Exhibit 10.13
EMB-145LR
AMENDED AND RESTATED
PURCHASE AGREEMENT NUMBER GCT-025/98
EMBRAER - EMPRESA BRASILEIRA
DE AERONAUTICA S.A.
AND
REPUBLIC AIRWAYS HOLDINGS, INC.
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Certain portion of this exhibit have been omitted pursuant to a request for
confidential treatment under Rule 406 of the Securities Act of 1933. The
omitted materials have been filed separately with the Securities and
Exchange Commission.
INDEX
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ARTICLE
01 - DEFINITIONS
02 - SUBJECT
03 - PRICE
04 - PAYMENT
05 - DELIVERY
06 - CERTIFICATION
07 - ACCEPTANCE AND TRANSFER OF OWNERSHIP
08 - STORAGE CHARGE
09 - DELAYS IN DELIVERY
10 - INSPECTION AND QUALITY CONTROL
11 - CHANGES
12 - WARRANTY
13 - TECHNICAL ASSISTANCE SERVICES
14 - SPARE PARTS POLICY
15 - PUBLICATIONS
16 - ASSIGNMENT
17 - RESTRICTIONS AND PATENT INDEMNITY
18 - MARKETING AND PROMOTIONAL RIGHTS
19 - TAXES
20 - APPLICABLE LAW
21 - ARBITRATION
22 - JURISDICTION
23 - TERMINATION
24 - OPTION FOR THE PURCHASE OF ADDITIONAL EMB-145 AIRCRAFT
25 - INDEMNITY
26 - NOTICES
27 - CONFIDENTIALITY
28 - INTEGRATED AGREEMENT
29 - NEGOTIATED AGREEMENT
30 - COUNTERPARTS
31 - ENTIRE AGREEMENT
32 - NO WAIVER
33 - REPRESENTATIONS AND WARRANTIES
34 - EFFECTIVENESS
Page 1 of 36
ATTACHMENTS
"A-1"- US AIRWAYS AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND
REGISTRATION MARKS
"A-2"- AMERICA WEST AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND
REGISTRATION MARKS
"B"- FERRY EQUIPMENT, SPARE PARTS POLICY AND LIST OF PUBLICATIONS
"C" - WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
"D" - AIRCRAFT PRICE ESCALATION FORMULA
"E" - AUTHORIZED REPRESENTATIVE APPOINTMENT
"F" - FORM OF WARRANTY ▇▇▇▇ OF SALE
"G" - FORM OF GUARANTEE
Page 2 of 31
AMENDED AND RESTATED
PURCHASE AGREEMENT NO. GCT- 025/98
This Amended and Restated Purchase Agreement is entered into as of this ____ day
of April, 2002 by and between Embraer - Empresa Brasileira de Aeronautica S.A.
and Republic Airways Holdings, Inc., for the purchase and sale of Embraer
aircraft, services and related spare parts.
Solitair Corp. ("Solitair") has assigned to Buyer (as defined below) all of
Solitair's rights and obligations under the Purchase Agreement DCT-025/98
between Embraer and Solitair (as amended before the date of this agreement, the
"Original Purchase Agreement"), with respect to the sale of twenty (20)
unexercised option aircraft (as defined below).
In connection with such assignment, Solitair has also assigned its remaining
rights with respect to the fleet of aircraft delivered under the Original
Purchase Agreement. Solitair has retained its rights and obligations with
respect to the five (5) additional aircraft currently scheduled for delivery
under the Original Purchase Agreement.
This Agreement (as defined below):
(a) amends and restates all rights and obligations of Embraer and Buyer with
respect to the twenty (20) unexercised option aircraft under the Original
Purchase Agreement;
(b) states the rights and obligations of Embraer and Buyer with respect to
seventeen (17) additional option aircraft that were previously connected to
the Original Purchase Agreement;
(c) states the terms and conditions upon which the "Buyer's" remaining rights
under the Original Purchase Agreement will apply to the forty-eight (48)
aircraft previously delivered under the Original Purchase Agreement and the
five (5) additional aircraft scheduled for delivery under the Original
Purchase Agreement.
The sale covered by this Agreement shall be governed solely by the terms and
conditions herein set forth, as well as by the provisions set forth in the
attachments hereto. Except as expressly provided to the contrary herein, nothing
in this Agreement shall be deemed to grant Buyer or Chautauqua (as defined
herein) any rights with respect to undelivered aircraft other than the
thirty-seven (37) Option Aircraft (as defined below).
1. DEFINITIONS
Page 3 of 31
For the purpose of this Agreement, the following definitions are hereby adopted:
a. Actual Delivery Date - shall mean, with respect to each Aircraft,
the date on which Buyer obtains title to that Aircraft in accordance
with Article 7(c).
b. Aircraft - shall mean the EMB-145 LR aircraft or, where there is
more than one of such aircraft, each of such Aircraft (including
Firm Aircraft and Option Aircraft, as the context requires),
manufactured by Embraer, for sale to Buyer pursuant to this
Agreement, according to the Technical Description number TD-145/010,
dated January 1998 (Appendix I), the Aircraft Specific
Configuration, Finishing and Registration Marks described in
Attachment `A-1' (or `A-2', if Buyer notifies Embraer that it
desires to receive the Aircraft such configuration [*]), and as may
be amended from time to time by Buyer at its expense as specified in
Article 11. [*]
c. Agreement - shall mean this Amended and Restated Purchase Agreement
No. GCT-025/98, its Schedules, and any Letter Agreement between the
Parties executed on the date hereof.
d. Business Day - shall mean days on which the banks in each of New
York, New York, United States and Sao Paulo, and Sao ▇▇▇▇ dos
▇▇▇▇▇▇, ▇.▇. Brazil are open for the normal transaction of business.
e. Basic Price - shall mean the Aircraft total price, effective on the
date of execution of this Agreement contained in Article 3 (a)(1)
or, in case of revision thereof, on the date of its revision.
f. Buyer - shall mean REPUBLIC AIRWAYS HOLDINGS, INC., a Delaware
corporation with its principal place of business at ▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ or its
assignee pursuant to Article 16 hereof.
g. Chautauqua - shall mean Chautauqua Airlines, Inc.
h. Contractual Delivery Date - shall mean the delivery dates referred
to in Article 5 hereof.
i. CTA - shall mean the Aerospace Technical Center of the Brazilian
Ministry of Aeronautics.
j. Embraer - shall mean EMBRAER - Empresa Brasileira de Aeronautica
S.A., a Brazilian corporation with its principal place of business
at ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ - Putim, Sao ▇▇▇▇ dos ▇▇▇▇▇▇, Sao
Paulo, Brazil.
k. FAA - shall mean the Federal Aviation Administration of the United
States of America.
l. Firm Aircraft - shall have the meaning specified in Article 2.a
hereof.
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m. Initial Provision List or "IPL" - shall have the meaning specified
in Article 2.b hereof.
n. Option Aircraft - shall have the meaning specified in Article 2.a
hereof.
o. Parties - shall mean Embraer and Buyer.
p. Purchase Price - shall mean the Aircraft total price, effective on
the relevant Aircraft Contractual Delivery Date, resulting from the
application of the Escalation Formula contained in Attachment "D"
pursuant to the terms hereof.
q. Services - shall mean technical assistance services, as specified in
Article 13 hereof.
r. Spares - shall mean line replaceable units, spare parts and ground
support equipment, except engines, available for purchase through
Embraer, to be selected and acquired by Buyer through the initial
provisioning list agreed to by the Parties and provided pursuant to
Article 2.b. (the "IPL").
2. SUBJECT
a. Embraer shall sell and Buyer shall purchase and take delivery of
zero (0) firm order Aircraft ("Firm Aircraft") and, if Buyer so
elects, up to thirty-seven (37) option Aircraft ("Option Aircraft")
upon the terms and conditions contained in this Agreement.
b. Embraer shall sell, and Buyer shall acquire, Spares for each of the
Aircraft. Buyer shall inform Embraer at least [*] prior to the
Contractual Delivery Date of the Spares for each Aircraft selected
from IPL for such Aircraft and such Spares shall be delivered in
accordance with Article 5.b.
c. Embraer shall render the Services as specified in Article 13.
3. PRICE
a. Buyer agrees to pay Embraer, subject to the terms and conditions of
this Agreement, in United States dollars, the following prices:
1. The Aircraft Basic Price of [*] economic conditions, for each
Aircraft.
2. Buyer shall have in its sole discretion the right to purchase
up to [*] per Aircraft, with respect to Spares.
The specific price of each of the Spares items shall be [*] .
b. The Services are to be provided [*] All other services shall be
billed to Buyer in accordance with Embraer's prevailing rates
therefor.
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c. The Aircraft Basic Price shall be escalated according to the formula
contained in Attachment "D" and as set forth herein. Such price as
escalated shall be the Aircraft Purchase Price and it will be
provided to Buyer [*] prior to each Aircraft Contractual Delivery
Date.
4. PAYMENT
The prices specified in the previous Article shall be paid in cash, by
means of a wire transfer, on each Business Day specified below by Buyer as
follows for Firm Aircraft:
a. Aircraft
1. An initial deposit of [*] .
2. A [*] progress payment [*]is due and payable [*]prior to each
relevant Aircraft Contractual Delivery Date.
3. A [*] progress payment [*] is due and payable [*] prior to
each relevant Aircraft Contractual Delivery Date.
4. A [*] progress payment of each Aircraft Basic Price, is due
and payable [*] prior to each relevant Aircraft Contractual
Delivery Date.
5. The balance of each Aircraft Purchase Price, shall become due
and payable upon acceptance of each relevant Aircraft by
Buyer.
b. Spares:
1. [*] of the price of Spares for each Aircraft shall become due
and payable [*] prior to the relevant Aircraft Contractual
Delivery Date or the date of delivery of the Spares calculated
in accordance with Article 5.b[*].
2. [*] of the price of the Spares for each Aircraft shall become
due and payable upon delivery of the Spares items as set forth
in Article 5.b.
c. Late Payments and Termination for Failure to Make Payments:
Interest will accrue at a Rate of [*] on any amount not paid to
Embraer as set forth in Article 4.a and 4.b above from the date on
which such payments should have been made or as set forth therein
until the actual receipt by Embraer of such amounts. [*]In the event
Embraer does not receive any payment required by Articles 4.a and
4.b within [*] Embraer shall have the right to [*] Furthermore in
the event any payment referred to in Articles 4.a and 4.b is not
made when required,[*] and the Buyer fails to [*] Buyer shall [*]
pay Embraer[*]until the earlier of the termination of this Agreement
in accordance with Article 23.c or [*] .
