Dated AS OF THIS DAY 28 OF September, 2009 CHINA SOUTHERN AIRLINES CO. LTD. CHINA SOUTHERN AIR HOLDING COMPANY MTU AERO ENGINES GMBH MTU MAINTENANCE ZHUHAI CO. LTD.
Dated
AS OF THIS DAY 28 OF September, 2009
CHINA
SOUTHERN AIRLINES CO. LTD.
CHINA
SOUTHERN AIR HOLDING COMPANY
MTU
AERO ENGINES GMBH
MTU
MAINTENANCE ZHUHAI CO. LTD.
THIS AGREEMENT is dated as of
this ___ day of _____________ 2009
Parties
(1)
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CHINA SOUTHERN AIRLINES CO.
LTD., a legal person duly organised and existing under the laws of
the People's Republic of China ("PRC") and having its
legal address at Guangzhou Economic and Technological Development Zone,
Guangdong Province, PRC ("Transferor");
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(2)
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CHINA SOUTHERN AIR HOLDING
COMPANY, a legal person duly organised and existing under the laws
of the PRC and having its legal address at Baiyun International Airport,
Guangzhou, Guangdong Province, PRC ("Transferee");
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(3)
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MTU AERO ENGINES GMBH, a
company duly incorporated and existing under the laws of the Federal
Republic of Germany and having its registered address at Xxxxxxxx Xxx.
000, 00000 Xxxxxx, Xxxxxxx ("MTU");
and
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(4)
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MTU MAINTENANCE ZHUHAI CO.
LTD., a company duly incorporated and existing under the laws of
the PRC and having its registered address at Zhuhai Free Trade Zone,
Guangdong Province, PRC ("JV
Company").
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(Each of
the parties may hereinafter be referred to individually as a "Party" and collectively as the
"Parties".)
Whereas
(C)
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The
Parties intend to enter into this Agreement to comply with the provisions
of Article 15.2 of the JV Contract and set out the Parties' rights and
obligations after the Proposed Transfer is
completed.
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Agreed
terms
1.
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Unless otherwise defined herein or the context expressly
requires otherwise, words and expressions used in this Agreement shall
have the meanings given to them in the JV Contract. The JV
Contract and the Articles of Association of the JV Company referred to in
this Agreement shall mean the amended and restated JV Contract and the
amended and restated Articles of Association of the JV Company when
referring to any period after the completion of the Proposed
Transfer.
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2.
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1
2.1.
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it
shall continue to perform its obligations, and comply with the provisions,
under Articles 17.1.3, 17.1.8, 17.2 and 17.3 of the JV Contract ;
and
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2.2.
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the
Proposed Transfer shall not in any way affect the performance by the
Transferor of its obligations under each of the CFM56 Maintenance
Agreement, the V2500 Maintenance Agreement and any other agreements
entered into between the Transferor and the JV Company for the term of the
JV Contract. For the avoidance of doubt, the Transferor hereby
confirms that the CFM56 Maintenance Agreement includes the exclusive
repair, overhaul and maintenance by the JV Company of CFM56-5 and CFM56-7
engines operated by the Transferor, subject to the JV Company being
internationally competitive as defined through the “Net Most Favoured
Contract Terms” specified in the Maintenance
Agreements.
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For the
avoidance of doubt, the Transferor undertakes and warrants to each of MTU and
the JV Company that, from the date of this Agreement and until the expiry of
the term of the JV Contract, regardless of any change to the
shareholding of the JV Company, the Transferor will continue to perform and
comply with the above obligations. Without prejudice to the Transferee's
undertaking and warranty under Section 3, as from the Effective Date (defined
below), the due performance of the above specified obligations by the Transferor
shall be deemed to fulfil the Transferee's obligations to perform the
Transferee's corresponding obligations under the JV Contract and the Articles of
Association of the JV Company and the Transferor will not be obliged to perform
other obligations under the JV Contract and the Articles of Association of the
JV Company.
3.
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Subject
to this Agreement becoming effective in accordance with Section 4, the
Transferee undertakes and warrants to MTU and the JV Company that, during
the remaining term of the JV
Contract:
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3.1
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The
Transferee will continue to be a controlling shareholder of the Transferor
and the Transferee shall not sell or otherwise dispose of a controlling
stake in the Transferor;
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3.2
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The
Transferee shall take all actions and perform all acts necessary, or shall
procure that all actions are taken and all acts necessary are performed,
to ensure that the Transferor will not act in any manner that will (i)
result in any breach of the Transferee's obligations under the JV Contract
and/or the Articles of Association of the JV Company, or (ii) otherwise
contravene the Transferee’s obligations under the JV Contract and/or the
Articles of Association;and
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3.3
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The
Transferee shall procure that the Transferor will duly perform its
obligations, and comply with this Agreement and the provisions under
Articles 17.1.3, 17.1.8, 17.2 and 17.3 of the JV Contract ;
and
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2
5.
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Nothing
in this Agreement shall release the Transferor from any liability in
respect of any obligations under the JV Contract due to be performed prior
to the Effective Date.
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6.
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If
any provision, or any portion thereof, of this Agreement shall be held
invalid, illegal or unenforceable under the laws of the PRC, the validity,
legality and enforceability of the remaining provisions herein shall not
in any way be affected or impaired thereby. The Parties shall
consult with each other in good faith to reach an agreement on provisions
acceptable to each Party to replace to such
provisions.
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7.
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The
validity, interpretation and implementation of this Agreement and the
resolution of disputes concerning the validity, interpretation and
implementation of this Agreement shall be governed by relevant and
published laws of the PRC.
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8.
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This
Agreement is made in Chinese and English. Both language
versions shall have the same validity. Each Party acknowledges
and confirms that it has reviewed both language versions and that no
material differences between the two language versions of this Agreement
in terms of substance.
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3
This
Agreement has been executed and delivered on the date(s) indicated
below.
CHINA
SOUTHERN AIRLINES CO.
LTD.
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MTU
AERO ENGINES GMBH
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Name:Tan
Wangeng
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Name:
XXXXXXXXXXX/ X.Xxxxxxx
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Title:
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Title:
CEO Commercial Maintenance /CFO
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Date:
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Date:
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Company
seal:
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||
CHINA
SOUTHERN AIR HOLDING
COMPANY
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MTU
MAINTENANCE ZHUHAI CO.
LTD.
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Name: Si
Xianmin
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Name:
Holger Sindemann
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Title:
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Title:
President & CEO
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Date:
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Date:
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Company
seal:
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Company
seal:
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4