, references to the Commitment shall be
construed as a reference to the Commitment immediately prior to such reduction
to zero;
“
Compliance Certificate
”
means a certificate issued by a director for the time being of the Borrower
which confirms, at any relevant time, whether or not the Borrower has, at such
time, complied with the financial covenants set out in clause 14.2;
“
Conversion Rights
”
means the conversion rights granted by the Manufacturer to the Borrower
pursuant to the Purchase Agreement;
“
Converted Aircraft
”
has the meaning given to such term in clause 2.3.2;
“
Default
” means
any Event of Default or any event or circumstance which would, upon the giving
of a notice by the Agent and/or expiry of the relevant period and/or fulfilment
of any other condition, constitute an Event of Default;
“
Delivery Date
”
means, in respect of each Aircraft, the date on which the Manufacturer shall
tender such Aircraft for delivery to the Borrower, or to any other purchaser of
such Aircraft, and the Borrower, or such other purchaser, shall accept the
same, pursuant to and in accordance with the provisions of the Purchase
Agreement;
“
Dollars
” and “
$
” mean the lawful currency of the United States of America
and in respect of all payments to be made under this Agreement in Dollars mean
funds which are for same day settlement in the New York Clearing House
Interbank Payments System (or such other U.S. dollar funds as may at
the relevant time be customary for the settlement of international banking
transactions denominated in U.S. dollars);
“
Drawdown Date
”
means each date on which an Advance is or is to be made hereunder;
“
Drawdown Notice
”
means a notice in the form or substantially in the form of schedule 2,
duly completed with particulars of the relevant Advance;
“
Drawdown Period
”
means the period commencing on the date of this Agreement and ending on
whichever is the earlier of (i) the Final Repayment Date or (ii) the
date on which the Commitment is reduced to zero pursuant to any of
clauses 6.3 or 17.1;
“
Due Date
”
means, in respect of each Pre-Delivery Payment for an Aircraft, the date on
which such Pre-Delivery Payment is, at the date of this Agreement, scheduled to
become due and
3
payable to the Manufacturer in accordance
with the Purchase Agreement, as set out in schedule 4;
“
Engines
” means (i) in
respect of any A319-100 Aircraft, the two CFM 56-5B6/P model (or any improved
or advanced version thereof) aircraft engines or, as the case may be, the
two IAE V2524-A5 model (or any improved or advanced version thereof) aircraft
engines to be delivered with such Aircraft and (ii) in respect of any
A320-200 Aircraft means the two CFM 56 5B4/P model (or any improved or advanced
version thereof) aircraft engines or, as the case may be, the two IAE
V2527-A5 model (or any improved or advanced version thereof) aircraft engines
to be delivered with such Aircraft;
“
Engine Agreements
”
means, together, the CFM General Terms Agreement and the IAE General Terms
Agreement, and “
Engine Agreement
” means either of
them;
“
Engine Agreement Default
”
means any event or circumstance which does or would, upon the giving of notice
and/or expiry of the relevant period and/or fulfilment of any other condition, entitle an Engine Manufacturer to terminate
all or part of an Engine Agreement in accordance with the provisions
thereof;
“
Engine Assignments
”
means, together, the CFM Engine Assignment and IAE Engine Assignment, and “
Engine Assignment
” means either of them;;
“
Engine Manufacturer
”
means each of CFM and IAE, as the case may be;
“
Equity Contribution
”
means, in respect of an Aircraft, each (or the aggregate, as the context may require)
of the amounts specified in column 4 of the relevant paragraph of schedule 4,
subject to any adjustment being made to such amounts pursuant to clause 11;
“
Event of Default
”
means any of the events or circumstances described in clause 15.1;
“
Excluded Taxes
”
means:
(a)
any Tax
which is imposed on or suffered by the affected Finance Party, or payable to
the affected Finance Party in respect of a Tax with respect to, or measured by,
the income or capital gain of the affected Finance Party imposed by:
(i)
the
jurisdiction through which it is acting for the purposes of the Relevant
Documents, unless it is imposed or suffered in consequence of any failure by
any other party to any Relevant Document to perform any of its obligations
thereunder; or
(ii)
any other
jurisdiction, other than Ireland and any other jurisdiction in which the
Borrower is at the relevant time incorporated or at the relevant time has its
principal place of business, unless such Tax is imposed or suffered in
consequence of (A) any failure by any other party to any Relevant Document
to perform any of its obligations thereunder, (B) any other
connection between the Borrower and such jurisdiction, and/or (C) any
payment by the Borrower under the Relevant Documents being made from, within or
through such jurisdiction; or
(b)
any Tax
for which the affected Finance Party has actually been indemnified in full
pursuant to any other provision of any Relevant Document; or
(c)
any Tax
to the extent that such Tax would not have been imposed or suffered, or
otherwise would not have arisen, but for any breach by the affected Finance
Party of any of its express obligations under any of the Relevant Documents
(but excluding any breach in consequence of a failure by any other party to a
Relevant Document to perform any of its obligations thereunder); or
(e)
any Tax
to the extent that such Tax would not have been imposed or suffered but for any
misrepresentation made by the affected Finance Party under any of the Relevant
4
Documents to which it is a party (but excluding any
breach in consequence of a failure by any other party to any Relevant Document
to perform any of its obligations thereunder); or
(f)
any Tax
which would not have been imposed or suffered but for a reasonably avoidable
delay or failure by the affected Finance Party in filing tax computations or
returns, or in paying any Tax, which:
(i)
it is
required by Applicable Law of the jurisdiction through which it is acting for
the purposes of the Relevant Documents to file or, as applicable, pay; or
(ii)
it is
required by any other Applicable Law to file or, as applicable, pay and:
(A)
the
Borrower (acting reasonably) has requested the affected Finance Party to make
such filing or, as applicable, pay such Tax, and
(B)
in the
case of the payment of a Tax, other than a Tax which is an Excluded Tax
pursuant to the other provisions of this definition, there has been advanced to
the affected Finance Party sufficient funds to enable it to pay the Tax in
full; or
(g)
any Tax
which arises solely from an act or omission which constitutes gross negligence
or wilful default by the affected Finance Party;
“
Fee Letters
”
means the letters between the Borrower, the Agent and the Security Trustee with
respect to certain fees, costs and expenses payable by the Borrower in
connection with the Relevant Documents;
“
Final Purchase Price
”
has the meaning given to such term in the Purchase Agreement Assignment;
“
Final Repayment Date
”
means 31 January 2010;
“
Finance Parties
”
means the Lenders, the Security Trustee and the Agent and “
Finance
Party
” shall mean any of them;
“
Financial Indebtedness
”
means any indebtedness for or in respect of:
(a)
moneys borrowed;
(b)
any amount raised by acceptance
under any acceptance credit facility;
(c)
any amount raised pursuant to any
note purchase facility or the issue of bonds, notes, debentures, loan stock or
any similar instrument;
(d)
the amount of any liability in
respect of any lease or hire purchase contract which would, in accordance with
GAAP, be treated as a finance or capital lease;
(e)
receivables sold or discounted
(other than any receivables to the extent they are sold on a non-recourse
basis);
(f)
any amount raised under any other
transaction (including any forward sale or purchase agreement) having the
commercial effect of a borrowing;
(g)
any derivative transaction entered
into in connection with protection against or benefit from fluctuation in any
rate or price (and, when calculating the value of any individual derivative
transaction, only the marked to market value of that derivative transaction
shall be taken into account);
5
(h)
any counter-indemnity obligation
in respect of a guarantee, indemnity, bond, standby or documentary letter of
credit or any other instrument issued by a bank or financial institution; and
(i)
the amount of any liability in
respect of any guarantee or indemnity for any of the items referred to in
paragraphs (a) to and including (h) above,
but excluding any counter-indemnity obligation of the
nature referred to in paragraph (h) above and/or any derivative
transaction referred to in paragraph (g) above, in each case, to the
extent that such obligations and liabilities under the corresponding instrument
are fully cash-collateralised.
“
Financial Covenants
”
has the meaning given to such term in clause 14.3;
“
Government Entity
”
means (i) any national, state or local government, (ii) any board,
commission, department, division, courts or agency or political sub-division
thereof, howsoever constituted, and (iii) any association, organisation or
institution (international or otherwise) of which any entity mentioned in (i) or
(ii) above is a member or to whose jurisdiction it is subject or in whose
activities it is a participant;
“
IAE
” means IAE
International Aero Engines AG;
“
IAE Engine Assignment
”
means the engine security assignment entered, or to be entered, into between
the Borrower and the Security Trustee, together with the engine consent and
agreement thereto executed by each of the Borrower, the Security Trustee and
IAE;
“
IAE General Terms
Agreement
” means the engine general terms agreement dated 10 August 2006
between IAE and the Borrower;
“
Inactive Aircraft
”
means any Aircraft in respect of which no Advances have been made pursuant to
this Agreement;
“
Instructing Group
”
has the meaning given to such term in the Trust Deed;
“
Interest Payment Date
”
means the last day of an Interest Period;
“
Interest Period
”
means in relation to any Advance or the Loan or any part thereof each
period for the calculation of interest in respect of such Advance or the Loan
or part thereof ascertained in accordance with clause 5.2;
“
Last Scheduled Delivery
Date
” means, in respect of each Aircraft, the last day of the
Scheduled Delivery Month for such Aircraft;
“
Lenders
” means
the institutions named in schedule 1 and includes their respective
successors, permitted Transferees and assigns and “
Lender
”
means any one of them;
“
Lender’s Proportion
”
means, in respect of any Lender, that percentage of the Commitment specified
opposite that Lender in schedule 1 and/or in any Substitution Certificate,
as the same may be reduced or increased pursuant to any Substitution
Certificate and/or further reduced or cancelled pursuant to the terms of this
Agreement;
“
LIBOR
” means,
in relation to any amount denominated in Dollars and for any period, the rate
for deposits in Dollars for that amount and for that period which is:
(a)
appearing on page 3750 (or
similar page, if the Telerate page 3750 is not or no longer available) for
Dollars on the Bridge/Telerate screen at or about 11:00 a.m. (London time)
on the Quotation Date relating to that period; or
(b)
if (a) does not apply, the
arithmetic mean (rounded to the nearest four decimal places) of the rates, as
supplied to the relevant Agent at its request, quoted by the Reference Banks
6
to
leading banks in the European interbank market, at or about 11:00 a.m.
(London time) on the Quotation Date relating to that period, for the offering
of deposits in Dollars in an amount comparable with that amount and for a
period comparable to that period;
“
Lien
” means any
encumbrance or security interest whatsoever, howsoever created or arising,
including any right of ownership, security, mortgage, pledge, assignment by way
of security, charge, lease, lien, statutory right in rem, hypothecation, title
retention arrangement, attachment, levy, claim, right of detention or security
interest whatsoever, howsoever created or arising, or any right or arrangement
having a similar effect to any of the above;
“
LoadAir
” means
International Cargo Airlines Company KSC, a joint stock company incorporated in
Kuwait (commercial register number 109323 and registered at the Kuwait Chamber
of Commerce and Industry since 2005 under number 97424 with commercial licence
number Public Shareholder/57/2004) whose registered office is at Free Trade
Zone, Kuwait City 70655, Kuwait;
“
Loan
” means the
aggregate principal amount owing to the Lenders under this Agreement at any
relevant time;
“
Mandatory Prepayment Event
”
means any of the events or circumstances set out in clause 6.3;
“
Manuals and Technical
Records
” means together those records, logs, manuals, technical data
and other materials and documents relating to the Aircraft, together with any
amendments thereto, as shall be or are to be delivered pursuant to the Purchase
Agreement;
“
Manufacturer
”
means Airbus S.A.S., a
Société par Actions
Simplifiée
duly created and existing under French law having its
principal office at 1 rond-point Maurice Bellonte, 31707 Blagnac Cedex, France,
including its successors and assigns, in its capacity as Manufacturer together
with its successors in title and permitted assigns;
“
Margin
” means
one point six five per cent (1.65%) per annum;
“
Maximum Loan Amount
”
means one hundred and eighteen million nine hundred and twelve thousand two
hundred and eighty two Dollars ($118,912,282);
“
Maximum Loan Outstanding
”
means eighty five million eighty nine thousand four hundred and ninety seven
Dollars ($85,089,497);
“
Net Aircraft Price
”
means, in respect of each Aircraft, the Final Purchase Price for that Aircraft
net of all applicable credit memoranda and including (i) Buyer Furnished
Equipment up to a maximum of six hundred and eighty four thousand six hundred
and twenty three Dollars ($684,623) in respect of any A319-100 Aircraft and
seven hundred and sixty two thousand two hundred and twenty two Dollars
($762,222) in respect of any A320-200 Aircraft and (ii) Specification
Change Notices up to maximum of five hundred thousand Dollars ($500,000) of
Specification Change Notices in respect of any A319-100 Aircraft and five
hundred and seventy thousand Dollars ($570,000) in respect of any A320-200
Aircraft with each of the Dollar figures referenced in this definition being
calculated by reference to economic conditions prevailing as of January 2005
and by reference to a theoretical delivery of the relevant Aircraft in January 2005;
“
Net Aircraft Price Maximum
”
means
(a)
in respect of any A319-100
Aircraft, thirty three million two hundred thousand Dollars ($33,000,000); and
(b)
in respect of any A320-200
Aircraft, thirty six million seven hundred and fifty thousand Dollars ($36,500,000),
7
in each case, calculated by reference to
economic conditions prevailing as of January 2005 and by reference to a
theoretical delivery of such Aircraft in January 2005 and subject to
escalation at a maximum rate of three per cent (3.0%) per annum;
“
Ownership Letter Agreement
”
means the letter to be issued by AerCap Ireland in favour of the Security
Trustee pursuant to which AerCap Ireland will issue certain guarantees to the
Security Trustee in respect of the funding of the Borrower and give certain
confirmations in respect of AerCap Ireland’s ownership of the Borrower, such
letter to be in form and substance satisfactory to the Security Trustee,
acting reasonably;
“
Pre-Delivery Payments
”
means, in respect of each Aircraft, the payments to be made to the Manufacturer
in respect of such Aircraft prior to the Delivery Date therefor pursuant to the
Purchase Agreement, as more particularly set out for each Aircraft in schedule 3
to the Purchase Agreement Assignment, and “
Pre-Delivery Payment
”
means any one of such payments;
“
Purchase Agreement
”
means the purchase agreement dated 30 December 2005 and entered into
between the Borrower and the Manufacturer in relation to the Aircraft;
“
Purchase Agreement
Assignment
” means the security assignment relating to the Purchase
Agreement entered, or to be entered, into between the Borrower and the Security
Trustee, together with the consent and agreement thereto executed by each of
the Borrower, the Security Trustee and the Manufacturer;
“
Purchase Agreement Default
”
means any event or circumstance which does or would, upon the giving of notice
and/or expiry of the relevant period and/or fulfilment of any other condition, entitle the Manufacturer to terminate all or part of
the Purchase Agreement in accordance with the provisions thereof;
“
Quarterly Date
”
means the last Business Day in each of March, June, September and December in
each calendar year throughout the Drawdown Period;
“
Quotation Date
”
means, in relation to an Interest Period or other period for which LIBOR is to
be determined, the date which is two Business Days prior to the first day of
the relevant Interest Period or other period or, if such day is not a Business
Day, the immediately preceding Business Day;
“
Reference Banks
”
means the London branches of Calyon, The Sumitomo Mitsui Banking Corporation
and Norddeutsche Landesbank Girozentrale;
“
Relevant Documents
”
means this Agreement, the Purchase Agreement, the Airbus Letter Agreement, each
Engine Assignment, the Purchase Agreement Assignment, the Trust Deed, the Fee
Letters, the Ownership Letter Agreement and each notice, acknowledgement, deed,
certificate, consent or other document issued pursuant to any of the foregoing
and any other which the Borrower and the Agent agree in writing shall be a
Relevant Document;
“
Repayment Date
”
means, subject to clause 8.2 and in respect of any Advance, the earlier of (i) the
Delivery Date for the Aircraft in respect of which such Advance is made, (ii) any
date on which the obligation of the Manufacturer to sell and of the Borrower to
purchase that Aircraft pursuant to the Purchase Agreement is cancelled or
otherwise terminated, (iii) any other date on which the Borrower becomes
obliged to repay or prepay such Advance in accordance with the terms hereof,
and (iv) the Final Repayment Date;
“
Scheduled Delivery Month
”
means, in respect of each Aircraft and subject to clause 6.2, the month in
which the delivery thereof is, as at the date of this Agreement, scheduled to
occur, as set out in schedule 4;
“
Specification Change
Notice
” or “
SCN
” means any
Specification Change Notice issued by the Borrower pursuant to the Purchase
Agreement;
8
“
Subsidiary
”
means, in relation to any person, any other person:
(a)
which is controlled, directly
or indirectly, by the first mentioned person (and, for this purpose, a person
shall be treated as being controlled by another if that other person is able to
direct its affairs and/or control the composition of its board of directors or
equivalent body);
(b)
more than half the issued
share capital of which is beneficially owned, directly or indirectly, by the
first mentioned person;
(c)
which is a Subsidiary of
another Subsidiary of the first mentioned person; or
(d)
where the beneficial interest
of such other person, if it is a trust, association or other unincorporated
organisation, is more than fifty per cent (50%) owned, directly or indirectly,
by the first mentioned person;
“
Substitution Certificate
”
has the meaning given to such term in the Trust Deed;
“
Taxes
” includes
all present and future taxes (including sales, use, excise, personal property
and other taxes), levies, imposts, duties, fees or governmental or other
charges of whatever nature together with interest thereon and penalties in
respect thereof, and “
Tax
” and “
Taxation
” shall be construed accordingly;
“
Transferee
” has
the meaning given to such term in the Trust Deed;
“
Trust Deed
”
means the trust deed of even date herewith, entered into between the Borrower,
the Lenders, the Agent and the Security Trustee; and
“
Variation Notice
”
has the meaning given to such term in clause 14.4.2.