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5. DELIVERY
a. AIRCRAFT: Subject to payment in accordance with Article 4 and the
provisions of Articles 4, 7 and 9, the Aircraft shall be offered for
delivery by Embraer to Buyer, by means of a notice, for inspection,
acceptance and subsequent delivery in F.A.F. (Fly Away Factory)
condition, at Sao ▇▇▇▇ dos ▇▇▇▇▇▇, State of Sao Paulo, Brazil,
according to the schedule set forth in Article 24 and subject to the
terms of that article.
b. SPARES: Subject to receipt by Embraer of the list of Spares selected
by Buyer from the IPL in accordance with Article 2.b, such items
shall be delivered by Embraer to Buyer in F.C.A. (Free Carrier -
INCOTERMS 1990) condition, at Sao ▇▇▇▇ dos ▇▇▇▇▇▇, State of Sao
Paulo, Brazil, or at any other port of clearance that Embraer may
identify to Buyer. The provision of Spares for each Aircraft shall
be delivered on the relevant Aircraft Actual Delivery Date. Should
Buyer not inform Embraer of [*], the Spares shall be [*] -
6. CERTIFICATION
On the Actual Delivery Date of an Aircraft, the EMB 145-LR aircraft shall
have valid and effective type certificates issued by the CTA and FAA. The
Aircraft shall also be delivered to Buyer with an export certificate of
airworthiness issued by CTA complying with the requirements of FAA
regulation ("FAR") Part 25 and the requirements of the FAA. The condition
of the Aircraft on delivery and the documentation delivered with the
Aircraft, including the above mentioned export certificate of
airworthiness, shall be sufficient to enable Buyer to obtain an FAR Part
25 certificate of airworthiness for the Aircraft. Subject to the above, it
shall be Buyer's responsibility to obtain such certificate of
airworthiness for the Aircraft, at Buyer's sole expense, although Embraer
will provide assistance if requested to do so, at Buyer's cost. [*]
7. ACCEPTANCE AND TRANSFER OF OWNERSHIP
a. Unless Embraer notifies Buyer otherwise, the Aircraft shall be
delivered in accordance with the provisions and schedules specified
in Article 5 herein. Embraer shall give Buyer [*] advance notice of
the date on which Embraer considers that each Aircraft will be ready
for delivery in the condition specified herein. Upon successful
completion of ground and flight tests performed by Embraer, Buyer
will receive a confirmation from Embraer of the day that the
Aircraft concerned is ready for inspection and will provide Buyer
within [*] notice of the date of such inspection.
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b. Buyer shall be allowed a reasonable period of time to conduct a
ground inspection and an acceptance flight or flights, if necessary
("Inspection") of each Aircraft prior to its delivery. [*] After
such acceptance flight and if Buyer accepts the Aircraft in
accordance with this Article 7, each Aircraft will be delivered by
Embraer to Buyer in accordance with Article 6 hereof [*].
c. Buyer shall accept the Aircraft provided, in the reasonable
determination of Buyer, the Aircraft meets the terms and conditions
of this Agreement. Immediately after such acceptance, Buyer shall
make the payments due, if any, according to Article 4 and accept
delivery of such Aircraft, whereupon [*] title and risk of loss will
be transferred to Buyer and Buyer shall execute the necessary title
and risk transfer documents required in order to effect title
transfer, including but not limited to an FAA form ▇▇▇▇ of Sale and
a Warranty ▇▇▇▇ of Sale substantially in the form attached hereto as
Schedule G. [*]
d. If Buyer declines to accept an Aircraft after its Inspection because
the Aircraft failed to meet the terms of this Agreement, Buyer shall
immediately give Embraer notice of all specific reasons for such
refusal and Embraer shall have [*] , commencing on the first
Business Day after receipt of such notice, to take all necessary
actions [*] in order to resubmit the Aircraft to Buyer for
re-inspection.
e. Buyer shall inspect the Aircraft, as provided for in Article 7.b.,
within [*] after [*] from Embraer that all necessary actions were
taken ("Reinspection"). All costs of such Reinspection [*]
f. Embraer shall ensure that the Spares for each Aircraft are available
for inspection by Buyer on or before the date of delivery in
accordance with Article 5.b. and shall notify Buyer of such
availability. Buyer shall be allowed to inspect the Spares to be
delivered in connection with each Aircraft. If Buyer finds such
Spares acceptable, Buyer shall be entitled, but not obligated, to
inspect the packing process, and if such an inspection is
conducted, Buyer shall thereupon give Embraer notice of acceptance
and receipt of Spares in question. If Buyer reasonably rejects
one or more of the Spares during such inspection as not conforming
to this Agreement, Embraer shall [*] Buyer's failure, including
but not limited to Buyer's refusal to perform the inspection or
acceptance of all their Spares after being notified of their
availability by Embraer, shall not prevent [*] In the event that
Buyer does not inspect the packing process as provided for
herein, [*]
g. Should Buyer fail to comply with the procedures specified in any of
the preceding items 7 (a) through 7 (e), Embraer shall not be held
liable for any delays in delivery resulting from such failure.
h. Should Buyer not perform its obligations in accordance with items
7(a) through 7(e) hereof within [*], Embraer shall be entitled to
[*] its obligations in accordance with items 7(a) through 7(e)
hereof,[*], Embraer shall be entitled to [*]
i. Buyer shall be permitted to delegate its duties in this Article 7
and in Article 5 as to the physical inspection, reinspection, and
acceptance and delivery of the Aircraft and Spares to its authorized
representative in the form attached hereto as Schedule F.
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j. In the event that Buyer has otherwise complied with provisions of
this Agreement, i) Buyer or Chautauqua has not received prior to
the relevant Aircraft Delivery Date a material portion of the
Services provided for in [*] or ii) a material portion of Spares
to be delivered pursuant to Article 5.b are not available for
delivery in connection with the relevant Aircraft (provided
Buyer has provided Embraer with the notice required by
Article 2.b); or iii) at lease one copy of each technical
publication referred to in Attachment B hereto is not available
for delivery to Buyer on the relevant Aircraft Delivery Date,
Buyer shall [*] until Buyer or Chautauqua receive a material
portion of the Services provided for in [*] and at least one copy
of each technical publication referred to in Attachment B hereto is
available for delivery to Buyer or Chautauqua or as otherwise
agreed to by the Parties. In the event an Aircraft delivery is
delayed by Buyer under the terms and conditons of this
Article 7.j,[*]
8. STORAGE CHARGE
a. A storage charge equal to [*] shall be charged by Embraer to Buyer
commencing on:
1. Buyer's failure to perform Inspection or Re-inspection of an
Aircraft, per the date or time period specified in writing by
Embraer, according to Article 7.
2. Buyer's acceptance of an Aircraft when Buyer defaults in the
fulfillment of any payment due and in taking title to such
Aircraft immediately thereafter.
3. Buyer's failure within [*] after title transfer to remove an
Aircraft from Embraer's facilities.
Storage charges shall end on the earlier of i) Buyer's and
Embraer's agreement to end such storage charge, ii) removal of
the relevant Aircraft from Embraer's facilities or iii) in the
event this Agreement with respect to such Aircraft is
terminated in accordance with Article 23.
If however, Buyer notifies Embraer in writing [*] in advance
of its expected delay in the performance of its obligations
set forth in this Article 8, the storage charge shall commence
[*] after the occurrence of the events set forth in this
Article 8.a.
b. In the event that an Aircraft Contractual Delivery Date must be
extended by Embraer from that which is designated in Article 5, due
to Buyer's failure to perform any action or provide any information
contemplated by this Agreement other than the ones specified in the
preceding items, and the Aircraft otherwise was to be delivered on
the Contractual Delivery Date, the storage charge shall commence [*]
after the Contractual Delivery Date relative to such Aircraft.
c. Buyer shall pay the storage charge set forth in Article 8.a. and
8.b., as applicable, per each month of delay or part thereof, within
[*] after the presentation of each invoice by Embraer.
9. DELAYS IN DELIVERY
a. EXCUSABLE DELAYS:
1. Embraer shall not be held liable or be found in default for
any delays in the delivery of an Aircraft or any Spares or in
the performance of any act to be performed by Embraer under
this Agreement, resulting from the following events or
occurrences, hereinafter referred to as "Excusable Delays":
(a) force
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majeure [*], (b) any delay to the extent resulting from any
failure by Buyer to perform any action or provide any
information contemplated by this Agreement.
2. Within [*] after the occurrence of any of the above mentioned
events which constitute causes of Excusable Delays in delivery
of an Aircraft or any Spares or in the performance of any act
to be performed by Embraer under this Agreement, Embraer shall
send a notice to Buyer, with a requested acknowledgment of
receipt, [*]
3. Any such delays shall extend the time for delivery of an
Aircraft or Spares by [*]. Embraer undertakes to [*] to avoid
or remove any such cause of delay [*]
4. If the cause of such Excusable Delay is such as to last longer
than [*] then Buyer shall have the option to terminate this
Agreement without liability to either party, in accordance
with Article 23.b.
b. NON-EXCUSABLE DELAYS:
1. If the delivery of an Aircraft or Spares is delayed, not as a
result of an Excusable Delay, by more than [*] after the
Contractual Delivery Date for such Aircraft or, in the case of
Spares, the date for delivery as agreed between the Parties in
accordance with Article 5.b., Buyer will be entitled to [*],
up to the date that the Aircraft is ready for delivery and
available to Buyer by means of confirmation of the successful
completion of ground and flight tests performed by Embraer, to
be provided per Article 7.a, [*]
2. The grace period of [*], granted by Buyer to Embraer as
mentioned herein shall prevail if Embraer provides notice to
Buyer advising the expected delay, provided that such
notice[*].
3. If, with respect to a delayed Aircraft or Spares, Embraer does
not receive notice [*] as mentioned in item "b.1" above, from
Buyer within [*] after the Delivery Date of such Aircraft, or
in the case of Spares, the date of delivery as agreed between
the Parties in accordance with Article 5.b., Buyer shall be
deemed to have fully waived its right to [*]
4. If as a result of[*]agreed to in writing by the parties[*]will
not apply [*]
5. Embraer hereby acknowledges that[*]inducement to Buye[*]it
hereby represents and warrants to[*]will not be[*]not be
considered a[*]In the event of Seller's breach of the
representation and warranty provided for herein, Buyer may
terminate this Agreement in accordance with Article 23.b.1.
and/or may seek damages for Embraer's breach in accordance
with Article 23.a.
c. DELAY DUE TO LOSS OR STRUCTURAL DAMAGE TO THE AIRCRAFT:
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Should any Aircraft be destroyed or damaged before acceptance by the
Buyer to the extent that it becomes commercially useless, Buyer may,
at its sole discretion take a replacement Aircraft under the same
terms and conditions of this Agreement at a later delivery date to
be agreed by the Parties. Within three (3) months after such loss,
Embraer will provide Buyer with a new delivery date for a
replacement Aircraft. If Buyer in its sole discretion rejects the
new delivery date after further consultation with Embraer on
scheduling the delivery of the Aircraft, it may terminate this
Agreement with respect to such Aircraft[*]In the event Embraer[*]
10. INSPECTION AND QUALITY CONTROL
a. Buyer is hereby permitted to have one or more authorized
representatives at Embraer's facilities for a period commencing [*]
prior to the Contractual Delivery Date of each Aircraft in order to
assure that the Aircraft, Spares and Services were developed in
accordance with the procedures specified in this Agreement and
according to all applicable quality control standards. Buyer may
communicate its concerns as to the production of the Aircraft and
Spares to Embraer.
b. Buyer shall communicate to Embraer the names of its authorized
representatives, by means of notice, at least fifteen (15) days
prior to the arrival of the authorized representatives. Buyer may
substitute authorized representatives, provided written notice is
given to Embraer fifteen (15) calendar days prior to effectivity.
c. Such representatives may also be authorized to sign the acceptance
and transfer of title and risk documents and accept delivery of the
Aircraft and Spares pursuant to Article 7.
d. With respect to this Article 10, Embraer shall provide for use in
accordance with the Agreement at no cost to Buyer, communication
facilities (telephone and facsimile) for Buyer's authorized
representatives, as well as the necessary tools, measuring devices,
test equipment and technical assistance as may be necessary to
perform acceptance tests.
e. Buyer's authorized representatives shall observe Embraer's
administrative rules and instructions while at Embraer's facilities,
and Buyer's representatives will be provided with all appropriate
rules and regulations upon arrival.
f. Buyer's authorized representatives shall be allowed exclusively in
those areas related to the subject matter hereof and Buyer agrees to
hold harmless Embraer from and against all and any kind of
liabilities in respect to such representatives, for whom Buyer is
solely and fully responsible under all circumstances and in any
instance except to the extent caused by the gross negligence or
willful misconduct of Embraer, its officers, directors, employees or
agents.
