EX-10.6.5 33 d609680dex1065.htm EX-10.6.5 EX-10.6.5

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   

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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   

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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 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 (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 18th 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 10th 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 27th 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 31st 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   

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  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   

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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   

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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   

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