As filed with the Securities and Exchange Commission on October 8, 2013.

Registration No. 333-191258

 

 

 

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

Amendment No. 3

to

FORM F-1

REGISTRATION STATEMENT

UNDER

THE SECURITIES ACT OF 1933

 

 

AVIANCA HOLDINGS S.A.

(Exact name of registrant as specified in its charter)

 

 

 

Republic of Panama   4512   Not Applicable
(State or other jurisdiction of
incorporation or organization)
  (Primary standard industrial
classification code number)
  (I.R.S. employer
identification number)

Aquilino de la Guardia Calle No. 8, Panama City,

Republic of Panama

(+507) 205-600

(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

Avianca Inc.

122 East 42nd Street, Suite 2525

New York, NY 10168

+1 (212) 399-0831

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

with copies to:

 

David L. Williams
Simpson Thacher & Bartlett LLP
425 Lexington Avenue

New York, New York 10017

 

John R. Vetterli
White & Case LLP
1155 Avenue of the Americas

New York, New York 10036

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act, please check the following box.   ¨

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

If this form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.   ¨

 

 

CALCULATION OF REGISTRATION FEE

 

 

 

Title of each class of
securities to be registered
  Amount to  be
registered (1)
  Proposed maximum
aggregate offering
price (1)(2)
  Amount of
registration fee (4)

Preferred shares, par value $0.125 (3)

 

         shares

  $100,000,000   $13,640

 

 

(1) Includes preferred shares that the underwriters may purchase solely to cover over-allotments, if any, and preferred shares that are to be offered outside the United States that may be resold in the United States in transactions requiring registration under the Securities Act. All or part of these preferred shares may be represented by American Depositary Shares, each of which represents                 of our preferred shares.
(2) Estimated solely for purposes of calculating the amount of the registration fee pursuant to Rule 457(o) under the Securities Act.
(3) American Depositary Shares evidenced by American Depositary Receipts issuable upon deposit of the preferred shares registered hereby will be registered under a separate registration statement on Form F-6. Each American Depositary Share represents                 preferred shares.
(4) Previously paid.

 

 

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment, which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act, or until this Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.

 

 

 


EXPLANATORY NOTE

This Amendment No. 3 to the Registration Statement on Form F-1 of Avianca Holdings S.A. is being filed solely to include exhibits to the Registration Statement. These exhibits were previously confidentially submitted to the Securities and Exchange Commission and have been revised in connection with a request for confidential treatment. Accordingly, Part I, the form of prospectus, has been omitted from this filing.


PART II

INFORMATION NOT REQUIRED IN THE PROSPECTUS

I TEM  6. I NDEMNIFICATION OF D IRECTORS AND O FFICERS

According to the Registrant’s articles of incorporation and so far as may be permitted by the law, every director or officer of the Registrant involved in a claim, process, lawsuit or procedure related to his current or former position as director or officer, shall be entitled to be indemnified by the Registrant against all reasonable expenses, losses, fines and costs, including attorney fees, effectively and necessarily incurred by him, as a result of his actions and duties as a director or officer of the Registrant; except in case of losses or responsibility derived from willful misconduct or gross negligence.

I TEM  7. R ECENT S ALES OF U NREGISTERED S ECURITIES

On May 10, 2011, the Registrant completed a public offering of 100 million shares of preferred stock, with a par value of $0.125 per share, in an offering led by Correvores Associados and exempt from registration under Regulation S under the Securities Act in an offering occurring outside the United States, for a total amount of COP 500,000 million (approximately $277 million), representing a price of COP 5,000 per share, In May 2011, Synergy and Kingsland converted 15,000,000 and 42,600,000 common shares, respectively, into preferred shares in connection with the initial public offering of our preferred shares in Colombia

On May 10, 2013, the Registrant issued and sold $300,000,000 aggregate principal amount of senior notes due 2020 in an offering underwritten by Citigroup Global Markets Inc. and J.P. Morgan Securities LLC and exempt from registration under Rule 144A and Regulation S under the Securities Act. The price to the public was 98.706% of par and the aggregate underwriting discount was $1,500,000. The proceeds from the offering were used to finance the purchase of aircraft and general corporate purposes.

I TEM  8. E XHIBITS

(a) The following documents are filed as part of this Registration Statement:

 

  1.1*   Underwriting Agreement, dated as of                     , 2013 between the Registrant and J.P. Morgan Securities LLC and Citigroup Global Markets Inc.
  3.1*   English translation of Certificate of Incorporation.
  3.2*   English translation of Pacto Social .
  4.1**   Form of Deposit Agreement between the Registrant, The Bank of New York Mellon, as depositary, and the Owners and Holders from time to time of American Depositary Shares issued thereunder.
  4.2**   Specimen of certificate of American Depositary Receipt (included in Exhibit 4.1).
  4.3**   Joint Action Agreement, dated as of September 11, 2013, among the Registrant, Synergy Aerospace Corp. and Kingsland Holding Limited.
  4.4**   English Translation of Commercial Pledge Contract, dated September 6, 2012, among Citibank, N.A., Citibank, N.A., Sucursal Panama and Synergy Aerospace Corp.
  4.5**  

Amended and Restated Registration Rights Agreement, dated as of September 11, 2013, among the Registrant, Synergy Aerospace Corp. and Kingsland Holdings Limited.

  5.1**   Opinion of Icaza, González-Ruiz & Alemán, Panamanian legal counsel of the Registrant, as to the legality of the preferred shares.
10.1**   English translation of Irrevocable Administration Mercantile Trust Agreement, dated as of March 23, 2012, by and between Fiduciaria Bogotá S.A. and Avianca Holdings S.A. (formerly AviancaTaca Holding S.A.).
10.1.1**   English translation of Temporary Bonus Plan adopted on March 6, 2012.

 

II-1


10.2**  

English translation of Lease Agreement No. OP-DC-CA-T2-0060-12, dated October 17, 2012, between Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. and Aerovias del Continente Americano S.A. Avianca.

10.2.1**  

English translation of Lease Agreement No. OP-DC-CA-T1-0028-12, dated October 29, 2012, between Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. and Aerovias del Continente Americano S.A. Avianca.

10.2.2**   English translation of Lease Agreement No. OP-DC-CA-T2-0061-12, dated October 29, 2012, between Sociedad Concesionaria Operadora Aeroportuaria Internacional S.A. – Opain S.A. and Aerovias del Continente Americano S.A. Avianca.
10.3**   English translation of Lease Agreement, dated as of July 30, 2004, between U.A.E. Aeronautica Civil and Aerovias Nacionales de Colombia S.A. Avianca.
10.3.1**   English translation of Amendment No. 1 to Lease Agreement, dated as of December 12, 2005.
10.3.2**   English translation of Amendment No. 2 to Lease Agreement, dated as of January 5, 2009.
10.3.3**   English translation of Amendment No. 3 to Lease Agreement, dated as of November 7, 2012.
10.3.4**   English translation of Amendment No. 4 to Lease Agreement, dated as of March 1, 2013.
10.4**   English translation of Fuel Supply Contract, dated as of November 1, 2010, between Terpel S.A. and Aerovías del Continente Americano S.A. Avianca.
10.5†**   A320 Purchase Agreement, dated March 19, 1998, between Atlantic Aircraft Holding Limited and Airbus Industry relating to Airbus A320-Family.
10.5.1†   Amendment No. 1 dated as of September 9, 1998 to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S. (as successor to Airbus Industry).
10.5.2†   Amendment No. 2 dated as of December 28, 1999, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.3†   Amendment No. 3 dated as of December 29, 1999, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.4†   Amendment No. 4 dated as of February 15, 2000, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.5†   Amendment No. 5 dated as of April 6, 2001, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.6†   Amendment No. 6 dated as of April 9, 2001, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.7†   Amendment No. 7 dated as of September 6, 2001, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.8†   Amendment No. 8 dated as of August 29, 2002, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.9†   Amendment No. 9 dated as of December 6, 2002, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.10†   Amendment No. 10 dated as of October 30, 2003, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.11†   Amendment No. 11 dated as of November 18, 2004, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.

 

II-2


10.5.12†   Amendment No. 12 dated as of November 18, 2004, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.13†   Amendment No. 13 dated as of November 18, 2004, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S
10.5.14†   Amendment No. 14 dated as of February 18, 2006, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.15†   Amendment No. 15 dated as of June 22, 2007, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.16†   Amendment No. 16 dated as of November 22, 2007, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.17†   Amendment No. 17 dated as of April 14, 2008, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.18†   Amendment No. 18 dated as of January 30, 2009, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.19†   Amendment No. 19 dated as of April 28, 2009, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.20†   Amendment No. 20 dated as of February 10, 2010, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.21†   Amendment No. 21 dated as of April 29, 2011, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.22†   Amendment No. 22 dated as of August 26, 2011, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.23†   Amendment No. 23 dated as of October 25, 2011, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.24†   Amendment No. 24 dated as of March 29, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.25†   Amendment No. 25 dated as of March 29, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.26†   Amendment No. 26 dated as of March 29, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.27†   Amendment No. 27 dated as of November 30, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.6†**   A320 Purchase Agreement, dated April 16, 2007, between Aerovías del Continente Americano S.A. Avianca and Airbus S.A.S. relating to Airbus A320-Family.
10.6.1†   Amendment No. 1 dated as of June 16, 2007, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.2†   Amendment No. 2 dated as of September 10, 2007, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.3†   Amendment No. 3 dated as of November 27, 2007, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.4†   Amendment No. 4 dated as of January 31, 2008, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.

 

II-3


10.6.5†   Amendment No. 5 dated as of July 16, 2008, to the A320 Family Purchase Agreement dated as April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.6†   Amendment No. 6 dated as of December 5, 2008, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.7†   Amendment No. 7 dated as of July 6, 2009, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.8†   Amendment No. 8 dated as of October 10, 2009, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.9†   Amendment No. 9 dated as of March 12, 2010, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.10†   Amendment No. 10 dated as of November 22, 2010, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.11†   Amendment No. 11 dated as of August 26, 2011, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.12†   Amendment No. 12 dated as of October 10, 2011, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.13†   Amendment No. 13 dated as of June 13, 2012, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.7†   Assignment, Assumption and Amendment Agreement dated as of May 18, 2012, entered into among Aerovías del Continente Americano S.A. Avianca, Synergy Aerospace Corp. and Airbus S.A.S. in respect of four (4) A330-200F of the thirteen (13) A330-200 and A330-200F under the Purchase Agreement dated September 5, 2011 (the A330-200F Purchase Agreement).
10.7.1†   Amendment No. 1, dated as of August 16, 2012, to the A330-200F Purchase Agreement dated as of May 18, 2012, as amended and restated, between the Company and Airbus S.A.S.
10.8†**   A320 Family and A320 NEO Family Purchase Agreement dated as of December 27, 2011 between Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.) and Airbus S.A.S. relating to Airbus A320-Family and A320 NEO Family.
10.8.1†**   Amendment No. 1, dated as of February 28, 2013, to the A320 Family and A320 NEO Family Purchase Agreement dated as of December 27, 2011, between Avianca Holdings S.A. and Airbus S.A.S.
10.8.2†**   Assignment, Assumption and Amendment Agreement dated as of February 28, 2013, entered into among Aerovías del Continente Americano S.A. Avianca, Avianca Holdings S.A. and Airbus S.A.S. in respect of twenty six (26) A320 Family Aircraft and A320 NEO Family under the A320 Family and A320 NEO Family Purchase Agreement dated December 27, 2011.
10.8.3†**   Assignment, Assumption and Amendment Agreement dated as of February 28, 2013, entered into among Grupo Taca Holdings Limited, Avianca Holdings S.A. and Airbus S.A.S. in respect of twenty five (25) A320 Family and A320 NEO Family Aircraft under the A320 Family and A320 NEO Family Purchase Agreement dated December 27, 2011.
10.9†   Purchase Agreement No. 3075, dated October 3, 2006, as amended and supplemented, between Aerovías del Continente Americano S.A. Avianca (The Company) and The Boeing Company, relating to the purchase and sale of ten (10) Boeing Model 787-859 aircraft.
10.9.1†   Supplemental Agreement No. 1 dated as of March 28, 2007, to the Purchase Agreement No. 3075, dated October 3, 2006, as amended and supplemented, between the Company and The Boeing Company

 

II-4


10.9.2†   Supplemental Agreement No. 2 dated as of March 28, 2007, to the Purchase Agreement No. 3075, dated November 21, 2007, as amended and supplemented, between the Company and The Boeing Company
10.9.3†   Supplemental Agreement No. 3 dated as of September 26, 2012, to the Purchase Agreement No. 3075, dated November 21, 2007, as amended and supplemented, between the Company and The Boeing Company
10.9.4†   Supplemental Agreement No. 4 dated as of January 11, 2013, to the Purchase Agreement No. 3075, dated November 21, 2007, as amended and supplemented, between the Company and The Boeing Company
10.10†   Sale and Purchase Contract dated as of January 18, 2013, between Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.) and Avions de Transport Regional G.I.E. as amended and restated, relating to ATR 72-600 Aircraft.
10.11†**   Trent 700 General Terms Agreement, dated June 15, 2007, among Rolls Royce PLC, Rolls Royce Total Care Services Limited and Aerovías del Continente Americano S.A. Avianca.
10.11.1†**   Amendment No. 1 to General Terms Agreement, dated February 28, 2008.
10.11.2†**   Amendment No. 2 to General Terms Agreement, dated February 28, 2009.
10.11.3†**   Amendment No. 3 to General Terms Agreement, dated September 1, 2009.
10.11.4†**   Amendment No. 4 to General Terms Agreement, dated March 18, 2011.
10.12†**   General Terms Agreement 700 DEG 7308, dated June 1, 2012, between Rolls-Royce PLC, Rolls-Royce Total Care Services Limited and Aerovías del Continente Americano S.A. Avianca and Tampa Cargo S.A.
10.13†**   General Terms Agreement No. CFM-03-2007, dated as of March 29, 2007, between CFM International, Inc. and Aerovías del Continente Americano S.A. Avianca.
10.13.1†   Amendment No. 1 to General Terms Agreement.
10.14†**   General Terms Agreement No. GE-1-1090789943, dated as of December 18, 2007, between General Electric Corporation, GE Engine Services and Atlantic Aircraft Holding, Ltd.
10.15†**   OnPoint Solutions Rate per Engine Flight Hour Engine Services Agreement, dated as of January 18, 2008, between GE Engine Services, Inc. and Aerovías del Continente Americano S.A. Avianca.
10.16†  

Rate Per Flight Hour Agreement for CFM56-5B Engine Shop Maintenance Services, dated as of February 6, 2013, between CFM International, Inc. and Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.).

10.17†**   General Terms Agreement No. CFM-1-2887169891, dated as of February 6, 2013, between CFM International, Inc. and Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.)
10.18†**   Rate Per Flight Hour Agreement for LEAP 1-A Engine Shop Maintenance Services, dated as of February 6, 2013, between CFM International, Inc. and Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.).
10.19†**   Amended and Restated V2500 ® General Terms of Sale, dated as of December 18, 2008, between IAE International Aero Engines AG and Atlantic Aircraft Holdings Limited.
10.19.1†   Amendment No. 1 to Amended and Restated V2500 ® General Terms of Sale, dated December 17, 2010.
10.19.2†**   Second Amended and Restated Side Letter, dated as of December 17, 2010.
10.20†**   Amended and Restated V2500-A5 Fleet Hour Agreement, dated as of December 18, 2008, between IAE International Aero Engines AG and Atlantic Aircraft Holdings Limited.

 

II-5


12.1**   Computation of ratios of earnings.
21.1**   Subsidiaries of the Registrant.
23.1**   Consent of Ernst & Young Audit S.A.S.
23.2**   Consent of Icaza, González-Ruiz & Alemán, Panamanian legal counsel of the Registrant (included in Exhibit 5.1).
24.1**   Powers of Attorney (included in the signature pages in a previous filing of this registration statement).

 

* To be filed by amendment.
** Previously filed.
Portions of the exhibit omitted pursuant to a request for confidential treatment.

(b) Financial Statement Schedules

Schedules not listed above have been omitted because the information required to be set forth therein is not applicable or is shown in our consolidated financial statements or notes thereto.

I TEM  9. U NDERTAKINGS

The undersigned Registrant hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 6 of this Registration Statement, or otherwise, the Registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted against the Registrant by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

The undersigned Registrant hereby also undertakes that:

 

1. For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this Registration Statement at the time it was declared effective.

 

2. For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

II-6


SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-1 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Bogotá, Colombia, on October 8, 2013.

 

Avianca Holdings S.A.
By:   /s/ Fabio Villegas Ramírez
  Name: Fabio Villegas Ramírez
  Title:   Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons on October 8, 2013 in the capacities indicated:

 

Name    Title

/s/ Fabio Villegas Ramírez

Fabio Villegas Ramírez

  

Chief Executive Officer

(Principal Executive Officer)

  

/s/ Gerardo Grajales López

Gerardo Grajales López

  

Executive Vice President and Chief Financial Officer

(Principal Financial Officer)

/s/ Milton Solano Barahona

Milton Solano Barahona

   Accounting Shared Services Vice President (Principal Accounting Officer)

*

Germán Efromovich

   Chairman of the Board of Directors

*

Roberto Kriete

   Director

*

José Efromovich

   Director

*

Alexander Bialer

   Director

*

Marco Baldocchi

   Director

*

Isaac Yanovich

   Director

*

Alvaro Jaramillo

   Director

 

II-7


Name    Title

*

Juan Guillermo Serna

   Director

*

Ramiro Valencia

   Director

*

Monica Aparicio

   Director

*

Oscar Darío Morales

   Director

 

*By:   /s/ Gerardo Grajales López
 

Gerardo Grajales López

Attorney-in-Fact

SIGNATURE OF AUTHORIZED REPRESENTATIVE IN THE UNITED STATES

Pursuant to the Securities Act of 1933, the undersigned, the duly authorized representative in the United States of Avianca Holdings S.A., has signed this Registration Statement in New York, New York, on October 8, 2013.

 

Avianca Inc.

By:   /s/ Gerardo Grajales López
 

Gerardo Grajales López

Authorized Signatory

 

II-8


Exhibit Index

 

10.5.1†    Amendment No. 1 dated as of September 9, 1998 to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S. (as successor to Airbus Industry).
10.5.2†    Amendment No. 2 dated as of December 28, 1999, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.3†    Amendment No. 3 dated as of December 29, 1999, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.4†    Amendment No. 4 dated as of February 15, 2000, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.5†    Amendment No. 5 dated as of April 6, 2001, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.6†    Amendment No. 6 dated as of April 9, 2001, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.7†    Amendment No. 7 dated as of September 6, 2001, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.8†    Amendment No. 8 dated as of August 29, 2002, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.9†    Amendment No. 9 dated as of December 6, 2002, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.10†    Amendment No. 10 dated as of October 30, 2003, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.11†    Amendment No. 11 dated as of November 18, 2004, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.12†    Amendment No. 12 dated as of November 18, 2004, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.13†    Amendment No. 13 dated as of November 18, 2004, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S
10.5.14†    Amendment No. 14 dated as of February 18, 2006, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.15†    Amendment No. 15 dated as of June 22, 2007, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.16†    Amendment No. 16 dated as of November 22, 2007, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.17†    Amendment No. 17 dated as of April 14, 2008, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.18†    Amendment No. 18 dated as of January 30, 2009, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.19†    Amendment No. 19 dated as of April 28, 2009, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.20†    Amendment No. 20 dated as of February 10, 2010, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.


10.5.21†    Amendment No. 21 dated as of April 29, 2011, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.22†    Amendment No. 22 dated as of August 26, 2011, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.23†    Amendment No. 23 dated as of October 25, 2011, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.24†    Amendment No. 24 dated as of March 29, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.25†    Amendment No. 25 dated as of March 29, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.26†    Amendment No. 26 dated as of March 29, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.5.27†    Amendment No. 27 dated as of November 30, 2012, to the A320 Purchase Agreement dated as of March 19, 1998, as amended and restated, between the Company and Airbus S.A.S.
10.6.1†    Amendment No. 1 dated as of June 16, 2007, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.2†    Amendment No. 2 dated as of September 10, 2007, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.3†    Amendment No. 3 dated as of November 27, 2007, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.4†    Amendment No. 4 dated as of January 31, 2008, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.5†    Amendment No. 5 dated as of July 16, 2008, to the A320 Family Purchase Agreement dated as April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.6†    Amendment No. 6 dated as of December 5, 2008, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.7†    Amendment No. 7 dated as of July 6, 2009, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.8†    Amendment No. 8 dated as of October 10, 2009, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.9†    Amendment No. 9 dated as of March 12, 2010, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.10†    Amendment No. 10 dated as of November 22, 2010, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.11†    Amendment No. 11 dated as of August 26, 2011, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.12†    Amendment No. 12 dated as of October 10, 2011, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.6.13†    Amendment No. 13 dated as of June 13, 2012, to the A320 Family Purchase Agreement dated as of April 16, 2007, as amended and restated, between the Company and Airbus S.A.S.
10.7†    Assignment, Assumption and Amendment Agreement dated as of May 18, 2012, entered into among Aerovías del Continente Americano S.A. Avianca, Synergy Aerospace Corp. and Airbus S.A.S. in respect of four (4) A330-200F of the thirteen (13) A330-200 and A330-200F under the Purchase Agreement dated September 5, 2011 (the A330-200F Purchase Agreement).


10.7.1†    Amendment No. 1, dated as of August 16, 2012, to the A330-200F Purchase Agreement dated as of May 18, 2012, as amended and restated, between the Company and Airbus S.A.S.
10.9†    Purchase Agreement No. 3075, dated October 3, 2006, as amended and supplemented, between Aerovías del Continente Americano S.A. Avianca (The Company) and The Boeing Company, relating to the purchase and sale of ten (10) Boeing Model 787-859 aircraft.
10.9.1†    Supplemental Agreement No. 1 dated as of March 28, 2007, to the Purchase Agreement No. 3075, dated October 3, 2006, as amended and supplemented, between the Company and The Boeing Company
10.9.2†    Supplemental Agreement No. 2 dated as of March 28, 2007, to the Purchase Agreement No. 3075, dated November 21, 2007, as amended and supplemented, between the Company and The Boeing Company
10.9.3†    Supplemental Agreement No. 3 dated as of September 26, 2012, to the Purchase Agreement No. 3075, dated November 21, 2007, as amended and supplemented, between the Company and The Boeing Company
10.9.4†    Supplemental Agreement No. 4 dated as of January 11, 2013, to the Purchase Agreement No. 3075, dated November 21, 2007, as amended and supplemented, between the Company and The Boeing Company
10.10†    Sale and Purchase Contract dated as of January 18, 2013, between Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.) and Avions de Transport Regional G.I.E. as amended and restated, relating to ATR 72-600 Aircraft.
10.13.1†    Amendment No. 1 to General Terms Agreement.
10.16†    Rate Per Flight Hour Agreement for CFM56-5B Engine Shop Maintenance Services, dated as of February 6, 2013, between CFM International, Inc. and Avianca Holdings S.A. (formerly known as AviancaTaca Holding S.A.).
10.19.1†    Amendment No. 1 to Amended and Restated V2500 ® General Terms of Sale, dated December 17, 2010.

Exhibit 10.5.1

A320F

AMENDMENT NO 1

BETWEEN

AIRBUS INDUSTRIE

AND

ATLANTIC AIRCRAFT HOLDING

LIMITED


AMENDMENT No. 1

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS INDUSTRIE

AI/CC-C No 337.0090:98

 

A320 Family - TAI - AMDT 1-09/98

1/5


AMENDMENT NO 1

This Amendment No 1 to the A320 Family Purchase Agreement signed on the 19th day of March 1998 is made on the 09th day of September 1998

BETWEEN

AIRBUS INDUSTRIE, having its principal office at:

1 Rond-Point Maurice Bellonte

31707 BLAGNAC-CEDEX

FRANCE

(hereinafter referred to as the “Seller”) of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at:

Bolam House

King and George Streets

NASSAU

BAHAMAS

(hereinafter referred to as the “Buyer”) of the other part.

 

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WHEREAS

 

A - The Seller is a “Groupement d’lnteret Economique” created and existing under French Law and established under Ordonnance No 67-821 dated September 23, 1967 of the Republic of FRANCE.

 

B - The Members of the Seller are:

 

  (1) AEROSPATIALE , SOCIETE NATIONALE INDUSTRIELLE,
       whose principal office is at:
       37, Boulevard Montmorency
       75016 PARIS
       FRANCE,

 

  (2) DAIMLER-BENZ AEROSPACE AIRBUS GmbH,
       whose principal office is at:
       Kreetslag 10
       Postfach 95 01 09
       21111-HAMBURG
       FEDERAL REPUBLIC OF GERMANY,

 

  (3) CONSTRUCCIONES AERONAUTICAS S.A.,
       whose principal office is at:
       Avenida de Aragon, 404
       28022 MADRID
       SPAIN

and

 

  (4) BRITISH AEROSPACE (OPERATIONS) LTD,
       whose principal office is at:
       Warwick House
       P.O. Box 87
       Farnborough Aerospace Centre
       Farnborough
       Hants GU14 6YU
       GREAT BRITAIN.

 

C - Each of the Members of the Seller is (after service on the Seller by “huissier”, of notice to perform) jointly and severally liable with the other Members (but not with the Seller) for all due and unperformed liabilities and obligations of the Seller (subject to any defences which may be available to the Seller or to that Member personally or to all the Members together).

 

D - The Buyer and the Seller have signed a Purchase Agreement dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

E - Now the Buyer and the Seller agree to modify the Aircraft delivery dates as hereafter descriebed

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

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1. SCOPE

The scope of this Amendment No 1 is to amend certain provisions of the Agreement in order to reflect the decision of the Buyer and the Seller to modify the Aircraft delivery dates.

Sub-Clause 9.1 of the Agreement is therefore cancelled and replaced by Sub-Article 9.1 hereof:

QUOTE

 

9.1 Subject to the provisions of Clauses 2, 7, 8, 10 and 18 the Seller shall have the Aircraft ready for delivery at the Aircraft final assembly line in the following months:

 

     Delivery Date    Aircraft Type
- Aircraft No 1    August 1999    A319-100
- Aircraft No 2    November 1999    A319-100
- Aircraft No 3    December 1999    A319-100
- Aircraft No 4    January 2000    A319-100
- Aircraft No 5    November 2000    A320-200
- Aircraft No 6    November 2000    A320-200
- Aircraft No 7    December 2000    A320-200
- Aircraft No 8    December 2000    A320-200
- Aircraft No 9    January 2001    A320-200
- Aircraft No 10    February 2001    A320-200
- Aircraft No 11    July 2001    A320-200
- Aircraft No 12    November 2001    A319-100
- Aircraft No 13    December 2001    A319-100
- Aircraft No 14    December 2001    A320-200
- Aircraft No 15    March 2002    A319-100
- Aircraft No 16    June 2002    A319-100
- Aircraft No 17    July 2002    A320-200
- Aircraft No 18    August 2002    A319-100
- Aircraft No 19    September 2002    A319-100
- Aircraft No 20    November 2002    A319-100
- Aircraft No 21    December 2002    A319-100
- Aircraft No 22    February 2003    A319-100
- Aircraft No 23    February 2003    A320-200
- Aircraft No 24    March 2003    A320-200
- Aircraft No 25    June 2003    A319-100
- Aircraft No 26    July 2003    A319-100
- Aircraft No 27    November 2003    A319-100
- Aircraft No 28    March 2004    A319-100
- Aircraft No 29    May 2004    A319-100
- Aircraft No 30    June 2004    A319-100
- Aircraft No 31    November 2004    A319-100
- Aircraft No 32    December 2004    A319-100

UNQUOTE

 

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2. MISCELLANEOUS

It is understood that all terms and conditions of the A320-200 Purchase Agreement including its Exhibits and Letter Agreements (and in particular the Letter Agreement No 1 [*] shall apply to this Amendment No 1 if not otherwise agreed upon in the Amendment No 1.

In case of any inconsistency with the A320 Family Purchase Agreement, this Amendment No 1 shall prevail, whereas the part not concerned by such inconsistency shall remain in full force.

This Amendment No 1 and its Letter Agreements and appendix together with the Agreement its Exhibits and Letter Agreements contain the entire agreement between the parties and supersede any previous understandings, commitments and/or representations whatsoever oral and written.

This Amendment No 1 executed in two original English copies shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorized representatives.

IN WITNESS WHEREOF, this Amendment No 1 was entered into the day and year first above written.

 

For on behalf of,       For and on behalf of,
ATLANTIC AIRCRAFT HOLDING LIMITED       AIRBUS INDUSTRIE
By:   /s/ At Montenegro       By   /s/ Francis Robillard
Its:   Attorney-in-fact       Its   SALES CONTRACT NEGOTIATOR
Date:   September 9, 1998        

 

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LETTER AGREEMENT NO 1 TO THE AMENDMENT NO 1

ATLANTIC AIRCRAFT HOLDING LIMITED

Bolam House

King and George Streets

NASSAU

BAHAMAS

SUBJECT: [*] AIRCRAFT DELIVERY DATES

Gentlemen,

ATLANTIC AIRCRAFT HOLDING LIMITED (the “Buyer”) and AIRBUS INDUSTRIE (the “Seller”) have entered into Amendment No 1 to the A320 Family Purchase Agreement which covers the manufacture and the sale by the Seller and the purchase by the Buyer of the A320 Family Aircraft.

Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement.

Both parties agree that this Letter Agreement , upon execution thereof, shall constitute an integral, non severable part of said Agreement and shall be governed by all its provisions, as such provisions have been specially amended pursuant to this Letter Agreement.

 

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LETTER AGREEMENT NO 1 TO THE AMENDMENT NO 1

The scope of this Letter Agreement No 1 of the Amendment No 1 is to amend certain provisions of the Letter Agreement No 3 of the A320 Family Purchase Agreement to reflect the decision of the Buyer and the Seller to modify the Aircraft delivery dates according hereafter.

The Clause 4 of the Letter Agreement No 3 of the A320 Family Purchase Agreement is therefore cancelled and replaced by the following Article 1 here of:

QUOTE

 

4. DELIVERY OF [*] AIRCRAFT

In the event the related [*] Aircraft is [*} in accordance with the conditions set forth in Paragraph 1.2 hereabove, the [*] Aircraft will be ready for delivery at the following dates

 

Option Aircraft No    Delivery Date     
- Aircraft No 1    November 2000    A320-200
- Aircraft No 2    January 2001    A320-200
- Aircraft No 3    February 2001    A320-200
- Aircraft No 4    June 2001    A320-200
- Aircraft No 5    June 2001    A320-200
- Aircraft No 6    July 2001    A320-200
- Aircraft No 7    November 2001    A320-200
- Aircraft No 8    December 2001    A320-200
- Aircraft No 9    February 2002    A320-200
- Aircraft No 10    March 2002    A320-200
- Aircraft No 11    May 2002    A320-200
- Aircraft No 12    June 2002    A320-200
- Aircraft No 13    August 2002    A320-200
- Aircraft No 14    March 2003    A319-100
- Aircraft No 15    June 2003    A319-100
- Aircraft No 16    July 2003    A319-100
- Aircraft No 17    December 2003    A319-100
- Aircraft No 18    December 2003    A320-200
- Aircraft No 19    August 2003    A319-100
- Aircraft No 20    February 2004    A319-100
- Aircraft No 21    March 2004    A319-100
- Aircraft No 22    June 2004    A319-100
- Aircraft No 23    July 2004    A319-100
- Aircraft No 24    August 2004    A319-100
- Aircraft No 25    November 2004    A319-100
- Aircraft No 26    March 2005    A319-100
- Aircraft No 27    May 2005    A319-100
- Aircraft No 28    June 2005    A319-100
- Aircraft No 29    June 2005    A319-100
- Aircraft No 30    August 2005    A319-100
- Aircraft No 31    November 2005    A319-100
- Aircraft No 32    December 2005    A319-100

UNQUOTE

 

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LETTER AGREEMENT NO 1 TO THE AMENDMENT NO 1

If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement to the Seller.

 

Agreed and Accepted       Agreed and Accepted
For and on behalf of       For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED       AIRBUS INDUSTRIE
By:   /s/ A. I. Montenegro       By:   /s/ Francis Robillard
Its:   Attorney-in-fact       Its:   [ILLEGIBLE]
Date:   9th September 1998        

 

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LOGO

*[One page has been omitted in accordance with a request for confidential treatment.]

TOTAL P. 01

Exhibit 10.5.2

A320F

Amendment No 2

between

AIRBUS INDUSTRIE

and

ATLANTIC AIRCRAFT

HOLDING LIMITED

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


AMENDMENT No. 2

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS INDUSTRIE

AI/CC-C No 337.0057/99

 

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AMENDMENT NO 2

This Amendment No 2 to the A320 Family Purchase Agreement signed on the 19th day of March 1998 is made on the 28th day of December 1999

BETWEEN

AIRBUS INDUSTRIE, having its principal office at:

1 Rond-Point Maurice Bellonte

31707 BLAGNAC-CEDEX

FRANCE

(hereinafter referred to as the “Seller” of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at:

Bolam House

King and George Streets

NASSAU

BAHAMAS

(hereinafter referred to as the “Buyer”) of the other part.

 

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WHEREAS

 

A - The Seller is a “Groupement d’lntert Economique” created and existing under French Law and established under Ordonnance No 67-821 dated September 23, 1967 of the Republic of FRANCE.

 

B - The Members of the Seller are:

 

  (1) AEROSPATIALE-MATRA S.A.,
       whose principal office is at:
       37, Boulevard Montmorency
       75016 PARIS
       FRANCE,

 

  (2) DAIMLER-CHRYSLER AIRBUS GmbH,
       whose principal office is at:
       Kreetslag 10
       Postfach 95 01 09
       21111-HAMBURG
       FEDERAL REPUBLIC OF GERMANY,

 

  (3) CONSTRUCCIONES AERONAUTICAS S.A.,
       whose principal office is at:
       Avenida de Aragon, 404
       28022 MADRID
       SPAIN

 

       and

 

  (4) BRITISH AEROSPACE (OPERATIONS) LTD,
       whose principal office is at:
       Warwick House
       P.O. Box 87
       Farnborough Aerospace Centre
       Farnborough
       Hants GU14 6YU
       GREAT BRITAIN.

 

C - Each of the Members of the Seller is (after service on the Seller by “huissier”, of notice to perform) jointly and severally liable with the other Members (but not with the Seller) for all due and unperformed liabilities and obligations of the Seller (subject to any defences which may be available to the Seller or to that Member personally or to all the Members together).

 

D - The Buyer and the Seller have signed a Purchase Agreement dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

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E - The Buyer and the Seller have signed a Amendment No 1 dated September 9th, 1998 covering the [*] (2) Firm A319-100 Aircraft (on December 1999 and January 2000).

 

F - The Buyer has notified the Seller on the 16th November, 1999 of its decision to:

 

  (i) [*] Option A320-200 Aircraft [*] and
       To [*] Option A320-200 Aircraft,
       and

 

  (ii) to [*] three (3) Option A320-200 Aircraft with
       [*] Firm A320-200 Aircraft.

 

G - Now the Buyer and the Seller agree to modify the Aircraft delivery dates as hereafter described

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

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1. SCOPE

The scope of this Amendment No 2 is to amend certain provisions of the Agreement in order to reflect the decision of the Buyer and the Seller to modify the Aircraft delivery dates.

Sub-Clause 9.1 of the Agreement is therefore cancelled and replaced by Sub-Article 9.1 hereof:

QUOTE

 

9. Subject to the provisions of Clauses 2, 7, 8, 10 and 18 the Seller shall have the Aircraft ready for delivery at the Aircraft final assembly line in the following months:

UNQUOTE            

 

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Delivery Date

  

Aircraft Type

- Aircraft No 1

   August 1999    A319-100

- Aircraft No 2

   November 1999    A319-100

- Aircraft No 3

   December 1999    A319-100

- Aircraft No 4

   January 2000    A319-100

- Aircraft No 5

   November 2000    A320-200

- Aircraft No 6

   November 2000    A320-200

- Aircraft No 7

   December 2000    A320-200

- Aircraft No 8

   December 2000    A320-200

- Aircraft No 9

   January 2001    A320-200

- Aircraft No 10

   February 2001    A320-200

- Aircraft No 11

   July 2001    A320-200

- Aircraft No 12

   November 2001    A319-100

- Aircraft No 13

   December 2001    A319-100

- Aircraft No 14

   December 2001    A320-200

- Aircraft No 15

   March 2002    A319-100

- Aircraft No 16

   June 2002    A319-100

- Aircraft No 17

   July 2002    A320-200

- Aircraft No 18

   August 2002    A319-100

- Aircraft No 19

   September 2002    A319-100

- Aircraft No 20

   November 2002    A319-100

- Aircraft No 21

   December 2002    A319-100

- Aircraft No 22

   February 2003    A319-100

- Aircraft No 23

   February 2003    A320-200

- Aircraft No 24

   March 2003    A320-200

- Aircraft No 25

   June 2003    A319-100

- Aircraft No 26

   July 2003    A319-100

- Aircraft No 30

   June 2004    A319-100

- Aircraft No 31

   September 2004    A319-100

- Aircraft No 32

   November 2004    A319-100

- Aircraft No 33

   June 2001    A320-200

- Aircraft No 34

   June 2001    A320-200

- Aircraft No 35

   July 2001    A320-200

- Aircraft No 36

   August 2002    A320-200

- Aircraft No 37

   September 2002    A320-200

- Aircraft No 38

   December 2002    A320-200

 

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2. MISCELLANEOUS

It is understood that all terms and conditions of the A320-200 Family Purchase Agreement including its Exhibits and Letter Agreements (and in particular the Letter Agreement No 1 [*]) shall apply to this Amendment No 2 if not otherwise agreed upon in the Amendment No 2.

In case of any inconsistency between this Amendment No 2 and the A320 Family Purchase Agreement and/or Amendment No 1, this Amendment No 2 shall prevail, except as expressly amended by this Amendment No 2, the A320 Family Purchase Agreement as amended to date, remaining in full force and effect with such additional amendment as set forth in Amendment No 2.

This Amendment No 2 and its Letter Agreements and appendix together with the Agreement, its Exibits and Letter Agreements contain the entire agreement between the parties and supersede any previous understandings, commitments and/or representations whatsoever oral and written.

This Amendment No 2 executed in two original English copies shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorized representatives.

IN WITNESS WHEREOF, this Amendment No 2 was entered into the day and year first above written.

 

For on behalf of,       For and on behalf of,
ATLANTIC AIRCRAFT HOLDING LIMITED       AIRBUS INDUSTRIE
   /s/ Ana I. Lacayo de Montenegro          /s/ Francis Robillard
By:    Ana I. Lacayo de Montenegro       By    Francis Robillard
Its    Director-Insurance & Contracts       Its    Regional Director Contracts

 

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LETTER AGREEMENT NO 1 TO THE AMENDMENT NO 2

ATLANTIC AIRCRAFT HOLDING LIMITED

Bolam House

King and George Streets

NASSAU BAHAMAS

SUBJECT: [*] AIRCRAFT DELIVERY DATES

Gentlemen,

ATLANTIC AIRCRAFT HOLDING LIMITED (the “Buyer”) and AIRBUS INDUSTRIE (the “Seller”) have entered into Amendment No 2 to the A320 Family Purchase Agreement which covers the manufacture and the sale by the Seller and the purchase by the Buyer of the A320 Family Aircraft.

Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement.

Both parties agree that this Letter Agreement, upon execution thereof, shall constitute an integral, non severable part of said Agreement and shall be governed by all its provisions, as such provisions have been specially amended pursuant to this Letter Agreement.

 

A320 Family - TAI - AMDT 2-12/99

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LETTER AGREEMENT NO 1 TO THE AMENDMENT NO 2

The scope of this Letter Agreement No 1 of the Amendment No 2 is to amend certain provisions of the Letter Agreement No 3 and Letter Agreement No 1 to Amendment No 1 of the A320 Family Purchase Agreement in order to reflect the decision of the Buyer and the Seller to modify the Aircraft delivery dates according hereafter.

The Clause 4 of the Letter Agreement No 3 and Clause 4 of the Letter Agreement No 1 of the A320 Family Purchase Agreement is therefore cancelled and replaced by the following Article 1hereof:

QUOTE

 

4. DELIVERY OF [*] AIRCRAFT

In the event the related [*] Aircraft is exercised in accordance with the conditions set forth in Paragraph 1.2 hereabove, the [*] Aircraft will be ready for delivery at the following dates

 

[*] Aircraft No    Delivery Date     

- Aircraft No 7

   November 2001    A320-200

- Aircraft No 8

   December 2001    A320-200

- Aircraft No 9

   February 2002    A320-200

- Aircraft No 10

   March 2002    A320-200

- Aircraft No 11

   May 2002    A320-200

- Aircraft No 12

   June 2002    A320-200

- Aircraft No 13

   August 2002    A320-200

- Aircraft No 14

   March 2003    A319-100

- Aircraft No 15

   June 2003    A319-100

- Aircraft No 16

   July 2003    A319-100

- Aircraft No 17

   December 2003    A319-100

- Aircraft No 18

   December 2003    A320-200

- Aircraft No 19

   August 2003    A319-100

- Aircraft No 20

   February 2004    A319-100

- Aircraft No 21

   March 2004    A319-100

- Aircraft No 22

   June 2004    A319-100

- Aircraft No 23

   July 2004    A319-100

- Aircraft No 24

   August 2004    A319-100

- Aircraft No 25

   November 2004    A319-100

- Aircraft No 26

   March 2005    A319-100

- Aircraft No 27

   May 2005    A319-100

- Aircraft No 28

   June 2005    A319-100

- Aircraft No 29

   June 2005    A319-100

- Aircraft No 30

   August 2005    A319-100

- Aircraft No 31

   November 2005    A319-100

- Aircraft No 32

   December 2005    A319-100

- Aircraft No 36 [*]

   March 2006    A320-200

- Aircraft No 37 [*]

   July 2006    A320-200

- Aircraft No 38 [*]

   October 2006    A320-200

- Aircraft No 39 [*]

   November 2003    A319-100

- Aircraft No 40 [*]

   March 2004    A319-100

- Aircraft No 41 [*]

   May 2004   

UNQUOTE

 

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LETTER AGREEMENT NO 1 TO THE AMENDMENT NO 2

If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement to the Seller.

 

Agreed and Accepted       Agreed and Accepted
For and on behalf of       For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED       AIRBUS INDUSTRIE
   /s/ Ana I. Lacayo de Montenegro          /s/ Francis Robillard
By    Ana I. Lacayo de Montenegro       By    Francis Robillard
Its:    Director-Insurance & Contracts       Its    Regional Director Contracts
Date:    28th of December 1999         

 

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Exhibit 10.5.3

AMENDMENT No. 3

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AND

AIRBUS INDUSTRIE

AI/CC-C N° 337.0058/99

 

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AMENDMENT N°3

This Amendment N° 3 to the A320 Family Purchase Agreement signed on the 19th day of March 1998 is made on the 29 th day of December 1999

BETWEEN

AIRBUS INDUSTRIE, having its principal office at:

1 Rond-Point Maurice Bellonte

3 1 7 0 7     B L A G N A C - C E D E X

F R A N C E

(hereinafter referred to as the “Seller”) of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED , having its principal office at:

Bolam House

King and George Streets

N A S S A U

B A H A M A S

(hereinafter referred to as the “Buyer”) of the other part.

 

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WHEREAS

 

A -   The Seller is a “Groupement d’Intérêt Economique” created and existing under French Law and established under Ordonnance N° 67-821 dated September 23, 1967 of the Republic of FRANCE.
B -   The Members of the Seller are:

 

  (1) AEROSPATIALE-MATRA, S.A.

whose principal office is at:

37, Boulevard Montmorency

75016 PARIS

FRANCE,

 

  (2) DAIMLER-CHRYSLER AEROSPACE AIRBUS GmbH,

whose principal office is at:

Kreetslag 10

Postfach 95 01 09

21111 - HAMBURG

FEDERAL REPUBLIC OF GERMANY,

 

  (3) CONSTRUCCIONES AERONAUTICAS S.A.,

whose principal office is at:

Avenida de Aragon, 404

28022 MADRID

SPAIN

and

 

  (4) BRITISH AEROSPACE (OPERATIONS) LTD,

whose principal office is at:

Warwick House

P.O. Box 87

Farnborough Aerospace Centre

Farnborough

Hants GU14 6YU

GREAT BRITAIN.

 

C -   Each of the Members of the Seller is (after service on the Seller by “huissier”, of notice to perform) jointly and severally liable with the other Members (but not with the Seller) for all due and unperformed liabilities and obligations of the Seller (subject to any defences which may be available to the Seller or to that Member personally or to all the Members together).
D -   The Buyer and the Seller have signed a Purchase Agreement dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft N° 1 to N° 32.

 

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E -   The Buyer and the Seller have signed an Amendment N° 1 dated September 9 th , 1998 covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).
F -   The Buyer and the Seller have signed an Amendment N° 2 dated of even date herewith covering the [*] A320-200 Aircraft [*]and the [*].
G -   [*]
H -   Now the Buyer and the Seller agree to modify the Aircraft delivery dates as hereafter described

 

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NOW THEREFORE IT IS AGREED AS FOLLOWS :

 

1. DEFINITIONS

Words defined herein shall have the meaning ascribed to them in the A320 Family Purchase Agreement or, as the case may be, in the Framework Agreement

 

2. SCOPE

The scope of this Amendment N°3 is to refer and to amend certain provisions of the A320 Family Purchase Agreement and its Letter Agreement N°1, in order to reflect the decision of the Buyer and the Seller to [*]

 

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3. APPLICATION OF THE “Basic Adjustment”

Paragraph 1 of the Letter Agreement N [*] is hereby cancelled and replaced by Sub-Article 9.1 hereof for up to a maximum [*] (A319 or A320 irrespectively) to [*] by the Seller to the Buyer commencing in September 2000. The number of Aircraft subject to the provisions of this Amendment No.3 is subject to the provisions of [*].

QUOTE

 

1. [*]

 

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4. [*]

[*]

 

5. ISSUANCE OF THE [*]

The issuance by the Seller of the [*].

The use by the Buyer of [*] is defined in the paragraph [*]

 

6. MISCELLANEOUS

It is understood that all terms and conditions of the A320-200 Family Purchase Agreement including its Exhibits and Letter Agreements (and in particular the Letter Agreement N[*]”) shall apply to this Amendment N°3 if not otherwise agreed upon in the Amendment N°3.

In case of any inconsistency between this Amendment N ° 3 and the A320 Family Purchase Agreement, this Amendment N°3 shall prevail, except as expressly amended by this Amendment N°3, the A320 Family Purchase Agreement as amended to date, remaining in full force and effect with such additional amendment as set forth in Amendment N°3.

This Amendment N°3 and its Letter Agreements and appendix together with the Agreement, its Exhibits and Letter Agreements contain the entire agreement between the parties and supersede any previous understandings, commitments and/or representations whatsoever oral and written.

This Amendment N°3 executed in two original English copies shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorized representatives.

 

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IN WITNESS WHEREOF, this Amendment N°3 was entered into the day and year first above written.

 

For on behalf of,     For and on behalf of,
ATLANTIC AIRCRAFT HOLDING LIMITED     AIRBUS INDUSTRIE
By:          By:     
Its:         Its:  

 

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Exhibit 10.5.4

A320F

Amendment No 4

between

AIRBUS INDUSTRIE

and

ATLANTIC AIRCRAFT

HOLDING LIMITED

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


AMENDMENT No. 4

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS INDUSTRIE

AIICC C NO 337.0005/00

 

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AMENDMENT NO 4

This Amendment No 4 to the A320 Family Purchase Agreement signed on the 19th day of March 1998 is made on the 15th day of February 2000

BETWEEN

AIRBUS INDUSTRIE, having its principal office at:

1 Rond Point Maurice Bellante

31707 BLAGNAC-CEDEX

FRANCE

(hereinafter referred to as the “Seller”) of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at

Bolam House

King and George Streets

NASSA U

BAHAMAS

(hereinafter referred to as the “Buyer”) of the other part.

 

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WHEREAS

 

A - The Seller is a “Groupement d’lnteret Economique” created and existing under French Law and established under Ordonnance No 67-821 dated September 23, 1967 of the Republic of FRANCE.

 

B - The Members of the Seller are:

 

  (1) AEROSPATIALE-MATRA S.A.,
       whose principal office is at:
       37, Boulevard Montmorency
       75016 PARIS
       FRANCE,

 

  (2) DAIMLER-CHRYSLER AIRBUS GmbH,
       whose principal office is at:
       Kreetslag 10
       Postfach 95 01 09
       21111-HAMBURG
       FEDERAL REPUBLIC OF GERMANY,

 

  (3) CONSTRUCCIONES AERONAUTICAS S.A.,
       whose principal office is at:
       Avenida de Aragon, 404
       28022 MADRID
       SPAIN

 

       and

 

  (4) BRITISH AEROSPACE (OPERATIONS) LTD,
       whose principal office is at:
       Warwick House
       P.O. Box 87
       Fornborough Aerospace Centre
       Fornborough
       Hants GU14 6YU
       GREAT BRITAIN.

 

C - Each of the Members of the Seller is (after service on the Seller by “huissier”, of notice to perform) jointly and severally liable with the other Members (but not with the Seller) for all due and unperformed liabilities and obligations of the Seller (subject to any defences which may be available to the Seller or to that Member personally or to all the Members together).

 

D - The Buyer and the Seller have signed a Purchase Agreement dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

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E - The Buyer and the Seller have signed a Amendment No 1 dated September 9th, 1998 covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).

 

F - The Buyer has notified to the Seller on the 16th November, 1999 of its decision to:

 

  (i) [*] A320-200 Aircraft [*] and
       to [*] A320-200 Aircraft,
       and

 

  (ii) to [*] A320-200 Aircraft
       [*] Firm A320-200 Aircraft

 

G - [*] Simultaneously, the Buyer and the Seller have signed an Amendment No 3 dated December 29th, 1999 covering the modification of some provisions of the Letter Agreement No 1 of the Agreement

 

H - The Buyer has notified the Seller on the 23th December, 1999 of its decision to:

 

  (i) [*] A320-200 Aircraft into [*] and to [*] A320-200 Aircraft, and

 

  (ii) to [*] A320-200 Aircraft with

 

  (iii) [*] Firm A319-100 Aircraft.

 

I - Now the Buyer and the Seller agree to modify the Aircraft delivery dates as hereafter described

 

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

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1. SCOPE

The scope of this Amendment No 4 is to amend certain provisions of the Agreement in order to reflect the decision of the Buyer and the Seller to modify the Aircraft delivery dates.

Sub-Clause 9.1 of the Agreement is therefore cancelled and replaced by Sub-Article 9.1 hereof:

QUOTE

 

9.1 Subject to the provisions of Clauses 2, 7, 8, 10 and 18 the Seller shall have the Aircraft ready for delivery at the Aircraft final assembly line in the following months:

 

     Delivery Date    Aircraft Type

- Aircraft No 1

   August 1999    A319-100

- Aircraft No 2

   November 1999    A319-100

- Aircraft No 3

   December 1999    A319-100

- Aircraft No 4

   January 2000    A319-100

- Aircraft No 5

   November 2000    A320-200

- Aircraft No 6

   November 2000    A320-200

- Aircraft No 7

   September 2000    A320-200

- Aircraft No 8

   December 2000    A320-200

- Aircraft No 9

   January 2001    A320-200

- Aircraft No 10

   February 2001    A320-200

- Aircraft No 11

   July 2001    A320-200

- Aircraft No 12

   November 2001    A319-100

- Aircraft No 13

   December 2001    A319-100

- Aircraft No 14

   December 2001    A320-200

- Aircraft No 15

   March 2002    A319-100

- Aircraft No 16

   June 2002    A319-100

- Aircraft No 17

   July 2002    A320-200

- Aircraft No 18

   August 2002    A319-100

- Aircraft No 19

   September 2002    A319-100

- Aircraft No 20

   November 2002    A319 100

- Aircraft No 21

   December 2002    A319-100

- Aircraft No 22

   February 2003    A319-100

- Aircraft No 23

   February 2003    A320-200

- Aircraft No 24

   March 2003    A320-200

- Aircraft No 25

   June 2003    A319-100

- Aircraft No 26

   July 2003    A319-100

- Aircraft No 31

   November 2004    A319-100

- Aircraft No 32

   December 2004    A319-100

- Aircraft No 33

   June 2001    A320-200

- Aircraft No 34

   June 2001    A320-200

- Aircraft No 35

   July 2001    A320-200

- Aircraft No 36

   August 2002    A320-200

- Aircraft No 37

   September 2002    A320-200

- Aircraft No 38

   December 2002    A320-200

- Aircraft No 39

   November 2001    A320 -200

- Aircraft No 40

   December 2001   

UNQUOTE

 

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2. MISCELLANEOUS

It is understood that all terms and conditions of the A320-200 Family Purchase Agreement including its Exhibits and Letter Agreements (and in particular the Letter Agreement No 1 “Incentives”) shall apply to this Amendment No 4 if not otherwise agreed upon in the Amendment No 4.

In case of any inconsistency between this Amendment No 4 and the A320 Family Purchase Agreement and Amendment No 2, this Amendment No 4 shall prevail, except as expressly amended by this Amendment No 4, the A320 Family Purchase Agreement as amended to date, remaining in full force and effect with such additional amendment as set forth in Amendment No 4.

This Amendment No 4 and its Letter Agreements and appendix together with the Agreement, its Exhibits and Letter Agreements contain the entire agreement between the parties and supersede any previous understandings, commitments and/or representations whatsoever oral and written.

This Amendment No 4 executed in two original English copies shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorized representatives.

IN WITNESS WHEREOF, this Amendment No 4 was entered into the day and year first above written.

 

For on behalf of,       For and on behalf of,
ATLANTIC AIRCRAFT HOLDING LIMITED       AIRBUS INDUSTRIE
/s/ Ana I. Lacayo de Montenegro       /s/ Francis Robillard
By    Ana I. Lacayo de Montenegro       By    Francis Robillard
Its    Director-Insurance & Contracts       Its    Regional Director Contracts

 

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LETTER AGREEMENT NO 1 TO THE AMENDMENT NO 4

ATLANTIC AIRCRAFT HOLDING LIMITED

Bolam House

King and George Streets

NASSAU BAHAMAS

SUBJECT: [*] AIRCRAFT DELIVERY DATES

Gentlemen,

ATLANTIC AIRCRAFT HOLDING LIMITED (the “Buyer”) and AIRBUS INDUSTRIE (the “Seller”) have entered into Amendment No 4 to the A320 Family Purchase Agreement which covers the manufacture and the sale by the Seller and the purchase by the Buyer of the A320 Family Aircraft.

Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement.

Both parties agree that this Letter Agreement, upon execution thereof, shall constiute an integral, non severable part of said Agreement and shall be governed by all its provisions, as such provisions have been specially amended pursuant to this Letter Agreement.

 

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LETTER AGREEMENT NO 1 TO THE AMENDMENT NO 4

The scope of this Letter Agreement No 1 of the Amendment No 4 is to amend certain provisions of the Letter Agreement No 4 and Letter Agreement No 1 to the Amendment No 2 of the A320 Family Purchase Agreement in order to reflect the decision of the Buyer and the Seller to modify the Aircraft delivery dates according hereafter.

The Clause 4 of the Letter Agreement No 3 and Clause 4 of the Letter Agreement No 1 of the Amendment No 2 of the A320 Family Purchase Agreement is therefore cancelled and replaced by the following Article 1 here of:

QUOTE

 

4. DELIVERY OF [*] AIRCRAFT

In the event the related [*] Aircraft is [*] in accordance with the conditions set forth in Paragraph 1.2 hereabove, the [*]Aircraft will be ready for delivery at the following dates

 

[*] Aircraft No    Delivery Date     

- Aircraft No 9

   February 2002    A320-200

- Aircraft No 10

   March 2002    A320-200

- Aircraft No 11

   May 2002    A320-200

- Aircraft No 12

   June 2002    A320-200

- Aircraft No 13

   August 2002    A320-200

- Aircraft No 14

   March 2003    A319-100

- Aircraft No 15

   June 2003    A319-100

- Aircraft No 16

   July 2003    A319-100

- Aircraft No 17

   December 2003    A319-100

- Aircraft No 18

   December 2003    A320-200

- Aircraft No 19

   August 2003    A319-100

- Aircraft No 20

   February 2004    A319-100

- Aircraft No 21

   March 2004    A319-100

- Aircraft No 22

   June 2004    A319-100

- Aircraft No 23

   July 2004    A319-100

- Aircraft No 24

   August 2004    A319-100

- Aircraft No 25

   November 2004    A319-100

- Aircraft No 26

   March 2005    A319-100

- Aircraft No 27

   May 2005    A319-100

- Aircraft No 28

   June 2005    A319-100

- Aircraft No 29

   June 2005    A319-100

- Aircraft No 30

   August 2005    A319-100

- Aircraft No 31

   November 2005    A319-100

- Aircraft No 32

   December 2005    A319-100

- Aircraft No 36 [*]

   March 2006    A320-200

- Aircraft No 37 [*]

   July. 2006    A320-200

- Aircraft No 38 [*]

   October 2006    A320-200

- Aircraft No 39 [*]

   November 2003    A319-100

- Aircraft No 40 [*]

   March 2004    A319-100

- Aircraft No 41 [*]

   May 2004    A319-100

- Aircraft No 42 [*]

   December 2006    A320-200

- Aircraft No 43 [*]

   June 2004    A319-100

UNQUOTE

 

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LETTER AGREEMENT NO 1 TO THE AMENDMENT NO 4

If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement to the Seller.

 

Agreed and Accepted       Agreed and Accepted
For and on behalf of       For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED       AIRBUS INDUSTRIE
/s/ Ana I. Lacayo de Montenegro       /s/ Francis Robillard
By:    Ana I. Lacayo de Montenegro       By    Francis Robillard
Its:    Director-Insurance & Contracts       Its    Regional Director Contracts
Date:    15th of February 2000         

 

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LA1 - 3/3

Exhibit 10.5.5

A320F

Amendment No 5

between

AIRBUS INDUSTRIE

and

ATLANTIC AIRCRAFT

HOLDING LIMITED

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


AMENDMENT No. 5

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AND

AIRBUS INDUSTRIE

AI/CC-C NO 337.0002/01

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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AMENDMENT NO 5

This Amendment No 5 to the A320 Family Purchase Agreement signed on the 19th day of March 1998 is made on the 6th day of April 2001

BETWEEN

AIRBUS INDUSTRIE, having its principal office at:

1 Rond-Point Maurice Bellante

31707 BLAGNAC-CEDEX

FRANCE

(hereinafter referred to as the “Seller”) of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at:

c/o the Winterbothan Trust Co Ltd.

7 Bolam House

8 King and George Streets

NASSAU

BAHAMAS

(hereinafter referred to as the “Buyer”) of the other part.

 

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WHEREAS

 

A - The Seller is a “Groupement d’lnteret Economique” created and existing under French Law and established under Ordonnance No 67-821 dated September 23, 1967 of the Republic of FRANCE.

 

B - The Members of the Seller are:

 

  (1) EADS Airbus S.A.,
       whose principal office is at:
       37, Boulevard Montmorency
       75016 PARIS
       FRANCE,

 

  (2) EADS Airbus GmbH,
       whose principal office is at:
       Kreetslag 10
       Postfach 95 01 09
       21111-HAMBURG
       FEDERAL REPUBLIC OF GERMANY,

 

  (3) CONSTRUCCIONES AERONAUT ICAS S.A.,
       whose principal office is at:
       Avenida deAragon, 404
       28022 MADRID
       SPAIN

 

       and

 

  (4) AIRBUS UK LTO,
       whose principal office is at:
       Warwick House
       P.O. Box 87
       Farnborough Aerospace Centre
       Farnborough
       Hants GU14 6YU
       GREAT BRITAIN.

 

C - Each of the Members of the Seller is (after service on the Seller by “huissier”, of notice to perform) jointly and severally liable with the other Members (but not with the Seller) for all due and unperformed liabilities and obligations of the Seller (subject to any defences which may be available to the Seller or to that Member personally or to all the Members together).

 

D - The Buyer and the Seller have signed an A320 Family Purchase Agreement (the “A320 Family Purchase Agreement” or “Purchase Agreement”) dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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E - The Buyer and the Seller have signed Amendment No 1 to the Purchase Agreement dated September 9th, 1998 covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).

 

F - The Buyer and the Seller have signed [ILLEGIBLE] Amendment No 2 to the Purchase Agreement dated 28th December, 1999 covering:

 

  (i) the [*] of three (3) [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and

 

  (ii) the A320-200 Aircraft with [*]

 

  (iii) Firm A320-200 Aircraft.

 

G - [*] Simultaneously, the Buyer and the Seller have signed an Amendment No 3 to the Purchase Agreement dated December 29th, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Agreement.

The Buyer and the Seller have signed an Amendment No 4 to the Purchase Agreement dated 15th February, 2000 covering :

 

  (i) the [*] A320-200 Aircraft into [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A319-100 Aircraft.

 

H - The Buyer has notified the Seller on 3rd April, 2000 of its decision to:

 

  (i) the A320-200 Aircraft into firm order ([*] becoming Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft ([*] Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31 [*]).

 

I - In addition, the Buyer has notified the Seller on 23rd of July, 2000 of its decision to:

 

  (i) the [*] A320-200 Aircraft into

[*][*] No 11 Firm No 43) and the

[*] A320-200 Aircraft (No 46), and

 

  (ii) the [*] A320-200 Aircraft

([*] Firm No 44) with [*] Firm A319-100

Aircraft (Firm No 32 [*]).

 

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J - Now the Buyer and the Seller have agreed to enter In to the Amendment No 5 to the Purchase Agreement and, pursuant to modify certain Aircraft delivery dates as hereafter described

NOWTHEREFORE IT IS AGREED AS FOLLOWS:

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

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1. SCOPE

The scope of this Amendment No 5 to the Purchase Agreement is to amend certain provisions of the Purchase Agreement in order to reflect the decision of the Buyer and the Seller to modify certain Aircraft delivery dates.

Sub-Clause 9.1of the Agreement is hereby deleted its and replaced by the following:

 

9.1 Subject to the provisions of Clauses 2, 7, 8, 10 and 18 the Seller shalf have the Aircraft ready for delivery at the Aircraft final ·assembly line in the following months:

 

     Delivery Date    Aircraft Type

- Aircraft No 1

   August 1999    A319-100

- Aircraft No 2

   November 1999    A319-100

- Aircraft No 3

   December 1999    A319-100

- Aircraft No 4

   January 2000    A319-100

- Aircraft No 5

   November 2000    A320-200

- Aircraft No 6

   November 2000    A320-200

- Aircraft No 7

   September 2000    A320-200

- Aircraft No 8

   December 2000    A320-200

- Aircraft No 9

   January 2001    A320-200

- Aircraft No 10

   February 2001    A320-200

- Aircraft No 11

   July 2001    A320-200

- Aircraft No 12

   November 2001    A319-100

- Aircraft No 13

   December 2001    A319-100

- Aircraft No 14

   December 2001    A320-200

- Aircraft No 15

   March 2002    A319-100

- Aircraft No 16

   June 2002    A319-100

- Aircraft No 17

   July 2002    A320-200

- Aircraft No 18

   August 2002    A319-100

- Aircraft No 19

   September 2002    A319-100

- Aircraft No 20

   November 2002    A319-100

- Aircraft No 21

   December 2002    A319-100

- Aircraft No 22

   February 2003    A319-100

- Aircraft No 23

   February 2003    A320-200

- Aircraft No 24

   March 2003    A320-200

- Aircraft No 25

   June 2003    A319-100

- Aircraft No 26

   July 2003    A319-100

- Aircraft No 33

   June 2001    A320-200

- Aircraft No 34

   June 2001    A320-200

- Aircraft No 35

   July 2001    A320-200

- Aircraft No 36

   August 2002    A320-200

- Aircraft No 37

   September 2002    A320-200

- Aircraft No 38

   December 2002    A320-200

- Aircraft No 39

   November 2001    A320-200

- Aircraft No 40

   December 2001    A320-200

- Aircraft No 41

   February 2002    A320-200

- Aircraft No 42

   March 2002    A320-200

- Aircraft No 43

   May 2002    A320-200

- Aircraft No 44

   June 2002    A320-200

 

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2 . MISCELLANEOUS

It is hereby agreed that all terms and conditions of the A320-200 Family Purchase Agreement including its Exhibits and Letter. Agreements (and in particular the Letter Agreement No 1 [*]) shall apply to this Amendment Nos except as excluded in this Amendment No S.

 

8 In case of any inconsistency between this Amendment No S and the A320

 

9 Family Purchase Agreement , this Amendment No S shall prevail. Except as expressly amended by this Amendment No S, the A320 Family Purchase Agreement as amended to date, remains in full force and effect as amended by this Amendment No S.

This Amendment No S and its Letter Agreement No 1 and appendix together with the Purchase Agreement, its Exhibits and Letter Agreements contain the entire agreement between the parties and supersede any previous understandings, commitments and/or representations whatsoever oral and written.

This Amendment No S is executed in two original English and shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorized representatives.

IN WITNESS WHEREOF, this Amendment entered into the day and year first above written.

 

For on behalf of,       For and on behalf of,
ATLANTIC AIRCRAFT HOLDING LIMITED       AIRBUS INDUSTRIE
/s/ Ana I. Lacayo de Montenegro       /s/ Francis Robillard
By    Ana I. Lacayo de Montenegro       By    Francis Robillard
Its    Attorney-in-fact       Its    Regional Director Contracts

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 5-02/01

7/7


LETTER AGREEMENT NO 1 TO AMENDMENT NO 5 [*]

ATLANTIC AIRCRAFT HOLDING LIMITED

c/o The Winterbotham Trust Company Limited

Bolam House

King and George Streets

NASSAU

BAHAMAS

SUBJECT: [*] AIRCRAFT DELIVERY DATES

Gentlemen,

ATLANTIC AIRCRAFT HOLDING LIMITED (the “Buyer”) and AIRBUS INDUSTRIE (the “Seller”) have entered into the A320 Family Purchase Agreement which covers the manufacture and the sale by the Seller and the purchase by the Buyer of the A320 Family Aircraft.

Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement.

Both parties agree that this Letter Agreement No 1 to the Amendment No 5, upon execution thereof, shall constitute an integral, non severable part of said Purchase Agreement and shall be governed by all its provisions, as such provisions have been specially amended pursuant to this Letter Agreement.

 

A320 Family - TAI - AMDT 5-02/01

LA1 - 1/3


LETTER AGREEMENT NO 1 TO AMENDMENT NO 5

The scope of this Letter Agreement No 1 to Amendment No 5 is to amend certain provisions of Letter Agreement No 1 to Amendment No 4 of the A320 Family Purchase Agreement in order to reflect the decision of the Buyer and the Seller to modify certain [*] Aircraft delivery             agreed herein.

Clause 4 of Letter Agreement No 1 to Amendment No 4 of the A320 Family Purchase Agreement is hereby cancelled in its and replaced by the following:

 

4. DELIVERY OF [*] AIRCRAFT

In the event the related [*] Aircraft is exercised in accordance with the conditions set forth in Paragraph 1.2 hereabove, the [*] Aircraft will be ready for delivery at the following dates

 

[*] Aircraft No    Delivery Date    Type
- Aircraft No 13    August 2002    A320-200
- Aircraft No 14    March 2003    A319-100
- Aircraft No 15    June 2003    A319-100
- Aircraft No 16    July 2003    A319-100
- Aircraft No 17    December 2003    A319-100
- Aircraft No 18    December 2003    A320-200
- Aircraft No 19    August 2003    A319-100
- Aircraft No 20    February 2004    A319-100
- Aircraft No 21    March 2004    A319-100
- Aircraft No 22    June 2004    A319-100
- Aircraft No 23    July 2004    A319-100
- Aircraft No 24    August 2004    A319-100
- Aircraft No 25    November 2004    A319-100
- Aircraft No 26    March 2005    A319-100
- Aircraft No 27    May 2005    A319-100
- Aircraft No 28    June 2005    A319-100
- Aircraft No 29    June 2005    A319-100
- Aircraft No 30    August 2005    A319-100
- Aircraft No 31    November 2005    A319-100
- Aircraft No 32    December 2005    A319-100
- Aircraft No 36 [*]    March 2006    A320-200
- Aircraft No 37 [*]    July 2006    A320-200
- Aircraft No 38 [*]    October 2006    A320-200
- Aircraft No 39 [*]    November 2003    A319-100
- Aircraft No 40 [*]    March 2004    A319-100
- Aircraft No 41 [*]    May 2004    A319-100
- Aircraft No 42 [*]    December 2006    A320-200
- Aircraft No 43 [*]    June 2004    A319-100
- Aircraft No 44    January 2007    A320-200
- Aircraft No 45    November 2004    A319-100
- Aircraft No 46    March 2007    A320-200
- Aircraft No 47    December 2004    A319-100

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 5-02/01

LA1 - 2/3


LETTER A GREEMENT NO 1 TO AMENDMENT NO 5

If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement No 1 to the Amendment No 5 to the Seller.

 

Agreed and Accepted          Agreed and Accepted
For and on behalf of          For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED          AIRBUS INDUSTRIE
/s/ Ana I. Lacayo de Montenegro          /s/ Francis Robillard
By    Ana I. Lacayo de Montenegro       By    Francis Robillard
Its:    Attorney-in-fact       Its    Regional Director Contracts
Date:    [ILLEGIBLE] 2001         

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 5-02/01

LA1 - 3/3

Exhibit 10.5.6

A320F

Amendment No 6

between

AIRBUS INDUSTRIE

and

ATLANTIC AIRCRAFT

HOLDING LIMITED

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


AMENDMENT No. 6

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AND

AIRBUS INDUSTRIE

AI/CC-C No 337.0003/01

 

A320 Family - TAI - AMDT 6 - 02/01

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


AMENDMENT No 6

This Amendment No 6 to the A320 Family Purchase Agreement signed on the 19th day of March 1998 is made on the     th day of-February 2001

BETWEEN

AIRBUS INDUSTRIE, having its principal office at :

1 Rand-Point Maurice Bellante

31707 BLAG NAC- CEDEX

FRANCE

(hereinafter referred to as the “Seller’’) of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at:

c/o the Winterbothan Trust Company Limited

Bolam House

King and George Streets

NASSAU

BAHAMAS

(hereinafter referred to as the “Buyer’’) of the other part.

 

A320 Family - TAI - AMDT 6 - 02/01

 

2/6


WHEREAS

 

A - The Seller is a “Groupement d’lnteret Economique” created and existing under French Law and established under Ordonnance No 67-821 dated September 23, 1967 of the Republic of FRANCE.

 

B - The Members of the Seller are:

 

  (1) EADS Airbus S.A.

whose principal office is at:

37, Boulevard Montmorency

75016 PARIS

FRANCE,

 

  (2) EADS Airbus GmbH,

whose principal office is at:

Kreetslag 10

Postfach 95 01 09

21111 - HAMBURG

FEDERAL REPUBLIC OF GERMANY,

 

  (3) CONSTRUCCIONES AERONAUTICAS S.A.,

whose principal office is at:

Avenida de Aragon. 404

28022 MADRID

SPAIN

and

 

  (4) AIRBUS UK LTD,

whose principal office is at:

Warwick House

P.O. Box 87

Farnborough Aerospace Centre

Farnborough Hants GU14 6YU

GREAT BRITAIN.

 

C- Each of the Members of the Seller is (after seNice on the Seller by “huissier’’, of notice to perform) jointly and severally liable with the other Members (but not with the Seller) for all due and unperformed liabilities and obligations of the Seller (subject to any defences which may be available to the Seller or to that Member personally or to all the Members together).

 

D-

The Buyer and the Seller have signed an A320 Family Purchase Agreement (the “A320 Family Purchase Agreement’ or “Purchase Agreement”) dated March 19th 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

A320 Family - TAI - AMDT 6 - 02/01

 

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E - The Buyer and the Seller have signed am Amendment No 1 to the Purchase Agreement dated September        , 1998 covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).

 

F -

The Buyer and the Seller have signed Amendment No 2 to the Purchase Agreement dated 28 111  December, 1999 covering :

 

  (i) The conversion of three (3) Option A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and.

 

  (ii) the [*] Option A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

G -

[*] . Simultaneously, the Buyer and the Seller have signed an Amendment No 3 to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

H - The Buyer and the Seller have signed a Amendment No 4 to the Purchase

Agreement dated 15th February, 2000 covering:

 

  (i) the [*] A320-200 Aircraft into [*] and its [*] A320-200 Aircraft , and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A319-100 Aircraft .

 

I -

The Buyer and the Seller have signed a Amendment No 5 to the Purchase Agreement dated     February, 2001 covering :

 

  (i) the [*] A320-200 Aircraft into [*] Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft ([*] Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31[*]).

 

  (iii) The [*] A320-200 Aircraft [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft ([*] Firm No 44) [*] Firm A319-100 Aircraft (Firm No 32[*]).

 

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J - The Buyer and the Seller have agreed to enter into this Amendment No 6 to the Purchase Agreement, pursuant to a rescheduling of certain delivery dates related to the firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) [*] firm Aircraft No 45 2001), No 46 (October 2001) and No 47 (October 2001) and the firm Aircraft No 18 [*] an A320-200 Aircraft [*]

 

K- Now the Buyer and the Seller have agreed to enter into this Amendment No 6 to the Purchase Agreement and, pursuant hereto, to modify [*] and certain delivery dates as hereafter described:

NOW THEREFORE IS AGREED AS FOLLOWS:

 

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1. SCOPE

The scope of this Amendment No 6 to the Purchase Agreement is to amend certain provisions of the Purchase Agreement in order to reflect the decision of the Buyer and the Seller to modify certain Aircraft delivery dates and to [*] firm Aircraft No 18.

Sub-Clause 9.1 of the Agreement is hereby deleted in its entirely and replaced by the following :

 

9.1. Subject to the provisions of Clauses 2, 7, 8, 10 and 18 the Seller shall have the Aircraft ready for delivery at the Aircraft final assembly line in the following months:

 

     Delivery Date      Aircraft Type  

-Aircraft No 1

     August 1999         A319-100   

-Aircraft No 2

     November 1999         A319-100   

-Aircraft No 3

     December 1999         A319-100   

-Aircraft No 4

     January 2000         A319-100   

-Aircraft No 5

     November 2000         A320-200   

-Aircraft No 6

     November 2000         A320-200   

-Aircraft No 7

     September 2000         A320-200   

-Aircraft No 8

     December 2000         A320-200   

-Aircraft No 9

     January 2001         A320-200   

-Aircraft No 10

     February 2001         A320-200   

-Aircraft No 11

     July 2001         A320-200   

-Aircraft No 12

     November 2001         A319-100   

-Aircraft No 15

     March 2002         A319-100   

-Aircraft No 16

     June 2002         A319-100   

-Aircraft No 17

     July 2002         A320-200   

-Aircraft No 18

     August 2002         A320-200   

-Aircraft No 19

     September 2002         A319-100   

-Aircraft No 20

     November 2002         A319-100   

-Aircraft No 21

     December 2002         A319-100   

-Aircraft No 22

     February 2003         A319-100   

-Aircraft No 23

     February 2003         A320-200   

-Aircraft No 24

     March 2003         A320-200   

-Aircraft No 25

     June 2003         A319-100   

-Aircraft No 26

     July 2003         A319-100   

-Aircraft No 33

     June 2001         A320-200   

-Aircraft No 34

     June 2001         A320-200   

-Aircraft No 35

     July 2001         A320-200   

-Aircraft No 36

     August 2002         A320-200   

-Aircraft No 37

     September 2002         A320-200   

-Aircraft No 38

     December 2002         A320-200   

-Aircraft No 39

     November 2001         A320-200   

-Aircraft No 41

     February 2002         A320-200   

-Aircraft No 42

     March 2002         A320-200   

-Aircraft No 43

     May 2002         A320-200   

-Aircraft No 44

     June 2002         A320-200   

-Aircraft No 45

     September 2001         A319-100   

-Aircraft No 46

     October 2001         A320-200   

-Aircraft No 47

     October 2001         A320-200   

 

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2. MISCELLANEOUS

It is agreed that all terms and conditions of the A320-200 Family Purchase Agreement including its Exhibits and Letter Agreements (and in particular the Letter Agreement No 1[*] shall apply to this Amendment No 4 expressly excluded in this Amendment No 6.

In case of any inconsistency between this Amendment No 6 and the A320 Family Purchase Agreement, this Amendment No 6 shall prevail. Except as expressly amended by this Amendment No 6, the A320 Family Purchase Agreement as amended to date, remains in full force and effect as amended by this Amendment No 6.

This Amendment No 6 and its Letter Agreement No 1 and appendix together with the Purchase Agreement, its exhibits and Letter Agreements contain the entire agreement between the parties and supersede any previous understandings, commitments and/or representations whatsoever oral and written.

This Amendment No 6 is executed in two original English and shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorized representatives.

IN WHITNESS WHEREOF, this Amendment No 6 to the Purchase Agreement is entered into the day and year first above written.

 

For on behalf of,    For and on behalf of,
ATLANTIC AIRCRAFT HOLDING LIMITED          AIRBUS INDUSTRIE
   /s/ Ana I. Lacayo de Montenegro                          /s/ Francis Robillard                                    
By    Ana I. Lacayo de Montenegro       By    Francis Robillard
Its    Attorney-in-Fact       Its    Regional Director Contracts

 

A320 Family - TAI - AMDT 6 - 02/01

 

7/7


LETTER AGREEMENT No 1 TO AMENDMENT No 6 [*]

ATLANTIC AIRCRAFT HOLDING LIMITED

c/o The Winterbotham Trust Company Limited

Bolam House

King and George Streets

NASSAU

BAHAMAS

SUBJECT: [*] AIRCRAFT DELIVERY DATES

Gentlemen,

ATLANTIC AIRCRAFT HOLDING LIMITED (the “Buyer”) and AIRBUS INDUSTRIE (the “Seller”) have entered to the A320 Family Purchase Agreement which covers the manufacture and the sale by the Seller and the purchase by the Buyer of the A320 Family Aircraft.

Capitalized terms used herein and not otherwise defined in this Letter Agreement shall have the meanings assigned thereto in the Agreement.

Both parties agree that this Letter Agreement No 1 to the Amendment No 6, upon execution thereof, shall constitute an integral. non severable part of said Purchase Agreement and shall be governed by all its provisions, as such provisions have been specially amended pursuant to this Letter Agreement.

 

A320 Family - TAI - AMDT 6 - 02/01

 

LA1 - 1/3


LETTER AGREEMENT No 1 TO AMENDMENT No 6

The scope of this Letter Agreement No 1 to Amendment No 6 is to amend certain provisions of Letter Agreement No 1 to Amendment No S of the A320 Family Purchase Agreement in order to reflect the decision of the Buyer and the Seller to modify the [*] Aircraft delivery date agreed herein.

Clause 4 of the Letter Agreement No 1 to Amendment No S of the A320 Family Purchase Agreement is hereby deleted in its and replaced by the following:

 

4. DELIVERY OF [*] AIRCRAFT

In the event the related [*] Aircraft is exercised in accordance with the conditions set forth in Paragraph 1.2 here above, the [*] Aircraft will be ready for delivery at the following dates

 

[*] Aircraft No    Delivery Date         

- Aircraft No 14

   March      2003         A319-100   

- Aircraft No 15

   June      2003         A3 19-100   

- Aircraft No 16

   July      2003         A319-100   

- Aircraft No 17

   December      2003         A319-100   

- Aircraft No 18

   December      2003         A320-200   

- Aircraft No 19

   August      2003         A319-100   

- Aircraft No 20

   February      2004         A319-100   

- Aircraft No 21

   March      2004         A319-100   

- Aircraft No 22

   June      2004         A319-100   

- Aircraft No 23

   July      2004         A319-100   

- Aircraft No 24

   August      2004         A319-100   

- Aircraft No 25

   November      2004         A319-100   

- Aircraft No 26

   March      200S         A319-100   

- Aircraft No 27

   May      200S         A319-100   

- Aircraft No 28

   June      200S         A319-100   

- Aircraft No 29

   June      2005         A319-100   

- Aircraft No 30

   August      2005         A319-100   

- Aircraft No 31

   November      2005         A319-100   

- Aircraft No 32

   December      2005         A319-100   

- Aircraft No 36 [*]

   March      2006         A320-200   

- Aircraft No 37 [*]

   July      2006         A320-200   

- Aircraft No 38 [*]

   October      2006         A320-200   

- Aircraft No 39 [*]

   November      2003         A319-100   

- Aircraft No 40 [*]

   March      2004         A319-100   

- Aircraft No 41 [*]

   May      2004         A319-100   

- Aircraft No 42 [*]

   December      2006         A320-200   

- Aircraft No 43 [*]

   June      2004         A319-100   

- Aircraft No 44 [*]

   January      2007         A320-200   

- Aircraft No 45 [*]

   November      2004         A319-100   

- Aircraft No 46 [*]

   March      2007         A320-200   

- Aircraft No 47 [*]

   December      2004         A319-100   

- Aircraft No 48 [*] 13 rescheduled

   May      2004         A32D-200   

 

A320 Family - TAI - AMDT 6 - 02/01

 

LA1 - 2/3


LETTER AGREEMENT No 1 TO AMENDMENT No 6

If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return to the Seller one (1) original of this Letter Agreement No 1 to Amendment No 6.

 

Agreed and Accepted    Agreed and Accepted
For and on behalf of    For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED    AIRBUS INDUSTRIE

 

   /s/ Ana I. Lacayo de Montenegro                               /s/ Francis Robillard                                
By    Ana I. Lacayo de Montenegro    By    Francis Robillard
Its:    Attorney-in-Fact    Its    Regional Director Contracts

Date:

           February 2001      

 

A320 Family - TAI - AMDT 6 - 02/01

 

LA1 - 3/3

Exhibit 10.5.7

A320F

Amendment No. 7

between

AIRBUS INDUSTRIE

and

ATLANTIC AIRCRAFT

HOLDING LIMITED

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


AMENDMENT No. 7

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS INDUSTRIE

 

AI/CC-C No 337.0049/01

A320 Family - TAI - AMDT 7 - 09/01

 

1/10


AMENDMENT No. 1

This Amendment No. 7 to the A320 Family Purchase Agreement (the “Purchase Agreement”) signed on the 19th day of March 1998 is made on the 06th day of September 2001

BETWEEN

AIRBUS INDUSTRIE GIE, having its principal office at:

1 Rand-Point Maurice Bellante

31707          B L AGNAC- CEDEX

FRAN CE

(hereinafter referred to as the Seller”) of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at:

c/o the Winterbothan Trust Company Limited

Bolam House

King and George Streets

NASSAU BAHAMA

S

(hereinafter referred to as the “Buyer”) of the other part.

 

A320 Family - TAI - AMDT 7 - 09/01

 

2/10


WHEREAS

 

A - The Seller is a “Groupement d’Interet Economique” created and existing under French Law and established under Ordonnance No 67-821 dated September 23, 1967 of the Republic of FRANCE.

 

B - The Members of the Seller are:

 

  (1) EADS Airbus S.A.,

whose principal office is at:

Bootevard-Muntmorency

75016 PARIS

FRANCE,

 

  (2) EADS Airbus GmbH,

whose principal office is at:

Kreetslag 10

Postfach 95 01 09

21111 - HAMBURG

FEDERAL REPUBLIC OF GERMANY,

 

  (3) CONSTRUCCIONES AERONAUTICAS S.A.,

whose principal office is at:

Avenida de Aragon, 404

28022 MADRID

SPAIN

and

 

  (4) AIRBUS UK LTO,

whose principal office is at:

Warwick House

P.O. Box 87

Famborough Aerospace Centre

Famborough

Hants GU14 6YU

GREAT BRITAIN.

 

C - Each of the Members of the Seller is (after service on the Seller by “huissier”, of notice to perform) jointly and severally liable with the other Members (but not with the Seller) for all due and unperformed liabilities and obligations of the Seller (subject to any defences which may be available to the Seller or to that Member personally or to all the Members together).

 

D - The Buyer and the Seller have entered into A320 Family Purchase Agreement (the “A320 Family Purchase Agreement” or “Purchase Agreement” ) dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No. 1 to No. 32.

 

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E - The Buyer and the Seller have entered into Amendment No. 1 to the Purchase Agreement dated September 9th 1998 covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).

 

F -

The Buyer and the Seller have entered into Amendment No. 2 to the Purchase Agreement dated 28 th  December, 1999 covering:

 

  (i) The [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft

 

  (iii) [*] Firm A320-200 Aircraft.

 

G - [*] Simultaneously, the Buyer and the Seller have signed an Amendment No. 3 to the Purchase Agreement dated December 29th, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

H - The Buyer and the Seller have entered into Amendment No. 4 to the Purchase Agreement dated 15th February, 2000 covering:

 

  (i) the [*] A320-200 Aircraft into [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft

 

  (iii) [*] Firm A319-100 Aircraft.

 

I - The Buyer and the Seller have entered into Amendment No 5 to the Purchase Agreement dated 06th of April, 2001 covering:

 

  (i) the [*] A320-200 Aircraft into [*] Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*] Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31[*]).

 

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  (iii) The [*] A320-200 Aircraft into [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft [*] (Firm No 44) with [*] Finn A319-100 Aircraft (Firm No 32 [*]).

 

J - The Buyer and the Seller have entered into an Amendment No. 6 to the Purchase Agreement dated 09th of April 2001, covering the rescheduling of certain delivery dates related to the firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No. 45 (September 2001), No. 46 (October 2001) and No. 47 (October 2001) and additionally the firm Aircraft No. 18 [*] an A320-200 Aircraft [*]

K -

[*] firm

NOW THEREFORE IT IS AGREED AS FOLLOWS :

 

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1. SCOPE

*[One page has been omitted in accordance with a request for confidential treatment.]

 

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3 DELIVERY DATES

 

3.1 The Seller shall deliver the next [*] according to the contractual delivery dates as set forth in attached Appendix A.

 

3.2 The delivery dates of each of the [*], as set forth in attached Appendix B, [*]

 

A320 Family - TAI - AMDT 7 - 09/01

 

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5 THE SELLER [*]

Should the Buyer request to the Seller the [*] as per Letter Agreement No. 2 of the [*]

 

6 [*] AIRCRAFT

Upon execution of this Amendment No. 7 and according to the Clause 2 of the Letter agreement No. 6 of the Purchase Agreement, [*]

 

7 MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement including its Exhibits and Letter Agreements (and in particular the Letter Agreement No. 1 “[*]”) shall apply to this Amendment No. 7 except as expressly excluded in this Amendment No. 7.

In case of any inconsistency between this Amendment No. 7 and the A320 Family Purchase Agreement, this Amendment No. 7 shall prevail. Except as expressly amended by this Amendment No. 7, the Purchase Agreement as amended to date, remains in full force and effect as amended by this Amendment No. 7.

This Amendment No. 7 and appendix together with the Purchase Agreement, its Exhibits and Letter Agreements contain the entire agreement between the parties and supersede any previous understandings, commitments and/or representations whatsoever oral and written.

This Amendment No. ? is executed in two original English counterparts and shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorized representatives

 

A320 Family - TAI - AMDT 7 - 09/01

 

8/10


For and on behalf of   For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED   AIRBUS INDUSTRIE
  /s/ Joaquin Palomo     /s/ Francis Robillard
By:   Joaquin Palomo   By:   Francis Robillard
Its:   Attorney-in-Fact   Its:   Contract Division - Regional Director

 

A320 Family - TAI - AMDT 7 - 09/01

 

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APPENDIX A

 

- Aircraft N 45

   September    2001    A319-100

- Aircraft N 12

   November    2001    A3 19-100

- Aircraft N 39

   November    2001    A320-200

- Aircraft N 41

   February    2002    A320-200

- Aircraft N 15

   March    2002    A319-100

- Aircraft N 42

   March    2002    A320-200

- Aircraft N 43

   May    2002    A320-200

- Aircraft N 16

   June    2002   

- Aircraft N 44

   June    2002    A320-200

- Aircraft N

   July    2002    A320-200

- Aircraft N 18

   August    2002    A320-200

- Aircraft N 36

   August    2002    A320-200

- Aircraft N 19

      2002   

- Aircraft N 37

   September    2002    A320-200

- Aircraft N 20

      2002   

APPENDIX B

 

- Aircraft N 21

      2002   

- Aircraft N 38

   December    2002    A320-200

- Aircraft N 22

   February    2003    A319-100

- Aircraft N 23

   February    2003    A320-200

- Aircraft N 24

   March    2003    A320-200

- Aircraft N 25

   June    2003    A319-100

- Aircraft 26

   July    2003    A320-200

- Aircraft N 47

         A320-200

 

A320 Family - TAI - AMDT 7 - 09/01

 

10/10

Exhibit 10.5.8

A320F

Amendment No. 8

between

AIRBUS INDUSTRIE

and

ATLANTIC AIRCRAFT HOLDING LIMITED

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


AMENDMENT No. 8

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS G IE (formerly known as AIRBUS INOLJSTRIE G IE)

AI/CC-C No. 337.0091X/02

 

• A320 Family-TAI-AMDT 8-07/02

 

1/11


AMENDMENT No. 8

This Amendment No. 8 to the A320 Family Purchase Agreement (the “Purchase Agreement”) signed on the 19th day of March 1998 is made as of the 1 day of     2002

BETWEEN

AIRBUS GIE (formerly known as Airbus Industria GIE), havings principal office at:

1 Rond-Point Maurice Bellonte

31707 BLAGNAC • CE DEX

FRANCE

(hereinafter referred to as the “Seller”) of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at:

c/o the Winterbothan Trust Company Limited

Bolam House

King and George Streets

NASSAU

BA HAMAS

(hereinafter referred to as the “Buyer’’) of the other part.

WHEREAS

 

A - The Buyer and the Seller have entered into A320 Family Purchase Agreement (the “A320 Family Purchase Agreement” or “Purchase Agreement”) dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No. 1 to No. 32.

 

B - The Buyer and the Seller have entered into Amendment No. 1 to the Purchase Agreement dated September 9th 1998 covering the [*]
  Firm A319-100 Aircraft (on December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into Amendment No. 2 to the Purchase Agreement dated 28th December, 1999 covering:

 

  (i) The [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

D - [*]

 

• A320 Family-TAI-AMDT 8-07/02

 

2/11


Simultaneously, the Buyer and the Seller have signed an Amendment No. 3 to the Purchase Agreement dated December 29th, 1999 covering the modification of certain provisions of the Letter Agreement No. 1 of the Purchase Agreement.

 

E -

The Buyer and the Seller have entered into Amendment No. 4 to the Purchase Agreement dated 15th February, 2000 covering:

 

  (i) the [*] A320-200 Aircraft into [*] and its [*]
       A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*]
       Firm A319-100 Aircraft.

F - The Buyer and the Seller have entered into Amendment No. 5 to the Purchase Agreement dated 06th of April, 2001 covering:

 

  (i) the [*] A320-200 Aircraft into [*] (Firm No. 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] of [*] A320-200 Aircraft [*] (Firm No 42) [*] Firm A319-100 Aircraft [*] (The [*] A320-200 Aircraft [*] Firm No 43) and [*] A320-200 Aircraft (No 46), and

 

  (iii) the [*] A320-200 Aircraft ([*] Firm No 44) [*] Firm A319 100 Aircraft (Firm No 32 [*]

 

G -

The Buyer and the Seller have entered into an Amendment No. 6 to the Purchase Agreement dated 09th of April 2001, covering the rescheduling of certain delivery dates related to the firm Aircraft No. 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*][*] firm Aircraft No. 45 (September 2001) , No. 46 (October 2001) and No. 47 (October 2001) and additionally the firm Aircraft No. 18 [*] an A320-200 Aircraft [*]

 

H - [*]

 

• A320 Family-TAI-AMDT 8-07/02

 

3/11


*[One page has been omitted in accordance with a request for confidential treatment.]

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

• A320 Family-TAI-AMDT 8-07/02

 

4/11


1. SCOPE

The Seller and the Buyer agree, as more particularly described herein, to:

 

   

Re-schedule the delivery dates in respect of certain [*] Aircraft and [*] for delivery in 2001 and 2002

*[One page has been omitted in accordance with a request for confidential treatment.]

 

• A320 Family-TAI-AMDT 8-07/02

 

5/11


2 AMENDMENT No. 7

Amendment No 7 of the A320 Family Purchase Agreement is hereby cancelled and terminated in its entirety, and the Aircraft delivery dates shall be as set out in the following paragraph 5.

 

3 AIRCRAFT DELIVERY DATES RE-SCHEDULING

Sub-Clause 9.1 of the A320 Family Purchase Agreement is hereby modified and replaced by the following (which reflects Aircraft delivery dates only for firm Aircraft remaining to be delivered after the date hereof):

QUOTE

 

9.1 Subject to the provisions of Clauses 2, 7, 8, 10 and 18 the Seller shall have the Aircraft ready for delivery at the Aircraft final assembly line in the following months:

 

     Delivery Date      Aircraft Type  

- Aircraft N 41 (msn 1676)

   October   2002        A320-200   

- Aircraft N 42 (msn 1730)

   November   2002        A320-200   

- Aircraft N 22

   August   2003        A319-100   

- Aircraft N 23

   September   2003        A320-200   

- Aircraft N 24

   October   2003        A320-200   

- Aircraft N 25

   November   2003        A319-100   

- Aircraft N 26

   November   2003        A320-200   

 

• A320 Family-TAI-AMDT 8-07/02

 

6/11


- Aircraft N 46

   May   2004      A320-200   

- Aircraft N 47

   June   2004      A320-200   

- Aircraft N 12

   November   2004      A319-100   

- Aircraft N 15

   April   2005      A319-100   

- Aircraft N 43

   May   2005      A320-200   

- Aircraft N 16

   October   2005      A320-200   

- Aircraft N 44

   February   2006      A320-200   

- Aircraft N 17

   April   2006      A320-200   

- Aircraft N 18

   May   2006      A320-200   

- Aircraft N 36

   May   2006          A320-200   

- Aircraft N 19

   October   2006      A320-200   

- Air craft N 37

   November   2006      A320-200   

- Aircraft N 20

   April   2007      A320-200   

- Aircraft N 21

   May   2007      A320-200   

- Aircraft N 38

   October   2007      A320-200   

UNQUOTE

 

6 *[Nine page has been omitted in accordance with a request for confidential treatment.]

 

• A320 Family-TAI-AMDT 8-07/02

 

7/11


10 CLAUSE 20.3 OF THE A320 FAMILY PURCHASE AGREEMENT

Sub-Clause 20.3 of the A320 Family Purchase Agreement is hereby entirely deleted, and is hereby replaced by the following:

QUOTE

 

20.3 Iermjoatjoo for Failure to Take Delivery

If the Buyer fails to comply with its obligations as set forth under Clause 8.3 and/or Clause 9.4, or fails to pay the Final Price of the Aircraft when required to do so, the Seller shall have the right to put the Buyer on notice to do so [*]

If the Buyer has not cured such default within such period, the Seller may, by written notice, terminate all or part of this Agreement with respect to undelivered Aircraft.

 

• A320 Family-TAI-AMDT 8-07/02

 

8/11


All costs referred to in sub-Clause 9.4.1 and relating to the period between the delivery date and the date of termination of all or part of this Agreement shall be borne by the Buyer.

UNQUOTE

 

11 [*] AIRCRAFT

[*]

 

12 MISCELLANEOUS

It is hereby agreed that all terms and conditions or the Purchase Agreement including its Exhibits and Letter Agreements (and in particular the Letter Agreement No. 1 “[*]”) shall continue in full force and effect except as expressly modified by this Amendment No. 5.

It is acknowledged by the parties that the Seller has entered into this Amendment Nos on the basis that the Buyer shall hereafter perform its obligations under the Purchase Agreement, as amended hereby, and the Seller reserves its rights under the Purchase Agreement in the event of any non-compliance by the Buyer with the terms thereof, as amended hereby.

In case of any inconsistency between this Amendment No. 5 and the Purchase Agreement, or this Amendment No. 5 and the[*], this Amendment No. 5 shall prevail. Except as expressly amended by this Amendment No. 5, the Purchase Agreement as amended to date, and the

 

•A320 Family-TAI-AMOT 8-07/02

 

9/11


[*] shall remain in full force and effect as amended by this Amendment No. 8.

This Amendment No. 8 together with the Purchase Agreement, its Exhibits and Letter Agreements and amendments to date and the [*] contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No. 8 is executed in two original English counterparts and shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives

This Amendment No. 8 shall be governed by and construed in accordance with the laws of the French Republic.

IN WITNESS WHEREOF this Amendment No. 8 to the A320 Family Purchase Agreement is entered into the day and year first above written.

 

For and on behalf of    For and on behalf of
ATLANTIC HOLDING LIMITED    AIRBUS GIE
   By:    LOGO
Its:    Its:    [ILLEGIBLE]
Date: [ILLEGIBLE]    Date:   

V.P. Contract

 

• A320 Family-TAl-AMDT 8-07/02

 

10/11


REDACT THE ENTIRE SCHEDULE BELOW

*[Two page has been omitted in accordance with a request for confidential treatment.]

 

• A320 Family-TAI-AMDT 8-07/02

 

11/11

Exhibit 10.5.9

AMENDMENT No. 9

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS G I E ( formerly known as AIRBUS INQUSTBIE G IE)

CCC No 337.0027/02

 

A320 Family-TAI-AMDT 9-12/02

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

1/6


AMENDMENT No 9

This Amendment 9 to the A320 Family Purchase Agreement (the “Purchase Agreement”) signed on the 19th day of March 1998 is made as of the 06th day of December 2002

BETWEEN

AIRBUS GIE (formerly known as Airbus Industria GIE), having its principal office at:

1 Rand-Point Maurice Bellante

31707 B L AGNAC-CEDEX

FRANCE

(hereinafter referred to as the “Seller”) of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at:

c/o the Winterbothan Trust Company Limited

Bolam House

King and George Streets

NASSAU BAHAMAS

(hereinafter referred to as the “Buyer”) of the other part.

WHEREAS

 

A The Buyer and the Seller have entered into A320 Family Purchase Agreement (the “A320 Family Purchase Agreement’’ or “Purchase Agreement”) dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

B - The Buyer and the Seller have entered into Amendment No 1 to the Purchase Agreement dated September 9th, 1998 covering the advancement of two (2) Firm A319-100 Aircraft (on December 1999 and January 2000).

 

C The Buyer and the Seller have entered into Amendment No 2 to the Purchase Agreement dated 28th December, 1999 covering:

 

  (i) The [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and

 

  (ii) the [*] Option A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

D - The Buyer and the Seller have entered into a [*] dated 29th December 1999 covering the repayment

 

 

A320 Family-TAl-AMDT 9-12/02

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

2/6


[*] Simultaneously, the Buyer and the Seller have signed an Amendment No 3 to the Purchase Agreement dated December 29 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

E - The Buyer and the Seller have entered into Amendment No 4 to the Purchase Agreement dated 15th February, 2000 covering:

 

  (i) the [*] A320-200 Aircraft into [*] and its replacement [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into Amendment Nos to the Purchase Agreement dated 06th of April, 2001 covering:

 

  (i) the [*] A320-200 Aircraft into [*]([*] No 9 becoming Firm No 41) and the replacement of such [*] [*]
A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*] Firm No 42) Firm A319-100 Aircraft [*][*] A320-200 Aircraft into [*] [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iii) [*] A320-200 Aircraft [*] Firm No 44) [*] Firm A319-100 Aircraft (Firm No 32 [*]).

 

G - The Buyer and the Seller have entered into an Amendment No 6 to the Purchase Agreement dated 09th of April 2001, covering the rescheduling of certain delivery dates related to the firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally the firm Aircraft No 18 [*] to an A320-200 Aircraft [*].

 

H - [*]

(iv)

 

A320 Family-TAI-AMDT 9-12/02

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

3/6


[*]

 

  J - The Buyer and the Seller have agreed to [*] the delivery date of the A319-100 Aircraft No 22 from August 2003 to June 2003.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

A320 Family-TAl-AMDT 9-12/02

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

4/6


1.

SCOPE

The Seller and the Buyer agree, as more particularly described herein, to re-schedule the delivery dates of the A319-100 Aircraft No 22 from August 2003 to June 2003.

 

2 AIRCRAFT DELIVERY DATES RE-SCHEDULING

Sub-Clause 9.1 of the A320 Family Purchase Agreement is hereby modified and replaced by the following (which reflects Aircraft delivery dates only tor firm Aircraft remaining to be delivered after the date hereof):

QUOTE

 

9.1 Subject to the provisions of Clauses 2, 7, 8, 10 and 18 the Seller shall have the Aircraft ready for delivery at the Aircraft final assembly line in the following months:

 

    

Delivery Date

   Aircraft Type  

- Aircraft N 22

   June   2003      A319-100   

- Aircraft N 23

   September   2003      A320-200   

- Aircraft N 24

   October   2003      A320-200   

- Aircraft N 25

   November   2003      A319-100   

- Aircraft N 26

   November   2003      A320-200   

- Aircraft N 46

   May   2004      A320-200   

- Aircraft N 47

   June   2004      A320-200   

- Aircraft N 12

   November   2004      A319-100   

- Aircraft N 15

   April   2005      A319-100   

- Aircraft N 43

   May   2005      A320-200   

- Aircraft N 16

   October   2005      A320-200   

- Aircraft N 44

   February   2006      A320-200   

- Aircraft N 17

   April   2006      A320-200   

- Aircraft N 18

   May   2006      A320-200   

- Aircraft N 36

   May   2006      A320-200   

- Aircraft N 19

   October   2006      A320-200   

- Aircraft N 37

   November   2006      A320-200   

- Aircraft N 20

   April   2007      A320-200   

- Aircraft N 21

   May   2007      A320-200   

- Aircraft N 38

   October   2007      A320-200   

UNQUOTE

 

A320 Family-TAI-AMOT 9-12/02

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

5/6


3 MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement including its Exhibits and Letter Agreements (and in particular the Letter Agreement No 1 [*]) shall continue in full force and effect except as expressly modified by this Amendment No 9.

In case of any inconsistency between this Amendment No 9 and the Purchase Agreement, or this Amendment No and the [*], this Amendment No shall prevail. Except as expressly amended by this Amendment No 9, the Purchase Agreement as amended to date, and the [*] shall remain in full force and effect as amended by this Amendment No 9.

This Amendment No 9 together with the Purchase Agreement, its Exhibits and Letter Agreements and amendments to date and the [*] contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings , commitments and/or representations whatsoever oral and written with respect to such subject

This Amendment No 9 is executed in two original English counterparts and shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives

This Amendment No 9 shall be governed by and construed in accordance with the laws of the French Republic.

IN WITNESS WHEREOF this Amendment No 9 to the A320 Family Purchase Agreement is entered into the day and year first above written.

 

For and on behalf of      For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED      AIRBUS GIE
  LOGO

 

A320 Family-TAI-AMDT 9-12/02

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

6/6

Exhibit 10.5.10

AMENDMENT No 10

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS GIE (formerly known as AIRBUS INDUSTRIE GIE)

CCC No 326.0037/03

A320 Family - TAI - AMDT 10 - 10/03

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

1/5


AMENDMENT No 10

This Amendment No 10 to the A320 Family Purchase Agreement (the “Purchase Agreement”) signed on the 19th day of March 1998 is made as of the     th day of October 2003

BETWEEN

AIRBUS GIE (formerly known as Airbus lndustrie GIE), having its principal office at:

1 Rand-Point Maurice Bellante

31707 BLAGNAC-CEDEX

FRANCE

(hereinafter referred to as the “Seller”) of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at:

c/o the Winterbothan Trust Company Limited

Bolam House

King and George Streets

NASSAU BAHAMAS

(hereinafter referred to as the “Buyer”) of the other part.

WHEREAS

 

A  - The Buyer and the Seller have entered into A320 Family Purchase Agreement (the “A320 Family Purchase Agreement” or “Purchase Agreement”) dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

B  - The Buyer and the Seller have entered into Amendment No 1 to the Purchase Agreement dated September 9th, 1998 covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).

 

C  - The Buyer and the Seller have entered into Amendment No 2 to the Purchase Agreement dated 28th December, 1999 covering:

(i) The [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and

(ii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

D  - [*]

 

A320 Family - TAI - AMDT 10 - 10/03

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

2/5


   [*] Simultaneously, the Buyer and the Seller have signed an Amendment No J to the Purchase Agreement dated December 29th, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

E  - The Buyer and the Seller have entered into Amendment No 4 to the Purchase Agreement dated 15th February, 2000 covering:

 

  (i) the [*] A320-200 Aircraft into and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A319-100 Aircraft.

