Attached files
Exhibit 10.22(bb)
Supplemental
Agreement No. 53
to
Purchase
Agreement No. 1951
Between
The
Boeing Company
and
Continental
Airlines, Inc.
Relating
to Boeing Model 737 Aircraft
THIS
SUPPLEMENTAL AGREEMENT, is entered into as of December
23, 2009 by and between THE BOEING COMPANY (Boeing) and CONTINENTAL AIRLINES,
INC. (Buyer);
WHEREAS,
the parties agree to [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
WHEREAS,
Customer wishes to exercise its [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
Whereas,
Customer previously agreed to [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
Whereas,
in consideration of [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT], Customer agrees to allow Boeing to
use certain aircraft for flight testing as provided under letter Agreement
6-1162-RCN-1890;
Supplemental
Agreement No. 53 to
Purchase
Agreement No. 1951
NOW
THEREFORE, in consideration of the mutual covenants herein contained, the
parties agree to amend the Agreement as follows:
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1.
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Table of Contents,
Articles, Tables, Exhibits, and Letter
Agreements:
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1.1 Remove
and replace, in its entirety, the “Table of Contents”, with the “Table of
Contents” attached hereto, to reflect the changes made by this Supplemental
Agreement No. 53.
1.2 Remove
and replace, in their entirety, pages T-2-2 and T-2-3 of Table 1 entitled the
“Aircraft Deliveries and Descriptions, Model 737-700 Aircraft”, with the revised
pages T-2-2 and T-2-3 of Table 1 attached hereto.
1.3 Remove
and replace, in their entirety, pages T-6-1 and T-6-2 of Table 1 entitled the
“Aircraft Deliveries and Descriptions, Model 737-900ER Aircraft”, with the
revised pages T-6-1 and T-6-2 of Table 1 attached hereto, and add page
T-6-3.
1.4 Remove
and replace the cover page to Exhibit A-6.1 and insert new Exhibit A-6.2 after
Exhibit A-6.1.
1.5
Letter Agreement no. 6-1162-RCN-1888 entitled Use of Aircraft – Boeing
747-800 and 787 Flight Test Training, is hereby incorporated into the
Purchase Agreement.
1.6
Letter Agreement no. 6-1162-RCN-1890 entitled Use of Aircraft for
Testing, is hereby incorporated into the Purchase Agreement.
2. Option
Aircraft Deposit Refund
In consideration of Customer’s
Agreement to allow Boeing to use certain Aircraft for testing under Letter
Agreement No. 6-1162-RCN-1890, Boeing hereby agrees to [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
Supplemental
Agreement No. 53 to
Purchase
Agreement No. 1951
The
Agreement will be deemed to be supplemented to the extent herein provided as of
the date hereof and as so supplemented will continue in full force and
effect.
EXECUTED
IN DUPLICATE as of the day and year first written above.
THE
BOEING
COMPANY CONTINENTAL
AIRLINES, INC.
By:/s/ Susan
Englander By:
/s/
Jacques Lapointe
Its:
Attorney-in-Fact Its: Senior Vice President –
Procurement
TABLE OF
CONTENTS
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Page
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SA
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ARTICLES
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Number
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Number
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1.
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Subject
Matter of Sale
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1-1
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SA
39
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2.
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Delivery,
Title and Risk of Loss
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2-1
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3.
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Price
of Aircraft
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3-1
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SA
39
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4.
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Taxes
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4-1
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5.
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Payment
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5-1
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6.
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Excusable
Delay
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6-1
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7.
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Changes
to the Detail Specification
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7-1
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SA
39
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8.
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Federal
Aviation Requirements and
Certificates
and Export License
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8-1
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SA
39
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9.
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Representatives,
Inspection,
Flights
and Test Data
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9-1
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10.
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Assignment,
Resale or Lease
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10-1
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11.
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Termination
for Certain Events
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11-1
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12.
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Product
Assurance, Disclaimer and
Release;
Exclusion of Liabilities;
Customer
Support; Indemnification
and
Insurance
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12-1
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13.
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Buyer
Furnished Equipment and
Spare
Parts
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13-1
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14.
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Contractual
Notices and Requests
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14-1
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SA
39
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15.