1.3
Headings
Clause headings and the table of contents
are inserted for convenience of reference only and shall be ignored in the
interpretation of this Agreement.
1.4
Construction
of certain terms
In this Agreement, unless the context
otherwise requires:
1.4.1
references to clauses and schedules are to be construed as
references to the clauses of, and schedules to, this Agreement and references
to this Agreement include its schedules;
1.4.2
references to (or to any specified provision of) this Agreement or
any other document shall be construed as references to this Agreement, that
provision or that document as in force for the time being and as may be
amended from time to time in accordance with its terms and where consent is, by
the terms of any Relevant Document, required to be obtained as a condition to
such amendment being permitted, with the prior written consent of the relevant
parties;
1.4.3
references to a “
regulation
”
include any present or future regulation, rule, directive, requirement, request
or guideline (whether or not having the force of law) of any agency, authority,
central bank or government department or any self-regulatory or other national
or supra-national authority;
1.4.4
words importing the plural shall include the singular and vice
versa;
1.4.5
unless otherwise expressly stated, references to a time of day are
to Paris time;
9
1.4.6
references to a “
person
” shall
be construed as including references to an individual, firm, company,
corporation, unincorporated body of persons or any Government Entity or any of
its agencies;
1.4.7
references to “
assets
” include
all or part of any business, undertaking, real property, personal
property, uncalled capital and any rights (whether actual or contingent,
present or future) to receive, or require delivery of, any of the foregoing;
1.4.8
references to a “
guarantee
”
include references to an indemnity or other assurance against financial loss
including, without limitation, an obligation to purchase assets or services as
a consequence of a default by any other person to pay any Financial
Indebtedness and “
guaranteed
”
shall be construed accordingly;
1.4.9
references to the “
equivalent
” of
an amount specified in a particular currency (the “
specified
currency amount
”) shall be construed as a reference to the amount of
the other relevant currency which can be purchased with the specified currency
amount in the London foreign exchange market at or about 11 a.m. London
time on the day on which the calculation falls to be made for spot delivery as
determined by the Lenders; and
1.4.10
references to any enactment shall be deemed to include references to
such enactment as re-enacted, amended or extended.
2
The
Facility Amount; Conversion Rights
2.1
Agreement
to advance Loan
The
Lenders, relying upon each of the representations and warranties in
clause 9, agree to lend to the Borrower upon and subject to the terms of
this Agreement a principal sum of up to the Maximum Loan Amount. The obligation
of each Lender under this Agreement shall be to make its Lender’s Proportion of
each Advance on the Drawdown Date of such Advance.
2.2
Obligations
several
The
obligations of each Lender under this Agreement are several; the failure of any
Lender to perform such obligations shall not relieve any other Lender, the
Agent or the Borrower of any of their respective obligations or liabilities
under this Agreement nor shall the Agent be responsible for the obligations of
any Lender (except for its own obligations, if any, as a Lender) nor shall any
Lender be responsible for the obligations of any other Lender under this
Agreement.
2.3
Conversion
Rights
2.3.1
The Finance Parties acknowledge
that, pursuant to the Conversion Rights, the Borrower has the right, on the
terms and subject to the conditions set out in the Purchase Agreement, to convert
an A319-100 Aircraft to an A320-200 Aircraft and vice versa.
2.3.2
The Finance Parties agree to the
exercise by the Borrower of the Conversion Rights in the manner contemplated by
the Purchase Agreement, provided that:
(a)
the Borrower shall have given the
Agent as much notice as is practicably possible but in any event not less than
ten (10) Business Days’ written notice prior to exercising a Conversion
Right in respect of any Aircraft and shall specify the Aircraft which is the
subject of such Conversion Right (a “
Converted Aircraft
”);
(b)
the Manufacturer shall have provided
to the Borrower (with a copy to the Agent) the revised configuration of the Converted
Aircraft, together with the revised amounts of the relevant Pre-Delivery
Payments for the Converted Aircraft;
(c)
unless the Agent (acting on the
instructions of the Instructing Group) shall have otherwise agreed in writing,
the exercise of such Conversion Right shall not cause more than eighty per cent
(80%) of the Aircraft to be of the same type; and
10
(d)
the exercise of such Conversion
Right shall not cause the Maximum Loan Amount to be increased.
2.3.3
Following the exercise by the
Borrower of a Conversion Right in accordance with clause 2.3.2, the Agent shall
deliver to the Borrower a replacement schedule 4. Such replacement schedule shall,
when agreed by the Agent and the Borrower, in the absence of manifest error, be
conclusive and binding on the parties hereto. Following such agreement by the
Agent and the Borrower, all references in this Agreement to “schedule 4”
shall be deemed to be a reference to such replacement schedule.
3
Conditions Precedent
3.1
Documents and evidence
The
obligation of the Lenders to make the Commitment available shall be subject to
the conditions that, not later than three (3) Business Days before the day
on which the Drawdown Notice in respect of the first Advance is given, the
Agent shall have received the documents and evidence specified in schedule 3
in form and substance satisfactory to the Security Trustee and the Agent.
3.2
Advance
conditions precedent
The
obligation of the Lenders to make each Advance is subject to the conditions
that at the date of the Drawdown Notice and on the Drawdown Date in respect of
such Advance:
3.2.1
the Advance made shall not
result in the Loan exceeding the Maximum Loan Outstanding;
3.2.2
the representations and warranties
set out in clause 9.1 (other than the representations and warranties in
clauses 9.1.8 and 9.1.11, and so that the representation and warranty in
clause 9.1.10 shall for this purpose refer to the then latest audited
financial statements delivered to the Agent under clause 10.1) are true
and correct on and as of such dates as if each were made with respect to the
facts and circumstances existing at such dates;
3.2.3
the Agent shall have
received a Drawdown Notice for such Advance in accordance with clause 4.1;
3.2.4
no Default shall have
occurred; and
3.2.5
no Purchase Agreement
Default or Engine Agreement Default shall have occurred;
3.3
The obligation of the Lenders
to make each Advance is subject to the further conditions that, on the Drawdown
Date in respect of such Advance:
3.3.1
the Agent shall have
received from the Borrower (i) by 12 noon (Paris time) on the Drawdown
Date, a copy of the SWIFT message (MT103 or equivalent) in respect of the
payment of the Equity Contribution corresponding to such Advance and (ii) by
2.00pm (Paris time) on the Drawdown Date, payment of the Equity Contribution
corresponding to such Advance for onward disbursement by the Agent to the
Manufacturer to the account specified in clause 4.3 on the express
understanding that the Agent and each Lender waives any rights which it may have
to set off such amount against any other amounts then owing to the Agent or
such Lender under any other transaction to which the Agent and the Borrower or,
as the case may be, the relevant Lender and the Borrower, are party and
the Agent and each Lender hereby waives any and all such rights;
3.3.2
the Finance Parties shall
have approved the Final Purchase Price of the relevant Aircraft and the Agent
shall have received written confirmation from the Manufacturer as to the
Balance of the Final Purchase Price (as defined in the Purchase Agreement
Assignment) for the relevant Aircraft provided that to the extent that such
confirmation is contained in the executed consent and agreement of the Manufacturer
to the Purchase Agreement Assignment, and such executed consent and agreement
is received by the Agent on or prior
11
to the
Drawdown Date for the first Advance hereunder, no separate written confirmation
shall be required in respect of the drawdown of any subsequent Advance;
3.3.3
in respect of the drawdown of the
first Advance for any Aircraft, the Agent shall have received copies of the
Borrower’s bank statements evidencing, to the reasonable satisfaction of the
Agent, the payment of any and all Equity Contributions made by the Borrower to
the Manufacturer in respect of that Aircraftprior to the Drawdown Date of such first
Advance; and
3.3.4
any other amounts due and owing by
the Borrower to any of the Finance Parties under this Agreement or otherwise to
any party to the Fee Letters, in each case, as at the Drawdown Date shall have
been paid in full.
3.4
Waiver of
conditions precedent
The conditions specified in this clause 3
are inserted solely for the benefit of the Lenders and may be waived in
whole or in part and with or without conditions by the Agent (acting on
the instructions of the Instructing Group) in respect of the first or any other
Advance without prejudicing the right of the Lenders to require fulfilment of
such conditions in whole or in part in respect of any other Advance.
4
Advances
4.1
Drawdown
Subject
to the terms and conditions of this Agreement an Advance shall be made
available to the Borrower following receipt by the Agent from the Borrower of a
Drawdown Notice not later than 12 noon on the third Business Day before the
proposed Drawdown Date. A Drawdown Notice shall be effective on actual receipt
by the Agent and, once given, shall, subject as provided in clause 5.5.1,
be irrevocable. For the avoidance of doubt, the Borrower may, subject to the
terms and conditions of this Agreement, issue Drawdown Notices in respect of
one or more Advances to be made on the same Drawdown Date.
4.2
Amount
4.2.1
Subject to clause 4.2.2 each
Advance shall be made in respect of one Pre-Delivery Payment on or prior to the
relevant Drawdown Date, and shall be for a maximum amount of the lesser of:
(a)
the amount of the relevant
Pre-Delivery Payment less any relevant Equity Contribution; and
(b)
the difference between (i) the
Maximum Loan Amount and (ii) the aggregate of the amount of the Loan
immediately prior to the Drawdown Date and the aggregate amount of any other
Advances to be made by the Lender on or prior to such Drawdown Date.
4.2.2
Only one Advance may be made
in respect of any Pre-Delivery Payment.
4.3
Application
of monies advanced
All
payments with respect to the Advances shall be made by the Lenders to the Agent
for further disbursement, without further notice from the Borrower, by the
Agent to the account of the Manufacturer with Calyon, account no. 31489
00020 00099175322 91 (or such other account of the Manufacturer with Calyon
from time to time).
4.4
Termination
of Commitment
Any part of
the Commitment undrawn and uncancelled at the end of the Drawdown Period shall
thereupon be automatically reduced to zero.
12
5
Interest and Interest Periods; alternative
interest rates
5.1
Normal
interest rate
Subject to clause 5.5, the Borrower shall
pay interest on each Advance or, as the case may be, the Loan in respect
of each Interest Period on the relevant Interest Payment Date at the rate per
annum determined by the Agent to be the aggregate of (a) the Margin and (b) one
month LIBOR.
5.2
Determination
of Interest Periods
Subject
to clause 5.5, each Interest Period shall be determined as follows:
5.2.1
the initial Interest Period
in respect of the first Advance shall commence on the Drawdown Date therefor
and have a duration of one month;
5.2.2
subject as otherwise
provided in this clause 5.2, subsequent Interest Periods in respect of the
first Advance shall commence on the expiry of the previous Interest Period
therefor and shall have a duration of one month;
5.2.3
the initial Interest Period
in respect of each subsequent Advance shall commence on the Drawdown Date
therefor and shall end on the same day as the then current Interest Period for
the first Advance ends; and
5.2.4
if the Interest Period for
an Advance would otherwise overrun a Repayment Date for that Advance, such
Interest Period shall terminate on that Repayment Date.
5.3
Interest
for late payment
If the Borrower fails to pay any sum
(including, without limitation, any sum payable pursuant to this clause 5.3) on
its due date for payment under this Agreement, the Borrower shall pay interest
on such sum from the due date up to the date of actual payment (after as well
as before judgement) at a rate and for periods determined by the Agent pursuant
to this clause 5.3. The period beginning on such due date and ending on such
date of payment shall be divided into successive periods of not more than one
month as selected by the Agent each of which (other than the first, which shall
commence on such due date) shall commence on the last day of the preceding such
period. The rate of interest applicable to each such period shall be the
aggregate (as determined by the Agent) of (a) two per cent (2%), (b) the
Margin, and (c) LIBOR. Interest under this clause 5.3 shall be due
and payable on the last day of each period determined by the Agent pursuant to
this clause 5.3 or, if earlier, on the date on which the sum in respect of
which such interest is accruing shall actually be paid.
