Supplemental Agreement No. 6 to Purchase Agreement No. 2484 between The Boeing Company and Continental Airlines, Inc. Relating to Boeing Model 787 Aircraft
EXHIBIT
10.25(f)
Supplemental
Agreement No. 6
to
Purchase
Agreement No. 2484
between
The
Boeing Company
and
Continental
Airlines, Inc.
Relating
to Boeing Model 787 Aircraft
THIS
SUPPLEMENTAL AGREEMENT, entered into as of October 22, 2008, by and between THE
BOEING COMPANY (Boeing) and CONTINENTAL AIRLINES, INC. (Customer);
WHEREAS,
the parties hereto entered into Purchase Agreement No. 2484 dated December 29,
2004 (the Purchase Agreement), as amended and supplemented, relating to Boeing
Model 787 aircraft (the Aircraft);
WHEREAS,
Boeing and Customer have agreed to define the configuration of the Model 787-8
for incorporation into Exhibit A.
WHEREAS,
Boeing addresses additional provisions relating to software products along with
the required license terms.
WHEREAS,
Boeing addresses additional provisions relating to post delivery obligations
with respect to catalog seats and In Flight Entertainment.
WHEREAS, Boeing and
Customer have mutually agreed to modify Attachment B to Option Aircraft Letter
6-1162-MSA-547 to [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT].
NOW
THEREFORE, in consideration of the mutual covenants herein contained, the
parties agree to amend the Purchase Agreement as follows:
1. Table of Contents, Articles,
Tables and Exhibits:
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. 6.
1.2 Remove
and replace, in its entirety, the “Table 1,” for Model
787-8 with the Table 1 attached hereto, to reflect the changes made by this
Supplemental Agreement No. 6, and to reflect the 787-8
configuration. Customer acknowledges receipt of Letter No.
6-1162-RCN-1857, notifying Customer that the delivery of the Aircraft in such
Table 1 have been delayed.
1.3 Remove
and replace, in its entirety, the “Exhibit A-1,”
attached hereto, to reflect the changes made by this Supplemental Agreement No.
6.
1.4 Remove
and replace, in its entirety, the “Exhibit A-2,”
attached hereto, to reflect the changes made by this Supplemental Agreement No.
6.
2. Letter
Agreements:
2.1 Remove
and replace, in its entirety, Letter Agreement 6-1162-MSA-546R3, “Open Configuration
Matters,” with the revised Letter Agreement 6-1162-MSA-546R4 attached
hereto.
2.2 Remove
and replace, in its entirety Attachment B to Letter Agreement 6-1162-MSA-547R4,
“Option
Aircraft,” with the revised Attachment B attached hereto.
2.3 Add
Letter Agreement 6-1162-AJH-921, “787 e-Enabling,”
attached hereto.
2.4 Add
Letter Agreement 6-1162-AJH-922, “Special Matters Relating to COTS Software and
End User License Agreements”, attached hereto.
2.5 Add
Letter Agreement 6-1162-AJH-923, “Special Terms – Seats and In-flight
Entertainment”, attached hereto
2.6 Remove
and replace, in its entirety, Letter Agreement 6-1162-MSA-552R5, “Special Matters,”
with the revised Letter Agreement 6-1162-MSA-552R6 attached hereto to reflect
the changes made by this Supplemental Agreement No. 6.
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/ ▇.▇.
▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Its:
Attorney-In-Fact Its: Senior Vice President
-
Finance and
Treasurer
P.A.
2484
CAL
SA 6-
TABLE OF
CONTENTS
|
ARTICLES
|
SA
NUMBER
|
|||||
|
1.
|
Quantity,
Model and Description
|
2
|
||||
|
2.
|
Delivery
Schedule
|
2
|
||||
|
3.
|
Price
|
2
|
||||
|
4.
|
Payment
|
2
|
||||
|
5.
|
Additional
Terms
|
2
|
||||
|
TABLE
|
||||||
|
1.
|
Aircraft
Information Table
|
6
|
||||
|
EXHIBIT
|
||||||
|
A1.
|
787-8
Aircraft Configuration
|
6
|
||||
|
B.
|
Aircraft
Delivery Requirements and Responsibilities
|
1
|
||||
|
SUPPLEMENTAL EXHIBITS
|
||||||
|
AE1.
|
Escalation
Adjustment/Airframe and Optional Features
|
1
|
||||
|
BFE1.
|
Buyer
Furnished Equipment Variables
|
1
|
||||
|
CS1.
|
Customer
Support Document
|
5
|
||||
|
EE1.
|
Engine
Escalation/Engine Warranty and Patent Indemnity
|
2
|
||||
|
SLP1.
|
Service
Life Policy Components
|
1
|
||||
P.A. No.