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Miscellaneous
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15-1
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TABLE
OF CONTENTS
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Page
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SA
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TABLES
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Number
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Number
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1.
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Aircraft
Deliveries and
Descriptions
– 737-500
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T-1
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SA
3
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Aircraft
Deliveries and
Descriptions
– 737-700
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T-2
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SA
53
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Aircraft
Deliveries and
Descriptions
– 737-800
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T-3
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SA
52
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Aircraft
Deliveries and
Descriptions
– 737-600
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T-4
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SA
4
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Aircraft
Deliveries and
Descriptions
– 737-900
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T-5
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SA
39
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Aircraft
Deliveries and
Descriptions
– 737-900ER
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T-6
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SA
53
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EXHIBITS
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|||
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A-1
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Aircraft
Configuration – Model 737-724
(Aircraft
delivering through July 2004)
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SA
26
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A-1.1
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Aircraft
Configuration – Model 737-724
(Aircraft
delivering on or after August 2004)
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SA
46
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A-2
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Aircraft
Configuration – Model 737-824
(Aircraft
delivering through July 2004)
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SA
26
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A-2.1
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Aircraft
Configuration – Model 737-824
(Aircraft
delivering August 2004 through
December
2007)
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SA
41
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A-2.2
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Aircraft
Configuration – Model 737-824
(Aircraft
delivering January 2008 through
July
2008)
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SA
45
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A-2.3
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Aircraft
Configuration – Model 737-824
(Aircraft
scheduled to deliver between August 2008 and October 2010)
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SA
50
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A-2.4
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Aircraft
Configuration – Model 737-824
(Aircraft
scheduled to deliver in or after November 2010)
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SA
50
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A-3
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Aircraft
Configuration – Model 737-624
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SA
1
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A-4
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Aircraft
Configuration – Model 737-524
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SA
3
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A-5
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Aircraft
Configuration – Model 737-924
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
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SA
26
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A-6
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Aircraft
Configuration – Model 737-924ER
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
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SA
45
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A-6.1
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Aircraft
Configuration – Model 737-924ER
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
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SA
53
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A-6.2
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Aircraft
Configuration – Model 737-924ER
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
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SA
53
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B
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Product
Assurance Document
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SA
1
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C
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Customer
Support Document – Code Two –
Major
Model Differences
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SA
1
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C1
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Customer
Support Document – Code Three –
Minor
Model Differences
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SA
39
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D
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Aircraft
Price Adjustments – New Generation
Aircraft
(1995 Base Price - [CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA
1
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D1
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Airframe
and Engine Price Adjustments –
Current
Generation Aircraft
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SA
1
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D2
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Aircraft
Price Adjustments – New Generation
Aircraft
(1997 Base Price - [CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT]
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SA
5
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D3
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Aircraft
Price Adjustments - New
Generation
Aircraft (July 2003 Base Price –
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
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SA
41
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D4
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Escalation
Adjustment – Airframe and
Optional
Features [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
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SA
41
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E
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Buyer
Furnished Equipment Provisions Document
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SA
39
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F