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11. CHANGES
a. At delivery each Aircraft will comply with the standards defined in
Attachment "A-1 or "A-2" as applicable and shall incorporate all
modifications which are classified as Airworthiness Directives
(AD's) mandatory by CTA or FAA and shall also at Delivery
incorporate any change agreed upon by Buyer and Embraer in
accordance with this Article 11.
b. [*]
c. Embraer may make changes in the design of the Aircraft, the
definition of which and its respective classification shall be in
compliance to the Aircraft type specification, as follows:
1. MINOR CHANGES: defined as those modifications which shall not
adversely affect the Aircraft in any of the following:
[*]
2. MAJOR CHANGES: defined as those modifications which affect at
least one of the topics mentioned in item "c.1." above.
d. Embraer shall have the right, without the prior consent of Buyer, to
make Minor Changes, as referred to in item "c.1" above, in the
design of the Aircraft. The costs of any such changes shall be borne
by Embraer.
e. Major Changes as referred to in item "c.2." above which are
classified as AD's mandatory by CTA and or FAA shall be conveyed to
Buyer by means of Service Bulletins, approved by said authorities.
Incorporation of such Service Bulletins in all Aircraft and Spares
yet to be delivered to Buyer will be made by Embraer at Embraer's
own costs, in a commercially reasonable period of time. For all
mandatory AD issued by the FAA and or CTA [*] , Embraer shall [*]
Buyer shall incorporate [*] in the Aircraft airframe [*] the
Aircraft systems), [*] When flight safety is affected, such changes
will be immediately incorporated.
Whenever warranty coverage is not available or applicable, item "e"
of this Article 11 shall apply. [*] In the event of delay caused by
incorporation of Embraer AD's, [*]
Embraer shall not be held liable for any delays in the Aircraft
Contractual Delivery Date resulting from the execution of any change
classified as mandatory by CTA or FAA when the Aircraft shall have
already passed the specific production stage affected by the
incorporation of said change. In the event that an AD is issued by
the CTA or FAA prior to delivery [*] Embraer will [*].
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f. Major Changes (other than those which are AD's mandatory per item
"e" above), any change developed by Embraer as product improvement,
and any change requested by Buyer which are either Major or Minor ,
including those changes required by FAA as a consequence of [*]
shall be considered as optional and, pursuant to Buyer's request,
the corresponding cost proposals shall be submitted by Embraer to
Buyer for consideration and approval. Should Buyer not approve any
such change, it shall not be incorporated in the Aircraft.
g. Any change made by Embraer in accordance with the preceding items
which affects the provisions of Attachment "A", shall be
incorporated in said Attachment by means of an amendment. The
amendment shall be submitted to Buyer for signature thirty (30) days
prior to the relevant Aircraft Contractual Delivery Date, a copy of
which shall be received by Embraer, duly signed, prior to such
Aircraft Actual Delivery Date.
Except[*], should an Aircraft not comply with the terms and
conditions of Attachment "A-1" or "A-2" as applicable, Buyer shall
be entitled to either [*]
12. WARRANTY
The Aircraft and Spares will be warranted in accordance with the terms and
conditions specified in Attachment "C". The warranty may not be assigned
except as permitted by Article 16.
13. TECHNICAL ASSISTANCE SERVICES
a. Familiarization and technical support programs specified below are
being offered at no charge to Buyer unless otherwise specified,
except for the expenses involved with travel and lodging of
Chautauqua's trainees, which shall be borne by Buyer or Chautauqua.
Such familiarization and technical support programs shall be in
accordance with Embraer's training syllabus.
b. Notwithstanding the use of the term "training" in this Article 13 or
in the Agreement, the intent of the Services is solely to
familiarize Chautauqua's pilots, mechanics, employees or
representatives, duly qualified per the governing body in the United
Sates of America, with the operation and maintenance of the
Aircraft. It is not the intent of Embraer to provide basic training
("Ab-initio") to any representatives of Chautauqua.
c. The Services, as applicable, shall be provided prior [*] Chautauqua
must give notice to Embraer one-hundred and twenty (120) days in
advance of its expected training schedule. Should Buyer or
Chautauqua not take all or any portion of the Services on or before
the delivery of Buyer's last Aircraft, Buyer and Chautauqua shall be
deemed to have fully waived their rights to such service. No other
penalty or indemnity shall be due from Embraer in this case.
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d. All Services shall be provided by Embraer or its qualified
designated representative at Embraer's facilities at Fort
Lauderdale, Florida, USA, or at such other location as Embraer shall
reasonably designate in the United States, except that flight
training may also be designated by Embraer to occur in Brazil if it
cannot reasonably occur in the United States.
e. The Services in regard to the Firm Aircraft shall include:
1. One (1) Pilot Familiarization Program [*] including ground
familiarization as regards Aircraft systems, weight and
balance, performance and normal/emergency procedures; Flight
simulator training in accordance with Chautauqua's approved
Flight Operations Training Program, up to, but not exceeding
the equivalent training in Level C simulator.
2. One (1) Maintenance Familiarization Course [*] . This course
shall consist of classroom familiarization with Aircraft
systems and structures and shall be in accordance with ATA
specification 104, level III.
3. One (1) Flight Attendant Familiarization Course [*] . This
course shall consist of classroom familiarization, including a
general description of Aircraft and systems to be used by
flight attendants if requested, Embraer may demonstrate
procedures described in the classroom, subject to Buyer's
Aircraft availability.
4. [*] selected by Embraer in its sole discretion shall [*] but
limited to [*] in order to [*] The presence of [*] Thereafter,
every time Buyer requests the placement of an Embraer
technical representative at Chautauqua's installations,
Embraer will charge Buyer according to Embraer's price list
per month per each such Embraer technical representative's
presence. At no charge to Embraer, Buyer shall insure and
require Chautauqua to provide such representative with
reasonable communication facilities (telephone and facsimile)
as well as office space and facilities at the maintenance
base(s) of Chautauqua. Buyer shall also cause Chautauqua to
(a) arrange all necessary work permits and airport security
clearances required for Embraer employees, to permit the
accomplishment of the services mentioned in this item "4", in
due time; and (b) obtain all necessary custom clearances both
to enter and depart from the United States for Embraer's
employees and their personal belongings and professional
tools. During the stay of the Embraer's technical
representative at Chautauqua's base, Buyer shall cause
Chautauqua to permit access to the maintenance and operation
facilities as well as to the data and files of Chautauqua's
fleet of aircraft to the extent necessary to perform its
obligations hereunder. [*] Buyer shall cause Chautauqua to
make available at the office designated for the technical
representative, one (1) set of updated Technical Publications
referred to in Article 15, and it shall be Chautauqua's
responsibility to perform the revision services in order to
maintain such publications updated during the technical
representative's stay at Chautauqua's base. Buyer shall bear
all expenses
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related to the transportation, board & lodging of Embraer
representative when such representative shall render the
services specified herein in any place other than Chautauqua's
main maintenance base.
Without a previous written authorization from Embraer, Embraer
technical representatives shall not participate in test
flights or flight demonstrations. If Chautauqua obtains such
authorization, Chautauqua shall include the technical
representative in Chautauqua's insurance policy. Embraer
reserves the right to stop the services mentioned in this item
"4", should any of the following situations occur at
Chautauqua's base: a) there is a declared strike in progress;
b) war or war like operations, riots or insurrections; c) any
condition which is dangerous to the safety or health of
Embraer's employee; or d) the government of the United States
refuses permission to Embraer's employee to enter the country.
f. If Buyer or Chautauqua elects not to take all or any portion of the
Services, [*]. Any other additional services shall depend on
subsequent agreement and shall be charged by Embraer accordingly.
g. Buyer and Chautauqua's authorized trainees and representatives at
Embraer's facilities shall be allowed exclusively in those areas
related to the subject matter hereof and Buyer agrees to, and to
cause the relevant Designated Operator to, hold harmless Embraer
from and against all and any kind of liabilities in respect of such
trainees and representatives for whom Buyer and Chautauqua, as the
case may be, are solely and fully responsible under all
circumstances, except to the extent [*].
14. SPARE PARTS POLICY
[*] Such spare parts and ground support equipment shall be supplied
according to the prevailing availability, sale conditions, delivery
schedule and effective price on the date of acceptance by Embraer of the
purchase order. The spare parts and ground support equipment may be
supplied either by Embraer or through its subsidiaries or branch offices
located abroad.
15. PUBLICATIONS
a. AIRCRAFT PUBLICATIONS - Embraer has supplied, [*] copies of
operational and maintenance publications applicable thereto, in the
English language and in the quantities as specified in item "3" of
Attachment "B", other than those to be supplied by Embraer together
with each Aircraft at delivery. Such publications are issued under
the applicable specification and are available in hard copies [*]
and subsequently at a nominal fee. Such publications, to the extent
not previously supplied by Embraer, will be delivered together with
the Aircraft.
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b. VENDOR ITEMS PUBLICATIONS - With respect to vendor items installed
in the Aircraft which have their own publications, Chautauqua will
receive them in the quantity specified in item "3" of Attachment
"B", in their original content and printed form, directly from the
suppliers, which are also responsible to keep them continuously
updated through a direct communication system with Chautauqua.
16. ASSIGNMENT AND GUARANTEE
a. Buyer or Chautauqua may request, and Embraer will take, any action
reasonably necessary for the purpose of causing an Aircraft and
Spares at the time of delivery to be subject to an equipment trust
conditional sale, lien or other arrangement for the initial
financing of the Aircraft and Spares in connection with the delivery
of such Aircraft and Spares to Chautauqua.
b. Except as expressly permitted by this Article 16, Buyer's rights and
obligations hereunder may not be assigned, conveyed, subcontracted,
transferred or delegated, without Embraer's prior written consent.
c. Chautauqua shall guarantee the obligations of Buyer hereunder
pursuant to a guarantee in the form attached hereto as Attachment H,
and it shall be a breach of this Agreement by Buyer if such
guarantee is at any time not effective in accordance with its terms
or if Chautauqua breaches, defaults, or fails to perform under such
guarantee.
17. RESTRICTIONS AND PATENT INDEMNITY
This sale does not include the transfer of designs, copyrights, patents,
and other similar rights to Buyer. Subject to Buyer's or Chautauqua's duty
to promptly advise Embraer of any alleged copyright or patent
infringement, Embraer shall indemnify, defend, protect and hold Buyer and
Chautauqua (including respective officers, controlling persons, employees
and directors) harmless with respect to any claims, suits actions,
judgments, liabilities, damages and costs, including reasonable attorney
fees, made against it or them if the Aircraft or Spares with Embraer part
numbers infringes copyright patents or the proprietary rights of others.