2484
SA6
BOEING
PROPRIETARY
TABLE OF
CONTENTS
|
LETTER AGREEMENTS
|
SA
NUMBER
|
|
|
6-1162-MSA-546R4
|
Open
Configuration Matters
|
6
|
|
6-1162-MSA-547R4
|
Option
Aircraft
|
6
|
|
6-1162-MSA-549
|
Spares
Initial Provisioning
|
1
|
|
6-1162-AJH-921
|
787
e-Enabling
|
6
|
|
6-1162-AJH-922
|
Special
Matters Relating to COTS Software and End User License
Agreements
|
6
|
|
6-1162-AJH-923
|
Special
Terms – Seats and In-flight Entertainment
|
6
|
P.A. No.
2484
SA6
BOEING
PROPRIETARY
TABLE OF
CONTENTS
|
CONFIDENTIAL LETTER
AGREEMENTS
|
SA
NUMBER
|
|
|
6-1162-MSA-550
|
Spare
Parts Commitment
|
1
|
|
6-1162-MSA-551R2
|
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT
|
5
|
|
6-1162-MSA-552R6
|
Special
Matters
|
6
|
|
6-1162-MSA-553R1
|
Open
Matters
|
1
|
|
6-1162-MSA-554R3
|
[CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT]
|
5
|
|
6-1162-MSA-555
|
Promotional
Support
|
1
|
P.A. No.
2484
SA6
BOEING
PROPRIETARY
TABLE OF
CONTENTS
|
DATED AS OF:
|
|
|
Supplemental
Agreement No.
1
|
June
30, 2005
|
|
Supplemental
Agreement No.
2
|
January
20, 2006
|
|
Supplemental
Agreement No.
3
|
May
3, 2006
|
|
Supplemental
Agreement No.
4
|
July
14, 2006
|
|
Supplemental
Agreement No.
5
|
March
12, 2007
|
|
Supplemental
Agreement ▇▇.
▇
|
▇▇▇▇▇▇▇
▇▇, ▇▇▇▇
|
▇.▇. ▇▇.
▇▇▇▇
▇▇▇
BOEING
PROPRIETARY
Table
1
Purchase
Agreement 2484
Aircraft
Delivery, Description, Price and Advance Payments
(787-8
[CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] 2006$ [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]
CAL
47094-1F.TXT
Boeing Proprietary SA6 Page 1
Table
1
Purchase
Agreement 2484
Aircraft
Delivery, Description, Price and Advance Payments
(787-9
[CONFIDENTIAL MATERIAL
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] 2006$s [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]
CAL
47094-1F.TXT
Boeing Proprietary Page 1
Exhibit
A1 to
Purchase
Agreement No. 2484
Page
1
AIRCRAFT
CONFIGURATION
between
THE
BOEING COMPANY
and
CONTINENTAL
AIRLINES, INC.
Exhibit
A1 to Purchase Agreement Number 2484
P.A. No.
2484
A1 SA6
BOEING
PROPRIETARY
AIRCRAFT
CONFIGURATION
relating
to
BOEING
MODEL 787 AIRCRAFT
The
Detail Specification is Boeing document entitled Detail
Specification D019E001CAL88P-1 revision New, dated February,
2009. Such
Detail Specification will be comprised of those provisions of 787 Configuration
Specification 787B1-4102 Revision B, dated July
9, 2007, as amended by addendum 787B1-4102-B001, dated September 12, 2007, which
are applicable to model 787-8 aircraft and
as amended to incorporate the optional features listed below, including the
effects on Manufacturer's Empty Weight (MEW) and Operating Empty Weight
(OEW). Such Options are set forth in Boeing Customer Specified
Option Selection Log and Option Data Pages, configuration file (CAL88P0001),
dated 11/1/07. As soon as practicable, Boeing will make available to
Customer the Detail Specification, which will reflect such optional
features. The Aircraft Basic Price reflects and includes all effects of
such optional features, except such Aircraft Basic Price does not include the
price effects of any Buyer Furnished Equipment.