5.4
Notification
of Interest Periods and interest rate
Unless expressly provided for in this
Agreement, the Agent shall notify the Borrower promptly of the duration of each
Interest Period or other period for the calculation of interest (or, as the
case may be, default interest) and of each rate of interest determined
under this clause 5.
5.5
Market
disruption; non-availability
5.5.1
If and whenever, at any time
prior to the commencement of any Interest Period, the Agent shall have
determined (which determination shall, in the absence of manifest error, be
conclusive) that:
(a)
adequate and fair means do not
exist for ascertaining LIBOR for such Interest Period; or
(b)
deposits in Dollars are not
available to the Lenders in the London Interbank Market in the ordinary course
of business in sufficient amounts to fund the Loan for such Interest Period or
that LIBOR does not accurately reflect the cost to the Lenders of obtaining
such deposits,
13
the
Agent shall forthwith give notice (a “
Determination Notice
”)
to the Borrower. A Determination Notice shall contain particulars of the
relevant circumstances giving rise to its issue. After the giving of any
Determination Notice the undrawn amount of the Commitment shall not be borrowed
until notice to the contrary is given to the Borrower by the Agent.
5.5.2
During the period of 15 days
after any Determination Notice has been given by the Lender under
clause 5.5.1, the Borrower shall enter into negotiations with a view to
agreeing an alternative basis (the “
Substitute Basis
”)
for making available or, as the case may be, maintaining the Loan. The
Substitute Basis may (without limitation) include alternative interest
periods, alternative currencies or alternative rates of interest but shall
include a margin above the cost of funds reasonably available to the Lenders
equivalent to the Margin. The Substitute Basis so certified shall be binding
upon the Borrower and shall take effect in accordance with its terms from the
date specified in the Determination Notice until such time as the Agent
notifies the Borrower that none of the circumstances specified in
clause 5.5.1 continues to exist (which the Agent shall do promptly upon
any determination by the Agent that none of such circumstances continues to
exist) whereupon the normal interest rate fixing provisions of this Agreement
shall apply.
5.5.3
In the event that the Borrower
and the Agent are unable to agree upon the Substitute Basis pursuant to the
procedure set out in clause 5.5.2, the Substitute Basis shall be such alternative
basis as the Agent shall certify, acting reasonably.
6
Repayment and prepayment; withdrawal of
Aircraft from Facility
6.1
Repayment
The
Borrower shall repay each Advance in full in one instalment on the Repayment
Date for such Advance.
6.2
Delivery
Date delay
In the event that the Delivery Date for any
Aircraft shall not have occurred on or before the Last Scheduled Delivery Date
therefor and provided that:
6.2.1
the Borrower shall have
given the Agent as much notice as is practicably possible but in any event not
less than ten (10) Business Days’ written notice prior to such Last
Scheduled Delivery Date of the likelihood of such non-occurrence;
6.2.2
the Manufacturer shall have
certified to the Borrower (with a copy to the Agent) such non-occurrence and
the revised scheduled Delivery Date for that Aircraft; and
6.2.3
such deferral shall not
cause the Loan to exceed the Maximum Loan Outstanding,
the Borrower
shall be entitled, subject to the proviso below, by written notice to the Agent
provided not later than three (3) Business Days prior to the Last
Scheduled Delivery Date for that Aircraft, to defer the Repayment Date for the
Advance in respect of that Aircraft. If, following any deferment, the Delivery
Date for an Aircraft is further delayed, provided that the conditions set out
in clauses 6.2.2 and 6.2.3 continue to be satisfied and subject to the proviso
below, the Borrower shall be entitled, by further written notice to the Agent
provided not later than three (3) Business Days prior to the previous revised
scheduled Delivery Date for that Aircraft, to further defer the Repayment Date
for the Advances in respect of that Aircraft.
PROVIDED ALWAYS THAT
the Repayment Date for the Advance in respect of an Aircraft may not
be deferred to a date which is later than the earlier of the date falling three
(3) months after the Last Scheduled Delivery Date for that Aircraft and the
Final Repayment Date.
6.3
Mandatory
Prepayment
Each of the events and circumstances set
out below is a Mandatory Prepayment Event:
14
6.3.1
Seizure: all or substantially
all of the undertaking, assets, rights or revenues of, or shares in, the
Borrower are seized, expropriated, nationalised or compulsorily acquired by or
under the authority of any Government Entity; or
6.3.2
Consents and
Authorisations: any consent, authorisation, licence or approval of, or
registration with or declaration to any person required by the Borrower to
authorise, or required by the Borrower in connection with, the execution,
delivery, legality, validity, priority, enforceability, admissibility in
evidence or effectiveness of this Agreement or any other Relevant Document or
the performance by the Borrower of any of its material obligations thereunder
is modified in a manner which is, will or is likely to be materially
prejudicial to the rights, interests or position of the Lenders or is not
granted or is revoked, withdrawn or terminated or expires or is not renewed or
otherwise ceases to be in full force and effect in each case as a result of an
act or omission of the Borrower and such modification, failure to grant,
revocation, withdrawal, termination, expiry, non-renewal or cessation, if
capable of remedy, is not remedied within fifteen(15) Business Days of the
occurrence thereof; or
6.3.3
Purchase Agreement and
Engine Agreements: the Purchase Agreement or any Engine Agreement is terminated
or cancelled for any reason or otherwise ceases to constitute the legal, valid
and binding obligations of the parties thereto; or
6.3.4
Breach of Ownership Letter
Agreement: AerCap Ireland fails to honour any demand made under any of the
guarantees contained in the AerCap Ireland Ownership Letter or otherwise breaches
any of the provisions of the Ownership Letter Agreement.
Following
the occurrence of a Mandatory Prepayment Event the Agent may demand
repayment of the Loan and, if the Agent does demand that repayment, on the date
specified in that demand (which will not be earlier than the immediately succeeding
Business Day):
(a)
the Lenders’ obligations to make
available the Commitment shall be terminated whereupon the Lenders shall be
discharged from their obligation to make further Advances; and
(b)
the Loan and all interest accrued
and all other sums payable under this Agreement shall become immediately due
and payable forthwith.
6.4
Voluntary
Prepayment
6.4.1
Subject to the receipt by the
Agent of at least five (5) Business Days notice from the Borrower (such
notice being irrevocable), the Borrower shall have the right to prepay on any
Interest Payment Date:
(a)
the Loan or the Advance in
respect of any Aircraft, in each case in full; and/or
(b)
the Loan or the Advance in
respect of any Aircraft, in each case in part in integral multiples of five
million Dollars ($5,000,000).
6.4.2
The Borrower shall also have the
right to prepay the Advance in respect of an Aircraft and/or the Loan on any
date which is not an Interest Payment Date subject to the same conditions with
respect to notice and, in the case of any prepayment in part of the Loan
or the Advance in respect of any Aircraft, the minimum amount of such
prepayment set out in clause 6.4.1 being satisfied.
6.4.3
Any prepayment under clause 6.3,
clause 6.4.1, clause 16.2 or any other provision of this Agreement shall
be made together with (a) accrued interest to the date of prepayment; (b) any
additional amount payable under clauses 8.3.1, 16.1 and/or 16.3; and (c) all
other sums then due and payable by the Borrower to the Finance Parties under
this Agreement.
15
6.5
Effect of
prepayment
No amount prepaid may be reborrowed and, in the case of any
prepayment of the Loan in part pursuant to clause 6.4.1(b), any amount
prepaid shall be applied in reducing the repayment instalments under
clause 6.1 in inverse order of the dates on which such repayment
instalments are due. For the avoidance of doubt, the Maximum Loan Amount shall
not be increased by reason of such prepayment.
6.6
No other
prepayment
The Borrower may not prepay any
Advance, the Loan or any part thereof save as expressly provided for in
this Agreement.
6.7
Reduction
of Commitment in respect of Inactive Aircraft
The Borrower shall have the right, which may be
exercised at any time by the Borrower giving written notice to the Agent and
the Security Trustee, to withdraw any Inactive Aircraft specified in such
notice from the scope of this Agreement. In the event that the Borrower issues
any such written notice, the Inactive Aircraft specified therein shall
immediately cease to be “Aircraft” for the purposes of this Agreement; the
undrawn and uncancelled Commitment shall immediately be reduced by the amount
of the Advances which the Borrower would otherwise have been entitled to draw
in respect of such Inactive Aircraft and the Assigned Rights (as defined in the
Purchase Agreement Assignment) in respect of such Aircraft shall automatically,
and without further act, be re-assigned to the Borrower in accordance with
clause 4.3 of the Purchase Agreement Assignment.
7
Expenses; VAT; stamp duty
7.1
Expenses
The Borrower shall pay to the Agent on
demand:
7.1.1
all reasonable costs and
expenses (including, but not limited to, legal and out-of-pocket expenses)
incurred by the Finance Parties in connection with the negotiation,
preparation, execution and implementation of this Agreement and the other
Relevant Documents, as evidenced to the Borrower in writing by the relevant
Finance Party;
7.1.2
all reasonable costs and
expenses (including legal and out-of-pocket expenses) incurred by the Finance
Parties in connection with any amendment or extension of, or the granting of
any waiver or consent under, this Agreement or any of the other Relevant
Documents, as evidenced to the Borrower in writing by the relevant Finance
Party; and
7.1.3
all costs and expenses (including
legal and out-of-pocket expenses and, in the case of the Agent and the Security
Trustee only, including all reasonable expenses referable to the cost of
management time following the occurrence of an Event of Default) properly
incurred by the Finance Parties in contemplation of, or otherwise in connection
with, the enforcement or attempted enforcement of, or preservation or attempted
preservation of any rights under, this Agreement or any of the other Relevant
Documents, together with interest at the rate referred to in clause 5.3
from the date on which such expenses were incurred to the date of payment
(after as well as before judgement).
7.2
Value
added tax
All
fees, costs, losses and expenses payable by the Borrower under this
clause 7, clause 17, clause 18 or any other provision of this Agreement
and the other Relevant Documents shall be paid together with an amount equal to
any value added or equivalent Tax (but excluding Excluded Taxes) payable by the
relevant Finance Party in respect of such fees, costs, losses and expenses, in
addition to any other sum agreed to be paid by the Borrower under this
Agreement and the other Relevant Documents.
16
7.3
Stamp and
other duties
The Borrower shall pay all stamp,
registration or other documentary duties or Taxes (including any registration,
documentary duties or Taxes payable by, or assessed on, a Finance Party but
excluding Excluded Taxes) imposed on or in connection with this Agreement, any
other Relevant Document, the Loan or any Advance and shall indemnify the
Finance Parties on written demand by the relevant Finance Party against any
liability arising by reason of any delay or omission by the Borrower to pay
such duties or Taxes (other than Excluded Taxes).
8
Payments and Taxes; accounts and
calculations
8.1
No set-off
or counterclaim; distribution to the Lenders
All payments to be made by the Borrower
under this Agreement shall be made in full, without any set-off or counterclaim
whatsoever and, subject as provided in clause 8.3.1, free and clear of any
deductions or withholdings, in Dollars (except for costs, fees and expenses
which shall be payable in the currency in which they are incurred) on the due
date to the account of the Agent with Calyon Americas New York (CRLYUS33) in
favour of Calyon Paris (SWIFT Code: BSUIFRPPXXX), account number 0100383000100,
under reference “DTB/FS AerVenture PDP”, or such other account as the Agent may upon
not less than five (5) Business Days’ written notice from time to time
notify to the Borrower. Save where this Agreement specifically provides for a
payment to be made for the account of a particular Lender, in which case the
Agent shall distribute the relevant payment to the Lender concerned, or where
such payment is made to the Agent or to the Security Trustee for its own
account, payments to be made by the Borrower under this Agreement shall be for
the account of all the Lenders and the Agent shall forthwith distribute such
payments in like funds as are received by the Agent to the Lenders rateably in
accordance with their respective Lender’s Proportions.
8.2
Non-Business
Days
Whenever any amount hereunder shall become
due on a date which is not a Business Day, the due date therefor shall be the next
succeeding Business Day unless such day falls within the next calendar month,
in which case it shall be due and payable on the immediately preceding Business
Day and any amount of interest payable on such due date shall be adjusted.
8.3
Grossing-up
for Taxes
8.3.1
If at any time the Borrower is
required to make any deduction or withholding in respect of Taxes from any
payment due under this Agreement for the account of a Finance Party, the sum
due from the Borrower in respect of such payment shall be increased to the
extent necessary to ensure that, after the making of such deduction or
withholding, the relevant Finance Party receives on the due date for such
payment (and retains, free from any liability in respect of such deduction or
withholding) a net sum equal to the sum which it would have received had no
such deduction or withholding been required to be made and the Borrower shall
indemnify the relevant Finance Party against all losses, costs and expenses
incurred by it by reason of any failure of the Borrower to make any such
deduction or withholding or by reason of any increased payment not being made
on the due date for such payment. The Borrower shall promptly deliver to the
relevant Finance Party any receipts, certificates or other proof evidencing the
amounts (if any) paid or payable in respect of any such deduction or
withholding.
8.3.2
If the Borrower makes a payment
under clause 8.3.1 and the relevant Finance Party determines that it has received
or been granted a credit against or relief or remission for, or repayment of,
any Tax paid or payable by it in respect of or which takes account of the
deduction, withholding or other matter giving rise to such payment by the
Borrower, the relevant Finance Party shall, to the extent it determines that it
can do so without prejudice to the retention of the amount of such credit,
relief, remission or repayment, pay to the Borrower such amount as the relevant
Finance Party shall have determined to be attributable to such deduction or
withholding or other matter and which shall leave the relevant Finance Party
(after such payment), in an after-Tax position which it determines to be no
better or worse than it would have been in if the Borrower had not been required
to make such deduction or withholding or such other matter had not arisen. Nothing
herein contained shall:
17
(a)
interfere with the right of the
relevant Finance Party to arrange its Tax or other affairs in whatever manner
it thinks fit;
(b)
oblige the relevant Finance Party
to disclose any information relating to its Tax or other affairs or any
computations in respect thereof;
(c)
require the relevant Finance
Party to do anything that it determines would or may prejudice its ability
to benefit from any other credit, relief, remission or repayment to which it may be
entitled; or
(d)
require the relevant Finance Party
to give any priority as to the order in which it claims credits, relief,
remissions and repayments or in which it allocates to any person or liability
or class of persons or liabilities any credit, relief, remission or
repayment.