 

F  - The Buyer and the Seller have entered into Amendment Nos to the Purchase Agreement dated 06th of April, 2001 covering:

 

  (i) the [*] A320-200 Aircraft [*] Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft ([*] Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31[*]).

 

  (iii) The [*] A320-200 [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft [*] Firm No 44) [*] Firm A319-100 Aircraft [*].

 

G  - The Buyer and the Seller have entered into an Amendment No S to the Purchase Agreement dated     th of April 2001, covering the rescheduling of certain delivery dates related to the firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally the firm Aircraft No 18 [*] A320-200 Aircraft type.

[*]

 

I  - [*]

 

J  - The Buyer and the Seller have entered into an Amendment Nag to the Purchase Agreement dated 06th of December 2002 covering the rescheduling of the delivery date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K  - The Buyer and the Seller have agreed to [*] the delivery date of the A320-200 Aircraft No 46 and 47 from May and June 2004 to October and November 2004.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

A320 Family - TAI - AMDT 10 - 10/03

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

3/5


1. SCOPE

The Seller and the Buyer agree, as more particularly described herein, to re-schedule the delivery dates of the A320-200 Aircraft No 46 and 47 from May and June 2004 to October and November 2004.

 

2 AIRCRAFT DELIVERY DATES RE-SCHEDULING

Sub-Clause 9.1 of the A320 Family Purchase Agreement is hereby modified and replaced by the following:

QUOTE

 

9.1 Subject to the provisions of Clauses 2, 7, 8, 10 and 18 the Seller shall have the Aircraft ready for delivery at the Aircraft final assembly line in the following months:

 

     Delivery Date      Aircraft Type      M..S.N  

- Aircraft. N 01

   August      1999         A319-100         1066   

- Aircraft. N 02

   November      1999         A319-100         1113   

- Aircraft. N 03

   December      1999         A319-100         1140   

- Aircraft. N 04

   January      2000         A319-100         1159   

- Aircraft. N 07

   September      2000         A320-200         1300   

- Aircraft. N 05

   November      2000         A320-200         1334   

- Aircraft. N 06

   November      2000         A320-200         1339   

- Aircraft. N 08

   December      2000         A320-200         1353   

- Aircraft. N 09

   January      2001         A320-200         1374   

- Aircraft. N 10

   February      2001         A320-200         1400   

- Aircraft. N 33

   June      2001         A320-200         1482   

- Aircraft. N 34

   June      2001         A320-200         1500   

- Aircraft. N 11

   July      2001         A320-200         1509   

- Aircraft. N 35

   July      2001         A320-200         1523   

- Aircraft. N 45

   September      2001         A319-100         1575   

- Aircraft. N 39

   November      2001         A320-200         1624   

- Aircraft. N 41

   October      2002         A320-200         1676   

- Aircraft. N 42

   November      2002         A320-200         1730   

- Aircraft. N 22

   June      2003         A319-100         1934   

- Aircraft. N 23

   September      2003         A320-200         2084   

- Aircraft. N 24

   October      2003         A320-200         2102   

- Aircraft. N 25

   October      2003         A319-100         1952   

- Aircraft. N 26

   November      2003         A320-200         2118   

- Aircraft. N 46

   October      2004         A320-200         TBD   

- Aircraft. N 47

   November      2004         A320-200         TBD   

- Aircraft. N 12

   November      2004         A319-100         TBD   

- Aircraft. N 15

   April      2005         A319-100         TBD   

- Aircraft. N 43

   May      2005         A320-200         TBD   

- Aircraft. N 16

   October      2005         A320-200         TBD   

- Aircraft. N 44

   February      2006         A320-200         TBD   

- Aircraft. N 17

   April      2006         A320-200         TBD   

 

A320 Family - TAI - AMDT 10 - 10/03

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

4/5


- Aircraft. N 18

   May      2006         A320-200         TBD   

- Aircraft. N 36

   May      2006         A320-200         TBD   

- Aircraft. N 19

   October      2006         A320-200         TBD   

- Aircraft. N 37

   November      2006         A320-200         TBD   

- Aircraft. N 20

   April      2007         A320-200         TBD   

- Aircraft. N 21

   May      2007         A320 200         TBD   

- Aircraft. N 38

   October      2007         A320-200         TBD   

UNQUOTE

 

3 MISCELLANEOUS

In case of any inconsistency between this Amendment No 10 and the Purchase Agreement, or this Amendment No 10 and the[*], this Amendment No 10 shall prevail. Except as expressly amended by this Amendment No 10, the Purchase Agreement as amended to date, and the [*] shall remain in full force and effect as amended by this Amendment No 10.

This Amendment No 10 together with the Purchase Agreement, its Exhibits and Letter Agreements and amendments to date and the [*] contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 10 is executed in two original English counterparts and shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives

This Amendment No 10 shall be governed by and construed in accordance with the laws of the French Republic.

IN WITNESS WHEREOF this Amendment No 10 to the A320 Family Purchase Agreement is entered into the day and year first above written.

 

For and on behalf of     For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED     AIRBUS GIE
By:   [ILLEGIBLE]     By:   [ILLEGIBLE]
Its:   [ILLEGIBLE]   .   Its:   [ILLEGIBLE]

Exe. 11.19.03

 

A320 Family - TAI - AMDT 10 - 10/03

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

5/5

Exhibit 10.5.11

AMENDMENT No. 11

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS S A S ( formerly known as AIRBUS INDUSTRIE GIE)

CCC No 337.0046/04

A320 Family-TAI-AMDT 11-11/04

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

1/6


AMENDMENT No 11

This Amendment No 11 to the A320 Family Purchase Agreement (the “Purchase Agreement”) signed on the 19th day of March 1998 is made as of the         day of November 2004

BETWEEN

AIRBUS S.A.S. (formerly known as Airbus Industria GIE), having its principal office at:

1 Rand-Point Maurice Bellante

31707 BLAGNAC- CEDEX

FRANCE

(hereinafter referred to as the “Seller”) of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED having its principal office at:

c/o Winterbotham Trust Company Limited

Bolam House

King and George Streets

NASSAU

BAHAMAS

(hereinafter referred to as the “Buyer”) of the other part.

WHEREAS

 

A - The Buyer and the Seller have entered into that certain A320 Family Purchase Agreement (the “A320 Family Purchase Agreement” or “Purchase Agreement”) dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

B - The Buyer and the Seller have entered into Amendment No 1 to the Purchase Agreement dated September 9th, 1998 covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into Amendment No 2 to the Purchase Agreement dated 28th December, 1999 covering:

 

  (i) The [*] A320-200 Aircraft [*] and the [*] new A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft with [*] previously Firm A320-200 Aircraft.

 

A320 Family-TAI-AMDT 11-11/04

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

2/6


D - [*] Simultaneously, the Buyer and the Seller signed Amendment No 3 to the Purchase Agreement dated December 29th, 1999 covering the modification of certain provisions of the Letter Agreement Not to the Purchase Agreement.

 

E - The Buyer and the Seller have entered into Amendment No 4 to the Purchase Agreement dated 15 February, 2000 covering:

 

  (i) the [*] A320-200 Aircraft [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft Firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into Amendment Nos to the Purchase Agreement dated 06 April, 2001 covering:

 

  (i) the [*] A320-200 Aircraft [*] Firm No 41) and the [*] A320-200 Aircraft (No 44),

 

  (ii) the [*] A320-200 Aircraft [*] (Firm No 42) with one (1) previously Firm A319-100 Aircraft (Firm No 31[*]),

 

  (iii) The [*] A320-200 Aircraft [*] (Firm No 43) and the replacement of such [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft [*] (Firm No 44) [*] Firm A319-100 Aircraft (Firm No 32 [*]).

 

G - The Buyer and the Seller have entered into Amendment No 6 to the Purchase Agreement dated 09th April 2001, covering the rescheduling of certain delivery dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered to Buyer in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and, additionally, the firm Aircraft No 18 [*] to an A320-200 Aircraft [*]

 

H - [*] September, November and December 2002) to July, October and

 

A320 Family-TAI-AMDT 11-11/04

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[*]

 

I - [*].

 

J - The Buyer and the Seller have entered into Amendment No g to the Purchase Agreement dated 06th of December 2002, covering the rescheduling of the delivery date of firm Aircraft No 22 from August 2003 to June 2003.

 

K- The Buyer and the Seller have entered into Amendment No 10 to the Purchase Agreement dated 30th of October 2003, covering the rescheduling of the delivery date of firm A320-200 Aircraft No 46 and 47 from May and June 2004 to October and November 2004.

 

L- Following the fulfilment of the Buyer with respect to its obligations under the Framework Agreement, as modified by Amendment No S to the A320 Family Purchase Agreement, the Buyer and the Seller have agreed to simultaneously:

 

  (i) [*], and

 

  (ii) cancel and terminate Amendment No 3 to the Purchase Agreement [*] stated in Clause 1 of Letter Agreement No 1 to the Purchase Agreement.

 

M- As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto, as amended to date by Amendments No 1 to 10, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

A320 Family-TAI-AMDT 11-11/04

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1. DEFINITIONS

Capitalized words used herein and not defined shall have the meanings ascribed to them in the A320 Family Purchase Agreement.

 

2. SCOPE

The scope of this Amendment No 11 is to terminate and cancel Amendment No 3 to the A320 family Purchase Agreement, simultaneously with the termination of the [*].

 

3. APPLICATION OF THE “[*]”

Clause 1 of Letter Agreement No 1 to the A320 Family Purchase Agreement, is hereby deleted in its entirety and replaced with the following (such amendment to be applicable to all [*] Aircraft (A319 or A320 (or A321 in the case may be), irrespectively) delivered by the Seller to the Buyer after the date hereof):

QUOTE

[*]

 

A320 Family-TAI-AMDT 11-11/04

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4. TERMINATION OF AMENDMENT No 3

Amendment No 3 to the Purchase Agreement is hereby terminated and cancelled and shall not be applicable to any Aircraft remaining to be delivered by the Seller to the Buyer under the Purchase Agreement.

 

5. TERMINATION OF [*]

[*]

 

6. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall continue in full force and effect except as expressly modified by this Agreement No 11.

In case of any inconsistency between this Amendment No 11 and the Purchase Agreement, this Amendment No 11 shall prevail.

This Amendment No 11 together with the Purchase Agreement, its Exhibits and Letter Agreements and amendments to date contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 11 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 11 shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives.

This Amendment No 11 shall be governed by and construed in accordance with the laws of Franee.

IN WITNESS WHEREOF this Amendment No 11 to the A320 Family Purchase Agreement is entered into the day and year first above written.

 

For and on behalf of       For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED       AIRBUS S.A.S.
By:          By:   
Its:          Its:

 

A320 Family-TAI-AMDT 11-11/04

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Exhibit 10.5.12

AMENDMENT No. 12

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS S.A.S. (formerly known as AIRBUS INDUSTRIE GIE)

CCC No. 337.0047/04

A320 Family-TAI-AMDT 12-11/04

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

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AMENDMENT No 12

This Amendment No 12 to the A320 Family Purchase Agreement (the “Purchase Agreement”) signed on the 19th day of March 1998 is made as of the 8th day of November 2004

BETWEEN

AIRBUS S.A.S. (formerly known as Airbus Industria GIE), having its principal office at:

1 Rand-Point Maurice Bellante

31707 BLAGNAC- CEDEX

FRANCE

(hereinafter referred to as the “Seller”) of the one part

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at:

c/o Winterbotham Trust Company Limited

Bolam House

King and George Streets

NASSAU

BAHAMAS

(hereinafter referred to as the “Buyer”) of the other part.

WHEREAS

 

A  - The Buyer and the Seller have entered into that certain A320 Family Purchase Agreement (the “A320 Family Purchase Agreement” or “Purchase Agreement”) dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

B  - The Buyer and the Seller have entered into Amendment No 1 to the Purchase Agreement dated September 1998 covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).

 

C  - The Buyer and the Seller have entered into Amendment No 2 to the Purchase Agreement dated 28th December 1999 covering:

 

  (i) The [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

A320 Family-TAI-AMDT 12-11/04

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D  -

 

[*]  Simultaneously, the Buyer and the Seller signed Amendment No 3 to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of Letter Agreement No 1 to the Purchase Agreement.

 

E  - The Buyer and the Seller have entered into Amendment No 4 to the Purchase Agreement dated 15th February, 2000 covering:

 

  (i) [*] A320-200 Aircraft [*] and its A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft with one (1) previously Firm A319-100 Aircraft.

 

F  - The Buyer and the Seller have entered into Amendment No 5 to the Purchase Agreement dated 06th of April, 2001 covering:

 

  (i) the [*] A320-200 Aircraft [*] Firm No 41) and [*] A320-200 Aircraft (No 44),

 

  (ii) the [*] A320-200 Aircraft ([*] Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31[*]),

 

  (iii) The [*] A320-200 Aircraft into [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft ([*] Firm No 44) [*] Firm A319-100 Aircraft (Firm No 32[*]).

 

G  - The Buyer and the Seller have entered into Amendment No s to the Purchase Agreement dated 09th of April 2001, covering the rescheduling of certain delivery dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft [*] .

H  -

[*] 2001 to May and June 2004.

 

  (ii) The [*] of the A319-132 Aircraft scheduled for delivery during.

[*]

 

J- The Buyer and the Seller have entered into Amendment No 9 to the Purchase Agreement dated 06th of December 2002, covering the rescheduling of the delivery date of firm Aircraft No 22 from August 2003 to June 2003.

 

K- The Buyer and the Seller have entered into Amendment No 10 to the Purchase Agreement dated 30th of October 2003, covering the rescheduling of the delivery date of firm A320-200 Aircraft No 46 and 47 from May and June 2004 to October and November 2004.

 

L- The Buyer and the Seller entered into Amendment No 11 to the Purchase Agreement dated of November 2004 covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of the Amendment No 3 to the Purchase Agreement in order to reinstate [*] stated in Clause 1 of Letter Agreement No 1 to the Purchase Agreement.

 

A320 Family-TAI-AMDT 12-11/04

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M- Following the decision of the Buyer [*] Aircraft No 44, 17, 37 [*] A320 to A321 type and No 18, 36 and 21 [*] A320 [*] A319 [*] (according to the provisions of Letter Agreement No 6 to the Purchase Agreement) and the decision of the Buyer and Seller to [*] the Buyer and the Seller have agreed to amend certain terms of the Purchase Agreement, as set forth herein.

 

A320 Family-TAI-AMDT 12-11/04

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N- As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 11, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS :

 

1. DEFINITIONS

Capitalized words used herein and not defined shall have the meaning ascribed to them in the Purchase Agreement.

 

2. SCOPE

The scope of this Amendment No 12 is:

 

  (i) to amend Clause 9 of the Purchase Agreement,

 

  (ii) to cancel, amend and/or replace, as applicable, certain provisions of Letter Agreement No 2 to the Purchase Agreement (including its Exhibits A and 8 and its Side Letter) and the “[*] in respect of Nine Airbus A320-200 Aircraft” by the [*] as per Clause 8 of this Amendment No 12, and

 

  (iii) to [*] to be provided by the Seller to the Buyer.

 

3. AIRCRAFT [*] AND DELIVERY SCHEDULE

Sub-Clause 9.1 of the A320 Family Purchase Agreement is hereby cancelled and replaced by the following:

QUOTE

 

     Delivery Date    Aircraft Type    MSN
- Aircraft. N 01    August    1999    A319-100    1066
- Aircraft. N 02    November    1999    A319-100    1113
- Aircraft. N 03    December    1999    A319-100    1140
- Aircraft. N 04    January    2000    A319-100    1159
- Aircraft. N 07    September    2000    A320-200    1300
- Aircraft. N 05    November    2000    A320-200    1334
- Aircraft. N 06    November    2000    A320-200    1339
- Aircraft. N 08    December    2000    A320-200    1353
- Aircraft. N 09    January    2001    A320-200    1374
- Aircraft. N 10    February    2001    A320-200    1400
- Aircraft. N 33    June    2001    A320-200    1482
- Aircraft. N 34    June    2001    A320-200    1500
- Aircraft. N 11    July    2001    A320-200    1509
- Aircraft. N 35    July    2001    A320-200    1523
- Aircraft. N 45    September    2001    A319-100    1575

 

A320 Family-TAI-AMDT 12-11/04

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- Aircraft. N 39    November    2001    A320-200    1624
- Aircraft. N 41    October    2002    A320-200    1676
- Aircraft. N 42    November    2002    A320-200    1730
- Aircraft. N 22    June    2003    A319-100    1934
- Aircraft. N 23    September    2003    A320-200    2084
- Aircraft. N 24    October    2003    A320-200    2102
- Aircraft. N 25    October    2003    A319-100    1952
- Aircraft. N 26    November    2003    A320-200    2118
- Aircraft. N 46    October    2004    A320-200    2282
- Aircraft. N 47    November    2004    A320-200    2301
- Aircraft. N 12    November    2004    A319-100    2339
- Aircraft. N 15    April    2005    A319-100    2444
- Aircraft. N 43    May    2005    A320-200    2434
- Aircraft. N 16    September    2005    A321-200    TBD
- Aircraft. N 44    November    2005    A321-200    TBD
- Aircraft. N 17    January    2006    A319-100    TBD
- Aircraft. N 18    January    2006    A319-100    TBD
- Aircraft. N 36    February    2006    A321-200    TBD
- Aircraft. N 19    March    2006    A321-200    TBD
- Aircraft. N 37    May    2006    A320-200    TBD
- Aircraft. N 20    October    2006    A320-200    TBD
- Aircraft. N 21    February    2007    A320-200    TBD
- Aircraft. N 38    March    2007    A319-100    TBD

UNQUOTE

*[Five page has been omitted in accordance with a request for confidential treatment.]

 

A320 Family-TAI-AMDT 12-11/04

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A320 Family-TAI-AMDT 12-11/04

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A320 Family-TAI-AMDT 12-11/04

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A320 Family-TAI-AMDT 12-11/04

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5. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall continue in full force and effect except as expressly amended by this Agreement No 12.

In case of any inconsistency between this Amendment No 12 and the Purchase Agreement, this Amendment No 12 shall prevail.

This Amendment No 12 together with the Purchase Agreement, s Exhibits and Letter Agreements and amendments to date contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings, comments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 12 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 12 shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives.

This Amendment No 12 shall be governed by and construed in accordance with the laws of France.

IN WITNESS WHEREOF this Amendment No 12 to the A320 Family Purchase Agreement is entered into as of the day and year first above written.

 

For and on behalf of     For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED     AIRBUS S.A.S.
By:   /s/ Roberto Kriete     By:   [ILLEGIBLE]
  Roberto Kriete      
Its:   Attorney in fact.     Its:   [ILLEGIBLE]

 

A320 Family-TAI-AMDT 12-11/04

10/10

Exhibit 10.5.13

AMENDMENT No. 13

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS S.A.S. ( formerly known as AIRBUS INQLISTRIE G I E)

CCC No 337.0048/04

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

 

A320 Family - TAI - AMDT 13-11/04

1/13


AMENDMENT NO 13

This Amendment No 13 to the A320 Family Purchase Agreement (the “Purchase Agreement”) signed on the 19th day of March 1998 is made as of the      day of November 2004

BETWEEN

AIRBUS S.A.S.   (formerly known as Airbus Industria GIE), having its principal office at:

 

  

1 Rand-Point Maurice Bellante

31707 BLAGNAC- CEDEX

FRANCE

  

(hereinafter referred to as the “Seller” of the one part)

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at:

 

  

c/o the Winterbothan Trust Company Limited

Bolam House

King and George Streets

NASSAU BAHAMAS

  

(hereinafter referred to as the “Buyer”) of the other part.

WHEREAS

 

A - The Buyer and the Seller have entered into that certain A320 Family Purchase Agreement (the “A320 Family Purchase Agreement” or “Purchase Agreement”) dated March 19th, 1998 covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

B - The Buyer and the Seller have entered into Amendment No 1 to the Purchase Agreement dated September 9th, 1998 [*] Firm A319-100 Aircraft (on December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into Amendment No 2 to the Purchase Agreement dated 28th December, 1999 covering:

 

  (i) The [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

A320 Family - TAI - AMDT 13-11/04

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D - [*] Simultaneously, the Buyer and the Seller signed Amendment No 3 to the Purchase Agreement dated December 29th, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

E - The Buyer and the Seller have entered into Amendment No 4 to the Purchase Agreement dated 15th February, 2000 covering:

 

  (i) the [*] A320-200 Aircraft [*] and its

[*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into Amendment Nos to the Purchase Agreement dated 06th of April, 2001 covering:

 

  (i) the [*] n A320-200 Aircraft [*] (Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*] Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31 [*])

 

  (iii) The [*] A320-200 Aircraft [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft [*] (Firm No 44) [*] Firm A319-100 Aircraft (Firm No 32 [*]).

 

G - The Buyer and the Seller have entered into Amendment Nos to the Purchase Agreement dated 09th of April 2001, covering the rescheduling of certain delivery dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft [*]

 

H - [*]

 

A320 Family - TAI - AMDT 13-11/04

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I. [*]

 

J - The Buyer and the Seller have entered into Amendment No 9 to the Purchase Agreement dated 06th of December 2002, covering the rescheduling of the delivery date of firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into Amendment No 10 to the Purchase Agreement dated 30th of October 2003, covering the rescheduling of the delivery date of firm A320-200 Aircraft No 46 and 47 from May and June 2004 to October and November 2004;

 

L - The Buyer and the Seller entered into Amendment No 11 to the Purchase Agreement dated as of November 2004, covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] stated in paragraph 1 of Letter Agreement No 1 to the Purchase Firm Agreement.

 

M- The Buyer and the Seller entered into Amendment No 12 to the Purchase Agreement dated 18 November 2004, covering:

 

  (i) the [*] of Aircraft No 44, 17, 37 [*] A320 [*] to A321 [*] and No 18, 36 and 21 [*] A320 [*] to A319 [*],

 

  (ii) [*].

 

A320  Family - TAI - AMDT 13-11/04

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N - Following the decision of the Buyer to [*] Aircraft [*], the Buyer and the Seller have agreed to amend certain terms of the Purchase Agreement.

 

O - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 12, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

1. DEFINITIONS

Capitalized words used herein and not defined shall have the meanings ascribed to them in the A320 Family Purchase Agreement.

 

2. SCOPE

The scope of this Amendment No 13 is to amend certain provisions of the A320 Family Purchase Agreement, following the decision of the Buyer to [*] Aircraft (Aircraft No 48 to 61) [*] Aircraft (the “Incremental Aircraft”).

 

3. PAYMENT TERMS

With respect to the [*] Incremental Aircraft (Aircraft No 48 to 61), and any Additional A320 Family Aircraft (as such term is defined in paragraph 6 of this Amendment No 13 ) [*] Aircraft, (i) Letter Agreement No 5 of the A320 Family Purchase Agreement is cancelled and (ii) Sub- Clauses 5.1 and 5.2 of the A320 Family Purchase Agreement are hereby deleted in their entirety and replaced with the following:

QUOTE

 

5.1 Seller’s Account

The Buyer shall pay the final price of each Aircraft or any invoice to the Seller’s account [*] with:

[*]

or to such other account as may be designated by the Seller.

 

A320  Family - TAI - AMDT 13-11/04

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5.2 Payment of the Aircraft

The Final Price of each Aircraft as defined in sub-Clause 3.2 of this Purchase Agreement shall be paid in accordance with the following terms and conditions:

 

5.2.1 Predelivery Payments

[*]

 

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5.2.2 Balance of the Final Price of the Aircraft

Concurrently with the Aircraft delivery and on receipt of the Seller’s invoice, the Buyer shall pay to the Seller the Final Price of the Aircraft as defined in sub-Clause 3.2 less the total amount of the predelivery payments received by the Seller and set forth in sub-Clause 5.2.1.

UNQUOTE

[*]

 

4. AIRCRAFT TYPE AND DELIVERY SCHEDULE

Sub-Clause 9.1 of the A320 Family Purchase Agreement is hereby cancelled and replaced by the following:

QUOTE

 

Delivery Date    Aircraft Type    MSM

-Aircraft. N 01 August 1999

   A319-100    1066

- Aircraft. N 02 November 1999

   A319-100    1113

- Aircraft. N 03 December 1999

   A319-100    1140

- Aircraft. N 04 January 2000

   A319-100    1159

- Aircraft. N 07 September 2000

   A320-200    1300

- Aircraft. N 05 November 2000

   A320-200    1334

- Aircraft. N 06 November 2000

   A320-200    1339

- Aircraft. N 08 December 2000

   A320-200    1353

- Aircraft. N 09 January 2001

   A320-200    1374

- Aircraft. N 10 February 2001

   A320-200    1400

- Aircraft. N 33 June 2001

   A320-200    1482

- Aircraft. N 34 June 2001

   A320-200    1500

- Aircraft. N 11 July 2001

   A320-200    1509

- Aircraft. N 35 July 2001

   A320-200    1523

- Aircraft. N 45 September 2001

   A319-100    1575

- Aircraft. N 39 November 2001

   A320-200    1624

- Aircraft. N 41 October 2002

   A320-200    1676

-Aircraft. N 42 November 2002

   A320-200    1730

-Aircraft. N 22 June 2003

   A319-100    1934

- Aircraft. N 23 September 2003

   A320-200    2084

- Aircraft. N 24 October 2003

   A320-200    2102

- Aircraft. N 25 October 2003

   A319-100    1952

 

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Delivery Date    Aircraft Type    MSM

-Aircraft. N 26 November 2003

   A320-200    2118

-Aircraft. N 46 October 2004

   A320-200    2282

-Aircraft. N 47 November 2004

   A320-200    2301

-Aircraft. N 12 November 2004

   A319-100    2339

-Aircraft. N 15 April 2005

   A319-100    2444

-Aircraft. N 43 May 2005

   A320-200    2434

-Aircraft. N 16 September 2005

   A321-200    TBD

-Aircraft. N 44 November 2005

   A321-200    TBD

-Aircraft. N 17 January 2006

   A319-100    TBD

-Aircraft. N 18 January 2006

   A319-100    TBD

-Aircraft. N 36 February 2006

   A321-200    TBD

-Aircraft. N 19 March 2006

   A321-200    TBD

-Aircraft. N 37 May 2006

   A320-200    TBD

-Aircraft. N 20 October 2006

   A320-200    TBD

-Aircraft. N 21 February 2007

   A320-200    TBD

-Aircraft. N 38 March 2007

   A319-100    TBD

- Aircraft. N 48 April 2007

   A320-200    TBD

- Aircraft. N 49 April 2007

   A320-200    TBD

- Aircraft. N 50 June 2007

   A320-200    TBD

-Aircraft. N 51 July 2007

   A320-200    TBD

- Aircraft. N 52 January 2008

   A320-200    TBD

- Aircraft. N 53 March 2008

   A320-200    TBD

- Aircraft. N 54 June 2008

   A320-200    TBD

- Aircraft. N 55 July 2008

   A320-200    TBD

- Aircraft. N 56 August 2008

   A320-200    TBD

-Aircraft. N 57 August 2008

   A320-200    TBD

- Aircraft. N 58 April 2009

   A320-200    TBD

- Aircraft. N 59 April 2009

   A321-200    TBD

- Aircraft. N 60 September 2009

   A320-200    TBD

- Aircraft. N 61 September 2009

   A319-100    TBD

 

A320 Family - TAI - AMDT 13-11/04

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UNQUOTE

*[Five page has been omitted in accordance with a request for confidential treatment.]

 

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9. [*]

 

10. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including s Exhibits and Letter Agreements shall continue in full force and effect except as expressly modified by this Agreement No 13.

In case of any inconsistency between this Amendment No 13 and the Purchase Agreement, this Amendment No 13 shall prevail.

This Amendment No 13 together with the Purchase Agreement, its Exhibits and Letter Agreements and amendments to date contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 13 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 13 shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives.

This Amendment No 13 shall be governed by and construed in accordance w h the laws of France.

 

A320 Family - TAI - AMDT 13-11/04

12/13


IN WITNESS WHEREOF this Amendment No 13 to the A320 Family Purchase Agreement is entered into as of the day and year first above written.

 

For and on behalf of     For and on behalf
        AIRBUS S.A.S.
By         By:    
Its:       Its:  

 

A320 Family - TAI - AMDT 13-11/04

13/13

Exhibit 10.5.14

AMENDMENT No 14

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS S AS

A320 Family - TAI - AMDT 14-02/06

CCC No 337.0010/06    1/11   

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


AMENDMENT No 14

This Amendment No 14 to the A320 Family Purchase Agreement dated as of March 19, 1998 between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED, is made as of the tt day of February, 2006.

BETWEEN

AIRBUS S.A.S., a societe par actions simplifiee, formerly known as Airbus G.I.E. created and existing under French law having its registered office at 1 Rand-Point Maurice Bellante, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (hereinafter referred to as the “Seller”),

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at c/o the Winterbothan Trust Company Limited, Bolam House, King and George Streets. NASSAU, BAHAMAS (hereinafter referred to as the “Buyer”).

WHEREAS

 

A   -    The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements, as the “Purchase Agreement”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.
B   -    The Buyer and the Seller have entered into Amendment No1 to the Purchase Agreement dated September 9, 1998, covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).
C   -    The Buyer and the Seller have entered into Amendment No 2 to the Purchase Agreement dated December 28, 1999 covering:

 

  (i) The [*] A320-200 Aircraft [*] and

the [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

A320 Family - TAI - AMDT 14-02/06

 

CCC No 337.0010/06    2/11   

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


D   -    [*] Simultaneously, the Buyer and the Seller have entered into Amendment No 3 to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.
E   -    The Buyer and the Seller have entered into signed Amendment No 4 to the Purchase Agreement dated February 15, 2000 covering:

 

  (i) the [*] A320-200 Aircraft [*] and its

[*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A319-100 Aircraft.

 

F   -    The Buyer and the Seller have entered into Amendment Nos to the Purchase Agreement dated April 6, 2001 covering:

 

  (i) the [*] A320-200 Aircraft [*] Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*] (Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31 [*]).

 

  (iii) The [*] A320-200 Aircraft [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the A320-200 Aircraft (Firm No 44) Firm A319-100 Aircraft (Firm No 32 [*]).

 

G   -    The Buyer and the Seller have entered into Amendment Nos to the Purchase Agreement dated April 9, 2001 covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft [*].
H   -    [*]

A320 Family - TAI - AMDT 14-02/06

CCC No 337.0010/06    3/11   

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


[*]

I   -    [*]
J   -    The Buyer and the Seller have entered into Amendment Neg to the Purchase Agreement dated December 6, 2002 covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.
K   -    The Buyer and the Seller have entered into Amendment No 10 to the Purchase Agreement dated October 30, 2003 covering the rescheduling of the Delivery Date of firm A320-200 Aircraft No 46 and 47 respectively from May and June 2004 to October and November 2004.
L   -    The Buyer and the Seller have entered into Amendment No 11 to the Purchase Agreement dated November 18, 2004 covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] stated in paragraph 1 of Letter

Agreement No 1 to the Purchase Agreement.

M   -    The Buyer and the Seller have entered into Amendment No 12 to the Purchase Agreement dated November 18, 2004 covering:

 

  (i) the [*] of Aircraft No 44, 17, 37 [*] A320 [*] to A321 [*] and No 18, 36 and 21 [*] A320 [*] A319 [*]
N   -    The Buyer and the Seller have entered into Amendment No 13 to the Purchase Agreement dated November 18, 2004 covering:

A320 Family - TAI - AMDT 14-02/06

CCC No 337.0010/06    4/11   

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


 

 

[*] O   -    As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 13, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

A320 Family - TAI - AMDT 14-02/06

CCC No 337.0010/06    5/11   

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


1. DEFINITIONS

Capitalized terms used herein and not otherwise defined in this Amendment shall have the meanings assigned thereto in the Purchase Agreement.

 

2. SCOPE

The scope of this Amendment No 14 is to amend certain provisions of the Purchase Agreement, to provide the Buyer with:

 

  (i) an A320 or A321 Incremental [*]

 

  (ii) AIRMAN software,

 

  (iii) ADOC Job Cards Package, ADOC Consultation Package, and AirNav and/or ADOC Navigator Based Consultation

 

  (iv) [*].

 

3. AIRCRAFT TYPE AND DELIVERY SCHEDULE

Sub-Clause 9.1 of the Purchase Agreement is hereby deleted and replaced by the following:

QUOTE

 

      

Delivery Date

    

Aircraft Type

   MSM

-Aircraft.  N 01

   September    1999      A319-100    1066

-Aircraft.  N 02

   November    1999      A319-100    1113

-Aircraft.  N 03

   December    1999      A319-100    1140

-Aircraft.  N 04

   March    2000      A319-100    1159

-Aircraft.  N 07

   December    2000      A320-200    1300

-Aircraft.  N 05

   December    2000      A320-200    1334

-Aircraft.  N 06

   December    2000      A320-200    1339

-Aircraft.  N 08

   December    2000      A320-200    1353

-Aircraft.  N 09

   January    2001      A320-200    1374

-Aircraft.  N 10

   March    2001      A320-200    1400

-Aircraft.  N 33

   June    2001      A320-200    1482

-Aircraft.  N 34

   June    2001      A320-200    1500

-Aircraft.  N 11

   July    2001      A320-200    1509

-Aircraft.  N 35

   July    2001      A320-200    1523

-Aircraft.  N 45

   October    2001      A319-100    1575

-Aircraft.  N 39

   June    2002      A320-200    1624

-Aircraft.  N 41

   October    2002      A320-200    1676

-Aircraft.  N 42

   December    2002      A320-200    1730

-Aircraft.  N 22

   June    2003      A319-100    1934

-Aircraft.  N 23

   September    2003      A320-200    2084

-Aircraft.  N 24

   November    2003      A320-200    2102

-Aircraft.  N 25

   November    2003      A319-100    1952

-Aircraft.  N 26

   November    2003      A320-200    2118

A320 Family - TAI - AMDT 14-02/06

CCC No 337.0010/06    6/11   

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


-Aircraft. N 46

   October    2004      A320-200    2282

-Aircraft.  N 47

   November    2004      A320-200    2301

-Aircraft.  N 12

   November    2004      A319-100    2339

-Aircraft.  N 15

   April    2005      A319-100    2444

-Aircraft.  N 43

   May    2005      A320-200    2434

-Aircraft.  N 16

   September    2005      A321-200    2553

-Aircraft.  N 44

   November    2005      A321-200    2610

-Aircraft.  N 17

   February    2006      A319-100    2657

-Aircraft.  N 18

   February    2006      A319-100    2666

-Aircraft.  N 36

   February    2006      A321-200    2722

-Aircraft.  N 19

   March    2006      A321-200    2791

-Aircraft.  N 37

   May    2006      A320-200    TBD

-Aircraft.  N 20

   October    2006      A320-200    TBD

-Aircraft.  N 21

   February    2007      A320-200    TBD

-Aircraft.  N 38

   March    2007      A319-100    TBD

-Aircraft.  N 48

   April    2007      A320-200    TBD

-Aircraft.  N 49

   April    2007      A320-200    TBD

-Aircraft.  N 50

   June    2007      A320-200    TBD

-Aircraft.  N 51

   July    2007      A320-200    TBD

-Aircraft.  N 52

   January    2008      A320-200    TBD

-Aircraft.  N 53

   March    2008      A320-200    TBD

-Aircraft.  N 54

   June    2008      A320-200    TBD

-Aircraft.  N 55

   July    2008      A320-200    TBD

-Aircraft.  N 56

   August    2008      A320-200    TBD

-Aircraft.  N 57

   August    2008      A320-200    TBD

-Aircraft.  N 58

   April    2009      A320-200    TBD

-Aircraft.  N 59

   April    2009      A321-200    TBD

-Aircraft.  N 60

   September    2009      A320-200    TBD

-Aircraft.  N 61

   September    2009      A319-100    TBD

UNQUOTE

 

4. [*]

A320 Family - TAI - AMDT 14-02/06

CCC No 337.0010/06    7/11   

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


[*]

 

5. AIRMAN (AIRcraft Maintenance ANalysis)

The Seller has developed the AIRMAN software dedicated to maintenance operations for new aircraft equipped with an on-board monitoring function.

AIRMAN’s data analysis, synthesis and presentation provides:

- simpler, more effective troubleshooting,

- preventive maintenance recommandations,

- more effective engineering support,

The result is:

- improved aircraft Dispatch Reliability,

- reduced operational costs, and

- reduced maintenance costs.

[*]

 

6. ADOC (Airbus Documentation On-line Consultation)

For the purpose of the Buyer’s managing the technical Data content to fit with its requirements, [*]

 

6.1 ADOC Job Card Package

The Seller will provide the source data in SGML format. From the SGML documentation the Buyer builds its own formatted data for production of Job cards using standard Airbus Job Cards models. In addition to the above Customized Job card models can be developed from Buyer’s specifications.

The ADOC Job Card Package delivery includes:

 

  o 1 pre-installed SUN server,

 

  o one ADOC Job Card Publisher license,

 

  o one set of formatted data built from the latest revision of the Airline’s

A320 Family - TAI - AMDT 14-02/06

CCC No 337.0010/06    8/11   

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


AMM,

 

  CJ the Airbus Standard Job Card model,

 

  CJ [*] on-site assistance for entry into service,

Maintenance of the SUN server must be contracted locally with a local SUN dealer.

 

6.2 ADOC consultation Package

The Seller shall provide to the Buyer the ADOC consultation Package. The ADOC consultation package makes possible to distribute the data through intranet Extranet or Internet. The ADOC Consultation Packages contain:

 

  CJ 1 pre-installed SUN server

 

  CJ License for [*] of concurrent users (to be used on PC hardware):

 

  CJ A319/A320/A321 parameterization files for AMM, IPC, ASM, AWM, AWL, ESPM, TSM

 

  CJ Interactive guided Airbus trouble shooting module

 

  CJ [*]) on-site installation, training and assistance to entry into service

 

  CJ [*] Maintenance service from the installation date

 

  CJ Air tickets for installation and on-site assistance shall be borne by the Buyer.

 

6.3 AirNav and/or ADOC Navigator Based Consultation

The affected Technical Data under AirNav 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 Navigator browser are:

Engineering Documentation Combined Index

Engineering Drawings Parts Usage

Engineering Drawings Parts List

The licence to use AirNav and/or ADOC Navigator based products shall be granted free of charge for the Aircraft until six years after Delivery of the last firm Aircraft covered under the Purchase Agreement. At the end of such period, the use shall remain free, but the yearly revision service for AirNav

A320 Family - TAI - AMDT 14-02/06

CCC No 337.0010/06    9/11   

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


and/or ADOC Navigator based products shall be provided to the Buyer at the standard commercial conditions set forth in the then current Seller’s Customer Services Catalogue.

 

7. [*]

Letter Agreement No 12 [*] to the Purchase Agreement, signed between the Buyer and the Seller, dated February 25, 2005 is hereby terminated and canceled in its entirely.

Appendix 1 to Exhibit A to the Purchase Agreement (relating to the A319-100 Aircraft) is hereby deleted and replaced by Exhibit A 1 attached hereto.

Appendix 1 to Exhibit A to the Purchase Agreement (relating to the A320-200 Aircraft) is hereby deleted and replaced by Exhibit A2 attached hereto.

Appendix 1 to Exhibit A to Letter Agreement No 6 to the Purchase Agreement (relating to the A321-200 Aircraft) is hereby deleted and replaced by Exhibit A3 attached hereto.

[*]

 

8. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall continue in full force and effect except as expressly modified by this Amendment No 14.

In case of any inconsistency between this Amendment No 14 and the Purchase Agreement, this Amendment No 14 shall prevail.

This Amendment No 14 together with the Purchase Agreement, its Exhibits and Letter Agreements and amendments to date contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 14 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 14 shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives.

A320 Family - TAI - AMDT 14-02/06

CCC No 337.0010/06    10/11   

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


This Amendment No 14 shall be governed by and construed in accordance with the laws of France.

IN WITNESS WHEREOF this Amendment No 14 was entered into the day and year above written.

 

For and on behalf of     For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED       

By:

 

Its:

 

LOGO

   

By:

 

Its:

   LOGO
        

A320 Family - TAI - AMDT 14-02/06

CCC No 337.0010/06    11/11   

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


AIRBUS S.A.S.

*[Eight page has been omitted in accordance with a request for confidential treatment.]

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

Exhibit 10.5.15

AMENDMENT No. 15

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AND

AIRBUS S.A.S.

 

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

A320 Family - TAI - AMDT 15 - 06/06   FINAL
CCC No 337.0030/07   1/6


AMENDMENT No 15

This Amendment No 15 to the A320 Family Purchase Agreement dated as of March 19, 1998 between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the              day of June, 2007.

BETWEEN

AIRBUS S.A.S., a société par actions simplifiée , formerly known as Airbus 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 (hereinafter referred to as the “ Seller ” or “AIRBUS” ),

AND

ATLANTIC AIRCRAFT HOLDING LIMITED , having its principal office at c/o the Winterbothan Trust Company Limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “ Buyer ” or “AAH” ).

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements, as the “Purchase Agreement”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

B - The Buyer and the Seller have entered into Amendment No 1 to the Purchase Agreement dated September 9, 1998, covering the [*] two (2) Firm A319-100 Aircraft (on December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into Amendment No 2 to the Purchase Agreement dated December 28, 1999 covering:

(i) The [*] A320-200 Aircraft into firm orders and the [*] A320-200 Aircraft, and

(ii) the [*] A320-200 Aircraft with [*] Firm A320-200 Aircraft.

 

D - [*]. Simultaneously, the Buyer and the Seller have entered into Amendment No 3 to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

A320 Family - TAI - AMDT 15 - 06/06   FINAL
CCC No 337.0030/07   2/6


E - The Buyer and the Seller have entered into signed Amendment No 4 to the Purchase Agreement dated February 15, 2000 covering:

 

  (i) the [*] A320-200 Aircraft [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into Amendment No 5 to the Purchase Agreement dated April 6, 2001 covering:

 

  (i) the [*] A320-200 Aircraft [*] Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*] (Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31 [*]).

 

  (iii) The [*] A320-200 Aircraft [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft [*] (Firm No 44) [*] A319-100 Aircraft (Firm No 32 [*]).

 

G - The Buyer and the Seller have entered into Amendment No 6 to the Purchase Agreement dated April 9, 2001 covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] to an A320-200 Aircraft [*]

 

H - [*]

 

I - [*]

 

J - The Buyer and the Seller have entered into Amendment No 9 to the Purchase Agreement dated December 6, 2002 covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into Amendment No 10 to the Purchase Agreement dated October 30, 2003 covering the rescheduling of the Delivery Date of firm A320-200 Aircraft No 46 and 47 respectively from May and June 2004 to October and November 2004.

 

L - The Buyer and the Seller have entered into Amendment No 11 to the Purchase Agreement dated November 18, 2004 covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] stated in paragraph 1 of Letter Agreement No 1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into Amendment No 12 to the Purchase Agreement dated November 18, 2004 covering:

 

  (i) the [*] of Aircraft No 44, 17, 37 [*] A320 [*] A321 [*] and No 18, 36 and 21 [*] A320 [*] A319 [*]

 

     [*]

 

N - The Buyer and the Seller have entered into Amendment No 13 to the Purchase Agreement dated November 18, 2004, covering:

 

     [*]

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

A320 Family - TAI - AMDT 15 - 06/06   FINAL
CCC No 337.0030/07   3/6


O  - The Buyer and the Seller have entered into Amendment No 14 to the Purchase Agreement dated February 28, 2006, covering:

 

  (i) [*] AIRMAN software,

 

  (ii) ADOC Job Cards Package, ADOC Consultation Package, and AirNav and/or ADOC Navigator Based Consultation

 

  (iv) [*].

 

P  - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 14, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

A320 Family - TAI - AMDT 15 - 06/06   FINAL
CCC No 337.0030/07   4/6


1. DEFINITIONS

Capitalized terms used herein and not otherwise defined in this Amendment shall have the meanings assigned thereto in the Purchase Agreement.

 

2. SCOPE

The scope of this Amendment No 15 is to amend certain provisions of the Purchase Agreement, to provide the Buyer [*]

 

3. [*]

 

3.2 [*]

 

4. [*]

 

5. [*]

 

6. [*]

 

7. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall continue in full force and effect except as expressly modified by this Amendment No 15.

In case of any inconsistency between this Amendment No 15 and the Purchase Agreement, this Amendment No 15 shall prevail.

This Amendment No 15 together with the Purchase Agreement, its Exhibits and Letter Agreements and amendments to date contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 15 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 15 shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives.

This Amendment No 15 shall be governed by and construed in accordance with the laws of France.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

A320 Family - TAI - AMDT 15 - 06/06   FINAL
CCC No 337.0030/07   5/6


IN WITNESS WHEREOF this Amendment No 15 was entered into the day and year above written.

 

For and on behalf of    For and on behalf of
ATLANTIC AIRCRAFT HOLDING    AIRBUS S.A.S.
LIMITED   
By:    By:
Its:    Its:

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

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CCC No 337.0030/07   6/6

Exhibit 10.5.16

AMENDMENT No. 16

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AND

AIRBUS S.A.S.

 

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   1/38  


AMENDMENT No 16

This Amendment No 16 to the A320 Family Purchase Agreement dated as of March 19, 1998 between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the     day of November, 2007.

BETWEEN

AIRBUS S.A.S., a société par actions simplifiée , formerly known as Airbus 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 (hereinafter referred to as the “ Seller ” or “AIRBUS” ),

AND

ATLANTIC AIRCRAFT HOLDING LIMITED , having its principal office at c/o the Winterbothan Trust Company Limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “Buyer ” or “AAH” ).

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements, as the “Purchase Agreement”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

B - The Buyer and the Seller have entered into Amendment No 1 to the Purchase Agreement dated September 9, 1998, covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into Amendment No 2 to the Purchase Agreement dated December 28, 1999 covering:

 

  (i) The [*] A320-200 Aircraft and the [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

D - [*]. Simultaneously, the Buyer and the Seller have entered into Amendment No 3 to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

E - The Buyer and the Seller have entered into signed Amendment No 4 to the Purchase Agreement dated February 15, 2000 covering:

 

  (i) the [*] A320-200 Aircraft [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A319-100 Aircraft.

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   2/38  


F - The Buyer and the Seller have entered into Amendment No 5 to the Purchase Agreement dated April 6, 2001 covering:

 

  (i) the [*] A320-200 Aircraft [*] (Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*] (Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31[*]).

 

  (iii) The [*] A320-200 Aircraft [*] Firm No 43) and the [*] of such [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft [*] (Firm No 44) [*] Firm A319-100 Aircraft (Firm No 32[*]).

 

G - The Buyer and the Seller have entered into Amendment No 6 to the Purchase Agreement dated April 9, 2001 covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] to an A320-200 Aircraft [*]

 

H - [*]

 

I  - [*]

 

J - The Buyer and the Seller have entered into Amendment No 9 to the Purchase Agreement dated December 6, 2002 covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into Amendment No 10 to the Purchase Agreement dated October 30, 2003 covering the rescheduling of the Delivery Date of firm A320-200 Aircraft No 46 and 47 respectively from May and June 2004 to October and November 2004.

 

L - The Buyer and the Seller have entered into Amendment No 11 to the Purchase Agreement dated November 18, 2004 covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] stated in paragraph 1 of Letter Agreement No 1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into Amendment No 12 to the Purchase Agreement dated November 18, 2004 covering:

 

  (i) the [*] of Aircraft No 44, 17, 37 [*] A320 [*] A321 [*] and No 18, 36 and 21 [*] A320 [*] A319 [*]

 

     [*]

 

N - The Buyer and the Seller have entered into Amendment No 13 to the Purchase Agreement dated November 18, 2004, covering:
     [*]

 

O - The Buyer and the Seller have entered into Amendment No 14 to the Purchase Agreement dated February 28, 2006, covering:

 

  (i) [*] AIRMAN software,

 

  (ii) ADOC Job Cards Package, ADOC Consultation Package, and AirNav and/or ADOC Navigator Based Consultation

 

  (iv) [*].

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   3/38  


P - The Buyer and the Seller have entered into Amendment No 15 to the Purchase Agreement dated June 22, 2007, covering:

[*]

 

Q - The Buyer and the Seller have entered into a Letter of Intent dated June 22, 2007 covering the order of [*] additional A319-100 aircraft and [*] additional A320-200 and in furtherance of such Letter of Intent wish to enter into this Amendment No 16 (the “ Amendment No 16 ”).

 

R - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 15, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   4/38  


1. DEFINITIONS

Capitalized terms used herein and not otherwise defined in this Amendment No 16 shall have the meanings assigned thereto in the Purchase Agreement.

 

2. SCOPE

The Seller shall sell and deliver and the Buyer shall buy and take delivery of [*] additional A319-100 and [*] additional A320-200 Aircraft upon the terms and conditions contained in this Amendment No 16 (hereinafter for the purposes of this Amendment No 16 collectively the “2007 Aircraft” or individually the “2007 A319 Aircraft”, the “2007 A320 Aircraft” and/or the “2007 A321 Aircraft”). Except as otherwise expressly provided herein , the term “Aircraft” when used in the Purchase Agreement shall be construed to include the 2007 Aircraft).

 

3 2007 AIRCRAFT DEFINITION

 

3.1 Notwithstanding Clause 1 of the Purchase Agreement, the 2007 Aircraft shall be manufactured in accordance with the Standard Specification document (the “ Standard Specification ”) covering the following design weights:

 

Aircraft

Type

  

Specification Document
Reference

  

MTOW

  

MLW

  

MZFW

A319-100

   [*]    [*]    [*]    [*]

A320-200

   [*]    [*]    [*]    [*]

A321-200

   [*]    [*]    [*]    [*]

 

3.2 Engines

 

3.2.1 Notwithstanding Clause 1 of the Purchase Agreement, the 2007 Aircraft shall be equipped with a set of two (2) of the following series engines (the “Engines”) manufactured by one of the following Engines manufacturers CFM INTERNATIONAL or INTERNATIONAL AERO ENGINES ( “IAE” ):

 

Aircraft Type

 

CFM

    

PW / IAE

A319-100   CFM56-[*]      IAE V2524-A5 ([*]
A320-200   CFM56-[*]      IAE V2527E-A5[*]
A321-200   CFM56-[*]      AE V2533-A5 ([*]

 

A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   5/38  


3.2.2 The Engine manufacturer and model shall be selected in one time for the 2007 Aircraft, [*] Aircraft to be delivered, as set forth in Clause 4.1 of this Amendment No 16.

 

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CCC No 337.0046/07   6/38  


4 DELIVERY

 

4.1 Subject to the provisions of Clauses 2, 7, 8, 10 and 18 of the Purchase Agreement, the Seller shall have the 2007 Aircraft ready for delivery to the Buyer at the 2007 Aircraft final assembly line according to the following schedule:

 

- 2007 Aircraft No 62    A319    4th Quarter 2011
- 2007 Aircraft No 63    A320    4th Quarter 2011
- 2007 Aircraft No 64    A319    1st Quarter 2012
- 2007 Aircraft No 65    A320    1st Quarter 2012
- 2007 Aircraft No 66    A320    2nd Quarter 2012
- 2007 Aircraft No 67    A320    2nd Quarter 2012
- 2007 Aircraft No 68    A320    3rd Quarter 2012
- 2007 Aircraft No 69    A320    3rd Quarter 2012
- 2007 Aircraft No 70    A320    4th Quarter 2012
- 2007 Aircraft No 71    A319    4th Quarter 2012

[*]

 

4.2 The Seller shall notify the Buyer in writing, [*] of the scheduled delivery quarter for each 2007 Aircraft, of the scheduled delivery month for such 2007 Aircraft.

 

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CCC No 337.0046/07   7/38  


5 2007 AIRCRAFT PRICE

 

5.1 Basic Price of the 2007 Aircraft

Notwithstanding Clause 3 of the Purchase Agreement, the Basic Price of the 2007 Aircraft is the sum of:

 

   

the Basic Price of the Airframe as defined in Clause 5.1.1 and

 

   

the Basic Price of the Engines as defined in Clause 5.1.2

and is exclusive of any variation resulting from price revision provisions and other provisions of this Amendment No 16.

Clause 4 of the Purchase Agreement shall not apply to the 2007 Aircraft and is replaced by Appendixes No 1 to 3

 

5.1.1 Basic Price of the Airframe

The basic price of the Airframe is the sum of:

 

  (i) the basic price of the Airframe, corresponding to the Standard Specification, including Nacelles and Thrust Reversers, and excluding Buyer Furnished Equipment , which is:

 

  USD   [*]    for 2007 A319 Aircraft   
  USD   [*]    for 2007 A320 Aircraft   
  USD   [*]    for 2007 A321 Aircraft   

at economic conditions prevailing for a [*]

(ii) the sum of the basic prices of all SCNs set forth in Appendix 5 to this Amendment No 6, which is :

 

  USD   [*]    for 2007 A319 Aircraft   
  USD   [*]    for 2007 A320 Aircraft   
  USD   [*]    for 2007 A321 Aircraft   

All basic prices are expressed in United States Dollars (USD) at [*] and are subject to adjustment in accordance with the Seller’s Price Revision Formula as set forth in Appendix 1 of this Amendment No 16.

 

5.1.2 Basic Price of the Engines

The basic price of the Engines shall be, as applicable pursuant to Clauses 5.1.2.1 or 5.1.2.2, the basic price of the Engines selected by Buyer.

 

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   8/38  


5.1.2.1 The basic price of a set of two (2) CFM INTERNATIONAL Engines

 

  CFM56-[*]    USD[*]    for 2007 A319 Aircraft
  CFM56-[*]    USD[*]    for 2007 A320 Aircraft
  CFM56-[*]    USD[*]    for 2007 A321 Aircraft

at economic conditions prevailing for a [*]

Such basic prices have been computed from the Reference Prices of :

 

 CFM56-[*]:        

  USD [*]   

CFM56-[*]         

  USD [*]   

CFM56-[*]         

  USD [*]   

The Reference Prices have been established in accordance with the [*] and shall be subject to revision up to the 2007 Aircraft delivery date in accordance with the CFM INTERNATIONAL Price Revision Formula as set forth in Appendix 2 of this Amendment No 16.

 

5.1.2.2 The basic price for a set of two (2) IAE Engines is :

 

     IAE V2524[*]   USD[*]    for 2007 A319 Aircraft   
     IAE V2527E-[*]   USD[*]    for 2007 A320 Aircraft   
     IAE V2533-[*]   USD[*]    for 2007 A321 Aircraft   

at economic conditions prevailing for a [*]

Such base price have been computed from the Reference Prices of :

 

  IAE V2524-[*]    USD[*]   
  IAE V2527E-[*]    USD[*]   
  IAE V2533-[*]    USD[*]   

at [*] and shall be subject to revision up to the 2007 Aircraft delivery date in accordance with the INTERNATIONAL AERO ENGINES Price Revision Formula as set forth in Appendix 3 of this Amendment No 16.

 

5.1.2.3 It is understood that the above-mentioned quotations of Engine Basic Prices as well as Engine Manufacturer Price Revision Formulae as set forth in Appendixes 2 and 3 of this Amendment No 16 are based upon information received from the respective Engine Manufacturers and remain subject to any modification that might be imposed by the Engine Manufacturers on the Seller and/or the Buyer.

 

5.2 Final Price of the 2007 Aircraft

The Final Price of each 2007 Aircraft at delivery shall be the sum of:

 

  (i) the respective Basic Price of the Airframe as defined above and adjusted to the date of each 2007 Aircraft delivery in accordance with the Seller’s Price Revision Formula;

 

  (ii) the basic prices of all SCNs mutually agreed upon before or after signature of this Amendment No 16 and adjusted to the date of each 2007 Aircraft delivery in accordance with the Seller’s Price Revision Formula;

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   9/38  


  (iii) the relevant Basic Price of the Engines for the 2007 Aircraft, as quoted by the Engine Manufacturer(s) to the Seller and adjusted to the date of each 2007 Aircraft delivery in accordance with the Engine Manufacturers’ Price Revision Formula;

 

  (iv) and, as the case may be, any amount resulting from any other provisions of the Purchase Agreement or of this Amendment No 16 and/or any other written agreement between the Buyer and the Seller.

 

6 PAYMENT TERMS

 

6.1 [*]

Predelivery payments theoretically falling due before signature of this Amendment No 16 shall be paid in December 19 th , 2007.

 

6.3 [*]

 

6.4 Balance of the Final Price of the 2007 Aircraft

The Final Price of the 2007 Aircraft less the total amount of predelivery payments received by the Seller shall be paid to the Seller immediately prior to delivery of the respective 2007 Aircraft and upon receipt of Seller’s invoice.

 

6.5 AIRBUS Bank Account

All predelivery payments shall be paid by the Buyer, to such bank account as may be designated by the Seller [*]

 

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   10/38  


7 CUSTOMER SERVICES

In order to facilitate the entry into service and the operation of the 2007 Aircraft, the Seller will provide the following services [*] the 2007 Aircraft.

 

  - [*] Technical Representative services at the Buyer’s main base or at other locations to be mutually agreed, acting in an advisory capacity until [*] of the 2007 Aircraft and in any case [*]. This service will [*] 2007 Aircraft and [*] the obligation to provide one Technical Representative as already offered by the Seller to the Buyer.

 

  - [*] Flight Crew Transition training courses per 2007 Aircraft; each of which shall consist of one captain (1) and one (1) first officer;

 

  - [*] Type Rating Instructor training courses ;

 

  - [*] instructor-months of Flight Crew Initial Operating Experience training, in order to assist the Buyer with initial operating experience after delivery of the first 2007 Aircraft;

 

  - [*] Cabin Attendant Transition Training for up to [*] of the Buyer’s instructors;

 

  - [*] ) maintenance trainee days for the Buyer’s ground personnel;

 

  - [*] ) trainee days for Performance and Operations for the Buyer's personnel.

 

  - [*] ) Airbus Computer-Base Training courseware including standard CBT license for [*], subject to signature by both the Buyer of appropriate licensing conditions .

 

  - [*] man-weeks of Line Maintenance Initial Operating Experience Training

 

  - [*] revision service for technical documentation defined in the Appendix 6 [*] 2007 Aircraft.

 

  - [*]

 

  - AIRMAN license and revision service [*] 2007 Aircraft, [*] the 2007 Aircraft, subject to signature by both the Buyer of appropriate licensing conditions.

 

  - [*] AirbusWorld will enable on-line consultation of the Technical Data through the Secure Area of the Airbus customer portal. Access to the Secure Area shall be subject to the “General Terms and Conditions of Access to and Use of the Secure Area of Airbus|World” to be signed by the Buyer.

 

  - [*] of spares representative on-site, [*] - 2007 Aircraft.

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   11/38  


  - [*] Terms and conditions for the delivery, support and use of the [*] by the Buyer will be subject to a separate agreement to be entered between the Buyer and the Seller. License conditions for the use of the virtual cockpit simulation software to be installed in the M/FTD 2D shall be agreed directly between the Buyer and CAE Inc .

[*]

With respect to software services, including CBT and Airman as well as access to AirbusWorld, the Buyer shall sign appropriate licensing conditions with the Seller.

[*]

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   12/38  


8 SPECIAL CONDITIONS

*[Seven page has been omitted in accordance with a request for confidential treatment.]

 

 
  13/38  


10. [*]

 

12. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall remain in full force and effect and shall apply to this Amendment No 16 except as expressly modified by this Amendment No 16.

In case of any inconsistency between this Amendment No 16 and the Purchase Agreement, this Amendment No 16 shall prevail.

This Amendment No 16 together with the Purchase Agreement, its Exhibits and Letter Agreements and amendments to date contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 16 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 16 shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives.

This Amendment No 16 shall be governed by and construed and performance thereof shall be determined in accordance with the laws of France.

IN WITNESS WHEREOF this Amendment No 16 was entered into the day and year above written.

 

For and on behalf of    For and on behalf of
ATLANTIC AIRCRAFT HOLDING    AIRBUS S.A.S.
LIMITED   
By :    By :
Its :    Its :

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   14/38  


APPENDIX 1   

SELLER’S PRICE REVISION FORMULA

1                  *[Fifteen page has been omitted in accordance with a request for confidential treatment.]

  
  

4                 

  

 

 
  15/38  


APPENDIX 6

TECHNICAL DATA INDEX

Where applicable data will be established in general compliance with ATA Specification 2200 ( i Spec2200), Information Standards for Aviation Maintenance

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 made available :

 

- ON-LINE (ON) through the relevant service on Airbus|World,

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 Technical Data formats may be used:

 

- SGML—Standard Generalized Mark-up Language, which allows further data processing by the Buyer.

 

- XML – Extensible Mark-up Language, evolution of the SGML text format to cope with WEB technology requirements.

 

- CGM – Computer Graphics Metafile, format of the interactive graphics associated with the XML and /or SGML text file delivery .

 

- PDF (PDF)—Portable Document Format allowing data consultation.

 

- Advanced Consultation Tool— refers to Technical Data Consultation application that offers advanced consultation & navigation functionality compared to 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.

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   16/38  


APPENDIX 6

 

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 scheduled delivery dates and is expressed in either the number of corresponding days prior to first Aircraft 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.

 

 

[*] A320 Family - TAI - AMDT 16 - 11/07  
CCC No 337.0046/07   17/38  


APPENDIX 6

*[Eleven page has been omitted in accordance with a request for confidential treatment.]

 

 
  18/38  

Exhibit 10.5.17

AMENDMENT No. 17

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AND

AIRBUS S.A.S.

 

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 17

Ref: CT0801624

1/7


AMENDMENT No 17

This Amendment No 17 to the A320 Family Purchase Agreement dated as of March 19, 1998 between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the day of            April, 2008.

BETWEEN

AIRBUS S.A.S., a société par actions simplifiée , formerly known as Airbus 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 (hereinafter referred to as the “ Seller ” or “AIRBUS” ),

AND

ATLANTIC AIRCRAFT HOLDING LIMITED , having its principal office at c/o the Winterbothan Trust Company Limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “ Buyer ” or “AAH” ).

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements, as the “Purchase Agreement”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

B - The Buyer and the Seller have entered into Amendment No 1 to the Purchase Agreement dated September 9, 1998, covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into Amendment No 2 to the Purchase Agreement dated December 28, 1999 covering:

 

  (i) The [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

D - [*] Simultaneously, the Buyer and the Seller have entered into Amendment No 3 to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

E - The Buyer and the Seller have entered into signed Amendment No 4 to the Purchase Agreement dated February 15, 2000 covering:

 

  (i) the [*] A320-200 Aircraft [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into Amendment No 5 to the Purchase Agreement dated April 6, 2001 covering:

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 17

Ref: CT0801624

2/7


  (i) the [*] A320-200 Aircraft [*] Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*] (Firm No 42) with [*] Firm A319-100 Aircraft (Firm No 31 [*]

 

  (iii) The [*] A320-200 Aircraft [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft [*] (Firm No 44) with [*] Firm A319-100 Aircraft (Firm No 32 [*]

 

G - The Buyer and the Seller have entered into Amendment No 6 to the Purchase Agreement dated April 9, 2001 covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft [*]

 

H - [*]

 

I - [*]

 

J - The Buyer and the Seller have entered into Amendment No 9 to the Purchase Agreement dated December 6, 2002 covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into Amendment No 10 to the Purchase Agreement dated October 30, 2003 covering the rescheduling of the Delivery Date of firm A320-200 Aircraft No 46 and 47 respectively from May and June 2004 to October and November 2004.

 

L - The Buyer and the Seller have entered into Amendment No 11 to the Purchase Agreement dated November 18, 2004 covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] stated in paragraph 1 of Letter Agreement No 1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into Amendment No 12 to the Purchase Agreement dated November 18, 2004 covering:

 

  (i) the [*] of Aircraft No 44, 17, 37 [*] A320 [*] A321 [*] and No 18, 36 and 21 [*] A320 [*] A319 [*],

 

  (ii) [*],

 

  (iii) [*].

 

N - The Buyer and the Seller have entered into Amendment No 13 to the Purchase Agreement dated November 18, 2004, covering:

[*]

 

O - The Buyer and the Seller have entered into Amendment No 14 to the Purchase Agreement dated February 28, 2006, covering:

 

  (i) [*],

 

  (ii) AIRMAN software,

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 17

Ref: CT0801624

3/7


  (iii) ADOC Job Cards Package, ADOC Consultation Package, and AirNav and/or ADOC Navigator Based Consultation

 

  (iv) [*].

 

P - The Buyer and the Seller have entered into Amendment No 15 to the Purchase Agreement dated June 22, 2007, covering:

[*]

 

Q - The Buyer and the Seller have entered into Amendment No 16 to the Purchase Agreement dated November 22, 2007, covering the order of three (3) additional A319-100 aircraft and twelve (12) additional A320-200 (the “ Amendment No. 16 ”).

 

R - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 16, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 17

Ref: CT0801624

4/7


1. DEFINITIONS

Capitalized terms used herein and not otherwise defined in this Amendment No. 17 shall have the meanings assigned thereto in the Purchase Agreement.

 

2. SCOPE

The scope of this Amendment No 17 is to amend certain provisions of the Purchase Agreement, to provide the Buyer with [*].

 

3. [*]

As of the date of this Amendment No. 17, Clause 8.3 to the Amendment No 16 is deleted in its entirety and replaced with the following quoted text:

QUOTE

8.3

[*]

UNQUOTE

 

4. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall remain in full force and effect and shall apply to this Amendment No 17 except as expressly modified by this Amendment No 17.

In case of any inconsistency between this Amendment No 17 and the Purchase Agreement, this Amendment No 17 shall prevail.

This Amendment No 17 together with the Purchase Agreement, its Exhibits and Letter Agreements and amendments to date contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 17 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 17

Ref: CT0801624

5/7


No 17 shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives.

This Amendment No 17 shall be governed by and construed and performance thereof shall be determined in accordance with the laws of France.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 17

Ref: CT0801624

6/7


IN WITNESS WHEREOF this Amendment No 17 was entered into the day and year above written.

 

For and on behalf of     For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED     AIRBUS S.A.S.
By:       By:  
Its:       Its  

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 17

Ref: CT0801624

7/7

Exhibit 10.5.18

AMENDMENT No. 18

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AND

AIRBUS S.A.S.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 18

version 07 Jan 09

Ref: CT0803226

1/7


AMENDMENT No 18

This Amendment No 18 to the A320 Family Purchase Agreement dated as of March 19, 1998 (hereinafter referred to as the “Amendment No 18”) between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the day of             , 2009.

BETWEEN

AIRBUS S.A.S., a société par actions simplifiée , formerly known as Airbus 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 (hereinafter referred to as the “ Seller ” or “AIRBUS” ),

AND

ATLANTIC AIRCRAFT HOLDING LIMITED , having its principal office at c/o the Winterbotham Trust Company Limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “ Buyer ” or “AAH” ).

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements, as the “Purchase Agreement”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32.

 

B - The Buyer and the Seller have entered into Amendment No 1 to the Purchase Agreement dated September 9, 1998, covering the [*] Firm A319-100 Aircraft (on December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into Amendment No 2 to the Purchase Agreement dated December 28, 1999 covering:

 

  (i) The [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

D - [*] Simultaneously, the Buyer and the Seller have entered into Amendment No 3 to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

E - The Buyer and the Seller have entered into signed Amendment No 4 to the Purchase Agreement dated February 15, 2000 covering:

 

  (i) the [*] A320-200 Aircraft [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into Amendment No 5 to the Purchase Agreement dated April 6, 2001 covering:

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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  (i) the [*] A320-200 Aircraft [*] Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*]) Firm A319-100 Aircraft (Firm No 31 [*].

 

  (iii) The [*] A320-200 Aircraft Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft ( [*] Firm No 44) Firm A319-100 Aircraft (Firm No 32 [*].

 

G - The Buyer and the Seller have entered into Amendment No 6 to the Purchase Agreement dated April 9, 2001 covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft [*]

 

H - [*]

 

I - [*]

[*]

 

J - The Buyer and the Seller have entered into Amendment No 9 to the Purchase Agreement dated December 6, 2002 covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into Amendment No 10 to the Purchase Agreement dated October 30, 2003 covering the rescheduling of the Delivery Date of firm A320-200 Aircraft No 46 and 47 respectively from May and June 2004 to October and November 2004.

 

L - The Buyer and the Seller have entered into Amendment No 11 to the Purchase Agreement dated November 18, 2004 covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] stated in paragraph 1 of Letter Agreement No 1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into Amendment No 12 to the Purchase Agreement dated November 18, 2004 covering:

 

  (i) the [*] of Aircraft No 44, 17, 37 [*] A320 [*] A321 [*] and No 18, 36 and 21 from A320 type to A319 type,

 

  (ii) [*].

 

N - [*]

 

O - The Buyer and the Seller have entered into Amendment No 14 to the Purchase Agreement dated February 28, 2006, covering:

 

  (i) [*],

 

  (ii) AIRMAN software,

 

  (iii) ADOC Job Cards Package, ADOC Consultation Package, and AirNav and/or ADOC Navigator Based Consultation

 

  (iv) [*].

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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P - [*]

 

Q - The Buyer and the Seller have entered into Amendment No 16 to the Purchase Agreement dated November 22, 2007, covering the order of three (3) additional A319-100 aircraft and twelve (12) additional A320-200 aircraft.

 

R -

The Buyer and the Seller have entered into Amendment No 17 to the Purchase Agreement dated April 1 st , 2008, to amend certain provisions of the Purchase Agreement (the “ Amendment No. 17 ”).

 

S - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 17, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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1. DEFINITIONS

Capitalized terms used herein and not otherwise defined in this Amendment No. 18 shall have the meanings assigned thereto in the Purchase Agreement.

 

2. SCOPE

The scope of this Amendment No 18 is to postpone Aircraft with rank numbers 60 and 61.

 

3. [*] OF DELIVERY DATES

The Buyer and the Seller wish to [*] the delivery dates of the Aircraft below:

 

Aircraft No.

 

Aircraft type

 

CAC ID

 

[*] Delivery

Date

 

[*] Delivery

Date

60

  A320-200   189054   September 2009   [*]

61

  A319-100   189055   September 2009   [*]

The Seller shall notify the Buyer in writing, [*] to of the scheduled delivery quarter for each Aircraft, of the scheduled delivery month for such Aircraft.

 

4. PREDELIVERY PAYMENTS

 

4.1 [*].

 

5. [*]

 

6. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall remain in full force and effect and shall apply to this Amendment No 18 except as expressly modified by this Amendment No 18.

In case of any inconsistency between this Amendment No 18 and the Purchase Agreement, this Amendment No 18 shall prevail.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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This Amendment No 18 together with the Purchase Agreement, its Exhibits and Letter Agreements and amendments to date contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 18 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 18 shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives.

This Amendment No 18 shall be governed by and construed and performance thereof shall be determined in accordance with the laws of France.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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IN WITNESS WHEREOF this Amendment No 18 was entered into the day and year above written.

 

For and on behalf of     For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED     AIRBUS S.A.S.
By:       By:  
Its:       Its  

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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Exhibit 10.5.19

AMENDMENT No. 19

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AND

AIRBUS S.A.S.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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AMENDMENT No 19

This Amendment No 19 to the A320 Family Purchase Agreement dated as of March 19, 1998 (hereinafter referred to as the “ Amendment No 19 ”) between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the day of                     , 2009.

BETWEEN

AIRBUS S.A.S., a société par actions simplifiée , formerly known as Airbus 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 (hereinafter referred to as the “ Seller ” or “AIRBUS” ),

AND

ATLANTIC AIRCRAFT HOLDING LIMITED , having its principal office at c/o the Winterbotham Trust Company Limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “ Buyer ” or “AAH” ).

The Buyer and the Seller being together the “Parties” and each the “Party”.

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements as amended and supplemented from time to time, as the “Purchase Agreement”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32 (the “Aircraft”).

 

B - The Buyer and the Seller have entered into an amendment No 1 to the Purchase Agreement dated September 9, 1998 (the “Amendment No 1”), covering the [*] Firm A319-100 Aircraft (to December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into an amendment no 2 to the Purchase Agreement dated December 28, 1999 (the “Amendment No 2”) covering:

 

  (i) The [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

D - [*]. Simultaneously, the Buyer and the Seller have entered into an amendment no 3 (the “Amendment No 3”) to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

E - The Buyer and the Seller have entered into an amendment no 4 to the Purchase Agreement dated February 15, 2000 (the “Amendment No 4”) covering:

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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Ref: CT0900660

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  (i) the [*] A320-200 Aircraft [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into amendment no 5 to the Purchase Agreement dated April 6, 2001 (the “ Amendment No 5”) covering:

 

  (i) the [*] A320-200 Aircraft into [*] Firm No 41) and the replacement of such Option by one (1) new Option A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*] (Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31 [*]

 

  (iii) The [*] A320-200 Aircraft into firm order [*] (Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft [*] Firm No 44) [*] Firm A319-100 Aircraft (Firm No 32 [*].

 

G - The Buyer and the Seller have entered into an amendment no 6 to the Purchase Agreement dated April 9, 2001 (the “Amendment No 6”) covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft [*]

 

H - [*]

 

I - [*]

 

J - The Buyer and the Seller have entered into amendment no 9 to the Purchase Agreement dated December 6, 2002 (the “Amendment No 9”) covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into amendment no 10 to the Purchase Agreement dated October 30, 2003 (the “Amendment No 10”) covering the rescheduling of the Delivery Date of firm A320-200 Aircraft No 46 and 47 respectively from May and June 2004 to October and November 2004.

 

L - The Buyer and the Seller have entered into an amendment no 11 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 11”) covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] the [*] stated in paragraph 1 of Letter Agreement No 1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into an amendment no 12 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 12”) covering:

 

  (i) the [*] of Aircraft No 44, 17, 37 [*] A320 [*] A321 [*] and No 18, 36 and 21 [*] A320 [*] A319 [*],

 

  (ii) [*],

 

  (iii) [*].

 

N - The Buyer and the Seller have entered into an amendment no 13 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 13”), covering:

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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  (i) [*],

 

O - The Buyer and the Seller have entered into amendment no 14 to the Purchase Agreement dated February 28, 2006 (the “Amendment No 14”), covering:

 

  (i) [*],

 

  (ii) AIRMAN software,

 

  (iii) ADOC Job Cards Package, ADOC Consultation Package, and AirNav and/or ADOC Navigator Based Consultation

 

  (iv) [*].

 

P - The Buyer and the Seller have entered into amendment no 15 to the Purchase Agreement dated June 22, 2007 (the “Amendment No 15”), covering:

[*]

 

Q - The Buyer and the Seller have entered into amendment no 16 to the Purchase Agreement dated November 22, 2007 (the “Amendment No 16”), covering the order of three (3) additional A319-100 aircraft and twelve (12) additional A320-200 aircraft.

 

R -

The Buyer and the Seller have entered into amendment no 17 to the Purchase Agreement dated April 1 st , 2008 (the “Amendment No 17”), to amend certain provisions of the Purchase Agreement.

 

S -

The Buyer and the Seller have entered into amendment no 18 to the Purchase Agreement dated January 30 th , 2009 (the “Amendment No 18”), to amend certain provisions of the Purchase Agreement.

 

T - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 18, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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1. DEFINITIONS

The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment No 19 and capitalized terms used herein and not otherwise defined in this Amendment No 19 shall have the meanings assigned thereto in the Purchase Agreement.

Notwithstanding the foregoing, in addition to words and terms elsewhere defined in the Purchase Agreement and this Amendment No 19, the initially capitalised words and terms used in the Purchase Agreement shall have the meaning set out below.

 

  Delivery : means the transfer of title to the Aircraft from the Seller to the Buyer in accordance with Clause 9 to the Purchase Agreement.

 

  Delivery Date: means the date on which Delivery shall occur.

 

2. SCOPE

The scope of this Amendment No 19 is:

 

  -    to  [*] of Aircraft with rank numbers 58, 62 and 65 and amend the Scheduled Delivery Month or Quarter as the case may be in accordance thereto, and

 

  -    to  [*] by the Buyer following the rescheduling of the Scheduled Delivery Month of certain Aircraft.

 

3. [*] AND NEW DELIVERY DATES

The Buyer and the Seller wish to [*] the Aircraft [*] and revise the Scheduled Delivery Months and or Quarters as follows:

 

Aircraft

rank

number

 

CAC ID

 

[*] Aircraft

type

 

[*] Aircraft

type

 

[*] Scheduled

Delivery Month

 

[*] Scheduled

Delivery

Month/Quarter

58

  189052   A320-200   A319-100   June 2010  

(*) Between May and

July 2010

62

  262577   A319-100   A320-200   4 th Quarter 2011   (**) 4 th Quarter 2011

65

  262580   A320-200   A319-100   November 2010   (*) 4 th Quarter 2010

 

(*) The Seller shall notify the Buyer in writing, [*] of the Scheduled Delivery Month for Aircraft with rank numbers 58 and 65.

 

(**) The Seller shall notify the Buyer in writing of the Scheduled Delivery Month [*] of the Scheduled Delivery Quarter for the Aircraft with rank number 62.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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4. [*]

It is hereby acknowledged by the Buyer that,

 

  (i) the Buyer has [*] on Aircraft with rank numbers 62 and 65 and the Buyer shall [*] of Aircraft with rank numbers 62 and 65,

 

  (ii) the Seller has [*] of the Aircraft with rank number 58 from an A320-200 model Aircraft [*] A319-100 aircraft (the [*].

The Buyer shall [*] of Aircraft with rank number 58, and [*], the Parties hereby agree that [*] with respect to the Aircraft with rank number 63.

 

5. PREDELIVERY PAYMENTS

 

5.1 [*]

 

6. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall remain in full force and effect and shall apply to this Amendment No 19 except as expressly modified by this Amendment No 19.

In case of any inconsistency between this Amendment No 19 and the Purchase Agreement, this Amendment No 19 shall prevail.

This Amendment No 19 together with the Purchase Agreement, its Exhibits, Letter Agreements, and amendments to date contain the entire agreement between the parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 19 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 19 shall not be varied or modified except by an instrument in writing executed by both Parties or by their duly authorised representatives.

This Amendment No 19 shall be governed by and construed and performance thereof shall be determined in accordance with the laws of France.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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IN WITNESS WHEREOF this Amendment No 19 was entered into the day and year above written.

 

For and on behalf of     For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED     AIRBUS S.A.S.
By:       By:  
Its:       Its  

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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Exhibit 10.5.20

AMENDMENT No. 20

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AND

AIRBUS S.A.S.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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Ref: CT0906046

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AMENDMENT No 20

This Amendment No 20 to the A320 Family Purchase Agreement dated as of March 19, 1998 (hereinafter referred to as the “ Amendment No 20 ”) between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the     day of February, 2010.

BETWEEN

AIRBUS S.A.S., a société par actions simplifiée , formerly known as Airbus 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 (hereinafter referred to as the “ Seller ” or “AIRBUS” ),

AND

ATLANTIC AIRCRAFT HOLDING LIMITED , having its principal office at c/o the Winterbotham Trust Company Limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “ Buyer ” or “AAH” ).

The Buyer and the Seller being together the “Parties” and each the “Party”.

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements as amended and supplemented from time to time, as the “ Purchase Agreement ”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32 (the “Aircraft”).

 

B - The Buyer and the Seller have entered into an amendment No 1 to the Purchase Agreement dated September 9, 1998 (the “ Amendment No 1 ”), covering the [*] Firm A319-100 Aircraft (to December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into an amendment no 2 to the Purchase Agreement dated December 28, 1999 (the “ Amendment No 2”) covering:

 

  (i) The [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and
  (ii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

D - [*]. Simultaneously, the Buyer and the Seller have entered into an amendment no 3 (the “ Amendment No 3 ) to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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E - The Buyer and the Seller have entered into an amendment no 4 to the Purchase Agreement dated February 15, 2000 (the “ Amendment No 4 ”) covering:

 

  (i) the [*] A320-200 Aircraft [*] r and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into amendment no 5 to the Purchase Agreement dated April 6, 2001 (the “ Amendment No 5 ”) covering:

 

  (i) the [*] of one (1) [*] A320-200 Aircraft [*] Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*] (Firm No 42) with [*] Firm A319-100 Aircraft (Firm No 31 [*].

 

  (iii) The [*] A320-200 Aircraft into firm order [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft ([*] Firm No 44) with [*] Firm A319-100 Aircraft (Firm No 32[*]).

 

G - The Buyer and the Seller have entered into an amendment no 6 to the Purchase Agreement dated April 9, 2001 (the “ Amendment No 6”) covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft [*]

 

H - [*]

 

J - The Buyer and the Seller have entered into amendment no 9 to the Purchase Agreement dated December 6, 2002 (the “ Amendment No 9”) covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into amendment no 10 to the Purchase Agreement dated October 30, 2003 (the “ Amendment No 10”) covering the rescheduling of the Delivery Date of firm A320-200 Aircraft No 46 and 47 respectively from May and June 2004 to October and November 2004.

 

L - The Buyer and the Seller have entered into an amendment no 11 to the Purchase Agreement dated November 18, 2004 (the “ Amendment No 11”) covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] stated in paragraph 1 of Letter Agreement No 1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into an amendment no 12 to the Purchase Agreement dated November 18, 2004 (the “ Amendment No 12”) covering:

 

  (i) the [*] of Aircraft No 44, 17, 37 [*] A320 [*] A321 [*] and No 18, 36 and 21 [*] A320 [*] A319 type,

 

     [*]

 

N - The Buyer and the Seller have entered into an amendment no 13 to the Purchase Agreement dated November 18, 2004 (the “ Amendment No 13”) , covering:

 

  (i) [*],

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

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  (ii) [*].

 

O - The Buyer and the Seller have entered into amendment no 14 to the Purchase Agreement dated February 28, 2006 (the “ Amendment No 14”) , covering:

 

  (i) [*],

 

  (ii) AIRMAN software,

 

  (iii) ADOC Job Cards Package, ADOC Consultation Package, and AirNav and/or ADOC Navigator Based Consultation

 

  (iv) [*].

 

P - The Buyer and the Seller have entered into amendment no 15 to the Purchase Agreement dated June 22, 2007 (the “ Amendment No 15”) , covering:

 

     [*]

 

Q - The Buyer and the Seller have entered into amendment no 16 to the Purchase Agreement dated November 22, 2007 (the “ Amendment No 16”) , covering the order of three (3) additional A319-100 aircraft and twelve (12) additional A320-200 aircraft.

 

R -

The Buyer and the Seller have entered into amendment no 17 to the Purchase Agreement dated April 1 st , 2008 (the “ Amendment No 17”) , to amend certain provisions of the Purchase Agreement.

 

S -

The Buyer and the Seller have entered into amendment no 18 to the Purchase Agreement dated January 30 th , 2009 (the “ Amendment No 18”) , to amend certain provisions of the Purchase Agreement.

 

T -

The Buyer and the Seller have entered into amendment no 19 to the Purchase Agreement dated April 28 th , 2009 (the “ Amendment No 19”) , to amend certain provisions of the Purchase Agreement.

 

U - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 19, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 20

Ref: CT0906046

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1. DEFINITIONS

Capitalized terms used herein and not otherwise defined in this Amendment No 20 will have the meanings assigned thereto in the Purchase Agreement.

The terms “herein,” “hereof,” and “hereunder” and words of similar import refer to this Amendment No 20.

Scheduled Delivery Month means the scheduled month of Delivery of the relevant Aircraft.

Scheduled Delivery Quarter means the scheduled quarter of Delivery of the relevant Aircraft.

 

2. SCOPE

The scope of this Amendment No 20 is (i) to [*] the Scheduled Delivery Months of the Aircraft with rank numbers 58 and 65, and (ii) to extend the [*] as set forth in Amendment No 16.

 

3. [*] OF DELIVERY DATES

The Buyer and the Seller wish to [*] the delivery dates of the Aircraft below:

 

Aircraft No.

   Aircraft type      [*] Scheduled
Delivery Month
   [*]
Scheduled Delivery Quarter

58

     A319-100       July 2010    [*]

65

     A319-100       December 2010    [*]

The Seller shall notify the Buyer in writing, [*] of the Scheduled Delivery Quarter for each Aircraft, of Scheduled Delivery Month for such Aircraft.

 

4. [*]

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 20

Ref: CT0906046

5/7


5. PREDELIVERY PAYMENTS

[*]

 

6. [*]

Notwithstanding the provisions set forth in clauses 10.2 and 10.5 to Amendment No 16, the Seller agrees to delete clause 10.4 to Amendment No 16 of the Agreement in its entirety and replace it with the following quoted text:

QUOTE

10.4 [*]

UNQUOTE

 

7. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall remain in full force and effect and shall apply to this Amendment No 20 except as expressly modified by this Amendment No 20.

In case of any inconsistency between this Amendment No 20 and the Purchase Agreement, this Amendment No 20 shall prevail.

This Amendment No 20 together with the Purchase Agreement, its Exhibits, Letter Agreements, and amendments to date contain the entire agreement between the parties Parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 20 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 20 shall not be varied or modified except by an instrument in writing executed by both Parties or by their duly authorised representatives.

This Amendment No 20 shall be governed by and construed and performance thereof shall be determined in accordance with the laws of France.

 

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 20

Ref: CT0906046

6/7


IN WITNESS WHEREOF this Amendment No 20 was entered into the day and year above written.

 

 

For and on behalf of     For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED     AIRBUS S.A.S.
By:       By:  
Its:       Its  

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - AMDT 20

Ref: CT0906046

7/7

Exhibit 10.5.21

AMENDMENT No. 21

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AND

AIRBUS S.A.S.

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended A320 Family - TAI - AMDT 21

Ref: CT1004937

 

1/7


AMENDMENT No 21

This Amendment No 21 to the A320 Family Purchase Agreement dated as of March 19, 1998 (hereinafter referred to as the “ Amendment No 21 ”) between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the day of September, 2010.

BETWEEN

AIRBUS S.A.S., a société par actions simplifiée , formerly known as Airbus 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 (hereinafter referred to as the “ Seller ”)

AND

ATLANTIC AIRCRAFT HOLDING LIMITED , having its principal office at c/o the Winterbotham Trust Company Limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “ Buyer ”)

The Buyer and the Seller being together the “Parties” and each the “Party”.

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements as amended and supplemented from time to time, as the “ Purchase Agreement ”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32 (the “Aircraft”).

 

B - The Buyer and the Seller have entered into an amendment No 1 to the Purchase Agreement dated September 9, 1998 (the “ Amendment No 1 ”), covering the [*] Firm A319-100 Aircraft (to December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into an amendment no 2 to the Purchase Agreement dated December 28, 1999 (the “ Amendment No 2”) covering:

 

  (i) The [*] A320-200 Aircraft [*] and the [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

D - [*]. Simultaneously, the Buyer and the Seller have entered into an amendment no 3 (the “ Amendment No 3 ) to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

E - The Buyer and the Seller have entered into an amendment no 4 to the Purchase Agreement dated February 15, 2000 (the “ Amendment No 4 ”) covering:

 

  (i) the [*] A320-200 Aircraft [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] firm A319-100 Aircraft.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended A320 Family - TAI - AMDT 21

Ref: CT1004937

2/7


F - The Buyer and the Seller have entered into amendment no 5 to the Purchase Agreement dated April 6, 2001 (the “ Amendment no 5 ”) covering:

 

  (i) the conversion of one (1) Option A320-200 Aircraft [*] Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*] (Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31 [*])

 

  (iii) The [*] A320-200 Aircraft [*] (Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft [*] (Firm No 44) [*] Firm A319-100 Aircraft (Firm No 32 [*]).

 

G - The Buyer and the Seller have entered into an amendment no 6 to the Purchase Agreement dated April 9, 2001 (the “ Amendment No 6”) covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft[*].

 

H - [*]

 

I - [*]

 

J - The Buyer and the Seller have entered into amendment no 9 to the Purchase Agreement dated December 6, 2002 (the “ Amendment No 9”) covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into amendment no 10 to the Purchase Agreement dated October 30, 2003 (the “ Amendment No 10”) covering the rescheduling of the Delivery Date of firm A320-200 Aircraft No 46 and 47 respectively from May and June 2004 to October and November 2004.

 

L - The Buyer and the Seller have entered into an amendment no 11 to the Purchase Agreement dated November 18, 2004 (the “ Amendment No 11”) covering simultaneously;

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment no 3 in [*] stated in paragraph 1 of Letter Agreement no 1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into an amendment no 12 to the Purchase Agreement dated November 18, 2004 (the “ Amendment No 12”) covering:

 

  (i) the [*] of Aircraft no 44, 17, 37 [*] A320 [*] A321 [*] and no 18, 36 and 21[*] A320 [*] A319 [*]

[*]

 

N - The Buyer and the Seller have entered into an amendment no 13 to the Purchase Agreement dated November 18, 2004 (the “ Amendment No 13”) , covering:

[*]

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended A320 Family - TAI - AMDT 21

Ref: CT1004937

3/7


O - The Buyer and the Seller have entered into amendment no 14 to the Purchase Agreement dated February 28, 2006 (the “ Amendment No 14”) , covering:

 

  (i) [*],

 

  (ii) AIRMAN software,

 

  (iii) ADOC Job Cards Package, ADOC Consultation Package, and AirNav and/or ADOC Navigator Based Consultation

 

  (iv) [*]

 

P - The Buyer and the Seller have entered into amendment no 15 to the Purchase Agreement dated June 22, 2007 (the “ Amendment No 15”) , covering:

 

   [*]

 

Q - The Buyer and the Seller have entered into amendment no 16 to the Purchase Agreement dated November 22, 2007 (the “ Amendment No 16”) , covering the order of [*] A319-100 aircraft and [*] A320-200 aircraft.

 

R -

The Buyer and the Seller have entered into amendment no 17 to the Purchase Agreement dated April 1 st , 2008 (the “ Amendment No 17”) , to amend certain provisions of the[*].

 

S -

The Buyer and the Seller have entered into amendment no 18 to the Purchase Agreement dated January 30 th , 2009 (the “ Amendment No 18”) , covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft No 60 and 61,

 

  (ii) [*].

 

T -

The Buyer and the Seller have entered into amendment no 19 to the Purchase Agreement dated April 28 th , 2009 (the “ Amendment No 19”) , covering:

 

  (i) the [*] of the Aircraft No 58, 62 and 65,

 

  (ii) the change of the Delivery Dates of the Aircraft No 58, 62 and 65,

 

U -

The Buyer and the Seller have entered into amendment no 20 to the Purchase Agreement dated February 10 th , 2010 (the “ Amendment No 20”) , covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft No 58 and 65,

 

  (ii) [*].

 

V - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 20, inclusive.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended A320 Family - TAI - AMDT 21

Ref: CT1004937

4/7


NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

1. SCOPE

The scope of this Amendment No 21 is to reschedule the Scheduled Delivery Month or Scheduled Delivery Quarter, as the case may be, of the Aircraft bearing rank numbers 66 and 76.

 

2. [*] OF DELIVERY DATES

The Buyer and the Seller wish to defer the Delivery Dates of the Aircraft below:

 

Aircraft No.    Aircraft
type
     [*] Scheduled
Delivery
Month/
Quarter
    [*] Scheduled Delivery Quarter or
Delivery year
 

66

     A320-200         [ *]      [ *] 

76

     A320-200         [ *]   

The quarter for Aircraft with rank number 66 shall be mutually agreed by the Parties on/or before September 30 th , 2010.

 

3. PREDELIVERY PAYMENTS

[*]

 

4. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall remain in full force and effect and shall apply to this Amendment No 21 except as expressly modified by this Amendment No 21.

In case of any inconsistency between this Amendment No 21 and the Purchase Agreement, this Amendment No 21 shall prevail.

This Amendment No 21 together with the Purchase Agreement, its Exhibits, Letter Agreements, and amendments to date contain the entire agreement between the Parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 21 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 21 shall not be varied or modified except by an instrument in writing executed by both Parties or by their duly authorised representatives.

This Amendment No 21 shall be governed by and construed and performance thereof shall be determined in accordance with the laws of France.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended A320 Family - TAI - AMDT 21

Ref: CT1004937

5/7


IN WITNESS WHEREOF this Amendment No 21 was entered into the day and year above written.

 

For and on behalf of     For and on behalf of
ATLANTIC AIRCRAFT HOLDING     AIRBUS S.A.S.
By:       By:  
Its:       Its  

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended A320 Family - TAI - AMDT 21 Ref: CT1004937

6/7


Appendix 1

*[One page has been omitted in accordance with a request for confidential treatment.]

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended A320 Family - TAI - AMDT 21 Ref: CT1004937

7/7


LETTER AGREEMENT No 1 to AMENDMENT No 20

ATLANTIC AIRCRAFT HOLDING LIMITED

Winterbotham Place,

Marlborough and Queen Streets.

NASSAU,

BAHAMAS

Subject : PREDELIVERY PAYMENTS

ATLANTIC AIRCRAFT HOLDING LIMITED (“the Buyer”) and AIRBUS S.A.S. (“the Seller”) have entered into an Amendment No 20 (the “Amendment No 20”) dated as of even date here with which covers the amendment of certain provisions set forth in the A320 Family Purchase Agreement entered into by the Parties and dated March 19, 1998 (the “Agreement”).

Capitalized terms used herein and not otherwise defined in this Letter Agreement No 1 shall have the meanings assigned thereto in the Agreement.

Both Parties agree that this Letter Agreement No 1, upon execution thereof, shall constitute an integral, nonseverable part of the said Agreement and shall be governed by all its provisions, as such provisions have been specifically amended pursuant to this Letter Agreement No 1.

 

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended A320 Family - TAI - LA 1 to AMDT 20 Ref: CT0906046

1/3


1. DEFINITIONS

For the purpose of this Letter Agreement No 1 the terms shall have the meaning set out below:

[*]

 

2. PREDELIVERY PAYMENTS

[*]

 

3. ASSIGNMENT

Notwithstanding any other provision of this Letter Agreement No 1 or of the Agreement, this Letter Agreement No 1 and the rights and obligations of the Buyer herein shall not be assigned or transferred in any manner, and any attempted assignment or transfer in contravention of the provisions of this Clause shall be void and of no force or effect.

 

4. CONFIDENTIALITY

This Letter Agreement No 1 (and its existence) shall be treated by both Parties as confidential and shall not be released (or revealed) in whole or in part to any third party without the prior consent of the other Party. In particular, each Party agrees 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 consent of the other Party.

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended A320 Family - TAI - LA 1 to AMDT 20 Ref: CT0906046

2/3


If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement No 1 to the Seller.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED     AIRBUS S.A.S.
By:         By:    
Its:         Its:    
Date:         Date:    

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended A320 Family - TAI - LA 1 to AMDT 20 Ref: CT0906046

3/3

Exhibit 10.5.22

AMENDMENT No. 22

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS S.A.S.

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAl - Amendment No 22

Ref: CT1102215

1/13


AMENDMENT No 22

This Amendment No 22 to the A320 Family Purchase Agreement dated as of March 19, 1998 (hereinafter referred to as the “Amendment No 22”) between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the 26 day of August, 2011.

BETWEEN

AIRBUS S.A.S., a societe par actions simplifiee, formerly known as Airbus G.I.E. created and existing under French law having its registered office at 1Rand-Point Maurice Bellante, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (hereinafter referred to as the “Seller”)

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at c/o the Winterbotham Trust Company Limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “Buyer”)

The Buyer and the Seller being together the “Parties” and each the “Party”.

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements as amended and supplemented from time to time, as the “Purchase Agreement”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32 (the “Aircraft”).

 

B - The Buyer and the Seller have entered into an amendment No l to the Purchase Agreement dated September 9, 1998 (the “Amendment No 1”), covering the [*]Firm A319-100 Aircraft (to December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into an amendment no 2 to the Purchase Agreement dated December 28, 1999 (the “Amendment No 2”) covering:

 

  (i) The [*] A320-200 Aircraft into firm orders and the [*] by [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft with [*] previously Firm A320-200 Aircraft.

 

D - [*]Simultaneously, the Buyer and the Seller have entered into an amendment no 3 (the “Amendment No 3”) to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement Wl of the Purchase Agreement.

 

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAl - Amendment No 22

Ref: CT1102215

2/13


E - The Buyer and the Seller have entered into an amendment no4 to the Purchase Agreement dated February 15,2000 (the “Amendment No 4”) covering:

 

  (i) the [*] A320-200 Aircraft into a firm order and its [*]

new [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft with [*] previously firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into amendment no 5 to the Purchase Agreement dated April 6, 2001 (the “Amendment W 5”) covering:

 

  (i) the [*] A320-200 Aircraft into a firm order ([*] Firm No 41) and the replacement of such [*] new [*] A320-200 Aircraft (W 44), and

 

  (ii) the [*] A320-200 Aircraft ([*] Firm No 42) with [*] previously Firm A319-100 Aircraft (Firm No 31 [*]No 45).

 

  (iii) The [*] A320-200 Aircraft into firm order [*] Firm No 43) and the [*] new [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft ([*] Firm No 44) with [*] previously Firm A319-100 Aircraft (Firm W 32 [*] No 47).

 

G - The Buyer and the Seller have entered into an amendment no 6 to the Purchase Agreement dated April 9, 2001 (the “Amendment No 6”) covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 {all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft W18 [*] an A320-200 Aircraft [*].

 

H - [*]

 

I - [*]

 

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 22

Ref: CT1102215

3/13


J - The Buyer and the Seller have entered into amendment no 9 to the Purchase Agreement dated December 6, 2002 (the “Amendment No 9”) covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into amendment no 10 to the Purchase Agreement dated October 30, 2003 (the “Amendment No 10”) covering the rescheduling of the Delivery Date of firm A320-200 Aircraft W46 and 47 respectively from May and June 2004 to October and November 2004.

 

L - The Buyer and the Seller have entered into an amendment no 11 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 11”) covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] stated in paragraph 1 of Letter Agreement No 1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into an amendment no 12 to the Purchase Agreement dated November 18, 2004 {the “Amendment No 12”) covering:

 

  (i) the [*] of Aircraft No 44, 17, 37 [*] A320 [*] A321 [*] and No 18, 36 and 21 [*] A320 [*] A319 [*],

 

  (ii) [*],

 

  (iii) [*].

 

N - The Buyer and the Seller have entered into an amendment no 13 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 13”), covering:

 

  (i) [*],

[*]

 

1 - The Buyer and the Seller have entered into amendment no 14 to the Purchase Agreement dated February 28, 2006 (the “Amendment No 14”), covering:

 

  (i) [*],

 

  (ii) AIRMAN software,

 

  (iii) ADOC Job Cards Package, ADOC Consultation Package, and AirNav and/or ADOC Navigator Based Consultation

 

  {iv) [*]

 

P - The Buyer and the Seller have entered into amendment no 15 to the Purchase Agreement dated June 22, 2007 (the “Amendment No 15”), covering:

[*]

 

Q-  The Buyer and the Seller have entered into amendment no 16 to the Purchase Agreement dated November 22, 2007 {the “Amendment No 16”), covering the order of [*] A319-100 aircraft and [*] A320-200 aircraft.

 

R :- The Buyer and the Seller have entered into amendment no 17 to the Purchase Agreement dated April 15, 2008 {the “Amendment No 17”), to amend certain provisions of the [*].

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAl - Amendment No 22

Ref: CT1102215

4/13


S - The Buyer and the Seller have entered into amendment no 18 to the Purchase Agreement dated January 30th, 2009 (the “Amendment No 18”), covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft W60 and 61,

 

  (ii) [*]

The Buyer and the Seller have entered into amendment no 19 to the Purchase Agreement dated April 28 th 2009 (the “Amendment No 19”], covering:

 

  (ii) the [*] of the Aircraft No 58, 62 and 65,

 

  (iii) the change of the Delivery Dates of the Aircraft W58, 62 and 65,

 

U The Buyer and the Seller have entered into amendment no 20 to the Purchase Agreement dated February 10th, 2010 (the “Amendment No 2D”), covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft No 58 and 65,

[*]

 

V - The Buyer and the Seller have entered into amendment no 21 to the Purchase Agreement dated 29 April, 2011 (the “Amendment No 2l”), covering the [*] of the Aircraft No 64.

 

W - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No l to 21, inclusive.

 

A320 Family - TAI - Amendment No 22

Ref: CT1102215

5/13


NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

1. SCOPE

Pursuant to the Buyer’s request, the Parties have agreed that the scope of this Amendment No 22 is:

 

  (i) to amend the Scheduled Delivery Month or Schedule Delivery Quarter of [*] A320 family Aircraft with rank numbers 61, 66 and 67; and

 

  (ii) to [*] the Aircraft [*] of [*] A320 family Aircraft with rank numbers 66 and 67.

 

2. DELIVERY SCHEDULE AND [*]

The Parties hereby agree that the Aircraft type and/or the Scheduled Delivery Months or Scheduled Delivery Quarters as the case may be, of the A320 family Aircraft scheduled for Delivery shall be amended as set forth in the table here below (the “Agreed Modifications”):

 

ank number    A/C
[*] Type
     A/C
[*]
     [*] Scheduled
Delivery
Months/Quarters
     [*] Scheduled
Delivery
Months/Quarters
 
61      A319-100         [*]         [*]         [*]   
66      A320-200         [*]         [*]         [*]   
67      A320-200         [*]         [*]         [*]   

 

3. PREDELIVERY PAYMENTS

[*].

[*]

 

4. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall remain in full force and effect and shall apply to this Amendment No 22 except as expressly modified by this Amendment No 22.

In case of any inconsistency between this Amendment W 22 and the Purchase Agreement, this Amendment W 22 shall prevail.

This Amendment No 22 together with the Purchase Agreement, its Exhibits, Letter Agreements, and amendments to date contain the entire agreement between the Parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 22 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment W 22 sha’ll not be varied or modified except by an instrument in writing executed by both Parties or by their duly authorised representatives.

This Amendment No 22 shall be governed by and construed and performance thereof shall be determined in accordance with the laws of France.

 

A320 Family - TAl - Amendment No 22

Ref: CT1102215

6/13


IN WITNESS WHEREOF this Amendment W 23 was entered into the day and year above written.

 

For and on behalf of    For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED    AIRBUS S.A.S.
/s/ Arnulfo Avelar   
By:    Arnulfo Avelar    By:
Its:    Attorney-in-fact    Its

 

 

A320 Family - TAI - Amendment No 23

Ref: CT1105914

7/13


APPENDIX 1-A

Aircaft No 58

AIRBUS

Contract Mangement

*[One page has been omitted in accordance with a request for confidential treatment.]

 

A320 Family - TAI - Amendment No 23

Ref: CT1105914 9/13

8/13


Aircraft No 68

AIRBUS

Contracts Mangement

*[One page has been omitted in accordance with a request for confidential treatment.]

 

A320 Family - TAI - Amendment No 23

Ref: CT1105914

9/13


Aircraft No 69

*[One page has been omitted in accordance with a request for confidential treatment.]

 

 

Ref: CT1105914

10/13


 

11/13


APPENDIX 1-B

*[One page has been omitted in accordance with a request for confidential treatment.]

 

12/13


APPENDIX 2

*[One page has been omitted in accordance with a request for confidential treatment.]

 

13/13

Exhibit 10.5.23

AMENDMENT No. 23

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS S.A.S.

 

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

1/13


AMENDMENT No 23

This Amendment W23 to the A320 Family Purchase Agreement dated as of March 19, 1998 (hereinafter referred to as the “Amendment No 23”) between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the 21 day of October, 2011.

BETWEEN

AIRBUS S.A.S., a societe par actions simplifi€e, formerly known as Airbus G.l.E. created and existing under French law having its registered office at 1 Rond-Point Maurice Bellante, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (hereinafter referred to as the “Seller”)

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at c/o the Winterbotham Trust Company limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “Buyer”)

The Buyer and the Seller being together the “Parties” and each the “Party”.

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and letter Agreements as amended and supplemented from time to time, as the “Purchase Agreement”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No l to No 32 (the “Aircraft”).

 

B - The Buyer and the Seller have entered into an amendment No 1 to the Purchase Agreement dated September 9, 1998 (the “Amendment No l”), covering the [*] Firm A319-100 Aircraft (to December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into an amendment no 2 to the Purchase Agreement dated December 28, 1999 (the “Amendment No 2”) covering:

 

  (i) The [*] of [*] A320-200 Aircraft into firm orders and the [*] A320-200 Aircraft, and

 

  (ii) the [*] A32Q-200 Aircraft with [*] previously Firm A320-200 Aircraft.

 

D - [*] Simultaneously, the Buyer and the Seller have entered into an amendment no 3 (the “Amendment No 3”) to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the letter Agreement No 1 of the Purchase Agreement.