There is no
additional processing fee added to the master change price for addition or
deletion of catalog options within appropriate lead times.
P.A. No.
2484
A1 SA6
BOEING
PROPRIETARY
EXHIBIT
A1
to BOEING
PROPRIETARY
Purchase
Agreement No. 2484
|
Optional
Features
Item
No.
|
Title
|
Price
Per
Aircaft
[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]
P.A. No.
2484 SA
6
PA_Exhibit_A
BOEING PROPRIETARY
Page 1
AIRCRAFT
CONFIGURATION
between
THE
BOEING COMPANY
and
CONTINENTAL
AIRLINES, INC.
Exhibit
A2 to Purchase Agreement Number 2484
P.A. No.
2484
A2 SA 6
BOEING
PROPRIETARY
AIRCRAFT
CONFIGURATION
relating
to
BOEING
MODEL 787-9 AIRCRAFT
The
Airframe Price in Table 1 was established utilizing the 787 Airplane Description
and Selections 787B1-0227 Revision J dated December 15, 2006. The
content of this Exhibit A2 will be defined pursuant to the provisions of Letter
Agreement 6-1162-MSA-546R4, Open Configuration Matters, to the Purchase
Agreement.
The Boeing Company
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
October
22, 2008
6-1162-MSA-546R4
Continental
Airlines, Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Subject: Open
Configuration Matters
Reference: Purchase
Agreement No. 2484 (the Purchase Agreement)
between
The Boeing Company (Boeing) and Continental
Airlines,
Inc. (Customer) relating to Model 787 aircraft (the Aircraft)
Ladies
and Gentlemen:
This
Letter Agreement amends and supplements the Purchase Agreement. All
terms used and not defined in this Letter Agreement have the same meaning as in
the Purchase Agreement. This Letter Agreement supersedes and replaces
in its entirety Letter Agreement 6-1162-MSA-546R3 dated, March 12,
2007.
1. Aircraft
Configuration.
Due to the developing design of the 787
Aircraft and the long period of time between the Purchase Agreement signing and
delivery of Customer’s first Aircraft, the configuration of Customer's Aircraft
has not yet been defined. The parties agree to complete defining the
configuration of the 787-8 Aircraft no later than [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] using the
configuration elements defined in 787 Airplane Description and Selections
Document Number 787B1-0227, which includes available Optional Features for
selection (Configuration). This has been
completed pursuant to Supplement Agreement No. 6 to the Purchase
Agreement.
Boeing and Customer agree to complete
the configuration of the model 787-9 Aircraft no later than the first day of the
month [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] months prior
to delivery of the first model 787-9 Aircraft.
2. Effect on Purchase
Agreement.
By [CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] Boeing will
provide Customer a written amendment to the Purchase Agreement reflecting the
configuration, including, without limitation, the effects of the Configuration
on those portions of the Purchase Agreement described in Articles 2.1 through
2.4, below. With respect to and in advance of the final 787-8
configuration by CONFIDENTIAL
MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT] the parties
agree to the following advanced configuration releases:
|
·
|
Preliminary
Configuration - LOPA YS5509 dated 10/4/04, used to define a
preliminary Performance Guarantees release (reference Article 2.3
below). This has been completed per Supplemental Agreement No.
1 to the Purchase Agreement.
|
|
·
|
Interim Configuration –
to be released by September 2006, used to define the final Performance
Guarantees release (reference Article 2.3 below) and update the pricing
(reference Article 2.4 below).
|
|
·
|
Final Configuration – to
be released after September 2007, used to reflect Customer’s actual
configuration and reflect final build of the Aircraft. LOPA
used to define a preliminary Performance Guarantee will also be used to
define the final Performance Guarantee – per Supplemental Agreement No.
5.
|
2.1 Exhibit
A. The Configuration will be incorporated into Exhibit A of
the Purchase Agreement. This has been completed pursuant to Supplemental
Agreement No. 6 to the Purchase Agreement with respect to model 787-8
aircraft.
2.2 Basic
Specification. Changes applicable to the basic Model 787
aircraft which are developed by Boeing between the date of signing of the
Purchase Agreement and completion of the Configuration will be incorporated into
Exhibit A of the Purchase Agreement.