8.3.3
If the relevant Finance Party
makes any payment to the Borrower pursuant to clause 8.3.2 and such payment is
subsequently reviewed by internal auditors to that Finance Party, acting in
good faith and as experts, that the credit, relief, remission or repayment in
respect of which such payment was made was not available or has been withdrawn
or that it is unable to use such credit, relief, remission or repayment in
full, the Borrower shall reimburse the relevant Finance Party such amount as
the relevant Finance Party determines, in its sole opinion, is necessary to
place it in the same after-Tax position as it would have been in if such
credit, relief, remission or repayment had been obtained and fully used and
retained by the relevant Finance Party.
8.4
General
Tax indemnity
The Borrower shall indemnify the relevant Finance
Party against the actual amount of all Taxes (other than Excluded Taxes)
imposed or asserted by any Government Entity or other competent authority
against the relevant Finance Party with respect to: (a) the facility
hereunder granted to the Borrower, the Loan, any Advance or the transactions
contemplated by the Relevant Documents (or any of them) or (b) the
Aircraft or the purchase, ownership or delivery thereof or (c) the
Borrower engaging in business in, having or having had an office, branch or
permanent establishment in, or being or having been a citizen or resident of,
or domiciled in, or incorporated or created in or under the Applicable Laws of,
the jurisdiction imposing such Taxes.
8.5
Partial
payments
If, on any date on which a payment is due
to be made by the Borrower under this Agreement, the amount received from the
Borrower falls short of the total amount of the payment due to be made by the
Borrower on such date then, without prejudice to any rights or remedies
available to the relevant Finance Party under this Agreement, the relevant
Finance Party shall apply the amount actually received from the Borrower, or
from the exercise of its rights and powers under the Relevant Documents at any
time thereafter, in or towards discharge of the obligations of the Borrower
under this Agreement and the other Relevant Documents in such order as
circumscribed by the Trust Agreement, notwithstanding any appropriation made,
or purported to be made, by the Borrower.
8.6
Calculations
All interest and other payments of an
annual nature under this Agreement shall accrue from day to day and be
calculated on the basis of actual days elapsed and a 360 day year. In
calculating the actual number of days elapsed in a period which is one of a series of
consecutive periods with no interval between them or a period on the last day
of which any payment falls to be made in respect of such period, the first day
of such period shall be included but the last day excluded.
8.7
Certificates
conclusive
Any certificate or determination of the
Lenders as to any rate of interest or any amount payable
18
under this Agreement shall, in the absence
of manifest error, be conclusive and binding, as to the amount from time to
time owing by the Borrower under this Agreement.
8.8
Excluded
Taxes
The provisions of clauses 7.2, 7.3, 8.3 and 8.4 shall
not apply, and the Borrower shall have no liability to any Indemnitee in
respect of, any Tax or any increased payment which is an Excluded Tax.
9
Representations and warranties
9.1
The Borrower represents and
warrants to the Finance Parties that:
9.1.1
Due incorporation
the Borrower is duly incorporated and
validly existing under the laws of Ireland as a limited liability company and
has power to carry on its business as it is now being conducted and as
contemplated by the Relevant Documents and to own its property and other
assets;
9.1.2
Corporate power to borrow
the Borrower has power to execute, deliver
and perform its obligations under the Relevant Documents to which it is a
party and to borrow the Commitment; all necessary corporate, shareholder and
other action has been taken to authorise the execution, delivery and
performance of the same and no limitation on the powers of the Borrower to
borrow shall be exceeded as a result of borrowings under this Agreement;
9.1.3
Binding obligations
this Agreement and the other Relevant
Documents constitute valid and legally binding obligations of the Borrower
enforceable in accordance with their respective terms except as the same may be
limited by applicable principles of equity, bankruptcy, insolvency, moratorium
or other similar laws affecting creditors’ rights generally and subject to the
qualifications set out in the legal opinions to be provided to the Finance
Parties in accordance with this Agreement;
9.1.4
Pari passu status
the obligations of the Borrower under this
Agreement and the other Relevant Documents to which it is a party are direct,
general and unconditional obligations of the Borrower and rank at least pari
passu with all other present and future unsecured and unsubordinated
obligations (including contingent obligations) of the Borrower, with the
exception of any such obligations which are mandatorily preferred by law and
not by contract;
9.1.5
No conflict with other
obligations
the execution and delivery of, the
borrowing of the Commitment under, the performance of its obligations under,
and compliance with the provisions of, the Relevant Documents to which the
Borrower is a party by the Borrower shall not (i) contravene any existing
Applicable Law or any judgement, decree or permit to which the Borrower is
subject, (ii) conflict with, or result in any breach of any of the terms
of, or constitute a default under, any agreement or other instrument to which
the Borrower is a party or is subject or by which it or any of its property is
bound, (iii) contravene or conflict with any provision of the Borrower’s
constitutional documents or (iv) result in the creation or imposition of
or oblige the Borrower to create any Lien on any of the Borrower’s undertaking,
assets, rights or revenues except to the extent provided for in the Relevant
Documents;
19
9.1.6
Consents obtained
every consent, authorisation, licence or
approval of, or registration with or declaration to, any Government Entity
required by the Borrower to authorise, or required by the Borrower in
connection with, the execution, delivery, validity, enforceability, priority or
admissibility in evidence of this Agreement and the other Relevant Documents to
which the Borrower is a party or the performance by the Borrower of its
obligations under this Agreement and the other Relevant Documents to which the
Borrower is a party has been obtained or made and is in full force and effect
and there has been no default in the observance of the conditions or
restrictions (if any) imposed in, or in connection with, any of the same;
9.1.7
No filings required
Save for the Engine Assignments and the
Purchase Agreement Assignment in respect of each of which particulars thereof
must be filed with the Irish Registrar of Companies in accordance with section 99
of the Irish Companies Act 1963 (as amended) within twenty one days after the
creation of the security thereunder, it is not necessary to ensure the
legality, validity, enforceability, priority or admissibility in evidence of
this Agreement or any other Relevant Document (or any of them) that it or any
other instrument be notarised, filed, recorded, registered or enrolled in any
court, public office or elsewhere under any Applicable Law or that any stamp,
registration or similar tax or charge be paid under any Applicable Law on or in
relation to this Agreement or any other Relevant Document (or any of them) and
this Agreement and the other Relevant Documents are in proper form for
their enforcement in the English courts (or, if any such action is necessary,
it has taken such action);
9.1.8
No litigation
no litigation, arbitration or
administrative proceeding is taking place, pending or, to the knowledge of the
officers of the Borrower, threatened against the Borrower that could reasonably
be expected to have a material adverse effect on the ability of the Borrower to
perform its obligations under the Relevant Documents to which it is a
party;
9.1.9
No defaults
the Borrower is not (nor would with the
giving of notice or lapse of time or the satisfaction of any other condition or
any combination thereof be) in breach of or in default under any agreement
relating to Financial Indebtedness to which it is a party or by which it may be
bound and no other Default has occurred and is continuing;
9.1.10
Financial statements correct
and complete
the opening accounts and financial
statements of the Borrower have been prepared in accordance with generally
accepted accounting principles and practices in Ireland which have been
consistently applied and present fairly and accurately the financial position
of the Borrower as at such date and the results of the operations of the
Borrower for the financial year ended on such date and, as at such date, the
Borrower did not have any significant actual liabilities or any losses which
are not disclosed by, or reserved against or provided for in, such financial
statements;
9.1.11
No material adverse change
there has been no material adverse change
in the financial position of the Borrower from that set forth in the financial
statements referred to in clause 9.1.10;
9.1.12
Choice of law
the choice by the Borrower of English law
to govern this Agreement and the other Relevant Documents to which it is a
party other than the CFM Engine Assignment and of New York law to govern the CFM
Engine Assignment and the submissions to jurisdiction by the Borrower as
provided herein and therein are valid and binding;
20
9.1.13
No immunity
the
Borrower, under applicable law, is subject to private commercial law and suit,
and neither the Borrower nor its properties or assets have any right of
immunity from suit or execution on the grounds of sovereignty in its state of
incorporation or any other jurisdiction or on any other grounds.
9.1.14
No withholding Taxes
no Taxes are imposed by withholding or
otherwise on any payment to be made by the Borrower under this Agreement or any
other Relevant Document (or any of them) and no Taxes are imposed on or by
virtue of the execution or delivery by the Borrower of this Agreement or any
other Relevant Document to which it is a party (or any of them) or any document
or instrument to be executed or delivered thereunder; and
9.1.15
Compliance with consents and
licences
every consent, authorisation, licence or
approval required by the Borrower in connection with the conduct of its
business and the ownership, use, exploitation or occupation of its property and
assets has been obtained and is in full force and effect and there has been no
default in the observance of the conditions and restrictions (if any) imposed
in, or in connection with, any of the same which would or may have an adverse
effect on the ability of the Borrower to perform its obligations under the
Relevant Documents.
9.2
Each Lender represents and
warrants that:
9.2.1
(a)
it is and will continue to be
(for so long as it is entitled to receive any payment from the Borrower under
this Agreement) a body corporate which is resident for the purpose of tax in a
Member State of the European Union (other than the Republic of Ireland) or any
jurisdiction which has a double tax treaty with the Republic of Ireland; and
(b)
interest under this Agreement is
not and will not be paid to it in connection with a trade or business which is
carried on by it in the Republic of Ireland through a branch or agency in the
Republic of Ireland; or
9.2.2
it is and will continue to
be (for so long as it is entitled to receive any payment from the Borrower
under this Agreement) a bank carrying on a bona fide banking business in the
Republic of Ireland within the meaning of Section 246 of the Irish Taxes
Consolidation Act 1997.
10
Undertakings
10.1
The Borrower undertakes with
each Finance Party that, from the date of this Agreement and so long as any
moneys are owing under this Agreement or remain available for drawing by the
Borrower, it shall:
10.1.1
Notice of Default
promptly
upon becoming aware of the same inform the Agent of any occurrence which
might adversely affect its ability to perform its obligations under this
Agreement and the other Relevant Documents to which it is a party and of any
Default or Purchase Agreement Default and, if so requested in writing by the
Agent from time to time, confirm to the Agent in writing that, save as
otherwise stated in such confirmation, no Default or Purchase Agreement Default
has occurred and is continuing;
10.1.2
Consents and licences
without prejudice to clauses 3 and 9.1, obtain or
cause to be obtained, maintain in full force and effect and comply in all
material respects with the conditions and restrictions (if any) imposed in, or
in connection with, every consent, authorisation, licence or approval of, or
21
registration
with or declaration to, any Government Entity with which it is required to
comply in connection with the execution, delivery, validity, enforceability,
priority and admissibility in evidence of this Agreement and the other Relevant
Documents and the performance of its obligations thereunder and do, or cause to
be done, all other acts and things which may from time to time be
necessary or desirable under Applicable Law for the continued due performance
of all its obligations under this Agreement;
10.1.3
Use of proceeds
use the proceeds of drawings under this
Agreement exclusively for the purpose specified in clause 1.1;
10.1.4
Pari passu
ensure that its obligations under this Agreement
shall, without prejudice to the provisions of clause 6.3.4 of the Purchase
Agreement Assignment, at all times rank at least pari passu with all its other
present and future Financial Indebtedness (save and only to the extent that
such Financial Indebtedness is secured) with the exception of any obligations
which are mandatorily preferred by law and not by contract;
10.1.5
Financial statements
deliver or cause to be delivered to the
Security Trustee as soon as reasonably practicable
after the
same are available:
(a)
and in any event within one
hundred and eighty (180) days after the end of the Borrower’s financial year, a
copy of the Borrower’s audited unconsolidated financial accounts for the
relevant financial year;
(b)
and in any event within one
hundred and eighty (180) days after the end of AerCap Holdings’ financial year,
a copy of AerCap Holdings’ audited consolidated financial accounts for the
relevant financial year;
(c)
and in any event within ten (10) months
after the end of AerCap Ireland’s financial year, a copy of AerCap Ireland’s
unaudited consolidated financial accounts for the relevant year;
(d)
and in any event within forty five
(45) days after the end of each quarterly accounting period of the Borrower and
AerCap Holdings, a copy of the Borrower’s and AerCap Holdings’ unaudited
consolidated management accounts for the relevant quarterly period,
provided that the Borrower shall have no obligation
pursuant to this clause 10.1.5 to the extent that such accounts are published
on the AerCap website, within the applicable time periods specified above,
in each
case, prepared in accordance with US, Dutch or Irish GAAP;
10.1.6
Delivery of reports
deliver to the Agent, in each case at the
time of issue thereof, every report, circular, notice or like document issued
by the Borrower to its principal creditors generally;
10.1.7
Provision of further
information
provide the Agent with such financial and
other information concerning the Borrower, the shareholders in the Borrower and
their respective affairs, and such information concerning the Aircraft and the
Purchase Agreement, as the Agent may from time to time reasonably request
in the context of the Relevant Documents and the transactions contemplated
thereby;
22
10.1.8
Compliance with Applicable
Laws
comply with the terms and conditions of all Applicable
Laws which are relevant to the carrying on of its business and the performance
of its obligations under the Relevant Documents;
10.1.9
Filings and Further Assurance
take such action and execute such additional
documentation at its own cost and expense as is reasonably required by the
Agent to ensure the legality, validity, enforceability and admissibility in
evidence of any of this Agreement or any other Relevant Document to which it is
a party or perfect any or all security interests granted to any Finance Party pursuant
to a Relevant Document or any other instrument related thereto including
without limitation in circumstances where any of the same require to be
notarised, filed, recorded, registered or enrolled in any court, public office
or elsewhere under any Applicable Law or where any stamp, registration or
similar tax or charge is required to be paid under any Applicable Law on or in
relation thereto;
10.1.10
Corporate existence
maintain its
existence as a limited liability company existing under the laws of Ireland and
inform the Agent immediately and furnish it with all necessary evidence of
any change in its legal form, type and qualification to transact business as a
legal entity and of any material change in its business activities or in the
legal and corporate documents regulating its activities;
10.1.11
Buyer Furnished Equipment and
Modification
pay in full, on or prior to the Scheduled Delivery
Date for each Aircraft, for:
(a)
all buyer furnished equipment
installed or to be installed on that Aircraft prior to the Delivery Date; and
(b)
the cost of any modification to
that Aircraft which it may undertake or request the Manufacturer or any
other person to undertake prior to the Delivery Date; and
10.1.12
No dividends
not, and shall ensure that no member of the Borrower
Group shall, declare, make or pay any dividend, charge, fee or other
distribution (or interest on any unpaid dividend, charge, fee or other
distribution) (whether in cash or in kind) on or in respect of its share
capital (or any class of its share capital).
11
Equity Contribution
11.1
Details of the Equity
Contribution payable by the Borrower in respect of each Aircraft are set out in
column 4 of schedule 4.
