of the Aircraft from Purchaser under the Lease Agreement
shall have been satisfied or waived or deferred by Seller in its discretion.
10.04
Delivery.
Airbus shall have tendered the Aircraft for
Delivery at the Delivery Location in the condition required under the Airbus
Purchase Agreement and Lease Agreement.
Section 11.
DISCLAIMERS AND EXCLUSION OF LIABILITY.
11.01
DISCLAIMERS OF WARRANTIES.
PURCHASER'S ACCEPTANCE OF THE
AIRCRAFT IN ACCORDANCE WITH SECTION 4.01 SHALL BE CONCLUSIVE EVIDENCE THAT
PURCHASER HAS FULLY INSPECTED THE AIRCRAFT, THE ENGINES AND EVERY PART THEREOF
AND THAT THE AIRCRAFT, THE ENGINES, THE PARTS AND TECHNICAL RECORDS ARE
TECHNICALLY ACCEPTABLE TO PURCHASER AND ARE IN A SUITABLE CONDITION FOR DELIVERY
TO AND ACCEPTANCE BY PURCHASER EXCEPT AS CONTEMPLATED BY SECTION 4.01.
[**] - Confidential treatment has been requested for the bracketed portions. The
confidential redacted portion has been omitted and filed separately with the
Securities and Exchange Commission.
7
[Purchase Agreement]
11.02
EXCLUSION.
EXCEPT FOR THE WARRANTY OF GOOD, MARKETABLE TITLE
TO THE ASSIGNED PROPERTY, FREE AND CLEAR OF ANY AND ALL LIENS, OTHER THAN
PERMITTED LIENS, AT DELIVERY AND THE COMPLIANCE OF THE AIRCRAFT AT DELIVERY WITH
THE SPECIFICATIONS SET FORTH HEREIN, IN THE AIRBUS PURCHASE AGREEMENT AND THE
LEASE AGREEMENT (AS EVIDENCED BY SELLER'S EXECUTION AND DELIVERY OF THE
ACCEPTANCE CERTIFICATE (AS PURCHASER'S AGENT PURSUANT TO THE PURCHASE AGREEMENT
ASSIGNMENT) AND PURCHASER'S EXECUTION OF THE LEASE SUPPLEMENT AS CONTEMPLATED BY
SECTION 4.01), THE AIRCRAFT IS TO BE SOLD AND DELIVERED "AS IS, WHERE IS", AND
EACH OF PURCHASER AND OWNER PARTICIPANT AGREES AND ACKNOWLEDGES THAT, SAVE AS
EXPRESSLY STATED IN THIS AGREEMENT:
(a)
SELLER HAS NOT AND WILL NOT BE DEEMED TO HAVE ACCEPTED, MADE OR
GIVEN (WHETHER BY VIRTUE OF HAVING DONE OR FAILED TO DO ANY ACT, OR HAVING
ACQUIRED OR FAILED TO ACQUIRE ANY STATUS UNDER OR IN RELATION TO THIS AGREEMENT
OR OTHERWISE), ANY CONDITIONS, WARRANTIES OR REPRESENTATIONS, EXPRESS OR
IMPLIED, WITH RESPECT TO, THE AIRCRAFT OR ANY ENGINE OR PART OR TECHNICAL
RECORDS OR ANY SERVICES PROVIDED BY SELLER HEREUNDER, INCLUDING THE DESCRIPTION,
AIRWORTHINESS, COMPLIANCE WITH SPECIFICATIONS, OPERATION, MERCHANTABILITY,
QUALITY, FREEDOM FROM INFRINGEMENT OF PATENT OR OTHER PROPRIETARY RIGHTS,
FITNESS FOR ANY PARTICULAR USE OR PURPOSE, VALUE, DURABILITY, DATE PROCESSING,
CONDITION, OR DESIGN, OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP, THE
ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, OR AS TO ANY
OTHER MATTER WHATSOEVER, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY
ARISING FROM A COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE) WITH RESPECT
TO THE AIRCRAFT, ANY ENGINE OR ANY PART, OR ANY TECHNICAL RECORD; AND
(b)
SELLER SHALL NOT HAVE ANY OBLIGATION OR LIABILITY WHATSOEVER TO
PURCHASER OR OWNER PARTICIPANT (WHETHER ARISING IN CONTRACT OR IN TORT, AND
WHETHER ARISING BY REFERENCE TO NEGLIGENCE, OR STRICT LIABILITY OF SELLER OR
OTHERWISE) FOR:
(i)
ANY LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED
DIRECTLY OR INDIRECTLY BY THE AIRCRAFT OR ANY ENGINE OR BY ANY INADEQUACY
THEREOF OR DEFICIENCY OR DEFECT THEREIN OR