 

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

2/13


E - The Buyer and the Seller have entered into an amendment no 4 to the Purchase Agreement dated February 15, 2000 (the “Amendment No 4”) covering:

 

  (i) the [*] A320-200 Aircraft into a firm order and its [*] A320-200 Aircraft, and

 

  (ii) [*] A320-200 Aircraft with [*] previously firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into amendment no 5 to the Purchase Agreement dated April 6, 2001 (the “Amendment No 5”) covering:

 

  (i) the [*] A320-200 Aircraft into a firm order ([*] Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft ([*] Firm No 42) with [*] previously Firm A319-100 Aircraft (Firm No 31 [*] W 45).

 

  (iii) The [*] A320-200 Aircraft into firm order ([*] Firm W 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft ([*] Firm No 44) with [*] previously Firm A319-100 Aircraft (Firm No 32 [*]).

 

G - The Buyer and the Seller have entered into an amendment no 6 to the Purchase Agreement dated April 9, 2001 (the “Amendment No 6”) covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft [*].

 

H - [*]

 

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

3/13


(ii)     

 

I - [*] the terms of the Seller’s financing support to the Buyer,

 

J - The Buyer and the Seller have entered into amendment no 9 to the Purchase Agreement dated December 6, 2002 (the “Amendment No 9”) covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into amendment no 10 to the Purchase Agreement dated October 30, 2003 (the “Amendment No 10”) covering the rescheduling of the Delivery Date of firm A320-200 Aircraft W46 and 47 respectively from May and June 2004 to October and November 2004.

 

L - The Buyer and the Seller have entered into an amendment no 11 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 11”) covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] stated in paragraph 1 of Letter Agreement No 1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into an amendment no 12 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 12”) covering:

 

  (i) the [*] of Aircraft No 44, 17, 37 [*] A320 [*] A321 [*] and No 18, 36 and 21 [*] A320 [*] A319 [*],

 

N - [*]The Buyer and the Seller have entered into an amendment no 13 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 13”), covering:

[*]

 

O - The Buyer and the Seller have entered into amendment no 14 to the Purchase Agreement dated February 28, 2006 (the “Amendment No 14”), covering:

 

   (i) [*]

(ii) AIRMAN software,

 

  (iii) ADOC Job Cards Package, ADOC Consultation Package, and AirNav and/or ADOC Navigator Based Consultation

 

   (iv) [*]

[*]

 

P - The Buyer and the Seller have entered into amendment no 15 to the Purchase Agreement dated June 22, 2007 (the “Amendment No 15”), covering:

 

Q - [*] The Buyer and the Seller have entered into amendment no 16 to the Purchase Agreement dated November 22, 2007 (the “Amendment No 16”), covering the order of [*] additional A319-100 aircraft and [*] additional A320-200 aircraft.

 

R - The Buyer and the Seller have entered into amendment no 17 to the Purchase Agreement dated April 5, 2008 (the “Amendment No 17”), to amend certain provisions of the [*].

 

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

4/13


S - The Buyer and the Seller have entered into amendment no 18 to the Purchase Agreement dated January 30th, 2009 (the “Amendment No 18”), covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft No 60 and 61,

[*]

 

T - The Buyer and the Seller have entered into amendment no 19 to the Purchase Agreement dated April 28th, 2009 (the “Amendment No 19”), covering:

 

  (i) the [*] of the Aircraft W58, 62 and 65,

 

  (ii) the change of the Delivery Dates of the Aircraft No 58, 62 and 65,

 

U The Buyer and the Seller have entered into amendment no 20 to the Purchase Agreement dated February l0th, 2010 (the “Amendment No 20”), covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft No 58 and 65,

[*]

 

V - The Buyer and the Seller have entered into amendment no 21 to the Purchase Agreement dated 29 April, 2011 (the “Amendment No 21”), covering the [*] of the Aircraft No 64.

 

W - The Buyer and the Seller have entered into amendment n“22 to the Purchase Agreement dated 26 August, 2011 (the “Amendment No 22”), covering:

 

  (i) the rescheduling of the Delivery Date of Aircraft No 61,

 

  (ii) the [*] and the rescheduling of the Delivery Dates of Aircraft No 66 and 67.

 

X - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No l to 22, inclusive.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

5/13


NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

1. SCOPE

Pursuant to the Buyer’s request, the Parties have agreed that the scope of this Amendment No 23 is:

 

  (i) to amend the Scheduled Delivery Month or Schedule Delivery Quarter of [*] A320 family Aircraft with rank numbers 58, 68 and 69; and

[*]

 

2. DELIVERY SCHEDULE AND [*]

The Parties hereby agree that the Aircraft type and/or the Scheduled Delivery Months or Scheduled Delivery Quarters as the case may be, of the A320 family Aircraft scheduled for Delivery shall be amended as set forth in the table here below (the “Agreed Modifications”):

 

Rank number

  

A/C

[*] Type

  

A/C

[*] Type

  

[*] Scheduled

Delivery Months/Quarters

  

[*] Scheduled

Delivery Months/Quarters

58    A319-100    [*]    [*]    August 2012
68    A320·200    [*]    July 2012    [*]
69    A320-200    [*]    August 2012    [*]

 

3. PREDELIVERY PAYMENTS

[*]

 

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

6/13


4. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall remain in full force and effect and shall apply to this Amendment No 23 except as expressly modified by this Amendment No 23.

In case of any inconsistency between this Amendment No 23 and the Purchase Agreement, this Amendment No 23 shall prevail.

This Amendment No 23 together with the Purchase Agreement, its Exhibits, Letter Agreements, and amendments to date contain the entire agreement between the Parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 23 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 23 shall not be varied or modified except by an instrument in writing executed by both Parties or by their duly authorised representatives.

This Amendment No 23 shall be governed by and construed and performance thereof shall be determined in accordance with the laws of France.

 

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

7/13


IN WITNESS WHEREOF this Amendment No 23 was entered into the day and year above written.

 

For and on behalf of      For and on behalf of
ATLANTIC AIRCRAFT HOLDING LIMITED      AIRBUS S.A.S.
By:  

/s/ Arnulfo Avelar

     By:  
Its: Attorney-in-fact      Its  

 

A320 Family- TAl- Amendment No 23

Ref: Cf1105914

8/13


IN WITNESS WHEREOF this Amendment No 23 was entered into the day and year above written.

 

For and on behalf of    For and on behalf of
ATLANTIC AIRCRAFT HOLDING    AIRBUS S.A.S.
LIMITED   
By: Arnulto Avelar   
  
Its: Attorney-in-fact    Its

 

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

9/13


APPENDIX 1-A

*[Two pages have been omitted in accordance with a request for confidential treatment.]

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

10/13


 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

11/13


APPENDIX 1-B

*[One page has been omitted in accordance with a request for confidential treatment.]

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

12/13


APPENDIX 2

*[One page has been omitted in accordance with a request for confidential treatment.]

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 23

Ref: CT1105914

13/13

Exhibit 10.5.24

AMENDMENT No. 24

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS S.A.S.

 

[*] Represents material which has been redacted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

A320 Family - TAI - Amendment No 24

Ref: CT1107307

1/20


AMENDMENT No 24

This Amendment No 24 to the A320 Family Purchase Agreement dated as of March 19, 1998 (hereinafter referred to as the “Amendment No 24”) between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the 11 day of March, 2012.

BETWEEN

AIRBUS S.A.S., a societe par actions simplifiee, formerly known as Airbus G.I.E. created and existing under French law having its registered office at 1 Rond-Point Maurice Bellante, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (hereinafter referred to as the “Seller”)

AND

ATLANTIC AIRCRAFT HOLDING UNITED, having its principal office at c/o the Winterbotham Trust Company Limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “Buyer”)

The Buyer and the Seller being together the “Parties” and each the “Party”.

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements as amended and supplemented from time to time, as the “Purchase Asreement”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32 (the “Aircraft”).

 

B - The Buyer and the Seller have entered into an amendment No 1 to the Purchase Agreement dated September 9, 1998 (the “Amendment Not”), covering the [*] Firm A319-100 Aircraft (to December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into an amendment no 2 to the Purchase Agreement dated December 28,1999 (the “Amendment No 2”) covering:

 

  (i) The [*] A320-200 Aircraft [*] and the

 

  (ii) [*] A32Q-200 Aircraft, and

 

  (iii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

1 - [*]. Simultaneously, the Buyer and the Seller have entered into an amendment no 3 (the “Amendment No 3”) to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the letter Agreement No 1 of the Purchase Agreement.

 

A320 Family - TAI - Amendment No 24

Ref: CT1107307

2/20


E - The Buyer and the Seller have entered Into an amendment no 4 to the Purchase Agreement dated February 15, 2000 (the “Amendment No 4”) covering:

 

  (i) the [*] A320-200 Aircraft [*] and its [*] A32Q-200 Aircraft, and

 

  (ii) the [*] A320·200 Aircraft [*] firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into amendment no 5 to the Purchase Agreement dated April 6, 2001 (the “Amendment No 5”) covering:

 

  (i) the [*] A320-200 Aircraft [*] Firm No 41) and the[*] A32Q-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft [*] (Firm No 42)

 

  (iii) [*] Firm A319-100 Aircraft (Firm No 31 becoming Option No 45).

 

  (iii) The[*] A320-200 Aircraft into firm order[*] (Firm No 43) and the[*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft ([*] becoming Firm No 44) [*] Firm A319-100 Aircraft (Firm No 32 [*]).

 

G - The Buyer and the Seller have entered into an amendment no 6 to the Purchase Agreement dated April 9, 2001 (the “Amendment No 6”) covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft [*]

 

H [*]

 

  (v) [*].

 

A320 Family - TAI - Amendment No 24

Ref: CT1107307

3/20`


J - The Buyer and the Seller have entered into amendment no 9 to the Purchase Agreement dated December 6, 2002 (the “Amendment NOS”) covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into amendment no 10 to the Purchase Agreement dated October 30, 2003 (the “Amendment No 1 CY’) covering the rescheduling of the Delivery Date of firm A320-200 Aircraft No 46 and 47 respectively from May and June 2004 to October and November 2004.

 

l - The Buyer and the Seller have entered into an amendment no 11 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 11”) covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] stated in paragraph 1 of letter Agreement No 1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into an amendment no 12 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 12”) covering:

 

  (i) the [*] of Aircraft No 44, 17, 37 [*] A320 [*] A321 type and No 18, 36 and 21 [*] A320 [*] A319 [*],

[*].

 

N - The Buyer and the Seller have entered into an amendment no 13 to the Purchase Agreement dated November 18,2004 (the “Amendment No 13”), covering:

[*]

 

O - The Buyer and the Seller have entered into amendment no 14 to the Purchase Agreement dated February 28,2006 (the“ Amendment No 14H), covering:

 

  (i) [*],

 

  (ii) AIRMAN software,

 

  (iii) ADOC Job Cards Package, ADOC Consultation Package, and AirNav and/or ADOC Navigator Based Consultation

 

  (iv) [*].

 

P - The Buyer and the Seller have entered into amendment no 15 to the Purchase Agreement dated June 22, [*].

 

Q - The Buyer and the Seller have entered into amendment no 16 to the Purchase Agreement dated November 22, 2007 (the “Amendment No 16”), covering the order of three (3) additional A319-100 aircraft and twelve (12) additional A320-200 aircraft.

 

R - The Buyer and the Seller have entered into amendment no 17 to the Purchase Agreement dated April 1st, 2008 (the “Amendment No 17”), to am end certain provisions of the [*].

 

A320 Family - TAI - Amendment No 24

Ref: CT1107307

4/20


S - The Buyer and the Seller have entered Into amendment no 18 to the Purchase Agreement dated January 30”, 2009 (the “Amendment No 18”), covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft No 60 and 61,

 

  (ii) [*].

 

T - The Buyer and the Seller have entered into amendment no 19 to the Purchase Agreement dated April  28th, 2009 (the “Amendment No 19”), covering:

 

  (i) the [*] of the Aircraft No 58, 62 and 65,

 

  (ii) the change of the Delivery Dates of the Aircraft No 58, 62 and 65,

 

U - The Buyer and the Seller have entered into amendment no 20 to the Purchase Agreement dated February 10.,2010 (the “Amendment No 20”), covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft No 58 and 65, [*]

 

V - The Buyer and the Seller have entered into amendment no 21 to the Purchase Agreement dated 29 April, 2011 (the “Amendment No 21”), covering the [*] of the Aircraft No 64.

 

W - The Buyer and the Seller have entered into amendment no 22 to the Purchase Agreement dated 26 August, 2011 (the “Amendment No 22”), covering:

 

  (I) the rescheduling of the Delivery Date of Aircraft No 61,

 

  (ii) the [*] the rescheduling of the Delivery Dates of Aircraft No 66 and 67.

 

X - The Buyer and the Seller have entered into amendment no 23 to the Purchase Agreement dated 25 October, 2011 (the “Amendment No 23’’), covering:

 

  (i) the rescheduling of the Delivery Date of Aircraft No 58,

 

  (ii) the [*] and the rescheduling of the Delivery Dates of Aircraft No 68 and 69.

 

Y - As used hereafter, the terms “Purchase Agreement’’ and “A3ZO Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 23, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

A320 Family - TAI - Amendment No 24

Ref: CT1107307

5/20


1. As a result of AviancaTaca Holding S.A. (“AvlancaTaca”) and Airbus S.A.S having entered into an A320 Family & A320 NEO Family Purchase Agreement covering the sale by Airbus S.A.S. and the purchase by AviancaTaca of fifty-one (51) A320 family aircraft (the “AVTA 2011 Ordered Aircraft’’) , such agreement being dated as of the 27th December 2011 (the “AVTA 2011 Purchase Agreement’’), and [*] in accordance with the terms of Clause 7 of the Memorandum of Understanding signed between AvlancaTaca and Airbus S.A.S. on 22nd June 2011 (the “AVTA 2011 MoU”), the Parties have agreed that the scope of this Amendment No 25 is:

 

  (i) to amend the Scheduled Delivery Quarter of one (1) A319-100 Aircraft with rank number 65;

 

  (ii) to [*] and amend the Scheduled Delivery Quarter of one (1) A319-100 Aircraft with rank number 71 and of seven (7) A320-200 Aircraft with rank numbers 60, 70, 72, 73, 74, 75 and 76.

 

2. DEUVERY SCHEDULE AND [*]

Upon the Buyer’s request, the Parties hereby agree that the [*] and/or the Scheduled Delivery Quarters of the A320 family Aircraft scheduled for Delivery shall be amended as set forth in the table here below (the “Agreed Modifications):

 

Rank number

   [Illegible]      [Illegible]    [Illegible]    [Illegible]

60

     A320-100       [*]    [*]    [*]

65

     A319-100       [*]    [*]    [*]

70

     A320-200       [*]    [*]    [*]

71

     A319-100       [*]    [*]    [*]

72

     A320-200       [*]    [*]    [*]

73

     A320-200       [*]    [*]    [*]

74

     A320-200       [*]    [*]    [*]

75

     A320-200       [*]    [*]    [*]

76

     A320-200       [*]    [*]    [*]

 

3. PREOEUVERY PAYMENTS

*[One page has been omitted in accordance with a request for confidential treatment.]

 

A320 Family - TAI - Amendment No 24

Ref: CT1107307

6/20


4. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall remain in full force and effect and shall apply to this Amendment No 24 except as expressly modified by this Amendment No 24.

In case of any inconsistency between this Amendment No 24 and the Purchase Agreement, this Amendment No 24 shall prevail.

This Amendment No 24 together with the Purchase Agreement, its Exhibits, Letter Agreements, and amendments to date contain the entire agreement between the Parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 24 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 24 shall not be varied or modified except by an instrument in writing executed by both Parties or by their duly authorised representatives.

This Amendment No 24 shall be governed by and construed and performance thereof shall be determined in accordance with the laws of France.

 

A320 Family - TAI - Amendment No 24

Ref: CT1107307

7/20


IN WITNESS WHEREOF this Amendment No 24 was entered into the day and year above written.

 

For and on behalf of   For and on behalf of
ATLANTIC AIRCRAFT HOLDING UMITED   AIRBUS S.A.S.
By:     By:   [Illegible]
      [Illegible]
Its:     Its  

 

A320 Family - TAI - Amendment No 24

Ref: CT1107307

8/20


APPENDIX 1-A

*[Eleven pages have been omitted in accordance with a request for confidential treatment.]

 

9/20

Exhibit 10.5.25

AMENDMENT No. 25

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LIMITED

AIRBUS S.A.S.

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

 

Ref: CT1201240   1/11  


 

2/11


AMENDMENT No 25

This Amendment No 25 to the A320 Family Purchase Agreement dated as of March 19, 1998 (hereinafter referred to as the “Amendment No 25”) between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the day of March, 2012.

BETWEEN

AIRBUS S.A.S., a societe par actions simplifiee, formerly known as Airbus G.I.E. created and existing under French law having its registered office at 1Rond-Point Maurice Bellante, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (hereinafter referred to as the “Seller”)

AND

ATLANTIC AIRCRAFT HOLDING UMITED, having its principal office at c/o the Winterbotham Trust Company limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “Buyer”)

The Buyer and the Seller being together the “Parties” and each the “Party”.

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and .Letter Agreements as amended and supplemented from time to time, as the “Purchase Agreement”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32 (the “Aircraft”).

 

B - The Buyer and the Seller have entered into an amendment No 1 to the Purchase Agreement dated September 9, 1998 (the “Amendment No 1”), covering the [*] ) Firm A319-100 Aircraft (to December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into an amendment no 2 to the Purchase Agreement dated December 28, 1999 (the “Amendment No 2”) covering:

 

  (i) The [*] A320-200 Aircraft [*] and the

 

  (ii) [*] A320-200 Aircraft, and

 

  (iii) the [*] A320-200 Aircraft [*] Firm A320-200 Aircraft.

 

D - [*] . Simultaneously, the Buyer and the Seller have entered into an amendment no 3 (the “Amendment No 3”) to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant Ref: CT1201240 to a request for confidential treatment pursuant 3/10 to Rule 406 under the Securities Act of 1933, as amended

Ref: CT12012 40

 

3/11


E - The Buyer and the Seller have entered into an amendment no 4 to the Purchase Agreement dated February 1st, 2000 (the “Amendment No 4”) covering:

 

  (i) the [*] A320-200 Aircraft [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered Into amendment no 5 to the Purchase Agreement dated April 6, 2001 (the “Amendment No 5”) covering:

 

  (i) the [*] A32Q-200 Aircraft [*] Firm No 41) and the [*] A32Q-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft ([*] Firm No 42) [*] Firm A319-100 Aircraft (Firm No [*]).

 

  (iii) the [*] A320-200 Aircraft [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft ([*] Firm No 44) with [*] Firm A319-100 Aircraft (Firm No 32 [*]).

 

G - The Buyer and the Seller have entered into an amendment no 6 to the Purchase Agreement dated April9, 2001 (the “Amendment No 6”) covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft [*].

 

H - [*]

 

 

A320 Family -TAI-Amendment No 25

Ref: CT1201240

 

4/11


J - The Buyer and the Seller have entered into amendment no 9 to the Purchase Agreement dated December 6, 2002 (the “Amendment No 9” ) covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into amendment no 10 to the Purchase Agreement dated October 30, 2003 (the “Amendment No 10” ) covering the rescheduling of the Delivery Date of firm A320-200 Aircraft No 46 and 47 respectively from May and June 2004 to October and November 2004.

 

L - The Buyer and the Seller have entered into an amendment no 11 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 11” ) covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and termination of Amendment No 3 [*] stated in paragraph 1of Letter Agreement No 1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into an amendment no 12 to the Purchase Agreement dated November 18,2004 (the “Amendment No 12” ) covering:

 

  (i) the[*] of Aircraft No 44, 17, 37 [*] A320 [*] A321[*] and No 18, 36 and 21 A320 [*] A319 [*]

 

N - The Buyer and the Seller have entered into an amendment no 13 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 13” ) , covering:

 

  (i) [*] .

 

O - The Buyer and the Seller have entered into amendment no 14 to the Purchase Agreement dated February 28,2006 {the “Amendment No 14” ) , covering:

 

  (i) [*],

 

  (ii) AIRMAN software,

 

  (iii) AOOC Job Cards Package, AOOC Consultation Package, and AirNav and/or AOOC Navigator Based Consultation

 

  (iv) [*] .

 

P - The Buyer and the Seller have entered into amendment no 15 to the Purchase Agreement dated June 22, 2007 (the ‘‘Amendment No 15” ) , covering: [*]

 

Q - The Buyer and the Seller have entered into amendment no 16 to the Purchase Agreement dated November 22, 2007 (the “Amendment No 16” ) , covering the order of three (3) additional A319-100 aircraft and twelve (12) additional A320-200 aircraft.

 

R -

The Buyer and the Seller have entered into amendment no 17 to the Purchase Agreement dated April1 51 2008 (the “Amendment No 17” ) , to amend certain provisions of the [*]

 

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

Ref: CT12012 40

 

5/11


S - The Buyer and the Seller have entered into amendment no 18 to the Purchase Agreement dated January 30th, 2009 (the “Amendment No 18”), covering:

 

  (i) the rescheduling of the Delivery Oates of the Aircraft No 60 and 61, [*]

 

T - The Buyer and the Seller have entered into amendment no 19 to the Purchase Agreement dated April 28th, 2009 (the “Amendment No 19”), covering:

 

  (i) the [*] of the Aircraft No 58, 62 and 65,

 

  (ii) the change of the Delivery Dates of the Aircraft No 58, 62 and 65,

 

U - The Buyer and the Seller have entered into amendment no 20 to the Purchase Agreement dated February 10th, 2010 (the “Amendment No 20”), covering:

 

  (i) the rescheduling of the Delivery Oates of the Aircraft No 58 and 65,

 

  (ii) [*]

 

  (iii) [*] s.

 

V - The Buyer and the Seller have entered into amendment no 21 to the Purchase Agreement dated 29 April, 2011 (the “Amendment No 21”), covering the [*] of the Aircraft No 64.

 

W - The Buyer and the Seller have entered into amendment no 22 to the Purchase Agreement dated 26 August, 2011(the “Amendment No 22”), covering:

 

  (i) the rescheduling of the Delivery Date of Aircraft No 61,

 

  (ii) the [*] and the rescheduling of the Delivery Dates of Aircraft No 66 and 67.

 

X - The Buyer and the Seller have entered into amendment no 23 to the Purchase Agreement dated 25 October, 2011 (the “Amendment No 23”), covering:

 

  (i) the rescheduling of the Delivery Date of Aircraft No 58,

 

  (ii) the [*] and the rescheduling of the Delivery Dates of Aircraft No 68 and 69.

 

Y - The Buyer and the Seller have entered into amendment no 24 to the Purchase Agreement dated- March, 2012 (the “Amendment No 24”), covering:

 

  (i) the rescheduling of the Delivery Date of Aircraft No 65,

 

  (ii) the [*] and the rescheduling of the Delivery Dates of Aircraft No 60, 70, 71, 72, 73, 74, 75 and 76.

 

Z - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No1 to 24, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

 

A320 Family - TAI - Amendment No 25                        S/10

Ref: CT1201240

A320 Family - TAI - Amendment No 25

Ref: CT1201240

 

6/11


1. DEFINITIONS

For the purposes of this Amendment No 25, the A319-100, A320-200 and the A321-200 ordered by the Buyer under the Purchase Agreement, scheduled for Delivery from 2012 onward, and bearing rank numbers 58, 60, 61, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75 and 76, shall be collectively referred to as “TAl A320 Family Backloa Aircraft”.

 

2. As a result of AviancaTaca Holding S.A. (“AviancaTaca”) and Airbus S.A.S having entered into an A320 Family & A320 NEO Family Purchase Agreement covering the sale by Airbus S.A.S. and the purchase by AviancaTaca of fifty-one (51) A320 Family aircraft (the “AVTA 2011 Ordered Aircraft”), such agreement being dated as of the 27th December 2011 (the “AVTA 2011 Purchase Agreement”), [*] signed between AviancaTaca and Airbus S.A.S. on 22nd June 2011 (the “AVTA 2011 MoU”), the Parties have agreed that the scope of this Amendment W25 is:

 

  (i) to amend the [*] the TAl A320 Family Backlog Aircraft,

 

  (ii) to specify under which terms and conditions such [*] amendment will be implemented.

*[Three pages have been omitted in accordance with a request for confidential treatment.]

 

A320 Family- TAI- Amendment No 25

Ref: CT1201240

 

7/11


 

A320 Family- TAI- Amendment No 25

Ref: CT1201240

 

8/11


5.2 [*]

 

5. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and letter Agreements shall remain in full force and effect and shall apply to this Amendment No 25 except as expressly modified by this Amendment No 25.

In case of any inconsistency between this Amendment No 25 and the Purchase Agreement, this Amendment No 25 shall prevail.

 

A320 Family- TAI -Amendment No 25

Ref: CT1201240

 

9/11


This Amendment No 25 together with the Purchase Agreement, its Exhibits, Letter Agreements, and amendments to date contain the entire agreement between the Parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 25 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment W25 shall not be varied or modified except by an instrument in writing executed by both Parties or by their duly authorised representatives.

This Amendment No 25 shall be governed by and construed and performance thereof shall be determined in accordance with the laws of France.

 

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended.

 

A320 Family- TAI- Amendment No 25

Ref: CT1201240

10/11


IN WITNESS WHEREOF this Amendment No2S was entered into the day and year above written.

 

ATLANTIC AIRCRAFT HOLDING   AIRBUS S.A.S.
UMITEO  
By:  
  (ILLEGIBLE )
Its:   Its

 

A320 Family -TAI-Amendment No 25

Ref: CT1201240

 

11/11

Exhibit 10.5.26

AMENDMENT No. 26

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING UMITED

AIRBUS S.A.S.

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended


AMENDMENT No 26

This Amendment No 26 to the A320 Family Purchase Agreement dated as of March 19, 1998 (hereinafter referred to as: “Amendment No 26”) between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LIMITED is made as of the day of March, 2012.

BETWEEN

AIRBUS S.A.S., a societe par actions simplifiee, formerly known as Airbus G.I.E. created and existing under French law having its registered office at 1Rond-Point Maurice Bellante, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (hereinafter referred to as the “Seller”)

AND

ATLANTIC AIRCRAFT HOLDING LIMITED, having its principal office at c/o the Winterbotham Trust Company Limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “Buyer”)

The Buyer and the Seller being together the “Parties” and each the “Party”.

WHEREAS

 

A - The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements as amended and supplemented from time to time, as the “Purchase Agreement’’) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32 (the “Aircraft’’).

 

B - The Buyer and the Seller have entered into an amendment No1 to the Purchase Agreement dated September 9, 1998 (the “Amendment No 1”), covering the [*] Firm A319-100 Aircraft (to December 1999 and January 2000).

 

C - The Buyer and the Seller have entered into an amendment no 2 to the Purchase Agreement dated December 28, 1999 (the “Amendment No 2”) covering:

 

  (i) The [*] A32Q-200 Aircraft [*] and the

 

  (ii) [*] A320-200 Aircraft, and

 

  (iii) the [*] A320-200 Aircraft with three (3) previously Firm A320-200 Aircraft.

 

D - [*] Simultaneously, the Buyer and the Seller have entered into an amendment no 3 (the “Amendment No 3”) to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.
[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

2/10


E - The Buyer and the Seller have entered into an amendment no 4 to the Purchase Agreement dated February 15,2000 (the “Amendment No 4”) covering:

 

  (i) the [*] A320-200 Aircraft [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] firm A319-100 Aircraft.

 

F - The Buyer and the Seller have entered into amendment no 5 to the Purchase Agreement dated April 6, 2001 (the “Amendment No 5”) covering:

 

  (i) the [*] A320-200 Aircraft [*] Firm No 41) and the [*] A32Q-200 Aircraft (No 44), and

 

  (ii) the [*] A320-200 Aircraft ([*] Firm No 42)

 

  (iii) [*] Firm A319-100 Aircraft (Firm No 31).

 

  (iv) The [*] A320-200 Aircraft [*] Firm No 43) and the [*] iA320-200 Aircraft (No 46), and

 

  (v) the [*] A320-200 Aircraft (Firm No 44) Firm A319-100 Aircraft (Firm No 32).

 

G - The Buyer and the Seller have entered into an amendment no 6 to the Purchase Agreement dated April 9, 2001 (the “Amendment No 6”) covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were scheduled to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] o an A320-200 Aircraft type.

 

H - [*]

[*]

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

3/10


J - The Buyer and the Seller have entered into amendment no 9 to the Purchase Agreement dated December 6, 2002 (the “Amendment No 9” ) covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered into amendment no 10 to the Purchase Agreement dated October 30, 2003 (the “Amendment No 10” ) covering the rescheduling of the Delivery Date of firm A320-200 Aircraft No 46 and 47 respectively from May and June 2004 to October and November 2004.

 

l - The Buyer and the Seller have entered into an amendment no 11 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 11” ) covering simultaneously: (i) the termination of the [*], and (ii) the cancellation and termination of Amendment W3 [*] i stated in paragraph 1of letter Agreement W1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into an amendment no 12 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 12” ) covering:

 

  (i) the [*] of Aircraft W44, 17, 37 [*] A320 [*] A321 [*] and W18, 36 and 21 [*] A320 [*] A319, [*]

 

N - The Buyer and the Seller have entered into an amendment no 13 to the Purchase Agreement dated November 18,2004 (the “Amendment No 13” ), covering: [*]

 

O - The Buyer and the Seller have entered into amendment no 14 to the Purchase Agreement dated February 28, 2006 (the “Amendment No 14” ), covering:

 

  (i) [*],

 

  (ii) AIRMAN software,

 

  (iii) ADOC Job Cards Package, AOOC Consultation Package, and AirN@v and/or ADOC N@vigator Based Consultation

 

  (iv) [*].

 

P - The Buyer and the Seller have entered into amendment no 15 to the Purchase Agreement dated June 22, 2007 (the “Amendment No 15” ), covering: [*].

 

Q - The Buyer and the Seller have entered Into amendment no 16 to the Purchase Agreement dated November 22, 2007 (the “Amendment No 16” ), covering the order of three (3) additional A319-100 aircraft and twelve (12) additional A320-200 aircraft.

 

R - The Buyer and the Seller have entered into amendment no 17 to the Purchase Agreement dated April 1st, 2008 (the “Amendment No 17” ), to amend certain provisions of the [*].

 

 

4/10

 


S - The Buyer and the Seller have entered into amendment no 18 to the Purchase Agreement dated January 30th 2009 (the “Amendment No 18”), covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft No 60 and 61,

 

  (ii) [*].

 

T - The Buyer and the Seller have entered into amendment no 19 to the Purchase Agreement dated April 28th, 2009 (the “Amendment No 19”), covering:

 

  (i) the [*] of the Aircraft No 58, 62 and 65,

 

  (ii) the change of the Delivery Dates of the Aircraft No 58, 62 and 65,

 

U - The Buyer and the Seller have entered into amendment no 20 to the Purchase Agreement dated February 10th 2010 (the “Amendment No 20’’), covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft No 58 and 65,

 

  (ii) [*],

 

  (iii) [*].

 

V - The Buyer and the Seller have entered into amendment no 21 to the Purchase Agreement dated 29 April, 2011(the “Amendment No 21”), covering the [*] of the Aircraft No 64.

 

W - The Buyer and the Seller have entered into amendment no 22 to the Purchase Agreement dated 26 August, 2011(the “Amendment No 22”), covering:

 

  (i) the rescheduling of the Delivery Date of Aircraft No 61,

 

  (ii) the [*] and the rescheduling of the Delivery Dates of Aircraft No 66 and 67.

 

X - The Buyer and the Seller have entered into amendment no 23 to the Purchase Agreement dated 25 October, 2011 (the “Amendment No 23”), covering:

 

  (i) the rescheduling of the Delivery Date of Aircraft No 58,

 

  (ii) the [*] and the rescheduling of the Delivery Dates of Aircraft No 68 and 69.

 

Y - The Buyer and the Seller have entered into amendment no 24 to the Purchase Agreement dated March, 2012 (the “Amendment No 24”), covering:

 

  (i) the rescheduling of the Delivery Date of Aircraft No 5,

 

  (ii) the [*] and the rescheduling of the Delivery Dates of Aircraft No60, 70, 71, 72, 73, 74, 75 and 76.

 

Z - The Buyer and the Seller have entered into amendment no 25 to the Purchase Agreement dated March, 2012 (the “Amendment No 25”), covering: (i) [*] (ii) [*]

 

AA - The Buyer has requested to the Seller that certain Aircraft remaining on order from the Purchase Agreement be equipped with the new large sharklets wingtip device currently designed by the Seller.

 

AB - As used hereafter, the terms “Purchase Agreement” and “A320 Family Purchase Agreement’’ mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 25, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

5/10


1. DEFINITIONS

For the purposes of this Amendment No 26, the A319-100, A320-200 and A321-200 ordered by the Buyer under the Purchase Agreement, scheduled for Delivery from 2012 onward, and bearing rank numbers 58, 60, 61, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75 and 76, shall be collectively referred to as “TAl A320 Family Bacldoc Aircraft”.

Sharklets means a new large wingtip device, currently under development by the Seller, designed to enhance the eco-efficiency and payload range performance of the A320 family aircraft.

 

2. SCOPE

As a result of AviancaTaca Holding S.A. (“AviancaTaca”) and Airbus S.A.S having entered into an A320 Family & A320 NEO Family Purchase Agreement covering the sale by Airbus S.A.S. and the purchase by AviancaTaca of fifty-one (51) A320 Family aircraft (the “AVTA 2011 Ordered Aircraft”), such agreement being dated as of the 27th December 2011 (the “AVTA 2011 Purchase Agreement”), [*] signed between AviancaTaca and Airbus S.A.S. on 22nd June 2011 (the “AVTA 2011 MoU”), the Parties have agreed that the scope of this Amendment No 26 is:

(i) to determine which TAl A320 Family Backlog Aircraft will be equipped with Sharklets,

(ii) to specify under which terms and conditions such Aircraft will be equipped with Sharklets.

 

3. TAl A320 FAMILY BACKLOG AIRCRAFT EQUIPPED WITH SHARKLETS

 

3.1 The Buyer has informed the Seller of its Intention to have certain TAl A320 Family Backlog Aircraft equipped with Sharklets. The Seller confirms that, subject to the terms and conditions set forth in Clause 5 below, in particular, the signature by the parties of the SCN covering the installation of the Sharklets, the following TAl A320 Family Backlog Aircraft will be equipped with Sharldets (the “Sharkfet Equipped Aircraft”):

For the [*]:

 

   

TAl A320 Family Backlog Aircraft W60 (with a Scheduled Delivery Quarter of [*], as set forth in Clause 2 of Amendment No 24)

 

   

TAl A320 Family Backlog Aircraft No 67 (with a Scheduled Delivery Quarter of [*], as set forth in Clause 2 of Amendment No 22)

 

   

TAl A320 Family Backlog Aircraft W65 and Aircraft W69 (each with a Scheduled Delivery Quarter of, as set forth in Clause 2 of Amendment W24 for Aircraft No 65 and in Clause 2 of Amendment No 23 for Aircraft No 69)

 

   

TAl A320 Family Backlog Aircraft No 76 (with a Scheduled Delivery Quarter of [*], as set forth in Clause 2 of Amendment No 24)

 

   

TAl A320 Family Backlog Aircraft W68 (with a Scheduled Delivery Quarter of [*], as set forth in Clause 2 of Amendment No 23)

For the [*]:

 

   

TAl A320 Family Backlog Aircraft W72 and Aircraft W75 (each with a Scheduled Delivery Quarter of [*], as set forth in Clause 2 of Amendment No 24)

 

   

TAl A320 Family Backlog Aircraft No 71, Aircraft No 73 and Aircraft No 74 each with a Scheduled Delivery Quarter of [*], as set forth in Clause 2 of Amendment No 24)

 

   

TAl A320 Family Backlog Aircraft No 66 (with a Scheduled Delivery Quarter of [*], as set forth In Clause 2 of Amendment No 22).

 

6/10


[*]

 

4. CERTIFICATION OF THE SHARKLETS & TAl A319 AIRCRAFT No 70

 

4.1 The Buyer hereby acknowledges that the Sharklets are currently in the process of being developed by the Seller.

*[Two pages have been omitted in accordance with a request for confidential treatment.]

 

7/10


6. MISCELLANEOUS

It is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall remain in full force and effect and shall apply to this Amendment No 26 except as expressly modified by this Amendment No 26.

In case of any inconsistency between this Amendment No 26 and the Purchase Agreement, this Amendment No 26 shall prevail.

This Amendment No 26 together with the Purchase Agreement, its Exhibits, Letter Agreements, and amendments to date contain the entire agreement between the Parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 26 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 26 shall not be varied or modified except by an instrument in writing executed by both Parties or by their duly authorised representatives.

This Amendment No 26 shall be governed by and construed and performance thereof shall be determined in accordance with the laws of France.

 

9/10


IN WITNESS WHEREOF this Amendment No 26 was entered into the day and year above written.

 

ATLANTIC AIRCRAFT HOLDING LIMITED   AIRBUS S.A.S.
  By:    /s/ Christopher Mourey
     Christopher Mourey
  Its:    Senior Vice President Contracts

 

A320 Family- TAI- Amendment No 26

Ref: CT1201242

 

10/10

Exhibit 10.5.27

AMENDMENT No. 27

TO THE A320 FAMILY PURCHASE AGREEMENT

BETWEEN

ATLANTIC AIRCRAFT HOLDING LTO.

AIRBUS S.A.S.

[*] Represents material which has been redacted and filed seperately with the Securities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 406 under the Securities Act of 1933, as amended

CT1201242-AMDT27-TAI-A320 Family

 

1/10


AMENDMENT No 27

This Amendment No 27 to the A320 Family Purchase Agreement dated as of March 19, 1998 (hereinafter referred to as the “Amendment No 27”) between AIRBUS S.A.S. and ATLANTIC AIRCRAFT HOLDING LTD. is made as of the day of November, 2012.

BETWEEN

AIRBUS S.A.S., a societe par actions slmpliflee, formerly known as Airbus G.I.E. created and existing under French law having its registered office at 1 Rond Point Maurice Bellante, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 {hereinafter referred to as the “Seller”)

AND

ATLANTIC AIRCRAFT HOLDING LTD., having its principal office at c/o the Winterbotham Trust Company Limited, Winterbotham Place, Marlborough and Queen Streets. NASSAU, BAHAMAS (hereinafter referred to as the “Buyer”)

The Buyer and the Seller being together the parties and each the “Party”.

WHEREAS

 

A- The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated March 19, 1998 (hereinafter referred to, together with its Exhibits and Letter Agreements as amended and supplemented from time to time, as the “Purchase Agreement”) covering the purchase by the Buyer and the sale by the Seller of thirty two (32) A320 Family Aircraft No 1 to No 32 (the “Aircraft’’) .

 

B- The Buyer and the Seller have entered into an amendment No 1 to the Purchase Agreement dated September 9,1998 (the “Amendment No 1”), covering the [*] Firm A319-100 Aircraft (to December 1999 and January 2000).

 

C- The Buyer and the Seller have entered into an amendment no 2 to the Purchase Agreement dated December 28, 1999 (the “Amendment No 2”) covering :

 

  (i) The [*] A320-200 Aircraft [*] and the of [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] Finn A320-200 Aircraft.

 

D- [*]. Simultaneously,

the Buyer and the Seller have entered into an amendment no 3 (the “Amendment No 3”) to the Purchase Agreement dated December 29, 1999 covering the modification of certain provisions of the Letter Agreement No 1 of the Purchase Agreement.

 

2/10


E- The Buyer and the Seller have entered into an amendment no 4 to the Purchase Agreement dated February 15, 2000 (the “Amendment No 4”) covering:

 

  (i) the [*] A320-200 Aircraft [*] and its [*] A320-200 Aircraft, and

 

  (ii) the [*] A320-200 Aircraft [*] firm A319-100 Aircraft.

 

F- The Buyer and the Seller have entered into amendment no 5 to the Purchase Agreement dated April 6, 2001 (the “Amendment No 5”) covering:

 

  (i) the [*] A320-200 Aircraft [*] Firm No 41) and the [*] A320-200 Aircraft (No 44), and

 

  (ii) the A320-200 Aircraft ([*] Firm No 42) [*] Firm A319-100 Aircraft (Firm No 31 [*] No 45).

 

  (iii) The [*] A320-200 Aircraft [*] Firm No 43) and the [*] A320-200 Aircraft (No 46), and

 

  (iv) the [*] A320-200 Aircraft ([*] Firm No 44)

 

  (v) [*] Finn A319-100 Aircraft (Firm No 32 [*]).

 

G- The Buyer and the Seller have entered into an amendment no 6 to the Purchase Agreement dated April 9, 2001 (the “Amendment No 6’’) covering the rescheduling of certain Delivery Dates related to firm Aircraft No 13, 14 and 40 (all of which were schedule to be delivered in December 2001) which [*] firm Aircraft No 45 (September 2001), No 46 (October 2001) and No 47 (October 2001) and additionally firm Aircraft No 18 [*] an A320-200 Aircraft [*].

 

3/10


H - The Buyer and the Seller have entered Into amendment no 9 to the Purchase Agreement dated December 6, 2002 (the “Amendment No 9”) covering the rescheduling of the Delivery Date of the firm Aircraft No 22 from August 2003 to June 2003.

 

K - The Buyer and the Seller have entered Into amendment no 10 to the Purchase Agreement dated October 30, 2003 {the “Amendment No 10”) covering the rescheduling of the Delivery Date of firm A32Q-200 Aircraft No. 46 and 47 respectively from May and June 2004 to October and November 2004.

 

L - The Buyer and the Seller have entered into an amendment no 11 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 11”) covering simultaneously:

 

  (i) the termination of the [*], and

 

  (ii) the cancellation and tennination of Amendment W3 [*] stated in paragraph 1 of Letter Agreement W1 to the Purchase Agreement.

 

M - The Buyer and the Seller have entered into an amendment no 12 to the Purchase Agreement dated November 18, 2004 (the “Amendment No 12”) covering:

 

  (i) the [*] of Aircraft W44, 17, 37 [*] A320 [*] A321 [*] and W18, 36 and 21 [*] A320 [*] A319 [*]

 

  (ii) [*],

 

  (iii) [*].

 

N - The Buyer and the Seller have entered into an amendment no 13 to the Purchase Agreement dated November 18, 2004 {the “Amendment No. 13”), covering:

[*]

 

O - The Buyer and the Seller have entered into amendment no 14 to the Purchase Agreement dated February 28, 2006 (the “Amendment No. 14”), covering:

 

  (i) [*] to,

 

  (ii) AIRMAN software,

 

  (iii) ADOC Job Cards Package, ADOC Consultation Package, and Air Nav and/or ADOC Navigator Based Consultation

 

  (iv) [*].

 

P - The Buyer and the Seller have entered into amendment no 15 to the Purchase Agreement dated June 22, 2007 (the “Amendment No 15”), covering: [*]

 

Q - The Buyer and the Seller have entered into amendment no 16 to the Purchase Agreement dated November 22, 2007 (the “Amendment No 16”), covering the order of three (3) additional A319-100 aircraft and twelve (12) additional A320-200 aircraft.

 

CT1201242-AMDT27-TAI-A320 Family

 

4/10


R- The Buyer and the Seller have entered into amendment no 17 to the Purchase Agreement dated April 1,2008 (the “Amendment No 17”), to amend certain provisions of the [*].

 

S- The Buyer and the Seller have entered into amendment no 18 to the Purchase Agreement dated January 3rd”, 2009 (the “Amendment No 18”), covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft No 60 and 61,

 

  (ii) [*].

 

T- The Buyer and the Seller have entered into amendment no 19 to the Purchase Agreement dated April 28th, 2009 (the “Amendment No 19”), covering:

 

  (i) the [*] of the Aircraft No 58, 62 and 65,
  (ii) the change of the Delivery Dates of the Aircraft No 58, 62 and 65,

 

U- The Buyer and the Seller have entered into amendment no 20 to the Purchase Agreement dated February 10th, 2010 (the “Amendment No 20”), covering:

 

  (i) the rescheduling of the Delivery Dates of the Aircraft No 58 and 65,

 

  (ii) [*],

 

  (iii) [*].

 

V- The Buyer and the Seller have entered into amendment no 21 to the Purchase Agreement dated 29 April, 2011 (the “Amendment No 21”), covering the [*] of the Aircraft No 64.

 

W- The Buyer and the Seller have entered into amendment no 22 to the Purchase Agreement dated 26 August, 2011 (the “Amendment No 22”), covering:

 

  (i) the rescheduling of the Delivery Date of Aircraft No 61,
  (ii) the [*] and the rescheduling of the Delivery Oates of Aircraft No 66 and 67.

 

X- The Buyer and the Seller have entered into amendment no 23 to the Purchase Agreement dated 25 October, 2011 {the “Amendment No 23”), covering:

 

  (i) the rescheduling of the Delivery Date of Aircraft No 58,

 

  (ii) the [*] and the rescheduling of the Delivery Dates of Aircraft No 68 and . 69.

 

Y- The Buyer and the Seller have entered into amendment no. 24 to the Purchase Agreement dated 29 March, 2012 (the “Amendment No 24), covering:

 

  (i) the rescheduling of the Delivery Date of Aircraft No 65,

 

  (ii) the [*] and the rescheduling of the Delivery Dates of Aircraft No. 60, 70, 71, 72, 73, 74, 75 and 76.

 

Z- The Buyer and the Seller have entered into amendment no 25 to the Purchase Agreement dated 29 March, 2012 (the “Amendment No 25”), covering:

 

[*]

 

5/10


AA - The Buyer and the Seller have entered into amendment no 26 to the Purchase Agreement dated 29 March, 2012 (the Amendment No 26”), covering:

 

  (i) the equipment of certain Aircraft with Sharklets [*]

 

AB - The Buyer has requested the Seller to the, Aircraft W60 [*] The Seller has agreed to such Aircraft under the terms and conditions of this Amendment W27.

 

AC - As used hereafter, the terms MPurchase Agreement” and “A320 Family Purchase Agreement” mean the Purchase Agreement together with all Exhibits and schedules thereto as amended to date by Amendments No 1 to 26, inclusive.

NOW THEREFORE IT IS AGREED AS FOLLOWS:

 

CT1201242-AMDT27-TAI-A320 Family

 

6/10


1. AIRCRAFT [*]

The Parties agree that the A319-100 Aircraft with rank number W60 is hereby rescheduled and [*] an A320-200 Aircraft (the “[*]) as follows:

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

 

[*]

[*]   [*]   [*]   [*]   [*]   [*]

(the “[*]”).

It is hereby agreed that unless otherwise expressly amended herein, all terms and conditions goveming the sale and purchase of A320 Aircraft ordered under Amendment No. 13 to the Purchase Agreement (including, without limitation, the provisions of the Purchase Agreement concerning the amount and the payment of the Final Price of the Aircraft) as set forth in the Purchase Agreement will apply to the [*] Aircraft.

 

2. PREDELIVERY PAYMENTS

[*]

The Parties agree that the Due Payment shall be paid by the Buyer to the Seller upon signature of the Amendment No. 27 and the Predefivery Payment schedule for the Converted Aircraft shall be amended as further detailed in Appendix 1 to the present Amendment W27.

[*]

 

7/10


4. MISCELLANEOUS

It Is hereby agreed that all terms and conditions of the Purchase Agreement, as amended hereby, including its Exhibits and Letter Agreements shall remain in full force and effect and shall apply to this Amendment No 27 except as expressly modified by this Amendment No 27.

In case of any inconsistency between this Amendment No 27 and the Purchase Agreement, this Amendment No 27 shall prevail.

This Amendment No 27 together with the Purchase Agreement, its Exhibits, Letter Agreements, and amendments to date contain the entire agreement between the Parties with respect to the subject matter hereof and supersede any previous understandings, commitments and/or representations whatsoever oral and written with respect to such subject matter.

This Amendment No 27 is executed in two original English counterparts, each of which is an original and both of which together evidence the same agreement. This Amendment No 27 shall not be varied or modified except by an instrument in writing executed by both Parties or by their duly authorised representatives.

This Amendment W27 shall be govemed by and construed and performance thereof shall be determined in accordance with the laws of France.

The Amendment No 27 (and its existence) shall be treated by each Party as confidential and shall not be released or revealed in whole or in part to any third party without the prior written consent of the other Party. In particular, each Party agrees 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.

This Amendment W27 may be executed by the Parties in separate counterparts and any single counterpart shall be deemed to be an original and a set of such counterparts executed and delivered by the Parties shall constitute one and the same Amendment W27 and a full original Amendment No 27 for all purposes.

 

8/10


IN WITNESS WHEREOF this Amendment No 27 was entered Into the day and year above written.

 

      ILLEGIBLE
   ILLEGIBLE   
     
By:    WND LIMITED    By:   
     
Its:    DIRECTOR    Its   

 

CT1201242-AMDT27-TAI-A320 Family

 

9/10


APPENDIX 1 TO AMENDMENT No 27

 

CT1201242-AMDT27-TAI-A320 Family

 

10/10

Exhibit 10.6.1

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N° 1

TO THE

A320 FAMILY P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S.A.S.

as “Seller”

A N D

AVIANCA S.A.

as “Buyer”

Reference : 337.0027/07

 

AVA – A320 Family PA – Amendment N° 1    FINAL

Page 1/8


C O N T E N T S

 

CLAUSES

  

TITLES

    
1    [*]    4
2    [*]    4
3    [*]    4
4    [*]    4
5    CUSTOMER SUPPORT AND TRAINING    4
6    MISCELLANEOUS PROVISIONS    5
7    ASSIGNMENT    5
8    CONFIDENTIALITY    6
9    COUNTERPARTS    6

 

AVA – A320 Family PA – Amendment N° 1    FINAL

Page 2/8


AMENDMENT N° 1 TO THE

A320 FAMILY PURCHASE AGREEMENT

This Amendment N° 1 (hereinafter referred to as the “Amendment N° 1”) is entered into as of the      June 2007

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

Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at administrative Avenida Calle 26 No. 92-30 Bogota, Colombia (the “ Buyer ”).

WHEREAS :

 

  A.

The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated the 16 th  April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft (the A320 Family Purchase Agreement, together with all Exhibits and Appendices attached thereto and any Letter Agreements thereto, as the same may be amended or modified from time to time, the “Agreement”),

 

  B. The Buyer has notified the Seller of its decision to [*] of the Agreement,

 

  C. The Seller and Buyer desire to amend the Agreement as set forth below, and

 

  D. Capitalised terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 1.

 

AVA – A320 Family PA – Amendment N° 1    FINAL

Page 3/8


NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

1. [*] Purchase [*]

 

1.1.1 The Buyer hereby [*] Purchase [*] firmly ordered Aircraft. Such Aircraft shall be referred to individually as Aircraft N° 34 to Aircraft N° 47.

 

1.1.2 Unless otherwise expressly stipulated herein, the terms and conditions applicable to the firm Aircraft under the Agreement on a per Aircraft basis, shall apply [*]. For the avoidance of doubt, such terms and conditions shall include, but shall not be limited to the provisions set forth in Appendix 1 hereto.

 

1.1.3 Clause 9.1.1 of the Agreement is hereby amended by adding the following quoted text:

QUOTE

 

Aircraft N° 34    1 st Quarter 2012    A319-100
Aircraft N° 35    1 st Quarter 2012    A320-200
Aircraft N° 36    1 st Quarter 2012    A319-100
Aircraft N° 37    2 nd Quarter 2012    A320-200
Aircraft N° 38    2 nd Quarter 2012    A319-100
Aircraft N° 39    2 nd Quarter 2012    A320-200
Aircraft N° 40    2 nd Quarter 2012    A319-100
Aircraft N° 41    3 rd Quarter 2012    A320-200
Aircraft N° 42    3 rd Quarter 2012    A319-100
Aircraft N° 43    3 rd Quarter 2012    A320-200
Aircraft N° 44    4 th Quarter 2012    A319-100
Aircraft N° 45    4 th Quarter 2012    A320-200
Aircraft N° 46    4 th Quarter 2012    A319-100
Aircraft N° 47    4 th Quarter 2012    A320-200

UNQUOTE

 

2. [*]

 

3. [*]

 

4. [*]

 

5. Customer Support and Training

 

5.1 In accordance with the provisions as set forth in Clause 15.1 of the Agreement, the [*] Clause 1 of Appendix A to Clause 15 of the Agreement is hereby amended by replacing in lieu thereof the following quoted text::

QUOTE

 

  1. The Seller shall provide to the Buyer a total of [*] of Customer Support Representative services at the Buyer’s main base or at other locations to be mutually agreed.

UNQUOTE

 

5.2 The Seller hereby grants [*] transition type rating instructor training courses to the Buyer. Consequently the number of transition type rating instructor training courses set forth in Clause 1.5 of the Appendix A to Clause 16 of the Agreement shall be hereby increased [*].

 

AVA – A320 Family PA – Amendment N° 1    FINAL

Page 4/8


5.3 [*]

 

5.4 The Seller hereby grants to the Buyer right-hand seat qualification for [*]. Consequently, the number of right-hand seat qualification for pilots set forth in Clause 1 of Letter Agreement N° 7 to the Agreement is hereby increased [*].

 

5.5 The Seller hereby agrees to provide to Buyer LPC [*] for [*] in accordance with the terms and conditions of paragraph 2 of Letter Agreement 18 (Product Support) to the Agreement.

 

5.6 The Seller hereby grants to Buyer [*] maintenance training [*] for the Buyer personnel in accordance with the terms and conditions of Clause 2.1 of Appendix A to Clause 16 of the Agreement.

 

5.7 The Seller hereby agrees to provide AIRMAN to Buyer [*] accordance with the terms and conditions of paragraph 1 of Letter Agreement 18 to the Agreement.

 

5.8 The Seller hereby agrees to provide AirFASE to Buyer on a [*] in accordance with the terms and conditions of paragraph 3.1 of Letter Agreement 18 to the Agreement.

 

5.9 The Seller hereby agrees to provide LOAS on a [*] in accordance with the terms and conditions of paragraph 3.1 of Letter Agreement 18 to the Agreement.

 

5.10 The Seller hereby agrees to provide ADOC Jobcard Publisher [*] in accordance with the terms and conditions of paragraph 4 of Letter Agreement 18 to the Agreement.

 

5.11 The Seller hereby agrees to provide MPDS on [*] in accordance with the terms and conditions of paragraph 5 of Letter Agreement 18 to the Agreement.

 

6. Miscellaneous Provisions

This Amendment N° 1 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof. This Amendment N° 1 shall enter into effect upon signature of the present Amendment N° 1 [*].

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment N° 1, the latter shall prevail to the extent of such conflict or inconsistency.

 

7. Assignment

Except as provided in Clause 21 of the Agreement, this Amendment N° 1 is not transferable, and the Buyer’s rights under this Amendment N° 1 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 1 with respect to any Aircraft will be void and without effect.

 

AVA – A320 Family PA – Amendment N° 1    FINAL

Page 5/8


8. Confidentiality

This Amendment N° 1 (and its existence) shall be treated by both parties as confidential in accordance with Clause 22.12 of the Agreement.

 

9. Counterparts

This Amendment N° 1 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA – A320 Family PA – Amendment N° 1    FINAL

Page 6/8


IN WITNESS WHEREOF this Amendment N° 1 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca      
By:  

/s/ Gerardo Grajales

    By:  

/s/ Christophe Mourey

Its:  

CFO

    Its:  

Senior Vice President Contracts

 

AVA – A320 Family PA – Amendment N° 1    FINAL

Page 7/8


APPENDIX 1: TERMS AND CONDITIONS APPLICABLE TO [*] AIRCRAFT

[*]

 

AVA – A320 Family PA – Amendment N° 1    FINAL

Page 8/8

Exhibit 10.6.2

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N° 2

TO THE

A320 FAMILY P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S.A.S.

as “Seller”

A N D

AVIANCA S.A.

as “Buyer”

Reference : 337.042/07

 

AVA – A320 Family PA – Amendment N° 2    FINAL
CWC – Ref 337.042/07   

Page 1/6


C O N T E N T S

 

CLAUSES

  

TITLES

    
1    [*]    4
2    MISCELLANEOUS PROVISIONS    5
3    ASSIGNMENT    5
4    CONFIDENTIALITY    5
5    COUNTERPARTS    5

 

AVA – A320 Family PA – Amendment N° 2    FINAL
CWC – Ref 337.042/07   

Page 2/6


AMENDMENT N° 2 TO THE

A320 FAMILY PURCHASE AGREEMENT

This Amendment N° 2 (hereinafter referred to as “ Amendment N° 2 ”) is entered into as of the      September 2007

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

Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at administrative Avenida Calle 26 No. 92-30 Bogota, Colombia (the “ Buyer ”).

WHEREAS :

 

  A.

The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated 16 th  April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft together with all Exhibits and Appendices attached thereto and any Letter Agreements thereto, as the same may be amended or modified from time to time, the “ Agreement ”),

 

  B.

The Buyer and the Seller have entered into an Amendment No.1 to the Agreement dated 18 th  June 2007 (“ Amendment No.1 ”) pursuant to which the Buyer has [*],

 

  C. In accordance with the terms of this Amendment N° 2, the Seller and the Buyer hereby agree to consolidate the date upon which the Buyer may, [*].

NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

It is understood that this Amendment N° 2, upon execution hereof, shall constitute an integral and non-severable part of the Agreement and that all terms and conditions of the Agreement shall apply to this Amendment N° 2, unless otherwise agreed upon herein.

Capitalised terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 2.

In the event of any conflict between the provisions of this Amendment N° 2 and the provisions of either Letter Agreement N° 14 or Letter Agreement N° 14A, the terms of this Amendment N° 2 shall prevail.

 

AVA – A320 Family PA – Amendment N° 2    FINAL
CWC – Ref 337.042/07   

Page 3/6


1. [*]

 

1.1 Paragraph 2.2 of Letter Agreement N°14A is hereby deleted in its entirety and is replaced with the following:

QUOTE

 

  2.2 [*];

UNQUOTE

 

1.2 The amendment to paragraph 2 of Letter Agreement N° 14 set out in paragraph 2.4 of Letter Agreement N°14A is hereby deleted in its entirety and is replaced with the following:

QUOTE

 

  2. [*]

UNQUOTE

 

1.3 The amendment to sub-clause (e) of sub-paragraph (i) of paragraph 3.1 of Letter Agreement 14 as set out in paragraph 2.5 of Letter Agreement N°14A is hereby deleted in its entirety and is replaced with the following:

QUOTE

 

  [*] UNQUOTE

 

AVA – A320 Family PA – Amendment N° 2    FINAL
CWC – Ref 337.042/07   

Page 4/6


2. Miscellaneous Provisions

This Amendment N° 2 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment N° 2, the terms and provisions of the latter shall prevail to the extent of such conflict or inconsistency.

 

3. Assignment

Except as provided in Clause 21 of the Agreement, in Letter Agreements Nos. 14 and 14A and hereby, neither this Amendment N° 2 nor the Buyer’s rights under this Amendment N° 2 shall be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 2 with respect to any Aircraft will be void and without effect.

 

4. Confidentiality

This Amendment N° 2 (and its existence) shall be treated by both parties as confidential in accordance with Clause 22.12 of the Agreement.

 

5. Counterparts

This Amendment N° 2 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA – A320 Family PA – Amendment N° 2    FINAL
CWC – Ref 337.042/07   

Page 5/6


IN WITNESS WHEREOF this Amendment N° 2 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca    
By:  

/s/ Juan Carlos Sarabia

    By:  

/s/ Christophe Mourey

Its:  

Attorney-in-fact

    Its:  

Senior Vice President Contracts

 

AVA – A320 Family PA – Amendment N° 2    FINAL
CWC – Ref 337.042/07   

Page 6/6

Exhibit 10.6.3

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N° 3

TO THE

A320 FAMILY P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S.A.S.

as “Seller”

A N D

AVIANCA S.A.

as “Buyer”

Reference : 337.034/07

 

AVA – A320 Family PA – Amendment N° 3    FINAL
CWC – Ref 337.034/07   

Page 1/7


C O N T E N T S

 

CLAUSES

  

TITLES

      
1   

AACT CLASSROOM

  
2   

MISCELLANEOUS PROVISIONS

     4   
3   

ASSIGNMENT

     4   
4   

CONFIDENTIALITY

     4   
5   

COUNTERPARTS

     5   
APPENDIX 1   

AACT CLASSROOM PACKAGE

     7   

 

AVA – A320 Family PA – Amendment N° 3    FINAL
CWC – Ref 337.034/07   

Page 2/7


AMENDMENT N° 3 TO THE

A320 FAMILY PURCHASE AGREEMENT

This Amendment N° 3 (hereinafter referred to as the “Amendment N° 3”) is entered into as of the      November 2007

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

Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at administrative Avenida Calle 26 No. 92-30 Bogota, Colombia (the “ Buyer ”).

WHEREAS :

 

  A.

The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated the 16 th  April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft (the A320 Family Purchase Agreement, together with all Exhibits and Appendices attached thereto and any Letter Agreements thereto, as the same may be amended or modified from time to time, the “Agreement”),

 

  B.

The Buyer and the Seller have entered into an Amendment No.1 to the A320 Family Purchase Agreement dated the 18 th  June 2007 (the “Amendment No.1”) [*] firmly ordered Aircraft.

 

  C.

The Buyer and the Seller have entered into an Amendment No.2 to the A320 Family Purchase Agreement dated the 10 th  September 2007 (the “Amendment No.2”) to amend certain provisions of the Agreement

 

  D. The Buyer and the Seller wish to amend certain provisions of the Agreement as per the terms of this Amendment N° 3.

 

  E. It is understood that the Amendment N° 3, upon execution thereof, shall constitute an integral and non-severable part of the Agreement and that all terms and conditions of the Agreement shall apply to this Amendment N° 3, unless otherwise agreed upon herein.

 

  F. Capitalized terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 3.

 

AVA – A320 Family PA – Amendment N° 3    FINAL
CWC – Ref 337.034/07   

Page 3/7


NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

1. TURN-KEY CLASSROOM

 

1.1 In accordance with Letter Agreement N°7 to the Agreement, the Seller has granted the Buyer, on [*] of M/FTD 2D equipped with Virtual Aircraft [*].

The Seller wishes now to offer [*] to the Buyer in replacement of the [*]. The Seller therefore agrees to provide to the Buyer, on a [*] a turnkey solution, as described in Appendix 1 to this Amendment N° 3, the Seller’s active learning and competence focused training classroom, a training device installed with software and Seller’s standard courseware (the “AACT Classroom”). The AACT Classroom will be supplied to the Buyer subject to deduction of [*] for maintenance training as initially provided under the Appendix A to Clause 16 of the Agreement and as amended by Section 5.6 of the Amendment No. 1 to the Agreement.

Consequently and for the sake of clarity, (i) the number of maintenance trainee days set out in Clause 2.1 of Appendix A of Clause 16 of the Agreement and amended by Amendment No.1 to the Agreement shall be [*].

 

1.2 Terms and conditions for the delivery, support and use of the AACT Classroom by the Buyer will be subject to a separate agreement to be entered between the Buyer and the Seller. License conditions for the use of the virtual cockpit simulation software to be installed in the AACT Classroom shall be agreed, [*] directly between the Buyer and CAE Inc.

 

1.3 It is understood that [*] will be requested to the Buyer with respect to the operation of the AACT Classroom in its initial configuration at delivery, [*] updates and maintenance services of the AACT Classroom.

 

2. Miscellaneous Provisions

This Amendment N° 3 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment N° 3, the latter shall prevail to the extent of such conflict or inconsistency.

 

3. Assignment

Except as provided in Clause 21 of the Agreement, this Amendment N° 3 is not transferable, and the Buyer’s rights under this Amendment N° 3 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 3 with respect to any Aircraft will be void and without effect.

 

4. Confidentiality

This Amendment N° 3 (and its existence) shall be treated by both parties as confidential in accordance with Clause 22.12 of the Agreement.

 

AVA – A320 Family PA – Amendment N° 3    FINAL
CWC – Ref 337.034/07   

Page 4/7


5. Counterparts

This Amendment N° 3 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA – A320 Family PA – Amendment N° 3    FINAL
CWC – Ref 337.034/07   

Page 5/7


IN WITNESS WHEREOF this Amendment N° 3 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca    
By:  

/s/ Juan Carlos Sarabia

    By:  

/s/ Christophe Mourey

Its:  

Attorney-in-fact

    Its:  

Senior Vice President Contracts

 

AVA – A320 Family PA – Amendment N° 3    FINAL
CWC – Ref 337.034/07   

Page 6/7


APPENDIX 1: AACT CLASSROOM PACKAGE

The AACT Classroom is a package composed by:

[*]

 

 

Equipment will be delivered and installed by a Seller’s approved supplier:

 

   

Econocom: www.econocom.com

 

 

All recovery procedures will be delivered to the Buyer to:

 

   

Allow a complete re-installation (from scratch)

 

   

Install all Airbus Training products

 

   

Install the M/FTD-2D software

 

   

Manage trainees curriculum and courses.

 

 

Software:

 

   

CAE software:

 

   

CAE to nominate a Project Manager

 

   

The Buyer will have to sign a software Licence Agreement with CAE

 

   

Do not forget to request “third-party” training rights before signing!

 

 

Aircraft type:

 

   

A320

 

   

A330

 

 

Airbus MFTD package includes:

 

   

“GO5” Data Package license

 

   

Airbus Training Software:

 

   

Airn@v for MFTD with AMM, TSM, Repair Manual, MMEL, Aircraft documentations, etc.

 

   

Virtual Aircraft for MFTD: Component location

 

   

Animated Schematics

 

   

Airbus Maintenance Training documentation (TTM) for A320 and A330 Aircraft

 

 

Hardware:

 

   

Desktop: [*]

 

   

Laptop: [*]

 

   

Flat screen: [*]

 

   

Video-audio System:

 

   

Video projector: [*]

 

   

Projection screen: [*]

 

   

Speakers: [*]

 

   

Video booster: [*]

 

   

Switch

 

 

Warranty: all hardware equipment delivered to the Buyer will have [*]

 

 

Present description may be subject to revision

 

AVA – A320 Family PA – Amendment N° 3    FINAL
CWC – Ref 337.034/07   

Page 7/7

Exhibit 10.6.4

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

Amendent N° 4 to the

A320 Family Purchase Agreement

This Amendment N° 4 (this “Amendment”) dated January 31 st , 2008 is made between Airbus S.A.S., a société par actions simplifiée, created and existing under French law having its registered office at 1 Rond-Point Maurice Bellonte, 31707 Blagnac-Cedex, France (the “Seller” ), and Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at administrative Avenida Calle 26 No. 92-30 Bogota, Colombia (the “ Buyer ”).

WHEREAS :

 

(A)

The Buyer and the Seller have signed on the 16 th  April 2007 an A320 Family Purchase Agreement amended and restated under reference 337.008/07 for the sale by the Seller and purchase by the Buyer of thirty-three (33) A320 Family Aircraft (together with all Exhibits, Appendices and Letter Agreements thereto, as may be amended from time to time, referred to as the “Agreement”).

 

(B) [*]

 

(C) The Buyer and the Seller hereby wish to amend certain provisions of the Agreement in accordance with this Amendment [*].

 

(D) It is understood that this Amendment, upon execution thereof, shall constitute an integral and non-severable part of the said Agreement and that all terms and conditions of the Agreement shall apply to this Amendment, unless otherwise agreed upon herein.

 

(E) Capitalised terms used herein and not otherwise defined in this Amendment shall have the meanings assigned thereto in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment.

NOW IT IS HEREBY AGREED AS FOLLOWS:

 

1. Amendments .

 

(a) Clause 0 of the Agreement is amended by inserting, [*] the following:

[*]

 

AVA – A320 Family PA
Reference : 337.0035/07

Amendment N°4 – Page 1/6


and by inserting, [*], the following:

[*]

and by inserting, [*]:

[*]

 

AVA – A320 Family PA
Reference : 337.0035/07

Amendment N°4 – Page 2/6


(b) Clause 5.3.3 of the Agreement is hereby amended and restated to read in its entirety as follows:

“Such Predelivery Payments shall be made in accordance with the following schedule:

 

Due date of payments

   Percentage of
Predelivery Payments
Reference¨Price
 

Upon signature of this Agreement

     [*]   

On the first day of each of the following months prior to the Scheduled Delivery Month

  

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

In the event the above schedule results in any Predelivery Payments falling due prior to the date of signature of the Agreement, [*].

[*]

 

(c) Clause 5.10 of the Agreement is hereby amended and restated to read in its entirety as follows:

[*]

 

(d) Clause 5.11 of the Agreement is hereby amended and restated to read in its entirety as follows:

[*]

 

(e) Clause 20.1 of the Agreement is hereby amended and restated to read in its entirety as follows:

[*]

 

2. INTENTIONALLY LEFT BLANK

 

3. INTENTIONALLY LEFT BLANK

 

AVA – A320 Family PA
Reference : 337.0035/07

Amendment N°4 – Page 3/6


4. Miscellaneous

This Amendment supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to content of this Amendment. This Amendment shall become effective upon signature.

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment, the latter shall prevail to the extent of such conflict or inconsistency.

This Amendment may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

5. Assignment

Except as provided in Clause 21 of the Agreement, this Amendment is not transferable, and the Buyer’s rights under this Amendment shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment with respect to any Aircraft will be void and without effect.

 

6. Confidentiality

The Amendment (and its existence) shall be treated by the Buyer and the Seller as confidential in accordance with Clause 22.12 of the Agreement and shall not be released in whole or in part to any third party except as may be required by law, or to professional advisors for the implementation hereof.

 

AVA – A320 Family PA
Reference : 337.0035/07

Amendment N°4 – Page 4/6


IN WITNESS WHEREOF this Amendment was entered into the day and year first above written.

 

Airbus S.A.S.
By:  

/s/ Christophe Mourey

  Name:   Christophe Mourey
  Title:   Senior Vice President Contracts
Aerovias del Continente Americano S.A. Avianca
By:  

/s/ Juan Carlos Sarabia

  Name:   Juan Carlos Sarabia
  Title:   Attorney-in-fact

 

AVA – A320 Family PA
Reference : 337.0035/07

Amendment N°4 – Page 5/6


Schedule 1

[*] Aircraft

 

[*]

   Aircraft
no.
     Scheduled Delivery
Month

[*]

     1       September 2008

[*]

     2       November 2008

[*]

     10       June 2009

[*]

     11       June 2009

[*]

     12       September 2009

[*]

     13       September 2009

 

AVA – A320 Family PA
Reference : 337.0035/07

Amendment N°4 – Page 6/6

Exhibit 10.6.5

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N° 5

TO THE

A320 FAMILY P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S.A.S.

as “Seller”

A N D

AVIANCA S.A.

as “Buyer”

Reference : CT0801884

 

AVA – A320 Family PA – Amdt N° 5    FINAL
CWC – Ref CT0801884   

Page 1/6


C O N T E N T S

 

CLAUSES

  

TITLES

      
1   

CHANGE OF DELIVERY DATES

  
2   

PREDELIVERY PAYMENTS

     5   
3   

MISCELLANEOUS PROVISIONS

     5   
4   

ASSIGNMENT

     5   
5   

CONFIDENTIALITY

     5   
6   

COUNTERPARTS

     5   

 

AVA – A320 Family PA – Amdt N° 5    FINAL
CWC – Ref CT0801884   

Page 2/6


AMENDMENT N° 5 TO THE

A320 FAMILY PURCHASE AGREEMENT

This Amendment N° 5 (hereinafter referred to as the “ Amendment N° 5 ”) is entered into as of the      July 2008

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

Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at administrative Avenida Calle 26 No. 92-30 Bogota, Colombia (the “ Buyer ”).

WHEREAS :

 

  A.

The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated the 16 th  April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft (the A320 Family Purchase Agreement, together with all Exhibits and Appendices attached thereto and any Letter Agreements thereto, as the same may be amended or modified from time to time, the “ Agreement ”),

 

  B.

The Buyer and the Seller have entered into an Amendment No.1 to the A320 Family Purchase Agreement dated the 18 th  June 2007 (the “ Amendment No.1 ”) for [*] firmly ordered Aircraft.

 

  C.

The Buyer and the Seller have entered into an Amendment No.2 to the A320 Family Purchase Agreement dated the 10 th  September 2007 (the “ Amendment No.2 ”) to amend certain provisions of the Agreement

 

  D.

The Buyer and the Seller have entered into an Amendment No.3 to the A320 Family Purchase Agreement dated the 27 th  November 2007 (the “ Amendment No.3 ”) to amend certain provisions of the Agreement

 

  E.

The Buyer and the Seller have entered into an Amendment No.4 to the A320 Family Purchase Agreement dated the 31 st  January 2008 (the “ Amendment No.4 ”) to amend certain provisions of the Agreement

 

  F. The Buyer and the Seller wish to enter into Amendment No. 5 to the Purchase Agreement to [*] the Delivery Dates of A320 Aircraft Nos. 11, 35, 37 and 39.

 

  G. It is understood that Amendment N° 5, upon execution thereof, shall constitute an integral and non-severable part of the Agreement and that all terms and conditions of the Agreement shall apply to this Amendment N° 5, unless otherwise agreed upon herein.

 

AVA – A320 Family PA – Amdt N° 5    FINAL
CWC – Ref CT0801884   

Page 3/6


  H. Capitalized terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 5.

 

AVA – A320 Family PA – Amdt N° 5    FINAL
CWC – Ref CT0801884   

Page 4/6


NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

1. [*] Delivery Dates

The Buyer and the Seller wish [*] the Delivery Dates of the A320 Aircraft below:

 

A320 Aircraft No.

  

CAC Ids

  

[*]

  

New Delivery Date

11    246823    [*]    October 2009
35    263457    [*]    August 2009
37    263478    [*]    September 2009
39    263480    [*]    October 2009

 

2. Predelivery Payments

As of the date hereof, with respect to the A320 Aircraft Nos. 11, 35, 37 and 39, the Buyer has paid the Seller Predelivery Payments [*]. The parties hereby agree, that upon signature of this Amendment N° 5 the Buyer shall, with respect to the A320 Aircraft Nos. 11, 35, 37 and 39, pay [*].

Payments made pursuant to this Amendment shall be done in a manner consistent with the provisions of the Purchase Agreement. [*].

 

3. Miscellaneous Provisions

This Amendment N° 5 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment N° 5, the latter shall prevail to the extent of such conflict or inconsistency.

 

4. Assignment

Except as provided in Clause 21 of the Agreement, this Amendment N° 5 is not transferable, and the Buyer’s rights under this Amendment N° 5 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 5 with respect to any Aircraft will be void and without effect.

 

5. Confidentiality

This Amendment N° 5 (and its existence) shall be treated by both parties as confidential in accordance with Clause 22.12 of the Agreement.

 

6. Counterparts

This Amendment N° 5 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA – A320 Family PA – Amdt N° 5    FINAL
CWC – Ref CT0801884   

Page 5/6


IN WITNESS WHEREOF this Amendment N° 5 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca    
By:  

/s/ Juan Carlos Sarabia

    By:  

/s/ Christophe Mourey

Its:  

Attorney-in-fact

    Its:  

Senior Vice President Contracts

 

AVA – A320 Family PA – Amdt N° 5    FINAL
CWC – Ref CT0801884   

Page 6/6

Exhibit 10.6.6

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N° 6

TO THE

A320 FAMILY P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S.A.S.

as “Seller”

A N D

AVIANCA S.A.

as “Buyer”

Reference : CT0803480

 

AVA – A320 Family PA – Amdt N° 6    FINAL
Ref CT0803480   

Page 1/7


C O N T E N T S

 

CLAUSES

  

TITLES

    
1    RESCHEDULING DELIVERY DATES    5
2    PREDELIVERY PAYMENTS    5
3    MISCELLANEOUS PROVISIONS    6
4    ASSIGNMENT    6
5    CONFIDENTIALITY    6
6    COUNTERPARTS    6

 

AVA – A320 Family PA – Amdt N° 6    FINAL
Ref CT0803480   

Page 2/7


AMENDMENT N° 6 TO THE

A320 FAMILY PURCHASE AGREEMENT

This Amendment N° 6 (hereinafter referred to as the “ Amendment N° 6 ”) is entered into as of the      December 2008

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

Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at administrative Avenida Calle 26 No. 92-30 Bogota, Colombia (the “ Buyer ”).

WHEREAS :

 

  A.

The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated the 16 th  April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft (the A320 Family Purchase Agreement, together with all Exhibits and Appendices attached thereto and any Letter Agreements thereto, as the same may be amended or modified from time to time, the “ Agreement ”),

 

  B.

The Buyer and the Seller have entered into an Amendment No.1 to the A320 Family Purchase Agreement dated the 18 th  June 2007 (the “ Amendment No.1 ”) for the [*] firmly ordered Aircraft.

 

  C.

The Buyer and the Seller have entered into an Amendment No.2 to the A320 Family Purchase Agreement dated the 10 th  September 2007 (the “ Amendment No.2 ”) to amend certain provisions of the Agreement

 

  D.

The Buyer and the Seller have entered into an Amendment No.3 to the A320 Family Purchase Agreement dated the 27 th  November 2007 (the “ Amendment No.3 ”) to amend certain provisions of the Agreement

 

  E.

The Buyer and the Seller have entered into an Amendment No.4 to the A320 Family Purchase Agreement dated the 31 st  January 2008 (the “ Amendment No.4 ”) to amend certain provisions of the Agreement

 

  F. The Buyer and the Seller have entered into an Amendment No.5 to the A320 Family Purchase Agreement dated the 23rd July 2008 (the “ Amendment No.5 ”) to amend certain provisions of the Agreement

 

  G. In accordance with the terms of this Amendment N° 6, the Seller and the Buyer hereby agree to reschedule the Delivery Dates of Aircraft Nos. 23, 24 and 28.

 

AVA – A320 Family PA – Amdt N° 6    FINAL
Ref CT0803480   

Page 3/7


  H. It is understood that Amendment N° 6, upon execution thereof, shall constitute an integral and non-severable part of the Agreement and that all terms and conditions of the Agreement shall apply to this Amendment N° 6, unless otherwise agreed upon herein.

 

  I. Capitalized terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 6.

 

AVA – A320 Family PA – Amdt N° 6    FINAL
Ref CT0803480   

Page 4/7


NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

1. Rescheduling of Delivery Dates

The Buyer and the Seller wish to [*] the Delivery Dates of the A320 Aircraft below:

 

A320 Aircraft No.

  

CAC Ids

  

[*]

  

New Delivery Date

23

   246835    [*]    July 2009

24

   246836    [*]    July 2009

28

   246893    [*]    August 2009

 

2. Predelivery Payments

As of the date hereof, with respect to the A320 Aircraft Nos. 23, 24 and 28, the Buyer has paid the Seller Predelivery Payments [*].

The parties hereby agree, that upon signature of this Amendment N° 6 the Buyer shall, with respect to the A320 Aircraft Nos. 23, 24 and 28, [*].

Specifically for A320 Aircraft Nos. 23, 24 and 28, [*]:

[*]

Payments made pursuant to this Amendment shall be done in a manner consistent with the provisions of the Purchase Agreement. [*].

 

AVA – A320 Family PA – Amdt N° 6    FINAL
Ref CT0803480   

Page 5/7


3. Miscellaneous Provisions

This Amendment N° 6 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment N° 6, the latter shall prevail to the extent of such conflict or inconsistency.

 

4. Assignment

Except as provided in Clause 21 of the Agreement, this Amendment N° 6 is not transferable, and the Buyer’s rights under this Amendment N° 6 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 6 with respect to any Aircraft will be void and without effect.

 

5. Confidentiality

This Amendment N° 6 (and its existence) shall be treated by both parties as confidential in accordance with Clause 22.12 of the Agreement.

 

6. Counterparts

This Amendment N° 6 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA – A320 Family PA – Amdt N° 6    FINAL
Ref CT0803480   

Page 6/7


IN WITNESS WHEREOF this Amendment N° 6 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca      
By:  

/s/ Juan Carlos Sarabia

    By:  

/s/ Christophe Mourey

Its:  

Attorney-in-fact

    Its:  

Senior Vice President Contracts

 

AVA – A320 Family PA – Amdt N° 6    FINAL
Ref CT0803480   

Page 7/7

Exhibit 10.6.7

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N° 7

TO THE

A320 FAMILY P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S.A.S.

as “Seller”

A N D

AVIANCA S.A.

as “Buyer”

Reference : CT0901213

 

AVA – A320 Family PA – Amdt N° 7    Ref CT0901213

Page 1/7


C O N T E N T S

 

CLAUSES

  

TITLES

    
1   

[*]

   4
2   

PREDELIVERY PAYMENTS

   4
3   

[*]

   4
4   

[*]

   4
5   

[*]

   4
6   

MISCELLANEOUS PROVISIONS

   4
7   

ASSIGNMENT

   4
8   

CONFIDENTIALITY

   4
9   

COUNTERPARTS

   5

 

AVA – A320 Family PA – Amdt N° 7    Ref CT0901213

Page 2/7


AMENDMENT N° 7 TO THE

A320 FAMILY PURCHASE AGREEMENT

This amendment N° 7 (hereinafter referred to as the “ Amendment N° 7 ”) is entered into as of the 6 July 2009

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

Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at Centro Administrativo, Avenida Calle 26 No 59-15, Bogota, Colombia (the “ Buyer ”).

The Buyer and the Seller being together the “Parties” and each the “Party”.

WHEREAS :

 

  A.

The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated the 16 th  April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft (the “A320 Family Purchase Agreement”, together with all Exhibits and Appendices attached thereto, any Letter Agreements thereto and Amendments N° 1 to 6 thereto, the “ Agreement ”),

 

  B. [*],

 

  B. In accordance with the terms of this Amendment N° 7, the Seller and the Buyer hereby agree to amend certain provisions of the Agreement.

 

  C. It is understood that Amendment N° 7, upon execution thereof, shall constitute an integral and non-severable part of the Agreement and that all terms and conditions of the Agreement shall apply to this Amendment N° 7, unless otherwise agreed upon herein.

 

  D. Capitalized terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 7.

 

AVA – A320 Family PA – Amdt N° 7    Ref CT0901213

Page 3/7


NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

1. [*]

 

* [Two pages have been omitted in accordance with a request for confidential treatment.]

 

2. Predelivery Payments

[*]

 

3. [*]

 

4. [*]

[*]

 

5. [*]

 

6. Miscellaneous Provisions

This Amendment N° 7 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment N° 7, the latter shall prevail to the extent of such conflict or inconsistency.

 

7. Assignment

Except as provided in Clause 21 of the Agreement, this Amendment N° 7 is not transferable, and the Buyer’s rights under this Amendment N° 7 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 7 with respect to any Aircraft will be void and without effect.

 

8. Confidentiality

This Amendment N° 7 (and its existence) shall be treated by both Parties as confidential in accordance with Clause 22.12 of the Agreement.

 

AVA – A320 Family PA – Amdt N° 7    Ref CT0901213

Page 4/7


9. Counterparts

This Amendment N° 7 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA – A320 Family PA – Amdt N° 7    Ref CT0901213

Page 5/7


IN WITNESS WHEREOF this Amendment N° 7 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca      
By:  

/s/ Juan Carlos Sarabia

    By:  

/s/ Christophe Mourey

Its:  

Attorney-in-fact

    Its:  

Senior Vice President Contracts

 

AVA – A320 Family PA – Amdt N° 7    Ref CT0901213

Page 6/7


APPENDIX 2

[*]

 

AVA – A320 Family PA – Amdt N° 7    Ref CT0901213

Page 7/7

Exhibit 10.6.8

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N° 8

TO THE

A320 FAMILY  P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S.A.S.

as “Seller”

A N D

AVIANCA S.A.

as “Buyer”

 

AVA – A320 Family PA – Amdt N° 8
Ref : SA00D09018976

1/7


C O N T E N T S

 

CLAUSES

  

TITLES

    

1

   REQUEST FOR [*] DELIVERY POSITIONS    4

2

   MISCELLANEOUS PROVISIONS    5

3

   ASSIGNMENT    5

4

   CONFIDENTIALITY    5

5

   COUNTERPARTS    5

 

AVA – A320 Family PA – Amdt N° 8
Ref : SA00D09018976

2/7


AMENDMENT N° 8 TO THE PURCHASE AGREEMENT

This amendment N° 8 (the “ Amendment N° 8”) dated      day of October 2009 is made

BETWEEN:

AIRBUS S.A.S., a société par actions simplifiée, legal successor of Airbus S.N.C., formerly known as Airbus 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

Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at Centro Administrativo, Avenida Calle 26 No 59-15, Bogota, Colombia (the “ Buyer ”).

The Buyer and the Seller being together the “ Parties ” and each the “ Party ”.

WHEREAS :

 

  A. The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated the 16th April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft, together with all Exhibits and Appendices attached thereto, any Letter Agreements thereto and Amendments N° 1 to 7 thereto (the “ A320 Family Purchase Agreement ”).

 

  B. The Buyer hereby wishes to amend [*] the Scheduled Delivery Quarter of certain Aircraft under the A320 Family Purchase Agreement.

 

  C. It is understood that the Amendment N° 8, upon execution thereof, shall constitute an integral and non-severable part of the A320 Family Purchase Agreement.

 

  D. Capitalised terms used herein and not otherwise defined in this Amendment N° 8 shall have the meanings assigned thereto in the A320 Family Purchase Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 8.

 

AVA – A320 Family PA – Amdt N° 8
Ref : SA00D09018976

3/7


NOW IT IS HEREBY AGREED AS FOLLOWS :

 

1. REQUEST FOR [*] DELIVERY POSITIONS

 

  1.1. The Buyer has expressed to the Seller its desire to amend [*] the Scheduled Delivery Quarters of the Aircraft as set forth in the table 1.1 here below (the “ Selected Aircraft ”).

[*]

 

      

Aircraft Type

  

Rank N°

  

[*]

  

[*] Request

1    A320-200    27    [*]    June 2012
2    A320-200    29    [*]    June 2013
3    A320-200    30    [*]    June 2013
4    A320-200    32    [*]    June 2014
5    A320-200    33    [*]    March 2014
6    A320-200    41    [*]    June 2014
7    A320-200    43    [*]    September 2018
8    A319-100    44    [*]    June 2014
9    A320-200    45    [*]    September 2018
10    A319-100    46    [*]    June 2014
11    A320-200    47    [*]    December 2018

[*]

 

  1.2 Subject to Clauses 1.1, 1.3 and 1.4 hereof [*].

 

* [Three pages have been omitted in accordance with a request for confidential treatment.]

 

AVA – A320 Family PA – Amdt N° 8
Ref : SA00D09018976

4/7


2. Miscellaneous Provisions

This Amendment N° 8 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

The A320 Family Purchase Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the A320 Family Purchase Agreement and this Amendment N° 8, the latter shall prevail to the extent of such conflict or inconsistency.

 

3. Assignment

Except as provided in Clause 21 of the A320 Family Purchase Agreement, this Amendment N° 8 is not transferable, and the Buyer’s rights under this Amendment N° 8 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 8 with respect to any Aircraft will be void and without effect.

 

4. Confidentiality

This Amendment N° 8 (and its existence) shall be treated by both Parties as confidential in accordance with Clause 22.12 of the A320 Family Purchase Agreement.

 

5. Counterparts

This Amendment N° 8 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA – A320 Family PA – Amdt N° 8
Ref : SA00D09018976

5/7


IN WITNESS WHEREOF this Amendment N° 8 was entered into the day and year first above written.

For and on behalf of

 

Aerovias del Continente Americano S.A. Avianca

/s/ Juan Carlos Sarabia

Name:   Juan Carlos Sarabia
Title:   Attorney-in-fact
For and on behalf of
AIRBUS S.A.S.

/s/ Christophe Mourey

Name:   Christophe Mourey
Title:   Senior Vice President Contracts

 

AVA – A320 Family PA – Amdt N° 8
Ref : SA00D09018976

6/7


APPENDIX 1

[*]

 

AVA – A320 Family PA – Amdt N° 8
Ref : SA00D09018976

7/7

Exhibit 10.6.9

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N ° 9

TO THE

A320 FAMILY PURCHASE AGREEMENT

BETWEEN

A I R B U S  S.A.S.

as “Seller”

AND

AVIANCA S.A.

as “Buyer”

Reference: CT1001145

 

Page 1 /5


CONTENTS

 

CLAUSES

 

TITLES

    
1   [*]    3
2   DELIVERY SCHEDULE    3
3   [*]    4
4   PREDELIVERY PAYMENTS    4
5   MISCELLANEOUS PROVISIONS    4
6   ASSIGNMENT    4
7   CONFIDENTIALITY    4
8   COUNTERPARTS    4

 

Page 2 /5


AMENDMENT N ° 9 TO THE

A320 FAMILY PURCHASE AGREEMENT

This amendment N° 9 (hereinafter referred to as the “Amendment 9”) is entered into as of the 12 March 2010.

BETWEEN:

AIRBUS S.A.S., a societe par actions simplifies, 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

Aerovias del Continente Americano S.A. Avianca , a Colombian sociedad anonima created and existing under Colombian law having its registered office at Centre Administrative, Avenida Calle 26 No 59-15, Bogota, Colombia (the “ Buyer ”),

The Buyer and the Seller being together the “Parties” and each the “Party”.

WHEREAS:

 

  A.

The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated the 16 th  April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft (the “A320 Family Purchase Agreement”, together with all Exhibits and Appendices attached thereto, any Letter Agreements thereto and Amendments N° 1 to 8 thereto, the “Agreement”),

 

  B. In accordance with the terms of this Amendment N° 9, the Seller and the Buyer hereby agree to amend certain provisions of the Agreement.

 

  C. It is understood that Amendment N° 9, upon execution thereof, shall constitute an integral and non-severable part of the Agreement and that all terms and conditions of the Agreement shall apply to this Amendment N° 9, unless otherwise agreed upon herein.

 

  D. Capitalized terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 9.

NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

  1. [*]

 

  2. Delivery Schedule

[*] Parties hereby agree that the Scheduled Delivery Months of A320 family Aircraft with rank numbers 8, 9 and 27 shall be amended as set forth in the table here below:

 

Rank number

  

A/C Type

  

[*]

  

Revised Scheduled

Delivery Quarters

8    A319-100    [*]    1 st Quarter 2013
9    A319-100    [*]    2 nd Quarter 2013
27    A320-200    [*]    2 nd Quarter 2013

 

Page 3 /5


  3. [*]

 

  4. Pre-delivery payments

It is agreed that, as a result of (i) the [*] of Aircraft with rank numbers 8, 9 and 27 as set forth in the above Clause 2 [*] the allocation of Predelivery Payments for such Aircraft shall be amended and the Seller shall recalculate the relevant Predelivery Payment Schedule and any remaining Predelivery Payment due shall be paid to the Seller, upon the signature of Amendment N° 9, in accordance with the revised Predelivery Payment Schedule.

 

  5. Miscellaneous Provisions

This Amendment N° 9 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment N° 9, the latter shall prevail to the extent of such conflict or inconsistency.

 

  6. Assignment

Except as provided in clause 21 of the Agreement, this Amendment N° 9 is not transferable, and the Buyer’s rights under this Amendment N° 9 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 9 with respect to any Aircraft will be void and without effect.

 

  7. Confidentiality

This Amendment N° 9 (and its existence) shall be treated by both Parties as confidential in accordance with clause 22.12 of the Agreement.

 

  8. Counterparts

This Amendment N° 9 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

Page 4 /5


IN WITNESS WHEREOF this Amendment N° 9 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca    

 

Page 5 /5


LETTER AGREEMENT NO. 1 TO AMENDMENT NO. 9

Aerovias del Continente Americano S.A. Avianca

Centra Administrative

Avenida Calle 26 No 59-15,

Bogota, Colombia

RE: MISCELLANEOUS PROVISIONS

Aerovias del Continente Americano S.A. Avianca (the “Buyer”) and AIRBUS S.A.S. (the “Seller”) have entered into Amendment No. 9 dated 12 March 2010 (the “Amendment”), to a Purchase Agreement (the “Agreement”) dated 16 April 2007, which covers, among other things, the manufacture and the sale by the Seller and the purchase by the Buyer of the Aircraft, under the terms and conditions in said Agreement. The Buyer and the Seller have agreed to set forth in this Letter Agreement to the Amendment (the “Letter Agreement” ) certain additional terms and conditions regarding [*] the Aircraft.

Capitalized terms used herein and not otherwise defined in this Letter Agreement will have the meanings assigned thereto in the Agreement. Except when used in quoted text, the terms “herein,” “hereof and “hereunder” and words of similar import refer to this Letter Agreement.

Both parties agree that this Letter Agreement will constitute an integral, nonseverable part of said Amendment, that the provisions of said Amendment are hereby incorporated herein by reference, and that this Letter Agreement will be governed by the provisions of said Agreement, except that if the Agreement, the Amendment and this Letter Agreement have specific provisions which are inconsistent, the specific provisions contained in this Letter Agreement will govern.

NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

  1. Pre-Delivery Payments [*]

[*]

 

  2. Notices

It is hereby agreed by the Parties that the clause 22.2 to the Purchase Agreement shall be deleted in its entirety and replaced with the following:

QUOTE

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

 

Letter Agreement N°1 to the Amendment N°9 -Page 1 /3


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 Business Day notice shall be deemed to have been received .pn the first following Business Day, shall be deemed to be the effective date of such notice or request.

Seller’s address for notices is:

AIRBUS

Attn. To V. P. Contracts

1 Rond-Point Maurice Bellonte

31707 BlagnacCedex

France

Buyer’s address for notices is:

Aerovias del Continente Americano S.A. Avianca

Centra Administrative,

Avenida Calle 26 No 59-15,

Bogota, Colombia

[*]

or such other address or such other person as the party receiving the notice or request may reasonably designate from time to time.

UNQUOTE

 

  3. Assignment

Except as provided in Clause 21 of the Agreement, this Letter Agreement is not transferable, and the Buyer’s rights under this Letter Agreement shall not be assigned, sold, transferred, or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Letter Agreement with respect to any Aircraft will be void and without effect.

 

  4. Confidentiality

This Letter Agreement (and its existence) shall be treated by both parties as confidential in accordance with Clause 22.12 of the Agreement.

 

  5. Counterparts

This Letter Agreement may be executed by the parties in any number of counterparts, each of which when so executed and delivered (including counterparts delivered by facsimile) shall be an original, and all such counterparts will together constitute one and the same instrument.

 

Letter Agreement N°1 to the Amendment N°9 -Page 2 /3


If the foregoing correctly sets forth our understanding, please execute two (2) originals in the space provided below and return one (1) original of this Letter Agreement to the Seller.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca    
By:  

/s/ Elisa Murgas de Moreno

    By:  

/s/ Christophe Mourey

Its:  

Legal Representative

    Its:  

Senior Vice President Contracts

 

Letter Agreement N°1 to the Amendment N°9 -Page 3 /3

Exhibit 10.6.10

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N° 10

TO THE

A320 FAMILY P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S.A.S.

as “Seller”

A N D

AVIANCA S.A.

as “Buyer”

Reference : CT1004937

AVA – A320 Family PA – Amdt N° 10

Ref: CT1004937

 

Page 1/7


C O N T E N T S

 

CLAUSES

  

TITLES

      

1

  

DELIVERY SCHEDULE

     4   

2

  

PREDELIVERY PAYMENT

     4   

3

  

MISCELLANEOUS PROVISIONS

     4   

4

  

ASSIGNMENT

     5   

5

  

CONFIDENTIALITY

     5   

6

  

COUNTERPARTS

     5   

 

AVA – A320 Family PA – Amdt N° 10
Ref: CT1004937

Page 2/7


AMENDMENT N° 10 TO THE

A320 FAMILY PURCHASE AGREEMENT

This amendment N° 10 (hereinafter referred to as the “ Amendment N° 10 ”) is entered into as of the      November 2010.

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

Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at Centro Administrativo, Avenida Calle 26 No 59-15, Bogota, Colombia (the “ Buyer ”).

The Buyer and the Seller being together the “Parties” and each the “Party”.

WHEREAS :

 

  A.

The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated the 16 th  April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft (the “A320 Family Purchase Agreement”, together with all Exhibits and Appendices attached thereto, any Letter Agreements thereto and Amendments N° 1 to 9 thereto, the “ Agreement ”),

 

  B. In accordance with the terms of this Amendment N° 10, the Seller and the Buyer hereby agree to amend certain provisions of the Agreement.

 

  C. It is understood that Amendment N° 10, upon execution thereof, shall constitute an integral and non-severable part of the Agreement and that all terms and conditions of the Agreement shall apply to this Amendment N° 10, unless otherwise agreed upon herein.

 

  D. Capitalized terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 10.

 

AVA – A320 Family PA – Amdt N° 10
Ref: CT1004937

Page 3/7


NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

1. Delivery Schedule

[*] the Scheduled Delivery Month or Scheduled Delivery Quarters as the case may be, of four (4) A320 family Aircraft as defined in the Agreement, the Parties hereby agree that the Scheduled Delivery Months or Scheduled Delivery Quarters as the case may be, of A320 family Aircraft with rank numbers 8, 36, 43 and 46 shall be amended as set forth in the table here below:

 

Rank number

  

A/C Type

  

[*]

 

Revised

Scheduled

Delivery Quarters
or Delivery year

8

   A319-100    [*]   1 st  Quarter 2014

36

   A319-100    [*]   1 st  Quarter 2013

43

46

   A320-200

A319-100

   [*]

[*]

  2014

3 rd  Quarter 2013

[*]

 

2. Predelivery payments:

It is agreed that, as a result of the [*] of the A320 family Aircraft with rank numbers 8, 36, 43 and 46, the Seller shall have received [*] as detailed in Appendix 1 to the present Amendment N° 10, such amount being the [*].

 

3. Miscellaneous Provisions

This Amendment N° 10 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment N° 10, the latter shall prevail to the extent of such conflict or inconsistency.

 

AVA – A320 Family PA – Amdt N° 10
Ref: CT1004937

Page 4/7


4. Assignment

Except as provided in clause 21 of the Agreement, this Amendment N° 10 is not transferable, and the Buyer’s rights under this Amendment N° 10 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 10 with respect to any Aircraft will be void and without effect.

 

5. Confidentiality

This Amendment N° 10 (and its existence) shall be treated by both Parties as confidential in accordance with clause 22.12 of the Agreement.

 

6. Counterparts

This Amendment N° 10 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA – A320 Family PA – Amdt N° 10
Ref: CT1004937

Page 5/7


IN WITNESS WHEREOF this Amendment N° 10 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca    
By:  

/s/ Elisa Murgas de Moreno

    By:  

/s/ Christophe Mourey

Its:  

Legal Representative

    Its:  

Senior Vice President Contracts

 

AVA – A320 Family PA – Amdt N° 10
Ref: CT1004937

Page 6/7


Appendix 1

[*]

 

AVA – A320 Family PA – Amdt N° 10
Ref: CT1004937

Page 7/7

Exhibit 10.6.11

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N° 11

TO THE

A320 FAMILY P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S.A.S.

as “Seller”

A N D

AVIANCA S.A.

as “Buyer”

Reference : CT1102215

AVA – A320 Family PA – Amendment N° 11

Ref: CT1102215

 

Page 1/7


C O N T E N T S

 

CLAUSES

 

TITLES

    
0  

SCOPE

   4
1  

DELIVERY SCHEDULE AND AIRCRAFT TYPE

   4
2  

PREDELIVERY PAYMENTS

   4
3  

MISCELLANEOUS PROVISIONS

   4
4  

ASSIGNMENT

   4
5  

CONFIDENTIALITY

   5
6  

COUNTERPARTS

   5

 

AVA – A320 Family PA – Amendment N° 11

Ref: CT1102215

Page 2/7


AMENDMENT N° 11 TO THE

A320 FAMILY PURCHASE AGREEMENT

This amendment N° 11 (hereinafter referred to as the “ Amendment N° 11 ”) is entered into as of the      August 2011.

BETWEEN:

AIRBUS S.A.S., a société par actions simplifiée, legal successor of Airbus S.N.C., formerly known as Airbus 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

Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at Centro Administrativo, Avenida Calle 26 No 59-15, Bogota, Colombia (the “ Buyer ”).

The Buyer and the Seller being together the “ Parties ” and each the “ Party ”.

WHEREAS :

 

  A.

The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated the 16 th  April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft (the “A320 Family Purchase Agreement”, together with all Exhibits and Appendices attached thereto, any Letter Agreements thereto and Amendments N° 1 to 11 thereto, the “ Agreement ”),

 

  B. In accordance with the terms of this Amendment N° 11, the Seller and the Buyer hereby agree to amend certain provisions of the Agreement.

 

  C. It is understood that Amendment N° 11, upon execution thereof, shall constitute an integral and non-severable part of the Agreement and that all terms and conditions of the Agreement shall apply to this Amendment N° 11, unless otherwise agreed upon herein.

 

  D. Capitalized terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 11.

 

AVA – A320 Family PA – Amendment N° 11

Ref: CT1102215

Page 3/7


NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

0. SCOPE

[*] the Parties agree:

 

  (i) to amend the Scheduled Delivery Month or Schedule Delivery Quarter of one (1) A320 family Aircraft with rank number 40; and

[*]

 

1. DELIVERY SCHEDULE AND AIRCRAFT TYPES

The Parties hereby agree that the [*] and/or the Scheduled Delivery Months or Scheduled Delivery Quarters as the case may be, of the A320 family Aircraft scheduled for Delivery shall be amended as set forth in the table here below (the “ Agreed Modification ”):

 

Rank

number

 

[*]

 

A/C

[*] Type

 

[*]

 

Revised Scheduled

Delivery

Months/Quarters

40   [*]   320-200   [*]   June 2012

 

2. PREDELIVERY PAYMENTS

The parties hereby agree that, as a result of the Agreed Modifications, and in accordance with the Predelivery Payment schedule set out in clause 5.3 to the Agreement, the Buyer [*].

The Buyer agrees to pay to the Seller, upon signature of this Amendment N ° 11, [*].

 

3. MISCELLANEOUS

This Amendment N° 11 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment N° 11, the latter shall prevail to the extent of such conflict or inconsistency.

 

4. ASSIGNMENT

Except as provided in clause 21 of the Agreement, this Amendment N° 11 is not transferable, and the Buyer’s rights under this Amendment N° 11 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 11 with respect to any Aircraft will be void and without effect.

 

AVA – A320 Family PA – Amendment N° 11

Ref: CT1102215

Page 4/7


5. CONFIDENTIALITY

This Amendment N° 11 (and its existence) shall be treated by both Parties as confidential in accordance with clause 22.12 of the Agreement.

 

6. COUNTERPARTS

This Amendment N° 11 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA – A320 Family PA – Amendment N° 11

Ref: CT1102215

Page 5/7


IN WITNESS WHEREOF this Amendment N° 11 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca  
By:  

/s/ Elisa Murgas de Moreno

    By:  

/s/ Patric de Castelbajac

Its:  

Secretary General

    Its:  

Vice President Contracts

 

AVA – A320 Family PA – Amendment N° 11

Ref: CT1102215

Page 6/7


APPENDIX 1

[*]

 

AVA – A320 Family PA – Amendment N° 11

Ref: CT1102215

Page 7/7

Exhibit 10.6.12

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N° 12

TO THE

A320 FAMILY P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S.A.S.

as “Seller”

A N D

AVIANCA S.A.

as “Buyer”

Reference : CT1105932

AVA – A320 Family PA – Amendment N° 12

Ref: CT1105932

 

Page 1/7


C O N T E N T S

 

CLAUSES

 

TITLES

   

0

 

SCOPE

  4

1

 

DELIVERY SCHEDULE AND AIRCRAFT TYPE

  4

2

 

PREDELIVERY PAYMENTS

  4

3

 

MISCELLANEOUS PROVISIONS

  4

4

 

ASSIGNMENT

  5

5

 

CONFIDENTIALITY

  5

6

 

COUNTERPARTS

  5

 

AVA – A320 Family PA – Amendment N° 12

Ref: CT1105932

Page 2/7


AMENDMENT N° 12 TO THE

A320 FAMILY PURCHASE AGREEMENT

This amendment N° 12 (hereinafter referred to as the “ Amendment N° 12 ”) is entered into as of the      October 2011.

BETWEEN:

AIRBUS S.A.S., a société par actions simplifiée, legal successor of Airbus S.N.C., formerly known as Airbus 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

Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at Centro Administrativo, Avenida Calle 26 No 59-15, Bogota, Colombia (the “ Buyer ”).

The Buyer and the Seller being together the “ Parties ” and each the “ Party ”.

WHEREAS :

 

  A.