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Defined
Terms Document
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SA
5
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TABLE
OF CONTENTS
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SA
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LETTER AGREEMENTS
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Number
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|||
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1951-1
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Not
Used
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|||
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1951-2R4
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Seller
Purchased Equipment
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SA
39
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1951-3R22
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Option
Aircraft-Model 737-824 Aircraft
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SA
38
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1951-4R1
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Waiver
of Aircraft Demonstration
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SA
1
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1951-5R3
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Promotional
Support – New Generation
Aircraft
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SA
48
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1951-6
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Configuration
Matters
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|||
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1951-7R1
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Spares
Initial Provisioning
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SA
1
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1951-8R2
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Escalation
Sharing – New Generation Aircraft
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SA
4
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1951-9R21
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Option
Aircraft-Model 737-724 Aircraft
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SA
48
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1951-11R1
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Escalation
Sharing-Current Generation
Aircraft
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SA
4
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1951-12R7
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Option
Aircraft – Model 737-924 Aircraft
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SA
32
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1951-13
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Configuration
Matters – Model 737-924
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SA
5
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1951-14
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Installation
of Cabin Systems Equipment
737-924
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SA
22
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1951-15
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Configuration
Matters – Model 737-924ER
|
SA
39
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TABLE OF
CONTENTS
|
SA
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||||
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RESTRICTED LETTER
AGREEMENTS
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Number
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|||
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6-1162-MMF-295
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Performance
Guarantees – Model
737-724
Aircraft
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|||
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6-1162-MMF-296
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Performance
Guarantees – Model
737-824
Aircraft
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|||
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6-1162-MMF-308R4
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Disclosure
of Confidential
Information
|
SA
39
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||
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6-1162-MMF-309R1
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[CONFIDENTIAL
MATERIAL OMITTED AND
FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
|
SA
1
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||
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6-1162-MMF-311R6
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[CONFIDENTIAL
MATERIAL OMITTED AND
FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
|
SA
46
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||
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6-1162-MMF-312R1
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Special
Purchase Agreement Provisions
|
SA
1
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||
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6-1162-MMF-319
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Special
Provisions Relating to the
Rescheduled
Aircraft
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|||
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6-1162-MMF-378R1
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Performance
Guarantees – Model
737-524
Aircraft
|
SA
3
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||
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6-1162-GOC-015R1
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[CONFIDENTIAL
MATERIAL OMITTED AND
FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT]
|
SA
31
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||
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6-1162-GOC-131R10
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Special
Matters
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SA
46
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||
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6-1162-DMH-365
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Performance
Guarantees – Model
737-924
Aircraft
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SA
5
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||
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6-1162-DMH-624
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[CONFIDENTIAL
MATERIAL OMITTED AND
FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
|
SA
8
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||
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6-1162-DMH-680
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Delivery
Delay Resolution Program
|
SA
9
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||
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6-1162-DMH-1020
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[CONFIDENTIAL
MATERIAL OMITTED AND
FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
|
SA
14
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||
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6-1162-DMH-1035
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[CONFIDENTIAL
MATERIAL OMITTED AND
FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
|
SA
15
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||
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6-1162-DMH-1054