In such event Embraer shall to the extent necessary and as promptly as
possible at its sole option and expense either
(i) procure for Buyer or Chautauqua the right under patent to use the
system, accessory or equipment or part;
(ii) replace such system accessory, equipment or part with such
non-infringing item or part; or
(iii) modify such system, accessory, equipment or part to make it
non-infringing.
Page 16 of 31
18. MARKETING PROMOTIONAL RIGHTS
Embraer shall have the right to show for marketing purposes, free of any
charge, the image of the Aircraft, painted with Buyer's colors and emblems
or the colors and emblems of Chautauqua, affixed in photographs, drawings,
films, slides, audiovisual works, models or any other medium of expression
(pictorial, graphic, and sculptural works), through all mass
communications media such as billboards, magazines, newspaper, television,
movie, theaters, as well as in posters, catalogues, models and all other
kinds of promotional material. In the event such Aircraft is sold to or
operated by or for another company or person, Embraer shall be entitled to
disclose such fact, as well as to continue to show the image of the
Aircraft, free of any charge, for marketing purposes, either with the
original or the new colors and emblems, unless otherwise notified by Buyer
or Chautauqua, provided that such notification shall be subject to the
reasonable satisfaction and agreement of Embraer. If accepted, said
prohibition, however, shall in no way apply to the promotional materials
or pictorial, graphic or sculptural works already existing or to any
contract for the display of such materials or works already binding
Embraer at the time of receipt of the notification. The provisions of this
Article shall be included in all future sales or lease agreements
concerning the Aircraft.
19. TAXES
Embraer shall pay all taxes [*] All other taxes ([*]), impost, fees,
withholding taxes, stamp taxes, documentary taxes and any other similar or
dissimilar taxes, as well as any duties as may be imposed on the sale
subject of this Agreement ("Taxes"), shall be borne by Buyer. [*]
20. APPLICABLE LAW
This Agreement, and the rights and obligations of the Parties hereunder,
shall in all respects be governed by, and construed and interpreted in
accordance with, the laws of the State of New York (excluding conflicts of
law principles), and including all matters of construction, validity and
performance.
21. ARBITRATION
a. The Parties each irrevocably submit to the exclusive jurisdiction of
arbitration and expressly and irrevocably waive its right to bring
suit against the other party in any court of law except for the
limited purposes of enforcing an arbitral award obtained with
respect to a dispute, or for obtaining any injunctive, temporary or
preventative order or similar order available to it under the laws
of any jurisdiction for a breach or threatened breach by the other
party of this Agreement which threatens irreparable damage.
b. Any dispute submitted for arbitration must be finally settled by
binding and confidential arbitration according to the Rules of the
American Arbitration
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Association (the "Rules"), except as may be modified by mutual
agreement of Embraer and Buyer. The arbitration, including the
rendering of the award, will be conducted by arbitrators (selected
as set forth below) who are fluent in the English language. The
arbitration proceeding will be conducted with discovery in
accordance with the Federal Rules of Civil Procedure. The
arbitrators will be appointed in accordance with the Rules except as
otherwise provided for herein. The arbitration proceedings will take
place in New York, New York, and will be conducted in the English
language.
c. The Arbitrator will be selected as follows: within fifteen (15)
Business Days of the referral of any matter to arbitration, each
party will select an arbitrator. Thereafter, within fifteen (15)
Business Days of each party's selection of an arbitrator, the two
arbitrators selected by the Parties shall meet to select a mutually
agreeable third arbitrator. In the event a party fails to select an
arbitrator with in the time period specified above, the party that
has timely complied with the selection of an arbitrator shall select
a second arbitrator. These two arbitrators shall within seven (7)
Business Days after the time in which the other party should have
selected an arbitrator, meet to select a mutually agreeable third
arbitrator. These three arbitrators shall comprise the arbitral
panel and all arbitral proceedings shall be conducted in the
presence of all three arbitrators.
d. If there is a dispute submitted to arbitration, any subsequent
additional disputes referred for arbitration (including
counterclaims between the parties) will be consolidated in the same
arbitration proceeding.
e. The arbitral proceeding will not exceed one hundred (100) days
commencing on the date the last arbitrator accepts his or her
appointment. If the arbitral award is not issued within this time,
then the arbitration proceeding will be automatically renewed for
another one hundred (100) days. Evidence may not be taken in the
arbitral proceeding except in the presence of both parties and all
witnesses, if any , may be questioned by both parties. The only
evidence which may be considered by the arbitrators in reaching
their decision is that which is otherwise admissible in accordance
with the then current United States Federal Rules of Evidence.
f. Any decision or award of the arbitrators must be based solely on the
terms of this Agreement and the substantive governing law applicable
to this Agreement. The decision of the arbitrators must be issued in
writing with an explanation of its reasoning, and will be final and
conclusive when issued. Judgment upon the award rendered in the
arbitration may be entered and enforced by the Court specified in
Article 21.g. hereof.
g. Each party irrevocably submits to the exclusive jurisdiction of the
United States District Court for the Southern District of New York
sitting in the County of New York for purposes of enforcing any
arbitral award or for other legal proceedings arising out of this
Agreement or any transactions contemplated in this Agreement as
provided for herein. However nothing contained in this Agreement
shall be deemed to prevent either party from enforcing any decision
of the United States District
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Court for the Southern District of New York sitting in the County of
New York for purposes of enforcing or collecting any such award in
any court or jurisdiction as such party deems necessary or prudent.
h. Each party shall bear its own costs and expenses of arbitration. The
parties shall share equally the costs, expenses and fees of any
arbitral panel designated pursuant to this Agreement.
22. SOVEREIGN IMMUNITY, VENUE AND FORUM NON CONVENIENCE
Embraer, under the laws of the United States or of any other jurisdiction
affecting Embraer, is subject to private commercial law and suit, and is
not entitled to sovereign immunity under any such laws, for its
performance of its obligations under this Agreement. Embraer's performance
of its obligations hereunder constitute commercial acts done for
commercial purposes. The parties hereto furthermore waive to the extent
permitted by law any objections to venue of the United States District
Court for the Southern District of New York sitting in the County of New
York for purposes of enforcing any arbitral award and any right or claim
to any transfer or dismissal of any enforcement proceeding in the United
States District Court for the Southern District of New York sitting in the
County of New York on the grounds of forum non convenience.
23. TERMINATION
a. Should either party fail to comply partially or completely with its
obligations hereunder, the other party shall be entitled to give notice of
such failure and to require that such failure be remedied within the
period specified in that notice, which period shall not be less than [*]
Should such failure not be remedied within the period so specified, then
the party who gave notice of such failure shall be entitled to terminate
this Agreement. Should termination occur in accordance with the foregoing,
the defaulting party shall pay to the non-defaulting party, as damages, an
amount determined by agreement or by law. The foregoing provision shall
not apply in any circumstance where a specific right of termination is
available or will be available upon the expiration of a specific period of
time whether or not such termination rights are exercised, except with
respect to Buyer's right to terminate this Agreement in accordance with
Article 23.b in case of termination for a Non-excusable delay of [*] or
longer [*].
b. Buyer shall have the right but not the obligation to terminate this
Agreement in respect to the relevant Aircraft, upon the occurrence of any
Excusable Delay in accordance with Article 9.a.4 of [*] or longer,
impossibility as provided for in Article 9.a.4, or any non-excusable delay
in accordance with Article 9.b.1 [*] or longer after such Aircraft
Contractual Delivery Date, such right to be exercisable by notice from
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Buyer to Embraer to such effect no earlier than [*] or in the event of
impossibility, reasonably thereafter, as applicable. Upon receipt of such
notice of termination, Embraer shall, within [*] after Embraer receives
the notice referred to above, return to Buyer an amount equal to the
amounts previously paid by Buyer relative to the relevant Aircraft
[*] in effect as of the time such amounts were paid, less the value of
equipment and services previously delivered or performed by Embraer
with respect to such terminated Aircraft valued in accordance with
Embraer's list price for such equipment and services at time of such
termination in accordance with this Article 23.b. In the event the
equipment referred to above in the immediately preceding sentence has not
been used, it may be returned to Embraer at the Buyer's sole cost and
expense and subject to Embraer's reasonable right to inspect such
equipment, and in the event of such return and acceptance of the condition
of the equipment, the value of such returned equipment shall not be
deducted from the amounts payable by Embraer as provided for above. No
other penalty or indemnity shall be due from Embraer in this case, except
in the case of a termination for a Non-Excusable Delay of [*] or longer
[*]. In the event Embraer fails to return the deposits and progress
payments [*] to Buyer as provided for herein, Embraer shall also pay to
Buyer [*] on such outstanding amounts not paid by Embraer from the date on
which such payments were to have been made until receipt by Buyer.
b.1 In the event that Embraer breaches the representations and warranties
contained in Article 9.b.5 Buyer may terminate this entire Agreement and
Embraer will return to the Buyer an amount equal to the amounts previously
paid by Buyer relative to the undelivered terminated Aircraft [*] in
effect as of the time such amounts were paid, less the value of
equipment and services previously delivered or performed by Embraer
with respect to such terminated Aircraft valued in accordance with
Embraer's list price for such equipment and services at time of such
termination in accordance with this Article 23.b.1. In the event the
equipment referred to above in the immediately preceding sentence has not
been used, it may be returned to Embraer at the Buyer's sole cost and
expense and subject to Embraer's reasonable right to inspect such
equipment, and in the event of such return and acceptance of the condition
of the equipment, the value of such returned equipment shall not be
deducted from the amounts payable by Embraer as provided for above. In the
event Embraer fails to return the deposits and progress payments with
accumulated interest to Buyer as provided for herein, Embraer shall also
pay to Buyer [*] on such outstanding amounts not paid by Embraer from the
date on which such payments were to have been made until receipt by Buyer.
In addition to and not in lieu of this remedy [*].
c. If Buyer terminates this Agreement before an Aircraft Actual Delivery
Date for any reason not attributable to Embraer's default under this
Agreement or, if Embraer terminates this Agreement as to any Aircraft or
in its entirety pursuant to Article 7.h., Article 4.c. or Article 27,
Buyer shall pay to Embraer [*].
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and shall indemnify Embraer for the value of equipment and
services previously delivered and/or performed by Embraer and for the
reasonable costs and expenses of reconfiguring Aircraft for sale to
another customer. Such costs and expenses shall be based on Embraer's
then prevailing price list. For these purposes Embraer may, in its sole
discretion, retain all amounts previously paid by Buyer to apply as part
of the payments of the damages resulting from such default on the part of
Buyer.
d. If Buyer terminates this Agreement in respect to an Aircraft or all
Aircraft, as the case may be, pursuant to Articles 9.c or 11.h , Embraer,
upon Buyer's request, shall within [*] after Embraer receives the notice
of termination referred to above, return to Buyer all amounts previously
paid by Buyer with respect to the relevant Aircraft [*] in effect on the
date of receipt of such amounts. No other penalty or indemnity shall
be due from Embraer in this case. In the event Embraer fails to return
the deposits and progress payments [*] to Buyer as provided for herein,
Embraer shall also pay to Buyer [*] on such outstanding amounts not paid
by Embraer from the date on which such payments were to have been made
until receipt by Buyer.
e. In the case of a termination of this Agreement or as to any Aircraft,
the indemnities set forth in Articles 17 and 25 of this Agreement and the
warranty as provided for in Attachment C hereto and as such warranty may
have been assigned pursuant to Article16.a with respect to any delivered
Aircraft and Spares shall survive the termination of this Agreement or the
termination of this Agreement with respect to one or more Aircraft.