11.2
To the extent that the Net
Aircraft Price in respect of any Aircraft is higher than the Net Aircraft Price
Maximum, the Equity Contribution for each Aircraft shall be increased
accordingly and the Borrower shall procure that each of AerCap Ireland, LoadAir
and/or the other shareholders in the Borrower at such time shall fund the
Borrower with cash amounts which will enable it to pay such increased Equity
Contribution to the Manufacturer, or, at the Security Trustee’s sole
discretion, shall provide other additional security satisfactory to the Finance
Parties.
11.3
In the event of any increase
being made to the Equity Contribution pursuant to this clause 11, each of the
Borrower, the Agent and the Security Trustee shall agree a substitute version
of schedule 4 which, when agreed in writing between the Borrower, the
Agent and the Security Trustee shall be conclusive and binding on the parties
to this Agreement and shall replace the existing schedule 4 for the
purposes of this Agreement and the other Relevant Documents.
23
12
Negative Pledge
12.1
No Pledging
of Shares
The Borrower hereby undertakes with each of
the Finance Parties that it will procure that neither AerCap Ireland, LoadAir
nor any other shareholder of the Borrower from time to time shall create any
Lien over their respective shareholdings in the Borrower in favour of any other
financing party as security for finance provided by such financing party to the
Borrower unless such security interest is created for the joint benefit of the
Finance Parties and such other financing party pursuant to arrangements whereby
the entire issued share capital of the Borrower is charged in favour of a security
trustee for the benefit of the Lenders and such other financing party, or,
pursuant to arrangements which are otherwise acceptable to the Finance Parties.
12.2
No Floating
Charge
The Borrower shall not, without the prior
written consent of the Security Trustee, create a floating charge (howsoever
described) over all, or substantially all, of its assets in favour of any
financing party or other third party creditor other than the Finance Parties.
12.3
To the extent that the Borrower,
from time to time, wishes to raise third party financing in connection with the
acquisition of any Aircraft, the Borrower agrees that such financing shall be
raised through a dedicated special purpose vehicle company. Notwithstanding the
prohibition contained in clause 12.2, the Lenders acknowledge that a floating
charge may be created by any such special purpose vehicle company for the
benefit of its financiers.
13
[Intentionally omitted]
14
Financial Covenants
14.1
In this clause 14, the following
terms have the following meanings:
“
Cash
” means
freely available cash (for the avoidance of doubt, excluding restricted cash)
held by the Borrower Group, determined in accordance with generally accepted
accounting principles consistently applied;
“
Cash Out
” means
the amount of Cash (including SG&A expenses (but excluding, for the
avoidance of doubt, any “hedging costs” i.e. any net swap interest or cap
premia) and any facilitation fee) disbursed by the Borrower Group from time to
time;
“
Debt
” means the
amount of Financial Indebtedness held by the Borrower Group from time to time;
“
Net Gearing Ratio
”
means Debt less Cash divided by Net Worth; and
“
Net Worth
”
means the excess of the total assets (excluding goodwill, intangible assets and
revaluation of fixed assets) over total liabilities of the Borrower Group, each
determined in accordance with generally accepted accounting principles
consistently applied;
14.2
The Borrower hereby undertakes
with each of the Finance Parties that, in respect of each of the calendar years
specified in the table below:
14.2.1
the Net Worth shall be at least equal to the figure specified for
such calendar year;
14.2.2
the Cash Out shall be no greater than the amount specified for such
calendar year; and
14.2.3
the Net Gearing Ratio shall be no greater than the figure specified
for such calendar year.
24
|
|
|
2006
|
|
2007
|
|
2008
|
|
2009
|
|
|
Net Worth ($million)
|
|
35
|
|
45
|
|
80
|
|
100
|
|
|
Cash Out ($million)
|
|
5
|
|
5
|
|
6
|
|
10
|
|
|
Net Gearing Ratio
|
|
0.5
|
|
3.5
|
|
5
|
|
8
|
|
14.3
Each of the financial covenants
specified in clause 14.2 above (the “
Financial Covenants
”) shall be
tested on each Quarterly Date when the Borrower will be required to evidence
compliance with each such covenant to the satisfaction of the Security Trustee
including, without limitation, by reference to a Compliance Certificate. If so
requested by the Security Trustee at any time, because the Security Trustee
and/or any other Finance Party has reasonable grounds to believe that the
contents of any Compliance Certificate may not be true and correct, the
Borrower shall procure that its auditors confirm in writing to the Security
Trustee that the contents of that Compliance Certificate are true and correct.
14.4 Adjustment
of Financial Covenants
14.4.1
The Financial Covenants have been calculated on the basis that each
Aircraft:
(a)
is of the Aircraft Type; and
(b)
shall be delivered during the
Scheduled Delivery Month,
in each case as set out in schedule 4 as at the date of this
Agreement.
14.4.2
In the event that the Borrower exercises a Conversion Right in
accordance with clause 2.3, or the Delivery Date for an Aircraft is deferred in
accordance with clause 6.2, provided that at such time no Event of Default or
Mandatory Prepayment Event has occurred and is continuing, the Borrower may, by
notice in writing to the Security Trustee (a “
Variation Notice
”), request the Lenders
to adjust the Financial Covenants. The Variation Notice shall set out the
proposed adjusted Financial Covenants, taking into account the exercise of the
Conversion Right or deferral of Delivery Date, but otherwise using the same
methodology as was used to calculate the Financial Covenants on or prior to the
date of this Agreement.
14.4.3
The Lenders shall consider any such request pursuant to clause
14.4.2 in good faith and shall inform the Borrower within fifteen (15)
Business Days from the date of receipt of a Variation Notice as to whether the
proposed adjusted Financial Covenants have been approved. In the event that the
proposed adjusted Financial Covenants have not been approved, the Lenders agree
to consult with the Borrower in good faith for a further period of fifteen (15)
Business Days with a view to agreeing alternative adjusted Financial Covenants
acceptable to the Lenders.
14.4.4
In the event that the Lenders agree to amend the Financial Covenants
pursuant to clause 14.4.3, the Borrower and the Security Trustee shall execute
such documents as may be necessary to amend clause 14.2 accordingly. Each
Finance Party hereby irrevocably authorises the Security Trustee to execute any
such amendment on its behalf.
In this clause 14.4, “
Aircraft Type
” means an Airbus A319-100 aircraft or Airbus
A320-200 aircraft, as applicable.
15
Events of Default and Termination
15.1
Events of
Default
Each of the events and circumstances set out below is
an Event of Default:
25
15.1.1
the Borrower fails to make any
payment of (a) any scheduled payment in the currency and in the manner
stipulated in this Agreement or any other Relevant Document within (five) 5 Business
Days of the due date therefor or (b) any other amount due by it under this
Agreement or any other Relevant Document within ten (10) Business Days of
the due date thereof; or
15.1.2
without prejudice to clause 15.1.1
above, the Borrower fails to observe or perform any other covenants,
conditions, obligations, undertakings, provision or agreements contained in
this Agreement or any other Relevant Document, including, for the avoidance of
doubt, those contained in clauses 11 to 14 of this Agreement, and such default,
if capable of remedy, is not remedied within fifteen (15) Business Days of
notice from the Security Trustee to the Borrower requiring such remedy; or
15.1.3
if any representation or
warranty made or deemed to be made or repeated by or on behalf of the Borrower
in this Agreement or any other Relevant Document or in any document or
certificate furnished by the Borrower in connection herewith or therewith shall
prove to have been false or incorrect in any material respect on the date it
was made or deemed to be made or repeated and, if it is possible to remedy the
situation which caused such representation or warranty to be false or
incorrect, it is not remedied within fifteen (15) Business Days after notice by
the Security Trustee to the Borrower requiring the situation to be remedied
that it has been remedied to the Security Trustee’s satisfaction; or
15.1.4
the Borrower shall consent to
the appointment of a receiver, administrator, administrative receiver, trustee,
liquidator or examiner of itself or of a substantial part of its property
or shall admit in writing its inability to pay its debts generally as they fall
due or shall cease or declare its inability to carry on its business; or
15.1.5
the Borrower shall issue a
notice convening a meeting of its creditors or make any arrangement or
composition with, or any assignment for the benefit of, its creditors or any
moratorium or rescheduling affecting all or a substantial part of the
Financial Indebtedness of the Borrower is declared or imposed, or the Borrower
shall issue a notice or otherwise convene a meeting for the purpose of
considering a resolution, or a petition is presented or other steps, action or
proceedings are taken by the Borrower, for the winding up, bankruptcy,
liquidation, dissolution, administration, reorganisation, amalgamation or
insolvency of the Borrower or for an administration order in respect of the
Borrower; or
15.1.6
a petition is presented or other
steps, action or proceedings are taken by any person (other than the Borrower)
for the winding up, bankruptcy, liquidation, dissolution, administration,
reorganisation, amalgamation or insolvency of the Borrower or for an
administration order in respect of the Borrower other than a petition, steps,
action or proceedings which the Borrower proves to the satisfaction of the
Security Trustee has been presented, made or taken by such other person only
for frivolous or vexatious reasons and which is discharged or stayed within
thirty (30) days of the presentation or commencement thereof; or
15.1.7
an order, judgment or decree
shall be entered by any court, tribunal or authority of competent jurisdiction
for the winding up, bankruptcy, liquidation, dissolution, administration,
reorganisation or amalgamation of the Borrower or appointing, without the
consent of the Borrower (as appropriate), a receiver, administrator,
administrative receiver, trustee, liquidator or examiner of the Borrower or of
any substantial part of the Borrower’s (as appropriate) property, or
sequestering any substantial part of the property of the Borrower; or
15.1.8
the Borrower is declared
insolvent or bankrupt or is liquidated, wound up, dissolved, reorganised or
amalgamated by any court, tribunal or authority of competent jurisdiction other
than for the purposes of a solvent reconstruction or amalgamation, the terms of
which have received the prior written consent of the Security Trustee (such
consent not to be unreasonably withheld or delayed); or
15.1.9
the Borrower suspends or ceases
or makes a public announcement to suspend or cease to carry on its business; or
26
15.1.10
any event analogous to any of the
events specified in clauses 15.1.4, 15.1.5, 15.1.6, 15.1.7, 15.1.8 or 15.1.9
occurs in any jurisdiction to which the Borrower (as appropriate) is subject;
or
15.1.11 any
Financial Indebtedness of the Borrower in excess of (i) one million Dollars
($1,000,000) (or the equivalent thereof in any other currency), in respect of
the period up to Delivery of the first Aircraft or (ii) three million five
hundred thousand Dollars ($3,500,000) (or the equivalent thereof in any other
currency,) in respect of the period thereafter, is not paid when due after the
expiry of any originally applicable grace periods or becomes due and payable
prior to the date when it would otherwise have become due; or
15.1.12 the
validity or enforceability of any of the Relevant Documents shall at any time and
for any reason be contested by the Borrower or the Borrower shall otherwise
repudiate any of the Relevant Documents or do or cause or permit to be done any
act or thing evidencing an intention to repudiate any of the Relevant
Documents; or
15.1.13
a creditor attaches or takes
possession of, or a distress, execution, sequestration or other process is
levied or enforced upon or sued out against, any material part of the
undertakings, assets, rights or revenues of the Borrower and is not discharged
within any period of time provided in the relevant judgment or if no such
period is provided for, fourteen (14) days; or
15.1.14
the Borrower transfers or disposes
of all or a substantial part of its assets, whether by one or a series of
transactions, related or not, other than (i) any transfer or disposal of
an Aircraft (or groups of Aircraft) to a special purpose company (or companies)
where such transfer or disposal is made in order to enable the Borrower to
raise long-term financing for the acquisition cost of such Aircraft, (ii) any
pledging of the shares in the Borrower in the manner contemplated by clause
12.1 or (iii) any transfer or disposal of an Aircraft upon or following
the repayment in full of the Advance in respect of such Aircraft; or
15.1.15
the Security Trustee or Agent
receives written notice from (a) the Manufacturer that a Purchase
Agreement Default has occurred and is continuing under the Purchase Agreement
or (b) an Engine Manufacturer that an Engine Agreement Default has
occurred and is continuing under an Engine Agreement.
15.2
Declaration of
Default; Automatic Acceleration
Following the occurrence of an Event of
Default which is continuing, the Agent may, and if so requested by the
Instructing Group shall, without prejudice to any other rights of the Lenders hereunder,
by written notice to the Borrower declare that:
15.2.1
the Lenders’ obligation to make
available the Commitment shall be terminated whereupon the Lenders shall each
be discharged from their respective obligations to make further Advances;
and/or
15.2.2
the Loan and all interest
accrued and all other sums payable under this Agreement shall become due and
payable either forthwith or on any date specified in such notice, whereupon the
same shall immediately, or in accordance with terms of such notice, became so
due and payable,
PROVIDED ALWAYS THAT upon the occurrence of any of the
Events of Default specified in clauses 15.1.1(a), 15.1.4, 15.1.5, 15.1.6,
15.1.7, 15.1.8, 15.1.9 and 15.1.10 the Lenders’ commitment shall terminate
automatically upon the occurrence of such Event of Default, the Lenders shall
immediately be discharged from their respective obligations to make any further
Advances and the Loan and all interest accrued thereon shall upon the
occurrence of any such Events of Default become immediately due and payable.
On or at any time after the making of such
declaration, or upon the occurrence of any of the specific Events of Default
specified in the above proviso, the Agent shall be entitled to, to the
exclusion of the Borrower (and without prejudice to clause 5.3), select the
duration of Interest Periods.
27
16
Indemnities
16.1
Miscellaneous
indemnities
The
Borrower shall on demand indemnify each Finance Party, without prejudice to any
of their other rights under this Agreement and the other Relevant Documents,
against any loss (including loss of Margin), cost or expense which each Finance
Party shall certify as sustained or incurred by it as a consequence of:
16.1.1
any default in payment by the
Borrower of any sum under this Agreement or any other Relevant Document when
due (including, for the avoidance of doubt, any losses, costs or expenses which
the relevant Finance Party may incur by reason of the exercise by the
relevant Finance Party of its rights under the Relevant Documents consequent
upon the occurrence of such default); and
16.1.2
the occurrence of any other Event
of Default (including, for the avoidance of doubt, any losses, costs or
expenses which the Lender may incur by reason of the exercise by the
Lender of its rights under the Relevant Documents consequent upon the
occurrence of such Event of Default),
including,
in any such case, but not limited to, any Break Funding Losses or any other
amount owing to the relevant Finance Party but excluding any loss in respect of
which it has been indemnified pursuant to any other provision of the Relevant
Documents and any cost, loss or expense sustained or incurred by the Finance
Party in connection with any sale of the Aircraft and/or any sale or transfer
of the rights assigned to the relevant Finance Party under or pursuant to the
Purchase Agreement Assignment in each case following the occurrence of an Event
of Default, and as evidenced to the Borrower in writing by the relevant Finance
Party. In the event that any Finance Party realises a Break Funding Gain, such Finance
Party shall pay a sum equal to such Break Funding Gain to the Borrower promptly
upon realisation thereof.