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[CONFIDENTIAL
MATERIAL OMITTED AND
FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
|
SA
16
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||
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6-1162-CHL-048
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Rescheduled
Aircraft Agreement
|
SA
26
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||
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6-1162-CHL-195
|
Restructure
Agreement for Model
737NG
and 757-300 Aircraft
|
SA
30
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||
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6-1162-MSA-768
|
Performance
Guarantees – Model
737-924ER
Aircraft
|
SA
39
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||
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6-1162-SEE-133
|
[CONFIDENTIAL
MATERIAL OMITTED AND
FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
|
SA
46
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||
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6-1162-SEE-0176R4
|
Record
Option Proposals
|
SA
48
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||
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6-1162-SEE-0187
|
Passenger
Service Unit Resolution
|
SA
50
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||
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6-1162-SEE-0225R1
|
Use
of Aircraft – Carbon Brakes [CONFIDENTIAL MATERIAL OMITTED
AND
FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT] Testing
|
SA
50
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||
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6-1162-SEE-0263
|
Use
of Aircraft – 737NG
Performance
Improvement Package Testing
|
SA
50
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||
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6-1162-RCN-1888
|
Use
of Aircraft – Boeing 747-800 and 787 Flight Test Training
|
SA
53
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||
|
6-1162-RCN-1890
|
Use
of Aircraft for Testing
|
SA
53
|
||
TABLE OF
CONTENTS
|
SUPPLEMENTAL AGREEMENTS
|
DATED AS OF:
|
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Supplemental
Agreement No. 1
|
October
10, 1996
|
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Supplemental
Agreement No. 2
|
March
5, 1997
|
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Supplemental
Agreement No. 3
|
July
17, 1997
|
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Supplemental
Agreement No. 4
|
October
10, 1997
|
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Supplemental
Agreement No. 5
|
May
21, 1998
|
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Supplemental
Agreement No. 6
|
July
30, 1998
|
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Supplemental
Agreement No. 7
|
November
12, 1998
|
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Supplemental
Agreement No. 8
|
December
7, 1998
|
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Supplemental
Agreement No. 9
|
February
18, 1999
|
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Supplemental
Agreement No. 10
|
March
19, 1999
|
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Supplemental
Agreement No. 11
|
May
14, 1999
|
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Supplemental
Agreement No. 12
|
July
2, 1999
|
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Supplemental
Agreement No. 13
|
October
13, 1999
|
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Supplemental
Agreement No. 14
|
December
13, 1999
|
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Supplemental
Agreement No. 15
|
January
13, 2000
|
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Supplemental
Agreement No. 16
|
March
17, 2000
|
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Supplemental
Agreement No. 17
|
May
16, 2000
|
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Supplemental
Agreement No. 18
|
September
11, 2000
|
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Supplemental
Agreement No. 19
|
October
31, 2000
|
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Supplemental
Agreement No. 20
|
December
21, 2000
|
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Supplemental
Agreement No. 21
|
March
30, 2001
|
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Supplemental
Agreement No. 22
|
May
23, 2001
|
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Supplemental
Agreement No. 23
|
June
29, 2001
|
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Supplemental
Agreement No. 24
|
August
31, 2001
|
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Supplemental
Agreement No. 25
|
December
31, 2001
|
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Supplemental
Agreement No. 26
|
March
29, 2002
|
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Supplemental
Agreement No. 27
|
November
6, 2002
|
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Supplemental
Agreement No. 28
|
April
1, 2003
|
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Supplemental
Agreement No. 29
|
August
19, 2003
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Supplemental
Agreement No. 30
|
November
4, 2003
|
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Supplemental
Agreement No. 31
|
August
20, 2004
|
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Supplemental
Agreement No. 32
|
December
29, 2004
|
|
Supplemental
Agreement No. 33
|
December
29, 2004
|
|
Supplemental
Agreement No. 34
|
June
22, 2005
|
|
Supplemental
Agreement No. 35
|
June
30, 2005
|
|
Supplemental
Agreement No. 36
|
July
21, 2005
|
|
Supplemental
Agreement No. 37
|
March
30, 2006
|
|
Supplemental
Agreement No. 38
|
June
6, 2006
|
|
Supplemental
Agreement No. 39
|
August
3, 2006
|
|
Supplemental
Agreement No. 40
|
December
5, 2006
|
|
Supplemental
Agreement No. 41
|
June
1, 2007
|
|
Supplemental
Agreement No. 42
|
June
13, 2007
|
|
Supplemental
Agreement No. 43
|
July
18, 2007
|
|
Supplemental
Agreement No. 44
|
December
7, 2007
|
|
Supplemental
Agreement No. 45
|
February
20, 2008
|
|
Supplemental
Agreement No. 46
|
June
25, 2008
|
|
Supplemental
Agreement No. 47
|
October
30, 2008
|
|
Supplemental
Agreement No. 48
|
January
29, 2009
|
|
Supplemental
Agreement No. 49
|
May
1, 2009
|
|
Supplemental
Agreement No. 50
|
July
23, 2009
|
|
Supplemental
Agreement No. 51
|
August
5, 2009
|
|
Supplemental
Agreement No. 52
|
August
31, 2009
|
|
Supplemental
Agreement No. 53
|
December
23, 2009
|
Table
1 to Purchase Agreement 1951
Aircraft
Deliveries and Descriptions
Model
737-700 Aircraft
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Page
T-2-2
Boeing
Proprietary SA53
Table
1 to Purchase Agreement 1951
Aircraft
Deliveries and Descriptions
Model
737-700 Aircraft
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Page
T-2-3
Boeing
Proprietary SA53
Table
1 to Purchase Agreement 1951
Aircraft
Deliveries and Descriptions
Model
737-900ER Aircraft
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Page
T-6-1
Boeing
Proprietary SA53
Table
1 to Purchase Agreement 1951
Aircraft
Deliveries and Descriptions
Model
737-900ER Aircraft
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Page
T-6-2
Boeing
Proprietary SA53
Table
1 to Purchase Agreement 1951
Aircraft
Deliveries and Descriptions
Model
737-900ER Aircraft
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Page
T-6-3
Boeing
Proprietary SA53
AIRCRAFT
CONFIGURATION
between
THE
BOEING COMPANY
and
CONTINENTAL
AIRLINES, INC.