24. OPTION FOR THE PURCHASE OF ADDITIONAL EMB-145 AIRCRAFT
Buyer shall have the option to purchase the Option Aircraft, to be
delivered in accordance with the chart below, subject to the terms and
conditions of this Article 24:
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Under no circumstances shall Buyer be obligated to accept Aircraft more than
seven (7) Business Days prior to the relevant Contractual Delivery Date.
The Option Aircraft shall [*] into [*] groups of [*] aircraft and [*] of
[*] aircraft. The groups shall be referred to collectively as the "Options
Groups" and each may be referred to individually as an "Option Group".
a. INITIAL DEPOSIT: A [*] deposit of [*] per Option Aircraft is due and
payable [*]
b. BASIC PRICE: The unit basic price of each Option Aircraft shall be
equal to [*] unless otherwise modified by the Parties and the costs
for such changes shall be in addition to the Basic Price.
c. ESCALATION: The unit basic price of each relevant Option Aircraft
shall be escalated according to Attachment "D".
d. DEPOSIT AND PROGRESS PAYMENTS: The payment of the price specified in
item "b" above, shall be made according to the following:
1. The initial deposit of [*] per Option Aircraft, to be made by
Buyer according to Article 24.a, shall [*]
2. A progress payment of [*] of the unit basic price defined in
item "b" above, per exercised Option Aircraft, less the
initial deposit received for each such Option Aircraft is due
and payable [*]
3. A progress payment of [*] of the unit basic price defined in
item "b" above is due and payable [*]
4. A progress payment of [*] of the unit basic price defined in
item "b" above is due and payable [*]
5. The balance of each relevant Option Aircraft escalated price
is due and payable upon acceptance of each relevant Aircraft
by Buyer.
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e. CONFIRMATION OF OPTION [*] Buyer's options to purchase [*] shall be
confirmed on or before [*] prior to the delivery date of the first
Option Aircraft [*], provided that [*] At the time of such
confirmation, [*]
f. FAILURE TO CONFIRM; [*] If Buyer fails to confirm [*] as provided
in item "e", Buyer shall have no right to acquire the Option
Aircraft [*] and the relevant portion of the deposit made according
to item "d.1" above, if any, shall be [*] after Buyer's failure to
confirm, renunciation of, or failure to obtain, [*] commencing on
the date [*] In the event Embraer fails to [*].
g. SERVICES: The services Embraer will provide pursuant to Article 13
in regard to the Option Aircraft which will be delivered pursuant
to this Article 24 shall be in accordance with Article 13.e.1 - 4
above.
25. INDEMNITY
Buyer agrees to indemnify and hold harmless Embraer and Embraer's
officers, agents, employees and assignees from and against all
liabilities, damages, losses, judgments, claims and suits, including costs
and expenses incident thereto, which may be suffered by, accrued against,
be charged to or recoverable from Embraer and/or Embraer's officers,
agents, employees and assignees by reason of loss or damage to property or
by reason of injury or death of any person (excluding Embraer's officers,
directors, employees or agents) resulting from or in any way connected
with the performance of services by employees, representatives or agents
of Embraer for or on behalf of Buyer related to Aircraft delivered by
Embraer to Buyer or Chautauqua, including, but not limited to, technical
operations, maintenance, and training services and assistance performed
while on the premises of Embraer, Chautauqua, or Buyer, while in flight on
Aircraft after Actual Delivery or while performing any other service, at
any place, in conjunction with the Aircraft [*].
26. NOTICES
All notices permitted or required hereunder shall be in writing in the
English language and sent, by registered mail, express courier or
facsimile, to the attention of the Director of Contracts as to Embraer and
of the President as to Buyer, to the addresses indicated below or to such
other address as either party may, by written notice, designate to the
other. In the event notice is issued by registered mail or express
courier, it shall be deemed received on the day on which the party
receiving such notice executes the delivery receipt . In the event notice
is issued by facsimile, it shall be deemed received on the day on which
the sender of such notice receives a facsimile confirmation receipt of
such facsimile notice.
a. Embraer:
EMBRAER - Empresa Brasileira de Aeronautica S.A.
▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
12.227-901 Sao ▇▇▇▇ dos ▇▇▇▇▇▇ - SP
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BRAZIL
Attention: Director of Contracts
Telephone: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
Page 24 of 31
b. Buyer
Republic Airways Holdings, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a Copy to:
Wexford Capital LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
27. CONFIDENTIALITY
Neither Party shall have the right to disclose the terms of this Agreement
except as required by law. To the fullest extent permitted by law, except
as aforesaid, neither Party shall disclose any portion of this Agreement
or its Attachments, amendments or any other supplement, to any third
party, other than to its accountants, attorneys, agents, consultants or
permitted assignees without the other Party's prior written consent, and
any such accountants, attorneys, agents consultants or permitted assignees
shall agree in writing to be bound by the terms of this Article 27.
Without limiting the foregoing, in the event either Party is legally
required to disclose the terms of this Agreement, the Parties agree to
exert their reasonable best efforts to request confidential treatment of
the clauses and conditions of this Agreement relevantly designated by
either Party as confidential. Without limiting its obligations pursuant to
the preceding sentence, Buyer agrees that if it is required, in the
opinion of counsel, to file publicly or otherwise disclose the terms of
this Agreement under applicable federal and/or state securities or other
laws, it shall promptly (but in no case less than ten (10) Business Days
prior to the proposed filing in question) notify Embraer so that Embraer
has a reasonable opportunity to contest or limit the scope of such
required disclosure, and Buyer shall request, and shall use its best
reasonable efforts to obtain, confidential treatment for such sections of
this Agreement as Embraer may designate. Buyer further agrees that it
shall not in any circumstances file publicly or otherwise disclose the
terms of this Agreement under applicable federal and/or state securities
or other laws if it has not complied with its obligations pursuant to the
previous sentence. Embraer shall have the right to
Page 25 of 31
terminate this Agreement pursuant to Article 23.c if Buyer fails to comply
with its obligations pursuant to the previous two sentences (e.g., to
notify Embraer that Buyer is required to file or otherwise disclose terms
of this Agreement, to request and use its best reasonable efforts to
obtain confidential treatment of sections designated by Embraer as
confidential, or to file publicly or otherwise disclose the terms of this
Agreement if it has not complied with its obligations).
28. INTEGRATED AGREEMENT
All Attachments referred to in this Agreement and attached hereto are, by
such reference and attachment, incorporated in this Agreement. This
Agreement, including all Attachments and all amendments, modifications and
supplements, is herein and hereinafter called the "Agreement" or the
"Purchase Agreement".
29. NEGOTIATED AGREEMENT
This Agreement, including all of its Attachments, has been the subject of
discussion and negotiation and is fully understood by the Parties, and the
rights, obligations and other agreements of the Parties contained in this
Agreement are the result of complete discussion and negotiation between
the Parties.
30. COUNTERPARTS
This Agreement may be signed by the Parties in any number of separate
counterparts with the same effect as if the signatures thereto and hereto
were upon the same instrument and all of which when taken together shall
constitute one and the same instrument.
31. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the Parties with
respect to the sale described as its subject and supersedes all previous
and connected negotiations, representations and agreements between the
Parties. This Agreement may not be altered, amended or supplemented except
by a written instrument executed by the Parties.
32. NO WAIVER
Any Party's forbearance from exercising any claim or remedy provided for
herein shall not be deemed a waiver of such claim or remedy, and shall not
relieve the other Party from the performance of such obligation at any
subsequent time or from the performance of any of its other obligations
hereunder. Buyer acknowledges that Embraer has not waived any rights it
may have against Buyer, Chautauqua or Solitair Corp., arising out of any
acts before the date this Purchase Agreement becomes effective.
Page 26 of 31
33. REPRESENTATIONS AND WARRANTIES
A. Effective as of the date of this Agreement and as of the Actual
Delivery Date of each Aircraft, Embraer represents and warrants
that:
1. Embraer is a corporation duly organized, validly existing and
in good standing under the laws of Brazil, is the manufacturer
of the EMB-145LR model aircraft and has all necessary
corporate power and authority to conduct the business in which
it is currently engaged and to enter into and perform its
obligations under this Agreement.
2. Embraer has taken, or caused to be taken, all necessary
corporate action to authorize the execution and delivery of
this Agreement and the performance of its obligations
hereunder.
3. The execution and delivery by Embraer of this Agreement, the
performance by Embraer of its obligations hereunder and the
consummation by Embraer of the transactions contemplated
hereby, do not and will not (A) violate or conflict with any
provision of the constitutional documents of Embraer, (B)
violate or conflict with any law, rule, or regulation
applicable to or binding on Embraer or (C) violate or
constitute any breach or default (other than a breach or
default that would not (x) result in a material adverse change
to Embraer or (y) adversely affect Embraer's ability to
perform any of its obligations hereunder),under any agreement,
instrument or document to which Embraer is a party or by which
Embraer or any of its properties is or may be bound or
affected.
4. The execution and delivery by Embraer of this Agreement, the
performance by Embraer of its obligations hereunder and the
consummation by Embraer of the transactions contemplated
hereby do not and will not require the consent, approval or
authorization of, or the giving of notice to, or the
registration with, or the recording or filing of any documents
with, or the taking of any other action in respect of, (A) any
trustee or other holder of any indebtedness or obligation of
Embraer, (B) any national, state or municipal government
regulatory, judicial, or administrative entity of competent
jurisdiction, or (C) any other party.
5. This Agreement has been duly authorized, executed and
delivered by Embraer and, assuming the due authorization,
execution and delivery hereof by the other Party constitutes
the legal, valid and binding obligation of Embraer enforceable
against Embraer in accordance with the terms hereof, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar
laws affecting the rights of creditors generally and general
principles of equity, whether considered in a proceeding at
law or in equity.
Page 27 of 31
6. Each of the foregoing representations and warranties shall
survive the execution and delivery of this Agreement and any
termination hereof.
B. Effective as of the date of this Agreement and as of the Actual
Delivery Date of each Aircraft, Buyer represents and warrants that:
1. Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has
all necessary corporate power and authority to conduct the
business in which it is currently engaged and to enter into
and perform its obligations under this Agreement.
2. Buyer has taken, or caused to be taken, all necessary
corporate action to authorize the execution and delivery of
this Agreement and the performance of its obligations
hereunder.
3. The execution and delivery by Buyer of this Agreement, the
performance by Buyer of its obligations hereunder and the
consummation by Buyer of the transactions contemplated hereby,
do not and will not (A) violate or conflict with any provision
of the constitutional documents of Buyer, (B) violate or
conflict with any law, rule, or regulation applicable to or
binding on Buyer or (C) violate or constitute any breach or
default (other than a breach or default that would not (x)
result in a material adverse change to Buyer or (y) adversely
affect Buyer's ability to perform any of its obligations
hereunder),under any agreement, instrument or document to
which Buyer is a party or by which Buyer or any of its
properties is or may be bound or affected.
4. The execution and delivery by Buyer of this Agreement, the
performance by Buyer of its obligations hereunder and the
consummation by Buyer of the transactions contemplated hereby
do not and will not require the consent, approval or
authorization of, or the giving of notice to, or the
registration with, or the recording or filing of any documents
with, or the taking of any other action in respect of, (A) any
trustee or other holder of any indebtedness or obligation of
Buyer, (B) any national, federal, state or local government
regulatory, judicial, or administrative entity of competent
jurisdiction (other than recordation of the Aircraft with FAA)
or (C) any other party.