The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated the 16 th  April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft (the “A320 Family Purchase Agreement”, together with all Exhibits and Appendices attached thereto, any Letter Agreements thereto and Amendments N° 1 to 12 thereto, the “ Agreement ”),

 

  B. In accordance with the terms of this Amendment N° 12, the Seller and the Buyer hereby agree to amend certain provisions of the Agreement.

 

  C. It is understood that Amendment N° 12, upon execution thereof, shall constitute an integral and non-severable part of the Agreement and that all terms and conditions of the Agreement shall apply to this Amendment N° 12, unless otherwise agreed upon herein.

 

  D. Capitalized terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 12.

 

AVA – A320 Family PA – Amendment N° 12

Ref: CT1105932

Page 3/7


NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

0. SCOPE

[*], the Parties agree:

 

  (i) to amend the Scheduled Delivery Month or Schedule Delivery Quarter of six (6) A320 family Aircraft with rank numbers 8, 9, 36, 42, 44 and 46; and

 

  (ii) [*]

 

1. DELIVERY SCHEDULE AND AIRCRAFT TYPES

The Parties hereby agree that the [*] Scheduled Delivery Months or Scheduled Delivery Quarters as the case may be, of the A320 family Aircraft scheduled for Delivery shall be amended as set forth in the table here below (the “ Agreed Modifications ”):

 

Rank

number

  

[*]

  

A/C
[*] Type

  

[*]

  

Revised Scheduled

Delivery

Months/Quarters

8    [*]    A320-200    [*]    May 2013
9    [*]    A320-200    [*]    October 2012
36    [*]    A320-200    [*]    February 2013
42    [*]    A320-200    [*]    July 2012
44    [*]    A320-200    [*]    Q3 2014
46    [*]    A320-200    [*]    January 2013

 

2. PREDELIVERY PAYMENTS

The parties hereby agree that, as a result of the Agreed Modifications, and in accordance with the Predelivery Payment schedule set out in clause 5.3 to the Agreement as amended by clause 1 of Letter Agreement N°2, the [*] effect of such Agreed Modifications on Predelivery Payments due for each of the Aircraft N°8, 9, 36, 42, 44 and 46 will be as follows (as further detailed in Appendix 1 to the present Amendment N°12):

[*]

 

3. MISCELLANEOUS

This Amendment N° 12 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment N° 12, the latter shall prevail to the extent of such conflict or inconsistency.

 

AVA – A320 Family PA – Amendment N° 12

Ref: CT1105932

Page 4/7


4. ASSIGNMENT

Except as provided in clause 21 of the Agreement, this Amendment N° 12 is not transferable, and the Buyer’s rights under this Amendment N° 12 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 12 with respect to any Aircraft will be void and without effect.

 

5. CONFIDENTIALITY

This Amendment N° 12 (and its existence) shall be treated by both Parties as confidential in accordance with clause 22.12 of the Agreement.

 

6. COUNTERPARTS

This Amendment N° 12 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA – A320 Family PA – Amendment N° 12

Ref: CT1105932

Page 5/7


IN WITNESS WHEREOF this Amendment N° 12 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca    
By:  

/s/ Elisa Murgas de Moreno

    By:  

/s/ Christophe Mourey

Its:  

Secretary General

    Its:  

Senior Vice President Contracts

 

AVA – A320 Family PA – Amendment N° 12

Ref: CT1105932

Page 6/7


APPENDIX 1

*[Six pages have been omitted in accordance with a request for confidential treatment.]

 

AVA – A320 Family PA – Amendment N° 12

Ref: CT1105932

Page 7/7

Exhibit 10.6.13

Note: Certain portions have been omitted from this Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

AMENDMENT N° 13

TO THE

A320 FAMILY P U R C H A S E  A G R E E M E N T

B E T W E E N

A I R B U S  S.A.S.

as “Seller”

A N D

AVIANCA S.A.

as “Buyer”

Reference: CT1201689

AVA – A320 Family PA – Amendment N° 13

Ref: CT1201689

 

Page 1/6


C O N T E N T S

 

CLAUSES

  

TITLES

      

1

  

DEFINITIONS

     4   

2

  

SCOPE

     4   

3

  

[*]

     4   

4

  

AVA A320 FAMILY BACKLOG AIRCRAFT EQUIPPED WITH SHARKLETS

     4   

5

  

CERTIFICATION OF THE SHARKLETS

  

6

  

[*]

  

7

  

[*]

  

8

  

PAYMENT FOR THE SHARKLET

  

9

  

MISCELLANEOUS

     5   

10

  

ASSIGNMENT

     5   

11

  

CONFIDENTIALITY

     5   

12

  

COUNTERPARTS

     5   

 

AVA – A320 Family PA – Amendment N° 13

Ref: CT1201689

Page 2 /6


AMENDMENT N° 13 TO THE

A320 FAMILY PURCHASE AGREEMENT

This amendment N° 13 (hereinafter referred to as the “ Amendment N° 13 ”) is entered into as of the     June 2012.

BETWEEN:

AIRBUS S.A.S., a société par actions simplifiée, legal successor of Airbus S.N.C., formerly known as Airbus 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

Aerovias del Continente Americano S.A. Avianca, a Colombian sociedad anonima created and existing under Colombian law having its registered office at Centro Administrativo, Avenida Calle 26 No 59-15, Bogota, Colombia (the “ Buyer ”).

The Buyer and the Seller being together the “ Parties ” and each the “ Party ”.

WHEREAS :

 

  A.

The Buyer and the Seller have entered into an A320 Family Purchase Agreement dated the 16 th  April 2007 for the sale by the Seller and the purchase by the Buyer of nine (9) A319-100 Aircraft and twenty four (24) A320 Aircraft (the “ A320 Family Purchase Agreement ”, together with all Exhibits and Appendices attached thereto, any Letter Agreements thereto and Amendments N° 1 to 13 thereto, the “ Agreement ”),

 

  B. In accordance with the terms of this Amendment N° 13, the Seller and the Buyer hereby agree to amend certain provisions of the Agreement.

 

  C. It is understood that Amendment N° 13, upon execution thereof, shall constitute an integral and non-severable part of the Agreement and that all terms and conditions of the Agreement shall apply to this Amendment N° 13, unless otherwise agreed upon herein.

 

  D. Capitalized terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms “herein”, “hereof” and “hereunder” and words of similar import refer to this Amendment N° 13.

 

AVA – A320 Family PA – Amendment N° 13

Ref: CT1201689

Page 3 /6


NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

1. DEFINITIONS

For the purposes of this Amendment N° 13, the A319 Aircraft and the A320 Aircraft ordered by the Buyer under the Agreement, scheduled for Delivery from 2012 onward, and bearing rank numbers 8, 9, 27, 36, 38, 40, 41, 42, 43, 44, 45, 46 and 47, shall be collectively referred to as “ AVA A320 Family Backlog Aircraft ”.

Sharklets means a new large wingtip device, currently under development by the Seller, designed to enhance the eco-efficiency and payload range performance of the A320 family aircraft.

 

2. SCOPE

[*]

 

3. [*]

 

4. AVA A320 FAMILY BACKLOG AIRCRAFT EQUIPPED WITH SHARKLETS

 

4.1 The Buyer has informed the Seller of its intention to have certain AVA A320 Family Backlog Aircraft equipped with Sharklets. The Seller confirms that, subject to the terms and conditions set forth in Clause 6 below, in particular, the signature by the parties of the SCN covering the installation of the Sharklets, the following AVA A320 Family Backlog Aircraft will be equipped with Sharklets (the “ Sharklet Equipped Aircraft ”):

 

   

The A320-200 AVA A320 Family Backlog Aircraft N° 36 (with a Scheduled Delivery Month of [*], as set forth in Clause 1 of Amendment N° 12)

 

   

The A320-200 AVA A320 Family Backlog Aircraft N° 8 (with a Scheduled Delivery Month of [*], as set forth in Clause 1 of Amendment N° 12)

 

   

The A320-200 AVA A320 Family Backlog Aircraft N° 27 (with a Scheduled Delivery Month of [*], as set forth in Clause 2 of Amendment N° 9 and as notified by the Seller to the Buyer on 17 August 2011)

 

   

The A320-200 AVA A320 Family Backlog Aircraft N° 43 (with a delivery [*], as set forth in Clause 1 of Amendment N° 10, [*]

 

   

The A320-200 AVA A320 Family Backlog Aircraft N° 44 (with a Scheduled Delivery Quarter of Q3 2014, as set forth in Clause 1 of Amendment N° 12).

 

4.2 The Buyer hereby understands and agrees that the commitments made in Clause 4.1 above and in Clause 5 below by the Seller are subject to (a) the Sharklet Equipped Aircraft being delivered both [*].

 

5. [*] THE SHARKLETS

The Buyer hereby acknowledges that the Sharklets are currently in the process of being developed by the Seller.

[*]

 

AVA – A320 Family PA – Amendment N° 13

Ref: CT1201689

Page 4 /6


6. SHARKLET [*]

[*]

 

7. SHARKLET [*]

[*]

 

8. [*]

 

9. MISCELLANEOUS

This Amendment N° 13 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

The Agreement shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

If there is any conflict or inconsistency between the terms and provisions of the Agreement and this Amendment N° 13, the latter shall prevail to the extent of such conflict or inconsistency.

 

10. ASSIGNMENT

Except as provided in clause 21 of the Agreement, this Amendment N° 13 is not transferable, and the Buyer’s rights under this Amendment N° 13 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment N° 13 with respect to any Aircraft will be void and without effect.

 

11. CONFIDENTIALITY

This Amendment N° 13 (and its existence) shall be treated by both Parties as confidential in accordance with clause 22.12 of the Agreement.

 

12. COUNTERPARTS

This Amendment N° 13 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA – A320 Family PA – Amendment N° 13

Ref: CT1201689

Page 5 /6


IN WITNESS WHEREOF this Amendment N° 13 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of
Aerovias del Continente     AIRBUS S.A.S.
Americano S.A. Avianca    
By:  

/s/ Elisa Murgas de Moreno

    By:  

/s/ Christophe Mourey

Its:  

Legal Representative

    Its:  

Senior Vice President Contracts

 

AVA – A320 Family PA – Amendment N° 13

Ref: CT1201689

Page 6 /6

Exhibit 10.7

SYNERGY AEROSPACE CORP. ,

as Original Buyer

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA ,

as New Buyer

AND

AIRBUS S.A.S .

 

 

ASSIGNMENT, ASSUMPTION AND AMENDMENT

AGREEMENT

in respect of four (4) A330-200F of

the thirteen (13) A330-200 and A330-200F

under the

Purchase Agreement

dated September 5 th , 2011

 

 

 


CONTENTS

 

Clause    Page  

1.

   Definitions and Interpretation      2   

2.

   Assignment, Assumption and Amendment      3   

3.

   Amendments and Adjustments      4   

4.

   Representations and Warranties      6   

5.

   Pre-delivery Payments      7   

6.

   INDEMNITY      7   

7.

   Future Amendments      7   

8.

   Governing Law      8   

9.

   Notices      8   

10.

   Reference      9   

11.

   Onward Transfer of Rights      9   

12.

   Confidentiality      9   

13.

   Entire Agreement      9   

14.

   Counterparts   

Schedule 1 Product Support Services Chart

  


This Assignment, Assumption and Amendment Agreement (this “ Assignment ”) is dated as of the 18 th day of May, 2012,

BETWEEN :

 

(1) SYNERGY AEROSPACE CORP. , a company organised and existing under the laws of Panama (the “ Original Buyer ”);

 

(2) AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA, a company created and existing under the laws of Colombia (the “New Buyer”); and

 

(3) AIRBUS S.A.S. , a société par actions simplifiée organised under the laws of the Republic of France (“ Airbus ”).

WHEREAS:

 

(A)

Pursuant to the A330 Purchase Agreement dated September 5 th , 2011, including all exhibits and appendixes attached thereto and any letter agreements thereto entered into between Airbus and the Original Buyer attached as Exhibit A (the “Purchase Agreement”), inter alia, the Original Buyer agreed to buy, and Airbus agreed to sell, certain aircraft upon the terms and subject to the conditions contained therein;

 

(B) Pursuant to that certain Letter Agreement entered into by and between Original Buyer and Airbus and that certain other Letter Agreement entered into by and between New Buyer and Airbus (collectively, the “Letter Agreements”) each dated as of September 23, 2011 (the “Effective Date”), the parties agreed, inter alia , for Original Buyer to assign and subject to the terms and conditions thereof, effectively assigned all of its rights and obligations to New Buyer with respect solely to the Assigned Avianca Aircraft. Airbus acknowledged and agreed to such assignment in the Letter Agreements and Parties agreed therein to further detail such assignment pursuant to this Assignment;

 

(C) As more fully described in this Assignment and subject to the terms and conditions contained herein, the parties re-confirm and agree that as of the Effective Date: (i) the Original Buyer transfers to the New Buyer all of its rights, title, benefits and interests and all of its obligations and liabilities under the Purchase Agreement so far as they relate to the Assigned Avianca Aircraft and the New Buyer acquires such rights, title, benefits, interests, obligations and liabilities and (ii) the Original Buyer is released from, and the New Buyer shall assume, all of the Original Buyer’s rights, title, benefits, interests, liabilities and obligations under the Purchase Agreement so far as they relate to the Assigned Avianca Aircraft; and

 

(D) For the avoidance of doubt, as of the Effective Date, two (2) separate purchase agreements shall be deemed to exist as follows: (1) the Purchase Agreement with all of its terms and conditions except as amended in Clause 3.1.1 herein and (2) a new purchase agreement with the same terms and conditions as the Purchase Agreement except as amended in Clause 3.1.2 herein (the “Assigned Purchase Agreement”).

 

1


NOW THEREFORE , in consideration of the mutual representations, warranties and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the Parties, the Parties agree as follows:

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Definitions

Except as otherwise defined herein capitalised terms used herein shall have the same meanings as ascribed thereto in the Purchase Agreement and the following terms shall have the following meanings:

Assigned Avianca Aircraft ” means any or all of the four (4) Airbus A330-200 Freighter Aircraft bearing rank numbers 1, 2, 3 and 7 in the Assigned Purchase Agreement.

Assigned Purchase Agreement ” has the meaning in the recitals hereof.

“Effective Date ” has the meaning in the recitals hereto.

Encumbrance ” means any encumbrance or security interest whatsoever, howsoever created or arising including (without prejudice to the generality of the foregoing) any right of ownership, security, mortgage, pledge, charge, encumbrance, lien, assignment, statutory right in rem, hypothecation, title, retention, attachment, levy, claim, right of possession or detention, right of set-off (but excluding any right of set-off arising by way of operation of law) or any agreement or arrangement having a similar effect to any of the foregoing.

Parties ” means, collectively, the Original Buyer, the New Buyer and Airbus (each, a “ Party ”).

Purchase Agreement ” has the meaning set forth in the recitals hereof.

Relevant Proportion ” means (a) with respect to the Purchase Agreement, the proportion based on the Unassigned Synergy Aircraft under the Purchase Agreement and (b) with respect to the Assigned Purchase Agreement, the proportion based on the Assigned Avianca Aircraft under the Assigned Purchase Agreement.

Unassigned Synergy Aircraft” means any or all of the [*] Aircraft bearing rank numbers [*] Airbus [*] Aircraft bearing rank numbers [*] in the Purchase Agreement.

 

1.2 Interpretation

In this Assignment:

 

  1.2.1 references to clauses are to be construed as references to the clauses of the Purchase Agreement;

 

  1.2.2 references to this Assignment (or to any specified provisions of this Assignment) or any other document shall be construed as references to this Assignment, that provision or that document as in force for the time being and as amended in accordance with its terms, or, as the case may be, with the agreement of the relevant parties;

 

2


  1.2.3 words importing the plural shall include the singular and vice versa;

 

  1.2.4 headings to clauses or sections are for convenience only and are to be ignored in construing this Assignment;

 

  1.2.5 references to a person shall be construed as including references to an individual, firm, company, corporation, unincorporated body of persons or any state or any agency thereof and shall include references to its successors, permitted transferees and permitted assigns;

 

  1.2.6 references to any statute or statutory provision include any statute or statutory provision which amends, extends, consolidates or replaces the same, or which has been amended, extended, consolidated or replaced by the same, and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute;

 

  1.2.7 liability includes any obligation or liability (whether present or future, actual or contingent, secured or unsecured, as principal or surety or otherwise); and

 

  1.2.8 the words herein, hereof and hereunder, and words of similar import shall be construed to refer to a document in its entirety and not to any particular provision of such document.

 

2. ASSIGNMENT, ASSUMPTION AND AMENDMENT

 

2.1 As of, and with effect from, the Effective Date and subject to the terms and conditions set forth herein, including without limitation the amendments and adjustments set out in clause 3 herein, the Parties re-confirm that:

 

  2.1.1 the Original Buyer assigned and transferred to the New Buyer all of the rights, title, benefits and interests and all of the obligations and liabilities of the Original Buyer under the Purchase Agreement (except as set forth in clause 3 herein) so far as they relate only to the Assigned Avianca Aircraft;

 

  2.1.2 the New Buyer assumed and undertook all of the obligations and liabilities of the Original Buyer under the Purchase Agreement (except as set forth in clause 3 herein) as contemplated in the Letter Agreements and this Assignment so far as they relate only to the Assigned Avianca Aircraft in every way as if the New Buyer had at all times been a party to the Purchase Agreement in place of the Original Buyer;

 

  2.1.3 the New Buyer shall perform the obligations and liabilities of the Original Buyer under the Purchase Agreement so far as they relate to the Assigned Avianca Aircraft and is bound by the terms of the Assigned Purchase Agreement in respect thereof in every way as if the New Buyer had at all times been a party to the Purchase Agreement in place of the Original Buyer;

 

3


  2.1.4 with respect to the Assigned Avianca Aircraft and all of the rights, title, benefits and interests of the Original Buyer under the Purchase Agreement (except as set forth in clause 3 herein), the Original Buyer and Airbus: (i) irrevocably and forever release each other from all of their respective covenants, undertakings, obligations, duties, responsibilities and liabilities under the Purchase Agreement to the extent that the same relate to the Assigned Avianca Aircraft; and (ii) irrevocably and forever waive any rights against each other with respect to the Assigned Avianca Aircraft and any of their rights, title, benefits and interests under the Purchase Agreement from and continuing at all times after the Effective Date; and

 

  2.1.5 Airbus acknowledges the aforesaid assignment, transfer, assumption, release and undertaking and consents to the same.

 

2.2 Each of the foregoing agreements is conditional on, and took effect simultaneously with, the others.

 

2.3 New Buyer and Airbus each acknowledge that from the Effective Date hereof, the New Buyer shall be the “Buyer” under, and is bound, liable and responsible for all terms and conditions set forth in, the Assigned Purchase Agreement.

 

3. AMENDMENTS AND ADJUSTMENTS

 

3.1 The Parties to this Assignment hereby agree that, with effect from the Effective Date:

 

  3.1.1 The Purchase Agreement shall be amended to reflect the assignment of the Assigned Avianca Aircraft to the New Buyer and shall include the following amendments:

 

  (a) in Clause 1, the phrase [*] shall be deleted and replaced with [*]”;

 

  (b) in Clause 9.1.1, the delivery period references for Aircraft N°1, Aircraft N°2, Aircraft N°3 and Aircraft N°7 shall be deleted;

 

  (c) Appendix A of Clause 15, Appendix A of Clause 16 and Letter Agreement No 5 shall be changed to take into account the Relevant Proportion as applicable to the Original Buyer and is more fully described in Schedule 1 attached hereto; and

 

  (d) In Letter Agreement No 6:

 

  3.1.2 [*] The Assigned Purchase Agreement shall include all of the terms and conditions of the Purchase Agreement amended to reflect the assignment of the Assigned Avianca Aircraft to the New Buyer and shall include the following amendments:

 

  (a) all references to “Buyer” or “Synergy Aerospace Corp” shall be deemed to be “AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA”;

 

  (b) all references to “Guarantor” or “Synergy Group Corp” shall be deemed to be “AviancaTaca Holding, S.A.”;

 

  (c) in Clause 0, the defined term “A330 Aircraft” shall be deleted;

 

4


  (d) Clause 1 is hereby deleted and replaced with the following: “The Seller shall sell and deliver and the Buyer shall buy and take delivery of four (4) A330-200F on the applicable delivery date at the delivery location upon the terms and conditions contained in this Agreement.”;

 

  (e) Clause 2.2.2, Clause 2.4.2, Clause 3.1 shall be deleted in their entireties;

 

  (f) in Clause 5.1, the references to the Buyer’s account shall be deleted and replaced with the following text:

[*]

 

  (g) in Clause 5.11.1, the phrase “not to include AviancaTaca Holding, S.A. and its Subsidiaries” shall be deleted and replaced by “for avoidance of doubt not to include Synergy Aerospace Corp, Synergy Group Corp and any of either entities subsidiaries (excluding AviancaTaca Holding, S.A. and its Subsidiaries)”;

 

  (h) Clauses 7.2.3, 7.2.4 and 7.2.5 shall be deleted in their entireties;

 

  (i) in Clause 9.1.1, the delivery period references for Aircraft N°4, Aircraft N°5, Aircraft N°6 for the A330-200F Aircraft and the complete chart of Delivery Periods for A330 Aircraft shall be deleted and with respect to Aircraft N °2, the Delivery Period shall be deleted and replaced with [*] and with respect to Aircraft N °3, the Delivery Period shall be deleted and replaced with [*];

 

  (j) Appendix A of Clause 15 and Appendix A of Clause 16 shall be changed to take into account the Relevant Proportion as applicable to the Original Buyer and is more fully described in Schedule 2 attached hereto;

 

  (k) in Clause 22.2, the Buyer’s address for notices shall be changed to:

Aerovías del Continente Americano S.A. – Avianca

Attn.: Secretary

Avenida El Dorado No. 59-15 Piso 10

Bogotá – Colombia

[*]

 

  (l) in Clause 22.4.2, sub-clause (ii) shall be deleted and replaced with:

“(ii) on the Buyer or the Guarantor by (a) delivery of the same personally or by dispatching the same by Federal Express, UPS, or similar international air courier service prepaid, return receipt requested to: [*] or (b) any other method authorized by the laws of the State of New York; provided in each case that failure to deliver or mail such copy shall not affect the validity or effectiveness of the service of process.

 

  (m) in Exhibit A, Part 2 shall be deleted;

 

5


  (n) in Exhibit C, Part 1 shall be deleted;

 

  (o) in [*]

 

  (p) in Letter Agreement [*], any provision relating to the A330 Aircraft shall be deleted in its entirety, [*];

 

  (q) Letter Agreement No 5 shall be changed to take into account the Relevant Proportion as applicable to the Original Buyer and is more fully described in Schedule 2 attached hereto;

 

  (r) In Letter Agreement [*]:

[*]:

 

  (s) [*] in paragraph 1 of Letter Agreement No 7, the phrase “both the A330 and” and sub-sections (i)-(vi) shall be deleted; furthermore, [*]

 

  (t) in paragraph 1 of Letter Agreement No 8, the phrase “both the A330 and” and sub-section (iii) shall be deleted;

 

  (u) in paragraph 2 (Clause 11) of Letter Agreement No.9, sub-section 11.4 shall be deleted; and

 

  (v) Letter Agreement No 11 shall be deleted in its entirety.

[*] Subject to the amendments set out in this Clause 3.1.1, the Original Buyer agrees that the Purchase Agreement shall continue to apply and have full effect between the Original Buyer and Airbus.

 

4. REPRESENTATIONS AND WARRANTIES

 

4.1 Each Party to this Assignment represents and warrants to each other Party that:

 

  4.1.1 it is duly established and validly existing under the laws of the place of its incorporation and has full power, authority and legal right to execute and perform this Assignment;

 

  4.1.2 it has taken all necessary legal and corporate action to authorise the execution and performance of this Assignment;

 

  4.1.3 its execution and delivery of this Assignment, and the performance by it of its obligations hereunder, does not, and will not, violate any provision of its constitutive documents or any provision of any applicable law in any material respect; and

 

  4.1.4 this Assignment constitutes a legal, valid and binding obligation of such Party in accordance with its terms.

 

6


4.2 As of the date hereof, each of the Original Buyer and Airbus represents and warrants to each of the other Parties that it is not in default under the Purchase Agreement and has not created or granted any Encumbrance with respect to the Purchase Agreement so far as it relates to the Assigned Avianca Aircraft or its rights thereunder.

 

4.3 The New Buyer represents and warrants that the AVTA Guaranty dated September 23, 2011, is in full force and effect. Subject to the terms and conditions contained in such AVTA Guaranty, it will remain in place until all of the Obligations (as defined therein) have been performed or otherwise satisfied by the New Buyer.

 

5. [*]

 

6. INDEMNITY

New Buyer shall indemnify and hold harmless Airbus for:

 

  6.1 any liabilities, costs, expenses and obligations arising out of this Assignment which would not have been incurred by Airbus had the Assignment not occurred, including, without limitation, liabilities, reasonable costs, reasonable expenses and obligations relating to (1) any amendment to the Specification of any Assigned Avianca Aircraft (as such has been agreed between the Original Buyer and Airbus in accordance with the terms of the Purchase Agreement with respect to the Aircraft); or (2) the performance of any additional work on the Assigned Avianca Aircraft beyond what is currently contemplated in the Purchase Agreement with regard to the Aircraft; and

 

  6.2 all reasonable out-of-pocket costs and expenses incurred by Airbus (including all reasonable costs and expenses relating to external legal and tax advice) in connection with the negotiation, preparation and execution of any of the agreements and arrangements contemplated by this Assignment, such amounts to be borne by the New Buyer.

 

7. FUTURE AMENDMENTS

No amendment, modification or waiver in respect of this Assignment will be effective unless in writing (including a writing evidenced by a facsimile transmission) and executed by each of the Parties. Each of the New Buyer and Airbus covenant in favour of the Original Buyer that no amendment, modification or waiver in respect of this Assignment will be effective unless consented to by the Original Buyer.

 

8. GOVERNING LAW

THIS ASSIGNMENT WILL BE GOVERNED BY AND CONSTRUED AND THE PERFORMANCE THEREOF WILL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAWS PROVISIONS THAT WOULD RESULT IN THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.

Each of the Parties (i) hereby irrevocably submits itself to the nonexclusive jurisdiction of the courts of the state of New York, New York County, of the United States District Court for the Southern District of New York, for the purposes of any suit, action or other proceeding arising out of this Assignment, the subject matter

 

7


hereof or any of the transactions contemplated hereby brought by any party or parties hereto, and (ii) hereby waives, and agrees not to assert, by way of motion, as a defense or otherwise, in any such suit, action or proceeding, to the extent permitted by applicable law, any defense based on sovereign or other immunity or that the suit, action or proceeding which is referred to in clause (i) above is brought in an inconvenient forum, that the venue of such suit, action or proceeding is improper, or that this Assignment or the subject matter hereof or any of the transactions contemplated hereby may not be enforced in or by these courts.

THE PARTIES HEREBY ALSO AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY TO THIS TRANSACTION.

 

9. NOTICES

The address and fax number (and the department or officer, if any, for whose attention the communication is to be made) of each Party for any communication or document to be made or delivered under or in connection with this Assignment is identified with its name below or in any substitute details which that Party may notify to the other Parties by not less than fifteen (15) Business Days’ notice.

 

  9.1.1 In the case of the Original Buyer:

SYNERGY AEROSPACE CORP.

Attn: Chief Financial Officer & Senior Legal Counsel

Rua Professora Heleisa Carneiro, 21

Sao Paulo SP, CEP 04630-050, Brazil

 

  9.1.2 In the case of the New Buyer:

Aerovias del Continente Americano S.A. – Avianca

Attn.: Secretary

Avenida El Dorado No. 59-15 Piso 10

Bogotá – Colombia

[*]

 

  9.1.3 In the case of Airbus:

Airbus S.A.S.

1 rond point Maurice Bellonte

31707 Blagnac Cedex

France

 

10. [*] REFERENCE

Any future reference to (a) the Purchase Agreement in relation to any of the Assigned Avianca Aircraft in any document or instrument in connection therewith, shall, after the Effective Date, be deemed to be a reference to the Assigned Purchase Agreement and (b) the “Buyer” under the Assigned Purchase Agreement, as assigned, or in any other document or instrument, and in any case in relation to any of the Assigned Avianca Aircraft, shall, after the Effective Date, be deemed to be a reference to the New Buyer.

 

8


11. ONWARD TRANSFER OF RIGHTS

The New Buyer agrees that it may not assign, novate, transfer, sell, delegate or otherwise deal with or dispose of any of its rights hereunder or under the Assigned Purchase Agreement without the prior written consent of Airbus.

 

12. CONFIDENTIALITY

This Assignment (and its existence) shall be treated by all of the Parties as confidential in accordance with clause 22.12 of the Purchase Agreement and the Assigned Purchase Agreement.

 

13. ENTIRE AGREEMENT

This Assignment constitutes the entire agreement between the Parties and supersedes all previous negotiations, representations, undertakings and agreements (except the Letter Agreements) heretofore made between the parties with respect to its subject matter, provided that to the extent there is a conflict between the terms of the Letter Agreements and this Assignment, this Assignment shall govern.

 

14. COUNTERPARTS

This Assignment (and each amendment, modification and waiver in respect of it) may be executed and delivered in counterparts (including by facsimile transmission), each of which will be deemed an original.

 

9


IN WITNESS WHEREOF the parties have executed this Assignment on the date first above written.

 

Original Buyer

SYNERGY AEROSPACE CORP.

By    
Name    
Title:    

 

New Buyer

 

AEROVIAS DEL CONTINENTE

AMERICANO S.A. – AVIANCA

By    
Name    
Title    

 

Airbus

 

AIRBUS S.A.S.

By    
Name    
Title    

 

10


Schedule 1

The table below details the amendments to Appendix A of Clause 15, Appendix A of Clause 16 and Letter Agreement No 5 of the Purchase Agreement as applicable to the Original Buyer based on its Relevant Proportion.

 

[*]

   [*]

 

11


Schedule 2

 

* [Twenty-seven pages have been removed pursuant to a request for confidential treatment]

Exhibit A

[*]

 

12

Exhibit 10.7.1

AMENDMENT No. 1

TO THE

A330-200F PURCHASE AGREEMENT

BETWEEN

AIRBUS S.A.S.

as Seller

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

as Buyer

Reference: CT1004409

 

AVA- A330F PA-Amendment No. 1

Page 1/5


AMENDMENT No 1 TO THE

A330-2OOF PURCHASE AGREEMENT

This Amendment No 1 (hereinafter referred to as the “Amendment No 1”) is entered into as of the16 day of August 2012.

BETWEEN:

AIRBUS S.A.S ., a société par actions simplifiée, created and existing under French law having its registered office at 1 Rond-Point Maurice Bellante, 31707 Blagnac·Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (the “ Seller ”),

and

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA ., a company organized and existing under the laws of Panamá, with address at Ave Manuel e Batista, Torre IBC, Piso Sto, Oficina 505, Ciudad de Panamá, Panamá (the “ Buyer ”).

WHEREAS:

 

  A.

Synergy Aerospace Corp. (“ Synergy ”) and the Seller entered into an A330 200 and A330 200F Purchase Agreement dated September 5 th , 2011 , as amended by Amendment No.1 dated May 18th, 2012 [*] (the “ Purchase Agreement ”);

 

  B. The Buyer, Seller [*];

 

  C. In accordance with the terms of this Amendment No 1, the Seller and the Buyer desire to amend certain provisions of the [*];

 

  D. Capitalized terms used herein and not otherwise defined will have the meaning assigned to them in the Assigned Purchase Agreement. The terms “herein”, “hereof’ and “hereunder” and words of similar import refer to this Amendment No 1;

 

AVA- A330F PA-Amendment No. 1

Page 2/5


NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

1. Amendment

The Delivery Schedule chart in Clause 9.1.1 of the [*] shall be deleted in its entirety and replaced with the following:

A330·200F Aircraft:

 

Aircraft Rank

   Delivery Period

Aircraft N o 1

   [*]

Aircraft N o 2

   [*]

Aircraft N o 3

   [*]

Aircraft N o 7

   [*]

 

2. Predelivery payments

It is hereby agreed that, as a result of the [*], as set forth in Clause 1 above, and in accordance with the Predelivery Payments schedule set forth in Clause 5 of the [*], as amended by [*] in Predelivery Payments [*].

Upon signature of this Amendment No 1, the Buyer and the Seller hereby agree that such [*].

 

3. Miscellaneous Provisions

 

3.1 This Amendment No 1 constitutes an integral and non-severable part of the [*] and that all terms and conditions of the [*] shall apply to this Amendment No 1, unless otherwise agreed upon herein.

 

3.2 This Amendment No 1 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter hereof.

 

3.3 The [*] shall be deemed to be amended to incorporate the terms and conditions hereof, and, except as specifically amended hereby, shall continue in full force and effect in accordance with its original terms.

 

3.4 If there is any conflict or inconsistency between the terms and provisions of the [*] and this Amendment No 1, the latter shall prevail to the extent of such conflict or inconsistency.

 

AVA- A330F PA-Amendment No. 1

Page 3/5


4. Assignment

This Amendment No 1 is not transferable, and the Buyer’s rights under this Amendment No 1 shall not be assigned, sold, transferred or otherwise alienated by operation of law or otherwise to any person other than the Buyer. Any unauthorised assignment, sale, transfer or other alienation of the Buyer’s rights under this Amendment No 1 with respect to any Aircraft will be void and without effect.

 

5. Confidentiality

This Amendment No 1 (and its existence) shall be treated by both Parties as confidential in accordance with Clause 22.12 of the [*].

 

6. Counterparts

This Amendment No 1 may be signed in any number of separate counterparts. Each counterpart, when signed and delivered (including counterparts delivered by facsimile transmission) shall be an original, and the counterparts together shall constitute one and the same instrument.

 

AVA- A330F PA-Amendment No. 1

Page 4/5


IN WITNESS WHEREOF this Amendment No 1 was entered into the day and year first above written.

 

Agreed and Accepted     Agreed and Accepted
For and on behalf of     For and on behalf of

AEROVIAS DEL CONTINENTE AMERICANO

S.A. AVIANCA

    AIRBUS S.A.S.
By :   LOGO     By :    
Its :       Its :    

 

AVA- A330F PA-Amendment No. 1

Page 5/5

Exhibit 10.9

Note: Certain portions have been omitted from this General Terms Agreement in accordance with a request for confidential treatment submitted to the Securities and Exchange Commission. Omitted information has been replaced with an asterisk. Omitted information has been filed separately with the Securities and Exchange Commission.

PURCHASE AGREEMENT NUMBER 3075

between

THE BOEING COMPANY

and

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

Relating to Boeing Model 787-859 Aircraft

 

P.A. No. 3075      
   BOEING PROPRIETARY   


TABLE OF CONTENTS

 

         SA
NUMBER
 

ARTICLES

  
1.  

Quantity, Model and Description

  
2.  

Delivery Schedule

  
3.  

Price

  
4.  

Payment

  
5.  

Miscellaneous

  

TABLE

  
I-1.  

Aircraft Information Table

     SA-4   
I-2  

Aircraft Information Table

     SA-3   
I-3  

Aircraft Information Table

     SA-3   

EXHIBIT

  
A.  

Aircraft Configuration

  
B.  

Aircraft Delivery Requirements and Responsibilities

  

SUPPLEMENTAL EXHIBITS

  
AE1.  

Escalation Adjustment/Airframe and Optional Features

  
BFE1.  

Buyer Furnished Equipment Variables

  
CS1.  

Buyer Support Document

  
EE1.  

Engine Escalation/Engine Warranty and Patent Indemnity

  
SLP1.  

Service Life Policy Components

  

 

P.A. No. 3075    AVI
SA-4   

BOEING PROPRIETARY


LETTER AGREEMENTS

3075-01

  

787 Open Configuration Matters and Attachment

3075-02

  

787 Spare Parts Commitment

3075-03

  

787 Spare Parts Initial Provisioning

3075-04

  

Aircraft Model Substitution

3075-05

  

Demonstration Flight Waiver

3075-06

  

Schedule Reliability

3075-07

  

Spare Parts – Flight Crew Training

6-1162-DME-0895

  

AD Cost Materials

6-1162-DME-0896

  

GEnx & Trent Performance Guarantees and Attachments

6-1162-DME-0897

  

Alternate Engine Selection

6-1162-DME-0898

  

GEnx Performance Retention and Attachment

6-1162-DME-0899

  

Trent Performance Retention and Attachment

6-1162-DME-0900

  

Maintenance Cost Guarantees and Attachment

6-1162-DME-0901

  

Advance Payment Matters

6-1162-DME-0902

  

Promotional Support

6-1162-DME-0903

  

Purchase Rights

6-1162-DME-0904

  

Special Matters

6-1162-DME-0905

  

Escalation [*]

6-1162-DME-0905-01

  

[*]

6-1162-DME-0905-02

  

[*]

6-1162-DME-0906

  

Customer Services Matters and Attachment

6-1162-DME-0907

  

AGTA Matters

6-1162-DME-1089-R1

  

[*]

6-1167-DME-1347

  

Additional Special Matters – [*]

RECORD OF SUPPLEMENTAL AGREEMENTS

SA-1 -

  

28 March 2007

SA-2 -

  

21 November 2007

SA-3 -

  

26 September 2012

SA-4 -

  

 

P.A. No. 3075    AVI
SA-4   

BOEING PROPRIETARY


Purchase Agreement No. 3075

between

The Boeing Company

and

Aerovias del Continente Americano S.A. AVIANCA

 

 

This Purchase Agreement No. 3075 dated as of 03 October  between The Boeing Company ( Boeing ) and Aerovias del Continente Americano S.A. AVIANCA ( Customer ) relating to the purchase and sale of Model 787-859 aircraft together with all tables, exhibits, supplemental exhibits, letter agreements and other attachments thereto, if any, (Purchase Agreement) incorporates the terms and conditions of the Aircraft General Terms Agreement dated as of even date herewith between the parties, identified as AGTA-AVI (AGTA).

 

Article 1. Quantity, Model, Description and Inspection

The aircraft to be delivered to Customer will be designated as Model 787-859 aircraft (the Aircraft ). Boeing will manufacture and sell to Customer Aircraft conforming to the configuration described in Exhibit A in the quantities listed in Table 1 to the Purchase Agreement. [*] months prior to [*] Customer’s first Aircraft, Boeing will provide Customer a Boeing document defining a customer inspection process appropriate to the 787 manufacturing process (787 Inspection Process ) which will apply in lieu of inspection processes traditionally applicable to other models of aircraft and will supersede the provisions of Article 5.2 of the AGTA.

 

Article 2. Delivery Schedule .

The scheduled months of delivery of the Aircraft are listed in the attached Table 1. Exhibit B describes certain responsibilities for both Customer and Boeing in order to accomplish the delivery of the Aircraft.

 

Article 3. Price .

3.1 Aircraft Basic Price . The Aircraft Basic Price is listed in Table 1 in subject to escalation dollars.

3.2 Advance Payment Base Prices . The Advance Payment Base Prices listed in Table 1 were calculated utilizing the latest escalation factors available to Boeing on the date of this Purchase Agreement projected to the month of scheduled delivery.

 

P.A. No. 3075   

1

 

BOEING PROPRIETARY

  


Article 4. Payment .

4.1 Boeing acknowledges receipt of a deposit in the amount shown in Table 1 for each Aircraft ( Deposit ).

4.2 The standard advance payment schedule for the Model 787-859 aircraft requires Customer to make certain advance payments, expressed in a percentage of the Advance Payment Base Price of each Aircraft beginning with a payment of [*] less the Deposit, [*].

4.3 For any Aircraft whose scheduled month of delivery is less than [*] months from the date of this Purchase Agreement, the total amount of advance [*]

4.4 Customer will pay the balance of the Aircraft Price of each Aircraft at delivery.

 

Article 5. Additional Terms .

5.1 Aircraft Information Table . Table 1 consolidates information contained in Articles 1, 2, 3 and 4 with respect to (i) quantity of Aircraft, (ii) applicable Detail Specification, (iii) month and year of scheduled deliveries, (iv) Aircraft Basic Price, (v) applicable escalation factors and (vi) Advance Payment Base Prices and advance payments and their schedules.

5.2 Escalation Adjustment/Airframe and Optional Features . Supplemental Exhibit AE1 contains the applicable airframe and optional features escalation formula.

5.3 Customer Support Variables . Information, training, services and other things furnished by Boeing in support of introduction of the Aircraft into Customer’s fleet are described in Supplemental Exhibit CS1. Supplemental Exhibit CS1 supersedes in its entirety Exhibit B to the AGTA [*] and, for clarity, all references to Exhibit B to the AGTA shall be deemed to refer to Supplemental Exhibit CS1 to the Purchase Agreement.

5.4 Engine Escalation Variables . Supplemental Exhibit EE1 contains the applicable engine escalation formula, the engine warranty and the engine patent indemnity for the Aircraft.

 

P.A. No. 3075   

2

 

BOEING PROPRIETARY

  


5.5 Service Life Policy Component Variables . Supplemental Exhibit SLP1 lists the airframe and landing gear and other components covered by the Service Life Policy for the Aircraft (Covered Components) .

5.6 Public Announcement. Boeing reserves the right to make a public announcement regarding Customer’s purchase of the Aircraft upon approval of Boeing’s press release by Customer’s public relations department or other authorized representative.

5.7 Negotiated Agreement; Entire Agreement . This Purchase Agreement, including the provisions of Article 8.2 of the AGTA relating to insurance, and Article 11 of Part 2 of Exhibit C of the AGTA relating to DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES , has been the subject of discussion and negotiation and is understood by the parties; the Aircraft Price and other agreements of the parties stated in this Purchase Agreement were arrived at in consideration of such provisions. This Purchase Agreement, including the AGTA, contains the entire agreement between the parties and supersedes all previous proposals, understandings, commitments or representations whatsoever, oral or written, and may be changed only in writing signed by authorized representatives of the parties.

 

DATED AS OF  

03 October 2006

 

AEROVIAS DEL CONTINENTE

AMERICANO S.A. AVIANCA

    THE BOEING COMPANY
BY  

 

    BY  

Dennis Egge

ITS  

CFO

    ITS  

Attorney-in-Fact

 

P.A. No. 3075   

3

 

BOEING PROPRIETARY

  


Appendix B

Supplemental Agreement No. SA-4

Table 1-1 to Purchase Agreement No. 3075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe Model/MTOW:

  787-8            [*]      

Detail Specification:

     787B1-4102-B (7/9/2007)   

Engine Model/Thrust:

  TRENT[*]      [*]      

Airframe Price Base Year/Escalation Formula:

     [*]         [*]   

Airframe Price:

     [*]      

Engine Price Base Year/Escalation Formula:

     [*]         [*]   

Optional Features:

     [*]            
    

 

 

          

Sub-Total of Airframe and Features:

     [*]      

[*]

     

Engine Price (Per Aircraft):

     [*]      

Base Year Index (ECI):

        [*]   

Aircraft Basic Price (Excluding BFE/SPE):

     [*]      

[*]

        [*]   
    

 

 

          

Buyer Furnished Equipment (BFE) Estimate:

     [*]      

[*]

     

//Seller Purchased Equipment (SPE)/In-Flight Entertainment (IFE)// Estimate:

     [*]      

[*]

     
                [*]   
       

Base Year Index (CPI):

        [*]   

Refundable Deposit/Aircraft at Proposal Accept:

     [*]      

[*]

     

 

Delivery Date

   Number
of
Aircraft
   Escalation
Factor
(Airframe)
   Escalation
Factor
(Engine)
   Escalation
Estimate

Adv  Payment
Base
Price Per A/P
   Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery):
               [*]    [*]    [*] .    [*]
              

 

  

 

   [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

Total:

   10                     

 

     SA-4
  Boeing Proprietary    Page 1


Appendix C

Supplemental Agreement No. SA-3

Table 1-2 to Purchase Agreement No. 3075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe Model/MTOW:

  787-8      [*]      

Detail Specification:

    

 

787B1-4102-B

(7/9/2007)

 

  

Engine Model/Thrust:

  TRENT[*]      [*]      

Airframe Price Base Year/Escalation Formula:

     [*]            [*]   

Airframe Price:

     [*]      

Engine Price Base Year/Escalation Formula:

     [*]            [*]   

Optional Features:

     [*]               
    

 

 

             

Sub-Total of Airframe and Features:

     [*]      

Airframe Escalation Data:

        

Engine Price (Per Aircraft):  [*]

     [*]      

Base Year Index (ECI):

        [*]      

Aircraft Basic Price (Excluding BFE/SPE):

           [*]      

Base Year Index (CPI):

        [*]      
    

 

 

             

Buyer Furnished Equipment (BFE) Estimate:

     [*]      

Engine Escalation Data:

        

Seller Purchased Equipment (SPE) Estimate:

     [*]      

Base Year Index (ECI):

        [*]      

Deposit per Aircraft:

     [*]      

Base Year Index (CPI):

        [*]      

 

Delivery Date

   Number of
Aircraft
   Escalation
Factor
(Airframe)
   Escalation
Factor
(Engine)
   Escalation
Estimate

Adv  Payment
Base

Price Per A/P
   Advance Payment Per Aircraft (Amts. Due/Mos. Prior to
Delivery):
               [*]    [*]    [*]    [*]
               [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

Total:

   2                     

 

     SA-3
  Boeing Proprietary    Page 1


Appendix D

Supplemental Agreement No. SA-3

Table 1-3 to Purchase Agreement No. 3075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe Model/MTOW:

   787-8       [*]      

Detail Specification:

    

 

787B1-4102-B

(7/9/2007)

  

  

Engine Model/Thrust:

   TRENT[*]    [*]   

Airframe Price Base Year/Escalation Formula:

     [*]         [*]   

Airframe Price:

   [*]   

Engine Price Base Year/Escalation Formula:

     [*]         [*]   

Optional Features:

   [*]         
     

 

        

Sub-Total of Airframe and Features:

   [*]   

Airframe Escalation Data:

     

Engine Price (Per Aircraft):

   [*]   

Base Year Index (ECI):

     [*]      

Aircraft Basic Price (Excluding BFE/SPE):

   [*]   

Base Year Index (CPI):

     [*]      
     

 

        

Buyer Furnished Equipment (BFE) Estimate:

   [*]   

Engine Escalation Data:

     

Seller Purchased Equipment (SPE) Estimate:

   [*]   

Base Year Index (ECI):

     [*]      
        

Base Year Index (CPI):

     [*]      

 

Delivery Date

   Number
of

Aircraft
  Escalation
Factor
(Airframe)
  Escalation
Factor
(Engine)
  Escalation
Estimate

Adv  Payment
Base

Price Per A/P
  Advance Payment Per Aircraft (Amts. Due/Mos. Prior to
Delivery):
           [*]   [*]   [*]   [*]
           [*]   [*]   [*]   [*]

2nd Qtr-2019

   1*   [*]   [*]   [*]   [*]   [*]   [*]   [*]

3rd Qtr-2019

   1*   [*]   [*]   [*]   [*]   [*]   [*]   [*]

4th Qtr-2019

   1*   [*]   [*]   [*]   [*]   [*]   [*]   [*]

Total

   3          

 

* mid-quarter month is illustrated

The specific month will be identified 24 months prior to each Quarter

 

     SA-3
  Boeing Proprietary    Page 1


AIRCRAFT CONFIGURATION

between

THE BOEING COMPANY

and

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

Exhibit A to Purchase Agreement Number 3075

 

P.A. No. 3075   

A

 

BOEING PROPRIETARY

  


Exhibit A to

Purchase Agreement No. 3075

Page 2

 

AIRCRAFT CONFIGURATION

Dated                     

relating to

BOEING MODEL 787-(8) AIRCRAFT

The content of this Exhibit A will be defined pursuant to the provisions of Letter Agreement 3075-01, “Open Configuration Matters,” to the Purchase Agreement.

 

P.A. No. 3075   A-1   
 

 

BOEING PROPRIETARY

  


AIRCRAFT DELIVERY REQUIREMENTS AND RESPONSIBILITIES

between

THE BOEING COMPANY

and

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

Exhibit B to Purchase Agreement Number 3075

 

P.A. No. 3075   

B

 

BOEING PROPRIETARY

  


Exhibit B to

Purchase Agreement No. 3075

Page 1

 

AIRCRAFT DELIVERY REQUIREMENTS AND RESPONSIBILITIES

relating to

BOEING MODEL 787-859 AIRCRAFT

Both Boeing and Customer have certain documentation and approval responsibilities at various times during the construction cycle of Customer’s Aircraft that are critical to making the delivery of each Aircraft a positive experience for both parties. This Exhibit B documents those responsibilities and indicates recommended completion deadlines for the actions to be accomplished.

 

  1. GOVERNMENT DOCUMENTATION REQUIREMENTS .

Certain actions are required to be taken by Customer in advance of the scheduled delivery month of each Aircraft with respect to obtaining certain government issued documentation.

 

  1.1 Airworthiness and Registration Documents .

Not later than [*] prior to delivery of each Aircraft, Customer will notify Boeing of the registration number to be painted on the side of the Aircraft. In addition, and not later than [*] prior to delivery of each Aircraft, Customer will, by letter to the regulatory authority having jurisdiction, authorize the temporary use of such registration numbers by Boeing during the pre-delivery testing of the Aircraft.

Customer is responsible for furnishing any Temporary or Permanent Registration Certificates required by any governmental authority having jurisdiction to be displayed aboard the Aircraft after delivery.

 

  1.2 Certificate of Sanitary Construction .

1.2.1 U.S. Registered Aircraft. Boeing will obtain from the United States Public Health Service [*], a United States Certificate of Sanitary Construction to be displayed aboard each Aircraft after delivery to Customer.

1.2.2 Non-U.S. Registered Aircraft. If Customer requires a United States Certificate of Sanitary Construction at the time of delivery of an Aircraft to [*] Customer will give written notice thereof to Boeing at least [*] prior to delivery . Boeing will then use its reasonable best efforts to obtain the Certificate from the United States Public Health Service and present it to Customer at the time of Aircraft delivery.

 

P.A. No. 3075   B-1   
 

 

BOEING PROPRIETARY

  


Exhibit B to

Purchase Agreement No. 3075

Page 2

 

  1.3 Customs Documentation.

1.3.1 Import Documentation. If the Aircraft is intended to be exported from the United States, Customer must notify Boeing not later than [*] prior to delivery of each Aircraft of any documentation required by the customs authorities or by any other agency of the country of import.

1.3.2 General Declaration - U.S. If the Aircraft is intended to be exported from the United States, Boeing will prepare Customs Form 7507, General Declaration, for execution by U.S. Customs immediately prior to the ferry flight of the Aircraft. For this purpose, Customer will furnish to Boeing not later than [*] prior to delivery all information required by U.S. Customs or U.S. Immigration and Naturalization Service, including without limitation (i) a complete crew and passenger list identifying the names, birth dates, passport numbers and passport expiration dates of all crew and passengers and (ii) a complete ferry flight itinerary, including point of exit from the United States for the Aircraft.

If Customer intends, during the ferry flight of an Aircraft, to land at a U.S. airport after clearing Customs at delivery, Customer must notify Boeing not later than [*] prior to delivery of such intention. If Boeing receives such notification, Boeing will provide to Customer the documents constituting a Customs permit to proceed, allowing such Aircraft to depart after any such landing. Sufficient copies of completed Form 7507, along with passenger manifest, will be furnished to Customer to cover U.S. stops scheduled for the ferry flight.

1.3.3 Export Declaration - U.S. If the Aircraft is intended to be exported from the United States, [*] will submit such Form to U.S. Customs [*]

 

  2. INSURANCE CERTIFICATES .

Unless provided earlier, Customer will provide to Boeing not later than [*] prior to delivery of the first Aircraft, a copy of the requisite annual insurance certificate in accordance with the requirements of Article 8 of the AGTA.

 

P.A. No. 3075   B-2   
 

 

BOEING PROPRIETARY

  


Exhibit B to

Purchase Agreement No. 3075

Page 3

 

  3. NOTICE OF FLYAWAY CONFIGURATION .

Not later than [*] prior to delivery of the Aircraft, Customer will provide to Boeing a configuration letter stating the requested “flyaway configuration” of the Aircraft for its ferry flight. This configuration letter should include:

(i) the name of the company which is to furnish fuel for the ferry flight and any scheduled post-delivery flight training [*], the method of payment for such fuel, and fuel load for the ferry flight;

(ii) the cargo to be loaded and where it is to be stowed on board the Aircraft, the address where cargo is to be shipped after flyaway and notification of any hazardous materials requiring special handling;

(iii) any BFE equipment to be removed prior to flyaway and returned to Boeing BFE stores for installation on Customer’s subsequent Aircraft;

(iv) a complete list of names and citizenship of each crew member and non-revenue passenger who will be aboard the ferry flight; and

(v) a complete ferry flight itinerary.

 

  4. DELIVERY ACTIONS BY BOEING .

4.1 Schedule of Inspections . All FAA, Boeing, Customer and, if required, U.S. Customs Bureau inspections will be scheduled by Boeing for completion prior to delivery or departure of the Aircraft. Boeing will provide [*] notice to Customer of such inspection schedules.

4.2 Schedule of Demonstration Flights . All FAA and Customer demonstration flights will be scheduled by Boeing for completion prior to delivery of the Aircraft.

4.3 Schedule for Customer’s Flight Crew . Boeing will inform Customer of the date that a flight crew is required for acceptance routines associated with delivery of the Aircraft.

 

P.A. No. 3075   B-3   
 

 

BOEING PROPRIETARY

  


Exhibit B to

Purchase Agreement No. 3075

Page 4

 

4.4 Fuel Provided by Boeing . Boeing will provide to Customer, without charge, the amount of fuel shown in U.S. gallons in the table below for the model of Aircraft being delivered and [*] at the time of delivery or prior to the ferry flight of the Aircraft.

 

Aircraft Model

  

Fuel Provided

[*]    [*]
[*]    [*]
[*]    [*]
[*]    [*]
[*]    [*]
[*]    [*]

4.5 Flight Crew and Passenger Consumables . Boeing will provide reasonable quantities of food, coat hangers, towels, toilet tissue, drinking cups and soap for the first segment of the ferry flight for the Aircraft.

4.6 Delivery Papers, Documents and Data . Boeing will have available at the time of delivery of the Aircraft certain delivery papers, documents and data for execution and delivery. If title for the Aircraft will be transferred to Customer [*] through Boeing or a Boeing sales subsidiary and if the Aircraft will be registered with the FAA, Boeing will pre-position in Oklahoma City, Oklahoma, for filing with the FAA at the time of delivery of the Aircraft an executed original Form 8050-2, Aircraft Bill of Sale, indicating transfer of title to the Aircraft from Boeing or Boeing’s sales subsidiary [*].

4.7 Delegation of Authority . [*] Boeing will present a certified copy of a Resolution of Boeing’s Board of Directors, designating and authorizing certain persons to act on its behalf in connection with delivery of the Aircraft.

 

  5. DELIVERY ACTIONS BY CUSTOMER .

5.1 Aircraft Radio Station License . At delivery Customer will provide a copy of its Aircraft Radio Station License [*] to be placed on board the Aircraft following delivery.

5.2. Aircraft Flight Log . At delivery Customer will provide the Aircraft Flight Log for the Aircraft.

5.3 Delegation of Authority . Customer will present to Boeing at delivery of the Aircraft an original or certified copy of Customer’s Delegation of Authority designating and authorizing certain persons to act on its behalf in connection with delivery of the specified Aircraft.

 

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BOEING PROPRIETARY

  


ESCALATION ADJUSTMENT

AIRFRAME AND OPTIONAL FEATURES

between

THE BOEING COMPANY

and

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

Supplemental Exhibit AE1 to Purchase Agreement Number 3075

 

P.A. No. 3075   

AE1

 

BOEING PROPRIETARY

  


1. Formula .

Airframe and Optional Features price adjustments (Airframe Price Adjustment) are used to allow prices to be stated in current year dollars at the signing of this Purchase Agreement and to adjust the amount to be paid by Customer at delivery for the effects of economic fluctuation. The Airframe Price Adjustment will be determined at the time of Aircraft delivery in accordance with the following formula:

[*]

Where:

 

  

[*]

 

Where:

 

[*]

 

M =   

[*]

 

Where:

 

[*].

As an example, for an Aircraft scheduled to be delivered in the month of July, the months of [*] of the preceding year will be utilized in determining the value of [*].

 

Note:  

i. In determining the values of L and M, all calculations and resulting values will be expressed as a decimal rounded to the nearest [*].

 

ii. [*] Adjustment formula.

 

iii. [*] Adjustment formula.

 

iv. [*].

 

v. [*].

 

vi. [*].

 

P.A. No. 3075   

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BOEING PROPRIETARY

  


2. Values to be Utilized in the Event of Unavailability.

 

  2.1 [*]

 

  2.2 [*].

 

  2.3 [*].

 

  2.4 [*].

 

P.A. No. 3075   

AE1-1

 

BOEING PROPRIETARY

  


Note :   

i. [*]

 

ii. [*]

 

P.A. No. 3075   

AE1-1

 

BOEING PROPRIETARY

  


APPENDIX E

BUYER FURNISHED EQUIPMENT VARIABLES

between

THE Boeing Company

and

Aerovias del Continente Americano S. A. AVIANCA

Supplemental Exhibit BFE1

to Purchase Agreement Number 3075

 

AVI       BFE1
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BOEING PROPRIETARY

  


BUYER FURNISHED EQUIPMENT VARIABLES

relating to

BOEING MODEL 787-8 AIRCRAFT

This Supplemental Exhibit BFE1 contains supplier selection dates, on-dock dates and other requirements applicable to the Aircraft.

 

1 Supplier Selection

Customer will select and notify Boeing of the suppliers and model/part of the following BFE items by the first day of the following months’

 

[*]~    [*]~
[*]~    [*]~
[*]~    [*]~
[*]~    [*]~
[*]~    [*]~

 

2 On-dock Dates and Other Information.

Customer and Boeing rights and obligations related to the BFE requirements established in this Supplemental Exhibit BFE1 are set forth in Exhibit A to the AGTA. The first Aircraft BFE seat requirements and on-dock dates for all BFE items are set forth below. On or before [*], Boeing will also make available to Customer the BFE requirements electronically, in My Boeing Fleet (MBF) through My Boeing Configuration (MBC) or by other means, setting forth the items, quantities, technical reviews, on-dock dates, shipping instructions and other reasonable requirements relating to the in-sequence installation of BEE. These requirements may be periodically revised by Boeing.

 

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The below “Completion Date” represents the first day of the month by when the specific milestone must be completed to support the BFE seat program.

Customer’s First Aircraft: BFE Premium Class Seat Program Milestones (First Aircraft

Delivery Only)

 

Milestone

  

Completion Date

[*]    [*]
[*]    [*]
[*]    [*]
[*]    [*]
[*]    [*]
[*]    [*]

 

AVI       BFE1
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BOEING PROPRIETARY

  


Preliminary On-Dock and Customer Inspection Months

(Note: All requirements are set forth below. If a month is listed, then the due date is

the

first day of the month. If no date is listed, then there is no requirement.)

 

Aircraft

Delivery

Month

  

 

Product

 

On-Dock

Date at

Supplier

[*]

 

On-Dock

Date at

Boeing

 

Customer

Inspection

[*]

  

[*]

     
   [*]     [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]
[*]    [*]   [*]   [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]
[*]    [*]   [*]    
   [*]     [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]
[*]    [*]   [*]    

 

AVI       BFE1
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BOEING PROPRIETARY

  


   [*]     [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]
[*]    [*]   [*]   [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]
[*]    [*]   [*]   [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]
[*]    [*]   [*]   [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]

 

AVI       BFE1
SA-3       Page 5
  

 

BOEING PROPRIETARY

  


   [*]      

[*]

   [*]   [*]    
   [*]     [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]

[*]

   [*]   [*]    
   [*]     [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]

[*]

   [*]   [*]    
   [*]     [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]

[*]

   [*]   [*]    
   [*]     [*]  
   [*]     [*]  
   [*]     [*]  

 

AVI       BFE1
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BOEING PROPRIETARY

  


   [*]     [*]   [*]
[*]    [*]   [*]   [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]
[*]    [*]   [*]   [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]
[*]    [*]   [*]    
   [*]     [*]  
   [*]     [*]  
   [*]     [*]  
   [*]     [*]   [*]
[*]    [*]   [*]   [*]  
   [*]     [*]  
   [*]     [*]  
   [*]      
   [*]     [*]   [*]

 

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2 Additional Delivery Requirements - Import.

Customer will be the “importer of record” (as defined by the U.S. Customs and Border Protection) for all BFE imported into the United States, and as such, it has the responsibility to ensure [*] comply with U.S. Customs Service regulations. In the event Customer requests Boeing, in writing, to act as importer of record for Customer’s BFE, and Boeing agrees to such request, Customer is responsible for ensuring Boeing can comply with all U.S. Customs Import Regulations by making certain that, at the time of shipment, all BFE shipments comply with the requirements in the ‘‘International Shipment Routing Instructions”, including the Customs Trade Partnership Against Terrorism (C-TPAT), as set out on the Boeing website referenced below. Customer agrees to include the International Shipment Routing Instructions, including C-TPAT requirements, in each contract between Customer and BFE supplier.

http://www.boeing.com/companyoffices/doingbiz/supplier_portal/index_general.html

 

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BOEING PROPRIETARY

  


787 CUSTOMER SUPPORT DOCUMENT

between

THE BOEING COMPANY

And

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

Supplemental Exhibit CS1 to Purchase Agreement Number 3075

This document contains :

 

Part 1:    Maintenance and Flight Training Programs
Part 2:    Field Services and Engineering Support Services
Part 3:    Technical Information and Materials
Part 4:    Alleviation or Cessation of Performance
Part 5:    Protection of Proprietary Information and Proprietary Materials

 

P.A. No. 3075   

CSI

 

BOEING PROPRIETARY

  


787 CUSTOMER SUPPORT DOCUMENT

PART 1: BOEING MAINTENANCE AND FLIGHT TRAINING

PROGRAMS; OPERATIONS ENGINEERING SUPPORT

 

1. Boeing Training Programs .

Boeing will provide maintenance training, cabin attendant training, and flight training programs to support the introduction of the Aircraft into service as provided in this Supplemental Exhibit CS1.

1.1 Customer is awarded [*]

1.2 In addition to the training provided in Article 1.1, Boeing will provide to Customer the following training and services:

1.2.1 [*]

1.2.2 [*] regularly scheduled courses; schedules are published yearly.

1.2.3 Additional Flight Operations Services:

 

  a. [*] Aircraft to Customer’s main base;

 

  b. [*] below) for revenue service training assistance;

 

  c. [*].

 

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If any part of the training described in this Article 1.2 is not completed by Customer within [*] months after the delivery of the last Aircraft, Boeing will have no obligation to provide such training.

 

2. Training Schedule and Curricula .

2.1 Customer and Boeing will together conduct planning conferences approximately [*] months [*], before the scheduled delivery month of the first Aircraft of a model to define and schedule the maintenance, flight training and cabin attendant training programs. At the conclusion of each planning conference the parties will document Customer’s course selection, training schedule, and, if applicable, Training Point application and remaining Training Point balance.

2.2 Customer may also request training by written notice to Boeing identifying desired courses, dates and locations. Within [*] days of Boeing’s receipt of such request Boeing will provide written response to Customer confirming whether the requested courses are available at the times and locations requested by Customer.

 

3. Location of Training .

3.1 Boeing will conduct all training at any of its or its wholly-owned subsidiaries’ training facilities equipped for the model of Aircraft. Customer shall decide on the location or mix of locations for training, subject to space being available in the desired courses at the selected training facility on the dates desired.

3.2 If requested by Customer, Boeing will conduct the classroom portions of the maintenance and flight training [*] at a mutually acceptable alternate training site, subject to the following conditions:

3.2.1 Customer will provide acceptable classroom space, simulators (as necessary for flight training) and training equipment required to present the courses;

3.2.2 Customer will pay Boeing’s [*];

 

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3.2.3 Customer will reimburse Boeing for the actual costs of [*];

3.2.4 Customer will be responsible for all taxes, fees, duties, licenses, permits and similar expenses incurred by Boeing and its employees as a result of Boeing’s providing training at the alternate site or incurred as a result of Boeing providing revenue service training; and

3.2.5 Those portions of training that require the use of training devices not available at the alternate site will be conducted at Boeing’s facility or at some other alternate site. Customer will be responsible for additional expenses, if any, which result from the use of such alternate site.

 

4. Training Materials .

Training Materials will be provided for each student. Training Materials may be used only for either (i) the individual student’s reference during Boeing provided training and for review thereafter or (ii) Customer’s provision of training to individuals directly employed by the Customer.

 

5. Additional Terms and Conditions .

5.1 All training will reflect an airplane configuration defined by (i) Boeing’s standard configuration specification for 787 aircraft, (ii) Boeing’s standard configuration specification for the minor model of 787 aircraft selected by Customer, and (iii) any Optional Features selected by Customer from Boeing’s standard catalog of Optional Features. Upon Customer’s request, Boeing may provide training customized to reflect other elements of Customer’s Aircraft configuration subject to a mutually acceptable price, schedule, scope of work and other applicable terms and conditions.

5.2 All training will be provided in the English language. If translation is required, Customer will provide interpreters.

5.3 Customer will be responsible for all expenses of Customer’s personnel except that in the Puget Sound region of Washington State Boeing will [*]

5.4 Boeing flight instructor personnel will not be required to work more than [*] days per week, or more than [*] in any one [*] period [*], of which not more than [*] per [*] workday will be spent in actual flying. These foregoing restrictions will not apply to [*] or [*], which will be governed by FAA rules and regulations.

 

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5.5 Normal Line Maintenance is defined as line maintenance that Boeing might reasonably be expected to furnish for flight crew training at Boeing’s facility, and will include ground support and Aircraft storage in the open, but will not include provision of spare parts. Boeing will provide Normal Line Maintenance services for any Aircraft while the Aircraft is used for flight crew training at Boeing’s facility in accordance with the Boeing Maintenance Plan (Boeing document D6-82076) and the Repair Station Operation and Inspection Manual (Boeing document D6-25470). Customer will provide such services if flight crew training is conducted elsewhere. Regardless of the location of such training, Customer will be responsible for providing all maintenance items (other than those included in Normal Line Maintenance) required during the training, including, but not limited to, fuel, oil, landing fees and spare parts.

5.6 If the training is based at Boeing’s facility and the Aircraft is damaged during such training, Boeing will make [*].

5.7 If the flight training is based at Boeing’s facility, several airports in the surrounding area may be used, at Boeing’s option. Unless otherwise agreed in the flight training planning conference, it will be Customer’s responsibility to make arrangements for the use of such airports. [*].

5.8 If Boeing agrees to make arrangements on behalf of Customer for the use of airports for flight training, Boeing will pay on Customer’s behalf any landing fees charged by any airport used in conjunction with the flight training. At least [*] days before flight training, Customer will provide Boeing an open purchase order against which Boeing will invoice Customer for any landing fees Boeing paid on Customer’s behalf. The invoice will be submitted to Customer approximately [*] days after flight training is completed, when all landing fee charges have been received and verified. Customer will pay the invoiced amount to Boeing within [*] days of the date of the invoice.

5.9 If requested by Boeing, in order to provide the flight training or ferry flight assistance, Customer will make available to Boeing an Aircraft after delivery to familiarize Boeing instructor or ferry flight crew personnel with such Aircraft. If flight of

 

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the Aircraft is required for any Boeing instructor or ferry flight crew member to maintain an FAA license for flight proficiency or landing currency, Boeing will be responsible for the costs of fuel, oil, landing fees and spare parts attributable to that portion of the flight.

 

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787 CUSTOMER SUPPORT DOCUMENT

PART 2: FIELD AND ENGINEERING SUPPORT SERVICES

 

1. Field Service Representation .

Boeing will furnish field service representation to advise Customer with respect to the maintenance and operation of the Aircraft ( Field Service Representatives ).

1.1 Field Service representation will be available at or near Customer’s main maintenance or engineering facility beginning before the scheduled delivery month of the first Aircraft and ending 12 months after delivery of the last Aircraft covered by a specific purchase agreement.

1.2 [*] Customer will provide, at no charge to Boeing, suitable furnished office space and office equipment, including internet capability for electronic access of data, at the location where Boeing is providing Field Service Representatives. As required, Customer will assist each Field Service Representative with visas, work permits, customs, mail handling, identification passes and formal introduction to local airport authorities.

1.3 Boeing’s Field Service Representatives are assigned to various airports and other locations around the world. Whenever Customer’s Aircraft are operating through any such airport, the services of Boeing’s Field Service Representatives are available to Customer.

 

2. Engineering Support Services .

2.1 Boeing will, if requested by Customer, provide technical advisory assistance from the Seattle area or at a base designated by Customer as appropriate for any Aircraft or Boeing Product (as defined in Part 1 of Exhibit C of the AGTA). Technical advisory assistance, provided, will include:

2.1.1 Analysis of the information provided by Customer to determine the probable nature and cause of operational problems and suggestion of possible solutions.

2.1.2 Analysis of the information provided by Customer to determine the nature and cause of unsatisfactory schedule reliability and the suggestion of possible solutions.

 

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2.1.3 Analysis of the information provided by Customer to determine the nature and cause of unsatisfactory maintenance costs and the suggestion of possible solutions.

2.1.4 Analysis and commentary on Customer’s engineering releases relating to structural repairs not covered by Boeing’s Structural Repair Manual including those repairs requiring advanced composite structure design.

2.1.5 Analysis and commentary on Customer’s engineering proposals for changes in, or replacement of, systems, parts, accessories or equipment manufactured to Boeing’s detailed design. Boeing will not analyze or comment on any major structural change unless Customer’s request for such analysis and comment includes complete detailed drawings, substantiating information (including any information required by applicable government agencies), all stress or other appropriate analyses, and a specific statement from Customer of the substance of the review and the response requested.

2.1.6 [*] evaluation of Customer’s technical facilities, tools and equipment for servicing and maintaining 787 aircraft, recommendation of changes where necessary and assistance in the formulation of an initial maintenance plan for the introduction of the first Aircraft into service.

2.1.7 Assistance with the analysis and preparation of performance data to be used in establishing operating practices and policies for Customer’s operation of Aircraft.

2.1.9 Assistance with interpretation of the minimum equipment list, the definition of the configuration deviation list and the analysis of individual Aircraft performance.

2.1.9 Assistance with solving operational problems associated with delivery and route-proving flights.

2.1.10 Information regarding significant service items relating to Aircraft performance or flight operations.

2.1.11 [*]

2.1.12 [*]

 

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2.2 Boeing will, if requested by Customer, perform work on an Aircraft after delivery but prior to the initial departure flight or upon the return of the Aircraft to Boeing’s facility prior to completion of that flight. The following conditions will apply to Boeing’s performance:

2.2.1 Boeing may rely upon the commitment authority of the Customer’s personnel requesting the work.

2.2.2 As title and risk of loss has passed to Customer, the insurance provisions of Article 8.2 of the AGTA apply.

2.2.3 The provisions of the Boeing Warranty in Part 2 of Exhibit C of the AGTA apply.

2.2.4 Customer will pay Boeing for requested work not covered by the Boeing Warranty, if any.

2.2.5 The DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES provisions in Article 11 of Part 2 of Exhibit C of the AGTA apply.

2.3 Boeing may, at Customer’s request, provide services other than those described in Articles 2.1 and 2.2 of this Supplemental Exhibit CS1 for an Aircraft after delivery, which may include, but not be limited to, retrofit kit changes (kits and/or information), training, flight services, maintenance and repair of Aircraft (Additional Services). Such Additional Services will be subject to a mutually acceptable price, schedule, scope of work and other applicable terms and conditions. The DISCLAIMER AND RELEASE and the EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES provisions in Article 11 of Part 2 of Exhibit C of the AGTA and the insurance provisions in Article 8.2 of the AGTA will apply to any such work. Title to and risk of loss of any such Aircraft will always remain with Customer.

 

P.A. No. 3075   

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BOEING PROPRIETARY

 

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787 CUSTOMER SUPPORT DOCUMENT

PART 3: TECHNICAL INFORMATION AND MATERIALS

 

1. General .

Materials are defined as any and all items that are created by Boeing or a third party, which are provided directly or indirectly from Boeing and serve primarily to contain, convey or embody information. Materials may include either tangible embodiments (for example, documents or drawings), or intangible embodiments (for example, software and other electronic forms) of information but excludes Aircraft Software. Aircraft Software is defined as software that is installed on and used in the operation of the Aircraft.

Customer Information is defined as that data provided by Customer to Boeing which falls into one of the following categories: (i) aircraft operational information (including, but not limited to, flight hours, departures, schedule reliability, engine hours, number of aircraft, aircraft registries, landings, and daily utilization and schedule interruptions for Boeing model aircraft); (ii) summary and detailed shop findings data; (iii) aircraft readiness log data; (iv) non-conformance reports; (v) line maintenance data; (vi) airplane message data, (vii) scheduled maintenance data, and (viii) service bulletin incorporation.

Upon execution by Customer of Boeing’s standard form Customer Services General Terms Agreement and Supplemental Agreement for Electronic Access Boeing will provide to Customer through electronic access certain Materials to support the maintenance and operation of the Aircraft. Such Materials will, if applicable, be prepared generally in accordance with Air Transport Association of America (ATA) iSpec 2200, entitled “Specification for Manufacturers” Technical Data.” Materials not covered by iSpec 2200 will be provided in a structure suitable for the Material’s intended use. Materials will be in English and in the units of measure used by Boeing to manufacture an Aircraft.

 

2. Materials Planning Conferences .

Customer and Boeing will conduct planning conferences approximately [*] months, [*] before the scheduled delivery month of the first Aircraft in order to mutually determine (i) the Materials to be furnished to Customer in support of the Aircraft, (ii) the Customer Information to be furnished by Customer to Boeing, (iii) the update cycles of the Materials to be furnished to Customer, (iv) the update cycles of

 

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the Customer Information to be furnished to Boeing, (v) any Customer preparations necessary for Customer’s transmittal of Customer Information to Boeing, and (vi) any Customer preparations necessary for Customer’s electronic access to the Materials.

 

3. Technical Data and Maintenance Information .

Boeing will provide technical data and maintenance information equivalent to that traditionally provided in the following manuals and documents. [*]

 

  a) Flight Operations Information.

[*]

 

  b) Maintenance Information.

[*]

 

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  c) Maintenance Planning .

[*]

 

  d) Spares Information .

[*]

 

  e) Airplane & Airport Information .

[*]

 

  f) Shop Maintenance .

[*]

 

  g) [*]

 

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4. Advance Representative Materials .

Boeing will select all advance representative Materials from available sources and whenever possible will provide them through electronic access. Such advance Materials will be for advance planning purposes only.

 

5. Customized Materials .

All customized Materials will reflect the configuration of each Aircraft as delivered.

 

6. Revisions .

6.1 The schedule for updating certain Materials will be identified in the planning conference. Such updates will reflect changes to Materials developed by Boeing.

6.2 [*].

 

7. Supplier Technical Data .

7.1 For supplier-manufactured programmed airborne avionics components and equipment classified as Seller Furnished Equipment ( SFE ) or Seller Purchased Equipment ( SPE ) or Buyer Designated Equipment ( BDE ) which contain computer software designed and developed in accordance with Radio Technical Commission for Aeronautics Document No. RTCA/DO-178 dated January 1982, No. RTCA/DO-178A dated March 1985, or later as available, Boeing will request that each supplier of the components and equipment make software documentation available to Customer.

7.2 The provisions of this Article will not be applicable to items of BFE.

7.3 Boeing will furnish to Customer a document identifying the terms and conditions of the product support agreements between Boeing and its suppliers requiring the suppliers to fulfill Customer’s requirements for information and services in support of the Aircraft.

 

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8. Buyer Furnished Equipment Data .

[*].

 

9. Customer’s Shipping Address .

From time to time Boeing may furnish certain Materials or updates to Materials by means other than electronic access. Customer will specify a single address and Customer shall promptly notify Boeing of any change to that address. Boeing will pay the reasonable shipping costs of the Materials. Customer is responsible for any customs clearance charges, duties, and taxes.

 

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787 CUSTOMER SUPPORT DOCUMENT

PART 4: ALLEVIATION OR CESSATION OF PERFORMANCE

Boeing will not be required to provide any Materials, services, training or other things at a facility designated by Customer if any of the following conditions exist:

 

  1. [*];

 

  2. [*];

 

  3. [*];

 

  4. [*]

 

  5. [*].

After the location of Boeing personnel at the facility, Boeing further reserves the right, upon the occurrence of any of such events, to immediately and without prior notice to Customer relocate its personnel and their families.

787 CUSTOMER SUPPORT DOCUMENT

PART 5: PROTECTION OF PROPRIETARY INFORMATION

AND PROPRIETARY MATERIALS

 

1. General .

All Materials provided by Boeing to Customer and not covered by a Boeing CSGTA or other agreement between Boeing and Customer defining Customer’s right to use and disclose the Materials and included information will be covered by and subject to the terms of the AGTA as amended by the terms of the Purchase Agreement. Title to all

 

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Materials containing, conveying or embodying confidential, proprietary or trade secret information (Proprietary Information) belonging to Boeing or a third party (Proprietary Materials), will at all times remain with Boeing or such third party. Customer will treat all Proprietary Materials and all Proprietary Information in confidence and use and disclose the same only as specifically authorized in the AGTA as amended by the terms of the Purchase Agreement.

 

2. License Grant .

2.1 Boeing grants to Customer a worldwide, non-exclusive, non-transferable license to use and disclose Proprietary Materials in accordance with the terms and conditions of the AGTA as amended by the terms of the Purchase Agreement, for as long as Customer operates the Aircraft. [*]

2.2 Customer grants to Boeing a perpetual, world-wide, non-exclusive license to use and disclose Customer Information or derivative works thereof in Boeing data and information products and services provided indicia identifying Customer Information as originating from Customer is removed from such Customer Information.

 

3. Use of Proprietary Materials and Proprietary Information .

Customer is authorized to use Proprietary Materials and Proprietary Information for the purpose of: (a) operation, maintenance, repair, or modification of Customer’s Aircraft for which the Proprietary Materials and Proprietary Information have been specified by Boeing and (b) development and manufacture of training devices and maintenance tools for use by Customer.

 

4. Providing of Proprietary Materials to Contractors .

Customer is authorized to provide Proprietary Materials to Customer’s contractors for the sole purpose of maintenance, repair, or modification of Customer’s Aircraft for which the Proprietary Materials have been specified by Boeing. In addition, Customer may provide Proprietary Materials to Customer’s contractors for the sole purpose of developing and manufacturing training devices and maintenance tools for Customer’s use. Before providing Proprietary Materials to its contractor, Customer will first obtain a written agreement from the contractor by which the contractor agrees (a) to use the Proprietary Materials only on behalf of Customer, (b) to be bound by all of the restrictions and limitations of this Part 5, and (c) that Boeing is a third party beneficiary under the written agreement. Customer agrees to provide copies of all such written

 

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5-2

  


agreements to Boeing upon request and be liable to Boeing for any breach of those agreements by a contractor. A sample agreement acceptable to Boeing is attached as Appendix VII to the AGTA.

 

5. Providing of Proprietary Materials and Proprietary Information to Regulatory Agencies .

5.1 When and to the extent required by a government regulatory agency having jurisdiction over Customer or an Aircraft, Customer is authorized to provide Proprietary Materials and to disclose Proprietary Information to the agency for use in connection with Customer’s operation, maintenance, repair, or modification of such Aircraft. Customer agrees to take all reasonable steps to prevent the agency from making any distribution, disclosure, or additional use of the Proprietary Materials and Proprietary Information provided or disclosed. Customer further agrees to notify Boeing immediately upon learning of any (a) distribution, disclosure, or additional use by the agency, (b) request to the agency for distribution, disclosure, or additional use, or (c) intention on the part of the agency to distribute, disclose, or make additional use of Proprietary Materials or Proprietary Information.

5.2 In the event of an Aircraft or Aircraft systems-related incident, the Customer may [*]

 

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5-3

  


ENGINE ESCALATION AND

ENGINE WARRANTY

between

THE BOEING COMPANY

and

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

Supplemental Exhibit EE1 to Purchase Agreement Number 3075

 

P.A. No. 3075   

EE1

 

BOEING PROPRIETARY

  


1. ENGINE ESCALATION .

The Aircraft Basic Price of each Aircraft set forth in Table 1 of the Purchase Agreement includes an aggregate price for Rolls-Royce plc Trent 1000 series engines and all accessories, equipment and parts provided by the engine manufacturer (Engines). The adjustment in Engine Price applicable to each Aircraft (Engine Price Adjustment) will be determined at the time of Aircraft delivery in accordance with the following formula:

[*]

Where:

[*]

Where:

[*]

 

P.A. No. 3075

  

EE1 - 1

 

BOEING PROPRIETARY

  


  M= [*]

As an example, for an Aircraft scheduled to be delivered in the month of July, the months [*] of the preceding year will be utilized in determining the value of [*].

 

Note:   i. In determining the values of L and M, all calculations and resulting values will be expressed as a decimal rounded to the nearest [*].
 

ii. [*].

  iii. [*].
  iv. [*]

 

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BOEING PROPRIETARY

  


   Price base year. The applicable base year and corresponding denominator is provided by Boeing in Table 1 of this Purchase Agreement.
   v. [*].
   vi. [*].

 

2. Values to be Utilized in the Event of Unavailability.

 

  2.1 [*].

 

  2.2 [*].

 

  2.3 [*].

 

  2.4 [*].

 

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BOEING PROPRIETARY

  


Note :    i. [*]
   ii. [*].

 

3. Engine Warranty .

[*].

 

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BOEING PROPRIETARY

  


SERVICE LIFE POLICY COMPONENTS

between

THE BOEING COMPANY

and

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

Supplemental Exhibit SLP1 to Purchase Agreement Number 3075

 

P.A. No. 3075   

SLP1

 

  
   BOEING PROPRIETARY   


COVERED SERVICE LIFE POLICY COMPONENTS

relating to

BOEING MODEL 787 AIRCRAFT

This is the listing of Covered Components for the Aircraft which relate to Part 3, Boeing Service Life Policy of Exhibit C, Product Assurance Document to the AGTA and is a part of Purchase Agreement No. 3075.

 

1. [*] .

 

  (a) [*].

 

  (b) [*].

 

  (c) [*].

 

  (d) [*].

 

  (e) [*].

 

  (f) [*].

 

  (g) [*].

 

  (h) [*].

 

  (i) [*].

 

  (j) [*].

 

  (k) [*].

 

  (l) [*].

 

  (m) [*].

 

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2. [*] .

 

  (a) [*].

 

  (b) [*].

 

  (c) [*].

 

  (d) [*].

 

  (e) [*].

 

  (f) [*].

 

  (g) [*].

 

  (h) [*].

 

  (i) [*].

 

  (j) [*]

 

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BOEING PROPRIETARY

  


3. [*] .

 

  (a) [*].

 

  (b) [*].

 

  (c) [*].

 

  (d) [*].

 

  (e) [*].

 

  (f) [*].

 

  (g) [*].

 

4. [*] .

 

  (a) [*].

 

  (b) [*]

 

  (c) [*].

 

  (d) [*].

 

  (e) [*].

 

  (f) [*].

 

5. [*] .

 

  (a) [*].

 

  (b) [*].

 

  (c) [*].

 

  (d) [*].

 

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BOEING PROPRIETARY

  


6. [*] .

 

  (a) [*].

 

  (b) [*].

 

  (c) [*]

 

  (d) [*].

 

  (e) [*].

 

  (f) [*].

 

  (g) [*].

 

  (h) [*]

 

  (i) [*].

 

7. [*] .

 

  (a) [*].

 

  (b) [*].

 

  (c) [*].

 

  (d) [*].

 

  (e) [*].

 

  (f) [*].

NOTE : The Service Life Policy does not cover standard parts, such as, any bearings, bolts, bushings, clamps, brackets, actuating mechanisms or latching mechanisms used in or on the Covered Components.

 

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BOEING PROPRIETARY

  


 

LOGO

 

 

 

 

 

 

 

  

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

  

3075-01

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Model 787 Open Configuration Matters
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

This Letter Agreement amends the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

1. Aircraft Configuration .

1.1 Initial Configuration . The initial configuration of Customer’s Model 787-8 Aircraft has been defined by Boeing Model 787 Aircraft Description and Selections Document Number 787B1-0227 Revision H dated August 8, 2006 ,  which reflects the Boeing baseline Model 787-8 LOPA YS6308B as described in Article 1, Table 1 and Exhibit A of the Purchase Agreement. Given the developing design of the Model 787 aircraft and the long period of time between Purchase Agreement signing and delivery of the first Aircraft, the final configuration of the Customer’s Aircraft has not yet been defined.

1.2 Final Configuration Schedule . Customer and Boeing hereby agree to complete the configuration of the Aircraft no later than [*], using the then current Model 787 Aircraft Description and Selections Document (Final Configuration).

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2. Amendment of the Purchase Agreement . Within [*] days following Final Configuration pursuant to Article 1.2, above, Boeing and Customer will execute a written amendment to the Purchase Agreement which will reflect the following:

2.1 Changes applicable to the basic Model 787 aircraft which are developed by Boeing between the [*] pursuant to Article 1.2, above ([*]);

2.2 Incorporation into Exhibit A of the Purchase Agreement of those Customer Selections which have been agreed to by Customer and Boeing (Customer Configuration Changes);

2.3 Revisions to the [*].

2.4 Changes to the Optional Features Price, Aircraft Basic Price and the Advance Payment Base Price of the Aircraft to adjust for (i) the difference, if any, between the [*].

3. Other Letter Agreements .

Boeing and Customer acknowledge that as the definition of the Aircraft progresses, there may be a need to execute letter agreements addressing one or more of the following subjects:

3.1 [*] .

3.2 [*] .

 


 

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3.3 [*] .

 

Very truly yours,
THE BOEING COMPANY
By  

Dennis Egge

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date: 03 October , 2006
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

CFO

 


Attachment A to Open Configuration Matters

Letter Agreement No. 3075-01

787-8

[*]

 

ALL PRICES QUOTED IN [*]           BASELINE SPEC
274 PAX B870292, AD&S Rev H
 
            QUANTITY      PRICE             TOTAL  

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   
                 

 

 

 

[*]

     [*]         [*]         [*]         [*]         [*]         [*]   

TOTAL

                 

1) [*].

2) [*].


 

LOGO

 

 

 

 

 

 

 

  

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

  

3075-02

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Spare Parts Commitments
Reference:    a) Purchase Agreement No. 3133 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)
   b) Customer Services General Terms Agreement No. AVI (CSGTA) between Boeing and Customer

This letter agreement (Letter Agreement) is entered into of the date set forth below, and amends and supplements the CSGTA. All capitalized terms used but not defined in this Letter Agreement have the same meaning as in the CSGTA, except for “Aircraft” which will have the meaning as defined in the Purchase Agreement. Unless otherwise stated all references in this Letter Agreement to Articles refer to the Articles contained this Letter Agreement. In consideration of Customer’s purchase of the Aircraft, the commitments described in this Letter Agreement will continue for as long as Customer owns or operates the Aircraft.

1. Definitions.

1.1 “ Customer’s Demand Date ” means the delivery date specified by Customer in its Order to Boeing for a Spare Part.

1.2 “ Customer Hold Time ” means the period of time between the date on which Boeing requests a decision, information or act from Customer and the date Customer provides such decision or information or performs such act. This includes, but is not limited to time expended [*], (ii) [*], (iii) [*], (iv) [*], and (v) [*].

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1.3 “ Beyond Economic Repair ” or “ BER ” is the term applied to a part whose repair or overhaul will exceed [*]% of Boeing’s then current price for a new such replacement part.

1.4 “Excusable Delay” for the purposes of this Letter Agreement means “Excusable Delay” as defined in the CSGTA.

1.5 “ Order Date ” means the date on which an Order is established in accordance with the provisions of the CSGTA.

1.6 “ Shelf Stock Part ” means at any time a Spares Prone Part that has been ordered [*] or more times from Boeing within the most recent consecutive [*] month period.

1.7 “ Spares Prone Part ” means a Boeing Spare Part that is identified and recommended by Boeing in its provisioning data as a part that for the life of the aircraft can be expected to be replaced during normal aircraft line maintenance or during overhaul of line replaceable units due to, failure, wear, deterioration, maintenance, damage, loss, corrosion, vibration, or temperature.

2. Delivery Commitment for New Spare Parts.

2.1 Boeing will deliver in accordance with the provisions of the CSGTA within the lead times specified below, Boeing Spare Parts other than (i) Boeing Spare Parts ordered as part of Customer’s initial provisioning for an aircraft or (ii) kits; provided that such Boeing Spare Parts are Ordered after either [*], or the execution of this Letter Agreement, whichever is later, and are in continuous production for an aircraft model in production on the Order Date.

2.1.1 A Shelf Stock Part will ship either (i) in not more than [*] calendar days from its Order Date, or (ii) prior to Customer’s Demand Date, whichever is later.

2.1.2 A Spares Prone Part that is not a Shelf Stock Part will ship either (i) in not more than [*] calendar days from its Order Date, or (ii) prior to Customer’s Demand Date, whichever is later.

2.2 For Boeing Spare Parts not in continuous production on the Order Date, Boeing will expend commercially reasonable efforts to meet Customer’s Demand Date.

 

 

 

 

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3. Remedies Regarding Delivery.

3.1 If Boeing anticipates it will be unable to ship a Boeing Spare Part within the applicable commitment time described in Article 2.1, Boeing will use commercially reasonable efforts to take one or more of the following actions:

3.1.1 [*]; or

3.1.2 [*]; or

3.1.3 [*].

3.2 If as a result of an action described in Article 3.1, Boeing provides to Customer the applicable Boeing Spare Part within the commitment period described in Article 2.1 or provides [*] in accordance with Article 3.1.3, and, in either case, thereafter completes the Order as soon as such Boeing Spare Part is available for shipment, Boeing shall be deemed to have satisfied the commitments described in Article 2.1.

3.3 Subject to the limitations described in Article 3.4, if Boeing in the exercise of its commercially reasonable efforts is unable to satisfy the requirements of Article 2.1 through one or more of the actions described in Article 3.1, Boeing will provide [*] to the Customer [*] of Boeing’s then current list price of the Boeing Spare Part for each calendar day the delivery of such Boeing Spare Part is delayed, but not to exceed Boeing’s then current list price for such Boeing Spare Part.

3.4 The provisions of Article 3.3 will not apply to delay in delivery which is due to (i) the failure of Customer’s carrier to take possession of the Boeing Spare Parts, or (ii) is otherwise permitted by applicable law or contract, including without limitation any provisions relating to Excusable Delay.

3.5 The remedies described in this Article 3 are Customer’s exclusive remedies for Boeing’s failure to comply with the provisions of Articles 2.1 and are in lieu of all other damages, claims and remedies of Customer arising at law or otherwise for any failure to meet Customer’s delivery requirements. Customer hereby waives and renounces all other claims and remedies arising at law or otherwise for any such failure to meet Customer’s delivery requirements.

4. [*] .

[*]

 

 

 

 

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5. [*] .

5.1 [*].

 

 

 

 

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5.2. [*]

5.3 [*]

6. Processing Time Commitment for Spare Prone Parts Returned for Repair or Overhaul .

6.1 The processing time commitments in this Article 6 are for any Spares Prone Part which (i) [*] (ii) [*], (iii) [*], and (iv) [*]. A Spares Prone Part meeting the criteria defined in this Article 6.1 shall be called a “ Qualifying In-Production Spares Prone Part .”

6.2 [*]

6.3 [*].

6.4 [*].

 

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7. Remedies Regarding Processing Time .

7.1 If Boeing anticipates it will be unable to meet the processing time commitments established in Article 6.2, Boeing will use commercially reasonable efforts to take one or more of the following actions:

7.1.1 [*]

7.1.2 [*]

7.1.3 [*].

7.2 If as a result of an action described in Article 7.1, Boeing provides to Customer a [*] within the commitment periods described in Article 6.2, or provides [*] in accordance with Article 7.1.3, and in either case, thereafter completes the applicable contract as soon as such [*] is available for shipment, Boeing will be deemed to have satisfied the commitments described in Article 6.2.

7.3 Subject to the limitations described in Article 7.4, if Boeing in the exercise of its [*] is unable to satisfy the requirements of Article 6.2 through one or more of the actions described in Article 7.1, Boeing will provide a [*] to the Customer [*].

7.4 The provisions of Article 7.3 will not apply to delay in delivery which is due to (i) Customer Hold Time, (ii) the failure of Customer’s carrier to take possession of the applicable Qualifying In-Production Spares Prone Part, or (iii) is otherwise permitted by applicable law or contract, including without limitation any provisions relating to Excusable Delay.

7.5 The remedies provided in this Article 7 are Customer’s exclusive remedies for Boeing’s failure to comply with the provisions of Article 6.2 and are in lieu of all other damages, claims and remedies of Customer arising at law or otherwise for any failure to meet Customer’s delivery requirements. Customer hereby waives and renounces all other claims and remedies arising at law or otherwise for any such failure to meet Customer’s delivery requirements.

 

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8. Substitution for Obsolete Spare Parts .

After delivery of the first Aircraft, if any unused and undamaged Spare Part purchased by Customer from Boeing for the Aircraft, or other aircraft in Customer’s fleet of the same model type, is rendered obsolete and unusable due to a Boeing initiated change that results in a redesign of the Aircraft or any accessory, equipment or part thereof, (other than a redesign at Customer’s request), Boeing will [*].

9. Order of Precedence .

In the event of any inconsistency between the terms of this Letter Agreement and the terms of any other provisions of the CSGTA, the terms of this Letter Agreement shall control.

 

Very truly yours,
THE BOEING COMPANY
By  

Dennis Egge

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date: 03 October , 2006
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

CFO

 

 

P.A. No. 3075

Spare Parts Commitments

 


 

LOGO

 

 

 

 

 

 

 

  

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

  

3075-03

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

   Subject: Spare Parts Initial Provisioning
   Reference:    a)    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)
     b)    Customer Services General Terms Agreement No. AVI (CSGTA) between Boeing and Customer

This letter agreement (Letter Agreement) is entered into on the date below and amends and supplements the CSGTA. All capitalized terms used but not defined in this Letter Agreement have the same meaning as in the CSGTA, except for “Aircraft” which will have the meaning as defined in the Purchase Agreement.

In order to define the process by which Boeing and Customer will (i) identify those Spare Parts and Standards critical to Customer’s successful introduction of the Aircraft into service and its continued operation, (ii) place Orders under the provisions of the CSGTA as supplemented by the provisions of this Letter Agreement for those Spare Parts and Standards, and (iii) manage the return of certain of those Spare Parts which Customer does not use, the parties agree as follows.

 

  1. Definitions .

Provisioning Data ” means the documentation provided by Boeing to Customer, including but not limited to the Recommended Spare Parts List (RSPL), identifying all Boeing initial provisioning requirements for the Aircraft.

Provisioning Items ” means the Spare Parts and Standards identified by Boeing as initial provisioning requirements in support of the Aircraft, excluding special tools, ground support equipment (GSE), quick engine change (QEC) kits, engines and engine parts.

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Provisioning Products Guide ” means the Boeing Manual D6-81834 entitled “Spares Provisioning Products Guide”.

 

  2. Phased Provisioning .

2.1 Provisioning Products Guide . Prior to the initial provisioning meeting Boeing will furnish to Customer a copy of the Provisioning Products Guide.

2.2 Initial Provisioning Meeting . On or about [*] months prior to delivery of the first Aircraft the parties will conduct an initial provisioning meeting]as applicable, where the procedures, schedules, and requirements for training will be established to accomplish phased provisioning of Spare Parts and Standards for the Aircraft in accordance with the Provisioning Products Guide. If the lead time from execution of the Purchase Agreement until delivery of the first Aircraft is less than [*], the initial provisioning meeting will be established as soon as reasonably possible after execution of the Purchase Agreement.

2.3 Provisioning Data . During the initial provisioning meeting Customer will provide to Boeing the operational parameter information described in Chapter 6 of the Provisioning Products Guide. After review and acceptance by Boeing of such Customer information, Boeing will prepare the Provisioning Data. Such Provisioning Data will be furnished to Customer on or about [*] days after Boeing finalizes the engineering drawings for the Aircraft. The Provisioning Data will be as complete as possible and will cover Provisioning Items selected by Boeing for review by Customer for initial provisioning of Spare Parts and Standards for the Aircraft. Boeing will furnish to Customer revisions to the Provisioning Data until approximately [*] following delivery of the last Aircraft or until the delivery configuration of each of the Aircraft is reflected in the Provisioning Data, whichever is later.

2.4 Buyer Furnished Equipment (BFE) Provisioning Data .

Unless otherwise advised by Boeing, Customer will provide or insure its BFE suppliers provide to Boeing the BFE data in scope and format acceptable to Boeing, in accordance with the schedule established during the initial provisioning meeting.

 

3. Purchase from Boeing of Spare Parts and Standards as Initial Provisioning for the Aircraft .

3.1 Schedule . In accordance with schedules established during the initial provisioning meeting, Customer may place Orders for Provisioning Items and any GSE, special tools, QEC kits, or engine spare parts which Customer determines it will initially require for maintenance, overhaul and servicing of the Aircraft and/or engines.

 

 

 

 

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3.2 Prices of Initial Provisioning Spare Parts .

3.2.1 Boeing Spare Parts . The Provisioning Data will set forth the prices for those Provisioning Items other than items listed in Article 3.3, below, that are Boeing Spare Parts, and such prices will be [*] to Customer in the Provisioning Data.

3.2.2 Supplier Spare Parts . Boeing will provide [*] in the Provisioning Data for Provisioning Items other than items listed in Article 3.3, below, that are Supplier Spare Parts. The price to Customer for any Supplier Spare Parts that are Provisioning Items or for any items ordered for initial provisioning of GSE, special tools manufactured by suppliers, QEC kits, or engine spare parts will be [*] of the supplier’s list price for such items.

3.3 Standards Kits, Raw Material Kits, Bulk Materials Kits and Service Bulletin Kits . In accordance with schedules established during the initial provisioning meeting, Boeing will furnish to Customer a listing of all components which could be included in the Standards kits, raw material kits, bulk materials kits and service bulletin kits which may be purchased by Customer from Boeing. Customer will select, and provide to Boeing its desired content for the kits. Boeing will furnish to Customer as soon as practicable thereafter a statement setting forth a firm price for such kits. Customer will place Orders with Boeing for the kits in accordance with schedules established during the initial provisioning meeting.

 

  4. Delivery .

For Spare Parts and Standards ordered by Customer in accordance with Article 3 of this Letter Agreement, Boeing will, insofar as reasonably possible, deliver to Customer such Spare Parts and Standards on dates reasonably calculated to conform to Customer’s anticipated needs in view of the scheduled deliveries of the Aircraft. Customer and Boeing will agree upon the date to begin delivery of the provisioning Spare Parts and Standards ordered in accordance with this Letter Agreement. Where appropriate, Boeing will arrange for shipment of such Spare Parts and Standards which are manufactured by suppliers directly to Customer from the applicable supplier’s facility. The routing and method of shipment for initial deliveries and all subsequent deliveries of such Spare Parts and Standards will be as established at the initial provisioning meeting and thereafter by mutual agreement.

 

 

 

 

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  5. Substitution for Obsolete Spare Parts .

5.1 Obligation to Substitute Pre-Delivery . In the event that, prior to delivery of the first Aircraft, any Spare Part purchased by Customer from Boeing in accordance with this Letter Agreement as initial provisioning for the Aircraft is rendered obsolete or unusable due to the redesign of the Aircraft or of any accessory, equipment or part thereof (other than a redesign at Customer’s request) Boeing will deliver to Customer [*].

5.2 Delivery of Obsolete Spare Parts and Substitutes . Obsolete or unusable Spare Parts [*] pursuant to this Article 5 will be delivered to Boeing [*].

 

  6. Repurchase of Provisioning Items .

6.1 Obligation to Repurchase . During a period commencing [*] year after delivery of the first Aircraft , and ending [*] years after such delivery, Boeing will, upon receipt of Customer’s written request and subject to the exceptions in Article 6.2, repurchase unused and undamaged Provisioning Items which (i) were [*].

6.2 Exceptions . Boeing will not be obligated under Article 6.1 to repurchase any of the following: (i) [*].

 

 

 

 

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6.3 Notification and Format . Customer will notify Boeing, in writing when Customer desires to return Provisioning Items under the provisions of this Article 6. Customer’s notification will include a detailed summary, in part number sequence, of the Provisioning Items Customer desires to return. Such summary will be in the form of listings, tapes, diskettes or other media as may be mutually agreed between Boeing and Customer and will include part number, nomenclature, purchase order number, purchase order date and quantity to be returned. Within [*] business days after receipt of Customer’s notification, Boeing will advise Customer in writing when Boeing’s review of such summary will be completed.

6.4 Review and Acceptance by Boeing . Upon completion of Boeing’s review of any detailed summary submitted by Customer pursuant to Article 6.3, Boeing will issue to Customer a Material Return Authorization (MRA) for those Provisioning Items Boeing agrees are eligible for repurchase in accordance with this Article 6. Boeing will advise Customer of the reason that any Provisioning Item included in Customer’s detailed summary is not believed by Boeing to be eligible for return. Boeing’s MRA, [*], will state the date by which Provisioning Items listed in the MRA must be redelivered to Boeing, and Customer will arrange for shipment of such Provisioning Items accordingly.

6.5 Price and Payment . The price of each Provisioning Item repurchased by Boeing pursuant to this Article 6 will be [*].

6.6 Delivery of Repurchased Provisioning Items . Provisioning Items repurchased by Boeing pursuant to this Article 6 will be delivered to Boeing F.O.B. at its Seattle Distribution Center or such other destination as Boeing may reasonably designate.

 

 

 

 

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  7. Title and Risk of Loss .

Title and risk of loss of any Spare Parts or Standards delivered to Customer by Boeing in accordance with this Letter Agreement will pass from Boeing to Customer in accordance with the applicable provisions of the CSGTA. Title to and risk of loss of any Spare Parts or Standards returned to Boeing by Customer in accordance with this Letter Agreement will pass to Boeing upon delivery of such Spare Parts or Standards to Boeing in accordance with the provisions of Article 5.2 or Article 6.6, herein, as appropriate.

 

  8. Termination for Excusable Delay .

In the event of termination of the Purchase Agreement pursuant to Article 7 of the AGTA with respect to any Aircraft, such termination will, [*].

 

 

 

 

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  9. Order of Precedence .

In the event of any inconsistency between the terms of this Letter Agreement and the terms of any other provisions of the CSGTA, the terms of this Letter Agreement will control.

 

  Very truly yours,
  THE BOEING COMPANY
  By   

Dennis Egge

  Its   

Attorney-In-Fact

  ACCEPTED AND AGREED TO this
  Date: 03 October , 2006
  AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
  By   

 

  Its   

CFO

 

 

 

 

P.A. No. 3075

Spare Parts Initial Provisioning

BOEING PROPRIETARY

 


 

LOGO

 

 

 

 

 

 

 

  

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

  

3075-04

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Aircraft Model Substitution
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

Customer may substitute the purchase of Boeing Model 787-9 aircraft ( Substitute Aircraft ) in place of any of the Aircraft, subject to the following terms and conditions:

 

1. Customer’s Written Notice .

Customer will provide written notice of its intention to substitute the purchase of an Aircraft with the purchase of a Substitute Aircraft,

(a) no later than the first day of the month that is [*] months prior to the scheduled month of delivery of the Aircraft for which it will be substituted, provided that a Substitute Aircraft has been previously certified and delivered to Customer, or;

(b) no later than the first day of the month that is [*] months prior to the scheduled month of delivery of the Aircraft for which it will be substituted, if a Substitute Aircraft has not been previously certified and delivered to Customer.

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2. Boeing’s Production Capability .

Customer’s substitution right is conditioned upon Boeing’s having production capability for the Substitute Aircraft in the scheduled delivery month of the Aircraft for which it will be substituted.

[*]

 

3. Definitive Agreement .

Customer’s substitution right and Boeing’s obligation in this Letter Agreement are further conditioned upon Customer’s and Boeing’s executing a definitive agreement for the purchase of the Substitute Aircraft within [*] days of Customer’s substitution notice to Boeing or of Customer’s acceptance of an alternate delivery month in accordance with paragraph 2. above.

 

4. Price and Advance Payments .

The Airframe Base Price, Optional Features Prices, Engine Price and Aircraft Basic Price will be adjusted to Boeing’s and the engine manufacturer’s [*] prices for such elements as of the date of execution of the definitive purchase agreement for the Substitute Aircraft. The escalation indices and methodology used to estimate the Advance Payment Base Prices will be adjusted to Boeing’s and the engine manufacturer’s [*] provisions for such elements as of the date of execution of the definitive purchase agreement for the Substitute Aircraft.