16.2
Currency of
account; currency indemnity
16.2.1
No payment by the Borrower under this Agreement or any other
Relevant Document which is made in a currency other than the currency (the “
Contractual Currency
”) in which such payment is required to
be made pursuant to this Agreement or such other Relevant Document shall
discharge the obligation in respect of which it is made except to the extent of
the net proceeds in the Contractual Currency received by a Finance Party upon
the sale of the currency so received, after taking into account any premium and
costs of exchange in connection with such sale. For the avoidance of doubt a
Finance Party shall not be obliged to accept any such payment in a currency
other than the Contractual Currency nor shall a Finance Party be liable to the
Borrower for any loss or alleged loss arising from fluctuations in exchange
rates between the date on which such payment is so received by the Finance
Party and the date on which a Finance Party effects such sale, as to which a
Finance Party shall (as against the Borrower) have an absolute discretion.
16.2.2
If any sum due from the Borrower
under this Agreement or any other Relevant Document or any order or judgement
given or made in relation hereto or thereto is required to be converted from
the Contractual Currency or the currency in which the same is payable under
such order or judgement (the “
first currency
”)
into another currency (the “
second currency
”)
for the purpose of (a) making or filing a claim or proof against the
Borrower, (b) obtaining an order or judgement in any court or other
tribunal or (c) enforcing any order or judgement given or made in relation
to this Agreement or any other Relevant Document, the Borrower shall indemnify
and hold harmless each Finance Party from and against any loss suffered as a
result of any difference between (i) the rate of exchange used for such
purpose to convert the sum in question from the first currency into the second
currency and (ii) the rate or rates of exchange at which a Finance Party may in
the ordinary course of business purchase the first currency with the second
currency upon receipt of a sum paid to it in satisfaction, in whole or in part,
of any such order, judgement, claim or proof.
28
16.2.3
Any amount due from the Borrower
under the indemnity contained in this clause 16.2 shall be due as a
separate debt and shall not be affected by judgement being obtained for any
other sums due under or in respect of this Agreement or any other Relevant
Document and the term “
rate of exchange
”
includes any premium and costs of exchange payable in connection with the
purchase of the first currency with the second currency.
16.3
Funding indemnity
The
Borrower expressly acknowledges that the Lenders may, from time to time, enter
into funding arrangements and incur certain Financial Indebtedness for the
purposes of facilitating the transactions contemplated by this Agreement and
that all such arrangements may be terminated in the event that the
Borrower fails to draw down an Advance after a Drawdown Notice has been given
in respect thereof or any Advance or any part thereof is repaid or prepaid
otherwise than on an Interest Payment Date for that Advance. Accordingly, the
Borrower agrees that in the case of:
(a)
any repayment or prepayment of
all or part of any Advance being made otherwise than on an Interest
Payment Date for that Advance; and
(b)
any Advance not being made for any
reason after a Drawdown Notice has been given in respect thereof,
the
Borrower shall indemnify, and hereby agrees to indemnify, the Lenders and each
of them fully against the amount of any Break Funding Costs incurred by any
Lender as a result thereof. In the event that any Lender realises a Break
Funding Gain, such Lender shall pay a sum equal to such Break Funding Gain to
the Borrower promptly following realisation thereof.
17
Illegality; increased costs; mitigation
17.1
Illegality
If, at any time as a consequence of a Change in Law:
17.1.1
it is or shall become unlawful,
illegal, prohibited or contrary to any Applicable Law for any party to this
Agreement or any of the other Relevant Documents to participate, or continue to
participate in the transactions contemplated by this Agreement or the other
Relevant Documents or to perform a material obligation under and/or give
any required consent pursuant to this Agreement or any other Relevant Document
or to continue as a party to this Agreement or any other Relevant Document;
17.1.2
all or any part of this
Agreement or any other Relevant Document (other than the Purchase Agreement
Assignment or an Engine Assignment) is or becomes void, illegal, invalid or
unenforceable or of limited force and effect under any Applicable Law and the
same would or might reasonably be expected to result in the rights, title and
interests of the Finance Parties and the Borrower (or any of them) in and to
the Aircraft and/or under any Relevant Document being materially adversely
affected, based on advice received by the Security Trustee and shared with the
Borrower from reputable legal counsel in the relevant jurisdictions; or
17.1.3
all or any part of the
Purchase Agreement Assignment or an Engine Assignment is or becomes void,
illegal, invalid or unenforceable or of limited force and effect under any
Applicable Law,
then,
without prejudice to the Borrower’s obligations and the rights of the Finance
Parties in relation to the Aircraft and under the Relevant Documents, the
affected party shall serve notice of such event on the other parties hereto and
clause 17.4 shall apply and not later than the earlier of (a) the end
of the consultation period referred to in clause 17.4 and (b) the date on
which such Change in Law takes effect:
29
(a)
the obligations of the Lenders
to advance the Loan shall be terminated and all Commitments shall be reduced to
zero; and
(b)
the Borrower shall prepay the
Loan together with all other amounts then due and owing under this Agreement
and the other Transaction Documents.
17.2
Increased costs
If the result of any Change in Law or
Capital Adequacy Requirement is to:
17.2.1
increase the cost to, or impose an additional cost on, any Lender in
maintaining its obligations under this Agreement, in each case, other than in
respect of Taxes; and/or
17.2.2
reduce the amount payable or the effective return to any Lender
under this Agreement, other than as a result of any Tax payable by such Lender,
then, and in
each such case:
(a)
such Lender shall notify the
Borrower through the Agent in writing of such event promptly upon its becoming
aware of the same but in any case within three (3) months after the date
on which the Lender first became aware of the circumstances giving rise to the
Tax, increased cost, additional cost, reduction, payment or forgone return; and
(b)
the Borrower shall on demand pay
to the Agent for the account of such Lender the amount (which shall not include
Taxes) which such Lender specifies (in a certificate setting forth the basis of
the computation of such amount but not including any matters which such Lender
regards as confidential in relation to its funding arrangements) is required to
compensate such Lender for such increased cost, additional cost, reduction,
payment or forgone return.
17.3
Exclusions
The following are excluded from the
Borrower’s agreement to indemnify any particular Lender under clause 17.2:
17.3.1
any Loss which relates to any loss of anticipated profit or return
(including loss of Margin or margin);
17.3.2
any Loss which comprises the normal administrative costs and
expenses of any Lender (but excluding any such expenses caused directly by, or
incurred after, the occurrence of an Event of Default); or
17.3.3
any Loss which arises from an act or omission which constitutes
gross negligence or wilful default by such Lender.
PROVIDED
FURTHER THAT
a Lender shall not be entitled
to make any claim to be indemnified for any Loss pursuant to clause 17.2
to the extent that it is actually compensated therefor by any party in
accordance with any other provision of the Relevant Documents.
17.4
Mitigation
If circumstances arise which would, or
would upon the giving of notice, result in:
17.4.1
the Borrower being required to make an increased payment to a Lender
pursuant to clause 8.3.1;
17.4.2
the reduction of a Lender’s Commitment to zero or the Borrower being
required to prepay the Loan pursuant to clause 17.1; or
30
17.4.3
the Borrower being required to make a payment to a Lender to
compensate a Lender for a liability to Taxes, increased or additional cost,
reduction, payment, forgone return or loss pursuant to clause 17.2,
then, without in any way limiting, reducing
or otherwise qualifying the obligations of the Borrower under clause 8 and
this clause 17, the Lenders and the Borrower, each acting in good faith,
shall consult for a maximum period of thirty (30) days with a view to
identifying what (if any) reasonable steps are open to them to mitigate or
remove such circumstances, provided however that a Lender shall not be obliged
to take any such steps if to do so might (in the opinion of that Lender) be
prejudicial to itself or be in conflict with its’ general banking policies or
involve it in expense or an increased administrative burden unless it is indemnified
to its satisfaction by the Borrower for such expenses or the costs associated
with such increased administrative burden. All costs and expenses reasonably
incurred by the Finance Parties in connection with such consultation process
and any resultant mitigating action shall be for the account of the Borrower.
18
Assignment, transfer and lending offices
18.1 Benefit
and burden
This
Agreement shall be binding upon, and enure for the benefit of, each Finance
Party and their respective successors.
18.2
Assignment,
transfer and lending offices
None of
the parties to this Agreement may assign or transfer all or any of its
rights and obligations hereunder, and no Lender may change its lending
office for the purpose hereof, other than pursuant to and in accordance with
clause 13 of the Trust Deed.
19
Notices and other matters
19.1 Notices
Every
notice, request, demand or other communication under this Agreement or any
other Relevant Document shall:
19.1.1
be in writing delivered personally or by first-class prepaid
letter (airmail if available) or by fax;
19.1.2
be deemed to have been received, subject as otherwise provided in
this Agreement or any other Relevant Document, in the case of a letter when
delivered and, in the case of a fax, when transmission of a complete copy is
confirmed by the sender through receipt of a facsimile confirmation showing the
correct number of pages having been sent received by the addressee (unless
the date of despatch is not a business day in the country of the addressee or
the time of despatch of any fax is after the close of business in the country
of the addressee in which case it shall be deemed to have been received at the
opening of business on the next such business day); and
19.1.3
be sent:
(a)
|
to the
Borrower at:
|
|
|
|
|
AerVenture Limited
|
|
|
c/o AerCap Ireland Limited
|
|
|
AerCap House
|
|
|
Shannon Industrial Estate
|
|
|
Shannon
|
|
|
County Clare
|
|
|
Ireland
|
|
|
Fax:
+ 353 61723850
|
|
|
Attention: Company Secretary
|
31
|
|
with a copy to:
|
|
|
|
|
|
AerCap B.V.
|
|
|
Evert van de Beekstraat 312
|
|
|
1118 CX Schiphol
|
|
|
The Netherlands
|
|
|
|
|
|
Fax: +31 20 655 9100
|
|
|
Attn: Group Treasurer
|
|
|
|
(b)
|
to the Agent
and Security Trustee at:
|
|
|
|
|
Calyon
|
|
|
9 Quai du Président Paul Doumer
|
|
|
92920 Paris La Défense Cedex
|
|
|
France
|
|
|
|
|
|
Facsimile: (+33) 1 41 89 91 96
and (+33) 1 41 89 85 75
|
|
|
Attention: Head of Transportation Group
and DFS / MO
|
|
|
|
|
(c)
|
to each Lender at its address or telefax
number specified in schedule 1 or in any relevant Substitution
Certificate,
|
or to such other address or fax number as
is notified by one party to the other parties to this Agreement or any other
Relevant Document. Without prejudice to the validity of any notice given
pursuant to this clause 19.1, the recipient of any fax notice shall confirm
receipt of a legible version of such notice as soon as practicable after such
receipt.
19.2
Notices through the Agent
Every notice, request, demand or other
communication under this Agreement to be given by the Borrower to any other
party shall be given to the Agent for onward transmission as appropriate and to
be given to the Borrower shall (except as otherwise provided in this Agreement)
be given by the Agent.
19.3
No implied
waivers, remedies cumulative
No failure or delay on the part of a Finance
Party to exercise any power, right or remedy under this Agreement or any other
Relevant Document shall operate as a waiver thereof, nor shall any single or
partial exercise by a Finance Party of any power, right or remedy preclude any
other or further exercise thereof or the exercise of any other power, right or
remedy. The remedies provided in this Agreement and the other Relevant
Documents are cumulative and are not exclusive of any remedies provided by law.
19.4
English
translations
All certificates, instruments and other
documents to be delivered under or supplied in connection with this Agreement
and the other Relevant Documents shall be in the English language or shall be
accompanied by a certified English translation upon which the Finance Parties
shall be entitled to rely.
19.5
Severability
If at any time any provision of this
Agreement or any of the other Relevant Documents is or becomes illegal invalid
or unenforceable in any respect under the law of any jurisdiction neither the legality,
validity or enforceability of the remaining provisions hereof nor the legality,
validity
32
or enforceability of such provision under
the law of any other jurisdiction shall in any way be affected or impaired
thereby.
19.6
Counterparts
This Agreement and the other Relevant
Documents may be executed in any number of counterparts and by the
different parties on separate counterparts, each of which when so executed and
delivered shall be an original, but all counterparts shall together constitute
one and the same instrument.
19.7
Third
parties
Any person who is not a party to this
Agreement and the other Relevant Documents shall have no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce its terms. Subject to
any provision of any Relevant Document to the contrary, the consent of any
person who is not a party to this Agreement shall not be required to any
amendment, variation (including, without limitation, any release or compromise
of any liability) or termination of this Agreement or any other Relevant
Document.
20
Governing law
This Agreement is governed by and shall be
construed in accordance with English law.
21
Jurisdiction
21.1
For the benefit of the Finance
Parties, the parties hereto irrevocably agree that any legal action or
proceedings in connection with this Agreement may be brought in the
English courts, which shall have non-exclusive jurisdiction to settle any
disputes arising in connection with this Agreement. The parties hereto hereby
irrevocably and unconditionally submit to the non-exclusive jurisdiction of the
English courts. The submission to such jurisdiction shall not (and shall not be
construed so as to) limit the rights of any Finance Party to take proceedings
against any other party in any other court of competent jurisdiction, nor shall
the taking of proceedings in any one or more jurisdictions preclude the taking
of proceedings in any other jurisdiction, whether concurrently or not. The
Borrower irrevocably waives any objection it may now or hereafter have to
the laying of venue of any action or proceeding in any court and any loss it may now
or hereafter have that any action or proceeding has been brought in an
inconvenient forum.
21.2
For the benefit of the Finance
Parties, the Borrower hereby irrevocably and unconditionally waives: (a) any
immunity from the jurisdiction of the court mentioned in clause 21.1 and any
immunity from suit, judgment, execution, set-off, attachment, arrest, specific
performance, injunction or other judicial order or remedy to which it or any of
its assets may be entitled at present or in the future in any jurisdiction
in respect of any legal action or proceedings with respect to or in connection
with this Agreement; and (b) any objections to such jurisdiction on the
ground of venue or
forum non conveniens
or any similar grounds.
21.3
The Borrower hereby irrevocably
designates, appoints and empowers Freshfields Bruckhaus Deringer whose current
address is at 65 Fleet Street, London EC4Y 1HS, England (Ref: DMP
Litigation/RFM) to receive for it and on its behalf service of process issued
out of the English courts in any legal action or proceedings arising out of or
in connection with this Agreement. If the agent referred to above ceases so to
act, or ceases to have a place of business in England, the Borrower shall
forthwith notify the Finance Parties thereof and appoint another person
resident in England reasonably acceptable to the Finance Parties to act as its
agent for service of process under this Agreement.