5. This Agreement has been duly authorized, executed and
delivered by Buyer and, assuming the due authorization,
execution and delivery hereof by the other Party constitutes
the legal, valid and binding obligation of Buyer enforceable
against Buyer in accordance with the terms hereof, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization, receivership, moratorium and other similar
laws affecting the rights of creditors generally and general
principles of equity, whether considered in a proceeding at
law or in equity.
6. Each of the foregoing representations and warranties shall
survive the execution and delivery of this Agreement and any
termination hereof.
Page 28 of 31
34. EFFECTIVENESS
A. This Agreement shall become effective at the time all of the following
events have occurred: (a) it is signed by an authorized officer of Buyer
and executed by two authorized officers of Embraer; (b) Buyer shall have
either (x) issued shares pursuant to its public offering, which is now
contemplated to occur during the month of May, 2002, or (y) notified
Embraer in writing that the Agreement shall become effective immediately;
and (c) the assignment by Solitair Corp. to Buyer shall have become
effective.
B. At the time this Agreement becomes effective, neither Buyer nor Embraer
shall have any rights or obligations to the other pursuant to the Original
Purchase Agreement except as expressly restated herein.
C. If this Agreement becomes effective on or before Friday, April 26,
2002, the delivery schedule for the Option Aircraft shall be deleted and
replaced with the following schedule:
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[*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] Sep 02 [*] [*] [*]
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[*] [*] Oct 03
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In this case, Buyer's obligations pursuant to Article 24.e shall be
limited until [*] , as provided in this paragraph. Notwithstanding
anything to the contrary in Article 24.e,
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* Confidential
Page 29 of 31
Buyer shall be required to confirm its options for [*] provided that on
[*] , Buyer's obligations pursuant to Article 24.e shall come into full
force and effect.
D. If this Agreement does not become effective after Friday, April 26,
2002, but becomes effective on or before [*] , the Option Aircraft shall
be deleted and replaced with the following schedule:
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[*]
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[*] [*] [*] [*] [*] [*]
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[*] [*] Oct 02 [*] [*] [*]
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In this case, Buyer's obligations pursuant to Article 24.e shall be limited
until [*] , as provided in this paragraph. Notwithstanding anything to the
contrary in Article 24.e, Buyer shall be required to confirm its options for [*]
provided that on [*], Buyer's obligations pursuant to Article 24.e shall come
into full force and effect.
E.If this Agreement does not become effective on or before [*] , this
Agreement shall be null and void.
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* Confidential
Page 30 of 31
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed
and delivered by their proper and duly authorized officers and to be effective
as of the day and year first above written.
EMBRAER - EMPRESA BRASILEIRA REPUBLIC AIRWAYS HOLDINGS, INC.
DE AERONAUTICA S.A.
By: By:
-------------------------- -----------------------------
Name: Name:
------------------------ ---------------------------
Title: Title:
----------------------- --------------------------
By:
--------------------------
Name:
------------------------
Title:
-----------------------
Date: Date:
------------------------ ---------------------------
Place: Place:
----------------------- --------------------------
Witness: Witness:
--------------------- ------------------------
Name: Name:
------------------------ ---------------------------
Page 31 of 31
ATTACHMENT "A-1"
AIRCRAFT UNDER US AIRWAYS CONFIGURATION
AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND REGISTRATION MARKS
-----------------------------------------------------------------
1. STANDARD AIRCRAFT
The Aircraft shall be manufactured according to the standard configuration
specified in the Technical Description TD-145/010, dated January 1998
(Appendix I) (the "Technical Description") and the optional equipment
described in item 2 below.
2. OPTIONAL EQUIPMENT
2.1 OPTIONS TO THE STANDARD AVIONICS CONFIGURATION
[*]
2.2 OPTIONAL SYSTEM / OTHER EQUIPMENT
[*]
2.3 INTERIOR OPTIONAL ITEMS
[*]
3. FINISHING
a. EXTERIOR FINISHING:
The Aircraft shall be painted according to the US Airways color and
paint scheme, which has been supplied to Embraer by Buyer.
b. INTERIOR FINISHING:
Buyer has informed Embraer of its choice of materials and colors of
all and any item of interior finishing such as seat covers, carpet,
floor lining on galley areas, side walls and overhead lining, galley
lining and curtain. In case Buyer elects to use different materials
and or patterns, such schedule shall be agreed between the Parties
at the time of signature of this Purchase Agreement.
4. REGISTRATION MARKS
The Aircraft shall be delivered to Buyer with the registration marks
painted on them, which shall be supplied to Embraer by Buyer no later than
ninety (90) days
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* Confidential
Page 1 of 2
before each relevant Aircraft Contractual Delivery Date.
IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT "A-1" AND THE
TERMS OF THE TECHNICAL DESCRIPTION, THE TERMS OF THIS ATTACHMENT "A-1" SHALL
PREVAIL.
Page 2 of 2
ATTACHMENT "A-2"
AIRCRAFT UNDER AMERICA WEST CONFIGURATION
AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND REGISTRATION MARKS
-----------------------------------------------------------------
1. STANDARD AIRCRAFT
The Aircraft shall be manufactured according to the standard configuration
specified in the Technical Description TD-145/010, dated January 1998
(Appendix I) (the "Technical Description") and the optional equipment
described in item 2 below.
2. OPTIONAL EQUIPMENT
2.1 OPTIONS TO THE STANDARD AVIONICS CONFIGURATION
[*]
2.2 OPTIONAL SYSTEM / OTHER EQUIPMENT
[*]
2.3 INTERIOR OPTIONAL ITEMS
[*]
3. FINISHING
a. EXTERIOR FINISHING:
The Aircraft shall be painted according to the America West color
and paint scheme, which has been supplied to Embraer by Buyer.
b. INTERIOR FINISHING:
Buyer has informed Embraer of its choice of materials and colors of
all and any item of interior finishing such as seat covers, carpet,
floor lining on galley areas, side walls and overhead lining, galley
lining and curtain. In case Buyer elects to use different materials
and or patterns, such schedule shall be agreed between the Parties.
4. REGISTRATION MARKS
The Aircraft shall be delivered to Buyer with the registration marks
painted on
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* Confidential
Page 1 of 2
them, which shall be supplied to Embraer by Buyer no later than ninety
(90) days before each relevant Aircraft Contractual Delivery Date.
IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT "A-2" AND THE
TERMS OF THE TECHNICAL DESCRIPTION, THE TERMS OF THIS ATTACHMENT "A-2" SHALL
PREVAIL.
Page 2 of 2
ATTACHMENT "B"
FERRY EQUIPMENT,
----------------
SPARE PARTS POLICY AND LIST OF PUBLICATIONS
-------------------------------------------
1. FERRY EQUIPMENT
If it is necessary for any ferry equipment to be installed by Embraer for
the ferry flight between Brazil and the United States of America, Embraer
may provide such equipment to Buyer, for a price to be agreed between the
Parties. In this case, Buyer shall immediately upon its arrival remove
such ferry equipment from the Aircraft and turn it over to Embraer in
Brazil at Buyer's own expense.
If Embraer provides any ferry equipment to Buyer and if such equipment is
utilized, for any reason, or if such equipment is not returned by Buyer,
in Embraer's sole judgment, complete and in perfect condition, Buyer shall
fully indemnify Embraer for the value of such equipment, provided that in
case of partial utilization of, or damage to any such equipment, the value
to be charged shall be the price of a new complete set of equipment.
In such case, the original equipment shall [*], and the above mentioned
payment shall be made to Embraer by Buyer upon [*]
2. SPARE PARTS
2.0 POLICY
Embraer's spare parts policy is to provide the following categories
of spares as specified in the respective Embraer publications and
available to be purchaed through Embraer:
o Line Replaceable Units (LRU's);
o Parts to repair and overhaul components manufactured under
Embraer specification to be used only on the Aircraft;
o Parts to line maintenance;
o Parts to fulfill all maintenance tasks per maintenance manual
and/or maintenance plan issued by Embraer;
o Embraer-made parts;
o Aircraft Ground Equipment (AGE);
o Aircraft Ground Equipment spare parts manufactured under
Embraer specifications;
o Special tools; and
o Bulk materials.
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* Confidential
Page 1 of 5
2.1 INITIAL PROVISIONING
The objective of the IPL is to provide Buyer with accurate technical
data supplied by Embraer, in order to enable an adequate selection
of spares, aiming to support initial scheduled maintenance, based
upon operational parameters established by Chautauqua.
2.2 PROVISIONING
For all Aircraft, Buyer and Embraer shall agree on initial
provisioning on or before [*] prior to delivery of each such
Aircraft.
2.3 DATA
Initial provisioning data has been supplied Chautauqua upon request.
2.3.1 INITIAL PROVISIONING DATA: Embraer has supplied initial
provisioning data.
2.3.2 PROVISIONING DATA REVISIONS: [*]
2.4 SPARE PARTS RECOMMENDATIONS
Embraer will provide, if requested, a breakdown of recommended spare
parts to support the components used during the Aircraft operation
(inventory reprovisioning).
2.5 DELIVERY OF SPARE PARTS
Except for those spare parts referred to in item 2.4. above, Spare
items (initial provisioning spare parts) are normally in inventory
and available for delivery on the Aircraft Contractual Delivery
Date. Nevertheless, delivery dates shall be those agreed between the
Parties in the Purchase Agreement. Replenishment of Embraer made
parts will be in accordance with the lead times quoted by Embraer.
Embraer will deliver parts in FCA (Free Carrier - Incoterms 1990)
condition, at Sao ▇▇▇▇ dos ▇▇▇▇▇▇, State of Sao Paulo, Brazil, or at
any other port of clearance that may be chosen by Embraer and
informed to Buyer.
2.6 EMERGENCY SPARE PARTS SERVICE
Embraer will maintain an emergency spare parts service, twenty four
(24) hours a day, seven (7) days a week. [*]
2.7 CREDIT FOR SURPLUS SPARE PARTS
Embraer offers to Buyer a "credit" program for certain surplus parts
manufactured by Embraer and purchased according to the initial
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* Confidential
Page 2 of 5
provisioning by Buyer and which were recommended in writing by
Embraer limited to the quantities, part numbers and serial numbers
(if applicable) identified in the relevant invoices. Such program
will provide terms no less favorable than the following:
2.7.1. CREDIT PROGRAM: During the period commencing [*]and ending
[*]years after such date, Embraer will[*] offer a credit for
new and unused spare parts [*]
2.7.1.1. [*]
2.7.1.2. CREDIT VALUES: The credit for each spare part to be
issued by Embraer will be: (i) an amount equal to
[*] or (ii) an amount equal to [*], whichever is
less.
2.7.1.3 DELIVERY OF SURPLUS SPARE PARTS: Spare parts for
which a credit has been requested shall be
redelivered by Buyer to Embraer [*] All returned
spare parts are subject to Embraer's quality control
inspection and acceptance. All spare parts which are
rejected by Embraer's quality control and/or are
included in the exceptions set forth in paragraph
2.7.1.1 hereinabove, will be returned to Buyer at
Buyer's expense, no credit being due in this case.
2.7.1.4 CREDIT ISSUE: After Embraer's acceptance of those
items suitable for the credit program, under the
terms of this Agreement, Embraer will notify the
available credit amount to Buyer and provide all
relevant information as to credit utilization.