Exhibit
A-6.2 to Purchase Agreement Number 1951
(737-924ER
Aircraft
delivering
during or after January 2011)
PA
1951 A-6.2-1 SA
53
5a—1951
SA53 -900ER Exhibit
A-6-2.xls BOEING
PROPRIETARY
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
December
23, 2009
6-1162-RCN-1888
Continental
Airlines, Inc.
1600
Smith Street
Houston,
TX 77002
|
Attention:
|
Mr.
Ron Baur
|
|
Subject:
|
Use
of Aircraft – Boeing 747-800 and 787 Flight Test
Training
|
|
Reference:
|
(a)
Purchase Agreement No. 1951 (the Purchase Agreement) between The Boeing
Company (Boeing) and Continental Airlines, Inc. (Customer) relating to
Model 737 Aircraft
|
(b)
Letter No. 6-1162-SEE-0225R1, dated July 23, 2009; Subject: Use of Aircraft –
Carbon Brakes [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
Testing
All terms
used but not defined in this Letter Agreement have the same meaning as in the
Purchase Agreement.
In the
reference (b) Letter, Boeing and Customer agreed that one (1) Model 737-900ER
Aircraft, with serial number [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT], will be used by Boeing for the
purpose of testing carbon brakes for use on the model 737NG
Aircraft. In addition to such testing, Boeing and Customer further
agree that such Aircraft will be used for certain Boeing flight test
training. Such Aircraft is hereinafter referred to as the Test
Aircraft and such test program is hereinafter referred to as the Test
Program.
[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
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1.
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Test
Program
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The Test
Aircraft will be flown for a total of up to [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] flight hours in order to
train Boeing personal for the flight testing of the model 747-800 and 787
aircraft.
2. [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
3. Other
Terms
All other terms and conditions,
including but not limited to the refurbishment of the Test Aircraft, contained
in the reference (b) Letter will continue to be in full force and
effect.
4. Confidential
Treatment.
Customer
understands that certain commercial information contained in this Letter
Agreement are 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, except as required by law.
Very
truly yours,
THE
BOEING COMPANY
By /s/ Susan
Englander
Its Attorney-in-Fact
ACCEPTED
AND AGREED to by
CONTINENTAL
AIRLINES, INC.
By /s/ Jacques
Lapointe
Its Senior Vice President,
Procurement
December
23, 2009
6-1162-RCN-1890
Continental
Airlines, Inc.
1600
Smith Street
Houston,
TX 77002
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Attention:
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Mr.
Ron Baur
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Subject:
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Use
of Aircraft for Testing
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Reference:
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(a)
Purchase Agreement No. 1951 (the Purchase Agreement) between The Boeing
Company (Boeing) and Continental Airlines, Inc. (Customer) relating to
Model 737 Aircraft
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(b)
Letter No. 6-1162-SEE-0263, dated July 23, 2009; Subject “Use of Aircraft –
737NG Performance Improvement Package Testing”
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
agreed in the reference (b) Letter Agreement to allow Boeing to use one (1)
Model 737 Aircraft, with serial number [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT], for certain testing. In
consideration of [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT], Customer
further agrees, subject to Customer’s concurrence of the scope of such further
test flight profile in accordance with the terms below, to allow Boeing to use
such Aircraft or any other Aircraft to conduct certain other additional testing
subject to the requirements herein. Each such additional test program
is hereinafter referred to as the Test Program and each Aircraft used for such
additional testing is hereinafter referred to as the Test Aircraft.
Customer
will accept delivery of the Test Aircraft without any reduction in the Aircraft
Price on account of the depreciation and wear and tear resulting from such
testing, subject to the provisions set forth below.
1. Test Aircraft and Test
Program
Prior to
commencement of each respective Test Program, Boeing will fill in the
information identified in the Attachment and provide such Attachment to Customer
for its approval of the respective Test Program. [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
.
The
Boeing Engineering Work Authorization form (EWA) provided to Customer will
contain the estimated flight test hours and cycles for the Test
Program. Boeing agrees to obtain Customer’s prior permission before
conducting any flight testing that would result in the Aircraft flying for a
greater number of flight test hours and cycles than the number of estimated
fight test hours and cycles contained in the EWA.