IN WITNESS
whereof the parties to this Agreement have caused this Agreement to
be duly executed as a deed and delivered on the date first above written.
33
Schedule 1
The Lenders
|
Name
|
|
Address
and fax number
|
|
Lender’s
Proportion
|
|
|
|
|
|
|
|
CALYON S.A.
|
|
9, quai du President
Paul Doumer
|
|
100%
|
|
|
|
92920 Paris La Défense
|
|
|
|
|
|
France
|
|
|
|
|
|
|
|
|
|
|
|
Facsimile: (+33) 1 41
89 91 96
|
|
|
|
|
|
and (+33) 1 41 89 85 75
|
|
|
|
|
|
|
|
|
|
|
|
Attention: Head of Transportation Group
and DFS / MO
|
|
|
34
Schedule 2
Form of
Drawdown Notice
To:
[Agent]
[Date]
Facility Agreement relating to
Pre-Delivery Payments in respect of up to 12 A319-100 and 18 A320-200 Aircraft
dated [•]
November 2006
(the “Agreement”)
We refer to the above Agreement and hereby
give you notice that we wish to draw down an Advance of $[ ] on [ ].
[[
Note: for all Advances
other than the two Advances to be made in respect of Aircraft 1 and the aggregate
Advance to be made in respect of Aircraft 2-5
] [The funds are to
be credited on [
•
] to the
account of the Manufacturer with Calyon, account no. [ ].
[
Note: for the two Advances
which are to be made in respect of Aircraft 1 and the aggregate Advance to be
made in respect of Aircraft 2-5
] The funds are to be credited on
[
•
] to the account of
AerVenture n° [. ].
We confirm that:
(a)
such
Advance is made in respect of Aircraft No [
] and is being paid in relation to [[
Note:
for all Advances other than the two Advances to be made in respect of Aircraft
1 and the aggregate Advance to be made in respect of Aircraft 2-5
]
the partial funding of the Pre-Delivery Payment] in respect
of such Aircraft] [
Note: for the two Advances which are to be
made in respect of Aircraft 1 and the aggregate Advance to be made in respect
of Aircraft 2-5
]
as reimbursement of
the Pre-Delivery Payment payment[s] paid by the Borrower to the Manufacturer in
respect of [Aircraft 1] [Aircraft 2 to 5]];
(b)
no event
or circumstance has occurred and is continuing which constitutes either a
Default or a Purchase Agreement Default;
(c)
the
representations and warranties contained in clause 9.1 of the Agreement (other
than the representations and warranties contained in clauses 9.1.8 and 9.1.11,
and so that the representation and warranty in clause 9.1.10 shall for
this purpose refer to the then latest audited financial statements delivered to
the Agent under clause 10.1) are, and will on the Drawdown Date for the
Aircraft be, true and correct as if made with respect to the facts and
circumstances now and then existing;
(d)
the
borrowing to be effected by such Advance is within our corporate powers, has
been validly authorised by appropriate corporate action and shall not cause any
limit on our borrowings (whether imposed by statute, regulation, agreement or
otherwise) to be exceeded; and
(e)
[the
Equity Contribution of $ [
•
] in relation to the Aircraft has been paid by us to the
Manufacturer].
Words and expressions defined in the
Agreement shall have the same meanings where used in this notice.
35
|
|
|
|
|
|
|
|
|
|
For and on
behalf of
|
|
|
|
AERVENTURE
LIMITED
|
|
36
Schedule 3
Documents
and evidence required as conditions precedent
1
a
copy, certified as a true, complete and up-to-date copy by a Director or
Secretary of the Borrower, of the constitutive documents of the Borrower;
2
a
copy, certified as a true copy by a Director or Secretary of the Borrower, of
resolutions of the Board of Directors of the Borrower evidencing the Borrower’s
approval of this Agreement and the other Relevant Documents to which the
Borrower is a party and authorising its appropriate officers to execute and
deliver this Agreement and the other Relevant Documents to which the Borrower
is a party and to give all notices and take all other action required by the
Borrower under this Agreement and the other Relevant Documents together with a
certified copy of any power of attorney issued pursuant to such resolutions;
3
specimen
signatures, authenticated by a Director or the Secretary of the Borrower, of
the persons authorised in the resolutions of the Board of Directors referred to
in paragraph 2 above;
4
copies,
certified as a true copies by a Director or the Secretary of the Borrower, of
all consents, authorisations, licences and approvals (if any) required by the
Borrower to authorise, or required by the Borrower in connection with, the
execution, delivery, validity, enforceability and admissibility in evidence of
this Agreement and the performance by the Borrower of its obligations under
this Agreement and the other Relevant Documents;
5
each
of the Relevant Documents duly executed by each of the parties thereto;
6
a
copy, certified as a true copy by a duly authorised officer of the Borrower of
the Borrower’s opening accounts evidencing that the Borrower has a minimum of
fifty million Dollars ($50,000,000) in cash equity;
7
a
copy, certified by the Borrower and the Manufacturer or the relevant Engine
Manufacturer (as applicable) to be true, complete and up-to-date, of:
(a)
those
provisions of the Purchase Agreement which are assigned to the Security Trustee
pursuant to the Purchase Agreement Assignment; and
(b)
those
provisions of the Engine Agreements which are assigned to the Security Trustee
pursuant to the Engine Assignments;
8
written
confirmation from each of the Manufacturer and the Borrower that no Purchase
Agreement Default has occurred and that the Purchase Agreement remains in full
force and effect;
9
legal
opinions, each in form and substance satisfactory to the Lenders from:
(a)
McCann
Fitzgerald, in respect of matters of Irish law;
(b)
Norton
Rose, in respect of matters of English and French law;
(c)
Freshfields
Bruckhaus Deringer, New York, in respect of matters of New York law; and
(d)
in-house
counsel to the Manufacturer and each Engine Manufacturer;
10
receipt
by the Finance Parties of each of the fees, costs and expenses due by the
Borrower to the Finance Parties pursuant to each of the Fee Letters; and
11
no
Default shall have occurred; and
37
12
duly
executed letters of appointment from each of the Borrower and AerCap Ireland in
respect of, in the case of the Borrower, the appointment by the Borrower of its
agent of service of process pursuant to clause 21.3 of this Agreement, and in
the case of AerCap Ireland, the agent for service of process appointed by
AerCap Ireland pursuant to the Ownership Letter Agreement.
38
Schedule 4
Financial Schedules
|
Aircraft
Type
|
|
Aircraft
number
|
|
Scheduled
Delivery Month
|
|
Due date of
PDP
|
|
Equity
contribution
|
|
Advance
Amount
|
|
PDP amount
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A319-100
|
|
1
|
|
November-07
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
1
|
|
November-07
|
|
1-May-2006
|
|
$
|
66 441,46
|
|
$
|
0,00
|
|
$
|
66 441,46
|
|
|
A319-100
|
|
1
|
|
November-07
|
|
1-Aug-2006
|
|
$
|
2 666 650,60
|
|
$
|
165 556,72
|
|
$
|
2 832 207,32
|
|
|
A319-100
|
|
1
|
|
November-07
|
|
01-nov-06
|
|
$
|
0,00
|
|
$
|
2 832 207,32
|
|
$
|
2 832 207,32
|
|
|
A319-100
|
|
1
|
|
November-07
|
|
1-Feb-2007
|
|
$
|
0,00
|
|
$
|
849 662,19
|
|
$
|
849 662,19
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1 Total
|
|
|
|
|
|
$
|
3 233
092,06
|
|
$
|
3 847
426,23
|
|
$
|
7 080
518,29
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A319-100
|
|
2
|
|
December-07
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
2
|
|
December-07
|
|
01-juin-06
|
|
$
|
66 441,46
|
|
$
|
0,00
|
|
$
|
66 441,46
|
|
|
A319-100
|
|
2
|
|
December-07
|
|
01-sept-06
|
|
$
|
2 666 650,60
|
|
$
|
165 556,72
|
|
$
|
2 832 207,32
|
|
|
A319-100
|
|
2
|
|
December-07
|
|
1-Dec-2006
|
|
$
|
0,00
|
|
$
|
2 832 207,32
|
|
$
|
2 832 207,32
|
|
|
A319-100
|
|
2
|
|
December-07
|
|
01-mars-07
|
|
$
|
0,00
|
|
$
|
849 662,19
|
|
$
|
849 662,19
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2 Total
|
|
|
|
|
|
$
|
3 233
092,06
|
|
$
|
3 847
426,23
|
|
$
|
7 080
518,29
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
3
|
|
January-08
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
3
|
|
January-08
|
|
03-juil-06
|
|
$
|
157 970,35
|
|
$
|
0,00
|
|
$
|
157 970,35
|
|
|
A320-200
|
|
3
|
|
January-08
|
|
02-oct-06
|
|
$
|
2 320 471,01
|
|
$
|
969 380,73
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
3
|
|
January-08
|
|
01-janv-07
|
|
$
|
0,00
|
|
$
|
3 289 851,74
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
3
|
|
January-08
|
|
2-Apr-2007
|
|
$
|
0,00
|
|
$
|
986 955,52
|
|
$
|
986 955,52
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3 Total
|
|
|
|
|
|
$
|
2 978
441,35
|
|
$
|
5 246
188,00
|
|
$
|
8 224
629,35
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
4
|
|
February-08
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
4
|
|
February-08
|
|
1-Aug-2006
|
|
$
|
157 970,35
|
|
$
|
0,00
|
|
$
|
157 970,35
|
|
|
A320-200
|
|
4
|
|
February-08
|
|
01-nov-06
|
|
$
|
2 320 471,01
|
|
$
|
969 380,73
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
4
|
|
February-08
|
|
1-Feb-2007
|
|
$
|
0,00
|
|
$
|
3 289 851,74
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
4
|
|
February-08
|
|
1-May-2007
|
|
$
|
0,00
|
|
$
|
986 955,52
|
|
$
|
986 955,52
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
4 Total
|
|
|
|
|
|
$
|
2 978
441,35
|
|
$
|
5 246
188,00
|
|
$
|
8 224
629,35
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A319-100
|
|
5
|
|
February-08
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
5
|
|
February-08
|
|
1-Aug-2006
|
|
$
|
79 928,16
|
|
$
|
0,00
|
|
$
|
79 928,16
|
|
|
A319-100
|
|
5
|
|
February-08
|
|
01-nov-06
|
|
$
|
2 703 739,03
|
|
$
|
195 901,80
|
|
$
|
2 899 640,82
|
|
|
A319-100
|
|
5
|
|
February-08
|
|
1-Feb-2007
|
|
$
|
0,00
|
|
$
|
2 899 640,82
|
|
$
|
2 899 640,82
|
|
|
A319-100
|
|
5
|
|
February-08
|
|
1-May-2007
|
|
$
|
0,00
|
|
$
|
869 892,25
|
|
$
|
869 892,25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5 Total
|
|
|
|
|
|
$
|
3 283
667,19
|
|
$
|
3 965
434,86
|
|
$
|
7 249
102,06
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
39
|
A319-100
|
|
6
|
|
June-08
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
6
|
|
June-08
|
|
1-Dec-2006
|
|
$
|
79 928,16
|
|
$
|
0,00
|
|
$
|
79 928,16
|
|
|
A319-100
|
|
6
|
|
June-08
|
|
01-mars-07
|
|
$
|
2 703 739,03
|
|
$
|
195 901,80
|
|
$
|
2 899 640,82
|
|
|
A319-100
|
|
6
|
|
June-08
|
|
01-juin-07
|
|
$
|
0,00
|
|
$
|
2 899 640,82
|
|
$
|
2 899 640,82
|
|
|
A319-100
|
|
6
|
|
June-08
|
|
03-sept-07
|
|
$
|
0,00
|
|
$
|
869 892,25
|
|
$
|
869 892,25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6 Total
|
|
|
|
|
|
$
|
3 283
667,19
|
|
$
|
3 965
434,86
|
|
$
|
7 249
102,06
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
7
|
|
July-08
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
7
|
|
July-08
|
|
01-janv-07
|
|
$
|
157 970,35
|
|
$
|
0,00
|
|
$
|
157 970,35
|
|
|
A320-200
|
|
7
|
|
July-08
|
|
2-Apr-2007
|
|
$
|
2 320 471,01
|
|
$
|
969 380,73
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
7
|
|
July-08
|
|
02-juil-07
|
|
$
|
0,00
|
|
$
|
3 289 851,74
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
7
|
|
July-08
|
|
01-oct-07
|
|
$
|
0,00
|
|
$
|
986 955,52
|
|
$
|
986 955,52
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
7 Total
|
|
|
|
|
|
$
|
2 978
441,35
|
|
$
|
5 246
188,00
|
|
$
|
8 224
629,35
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
8
|
|
August-08
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
8
|
|
August-08
|
|
1-Feb-2007
|
|
$
|
157 970,35
|
|
$
|
0,00
|
|
$
|
157 970,35
|
|
|
A320-200
|
|
8
|
|
August-08
|
|
1-May-2007
|
|
$
|
2 793 645,01
|
|
$
|
496 206,73
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
8
|
|
August-08
|
|
1-Aug-2007
|
|
$
|
0,00
|
|
$
|
3 289 851,74
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
8
|
|
August-08
|
|
01-nov-07
|
|
$
|
0,00
|
|
$
|
986 955,52
|
|
$
|
986 955,52
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8 Total
|
|
|
|
|
|
$
|
3 451
615,35
|
|
$
|
4 773
014,00
|
|
$
|
8 224
629,35
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A319-100
|
|
9
|
|
September-08
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
9
|
|
September-08
|
|
01-mars-07
|
|
$
|
79 928,16
|
|
$
|
0,00
|
|
$
|
79 928,16
|
|
|
A319-100
|
|
9
|
|
September-08
|
|
01-juin-07
|
|
$
|
2 703 739,03
|
|
$
|
195 901,80
|
|
$
|
2 899 640,82
|
|
|
A319-100
|
|
9
|
|
September-08
|
|
03-sept-07
|
|
$
|
0,00
|
|
$
|
2 899 640,82
|
|
$
|
2 899 640,82
|
|
|
A319-100
|
|
9
|
|
September-08
|
|
3-Dec-2007
|
|
$
|
0,00
|
|
$
|
869 892,25
|
|
$
|
869 892,25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
9 Total
|
|
|
|
|
|
$
|
3 283
667,19
|
|
$
|
3 965
434,86
|
|
$
|
7 249
102,06
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A319-100
|
|
10
|
|
November-08
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
10
|
|
November-08
|
|
1-May-2007
|
|
$
|
79 928,16
|
|
$
|
0,00
|
|
$
|
79 928,16
|
|
|
A319-100
|
|
10
|
|
November-08
|
|
1-Aug-2007
|
|
$
|
2 466 141,03
|
|
$
|
433 499,80
|
|
$
|
2 899 640,82
|
|
|
A319-100
|
|
10
|
|
November-08
|
|
01-nov-07
|
|
$
|
0,00
|
|
$
|
2 899 640,82
|
|
$
|
2 899 640,82
|
|
|
A319-100
|
|
10
|
|
November-08
|
|
1-Feb-2008
|
|
$
|
0,00
|
|
$
|
869 892,25
|
|
$
|
869 892,25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10 Total
|
|
|
|
|
|
$
|
3 046
069,19
|
|
$
|