2.3 [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]. Boeing will provide to
Customer revisions to Letter Agreement 6-1162-MSA-551, [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] to reflect the effects of
the Configuration, if any, on [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT].
2.4 Price
Adjustments. The Aircraft Basic Price and Advance Payment Base
Price of each Aircraft set forth on Table 1 to the Purchase Agreement is based
in part on an estimate of the value of the Optional Features and any related
Seller Purchased Equipment. The Aircraft Basic Price and the Advance
Payment Base Price of each Aircraft will be adjusted as required and agreed by
the parties in a supplemental agreement to the Purchase Agreement to reflect the
difference between such estimate and the actual price of such elements of the
Configuration. This has been completed pursuant to Supplemental
Agreement No. 6 to the Purchase Agreement with respect to model 787-8
aircraft.
|
3.
|
Other Letter
Agreements.
|
Boeing and Customer acknowledge that as
the definition of the Aircraft progresses, there will be a need to execute
letter agreements addressing one or more of the following subjects:
3.1 Customer
Software. Additional provisions relating to the loading of
software owned by or licensed to Customer on the Aircraft at
delivery. This has been completed pursuant to Supplement Agreement
No. 6 to the Purchase Agreement.
3.2 Installation of Cabin
Systems Equipment. Additional provisions relating to the terms
on which Boeing will offer and install in-flight entertainment systems and cabin
communications systems in the Aircraft. This has been completed pursuant to
Supplement Agreement No. 6 to the Purchase Agreement.
3.3 Buyer Furnished Equipment
(BFE) and Seller Purchased Equipment (SPE). Provisions
relating to the terms on which Boeing may offer or install BFE and SPE in the
Aircraft. This has been completed pursuant to Supplement Agreement
No. 6 to the Purchase Agreement.
3.4 Onboard Broadband
Offering. Provisions relating to the terms under which Boeing
may offer or install an Onboard Broadband Aircraft Health and Information System
in the Aircraft (originally envisioned as a Connexion by Boeing
product).
Very
truly yours,
THE
BOEING COMPANY
By /s/ ▇.▇.
▇▇▇▇▇▇
Its Attorney-In-Fact
ACCEPTED
AND AGREED TO
Date: October
22, 2008
CONTINENTAL
AIRLINES, INC.
By /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Its__ Senior Vice President -
Finance and Treasurer
P.A. No.
2484 SA 6
Open
Configuration Matters
BOEING
PROPRIETARY
Attachment
B to
Option
Aircraft Letter 6-1162-MSA-547R4
Option
Aircraft Delivery, Description, Price and Advance Payments
(787-9), [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT] 2006$s / [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]
CAL
43197-10.TXT
Page 1
October
22, 2008
6-1162-AJH-921
Continental
Airlines, Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
|
Subject:
|
“787
e-Enabling”
|
|
|
Provision
and Loading of Boeing Owned Software in the Electronic Flight Bag (EFB)
System or Other Onboard Loadable Hardware
System.
|
|
Reference:
|
Purchase
Agreement No. 2484 (the Purchase Agreement) between The Boeing Company
(Boeing) and (Customer)
|
Customer
Services General Terms Agreement No. 24-1 (the CSGTA) between Boeing and
Customer, including Supplemental Agreement for Electronic Access (the
“SA-EA”)
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. Customer’s
Aircraft is equipped with onboard loadable hardware, specifically the Class 3
EFB System and the Core Network Server (CNS). Boeing will install
certain Boeing owned software, also referred to in the AGTA and the Purchase
Agreement as “Materials” (and not “Aircraft Software”), on the EFBs and on the
File Server Module (FSM) within the Core Network before fly
away. These Materials to be installed on the EFBs include, but are
not limited to, electronic documents (e-Docs), onboard performance tool (OPT),
and the electronic logbook (E-Logbook). The Cabin Logbook will be
installed on an FSM within the Core Network.
2. Boeing
will license and install these Materials on the following
conditions:
(i) Notwithstanding
any provision to the contrary, these Materials are provided and licensed to
Customer in accordance with the terms and conditions of the CSGTA, as
supplemented by the SA-EA, Supplemental Agreement No. SA-eE (“the SA-eE”) to the
CSGTA, and applicable Software License Orders.