If the Advance Payment Base Price for any Substitute Aircraft is higher than that of the Aircraft, Customer will pay to Boeing the amount of the difference as of the date of execution of the definitive agreement for the Substitute Aircraft. If the Advance Payment Base Price of the Substitute Aircraft is lower than that of the Aircraft, Boeing will retain any excess amounts previously paid by Customer until the next payment is due from Customer, at which point Customer may reduce the amount of such payment by the amount of the excess. In no case will Boeing refund or pay interest on any excess amounts created by virtue of Customer’s exercise of the rights of substitution described in this agreement.

 

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5. Confidential Treatment .

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential. Customer agrees that it will treat this Letter Agreement and the information contained herein as confidential and will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity. [*].

 

Very truly yours,
THE BOEING COMPANY
By  

Dennis Egge

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date: 03 October , 2006

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

By  

 

Its  

CFO

 

P.A. No. 3075

BOEING PROPRIETARY

 


 

LOGO

 

 

 

 

 

 

 

  

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

  

3075-05

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Demonstration Flight Waiver
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement shall have the same meaning as in the Purchase Agreement.

Definition of Terms:

Correction Costs : [*] and the cost of any material required to correct a Flight Discrepancy where direct labor costs are equal to the warranty labor rate in effect between the parties at the time such labor is expended.

Flight Discrepancy : A failure or malfunction of an Aircraft, or the accessories, equipment or parts installed on the Aircraft which results from a defect in the Aircraft, Boeing Product, engine or Supplier Product or a nonconformance to the Detail Specification for the Aircraft.

The AGTA provides that each aircraft will be test flown prior to delivery for the purpose of demonstrating the functioning of such Aircraft and its equipment to Customer; however, Customer may elect to waive this test flight. For each test flight waived, Boeing agrees to provide Customer an amount of jet fuel at delivery that, including the standard fuel entitlement, totals the following amount of fuel:

 

Aircraft Model

   Total Fuel Entitlement
(U.S. Gallons)

[*]

   [*]

[*]

   [*]

[*]

   [*]

[*]

   [*]

[*]

   [*]

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Further, Boeing agrees to reimburse Customer for any [*].

Should a Flight Discrepancy be detected by Customer which requires the return of the Aircraft to Boeing’s facilities at Seattle, Washington, so that Boeing may correct such Flight Discrepancy, Boeing and Customer agree that title to and risk of loss of such Aircraft will [*]. In addition, it is agreed that Boeing will have responsibility for the Aircraft while it is on the ground at Boeing’s facilities in Seattle, Washington, [*].

To be reimbursed for [*], Customer shall submit a written itemized statement describing any [*] incurred by Customer for each discrepancy. This request must be submitted to Boeing’s Contracts Regional Director at Renton, Washington, within ninety (90) days after the first flight by Customer.

 

Very truly yours,
THE BOEING COMPANY
By  

Dennis Egge

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date: 03 October , 2006
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

CFO

 

 

 

 

P.A. No. 3075

Demonstration Flight Waiver

BOEING PROPRIETARY

 


 

LOGO

 

 

 

 

 

 

 

 

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

 

3075-6

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Aircraft Schedule Reliability Program
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

 

1.0 Definition of Terms:

1.1 “ Achieved Mechanical Schedule Reliability ” shall mean a number calculated pursuant to the following formula:

[*]

[*]

1.2 “ Analysis Period ” shall mean any [*].

1.3 “Average Flight Length” shall mean the [*].

1.4 “ Chargeable Schedule Interruption ” or “ Interruption ” shall mean a [*]

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Aircraft, or any system, accessory, equipment or part (including engines) installed thereon.

1.5 “ Covered Aircraft ” shall mean those Aircraft operated by Customer on Customer’s routes during the Program Term.

1.6 “ Program ” shall mean the rights and obligations defined in this Letter Agreement.

1.7 “ Program Term ” shall mean the [*] commencing on the delivery date of the first Covered Aircraft.

1.8 “ Scheduled Revenue Departure ” shall mean any departure of a Covered Aircraft [*].

 

2. Program Description .

Mechanical Schedule Reliability targets for the Covered Aircraft (Mechanical Schedule Reliability Target(s)) during the Program Term are as follows:

 

Program Term

   Mechanical Schedule
Reliability Target

[*]

   [*]

[*]

   [*]

[*]

   [*]

These Mechanical Schedule Reliability Targets are based on an average flight length of [*] for Covered Aircraft in revenue service operations. The Mechanical Schedule Reliability Targets are subject to change based on changes in the Customer’s actual Average Flight Length and other factors under Customer’s control.

 

3. Remedial Action .

3.1 Following the [*] of Scheduled Revenue Departures, if Customer notifies Boeing that the Achieved Mechanical Schedule Reliability for the Analysis Period is more than 0.40 percentage point below the Mechanical Schedule Reliability Target (Agreed Threshold Value) for such Analysis Period, Boeing will:

3.1.1 [*];

 

 

 

 

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3.1.2 [*];

3.1.3 [*];

3.1.4 [*];

3.1.5 [*]

3.1.6 [*].

3.2 With respect only to the [*] of Program Term, if Customer notifies Boeing that the Achieved Mechanical Schedule Reliability for that [*] is below the Agreed Threshold Value for such [*], Boeing shall provide its [*] to Customer [*] subject to the following conditions:

3.2.1 [*];

3.2.2. [*]

3.2.3 [*].

 

 

 

 

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4. Interruption Exclusions.

An Interruption does not include any delayed departure, cancellation, air turn back, or diversion of any scheduled revenue flight of any Covered Aircraft which is caused by any of the following events:

 

  (i) [*]

 

  (ii) [*]

 

  (iii) [*]

 

  (iv) [*]

 

  (v) [*]

 

  (vi) [*]

 

  (vii) [*]

 

  (viii) [*]

 

  (ix) [*]

 

  (x) [*]

 

  (xi) [*]
 

 

 

 

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[*].

 

5. Administrative Requirements.

5.1 Customer will provide status reports every month (Reporting Period).

5.2 The Customer’s status reports shall include the data required to calculate the Achieved Mechanical Schedule Reliability for each month of the Reporting Period using the formulas described in Section 1.0, above, and a list of the Chargeable Schedule Interruptions for the Reporting Period. Customer shall submit such data to Boeing electronically in accordance with the provisions of Boeing Document D6-81692.

All data submitted pursuant to Subsection 5.2 will be addressed to the attention of:

MANAGER – IN-SERVICE DATA GROUP

Boeing Commercial Airplanes

P.O. Box 3707

Seattle, Washington 98124-2207

5.3 Customer claim reports will include the data described in Subsection 5.2 above and sufficient data to substantiate any claimed Chargeable Schedule Interruption. Customer will submit to Boeing reasonable proof that any claimed Chargeable Schedule Interruption does in fact constitute a Chargeable Schedule Interruption. In addition, Customer will maintain and submit to Boeing such data as may reasonably be required to:

(i) [*],

(ii) [*]

(iii) [*].

 

 

 

 

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5.4 Failure to file the status reports or provide the information as specified in Subsections 5.1 through 5.3, above, will constitute an acknowledgment by Customer that the Achieved Mechanical Schedule Reliability is equal to or greater than the Agreed Threshold Value for such Analysis Period, and Boeing will not be obligated to provide any of the remedies arising under this Program for such Analysis Period.

5.5 All reports submitted to Boeing will be addressed to the attention of:

Director - Warranty & Supplier Product Support

Boeing Commercial Airplanes

P.0. Box 3707

Seattle, Washington 98124-2207

 

6. Conditions and Limitations .

6.1 If, to improve Schedule Reliability, Boeing or any Boeing supplier issues service bulletins, service letters or other written instructions (Instructions) or offers no-charge retrofit kits, Customer will accomplish such Instructions or install such kits within a period of [*] days after availability of such Instructions or kits at Customer’s facility or such longer period as may be established by mutual agreement of the parties. If Customer does not accomplish the Instructions or install the kits within such time period, [*]

6.2 Boeing may inspect at all reasonable times Customer’s maintenance facilities and review its maintenance programs and procedures. If Boeing recommends in writing [*] changes in Customer’s maintenance programs and procedures which would improve the Achieved Mechanical Schedule Reliability and Customer does not effect such changes within [*] days after receiving such written recommendations or such longer period as may be established by mutual agreement of the parties, Boeing will have the right to [*].

6.3 If, for any Analysis Period, the actual Average Flight Length or other factors affecting Schedule Reliability of the Covered Aircraft [*].

 

 

 

 

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6.4 At Boeing’s request, Customer will assign to Boeing any of Customer’s rights against any manufacturer of any system, equipment, accessory or part installed in the Covered Aircraft as Boeing may reasonably require to fulfill its obligations with respect to any remedy provided by Boeing hereunder.

6.5 THE DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES provisions stated in Article 11 of Exhibit C of the AGTA apply to this Program.

 

7. Duplication of Benefits

Nothing in this Letter Agreement shall require Boeing or the Engine Manufacturer to provide duplicate remedies to Customer under this Letter Agreement or any other agreements between Boeing and Customer or between the Engine Manufacturer and Customer.

 

8. Exclusive Remedy .

Performance of the commitments made in this Letter Agreement by Boeing in accordance with the terms and conditions of this Letter Agreement is in substitution for all other damages and remedies recoverable by Customer from Boeing and shall constitute complete, full and final settlement and satisfaction of all Boeing’s obligation and liabilities to Customer arising out of failure of the Achieved Mechanical Schedule Reliability to equal or exceed the Agreed Threshhold Value. Customer hereby waives and releases all other rights, remedies, claims and causes of action against Boeing relating to the failure of Boeing to perform such commitments.

 

9. Confidential Treatment .

Certain commercial and financial information contained in this Letter Agreement, or provided in accordance with its terms, is considered as confidential. Each party agrees that it will treat this Letter Agreement and the information contained herein, and any information provided in accordance with its terms, as confidential and will not, without the prior written consent of the other party, disclose this Letter Agreement or any information contained herein, and any information provided in accordance with its terms, to any other person or entity. [*]

 

 

 

 

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[*]

If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.

 

Very truly yours,
THE BOEING COMPANY
By  

/s/    Dennis Egge        

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date:   03 October , 2006
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

CFO

 

 

 

 

P.A. No. 3075

Schedule Reliability

BOEING PROPRIETARY

 


 

 

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

 

3075-07

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Flight Crew Training Spare Parts Support
Reference:    Purchase Agreement No. 3075 (the Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

This Letter Agreement is entered into on the date below, and amends and supplements the Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Agreement.

Definition of Terms:

Flight Crew Training : Flight training conducted by Boeing and occurring immediately following delivery of the Aircraft.

Removed Parts : Parts removed from an Aircraft during Flight Crew Training.

Replacement Parts : Parts taken from Boeing inventory and installed in an Aircraft because no Standby Parts are available.

Standby Parts : Parts which are owned by Customer and located at Customer’s designated storage area at Boeing to support Flight Crew Training.

Training Aircraft : The Aircraft delivered to Customer and used for Flight Crew Training.

 

1. Provisioning of Spare Parts

To support Flight Crew Training, Boeing agrees to provide normal line maintenance and expendable spare parts at no charge on the Training Aircraft; and, Customer agrees to provide Standby Parts for the Training Aircraft. The Standby Parts list, including part numbers, exact quantities and on-dock dates, will be established during the provisioning meeting.

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If parts other than those discussed above fail on the Training Aircraft during Flight Crew Training, Boeing will attempt to provide Replacement Parts for those failed parts. If Boeing is unable to provide Replacement Parts, Customer will be responsible for providing those parts.

 

2. Disposition of Removed Parts

With respect to Removed Parts, Boeing may:

 

  (i) [*];

 

  (ii) [*]

 

  (iii) [*]

Any Removed Parts returned to Customer, or replacements, will be accomplished in accordance with any written instructions from Customer received by Boeing prior to such return.

 

3. Redelivery of Standby Parts

Standby Parts not installed in the Training Aircraft will be redelivered to Customer on board the last aircraft used for Flight Crew Training.

 

4. Non-performance by Customer

If Customer’s non-performance of obligations in this Letter Agreement causes a delay in the Flight Crew Training, Customer will be deemed to have agreed to any such delay in Flight Crew Training. In addition, Boeing will have the right to:

 

  (i) [*]

 

  (ii) [*]

 

  (iii) [*]
 

 

 

 

P.A. No. 3075   Rev.: 01/08/04

AD Cost [*]

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5. Customer Warranty

Customer warrants that the Standby Parts will meet the requirements of the Detail Specification and be in a condition to pass Boeing’s receiving inspection and functional test, and if not in a new condition, will have an attached FAA Serviceable Parts Tag.

 

6. Title and Risk of Loss

Title to and risk of loss of any Standby Parts or Removed Parts will remain with Customer. Boeing will have only such liability for Standby Parts and Removed Parts as a bailee for mutual benefit would have, but will not be liable for loss of use. For Replacement Parts, title will transfer to Customer at the time such part is installed on the Training Aircraft.

 

Very truly yours,
THE BOEING COMPANY
By  

/s/ Dennis Egge

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date:   03 October 2006
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

CFO

 

 

 

 

P.A. No. 3075   Rev.: 01/08/04

AD Cost [*]

BOEING PROPRIETARY

 


 

LOGO

 

 

 

 

 

 

 

 

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

  

6-1162-DME-0895

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Airworthiness Directive Cost Participation Program
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. It grants to Customer an Airworthiness Directive Cost Participation Program described herein (the Program). All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

 

1. Scope .

This Program applies to any Boeing Product installed in the Aircraft, or [*] at the time of Aircraft delivery that is modified or replaced with Boeing-designed corrective materials to comply with terminating actions specified in FAA Airworthiness Directives when the defects are of the type covered by the material and workmanship or design warranties set forth in Part 2 of Exhibit C, Product Assurance Document, of the AGTA [*]

 

2. Term .

The term of the Program for Boeing Products installed on the Aircraft at the time of delivery is [*] consecutive years after delivery of such Aircraft. [*]

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3. Price .

If any corrective materials are required as described under paragraph 1 above during the term of this Program, Boeing will promptly furnish such materials to Customer (including Boeing-designed standard parts but excluding industry standard parts such as MS and NAS standards) at a price determined in accordance with the following formula:

[*]

 

4. General Conditions and Limitations .

4.1 Customer’s written notice of claim under this Program must be received by Boeing’s Warranties Regional Manager within [*] from the date of issuance of any applicable Airworthiness Directive.

4.2 THE DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES provisions stated in Article 11 of Part 2 of Exhibit C of the AGTA apply to this Program.

 

5. Confidential Treatment .

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential. Customer agrees that it will treat this Letter Agreement and the information contained herein as confidential and will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity. [*]

 

 

 

 

P.A. No. 3075

AD Cost [*]

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If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.

 

Very truly yours,
THE BOEING COMPANY
By  

/s/ Dennis Egge

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date:   03 October , 2006
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

CFO

 

 

 

 

P.A. No. 3075

AD Cost [*]

BOEING PROPRIETARY

 


 

LOGO

 

 

 

 

 

 

 

 

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

  

6-1162-DME-0896

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Aircraft Performance Guarantees – Genx-1B64 and Trent 1000-A Engines
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

Boeing agrees to provide Customer with the performance guarantees in the Attachment. These guarantees are exclusive and expire upon delivery of the Aircraft to Customer.

These performance guarantees were prepared using methodology and tolerances that are similar to those used for performance guarantees for all 787-8 customers.

Confidential Treatment .

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential. Customer agrees that it will treat this Letter Agreement and the information contained herein as confidential and will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity. [*]

P.A. No. 3075

Genx & Trent Performance Guarantees

BOEING PROPRIETARY

 


 

Aerovias del Continente Americano S.A. AVIANCA

6-1162-DME-0896 Page 2

 

 

 

 

LOGO

 

 

[*]

 

Very truly yours,
THE BOEING COMPANY
By  

/s/ Dennis Egge

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date:   03 October , 2006
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

CFO

Attachment

P.A. No. 3075

GEnx and Trent Performance Guarantees

 


 

  

 

Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

Page 1

 

 

 

 

 

MODEL 787-8 PERFORMANCE GUARANTEES

FOR AEROVIAS NACIONALES DE COLOMBIA S.A. AVIANCA

 

SECTION    CONTENTS   

1

   AIRCRAFT MODEL APPLICABILITY    2

2

   FLIGHT PERFORMANCE    2

3

   [*]    21

4

   [*]    21

5

   AIRCRAFT CONFIGURATION    21

6

   GUARANTEE CONDITIONS    22

7

   GUARANTEE COMPLIANCE    24

8

   EXCLUSIVE GUARANTEES    25
 

 

 

P.A. No. 3075    SS06-0154
AERO-B-BBA4-M06-0269A   
 


 

  

 

Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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1 AIRCRAFT MODEL APPLICABILITY

The guarantees contained in this Attachment (the “Performance Guarantees”) are applicable to the 787-8 Aircraft with a maximum takeoff weight of [*] kilograms, a maximum landing weight of [*] kilograms, and a maximum zero fuel weight of [*] kilograms, and equipped with Boeing furnished GEnx-1B64 engines unless otherwise specified as GEnx-1B67 engines.

 

2 FLIGHT PERFORMANCE

 

2.1 [*]

 

2.1.1 [*], shall not be

less than the following guarantee value:

 

NOMINAL:    [*] Kilograms
TOLERANCE:    [*] Kilograms
GUARANTEE:    [*] Kilograms

Conditions:

[*]

The following obstacle definition is based on a straight-out departure where obstacle height and distance are specified with reference to the liftoff end of the runway:

 

     Distance    Height
1    [*]    [*]
 

 

 

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Trent 1000-A Engines

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2.1.2 [*] shall not be less than the following guarantee value:

NOMINAL: [*] Kilograms

TOLERANCE: [*] Kilograms

GUARANTEE: [*] Kilograms

Conditions:

[*]

The following obstacle definition is based on a straight-out departure where obstacle height and distance are specified with reference to the liftoff end of the runway:

 

     Distance    Height
1.    [*]    [*]

2.1.3 [*] shall not be less than the following guarantee value:

NOMINAL: [*] Kilograms

TOLERANCE: [*] Kilograms

GUARANTEE: [*] Kilograms

Conditions:

[*]

 

 

 

P.A. No. 3075    SS06-0154
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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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[*]

2.1.4 [*] shall not be less than the following guarantee value:

NOMINAL: [*] Kilograms

TOLERANCE: [*] Kilograms

GUARANTEE: [*] Kilograms

Conditions:

[*]

The following obstacle definition is based on a straight-out departure where obstacle height and distance are specified with reference to the liftoff end of the runway:

 

     Distance    Height
1.    [*]    [*]
2.    [*]    [*]
 

 

 

P.A. No. 3075    SS06-0154
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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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2.1.5 [*] shall not be less than the following guarantee value:

NOMINAL: [*] Kilograms

TOLERANCE: -[*] Kilograms

GUARANTEE: [*] Kilograms

Conditions:

[*]

2.2 [*]

[*] shall not be less than the following guarantee value:

NOMINAL: [*] Feet

TOLERANCE: [*] Feet

GUARANTEE: [*] Feet

2.3 Altitude Capability

[*] shall not be less than the following guarantee value:

NOMINAL: [*] Feet

TOLERANCE: [*] Feet

GUARANTEE: [*] Feet

 

 

 

P.A. No. 3075    SS06-0154
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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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Conditions:

1) [*]

2) [*]

3) [*]

2.4 Cruise Range

The still air range at an initial cruise altitude of [*] feet on an [*] day at [*] Mach number, starting at a gross weight of [*] kilograms and consuming [*] kilograms of fuel, and using not more than maximum cruise thrust (except maximum climb thrust may be used during a step climb) and using the conditions and operating rules defined below, shall not be less than the following guarantee value:

NOMINAL: [*] Nautical Miles

TOLERANCE: [*] Nautical Miles

GUARANTEE: [*] Nautical Miles

Conditions and operating rules:

A step climb or multiple step climbs of [*] feet altitude may be used when beneficial to minimize fuel burn.

2.5 Mission

2.5.1 Mission Payload

The payload for a stage length of [*] nautical miles in still air (equivalent to a distance of [*] nautical miles with a [*] wind, representative of a [*] route in [*]) using the conditions and operating rules defined below, shall not be less than the following guarantee value:

NOMINAL: [*]0 Kilograms

TOLERANCE: [*] Kilograms

GUARANTEE: [*] Kilograms

 

 

 

P.A. No. 3075    SS06-0154
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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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Conditions and operating rules:

 

Stage Length:    The stage length is defined as the sum of the distances for the climbout maneuver, climb, cruise, and descent.
Takeoff:    [*]
   The following obstacle definition is based on a straight out departure where obstacle height and distance are specified with reference to the liftoff end of the runway:
          Distance    Height
   1.    [*]    [*]
   Maximum takeoff thrust is used for the takeoff.
   The takeoff gross weight shall conform to FAA Regulations.
Climbout Maneuver:    [*]
Climb:    [*]
 

 

 

P.A. No. 3075    SS06-0154
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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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[*]

Cruise: [*]

Descent: [*]

Approach and Landing Maneuver:

[*]

 

 

 

P.A. No. 3075    SS06-0154
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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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Fixed Allowances:   

For the purpose of this guarantee and for the purpose of establishing compliance with this guarantee, the following shall be used as fixed quantities and allowances:

 

Taxi-Out:

 

[*]

 

Takeoff and Climbout Maneuver:

 

[*]

 

Approach and Landing Maneuver:

 

[*]

 

Taxi-In (shall be consumed from the reserve fuel):

 

[*]

 

Usable reserve fuel remaining upon completion of the approach and landing maneuver: [*] Kilograms

 

For information purposes, the reserve fuel is based on a standard day temperature and a) a contingency fuel

allowance equivalent to [*] percent of the flight time required to fly from the redispatch point

(representative of a Lisbon redispatch point) to the final destination airport, starting at the end of mission cruise at an LRC Mach number, b) a missed approach and flight to a [*] nautical mile alternate, c) and a minimum landing fuel of [*] kilograms.

 

 

 

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No. 6-1162-DME-0896

Trent 1000-A Engines

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2.5.2 Mission Payload – With 1000 [*] Engines

The payload for a stage length of [*] nautical miles in still air (equivalent to a distance of [*] nautical miles with a [*], representative of a [*]) using the conditions and operating rules defined below, shall not be less than the following guarantee value:

NOMINAL: [*] Kilograms

TOLERANCE: [*] Kilograms

GUARANTEE: [*] Kilograms

Conditions and operating rules:

 

Stage Length:    The stage length is defined as the sum of the distances for the climbout maneuver, climb, cruise, and descent.
Takeoff:   

[*]

 

The following obstacle definition is based on a straight out departure where obstacle height and distance are specified with reference to the liftoff end of the runway:

          Distance    Height
   1.    [*]    [*]
 

 

 

P.A. No. 3075    SS06-0154
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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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Maximum takeoff thrust is used for the takeoff.

 

The takeoff gross weight shall conform to FAA Regulations.

Climbout Maneuver:    [*]
Climb:   

[*]

[*]

Cruise:    [*]
 

 

 

P.A. No. 3075    SS06-0154
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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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Descent:    [*]
Approach and Landing Maneuver:    [*]
Fixed Allowances:   

For the purpose of this guarantee and for the purpose of establishing compliance with this guarantee, the following shall be used as fixed quantities and allowances:

Taxi-Out:

[*]

Takeoff and Climbout Maneuver:

[*]

Approach and Landing Maneuver:

[*]

Taxi-In (shall be consumed from the reserve fuel):

[*]

Usable reserve fuel remaining upon completion of the

approach and landing maneuver: [*]

 

 

 

P.A. No. 3075    SS06-0154
AERO-B-BBA4-M06-0269A   
 


 

  

 

Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

Page 13

 

 

 

 

 

   For information purposes, the reserve fuel is based on a standard day temperature and a) a contingency fuel allowance equivalent to [*] percent of the flight time required to fly from the redispatch point (representative of a Lisbon redispatch point) to the final destination airport, starting at the end of mission cruise at an LRC Mach number, b) a missed approach and flight to a [*] nFautical mile alternate, c) and a minimum landing fuel of [*] kilograms.

2.5.3 Mission Block Fuel

The block fuel for a stage length of [*] nautical miles in [*] (representative of a route with a [*] hour flight time from [*]) with a zero fuel weight of [*] kilograms, using the conditions and operating rules defined below, shall not be more than the following guarantee value:

NOMINAL: [*] Kilograms

TOLERANCE: [*] Kilograms

GUARANTEE: [*] Kilograms

Conditions and operating rules:

 

Stage Length:    The stage length is defined as the sum of the distances for the climbout maneuver, climb, cruise, and descent.
Block Fuel:    The block fuel is defined as the sum of the fuel used for taxi-out, takeoff and climbout maneuver, climb, cruise, descent, approach and landing maneuver, and taxi-in.
Takeoff:    [*]
 

 

 

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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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   [*]
   The following obstacle definition is based on a straight out departure where obstacle height and distance are specified with reference to the liftoff end of the runway:
          Distance    Height
   1.    [*]   
   Maximum takeoff thrust is used for the takeoff.
   The takeoff gross weight shall conform to FAA Regulations.
Climbout Maneuver:    [*]
Climb:    [*]
Cruise:    [*]
 

 

 

P.A. No. 3075    SS06-0154
AERO-B-BBA4-M06-0269A   
 


 

  

 

Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

Page 15

 

 

 

 

 

   [*]
Descent:    [*]

Approach

and Landing

Maneuver:

   [*]

Fixed

Allowances:

   For the purpose of this guarantee and for the purpose of establishing compliance with this guarantee, the following shall be used as fixed quantities and allowances:
  

Taxi-Out:

[*]

  

Takeoff and Climbout Maneuver:

[*]

  

Approach and Landing Maneuver:

[*]

  

Taxi-In (shall be consumed from the reserve fuel):

[*]

 

 

 

P.A. No. 3075    SS06-0154
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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

Page 16

 

 

 

 

 

  

Usable reserve fuel remaining upon completion of the approach and landing maneuver: [*] Kilograms

 

For information purposes, the reserve fuel is based on a standard day temperature and a) a contingency fuel allowance equivalent to [*] percent of the flight time from takeoff through the completion of the approach and landing maneuver at the destination airport, b) a missed approach and flight to a [*] nautical mile alternate, c) and a minimum landing fuel of [*] kilograms.

2.5.4 Mission Block Fuel

The block fuel for a stage length of 2,050 nautical miles in still air (representative of a route with a 4.4 hour flight time from a sea level airport) with a zero fuel weight of 154,221 kilograms, using the conditions and operating rules defined below, shall not be more than the following guarantee value:

NOMINAL: [*] Kilograms

TOLERANCE: [*] Kilograms

GUARANTEE: [*] Kilograms

Conditions and operating rules:

 

Stage

Length:

   The stage length is defined as the sum of the distances for the climbout maneuver, climb, cruise, and descent.
Block Fuel:    The block fuel is defined as the sum of the fuel used for taxi-out, takeoff and climbout maneuver, climb, cruise, descent, approach and landing maneuver, and taxi-in.
Takeoff:    [*]
   Maximum takeoff thrust is used for the takeoff.
   The takeoff gross weight shall conform to FAA Regulations.
 

 

 

P.A. No. 3075    SS06-0154
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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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Climbout

Maneuver:

   [*]
Climb:    [*]
Cruise:    [*]
Descent:    [*]
 

 

 

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No. 6-1162-DME-0896

Trent 1000-A Engines

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   [*]

Approach

and Landing

Maneuver:

   [*]

Fixed

Allowances:

  

For the purpose of this guarantee and for the purpose of establishing compliance with this guarantee, the following shall be used as fixed quantities and

allowances:

Taxi-Out:

[*]

  

Takeoff and Climbout Maneuver:

[*]

[*]

  

Approach and Landing Maneuver:

[*]

  

Taxi-In (shall be consumed from the reserve fuel):

[*]

  

Usable reserve fuel remaining upon completion of the

approach and landing maneuver: [*]

  

For information purposes, the reserve fuel is based on

a standard day temperature and a) a contingency fuel

allowance equivalent to [*] percent of the flight time

from takeoff through the completion of the approach

and landing maneuver at the destination airport, b) a

missed approach and flight to a [*] nautical mile

alternate, c) and a minimum landing fuel of [*]

kilograms.

2.5.5 Operational Empty Weight Basis

The Operational Empty Weight (OEW) derived in Paragraph 2.5.6 is the basis for the mission guarantees of Paragraphs 2.5.1, 2.5.2, 2.5.3 and 2.5.4.

 

 

 

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Attachment to Letter Agreement

No. 6-1162-DME-0896

Trent 1000-A Engines

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2.5.6 Weight Summary - AVIANCA

 

     Kilograms

Standard Model Baseline MEW

 

787 Airplane Description and Selections, 787B1-0227 Rev G, Dated 15 May 2006

[*]

   [*]

Changes for AVIANCA*

[*]

  
AVIANCA Manufacturer’s Empty Weight (MEW)    [*]
Standard and Operational Items Allowance (Paragraph 2.5.7)    [*]
AVIANCA Operational Empty Weight (OEW)    [*]

 

     Quantity    Kilograms    Kilograms

Seat Weight Included*

         [*]

Business Class [*]

   [*]      

Economy Class [*]

   [*]      

Economy Class [*]

   [*]      
 

 

 

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Trent 1000-A Engines

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2.5.7 Standard and Operational Items Allowance

 

     Qty    Kilograms    Kilograms    Kilograms
Standard Items Allowance [*]            

[*]

           
Operational Items Allowance          [*]   

[*]

           
Total Standard and Operational Items Allowance             [*]
 

 

 

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Trent 1000-A Engines

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3 [*]

 

     [*]

 

4 [*]

 

4.1 [*]

 

     [*]

 

5 AIRCRAFT CONFIGURATION

 

5.1 The guarantees contained in this Attachment are based on the Aircraft configuration as defined in the 787 Airplane Description and Selections Document, 787B1-0227 Rev G, dated May 15, 2006 and paragraphs 2.5.6 and 2.5.7 above to be incorporated into the original release of the Customer’s Detail Specification (hereinafter referred to as the Detail Specification). Appropriate adjustment shall be made for changes in such Detail Specification approved by the Customer and Boeing or otherwise allowed by the Purchase Agreement which cause changes to the flight performance and/or weight and balance of the Aircraft. Such adjustment shall be accounted for by Boeing in its evidence of compliance with the guarantees.
 

 

 

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Trent 1000-A Engines

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5.2 The guarantee payloads of Paragraphs 2.5.1 and 2.5.2 will be adjusted by Boeing for the effect of the following on OEW and the [*] guarantee of Section 3 will be adjusted by Boeing for the following in its evidence of compliance with the guarantees:

 

     (1) Changes to the Detail Specification or any other changes mutually agreed upon between the Customer and Boeing or otherwise allowed by the Purchase Agreement.

 

     (2) The difference between the seat weight allowances to be incorporated into the Detail Specification and the actual weights.

 

6 GUARANTEE CONDITIONS

 

6.1 All guaranteed performance data are based on the International Standard Atmosphere (ISA) and specified variations therefrom; altitudes are pressure altitudes.

 

6.2 The FAA Regulations (FAR) referred to in this Attachment are, unless otherwise specified, Code of Federal Regulations 14, Part 25 amended by Amendments 25-1 through 25-117, subject to the approval of the Federal Aviation Administration.

 

6.3 In the event a change is made to any law, governmental regulation or requirement, or in the interpretation of any such law, governmental regulation or requirement that affects the certification basis for the Aircraft as described in Paragraph 6.2, and as a result thereof, a change is made to the configuration and/or the performance of the Aircraft in order to obtain certification, the guarantees set forth in this Attachment shall be appropriately modified to reflect any such change.

 

6.4 [*]
 

 

 

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6.5 [*]

 

6.6 [*]

 

6.7 [*]

 

6.8 [*]

 

6.9 [*]

 

6.10 [*]
 

 

 

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7 GUARANTEE COMPLIANCE

 

7.1 Compliance with the guarantees of Sections 2, 3 and 4 shall be based on the conditions specified in those sections, the Aircraft configuration of Section 5 and the guarantee conditions of Section 6.

 

7.2 [*]

 

7.3 [*]

 

7.4 [*]

 

7.5 The OEW used for compliance with the mission payload guarantees of Paragraphs 2.5.1 and 2.5.2 shall be the actual MEW plus the Standard and Operational Items Allowance in Paragraph 03-60-00 of the Detail Specification.

 

7.6 [*]

 

7.7 The data derived from tests shall be adjusted as required by conventional methods of correction, interpolation or extrapolation in accordance with established engineering practices to show compliance with these guarantees.

 

7.8 [*]
 

 

 

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No. 6-1162-DME-0896

Trent 1000-A Engines

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7.9 Compliance shall be based on the performance of the airframe and engines in combination, and shall not be contingent on the engine meeting its manufacturer’s performance specification.

 

8 EXCLUSIVE GUARANTEES

The only performance guarantees applicable to the Aircraft are those set forth in this Attachment.

 

 

 

P.A. No. 3075    SS06-0154
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LOGO

 

 

 

 

 

 

 

  The Boeing Company
  P.O. Box 3707
  Seattle, WA 98124-2207

6-1162-DME-0899

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Performance Retention Commitment – Trent1000 Engines
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-8 (the Aircraft)

This Letter Agreement is entered into on the date below and amends and supplements the AGTA and Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the AGTA and the Purchase Agreement.

Boeing recognizes that performance retention within reasonable limits is essential to maintain the economy of operation of the Aircraft. Therefore the parties hereto agree as follows with respect to performance retention.

 

1. Aircraft Commitment.

Boeing commits to Customer that, for all of the [*] Model 787-8 aircraft equipped with Trent 1000[*] engines delivered by Boeing to Customer in accordance with the delivery schedule set forth in Attachment C (Covered Aircraft), the Cumulative Fleet Average Fuel Mileage Deterioration of the Covered Aircraft (as defined in Attachment A), will not exceed [*] percent [*] within the Performance Retention Term defined in paragraph 2 (Aircraft Commitment).

If the Cumulative Fleet Average Fuel Mileage Deterioration of the Covered Aircraft is greater than the Cumulative Fleet Average Fuel Mileage Commitment set forth above, Customer’s remedies and Boeing’s obligations and liabilities therefore shall be as set forth in this Letter Agreement.

 

2. Applicability and Performance Retention Term.

This Letter Agreement shall be applicable to the Covered Aircraft, including the engines installed on the Covered Aircraft, whether purchased from Boeing as installed engines or acquired from the engine manufacturer (Engine Manufacturer), as new spare engines for support of the Covered Aircraft during the performance deterioration term of this Letter Agreement.

P.A. No. 3075

Performance Retention Guarantee - Trent

 


Aerovias del Continente Americano S.A. AVIANCA

6-1162-DME-0899 page 2

 

 

 

 

LOGO

 

[*]

The term of Boeing’s and Customer’s rights and obligations pursuant to this Letter Agreement shall commence on the date the first Covered Aircraft enters commercial service and shall expire [*] months after such date (Performance Retention Term).

 

3. Conditions.

3.1 Operation and Maintenance.

Customer shall operate and maintain the Covered Aircraft in accordance with Customer’s FAA-approved operations and maintenance programs. Customer shall operate and maintain the engines in accordance with the Operation and Maintenance Manuals, Customer’s Maintenance Program, and an Engine Management Program mutually defined and agreed to by the Engine Manufacturer and Customer.

3.2 Powerback.

[*]

3.3 Flight Cycle Utilization and Derate.

The parties agree that the Aircraft Commitment, as set forth in Paragraph 1 above, is based upon the following assumptions:

[*]

In the event Customer employs a Covered Aircraft during the Performance Retention Term of this Letter Agreement within the Customer’s system such that the operation is greater than the maximum assumed values or lower than the minimum assumed values then the parties agree to make adjustments to the Basic Data, defined in Paragraph 4 below, solely with respect to such Covered Aircraft, as a consequence of such usage.

 

4. Determination of Fuel Mileage Deterioration.

For the purposes of this Letter Agreement, fuel mileage deterioration shall be determined on the basis of the [*] of the Covered Aircraft in accordance with Attachment A.

Following the delivery of each Covered Aircraft to Customer by Boeing, and continuing until expiration of the Performance Retention Term, Customer shall record, analyze and forward to Boeing [*] data obtained on such Covered Aircraft as specified in Attachment B (Basic Data).

 

 

 

 

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5. Notice of Non-Compliance.

Following evaluation of the Basic Data by Customer, if Customer believes the Cumulative Fleet Average Fuel Mileage Deterioration is within [*] of the Aircraft Commitment, Customer shall give Boeing prompt written notice thereof.

 

6. Election of Actions .

Upon Boeing’s receipt of any notice that the Cumulative Fleet Average Fuel Mileage Deterioration exceeds, or is likely to exceed, the Aircraft Commitment and evaluation of the Basic Data indicates that the Aircraft Commitment shall not be met, Boeing and Customer, as appropriate, will take the following actions:

6.1 Data.

[*]

6.2 Surveys.

[*]

6.3 Weight.

[*]

6.4 Corrective Actions.

[*]

6.5 Improvement Parts and Engine Refurbishment.

[*]

 

7. Payments .

[*]

7.1 Compensation.

[*]

7.2 Limitation on Credits for the Fuel Compensation

[*]

 

 

 

 

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7.3 Lifetime Limitation on Credits for the Fuel Compensation

[*]

7.4 [*]

7.5 [*]

 

8. Assignment .

Neither party may assign this Letter Agreement without the express written approval of the other party, no such approval to be unreasonably withheld or delayed.

 

9. Duplication of Benefits .

Boeing and Customer agree that it is not the intent of the parties under this Letter Agreement to cause Boeing and/or Engine Manufacturer to provide duplicate benefits to Customer for the same event which results in Customer’s unjust enrichment, provided that, in the case of any such duplicate benefits, Customer shall be entitled to elect to receive the benefit which is most favorable to Customer.

 

10. Exclusive Remedy.

Performance of the commitments made in this Letter Agreement by Boeing in accordance with the terms and conditions of this Letter Agreement is in substitution for all other damages and remedies recoverable by Customer from Boeing and shall constitute complete, full and final settlement and satisfaction of all Boeing’s obligation and liabilities to Customer arising out of failure of the Covered Aircraft to meet the Cumulative Fleet Average Fuel Mileage Commitment. Customer hereby waives and releases all other rights, remedies, claims and causes of action against Boeing relating to the failure of the Covered Aircraft to meet the Cumulative Fleet Average Fuel Mileage Commitment.

 

11. Confidential Treatment .

Certain commercial and financial information contained in this Letter Agreement, or provided in accordance with its terms, is considered as confidential. Each party agrees that it will treat this Letter Agreement and the information contained herein, and any information provided in accordance with its terms, as confidential and will not, without the prior written consent of the other party, disclose this Letter Agreement or any information contained herein, and any information provided in accordance with its terms, to any other person or entity. [*]

 

 

 

 

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If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.

 

Very truly yours,
THE BOEING COMPANY
By  

/s/ Dennis Egge

Its  

Attorney-in-Fact

ACCEPTED AND AGREED TO:
Date: 03 October , 2006
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

CFO

 

 

 

 

P.A. No. 3075

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Attachment A to

Letter Agreement No. 6-1162-DME-0899

Page 1

 

 

 

Determination of Cumulative Fleet Average Fuel Mileage Deterioration

[*]

7. Customer will report the results of this analysis for the immediately preceding calendar quarter to Boeing within [*] days of the end of each calendar quarter for the duration of the Performance Retention Term.

 

 

 

P.A. No. 3075

 


 

 

Attachment B to

Letter Agreement No. 6-1162-DME-0899

Page 1

 

 

 

 

Cruise Fuel Mileage Performance Determination

Cruise performance data shall be obtained by using the Airplane Condition Monitoring System (ACMS). This data will be recorded during level flight cruise in steady state conditions. The following data will be obtained during each such data recording (Data Events):

[*]

[*]

 

 

 


Attachment C to

Letter Agreement No. 6-1162-DME-0899

Page 1

 

 

Delivery Schedule for Covered Aircraft

 

Aircraft

  

Delivery Date

1    [*]
2    [*]
3    [*]
4    [*]
5    [*]
6    [*]
7    [*]
 

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  The Boeing Company
  P.O. Box 3707
  Seattle, WA 98124-2207

6-1162-DME-0900

Aerovias del Continente Americano S.A. Avianca

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Maintenance Cost Guarantee

Reference:

   Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. (Avianca) (Customer) relating to Model 787-859 aircraft (the Aircraft)

This letter agreement including without limitation all attachments and amendments hereto (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

Recitals

A. Customer has requested a program which will either demonstrate the projected maintenance costs for the Aircraft or, if such projected costs are not demonstrated, provide Customer specific remedies.

B. In response to Customer’s request Boeing offers the following maintenance cost protection program (Program) for estimating and validating the maintenance costs incurred by Customer in the operation of the Aircraft and providing specific remedies to Customer if maintenance costs for the Aircraft as defined in this Letter Agreement exceed specified values.

Agreement

1.0 Covered Aircraft .

The Program shall apply to each of the Aircraft operated by Customer on Customer’s routes during the Program Term (Covered Aircraft).

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2.0 Program Term .

The Program shall begin on the first day of the first calendar month that begins [*] first Covered Aircraft is delivered by Boeing to Customer, continue for [*] consecutive years thereafter (Program Term) and consist of [*] periods beginning on the date the Program Term commences (Reporting Period(s)).

3.0 Covered Maintenance .

The maintenance costs covered by the Program shall be the costs (as more fully defined herein) of labor performed and materials used in the airframe, airframe component and engine line maintenance of the Covered Aircraft where the maintenance is performed as part of a maintenance program approved by Customer’s regulatory authority (Covered Maintenance). [*]

[*]

4.0 Program Commitment .

The Cumulative Actual Maintenance Cost shall not exceed [*]% of the Cumulative Target Maintenance Cost as these terms are defined in this Article 4 (Program Commitment). If the performance of the Covered Aircraft does not comply with the Program Commitment (Noncompliance), Customer shall have the remedies specified in Article 8, below.

4.1 Cumulative Actual Maintenance Cost means the aggregate Actual Maintenance Cost of Covered Maintenance for all then-completed Reporting Periods divided by the Fleet Flight Hours for all such completed Reporting Periods.

4.2 Actual Maintenance Cost means the sum of (i) the Direct Material Cost, (ii) the Direct Labor Cost, (iii) the Subcontracted Maintenance Labor Cost, and (iv) the Subcontracted Maintenance Material Cost incurred by Customer during a Reporting Period for Covered Maintenance, where:

4.2.1 Direct Material Cost means the actual cost paid by Customer for materials required to perform the Covered Maintenance in a Reporting Period, as reported by Customer and adjusted by Boeing pursuant to the provisions of this Letter Agreement and exclusive of those costs and/or other charges as set forth in Article 9; and

4.2.2 Direct Labor Cost means the product of Direct Labor Hours and Labor Rate, where:

 

 

 

 

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Direct Labor Hours means the hours actually expended by Customer in performing the Covered Maintenance during a Reporting Period, as reported by Customer and adjusted by Boeing pursuant to the provisions of this Letter Agreement exclusive of time consumed by employees while waiting for work, traveling to or from work, training, vacation, sick leave, or in any other similar absences from the actual maintenance work,

and

Labor Rate means the average direct hourly labor rate during such Reporting Period, as reported by Customer and adjusted by Boeing pursuant to the provisions of this Letter Agreement exclusive of fringe benefits, premium time allowances, social charges and business taxes paid to Customer’s employees who actually perform the Covered Maintenance, and

4.2.3 Subcontracted Maintenance Labor Cost means the cost as reported by Customer and adjusted by Boeing pursuant to the provisions of this Letter Agreement incurred by Customer for labor for Covered Maintenance performed for Customer during a Reporting Period by either a third party certified to perform such Covered Maintenance pursuant to 14 United States Code of Federal Regulations, Part 145, or European Union Commission Regulation EC 2042/2003, Part 145.

4.2.4 Subcontracted Maintenance Material Cost means the cost as reported by Customer and adjusted by Boeing pursuant to the provisions of this Letter Agreement incurred by Customer for materials for Covered Maintenance performed for Customer during a Reporting Period by either a third party certified to perform such Covered Maintenance pursuant to 14 United States Code of Federal Regulations, Part 145, or European Union Commission Regulation EC 2042/2003, Part 145.

4.3 Fleet Flight Hours means the total airborne time (aircraft takeoff-to-touchdown) accumulated by all of the Covered Aircraft during a Reporting Period.

4.4 Fleet Landings means the total number of landings accumulated by all the Covered Aircraft during a Reporting Period.

4.5 Cumulative Target Maintenance Cost means the value calculated at the end of each completed Reporting Period by multiplying the Target Maintenance Cost for each completed Reporting Period by the Fleet Flight Hours reported by Customer for each such completed Reporting Period, adding the products together and dividing the sum by the total Fleet Flight Hours for all completed Reporting Periods.

4.6 Target Maintenance Cost means the sum of the target Direct Material Cost, target Direct Labor Cost, target Subcontracted Maintenance Labor Cost and target Subcontracted Maintenance Material Cost for a Reporting Period, determined or recalculated by Boeing as appropriate pursuant to the provisions of this Letter Agreement.

 

 

 

 

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5.0 Target Maintenance Cost .

5.1 The Target Maintenance Costs for the Covered Aircraft are those set forth in Attachment C to this Letter Agreement. Attachment A to this Letter Agreement sets forth the operational assumptions used by Boeing to establish the values specified in Attachment C.

5.2 Boeing will recalculate the Target Maintenance Costs in the circumstances and using the methodology provided in Attachment B and will report any recalculated Target Maintenance Costs to Customer in the form specified in Attachment F.

6.0 Reporting of Actual Maintenance Data .

6.1 Within [*] days after the last day of each Reporting Period Customer will complete and return to Boeing a report substantially in the form of Attachment D to provide to Boeing the data specified therein for that Reporting Period. Customer will report costs in U. S. Dollars.

6.2 Failure to provide the data specified in Article 6.1 to Boeing within the specified [*] day period shall result in the suspension of Boeing’s obligation to provide any of the remedies arising under this program for the affected Reporting Period until such time as Customer actually provides such reports.

6.3 Failure to provide the data specified in Article 6.1 to Boeing within the specified 120 day period shall suspend the Program. For the duration of the suspension Boeing shall have no further obligations to Customer [*] pursuant to the provisions of this Letter Agreement, and [*].

6.4  Subject to the provisions of Article 9.6  Customer may reinstate the Program [*]:

6.4.1 [*] reporting, and

6.4.2 [*].

6.5 [*]

 

7.0 Calculation of Actual Maintenance Costs and Compliance with the Program Commitment .
 

 

 

 

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7.1 Subject to the limitations described in Article 9, within 30 days after receiving Customer’s report pursuant to Article 6.0 for each Reporting Period, Boeing will use the data provided by the Customer in such report and the methodology in Attachment B to [*]

7.2 If the data determined pursuant to Article 7.1 indicates that the performance of the Covered Aircraft for the applicable Reporting Periods does not comply with the Program Commitment, Customer will, upon Boeing’s reasonable request, submit to Boeing or provide Boeing reasonable access to such sufficient information to [*]:

 

  (a) verify the data reported by Customer pursuant to Article 6.0, and

 

  (b) analyze the problems causing such Noncompliance and

 

  (c) develop, when required, appropriate corrective action.

7.3 If after completing the verification and analysis described in Article 7.2, the data indicates that the performance of the Covered Aircraft for the applicable Reporting Periods does not comply with the Program Commitment, Boeing will take corrective action as defined in Article 8.0. Throughout the period of such Noncompliance, Customer, upon request, will submit to Boeing such additional information as is necessary for Boeing to complete its analysis.

7.4 At Customer’s request Boeing will provide Customer sufficient information to verify the data described in Article 7.1 and 7.3 and the calculations used to produce that data.

8.0 Corrective Action .

8.1 If, for any Reporting Period, the Program Commitment is not met, and Boeing’s obligations are not suspended under Article 6.2, then:

8.1.1 [*] and

8.1.2. [*]

8.1.3 [*]

8.1.4. [*]

8.1.5 [*]

 

 

 

 

P.A. No. 3075

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8.2 At Boeing’s [*]request, Customer will assign to Boeing, any of Customer’s rights against the manufacturer of any equipment, accessory or part installed in the Covered Aircraft as Boeing [*] require to fulfill its obligations with respect to any corrective action provided by Boeing hereunder.

 

9.0 Conditions and Limitations .

9.1 If, with the intent of reducing the cost of Covered Maintenance, Boeing or any supplier issues service bulletins, service letters or other written instructions or offers no-charge retrofit kits, which, in each case, are reasonably expected to reduce Actual Maintenance Costs without adversely affecting Customer’s [*]

9.2 Customer will as promptly as practicable notify Boeing in writing of any variations in applicable maintenance cost accounting system or procedures which [*]

9.3 Upon reasonable notice to Customer, Boeing will have the right to audit all Actual Maintenance Cost Data reported by Customer during the Program Term, as well as the maintenance practices and procedures related thereto provided [*].

9.4 Upon reasonable notice to Customer, Boeing may inspect Customer’s maintenance facilities, programs and procedures provided that no such inspection shall interfere with Customer’s operations or maintenance. If Boeing recommends in writing reasonable changes to Customer’s or its subcontractors’ maintenance programs [*]

9.5 Actual Maintenance Cost will not include any of the following costs:

 

  (a) [*]

 

  (b) [*]

 

  (c) [*]

 

  (d) [*]

 

  (e) [*]

 

  (f) [*]

 

  (g) [*]
 

 

 

 

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  (h) [*]

 

  (i) [*]

 

  (j) [*]

 

  (k) [*]

 

  (l) [*]

 

  (m) [*]

9.6 [*]

9.7 [*]

10.0 Notice

10.1 All reports submitted to Boeing will be addressed to the attention of:

Director - BCA Warranty and Supplier Support Contracts

Boeing Commercial Airplanes

P.O. Box 3707 Mail Code 2L-46

Fax: 206-544-9171

Seattle, Washington 98124-2207

10.2 All reports submitted to Customer will be addressed to the attention of:

Aerovia del Continente Americano S.A. (Avianca)

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

11.0 Confidential Treatment .

Certain commercial and financial information contained in this Letter Agreement, or provided in accordance with its terms, is considered as confidential. Each party agrees that it will treat this Letter Agreement and the information contained herein, and any information provided in accordance with its terms, as confidential and will not, without the prior written consent of the other party, disclose this Letter Agreement or any information contained herein, and any information provided in accordance with its terms, to any other person or entity. [*].

 

 

 

 

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12.0 [*] .

[*]

 

13.0 Assignment Prohibited.

Notwithstanding any other provisions of the Purchase Agreement, the rights and obligations described in this Letter Agreement are provided to Customer in consideration of Customer’s becoming the operator of the Aircraft and cannot be assigned in whole or in part without the prior written consent of Boeing.

14.0 DISCLAIMER, RELEASE AND EXCLUSION .

THIS LETTER AGREEMENT AND THE RIGHTS AND REMEDIES OF CUSTOMER AND OBLIGATIONS OF BOEING HEREIN ARE SUBJECT TO THE DISCLAIMER AND RELEASE, AND EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES PROVISIONS OF EXHIBIT C, PRODUCT ASSURANCE DOCUMENT, OF THE AGTA.

If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.

 

Very truly yours,
THE BOEING COMPANY
By  

/s/    Dennis Egge        

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this

Date:

 

03 October  2006

 

 

 

 

P.A. No. 3075

Maintenance Cost Guarantee

BOEING PROPRIETARY

 


 

 

Aerovias del Continente Americano S.A. AVIANCA

6-1162-DME-0900    Page 9

 

 

 

 

LOGO

 

AEROVIA DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

CFO

 

 

 

 

P.A. No. 3075

Maintenance Cost Guarantee

BOEING PROPRIETARY

 


Attachment A to

Aerovia del Continente Americano S.A. Avianca

6-1162-DME-0900

  Page 1

 

Attachment A: Covered Aircraft Operational Assumptions

 

     Labor Rates    Contract Percent
     In-House    Contract    Labor    Material

[*]

           

 

Annual Fleet Landings (Total for Year)

   [*]

Annual Fleet Flight Hours (Total for Year)

   [*]

 

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Attachment B to

Aerovia del Continente Americano S.A. Avianca

6-1162-DME-0900

  Page 1

 

Attachment–B - Adjustments

Boeing will adjust as described in this Attachment B the Target Maintenance Costs reported in Attachment C and the Actual Maintenance Cost Data reported in Attachment D.

1.0 Currency Exchange Rate .

[*]

2.0 Escalation Indices .

2.1 Material Price Inflation .

[*]

2.2 Labor Price Inflation .

[*]

3.0 Reserved.

4.0 Reporting Period Adjustments .

[*]

5.0 Recalculation of Target Maintenance Cost .

5.1 Airframe Maintenance Performed by Others .

[*]

5.2 Average Flight Time .

[*]

5.2.1 [*]

5.2.2 [*]

 

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Attachment B to

Aerovia del Continente Americano S.A. Avianca

6-1162-DME-0900

  Page 2

 

5.3 Method for Recalculating Target Maintenance Cost .

As permitted by paragraph 5.1 or 5.2 of this Attachment B, the Target Maintenance Cost for a Reporting Period will be recalculated using the following formulas and using the operational parameters provided by the Customer for such Reporting Period:

[*]

[*]

[*]

[*]

Where : AA, BB, CC and DD have the values reported for those elements on Attachment C to the Letter Agreement.

5.4 Covered Aircraft .

The Target Maintenance Cost is based on the number of Covered Aircraft. If the number of Covered Aircraft changes during any Reporting Period, the Target Maintenance Cost will be recalculated for that Reporting Period to address any change to the average fleet age by using the methodology specified in paragraph 5.6, below.

5.5 Delivery Schedule .

The Target Maintenance Cost is based on the delivery schedule of Covered Aircraft as described in Table 1 of the Purchase Agreement. If the delivery schedule for the Covered Aircraft changes during any Reporting Period, the Target Maintenance Cost will be recalculated for that Reporting Period and subsequent Reporting Periods to address any resulting changes to the average fleet age using the methodology specified in paragraph 5.6, below.

5.6 [*] .

[*]

5.7 Covered Aircraft Configuration .

[*]

 

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Attachment B to

Aerovia del Continente Americano S.A. Avianca

6-1162-DME-0900

  Page 3

 

Maturity Factors

Composite Airplanes

 

[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]

Note: For all intermediate utilization and aircraft ages, interpolate between facors Maturity is defined as a maturity factor of one (1)

 

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Attachment C to

Aerovia del Continente Americano S.A. Avianca

6-1162-DME-0900

  Page 1

 

Attachment C – Target Maintenance Cost for Covered Aircraft and Covered Aircraft Maintenance Baseline

Covered Aircraft Target Maintenance Costs

 

                                                                           2005 USD  

Reporting Period

   Fleet
Size
     Average
Fleet
Age
(FHs)
     Target
In-House
Labor Cost
($ per FH)
     +      Target
In-House
Material Cost
($ per FH)
     +      Target
Subcontracted
Maintenance
Labor Cost

($ per FH)
     +      Target
Subcontracted
Maintenance
Material Cost
($ per FH)
     =      Projected
Target
Maintenance
Cost

($ per FH)
 

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]         [*]   

 

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Attachment C to

Aerovia del Continente Americano S.A. Avianca

6-1162-DME-0900

  Page 2

 

Covered Aircraft Maintenance Cost Baseline Values

 

     Material
$ per FH
     Material
$ per

Cycle
     Labor
Hours
per FH
     Labor
Hours
per

Cycle
 
     AA      BB      CC      DD  

[*]

     [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]   

[*]

     [*]         [*]         [*]         [*]   

 

     Labor Cost per FH    Material Cost per FH

[*]

   [*]    [*]

[*]

   [*]    [*]

[*]

   [*]    [*]

 

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Attachment D to

Aerovia del Continente Americano S.A. Avianca

6-1162-DME-0900

  Page 1

 

To:    Director - BCA Warranty and Supplier Support
   Boeing Commercial Airplanes
   P.O. Box 3707     Mail Stop 76-02
   Fax: 206-544-9171
   Seattle, Washington 98124-2207
Reference:    Letter Agreement No. 6-1162-DME-0900 to Purchase Agreement No. 3075
   Airframe Maintenance Cost Protection Program
Subject:    Data reported pursuant to Article 6.0 of the referenced Letter Agreement.

Reporting Period No.     

Beginning date                     ending date                     

Currency of the costs shown below:                     

 

Actual Maintenance Costs

   Direct
Labor Cost
(total cost)
   Direct
Material Cost
(total cost)
   Subcontracted
Maintenance
Labor Costs

(total cost)
   Subcontracted
Maintenance
Material Costs

(total cost)

Total

           
  

 

  

 

  

 

  

 

Note: The above labor costs have been calculated in accordance with Article 4.2. of the referenced Letter Agreement and are exclusive of time consumed by employees while waiting for work, traveling to or from work, training, vacation, sick leave, or in any other similar absences from the actual maintenance work. The above material costs have been calculated in accordance with Article 4.2 of the referenced Letter Agreement and exclude all costs described in Article 9.0 therein.

 

[*]   
[*]   
[*]   
[*]   
[*]   

[*]

  

The above labor rate has been calculated in accordance with Article 4.2 of the Letter Agreement and excludes, without limitation, all fringe benefits, premium time allowances, social charges and business taxes.

 

P.A. No. 3075

Maintenance_Cost_Guarantee

BOEING PROPRIETARY


Attachment D to

Aerovia del Continente Americano S.A. Avianca

6-1162-DME-0900

  Page 2

 

All information in this report is the be treated as Confidential Information pursuant to Section      of the AGTA.

 

By  

 

    Date  

 

Its  

 

     

 

P.A. No. 3075

Maintenance_Cost_Guarantee

BOEING PROPRIETARY


Attachment E to

Aerovia del Continente Americano S.A. Avianca

6-1162-DME-0900

  Page 1

 

To:    Aerovia del Continente Americano S.A. (Avianca)
Reference:    Letter Agreement No6-1162-DME-0900 to Purchase Agreement No. 3075
   Airframe Maintenance Guarantee
Subject:    Data reported pursuant to Article 7.0 of the referenced Letter Agreement.

Reporting Period No.     

Beginning date                     ending date                     

Actual Maintenance Costs as reported by Customer expressed in U.S. Dollars:

 

[*]

     [*]         [*]         [*]         [*]   
  

 

 

    

 

 

    

 

 

    

 

 

 

Total

           
  

 

 

    

 

 

    

 

 

    

 

 

 

Actual Maintenance Costs and Target Maintenance Costs as determined by Boeing expressed in U.S. dollars.

 

     Reporting
Period 1
   Reporting
Period 2
   Reporting
Period 3
   Reporting
Period 4
   Reporting
Period 5

Year

                        

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

[*]

              

Cumulative Average Target Maintenance Cost

              

 

P.A. No. 3075

Maintenance_Cost_Guarantee

BOEING PROPRIETARY


Attachment E to

Aerovia del Continente Americano S.A. Avianca

6-1162-DME-0900

  Page 2

 

Very truly yours,

THE BOEING COMPANY

 

Reported by  

 

Its  

 

Date  

 

 

P.A. No. 3075

Maintenance_Cost_Guarantee

BOEING PROPRIETARY


Attachment F to

Aerovia del Continente Americano S.A. Avianca

6-1162-DME-0900

  Page 1

 

Attachment F – Recalculated and Adjusted Target Maintenance Cost for Covered Aircraft

 

To:    Aerovia del Continente Americano S.A. (Avianca)
Reference:    Letter Agreement No. 6-1162-DME-0900 to Purchase Agreement No. 3075
   Airframe Maintenance Cost Protection Program
Subject:    Data reported pursuant to Article 5.3 of the referenced Letter Agreement.

 

Reporting Period

   [*]    [*]    [*]      [*]    [*]      [*]    [*]    [*]    [*]      [*]    [*]

One

         $                    +    $                    +          $                    =   

Two

         $         +    $         +          $         =   

Three

         $         +    $         +          $         =   

Four

         $         +    $         +          $         =   

Five

         $         +    $         +          $         =   

 

P.A. No. 3075

Maintenance_Cost_Guarantee

BOEING PROPRIETARY


 

 

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

 
 

 

 

 

LOGO

 

APPENDIX F

6-1162-DME-090I R2

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Advance Payment Matters
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americana S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

[*]

 

1. Advance Payment Schedule – Block 1-1 Aircraft:

Notwithstanding the advance payment schedule set forth in Table 1-1 of the Purchase Agreement, Boeing agrees that Customer may make Advance Payments for the Block 1-1 Aircraft in accordance with the reduced schedule below described, as applied to the original Aircraft delivery schedule advance payment base prices (see Attachment A, hereto), subject to the terms and conditions further described herein:

 

Months Prior to Aircraft Delivery

   Amount Due per Aircraft
(Percent times

Advance Payment Base Price)
 

Definitive Agreement

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   
  

 

 

 

Total

     [*]   
 

 

 

P.A. No. 3075    SA-3

PROPRIETARY

 


 

 

Aerovias del Continente Americano S.A. Avianca

6-1162-DME-0901R2

  Page 2
 

 

 

 

LOGO

 

[*]

 

2. Advance Payment Schedule – Block 1-2 Aircraft:

Notwithstanding the advance payment schedule set forth in Table 1-2 of the Purchase Agreement, Boeing agrees that Customer may make Advance Payments for the Block 1-2 Aircraft in accordance with the reduced schedule below [*]

 

Months Prior to Aircraft Delivery

   Amount Due per Aircraft
(Percent times
Advance Payment Base Price)
 

Definitive Agreement

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   
  

 

 

 

Total

     [*]   

[*]

 

 

 

 

P.A. No. 3075   SA-3

PROPRIETARY

 


 

 

Aerovias del Continente Americano S.A. Avianca

6-1162-DME-0901R2

  Page 3
 

 

 

 

LOGO

 

[*]

 

3. Advance Payment Schedule – Block 1-3 Aircraft:

Notwithstanding the advance payment schedule set forth in Table 1-3 of the Purchase Agreement, Boeing agrees that Customer may make Advance Payments for the Block 1-3 Aircraft in accordance with the reduced schedule below [*]

 

Months Prior to Aircraft Delivery

   Amount Due per Aircraft
(Percent times
Advance Payment Base Price)
 

Definitive Agreement

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   
  

 

 

 

Total

     [*]   

[*]

 

4. Deferral Chartes on Deferred Advance Payments:

[*]

[*]

 

 

 

 

P.A. No. 3075   SA-3

PROPRIETARY

 


 

 

Aerovias del Continente Americano S.A. Avianca

6-1162-DME-0901R2

  Page 4
 

 

 

 

LOGO

 

[*]

[*]

[*]

 

5. [*]

[*]

[*]

 

6. [*]

[*]

 

 

 

 

P.A. No. 3075   SA-3

PROPRIETARY

 


 

 

Aerovias del Continente Americano S.A. Avianca

6-1162-DME-0901R2

  Page 5
 

 

 

 

LOGO

 

[*]

 

7. Confidential Treatment:

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential and, except as may otherwise be provided herein, will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity except to employees and legal counsel of Customer with a need to know the contents for purposes of helping Customer negotiate, perform and/or enforce this Letter Agreement and/or the Purchase Agreement and who understand they are not to disclose its contents to any other person or entity without the prior written consent of Boeing. [*]

 

 

 

 

P.A. No. 3075   SA-3

PROPRIETARY

 


 

 

Aerovias del Continente Americano S.A. Avianca

6-1162-DME-0901R2

  Page 6
 

 

 

 

LOGO

 

If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below

Very truly yours,

 

THE BOEING COMPANY
By  

Alan W. Smith

Its  

Attorney-in-Fact

ACCEPTED AND AGREED TO this
Date:  

Sept. 26, 2012

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

Legal Rep

 

 

 

 

P.A. No. 3075   SA-3

PROPRIETARY

 


Attachment A to Letter Agreement No. 6-1162-DME-0901R2 to Table 1-1

to Purchase Agreement No. 3075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe ModeliNITOW:   787-8    [*]    Detail Specification:    787BI-4102-8 (7/9/2007)
Engine Model/Thrust:   TRENT[*]       Airframe Price BAR Year/Escalation Formula:    [*]
Airframe Price:      [*]    Engine Price Base Year/Escalation Formula:    [*]
Optional Features:      [*]      
Sub-Total of Airframe and Features:      [*]    Airframe Escalation Data:   
Engine Price (Per Aircraft):      [*]    Elise Year Index (EC1):    [*]
Aircraft Basic Price (ErcludIng BFE/SPE):    [*]    Base Year Index (CPO:    [*]
Royer Furnished Equipmen1(BFE) Estimate:    [*]    Engine Escalation Dahl:   
Seller Purchased Kquipment (SPE) Estimate:    [*]    Rase Year hider (ECI):    [*]
     [*]    Hate Year Index (CPI):    [*]
Refundable Deposit/ Aircraft at Proposal Accept:    [*]      

 

[*]

   Number of
Aircraft
   Escalation
Factor
(Airframe)
  Escalation
Factor
(Engine)
  [*]   EVENISkii011  Estimate
Adv Payload Base
Price Per AlP
  Advance Payment Per Aircraft (Amts. Due/Mos. Prior to  Deliveirst
              [*]   [*]   [*]   [*]

[*]

   I    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]

[*]

   I    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]

[*]

   I    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]

[*]

   1    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]

[*]

   I    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]

[*]

   I    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]

[*]

   I    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]

[*]

   I    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]

[*]

   I    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]

[*]

   I    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]
  

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total:

   10                 

 

AVI     Page 1
  Boeing Proprietary   SA-3


Attachment B to Letter Agreement No. 6-1162-DME-0901R2

to Table 1-2 to Purchase Agreement No. 3075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe ModeIIMTOW:   787-8    [*]    Detail Specification:    787B1-
4102-B
(7/9/2007)
Engine Model/Thrust:   TRENT [*]    [*]    Airframe Price Base Year/Escalation Formula:    [*]
Airframe Price:      [*]    Engine Price Base Year/Escalation Formula:    [*]
Optional Features:      [*]      
Sub-Total of Airframe and Features:      [*]    Airframe Escalation Data:   
Engine Price (Per Aircraft):      [*]    Base Year Index (ECI):    [*]
Aircraft Basic Price (Excluding BFE/SPE):      [*]    Base Year Index (CPI):    [*]
Buyer Furnished Equipment (BFE) Estimate:      [*]    Eneine Escalation Data:   
Seller Purchased Equipment (SPE) Estimate:      [*]    Base Year Index (ECI):    [*]
        Base Year Index (CPI):    [*]
Refundable DeposIVAireraft at Proposal Accept:      [*]      

 

[*]

   Number of
Aircraft
   Escalation
Factor
(Airframe)
  Escalation
Factor
(Engine)
  [*]   Escalation Estimate
Adv Payment  Base
Price Per A/P
  Advance Payment Per Aircraft (Amts. Due/Mos. Prior to  Delivery):
              [*]   [*]   [*]   [*]

[*]

   1    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]

[*]

   1    [*]   [*]   [*]   [*]   [*]   [*]   [*]   [*]
  

 

  

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Total:

   2                 

 

AVI     Page 2
  Boeing Proprietary   SA-3


 

 

  The Boeing Company   
  P.O. Box 3707   
  Seattle, WA 98124-2207   

6-1162-DME-0902

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Promotional Support Agreement
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (Aircraft).

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

Recital.

Boeing and Customer wish to enter into an agreement pursuant to which each party will contribute equally to promotional programs in support of the entry into service of the Aircraft as more specifically provided below.

Agreement.

 

1. Definitions .

1.1 “Covered Aircraft” shall mean those Aircraft identified on Table 1 to the Purchase Agreement as of the date of signing of this Letter Agreement.

1.2 “Promotional Support” shall mean marketing and promotion programs in support of the entry into service of the Covered Aircraft such as marketing research, tourism development, corporate identity, direct marketing, video tape or still photography, planning, design and production of collateral materials, management of promotion programs, advertising campaigns or such other marketing and promotional activities as the parties may mutually agree.

1.3 “Commitment Limit” shall have the meaning set forth in Article 2, below.

 

 

 

 

 

 

P.A. No. 3075  

BOEING PROPRIETARY

 


 

 

Aerovias del Continente Americano S.A. AVIANCA

6-1162-DME-0902    Page 2

 

 

 

 

LOGO

 

1.4 “Performance Period” shall mean the period beginning [*] before and ending [*] after delivery of the first Covered Aircraft, with the exception that up to [*] of this Boeing commitment may be utilized by Customer as [*].

1.5 “Qualifying Third Party Fees” shall mean fees paid by Customer during the Performance Period to third party providers for Promotional Support provided to Customer during the Performance Period.

 

2. Commitment .

As more particularly set forth in this Letter Agreement Boeing agrees to provide Promotional Support to Customer in a value not to exceed [*] Dollars) for the first Covered Aircraft delivered to Customer and not to exceed $[*] Dollars) per Covered Aircraft for each Covered Aircraft delivered to Customer thereafter (Commitment Limit).

 

3. Methods of Performance .

Subject to the Commitment Limit, Customer may elect to receive the Promotional Support in either or any combination of the following ways:

3.1 At Customer’s request and with respect to a mutually agreed project Boeing will provide Promotional Support during the Performance Period directly to Customer in value equivalent to Qualifying Third Party Fees.

3.2 Boeing will reimburse [*] percent ([*]%) of Customer’s payments of Qualifying Third Party Fees provided that Customer provides Boeing copies of paid invoices for such Qualifying Third Party Fees no later than [*] months after the delivery of the first Covered Aircraft. There will be no cash payments or other support in lieu thereof.

 

4. Commencement Date .

Boeing’s obligation to provide Promotional Support will commence when the purchase of the Covered Aircraft becomes firm (not subject to cancellation by either party).

 

5. Project Approval .

Following the execution of this Letter Agreement, a Boeing Airline Marketing Services representative will meet with Customer’s designated representative to review and approve the extent, selection, scheduling, and funds disbursement process for the Promotional Support to be provided pursuant to this Letter Agreement.

 

 

 

 

P.A. No. 3075   SA-3

Promotional Support Agreement

BOEING PROPRIETARY

 


 

 

Aerovias del Continente Americano S.A. AVIANCA

6-1162-DME-0902    Page 3

 

 

 

 

LOGO

 

6. Confidentiality .

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential. Customer agrees that it will treat this Letter Agreement and the information contained herein as confidential and will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity. [*].

Very truly yours,

 

THE BOEING COMPANY
By  

 

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date:   03 October , 2006
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

CFO

 

 

 

 

P.A. No. 3075   SA-3

Promotional Support Agreement

BOEING PROPRIETARY

 


 

 

   The Boeing Company   
   P.O. Box 3707   
   Seattle, WA 98124-2207   

APPENDIX G

6-1162-DME-0903R2

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Right to Purchase Additional Aircraft
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americana S.A. AVIANCA (Customer) relating to Model 787-8 aircraft (Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All capitalized terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

 

1. Basic Purchase Rights

Subject to the terms and conditions contained herein, in addition to the Aircraft described in Table 1-1 to the Purchase Agreement as of the date of execution ofthis Letter Agreement, Customer will have the right to purchase (Basic Purchase Right) ten (10) additional Boeing Model 787-8 aircraft on the terms and conditions described in this Letter Agreement (Basic Purchase Right Aircraft). [*].

1.1 Delivery.

The Basic Purchase Right Aircraft are offered subject to available position for delivery during the period 01 January 2016 through 31 December 2019, with delivery of three (3) such Basic Purchase Right Aircraft to occur in each of the calendar years 2016 through 2018, and delivery of one (1) such Basic Purchase Right Aircraft to occur in calendar year 2019. [*]

[*]

1.2. Notice of Exercise and Payment of Deposit

Customer may exercise a Basic Purchase Right by giving written notice to Boeing (Notice of Exercise) of its desire to exercise such Basic Purchase Right not later than the first business day of the month that is [*] months prior to a requested delivery position. [*].

 

 

 

 

 

 

P.A. No. 3075  

BOEING PROPRIETARY

 


 

 

Aerovias del Continente Americana S.A. AV1ANCA

6-1162-DME-0903R2

 

 

 

 

LOGO

 

[*].

Customer will pay to Boeing by electronic transfer to the account specified below a deposit (Deposit) in the amount shown on Table 1-1 to the Purchase Agreement for each Basic Purchase Right Aircraft purchased pursuant to the Notice of Exercise. The deposit will be due and payable on the date of Customer’s acceptance of Boeing’s offered delivery position of a Basic Purchase Right Aircraft. The Deposit will be applied against the first advance payment due for each such Basic Purchase Right Aircraft.

[*]

 

 

 

 

P.A. No. 3075   SA 3

BOEING PROPRIETARY

 


 

 

Aerovias del Continente Americana S.A. AV1ANCA

6-1162-DME-0903R2

 

 

 

 

LOGO

 

1.3. Configuration

1.3.1 Subject to the provisions of Article 1.3.2, below, the configuration for the Basic Purchase Right Aircraft will be the detail specification for model 787-8 aircraft at the revision level in effect at the time of the Notice of Exercise. Such detail specification will be revised to include (i) changes applicable to such detail specification that are developed by Boeing between the date of the Notice of Exercise and the signing of the definitive amendment to the Purchase Agreement providing for the purchase of the Basic Purchase Rights Aircraft. (ii) changes required to obtain required regulatory certificates, and (iii) other changes as mutually agreed by Boeing and Customer.

1.3.2 Boeing reserves the right to configure the Basic Purchase Right Aircraft starting from a different configuration specification, provided that it can achieve the same configuration which would result pursuant to the provisions of Article 1.3.1 [*].

1.4. Price

The Aircraft Price of each Basic Purchase Right Aircraft shall be determined in accordance with the provisions of the Purchase Agreement using Boeing’s then-current prices at the time of signing of the definitive agreement (Then-current Prices), except that:

(i) [*]

(ii) [*].

Advance payments are required for each Basic Purchase Right Aircraft. The remainder of the Aircraft Price will be due at delivery of each Basic Purchase Right Aircraft. The methodology used to estimate the Advance Payment Base Prices will be that specified in the Purchase Agreement at the date of signing of this Letter Agreement, and the escalation indices used to estimate the Advance Payment Base Prices [*] the purchase of the [*] as such provisions are modified by any other letter agreement amending or supplementing the Purchase Agreement.

1.5. [*]

[*].

[*].

[*].

[*].

[*]

1.6. Definitive Purchase Agreement.

Following Customer’s decision to exercise a [*], or to exercise an [*], in accordance with the terms and conditions stated herein, the parties will, within [*] calendar days of such exercise (or. if applicable, within [*] days of Customer’s

 

 

 

 

P.A. No. 3075   SA 3

BOEING PROPRIETARY

 


 

 

Aerovias del Continente Americana S.A. AV1ANCA

6-1162-DME-0903R2

 

 

 

 

LOGO

 

acceptance of an alternate delivery month), sign a definitive amendment to the Purchase Agreement providing for the purchase of such [*]. Such amendment will include the provisions then contained in the Purchase Agreement as modified to reflect the provisions of this Letter Agreement and any additional mutually agreed terms and conditions.

1.7. General Expiration of Rights .

Each Basic Purchase Right shall expire at the time of execution of the amendment to the Purchase Agreement providing for the purchase of the applicable [*], or, if no such amendment to the Purchase Agreement is executed. on 30 June ()leach of the calendar years 2015 through 2018 for any then unexercised [*] with respect to the first calendar year commencing after such date.

 

  2. [*]

Subject to the terms and conditions contained herein, in addition to the Aircraft described in Table 1-3 to the Purchase Agreement as of the date of execution of Supplemental Agreement No. 3, Customer will have the right to purchase [*] Boeing Model 787-S aircraft on the terms and conditions described in this Letter Agreement ([*]). Customer’s right of substitution with respect to any Boeing Model 787-8 aircraft pursuant to the Purchase Agreement (or any other letter agreement amending and supplementing the Purchase Agreement) shall be applicable to each such [*].

 

 

 

 

P.A. No. 3075   SA 3

BOEING PROPRIETARY

 


 

 

Aerovias del Continente Americana S.A. AV1ANCA

6-1162-DME-0903R2

 

 

 

 

LOGO

 

2.1 Delivery.

The [*] are offered subject to available position for delivery prior to 31 December 2019,

Boeing will provide Customer with [*] positions by [*] . At not less than [*] .

2.2. Notice of Exercise and Payment of Deposit

Customer may exercise a Special Purchase Right under the same terms and conditions as described in Article 1.2 above for Basic Purchase Rights.

2.3, Configuration

With Customer’s exercise of a [*] , the configuration will be determined under the [*].

2.4. Price

The Aircraft Price of each [ *] shall be determined in accordance with the provisions of the Purchase Agreement using Boeing’s [ *] .

Advance payments are required for each [ *] . The remainder of the Aircraft Price will be due at delivery of each [ *] . The methodology to determine Advance Payment Base Prices and escalation will be based upon Boeing’s [ *] .

2.5 Definitive Purchase Agreement.

Following Customer’s decision to exercise a [*] in accordance with the terms and conditions stated herein. the parties will, within [*] calendar days of such exercise (or. if applicable, within [*] days of Customer’s acceptance of an alternate delivery month), sign a definitive amendment to

 

 

 

 

P.A. No. 3075   SA 3

BOEING PROPRIETARY

 


 

 

 

 

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

 
 

 

 

 

 

LOGO

 

the Purchase Agreement providing for the purchase of such [ *] . Such amendment will include the provisions then contained in the Purchase Agreement as modified to reflect the provisions of this Letter Agreement and any additional mutually agreed terms and conditions.

2.6. General Expiration of Rights.

Each [* ] shall expire at the time of execution of the amendment to the Purchase Agreement providing for the purchase of the applicable [ *] , or, if no such amendment to the Purchase Agreement is executed, on 30 June of 20 18 for any then unexercised [ *] .

 

3. Assignment.

The Purchase Rights described in this Letter Agreement are provided in consideration of Customer’s becoming the operator of each Purchase Right Aircraft, and cannot be assigned, in whole or in part. without the prior written consent of Boeing.

 

4. Confidential Treatment.

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential and, except as may otherwise be provided herein. will not, without the prior written consent of Boeing. disclose this Letter Agreement or any information contained herein to any other person or entity except to employees and legal counsel of Customer with a need to know the contents for purposes of helping Customer negotiate, perform and/or enforce this Letter Agreement and/or the Purchase Agreement and who understand they are not to disclose its contents to any other person or entity without the prior written consent of Boeing. [* ]

If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.

 

 

 

 

P.A. No. 3075     SA-3

BOEING PROPRIETARY

 


 

 

Aerovias del Continente Americana S.A. AV1ANCA

6-1162-DME-0903R2

 

6-1162-DM L-0903R2    Page 8
 

 

 

 

LOGO

 

Very truly yours,
THE BOEING COMPANY
By:  

Alan W. Smith

Its  

Attorney-In-Fact

ACCPETED AND AGREED TO this

 

Date:   Sept. 26, 2012

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

Aerovias del Continente Americana S.A. AV1ANCA

 

By:  

 

Its  

 

 

P.A. No. 3075   BOEING PROPRIE
 

 

 

 

P.A. No. 3075   SA 3

BOEING PROPRIETARY

 


BOEING PROPRIETARY

Aerovias del Continente Americano S.A. AVIANCA

 

Attachment A to 6-1 162-DME-0903R2    Page 1

Record of Purchase Right Aircraft Exercised

 

Document Description

   Effective
Date
     Basic
Purchase
Rights
Remaining
    Special
Purchase
Rights
Remaining
    Total
Remaining
Purchase
Rights
 

PA-3075

     03 October 2006         7        0        7   

SA-1

     28 March 2007         10        0        10   

SA-2

     21 November 2007         8        2        10   

SA-3

     2012                      
     

 

 

   

 

 

   

 

 

 

 

* after the effect of exercise of the three (3) remaining Purchase Rights as a part of SA-3.

 

P.A. No. 3075     SA 3

BOEING PROPRIETARY


 

 

 

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

 
 

 

 

 

 

6-1162-DME-0904      

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Special Matters
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVANCA (Customer) relating to Model 787-859 aircraft (Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

1. [*]

The [*] associated with the purchase of the model 787-8 Aircraft and purchase right model 787-8 aircraft will be [*] per Aircraft, [*] .

Should Customer choose to exercise its substitution rights for a model 787-8 aircraft to become a model 787-9 aircraft, the associated [*] applicable to each such substitution model 787-9 aircraft will be [*] per Aircraft, [*]

Such [*] will be issued concurrently with the delivery of each of the Aircraft and/or [*] , may be used toward the final delivery purchase payment, or for other Boeing goods and services, but not for advance payments.

 

 

 

 

P.A. No. 3075

Special Matters

   

BOEING PROPRIETARY

 


 

 

Aerovias del Continente Americana S.A. AV1ANCA

6-1162-DME-0904 Page 2

 

 

 

 

 

LOGO

 

2. [*]

A special [*] is offered to Customer, applicable to each of the model 787-8 Aircraft [*] per Aircraft, [*] .

Should Customer choose to exercise its substitution rights for a model 787-8 aircraft to become a model 787-9 aircraft, the associated special Boeing goods & services credit memorandum applicable to each such substitution model 787-9 aircraft will be Two Million Seven Hundred Thousand Dollars ($2,700,000 in July 2005 $’s) per Aircraft, subject to escalation to the time of Aircraft delivery.

Such [*] will be issued concurrently with the delivery of each of the Aircraft, may not be assigned without Boeing’s express consent, and may be used for the final delivery purchase payment, but not for advance payments.

3. [*]

Boeing recognizes that Customer has the opportunity to become the first South American airline to operate the model 787. Boeing offers to provide a special [*] , associated with the purchase of the reference proposed model 787-8 Aircraft, [*] per Aircraft, [*] .

[*]

[*]

 

 

 

 

P.A. No. 3075

Special Matters

BOEING PROPRIETARY

 


 

 

Aerovias del Continente Americana S.A. AV1ANCA

6-1162-DME-0904 Page 3

 

 

 

 

LOGO

 

4. [*]

[*]

[*].

[*].

5 . [*]

[*]

6. [*]

As an accommodation to Customer for entering into the Purchase Agreement, Boeing agrees to allow Customer [*] :

 

   

[*] ;

 

   

[*] ;

 

   

[*] ;

 

   

[*] ;

 

   

[*] .

 

 

 

 

P.A. No. 3075

Special Matters

BOEING PROPRIETARY

 


 

 

Aerovias del Continente Americana S.A. AV1ANCA

6-1162-DME-0904 Page 4

 

 

 

 

LOGO

 

[*] .

[*] .

[*] .

7. Assignment [*]

The [*] described in this Letter Agreement are provided as a financial accommodation to Customer in consideration of Customer becoming the operator of the Aircraft, and cannot be assigned, in whole or in part, without the prior written consent of The Boeing Company, which will not be unreasonably withheld.

8. [*]

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential. Customer agrees that it will treat this Letter Agreement and the information contained herein as confidential and will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity. [*] .

 

 

 

 

P.A. No. 3075

Special Matters

BOEING PROPRIETARY

 


Aerovias del Continente Americana S.A. AV1ANCA

6-1162-DME-0904 Page 5

 

 

 

 

LOGO

 

Very truly yours,
THE BOEING COMPANY
By  

/s/ Dennis Egge

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this

 

Date:   03 October  2006

 

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

 

Its  

CFO

 

P.A. No. 3075

Special Matters

BOEING PROPRIETARY

 


 

 

 

LOGO

 

 

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

 

APPENDIX H

6-1162-DME-0905R1

Aerovias del Continente Americana S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Escalation [*]
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-8 (the Aircraft)

This Letter Agreement amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

Customer and Boeing have reached agreement regarding certain modifications to the Purchase Agreement as set forth below:

 

1. Airframe Escalation - [*].

Boeing agrees that at the time of delivery of such Aircraft prior to [*], the Airframe Price Adjustment that is determined by Supplemental Exhibit AEI to the Purchase Agreement applicable to the Airframe and Optional Features will not exceed the escalation adjustment determined by using the escalation cap factor set forth in the Attachment A for an Aircraft delivering in the corresponding month and year. For example, in the event the [*] determined by Supplemental Exhibit AEI for a particular delivery month and year is [*].

P.A. No. 3075

SA-3

 

 

 


 

 

Aerovias del Continence Americano S.A. A VlANCA

6-1 I 62-DME-0905RI

 

 

 

 

LOGO

 

  2. [*].

For deliveries occurring after [*] will be determined by using the Supplemental Exhibit AEI.

 

  3. Credit Memorandum Escalation.

Any credit memorandum provided for under the Purchase Agreement that is subject to escalation shall be escalated to the scheduled month of delivery of the Aircraft in accordance with the same escalation provisions applicable to the Aircraft.

 

4. Confidential Treatment.

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential and. except as may otherwise be provided herein, will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity except to employees and legal counsel of Customer with a need to know the contents for purposes of helping Customer negotiate, perform and/or enforce this Letter Agreement and/or the Purchase Agreement and who understand they are not to disclose its contents to any other person or entity without the prior written consent of Boeing. [*].

 

 

 

 

P.A. 3075   page 2

SA-3

BOEING PROPRIETARY

 


Aerovias del Continence Americano S.A. A VlANCA

6-1 I 62-DME-0905RI

 

 

 

 

LOGO

 

Very truly yours,

THE BOIENG COMPANY

 

By   Alan W. Smith
Its Attorney-in-Fact

 

ACCEPTED AND AGREED TO this

 

Date:   Sept. 26, 2012

 

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
BY:  

 

Its  

 

 
P.A. 3075   page 3

SA-3

BOEING PROPRIETARY

 


 

 

Aerovias del Continence Americano S.A. A VlANCA

6-1 I 62-DME-0905RI

 

 

 

 

LOGO

 

Attachment A

[*]

Escalation Cap =    [*]
Base Date =    [*]

 

Date

 

Factor

 

Date

 

Factor

[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]

(Note: Validated on August 2, 2012)

Aerovias del Continence Americano S.A. A VlANCA

 

 

 

 

P.A. 3075   AVI

SA-3

 


 

[*] - Sample Calculation

 

Customer - AV1

|             A/P Contract Delivery         [*]

 

[*] Base Pnce Post   [*]
Contract Changes  
Adjusted Airframe Price  

[*]

Per Letter Agreement 6-1161-DME-0905R1 the [*] adjustments determined by using the escalation cap factor set forth in the Attachment A

[*]

 

Pa    =    [*]          P         
Pa    =    [*]          [*]         
Pa    =    [*]          [*]         
Pa    =    [*]                  

 

  
Supplemental Exhibit AE1   

 

Pa =    [*]    [*]    [*]    [*]    [*]    [*]
ECI =    [*]    [*]    [*]    [*]    [*]    [*]
ECI-R =    [*]    [*]    [*]    [*]    [*]    [*]
CPI =    [*]    [*]    [*]    [*]    [*]    [*]
Pa =    [*]    [*]    [*]    [*]    [*]    [*]
Pa =    [*]    [*]    [*]    [*]    [*]    [*]
Pa =    [*]    [*]    [*]    [*]    [*]    [*]
Pa =    [*]    [*]    [*]    [*]    [*]    [*]
   [*]          Escalation Factor

(Rounded [*] places

   [*]

Aerovias del Continence Americano S.A. A VlANCA

Attachment B to 6-1162 DME-0905RI

 

 

 

 

P.A. 3075    Page 2

SA-3

 


Summary

         
[*]    =    [*]
[*]    =    [*]
[*]    =    [*]
[*]    =    [*]

Average of [*] - the last available SIC indices reported by the BLS

“Boxed indices are fictitious values for the purposes of this example and are for illustrative purposes only. The monthly indices will be replaced with the BLS actual monthly ECI and CPI values for the [*] month prior to month of aircraft delivery, which in this example is [*] ECI and CPI are defined in Supplemental Exhibit AE1 to the Purchase Agreement.

This example also applies to any applicable escalating credit memorandum.

 

P.A. 3075    Page 3
SA-3   

BOEING PROPRIETARY


 

LOGO

 

 

 

 

 

 

 

 

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

 

6-1162-DME-0906R1

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Customer Services Matters
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

The various [*] elements of Boeing Customer Support described below are provided as a financial accommodation in consideration of Buyer’s becoming the operator of the Aircraft, and cannot be assigned, in whole or in part, without the prior written consent of The Boeing Company.

1. Block 1 Aircraft - Boeing/Alteon Maintenance & Flight Training

Boeing’s standard Training Point allocation for the direct purchase of seven (7) 787-8 Aircraft is documented in Article 1.1 of the Supplemental Exhibit CS-1 to this Purchase Agreement No. 3075 with the following language.

1.1 Customer is awarded [*] points (Training Points). At any time before [*] months after delivery of Customer’s last Aircraft (Training Program Period) Customer may [*] may identify at specified point values. At the end of the Training Program Period any unused Training Points will expire.

 

P.A. No. 3075    SA-2

PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1162--DME-0906RI

  Page 2
 

 

 

 

 

1.2. In recognition of Customer’s additional training requirements, Boeing agrees to [*].

1.3 In the event Customer does go forward with the assignment of [*]Aircraft to Synergy Aerospace Inc., as described in Letter Agreement No. 6-1162- DME-0904, entitled Special Matters, then Boeing will provide Synergy Aerospace [*].

1.4 In the event the assignment of the [*] Aircraft to Synergy Aerospace Inc., as described in Letter Agreement No. 6-1162-DME-0904, entitled Special Matters does not occur, then customer will receive a basic [*] Training Points in lieu of the basic [*] Training Points described in paragraph 1.1 above, plus the additional [*] Special Training points described in paragraph 2 above, for a total entitlement of [*] points.

2. [*] Aircraft - Boeing/Alteon Maintenance & Flight Training Customer has taken the decision to exercise two (2) purchase right aircraft to become firmly contracted Aircraft. Customer is awarded [*] Training Points with respect to the additionally contracted two (2) Aircraft. Also, in recognition of Customer’s specific request to support its additional training requirements, Boeing agrees to [*] Training Points associated with these additional two (2) Aircraft.

3. Confidential Treatment

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential. Customer agrees that it will treat this Letter Agreement and the information contained herein as confidential and will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity. [*]

 

 

 

 

P.A. 3075   SA-2

PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1162--DME-0906RI

  Page 3
 

 

 

 

 

Very truly yours,
THE BOIENG COMPANY
By  

[*]

Its  

Attorney-in-Fact

ACCEPTED AND AGREED TO this
Date:   21 November , 2007
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
BY:  

 

Its  

Attorney-in-Fact

Attachment A
 

 

 

 

P.A. No. 3075   SA-2

PROPRIETARY

 


Aerovias del Continente Americano° S.A. AVIANCA

 

Attachment A to

Letter Agreement No. 6-1162-DME-0906R1

 

Customer:      Avianca           
Total Firm      7           
Aircraft:      [*]           

Points Allocated:

787 Training Courses

   Points
Class
    Class
Requirement
    Points
Expended
   

Per

Class

Maximum

   

Total

Students
Trained

 

Flight

          

787 [*] Course

     [*     [*     [*     [*     [*

Cabin Crew

          

787 [*]

     [*     [*     [*     [*     [*

Maintenance

          

787 [*]

     [*     [*     [*     [*     [*

787 [*]

     [*     [*     [*     [*     [*

787 [*]

     [*     [*     [*     [*     [*

787 [*]

     [*     [*     [*     [*     [*

787 [*]

     [*     [*     [*     [*     [*

787 [*]

     [*     [*     [*     [*     [*
    

 

 

   

 

 

     

TOTAL POINTS

         [*    

POINTS REMAINING

         [*    


 

  

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

 

 

 

 

 

LOGO

 

6-1162-DME-0907

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    AGTA Matters
Reference:   

Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

 

Aircraft General Terms Agreement Number AGTA-AVI (AGTA) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

Customer and Boeing have reached agreement regarding certain modifications to the Agreement as set forth below:

 

1. [*]

The terms and conditions described in Article [*] of the AGTA-AVI, regarding [*] notwithstanding, Boeing will [*].

 

2. [*]

Notwithstanding anything to the contrary in the Purchase Agreement No. 3075. as amended or supplemented by any letter agreement between Customer and Boeing or in the AGTA-AVI (collectively, the “Purchase Agreement Documents”),

 

P.A. No. 3075

AGTA Matters

PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1162-DME-0907 Page 2

 

 

 

 

LOGO

 

Customer shall [*]

 

3. Exclusion of Consequential and Incidental Damages

NOTWITHSTANDING ANYTHING ELSE CONTAINED IN THE PURCHASE AGREEMENT DOCUMENTS OR OTHERWISE, CUSTOMER WILL HAVE NO OBLIGATION OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES ATTRIBUTABLE TO A DEFAULT UNDER THE PURCHASE AGREEMENT DOCUMENTS, PROVIDED THAT NOTHING HEREIN WILL PRECLUDE BOEING FROM RECOVERING INTEREST OR APPLICABLE PENALTIES ON PAYMENTS NOT PAID WHEN DUE OR ANY NECESSARY COSTS THAT BOEING MAY INCUR AS A RESULT OF HAVING TO STORE, MAINTAIN, TRANSPORT, OR REMARKET AN AIRCRAFT THAT CUSTOMER DOES NOT PURCHASE AS AGREED UNDER THE TERMS OF THIS AGREEMENT

 

4. Confidential Treatment

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential. Customer agrees that it will treat this Letter Agreement and the information contained herein as confidential and will not, without the prior written consent of Boeing, disclose this

 

 

 

 

P.A. No. 3075

AGTA Matters

PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1162-DME-0907 Page 3

 

 

 

 

LOGO

 

Letter Agreement or any information contained herein to any other person or entity. [*].

If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.

 

Very truly yours,
THE BOIENG COMPANY
By  

 

Its  

Attorney-in-Fact

ACCEPTED AND AGREED TO this
Date:                       , 2006
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
BY:  

 

Its  

 

 

 

 

 

P.A. No. 3075

AGTA Matters

PROPRIETARY

 


 

 

 

 

LOGO

 

  

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

  

APPENDIX I

6-1167-DME-1347

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Additional Special Matters— [*]
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

1. [*]

[*].

[*]

 

 

 

P.A. No. 3075   SA-3

BOEING PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1167-DME-1347

  Page 2
 

 

 

 

LOGO

 

2. Business Considerations

 

  2.1 Credit Memoranda.

2.1.1 [*] Credit Memorandum.

With respect to each of the [*] Aircraft, Boeing will provide to Customer (a) an [*] credit memorandum ([*] Credit Memorandum) and (b) a [*] credit memorandum ([*] Credit Memorandum), as applicable, in the following manner.

2.1.1.1 Boeing will provide to Customer an [*] Credit Memorandum at the time the [*].

 

 

 

 

P.A. No. 3075   SA-3

BOEING PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1167-DME-1347

  Page 3
 

 

 

 

LOGO

 

To illustrate, this will occur as follows;

[*]

2.1.1.2 Boeing will provide to Customer a [*] Credit Memorandum at the time of each Aircraft delivery each in the amount of [*].

 

 

 

 

P.A. No. 3075   SA-3

BOEING PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1167-DME-1347

  Page 4
 

 

 

 

LOGO

 

To illustrate, this will occur as follows:

[*]

 

  2.2 [*] Adjustment .

2.2.1 [*].

2.2.2 [*]:

(a) [*]

 

 

 

 

P.A. No. 3075   SA-3

BOEING PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1167-DME-1347

  Page 5
 

 

 

 

LOGO

 

(b) [*]

(c) [*].

2.2.3 [*] .

2.2.3.1 [*]

2.13.2 [*]

 

 

 

 

P.A. No. 3075   SA-3

BOEING PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1167-DME-1347

  Page 6
 

 

 

 

LOGO

 

2.2.3.3 [*].

2.2.3.4 [*]

 

  (i) [*]

 

  (ii) [*]

 

  (iii) [*]

 

  (iv) [*]
 

 

 

 

P.A. No. 3075   SA-3

BOEING PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1167-DME-1347

  Page 7
 

 

 

 

LOGO

 

2.3 [*].

Boeing shall provide Customer with a [*] Credit Memorandum at the time of delivery of each [*] Aircraft each in [*].

2.4 [*].

Boeing shall provide Customer with credit memoranda on or about [*].

3. Escalation and Application of Credit Memoranda

The various credit memoranda described herein will be subject to escalation per the specific terms stated above for each credit memoranda, and will escalate per the terms and conditions of Supplemental Exhibit AE1, Escalation Adjustment/Airframe and Optional Features, subject to the [*] terms and conditions described in letter agreement no. 6-1 162-DME-0905R1, [*].

The credit memoranda to be provided under this Letter Agreement may be used by Customer for the purchase of Boeing goods and services or may be applied toward the purchase price of the Aircraft, but may not be used for the payment of advance payments for any Aircraft, [*]. All such credit memoranda amounts are stated in July [*] United States Dollars and are subject to the same escalation as applicable to the net Aircraft Basic Price.

 

 

 

 

P.A. No. 3075   SA-3

BOEING PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1167-DME-1347

  Page 8
 

 

 

 

LOGO

 

4. Assignment of Credit Memoranda

The Credit Memoranda described in this Letter Agreement are provided as a financial accommodation to Customer in consideration of Customer becoming the operator of the Aircraft, and cannot be assigned, in whole or in part, without the prior written consent of The Boeing Company, which will not be unreasonably withheld.

5. Confidential Treatment

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential and, except as may otherwise be provided herein, will not, without the prior written consent of Boeing. disclose this Letter Agreement or any information contained herein to any other person or entity except to employees and legal counsel of Customer with a need to know the contents for purposes of helping Customer negotiate, perform and/or enforce this Letter Agreement and/or the Purchase Agreement and who understand they are not to disclose its contents to any other person or entity without the prior written consent of Boeing. [*].

 

 

 

 

P.A. No. 3075   SA-3

BOEING PROPRIETARY

 


 

 

Aerovias del Cantinerite American° S.A. AVIANCA

6-1167-DME-1347

  Page 9
 

 

 

 

LOGO

 

Very truly yours,
THE BOIENG COMPANY
By   [*]
Its Attorney-in-Fact
ACCEPTED AND AGREED TO this
Date:   Sept. 26 , 2012
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
BY:  

 

Its:  

Legal Rep

 

 

 

 

P.A. No. 3075   SA-3

BOEING PROPRIETARY

 

Exhibit 10.9.1

SUPPLEMENTAL AGREEMENT NO. 1

to

Purchase Agreement No. 3075

between

THE BOEING COMPANY

and

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

Relating to Boeing Model 787-859 Aircraft

THIS SUPPLEMENTAL AGREEMENT, entered into as of the 28th day of March 2007, by and between THE BOEING COMPANY, a Delaware corporation with its principal offices in the City of Seattle, State of Washington. USA (Boeing), and Aerovias del Continente Americano S.A. AVIANCA., a company organized under the laws of the country of Colombia (Buyer);

W I T N E S S E T H:

WHEREAS, Boeing and Buyer entered into Purchase Agreement No. 3075, dated 03 October 2006, as amended and supplemented (the Agreement) relating to the purchase and sale of ten (10) Boeing Model 787-859 aircraft; and

WHEREAS, Buyer and Boeing now wish to amend certain terms and conditions associated with the Agreement. and

WHEREAS, Boeing and Buyer have agreed to the addition of three (3) Model 787-8 purchase rights. and

WHEREAS, Boeing and Buyer have also agreed to amend the Agreement to incorporate certain other changes as may be described herein;

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to amend the Agreement as follows:

 

1. Table of Contents

Remove and replace, in its entirety, the Table of Contents with a new Table of Contents (attached hereto) to reflect the incorporation of this Supplemental Agreement No. 1 (SA-1) into the Purchase Agreement.

 

2. Letter Agreements.

2.1 Remove and replace page 1 of letter agreement no. 6-1162-DME-0903. Right to Purchase Additional Aircraft, with a new page 1 (attached hereto) which effects an increase in


(a) the number of Customer’s purchase right aircraft from seven (7) to now become ten (10) and (b) the number of Customer’s purchase rights aircraft to be delivered in calendar years 2013 through 2015 from two (2) to now become three (3).

2.2 Remove and replace page 2 of letter agreement no. 6-1162-DME-0902, Promotional Support Agreement , with a new page 2 (attached hereto) to accommodate Customer’s request for [*].

 

 

The Purchase Agreement, Exhibits and Letter Agreements shall be deemed amended to the extent herein provided and as so amended shall continue in full force and effect. In the event of any inconsistency between the above provisions and those provisions contained in the Purchase Agreement. the terms of this Supplemental Agreement will govern and control.

EXECUTED IN DUPLICATE as of the day and year first above written.

 

THE BOING COMPANY
By:  

/s/

Its  

Attorney –In-Fact

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By:  

/s/

Its  

Attorney –In-Fact


TABLE OF CONTENTS

 

          SA
NUMBER
ARTICLES   

1.

   Quantity, Model and Description   

2.

   Delivery Schedule   

3.

   Price   

4.

   Payment   

5.

   Miscellaneous   
TABLE   

1.

   Aircraft Information Table   
EXHIBIT   

A.

   Aircraft Configuration   

B.

   Aircraft Delivery Requirements and Responsibilities   
SUPPLEMENTAL EXHIBITS   

AEI.

   Escalation Adjustment/Airframe and Optional Features   

CS 1.

   Customer Support Document   

EE I .

   Engine Escalation/Engine Warranty and Patent Indemnity — Genx & Trent   

SLP1.

   Service Life Policy Components   


          SA
NUMBER
 
LETTER AGREEMENTS   
3075-01    787 Open Configuration Matters   
3075-02    787 Spare Parts Commitment   
3075-03    787 Spare Parts Initial Provisioning   
3075-04    Aircraft Model Substitution   
3075-05    Demonstration Flight Waiver   
3075-06    Schedule Reliability   
3075-07    Spare Parts – Flight Crew Training   
6-1162-DME-0895      
   AD Cost Materials   
6-1162-DME-0896    GEnx & Trent Performance Guarantees and Attachments   
6-1162-DME-0897    Alternate Engine Selection   
6-1162-DME-0898    GEnx Performance Retention and Attachment   
6-1162-DME-0899    Trent Performance Retention and Attachment   
6-1162-DME-0900    Maintenance Cost Guarantees and Attachment   
6-1162-DM E-0901    Advance Payment Matters   
6-1162-DME-0902    Promotional Support      SA-1   
6-1162-DME-0903    Purchase Rights      SA-1   
6-1162-DME-0904    Special Matters   
6-1162-DME-0905    [*]   
6-1162-DME-0905-01    [*]   
6-1162-DME-0905-02    [*]   
6-1162-DME-0906    Customer Services Matters and Attachment   
6-1162-DME-0907    AGTA Matters   

 

RECORD OF SUPPLEMENTAL AGREEMENTS
SA-1    27 March 2007


The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

6-1162-DME-0903

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:      Right to Purchase Additional Aircraft
Reference:      Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-8 aircraft (Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All capitalized terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

 

1. Right to Purchase Incremental Aircraft

Subject to the terms and conditions contained herein, in addition to the Aircraft described in Table 1 to the Purchase Agreement as of the date of execution of this Letter Agreement, Customer will have the right to purchase (Purchase Right) ten (10) additional Boeing Model 787-8 aircraft on the terms and conditions described in this Letter Agreement (Purchase Right Aircraft). Customer’s right of substitution with respect to any Boeing Model 787-8 aircraft pursuant to the Purchase Agreement (or any other letter agreement amending and supplementing the Purchase Agreement) shall be applicable to each such Purchase Right Aircraft.

 

2. Delivery .

The Purchase Right Aircraft are offered subject to available position for delivery during the period [*], with delivery of three (3) such Purchase Right Aircraft to occur in the calendar years [*] through [*], and delivery of one (1) such Purchase Right Aircraft in calendar year [*]. Should Customer choose not to exercise its Purchase Rights with respect to any of these available Purchase Right Aircraft in any of the calendar years [*] through [*], the

 

P.A. No. 3075

Purchase Rights

 

BOEING PROPRIETARY


1.4 “Performance Period” shall mean the period beginning [*] before and ending [*] after delivery of the first Covered Aircraft, with the exception that up to [*] of this Boeing commitment may be utilized by Customer as [*].

1.5 “Qualifying Third Party Fees” shall mean fees paid by Customer during the Performance Period to third party providers for Promotional Support provided to Customer during the Performance Period.

 

2. Commitment.

As more particularly set forth in this Letter Agreement Boeing agrees to provide Promotional Support to Customer in a value not to exceed $[*] for the first Covered Aircraft delivered to Customer and not to exceed $[*] per Covered Aircraft for each Covered Aircraft delivered to Customer thereafter (Commitment Limit).