If
requested by Customer, Boeing agrees to share the Test Program results with
Customer, provided that Customer agree to treat such results as Confidential
Information and not disclose it to third parties without Boeing’s prior written
permission.
[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
Prior to
delivery of the Test Aircraft, designated Customer representatives may inspect
the Test Aircraft in accordance with Article 9.2 of the Purchase
Agreement. In addition, Boeing will provide to Customer a
report detailing the test conditions that the Test Aircraft, and in particular,
the landing gear, was subjected to during the Test Program to verify that test
conditions were within design parameters. Any items deemed to be beyond
reasonable wear and tear will be addressed via standard delivery processes
subject to discussion between Boeing and Customer.
2. [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
3. Removal of Wiring and Test
Instrumentation.
The wiring installation in the Test
Aircraft will be the same as in the other 737 Aircraft being purchased by the
Customer under the Agreement. Boeing will remove all flight test
wiring and instrumentation to the extent practicable. [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
4. [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
5. Warranty.
The terms
and conditions of the Product Assurance Document (Exhibit C to the AGTA) will
run full term from the date of the delivery of the Test Aircraft to
Customer. If any Boeing supplier, except the Engine manufacturer,
refuses to honor any valid warranty claim submitted by Customer solely on the
basis of use or time expiration relating to the Test Program or refurbishment,
Boeing will assume responsibility for such claim using the supplier warranty
terms and conditions as though the warranty period began with delivery of the
Test Aircraft to Customer.
6. Wheels, Tires and
Brakes.
If
indicated in the Attachment, Boeing will remove the Test Program tires, wheels,
and brakes and replace with the production tires, wheels and brakes on the Test
Aircraft after such Test Program and prior to delivery of the Test
Aircraft.
7. Accomplishment of
Maintenance Check.
Boeing
will maintain the Test Aircraft with an Airplane Inspection Program (AIP) as
required by 14 CFR 91.409 (e). Scheduled maintenance and inspection
intervals will be based on a Low Utilization Maintenance Plan from the 737
Maintenance Planning Document as described in the AIP.
8. List of Greases, Oils and
Other Fluids.
Boeing
will provide Customer in a timely manner a list of part and/or specification
numbers and suppliers of the greases, oils and other fluids used to service the
Test Aircraft during the flight test program.
9. [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
10. Termination of Boeing’s
Right to Use Aircraft for Test Programs
10.1 One
of the items identified in the Attachment is the dollar value of each respective
Test Program. This value will be determined by Boeing acting in good
faith. Boeing’s right to use Customer’s Aircraft for Test Programs
hereunder will terminate when the cumulative value of the Test Programs
identified in the Attachment equals $[CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT].
10.2 [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
11. Confidential
Treatment.
Customer
understands that certain commercial information contained in this Letter
Agreement are 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, except as required by law.
Very
truly yours,
THE
BOEING COMPANY
By /s/ Susan
Englander
Its Attorney-in-Fact
ACCEPTED
AND AGREED TO this
Date: December 23,
2009
CONTINENTAL
AIRLINES, INC.
By /s/ Jacques
Lapointe
Its Senior Vice
President, Procurement
Attachment
to 6-1162-RCN-1890
Update
No. 1
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Aircraft
No.
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EWA
No. *
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Estimated
Flight Test Hrs.
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Actual
Flight Test Hrs.
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Scheduled
Delivery Month
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Revised
Delivery Month
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Test
Program $ Value
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Wheels,
tires, brakes replaced?
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Engines
Borescoped?
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3138/YJ571
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Y3333-003
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No
greater than [***]
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TBD**
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TBD**
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$[***]
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No
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Yes
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* EWA is
the Boeing Engineering Work Authorization form number. Such form
contains the test description and will be provided to Customer concurrent with
this attachment.
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT]
[***
CONFIDENTIAL MATERIAL OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
Approved
by:
CONTINENTAL
AIRLINES, INC.
By /s/ Jacques
Lapointe
Its Senior Vice President,
Procurement