(ii) The
DISCLAIMER AND RELEASE and EXCLUSION OF CONSEQUENTIAL AND OTHER DAMAGES
provisions in Article 11 of Part 2 of Exhibit C of the AGTA and the insurance
provisions of Article 8.2 of the AGTA will apply to Boeing’s installation of the
Materials.
3. The
technical data and maintenance information specified in Article 3 of Part 3 of
Supplemental Exhibit CS1 to the Purchase Agreement will be considered
“Materials” as defined therein and not “Aircraft Software” even when such
technical data and maintenance information is provided in software media and is
used onboard the Aircraft or loaded into an onboard Aircraft
system.
4. Notwithstanding
anything to the contrary, (i) the provision, license and access to the Materials
specified in Article 3 of this Letter Agreement through the Maintenance
Performance Toolbox, (ii) the provision and license of the Software Developer
Kits (SDKs) for the EFB and the Core Network, and (iii) the provision and
license of other software which may be identified by Boeing from time to time
shall be pursuant to the terms of the CSGTA, as supplemented by the SA-EA and
the SA-eE, including applicable Software License Orders. The SDK
Contractor Confidentiality Agreement of the SA-eE shall apply to any provision
of the SDKs to Customer’s contractor.
5. The
CSGTA and all referenced Supplemental Agreements thereto, including the Software
License Orders, must be executed between Boeing and Customer no later than
ninety (90) days prior to delivery of Customer’s first 787
Aircraft. All software applications and SDKs referenced in Articles
1, 3 and 4 of this Letter Agreement will be further described in the Software
Licensed Order for that software application and SDK.
Very
truly yours,
THE
BOEING COMPANY
By /s/
▇.▇.
▇▇▇▇▇▇
Its Attorney-In-Fact
ACCEPTED
AND AGREED TO this
Date: October
22 , 2008
CONTINENTAL
AIRLINES, INC.
By /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Its Senior Vice President –
Finance and Treasurer
P.A. No.
2484 SA6
787
e-Enabling Letter Agreement
BOEING
PROPRIETARY
October
22, 2008
6-1162-AJH-922
Continental
Airlines, Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
|
Subject:
|
Special
Matters relating to COTS Software and End User License
Agreements
|
|
Reference:
|
Purchase
Agreement No. 2484 (the Purchase Agreement) between The Boeing Company
(Boeing) and Continental Airlines, Inc. (Customer) relating to
Model 787 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.
Recitals
A. Certain
third party, commercial off-the-shelf software products are available to perform
various functions required in the Aircraft (COTS Software).
B. The
industry practice with respect to COTS Software is to permit manufacturers to
install the software in products for sale to customers. The
manufacturer is required to pass to the customer an End User License Agreement
(▇▇▇▇), which covers the right to use the COTS Software. The EULA’s
also require each user of the product to further license the software and pass
the ▇▇▇▇ to any user to whom he transfers the product.
C. Because
of the described industry practice with respect to COTS Software, Boeing does
not acquire title to COTS Software and cannot pass title to COTS Software at the
time of delivery of the Aircraft.
D. Therefore,
the parties desire to amend certain provisions of the Purchase Agreement to
properly reflect the respective rights and obligations of the parties with
respect to the COTS Software included in the Aircraft.
Agreement
1. At
delivery of the Aircraft, Boeing will furnish to Customer copies of all EULA’s
applicable to the Aircraft, and Customer agrees to comply with all provisions of
the applicable EULA’s.
2. Notwithstanding
the provisions of Article 6.3 of the AGTA, at delivery of each Aircraft, Boeing
will provide Customer a ▇▇▇▇ of sale conveying good title, free of encumbrances
except as provided in applicable EULA’s.
3. In
connection with any sale or other transfer of the Aircraft, Customer agrees to
comply with all provisions of the applicable EULA’s, including without
limitation the re-licensing of the software to Customer’s transferee and the
flow down within such license of the further requirement that Customer’s
transferee comply with and flow to other transferees the obligations of the
▇▇▇▇.
Very
truly yours,
THE
BOEING COMPANY
By /s/
▇.▇.
▇▇▇▇▇▇
Its Attorney-In-Fact
ACCEPTED
AND AGREED TO this
Date: October
22, 2008
CONTINENTAL
AIRLINES, INC.