 

3. Methods of Performance.

Subject to the Commitment Limit, Customer may elect to receive the Promotional Support in either or any combination of the following ways:

3.1 At Customer’s request and with respect to a mutually agreed project Boeing will provide Promotional Support during the Performance Period directly to Customer in value equivalent to Qualifying Third Party Fees.

3.2 Boeing will reimburse [*] percent ([*]%) of Customer’s payments of Qualifying Third Party Fees provided that Customer provides Boeing copies of paid invoices for such Qualifying Third Party Fees no later than [*] months after the delivery of the first Covered Aircraft. There will be no cash payments or other support in lieu thereof.

 

4. Commencement Date.

Boeing’s obligation to provide Promotional Support will commence when the purchase of the Covered Aircraft becomes firm (not subject to cancellation by either party).

 

5. Project Approval.

Following the execution of this Letter Agreement, a Boeing Airline Marketing Services representative will meet with Customer’s designated representative to review and approve the extent, selection, scheduling, and funds disbursement process for the Promotional Support to be provided pursuant to this Letter Agreement.

 

P.A. No. 3075

 

BOING PROPRIETARY

Exhibit 10.9.2

SUPPLEMENTAL AGREEMENT NO. 2

to

Purchase Agreement No. 3075

between

THE BOEING COMPANY

and

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

Relating to Boeing Model 787-859 Aircraft

THIS SUPPLEMENTAL AGREEMENT, entered into as of the 21st day of March 2007, by and between THE BOEING COMPANY, a Delaware corporation with its principal offices in the City of Seattle, State of Washington. USA (Boeing), and Aerovias del Continente Americano S.A. AVIANCA., a company organized under the laws of the country of Colombia (Buyer);

W I T N E S S E T H:

WHEREAS, Boeing and Buyer entered into Purchase Agreement No. 3075, dated 03 October 2006, as amended and supplemented (the Agreement) relating to the purchase and sale of ten (10) Boeing Model 787-859 aircraft; and

WHEREAS, Buyer and Boeing now wish to amend certain terms and conditions associated with the Agreement, and

WHEREAS, Buyer has made its decision to exercise two (2) purchase right aircraft to become firm aircraft, and

WHEREAS, Buyer has made its final decision regarding the engine manufacturer and specific model engine model to now become the model Trent [*], and

WHEREAS, Boeing and Buyer have also agreed to amend the Agreement to incorporate certain other changes as may be described herein;

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to amend the Agreement as follows:

 

1. Table of Contents.

Remove and replace, in its entirety, the Table of Contents, previously incorporated by Supplemental Agreement No. 1 (SA-1), with a new Table of Contents (attached hereto) to reflect the incorporation of this Supplemental Agreement No. 2 (SA-2) into the Purchase Agreement.

 

AVI


2. Tables.

2.1 Remove and replace Table 1 to Purchase Agreement No. 3075, with the new Table 1-1 (attached hereto) to reflect Customer’s decision to purchase Aircraft with the model Trent [*] engines.

2.2 Remove and replace Table 2 to Purchase Agreement No. 3075 , with the new Table 1-2 (attached hereto) to reflect Customer’s decision to exercise two (2) Basic Purchase Rights to become firmly contract Aircraft.

2.3 All references in the Purchase Agreement No. 3075 as executed on October 3rd, 2006 and in the Supplemental Agreement No. 1 as executed on March 28th, 2007 to Table 1 are to be understood as references to Table 1-1 and Table 1-2 above.

 

  3. Supplemental Exhibits .

Delete that portion of the Supplemental Exhibit EE1, Engine Escalation and Engine Warranty, that applies to the General Electric GENX [*] engines to reflect Customer’s final engine manufacturer and model decision to be model Trent [*] engines.

 

  4. Letter Agreements.

4.1 Delete, in its entirety, that portion of the letter agreement no. 6-1162-DME 0896, Aircraft Performance Guarantees - GENX [*] Engines, to reflect Customer’s final engine manufacturer and model decision to be model Trent [*] engines. Customer and Boeing agree that the performance guarantees applicable to the Trent [*] engines will be provided by Boeing as part of the Customer’s completion of the final configuration of the Aircraft.

4.2 Delete, in its entirety, letter agreement no. 6-1162-DME-0897, Alternate Engine Selection, to reflect Customer’s having made its engine manufacturer and model final decision to be the model Trent 1000-D engines.

4.3 Delete, in its entirety, letter agreement no. 6-1162-DME-0898, Performance Retention Commitment - GENX-1B64 Engines, to reflect Customer’s final engine manufacturer and model decision to be model Trent [*] engines.

4.4 Remove and replace the Letter Agreement No. 6-1162-DME-0901, Advance Payment Matters, executed on 03 October 2006, with the new Letter Agreement No. 6- 1162-DME-0901R1, Advance Payment Matters, (attached hereto) in order to include the new advance payment schedule applicable to the new Table 1-2 Aircraft.

4.5 Remove and replace the Letter Agreement No. 6-1162-DME-0903, Right to Purchase Additional Aircraft, executed on 03 October 2006 and as further amended by Supplemental Agreement No. 1 (SA-1), with the new Letter Agreement No. 6-1162-DME0903R1, Right to Purchase Additional Aircraft , and to add the new Attachment A, (attached hereto) to reflect the tern and conditions pertaining to Special Purchase Right Aircraft and to record Customers exercise of two (2) Basic Purchase Rights.

4.6 Remove and replace the Letter Agreement No. 6-1162-DME-0906, Customer Services, with the new Letter Agreement No. 6-1162-DME-0906R1, Customer Services. (attached hereto) in order to include the new Boeing/Alteon Maintenance and Flight Training Points associated with the Table 1-2 Aircraft.

 

AVI


4.7 Add the new Letter Agreement No. 6-1162-DME-1089, [*] which is a new escalation program that Buyer may choose to utilize for Customer specified aircraft, per the terms and conditions described therein, in lieu of the terms and conditions of Letter Agreement No. 6-1162-DME-0905, [*]

 

 

The Purchase Agreement, Exhibits and Letter Agreements shall be deemed amended to the extent herein provided and as so amended shall continue in full force and effect. In the event of any inconsistency between the above provisions and those provisions contained in the Purchase Agreement. the terms of this Supplemental Agreement will govern and control.

EXECUTED IN DUPLICATE as of the day and year first above written.

 

THE BOEING COMPANY
By:  

/s/

Its  

Attorney –In-Fact

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By:  

/s/

Its  

Attorney –In-Fact

 

AVI


TABLE OF CONTENTS

 

         

SA

NUMBER

ARTICLES   

1.

   Quantity, Model and Description   

2.

   Delivery Schedule   

3.

   Price   

4.

   Payment   

5.

   Miscellaneous   
TABLE   

1-1.

   Aircraft Information Table    SA-2

1-2.

   Aircraft Information Table    SA-2
EXHIBIT   

A.

   Aircraft Configuration   

B.

   Aircraft Delivery Requirements and Responsibilities   
SUPPLEMENTAL EXHIBITS   

AEI.

   Escalation Adjustment/Airframe and Optional Features   

CS 1.

   Customer Support Document   

EE I.

   Engine Escalation/Engine Warranty and Patent Indemnity    SA-2

SLP1.

   Service Life Policy Components   

 

AVI


          SA
NUMBER
 
LETTER AGREEMENTS   
3075-01    787 Open Configuration Matters   
3075-02    787 Spare Parts Commitment   
3075-03    787 Spare Parts Initial Provisioning   
3075-04    Aircraft Model Substitution   
3075-05    Demonstration Flight Waiver   
3075-06    Schedule Reliability   
3075-07    Spare Parts – Flight Crew Training   
6-1162-DME-0895    AD Cost Materials   
6-1162-DME-0896    Performance Guarantees and Attachments      SA-2   
6-1162-DME-0897    Alternate Engine Selection      SA-2   
6-1162-DME-0898    GEnx Performance Retention and Attachment   
6-1162-DME-0899    Trent Performance Retention and Attachment      SA-2   
6-1162-DME-0900    Maintenance Cost Guarantees and Attachment   
6-1162-DM E-0901R1    Advance Payment Matters      SA-2   
6-1162-DME-0902    Promotional Support      SA-1   
6-1162-DME-0903 R1    Purchase Rights      SA-1   
6-1162-DME-0904    Special Matters   
6-1162-DME-0905    Escalation [*] and Attachment   
6-1162-DME-0905-01    [*]   
6-1162-DME-0905-02    [*]   
6-1162-DME-0906T1    Customer Services Matters and Attachment      SA-2   
6-1162-DME-0907    AGTA Matters   
6-1162-DME-1089    [*]      SA-2   
RECORD OF SUPPLEMENTAL AGREEMENTS   
SA-1    28 March 2007   
SA-2    21 November 2007   

 

AVI


Supplemental Agreement No. SA-2

Table 1-1 to Purchase Agreement No. 3075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe Model/MTOW:                                       787-8    [*]    Detail Specification:    [*]
Engine Model/Thrust:                             TRENT [*]    [*]    Airframe Price Base Year/Escalation Formula:    [*]
Airframe Price:    [*]    Engine Price Base Year/Escalation Formula:    [*]
Optional Features:    [*]      
  

 

     
Sub-Total of Airframe and Features:    [*]    Airframe Escalation Data :    [*]
Engine Price (Per Aircraft):    [*]    Base Year Index (ECI):    [*]
Aircraft Basic Price (Excluding BFE/SPE):    [*]    Base Year Index (CPI):    [*]
  

 

     
Buyer Furnished Equipment (BFE) Estimate:    [*]    Engine Escalation Data :    [*]
Seller Purchased Equipment (SPE) Estimate:    [*]    Base Year Index (ECI):    [*]
      Base Year Index (CPI):    [*]
Refundable Deposit/Aircraft at Proposal Accept:    $150,000      

 

Delivery Date

   Number of
Aircraft
   Escalation
Factor

(Airframe)
   Escalation
Factor
(Engine)
   Escalation
Estimate

Adv  Payment
   Advance Payment Per Aircraft (Amts. Due/Mos. Prior to  Delivery):
               [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]
  

 

  

 

  

 

  

 

  

 

  

 

  

 

  

 

Total:    10                     

 

AVI


Airframe Model/MTOW:                         787-8    [*]    Detail Specification:    787131-4102-B (7/9/2007)
Engine Model/Thrust:                       TR [*]    [*]    Airframe Price Base Year/Escalation Formula:    [*]
Airframe Price:    [*]    Engine Price Base Year/Escalation Formula:    [*]
Optional Features:    [*]       [*]
Sub-Total of Airframe and Features:    [*]    Airframe Escalation Data :    [*]
Engine Price (Per Aircraft):    [*]    Base Year Index (ECI):    [*]
Aircraft Basic Price (Excluding BFE/SPE):    [*]    Base Year Index (CPI):    [*]
Buyer Furnished Equipment (BFE) Estimate:    [*]    Engine Escalation Data :    [*]
Seller Purchased Equipment (SPE) Estimate:    [*]    Base Year Index (ECI):    [*]
      Base Year Index (CPI):    [*]
Refundable Deposit/Aircraft at Proposal Accept:    [*]      

 

Delivery Date

   Number of
Aircraft
   Escalation
Factor
(Airframe)
   Escalation
Factor
(Engine)
   Escalation Estimate
Adv  Payment Base
Price Per A/P
   Advance Payment Per Aircraft (Amts. Due/Mos. Prior to  Delivery):
               [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

 

AVI


Page

 

The Boeing Company

P.O. Box 3707

Seattle, WA 98124-2207

6-1162-DME-0901R1

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Advance Payment Matters
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-8 aircraft (Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All capitalized terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

[*]

 

1. Advance Payment Schedule - Block 1-1 Aircraft :

Notwithstanding the advance payment schedule set forth in Table 1-1 of the Purchase Agreement, Boeing agrees that Customer may make Advance Payments for the Block 1-1 Aircraft in accordance with the reduced schedule below described, subject to the terms and conditions further described herein:

 

Months Prior to Aircraft Delivery

   Amount Due per Aircraft
(Percent times

Advance Payment Base Price)
 

Definitive Agreement

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

Total

     [*]   

[*].

 

2. Advance Payment Schedule - Block 1-2 Aircraft:

Notwithstanding the advance payment schedule set forth in Table 1-2 of the Purchase Agreement, Boeing agrees that Customer may make Advance Payments for the Block 1-2 Aircraft in accordance with the reduced schedule below described, subject to the terms and conditions further described herein:

 

Months Prior to Aircraft Delivery

   Amount Due per Aircraft
(Percent times

Advance Payment Base Price)
 

Definitive Agreement

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

 

BOEING PROPRIETARY


[*]

 

3. Deferral Charges on Deferred Advance Payments:

[*]

 

4. [*]:

[*]

 

5. [*]:

[*].

 

6. Confidential Treatment:

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential. Customer agrees that it will treat this Letter Agreement and the information contained herein as confidential and will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity. [*]

If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below. Very truly yours,

EXECUTED IN DUPLICATE as of the day and year first above written.

 

THE BOEING COMPANY
By:  

/s/

Its  

Attorney –In-Fact

ACCEPTED AND AGREED TO this
By:   21 November 2007
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By:  

/s/

Its

 

Attorney –In-Fact

 

BOEING PROPRIETARY


Page

 

6-1162-DME-0903RI

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

BogotaColombia

 

Subject:    Right to Purchase Additional Aircraft
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-8 aircraft (Aircraft) Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-8 aircraft (Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All capitalized terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

 

1. Basic Purchase Rights

Subject to the terms and conditions contained herein, in addition to the Aircraft described in Table 1-1 to the Purchase Agreement as of the date of execution of this Letter Agreement, Customer will have the right to purchase (Basic Purchase Right) ten (10) additional Boeing Model 787-8 aircraft on the terms and conditions described in this Letter Agreement (Basic Purchase Right Aircraft). [*]

1.1 Delivery.

The Basic Purchase Right Aircraft are offered subject to available position for delivery during the period 01 January 2013 through 31 December 2016, with delivery of three (3) such Basic Purchase Right Aircraft to occur in the calendar years 2013 through 2015, and delivery of one (1) such Basic Purchase Right Aircraft in calendar year 2016. [*]

1.2. Notice of Exercise and Payment of Deposit

Customer may exercise a Basic Purchase Right by giving written notice to Boeing (Notice of Exercise) of its desire to exercise such Basic Purchase Right not later than the first business day of the month that is [*] months prior to a requested delivery position. [*]

[*]

Customer will pay to Boeing by electronic transfer to the account specified below a deposit (Deposit) in the amount shown on Table 1-1 to the Purchase Agreement for each Basic Purchase Right Aircraft purchased pursuant to the Notice of Exercise. The deposit will be due and payable on the date of Customer’s acceptance of Boeing’s offered delivery position of a Basic Purchase Right Aircraft. The Deposit will be applied against the first advance payment due for each such Basic Purchase Right Aircraft.

 

BOEING PROPRIETARY


[*]

1.3. Configuration

1.3.1 Subject to the provisions of Article 1.3.2, below, the configuration for the Basic Purchase Right Aircraft will be the detail specification for model 787-8 aircraft at the revision level in effect at the time of the Notice of Exercise. Such detail specification will be revised to include (i) changes applicable to such detail specification that are developed by Boeing between the date of the Notice of Exercise and the signing of the definitive amendment to the Purchase Agreement providing for the purchase of the Basic Purchase Rights Aircraft, (ii) changes required to obtain required regulatory certificates, and (iii) other changes as mutually agreed by Boeing and Customer.

1.3.2 Boeing reserves the right to configure the Basic Purchase Right Aircraft starting from a different configuration specification, provided that it can achieve the same configuration which would result pursuant to the provisions of Article 1.3.1 [*].

1.4. Price

The Aircraft Price of each Basic Purchase Right Aircraft shall be determined in accordance with the provisions of the Purchase Agreement using Boeing’s then-current prices at the time of signing of the definitive agreement (Then-current Prices), except that:

(i) [*]

(ii) Advance payments are required for each Basic Purchase Right Aircraft. The remainder of the Aircraft Price will be due at delivery of each Basic Purchase Right Aircraft. The methodology used to estimate the Advance Payment Base Prices will be that specified in the Purchase Agreement at the date of signing of this Letter Agreement, and the escalation indices used to estimate the Advance Payment Base Prices [*]the purchase of the [*] as such provisions are modified by any other letter agreement amending or supplementing the Purchase Agreement.

1.5. [*][*]

1.6. Definitive Purchase Agreement.

Following Customer’s decision to exercise a [*], or to exercise an [*], in accordance with the terms and conditions stated herein, the parties will, within [*] calendar days of such exercise (or, if applicable, within [*] of Customer’s acceptance of an alternate delivery month), sign a definitive amendment to the Purchase Agreement providing for the purchase of [*] Such amendment will include the provisions then contained in the Purchase Agreement as modified to reflect the provisions of this Letter Agreement and any additional mutually agreed terms and conditions.

1.7. General Expiration of Rights.

Each Basic Purchase Right shall expire at the time of execution of the amendment to the Purchase Agreement providing for the purchase of the applicable [*] or, if no such amendment to the Purchase Agreement is executed, on 30 June of each of the calendar years 2012 through 2015 for any then unexercised [*] with respect to the first calendar year commencing after such date.

 

BOEING PROPRIETARY


  2. [*]

Subject to the terms and conditions contained herein, in addition to the Aircraft described in Table 1-2 to the Purchase Agreement as of the date of execution of Supplemental Agreement No. 2, Customer will have the right to purchase ([*] Boeing Model 787-8 aircraft on the terms and conditions described in this Letter Agreement [*]. Customer’s right of substitution with respect to any Boeing Model 787-8 aircraft pursuant to the Purchase Agreement (or any other letter agreement amending and supplementing the Purchase Agreement) shall be applicable to each such [*].

2.1 Delivery.

The [*] are offered subject to available position for delivery prior to 31 December 2019.

2.2. Notice of Exercise and Payment of Deposit

Customer may exercise a Special Purchase Right under the same terms and conditions as described in article 1.2 above for Basic Purchase Rights.

2.3. Configuration

With Customer’s exercise of a [*], the configuration will be determined under the [*].

2.4. Price

The Aircraft Price of each [*] shall be determined in accordance with the provisions of the Purchase Agreement using Boeing’s [*].

Advance payments are required for each [*]. The remainder of the Aircraft Price will be due at delivery of each [*]. The methodology to determine Advance Payment Base Prices and escalation will be based upon Boeing’s [*].

2.5 Definitive Purchase Agreement.

Following Customer’s decision to exercise a [*], in accordance with the terms and conditions stated herein, the parties will, within thirty (30) calendar days of such exercise (or, if applicable, within [*] days of Customer’s acceptance of an alternate delivery month), sign a definitive amendment to the Purchase Agreement providing for the purchase of such [*]. Such amendment will include the provisions then contained in the Purchase Agreement as modified to reflect the provisions of this Letter Agreement and any additional mutually agreed terms and conditions.

 

BOEING PROPRIETARY


2.6. General Expiration of Rights.

Each [*] shall expire at the time of execution of the amendment to the Purchase Agreement providing for the purchase of the applicable[*], or, if no such amendment to the Purchase Agreement is executed, on 30 June of 2018 for any then unexercised [*].

 

3. Assignment.

The Purchase Rights described in this Letter Agreement are provided in consideration of Customer’s becoming the operator of each Purchase Right Aircraft, and cannot be assigned, in whole or in part, without the prior written consent of Boeing.

 

4. Confidential Treatment.

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential. Customer agrees that it will treat this Letter Agreement and the information contained herein as confidential and will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity. [*]

If the foregoing correctly sets forth your understanding of our agnmment with respect to the matters treated above, please indicate your acceptance and approval below.

 

THE BOEING COMPANY
By:  

/s/

Its  

Attorney –In-Fact

ACCEPTED AND AGREED TO this
By: 21 November 2007
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By:  

/s/

Its  

Attorney –In-Fact

 

BOEING PROPRIETARY


Page

 

BOEING PROPRIETARY

Record of Purchase Right Aircraft Exercised

 

Document Description

  

Effective Date

   Basic
Purchase
Rights
Remaining
     Special
Purchase
Rights
Remaining
     Total
Remaining
Purchase
Rights
 
PA-3075    03 October 2006      7         0         7   
SA-1    28 March 2007      10         0         10   
SA-2    21 November 2007      8         2         10   

 

BOEING PROPRIETARY


Page

 

6-1162-DME-0906R1

Aerovias del Continente Americana S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject: Customer Services Matters

 

Reference: Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americana S.A. AVIANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

The various [*] elements of Boeing Customer Support described below are provided as a financial accommodation in consideration of Buyer’s becoming the operator of the Aircraft, and cannot be assigned, in whole or in part, without the prior written consent of The Boeing Company.

 

1. Block I Aircraft - Boeing/Alteon Maintenance & Flight Training

Boeing’s standard Training Point allocation for the direct purchase of seven (7) 787-8 Aircraft is documented in Article 1.1 of the Supplemental Exhibit CS-1 to this Purchase Agreement No. 3075 with the following language.

1.1 Customer is awarded [*] points (Training Points). At any time before [*] months after delivery of Customer’s last Aircraft (Training Program Period) Customer may [*] may identify at specified point values. At the end of the Training Program Period any unused Training Points will expire.

1.2. In recognition of Customer’s additional training requirements, Boeing agrees to [*]

1.3 In the event Customer does go forward with the assignment of [*] Aircraft to Synergy Aerospace Inc., as described in Letter Agreement No. 6-1162- DME-0904, entitled Special Matters, then Boeing will provide Synergy Aerospace [*]

1.4 In the event the assignment of the [*] Aircraft to Synergy Aerospace Inc., as described in Letter Agreement No. 6-1162-DME-0904, entitled Special Matters does not occur, then customer will receive a basic [*] Training Points in lieu of the basic [*] Training Points described in paragraph 1.1 above, plus the additional [*] Special Training points described in paragraph 2 above, for a total entitlement of [*] points.

 

BOEING PROPRIETARY


2. [*] Aircraft - Boeing/Ahem Maintenance & Flight Training

Customer has taken the decision to exercise two (2) purchase right aircraft to become firmly contracted Aircraft. Customer is awarded [*] Training Points with respect to the additionally contracted two (2) Aircraft. Also, in recognition of Customer’s specific request to support its additional training requirements, Boeing agrees to [*] Training Points associated with these additional two (2) Aircraft.

 

3. Confidential Treatment

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential. Customer agrees that it will treat this Letter Agreement and the information contained herein as confidential and will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity. [*]

 

THE BOEING COMPANY
By:  

/s/

Its  

Attorney –In-Fact

ACCEPTED AND AGREED TO this
By: 21 November 2007
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By:  

/s/

Its  

Attorney –In-Fact

Attachment A

 

BOEING PROPRIETARY


Page

 

Customer:    Avianca            
Total Firm Aircraft:          7            
Points Allocated:      [*]            
787    Training Courses   

Points per

Class

  

Class

Requirement

  

Points

Expended

  

Per Class

Student

Maximum

  

Total

Students

Trained

Flight

                 

787

   [*]    [*]    [*]    [*]    [*]    [*]

Cabin Crew

         [*]    [*]    [*]    [*]

787

   [*]    [*]    [*]    [*]    [*]    [*]

Maintenance

         [*]    [*]    [*]    [*]

787

   [*]    [*]    [*]    [*]    [*]    [*]

787

   [*]    [*]    [*]    [*]    [*]    [*]

787

   [*]    [*]    [*]    [*]    [*]    [*]

787

   [*]    [*]    [*]    [*]    [*]    [*]

787

   [*]    [*]    [*]    [*]    [*]    [*]

787

   [*]    [*]    [*]    [*]    [*]    [*]

TOTAL POINTS

            [*]      

POINTS REMAINING

            [*]      

 

BOEING PROPRIETARY


Page

 

6-1162-DME-1089

Aerovias del Continente Americano S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject: [*]

 

Reference: Purchase Agreement No. 3075 (the Purchase Agreement) between

The Boeing Company (Boeing) and Aerovias del Continente Americano S.A. AVIANCA (Customer) relating to Model 787-8 aircraft (the Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

 

1. Definitions.

[*]

 

2. Applicability.

Notwithstanding any other provision of the Purchase Agreement to the contrary, the parties agree that the [*] for each [*] Aircraft shall be determined in accordance with this Letter Agreement.

The [*] applicable to a given [*] Aircraft is set forth in Attachment A.

Customer may choose, and notify Boeing by written notice not later than 01 March 2008, to include all of the Aircraft specified in [*] of the Purchase Agreement to become [*] Aircraft under the terms of this Letter Agreement, and

Customer may choose, and notify Boeing by written notice not later than 01 March 2008, to include certain specified [*] of the Purchase Agreement to become [*] Aircraft under the terms of this Letter Agreement.

 

3. [*]

[*]

 

4. [*]

4.1 [*]

4.1.1 [*]

 

BOEING PROPRIETARY


4.1.2 [*]

4.2 [*]

4.3 [*]

4.4 [*]

 

5. [*]

[*]

5.1 [*]

5.2 [*]

 

6. [*]

[*]

 

7. Confidential Treatment.

The information contained in this Agreement represents confidential business information and has value precisely because it is not available generally or to other parties. Customer therefore agrees to limit disclosure of the information contained in this Agreement to employees of Customer with a need to know or to certain other entities (including Customer’s legal advisors, financiers or governmental authorities) in order to assist Customer in evaluating Customer’s purchase of the Aircraft and who in turn agree not to disclose its contents to any other person or entity without the prior written permission of Boeing.

 

THE BOEING COMPANY
By:  

/s/

Its  

Attorney –In-Fact

ACCEPTED AND AGREED TO this
By: 21 November 2007
By:  

/s/

Its  

Attorney –In-Fact

 

BOEING PROPRIETARY


Page

 

ATTACHMENT A

[*]

[*]

 

BOEING PROPRIETARY


Page

 

ATTACHMENT B

*[ Four pages have been redacted pursuant to a request for confidential treatment ]

 

BOEING PROPRIETARY

Exhibit 10.9.3

SUPPLEMENTAL AGREEMENT NO. 3

to

Purchase Agreement No. 3075

between

THE BOEING COMPANY

and

AEROVIAS DEL CONTINENTE AMERICAN° S.A. AVIANCA

Relating to Boeing Model 787-859 Aircraft

THIS SUPPLEMENTAL AGREEMENT, entered into as of the 26 day of September 2012, by and between THE BOEING COMPANY, a Delaware corporation with its principal offices in the City of Seattle, State of Washington, USA (Boeing), and Aerovias del Continente Americano S.A. AVIANCA, a company organized under the laws of the Republic of Colombia (Buyer);

WITNESSETH:

WHEREAS, Boeing and Buyer entered into Purchase Agreement No. 3075, dated 03 October 2006, as amended and supplemented (Purchase Agreement No. 3075) relating to the purchase and sale of ten (10) (Table 1-1) Boeing Model 787-859 aircraft; and

WHEREAS, Buyer and Boeing now wish to amend certain terms and conditions associated with Purchase Agreement No. 3075, and

WHEREAS, Boeing and Buyer have reached agreement regarding the [*] delivery schedule applicable to all twelve (12) (Tables 1-1 and 1-2) Aircraft under Purchase Agreement No. 3075, including the applicable business considerations, and

WHEREAS, Buyer has made its decision regarding the exercise of three (3) purchase right aircraft to now become additional firm contracted Aircraft (Table 1-3), and

WHEREAS, Boeing and Buyer have also agreed to amend Purchase Agreement No. 3075 to incorporate certain other changes as may be described herein:

NOW, THEREFORE, in consideration of the mutual covenants contained herein, the parties agree to amend Purchase Agreement No. 3075 as follows:

 

1. Table of Contents.

The Table of Contents to Purchase Agreement No, 3075 is hereby remove and replaced, in its entirety, by the new Table of Contents (attached hereto as Appendix A) to reflect the incorporation of this Supplemental Agreement No. 3 (SA-3) into Purchase Agreement No. 3075.

 

2. Tables.

2.1 Table 1-1 to Purchase Agreement No. 3075. Aircraft Delivery, Description. Price and Advance Payments, is hereby removed and replaced in its entirety, with the new Table 1-1 (attached hereto as Appendix B) to reflect the revised scheduled months of Aircraft delivery.

 

PA3075   
SA-3    AVI


2.2 Table 1-2 to Purchase Agreement No, 3075, Aircraft Delivery, Description, Price and Advance Payments, is hereby removed and replaced in its entirety with the new Table 1-2 (attached hereto as Appendix C) to reflect the revised scheduled months of Aircraft delivery.

2.3 A new Table 1-3, Aircraft Delivery, Description, Price and Advance Payments (attached hereto as Appendix D), is hereby added to Purchase Agreement No. 3075 in order to incorporate Buyer’s decision to exercise three (3) now firmly contracted Purchase Right Aircraft to the Purchase Agreement No. 3075.

 

3. Exhibits.

The new Supplemental Exhibit BFE1, Buyer Furnished Equipment Variables (attached hereto as Appendix E) is hereby added to Purchase Agreement No. 3075 in order to provide the requisite on-dock delivery dates and other requirements applicable to BFE equipment.

 

4. Letter Agreements.

4.1 Letter Agreement No. 6-1162-DME-0901R1, Advance Payment Mailers, is hereby deleted in its entirety and replaced with the new Letter Agreement No. 6-1 l 62-DME-901R2. with the same subject (attached hereto as Appendix F), including the new Attachment A and Attachment B to such new letter, in order to (i) clarify and confirm Boeing and Buyer’s agreement that the advance payments for the [*] will be calculated based upon [*], include the advance payment schedule applicable to the [*], and incorporate the terms and conditions [*].

4.2 Letter Agreement No. 6-1162-DME-0903R1. Right to Purchase Additional Aircraft, is hereby deleted in its entirety and replaced with the new revised Letter Agreement No. 6-1 162-DME-0903R2, with the same subject( attached hereto as Appendix G), such that the terms and conditions described therein will be [*], and that any such Purchase Right Aircraft delivery position [*].

4.3 Letter Agreement No. 6-1162-DME-0905 and its Attachments A, B, and C, [*], is hereby deleted in its entirety and replaced with the new Letter Agreement No. 6-1162-DME-0905R1 and a new Attachment A and B. with the same subject, (attached hereto as Appendix H) in order to [*] under the terms and conditions described therein.

4.4 Letter Agreement No. 6-1162-DME-0905-01, [*], is hereby deleted in its entirety and replaced to reflect Buyer’s decision to utilize the terms and conditions of Letter Agreement No. 6-1162-DME0905R1, [*].

4.5 Letter Agreement No. 6-1162-DME-0905-02, [*], is hereby deleted in its entirety and replaced to reflect Buyer’s decision to utilize the terms and conditions of Letter Agreement No. 6-1 162 DME-0905R1, [*].

4.6 Letter Agreement No. 6-1162-DME-1089-R1 [*], is hereby deleted in its entirety and replaced as was earlier mutually agreed upon in the Letter Agreement No. 6-1167-DME-1323 dated 24 May 2012.

4.7 The new Letter Agreement No. 6-1167-DME-1347, Additional Special Matters - [*] (attached hereto as Appendix I), is hereby added to Purchase Agreement No. 3075 in order to incorporate certain additional business considerations associated with the [*] scheduled to be delivered [*].

Purchase Agreement No. 3075, Exhibits and Letter Agreements shall be deemed amended to the extent herein provided and as so amended shall continue in full force and effect. In the event of any inconsistency between the above provisions and those provisions contained in Purchase Agreement No. 3075, the terms of this Supplemental Agreement will govern and control.

 

PA3075   
SA-3    AV1


EXECUTED IN DUPLICATE as of the day and year first above written.

THE BOEING COMPANY

 

By  

Alan W. Smith

Its  

Attorney-In-Fact

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

By  

/s/

Its  

Legal Rep

 

PA3075   
SA-3    AV1


APPENDIX A

TABLE OF CONTENTS

 

         SA
NUMBER
 

ARTICLES

  

1.

 

Quantity, Model and Description

  

2.

 

Delivery Schedule

  

3.

 

Price

  

4.

 

Payment

  

5.

 

Miscellaneous

  

TABLE

  

1-1.

 

Aircraft Information Table

     SA-2   

1-2.

 

Aircraft Information Table

     SA-2   

1-3

 

Aircraft Information Table

     SA-3   

EXHIBIT

    

A.

 

Aircraft Configuration

  

B.

 

Aircraft Delivery Requirements and Responsibilities

  

SUPPLEMENTAL EXHIBITS

  

AEI.

 

Escalation Adjustment/Airframe and Optional Features

  

BFEI

 

Buyer Furnished Equipment Variables

     SA-3   

CS1.

 

Buyer Support Document

  

EE I.

 

Engine Escalation/Engine Warranty and Patent Indemnity

     SA-2   

SLP1.

 

Service Life Policy Components

  

 

PA3075   
SA-3    AV1


           SA
NUMBER
 

LETTER AGREEMENTS

  

3075-01

 

787 Open Configuration Matters

  

3075-02

 

787 Spare Parts Commitment

  

3075-03

 

787 Spare Parts Initial Provisioning

  

3075-04

 

Aircraft Model Substitution

  

3075-05

 

Demonstration Flight Waiver

  

3075-06

 

Schedule Reliability

  

3075-07

 

Spare Parts – Flight Crew Training

  

6-1162-DME-0895

 

AD Cost Materials

  

6-1162-DME-0896

 

Performance Guarantees and Attachments

     SA-2   

6-1162-DME-0897

 

Alternate Engine Selection

     SA-2   

6-1162-DME-0898

 

GEnx Performance Retention and Attachment

     SA-2   

6-1162-DME-0899

 

Trent Performance Retention and Attachment

  

6-1162-DME-0900

 

Maintenance Cost Guarantees and Attachment

  

6-1162-DM E-0901R2

 

Advance Payment Matters and Attachments A & B

     SA-3   

6-1162-DME-0902

 

Promotional Support

     SA-1   

6-1162-DME-0903 R2

 

Purchase Rights

     SA-3   

6-1162-DME-0904

 

Special Matters

  

6-1162-DME-0905R1

 

[*]

     SA-3   

6-1162-DME-0905-01

 

[*]

     SA-3   

6-1162-DME-0905-02

 

[*]

     SA-3   

6-1162-DME-0906R1

 

Customer Services Matters and Attachment

     SA-2   

6-1162-DME-0907

 

AGTA Matters

  

6-1162-DME-1089 RI

 

[*]

     SA-3   

6-1167-DME-1347

 

Additional Special Matters –[*]

     SA-3   

 

RECORD OF SUPPLEMENTAL AGREEMENTS
SA-1   28 March 2007
SA-2   21 November 2007
SA-3   2012

 

PA3075   
SA-3    AV1


APPENDIX B

Supplemental Agreement No. SA-2

Table 1-1 to Purchase Agreement No. 3075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe Model/MTOW:                       787-8    [*]         Detail Specification:    [*]
Engine Model/Thrust:            TRENT [*]    [*]         Airframe Price Base Year/Escalation Formula:    [*]
Airframe Price:    [*]         Engine Price Base Year/Escalation Formula:    [*]
Optional Features:    [*]           
  

 

 

       
Sub-Total of Airframe and Features:    [*]         Airframe Escalation Data :    [*]
Engine Price (Per Aircraft):    [*]         Base Year Index (ECI):    [*]
Aircraft Basic Price (Excluding BFE/SPE):    [*]         Base Year Index (CPI):    [*]
  

 

 

       
Buyer Furnished Equipment (BFE) Estimate:    [*]         Engine Escalation Data :    [*]
Seller Purchased Equipment (SPE) Estimate:    [*]         Base Year Index (ECI):    [*]
      Base Year Index (CPI):    [*]
Refundable Deposit/Aircraft at Proposal Accept:    $ 150,000         

 

Delivery Date

   Number of
Aircraft
   Escalation
Factor
(Airframe)
   Escalation
Factor
(Engine)
   Escalation Estimate
Adv Payment Base
Price Per A/P
   Advance Payment Per Aircraft (Amts. Due/Mos. Prior to  Delivery):
               [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]
  

 

  

 

  

 

  

 

  

 

  

 

  

 

  

 

Total:

   10    [*]    [*]    [*]    [*]    [*]    [*]    [*]
  

 

  

 

  

 

  

 

  

 

  

 

  

 

  

 

 

      SA-3
AVI    Boeing Proprietary    Page 1


APPENDIX C

Supplemental Agreement No. SA-3

Table 1-2 to Purchase Agreement No. 03075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe Model/MTOW:    787-8    [*]    Detail Specification:    787131-4102-B (7/9/2007)
Engine Model/Thrust:    TR  [*]    [*]    Airframe Price Base Year/Escalation Formula:    [*]
Airframe Price:       [*]    Engine Price Base Year/Escalation Formula:    [*]
Optional Features:       [*]       [*]
Sub-Total of Airframe and Features:       [*]    Airframe Escalation Data :    [*]
Engine Price (Per Aircraft):       [*]    Base Year Index (ECI):    [*]
Aircraft Basic Price (Excluding BFE/SPE):    [*]    Base Year Index (CPI):    [*]
Buyer Furnished Equipment (BFE) Estimate:    [*]    Engine Escalation Data :    [*]
Seller Purchased Equipment (SPE) Estimate:    [*]    Base Year Index (ECI):    [*]
         Base Year Index (CPI):    [*]
Refundable Deposit/Aircraft at Proposal Accept:    [*]      

 

Delivery Date    Number of
Aircraft
   Escalation
Factor
(Airframe)
   Escalation
Factor
(Engine)
   Escalation Estimate
Adv Payment Base
Price Per A/P
   Advance Payment Per Aircraft (Amts. Due/Mos. Prior to Delivery):
               [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]    [*]    [*]    [*]    [*]    [*]

 

AVI      
      SA-3
   Boeing Proprietary    Page 1


APPENDIX D

Supplemental Agreement No. SA-3

Table 1-3 to Purchase Agreement No. 03075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe Model/MTOW:    787-8    [*]    Detail Specification:    787131-4102-B (7/9/2007)
Engine Model/Thrust:    TRENT  [*]    [*]    Airframe Price Base Year/Escalation Formula:    [*]
Airframe Price:       [*]    Engine Price Base Year/Escalation Formula:    [*]
Optional Features:       [*]       [*]
Sub-Total of Airframe and Features:       [*]    Airframe Escalation Data :    [*]
Engine Price (Per Aircraft):       [*]    Base Year Index (ECI):    [*]
Aircraft Basic Price (Excluding BFE/SPE):    [*]    Base Year Index (CPI):    [*]
Buyer Furnished Equipment (BFE) Estimate:    [*]    Engine Escalation Data :    [*]
Seller Purchased Equipment (SPE) Estimate:    [*]    Base Year Index (ECI):    [*]
         Base Year Index (CPI):    [*]
Refundable Deposit/Aircraft at Proposal Accept:    [*]      

 

Delivery Date

   Number of
Aircraft
   Escalation
Factor
(Airframe)
   Escalation
Factor
(Engine)
   Escalation Estimate
Adv Payment Base
Price Per A/P
   Advance Payment Per Aircraft (Amts. Due/Mos. Prior to  Delivery):
               [*]    [*]    [*]    [*]

[*]

   1*    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   I*    [*]    [*]    [*]    [*]    [*]    [*]    [*]

[*]

   1*    [*]    [*]    [*]    [*]    [*]    [*]    [*]

 

AVI      
   Boeing Proprietary    SA-3
      Page 1


APPENDIX E

BUYER FURNISHED EQUIPMENT VARIABLES

between

THE Boeing Company

and

Aerovias del Continente American° S. A. AV1ANCA

Supplemental Exhibit BFE1

to Purchase Agreement Number 3075

 

AVI    BFE1
SA-3    Page 1


BUYER FURNISHED EQUIPMENT VARIABLES

relating to

BOEING MODEL 787-8 AIRCRAFT

This Supplemental Exhibit BFE1 contains supplier selection dates, on-dock dates and other requirements applicable to the Aircraft.

 

1. Supplier Selection .

Customer will select and notify Boeing of the suppliers and model/part of the following BFE items by the first day of the following months:

 

[*]    [*]
[*]    [*]
[*]    [*]
[*]    [*]
[*]    [*]

 

2. On-dock Dates and Other Information .

Customer and Boeing rights and obligations related to the BFE requirements established in this Supplemental Exhibit BFE1 are set forth in Exhibit A to the AGTA. The first Aircraft BFE seat requirements and on-dock dates for all BFE items are set forth below. On or before [*] Boeing will also make available to Customer the BFE requirements electronically, in My Boeing Fleet (MBF) through My Boeing Configuration (MBC) or by other means, setting forth the items, quantities, technical reviews, on-dock dates, shipping instructions and other reasonable requirements relating to the in-sequence installation of BFE. These requirements may be periodically revised by Boeing.

The below “Completion Date” represents the first day of the month by when the specific milestone must be completed to support the BFE seat program.

Customer’s First Aircraft: BFE Premium Class Seat Program Milestones (First Aircraft Delivery Only)

 

Milestone    Completion Date
[*]    [*]
[*]    [*]
[*]    [*]
[*]    [*]
[*]    [*]

 

AVI       BFE1
SA-3    BOEING PROPRIETARY    Page 2


Preliminary On-Dock and Customer Inspection Months

(Note: All requirements are set forth below. If a month is listed, then the due date is the first day of the month. If no date is listed, then there is no requirement.)

 

Aircraft
Delivery
Month
  Product   On Dock
Date at
Supplier
  On Dock
Date at
Boening
  Customer
inspection
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]
[*]   [*]   [*]   [*]   [*]

 

2. Additional Delivery Requirements - Import .

Customer will be the “ importer of record ” (as defined by the U.S. Customs and Border Protection) for all BEF imported into the United States, and as such, it has the responsibility to ensure [*] comply with U.S. Customs Service regulations. In event Customer requests Boeing, in writing, to act as importer of record for Customer’s BFE, and Boeing agrees to such request, Customer is responsible for ensuring Boeing can comply with all U.S. Customs Import Regulations by making certain that, at the time of shipment, all BFE shipments comply with the requirements

 

AVI       BFE1
SA-3    BOEING PROPRIETARY    Page 3


in the ‘‘International Shipment Routing Instructions”, including the Customs Trade Partnership Against Terrorism ( C-TPAT ), as set out on the Boeing website referenced below. Customer agrees to include the International Shipment Routing Instructions, including C-TPAT requirements, in each contract between Customer and BFE supplier.

http://www.boeing.com/companyoffices/doingbiz/supplier_portal/index_general.html

 

AVI       BFE1
SA-3    BOEING PROPRIETARY    Page 4


The Boeing Company

P.O. box 3707

Seattle, WA 98124-2207

APPENDIX F

6-1162-DME-0901R2

Aerovias del Continente Americana S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Advance Payment Matters
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americana S.A. AV1ANCA (Customer) relating to Model 787-859 aircraft (the Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

[*]

 

1. Advance Payment Schedule - Block 1-1 Aircraft :

Notwithstanding the advance payment schedule set forth in Table 1-1 of the Purchase Agreement, Boeing agrees that Customer may make Advance Payments for the Block 1-1 Aircraft in accordance with the reduced schedule below described, as applied to the original Aircraft delivery schedule advance payment base prices (see Attachment A, hereto), subject to the terms and conditions further described herein:

 

Months Prior to Aircraft Delivery

   Amount Due per Aircraft
(Percent times
Advance Payment Base Price)
 

Definitive Agreement

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

Total

     [*]   

[*]

 

P.A. No. 3075       SA-3
   PROPRIETARY   


Page 2

Aerovias del Continente Americana S.A. AVIANCA

6-1162-DME-0901R2

 

2. Advance Payment Schedule - Block 1-2 Aircraft :

Notwithstanding the advance payment schedule set forth in Table 1-2 of the Purchase Agreement, Boeing agrees that Customer may make Advance Payments for the Block 1-2 Aircraft in accordance with the reduced schedule below [*]:

 

Months Prior to Aircraft Delivery

   Amount Due per Aircraft
(Percent times
Advance Payment Base Price)
 

Definitive Agreement

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

Total

     [*]   

[*]

 

3. Advance Payment Schedule - Block 1-3 Aircraft :

Notwithstanding the advance payment schedule set forth in Table 1-3 of the Purchase Agreement, Boeing agrees that Customer may make Advance Payments for the Block 1-3 Aircraft in accordance with the reduced schedule below [*]:

 

Months Prior to Aircraft Delivery

   Amount Due per Aircraft
(Percent times
Advance Payment Base Price)
 

Definitive Agreement

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

[*]

     [*]   

Total

     [*]   

[*]

 

4. Deferral Charges on Deferred Advance Payments :

[*]

 

5. [*]

[*]

 

6. [*]

[*]

 

P.A. No. 3075       SA-3
   PROPRIETARY   


Page 3

Aerovias del Continente Americana S.A. AVIANCA

6-1162-DME-0901R2

 

7. Confidential Treatment :

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential and. except as may otherwise be provided herein, will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity except to employees and legal counsel of Customer with a need to know the contents for purposes of helping Customer negotiate, perform and/or enforce this Letter Agreement and/or the Purchase Agreement and who understand they are not to disclose its contents to any other person or entity without the prior written consent of Boeing [*]

If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.

Very truly yours,

 

THE BOEING COMPANY
By  

/s/ Alan W. Smith

Its  

Attorney-In-Fact

 

ACCEPTED AND AGREED TO this
Date:   Sept. 26, 2102

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

 

By  

/s/ Elise

Its  

Legal Rep

 

P.A. No. 3075       SA-3
   PROPRIETARY   


APPENDIX A to Letter Agreement No. 6-1162-DME-0901R2

to Table 1-1 to Purchase Agreement No. 3075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe Model/MTOW:    787-8    [*]    Detail Specification:    7871B1-4102-B (7/9/2007)
Engine Model/Thrust:    TREN [*]    [*]    Airframe Price Base Year/Escalation Formula:    [*]
Airframe Price:       [*]    Engine Price Base Year/Escalation Formula:    [*]
Optional Features:       [*]       [*]
Sub-Total of Airframe and Features:       [*]    Airframe Escalation Data :    [*]
Engine Price (Per Aircraft):       [*]    Base Year Index (ECI):    [*]
Aircraft Basic Price (Excluding BFE/SPE):    [*]    Base Year Index (CPI):    [*]
Buyer Furnished Equipment (BFE) Estimate:    [*]    Engine Escalation Data :    [*]
Seller Purchased Equipment (SPE) Estimate:    [*]    Base Year Index (ECI):    [*]
         Base Year Index (CPI):    [*]
Refundable Deposit/Aircraft at Proposal Accept:    [*]      

 

[*]

   Number of
Aircraft
   Escalation
Factor
(Airframe)
   Escalation
Factor
(Engine)
   [*]    Escalation Estimate
Adv Payment Base
Price Per A/P
   Advance Payment Per Aircraft (Amts. Due/Mos. Prior to  Delivery):
                  [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]       [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]       [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]       [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]       [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]       [*]    [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]       [*]    [*]    [*]    [*]    [*]

 

AVI       Page 1
   Boeing Proprietary    SA-3


APPENDIX B to Letter Agreement No. 6-1162-DME-0901R2

to Table 1-2 to Purchase Agreement No. 3075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe Model/MTOW:    787-8    [*]    Detail Specification:    7871B1-4102-B (7/9/2007)
Engine Model/Thrust:    TREN [*]    [*]    Airframe Price Base Year/Escalation Formula:    [*]
Airframe Price:       [*]    Engine Price Base Year/Escalation Formula:    [*]
Optional Features:       [*]       [*]
Sub-Total of Airframe and Features:       [*]    Airframe Escalation Data :    [*]
Engine Price (Per Aircraft):       [*]    Base Year Index (ECI):    [*]
Aircraft Basic Price (Excluding BFE/SPE):    [*]    Base Year Index (CPI):    [*]
Buyer Furnished Equipment (BFE) Estimate:    [*]    Engine Escalation Data :    [*]
Seller Purchased Equipment (SPE) Estimate:    [*]    Base Year Index (ECI):    [*]
         Base Year Index (CPI):    [*]
Refundable Deposit/Aircraft at Proposal Accept:    [*]      

 

[*]

   Number of
Aircraft
   Escalation
Factor
(Airframe)
   Escalation
Factor
(Engine)
   [*]    Escalation Estimate
Adv Payment Base
Price Per A/P
   Advance Payment Per Aircraft (Amts. Due/Mos. Prior to  Delivery):
                  [*]    [*]    [*]    [*]

[*]

   I    [*]    [*]       [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]       [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]       [*]    [*]    [*]    [*]    [*]

[*]

   1    [*]    [*]       [*]    [*]    [*]    [*]    [*]

 

AVI       Page 2
   Boeing Proprietary    SA-3


The Boeing Company

P.O. box 3707

Seattle, WA 98124-2207

APPENDIX G

6-1162-DME-0903R2

Aerovias del Continente Americana S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Right to Purchase Additional Aircraft
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americana S.A. AV1ANCA (Customer) relating to Model 787-8 aircraft (Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All capitalized terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

 

1. Basic Purchase Rights

Subject to the terms and conditions contained herein, in addition to the Aircraft described in Table 1-1 to the Purchase Agreement as of the date of execution of this Letter Agreement, Customer will have the right to purchase (Basic Purchase Right) ten (10) additional Boeing Model 787-8 aircraft on the terms and conditions described in this Letter Agreement (Basic Purchase Right Aircraft). [*]

1.1 Delivery

The Basic Purchase Right Aircraft are offered subject to available position for deliver) during the period 01 January 2016 through 31 December 2019, with delivery of three (3) such Basic Purchase Right Aircraft to occur in each of the calendar years 2016 through 2018, and delivery of one (1) such Basic Purchase Right Aircraft to occur in calendar year 2019.[*]

[*]

1.2. Notice of Exercise and Payment of Deposit

Customer may exercise a Basic Purchase Right by giving written notice to Boeing (Notice of Exercise) of its desire to exercise such Basic Purchase Right not later than the first business day of the month that is [*] months prior to a requested delivery position. [*]

[*]

Customer will pay to Boeing by electronic transfer to the account specified below a deposit (Deposit) in the amount shown on Table 1-1 to the Purchase Agreement for each Basic Purchase Right Aircraft purchased pursuant to the Notice of Exercise. The deposit will be due and payable on the date of Customer’s acceptance of Boeing’s offered delivery position of a Basic Purchase Right Aircraft. The Deposit will be applied against the first advance payment due for each such Basic Purchase Right Aircraft.

[*]

 

P.A. No. 3075    BOEING PROPRIETARY    SA-3


Aerovias del Continente Americana S.A. AVIANCA   
6-1162-DME-0903R2    Page 4

 

1.3. Configuration

1.3.1 Subject to the provisions of Article 1.3.2, below, the configuration for the Basic Purchase Right Aircraft will be the detail specification for model 787-8 aircraft at the revision level in effect at the time of the Notice of Exercise. Such detail specification will be revised to include (i) changes applicable to such detail specification that are developed by Boeing between the date of the Notice of Exercise and the signing of the definitive amendment to the Purchase Agreement providing For the purchase of the Basic Purchase Rights Aircraft, ( ii) changes required to obtain required regulatory certificates, and (iii) other changes as mutually agreed by Boeing and Customer.

1.3.2 Boeing reserves the right to configure the Basic Purchase Right Aircraft starting from a different configuration specification, provided that it can achieve the same configuration which would result pursuant to the provisions of Article 1.3.1 [*].

1.4. Price

The Aircraft Price of each Basic Purchase Right Aircraft shall be determined in accordance with the provisions of the Purchase Agreement using Boeing’s then-current prices at the time of signing of the definitive agreement (Then-current Prices) . except that:

(i) [*]

(ii) [*]

Advance payments are required for each Basic Purchase Right Aircraft. The remainder of the Aircraft Price will be due at delivery of each Basic Purchase Right Aircraft. The methodology used to estimate the Advance Payment Base Prices will be that specified in the Purchase Agreement at the date of signing of this Letter Agreement, and the escalation indices used to estimate the Advance Payment Base Prices [*] the purchase of the [*] as such provisions are modified by any other letter agreement amending or supplementing the Purchase Agreement.

1.5. [*]

[*]

1.6. Definitive Purchase Agreement .

Following Customer’s decision to exercise a [*] or to exercise an [*] in accordance with the terms and conditions stated herein, the parties will, within [*] calendar days of such exercise (or, if applicable, within [*] days of Customer’s acceptance of an alternate delivery month), sign a definitive amendment to the Purchase Agreement providing for the purchase of such [*]. Such amendment will include the provisions then contained in the Purchase Agreement as modified to reflect the provisions of this Letter Agreement and any additional mutually agreed terms and conditions.

1.7. General Expiration of Rights .

Each Basic Purchase Right shall expire at the time of execution of the amendment to the Purchase Agreement providing for the purchase of the applicable [*] or, if no such amendment to the Purchase Agreement is executed 30 June of each of the calendar years 2015 through 2018 for any then unexercised [*] with respect to the first calendar year commencing after such date.

 

P.A. No. 3075    BOEING PROPRIETARY    SA-3


Aerovias del Continente Americana S.A. AVIANCA   
6-1162-DME-0903R2    Page 5

 

2. Special Purchase Rights

Subject to the terms and conditions contained herein, in addition to the Aircraft described in Table 1-3 to the Purchase Agreement as of the date of execution of Supplemental Agreement No. 3. Customer will have the right to purchase [*] Boeing Model 787-8 aircraft on the terms and conditions described in this Letter Agreement ([*]). Customer’s right of substitution with respect to any Boeing Model 787-8 aircraft pursuant to the Purchase Agreement (or any other letter agreement amending and supplementing the Purchase Agreement) shall be applicable to each such [*].

2.1 Delivery .

The [*] are offered subject to available position for delivery prior to 31 December 2019.

Boeing will provide Customer with [*] positions by [*]. At not less than [*].

2.2. Notice of Exercise and Payment of Deposit

Customer may exercise a Special Purchase Right under the same terms and conditions as described in Article 1.2 above for Basic Purchase Rights.

2.3 Configuration

With Customer’s exercise of a [*], the configuration will be determined under the [*].

2.4. Price

The Aircraft Price of each [*] shall be determined in accordance with the provisions of the Purchase Agreement using Boeing’s [*].

Advance payments are required for each [*]. The remainder of the Aircraft Price will be due at delivery of each [*]. The methodology to determine Advance Payment Base Prices and escalation will be based upon Boeing’s [*].

2.5 Definitive Purchase Agreement .

Following Customer’s decision to exercise a [*] in accordance with the terms and conditions stated herein, the parties will, within [*] calendar days of such exercise (or, if applicable, within [*] days of customer’s acceptance of an alternate delivery month), sign a definitive amendment to the Purchase Agreement providing for the purchase of such [*]. Such amendment will include the provisions then contained in the Purchase Agreement as modified to reflect the provisions of this Letter Agreement and any additional mutually agreed terms and conditions.

2.6. General Expiration of Rights .

Each [*] shall expire at the time of execution of the amendment to the Purchase Agreement providing for the purchase of the applicable [*] or, if no such amendment to the Purchase Agreement is executed. on 30 June of 2018 for any then unexercised [*].

 

3. Assignment .

The Purchase Rights described in this Letter Agreement are provided in consideration of Customer’s becoming the operator of each Purchase Right Aircraft, and cannot be assigned, in whole or in part. without the prior written consent of Boeing.

 

P.A. No. 3075    BOEING PROPRIETARY    SA-3


Aerovias del Continente Americana S.A. AVIANCA   
6-1162-DME-0903R2    Page 6

 

4. Confidential Treatment.

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential and, except as may otherwise be provided herein. will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity except to employees and legal counsel of Customer with a need to know the contents for purposes of helping Customer negotiate, perform and/or enforce this Letter Agreement and/or the Purchase Agreement and who understand they are not to disclose its contents to any other person or entity without the prior written consent of Boeing. [*]

If the foregoing correctly sets forth your understanding of our agreement with respect to the matters treated above, please indicate your acceptance and approval below.

Very truly yours,

 

THE BOEING COMPANY
By  

/s/ Alan W. Smith

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date:   Sept. 26, 2102
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

/s/ Elise

Its  

 

 

P.A. No. 3075    BOEING PROPRIETARY    SA-3


BOEING PROPRIETARY

 

Aerovias del Continente Americano S.A. AVIANCA   
Attachment A to 6-1162-DME-0903R2    Page    

Record of Purchase Right Aircraft Exercised

 

Document Description

  

Effective Date

   Basic Purchase
Rights Remaining
    Special Purchase
Rights Remaining
    Total Remaining
Purchase Rights
 

PA-3075

   03 October 2006      7        0        7   

SA-1

   28 March 2007      10        0        10   

SA-2

   21 November 2007      8        2        10   

SA-3

                    2012                      

 

* after the effect of exercise of the three (3) remaining Purchase Rights as a part of SA-3.

 

P.A. No. 3075    BOEING PROPRIETARY    SA-3


The Boeing Company

P.O. box 3707

Seattle, WA 98124-2207

APPENDIX H

6-1162-DME-0905R1

Aerovias del Continente Americana S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Escalation [*]
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americana S.A. AV1ANCA (Customer) relating to Model 787-8 (the Aircraft)

This Letter Agreement amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

Customer and Boeing have reached agreement regarding certain modifications to the Purchase Agreement as set forth below:

 

1. Airframe Escalation [*].

Boeing agrees that at the time of delivery of such Aircraft prior to [*], the Airframe Price Adjustment that is determined by Supplemental Exhibit AE1 to the Purchase Agreement applicable to the Airframe and Optional Features will [*] set forth in the Attachment A for an Aircraft delivering in the corresponding month and year. For example, in the event the [*] determined by Supplemental Exhibit AE1 for a particular delivery month and year is [*].

 

2. [*]

For deliveries occurring after [*] will be determined by using the Supplemental Exhibit AE1.

 

3. Credit Memorandum Escalation .

Any credit memorandum provided for under the Purchase Agreement that is subject to escalation shall be escalated to the scheduled month of delivery of the Aircraft in accordance with the same escalation provisions applicable to the Aircraft.

 

4. Confidential Treatment .

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential and. except as may otherwise be provided herein, will not, without the prior written consent of Boeing, disclose this Letter Agreement or any information contained herein to any other person or entity except to employees and legal counsel of Customer with a need to know the contents for purposes of helping Customer negotiate, perform and/or enforce this Letter Agreement and/or the Purchase Agreement and who understand they are not to disclose its contents to any other person or entity without the prior written consent of Boeing. [*]

 

P.A. No. 3075

SA-3


Aerovias del Continente Americana S.A. AVIANCA

6-1162-DME-0903R2

 

Very truly yours,

 

THE BOEING COMPANY
By  

/s/ Alan W. Smith

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date:   Sept. 26, 2102
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

/s/ Elise

Its  

Legal Rep

 

P.A. No. 3075    Page 2
SA-3   


Aerovias del Continente Americana S.A. AVIANCA

6-1162-DME-0905R1

 

ATTACHMENT A

 

[*]

 
[*]  
[*]  
=  
Base Date =   [*]

 

Date    Factor    Date    Factor
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
[*]    [*]    [*]    [*]
(Note: Validated on August 2, 2012)

Aerovias del Continente Americana S.A. AVIANCA

 

P.A. No. 3075

SA-3

AVI


Attachment B to 6-1162-DME-0905R1

[*] – Sample Calculation

 

Customer – AVI    A/P Contract Delivery    [*]
[*] Base Price       [*]
Post Contract Changes       [*]
Adjusted Airframe Price       [*]

[*]

Per Letter Agreement 6-1161-DME-0905R1 the [*] adjustment determined by using the escalation cap factor set forth in the Attachment A.

 

[*]            
Pa    =    [*]    -    P
Pa    =    [*]    -    [*]
Pa    =    [*]    -    [*]
Pa    =    [*]      

Supplemental Exhibit AE1

 

Pa    =    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
ECI    =    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
ECI-R    =    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
CPI    =    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
      [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
Pa    =    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
      [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
Pa    =    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
Pa    =    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
Pa       [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]    [*]
Pa       [*]                         Escalation Factor (rounded [*] places)    [*]

Aerovias del Continente Americano S.A. AVIANCA

Attachment B to 6-1162-DME-0905R1

 

P.A. No. 3075    Page 2
SA-3   


Attachment B to 6-1162-DME-0905R1

 

Summary

         

[*]

   =    [*]

[*]

   =    [*]

[*]

   =    [*]

[*]

      [*]

 

* Average of [*] – the last available SIC indices reported by the BLS.
** Boxed indices are fictitious values for the purposes of this example and are for illustrative purposes only. The monthly indices will be replaced with the BLS actual monthly ECI and CPI values for the [*] month prior to month of aircraft delivery, which in this example is [*] ECI and CPI are defined in supplemental Exhibit AE1 to the Purchase Agreement.

This example also applies to any applicable escalating credit memorandum.

 

P.A. No. 3075    Page 3
SA-3   


APPENDIX I

6-1167-DME-1347

Aerovias del Continente Americana S.A. AVIANCA

Centro Administrativo

Avenida El Dorado - No. 92-30

Bogota

Colombia

 

Subject:    Additional Special Matters [*]
Reference:    Purchase Agreement No. 3075 (the Purchase Agreement) between The Boeing Company (Boeing) and Aerovias del Continente Americana S.A. AV1ANCA (Customer) relating to Model 787-859 aircraft (Aircraft)

This letter agreement (Letter Agreement) amends and supplements the Purchase Agreement. All terms used but not defined in this Letter Agreement have the same meaning as in the Purchase Agreement.

 

1. [*]

[*]

[*]

 

2. Business Considerations

2.1 Credit Memoranda.

2.1.1 [*] Credit Memorandum.

With respect to each of the [*] Aircraft, Boeing will provide to Customer (a) an [*] credit memorandum ([*] Credit Memorandum) and (b) a [*] credit memorandum [*] Credit Memorandum), as applicable, in the following manner.

2.1.1.1 Boeing will provide to Customer an [*] Credit Memorandum at the time the [*] each in the amount of [*].

To illustrate, this will occur as follows:

[*]

2.1.1.2 Boeing will provide to Customer a [*] Credit Memorandum at the time of each Aircraft delivery each in the amount of [*].

To illustrate, this will occur as follows:

[*]

 

Boeing Proprietary


Attachment B to 6-1162-DME-0905R1

 

2.2 [*] Adustment .

2.2.1 [*]

2.2.2 [*]

(a)

(b)

(c)

2.2.3 [*]

2.2.3.1 [*]

2.2.3.2. [*]

2.2.3.3. [*]

2.2.3.4. [*]

(i) [*]

(ii) [*]

(iii) [*]

(iv) [*]

 

  2.3 [*]

Boeing shall provide Customer with a [*] Credit Memorandum at the time of delivery of each [*] Aircraft each in [*].

Boeing shall provide Customer with credit memoranda on or about      11 March of each

2.4 [*]

Boeing shall provide Customer with credit memoranda on or about [*].

 

3. Escalation and Application of Credit Memoranda

The various credit memoranda described herein will be subject to escalation per the specific terms stated above for each credit memoranda, and will escalate per the terms and conditions of Supplemental Exhibit AE1, Escalation Adjustment/Airframe and Optional Features, subject to the [*] terms and conditions described in letter agreement no. 6-1162-DME-0905R1 [*].

The credit memoranda to be provided under this Letter Agreement may be used by Customer for the purchase of Boeing goods and services or may be applied toward the purchase price of the Aircraft, but may not be used for the payment of advance payments for any Aircraft, [*]. All such credit memoranda amounts are stated in July [*] United States Dollars and are subject to the same escalation as applicable to the net Aircraft Basic Price.

 

P.A. No. 3075    Page 2
SA-3   


Attachment B to 6-1162-DME-0905R1

 

4. Assignment of Credit Memoranda

The Credit Memoranda described in this Letter Agreement are provided as a financial accommodation to Customer in consideration of Customer becoming the operator of the Aircraft, and cannot be assigned, in whole or in part, without the prior written consent of The Boeing Company, which will not be unreasonably withheld.

 

5. Confidential Treatment

Customer understands that certain commercial and financial information contained in this Letter Agreement is considered by Boeing as confidential and, except as may otherwise be provided herein, will not, without the prior written consent of Boeing. disclose this Letter Agreement or any information contained herein to any other person or entity except to employees and legal counsel of Customer with a need to know the contents for purposes of helping Customer negotiate, perform and/or enforce this Letter Agreement and/or the Purchase Agreement and who understand they are not to disclose its contents to any other person or entity without the prior written consent of Boeing.

Very truly yours,

 

THE BOEING COMPANY
By  

/s/ Alan W. Smith

Its  

Attorney-In-Fact

ACCEPTED AND AGREED TO this
Date:   Sept. 26, 2102
AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

/s/ Elise

Its  

Legal Rep

 

P.A. No. 3075    Page 3
SA-3   

Exhibit 10.9.4

SUPPLEMENTAL AGREEMENT NO. 4

to

Purchase Agreement No. 3075

between

THE BOEING COMPANY

and

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA

Relating to Boeing Model 787-859 Aircraft

THIS SUPPLEMENTAL AGREEMENT, is entered into as of the 11 th day of January 2013, by and between THE BOEING COMPANY, a Delaware corporation with its principal offices in the City of Seattle, State of Washington, USA (Boeing), and Aerovias del Continente Americano S.A. AVIANCA, a company organized under the laws of the country of Colombia (Buyer):

Recitals

1) Boeing and Buyer entered into Purchase Agreement No. 3075, dated 03 October 2006, as amended and supplemented (the Agreement) relating to the purchase and sale of fifteen (15) Boeing Model 787-859 aircraft.

2) Buyer has requested and Boeing has agreed to defer the delivery of two aircraft that are currently scheduled to deliver in the months of [*] 2014 to the months of [*] 2014

Agreement

The parties agree to amend the Agreement as follows:

 

1. Table of Contents .

Remove and replace, in its entirety, the Table of Contents, with a new Table of Contents (attached hereto) to reflect the incorporation of this Supplemental Agreement No. 4 (SA-4) into the Purchase Agreement.

 

2. Tables .

Remove and replace Table 1-1 to Purchase Agreement No. 3075, Aircraft Delivery. Description. Price and Advance Payments , with the new Table I-I (attached hereto) to reflect the revised scheduled months of Aircraft delivery described in recital number 2 above.

 

PA3075

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2

 

The Purchase Agreement, Exhibits and Letter Agreements shall be deemed amended to the extent herein provided and as so amended shall continue in full force and effect. In the event of any inconsistency between the above provisions and those provisions contained in the Purchase Agreement, the terms of this Supplemental Agreement will govern and control.

EXECUTED IN DUPLICATE as of the day and year first above written.

 

THE BOEING COMPANY
By  

[*]

Its  

Attorney-In-Fact

AEROVIAS DEL CONTINENTE AMERICANO S.A. AVIANCA
By  

/s/ Elise

Its  

Secretary

 

PA3075

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3

 

TABLE OF CONTENTS

 

         SA
NUMBER
 

ARTICLES

    

1.

 

Quantity, Model and Description

  

2.

 

Delivery Schedule

  

3.

 

Price

  

4.

 

Payment

  

5.

 

Miscellaneous

  

TABLE

  

1-1..

 

Aircraft Information Table

     SA-4   

1-2.

 

Aircraft Information Table

     SA-3   

1-3

 

Aircraft Information Table

     SA-3   

EXHIBIT

  

A.

 

Aircraft Configuration

  

B.

 

Aircraft Delivery Requirements and Responsibilities

  

SUPPLEMENTAL EXHIBITS

  

AEI.

 

Escalation Adjustment/Airframe and Optional Features

  

BFEI

 

Buyer Furnished Equipment Variables

     SA-3   

CS1.

 

Buyer Support Document

  

EEI .

 

Engine Escalation/Engine Warranty and Patent Indemnity

     SA-2   

SLP1.

 

Service Life Policy Components

  

 

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4

 

         SA
NUMBER
 

LETTER AGREEMENTS

  

3075-01

 

787 Open Configuration Matters

  

3075-02

 

787 Spare Parts Commitment

  

3075-03

 

787 Spare Parts Initial Provisioning

  

3075-04

 

Aircraft Model Substitution

  

3075-05

 

Demonstration Flight Waiver

  

3075-06

 

Schedule Reliability

  

3075-07

 

Spare Parts – Flight Crew Training

  

6-1162-DME-0895

 

AD Cost Materials

  

6-1162-DME-0896

 

Performance Guarantees and Attachments

     SA-2   

6-1162-DME-0897

 

Alternate Engine Selection

     SA-2   

6-1162-DME-0898

 

GEnx Performance Retention and Attachment

     SA-2   

6-1162-DME-0899

 

Trent Performance Retention and Attachment

  

6-1162-DME-0900

 

Maintenance Cost Guarantees and Attachment

  

6-1162-DM E-0901R2

 

Advance Payment Matters and Attachments A & B

     SA-3   

6-1162-DME-0902

 

Promotional Support

     SA-1   

6-1162-DME-0903R2

 

Purchase Rights

     SA-3   

6-1162-DME-0904

 

Special Matters

  

6-1162-DME-0905R1

 

Escalation [*]

     SA-3   

[*]

    

[*]

    

6-1162-DME-0906R1

 

Customer Services Matters and Attachment

     SA-2   

6-1162-DME-0907

 

AGTA Matters

  

[*]

    

6-1167-DME-1347

 

Additional Special Matters –[*]

     SA-3   

RECORD OF SUPPLEMENTAL AGREEMENTS

 

SA-1      28 March    2007   
SA-2      21 November    2007   
SA-3      2012    2012   
SA-4           

 

PA3075

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APPENDIX B

Supplemental Agreement No. SA-2

Table 1-1 to Purchase Agreement No. 3075

Aircraft Delivery, Description, Price and Advance Payments

 

Airframe Model/MTOW:                 787-8    [*]   Detail Specification:   787B1-1102-B (7/9/2007)
Engine Model/Thrust:        TRENT [*]    [*]   Airframe Price Base Year/Escalation Formula:   [*]
Airframe Price:    [*]   Engine Price Base Year/Escalation Formula:   [*]
Optional Features:    [*]    
  

 

   
Sub-Total of Airframe and Features:    [*]   Airframe Escalation Data :   [*]
Engine Price (Per Aircraft):    [*]   Base Year Index (ECI):   [*]
Aircraft Basic Price (Excluding BFE/SPE):    [*]   Base Year Index (CPI):   [*]
  

 

   
Buyer Furnished Equipment (BFE) Estimate:    [*]   Engine Escalation Data :   [*]
Seller Purchased Equipment (SPE) Estimate:    [*]   Base Year Index (ECI):   [*]
     Base Year Index (CPI):   [*]
Refundable Deposit/Aircraft at Proposal Accept:    $150,000    

 

Delivery Date

   Number of
Aircraft
   Escalation
Factor
(Airframe)
  Escalation
Factor
(Engine)
  Escalation Estimate
Adv Payment Base
Price Per  A/P
    Advance Payment Per Aircraft (Amts. Due/Mos. Prior to  Delivery):  
            [*]     [*]     [*]     [*]  

[*]

   I    [*]   [*]     [*     [*     [*     [*     [*

[*]

   1    [*]   [*]     [*     [*     [*     [*     [*

[*]

   I    [*]   [*]     [*     [*     [*     [*     [*

[*]

   I    [*]   [*]     [*     [*     [*     [*     [*

[*]

   I    [*]   [*]     [*     [*     [*     [*     [*

[*]    

   I    [*]   [*]     [*     [*     [*     [*     [*

[*]

   I    [*]   [*]     [*     [*     [*     [*     [*

[*]

   I    [*]   [*]     [*     [*     [*     [*     [*

[*]

   I    [*]   [*]     [*     [*     [*     [*     [*

[*]

   I    [*]   [*]     [*     [*     [*     [*     [*

[*]

   I    [*]   [*]     [*     [*     [*     [*     [*
  

 

  

 

 

 

 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total:

   10    [*]   [*]     [*     [*     [*     [*     [*
  

 

  

 

 

 

 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

 

 

Boeing Proprietary

 

SA-4

Page 1

Exhibit 10.10

SALE AND PURCHASE CONTRACT

BETWEEN

AVIONS DE TRANSPORT REGIONAL G.I.E.

as Seller

AND

AVIANCATACA HOLDING S.A.

as Buyer

IN RESPECT OF

FIFTEEN (15) FIRM NEW ATR 72-600 AIRCRAFT

DC/N 750/12


Execution version

 

ATR 72-600 SALE AND PURCHASE CONTRACT

CONTENTS

 

1.

  

DEFINITIONS AND INTERPRETATION

     6   

2.

  

SALE AND PURCHASE

     15   

3.

  

SPECIFICATION CHANGES

     16   

4.

  

CERTIFICATION & REGULATORY CHANGES

     18   

5.

  

PRICE

     21   

6.

  

TERMS OF PAYMENT

     23   

7.

  

LEFT INTENTIONALLY BLANK

     25   

8.

  

PLANT REPRESENTATIVES – INSPECTION

     26   

9.

  

AIRCRAFT SUPPLY PROGRAM

     27   

10.

  

AIRCRAFT ACCEPTANCE PROCEDURE

     29   

11.

  

TRANSFER OF TITLE, COLLECTION AND FERRY

     32   

12.

  

EXCUSABLE DELAY

     34   

13.

  

INEXCUSABLE DELAY

     36   

14.

  

INDEMNITY AND INSURANCE

     38   

15.

  

BUYER FURNISHED EQUIPMENT AND INFORMATION

     41   

16.

  

CUSTOMER SUPPORT SERVICES, GUARANTEES AND WARRANTIES

     43   

17.

  

ADDITIONAL AIRCRAFT

     44   

18.

  

MISCELLANEOUS

     45   

19.

  

TAXES & LICENSES

     46   

20.

  

PATENT INDEMNITY

     47   

21.

  

TERMINATION

     48   

22.

  

TERMINATION PROCEDURE

     50   

23.

  

CONFIDENTIAL NATURE OF CONTRACT AND INFORMATION

     51   

24.

  

COLLATERAL AGREEMENTS AND REPRESENTATIONS

     53   

25.

  

ASSIGNMENT AND TRANSFER OF CONTRACT

     55   

26.

  

APPLICABLE LAW

     57   

27.

  

EXPORT CONTROL    

     58   

 

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Execution version

 

28.

  

NOTICES

     59   

29.

  

WAIVER, RELEASE AND RENUNCIATION

     61   

EXECUTION PAGE

     62   

 

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Execution version

 

APPENDIX A

  

SPECIFICATION

     63   

[*]

     

APPENDIX C

  

LIST OF DOCUMENTS EXCHANGED ON DELIVERY

     65   

APPENDIX D

  

SPARE PARTS PROCUREMENT

     67   

APPENDIX E

  

WARRANTIES

     75   

APPENDIX F

  

TECHNICAL PUBLICATIONS

     85   

APPENDIX G

  

CUSTOMER SUPPORT REPRESENTATIVE

     92   

APPENDIX H

  

START-UP TEAM

     93   

APPENDIX I

  

TRAINING

     96   

APPENDIX J

  

PAYMENT INSTRUCTIONS

     104   

[*]

     

APPENDIX Q

  

ADDITIONAL AIRCRAFT

     106   

APPENDIX R

  

FORM OF AIRCRAFT CERTIFICATE OF ACCEPTANCE

     108   

APPENDIX S

  

FORM OF AIRCRAFT BILL OF SALE

     109   

APPENDIX T

  

PERFORMANCE - ANNEX TO APPENDIX L

     179   

 

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Execution version

 

THIS SALE AND PURCHASE CONTRACT is made this 18 th day of January 2013 (the “ Contract ”)

BETWEEN :

 

(1) AVIONS DE TRANSPORT REGIONAL G.I.E. , a “ Groupement d’Interêt Economique ” governed by the laws of France, identified under number 323 932 236 RCS Toulouse, the head office of which is located at 1, Allée Pierre Nadot, 31712 BLAGNAC CEDEX, FRANCE (hereinafter referred to as “ Seller ”, which expression shall include its successors or permitted assignees unless the context otherwise requires) on the one part;

AND

 

(2) AVIANCATACA HOLDING S.A., a company created and existing under the laws of the Republic of Panama having its registered office at Calle Aquilino de la Guardia No. 8, Ciudad de Panamá (hereinafter referred to as “ Buyer ”) on the other part.

(hereinafter referred to as individually the “ Party ” and collectively the “ Parties ”).

WHEREAS:

 

(A) Seller is a “ Groupement d’Intérêt Economique ” governed by articles L251-1 and following of the French commercial code.

 

(B) The members of Seller are:

 

  (1) EADS ATR, SA identified under number 393 146 550 RCS Toulouse, the principal office of which is at 5, Avenue Georges Guynemer, 31770 Colomiers, France; and

 

  (2) ALENIA AERMACCHI S.p.A the principal office of which is at Via Ing. Paolo Foresio n.1, 21040 Venego Superiore (VA), (NA), Italy.

 

(C) Seller wishes to sell and Buyer wishes to purchase on a firm basis fifteen ( 15 ) new ATR 72-600 aircraft and on an optional basis up to fifteen (15) ATR -600 series aircraft.

 

(D)

Seller and the Buyer’s Subsidiaries have entered into Heads of Agreement dated November 27 th , 2012, recording their agreement on the matters contained therein with respect to the transaction covered in this Contract (the “ HoA ”).

NOW, THEREFORE, IT IS AGREED AS FOLLOWS:

 

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Execution version

 

1. DEFINITIONS AND INTERPRETATION

 

1.1 Definitions

In this Contract the following words and phrases have the meanings indicated:

 

Acceptance Flight Tests    has the meaning assigned to it in Clause 10.2 of this Contract.
Additional Aircraft    means one or more, as the context so requires, of up to fifteen ( 15 ) ATR – 600 series aircraft that Buyer has the right to acquire in accordance with the terms of Appendix Q ( Additional Aircraft ).
Additional Aircraft Schedule Delivery Date    has the meaning assigned to it in Clause 4 of Appendix Q ( Additional Aircraft ) of this Contract.
Affected Party    has the meaning assigned to it in Clause 12.2 of this Contract.
Affiliate    means, with respect to any Party, any corporate or other entity that controls or is controlled by or is under common control with such Party.
Aircraft    means one or more, as the context so requires, of the Firm Aircraft and/or Additional Aircraft exercised by Buyer and as more particularly described in the Specification in Appendix A ( Specification ).
Airworthiness Authority    means in respect of any jurisdiction the government entity, which under the laws of such jurisdiction has control over civil aviation or the registration, airworthiness, operation, design, training or maintenance of aircraft in such jurisdiction.
Applicable Rate    has the meaning assigned to it in Clause 6.7 of this Contract.
ATC    means ATR Training Center S.A.R.L located at Seller’s headquarters in Toulouse, France.
ATR 42-500 Type Certificate    means a certificate issued by the DGAC as primary certification authority under N° TC 176 and transferred to EASA under number A.084, that certifies that the ATR 42-500 type complies with the applicable type certification basis and environmental protection requirements when operated within the conditions and limitations specified on the associated type certificate data sheet (TCDS) N°A.084.
ATR 42-600    means the ATR 42-500 variant commercially known as ATR 42-600.    

 

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Execution version

 

ATR 42-600 Base Purchase Price    has, in respect of each ATR 42-600 Aircraft, the meaning assigned to it in Clause 5.2 of this Contract.
ATR 42-600 Design Changes    has, in respect of each ATR 42-600 Aircraft, the meaning assigned to it in Clause 4.1.
ATR 42-600 Technical Specification    means the ATR 42-600 technical specification defined in reference document DT 1096/12 – Edition 1 / Revision 1 dated October 2012 or its latest update, which defines an ATR 42-600 aircraft powered by two Pratt & Whitney PW127M engines with Hamilton Standard 568F six bladed propellers.
ATR 72-21A Type Certificate    means a certificate issued by the DGAC as primary certification authority under N° TC 176 and transferred to EASA under number A.084, that certifies that the ATR 72-212A type complies with the applicable type certification basis and environmental protection requirements when operated within the conditions and limitations specified on the associated type certificate data sheet (TCDS) N°A.084.
ATR 72-600    means the ATR 72-212A variant commercially known as ATR 72-600.
ATR 72-600 Base Purchase Price    has, in respect of each ATR 72-600 Aircraft, the meaning assigned to it in Clause 5.1 of this Contract.
ATR 72-600 Design Changes    Has, in respect of each ATR 72-600 Aircraft, the meaning assigned to it in Clause 4.1.
ATR 72-600 Technical Specification    means the ATR 72-600 technical specification defined in reference document DT 1095/12 – Edition 1 / Revision 1 dated October 2012 or its latest update, which defines an ATR 72-600 aircraft powered by two Pratt & Whitney PW127M engines with Hamilton Standard 568F six bladed propellers.
Authorised Representative    means an individual having full power and authority to sign on behalf of Buyer, as demonstrated by being named on a specific list provided by Buyer, or, an individual having full power and authority to sign on behalf of Seller, as demonstrated by evidence of such authority if requested.    

 

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Execution version

 

Avianca    means Aerovias del Continente Americano, S.A Avianca, a sociedad anonima created and existing under the laws of Colombia having its registered office at Avenida Calle 26 No 59-15, Bogota – Colombia.
Balance Payment    has, in respect of each Aircraft, the meaning assigned to it in Clause 6.2.4 of this Contract.
Base Purchase Price    means, as the context so requires, the ATR 42-600 Base Purchase Price or the ATR 72-600 Base Purchase Price.
Bill of Sale    means a document in respect of the Aircraft issued at the time of transfer of title to the Aircraft from Seller to Buyer in accordance with Clause 11 ( Transfer of Title, Collection and Ferry ) in, or substantially in, the form set out in Appendix S ( Form of Aircraft Bill of Sale ).
Business Days    means days on which banks in New York City, Paris Bogota and San Salvador are open for transactions of normal banking business or, where used in relation to a payment which is a day on which banks are open for business in France or in the Buyer’s country and in New York, as appropriate.
Buyer Default    has the meaning assigned to it in Clause 21.3 of this Contract.
Buyer Furnished Equipment ” or “ BFE    means the equipment (if any) listed as Buyer Furnished Equipment in Appendix A ( Specification ).
Buyer’s Indemnified Parties    means Buyer and/or its lawful successors and/or assigns and/or their respective subsidiaries, officers, directors, employees, agents.
Buyer Installed Equipment ” or “ BIE   

means any equipment, parts, components purchased by Buyer and installed on an Aircraft by Buyer on or after Delivery of such Aircraft.

 

The following parts are considered BIE: First aid kit, medical kit, bio-hazard kit, jungle kit, wheelchair, emergency instruction cards, Braille emergency instruction cards, passenger life vests and any other similar equipment that Buyer must install on the Aircraft to satisfy operational requirements necessary to obtain a certificate of airworthiness issued by the Operator’s Airworthiness Authority.

Buyer’s Subsidiaries    means each and/or both of Avianca and Taca.    

 

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Execution version

 

Certificate of Acceptance    means a certificate in respect of the Aircraft issued at the time of acceptance of each Aircraft at the Delivery Location in accordance with Clause 10 ( Aircraft Acceptance Procedure ) in, or substantially in, the form set out in Appendix R ( Form of Aircraft Certificate of Acceptance ).
Change    means a change to the Specification or Aircraft required by Buyer’s Airworthiness Authority, as more fully described in Clause 4.4 of this Contract.
Commitment Letter    has the meaning assigned to it in Clause 10.7 of this Contract.
Confidential Information    has the meaning assigned to it in Clause 24.1 of this Contract.
Country of Registration    means the country of registration of the Aircraft.
Conversion Right    has the meaning assigned to it in Clause 9.6 of this Contract.
Delivery Date    means the actual date on which an Aircraft is delivered to and accepted by Buyer.
Delivery Location    means the ATR premises in Toulouse, France.
DGAC    means the Direction Generale de l’Aviation Civile of the Transport Ministry of France.
Design Changes    means, as the context so requires, the ATR 42-600 Design Changes or the ATR 72-600 Design Changes.
Development Change    has the meaning assigned to it in Clause 3.2.1 of this Contract.
Dollars ”, “ USD ” or the sign “ $    means the lawful currency for the time being of the United States of America.
EASA    means the European Aviation Safety Agency of the European Community.
Effective Date    means the date first written above.
Excess IP Spares    has the meaning assigned to it in Clause 2.5 of Appendix D ( Spare Parts Procurement ).
Excusable Delay    has the meaning assigned to it in Clause 12.1 of this Contract.    

 

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Execution version

 

Export Certificate of Airworthiness    means, in respect of each Aircraft, a certificate of airworthiness for export valid for the transport category (passenger) as issued by the DGAC by delegation and in compliance with EASA regulations.
Export Laws    has the meaning assigned to it in Clause 27.1 of this Contract.
FAA    means the Federal Aviation Administration of the United States Department of Transportation.
Firm Aircraft    means one or more, as the context so requires, of the fifteen ( 15 ) ATR 72-600 aircraft to be firmly acquired hereunder.
First Pre-Delivery Payment    means, in respect of each Aircraft, the payment to be made by Buyer to Seller in accordance with Clause 6.2.1 of this Contract for an amount equal to [*] of the Base Purchase Price of the Aircraft.
Inexcusable Delay    has the meaning assigned to it in Clause 13.1 of this Contract.
Interface Problem    has the meaning assigned to it in Clause 3.1 of Appendix E ( Warranties ).
IP Conference    has the meaning assigned to it in Clause 2.3 of Appendix D ( Spare Parts Procurement ).
IP Data    has the meaning assigned to it in Clause 2.2 of Appendix D ( Spare Parts Procurement ).
IPPOs    has the meaning assigned to it in Clause 2.1 of Appendix D ( Spare Parts Procurement ).
IP Spares    has the meaning assigned to it in Clause 2.1 of Appendix D ( Spare Parts Procurement ).
Manuals    has the meaning assigned to it in Clause 16.2 of this Contract.
Manufacturer    means Avions de Transport Regional G.I.E. (“ ATR ”).
Members    means the members of ATR, currently EADS ATR S.A. and ALENIA AERMACCHI S.p.a.
Notified Party    has the meaning assigned to it in Clause 12.3 of this Contract.
Operator    means any entity, including Buyer, which will be operating the Aircraft after the Delivery Date.
Operator’s Airworthiness Authority    means the civil aviation authority of the Operator’s Country.    

 

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Execution version

 

Operator’s Country    means the civil aviation authority of the Operator’s Country.
Postponement Right    has the meaning assigned to it in Clause 9.5 of this Contract.
Purchase Right Exercise Notice    has the meaning assigned to it in Clause 2 of Appendix Q ( Additional Aircraft ) of this Contract.
Pre-Delivery Payment(s)    means any or all of the First Pre-Delivery Payment, the Second Pre-Delivery Payment and / or the Third Pre-Delivery Payment, as the context may require.
Regulatory Change    has the meaning assigned to it in Clause 4.3 of this Contract.
Scheduled Delivery Date    has the meaning assigned to it in Clause 9.2 of this Contract.
Scheduled Delivery Month    has the meaning assigned to it in Clause 9.1 of this Contract.
Second Pre-Delivery Payment    means, in respect of each Aircraft, the payment to be made by Buyer to Seller in accordance with Clause 6.2.2 of this Contract for an amount equal to [*] of the Base Purchase Price of the Aircraft.
Seller’s Airworthiness Authority    means the DGAC and/or EASA, as applicable.
Seller’s Indemnified Parties    means Seller and/or its Members, and/or their respective lawful successors and/or assigns, and/or their respective subsidiaries, officers, directors, employees, agents.
Seller Part    means each part and component of the Aircraft that is designed and / or manufactured by Seller, that bears Seller’s “S” part number and for the purpose of Appendix E ( Warranties ) the value of which (by reference to the applicable catalogue prices at the time a Warranty Claim is placed with respect to such Seller Part) exceeds [*].
Seller’s Warranties    means, in respect of each Aircraft, the warranties granted by Seller pursuant to Clause 1 of Appendix E ( Warranties ).
Service Life Policy    means, in respect of each Aircraft, the service life policy set out in Clause 4 Appendix E ( Warranties ).    

 

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Execution version

 

Spare Parts Catalogue    has the meaning assigned to it in Clause 6.1 of Appendix D ( Spare Parts Procurement ).
Specification    means the Technical Specification, as amended to incorporate the agreed changes set forth in Appendix A ( Specification ) and any subsequent Development Change or SCN in accordance with the terms of this Contract.
Specification Change Notice ” or “ SCN    means a written change to the Specification, as more fully described in Clause 3.1 of this Contract.
Taca    means Grupo Taca Holdings Limited a company incorporated and existing under the laws of Bahamas having its registered office at Wintherbotham Place, Marlborough & Queen Streets, P. O. Box N-3206, Nassau – The Bahamas.
Technical Publications    has the meaning assigned to it in Appendix F ( Technical Publications ).
Technical Specification    means, as the context so requires, the ATR 42-600 Technical Specification or the ATR 72-600 Technical Specification.
Third Pre-Delivery Payment    means, in respect of each Aircraft, the payment to be made by Buyer to Seller in accordance with Clause 6.2.3 of this Contract for an amount equal to [*] of the Base Purchase Price of the Aircraft.
Training Conference    has the meaning assigned to it in Clause 1.4 of Appendix I ( Training ).
Type Certificate    means, as the context so requires, the ATR 42-500 Type Certificate or the ATR 72-212A Type Certificate.
Vendor    means, collectively or individually, the engine manufacturer, the propeller manufacturer, the landing gear manufacturer and all other manufacturers of parts other than Seller Parts.
Vendor Part    means each part, component or accessory (including the engines, the propellers and the landing gears) that is designed and / or manufactured by a Vendor, selected by Seller for installation in the Aircraft, and that bears the Vendor’s part number.
Vendor’s Warranties    has, in respect of each Aircraft, the meaning assigned to it in Clause 2 of Appendix E ( Warranties ).
Vendor Warranty Manual    means the manual compiling details of the warranties granted by the Vendors to all ATR aircraft operators including Buyer.    

 

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Execution version

 

Warranty Claim    means a claim made by Buyer under Clause 1 of Appendix E ( Warranties ) and which shall be in Seller’s form or, if Buyer so prefers, in its own form, provided such form contains at least the following data:
   (a)    Description of defect and action taken, if any;
   (b)    Date of incident and/or of removal date;
   (c)    Description of the defective part;
   (d)    Part Number (P/N);
   (e)    Serial Number (S/N);
   (f)    Position on Aircraft, according to the Catalogue Sequence Number (“CSN”) of the Illustrated Parts Catalogue (“IPC”);
   (g)    Total flight hours or calendar time as applicable;
   (h)    Time Since last Overhaul (“TSO”);
   (i)    Aircraft registration number;
   (j)    Aircraft total Flight Hours (“FH”) and/or number of landings;
   (k)    Location to which warranty item should be returned;
   (l)    Claim number;
   (m)    Date of claim;
   (n)    Delivery date of Item to Buyer (“DIB”).

 

1.2 Interpretation

 

  1.2.1 Save as otherwise expressly indicated to the contrary, any reference to any “ Clause ” or “ Section ” or “ Appendix ” or “ Exhibit ” shall be construed as a reference to a Clause or Section or Appendix or Exhibit of, or to, this Contract or to any of its Appendix or Exhibit, as the case may be.

 

  1.2.2 Clauses headings and the contents pages are for ease of reference only and shall not form part of this Contract.

 

  1.2.3 Words importing the plural shall include the singular and vice versa.

 

  1.2.4 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.

 

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Execution version

 

  1.2.5 The term “including” when used in this Contract means “including without limitation” except when used in the computation of time periods.

 

  1.2.6 Technical and trade terms not otherwise defined herein will have the meanings assigned to them as generally accepted in the airline industry;

 

  1.2.7 References to acts, statutes and law includes laws, legislation, statutes amending, consolidating and replacing the statutes referred to and all regulations, rules, by-laws made under those acts, statutes or law.

 

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Execution version

 

2. SALE AND PURCHASE

 

2.1 Subject to the terms and conditions set forth in this Contract, Seller agrees to sell and deliver and Buyer agrees to purchase and take delivery of fifteen ( 15 ) Aircraft upon the terms and conditions contained in this Contract, together with the Appendixes attached hereto which shall be deemed to be part of this Contract.

In addition, subject to the terms and conditions set forth in this Contract, Buyer may acquire up to fifteen ( 15 ) Additional Aircraft from Seller in accordance with the terms of Appendix Q ( Additional Aircraft ) hereto.

 

2.2 The sale and purchase of spare parts is dealt with in Appendix D ( Spare Parts Procurement ) appended hereto.

 

2.3 Each Aircraft and each part of the Aircraft shall:

 

  2.3.1 Be constructed to the standard defined in the Specification in accordance with and under the relevant DGAC Part 21 approval in compliance with EASA regulations;

 

  2.3.2 Be inspected, tested and found conform to the Type Certificate (as evidenced by the issuance of an Export Certificate of Airworthiness);

 

  2.3.3 Be tendered for acceptance with an Export Certificate of Airworthiness and in a condition:

 

  (i) Qualifying for the issuance of a certificate of airworthiness issued by Operator’s Airworthiness Authority, subject always to Buyer installing the BIE in order for such certificate of airworthiness to be issued;

 

  (ii) Complying with the Seller’s Warranties set forth in clause 1.1, 1.2 and 1.3 of Appendix E ( Warranties );

 

  (iii) Complying with the weight requirements set forth in Appendix K ( Manufacturer Empty Weight Guarantee ), subject to the provisions of said Appendix L, including but not limited to Clause 1 or Clause 3 (as the case may be) thereof; and

 

  (iv) Complying with the performance requirements set forth in each category of Appendix L ( Performance Guarantee ), subject to the provisions of said Appendix L, including but not limited to Clause 1 or Clause 3 (as the case may be) thereof.

 

2.4 Buyer acknowledges that it has received a copy of the Technical Specification and confirms that it has knowledge of such Technical Specification.

 

2.5 In case of contradiction and/or inconsistency between the Technical Specification and any other part of this Contract, the latter shall prevail.

 

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3. SPECIFICATION CHANGES

 

3.1 Specification Changes Notices

 

  3.1.1 Changes to the Specification shall be made only through a Specification Change Notice, which shall be delivered by Seller to Buyer and which shall set forth in sufficient details:

 

  (i) The particular changes to be made therein;

 

  (ii) The effect, if any, of such changes on design, performance, weight, balance, authorised payload, zero fuel weight, interchangeability, date of delivery; and

 

  (iii) The cost to Buyer (if any) of such SCN quoted in [*] economic conditions reflecting a theoretical delivery in [*].

The SCN shall be binding upon each Party when approved and signed by their Authorised Representative unless otherwise specified in this Contract.

 

  3.1.2 Buyer may request a change to the Specification by notice in writing to Seller. If Buyer’s requested change requires preliminary studies, mock-ups and similar work, Seller shall provide Buyer with a firm quotation of the cost and lead-time of such studies, mock-ups and similar work. After approval by Buyer of such firm quotation in writing, Seller shall perform the preliminary studies, mock-ups and similar work at Buyer’s expense, whether the latter subsequently agrees or not to the change.

In the event Buyer does not agree to implement the initially requested change after approving the firm quotation for the preliminary studies, mock-ups and similar work, the out-of-pocket expenses specified in the firm quotation that are incurred by Seller up until the date on which Buyer has notified that it does not agree to implement the initially requested change shall be paid by Buyer to Seller upon submission of Seller’s invoice. In the event Buyer agrees to the change by executing a SCN, the expenses specified in the firm quotation for the preliminary work, mock-ups and / or similar work approved by Buyer shall be added to the cost of the Buyer requested SCN.

 

3.2 Development Changes

 

  3.2.1 The Technical Specification may also be revised without Buyer’s consent to incorporate development changes (the “ Development Changes ”) provided that such changes do not adversely affect in any material respect the design weights, balance, guaranteed weight as set out in Appendix K ( Manufacturer Empty Weight Guarantee ), guaranteed performance as set out in Appendix L ( Performance Guarantee ), guaranteed dispatch reliability as set out in Appendix M ( Dispatch Reliability Guarantee ), guaranteed scheduled completion rate as set out in Appendix N ( Schedule Completion Guarantee ), economic performance, operational safety, time of delivery, or interchangeability or replaceability requirements of the Aircraft.

 

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  3.2.2 Seller shall notify Buyer of all Development Changes made pursuant to this Clause 3.2, by furnishing a short description of such changes and supplying Buyer the modified pages of the Technical Specification if any.

 

  3.2.3 For the avoidance of doubt, any Development Change will be at Seller’s cost and shall not increase the Purchase Price.

 

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4. CERTIFICATION & REGULATORY CHANGES

 

4.1 Seller shall ensure that, on each Delivery Date:

 

  (i) It has obtained the ATR 72-212A Type Certificate from the DGAC the primary certification authority;

 

  (ii) It has obtained the certification by the EASA (through their inclusion in the relevant type certificate data sheet) for any and all non-optional changes between the ATR 72-600 and the ATR 72-212A (the “ ATR 72-600 Design Changes ”);

 

  (iii) It has obtained the ATR 42-500 Type Certificate from the DGAC the primary certification authority;

 

  (iv) It has obtained the certification by the EASA (through their inclusion in the relevant type certificate data sheet) for any and all non-optional changes between the ATR 42-600 and the ATR 42-500 (the “ ATR 42-600 Design Changes ”);

 

  (v) It will obtain prior to delivery for each Aircraft an Export Certificate of Airworthiness in accordance with Clause 2.3.3 of this Contract.

 

4.2 Provided always that Buyer notifies to Seller at least [*] prior to the Scheduled Delivery Date the Operator’s Country of any Aircraft, Seller shall, at its own cost and expense, obtain from Operator’s Airworthiness Authority, the validation of ATR 42-500 Type Certificate and/or the ATR 42-600 Design Changes (as applicable), to the extent such ATR 42-500 Type Certificate and/or ATR 42-600 Design Changes (as applicable) are not already validated in Operator’s Country.

Provided always that Buyer notifies to Seller at least [*] prior to the Scheduled Delivery Date the Operator’s Country of the Aircraft, Seller shall, at its own cost and expense, obtain from Operator’s Airworthiness Authority, the validation of ATR 72-212 Type Certificate and/or the ATR 72-600 Design Changes (as applicable), to the extent such ATR 72-600 Type Certificate and/or ATR 72-600 Design Changes (as applicable) are not already validated in Operator’s Country.

Subject to the same six (6) months advance notice as set forth above, Seller shall also obtain the certification by the Operator’s Airworthiness Authority of any Development Change made by Seller or SCNs issued after execution hereof in accordance with the provisions of this Clause 4 and embodied on the Aircraft.

 

4.3 Buyer acknowledges and agrees that in the event any requirement, regulation or mandate of the DGAC and / or EASA or any interpretation thereof becomes effective between the Effective Date and the Delivery Date of any Aircraft which has the effect of requiring any changes or modifications to the Specification or any work carried out or to be carried out in the manufacture of the Aircraft or the spares or to the testing or to the certification required with respect thereto (“ Regulatory Change ”), Seller shall, without any obligation or requirement to secure the permission or consent of Buyer, make such changes or modifications to the Specification, the Aircraft, the spares, or carry out such testing.

 

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  4.3.1 Seller shall provide Buyer with written notice of each such Regulatory Change and Buyer and Seller shall execute a SCN stating the changes or modifications to the Aircraft or the spares or the testing required and the proposed adjustment to the Aircraft price, if any, necessitated by such change, modification or testing, which SCN shall be binding on both Parties, notwithstanding the absence of Buyer’s signature thereon.

 

  4.3.2 In the case of a Regulatory Change applicable exclusively to ATR 42 and/or ATR 72 aircraft, the costs of all changes, modifications and testing required by such Regulatory Change shall be [*].

 

  4.3.3 In the case of a Regulatory Change applicable to both the Aircraft and to any other aircraft in the [*] seat passenger transport turboprop aircraft category certificated under EASA regulations, the out-of-pocket costs of all changes, modifications and testing required by such Regulatory Change shall be [*].

 

  4.3.4 Seller represents that as of the date hereof it is not aware of any proposed airworthiness directive (or equivalent document issued by DGAC and / or EASA) that would, if adopted, constitute or give rise to or require a Regulatory Change for the Aircraft.

 

  4.3.5 Prior to the delivery of any Aircraft, Seller shall be entitled to fly that Aircraft and to use any part thereof for such period or periods as shall be necessary, but only to the extent necessary in connection with DGAC and / or EASA requirements related to the specific Aircraft and Seller may deliver such Aircraft to Buyer without liability to Buyer in respect of any decrease in market value due to any such use or depreciation of the Aircraft occasioned thereby except that Buyer shall not be required to accept any Aircraft at delivery which has been used or flown in excess of [*] or [*] (whichever is more limiting) without Buyer’s prior written consent. [*] shall bear the cost and risk of loss in connection with any such Aircraft usage.

 

4.4 In the event any modification related to the Specification of any Aircraft or any change, addition or modification to any Aircraft (the “ Changes ”) is required either:

 

  (i) By any Operator’s Airworthiness Authority for the validation of the Type Certificate, or

 

  (ii) By any Operator’s Airworthiness Authority or any other authority of the Operator in order to satisfy operational regulations or laws of the country or the countries concerned, subsequent to the Effective Date and enforceable prior to the delivery of any such Aircraft; or

 

  (iii) Pursuant to any regulation, or interpretation thereof, promulgated in any Operator’s country subsequent to the Effective Date and enforceable prior to the delivery of any such Aircraft,

and provided Buyer has notified Seller of the necessity of these Changes with reasonable advance notice to enable their embodiment to any such Aircraft prior to delivery, then the Parties will sign a SCN, setting forth in detail the Changes to be made, and their effects, if any, on guaranteed performance or other characteristics of any such Aircraft, the price of any such Aircraft, if any, and time of delivery.

 

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The costs of such Changes shall be borne by [*] except for the Changes that are cumulatively falling under any of the following two categories (the costs of which shall be borne by [*]):

 

  (i) Changes that are not known on the Effective Date and for which implementation becomes mandatory [*] after delivery of [*]; and

 

  (ii) Changes that do not lead to hardware modification of the Aircraft.

[*].

Notwithstanding the above, it shall remain Buyer’s responsibility to install in the Aircraft after delivery any Buyer Installed Equipment.

 

4.5 Seller shall not be bound to make any modification to the Aircraft consequent on any requirements of the DGAC becoming effective after the Effective Date except insofar as it may be required to do so under the provisions of this Clause 4.

 

4.6 Any postponement of the Scheduled Delivery Month to the extent directly due to modifications made pursuant to this Clause 4 shall be deemed as an Excusable Delay with the meaning of Clause 12 ( Excusable Delay ).

 

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5. PRICE

 

5.1 ATR 72-600 Base Purchase Price

The base purchase price for each Aircraft manufactured according to the Specification is [*] (the “ ATR 72-600 Base Purchase Price ”).

 

  5.1.1 The above ATR 72 Base Purchase Price has been computed on the basis that Seller receives progress payments according to the schedule set forth in Clause 6.2 hereof.

 

  5.1.2 The above ATR 72 Base Purchase Price is established in accordance with the economic conditions prevailing in [*] for a theoretical delivery in [*].

 

5.2 ATR 42-600 Base Purchase Price

The base purchase price for each Aircraft manufactured according to the Specification is [*] (the “ ATR 42-600 Base Purchase Price ”).

 

  5.2.1 The above ATR 42-600 Base Purchase Price has been computed on the basis that Seller receives progress payments according to the schedule set forth in Clause 6.2 hereof.

 

  5.2.2 The above ATR 42-600 Base Purchase Price is established in accordance with the economic conditions prevailing in [*] for a theoretical delivery in [*].

 

5.3 The Base Purchase Price for each Aircraft shall be adjusted to determine the purchase price (the “ Purchase Price ”), as follows:

 

  5.3.1 To reflect changes in economic conditions between a theoretical delivery date of [*] and the Scheduled Delivery Month of the Aircraft based upon Seller’s standard price adjustment formula set out in Clause 5.4 of this Contract subject, however, to the limitations of Clause 5.6; and

 

  5.3.2 To include the price of any and all SCNs executed after signature of this Contract in accordance with the provisions of Clause 3 ( Specification Changes ) and Clause 4 ( Certification & Regulatory Changes ) hereof, which price shall be adjusted, if applicable, at the time of delivery in accordance with Seller’s standard SCN price adjustment formula set out in Clause 5.5 of this Contract subject, however, to the limitations of Clause 5.6; and

 

  5.3.3 To include any other amounts forming part of the Purchase Price in accordance with provisions of this Contract, including but not limited to Clause 15 ( Buyer Furnished Equipment and Information ) hereof, and any other written agreement between Buyer and Seller.

 

5.4 The Base Purchase Price of the Aircraft shall vary in respect of changes in economic conditions from a theoretical delivery in [*] and the Delivery Date of each Aircraft, which variation shall be calculated in accordance with the following formula:

[*].

 

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5.5 The price of any SCN shall vary in respect of changes in economic conditions from a theoretical delivery in July 2012 and the Delivery Date of the Aircraft on which such SCN is implemented, which variation shall be calculated in accordance with the following formula:

[*].