2.8. PARTS EXCHANGE PROGRAM
According to its prevailing availability, Embraer may offer an
"exchange program" for repairable parts [*]
2.9. PARTS REPAIR PROGRAM
For any repair required by Chautauqua on any Embraer or vendor
repairable item, Embraer may assist Chautauqua to perform such
repair in order to ensure the shortest turn around time (TAT).
2.10. PRICING
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* Confidential
Page 3 of 5
Embraer will maintain a spare parts price list updated periodically.
Items not shown on the list will be quoted on request.
3. LIST OF PUBLICATIONS
As provided for in Article 15 of this Agreement, the technical
publications covering operation and maintenance shall be delivered to
Buyer in accordance with the following list:
QTY
TITLE (COPIES)
----- --------
OPERATIONAL
1. Airplane Flight Manual (AFM)(*) [*]
2. Weight & Balance Manual (WB)(*) [*]
3. Operations Manual (OM)(*) [*]
4. Quick Reference Handbook (QRH)(*) [*]
5. Dispatch Deviation Procedures Manual (DDPM)(*) [*]
6. Supplementary Performance Manual (SPM)(*) [*]
7. Operational Bulletins Set (OB) [*]
8. Master Minimum Equipment List (MMEL)(*) [*]
MAINTENANCE - BASIC SET
9. Aircraft Maintenance Manual (AMM) [*]
10. Illustrated Parts Catalog (IPC) [*]
11. Fault Isolation Manual (FIM) [*]
12. Non Destructive Manual (NDI) [*]
13. Scheduled Maintenance Requirements Document (SMRD) [*]
14. Wiring Manual (WM) [*]
15. Structural Repair Manual (SRM) [*]
16. Service & Information Bulletins Set (SB/IB) [*]
17. Service Newsletters (SNL) [*]
MAINTENANCE SUPPLEMENTARY SET
18. System Schematic Manual (SSM) [*]
19. Instr. for Ground Fire Extinguishing and Rescue (IGFER) [*]
20. Airport Planning (AP) [*]
21. Illustrated Tool & Equipment Manual (ITEM) [*]
22. Task Card Manual (TCM) [*]
23. Powerplant Build-up Manual (PPBM) [*]
24. Auxiliary Power Unit Build up Manual (APUBM) [*]
25. Corrosion Control Manual (CCM) [*]
----------
* Confidential
Page 4 of 5
26. Vendor Service Publications Set (**) [*]
[*]
If Buyer elects not to take all or any one of the publications mentioned in this
Section 3, or revisions thereof, no refund or other financial adjustment of the
Basic Price will be made since such publications are offered at no cost to Buyer
as referred to in Article 15.a of the Purchase Agreement.
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* Confidential
Page 5 of 5
ATTACHMENT "C"
AIRCRAFT WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
1. Embraer, subject to the conditions and limitations hereby expressed,
warrants the Aircraft as follows:
a. For a period of forty-eight (48) months from the date of delivery to
the first Buyer, each Aircraft will be free from:
- Defects in materials, workmanship and manufacturing processes
in relation to parts manufactured by Embraer or by its
subcontractors holding an Embraer part number;
- Defects inherent to the design of the Aircraft and its parts
designed or manufactured by Embraer or by its subcontractors
holding an Embraer part number.
b. For a period of thirty-six (36) months from the date of delivery to
the first Buyer, the Aircraft will be free from:
- Defects in operation of vendor (Embraer's supplier)
manufactured parts, not including the Engines, Auxiliary Power
Unit (APU) and their accessories, as well as failures of
mentioned parts due to incorrect installation or installation
not complying with the instructions issued or approved by
their respective manufacturers.
- Defects due to non-conformity to the Technical Description
Number TD 145 /010 dated January 1998 as may be amended by
Buyer's Aircraft Technical Specification referred to in
Article 1.b of the Purchase Agreement of the Aircraft.
Once the above mentioned periods have expired, Embraer will transfer to
Buyer the original warranty issued by the vendors, if it still exists.
2. Embraer, subject to the conditions and limitations hereby expressed,
warrants that:
a. All spare parts which have been manufactured by Embraer or by its
subcontractors holding an Embraer part number, and by vendors which
will permit their particular identification and which have been sold
by Embraer or its representatives will, for a period of twenty four
(24) months from the date of delivery of such spares to Buyer, be
free from defects of material,
Page 1 of 4
workmanship, manufacturing processes and defects inherent to the
design of the above mentioned parts.
b. All ground support equipment, which has been designed and
manufactured by Embraer or by its subcontractors holding an Embraer
part number and by vendors, not including Engines, APU and their
accessories, and stamped with a serial number which will permit
their particular identification and which have been sold by Embraer
or its representatives will, for a period of twelve (12) months from
the date of delivery to Buyer of said equipment, be free from
malfunction, defect of material and manufacture.
3. The obligations of Embraer as expressed in this warranty and as specified
in Article 11.e are limited to replacement, repair or rework of the
defective item, depending solely upon Embraer's own judgment, of the parts
that are returned to Embraer or its representatives within a period of
sixty (60) days after the occurrence of the defect, at Buyer's own expense
(including but not limited to, freight, insurance, taxes and, customs
duties), adequately packed, provided that such components are actually
defective and that the defect has occurred within the periods stipulated
in this certificate. Should the defective part not be shipped to Embraer
within such sixty (60) days period, Embraer may in its sole discretion,
deny the warranty claim. In the event that it is not practical in the
international commercial transportation industry to return the part or
component which is the subject of a warranty claim under this Attachment
C, to Embraer, because of either its extremely large size or its
relationship to the Airframe, then thirty (30) days after a defect is
found in such structural component (hereafter referred to as "Structural
Component"), Buyer shall send notice of such defect to Embraer and
notwithstanding the above, Buyer shall not be obligated to return such
Structural Component to Embraer. Embraer shall thereafter send an
appropriate inspection team to Buyer's facilities to inspect the
Structural Component for the alleged defect. In the event that Embraer in
its sole judgment finds the Structural Component defective, it shall
either repair, rework, or replace the defective Structural Component.
Notification of any defect claimed under three (3) above must be given to
Embraer within thirty (30) calendar days after such defect is found.
Parts supplied to Buyer as replacement for defective parts are warranted
for the balance of the warranty period still available from the original
warranty of the exchanged parts. However, freight, insurance, taxes and
other costs eventually incurred during the shipment to Embraer or its
representative, re-installation and adjustments are Buyer's
responsibility.
4. Embraer will accept no warranty claims under any of the circumstances
listed below unless it can be demonstrated in accordance with the
standards of the
Page 2 of 4
international aircraft manufacturing industry that such operation or
maintenance or other circumstance did not cause the defect:
a. When the Aircraft has been used in an attempt to break records, or
subjected to experimental flights, or in any other way not in
conformity with the flight manual or the airworthiness certificate,
or subjected to any manner of use in contravention of the applicable
aerial navigation or other regulations and rules, issued or
recommended by government authorities of whatever country in which
the aircraft is operated, when accepted and recommended by I.C.A.O.;
b. When the Aircraft or any of its parts have been altered or modified
by Buyer, without prior approval from Embraer or from the
manufacturer of the parts through a service bulletin;
c. Whenever the Aircraft or any of its parts have been involved in an
accident, or when parts either defective or not complying to
manufacturer's design or specification have been used;
d. Whenever parts have had their identification marks, designation,
seal or serial number altered or removed;
e. In the event of negligence, misuse or maintenance services done on
the Aircraft, or any of its parts not in accordance with the
respective maintenance manual;
f. In cases of deterioration, wear, breakage, damage or any other
defect resulting from the use of inadequate packing methods when
returning items to Embraer or its representatives.
5. The warranty hereby expressed does not apply to defects presented by
expendable items, whose service life or maintenance cycle is lower than
the warranty period, and to materials or parts subjected to deterioration.
6. The warranty hereby expressed is established between Embraer and the first
Buyer, and it cannot be transferred or assigned to others, unless by
written consent of Embraer, or as otherwise provided for pursuant to
Article 16 of the Purchase Agreement of which this is an Attachment.
7. THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND REMEDIES OF
BUYER SET FORTH IN THIS WARRANTY CERTIFICATE ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL
OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND ANY ASSIGNEE
OF EMBRAER AND ALL
Page 3 of 4
OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST EMBRAER OR ANY ASSIGNEE
OF EMBRAER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT
TO ANY NON-CONFORMANCE OR DEFECT OR FAILURE OR ANY OTHER REASON IN ANY
AIRCRAFT OR OTHER THING DELIVERED UNDER THE PURCHASE AGREEMENT OF WHICH
THIS IS AN ATTACHMENT, INCLUDING DATA, DOCUMENT, INFORMATION OR SERVICE,
INCLUDING BUT NOT LIMITED TO:
a. ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
b. ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
c. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER
OR NOT ARISING FROM THE NEGLIGENCE OR OTHER RELATED CAUSES OF
EMBRAER OR ANY ASSIGNEE OF EMBRAER, WHETHER ACTIVE, PASSIVE OR
IMPUTED; AND
d. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR
DAMAGE TO ANY AIRCRAFT, FOR LOSS OF USE, REVENUE OR PROFIT WITH
RESPECT TO ANY AIRCRAFT OR FOR ANY OTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
8. No representative or employee of Embraer is authorized to establish any
other warranty than the one hereby expressed, nor to assume any
additional obligation, relative to the matter, in the name of Embraer and
therefore any such statements eventually made by, or in the name of
Embraer, shall be void and without effect.
9. Provided the provisions hereof are still effective in accordance with
their terms, then Buyer may assign Buyer's rights pursuant to this
warranty to any entity (but for entities or air carriers which are owned,
effectively controlled or managed by any other airframe manufacturer which
competes in the thirty seven (37) to seventy (70) seat turbo jet market
("Transferee")) provided Buyer notifies Embraer of the identity of such
Transferee at least thirty (30) calendar days prior to such transaction.
In the event such Transferees or Other Transferees (as defined herein)
subsequently transfer any Aircraft or Spares, any Transferees' or Other
Transferees' rights which remain pursuant to this Warranty with respect to
such Aircraft and Spares may also be transferred to any other entity (but
for entities or air carriers which are owned, effectively controlled or
managed by any other airframe manufacturer which competes in the thirty
seven (37) to seventy (70) seat turbo jet market ("Other Transferees"))
provided that the Transferees or Other Transferees notify Embraer of the
identity of such other entity at least sixty (60) calendar days prior to
such transaction.
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ATTACHMENT D
AIRCRAFT
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ESCALATION FORMULA
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[*]
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* Confidential
Page 1 of 1
ATTACHMENT E
------------
APPOINTMENT OF AUTHORIZED REPRESENTATIVE
----------------------------------------
("Buyer") hereby designates and appoints _________________ as the
authorized representative of Buyer for the purpose of inspecting, reinspecting,
and accepting delivery from EMBRAER-Empresa Brasileira de Aeronautica S.A.
("Embraer"), on behalf of and in the name of Buyer, of the Embraer Model
EMB-145/EMB-135KL aircraft having Manufacturer's Serial No. 145___ (including
the engines, appliances and parts installed thereon, the "Aircraft") and Spares,
as defined in that certain Amended and Restated Purchase Agreement GCT-025/1998
between Republic Airways Holdings, Inc. and EMBRAER dated April __, 2002, to be
delivered by Embraer to Buyer pursuant to the Purchase Agreement Assignment to
be dated as of or about ______ __, 200_ between Republic Airways Holdings, Inc.
and Buyer, including the authority to accept delivery of said Aircraft and
Spares, and to execute and deliver any additional documents with respect to the
delivery for said Aircraft and Spares in such form as such authorized
representative executing the same shall deem appropriate.