By /s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Its Senior Vice President –
Finance and Treasurer
October
22, 2008
6-1162-AJH-923
Continental
Airlines, Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
|
Subject:
|
Special
Terms - Seats and In-flight
Entertainment
|
|
Reference:
|
Purchase
Agreement No. 2484 (the Purchase Agreement) between The Boeing Company
(Boeing) and Continental Airlines, Inc. (Customer) relating to
Model 787 aircraft (the
Aircraft)
|
This
letter agreement (Letter
Agreement) amends and supplements the Purchase Agreement. All
capitalized terms used but not defined in this Letter Agreement shall have the
same meaning as defined in the Purchase Agreement.
1.0 Definitions.
1.1 "Covered Seats" shall mean
those seats which are not otherwise identified in Exhibit A to the Purchase
Agreement as Buyer Furnished Equipment.
1.2 "In-flight Entertainment (IFE)
System" shall mean the IFE identified in the Detail Specification of the
Aircraft, inclusive of the IFE software which is required to test and certify
the IFE system on the Aircraft, but exclusive of IFE Customer
Software.
1.3 “IFE Customer Software” shall
mean any software which is obtained by the Customer from a source other than
Boeing for installation in the IFE System.
|
2.0
|
Applicability of
Supplemental Exhibit CS1 to the Purchase
Agreement.
|
2.1 Boeing
did not enter into product support agreements with the suppliers of the Covered
Seats and the IFE System. Customer is responsible to enter into such
product support agreements directly with the suppliers of such Covered Seats and
IFE System and such provisions will apply in lieu of the provisions of
Supplemental Exhibit CS1 to the Purchase Agreement.
2.2 Boeing
will incorporate the Covered Seats and IFE System line maintenance information,
received from the suppliers of such Covered Seats and IFE System, into
Customer’s customized Materials prior to delivery of each Aircraft.
3.0 Applicability of the
Provisions of Exhibit C to the AGTA.
In lieu of the provisions of Part 4 of
Exhibit C to the AGTA, the following warranty and patent and copyright
indemnities will apply to Covered Seats and the IFE System:
“Boeing
will obtain warranties and indemnities against patent and copyright infringement
enforceable by Customer from the suppliers of the Covered Seats and IFE System
installed on the Aircraft at the time of delivery. If requested by
Customer, Boeing will provide copies of such warranties and indemnities to
Customer upon request.”
4.0 IFE Customer
Software.
Customer is responsible for and assumes
all liability with respect to IFE Customer Software.
Very
truly yours,
THE
BOEING COMPANY
By /s/ ▇.▇.
▇▇▇▇▇▇
Its Attorney-In-Fact
ACCEPTED
AND AGREED TO this
Date:
October 22, 2008
CONTINENTAL
AIRLINES, INC.
By /s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Its Senior Vice President –
Finance and Treasurer
October
22, 2008
6-1162-MSA-552R6
Continental
Airlines, Inc.
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Subject: Special
Matters
Reference: Purchase
Agreement No. 2484 (the Purchase Agreement)
between
The Boeing Company (Boeing) and Continental
Airlines,
Inc. (Customer) relating to Model 787 aircraft (the Aircraft)
Ladies
and Gentlemen:
This
Letter Agreement amends and supplements the Purchase Agreement. This
Letter Agreement supersedes and replaces in its entirety Letter Agreement
6-1162-MSA-552R5 dated March 12, 2007. All terms used and not defined in this
Letter Agreement have the same meaning as in the Purchase
Agreement.
1. [CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT]
14. Confidential
Treatment.
Boeing
and Customer understand that certain information contained in this Letter
Agreement, including any attachments hereto, is considered by both parties to be
confidential. Boeing and Customer agree that each party will treat
this Letter Agreement and the information contained herein as confidential and
will not, without
the other
party's prior written consent, disclose this Letter Agreement or any information
contained herein to any other person or entity except as may be required by
applicable law or governmental regulations.
Very
truly yours,
THE
BOEING COMPANY
By /s/ ▇.▇.
▇▇▇▇▇▇
Its Attorney-In-Fact
ACCEPTED
AND AGREED TO
Date: October 22,
2008
CONTINENTAL
AIRLINES, INC.
By /s/ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Its__
Senior Vice President - Finance and Treasurer
P.A. No.
2484 SA 6
Special
Matters
BOEING
PROPRIETARY