 

5.6 [*].

 

5.7 If the basis upon which the indices referred to above have been calculated are amended or if the said indices are revised or withdrawn from publication the Parties hereto shall agree a revised formula which shall have substantially the same effect as that specified herein. In default of such agreement a mutually agreed, single independent arbitrator shall calculate a revised formula, which, insofar as possible and in the opinion of the arbitrator, would lead in application to the same adjustment result. The decision of such arbitrator shall be final and binding upon the Parties.

 

5.8 The Purchase Price for any Aircraft is a net price and the rights of Seller in and to the Final Price of any such Aircraft (i) shall not be subject to any reduction or withholding on account of taxes and (ii) shall be absolute and unconditional once transfer of title in and to any such Aircraft has occurred in accordance with Clause 11 ( Transfer of Title, Collection & Ferry ) of this Contract.

 

5.9 [*].

 

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6. TERMS OF PAYMENT

 

6.1 In accordance with the HoA, Buyer has paid to Seller a commitment fee in the amount of [*] in respect of each of the Firm Aircraft, which amount shall be credited against the First Pre-Delivery Payment due towards the Purchase Price for each Firm Aircraft pursuant to Clause 6.2.1 of this Contract.

 

6.2 Payment of the balance of the Purchase Price for each Aircraft shall be made according to the following schedule:

 

  6.2.1 [*] from the Effective Date, Buyer shall, in respect of each Aircraft, pay to Seller the First Pre-Delivery Payment to Seller’s account.

 

  6.2.2 [*] prior to the Scheduled Delivery Month of each Aircraft, Buyer shall, in respect of such Aircraft, pay to Seller the Second Pre-Delivery Payment to Seller’s account.

 

  6.2.3 [*] prior to the Scheduled Delivery Month of each Aircraft, Buyer shall, in respect of such Aircraft, pay to Seller the Third Pre-Delivery Payment to Seller’s account.

 

  6.2.4 The remaining balance of the Purchase Price for each Aircraft (the “ Balance Payment ”) shall be payable upon execution of the Certificate of Acceptance for such Aircraft as provided for in Clause 10 ( Aircraft Acceptance Procedure ). Seller shall furnish to Buyer no later than [*] prior to the Scheduled Delivery Date of each Aircraft a proforma invoice setting forth the estimated Purchase Price for such Aircraft.

 

  6.2.5 For the sake of clarity, any postponement in the Scheduled Delivery Month of the Aircraft pursuant to the provisions of this Contract, including in particular but without limitation, Clauses 3 ( Specification Changes ), 4 ( Certification & Regulatory Changes ), 12 ( Excusable Delay ), 13 ( Inexcusable Delay ), 15 ( Buyer Furnished Equipment and Information ) and 27 ( Export Control ) hereof, will postpone accordingly the payment by Buyer to Seller of any Pre-Delivery Payment due by Buyer to Seller pursuant to Clauses 6.2.2, 6.2.3 and 6.2.4 of this Contract for any such Aircraft.

 

6.3 All payments due under this Contract shall be made in accordance with the provisions of Appendix I ( Payment Instructions ) hereto.

 

6.4 All payments and charges to be made by Buyer under this Contract shall be made at the times stipulated in same date available funds by swift transfer or, in case no date for payment is stipulated, within one ( 1 ) month after invoice date.

 

6.5 All payments due to Seller hereunder shall be made in full, without deduction or withholding of any kind. Consequently, Buyer shall procure that the sums received by Seller under this Contract shall be equal to the full amounts expressed to be due to Seller hereunder without deduction or withholding on account of and free from any and all taxes, levies, imposts, dues or charges of whatever nature.

 

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6.6 If Buyer is compelled by law to make any such deduction or withholding, Buyer shall pay such additional amounts as may be necessary in order that the net amount received by Seller after such deduction or withholding shall equal 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.

 

6.7 In case of a late payment of any amount of money due from Buyer or Seller under this Contract and without prejudice to any other of Seller’s rights or remedies, the Party paying late shall also pay interest at a late-payment rate per annum equal to the [*] which late-payment rate shall apply to any amount outstanding after the relevant due date and until the actual date of receipt of the payment by Seller or Buyer, as the case may be, such interest being calculated on a daily basis. In addition, the Party paying late shall reimburse the reasonable out of-pocket costs and expenses (including reasonable legal costs) incurred by the other Party in the collection of any overdue amount.

 

6.8 The acceptance of any payment by any Party after it is due shall not be construed as a waiver of any of such Party’s rights.

 

6.9 For the sake of clarity, Buyer acknowledges and agrees that the Pre-Delivery Payments set out in this Clause 6 are installment payments of the Purchase Price of the Aircraft and are not deposits, cash collateral or other collateral security for Buyer’s obligations under this Contract. Once paid, such Pre-Delivery Payments may be commingled by it, with no interest payable with respect thereto. For avoidance of doubt, such Pre-Delivery Payments are not intended to be liquidated damages nor a penalty.

 

6.10 Buyer shall not, by virtue of anything contained in this Contract (including, without limitation, any Pre-Delivery Payments hereunder, or any designation or identification by Seller of any particular aircraft as an Aircraft to which any of the provisions of this Contract refer), acquire any property, proprietary or any insurable interests in any Aircraft prior to delivery of and payment in full for such Aircraft in accordance with this Contract.

 

6.11 In addition to any other rights and remedies available to Seller hereunder, Seller shall not be obligated to tender delivery of any Aircraft to Buyer, if and so long as Buyer fails to make any Pre-Delivery Payment, pursuant to the foregoing provisions of this Clause 6 for any Aircraft at the time and in the amount specified in this Contract and such failure shall continue unremedied for five ( 5 ) Business Days or more from receipt by Buyer of a written demand from Seller requesting such payment.

 

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7. LEFT INTENTIONALLY BLANK

 

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8. PLANT REPRESENTATIVES – INSPECTION

 

8.1 The Aircraft will be manufactured in accordance with the regulations applicable in the country of Seller, subject however to the provisions of Clause 2.1 of this Contract. The Aircraft will be inspected exclusively under Seller’s inspection systems, as approved by the DGAC in compliance with EASA regulations.

 

8.2 Buyer shall have the right to, at all reasonable times, appoint one or more duly authorised resident inspector(s) at Seller’s plant who can inspect the manufacturing process and the work in progress and who will have access to such relevant technical data as is reasonably necessary to carry out said inspection.

 

  8.2.1 Seller shall authorise or procure for said resident inspector(s) to visit Seller’s facilities and, if possible, the facilities of its suppliers and subcontractors at all reasonable times during business hours. Such inspection shall be performed in such manner as not to delay or hinder the construction or manufacture of the Aircraft or the performance of this Contract by Seller or any other work in progress with respect to the Aircraft in the respective facilities.

 

  8.2.2 The actual detailed inspection of the Aircraft shall only take place in the presence of the inspection personnel of Seller, according to a procedure to be agreed upon with Buyer under which Buyer shall have all reasonable access to the Aircraft during the final assembly process and written production data relating to the Aircraft as he may reasonably require.

 

  8.2.3 If access to any part of said facilities where construction is in progress is restricted for security reasons, Seller shall be allowed a reasonable time to make the items available for inspection, elsewhere if possible.

 

  8.2.4 Buyer shall bear all expenses in connection with any such inspectors or inspection including with respect to transport, subsistence, insurance and salary of such resident inspector(s). Seller shall furnish, at no cost to Buyer, suitable office space and facilities close to Seller’s final assembly line (including telephone, telefax, internet access, copying machine, printer and the like) and secretarial services for business purposes. Seller shall notify to such inspectors the workplace regulations applicable to Seller’s facilities and Buyer shall cause any such inspectors or inspection to comply with such regulations.

 

  8.2.5 Subject to Clause 8.1 of this Contract, Seller shall not limit the scope of inspections available to Buyer’s resident inspector without Buyer’s prior consent, such consent not to be reasonably withheld.

 

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9. AIRCRAFT SUPPLY PROGRAM

 

9.1 Subject to the provisions of Clause 9.4 of this Contract, Seller shall tender the Aircraft for acceptance at the Delivery Location during the following months:

[*].

 

9.2 Each Aircraft shall be tendered for delivery in accordance with Clause 10 ( Aircraft Acceptance Procedure ) within the month indicated above subject to Clause 9.4 hereof. Seller shall provide a [*] prior written notice to Buyer of the scheduled delivery date for each Aircraft (the “ Scheduled Delivery Date ”).

 

9.3 On the delivery of the Aircraft, Seller shall deliver to Buyer the documents listed in Appendix C ( List of Documents Exchanged on Delivery ).

 

9.4 The Scheduled Delivery Month may vary in accordance with the other provisions of this Contract, including in particular but without limitation, Clauses 3 ( Specification Changes ), 4 ( Certification & Regulatory Changes ), 9.5 ( Postponement Right ), 12 ( Excusable Delay ), 13 ( Inexcusable Delay ), 15 ( Buyer Furnished Equipment and Information ) and 27 ( Export Control ) hereof.

 

9.5 Postponement Right

Buyer shall, with respect to any of the Aircraft N°6 and subsequent Aircraft, have the right to postpone any of the individual Aircraft individual delivery.

Any such Postponement Right relating to any individual [*] Aircraft shall be subject to:

 

   

Buyer giving notice to Seller of its intention to postpone such Aircraft delivery not less than:

 

  (i)

[*] prior to the first ( 1 st ) day of the Scheduled Delivery Month of any such Aircraft for the [*] or

 

  (ii) Seventeen (17) months prior to the first (1st) day of the Scheduled Delivery Month of any such Aircraft for the [*].

 

   

[*]

For the sake of clarity also, Postponement Right for any single Aircraft may only be exercised once.

 

9.6 Conversion Right

Buyer shall, with respect to any of the Aircraft N°6 and subsequent Aircraft, have the right to convert ATR 72-600 Firm Aircraft deliveries into ATR 42-600 Firm Aircraft deliveries.

 

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Any Conversion Right relating to any eligible individual Aircraft shall be subject to:

 

   

Buyer giving written notice to Seller of its intention to replace an ATR 72-600 Aircraft delivery by an ATR 42-600 Aircraft delivery not later than:

 

  (i)

[*] prior to the first ( 1 st ) day of the Scheduled Delivery Month of any such Aircraft for the [*]; or

 

  (ii)

[*] prior to the first ( 1 st ) day of the Scheduled Delivery Month of any such [*].

 

   

Availability of the relevant aircraft type on the date requested by Buyer at the time of such request for a replacement of delivery, being understood that should such Aircraft delivery type and position requested by Buyer not be available, Seller shall propose to Buyer the next available ATR 42-600 delivery position.

For the sake of clarity also, Conversion Right for any single Aircraft may only be exercised once.

 

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10. AIRCRAFT ACCEPTANCE PROCEDURE

 

10.1 Seller shall tender the Aircraft for acceptance at the Delivery Location.

 

10.2 Buyer shall during the [*] immediately preceding the Scheduled Delivery Date of the Aircraft be entitled to inspect the Aircraft and during such period Seller shall fly the Aircraft for a period or periods not exceeding three ( 3 ) hours to demonstrate in ambient conditions prevailing at Seller’s airfield that the Aircraft complies with the terms of this Contract, including in particular Clause 2.3 of this Contract, in respect of those requirements that can be demonstrated only in flight (the “ Acceptance Flight Tests ”).

 

10.3 Throughout the performance of the Acceptance Flight Tests, the operational control of the Aircraft shall remain with Seller’s personnel.

 

10.4 One ( 1 ) ATR 72-600 (or ATR 42-600 as applicable) qualified representative of Buyer may be present as observer during the Acceptance Flight Test and have a seat in the cockpit. It is being understood that, notwithstanding the Clause 10.3 of this Contract but subject always to the supervision of Seller’s captain seating in the cockpit, such qualified Buyer representative will, at selected moments during the Acceptance Flight Tests, be able to act as first officer in order to check that the Aircraft complies with the terms of this Contract.

A maximum of five ( 5 ) representatives of Buyer and Buyer’s Aviation Authority in total having only access to the passenger cabin, may also participate in such Acceptance Flight Tests.

The Aircraft shall be operated at Seller’s expense and risk and only by Seller’s nominees during the Acceptance Flight Tests.

After satisfactory completion of the Acceptance Flight Tests, Seller agrees to perform at Seller’s cost a full borescope inspection satisfactory to Buyer, acting reasonably, on both engines of each Aircraft after its acceptance flight with a video copy of the results thereof being provided to Buyer.

 

10.5 In the event that during, or as a result of the said inspection or of the Acceptance Flight Tests, Buyer acting reasonably considers that the Aircraft fails to comply in any respect with the terms of this Contract, including in particular Clause 2.3 of this Contract, then upon notification of the details of such alleged failure given by Buyer upon the conclusion of the inspection or Acceptance Flight Tests, Seller shall examine, and if necessary to the extent commercially reasonable promptly rectify or modify, the Aircraft to bring it into compliance with the terms of this Contract, including in particular Clause 2.3 of this Contract or, if prompt remedy is not commercially reasonable, Seller shall implement a mutually agreeable program for the remedy of such failure.

Following any rectification or modification of the Aircraft by Seller pursuant to this Clause 10.5, Buyer shall be allowed the amount of time that will be reasonably needed to assess if such rectifications or modifications have brought the Aircraft in compliance with the terms of this Contract.

 

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10.6 If at any stage Seller considers that the requirements of the terms of this Contract, including in particular Clause 2.3 of this Contract, are met and should Buyer so require acting reasonably, Seller shall demonstrate to Buyer’s reasonable satisfaction that the Aircraft meets the said requirements with regard to the aspects in doubt. In case Buyer has notified Seller of any failure of the Aircraft to comply with the terms of this Contract in accordance with this Clause 10, and Seller has undertaken rectifying and/or modifying actions of any kind, Seller shall be obliged to perform a new Acceptance Flight Test, should Buyer reasonably request so.

 

10.7 If remedy of a failure is not commercially reasonable prior to the Scheduled Delivery Date, and provided always that such failure does not adversely affect the safety, airworthiness or to any material extent the performance, reliability, economic operation, regular commercial use or maintenance of the Aircraft, Buyer shall not be entitled to refuse to accept the Aircraft by reason such failure of the Aircraft to meet the requirements of the terms of this Contract provided Seller and Buyer agree a program and a schedule for the remedy of such failure by Seller or for a monetary compensation for the non-remedy of such failure by Seller, such agreement being recorded in a commitment letter (the “ Commitment Letter ”) jointly executed by Seller and Buyer prior to delivery of the Aircraft.

However, in no circumstances shall Buyer be liable to accept delivery of an Aircraft with deferred rectifications or remedies if the deferment of such rectifications or remedy is not approved by the EASA and / or Buyer’s Airworthiness Authority.

 

10.8 When Buyer has satisfactorily completed its inspection of the Aircraft and the Acceptance Flight Tests have been completed on the Aircraft without Buyer notifying Seller prior to signing the Certificate of Acceptance of any failure of the Aircraft to comply with the terms of this Contract, or after Seller has remedied any such failure, or, after Seller and Buyer have agreed a program for the remedy of such failure in accordance with the provisions of Clause 10.7 of this Contract and when an Export Certificate of Airworthiness has been issued for the Aircraft, then Buyer shall sign a Certificate of Acceptance in respect of the Aircraft in triplicate. Should Buyer fail to deliver such Certificate of Acceptance when required to do so, Buyer shall be deemed to be in default of its obligations pursuant to Clause 21.2 of this Contract. The signature of the Certificate of Acceptance by Buyer constitutes the irrevocable acceptance of the Aircraft by Buyer for all purposes of this Contract.

 

10.9 Notwithstanding the provisions of Clause 21.2 of this Contract, if Buyer fails to carry out the said inspection or attend the Acceptance Flight Tests or sign the Certificate of Acceptance when required to do so without notifying Seller of any failure of the [*]. Seller shall be entitled to sign a Certificate of Acceptance on Buyer’s behalf and Buyer shall be responsible for the reasonable costs of insurance, storage, and maintenance of the Aircraft incurred by Seller as a result of Buyer’s failure as aforesaid.

 

10.10 Buyer shall not be entitled to refuse to accept an Aircraft by reason of failure of such Aircraft to meet the requirements of the terms of this Contract if such failure is minor in character and does not adversely affect to any material extent the safety, performance, reliability, economic operation, regular commercial use or maintenance of the Aircraft and Seller shall remedy such failure as promptly as practicable after delivery of the Aircraft in accordance with a schedule to be mutually agreed.

 

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10.11 At least [*] before the Scheduled Delivery Date of each Aircraft Buyer shall provide to Seller suitable evidence of the authority of designated persons who may sign on Buyer’s behalf the Certificate of Acceptance together with specimen signatures of the persons so authorised.

 

10.12 Seller shall be entitled to fly the Aircraft and to use any part thereof at its own risk and expense for such period as shall be reasonably necessary in connection with DGAC requirements for obtaining an Export Certificate of Airworthiness with respect to the Aircraft to be delivered and in connection with the Acceptance Flight Tests and Seller shall be under no liability to Buyer in respect of any normal use or depreciation of the Aircraft or any parts thereof occasioned thereby except that Buyer shall not be required to accept any Aircraft at delivery which has been flown in excess [*] (whichever is more limiting) without Buyer’s prior written consent.

 

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11. TRANSFER OF TITLE, COLLECTION AND FERRY

 

11.1 Upon signing the Certificate of Acceptance of any Aircraft in accordance with Clause 10 ( Aircraft Acceptance Procedure ), Buyer shall pay to Seller the Balance Payment for that Aircraft in accordance with the provisions of Clause 6 ( Terms of Payment ). Thereupon, and subject to receipt by Seller of the full payment of the Purchase Price for that Aircraft as aforesaid, Seller shall deliver to Buyer a Bill of Sale with respect to such Aircraft and good and valid title to and risk of loss of or damage to such Aircraft shall pass by delivery of the Bill of Sale from Seller to Buyer.

 

11.2 At the time of transfer of title to Buyer, title to the Aircraft shall be free and clear of any lien, claim, mortgage, charge, encumbrance or any other similar restriction of any nature whatsoever.

 

11.3 After transfer of title to the Aircraft to Buyer and before the Aircraft is removed from the Seller’s airfield, if requested to do so by Buyer, Seller shall supply at cost, oil, fluids, hangarage, aircraft handling, and servicing.

 

11.4 If Buyer fails to make the necessary arrangements to ferry any Aircraft from Seller’s airfield within [*] after the date of the transfer of title of any such Aircraft, then without prejudice to any other remedies and rights of Seller, Buyer shall, in respect of any subsequent period during which such Aircraft remains at Seller’s premises, [*] by Seller as a result of such Buyer’s failure to perform its obligations.

 

11.5 The obtaining of any import licenses or authorizations required to import the Aircraft into Buyer’s country, or any other country where the Aircraft will be operated, and any associated costs shall be the responsibility of Buyer. However, Seller shall use its commercially reasonable efforts to cooperate with Buyer to obtain any licenses, permits or approvals which may be required for the purposes of importing the Aircraft.

 

11.6 In accordance with French law, the export of the Aircraft covered by this Contract may be subject to the issuance of export licences by the French authorities. Seller shall obtain all such licences on or prior to delivery of each Aircraft.

 

11.7 All risks to an Aircraft shall pass on to Buyer only upon delivery and transfer of title to Buyer of such Aircraft. As from and after delivery and transfer of title of the Aircraft, the Aircraft shall be in every respect at the sole risk of Buyer and Buyer shall bear all risks whatsoever, as between Seller and Buyer, howsoever arising out of ownership and operation of the Aircraft.

 

11.8 Seller will provide [*] catering for the first leg of the ferry flight of each Aircraft from the Delivery Location (the “ Ferry Flight ”). Seller shall also supply to Buyer before the Ferry Flight, [*], the necessary fuel to top-up the Aircraft fuel tanks.

Seller shall also be responsible, [*], for the preparation and filing of technical and ATC flight plans and for obtaining the landing and over flight clearances relating to the European portion of each Ferry Flight.

 

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11.9 Seller will provide to the Buyer a sufficient number of “fly-away kits,” compliant with the applicable laws and regulations of the Operator’s Aviation Authorities, for use by Buyer during the Ferry Flight of the Aircraft based on the Aircraft delivery schedule and Buyer’s ability to timely reposition the fly-away kits at the Delivery Location for subsequent Ferry Flights from the Delivery Location. Buyer will return to the Delivery Location any fly-away kits not required for subsequent Ferry Flights.

 

11.10 All other expenses associated with flying the Aircraft from the Delivery Location after Delivery shall be borne by [*] and the Seller will provide the Buyer with a list of services providers for the Ferry Flight, and Buyer will make direct arrangements with the supplying companies for its requirements.

 

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12. EXCUSABLE DELAY

 

12.1 Seller shall not be liable to Buyer nor shall it be in default for any failure or delay in carrying out any of its obligations under this Contract including but not limited to its obligation to deliver the Aircraft on the Scheduled Delivery Month, due to causes not within Seller’s reasonable control and not occasioned by its negligence or fault, including, but not limited to, acts of God or of the public enemy; war; warlike operations, insurrections or riots; fires, floods, or explosions; earthquakes; epidemics or quarantine restrictions; any act of government (including airworthiness authority acts, governmental requisitions, restrictions, priorities, decrees, allocations regulations or orders affecting supplies, facilities, aircraft certification or aircraft deliveries), strikes or other labor troubles causing cessation, slowdown or interruption of work, inability after due and timely diligence to procure materials, systems, accessories, equipment or parts, failure of a sub-contractor or vendor selected with reasonable care to furnish on a timely basis engineering, supplies or parts in accordance with applicable requirements, delays in delivery of said engineering, supplies or parts subject to Seller’s subcontractors or suppliers having been selected with reasonable care and such orders placed in due time; unfavourable atmospheric conditions for air navigation during flight tests; loss of, damage to, destruction of or accident involving the Aircraft prior to or during delivery; serious accidents (except loss, damages, destructions and accidents caused by the negligence or fault of Seller); or any other cause beyond Seller’s reasonable control or not occasioned by Seller’s gross negligence or wilful misconduct, and any such failure, including failure by Seller due to Buyer’s failure to comply with its obligations, shall be considered an “ Excusable Delay ”.

Buyer shall not be liable to Seller nor shall it be in default for any failure or delay in carrying out its obligations under this Contract to take delivery of the Aircraft on the Scheduled Delivery Month due to causes not within Buyer’s reasonable control and not occasioned by its gross negligence or wilful misconduct, including but not limited to acts of God or of the public enemy; war; warlike operations, insurrections or riots; fires, floods, or explosions; earthquakes; epidemics or quarantine restrictions; any act of government (including airworthiness authority acts, governmental requisitions, restrictions, priorities, decrees, allocations regulations or orders affecting supplies, facilities, aircraft certification or aircraft deliveries), strikes or other labor troubles causing cessation, slowdown or interruption of work, inability after due and timely diligence to procure Buyer Furnished Equipments, failure of a sub-contractor or vendor to furnish on a timely basis Buyer Furnished Equipments in accordance with applicable requirements, or delays in delivery of said Buyer Furnished Equipments subject to Buyer’s orders to subcontractors or suppliers having been placed in due time, or any other cause beyond Buyer’s reasonable control or not occasioned by Buyer’s negligence or fault, and any such failure, including failure by Buyer due to Seller’s failure to comply with its obligations, shall be considered an “ Excusable Delay ”.

 

12.2 The Party affected by an Excusable Delay (the “ Affected Party ”) shall notify the other Party (the “ Notified Party ”) of (i) any Excusable Delay as soon as reasonably practicable but in any event within [*] following receipt of actual knowledge of such delay and (ii) the probable extent thereof, and, thereafter, the Affected Party shall provide the Notified Party with reasonable periodic (and at any time promptly upon written request by the Notified Party) updates of the Affected Party’s performance under the Contract with respect to such delays. The Affected Party shall promptly notify the Notified Party of the removal of an Excusable Delay.

 

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12.3 In the event of an Excusable Delay, the Affected Party’s obligations under this Contract with, and solely with, respect to such undelivered Aircraft shall be deferred for such period or periods as may be necessary to resume performance of such obligations and the Scheduled Delivery Month with respect to such undelivered Aircraft shall be adjusted accordingly, provided, however, that the Affected Party shall use its commercially reasonable efforts to mitigate the impact of the event or events on the timing of the delivery of such undelivered Aircraft.

 

12.4 In the event that the delivery of any Aircraft shall be delayed or is expected by Seller, acting in good faith, to be delayed and that the Buyer is notified by Seller accordingly, in either case by reason of any one or more of the causes described above in this Clause 12 for a period of more than [*] after the end of the Scheduled Delivery Month, either Party shall be entitled to terminate this Contract with, and solely with, respect to such undelivered Aircraft, by written notice given to the other Party within [*] after the expiration of such [*] period. Such termination shall discharge the Parties of all obligations and liabilities hereunder with, and solely with, respect to such undelivered Aircraft, services, data or other items applicable thereto and to be furnished hereunder [*]. Seller shall return the Buyer Furnished Equipment to Buyer promptly following the termination of the Contract according to this Clause 12.4. If either Party does not so terminate this Contract as it relates to such Aircraft, all terms and conditions hereunder applicable to such Aircraft will remain in effect.

 

12.5 In the event that prior to delivery, any Aircraft is lost, destroyed or damaged beyond repair for any reason other than the gross negligence or wilful misconduct of Seller, Seller shall promptly notify Buyer and any such loss, destruction or damage shall be deemed an Excusable Delay and if consequently such undelivered Aircraft (or a replacement aircraft) cannot be delivered within [*] of the end of the calendar month in which delivery is otherwise required hereunder, either Party shall be entitled to terminate this Contract by written notice given to the other Party within [*] after the expiration of such [*] period. Any termination under this Clause 12 shall discharge the Parties of all obligations and liabilities with, and solely with, respect to such undelivered Aircraft, services, data or other items applicable thereto and to be furnished hereunder. [*]. Seller shall return the Buyer Furnished Equipment to Buyer promptly following the termination of the Contract according to this Clause 12.5. If either Party does not so terminate this Contract as it relates to such Aircraft, all terms and conditions hereunder applicable to such Aircraft will remain in effect.

 

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13. INEXCUSABLE DELAY

 

13.1 If any Aircraft is not delivered within [*] after the last day of the Scheduled Delivery Month (as may be varied in accordance with the provisions of Clause of 9.4 of this Contract) for any reason other than Excusable Delay as defined in Clause 12.1 of this Contract, such delay in delivery shall be deemed “ Inexcusable Delay ” for the purposes of this Clause 13.

 

13.2 Buyer shall have the right upon request to be paid liquidated damages by Seller in respect of the Aircraft so delayed. As a reasonable estimate of the amount of damages Buyer may suffer in the event of an Inexcusable Delay, Seller shall, within the limits set forth on Clause 13.5 of this Contract, pay to Buyer as liquidated damages an amount determined [*]

[*]

 

13.3 Buyer’s right to recover liquidated damages with respect to any Aircraft shall be conditional upon receipt by Seller of a written request no later than [*] following the last day of the Scheduled Delivery Month.

 

13.4 In the event the delivery of an Aircraft is delayed by more than [*] after the last day of the Scheduled Delivery Month, and such delay is due to Inexcusable Delay, Buyer shall have the right to terminate this Contract with respect to such Aircraft, which termination shall be effective by providing Seller with written notice of its intent to so terminate within [*] after the expiration of such [*] period. Any termination under this Clause 13.4 shall discharge the Parties of all further obligations and liabilities (excluding all liquidated damages payable by Seller in accordance with the terms of this Clause 13) with respect to such Aircraft, services, data or other items applicable thereto and to be furnished hereunder. [*]. Seller shall return the Buyer Furnished Equipment to Buyer promptly following the termination of the Contract according to this Clause 13. The liquidated damages payable by Seller pursuant to this Clause 13 shall be paid upon Buyer’s request in accordance with Clause 13.2.

 

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13.5 Buyer acknowledges and agrees that the remedies as provided in this Clause 13 are its sole and exclusive remedies with respect to any delay by Seller to deliver any Aircraft as and when scheduled and that the payments if made as and when required by this Clause 13 will constitute full and final settlement of all claims, liabilities and damages for late delivery of any Aircraft and that in no event shall Seller be liable to Buyer for damages with respect to any Aircraft in excess of [*] and Seller shall not be liable for any consequential loss or damage including any loss of revenue, loss of profit or special, incidental or consequential loss or damage for exemplary or punitive damages. The Parties hereto acknowledge and agree that the liquidated damages provided for above are agreed reasonable estimate of the amount of damages and anticipated or actual harm Buyer shall suffer in the event of an Inexcusable Delay or other failure of the Seller to deliver any Aircraft as scheduled and/or in the condition provided for hereunder, and with each Party hereto acknowledging the difficulties of proof of any such damage or harm and the inconvenience or infeasibility of otherwise obtaining an adequate remedy. The Parties hereto agree that the foregoing amounts of liquidated damages are neither unreasonably large nor unreasonably small.

 

13.6 Buyer shall not be entitled to terminate its obligations to accept and pay for any of the Aircraft by reason of any delay in delivery of such Aircraft except as provided in this Clause 13 or in Clause 12 ( Excusable Delay ).

 

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14. INDEMNITY AND INSURANCE

 

14.1 Indemnity

 

  14.1.1 Indemnities relating to Aircraft inspection, Aircraft acceptance procedures and ground training services

 

  14.1.1.1 Seller shall, except in case of gross negligence or wilful misconduct of Buyer’s Indemnified Parties, be liable for and shall indemnify and hold harmless Buyer’s Indemnified Parties from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) in respect of:

 

  (i) Loss of, or damage to, any Seller’s property; and

 

  (ii) Injury to, or death of Seller’s Indemnified Parties; and

 

  (iii) Any damage caused by Seller to third parties;

arising out of, or in any way connected with Clause 8 ( Plant Representatives – Inspection ) and Clause 10 ( Aircraft Acceptance Procedure ) and/or ground training services provided at Seller’s premises under Appendix J ( Training ) of this Contract.

 

  14.1.1.2 Buyer shall, except in case of gross negligence or wilful misconduct of Seller’s Indemnified Parties, be liable for and shall indemnify and hold harmless Seller’s Indemnified Parties from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) in respect of:

 

  (i) Loss of, or damage to, any Buyer’s property; and

 

  (ii) Injury to, or death of Buyer’s Indemnified Parties; and

 

  (iii) Any damage caused by Buyer to third parties;

arising out of, or in any way connected with Clause 8 ( Plant Representatives – Inspection ) and Clause 10 ( Aircraft Acceptance Procedure ) and/or ground training services provided at Buyer’s premises under Appendix J ( Training ) of this Contract.

 

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  14.1.2 Indemnities relating to training on Aircraft after delivery and field representatives

Buyer shall, except in the case of gross negligence or wilful misconduct of Seller’s Indemnified Parties, be solely liable for and shall indemnify and hold harmless Seller’s Indemnified Parties, from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) in respect of:

 

  (i) Injury to, or death of, any person; and

 

  (ii) Loss of, or damage to, any property and for loss of use thereof (including the Aircraft);

to the extent, but only to the extent, resulting from the performance of any training services by Seller under Appendix J ( Training ) (except ground training services as defined under such Appendix J) and/or field representatives services under Appendix I ( Customer Support Representative ) hereto.

 

14.2 Insurance

 

  14.2.1 Without prejudice to any term and condition under this Contract, Buyer shall obtain and maintain at its own costs and expenses, with insurers of internationally recognized reputation reasonably acceptable to Seller, insurances in customary airline industry form as customarily maintained by other air carriers similarly situated with Buyer in respect of the Aircraft, to be effective as of the Delivery Date, in accordance with applicable legislation and industry standards in order to cover the obligations of the Buyer under Clauses 14.1.1.2 and 14.1.2, as well as the Aircraft, including:

 

  14.2.1.1 Aircraft Hull All Risks Insurances (including War and Allied Perils), in a form and amount as customarily maintained by other air carriers, including a waiver of recourse by the insurers, whether by subrogation or otherwise, against Seller’s Indemnified Parties;

 

  14.2.1.2 Comprehensive General Third Party in customary airline industry form as customarily maintained by other air carriers similarly situated with Buyer Legal Liability and Aircraft Passengers and Third Party Liability Insurances (including Premises, Products and Hangarkeepers Liability) any one occurrence, for each Aircraft, unlimited in all, for not less than [*], Buyer shall procure that the liability policies shall provide the following:

 

  (i) Seller’s Indemnified Parties named as additional insured with respect to the indemnity undertakings by Buyer under Clause 14.1.2 only to the extent of risks covered by such policies;

 

  (ii) Be primary without contribution from any insurance carried by Seller;

 

  (iii)

In respect of the interests of Seller’s Indemnified Parties, that such insurance shall not be invalidated by any act or omission (including misrepresentation and non-disclosure)

 

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  of any other person or party which results in a breach of any term, condition or warranty of said policy provided that Seller’s Indemnified Parties so protected have not caused, contributed to or knowingly condoned the said act or omission;

 

  (iv) Any and all provisions of each policy (except the limits of liability) will operate to give each insured or additional insured the same protection as if there was a separate policy issued to each;

 

  (v) Such insurances can only be cancelled upon receipt from the insurers of a not less than [*] or such lesser period as may be customarily available in respect of War and Allied Perils) prior written notice to the Seller’s Indemnified Parties or the insured’s appointed broker;

 

  (vi) Any applicable deductible shall be borne by Buyer with respect to the above insurances.

 

  14.2.3 Not less than [*] before the Delivery Date of each Aircraft or if requested by Seller prior to any training services under Appendix J ( Training ) (except ground training as defined under such Appendix J) and/or field representatives services under Appendix I ( Customer Support Representative ) hereto, Buyer shall deliver or cause to be delivered to Seller a certificate of insurance, in English, evidencing the cover required on transfer of title of each Aircraft as above mentioned, in a form reasonably acceptable to Seller.

 

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15. BUYER FURNISHED EQUIPMENT AND INFORMATION

 

15.1 Upon terms and conditions to be agreed, Seller shall provide for the installation without additional charge of the equipment (if any) to be furnished and paid by Buyer, and designated as “ BFE” in Appendix A ( Specification ) appended hereto or in any SCN executed by Seller and Buyer after the Effective Date. For the avoidance of doubt, any cost of an SCN issued in relation to any Buyer Furnished Equipment shall be borne by Buyer.

 

  15.1.1 Seller shall advise Buyer with sufficient notice to Buyer of the dates by which Seller needs a written detailed description of the dimensions and weight of Buyer Furnished Equipment and information necessary for the installation and operation thereof, so that Seller may meet the Scheduled Delivery Month mentioned in Clause 9.1 of this Contract.

 

  15.1.2 At the request of Seller, Buyer shall consign at Seller’s facilities any spare Buyer Furnished Equipment items of a critical nature, i.e. items that if found unserviceable could impair the assembly, the testing or the acceptance of the Aircraft. Such spare items, if any, will be returned to Buyer with the last delivered Aircraft.

 

15.2 Any delay or failure by Buyer in providing the descriptive information or in furnishing Buyer Furnished Equipment giving rise to a delay in the performance of Seller’s obligations under this Contract, will result in a delay in the date at which Seller shall be required to meet its obligation to deliver the Aircraft and will cause the Base Purchase Price of the relevant Aircraft to be increased by the amount of Seller’s additional costs, if any, attributable to such delay or failure by Buyer. In no event shall Seller be liable to Buyer for damages with respect to delay in the date at which Seller shall be required to meet its obligation to deliver the Aircraft, or liable for any consequential loss or damage in any manner with respect to or arising out of any failure by Buyer to deliver the Buyer Furnished Equipment on the agreed schedule.

 

15.3 Buyer will at its own cost arrange for the Buyer Furnished Equipment to be delivered [*] to Seller’s facilities in Toulouse, France, unless otherwise instructed by Seller. Seller shall use its commercially reasonable efforts to put Buyer Furnished Equipment imported in France or in Italy under a suspensive customs system (inward process customs regime) to avoid application of any French or Italian tax or customs duty, subject to the relevant custom information (including the details of the BFE manufacturer, the Buyer Furnished Equipment part number, the Buyer Furnished Equipment customs tariff and any other relevant information) and the Buyer Furnished Equipment being provided by Buyer to Seller at the latest [*] before such delivery of Buyer Furnished Equipment.

 

15.4 Title to any Buyer Furnished Equipment shall at all times remain with Buyer. Risk of loss of Buyer Furnished Equipment shall at all times remain with Buyer [*].

 

15.5

If Buyer requests Seller to directly supply certain items which are considered as Buyer Furnished Equipment as per the Specification and if such request is notified to Seller in due time in order not to affect the Scheduled Delivery Month of the Aircraft, Seller shall order such items subject to the execution of a SCN reflecting the

 

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  effect on price, escalation adjustment and other possible conditions of the Contract. In such a case Seller shall bear no liability in respect of any product support commitments assumed by the vendor for such Buyer Furnished Equipment.

 

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16. CUSTOMER SUPPORT SERVICES, GUARANTEES AND WARRANTIES

 

16.1 Seller shall provide the spare parts services provided for in Appendix D ( Spare Parts Procurement ), the product warranties provided for in Appendix E ( Warranties ), the customer support services provided for in Appendices F ( Technical Publications ), G ( Customer Support Representative ), H ( Start-Up Team ) and I ( Training ) and the guarantees provided for in [*] appended hereto.

 

16.2 Seller shall deliver the Aircraft and spares to Buyer together with applicable documentation and manuals therefor in hard copy or otherwise (below in this Clause 16 collectively referred to as “ Manuals ”), and Buyer shall accept the same, with the benefits and subject to all the terms and conditions of the warranties and other provisions contained in Appendix F ( Technical Publications ).

 

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17. ADDITIONAL AIRCRAFT

In addition to the fifteen ( 15 ) Firm Aircraft, Buyer shall have the option to purchase fifteen ( 15 ) additional ATR 42-600 or ATR 72-600 aircraft (the “ Additional Aircraft ”) as provided for in Appendix Q ( Additional Aircraft ).

 

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18. MISCELLANEOUS

 

18.1 Save as expressly provided in this Contract, no alteration of the terms of this Contract shall be effective unless contained in a written amendment signed by Authorised Representatives of both Parties.

 

18.2 If a provision of this Contract is or becomes illegal, invalid or cannot be enforced in any jurisdiction that will not affect:

 

  18.2.1 The legality, validity or enforceability in that jurisdiction of any of the other provisions of this Contract; or

 

  18.2.2 The legality, validity or enforceability in any other jurisdiction of that or any other provision of this Contract.

 

18.3 This Contract is the whole agreement between Seller and Buyer for purchasing the Aircraft and supersedes and replaces all previous agreements, understandings, commitments or representations whatsoever whether oral or written, including for the sake of clarity the HoA.

 

18.4 Buyer and Seller agree that this Contract 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 Purchase Price of the Aircraft and the other mutual agreements of the Parties set forth herein were arrived at in consideration of the provisions hereof specifically including all waivers, releases and renunciations by Buyer set out herein.

 

18.5 The time stipulated in this Contract for all payments by Buyer to Seller or Seller to Buyer and for Buyer and Seller to perform their respective obligations under this Contract will be of the essence.

 

18.6 Each Party shall use commercially reasonable endeavours to procure that third parties shall, execute and sign such documents and do such acts and things as any other Party shall reasonably request in order to carry out the intended purpose of this Contract or to establish, perfect, preserve or enforce that Party’s rights under this Contract.

 

18.7 The indemnities, waivers and disclaimers set forth in this Contract including but not limited to these contained in Clauses 14 ( Indemnity & Insurance ), 16 ( Customer Support Services, Guarantees and Warranties ), 23 ( Confidential Nature of Contract and Information ), 29 ( Waiver, Release and Renunciation ) and in the Appendices shall survive the expiration or termination of this Contract with respect to any or all Aircraft.

 

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19. [*]

 

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20. [*]

 

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21. TERMINATION

 

21.1 In addition to the termination rights set out in Clause 12 ( Excusable Delay ), Clause 13 ( Inexcusable Delay ) and Clause 27 ( Export Control ), the Parties agree that they shall be entitled to exercise the termination rights set out in this Clause 21.

 

21.2 In the event that either Seller or Buyer:

 

  21.2.1 Admits in writing its inability to pay its debts as they become due or makes a general assignment for the benefit of creditors;

 

  21.2.2 Files a voluntary petition under bankruptcy or insolvency laws or if such a petition is filed against Buyer and such petition is not discharged within[*];

 

  21.2.3 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;

 

  21.2.4 Commences under the laws of any competent jurisdiction any proceeding involving its insolvency, readjustment of debt, dissolution, liquidation or any other similar proceeding for the relief of financially distressed debtors or becomes subject as debtor to an order for relief under the United States Bankruptcy Code ;

 

  21.2.5 Becomes the object of any proceeding or action of the type described in subsections 21.2.2 or 21.2.3 above relating to a substantial part of its assets and such proceeding or actions remains undismissed or unstayed for a period of at[*];

 

  21.2.6 Is divested of a substantial part of its assets for a period of at least sixty ( 60 ) calendar days;

 

  21.2.7 Announces its intent to take any of the foregoing actions or takes any corporate action in furtherance of any of the foregoing actions,

then the other Party may, to the fullest extent permitted by law and subject to Clause 22 ( Termination Procedure ), by written notice terminate all or part of this Contract.

 

21.3 If Buyer fails to:

 

  21.3.1 Take delivery of the Aircraft when tendered to Buyer on the Scheduled Delivery Date in the conditions required by this Contract; or

 

  21.3.2 Deliver the signed Certificate of Acceptance to Seller if and when the Aircraft is tendered to Buyer on or prior to the Scheduled Delivery Date in the conditions required by this Contract; or

 

  21.3.3 Pay the Purchase Price to Seller upon Delivery of the Aircraft in the conditions required by this Contract on or prior to the Scheduled Delivery Date; or

 

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  21.3.4 Pay any Pre-Delivery Payment set forth in Clause 6.2 of this Contract on the due date for such payment; or

and such failure (a “ Buyer Default ”) continues for a period of more than [*] after the receipt of notice by Buyer from Seller to correct such failure, then Seller may (without prejudice to its other rights under this Contract and at law):

 

  (a) Terminate all or part of this Contract by written notice to Buyer; and/or

 

  (b) Proceed by appropriate court or arbitration action or actions to enforce performance of this Contract, including without limitation the payment of all other amounts due by Buyer to Seller pursuant to this Contract; and/or

 

  (c) Proceed by appropriate court or arbitration action to recover damages for breach of this Contract. Seller shall be entitled to recover from Buyer and Buyer shall pay on demand the reasonable out-of-pocket costs and expenses, including reasonable legal fees and expenses, incurred or suffered by Seller in connection with or arising out of any action to enforce this Contract.

In the event of termination of this Contract following a Buyer Default, Seller shall, without prejudice to any other rights and remedies available to it under this Contract or by law, and Seller shall refund to Buyer the Pre-Delivery Payments actually paid by Buyer, less an amount corresponding to the actual loss and damages sustained by Seller (including without limitation the difference between the Purchase Price and the price at which the terminated Aircraft is or are resold by Seller, the reasonable financial and legal costs, the reasonable reconfiguration costs for the resale of the terminated Aircraft, and the reasonable costs for remarketing the terminated Aircraft), but in no event shall Buyer be liable for any other consequential damages or any other indirect, incidental, special, exemplary or punitive damages.

 

21.4 Use of the term “termination” as set forth in this Clause 21 and in Clause 22 shall not be construed as renunciation or discharge of any claim in damages for breach.

 

21.5 Seller is hereby entitled to set off against any amount owed by it or any of its affiliates hereunder any amounts owed by Buyer to it or to any of its Affiliates under this Contract.

 

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22. TERMINATION PROCEDURE

 

22.1 To the fullest extent permitted by law, the termination of this Contract, pursuant to Clause 12 ( Excusable Delay ), Clause 13 ( Inexcusable Delay ), Clause 21 ( Termination ) and Clause 27 ( Export Control ) shall become effective immediately upon receipt by the relevant Party of the written notice sent by the other Party without it being necessary for either Party to take any further action or to seek any consent from the other Party or any court having jurisdiction.

 

22.2 The right of the Parties to terminate this Contract shall be without prejudice to any other rights and remedies available to such Party to seek termination of this Contract before any court having jurisdiction or through arbitration pursuant to any failure by the other Party to perform its obligations under this Contract.

 

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23. CONFIDENTIAL NATURE OF CONTRACT AND INFORMATION

 

23.1 Disclosure

The terms and conditions of this Contract, any other documents or data exchanged between Buyer and Seller for the fulfilment of their respective obligations under this Contract and any information in relation thereto (collectively or individually referred to as the “ Confidential Information ”) are confidential between the Parties and shall not, without prior written consent of the other Party be disclosed by either Party in whole or in part to any third party except:

 

  (i) To each Party’s respective professional advisors having a need to know provided that any such party receiving the information shall agree not to disclose and to treat such information as strictly confidential; and/or

 

  (ii) As may be required by applicable laws or regulations, it being further agreed that Buyer shall use commercially reasonable efforts to limit the disclosure of the content of the Confidential Information to the extent legally required in any public filing required to be made by Buyer with any governmental or regulatory agency. Buyer agrees that prior to such disclosure or filing, Seller and Buyer shall jointly review and agree on the terms and conditions of the document to be publicly filed or disclosed in compliance with applicable laws and regulations, and Buyer shall endeavour in good faith to provide Seller with a reasonable opportunity to block any such disclosure by court action or otherwise at Seller’s expense.

 

23.2 Use of Confidential Information

 

  23.2.1 Any and all studies, reports, analyses, forecasts, or other documents relating to traffic, revenue, or costs predicted in connection with Buyer’s possible use of the Aircraft given or made available to Buyer, whether prepared in whole or in part by Seller or at Seller’s direction, shall, if used by Buyer, be a matter wholly for Buyer’s judgement and in no circumstances shall Seller be liable to Buyer or any third party for any consequences that may flow from such use and Buyer indemnifies Seller, its Affiliates and their respective agents, directors and employees in respect of any such liability to any third party. Such documents are strictly confidential and shall not without prior written consent of Seller be disclosed in whole or in part by Buyer to any third party except as may be required under any applicable law.

 

  23.2.2 Buyer shall treat the Manuals as strictly confidential and shall neither disclose nor reproduce any such Manuals to any third party without the prior written consent of Seller except:

 

  (i) As may be required under any applicable law or regulation; and/or

 

  (ii) As may be reasonably required for the normal operation, maintenance, overhaul and repair of the Aircraft, to the maintenance and service providers of any of the Aircraft, provided that Buyer ensures that such maintenance and service provider treat the Manuals as confidential and do not disclose them to any third party; and or

 

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  (iii) As may be required in connection with the sale or lease of an Aircraft, as the case may be, provided that Buyer ensures that the new operator or the new owner of the Aircraft, further to such sale or lease, treat the Manuals as confidential and do not disclose them to any third party except as may be reasonably required for the normal operation, maintenance, overhaul and repair of such Aircraft.

 

23.3 Communication

The Parties shall not make any press release concerning the whole or any part of this Contract and/or subject matter hereof or of any future addendum hereto without the prior written consent of the other Party hereto.

 

23.4 Termination

The provisions of this Clause 23 shall survive any termination or expiry of this Contract for a period of [*] thereafter.

 

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24. COLLATERAL AGREEMENTS AND REPRESENTATIONS

 

24.1 The Parties have negotiated this Contract (and the other related agreements entered into between the Parties on the date hereof) on the basis that the terms and conditions set out herein represent the entire agreement between them relating in any way whatsoever to the Aircraft and spares which form the subject matter of this Contract and accordingly they agree that all liabilities for and remedies in respect of any representations made are excluded save insofar as provided in this Contract (and the other related agreements entered into between the Parties on the date hereof). Neither Party shall have any claim against the other on the grounds that it has placed any reliance whatsoever on any representations, agreements, statements, or understandings, whether oral or in writing, made prior to the date of this Contract, other than those expressly incorporated or recited in this Contract (or any other related agreement entered into between the Parties on the date hereof).

 

24.2 Except as otherwise provided in this Contract, any and all studies, reports, analyses, forecasts, or other documents relating to traffic, revenue, or costs predicted in connection with Buyer’s possible use of the Aircraft prepared by or at the direction of Seller and given to Buyer do not constitute or evidence warranties, representations, or any contractual or other commitments on the part of Seller and do not form part of this Contract, and Buyer waives any claims against Seller that it has placed any reliance on any statement in any such document for any purpose. All assumptions reflected in such documents are based on information available to Seller. The accuracy and reliability of such information varies according to the availability of information to Seller; therefore each assumption must be considered taking this fact into account. Accordingly, it is understood that conclusions based on these assumptions are of necessity judgmental and Seller disclaims responsibility and Buyer accepts that Seller is not liable to Buyer or to any third party for any decisions made, expenses incurred or opportunities foregone by Buyer after receipt of any such document;.

 

24.3 Seller represents to Buyer that, at the Effective Date:

 

  (1) It is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation;

 

  (2) The obligations expressed to be assumed by it in this Contract are legal, valid, binding and enforceable obligations except as such enforceability may be limited by applicable laws affecting buyers and creditors rights generally and by general principles of equity; and

 

  (3) It has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into and performance of this Contract and the transactions contemplated by this Contract.

 

24.4 Buyer represents to Seller that, at the Effective Date:

 

  (1) It is a corporation or corporations, duly incorporated and validly existing under the law of its or their respective jurisdictions of incorporation;

 

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  (2) It has the power to own its assets and to carry on its business as it is being conducted;

 

  (3) The obligations expressed to be assumed by it in this Contract are legal, valid, binding and enforceable obligations except as such enforceability may be limited by applicable laws affecting sellers and creditors rights generally and by general principles of equity; and

 

  (4) It has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into and performance of this Contract and the transactions contemplated by this Contract.

 

24.5 Each of Seller and Buyer represents and warrants to the other that it is not entitled to claim any sovereign or similar immunity and agrees irrevocably and unconditionally:

 

  (i) agrees that if the other brings legal proceedings against it or its assets in relation to this Contract no sovereign or similar immunity from such legal proceedings (which will be deemed to include suit, court jurisdiction, attachment prior to judgment, attachment in aid of execution of a judgment, other attachment, the obtaining of judgment, execution of a judgment or other enforcement or legal process or remedy) will be claimed by or on behalf of itself or with respect to its assets; and

 

  (ii) waives any such right of sovereign or similar immunity which it or its assets now has or may in the future acquire and agrees that the foregoing waiver shall have the fullest extent permitted under the Foreign Sovereign Immunities Act of 1976 of the United States of America and is intended to be irrevocable for the purposes of such Act.

 

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25. ASSIGNMENT AND TRANSFER OF CONTRACT

 

25.1 This Contract is not assignable in whole or in part without the written consent of the other Party, except as set out in Clause 25.2 and 25.2 below.

 

25.2 Assignment by Buyer

 

  25.2.1 Buyer shall not assign this Contract in whole or in part, without the prior written agreement of Seller, except as otherwise provided for under Clauses 25.2.2, 25.2.3 and 25.2.4 of this Contract.

 

  25.2.2 Buyer may assign its rights to purchase the Aircraft for the purpose of financing of the Aircraft, in whole or in part at Delivery of such Aircraft pursuant to an assignment agreement in form and substance reasonably acceptable to Seller, provided, however, that (i) Buyer so notifies Seller in writing in advance, and (ii) such assignment is subject to the limitations of this Contract including but not limited to all disclaimers and liability limitations set forth herein, and (iii) Buyer shall not be released from and shall remain the primary obligor and primarily liable for all obligations of the assignee under this Contract unless Seller otherwise consents.

 

  25.2.3 Buyer may also assign its rights and obligations under this Contract to Buyer’s Subsidiaries or any other of its Affiliates (and such Buyer’s Subsidiaries or Affiliates may re-assign their rights and obligations to Buyer), including for the avoidance of doubt also to Affiliates that are not operators of the Aircraft, provided however always that:

 

  (i) Buyer so notifies Seller in writing in advance;

 

  (ii) Buyer shall remain the primary obligor for all obligations of the Affiliate under this Contract unless Seller otherwise consents;

 

  (iii) Buyer shall remain the primary obligor for all obligations of Buyer’s Subsidiaries or the Affiliate under any financing arrangement (including but not necessarily limited to export credits) in respect of the Aircraft unless Seller otherwise consents; and

 

  (iv) Such assignment is subject to the disclaimers and limitations of this Contract.

 

  25.2.4 Buyer may, without the prior written consent of Seller, assign in whole or in part any of its rights in connection with any merger, re organization or transfer of its assets except if such assignment or transfer has a material adverse effect on Seller’s rights and obligations under this Contract taken as a whole.

 

25.3 Assignment by Seller

 

  25.3.1 Seller may assign in whole or in part any of its rights to receive monies hereunder without the prior written consent of Buyer.

 

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  25.3.2 Seller may, without the prior written consent of Buyer, assign in whole or in part any of its rights in connection with any merger, re organization or transfer of its assets except if such assignment or transfer has a material adverse effect on Buyer’s rights and obligations under this Contract taken as a whole.

 

  25.3.3 Seller may, without the prior written consent of Buyer, sell, assign or transfer any of its rights and obligations under this Contract to any person, except if such assignment, sale or transfer has a material adverse effect on Buyer’s rights and obligations under this Contract taken as a whole.

 

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26. APPLICABLE LAW

 

26.1 PURSUANT TO AND IN ACCORDANCE WITH SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, THE PARTIES HERETO AGREE THAT THIS CONTRACT IN ALL RESPECTS AND ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS CONTRACT OR AN AIRCRAFT OR ANY OTHER EQUIPMENT, PARTS OR SERVICES TO BE PROVIDED HEREUNDER OR ANY DEALINGS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS CONTRACT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THE SELLER/BUYER RELATIONSHIP BEING ESTABLISHED, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS AND OTHER COMMON LAW AND STATUTORY CLAIMS, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK AS APPLIED TO CONTRACTS TO BE PERFORMED WHOLLY WITHIN THE STATE OF NEW YORK (EXCLUSIVE OF SECTION 7-101 OF THE NEW YORK GENERAL OBLIGATIONS LAW WHICH IS INAPPLICABLE TO THIS CONTRACT).

 

26.2 In the event of a dispute arising in connection with the interpretation, execution or termination of this Contract or any claim or cause of action based upon or arising out of this Contract or an Aircraft or any other equipment, parts or services to be provided hereunder or any dealings between the Parties related to the subject matter of this Contract or the transactions contemplated hereby or the Seller/Buyer relationship being established including contract claims, tort claims, breach of duty claims and other common law or statutory claims, the Parties shall use their commercially reasonable efforts to settle the dispute between them amicably. Should they not succeed in settling said dispute amicably within one (1) month, the dispute shall then be finally settled under the rules of arbitration of the International Chamber of Commerce by three ( 3 ) arbitrators: the first two ( 2 ) appointed by each of Buyer and Seller and the third one, who will act as President, appointed by the other two ( 2 ) arbitrators. In case the two ( 2 ) arbitrators do not agree on this choice, the third arbitrator will be appointed in accordance with the Arbitration and ADR Rules of the International Chamber of Commerce.

 

26.3 The arbitration shall take place in London, England and the language to be used in the arbitral proceedings shall be English. The arbitral award shall be final and binding upon the Parties.

 

26.4 Recourse to jurisdictions is expressly excluded except as provided for in the Arbitration and ADR Rules of the International Chamber of Commerce for interim and conservatory measures and injunction relief.

 

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27. EXPORT CONTROL

 

27.1 Buyer warrants that the Aircraft shall be used for commercial purposes only, and shall be used and/or re-exported (where relevant), in compliance with all applicable export control laws and regulations (“ Export Laws ”), including those applicable to parts and components of the Aircraft.

 

27.2 Buyer acknowledges that Seller’s obligations under this Contract are subject to all such Export Laws, and that Seller shall in no event be liable in the event that the performance by Seller of any of its obligations under this Contract is affected or impaired by Export Laws.

 

27.3 It is hereby further agreed that if the Delivery Date is delayed by reason of any Export Laws for more than[*], each Party shall be entitled to terminate the Contract by written notice given to the other Party within [*] after the expiration of such [*] period.

 

27.4 Any termination under this Clause 27 shall discharge the Parties of all obligations and liabilities with, and solely with, respect to such undelivered Aircraft, services, data or other items applicable thereto and to be provided hereunder. [*].

 

27.5 Seller shall return the Buyer Furnished Equipment to Buyer promptly following the termination of the Contract according to this Clause 27.

 

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28. NOTICES

 

28.1 Any notices to be served hereunder may be addressed in the case of Seller:

 

By post to:    Avions de Transport Regional
   1 Allée Pierre Nadot
   31712 Blagnac Cedex
   France
Attention:    Senior Vice President Commercial
By facsimile to:    +33 5 6221 6336
By email to:    contracts@atr.fr

 

28.2 Any notices to be served hereunder may be addressed in the case of Buyer:

 

In the case of Buyer:
By post to:    AVIANCATACA HOLDING S.A.
   Av. 26 No 59A-15, Piso 10
   Bogota D.C.
   Colombia
Attention:    Mrs Elisa Murgas de Moreno
By facsimile to:    +57 1 423 55 00
With a copy to:   
By post to:    Grupo Taca Holdings Limited
   Edificio TACA, Santa Helena
   Antiguo Cuscatlan
   El Salvador
Attention:    Mr Eduardo Iglesias
By facsimile to:    +503 2257 8151

 

28.3 All notices and requests required or authorised hereunder shall be given in writing either by personal delivery to an Authorised Representative of the Party to whom the same is given or by registered mail (return receipt requested) or by facsimile and the date upon which any such notice or request is so personally delivered or if such notice or request is given by facsimile, the date upon which it is received by the addressee shall be deemed to be the effective date of such notice or request, provided that the sender has received oral or written confirmation from the recipient that all pages of the notice or request were received in legible form. Advance copies may however be delivered by email to the electronic addresses set forth above.

 

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28.4 All notices, communications and documents to be given under this Contract shall be in English. If they are not in English, they must be given with a certified English translation. If there is any difference between the English version of any notices given or to be given in connection herewith and any version in any other language, the English version will apply.

 

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29. * [2 pages have been omitted in accordance with a request for confidential treatment.]

 

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EXECUTION PAGE

IN WITNESS WHEREOF the Parties have signed this Contract in two ( 2 ) original copies in the English language on the date first above written, each Party acknowledging receipt of one such copy.

 

For and on behalf of:
AVIANCATACA HOLDING S.A.
Signature:
Name:
Title:
For and on behalf of:
AVIONS DE TRANSPORT REGIONAL G.I.E
Signature:
Name:
Title:

 

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APPENDIX A

SPECIFICATION

ATR 72-600 SPECIFICATION

The Technical Specification DT 1095/12 Edition 1 / Revision 1dated October 2012 is issued as a separate document. The Technical Specification has been modified to incorporate the Options and Specification Change Notices listed herein. [*].

 

* [5 pages have been omitted in accordance with a request for confidential treatment.]

 

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ATR 42-600 SPECIFICATION

The Technical Specification DT 1096/12 Edition 1 / Revision 1dated October 2012 is issued as a separate document. The Technical Specification has been modified to incorporate the Options and Specification Change Notices listed herein. For the sake of clarity the Options and Specification Change Notices listed herein (Item 2) are included into the Base Purchase Price of the Aircraft.

 

* [7 pages have been omitted in accordance with a request for confidential treatment.]

 

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APPENDIX C

LIST OF DOCUMENTS EXCHANGED ON DELIVERY

 

1. CERTIFICATES

 

1.1 Copy of ATR 42-500 / ATR 72-212A Type Certificate (EASA A.084) as applicable

 

1.2 Copy of ATR 42-500 / ATR 72-212A Type Certificate Data Sheet (EASA A.084) as applicable

 

1.3 Copy of ATR 42-500 / ATR 72-212A Type Certificate Data Sheet – Nuisance Limitation (EASA A.084) as applicable

 

1.4 Copy of general flammability certificates (or any other equivalent documents allowing to demonstrate compliance with flammability regulations such as declaration of design and performances for pax seats / attendant seats / galley and flammability test reports for partition / carpet / curtain / floor covering)

 

1.5 Export Certificate of Airworthiness

 

1.6 Noise limitation certificate for export

 

1.7 Non registration and non mortgage certificate

 

1.8 Temporary permit to fly (unless not granted by Civil Aviation Authority)

 

2. TECHNICAL DOCUMENTATION

 

2.1 ATR 72-600 Specification/ATR 42-600 Specification

 

2.2 Design standard SCN / Option list

 

2.3 Certified layout drawing

 

2.4 Aircraft Modification List

 

2.5 Aircraft Inspection Report

 

2.6 Airworthiness Directives Compliance Check List

 

2.7 Log Books

Aircraft Log Book

Engine Log Books (LH – RH)

 

   

Turbomachine (LH – RH)

 

   

Gearbox reduction (LH – RH)

 

   

List of engines components (RH – LH)

 

   

List of Service Bulletins embodied on Engines (LH – RH)

Propellers Log Books (LH – RH)

 

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Landing Gear Log Book

 

   

Main (LH – RH)

 

   

Nose

Batteries Log Books

ELT Log Book

 

2.8 Loose / emergency equipment list and location

 

2.9 Weight and balance report

 

2.10 Commitment Letter (if any)

 

2.11 Technical Publications

 

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APPENDIX D

SPARE PARTS PROCUREMENT

CONTENTS

 

1    GENERAL      68   
   1.1    Preamble      68   
   1.2    Support Period      68   
   1.3    Warranties      68   
2    INITIAL PROVISIONING      69   
   2.1    Initial Provisioning Purchase Orders      69   
   2.2    Initial Provisioning Data      69   
   2.3    Initial Provisioning Conference      70   
   2.4    Initial Provisioning Ordering & Delivery      70   
   2.5    Initial Provisioning Investment Forecast      70   
3    INVENTORY      70   
   3.1    General      70   
4    RE-PROVISIONING      70   
   4.1    General      70   
   4.2    AOGs      70   
   4.3    Critical/Routine Orders      71   
5    PACKAGING      71   
6    PRICING      71   
   6.1    Seller’s Price Catalogue      72   
   6.2    Quotations      72   
   6.3    Cancellation Charges      72   
7    PAYMENT AND TRANSFER OF TITLE      72   
8    SPARES SERVICES      73   
   8.1    Standard Exchange and Repair Services      73   
   8.2    Lease Service      73   
EXHIBIT A: SPARE PARTS SERVICES      74   

 

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1. GENERAL

 

1.1 Preamble

This Appendix D describes the terms and conditions of the support that will be provided by Seller (or that Seller will cause a designated partner to provide) to Buyer in respect of the spares falling into the following spares’ usage categories:

 

UC 1:    Manufacturer proprietary items (“ Proprietary Items ”)
UC 2:    Vendors units (“ Vendors Units ”)
UC 7:    Vendors units’ breakdown parts (“ Vendors’ Breakdown Parts ”)
UC 8:    Modification Kits
UC 9:    Repair Kits

Seller shall cause Interturbine Aviation Logistics, or any other supplier designated by Seller to provide to Buyer spare support for spares falling into the following spares’ usage categories:

 

UC 3:    Hardware and standard items (“ Hardware ”)
UC 5:    Raw and bulk materials (“ Raw & Bulk Materials ”)
UC 6:    Ingredients (“ Ingredients ”)

Seller shall cause ECA Sinters, or any other supplier designated by Seller, to provide to Buyer spare support for spares falling into the following spares’ usage category:

 

UC 4:    Tools, test and ground support equipment (“ GSE ”)

 

1.2 Support Period

During a period commencing from the date of this Contract and continuing as long as at least [*] of the ATR model are operated in commercial air transport service (the “ Support Period ”), Seller will provide the services contemplated by this Appendix D, including, not limited to, maintaining or have maintained a commercially reasonable inventory of spare parts as contemplated by Clause 3 of this Appendix D and furnishing interchangeable and/or equivalent products, in each case adequate to meet Buyer’s needs for repairs and replacements on all Aircraft of the above mentioned model. Unless otherwise expressly stated in this Appendix D, such spares will be sold and delivered with reasonable promptness upon receipt of Buyer’s orders.

Seller shall use its commercially reasonable efforts to obtain for Buyer’s benefit services similar to those described in this Appendix D from all Vendors of Vendor Parts originally installed on the Aircraft.

 

1.3 Warranties

Unless otherwise expressly stated in this Appendix D or in Appendix E, the general sales conditions applicable to spare parts sales and spares support and services, as detailed in the “ ATR Terms and Conditions for the Sale of Goods and Services ” and available on-line on Seller’s Product Support & Services web site (current URL: www.atractive.com), will apply to spare parts purchased under this Appendix D.

 

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2. INITIAL PROVISIONING

 

2.1 Initial Provisioning Purchase Orders

Buyer’s purchase orders of spares addressed to Seller shall be considered as initial provisioning purchase orders (“ IPPOs ”) provided they are received and processed by Seller within [*] following the delivery of the Aircraft. All spares delivered pursuant to such IPPOs shall be considered as initial provisioning spare parts package (“ IP Spares ”).

 

2.2 Initial Provisioning Data

Initial provisioning data (“ IP Data ”) shall be furnished by Seller to Buyer in the form of listing or computer file at a time to be further agreed between Seller and Buyer providing Buyer with the necessary evaluation time and allowing the on-time delivery of the IP Spares.

Seller shall prepare and furnish to Buyer the following data in the English language.

 

  2.2.1 Seller’s Data

Seller will provide to Buyer the following:

 

  (i) A list of long lead time items and main components of the Aircraft as advanced data, on hard copy at a time to be mutually agreed;

 

  (ii) A complete initial provisioning recommendation that includes Proprietary Items, Vendors Units, Hardware and Ingredients at the IP Conference (as hereafter defined); and

 

  (iii) A customised recommendation of GSE and Raw & Bulk Material as required for the maintenance of the Aircraft.

 

  2.2.2 IP Data compliance and configuration guarantee

Seller shall ensure that its IP Data supplied to Buyer shall comply with the latest certification standard of the Aircraft and that said data will allow spares’ orders consistent with the status of the parts installed on Buyer’s Aircraft.

This provision shall not cover the parts incorporated on Buyer’s Aircraft as a consequence of Buyer’s modifications unknown to Seller and not designed nor agreed by Seller.

 

  2.2.3 Cross reference / interchangeable parts listing

Seller shall also supply to Buyer a list of cross reference/interchangeable parts including hardware, sealant, adhesives, and electrical connectors. Such listing shall cross reference parts to standard aeronautical (“ AN ”), military (“ MS ”) or other norms.

 

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2.3 Initial Provisioning Conference

Seller shall organise at Buyer’s request an initial provisioning conference (the “ IP Conference ”) for the purpose of preparing the initial provisioning of spare parts to Buyer. The IP Conference will take place at Seller’s premises or at any other mutually agreed location as early as possible after the Effective Date.

 

2.4 Initial Provisioning Ordering & Delivery

 

  2.4.1 Buyer’s IPPOs shall be placed no later than [*] following the IP Conference.

 

  2.4.2 In order to ensure the operation of Buyer’s Aircraft, and subject to the IPPOs being placed as mentioned here above, Seller shall deliver the IP Spares included in the initial provisioning as follows:

 

  (i) At least [*] of the quantities of each item ordered, one ( 1 ) month prior to delivery of the Aircraft to Buyer.

In the event of the delivery of the Aircraft being scheduled less than [*] following the IP Conference, the quantities of each item ordered to be delivered [*] prior to delivery of the first Aircraft to Buyer will be reviewed and agreed during the IP Conference.

 

  (ii) Balance quantity no later than [*] after the delivery of the Aircraft considered in the corresponding IPPOs.

 

2.5 [*]

 

2.6 Spare Engines

[*] .

 

3. INVENTORY

 

3.1 Seller undertakes to keep a commercially reasonable inventory of spare parts in its own stores, including spares parts as defined in Clause 1.1 of this Appendix D, and shall supply interchangeable and/or alternate items to meet the requirements made known by Buyer for replacement or repair purposes.

 

4. RE-PROVISIONING

 

4.1 General

Seller shall support Buyer’s re-provisioning orders of spare parts from its spares centres.

 

4.2 AOGs

Seller will provide [*] per day, [*] a week emergency service to allow the supply of the concerned spare part(s) available in Seller’s stores, workshops and production line, including high-cost/long lead time spare parts.

 

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Seller will respond to Buyer’s AOG notice within [*] after receipt of an AOG order, and will use its commercially reasonable efforts to deliver Ex-Works (Incoterms 2010) from its warehouse within [*] of receipt of an AOG order.

 

4.3 Critical / Routine Orders

 

  4.3.1 Critical Orders

Seller will acknowledge receipt of Buyer’s critical order within [*] and will use its commercially reasonable efforts to deliver Ex-Works (Incoterms 2010) from its warehouse the parts within [*] of its receipt of Buyer’s critical order.

 

  4.3.2 Routine Orders

Seller will acknowledge receipt of Buyer’s routine order within [*] and will use its commercially reasonable efforts to deliver Ex-Works (Incoterms 2010) from its warehouse the parts within [*] of its receipt of Buyer’s routine order.

 

  4.3.3 Slow moving items sourced by Seller on a back to back order basis: Seller will acknowledge receipt of such orders within [*] and will use its commercially reasonable efforts to deliver Ex-Works (Incoterms 2010) from its warehouse the parts as promptly as practicable and in any event within [*] from the date of receipt of such order.

 

  4.3.4 Other items (insurance items, modification kits etc.): delivery lead-times quoted upon request.

Exact delivery lead-time will be confirmed to Buyer upon acknowledgement by Seller of its order and will supersede any previous information.

 

5. PACKAGING

 

5.1 All prices shall include packaging according to ATA SPEC 300 category 3 or category 2 (as appropriate). Seller shall provide for spare parts if so requested by Buyer with an order packaging according to ATA SPEC 300 category 1 at cost price less Seller’s cost for category 2 packaging. Seller accepts the burden of proof of proper packaging of spare parts delivered to Buyer.

 

5.2 Seller shall include in and fasten outside all shipping containers either packaging cards prepared in accordance with ATA SPEC 300 or packaging sheets at Buyer’s choice. Seller shall also include in the container copy of the pro-forma invoice for customs clearance.

 

6. PRICING

The provisions contained in this Clause 6 of this Appendix D will apply to both initial provisioning and re-provisioning orders.

 

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6.1 Seller’s Price Catalogue

Price for Proprietary Items, Vendors Units or other spare parts will be provided directly through the ATR support web site (the “ Spare Parts Catalogue ”).

Spare Parts Catalogue prices shall be effective at the date of issue of each year. However, ATR reserves the right to increase or decrease said Spare Parts Catalogue prices during [*] period in case of significant and justified error in the published price of an item in the Spare Parts Catalogue or, in particular for the non- Proprietary Items, in case of change of price from the Vendor or supplier, with reasonable prior notice to Buyer. The price of any spare parts ordered by Buyer prior to the change in catalogue price shall not be affected by such change.

Every year, upon:

 

   

Application of specific indexation mechanism included in each suppliers contract;

 

   

Negotiations performed with Vendors;

 

   

Feedback information from ATR customer base and suppliers network;

 

   

World wide spares market assessment.

Seller will ensure that the variations applied to its pricing policy remain in line with the variations applied during the year in the regional aircraft market.

All prices listed in the Spare Parts Catalogue are expressed in Dollars or Euros on Ex-Works basis (Incoterms 2010), and exclusive of all taxes and duties.

 

6.2 Quotations

Prices for items not published in the Spare Parts Catalogue will be quoted within [*] for procurable items (items having a part number) and[*] for non-procurable items (items not having a part number) from Buyer’s request for quotation. Seller shall provide service bulletin kit prices within[*] from service bulletin approval.

 

6.3 Cancellation charges

In the event Buyer elects to cancel a spare parts order already received by Seller for spare parts not readily resalable (that is spare parts for which quantities sold by Seller are less than [*]), Seller may, at its discretion, charge Buyer a reasonable cancellation fee for refusing to take delivery of all or part of the goods.

Seller, at its option, shall recover cancellation charges, which correspond to a percentage or the total of the then current brand new price of the spares covered by the order, depending on the elapsed time from the order date.

 

7. PAYMENT AND TRANSFER OF TITLE

 

7.1 Payment shall be made by Buyer to Seller within [*] from the date mentioned on the invoice or invoice statements.

 

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7.2 Property in and title to the spares part(s) will pass to Buyer upon the (i) [*] receipt in full by Seller of the price for such spare part(s) and (ii) [*].

 

8. SPARES SERVICES

 

8.1 Standard Exchange and Repair Services

A standard exchange and repair service will be available from Seller for some overhaulable / repairable items including Vendors Units and aircraft parts listed in Exhibit A to this Appendix D.

The applicable conditions will be set forth in the spares support and services catalogue as published on ATR support website and/or in separate documents, as applicable.

 

8.2 Lease Services

A lease service will be available from Seller through a lease agreement and shall apply to:

 

  (i) Aircraft parts listed hereto as Exhibit A to this Appendix D;

 

  (ii) Components listed in the spares support & services catalogue as published on ATR support website.

The applicable terms and conditions will be set forth in the spares support & services catalogue and/or in separate documents, as applicable.

 

9. DISCLAIMER

All parts, services, warranties and guarantees provided hereunder are provided subject to Clause 29 of the Contract.

 

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EXHIBIT A TO

APPENDIX D

SPARE PARTS SERVICES

List of insurance items eligible for repair, lease or standard exchange:

 

 

DOOR ASSY ENTRY

 

 

DOOR ASSY HATCH

 

 

DOOR ASSY EMERGENCY

 

 

DOOR ASSY CARGO

 

 

DOOR ASSY SERVICE

 

 

DOOR ASSY LH LANDING GEAR

 

 

DOOR ASSY RH LANDING GEAR

 

 

ELEVATOR LH WITH TABS

 

 

ELEVATOR RH WITH TABS

 

 

RUDDER ASSY

 

 

TAIL CONE ASSY

 

 

AIR INTAKE DUCT

 

 

AIR INLET STRUCTURE

 

 

LEADING EDGES

 

 

FLAPS ASSY INBOARD

 

 

FLAPS ASSY OUTBOARD

 

 

AILERON ASSY LH

 

 

AILERON ASSY RH

 

 

SPOILER LH

 

 

SPOILER RH

 

 

ENGINE MOUNT ASSY

 

 

ENGINE COWLS

 

 

ENGINE NACELLE FAIRING

 

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APPENDIX E

WARRANTIES

 

1. SELLER’S WARRANTY

 

1.1 Seller’s Warranties on Aircraft

Subject to Clause 1.4, Clause 1.5 and Clause 2 of this Appendix E, Seller warrants to Buyer that each Aircraft shall, at the time of delivery of the Aircraft to Buyer:

 

  (i) Be free from defects in material;

 

  (ii) Be free from defects in workmanship (including processes of manufacture);

 

  (iii) Be free from defects in design (including selection of materials) having regard to the state of the art at the date of its design; and

 

  (iv) Be free from defects arising from failure to conform to the Specification of the Aircraft, except to those portions of the Specification where it is expressly stated that they are estimates, approximations or design aims.

 

1.2 Seller’s Warranties on Seller Parts

Subject to Clause 1.4 and Clause 1.5 of this Appendix E, Seller warrants to Buyer that each Seller Part shall, at the time of delivery of the Aircraft to Buyer:

 

  (i) Be free from defects in material;

 

  (ii) Be free from defects in workmanship (including processes of manufacture);

 

  (iii) Be free from defects in design (including selection of materials) having regard to the state of the art at the date of its design; and

 

  (iv) Be free from defects in its installation in the Aircraft.

 

1.3 Seller’s Warranties on Vendor Parts

Subject to Clause 1.4 and Clause 1.5 of this Appendix E, Seller warrants to Buyer that each Vendor Part shall, at the time of delivery of the Aircraft to Buyer:

 

  (i) Be free from defects in its installation in the Aircraft;

 

  (ii) Be suitable for its intended use; and

 

  (iii) Be installed in such a manner as not to invalidate any Vendor’s Warranties.

 

1.4 Warranty Period

Seller’s Warranties shall be limited to those defects that become apparent within: [*] after delivery of the affected Aircraft (the “ Warranty Period ”).

 

1.5 Exclusions

 

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  1.5.1 Buyer’s rights under Seller’s Warranties are subject to the Aircraft and Seller Parts being maintained, overhauled, repaired and operated in accordance with instructions issued by Seller, or with the instructions issued or approved by Buyer’s or the Operator’s Airworthiness Authorities, as the case may be.

 

  1.5.2 Seller’s liability under Seller’s Warranties shall not extend to fair wear and tear nor to:

 

  (i) Any defect in any Aircraft or Seller Part resulting from any repair, alteration or modification after delivery except by Seller or in a manner approved or authorised by Seller;

 

  (ii) Any defect in any Aircraft or Seller Part resulting from any operation of the Aircraft in its damaged state subsequent to its involvement in an accident, or for any other reason; and

 

  (iii) Any defect in any Seller Parts from which the manufacturers’ trade mark, name, serial number or other identification marks have been removed;

unless in any such case (except (iii) above), Buyer submits reasonable evidence satisfactory to Seller that the defect was not caused by an event mentioned in Clause 1.5.2. (i) and (ii).

 

1.6 Administration of Seller’s Warranties

Subject to Clauses 1.7 and 2 of this Appendix E, Seller’s Warranties shall be administered as hereinafter provided:

 

  (i) Should Buyer be entitled to make a claim under Seller’s Warranties, Buyer shall within [*] after such discovery file a Warranty Claim addressed to Seller to the attention of ATR customer support directorate and shall promptly send to Seller the relevant Aircraft (or parts thereof) or the relevant Seller Part (as the case may be) alleged to be defective. Buyer’s representative shall further have the right to be present during the disassembly and inspection of any defective Aircraft (or parts thereof) or Seller Part (as the case may be);

 

  (ii) All transportation costs, insurance, and any other expenses in connection with return of the defective Aircraft (or parts thereof) or Seller Part (as the case may be) to Seller’s facilities (or to any facility designated by Seller) shall be borne [*]. All transportation costs, insurance and any other expenses in connection with return of the Aircraft (or parts thereof) or Seller Parts (as the case may be) repaired under the Seller’s Warranties to Buyer’s main base, shall be borne [*];

 

  (iii) Seller shall at its own expense promptly make all repairs, overhauls or replacements necessary to make the relevant defective Aircraft (or parts thereof) or Seller Part (as the case may be) comply in all respects with Seller’s Warranties specified in Clauses 1.1, 1.2 and 1.3 of this Appendix E. Seller shall have the sole right to determine whether the relevant defective Aircraft (or parts thereof) or Seller Part (as the case may be) shall be repaired, overhauled or replaced (no replacement part, however, having a value or remaining useful life less than the part replaced);

 

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  (iv) If any relevant defective Aircraft (or parts thereof) or Seller Part (as the case may be) cannot be repaired or overhauled economically, Seller shall, at Buyer’s option, either:

 

  (a) Provide, free of charge, a replacement for Seller Part within a lead-time of [*] from the date on which such relevant defective Seller Part is received at Seller’s facilities (or at the facilities designated by Seller); or

 

  (b) Extend a corresponding credit to Buyer for Buyer’s future purchase of parts,

and the relevant defective Seller Part shall without further act become the property of Seller;

 

  (v) All warranty repairs, overhauls and corrections will be at Seller’s expense provided the claim is covered by the provisions of the Seller’s Warranties described in Clauses 1.1, 1.2 and/or 1.3 of this Appendix E;

 

  (vi) Warranty Claim determination will be reasonably based upon the facts which may be derived from, among other sources, accurate reports from Seller’s regional representative, historical data logs, inspection, tests and findings during repair and failure analysis;

 

  (vii) Seller shall have the right to inspect, without unreasonably interfering with Buyer’s operations, the Aircraft and relevant documents and other recognised records in the event of any claim under this Clause 1.6;

 

  (viii) If Seller Part which are sent to Seller under warranty consideration are found to be in compliance with the Seller’s Warranties described in Clauses 1.1, 1.2 and/or 1.3 of this Appendix E, Seller shall have no obligations under Clause 1.6(ii) above in respect of costs associated with the return to Buyer of any such Aircraft (or parts thereof) or Seller Part (as the case may be);

 

  (ix) The unexpired portion of the original warranty shall apply to any Aircraft (or parts thereof) or Seller Part (as the case may be) replaced or repaired under this Clause 1.6; provided, that if the unexpired portion of the original warranty is less than [*], such original warranty shall be extended so that any Aircraft (or parts thereof) or Seller Part (as the case may be) replaced or repaired under this Clause 1.6 shall continue to benefit from such warranty for [*] following its return to Buyer.

 

1.7 In-house Warranty

With prior written approval from Seller or its representative at Buyer’s base, Buyer may perform, subject to the terms of the Seller’s Warranties and the terms hereof, the repair of any defective Aircraft (or parts thereof) or Seller Part (as the case may be) covered by the Seller’s Warranties “in-house”. Seller’s representative has the right to request return shipment of, any defective Aircraft (or parts thereof) or Seller Part (as the case may be) if the nature of the failure requires technical investigation.

 

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Seller’s representative shall further have the right to be present during the disassembly and inspection of any defective Aircraft (or parts thereof) or Seller Part (as the case may be). Buyer shall repair or correct such Aircraft (or parts thereof) Seller Part (as the case may be) in accordance with Seller’s instructions.

Buyer shall file a Warranty Claim within [*] after failure was found, and followed as promptly as practicable thereafter by a statement of the labour cost expended plus the cost of the material required for repair at current catalogue prices whereupon Seller shall promptly pay to Buyer such amount. Alternatively, Buyer may elect to request Seller to credit to its account in an amount equal to the labour cost expended plus the cost of the material required for repair at current catalogue prices.

The man-hours authorised for “in-house” repair of any item by Buyer shall be based on Seller’s estimates of man-hours required provided that the man-hours expended are not otherwise required for maintenance work currently being carried out on the Aircraft.

For the purpose of this Clause 1.7, the warranty labour rate shall be [*]. Prior to or concurrent with submission of Buyer’s first claim for labour reimbursement hereunder, Buyer shall notify Seller of Buyer’s then current average direct hourly labour rate, and thereafter Buyer shall promptly notify Seller of any significant change in such rate. If requested, Buyer shall furnish to Seller such data as may be reasonably required to substantiate such rate.

The labour cost to be credited by Seller as aforesaid shall account for:

 

   

Disassembly;

 

   

Repair;

 

   

Reassembly; and

 

   

Final inspection and test.

Claims for “in-house” warranty credit shall be in accordance with the format of a Warranty Claim and will include the additional following data:

 

   

Quantity of parts;

 

   

Unit price of parts;

 

   

Total price of parts;

 

   

Total labour hours; and

 

   

Total claim value.

If a part has a malfunction and is rectified by Buyer within the Warranty Period after previous approval from Seller or Seller’s representative, Seller shall be responsible only for the portion of rectification cost related to the malfunction, in accordance with the material and man-hour prices as previously defined.

Buyer shall retain failed defective parts which are replaced for a period of [*] after the date of completion of completion of defective part replacement. At Seller’s request and expense, such parts are to be returned to Seller’s designated facilities, within fifteen ( 15 ) days from receipt of such request.

 

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2. VENDOR’S WARRANTIES

 

2.1 Vendor’s Warranties on Vendor Parts

Prior to the delivery of the Aircraft, Seller shall obtain from each Vendor, enforceable warranties covering defects in material, workmanship and design (the “ Vendor’s Warranties ”) in respect of the Vendor Parts. Seller warrants that Buyer will be entitled to the benefit thereof in accordance with the terms and conditions of the Vendor Warranty Manual.

[*].

The Vendor Warranties shall be administered in accordance with the terms of the Vendor Warranty Manual. Buyer shall address any claim arising under the Vendor Warranties directly to the appropriate Vendor, and keep Seller informed of the process of its claim.

 

2.2 Failure by Vendor to Honour Vendor Warranties

 

  2.2.1 In the event that:

 

  (i) Any Vendor, under any warranty obtained by Seller and/or set out in the Vendor Warranty Manual, defaults in the performance of any material obligation in respect of such warranty; and

 

  (ii) Buyer submits to Seller reasonable proof that such default has occurred,

then Seller’s Warranty shall apply to such defect to the same extent as if it was a defect to a Seller Part, except that, in the case of an engine, engine accessory or propeller, the shorter of the two following warranty periods shall apply:

 

  (a) The Vendor’s warranty period as indicated in the Vendor Warranty Manual or otherwise; or

 

  (b) The Warranty Period.

 

  2.2.2 At Seller’s request, Buyer shall assign to Seller, and Seller shall be subrogated to all of Buyer’s rights against such Vendor with respect to such defect and arising by reason of such default.

 

  2.2.3 Any accessory, equipment or part selected by Buyer and installed in an Aircraft at Buyer’s request whether following a request for change prior to the Effective Date or following signature of a SCN shall be excluded from this Clause 2.

 

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3. INTERFACE COMMITMENT

 

3.1 Interface Problems

If Buyer experiences any technical problem in the operation of the Aircraft or its systems due to malfunction or failure of an accessory, equipment or part, the cause of which, after due and reasonable investigation, is not readily identifiable to the design characteristics of one or more components of the Aircraft (an “ Interface Problem ”), Seller shall, if requested by Buyer, [*], promptly conduct an investigation and analysis of such Interface Problem to determine, if possible, the cause or causes of the Interface Problem and to recommend such corrective action. Buyer shall furnish to Seller all data and information in Buyer’s possession relevant to the Interface Problem, and shall cooperate with Seller in the conduct of its investigations and such tests as may be required. At the conclusion of its investigations, Seller shall promptly advise Buyer in writing of Seller’s opinion as to the cause or causes of the Interface Problem and Seller’s recommendations as to corrective action.

 

3.2 Seller’s Responsibility

If the Interface Problem is primarily attributable to a defect in the design of any component manufactured to Seller’s detailed design, Seller shall correct the design of such component, [*], to the extent of any then existing obligations of Seller under Seller’s Warranty.

 

3.3 Vendor’s Responsibility

If the Interface Problem is primarily attributable to a defect in the design of a component not manufactured to Seller’s design, Seller shall, if requested by Buyer, assist Buyer in processing any warranty claim Buyer may have against the manufacturer of such component. Seller shall also take whatever action is permitted by its contract with such manufacturer in an effort to obtain a correction of the Interface Problem acceptable to Buyer.

 

3.4 Joint Responsibility

If the Interface Problem is partially attributable to a defect in the design of a component manufactured to Seller’s detailed design and partially to a defect in the design of components not manufactured to Seller’s detailed design, Seller shall, if requested by Buyer, seek a solution to the Interface Problem through the co-operative efforts of Seller and the manufacturers of the other components involved. Seller shall promptly advise Buyer of such corrective action as may be proposed by Seller and such other manufacturers, such proposal to be consistent with any then existing obligations of Seller and such other manufacturers.

If such proposal is acceptable to Buyer, the proposed action shall be taken. Acceptance by Buyer of such action shall constitute full satisfaction of any claim Buyer may have against either Seller or such other manufacturers with respect to such Interface Problem.

 

3.5 General provisions for Interface Commitment

All requests under this Clause 3 shall be directed to Seller’s and / or Vendor’s warranty administrators as appropriate.

 

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Except as specifically set forth in this Clause 3, this Clause 3 shall not be deemed to impose on Seller any obligation not expressly set forth elsewhere in this Contract.

All reports, recommendations, data and other documents furnished by Seller to Buyer pursuant to this Clause 3 shall be deemed to be delivered under this Contract and shall be subject to the limitations set forth in this Clause 3.

The provisions of this Clause 3 are in addition to and shall not be construed as a derogation from Buyer’s rights under Clause 1 and 2 of this Appendix E.

 

4. SERVICE LIFE POLICY

In addition to the warranties set forth in Clause 1 ( Seller’s Warranty ) of this Appendix E, Seller further agrees that should a failure occur, in any of the items listed in Exhibit A to this Appendix E, and subject to the general conditions and limitations set forth in Clause 4.4 of this Appendix E, then the provisions of this Clause 4 shall apply.

 

4.1 For the purpose of this Clause 4, the following definitions shall apply:

 

  (i) Item ” means any of the items of primary structure specified in the Exhibit A to this Appendix E;

 

  (ii) Failure ” means any breakage or defect that impairs the utility and safety or reliability of the Item.

 

4.2 Subject to general conditions and limitations set forth in Clause 4.4 of this Appendix E below, Seller undertakes that if a Failure occurs in an Item before the Aircraft in which that Item was initially installed has completed [*] flying hours or before the Aircraft in which that part is incorporated has completed [*] cycles or within [*] after the delivery of said Aircraft to Buyer (whichever shall first occur), Seller shall, at his own discretion, and as promptly as practicable and at the price hereinafter provided either:

 

  (a) Design and furnish to Buyer a correction for the Item affected by the Failure and provide any parts required for such correction, or

 

  (b) Replace such Item.

 

4.3 Any Item that Seller is required to furnish to Buyer under this Service Life Policy in connection with correction or replacement of an Item shall be furnished to Buyer at a price determined in accordance with the following formula:

[*].

Whichever yields the higher fraction.

 

4.4 General Conditions and Limitations

 

  4.4.1 The undertakings given in Clauses 4.2 and 4.3 of this Appendix E above shall not apply during the period of the warranty applicable to that Item under Clause 1 ( Seller’s Warranty ) of this Appendix E, nor if the Failure of the Item is due to any of the causes referred to in Clauses 1.5.2 (i), (ii) and / or (iii) of this Appendix E above.

 

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  4.4.2 This Service Life Policy is applicable to Failures as defined in Clause 4.1 of this Appendix E, subject to maintenance and overhaul processes as indicated in Seller’s technical documentation and/or any other Seller’s technical written instructions being complied with by Buyer in all material respects.

 

  4.4.3 The provisions of Clause 1.5.1 of this Appendix E above are incorporated herein by this reference and shall condition Seller’s obligation under this Service Life Policy with respect to any listed Item.

 

  4.4.4 Buyer shall maintain historical records with respect to the Item adequate to enable determination as to whether the alleged Failure is covered by the present undertaking and (if so) to define the cost to be borne by Seller in accordance with Clause 4.3 of this Appendix E.

 

  4.4.5 Buyer shall keep Seller or its representative reasonably informed of any significant incident occurring or recorded, resulting in any damage to the Aircraft. Failure to comply with this requirement shall invalidate this Service Life Policy with respect to any matter resulting from any such incident.

 

  4.4.6 Buyer will establish a structural inspection program consistent the program described in section 8 of the Maintenance Planning Document to be supplied to Buyer according to Appendix F (Technical Publications) hereafter. Such inspections shall be carried out at Buyer’s expense and the reports relating thereto furnished to Seller in case of disclosure of a Failure, to allow Seller to take all necessary corrective actions. Service Life Policy application is, in all case, conditional to Buyer’s conformity with such inspection program.

 

  4.4.7 In case of any Failure, Buyer shall be obliged to report the breakage or defect in writing or by fax to Seller within [*] after any breakage or any defect in a listed Item becomes evident whether or not said breakage or defect can reasonably be expected to occur in any other Aircraft. Buyer shall inform Seller of defect or Failure in sufficient detail to enable Seller to make a judgment whether said Failure or defect is subject to the present Service Life Policy.

 

  4.4.8 The return to Seller, if such return is commercially reasonable and requested by Seller, of any listed Item subject to a Failure, shall be at Seller’s expense. Seller shall bear all return transportation costs to Buyer’s main base. Any required disassembly of the Aircraft or parts thereof, removal of the covered Item subject to a Failure and reassembly, installation, inspection and test of the corrected or replaced Item shall be at Seller’s expense. If such disassembly, reassembly, installation, inspection and test, is accomplished by Buyer at Seller’s request, the rates to be charged by Buyer for any such services shall not exceed warranty labor rates for in-house warranty work during substantially the same time period.

 

  4.4.9

Should Seller issue a modification in order to avoid a structural Failure and should Seller elect to deliver the necessary modification kit [*] to Buyer, then

 

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  the validity of this commitment under Clause 4 of this Appendix E shall be subject to Buyer incorporating in the Aircraft at [*], within a reasonable time to be mutually agreed between Buyer and Seller, such modification as promulgated by Seller and in accordance with Seller’s instruction.

 

  4.4.10 This Service Life Policy is neither a warranty, performance guarantee nor an agreement to modify the Aircraft or airframe components to conform to new developments hereafter occurring in the state of airframe design and manufacturing art. Seller’s obligation herein is to make only those corrections to the airframe components or furnish replacement therefor as provided in this Clause 4.

 

  4.4.11 Buyer’s rights under this Clause 4 shall not be assigned, sold, leased, transferred or otherwise alienated by operation of law or otherwise, to other non-affiliated operators except as provided for in Clause 25 ( Assignment and Transfer of Contract ) of this Contract or otherwise without Seller’s prior consent thereto given in writing. Any attempted assignment, sale, lease, transfer or other alienation of Buyer’s rights under this Service Life Policy no permitted by this Contract shall be ineffective.

 

5. GENERAL CONDITIONS APPLICABLE TO APPENDIX E

THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER AND/OR ITS SUPPLIERS AND REMEDIES OF BUYER SET FORTH IN THIS APPENDIX E ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST 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 CONTRACT, INCLUDING BUT NOT LIMITED TO:

 

  (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;

 

  (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;

 

  (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, IN CONTRACT OR IN TORT AND WHETHER OR NOT ARISING FROM SELLER’S AND/OR ITS SUPPLIERS’ NEGLIGENCE, ACTUAL OR IMPUTED; AND

 

  (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA DELIVERED UNDER THIS CONTRACT.

SELLER AND/OR ITS SUPPLIERS SHALL HAVE NO OBLIGATION OR LIABILITY, HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR

 

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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 CONTRACT, INCLUDING BUT NOT LIMITED TO ANY LIABILITY TO THIRD PARTY INCURRED BY BUYER.

FOR THE AVOIDANCE OF DOUBT, SELLER SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGES CAUSED BY THE GROUNDING OF THE AIRCRAFT DUE TO A DEFECT IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA DELIVERED UNDER THIS CONTRACT, AND/OR FOR ANY EXPENSES INCURRED BY BUYER IN OBTAINING ANY SUBSTITUTE AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA.

IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE THE REMAINDER OF CLAUSE 5 OF THIS APPENDIX E SHALL REMAIN IN FULL FORCE AND EFFECT.

ALL PARTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 29 OF THE CONTRACT.

 

* [3 pages have been omitted in accordance with a request for confidential treatment.]

 

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APPENDIX F

TECHNICAL PUBLICATIONS

 

1. GENERAL

 

1.1 Specification

Seller will make available to Buyer an appropriate range of technical publications necessary for the operation and maintenance of the Aircraft (the “ Technical Publications ”) in accordance with the ATA 100 of Airlines for America (formerly Air Transport Association) .

 

1.2 Delivery

The Technical Publications and corresponding revisions will be sent to one address only defined by Buyer in the contractually agreed quantities as specified in Clause 3 of this Appendix F and the agreed frequencies. Packing and shipment will be Ex-Works (Incoterms 2010) Toulouse, France.

All present or future tax, levy, impost, duty, fees, assessments or other charge of whatever nature and however arising (including, without limitation, any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) including but not limited to custom, import and/or export duties shall be paid by Buyer to the relevant authorities in respect of any item delivered Ex-Works (Incoterms 2010) Toulouse, France, by Seller.

Subject always to provision of Clause 19.2 of the Contract, Seller shall never be liable to pay any of the above future tax, levy, impost, duty, fees, assessments or other charge of whatever nature in respect of any Technical Publication delivered Ex-Works (Incoterms 2010) by Seller.

If any Technical Publication delivered Ex-Works (Incoterms 2010) by Seller is stopped by any customs authority for whatever reasons, Buyer shall have obligation to take any step to obtain such customs clearance.

 

1.3 Language

The Technical Publications will be supplied in the English language using the aeronautical terminology in common use.

 

1.4 Technical Level of Publications

The level of Technical Publications at delivery of the Aircraft will correspond to the configuration level of the Aircraft as defined [*] before such delivery. The Aircraft configuration level at delivery will be introduced into the Technical Publications at the first revision following the delivery.

Significant modifications applied to an Aircraft when delivered and not dealt with in the Technical Publications shall be covered in advance copies or temporary revisions.

 

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ATR shall ensure that Vendor and BFE are properly and completely included in the manuals and data.

 

1.5 Revision Service

Technical Publications will be revised [*] and revision services following Aircraft deliveries will be made available to Buyer at [*] starting from the first Aircraft Delivery until [*] after Delivery of the first Aircraft.

Upon Buyer’s request in writing, a [*] revision service per year shall be provided at Buyer’s cost.

Thereafter, revision service shall be subject to a separate agreement between Seller and Buyer.

Unscheduled revisions (or equivalent information) to incorporate changes involving safety of operations or safety of maintenance, shall be provided, [*], for as long as Buyer operates the Aircraft through Technical Publications (including operational documentation) temporary revisions or through regular yearly revisions.

Seller’s originated revisions of the AFM, FCOM, CL, MMEL, MRB and MPD manuals shall also be supplied [*] to Buyer for so long as Buyer operates the Aircraft.

 

1.6 Buyer Furnished Equipment

Information related to Buyer Furnished Equipment will be included [*] in the Technical Publications to the extent necessary for the comprehension of the corresponding system(s). Buyer shall supply Buyer Furnished Equipment publications between six ( 6 ) and twelve ( 12 ) months before scheduled delivery of the Technical Publications.

 

1.7 Service Bulletins

In accordance with Clause 1.5 of this Appendix F, Service Bulletins information will be incorporated into the Technical Publications (Aircraft Maintenance Manual, Aircraft Wiring Manual and Illustrated Parts Catalogue) after written notice of Buyer’s intention to embody the Service Bulletin on its fleet. In this case, both information “Before SB” and “After SB” will appear in the manuals concerned. Service Bulletin’s incorporation in the Technical Publications shall be provided, [*] in the event that the Buyer purchased the Service Bulletin, for so long as Buyer operates the Aircraft.

 

1.8 On-line access

On line web access to the envelope ATR 42-600 and / or ATR 72-600 documentation (as applicable) will be provided to [*] designated Buyer’s users per Aircraft through the “ATRactive” portal for as long as Buyer remains the operator of the relevant Aircraft.

 

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1.9 Effectiveness

 

  1.9.1 The following manuals will be customised:

 

   

Aircraft Maintenance Manual

 

   

Description and Operation Manual

 

   

Trouble Shooting Manual

 

   

Job Instruction Cards

 

   

Illustrated Parts Catalogue

 

   

Wiring Diagram Manual

 

   

Aircraft Wiring Manual

 

   

Aircraft Schematic Manual

 

   

Aircraft Wiring Lists

 

   

Operational Manual

 

   

Airplane Flight Manual

 

   

Flight Crew Operating Manual

 

   

Check List

 

   

Weight and Balance Manual

 

  1.9.2 Other Manuals will cover all ATR 72-600 Aircraft and / or ATR 42-600 Aircraft, as applicable. Effectivities will be defined by Manufacturer Serial Number (MSN).

 

1.10 Airworthiness Authorities

Buyer will use commercially reasonable efforts to provide Seller, before delivery of the Aircraft, with all information (manuals, quantity, desired delivery date, addresses) relating to Buyer’s Airworthiness Authorities requirements.

 

1.11 Additional Requirements

If Buyer requires additional copies or other reproductions, or preparation in different form or revisions of any of the data specified in this Clause 1, Seller shall supply requirements to Buyer under purchase orders received from Buyer by Seller. Seller prices for such copies or other reproductions shall be reasonable.

 

1.12 Proprietary Rights

All data given to Buyer is for the sole use of Buyer or its approved repair agencies, which undertake the responsibility not to divulge the content of said documents.

 

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2. MANUALS

 

2.1 Maintenance documentation

 

  2.1.1 Aircraft Maintenance Manual

The Aircraft Maintenance Manual will be in general accordance with ATA 100 specification with texts and illustrations that will be separated. This Manual has been split into three separate Manuals:

 

   

Description and Operation Manual;

 

   

Trouble Shooting Manual;

 

   

Job Instruction Cards.

Engine line maintenance data furnished by the engine manufacturer shall be given in documents separated from this manual.

 

  2.1.2 Illustrated Parts Catalogue

The Illustrated Parts Catalogue identifies and illustrates replaceable Aircraft parts and assemblies, and will be in general accordance with ATA 100 specification.

 

  2.1.3 Wiring Diagram Manual

The Wiring Diagram Manual describes all the wiring of the Aircraft and will be in general accordance with ATA 100 specification. The Wiring Diagram Manual has been split into three separate Manuals:

 

   

Aircraft Wiring Manual;

 

   

Aircraft Schematic Manual;

 

   

Aircraft Wiring Lists.

 

  2.1.4 Structural Repair Manual

The Structural Repair Manual contains descriptive information for identification and repair of the Aircraft primary and secondary structure. This Manual will be in general accordance with ATA 100 specification.

 

  2.1.5 Non-Destructive Testing Manual

The Non-Destructive Testing Manual contains descriptive data and specific instructions concerning structural non-destructive tests. This Manual will be in general accordance with ATA 100 specification.

 

  2.1.6 Illustrated Tools and Equipment Manual

The Illustrated Tools and Equipment Manual provides technical data sheets for all specific tool and equipment required for the maintenance and repair of the Aircraft. Standard tools and airport service equipment are not covered in this Manual that will be in general accordance with ATA 100 specification.

 

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  2.1.7 Maintenance Planning Document and Maintenance Review Board Document

These documents will provide periodic maintenance requirements data necessary to plan and conduct the Aircraft maintenance checks and inspections. In addition, all the airworthiness limitations will be grouped in one approved section.

 

2.2 Operational documentation

 

  2.2.1 Airplane Flight Manual

The Airplane Flight Manual is related to a specific airplane, whose model is specified on the heading page of the manual. It is approved by Seller’s Airworthiness Authority.

 

  2.2.2 Flight Crew Operating Manual

The Flight Crew Operating Manual only contains pages applicable to the Aircraft of the specific customer’s fleet. It gives the Aircraft technical, procedural and performance characteristics.

 

  2.2.3 Cabin Crew Operating Manual

The Cabin Crew Operating Manual is a generic manual common to all ATR models. It provides descriptive information of the aircraft cabin, communication systems, emergency systems and equipment. This manual also includes the normal and emergency cabin crew procedures.

 

  2.2.4 Check List

The Check List provides in a condensed form the normal, abnormal and emergency procedures detailed in the Flight Crew Operating Manual.

 

  2.2.5 Weight and Balance Manual

The Weight and Balance Manual, specific to each Aircraft, enables the operator to determine the centre of gravity in relation with the loading of the Aircraft. This manual will be in general accordance with ATA 100 specification.

 

  2.2.6 Master Minimum Equipment List

The Master Minimum Equipment List defines the components and the related conditions under which, when the components are defective, the Aircraft may be cleared for flight in accordance with Seller’s Airworthiness Authority.

 

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  2.2.7 Airport Planning Manual

The Airport Planning prepared and issued according to specification NAS 3601 indicates Aircraft characteristics data required for general airport planning information.

 

  2.2.8 Crash Crew Chart

The Crash Crew Chart provides the information required for Aircraft evacuation in the event of a crash.

 

  2.2.9 Overhaul Manuals or Component Maintenance Manuals/Manufacturer

The Overhaul Manuals or Component Maintenance Manuals/Manufacturer contain instructions concerning the overhaul and/or repair of components, together with the procedures for restoring such components to fully serviceable condition. These manuals will be in general accordance with ATA 100 specification.

 

2.3 Miscellaneous documentation

 

  2.3.1 Service Bulletins List

The Service Bulletins List will be in general accordance with ATA 100 specification. Service Bulletins will be delivered as soon as practicable and will cover Seller’s designated changes on the Aircraft that affect any Aircraft delivered hereunder. A Service Bulletin index will be supplied regularly.

 

3. LIST OF MANUALS

The list of manuals and associated formats to be supplied by Seller to Buyer is set forth in the tables hereafter.

 

3.1 Maintenance documentation

[*]

 

  (1)  

Available in DVD Rom Format – includes ATR@Nav – ATR@Nav is subject to the signature of a specific licence agreement for exclusive use of ATR@Nav loading “Adobe Acrobat n@vigator”

 

  (2)  

Available in CD Rom Format – All files in Adobe Acrobat pdf format

 

3.2 Operational documentation

[*]

 

MSN N°    TBD   
Airline IATA Code & Designation    TBD   
Language    English   
Authorities (EASA / FAA / TC)    EASA   
Weight Standard Unit (Kg / lbs)    Kg   

 

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3.3 Miscellaneous documentation

[*]

 

  (1)  

Available in DVD Rom Format – All files in Adobe Acrobat pdf format

 

  (2)  

Available in CD Rom Format – All files in Adobe Acrobat pdf format

 

4. DISCLAIMER

All parts, services, warranties and guarantees provided hereunder are provided subject to Clause 29 of the Contract.