4 203
032,86
|
|
$
|
7 249
102,06
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
11
|
|
November-08
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
11
|
|
November-08
|
|
1-May-2007
|
|
$
|
157 970,35
|
|
$
|
0,00
|
|
$
|
157 970,35
|
|
|
A320-200
|
|
11
|
|
November-08
|
|
1-Aug-2007
|
|
$
|
2 793 645,01
|
|
$
|
496 206,73
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
11
|
|
November-08
|
|
01-nov-07
|
|
$
|
0,00
|
|
$
|
3 289 851,74
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
11
|
|
November-08
|
|
1-Feb-2008
|
|
$
|
0,00
|
|
$
|
986 955,52
|
|
$
|
986 955,52
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
11 Total
|
|
|
|
|
|
$
|
3 451
615,35
|
|
$
|
4 773
014,00
|
|
$
|
8 224
629,35
|
|
40
|
A320-200
|
|
12
|
|
December-08
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
12
|
|
December-08
|
|
01-juin-07
|
|
$
|
157 970,35
|
|
$
|
0,00
|
|
$
|
157 970,35
|
|
|
A320-200
|
|
12
|
|
December-08
|
|
03-sept-07
|
|
$
|
2 320 471,01
|
|
$
|
969 380,73
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
12
|
|
December-08
|
|
3-Dec-2007
|
|
$
|
0,00
|
|
$
|
3 289 851,74
|
|
$
|
3 289 851,74
|
|
|
A320-200
|
|
12
|
|
December-08
|
|
03-mars-08
|
|
$
|
0,00
|
|
$
|
986 955,52
|
|
$
|
986 955,52
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
12 Total
|
|
|
|
|
|
$
|
2 978
441,35
|
|
$
|
5 246
188,00
|
|
$
|
8 224
629,35
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A319-100
|
|
13
|
|
February-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
13
|
|
February-09
|
|
1-Aug-2007
|
|
$
|
93 414,87
|
|
$
|
0,00
|
|
$
|
93 414,87
|
|
|
A319-100
|
|
13
|
|
February-09
|
|
01-nov-07
|
|
$
|
2 967 074,33
|
|
$
|
0,00
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
13
|
|
February-09
|
|
1-Feb-2008
|
|
$
|
1 108 936,58
|
|
$
|
1 858 137,76
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
13
|
|
February-09
|
|
1-May-2008
|
|
$
|
0,00
|
|
$
|
890 122,30
|
|
$
|
890 122,30
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13 Total
|
|
|
|
|
|
$
|
4 669
425,77
|
|
$
|
2 748
260,05
|
|
$
|
7 417
685,83
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
14
|
|
January-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
14
|
|
January-09
|
|
02-juil-07
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
14
|
|
January-09
|
|
01-oct-07
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
14
|
|
January-09
|
|
01-janv-08
|
|
$
|
984 226,55
|
|
$
|
2 382 133,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
14
|
|
January-09
|
|
1-Apr-2008
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
14 Total
|
|
|
|
|
|
$
|
5 023
858,45
|
|
$
|
3 392
041,35
|
|
$
|
8 415
899,80
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
15
|
|
February-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
15
|
|
February-09
|
|
1-Aug-2007
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
15
|
|
February-09
|
|
01-nov-07
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
15
|
|
February-09
|
|
1-Feb-2008
|
|
$
|
984 226,55
|
|
$
|
2 382 133,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
15
|
|
February-09
|
|
1-May-2008
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15 Total
|
|
|
|
|
|
$
|
5 023
858,45
|
|
$
|
3 392
041,35
|
|
$
|
8 415
899,80
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A319-100
|
|
16
|
|
March-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
16
|
|
March-09
|
|
03-sept-07
|
|
$
|
93 414,87
|
|
$
|
0,00
|
|
$
|
93 414,87
|
|
|
A319-100
|
|
16
|
|
March-09
|
|
3-Dec-2007
|
|
$
|
2 967 074,33
|
|
$
|
0,00
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
16
|
|
March-09
|
|
03-mars-08
|
|
$
|
1 108 936,58
|
|
$
|
1 858 137,76
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
16
|
|
March-09
|
|
02-juin-08
|
|
$
|
0,00
|
|
$
|
890 122,30
|
|
$
|
890 122,30
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16 Total
|
|
|
|
|
|
$
|
4 669
425,77
|
|
$
|
2 748
260,05
|
|
$
|
7 417
685,83
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
17
|
|
February-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
17
|
|
February-09
|
|
1-Aug-2007
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
17
|
|
February-09
|
|
01-nov-07
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
17
|
|
February-09
|
|
1-Feb-2008
|
|
$
|
511 052,55
|
|
$
|
2 855 307,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
17
|
|
February-09
|
|
1-May-2008
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
17 Total
|
|
|
|
|
|
$
|
4 550
684,45
|
|
$
|
3 865
215,35
|
|
$
|
8 415
899,80
|
|
41
|
A320-200
|
|
18
|
|
March-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
18
|
|
March-09
|
|
03-sept-07
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
18
|
|
March-09
|
|
3-Dec-2007
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
18
|
|
March-09
|
|
03-mars-08
|
|
$
|
984 226,55
|
|
$
|
2 382 133,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
18
|
|
March-09
|
|
02-juin-08
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
18 Total
|
|
|
|
|
|
$
|
5 023
858,45
|
|
$
|
3 392
041,35
|
|
$
|
8 415
899,80
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
19
|
|
March-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
19
|
|
March-09
|
|
03-sept-07
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
19
|
|
March-09
|
|
3-Dec-2007
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
19
|
|
March-09
|
|
03-mars-08
|
|
$
|
984 226,55
|
|
$
|
2 382 133,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
19
|
|
March-09
|
|
02-juin-08
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
19 Total
|
|
|
|
|
|
$
|
5 023
858,45
|
|
$
|
3 392
041,35
|
|
$
|
8 415
899,80
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A319-100
|
|
20
|
|
April-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
20
|
|
April-09
|
|
01-oct-07
|
|
$
|
93 414,87
|
|
$
|
0,00
|
|
$
|
93 414,87
|
|
|
A319-100
|
|
20
|
|
April-09
|
|
01-janv-08
|
|
$
|
2 967 074,33
|
|
$
|
0,00
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
20
|
|
April-09
|
|
1-Apr-2008
|
|
$
|
871 338,58
|
|
$
|
2 095 735,75
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
20
|
|
April-09
|
|
01-juil-08
|
|
$
|
0,00
|
|
$
|
890 122,30
|
|
$
|
890 122,30
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
20 Total
|
|
|
|
|
|
$
|
4 431
827,77
|
|
$
|
2 985
858,05
|
|
$
|
7 417
685,83
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
21
|
|
April-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
21
|
|
April-09
|
|
01-oct-07
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
21
|
|
April-09
|
|
01-janv-08
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
21
|
|
April-09
|
|
1-Apr-2008
|
|
$
|
511 052,55
|
|
$
|
2 855 307,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
21
|
|
April-09
|
|
01-juil-08
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
21 Total
|
|
|
|
|
|
$
|
4 550
684,45
|
|
$
|
3 865
215,35
|
|
$
|
8 415
899,80
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
22
|
|
April-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
22
|
|
April-09
|
|
01-oct-07
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
22
|
|
April-09
|
|
01-janv-08
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
22
|
|
April-09
|
|
1-Apr-2008
|
|
$
|
984 226,55
|
|
$
|
2 382 133,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
22
|
|
April-09
|
|
01-juil-08
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22 Total
|
|
|
|
|
|
$
|
5 023
858,45
|
|
$
|
3 392
041,35
|
|
$
|
8 415
899,80
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
23
|
|
May-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
23
|
|
May-09
|
|
01-nov-07
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
23
|
|
May-09
|
|
1-Feb-2008
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
23
|
|
May-09
|
|
1-May-2008
|
|
$
|
984 226,55
|
|
$
|
2 382 133,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
23
|
|
May-09
|
|
1-Aug-2008
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
23 Total
|
|
|
|
|
|
$
|
5 023
858,45
|
|
$
|
3 392
041,35
|
|
$
|
8 415
899,80
|
|
42
|
A320-200
|
|
24
|
|
May-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
24
|
|
May-09
|
|
01-nov-07
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
24
|
|
May-09
|
|
1-Feb-2008
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
24
|
|
May-09
|
|
1-May-2008
|
|
$
|
511 052,55
|
|
$
|
2 855 307,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
24
|
|
May-09
|
|
1-Aug-2008
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24 Total
|
|
|
|
|
|
$
|
4 550
684,45
|
|
$
|
3 865 215,35
|
|
$
|
8 415 899,80
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
25
|
|
June-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
25
|
|
June-09
|
|
3-Dec-2007
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
25
|
|
June-09
|
|
03-mars-08
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
25
|
|
June-09
|
|
02-juin-08
|
|
$
|
984 226,55
|
|
$
|
2 382 133,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
25
|
|
June-09
|
|
01-sept-08
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25 Total
|
|
|
|
|
|
$
|
5 023
858,45
|
|
$
|
3 392 041,35
|
|
$
|
8 415 899,80
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A319-100
|
|
26
|
|
September-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
26
|
|
September-09
|
|
03-mars-08
|
|
$
|
93 414,87
|
|
$
|
0,00
|
|
$
|
93 414,87
|
|
|
A319-100
|
|
26
|
|
September-09
|
|
02-juin-08
|
|
$
|
2 967 074,33
|
|
$
|
0,00
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
26
|
|
September-09
|
|
01-sept-08
|
|
$
|
1 108 936,58
|
|
$
|
1 858 137,76
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
26
|
|
September-09
|
|
1-Dec-2008
|
|
$
|
0,00
|
|
$
|
890 122,30
|
|
$
|
890 122,30
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26 Total
|
|
|
|
|
|
$
|
4 669
425,77
|
|
$
|
2 748 260,05
|
|
$
|
7 417 685,83
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A319-100
|
|
27
|
|
September-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
27
|
|
September-09
|
|
03-mars-08
|
|
$
|
93 414,87
|
|
$
|
0,00
|
|
$
|
93 414,87
|
|
|
A319-100
|
|
27
|
|
September-09
|
|
02-juin-08
|
|
$
|
2 967 074,33
|
|
$
|
0,00
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
27
|
|
September-09
|
|
01-sept-08
|
|
$
|
1 108 936,58
|
|
$
|
1 858 137,76
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
27
|
|
September-09
|
|
1-Dec-2008
|
|
$
|
0,00
|
|
$
|
890 122,30
|
|
$
|
890 122,30
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
27 Total
|
|
|
|
|
|
$
|
4 669
425,77
|
|
$
|
2 748 260,05
|
|
$
|
7 417 685,83
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
28
|
|
September-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
28
|
|
September-09
|
|
03-mars-08
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
28
|
|
September-09
|
|
02-juin-08
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
28
|
|
September-09
|
|
01-sept-08
|
|
$
|
984 226,55
|
|
$
|
2 382 133,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
28
|
|
September-09
|
|
1-Dec-2008
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28 Total
|
|
|
|
|
|
$
|
5 023
858,45
|
|
$
|
3 392
041,35
|
|
$
|
8 415
899,80
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A320-200
|
|
29
|
|
October-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A320-200
|
|
29
|
|
October-09
|
|
1-Apr-2008
|
|
$
|
173 271,98
|
|
$
|
0,00
|
|
$
|
173 271,98
|
|
|
A320-200
|
|
29
|
|
October-09
|
|
01-juil-08
|
|
$
|
3 366 359,92
|
|
$
|
0,00
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
29
|
|
October-09
|
|
01-oct-08
|
|
$
|
511 052,55
|
|
$
|
2 855 307,37
|
|
$
|
3 366 359,92
|
|
|
A320-200
|
|
29
|
|
October-09
|
|
01-janv-09
|
|
$
|
0,00
|
|
$
|
1 009 907,98
|
|
$
|
1 009 907,98
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29 Total
|
|
|
|
|
|
$
|
4 550
684,45
|
|
$
|
3 865
215,35
|
|
$
|
8 415
899,80
|
|
43
|
A319-100
|
|
30
|
|
September-09
|
|
30-Dec-2005
|
|
$
|
500 000,00
|
|
$
|
0,00
|
|
$
|
500 000,00
|
|
|
A319-100
|
|
30
|
|
September-09
|
|
03-mars-08
|
|
$
|
93 414,87
|
|
$
|
0,00
|
|
$
|
93 414,87
|
|
|
A319-100
|
|
30
|
|
September-09
|
|
02-juin-08
|
|
$
|
2 967 074,33
|
|
$
|
0,00
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
30
|
|
September-09
|
|
01-sept-08
|
|
$
|
871 338,58
|
|
$
|
2 095 735,75
|
|
$
|
2 967 074,33
|
|
|
A319-100
|
|
30
|
|
September-09
|
|
1-Dec-2008
|
|
$
|
0,00
|
|
$
|
890 122,30
|
|
$
|
890 122,30
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
30 Total
|
|
|
|
|
|
$
|
4 431
827,77
|
|
$
|
2 985
858,05
|
|
$
|
7 417
685,83
|
|
44
FACILITY AGREEMENT SIGNATURE PAGE
|
THE BORROWER
|
|
|
|
SIGNED, SEALED
and
DELIVERED
|
)
|
|
by
|
|
|
)
|
|
the duly authorised attorney
|
)
|
|
for and on behalf of
|
)
|
|
AERVENTURE LIMITED
|
)
|
|
|
|
|
In presence of:
|
|
|
|
|
|
Witness Name:
|
|
|
)
|
|
|
)
|
|
Witness Signature:
|
|
|
)
|
|
|
|
|
|
|
|
THE LENDER
|
|
|
|
|
|
SIGNED
for and on behalf of
|
)
|
|
CALYON S.A.
|
)
|
|
|
|
|
THE SECURITY TRUSTEE
|
|
|
|
|
|
SIGNED
for and on behalf of
|
)
|
|
CALYON S.A.
|
)
|
|
|
|
|
THE AGENT
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SIGNED
for and on behalf of
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CALYON S.A.
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)
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45