Dated: __________ __, 200_
---------------
By:
------------------------------------
Name:
Title:
The foregoing appointment
is hereby accepted
------------------------
Name:
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ATTACHMENT "F"
FORM OF WARRANTY ▇▇▇▇ OF SALE
-----------------------------
KNOW ALL MEN BY THESE PRESENTS THAT Embraer - Empresa Brasileira de Aeronautica
S.A. ("SELLER"), a Brazilian company, whose address ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ - Putim, Sao ▇▇▇▇ dos ▇▇▇▇▇▇, Sao Paulo, Brazil, is the owner of good and
marketable title to that certain EMB-145 LR aircraft bearing Manufacturer's
Serial No. ___________, with all appliances, parts, instruments, appurtenances,
accessories, furnishings and/or other equipment or property incorporated in or
installed on or attached to said engine (hereinafter collectively referred to as
the "Aircraft") purchased by Republic Airways Holdings, Inc. ("BUYER") under the
Amended and Restated Purchase Agreement No. 025/98, dated as of _______ __,
2002, including Attachments, Exhibits, Letters, Amendments and Agreements by and
between SELLER and [BUYER].
THAT for and in consideration of the sum of US$ 10.00 and other valuable
consideration, receipt of which is hereby acknowledged, SELLER does this
__________ day of __________, 200_, grant, convey, transfer, bargain and sell,
deliver and set over to BUYER and unto its successors and assigns forever, all
of SELLER's rights, title and interest in and to the Aircraft.
THAT SELLER hereby represents and warrants to BUYER, its successors and assigns:
(i) that SELLER has good and marketable title to the Aircraft and the good and
lawful right to the Aircraft and the good and lawful right to sell the
same; and
(ii) that good and marketable title to the Aircraft is hereby duly vested in
BUYER free and clear of all claims, liens, encumbrances and rights of
others of any nature. SELLER hereby covenants and agrees to defend such
title forever against all claims and demands whatsoever.
This Full Warranty ▇▇▇▇ of Sale is governed by the laws of the state of New
York, United States of America.
IN WITNESS WHEREOF, SELLER has caused this instrument to be executed and
delivered by its duly authorized officer and attorney in fact.
Date as of ____________________, 200_.
EMBRAER - EMPRESA BRASILIERA DE AERONAUTICA S.A.
By:
----------------------------------------
Name:
--------------------------------------
Title:
-------------------------------------
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CHAUTAUQUA GUARANTY
FOR VALUE RECEIVED, Chautauqua Airlines, Inc., a corporation owned, managed, or
effectively controlled by Republic Airways Holdings, Inc. ("Buyer") and
organized under the laws of New York ("Guarantor"), pursuant to Article 16 c. of
that certain Amended and Restated Purchase Agreement DCT-025/98 dated as of
April __, 2002, among Buyer and EMBRAER-Empresa Brasileira de Aeronautica S.A.
("Embraer"), as the same may be amended from time to time (the "Purchase
Agreement"), does hereby unconditionally and irrevocably guarantee to Embraer
(i) the due and punctual payment of each amount due and owing that Buyer, is or
may become obligated to pay under and in accordance with the terms of the
Purchase Agreement, and (ii) in the event of any nonpayment, Guarantor agrees to
immediately pay, or cause such payment to be made (such payment obligations of
Buyer being herein referred to as the "Obligations"). Guarantor further agrees
to pay all reasonable expenses (including, without limitations all reasonable
fees and disbursements of counsel) that may be paid or incurred in enforcing any
rights with respect to, or collecting, any or all of the Obligations and/or
enforcing any rights with respect to, or collecting against, Guarantor under
this Guaranty. The obligations of Guarantor to make any payments hereunder shall
be subject to the terms and conditions of the Purchase Agreement applicable to
the Obligations.
Capitalized terms used but not defined herein shall have the respective meanings
set forth in, and shall be construed and interpreted in the manner described in,
the Purchase Agreement.
Guarantor hereby waives notice of acceptance of this Guaranty, and agrees that,
in its capacity as a guarantor, it shall not be required to consent to, or to
receive any notice of, any supplement to or amendment of, or waiver or
modification of the terms of, the Purchase Agreement.
This Guaranty is being furnished to induce Embraer to the Purchase Agreement.
Guarantor represents and warrants that, as of the date hereof:
a. Guarantor is a corporation duly organized, validly existing and in good
standing under the laws of New York and has all necessary corporate power and
authority to conduct the business in which it is currently engaged and to enter
into and perform its obligations under this Guaranty.
b. Guarantor has taken, or caused to be taken, all necessary corporate action to
authorize the execution and delivery of this Agreement and the performance of
its obligations hereunder.
c. The execution and delivery by Guarantor of this Guaranty, the performance by
Guarantor of its obligations hereunder and the consummation by Guarantor of the
transactions contemplated hereby, do not and will not (A) violate or conflict
with any provision of the certificate of incorporation or by-laws of Guarantor,
(B) violate or conflict with any law, rule, or regulation applicable to or
binding on Guarantor or (C) violate or constitute any breach or default (other
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than a breach or default that would not (x) result in a material adverse change
to Guarantor or (y) adversely affect Guarantor's ability to perform any of its
obligations hereunder) under any agreement, instrument or document to which
Guarantor is a party or by which Guarantor or any of its properties is or may be
bound or affected.
d. The execution and delivery by Guarantor of this Guaranty, the performance by
Guarantor of its obligations hereunder and the consummation by Guarantor of the
transactions contemplated hereby do not and will not require the consent,
approval or authorization of, or the giving of notice to, or the registration
with, or the recording or filing of any documents with, or the taking of any
other action in respect of, (A) any trustee or other holder of any indebtedness
or obligation of Buyer, (B) any national, federal, state or local government
regulatory, judicial, or administrative entity of competent jurisdiction, or (C)
any other party.
e. This Guaranty has been duly authorized, executed and delivered by Guarantor
and constitutes the legal, valid and binding obligation of Guarantor enforceable
against Guarantor in accordance with the terms hereof, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws affecting the rights of
creditors generally and general principles of equity, whether considered in a
proceeding at law or in equity.
f. Each of the foregoing representations and warranties shall survive the
execution and delivery of this Guaranty.
No failure or delay or lack of demand, notice or diligence in exercising any
right under this Guaranty shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right under this Guaranty.
This Guaranty is an absolute, unconditional and continuing guaranty of payment
and not of collection. Guarantor waives any right to require that any right to
take action against Buyer be exhausted or that resort be made to any security
prior to action being taken against Guarantor.
In the event that this Guaranty or the Purchase Agreement shall be terminated,
rejected or disaffirmed as a result of bankruptcy, insolvency, reorganization,
arrangement, composition, readjustment, liquidation, dissolution or similar
proceedings with respect to Buyer, Guarantor's obligations hereunder to Embraer
shall continue to the same extent as if the same had not been so terminated,
rejected or disaffirmed. Guarantor shall and does hereby waive all rights and
benefits that might , in whole or in part, relieve it from the performance of
its duties and obligations by reason of any proceeding as specified in the
preceding sentence, and Guarantor agrees that it shall be liable for all sums
guaranteed, in respect of and without regard to, any modification, limitation or
discharge of the liability of Buyer that may result from any such proceedings
and notwithstanding any stay, injunction or other prohibition issued in any such
proceedings. Furthermore, the obligation of Guarantor hereunder will not be
discharged by: (a) any extension or renewal of any obligation of Buyer under the
Purchase Agreement; (b) any modification of, or amendment or supplement to, any
such Purchase Agreement; (c) any furnishing or acceptance of
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additional security or any release of any security; (d) any waiver, consent or
other action or inaction or any exercise or non-exercise of any right, remedy or
power with respect to Buyer; (e) any change in the structure of the Buyer, any
change in ownership of the shares of capital stock of Guarantor or Buyer or any
merger or consolidation of either thereof into or with any other person; (f) any
assignment, transfer, sublease or other arrangement by which Buyer transfers or
loses control of the use of the Aircraft or any part thereof; or (g) any other
occurrence whatsoever, except payment in full of all amounts payable by Buyer
under the Purchase Agreement and performance in full of all the Obligations in
accordance with the terms and conditions of the Purchase Agreement.
Guarantor understands and agrees that its obligations hereunder shall be
continuing, absolute and unconditional without regard to, and Guarantor hereby
waives any defense to, or right to seek a discharge of, its obligations
hereunder with respect to; (a) the validity, legality or enforceability of the
Purchase Agreement, any of the Obligations or any collateral security therefor
or guaranty or right of offset with respect thereto at any time or from time to
time held by Embraer; (b) any defense, setoff or counterclaim (other than a
defense of payment, performance (including payment or performance attributable
to a right of setoff provided for in the Purchase Agreement that may at any time
be available to or be asserted by Buyer) or breach by either party to the
Purchase Agreement until such breach is resolved under the terms of the Purchase
Agreement); or (c) any other circumstances whatsoever (with or without notice to
or knowledge of Buyer or Guarantor) that constitutes, or might be construed to
constitute, an equitable or legal discharge of Buyer or the Obligations, or of
Guarantor under this Guaranty, in bankruptcy or in any other instance.
Notwithstanding any payment or payments made by Guarantor hereunder or any set
off or application of funds of Guarantor by Embraer, Guarantor shall not be
entitled to be subrogated to any of the rights of Embraer against Buyer or any
collateral, security or guaranty or right of set off held by Embraer for the
payment of the Obligations, nor shall Guarantor seek or be entitled to seek any
reimbursement from Buyer in respect of payments made by Guarantor hereunder,
until all amounts and performance owing to Embraer by Buyer on account of the
Obligations are paid and performed in full. The obligations of Guarantor
hereunder shall be automatically reinstated if and to the extent that any
payment by or on behalf of Buyer in respect of any of the Obligations is
rescinded or must be otherwise restored by any holder of any of the Obligations
as a result of any proceedings in bankruptcy or reorganization or similar
proceedings and Buyer agrees that it will reimburse such holders on demand for
all reasonable expenses (including, without limitation, all reasonable fees and
disbursements of counsel) incurred by such holders in connection with such
rescission or restoration.
Any provision of this Guaranty that is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
This Guaranty shall be binding upon the successors and assigns of Guarantor;
provided, that no transfer, assignment or delegation by Guarantor, other than a
transfer, assignment or delegation
Page 3 of 4
by operation of law, without the consent of Embraer, shall release Guarantor
from its liabilities hereunder. Subject to the second preceding paragraph, this
Guaranty shall terminate and be of no further force and effect upon the
performance and observance in full of the Obligations.
All notices, requests and demands to or upon Guarantor or any beneficiary shall
be mailed to Buyer in accordance with the terms of Article 26 of the Purchase
Agreement. Guarantor hereby agrees to be bound as if it were the Buyer by the
provisions of Articles 20, 21, 23, and 25 of the Purchase Agreement, which are
incorporated herein by reference as if fully set forth herein.
Dated: April __, 2002
CHAUTAUQUA AIRLINES, INC.
By:
----------------------------------
Name:
Title:
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