 

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APPENDIX G

CUSTOMER SUPPORT REPRESENTATIVE

 

1. Seller shall provide [*] to Buyer [*] Customer Support Representatives (“ CSR ”) during [*] per Aircraft each (that is an aggregate of [*] for the ( 15 ) Firm Aircraft or [*] per CSR).

The CSRs will be stationed at each of Buyer’s main maintenance bases at least [*] before the Scheduled Delivery Month of the first ( 1 st ) Aircraft to such Buyer or at another location to be mutually agreed. In the event any such CSR is sent at Buyer’s request to any other sites, transportation and associated expenses required for such representative to and between sites shall be provided by or at the expense of Buyer.

The CSR shall act in an advisory capacity only and be assigned to Buyer’s main base at the latest upon arrival of the first delivered Aircraft or, upon Buyer’s request and subject to availability, [*] before the delivery of the first Aircraft.

 

2. The CSR will be skilled in all relevant fields in order to provide his/her know-how in (i) organisation, (ii) logistics, (iii) communication and (iv) trouble shooting. The CSR will focus on:

 

   

Technical assistance (such as on job training for Buyer’s mechanics, usage of technical publications) but shall also be able to set-up and improve all the communications with Seller’s product support and engineering directories;

 

   

Buyer’s mechanics assistance for the trouble shooting and line maintenance of the Aircraft.

 

3. [*]. Buyer shall furnish, at no cost to Seller, suitable office space and facilities (telephone, telefax, copying machine, printer and the like) and secretarial services for business purposes only in order to enable Seller’s representative to fulfil its tasks properly.

[*].

 

4. Seller shall have the right to withdraw its assigned personnel on short notice, if conditions arise which are dangerous to their safety or health, or which prevent them from fulfilling their contractual tasks.

 

5. All parts, services, warranties and guarantees provided hereunder are provided subject to Clause 29 of the Contract.

 

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APPENDIX H

START-UP TEAM

 

1. START-UP TEAM

 

1.1 Ferry Flight & Line Training Assistance.

At the delivery of the first Aircraft, ATR shall second to Buyer [*] of its instructor pilots in order to (i) provide assistance for the performance of the ferry flight of such Aircraft between Toulouse and Buyer’s main base and (ii) perform line training for duration of [*] per Firm Aircraft (that is [*] for the Aircraft firmly ordered hereunder), with an initial support of [*] for the [*] first aircraft ([*] in total).

Line training provides the opportunity for a flight crew to carry into practice the procedures and techniques he has been made familiar with during the ground and flying training of a transition course. This is accomplished under the supervision of a crew member specifically nominated and trained for the task.

Buyer being a major and mature ATR operator, Seller’s intention is to support Buyer through a “train the trainer program”. Thus Buyer’s TRI (Type Rating Instructors) will be trained in phase with the first Aircraft deliveries to develop internal capacity and enhance airline autonomy.

Buyer’s TRI will then benefit from the Seller’s experience by flying under the supervision and in cooperation with Seller’s TRI to gain experience and autonomy for the additional aircraft to be delivered.

Buyer shall provide reasonable assistance to Seller for the implementation of this assistance, such as visa obtention, licence validation, logistic issues etc ….

 

1.2 Mechanic Start-up Team

A team of qualified airframe / powerplant and / or avionics / electrics experienced on the ATR 72/42 will ensure smooth introduction and operation of the ATR 72-600 / ATR 42-600 aircraft into Buyer’s fleet and will be made available to Buyer at Buyer’s main base or at any other Buyer’s base in the quantities and during the period set out below:

 

   

[*] during [*] following the first ( 1 st ) Aircraft delivery to Buyer, that is a total of [*] for the total fleet of Aircraft;

The Aircraft maintenance start-up team engineer will provide assistance and additional training / on the job support to Buyer’s maintenance personnel. Maintenance activities could include:

 

  (i) Completion of scheduled and unscheduled maintenance on the Aircraft in accordance with applicable Buyer’s approved maintenance program;

 

  (ii) Assistance in maintenance planning and logistics, working closely with Buyer’s personnel to provide them experience and skills to acquire rapidly necessary autonomy in different areas of aircraft maintenance, particularly for line activities and type “A” airframe visits.

 

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1.3 Engineers Start-Up Team

Seller shall also provide to Buyer [*] basis the following start-up assistance:

 

  (i) Secondment at Buyer’s main base of [*] (Considering the experience already acquired by) with the objective of assisting Buyer in the following fields:

 

   

Writing of the airline’s MEL, taking into account the fleet configuration, the local regulations, and other specificities

 

   

SOPs writing

 

   

Operating Manual Writing

 

   

Performance studies

 

   

Assistance in necessary procedure toward Civil Aviation Authorities to endorse the ATR type on Buyer’s AOC.

 

   

Assistance, in conjunction with Seller’s line training instructor, to build-up procedures for specific airports (e.g. Manizales, or EOSID procedures)

 

  (ii) Secondment at Buyer’s main base of [*], with the objective of assisting Buyer in building its maintenance program for the ATR 72-600/42-600 Aircraft;

 

  (iii) Secondment at Buyer’s main base of [*], with the objective of assisting Buyer in placing spares purchase orders and other related procedures;

The timing on which Seller shall provide such assistance shall be further agreed by the Parties, being understood that each of the above assistance periods may be split into two or more periods provided that the cumulated total of the assistance does not exceed the above mentioned total period.

 

2. START-UP PACKAGE ADJUSTMENT

 

2.1 Buyer shall be entitled to exchange services set out in Clause 1 of this Appendix H for other training courses or services and apply against the cost thereof the value of the exchanged courses or services in each case based upon the Seller’s training school catalogue prices or list prices of services in force at the time such exchange is requested.

 

2.2 Buyer shall also be entitled to remove a portion of the start-up services set forth in this Clause 2. In such case, [*], provided that:

 

  (i) [*];

 

  (ii) [*].

 

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2.3 [*] shall be applied by Buyer, at Buyer’s election to be notified in writing to Seller at the time of removal of the relevant training service(s), [*].

 

2.4 [*] shall be:

 

   

[*];

 

   

[*].

 

3. DISCLAIMER

All parts, services, warranties and guarantees provided hereunder are provided subject to Clause 29 of the Contract.

 

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APPENDIX I

TRAINING

 

1. GENERAL

 

1.1 Seller shall provide, [*], training for Buyer’s personnel, at ATC or any other training facility equipped with an ATR 72-600 FFS simulator that Seller and Buyer may agree upon.

However, should Buyer elect to have training performed at Buyer’s main base by an ATR instructor as provisioned under this Appendix I, Buyer shall supply suitable classroom(s) and IT means and the ATR instructor’s travelling, living and any such similar expenses (in accordance with Seller’s prevailing travelling policy) shall be borne by Buyer

ATC must have JAR-FCL approved training certificate (FTO or TRTO in accordance with JAR-FCL 1.055) and all instructors must have JAR-FCL certificate. The flight examination instructor must be JAR-FCL authorized.

 

1.2 Crew and ground staff training relating to any Aircraft may be performed from [*] prior to the delivery of any such Aircraft until [*] after delivery of the last Aircraft covered by this Contract.

 

1.3 The courses will be scheduled on mutually agreed plans to be discussed in a training conference (the “ Training Conference ”) to be held as soon as practicable after signature of the Contract and in all cases before the first course commences. The Training Conference shall detail and validate the training courses provided by Seller in Clause 3 of this Appendix I.

 

1.4 For the avoidance of doubt, any training service set forth in this Appendix H for which available quantities are expressed on a per Aircraft basis shall also be supplied to Buyer under such per Aircraft quantities for any exercised Additional Aircraft pursuant to Appendix Q ( Additional Aircraft ) hereof.

 

1.5 For the purpose of this Appendix I, the following words and phrases shall have the meaning indicated:

 

Conversion Training Course    means a training course for pilots, who have obtained a type certificate for a transport category aircraft prior to commencement of the course at ATC

 

2. COURSE QUALIFICATION

 

2.1 Buyer warrants that the trainees which shall be enrolled for training pursuant to the provisions hereof shall be able to fully understand written and spoken English (Level 4 OACI minimum). The trainees participating in the Conversion Training Courses shall have the prerequisite turboprop transport category experience in order to attend the Conversion Training Courses, as detailed in Clause 3 of this Appendix I.

 

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It is clearly understood and agreed that the courses provided by ATC to Buyer are Conversion Training Courses.

 

2.2 In the event that a trainee enrolled on a Conversion Training Course lacks the necessary entry-level preparation, the trainee shall be cycled through an appropriate entry level training program which will be either, at Seller’s election based on actual trainee level:

 

   

Entry Level Training (“ ELT ”) course for a total [*]; or

 

   

Entry Level Training course & Multi Crew Coordination course (“ ELT + MCC ”) for a total of [*];

All cost associated with such ELT or ELT + MCC training program together with those associated with the cancellation of the scheduled Conversion Training Course shall be borne by Buyer upon the furnishing of appropriate invoices by ATC.

 

2.3 In fulfilment of its obligations to provide training courses hereunder, ATC shall deliver to trainees a certificate of satisfactory completion at the end of such courses. This certificate does not constitute satisfaction or qualification by any official civil aviation authority but may be presented to any such authority as confirmation of satisfactory completion of Seller’s training course.

 

2.4 Prior to the commencement of a course, Buyer shall provide ATC with an attendance list of the trainees to be enrolled for each course and the validated performance of each trainee and any further information that ATC may require. It is understood between Buyer and Seller that Seller’s standard courses are designed and approved to bring turboprop transport specialists to a professional knowledge of the ATR aircraft. The Seller shall not be held liable for the unsatisfactory performance of any individual trainee for whatever reason.

 

3. TRAINING COURSES

 

3.1 Crew Training

 

  3.1.1 Flight Crew Conversion Course

Seller will train, [*] per Aircraft. This training program will be spread over [*] and shall consist of a standard course as follows:

 

(i)    Ground training Instruction:    [*]
(ii)    Synthetic Flight Training / FFT:    [*]
(iii)    Synthetic Flight Training / FFS:    [*]
(iv)    [*].   

 

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As prerequisites, each captain must hold a current airlines transport pilot licence and should be in a position to justify having flown at [*], including at least [*] in an aircraft JAR 25 (or equivalent) and two hundred ( 200 ) hours in an aircraft as airline, corporate or military pilot.

As prerequisites, each first officer shall be required to hold a current commercial pilot’s license with instrument rating and multi-engine rating (IR/ME) and should be in a position to justify having flown at least [*], including at least [*] in an aircraft JAR 25 or JAR 23 (or equivalent). Each pilot shall have crew co-ordination ability.

Each crewmember should have been qualified and served in the same capacity on another aircraft in the same group as the Aircraft (JAR 25/FAR 25 approved) within the last twelve months following the beginning of the training program. Trainees who do not meet such requirements must obtain a written approval from the ATC’s manager.

The training conducted at ATC shall consist of ground training, simulator training and flight training on Buyer’s own aircraft after delivery (or if not possible for practical reasons to have such flight training in Toulouse on Buyer’s aircraft, Seller may decide by itself to use any other similar ATR aircraft available in France). Seller shall provide [*], the services of flight instructors and the line maintenance which shall include servicing and pre-flight checks. Buyer shall at its own expense, provide spare parts, as required, shall bear the cost of fuel and landing fees and shall contract third party liability insurance coverage, in a form satisfactory to Seller.

It shall be responsibility of Buyer to obtain any authorisations and validations of flight instructor’s licenses as may be required by Buyer’s or Buyer’s Subsidiaries Airworthiness Authority, as the case may be.

At Buyer’s request, ground training can be performed by Seller’s instructors, at the selected Buyer’s base where the MFSTD provided by Seller under Clause 4.5 (only once such MFSTD will be operational).

 

  3.1.2 ATR Type Rating Instructor (“ TRI ”) training for one ( 1 ) Buyer’s flight crew instructor per Aircraft.

This training program shall consist of an initial course as follows:

 

(1)    Phase 1 – Ground Course:    [*]
(2)    Phase 2 – Simulator Instruction:    [*]
(3)    Phase 3 – Airborne Instruction    [*]

Simulator instruction will be performed on a Full Flight Simulator at ATC or other location as the Parties may agree. At Buyer’s request, ground training can be performed by Seller’s instructors, at the selected Buyer’s base where the MFSTD provided by Seller to Buyer under Clause .4.5 of this Appendix I (only once such MFSTD will be operational).

 

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Note :    Flight Instructors have to be approved by the local authority in order to become Check Pilots.

 

  3.1.3 System Instructor course for [*] per Aircraft.

This course is designed for airline ground staff or pilots to be converted as Instructors within the airline. The trainees will gain expertise in all the aircraft systems and be trained to become instructors using ATR tools and methods under the supervision of ATR Instructors.

 

  3.1.4 Simulator Lease: [*] (corresponding [*] per crew per year and per Aircraft over[*]) to be used as from delivery of the first Aircraft with no time limit thereafter.

 

  3.1.5 Cabin Attendant Conversion Course

Seller will train, [*] per Aircraft. The [*] training course has a duration of [*].

 

3.2 Maintenance Courses

Seller shall train, [*], Buyer’s maintenance personnel according to the following program:

 

  3.2.1 ATR Mechanics / Electrics T1 maintenance course (theoretical / module 1 / module 2) [*] per Aircraft.

The proposed T1 modules – theoretical, 1 (simulator) and 2 (on job training) – maintenance courses are respectively [*] and [*] training courses.

It is addressed for personnel JAR 66 (or PART 66 when applicable) certifying staff category B1 or equivalent with one year experience in the category for similar aircraft.

 

  3.2.2 ATR Avionics T2 maintenance course (theoretical / module 1 / module 2) for [*] per Aircraft.

The proposed T2 modules – theoretical 1 (simulator) and 2 (on job training) – maintenance courses are respectively [*] training courses.

It is addressed for personnel JAR 66 (or PART 66 when applicable) certifying staff category B2 or equivalent with one year experience in the category for similar aircraft.

 

  3.2.3 ATR T3 mechanic course for [*] per Aircraft .

The T3 Module (Ramp & Transit) has a [*] duration.

 

  3.2.4 ATR Maintenance Instructor course (MATRI) for [*] in total.

 

  3.2.5 ATR Engine Run-up maintenance course for [*] per Aircraft.

The proposed training course is a [*] training course on simulator only.

 

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  3.2.6 Composite Structure Course for [*] per Aircraft.

The proposed Composite Structure Course is a [*] training course covering 5 modules: materials, utilization, application, non-destructive test and repairs.

ATR composite course is provided by ATR Partner GMI Aero located 9 Rue Buffault, 75009 Paris. All training sessions will be performed in Paris or at GMI Aero’s base.

 

  3.2.7 Structure Repairs Manual- Familiarization course for [*] in total.

The proposed Structure Repair Manual Course is a [*] covering SRM familiarization for [*] and SRM exercises for [*].

 

  3.2.8 Trouble-shooting course will be developed for the ATR-600 series on the basis of the existing one for the -500 series. When the course will be available, Seller agrees to provide Buyer, [*], the training course for [*] per Aircraft

 

  3.2.9 Training course for boots will be provided, [*], in AERAZUR facility for [*] per Aircraft.

 

  3.2.10 Training course for propellers will be provided, [*], in Hamilton standard facility for [*] per Aircraft.

At Buyer’s request, classroom mechanics training relating to courses set forth in this Clause 3.2 may be performed [*]. As a prerequisite to enrolment on the courses outlined above, trainees must have a sound practical background in aircraft maintenance.

Seller shall be entitled to regroup in the same course, trainees from different buyers.

For courses requesting a PART 147 approval, the trainees shall be in compliance with PART 147 prerequisites, which shall be provided, upon Buyer’s request, by ATC.

 

3.3 Ground Operations Staff Training

Ground Operations staff training services will include the following:

 

  3.3.1 System General Familiarization

ATR shall provide Buyer with System General Familiarization Training for [*] per Aircraft.

The proposed System General Familiarization course is a [*] course.

 

  3.3.2 ATR Weight & Balance Training

ATR shall provide Buyer with Weight & Balance Training for [*] per Aircraft.

The proposed Weight & Balance training course is a [*] course.

 

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  3.3.3 ATR Training Performance & Flight Planning Training

ATR shall provide Buyer with Performance & Flight Planning Training for [*] per Aircraft.

The proposed Performance & Flight Planning course is a [*].

 

  3.3.4 Flight Operation Software (“ FOS ”) training [*] Aircraft.

The proposed FOS course is a [*]

 

  3.3.5 Single Point Software (“ SPS ”) training for [*] per Aircraft.

The proposed SPS course is a [*] course.

 

  3.3.6 Performance Flight Planning course [*] per Aircraft.

This course is designed for airline operations engineers and flight dispatchers required to prepare the ATR aircraft dispatch based on Manufacturer’s rules and conditions.

Various items such as operational documentation, limitations, performances, flight planning, special operations and assessment of payload limitations are covered.

At Buyer’s request, classroom ground staff training relating to courses set forth in this Clause 3.8 may be performed by Seller’s instructors, in COL and / or CAM.

 

4. SOFTWARE TOOLS, TRAINING TOOLS & WEB TRAINING

 

4.1 Flight Operations Sofwars (“ FOS ”)

The Flight Operation Software (“ FOS ”) license incorporating FOS modules 1 (Take-off & Landing), 2 (In Flight), 3 (Flight Planning) and 4 (En Route Net Flight Path) and 5 (cruise monitoring performance) for the ATR72-600 and ATR 42-600 versions (in case Buyer elects to exercise any Conversion Right) shall be supplied [*] after the delivery of the 1 st Aircraft and will allow Buyer to perform ATR 72-600 and ATR 42-600 performance sheets.

 

4.2 Single Point Performance software (“ SPS ”)

The Single Point Software (“ SPS ”) license for the ATR72-600 and ATR42-600 version (in case Buyer elects to exercise any Conversion Right) shall be supplied [*] after the delivery of the 1 st Aircraft and will allow both crews and ground staff to perform real time take-off and landing calculations.

 

4.3 ATR Web Based Training suite (“ WBT ”)

Seller has developed a new Web Based Trainer software (“WBT” ) allowing Buyer to use Computer Based Training through internet.

The usage of the above WBT in the ATR 72-600 and ATR 42-600 versions (in case Buyer elects to exercise any Conversion Right) shall be granted to Buyer [*] after the delivery of the 1 st Aircraft during which period Buyer shall benefit from Web Base Trainer access [*].

 

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4.4 Virtual Walk Around Trainer (“ VWT ”).

Virtual Walk Around Trainer (“ VWT ”). 3D computer based training tool reproducing the pre-flight check list done by pilots around the ATR aircraft before every flight. The guided and semi-guided modes come with the trainee helping understanding the whole procedure step by step. The free mode gives to the trainee the possibility to test him and check his own results.

The usage of the above VWT in the ATR 72-600 and ATR 42-600 versions (in case Buyer elects to exercise any Conversion Right) shall be granted to Buyer [*] from the first Aircraft delivery [*].

 

4.5 Maintenance & Flight Simulator Training Device (“ MFSTD” )

MFSTD (Maintenance & Flight Simulator Training Device) is a low level training device that provides conversion training for ATR 42-600 / 72-600 pilots and mechanics. This equipment is a PC based flat panel trainer that provides simulation and display of aircraft systems including panels, displays and indications. Simulated systems are fully interactive and operate in a complete free-play simulation. Such MFSTD will be provided to Buyer [*].

 

4.6 [*].

 

4.7 Online Operational Control

ATR does not provide by itself Maintenance Information System nor service to manage the aircraft fleet (maintenance program, airworthiness and daily maintenance follow up); such software and services are proposed by dedicated and referenced Suppliers:

[*].

 

4.8 Course Masters

As part of the software license support, any new release is provided free of charge, including user’s documentation when available, to the Customer.

Course masters (training syllabi) are ATR intellectual and industrial property and are thus considered as confidential. When required such syllabi will be provided to the Authorities.

 

4.9 Classroom setting-up

Seller will assist Buyer in setting-up [*] in total (one in each Buyer base) with [*] each. Seller will advise Buyer on the equipment needed [*].

 

4.10 EOSID Procedures Assistance

 

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In addition to the flight operations engineer assistance set forth in Appendix H ( Start-up Team ) to the Contract, Seller shall also provide to Buyer, upon Buyer’s request, its assistance to build-up procedures for specific airports (EOSID procedures) upon terms and conditions to be agreed on a case by case basis between Seller and Buyer.

 

5. TRAINING PACKAGE ADJUSTMENT

 

5.1 Buyer shall be entitled to exchange courses or services set out in this Appendix I for other training courses or services and apply against the cost thereof the value of the exchanged training courses or services based in each case upon the Seller’s training school catalogue prices or list prices of services in force at the time such exchange is requested.

[*]

 

6. DISCLAIMER

All parts, services, warranties and guarantees provided hereunder are provided subject to Clause 29 of the Contract.

 

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APPENDIX J

PAYMENT INSTRUCTIONS

All payments due to Seller under this Contract shall be made to:

 

Bank:      NATIXIS PARIS (99999)
     30, Avenue Pierre Mendès-France
     75013 Paris – France
Beneficiary   :    Avions de Transport Régional. G.I.E.
Bank Code   :    30007
Branch Code   :    53061
Account No   :    04653007000 49
Iban Number   :    FR 76 3000 7530 6104 6530 0700 049
Bank Identifier Code   :    NATXFRPPXXX

Or such other account as Seller may notify in writing from time to time to Buyer at least five ( 5 ) Business Days prior to the date such payment is due.

 

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* [48 pages have been omitted in accordance with a request for confidential treatment.]

 

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APPENDIX Q

ADDITIONAL AIRCRAFT

 

 

1. SCOPE

Seller hereby grants to Buyer the option to acquire up to a total of fifteen ( 15 ) Additional Aircraft in addition to the fifteen ( 15 ) Firm Aircraft. Each Additional Aircraft may be an ATR 42-600 or an ATR 72-600.

 

2. EXERCISE OF PURCHASE RIGHTS

Buyer may at any time on or prior to December 31 st , 2017 exercise its purchase right for any individual Additional Aircraft (on a one per one or on a per batch basis, at Buyer’s sole election), subject to:

 

  (i) Written notification (the “ Purchase Right Exercise Notice ”) by Buyer of such purchase right exercise including the Additional Aircraft scheduled delivery date and type requested by Buyer for such Additional Aircraft;

 

  (ii) Availability of aircraft at the scheduled delivery date requested by Buyer, being understood that should such Additional Aircraft delivery position requested by Buyer not be available, Seller shall propose to Buyer the next available ATR 72-600/ATR 42-600 delivery position (as applicable).

Upon exercise of such purchase right for any Additional Aircraft, Buyer shall pay to Seller the First Pre-Delivery Payment for such Additional Aircraft.

Upon which payment such exercised Additional Aircraft shall become a Firm Aircraft for the purpose of this Contract and, unless specified otherwise, the terms and conditions of this Contract in respect of the Firm Aircraft shall apply mutatis mutandis to such Additional Aircraft so converted into a Firm Aircraft.

 

3. ADDITIONAL AIRCRAFT SPECIFICATION

The Additional Aircraft shall be manufactured under the ATR 72-600 Technical Specification or ATR 42-600 Technical Specification depending on the Buyer’s choice upon exercise of such Additional Aircraft purchase right.

 

4. ADDITIONAL AIRCRAFT DELIVERY

Within [*] from receipt from Buyer of the Purchase Right Exercise Notice for any Additional Aircraft, Seller shall notify to Buyer the effective delivery date for that Additional Aircraft (the “ Additional Aircraft Scheduled Delivery Date ”) in accordance with Clause 2 of this Appendix Q.

 

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5. ADDITIONAL AIRCRAFT PRICE & PAYMENT TERMS

The final purchase price of each exercised Additional Aircraft upon delivery (the “ Final Price ”) shall be the sum of:

 

  (i) The ATR 72-600 Base Price or ATR 42-600 Base Price the of the Aircraft (as the case may be);

 

  (ii) The price of any additional changes to the Technical Specification, with respect to the considered Aircraft, requested by Buyer (for the sake of clarity, other than the Agreed Changes, with respect to the considered Aircraft, listed in Appendix A ( Specification ) of the Contract); and

 

  (iii) The price increase resulting from fluctuations in labour and material costs from the theoretical delivery date of [*] economic conditions prevailing in [*] until the actual delivery date in accordance with the price revision formula as provided for in Clause 5.4 of the Contract;

[*]

For the avoidance of doubt, the provisions of Clause 5.4 of the Contract shall not apply to any exercised Additional Aircraft.

Payment conditions (including but not limited to Pre-Delivery Payments) shall be the same as for the Firm Aircraft as defined in Clause 6.2 of the Contract.

 

6. DISCLAIMER

All parts, services, warranties and guarantees provided hereunder are provided subject to Clause 29 of the Contract.

 

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APPENDIX R

FORM OF AIRCRAFT CERTIFICATE OF ACCEPTANCE

This Certificate of Acceptance is delivered on the date set forth below by [BUYER’S NAME] (“ Buyer ”) to AVIONS DE TRANSPORT REGIONAL G.I.E. ( “ Seller ”), pursuant to an aircraft sale and purchase contract dated as of [day] th [Month] [year] between Seller and Buyer (as amended and supplemented from time to time, the “ Contract ”). U nless otherwise defined herein, terms used in this Certificate of Acceptance shall have the meaning given to such terms in the Contract.

The Acceptance Flight Tests relating to the ATR 72-600 Aircraft, Manufacturer’s Serial Number MSN [    ], Registration Marks [    ] (“the Aircraft ”), have been carried out at Seller’s delivery center located at Toulouse, France, on the [day] th day of [month] [year].

In view of said tests having been carried out with satisfactory results and without any observed discrepancies, [BUYER’S NAME]whose registered address is at [Airline Address], hereby accepts irrevocably Delivery of the Aircraft in conformity with the provisions of the aforesaid Contract.

Said acceptance does not impair the rights that [BUYER’S NAME] may derive from the warranties or guarantees granted by Seller.

Any right at law or otherwise to revoke this acceptance of the Aircraft is hereby irrevocably waived.

This Certificate of Acceptance shall be governed by and construed in accordance with the laws of the State of New York, United States of America.

Made and delivered in Blagnac, France, on this [day] th day of [month] [year]

 

For and on behalf of
[ BUYER’S NAME ]
Name:
Title:
Signature:

 

- 108 -


Execution version

 

APPENDIX S

FORM OF AIRCRAFT BILL OF SALE

Know all men by these presents that the undersigned AVIONS DE TRANSPORT REGIONAL G.I.E. (“ ATR ”), a French “ Groupement d’Intérêt Economique” whose registered address is 1, Allée Pierre Nadot – 31712 Blagnac Cedex, FRANCE, is the owner of the full legal and beneficial title of the following aircraft (the “ Aircraft ”):

 

MANUFACTURER OF AIRCRAFT    MANUFACTURER OF PROPULSION SYSTEM
ATR    PRATT & WHITNEY CANADA INC.
MODEL    MODEL
ATR 72-600    PW 127 M    - engines
   568F-1    - propellers
MANUFACTURER SERIAL NUMBER    MANUFACTURER SERIAL NUMBERS
[    ]    L/H engine:    [    ]
   R/H engine:    [    ]
   L/H propeller:    [    ]
   R/H propeller:    [    ]
REGISTRATION MARKS      
[    ]      

ATR does this [day] day of [month] [year], sell, grant, transfer and deliver all right, title and interest in and to the above described Aircraft together with all equipment installed therein unto [BUYER’S NAME] (“ Buyer ”) whose address is [Buyer’s Address], and to its successors and assigns forever, said Aircraft to be registered as the property of Buyer. ATR warrants to Buyer, its successors and assigns, that on the date hereof it is the owner of the full legal and beneficial title of the Aircraft and has good right to sell the same and that such title to the Aircraft, including the Airframe, Engines, Propellers and other equipment referred to above (excluding Buyer Furnished Equipment), is on the date hereof free and clear of any and all liens, claims, mortgages, charges, encumbrances, pledges and rights of others of any nature whatsoever. ATR further warrants to Buyer, its successors and assigns, that ATR will defend such title forever against such claims and demands whatsoever.

This Bill of Sale shall be governed by and construed in accordance with the laws of the State of New York, United States of America.

In witness whereof, the present document has been executed by a duly authorized representative.

Made and delivered in Blagnac, France, on this [day] day of [month] [year]

 

- 109 -


Execution version

 

For and on behalf of
AVIONS DE TRANSPORT REGIONAL G.I.E
Name:
Title:
Signature:

 

- 110 -


Execution version

 

* [29 pages have been omitted in accordance with a request for confidential treatment.]

 

- 111 -

Exhibit 10.13.1

AMENDMENT NO. 1

To LETTER AGREEMENT NO. 1

TO GTA No. 03—2007

Aerovias del Continente Americano S.A. Avianca

WHEREAS, CFM International, Inc. (hereinafter individually referred to as “ CFM ”) and Aerovias del Continente Americano S.A. Avianca (hereinafter referred to as “ Airline ”) (CFM and Airline being hereinafter collectively referred to as the “ Parties ”) have entered into General Terms Agreement 03-2007 dated March 29, 2007 (hereinafter referred to as “ GTA ”); and

WHEREAS, the Parties have entered into Letter Agreement No. 1 to the GTA dated March 29, 2007 (hereinafter referred to as “ SLA1 ”); and

WHEREAS, the GTA and SLA1 contain the applicable terms and conditions governing the sale by CFM and the purchase by Airline of spare engines, related equipment and spare parts therefor in support of Airline’s CFM powered fleet of aircraft from Airbus S.A.S (“ Airbus ”); and

WHEREAS, SLA1 contains additional applicable terms and conditions governing the purchase by Airline of twenty-four (24) new firm CFM56-5B4/3 powered A320 aircraft and nine (9) new firm CFM56-5B7/3 powered A319 aircraft direct from Airbus, as well as the right (but not the obligation) to purchase up to fifteen (15) additional purchase right A320 Aircraft and up to twelve (12) additional rolling purchase right A320 Family Aircraft; and

WHEREAS, Airline has exercised some of its rights under its Purchase Agreement with Airbus to acquire Purchase Right Aircraft; and

WHEREAS, the Parties have reached an agreement regarding thrust upgrades for certain leased A319 aircraft; and

WHEREAS, the Parties desire to amend SLA1 to reflect the foregoing and related matters.

NOW THEREFORE, in consideration of the mutual covenants herein contained, the Parties agree to amend SLA1 as follows:

 

* [Three pages have been removed pursuant to a request for confidential treatment]

The obligations, benefits and other provisions set forth in this Amendment No. 1 to SLA1 are in addition to the obligations, benefits and provisions set forth in the GTA, and SLA1. In the event of conflict between the terms of this Amendment No. 1 and the terms of the GTA or SLA1, the terms of this Amendment No. 1 shall take precedence. Terms which are capitalized but not otherwise defined herein shall have the meaning given to them in Article I of the GTA or SLA1.


Capitalized terms used herein but not otherwise defined in the GTA but which are defined herein shall have the meaning given to them herein. Further, capitalized terms defined herein and also defined in the GTA or SLA1 shall have the meaning given to them herein and the GTA and SLA1 shall be amended accordingly.

Please indicate your agreement with the foregoing by signing two (2) duplicate originals as provided below.

 

        Very truly yours,
Aerovias del Continente Americano S.A. Avianca CFM International, Inc.

By: 

          By:     

Typed Name: 

          Typed Name:      

Title:

          Title:     
              
              

Date:

          Date:     

 

 

2

CFM PROPRIETARY INFORMATION

(subject to restrictions on first page)


ATTACHMENT A

Aircraft Delivery Schedule

 

A/C Qty.

  

Engine Type

  

Delivery Date

1 Firm A319    CFM56-5B7/3    September 2008
1 Firm A320    CFM56-5B4/3    October 2008
1 Firm A319    CFM56-5B7/3    November 2008
1 Firm A320    CFM56-5B4/3    August 2009
1 Firm A320    CFM56-5B4/3    September 2009
1 Firm A320    CFM56-5B4/3    November 2009
2 Firm A320    CFM56-5B4/3    1 st Quarter 2010
3 Firm A320    CFM56-5B4/3    2 nd Quarter 2010
2 Firm A319    CFM56-5B7/3    1 st Quarter 2010
2 Firm A319    CFM56-5B7/3    2 nd Quarter 2010
2 Firm A320    CFM56-5B4/3    3 rd Quarter 2010
2 Firm A320    CFM56-5B4/3    4 th Quarter 2010
3 Firm A320    CFM56-5B4/3    1 st Quarter 2011
2 Firm A320    CFM56-5B4/3    2 nd Quarter 2011
2 Firm A319    CFM56-5B7/3    1 st Quarter 2011
1 Firm A319    CFM56-5B7/3    2 nd Quarter 2011
4 Firm A320    CFM56-5B4/3    3 rd Quarter 2011
2 Firm A320    CFM56-5B4/3    4 th Quarter 2011
2 Firm A319    CFM56-5B7/3    1 st Quarter 2012
1 Firm A320    CFM56-5B4/3    1 st Quarter 2012
2 Firm A319    CFM56-5B7/3    2 nd Quarter 2012
2 Firm A320    CFM56-5B4/3    2 nd Quarter 2012
2 Firm A320    CFM56-5B4/3    3 rd Quarter 2012
1 Firm A319    CFM56-5B7/3    3 rd Quarter 2012
2 Firm A319    CFM56-5B7/3    4 th Quarter 2012
2 Firm A320    CFM56-5B4/3    4 th Quarter 2012

Total 47 Firm Aircraft

 

 

3

CFM PROPRIETARY INFORMATION

(subject to restrictions on first page)


Spare Engine Delivery Schedule

 

Spare Engine Qty.

  

Engine Type

  

Delivery Date

1    CFM56-5B7/3    Feb. 2008
1    CFM56-5B4/3    January 2009
1    CFM56-5B7/3    April 2010
1    CFM56-5B4/3    November 2010
1    CFM56-5B4/3    April 2011
1    CFM56-5B4/3    October 2011
1    CFM56-5BX/3    February 2012
1    CFM56-5BX/3    September 2012

Total 8 Spare Engines

 

 

4

CFM PROPRIETARY INFORMATION

(subject to restrictions on first page)

Exhibit 10.16

 

LOGO

RATE PER FLIGHT HOUR AGREEMENT

FOR

CFM56-5B

ENGINE SHOP MAINTENANCE SERVICES

BETWEEN

CFM INTERNATIONAL, INC.

AND

AVIANCATACA HOLDING S.A.

Service Agreement Number: 1-2722979761

Dated: February 6, 2013

 

PROPRIETARY INFORMATION NOTICE

The information contained in this document is CFM International, Inc. (“ CFM ”) and AVIANCATACA HOLDING S.A. (“ AVIANCATACA ”) Proprietary Information and is disclosed in confidence. It is the property of the Parties and will not be used, disclosed to others or reproduced without the express written consent of the Parties. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.


TABLE OF CONTENTS

 

1.

 

DEFINITIONS

     3   

2.

 

SCOPE OF THE SERVICE AGREEMENT

     3   

3.

 

TERM OF THE SERVICE AGREEMENT

     3   

4.

 

ENGINES AND OPERATING PARAMETERS

     3   

5.

 

CFM SERVICE PROGRAM

     3   

6.

 

ENGINE SHOP VISIT

     5   

7.

 

PRICES

     7   

8.

 

INVOICING AND PAYMENT TERMS

     7   

9.

 

WARRANTY AND LIMITATION OF LIABILITY

     7   

10.

 

DELIVERY – REDELIVERY

     8   

11.

 

TURN AROUND TIME

     9   

12.

 

ADDITION TO/ REMOVAL FROM SERVICE AGREEMENT

     9   

13.

 

COMMUNICATION

     10   

14.

 

GENERAL TERMS AND CONDITIONS

     11   

 

CFM PROPRIETARY INFORMATION – SUBJECT TO RESTRICTIONS ON THE FIRST PAGE

 

2


THIS RATE PER FLIGHT HOUR AGREEMENT FOR ENGINE SHOP MAINTENANCE SERVICES (“ Service Agreement ”) is made this 6th day of February, 2013, by and between AviancaTaca Holding S.A. , a company duly organized under the laws of Panama having a principal place of business at Centro Administrativo, Avenida El Dorado, Bogota, Colombia (“ AVIANCATACA ”), and CFM International, Inc. , having its principal place of business at 6440 Aviation Way, West Chester, Ohio 45069 USA (“ CFM ”), (each a “ Party ” and collectively referred to herein as “ Parties ”).

WHEREAS , AVIANCATACA desires to enter into the Service Agreement with CFM whereby CFM will perform or cause to be performed the maintenance, repair, and overhaul of certain CFM56-5B engines operated by AVIANCATACA (“ MRO ”).

WHEREAS , CFM agrees to provide or cause to be provided such MRO services.

NOW THEREFORE , in consideration of the mutual covenants herein contained, the Parties agree as follows:

 

1.0 DEFINITIONS

Capitalized terms used in this Service Agreement and not otherwise defined have the meanings set forth in Exhibit A.

 

2.0 SCOPE OF THE SERVICE AGREEMENT

This Service Agreement contains the terms and conditions applicable to the sale by CFM and the purchase by AVIANCATACA of the CFM Service Program.

The Engines covered by this Service Agreement are described in Article 4.

CFM will provide the Covered Services on the basis of a combination of a Popular Rate and a Restored Rate per Engine Flight Hour covering each Engine for a period of fifteen (15) years from the date of each Engine delivery to AVIANCATACA.

[*]

 

3.0 TERM OF THE SERVICE AGREEMENT

This Service Agreement will commence on the date of execution of this Service Agreement, (the “ Commencement Date ”). Each Engine will be covered by this Service Agreement for the period beginning on the delivery date of such Engine to AVIANCATACA and covered for a period of fifteen (15) years, as specified in Exhibit B.

This Service Agreement will continue, unless sooner terminated, for a period ending on the earlier to occur of the completion of the coverage period described above or [*] (the “ Term ”).

 

4.0 ENGINES AND OPERATING PARAMETERS

The Engines covered by this Service Agreement and the base operating parameters are set forth on Exhibit B.

 

5.0 CFM SERVICE PROGRAM

 

5.1 Covered Services

 

5.1.1 [*]

[*]

 

CFM AND AVIANCATACA PROPRIETARY INFORMATION – SUBJECT TO RESTRICTIONS ON THE FIRST PAGE

 

3


5.1.3 Engine Management Services and Diagnostic Services

CFM will provide the following diagnostics services:

 

  a. Engine condition data will be automatically processed by diagnostics software 24 hours a day, 7 days a week (“ 24x7 ”) when received at the designated CFM facility. CFM will be responsible for operating and maintaining the diagnostics software and the necessary facilities. AVIANCATACA shall have access to the web-based tools for reviewing Engine condition data and assessing Engine health.

 

  b. Customer Notification Reports (“ CNR” ) for Engine condition monitoring trend shift observation, including engineering review, analysis, and recommendations will be provided to AVIANCATACA, as requested by AVIANCATACA, on a 24x7 basis.

 

  c. Monthly Engine thrust derate report.

 

  d. Access to diagnostics engineers for Engine diagnostic support and consultation as required.

 

  e. Periodic teleconference to review reports and program status.

 

  f. Weekly engine health trend summary and analysis reports.

AVIANCATACA acknowledges and agrees that any such information provided to AVIANCATACA by CFM for use in troubleshooting and managing operations is, for regulatory purposes, advisory only, that CFM is not responsible for line maintenance or other actions or consequences resulting from such advice, and for purpose of compliance with AAA requirements, AVIANCATACA is solely responsible for identifying and resolving any aircraft or Engine faults or adverse trends.

 

5.1.4 Lease Engine Coverage

 

  A. CFM shall use reasonable efforts to provide the following lease engine coverage

 

  i. If AVIANCATACA has an aircraft on ground (“ AOG ”) situation because the number of Engines in process at the CFM Designated Repair Station for Qualified Shop Visits exceeds the required quantity of spare Engines, as set forth in Exhibit B, and none of AVIANCATACA’s spare Engines are available because they are either receiving a Qualified Shop Visit or installed on an aircraft operated by AVIANCATACA and not by a third party, AVIANCATACA is eligible for the lease engine coverage described in this Article 5.1.4,

 

  ii. Within twenty-four (24) hours of being notified by AVIANCATACA that the above described AOG situation exists, CFM shall advise AVIANCATACA of the location of the closest available lease engine,

 

  iii. CFM shall Deliver or cause to be Delivered, such lease engine to AVIANCATACA, Ex Works (Incoterms 2010), at a CFM housekeeping facility or other mutually agreed location. CFM shall endeavor to provide this engine in a neutral QEC configuration. All transportation costs, including insurance will be AVIANCATACA’s responsibility,

 

  iv. CFM’s obligation to provide such lease engine will terminate when the AOG condition is corrected by the Redelivery of an Engine to AVIANCATACA and the passage of a reasonable amount of time to install such Engine in replacement of the leased engine, subject to AVIANCATACA’s obligation to return the lease engine set forth below,

 

  v. AVIANCATACA shall pay then-current market rates (but not to exceed the EFH rate that would apply)for the hourly restoration charges and the LLP fees per flight cycle payable under the lease in respect of the lease engine until the lease engine is removed from AVIANCATACA’s aircraft. CFM will waive the daily engine rental fees payable under the lease in respect of the lease engine.

 

  B. Lease Engine Condition:

 

     CFM’s provision of such lease engine is predicated upon the following:

 

  i. The Parties have established a mutually agreed Removal Schedule.

 

CFM AND AVIANCATACA PROPRIETARY INFORMATION – SUBJECT TO RESTRICTIONS ON THE FIRST PAGE

 

4


  ii. AVIANCATACA shall use best efforts to ship Engines for Qualified Shop Visits as soon as practicable, but no later than seven (7) Days following removal from the aircraft if the Engine removal is a scheduled event or at an AVIANCATACA main hub (as specified in the operating parameters tables in Exhibit B). If the Engine removal is not a scheduled event and not at an AVIANCA main hub, then AVIANCTACA shall use best efforts to ship the Engine as soon as practicable.

 

  iii. AVIANCATACA is in full compliance with the records requirements of Article 6.2.

 

     AVIANCATACA and CFM shall negotiate and enter into an engine lease agreement based upon IATA Document No. 5016-00, MASTER SHORT-TERM ENGINE LEASE AGREEMENT, dated December 1, 2002, as may be amended from time to time (the “ IATA Master ”) together with a lease agreement substantially in the form of Annex 2 thereto incorporating, subject to the terms and conditions contained in such lease agreement, the terms of the IATA Master.

 

  C. Return of Lease Engines:

 

     [*]

 

  D. Sole Remedy:

 

     The foregoing provisions of this Paragraph 5.1.4 will constitute the sole remedy of AVIANCATACA and the sole liability of CFM for lease engine availability and resolution of AOG conditions under this Service Agreement.

 

5.2 Additional Services

 

5.2.1 [*]

 

5.2.2 CFM Engineering Support Services

CFM will provide the following engineering support services:

 

  a. Notify AVIANCATACA of any deviations from the configuration specification of Engines Delivered for Service, and request resolution of same.

 

  b. Provide an Engine findings report (which may include photographs identifying damage detected and repairs) accomplished.

 

  c. Consultation on trend reports.

 

  d. Advice covering Engine enhancements.

 

  e. CFM will work with AVIANCATACA in inspection of records for used engines being considered by AVIANCATACA for acquisition and shop visit development for return of leased engines, but AVIANCATACA shall be solely responsible for making the final determination as to the quality of the used engines.

5.3 [*]

 

6.0 ENGINE SHOP VISIT

 

6.1 [*]

 

6.2 Procedure

 

  a) AVIANCATACA shall Deliver the Engine to the CFM Designated Repair Station.

 

  b) AVIANCATACA shall issue a purchase order to CFM and CFM shall accept the purchase order to the extent it complied with this Service Agreement, CFM shall process the performance of the Services in accordance with the AVIANCATACA requirements specified in such purchase order, provided that, in any event, any conflicting terms and conditions of this Service Agreement shall take precedence over any terms and conditions set forth on such purchase order or CFM acceptance document.

 

  c) AVIANCATACA shall provide all applicable Engine records, as required by the AAA or as reasonably requested by CFM, and the shop visit data listed in Exhibit C to the extent that the data is not otherwise available to CFM.

 

CFM AND AVIANCATACA PROPRIETARY INFORMATION – SUBJECT TO RESTRICTIONS ON THE FIRST PAGE

 

5


  d) Following Delivery of each Engine at the CFM Designated Repair Station, together with the documents described in Paragraphs (b), and (c) above, CFM shall diligently perform or cause to be performed the Induction of the Engine and shall proceed with the Services requested by such purchase order in accordance with Paragraph (b) above.

 

  e) CFM will inform AVIANCATACA as to whether the shop visit meets the criteria for a Qualified Shop Visit within a commercially reasonable period of time, not to exceed two (2) weeks after Induction of the Engine.

 

  f) Upon Induction, CFM will notify AVIANCATACA of any components or LRU’s missing from the Engine. CFM will replace such missing items at AVIANCATACA’s expense as Supplemental Services, unless (i) AVIANCATACA notifies CFM in writing within forty eight (48) hours after receiving CFM’s notice that AVIANCATACA wishes to furnish such missing items; and (ii) AVIANCATACA delivers such missing items to the CFM Designated Repair Station within three (3) weeks.

 

  g) CFM shall Redeliver a Serviceable Engine to AVIANCATACA.

 

  h) CFM will prepare and package the Serviceable Engine in shipping stands or containers provided by AVIANCATACA at the time of Delivery in accordance with CFM’s standard commercial practices.

 

  i) CFM shall provide AVIANCATACA with copies of all work records required by AAA as agreed to in writing by CFM and AVIANCATACA.

 

  j) CFM shall use only CFM approved parts, materials and published repairs; CFM may not use any non-OEM repairs without AVIANCA/TACA’s prior approval, which may be withheld for any reason. Any deviations from this requirement will require AVIANCATACA’s approval in advance of fitment to the Engine. For parts that are typically time tracked during the course of an overhaul, no replacement part may have a TSN which exceeds the TSN of the Engine in which it is to be installed or of the part which it is replacing. Any replacement part must have a modification and SB status at least as high as that of the part which it is replacing.

 

6.3 [*]

 

6.4 Title and Risk of Loss to Parts or Material

CFM furnished parts and material incorporated into an Engine will be deemed to have been sold to AVIANCATACA and title to such parts and material will pass to AVIANCATACA or the owner of the Engine with good title to Parts free and clear upon incorporation into such Engine. Risk of loss or damage to such parts and material will pass to AVIANCATACA upon Redelivery of the Engine.

Title to and risk of loss of any parts (including Repairable and LLP parts) removed from the Engine that are replaced by other parts will pass to CFM free and clear upon incorporation of replacement parts into the Engine.

For removed parts, AVIANCATACA shall provide the associated records, including BTB trace, non-incident statement and CFM-approved parts and repairs certification, to the extent not already available to CFM, as reasonably requested by CFM.

 

6.5 Engine Configuration

AVIANCATACA shall Deliver the Engine to the CFM Designated Repair Station in a basic engine configuration, equipped with the LRUs listed in Exhibit F. CFM shall Redeliver the Engine in the same basic engine configuration.

In the event an Engine is Delivered with parts or components or QEC equipment in addition to the basic configuration, such Engine shall be Redelivered in the same configuration as Delivered, unless otherwise mutually agreed by the Parties. Any work performed to return such parts or components or QEC equipment in a Serviceable condition will be charged to AVIANCATACA as Supplemental Services.

The Engine Redelivered to AVIANCATACA will have incorporated Airworthiness Directives and CFM Service Bulletins as specified in Article 5.1.1.

 

CFM AND AVIANCATACA PROPRIETARY INFORMATION – SUBJECT TO RESTRICTIONS ON THE FIRST PAGE

 

6


To the extent allowed under Article 6.2, CFM may elect to use used Rotable Parts, and/or repaired parts in Serviceable condition in Engines Redelivered to AVIANCATACA, and such Rotable Parts, and/or repaired parts will be a CFM part of similar configuration as the parts in the Engine Delivered to CFM.

 

6.6 Sales and Leasing Transactions .

Upon conducting a sale/lease back, leasing or Engine sale transaction, AVIANCATACA will promptly provide CFM with the relevant details, including the other party(ies) involved, lease term, return conditions and any other information reasonably requested by CFM.

For Engines subject to a sale/lease back, leasing or Engine sale transaction, the Parties will, to the extent permitted by the terms of such lease or sale, mutually agree to modify the Workscope and/or the LLP Minimum Build to minimize their investments in accordance with the amount of time the Engine will be covered under the Agreement and the lease return conditions. In the event the terms of such lease or sale require another party’s consent to provide the requested information, AVIANCATACA will undertake all reasonable efforts to obtain the required consent.

 

7.0 PRICES

*[Four pages have been removed pursuant to a request for confidential treatment]

 

8.0 [*]

 

9.0 WARRANTY AND LIMITATION OF LIABILITY

For this Article 9, the term “ CFM ” shall be deemed to include CFM, GE and Snecma, the CFM Designated Repair Station and CFM’s subsidiaries, assigns, subcontractors, suppliers, Services providers, and their respective directors, officers, employees, and agents.

 

9.1 Workmanship Warranties

 

9.1.1 [*]

 

9.1.2 Conditions and Limitation of Liability

This Services Warranty is applicable only if: the Engine, following Redelivery, (a) has been transported, stored, installed, operated, handled, maintained and repaired in accordance with AVIANCATACA’s AAA approved maintenance program and applicable manuals and regulatory requirements, as well as the then-current CFM recommendations as stated in AMM or CFM manual, Airworthiness Directives, Service Bulletins or other relevant written instructions; and (b) has not been subjected to accident, misuse, abuse or neglect.

Notwithstanding the provisions of Article 9.4, any warranty for Engines or parts, LRU’s, components and material thereof, including the design, material or engineering defects of a manufacturer, will be the warranty, if any, of the manufacturer of such Engines or parts, LRU’s, components or material thereof.

The foregoing will constitute the sole remedy of AVIANCATACA and the sole liability of CFM for defective workmanship relative to the Engines. The liability of CFM connected with or resulting from the Services warranty shall not in any event exceed the cost of correcting the defect as provided above, and, upon the expiration of the shortest period described therein, all such liability will terminate. In no event shall CFM be liable for any special, expectation, consequential, incidental, resultant, indirect, punitive or exemplary damages (including loss of use, loss of profit or loss of revenue in connection with the Engines).

 

CFM AND AVIANCATACA PROPRIETARY INFORMATION – SUBJECT TO RESTRICTIONS ON THE FIRST PAGE

 

7


THE SERVICES WARRANTY SET FORTH HEREIN IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND GUARANTEES WHETHER WRITTEN, STATUTORY, ORAL OR IMPLIED (INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE).

 

9.2 Assignment of Warranties

AVIANCATACA may not assign the Services warranty without CFM’s prior written consent. However, CFM will consent to a Services warranty assignment to AVIANCATACA’s lessor or operating subsidiaries and affiliates upon written request, concurrent with the sale or return off lease of an Engine for which the warranty period has not expired, subject to the terms and conditions of a mutually agreed warranty assignment letter.

 

9.3 Pre-existing Warranties.

AVIANCATACA will assure that any requested repair of an Engine, accessory or component that is covered under a third party warranty that is not assigned to CFM will be performed directly by that third party at no expense to CFM. Notwithstanding the above, CFM may accept a purchase order for the time and material repair of a warranted item from AVIANCATACA or the third party giving the warranty.

 

9.4 Superseding Warranties.

During the Term of this Service Agreement, AVIANCATACA acknowledges that the obligations undertaken by CFM hereunder, except with respect to the provision of Supplemental Services hereunder, supersede the following Warranties set forth in the GTA, and the following Special Guarantees set forth in Letter Agreement No. 1 to the GTA

Extended New Engine and Module Guarantee

Extended New Parts Guarantee

Extended Ultimate Life Guarantee

Campaign Change Guarantee

Extended Ultimate Life Rotating Parts Guarantee

AOG Guarantee

Any other Engine program considerations undertaken by CFM in any other agreement

for these Engines, relating to shop visits. Upon termination of this Service Agreement, any such warranties or commercial obligations with remaining life will be restored to AVIANCATACA.

 

10.0 DELIVERY – REDELIVERY

 

10.1 Delivery

All Engines to be Serviced will be Delivered by AVIANCATACA to the CFM Designated Repair Station. Such Engines will be shipped within five (5) days following removal from the aircraft. AVIANCATACA will not Deliver piece parts or components for repair separate from AVIANCATACA’s Engine without CFM’s written consent.

 

10.2 Packaging

AVIANCATACA is responsible for all packaging, labeling and associated documentation of the Engine at Delivery, in accordance with the International Civil Aviation Organizations (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air, and if the Engine is to be transported over the United States of America, the US Department of Transport Regulations 48 CFR 171-180. If required by applicable law or regulations, AVIANCATACA will further provide a material safety data sheet to CFM at Delivery of the Engine indicating any substances contained within the Engine to be consigned. AVIANCATACA will indemnify, defend and hold harmless CFM from all or any claims, liabilities, damages, judgments, costs, penalties, fines and/or any punitive damages imposed, alleged, or assessed by any third party against CFM and caused by and to the extent of AVIANCATACA’s non-compliance with this Article 10.2.

 

CFM AND AVIANCATACA PROPRIETARY INFORMATION – SUBJECT TO RESTRICTIONS ON THE FIRST PAGE

 

8


10.3 Shipping Stands

AVIANCATACA will provide and maintain all shipping stands, shipping containers, mounting adapters, inlet plugs and covers, required to package the Engine for Delivery and Redelivery.

 

10.4 Redelivery

After completion of Services, CFM will prepare and package the Engine for Redelivery to AVIANCATACA and provide a Services records package that complies with AAA regulations.

Redelivery dates are based upon receipt by CFM of all information necessary to permit CFM to proceed with the Services immediately and without interruption.

In the event Redelivery of an Engine cannot occur due to any act or failure to act by AVIANCATACA, CFM may place such Engine into storage. In such event, CFM will notify AVIANCATACA and CFM’s Redelivery obligations will be deemed fulfilled and all risk of loss or damage to the Engine shall pass to AVIANCATACA on the date of such storage. Any amounts payable to CFM upon Redelivery will be payable thirty (30) days after the date of CFM’s invoice. Promptly upon receipt of CFM’s invoice, AVIANCATACA will reimburse CFM for all expenses incurred by CFM, including, but not limited to, preparation for and placement into storage, handling, inspections, preservation and insurance of the Engine. Upon payment of all amounts due hereunder, CFM will assist and cooperate with AVIANCATACA in the removal of Engine that has been placed in storage.

AVIANCATACA will indemnify, defend and hold harmless CFM from all or any claims, liabilities, damages, judgments, costs, penalties, fines and/or any punitive damages imposed, alleged, or assessed by any third party against CFM and caused by and to the extent of AVIANCATACA’s non-compliance with this Article 10.4.

 

11.0 TURN AROUND TIME

 

11.1 [*]

[*]

[*]

 

12.0 ADDITION TO/ REMOVAL FROM SERVICE AGREEMENT

 

12.1 Addition of Engines

AVIANCATACA and CFM may agree to amend Exhibit B to add Engines to the Service Agreement after the Commencement Date. For each added Engine, AVIANCATACA will provide the Engine serial number, aircraft tail number, previous operator, current owner, operating time and flight cycles since new and, if applicable, the operating time and flight cycles since the last shop visit, shop visit reports, historic thrust and derate information and applicable thrust rating. CFM will evaluate the effect on the Rate Per Flight Hour pricing, and Service Credit amounts and distribution schedule, taking into consideration effects on the fleet size, age and condition of the Engines and other commercial considerations and may adjust the Rate Per Flight Hour pricing accordingly.

 

12.2 Removal of Engines

AVIANCATACA may remove an Engine from this Service Agreement upon advance written notice, only if AVIANCATACA is no longer operating the Engine and is no longer responsible for maintenance of the Engine for the following reasons:

 

  a. Bona fide sale or other bona fide transfer to an unaffiliated third party;

 

  b. An unplanned return to the lessor; or

 

  c. If the Engine has been reasonably determined to be BER.

 

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In all cases of Engine removal, provided that AVIANCATACA is in compliance with Article 6.6, AVIANCATACA may select which Engine will be removed, provided that the engine(s) being removed is representative of a fleet average engine, unless AVIANCATACA’s lessor dictates otherwise.

Any Engine removal will be subject to the reconciliation provisions set forth below.

 

12.2.1 Reconciliation . The following applies to Engines removed as a result of a removal per Paragraph (a), (b) or (c) above:

 

  a. If a removed Engine has not undergone a Qualified Shop Visit for Covered Services, no penalties nor reconciliation will apply. CFM will retain the Popular Rate billings through the date of removal.

 

  b. If a removed Engine has undergone at least one (1) Performance Restoration Shop Visit for Covered Services, no penalties nor reconciliation will apply. CFM will retain the Popular Rate billings through the date of removal.

 

  c. If a removed Engine has undergone at least one Qualified Shop Visit for Covered Services, but not a Performance Restoration Shop Visit, CFM will calculate the total cumulative charges for all Covered Services provided for such removed Engine as if such Services were provided on a Supplemental Services basis and the Supplemental Services pricing had applied (“ Supplemental Charges ”). CFM will then compare such Supplemental Charges to the total cumulative Restored Rate Covered Services payments received from AVIANCATACA for such removed Engine. If the Supplemental Charges are greater than the total cumulative Restored Rate Covered Services payments received from AVIANCATACA, CFM will invoice AVIANCATACA for the difference, together with a detailed explanation of the calculations reflected in such invoice. AVIANCATACA will pay such invoice within thirty (30) Days of receipt. If the Supplemental Charges are less than the total cumulative Restored Rate Covered Services payments received from AVIANCATACA, CFM will credit to AVIANCATACA within thirty (30) Days the difference between the total cumulative Restored Rate Covered Services payments received from AVIANCATACA and the Supplemental Charges. CFM will retain the Popular Rate billings through the date of removal.

 

12.2.2 Impact of Removals . CFM will evaluate the effect of the removal from the Service Agreement of more than forty percent (40%) of the Engines from the AVIANCATACA fleet on the Rate Per Flight Hour pricing, taking into consideration effects on the fleet size, age and condition of the Engines. CFM may adjust the Rate Per Flight Hour pricing accordingly if the number of Engines covered by the Service Agreement decreases to less than sixty percent (60%) of the total fleet of Engines operated by AVIANCATACA, without taking into account any engines that are added to the program in accordance with Article 12.1. In such event, the adjusted Rate Per Flight Hour pricing will be mutually agreed and the Service Agreement will be amended accordingly. AVIANCATACA will pay the adjusted Rate Per Flight Hour pricing for all EFH incurred by all Engines that remain covered by the Service Agreement from the date of the Engine removal that triggered the rate adjustment.

In the event the Parties do not agree on the adjusted Rate Per Flight Hour pricing within ninety (90) Days from the date of the Engine removal that triggered the rate adjustment, CFM may terminate this Service Agreement upon written notice to AVIANCATACA.

 

13.0 COMMUNICATION

CFM will assign a program manager who will be the point of contact for AVIANCATACA with respect to implementation of the CFM Service Program (“ CFM Program Manager ”).

 

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AVIANCATACA will also designate a point of contact to communicate with the CFM Program Manager.

The CFM Program Manager will:

 

  a. Draft a Procedures Manual and submit it to AVIANCATACA for mutual approval;

 

  b. Work with the AVIANCATACA, on a monthly basis, to develop a Removal Schedule which will identify by serial number the Engine(s) to be removed during the following six (6) month period, the anticipated reason for removal of each, and the schedule for Delivery.

 

14.0 GENERAL TERMS AND CONDITIONS

General terms and conditions provided in Exhibit I are an integral part of this Service Agreement.

Counterparts: This Service Agreement may be signed by the Parties in separate counterparts, and any single counterpart or set of counterparts, when signed and delivered to the other Parties shall together constitute one and the same document and be an original Service Agreement for all purposes.

 

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IN WITNESS WHEREOF , the Parties hereto have executed this Service Agreement as of the day and the year first above written.

 

CFM INTERNATIONAL, INC.       AVIANCATACA HOLDING S.A.
BY :           BY :    
                         
PRINTED NAME :           PRINTED NAME :    
                         
TITLE :           TITLE :    
                         

 

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EXHIBITS

 

EXHIBIT A:    DEFINITIONS
EXHIBIT B:    ENGINES COVERED AND OPERATIONAL PARAMETERS
EXHIBIT C:    SHOP VISIT DATA
EXHIBIT D:    PRICE ADJUSTMENT MATRIX
EXHIBIT E:    ESCALATION
EXHIBIT F:    LRU
EXHIBIT G:    SUPPLEMENTAL SERVICES PRICING
EXHIBIT H:    CFM DESIGNATED REPAIR STATIONS
EXHIBIT I:    GENERAL TERMS AND CONDITIONS
EXHIBIT J:    ON-SITE SUPPORT
EXHIBIT K:    FLIGHTLINE LRU SUPPORT

 

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EXHIBIT A: DEFINITIONS

Capitalized terms used herein but not otherwise defined have the following meanings:

Act of God ”—An event that directly and exclusively results from the occurrence of natural causes beyond the reasonable control of the Parties.

Additional Services ”—The Services described in Article 5.2.

Aircraft Accident ”—An occurrence caused by the operation of an aircraft in which any person suffers a fatal injury or serious injury as a result of being in or upon the aircraft or by direct contact with the aircraft or anything attached to the aircraft, or in which the aircraft receives damage or a third party’s property is damaged in any way.

Aircraft Incident ”—An occurrence, other than an Aircraft Accident, caused by the operation of an aircraft that affects or could affect the safety of operations and that is investigated and reported.

Airworthiness Directive ” or “ AD ”—A document issued by the AAA having jurisdiction over the Engines, identifying an unsafe condition relating to such Engines and, as appropriate, prescribing inspections and the conditions and limitations, if any, under which the Engines may continue to operate.

AMM ”—Aircraft Maintenance Manual.

Approved Aviation Authority ” or “ AAA ”—As applicable, the FAA, EASA, the Aeronáutica Civil of Colombia, Dirección General de Aviación Civil of Ecuador, Autoridad de Aviacion Civil of El Salvador, Directorate General of Civil Aviation of Costa Rica or Dirección General de Aeronáutica Civil del Peru.

Beyond Economic Repair ” or “ BER ”—When the cost, calculated on a Supplemental Services basis, to restore an Engine to the requirements of the Repair Specification exceeds sixty five percent (65%) of the fair market value of a comparable Serviceable engine.

CFM Designated Repair Station ” or “ CFM DRS ” or “ DRS ”—The repair facilities designated by CFM, which are certified by the AAA to perform the Services hereunder and where Services are performed on Engines.

CFM Program Manager ”—Has the meaning provided in Article 13.

CFM Service Program ”—All off-wing work required on an Engine to restore the Engine to Serviceable condition in accordance with the Repair Specification, the Workscope and the terms of this Service Agreement, including Supplemental Services.

CLP ”—The manufacturer’s Current catalog or manufacturer’s Current list price pertaining to a new Engine or part thereof.

Commencement Date ”—Has the meaning provided in Article 3.

Contracted Months ”—Has the meaning provided in Article 7.3.

Covered Services ”—The Services described in Article 5.1.

Current ”—As of the time of the applicable Service or determination.

Day ”—Calendar day unless expressly stated otherwise in writing. If performance is due on a public holiday recognized by the CFM DRS, performance will be postponed until the next business day (Monday through Friday).

 

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Delivery ”—The arrival of an Engine together with all applicable records and required data Delivery Duty Paid (“ DDP ”), International Chamber of Commerce, Incoterms 2010, at the CFM Designated Repair Station, whereby AVIANCATACA fulfills the obligations of seller and CFM fulfills the obligations of buyer. “ Deliver ” will mean the act by which AVIANCATACA accomplishes Delivery.

Delivery Point ”—in the case of Flightline LRU Support, means the CFM facility located in Villaroche, France.

Dollars ” or “ U.S. $ ”—The lawful currency of the United States of America.

EASA ”—the European Aviation Safety Authority,

Engine ”—Each bare engine assembly or, as applicable, Engine module, which is covered by this Service Agreement and identified in Exhibit B, including its essential components as described in Exhibit F.

Engine Flight Hour ” or “ EFH ”—Engine flight hour expressed in hourly increments of aircraft flight from wheels up to wheels down.

Entry Into Service ”—The date when the Engine is delivered to AVIANCATACA by the airframer or by CFM, as a New Engine.

FAA ”—Federal Aviation Administration of the United States

FIM ”—Fault Isolation Manual.

Foreign Object Damage ” or “ FOD ”—Damage to any portion of the Engine caused by impact with or ingestion of a non-Engine object such as birds, stones, hail, ice, vehicles, tools or debris. FOD may be further classified as a “ Major FOD ,” which means FOD that causes an out of limit condition per the Aircraft Maintenance Manual, and which, either immediately or over time, requires the Engine to be removed from service or prevents the reinstallation of the Engine.

GTA ”—the General Terms Agreement between CFM and AVIANCATACA, No.CFM-1-2887169891, dated February 6, 2013.

IATA Master ” – Has the meaning provided in Article 5.1.4.

Induction ”—The date work commences on the Engine at the CFM Designated Repair Station when all of the following have taken place: (i) CFM’s receipt of the Engine and required data, (ii) Parties’ approval of the preliminary Workscope, (iii) CFM’s receipt of an acceptable purchase order, (iv) Parties’ agreement on use of the AVIANCATACA furnished equipment; and (v) receiving inspection (including pre-testing if needed).

Life Limited Part ” or “ LLP ”—A part with a limitation on use established by CFM or the AAA, stated in cumulative EFH or cycles.

LLP Minimum Build ”—The minimum quantity of cycles and/or hours that every LLP must have at the completion of a Performance Restoration Shop Visit. The LLP Minimum Build shall be the threshold used to determine which LLP are replaced at a Performance Restoration Shop Visit.

Line Replaceable Unit ” or “ LRU ”—A major control or accessory that is mounted on the external portion of an Engine, as listed in Exhibit F.

MRO ” shall have the meaning provided in the recitals.

New Engine ”—An Engine which has not undergone a shop visit, which has less than one hundred (100) EFH since new and which contains only CFM approved parts and CFM approved repairs.

On-Site Support ” or “ OSS ”—Has the meaning provided in Article 5.2.1.

 

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Part ”—A part originally sold by CFM.

Performance Restoration Shop Visit ”—The Services, performed during a shop visit in which, at a minimum, the following modules are exposed, disassembled and subsequently refurbished: the high-pressure turbine, combustor and the high pressure compressor, if required to retain the performance of the high-pressure compressor. If the LLP core stack is replaced, it is considered a Performance Restoration Shop Visit.

Pool ”—means the collective reference to Serviceable LRU necessary for Standard Exchange as listed in Exhibit J.

Popular Rate ” or “ Popular Rate per Engine Flight Hour ”—The Popular Rate per Engine Flight Hour provided in Article 5.1 and priced in accordance with Article 7.1.

Primary Hub ”—The main airport where AVIANCATACA performs the majority of its engine removal off wing.

Procedures Manual ”—A separate document, not part of this Service Agreement, which provides detailed procedures and guidance for the administration of the Service Agreement. In case of conflict between the Procedures Manual and the Service Agreement, the Service Agreement will prevail.

Qualified Shop Visit ”—Has the meaning provided in Article 5.1.1.

QEC ”—Quick Engine Change.

Rate ” or “ Rate Per Engine Flight Hour ”—The rate for Covered Services or Additional Services as set forth in Article 7.

Redelivery ”—The shipment of a Serviceable Engine with legally required certifications, Ex Works, International Chamber of Commerce, Incoterms 2010, at the CFM Designated Repair Station, whereby AVIANCATACA fulfills the obligations of buyer and CFM fulfills the obligations of seller. “ Redeliver ” will mean the act by which CFM completes Redelivery.

Removal Schedule ”—The schedule jointly developed by CFM and AVIANCATACA for Engine removal off wing for Services or Engine removal from operation.

Repair ” – In the case of Flightline LRU Support, means the disassembly, inspection, repair, reassembly and test when applicable, of an LRU in accordance with the applicable CFM shop manual and/or documents (such as vendor’s CMM) approved and authorized by the EASA or FAA, as applicable.

Repair Specification ”—The AVIANCATACA repair specification which establishes the minimum baseline to which an Engine or part thereof will be inspected, repaired, modified, reassembled and tested to make and Engine Serviceable. Such Repair Specification will meet or exceed the recommendations of CFM’s operational specifications, applicable CFM maintenance or overhaul manuals and AVIANCATACA’s maintenance plan that has been approved by the AAA.

Repairable ”—Capable of being made Serviceable.

Restored Rate per Engine Flight Hour ” or “ Restored Rate ”—Services provided pursuant to Article 5.1 and priced in accordance with Article 7.1.

Rotable Part ”—A new or used Serviceable Part drawn from a common pool of Parts used to support one or more customers. A Rotable Part replaces a similar Part removed from an Engine when such removed Part requires repair.

Service(s) ”—With respect to an Engine or part thereof, all or any part of those maintenance, repair and overhaul services provided under this Service Agreement as either Covered Services or Supplemental Services. “ Serviced ” will be construed accordingly.

 

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Service Agreement ”—This Service Agreement, as the same may be amended or supplemented from time to time, including all its Exhibits.

Service Bulletin ” or “ SB ”—The document as issued by CFM to notify the operator of modifications, substitution of parts, special inspections, special checks, or conversion of an Engine from one model to another.

Service Credit ” —Credits that may be applied towards payment for Services, as described in Article 7.3.

Serviceable ”—Meeting all CFM and AAA specified standards for airworthiness.

Standard Exchange ”—In the case of Flightline LRU Support, means any exchange of Unserviceable equipment with a Serviceable one which is available and fully interchangeable with such Unserviceable equipment.

Supplemental Charges ”—Has the meaning provided in Article 7.2.

Supplemental Services ”—Those Services provided pursuant to Article 5.3.

Term ”—Has the meaning provided in Article 3.

TSM ”—Trouble Shooting Manual.

TSN ”—Time since new

Turn Around Time ”—The number of Days from Induction until the Engine is ready for Redelivery (as evidenced solely by placement of the Serviceable tag or equivalent governing agency compliance tag, on such Engine) exclusive of any Excusable Delays as defined in Exhibit I, Article 4.

Unserviceable ”—Not meeting all CFM and AAA specified standards for airworthiness.

Used Engine ”—An Engine which has undergone a shop visit or which has more than one hundred (100) EFH since new.

Workscope ”—Has the meaning provided in Article 6.3.

Workscope Planning Guide ”—The document published by CFM which describes the “ on condition ” maintenance concept for the Engines. This document communicates the timing and extent of work required to enable operators to achieve reliability, performance, and maintenance cost goals.

 

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EXHIBIT B: ENGINES COVERED AND OPERATIONAL PARAMETERS

*[Eleven pages have been removed pursuant to a request for confidential treatment].

 

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EXHIBIT I: GENERAL TERMS AND CONDITIONS

Table of Contents

 

ARTICLE 1    -    LIMITATION OF LIABILITY AND INDEMNIFICATION
ARTICLE 2    -    TERMINATION
ARTICLE 3    -    TAXES
ARTICLE 4    -    EXCUSABLE DELAY
ARTICLE 5    -    PATENTS
ARTICLE 6    -    INFORMATION AND DATA
ARTICLE 7    -    GOVERNMENTAL AUTHORIZATION & EXPORT SHIPMENT
ARTICLE 5    -    WAIVER OF IMMUNITY
ARTICLE 9    -    NOTICES
ARTICLE 10    -    LIENS
ARTICLE 11    -    APPLICABLE LAW – DISPUTE RESOLUTION
ARTICLE 12    -    MISCELLANEOUS

ARTICLE 1 – LIMITATION OF LIABILITY AND INDEMNIFICATION

 

A. Total Liability . The total liability of CFM for any and all claims, whether in contract, warranty, tort (including negligence but excluding willful misconduct), product liability, patent infringement or otherwise, for any damages arising out of, connected with or resulting from the Service Agreement or the performance or non-performance of any Service or from the manufacture, sale, Redelivery, resale, repair, overhaul, replacement or use of the Engine or any item or part thereof, will not exceed: (i) the price allocable to the repaired or overhauled item, part or Service which gives rise to the claim; or (ii) the value of the Engine which gives rise to the claim, whichever is greater. Notwithstanding the foregoing, in no event will CFM or AVIANCATACA have any liability hereunder, whether as a result of breach of contract, warranty, tort (including negligence but excluding willful misconduct), product liability, patent infringement or otherwise, for any special, consequential, incidental, resultant or indirect damages, (including, without limitation, loss of: use, profit, revenue or goodwill) or punitive or exemplary damages.

In no event will CFM have any liability hereunder, whether as a result of breach of contract, warranty, tort (including negligence but excluding willful misconduct), product liability, patent liability, or otherwise, for the design, material, workmanship, engineering defects or product liability and any damages whatsoever, including damages to personal property and for personal injury or death, caused in any way by the manufacturer of the parts, LRU’s, components or material, thereof, or related thereto, provided that this in no way limits the liability of CFM for third party claims or under any General Terms Agreement or Letter Agreement to which CFM and AVIANCATACA are parties.

In the event AVIANCATACA uses non-CFM parts or non-CFM approved LRU’s, parts or repairs in an Engine and such LRU’s, parts or repairs cause personal injury, death or property damage to third parties, AVIANCATACA shall indemnify and hold harmless CFM from all claims and liabilities associated therewith. The preceding indemnity shall apply whether or not CFM was provided a right under this Service Agreement to remove such LRU’s, parts or repairs, and irrespective of the exercise by CFM of such right

 

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B. Definition . For the purpose of this Article 1, the term “CFM” is deemed to include CFM and its parent and affiliated companies, the subcontractors and suppliers of any Services furnished hereunder, and the directors, officers, employees, agents and representatives of each.

ARTICLE 2 – TERMINATION

 

A. Termination Events . The Service Agreement may be terminated as follows:

Late Payment . In the event that AVIANCATACA fails to make payments to CFM within the time periods specified herein, CFM may terminate all or any portion of this Service Agreement upon thirty (30) days written notice to AVIANCATACA, unless AVIANCATACA cures such failure within such period following receipt of this notice.

Insolvency . Either Party may terminate or suspend performance of all or any portion of this Service Agreement if the other Party: (A) makes any agreement with creditors due to its inability to make timely payments of its debts; (B) enters into bankruptcy or liquidation, whether compulsory or voluntary; (C) becomes insolvent; or (D) becomes subject to the appointment of a receiver of the whole or material part of its assets. If such termination should occur, the defaulting Party will not be relieved of its obligations hereunder.

Material Breach . Either Party may terminate this Service Agreement upon ninety (90) Days written notice to the other for failure to comply with any material provision of this Service Agreement unless the failure has been cured prior to such ninety (90) Days (except for late payment, as described in Paragraph A.1 above).

 

B. Activity After Termination . In the event the Service Agreement is terminated, the following shall cumulatively apply, in addition to any other right or remedy allowable under this Service Agreement or applicable law:

Payment for Services Performed . In the event of termination of this Service Agreement for any reason, AVIANCATACA will pay CFM for all Services or work performed by or caused to be performed by CFM up to the time of such termination under the applicable terms and prices of this Service Agreement including all costs, fees, and charges incurred by CFM in providing support and material under this Service Agreement, including lease engines.

Reconciliation . In addition to the above, the terms of the reconciliation under the removal of Engines provisions of Article 12 of the Service Agreement will apply.

Work in Process, Redelivery of AVIANCATACA’s Engines . Upon the termination or expiration of this Service Agreement, CFM will complete all work in process in a diligent manner and Redeliver all Engines, parts and related documentation, provided that AVIANCATACA (a) has paid in full all charges for all such Services and material, plus all costs, fees and penalties, incurred by CFM in providing support, including any lease engines, and (b) has returned all lease engines provided under this Service Agreement.

ARTICLE 3 – TAXES

 

A. Taxes, Duties, or Charges . In addition to the price for the Services, AVIANCATACA agrees to pay, upon demand, all taxes (including, without limitation, sales, use, excise, turnover or value added taxes), duties, fees, charges or assessments of any nature (but excluding any income taxes) (hereinafter “ Taxes ”) assessed or levied in connection with performance of this Service Agreement.

 

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B. Reimbursement/Refund . If payment of any such Taxes is made by CFM (or the applicable affiliated company), AVIANCATACA will reimburse CFM (or the applicable affiliated company) upon demand, such reimbursement excluding, inter alia , penalties and interests which could have been levied against CFM (or the applicable affiliated company). AVIANCATACA will use all reasonable efforts to obtain a refund thereof. If all or any part of any such Taxes is refunded to CFM, CFM (or the applicable affiliated company) will repay to AVIANCATACA such part thereof as CFM (or the applicable affiliated company) refunded.

 

C. Withholdings . All payments by AVIANCATACA to CFM (or the applicable affiliated company) under this Service Agreement will be free of all withholdings of any nature whatsoever, except to the extent otherwise required by law, and if any such withholding is so required, AVIANCATACA will pay an additional amount such that after the deduction of all amounts required to be withheld, the net amount received by CFM (or the applicable affiliated company) will equal the amount that CFM (or the applicable affiliated company) would have received if such withholding had not been required. If the aforementioned mechanism contradicts the law of country United States of America, the Parties shall amend this Service Agreement in order to increase the respective prices and amounts provided for by this Service Agreement so that the initial prices and amounts are preserved.

ARTICLE 4 – EXCUSABLE DELAY

 

A. Excusable Delay . Either Party will be excused from, and will not be liable for, any delay in performance or failure to perform hereunder (except for the obligation to pay money or credit or debit an account which will not be excused hereunder), and will not be deemed to be in default for any delay in or failure of performance hereunder due to causes beyond its reasonable control. Such causes will be conclusively deemed to include, but not be limited to acts of God, fire, terrorism, war (declared or undeclared), severe weather conditions, earthquakes, epidemics, material shortages not caused by any CFM act or failure to act, insurrection, acts or omissions of the other Party, any act or omission by any governmental authority, strikes, labor disputes, acts or threats of vandalism or terrorism (including disruption of technology resources), or transportation shortages (each an “ Excusable Delay ”). The time of performance shall be extended for a period equal to the time lost by reason of delay, including time to overcome the effect of the delay, without discriminating against the non-delayed Party.

 

B. Continuing Obligations . Article 4.A will not, however, relieve either Party from using its commercially reasonable efforts to avoid or remove such causes of delay and continue performance with reasonable dispatch when such causes are removed. During the period of an Excusable Delay, CFM will have the right to invoice AVIANCATACA for Services actually performed.

 

C. Extended Delay Termination . If delay resulting from any of the foregoing causes extends for more than six (6) months and the Parties have not agreed upon a revised basis for continuing the Services, including any adjustment of the price, then either Party, upon thirty (30) Days written notice to the other, may terminate the purchase order that covers the delayed Services.

ARTICLE 5 – PATENTS

 

A. Claims . CFM shall defend, indemnify and hold harmless AVIANCATACA and its affiliates, officers, agents and employees against and handle all claims and defend any suit or proceeding brought against AVIANCATACA or its affiliates, officers, agents and employees insofar as based on a claim that, without further combination, any Service provided or to be provided hereunder or any material or process used in the repair of any items furnished under this Service Agreement constitutes an infringement of any patent or copyright of any country.

 

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B. Liability . AVIANCATACA shall promptly notify CFM in writing and give CFM exclusive authority, information and assistance (at CFM’s expense) for the handling, defense or settlement of any claim, suit or proceeding. In case such material or process is held in such claim, suit or proceeding to constitute infringement and the use of said Service or material or process is enjoined, CFM shall, at its own expense either (1) settle or defend such claim or suit or proceeding arising therefrom, or (2) procure for AVIANCATACA the right to continue using said Service or material or process in the item repaired under the Service Agreement, or (3) replace same with an item satisfactory to AVIANCATACA and incorporating non-infringing Service, material or process, or (4) modify same so it becomes satisfactory and non-infringing, or (5) refund the repair price applicable to such material or process with the option to be selected by CFM. CFM shall not be responsible to AVIANCATACA for incidental or consequential damages, including, but not limited to, costs, expenses, liabilities and/or loss of profits resulting from loss of use under this Article 5.

 

C. Indemnification . The preceding Paragraph B shall not apply: (1) to any material or process or part thereof of AVIANCATACA design or specification, or used at AVIANCATACA’s direction in any repair under the Service Agreement, or (2) to the use of any material or process furnished under the Service Agreement in conjunction with any other apparatus, article, material or process. As to any material or process or use described in the preceding sentence, CFM assumes no liability whatsoever for patent or copyright infringement, and AVIANCATACA shall, in the same manner as CFM is obligated to AVIANCATACA above, indemnify, defend and hold CFM harmless from and against any claim or liability, including costs and expense in defending any such claim or liability in respect thereto.

 

D. Remedy . THE FOREGOING SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF AVIANCATACA AND THE SOLE LIABILITY OF CFM FOR PATENT OR COPYRIGHT INFRINGEMENT BY ANY MATERIAL OR PROCESS AND IS SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN ARTICLE 1, “LIMITATION OF LIABILITY AND INDEMNIFICATION.”. THE PATENT WARRANTY OBLIGATIONS RECITED ABOVE ARE IN LIEU OF ALL OTHER PATENT WARRANTIES WHATSOEVER, WHETHER ORAL, WRITTEN, EXPRESSED, IMPLIED OR STATUTORY (INCLUDING ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE), EXCEPT AS ARISING UNDER ANY GENERALTERMS AGREEMENT OR LETTER AGREEMENT BETWEEN THE PARTIES.

ARTICLE 6 – NON DISCLOSURE

 

A. Non-Disclosure . Unless the Parties otherwise agree herein or further in writing, any of the terms of the Service Agreement or any knowledge, information or data which the Parties have or may disclose to each other shall be held in confidence and may not be either disclosed or used for any purpose, except:

 

  1. To the extent required by government agencies and courts for official purposes, disclosure may be made to such agencies and courts. In such event, a suitable restrictive legend limiting further disclosure shall be applied.

 

  2. The existence of the Service Agreement and its general purpose only may be stated to others by either of the Parties without approval from the other.

 

  3. CFM may disclose the same to its parents, affiliates, subsidiaries, joint venture participants, engineering service provider, or consultants as needed to perform the Services provided under this Service Agreement.

The preceding clause will not apply to information which (1) is or becomes part of the general public knowledge or literature otherwise than as a result of breach of any confidentiality obligation, or (2) was, as shown by written records, known to the receiving Party prior to receipt from the disclosing Party.

 

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B. Intellectual Property . Nothing contained in this Service Agreement will convey to either Party the right to use the trademarks of the other, or convey or grant to either Party any license under any patent owned or controlled by the other Party.

 

C, Press Releases . In addition, neither Party will issue any press nor other media release or make any public statement with respect to this Service Agreement without the prior written approval of the other Party, as to the fact and the content of any such media release or public statement.

ARTICLE 7 – GOVERNMENTAL AUTHORIZATION & EXPORT SHIPMENT

AVIANCATACA shall be the importer and/or exporter of record and shall be responsible for the timely application for, obtaining and maintaining any required authorization, such as export license, import license, exchange permit or any other required governmental authorization relating to the Engine, and shall be responsible for complying with all U.S., French and other foreign government licensing and reporting requirements. At AVIANCATACA’s request and expense, CFM will assist AVIANCATACA in its application for any required U.S. or French export licenses. CFM will not be liable if any authorization is not renewed or is delayed, denied, revoked or restricted, and AVIANCATACA will not thereby be relieved of its obligation to pay for Services performed by CFM. All transported Engines will be subject to the U.S. Export Administration Regulations and/or International Traffic in Arms Regulations and (ii) the French export control regulations. AVIANCATACA agrees not to dispose of U.S. or French origin items provided by CFM other than in and to the country of ultimate destination and/or as identified in an approved government license or authorization, except as said laws and regulations may permit.

ARTICLE 8 – WAIVER OF IMMUNITY

To the extent that AVIANCATACA or any of its property is or becomes entitled at any time to any immunity on the grounds of sovereignty or otherwise from any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any competent court, from service of process, from attachment prior to judgment, from attachment in aid of execution, or from execution prior to judgment, or other legal process in any jurisdiction, AVIANCATACA hereby irrevocably waives the application of such immunity and particularly, the U.S. Foreign Sovereign Immunities Act, 28 U.S.C. 1602, et. seq., and agrees not to plead or claim, any such immunity with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Service Agreement or the subject matter hereof. Such agreement shall be irrevocable and not subject to withdrawal in any and all jurisdictions.

ARTICLE 9 – NOTICES

 

A. Acknowledgement . Any notices under this Service Agreement shall be in writing and be delivered or sent by mail, express/shipping service or electronic transmission to the respective Parties at the following addresses, which may be changed by written notice:

TO:

 

AVIANCATACA Holding S.A.       CFM INTERNATIONAL Inc.
   Av Calle 26 No. 59-15, Piso 10       6440 Aviation Way
   Bogotá, Colombia       West Chester, Ohio 45069 USA
Attn :    Secretary       Attn. : CFM Services General Manager
   Facsimile Number: (57)1423-5500 ext 2522      
   Telephone Number: (57)15877700 ext 2522      
and         
  

Centro Administrativo, Avenida El Dorado,

Bogota, Colombia

     

6440 Aviation Way,

West Chester, Ohio 45069 USA

Attn.  :    Engineering Director and Power Plan Manager       Att. : CFM Services General Manager

 

CFM AND AVIANCATACA PROPRIETARY INFORMATION – SUBJECT TO RESTRICTIONS ON THE FIRST PAGE

 

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B. Effect of Notices . Notices will be effective and will be deemed to have been given to (or “received by”) the recipient: (A) upon delivery, if sent by courier, express mail, or delivered personally; (B) on the next business day following receipt, if sent by facsimile with a receipt of confirmation; or (C) on the fifth (5th) business day after posting (or on actual receipt, if earlier) in the case of a letter sent prepaid first class mail. Whenever the words “notice” or “notify” or similar words are used herein, they mean the provision of formal notice as described in this Article 9. Whenever words such as “advise”. “inform” or similar words are used, they mean the use of informal information provided to lower-level operating managers.

ARTICLE 10 – LIENS

 

A. Other Liens . AVIANCATACA: (i) acknowledges that CFM has the legal right to assert mechanic’s liens or other statutory or common law liens under applicable law (foreign or domestic) against Engines following performance of Services under this Service Agreement, and (ii) agrees to supply such information, including name and address of the owner of each Engine, as reasonably requested by CFM to facilitate filing of such liens in New York or any other jurisdiction where Services may be performed. CFM may, at its option, notify the owners of the existence of this Service Agreement and CFM’s lien rights arising from performance of Services.

 

B. Enforcement . If AVIANCATACA fails to tender any payment owing under this Service Agreement and CFM initiates foreclosure with respect to any Engine pursuant to a mechanic’s lien, then AVIANCATACA agrees to supply to CFM all records, log books and other documentation pertaining to the maintenance condition of the Engine reasonably available to it, and a certificate either (i) certifying that the Engine has not been involved in any Aircraft Accident or Incident or (ii) specifying the date and facts surrounding any Accident or Incident in which the Engine has been involved and the nature and extent of the damage sustained (such records, log books, certificate and other documentation referred to hereinafter as the “ Engine Documents ”). The Parties recognize that the failure by AVIANCATACA to deliver the Engine Documents may have a material, adverse effect on the value of any Engine with respect to which foreclosure has been initiated by CFM and the ability of CFM to sell or lease the Engine, and that the damages CFM may sustain as a result are not readily calculable.

ARTICLE 11 – APPLICABLE LAW – DISPUTE RESOLUTION

 

A. Applicable Law . This Service Agreement shall be construed, interpreted and applied, and the legal relations between the Parties determined, in accordance with the laws of the State of New York (U.S.A.). The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Service Agreement

 

B.

Dispute Resolution . If any dispute arises relating to this Service Agreement, the Parties will endeavor to resolve the dispute amicably, including by designating senior managers who will meet and use commercially reasonable efforts to resolve any such dispute. If the Parties’ senior managers do not resolve the dispute within sixty (60) days of first written request, either Party may request that the dispute be settled and fully and finally determined by binding arbitration, in accordance with the International Chamber of Commerce pursuant to its rules of Conciliation and Arbitration, by one or more arbitrators appointed in accordance with said rules. The place of arbitration and hearings shall be Miami, Florida, USA. The arbitration shall be in English and the opinion shall be rendered in English. The arbitration award shall be final and binding by any Party in any court of competent

 

CFM AND AVIANCATACA PROPRIETARY INFORMATION – SUBJECT TO RESTRICTIONS ON THE FIRST PAGE

 

24


  jurisdiction, and shall waive any claim appeal whatsoever against it. The arbitrators will have no authority to award punitive damages or any other damages not measured by the prevailing Party’s actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the Service Agreement. All statements made or materials produced in connection with this dispute resolution process and arbitration are confidential and will not be disclosed to any third party except as required by law or subpoena. The Parties intend that the dispute resolution process set forth in this Article 11 will be their exclusive remedy for any dispute arising under or relating to this Service Agreement or its subject matter.

 

C. Exception . Either Party may at any time, without inconsistency with this Article, seek from a court of competent jurisdiction any equitable, interim or provisional relief to avoid irreparable damage. This Article will not apply to and will not bar litigation regarding claims related to a Party’s proprietary or intellectual property rights, nor will this Article be construed to modify or displace the ability of the Parties to effectuate any termination contemplated in Article 2.

ARTICLE 12 – MISCELLANEOUS

 

A. Assignment of Agreement . This Service Agreement, any related purchase order or any rights or obligations hereunder may not be assigned, in whole or in part, without the prior written consent of the other Party, except that AVIANCATACA’s consent will not be required for an assignment by CFM to one of CFM’s parent companies. In the event of any such assignment, AVIANCATACA will be so advised in writing. Any assignment in contradiction of this clause will be considered null and void.

 

B. Beneficiaries . Except as otherwise expressly provided to the contrary, the rights herein granted and this Service Agreement are for the benefit of the Parties hereto and are not for the benefit of any third person, firm or corporation, except as expressly provided herein with respect to GE and Snecma.

 

C. Survival Of Certain Clauses . The rights and obligations of the Parties under the following Articles of this Service Agreement as amended and related Exhibits shall survive the expiration, termination or completion of this Service Agreement:

 

   

Warranty and Limitation of Liability

 

   

Limitation of Liability and Indemnification

 

   

Taxes

 

   

Patents

 

   

Non Disclosure

 

   

Governmental Authorization & Export Shipment

 

   

Waiver of Immunity

 

   

Applicable Law – Dispute Resolution

 

   

Miscellaneous

 

D. General Rules of Contract Interpretation . Article and paragraph headings contained in this Service Agreement are inserted for convenience of reference only and do not limit, affect or restrict in any way the meaning and the interpretation of this Service Agreement. Words used in the singular shall have a comparable meaning when used in the plural and vice versa, unless the contrary intention appears. Words such as “hereunder”, “hereof” and “herein” and other words beginning with “here” refer to the whole of this Service Agreement, including amendments. References to Articles, Sections, Paragraphs or Exhibits will refer to the specified Article, Section, Paragraph or Exhibit of this Service Agreement unless otherwise specified.

 

E. Language . The English language will be used in the interpretation and performance of this Service Agreement. All correspondence and documentation arising out of or connected with this Service Agreement and any related purchase order(s), including Engine records and Engine logs, will be in the English language.

 

CFM AND AVIANCATACA PROPRIETARY INFORMATION – SUBJECT TO RESTRICTIONS ON THE FIRST PAGE

 

25


F. Severability . The invalidity or unenforceability of any part or provision of this Service Agreement, or the invalidity of its application to a specific situation or circumstance, shall not affect the validity legality and enforceability of the remainder of this Service Agreement, or its application to other situations or circumstances. In addition, if a part of this Service Agreement becomes invalid, the Parties will endeavor in good faith to reach agreement on a replacement provision that will reflect, as nearly as possible, the intent of the original provision.

 

G. Non-Waiver. Any failure or delay in the exercise of rights or remedies hereunder will not operate to waive or impair such rights or remedies. Any waiver given will not be construed to require future or further waivers.

 

H. Currency Judgment . This is an international transaction in which the specification of United States Dollars is of the essence. No payments required to be made under this Service Agreement will be discharged by payments in any currency other than United States Dollars, whether pursuant to a judgment, arbitration award or otherwise.

 

I. No Agency Fees . Each Party represents and warrants to the other that no officer, employee, representative or agent of it has been or will be paid a fee or otherwise has received or will receive any personal compensation or consideration by or from the other Party in connection with the obtaining, arranging or negotiation of this Service Agreement or other documents entered into or executed in connection herewith.

 

J. No Agency . Nothing in this Service Agreement will be interpreted or construed to create a partnership, agency or joint venture between CFM and AVIANCATACA.

 

K. Titles/Subtitles . The titles and subtitles given to the sections of the Service Agreement are for convenience. They do not limit or restrict the context of the article or section to which they relate.

 

L. Entire Agreement ; Modification . This Service Agreement, together with its Exhibits and any amendment (or Letter Agreement relating hereto, if any), contains and constitutes the entire understanding and agreement between the Parties respecting the subject matter hereof, and supersedes and cancels all previous negotiations, pre-existing agreements, commitments and writing in connection herewith. This Service Agreement may not be released, discharged, abandoned, supplemented, modified or waived, in whole or in part, in any manner, orally or otherwise, except by a writing of concurrent or subsequent date signed and delivered by a duly authorized officer or representative of each of the Parties hereto making specific reference to this Service Agreement and the provisions hereof being released, discharged, abandoned, supplemented, modified or waived.

 

M. Counterparts . This Service Agreement may be executed in one or more counterparts, all of which counterparts will be treated as the same binding agreement, which will be effective as of the date set forth on the first page hereof, upon execution by both Parties and delivery by each Party hereto to the other Party of one or more such counterparts. Delivery of an executed counterpart of a signature page to this Service Agreement by telecopy or electronic mail shall be as effective as delivery of a manually executed counterpart.

*[Three pages have been removed pursuant to a request for confidential treatment].

 

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26

Exhibit 10.19.1

IAE PROPRIETARY INFORMATION

 

LOGO

400 Main Street

East Hartford, CT 06108 USA

December 17, 2010

Atlantic Aircraft Holding Ltd.

Bolam House

King & George Streets

P. O. Box CB 13.253

Nassau, Bahamas

 

Subject: Amendment No. 1 to the Amended and Restated V2500 General Terms of Sale between IAE International Aero Engines AG and Atlantic Aircraft Holding Ltd. dated December 18, 2008

Gentlemen:

We refer to the Amended and Restated V2500 General Terms of Sale dated December 18, 2008 between IAE International Aero Engines AG (“IAE”) and Atlantic Aircraft Holding Ltd. (“AAH”), such contract, as amended or supplemented from time to time, being hereinafter referred to as the “Contract.” Unless expressly stated to the contrary, and to the extent possible, terms used in this Amendment No. 1 shall have the same meaning given to them in the Contract.

WHEREAS, the Parties agree to amend the Contract by revising the delivery schedules for Firm Aircraft and Firm Spare Engines and by adding a new escalation formula applicable to Firm Aircraft deliveries after the date of this Amendment No. 1.

NOW, THEREFORE, the Parties hereto hereby agree to amend the Contract as follows:

 

1. Exhibit B-1 shall be deleted in its entirety and replaced with the Exhibit B-1 attached as Appendix A hereto.

 

2. Exhibit B-2 shall be deleted in its entirety and replaced with the Exhibit B-2 attached as Appendix B hereto.

 

3. The attached Appendix C hereto shall be added to the Contract as Exhibit B-4.

Except as expressly amended by this Amendment No. 1, all provisions of the Contract remain in full force and effect without modification.

 

Agreed to and accepted on behalf of       Agreed to and accepted on behalf of
IAE International Aero Engines AG       Atlantic Aircraft Holding Ltd.

 

Name

     

 

Name

 

Title

     

 

Title

 

Date

     

 

Date

 

Page 1 of 6


IAE PROPRIETARY INFORMATION

 

Appendix A

EXHIBIT B-1 (Revised and Updated)

Aircraft Delivery Schedule (as of December 2010)

Glossary Notes:

 

   

Delivered Aircraft are indicated by italics typeface

 

Firm Aircraft

   Delivery Date   Aircraft Type   Applicable Escalation

Aircraft 1

   [*]   [*]   Exhibit B-3

Aircraft 2

   [*]   [*]   Exhibit B-3

Aircraft 3

   [*]   [*]   Exhibit B-3

Aircraft 4

   [*]   [*]   Exhibit B-3

Aircraft 5

   [*]   [*]   Exhibit B-3

Aircraft 6

   [*]   [*]   Exhibit B-3

Aircraft 7

   [*]   [*]   Exhibit B-3

Aircraft 8

   [*]   [*]   Exhibit B-3

Aircraft 9

   [*]   [*]   Exhibit B-3

Aircraft 10

   [*]   [*]   Exhibit B-3

Aircraft 11

   [*]   [*]   Exhibit B-3

Aircraft 12

   [*]   [*]   Exhibit B-3

Aircraft 13

   [*]   [*]   Exhibit B-3

Aircraft 14

   [*]   [*]   Exhibit B-3

Aircraft 15

   [*]   [*]   Exhibit B-3

Aircraft 16

   [*]   [*]   Exhibit B-3

Aircraft 17

   [*]   [*]   Exhibit B-3

Aircraft 18

   [*]   [*]   Exhibit B-3

Aircraft 19

   [*]   [*]   Exhibit B-3

Aircraft 20

   [*]   [*]   Exhibit B-3

Aircraft 21

   [*]   [*]   Exhibit B-3

Aircraft 22

   [*]   [*]   Exhibit B-3

Aircraft 23

   [*]   [*]   Exhibit B-3

Aircraft 24

   [*]   [*]   Exhibit B-3

Aircraft 25

   [*]   [*]   Exhibit B-3

Aircraft 26

   [*]   [*]   Exhibit B-3

Aircraft 27

   [*]   [*]   Exhibit B-3

Aircraft 28

   [*]   [*]   Exhibit B-3

Aircraft 29

   [*]   [*]   Exhibit B-3

Aircraft 30

   [*]   [*]   Exhibit B-3

Aircraft 31

   [*]   [*]   Exhibit B-3

Aircraft 32

   [*]   [*]   Exhibit B-3

Aircraft 33

   [*]   [*]   Exhibit B-3

Aircraft 34

   [*]   [*]   Exhibit B-3

 

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IAE PROPRIETARY INFORMATION

 

Aircraft 35

     [ *]    [*]   Exhibit B-3

Aircraft 36

     [ *]    [*]   Exhibit B-3

Aircraft 37

     [ *]    [*]   Exhibit B-3

Aircraft 38

     [ *]    [*]   Exhibit B-3

Aircraft 39

     [ *]    [*]   Exhibit B-3

Aircraft 40

     [ *]    [*]   Exhibit B-3

Aircraft 41

     [ *]    [*]   Exhibit B-3

Aircraft 42

     [ *]    [*]   Exhibit B-3

Aircraft 43

     [ *]    [*]   Exhibit B-3

Aircraft 44

     [ *]    [*]   Exhibit B-3

Aircraft 45

     [ *]    [*]   Exhibit B-3

Aircraft 46

     [ *]    [*]   Exhibit B-3

Aircraft 47

     [ *]    [*]   Exhibit B-3

Aircraft 48

     [ *]    [*]   Exhibit B-3

Aircraft 49

     [ *]    [*]   Exhibit B-3

Aircraft 50

     [ *]    [*]   Exhibit B-3

Aircraft 51

     [ *]    [*]   Exhibit B-3

Aircraft 52

     [ *]    [*]   Exhibit B-3

Aircraft 53

     [ *]    [*]   Exhibit B-4

Aircraft 54

     [ *]    [*]   Exhibit B-4

Aircraft 55

     [ *]    [*]   Exhibit B-4

Aircraft 56

     [ *]    [*]   Exhibit B-4

Aircraft 57

     [ *]    [*]   Exhibit B-4

Aircraft 58

     [ *]    [*]   Exhibit B-4

Aircraft 59

     [ *]    [*]   Exhibit B-4

Aircraft 60

     [ *]    [*]   Exhibit B-4

Aircraft 61

     [ *]    [*]   Exhibit B-4

Aircraft 62

     [ *]    [*]   Exhibit B-4

Aircraft 63

     [ *]    [*]   Exhibit B-4

Aircraft 64

     [ *]    [*]   Exhibit B-4

Aircraft 65

     [ *]    [*]   Exhibit B-4

Aircraft 66

     [ *]    [*]   Exhibit B-4

Aircraft 67

     [ *]    [*]   Exhibit B-4

 

* AAH has represented to IAE that the re-scheduled delivery dates for these Firm Aircraft positions have not yet been agreed between AAH and the Aircraft Manufacturer. In any event, AAH agrees to provide IAE notice of the re-scheduled delivery dates for these Firm Aircraft at least [*] prior to the re-scheduled delivery date and in all events AAH must take delivery of these Firm Aircraft on or before [*].

 

Page 3 of 6


IAE PROPRIETARY INFORMATION

 

Appendix B

EXHIBIT B-2 (Revised and Updated)

Firm Spare Engine Delivery Schedule (as of December 2010)

[*]

 

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IAE PROPRIETARY INFORMATION

 

Appendix C

EXHIBIT B-4

IAE ESCALATION FORMULA

 

1. Any unit base price or other sum expressed to be subject to escalation from the Base Month (as defined below) to month of delivery or other date of determination in accordance with the IAE Escalation Formula will be subject to escalation in accordance with the following formula:

 

  Pi =     [*] where:

 

  Pi =     the invoiced purchase price or escalated sum rounded to the nearest U.S. Dollar

 

  Pb =     unit base price or other sum

 

  F =     [*]), rounded to the nearest U.S. Dollar

 

  N =     The calendar year of scheduled engine delivery or other date of determination, minus the base year

 

  CPI =     [*]

 

  L =     Labor Ratio defined below

 

  M =     Material Ratio defined below

“Base Month” shall mean the base month specified for engine prices and related credits in the Contract.

The IAE Composite Price Index is the sum of 65 percent of the Labor Ratio and 35 percent of the Material Ratio, with the sum rounded to the nearest ten thousandth. The quarterly value published for the Employment Cost Index will be deemed to apply to each month of the quarter.

The Labor Ratio is the “Employment Cost Index (ECI) Wages and Salaries for Aircraft Manufacturing (NAICS Code 336411), CIU2023211000000I” as published quarterly by the Bureau of Labor Statistics, U.S. Department of Labor for the arithmetic average of the fifth, sixth and seventh months (rounded to the nearest tenth) preceding the month of scheduled delivery for each engine/equipment; divided by the value of “Employment Cost Index (ECI) Wages and Salaries for Aircraft Manufacturing (NAICS Code 336411), CIU2023211000000I” for the arithmetic average of the fifth, sixth and seventh months (rounded to the nearest tenth) preceding the Base Month. To be clear the quarterly value of CIU2023211000000I will apply to each month of a given quarter.

The Material Ratio is the “Producer Price Index, Industrial Commodities, WPU03thru15”, as published monthly by the Bureau of Labor Statistics, U.S. Department of Labor, for the arithmetic average of the fifth, sixth and seventh months (rounded to the nearest tenth) preceding the month of scheduled delivery for each engine/equipment; divided by the value for Industrial Commodities for the arithmetic average of the fifth, sixth and seventh months (rounded to the nearest tenth) preceding the Base Month.

The value of the factors 0.65(L) and 0.35(M) shall be determined to the nearest fourth decimal place. Thus if the fifth decimal place is five or more, the fourth decimal place shall be raised to the next higher number.

For a given month, the escalation shall be computed by using the applicable Index value, which the Bureau has published as the time of delivery or other date of determination.

 

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IAE PROPRIETARY INFORMATION

 

2. If the U.S. Department of Labor changes the base year for determination of the Index values as defined above, such rebased values will be incorporated in the escalation calculation.

 

3. If the U.S. Department of Labor ceases to publish or replaces an index or revises the methodology used for the determination of the index values to be used to determine the CPI or, for any reason, has not released values needed to determine the CPI, IAE, in its sole discretion, shall select a substitute for such index or values from data published by the Bureau of Labor Statistics or otherwise make revisions to the escalation formula such that the escalation will as closely as possible approximate the result that would have been attained by continuing the use of the original escalation formula and index values as they may have fluctuated during the applicable time period.

 

4. The invoiced purchase price or final escalated sum, which in no event shall be less than the unit base price, shall be the final price or escalated sum.

 

Page 6 of 6