PURCHASE AGREEMENT COM 0190-10 between EMBRAER - EMPRESA BRASILEIRA DE AERONÁUTICA S.A. and REPUBLIC AIRLINE INC.
EXHIBIT
10.67
CONFIDENTIAL
TREATMENT
REQUESTED
PURSUANT TO RULE 24b-2
Certain
portions of this exhibit, as indicated by “[*]”, have been omitted, pursuant to
a request for confidential treatment under Rule 24b-2 of the Securities Exchange
Act of 1934. The omitted materials have been filed separately with
the Securities and Exchange Commission.
|
PURCHASE
AGREEMENT COM 0190-10
between
EMBRAER
- EMPRESA BRASILEIRA DE AERONÁUTICA S.A.
and
REPUBLIC
AIRLINE INC.
|
INDEX
|
PAGE
|
||
|
ARTICLE
|
|
|
|
1.
|
DEFINITIONS
|
1
|
|
2.
|
SUBJECT
|
2
|
|
3.
|
PRICE
|
3
|
|
4.
|
PAYMENT
|
3
|
|
5.
|
DELIVERY
|
4
|
|
6.
|
CERTIFICATION
|
4
|
|
7.
|
ACCEPTANCE
AND TRANSFER OF OWNERSHIP
|
5
|
|
8.
|
STORAGE
CHARGE
|
6
|
|
9.
|
DELAYS
IN DELIVERY
|
6
|
|
10.
|
INSPECTION
AND QUALITY CONTROL
|
7
|
|
11.
|
CHANGES
|
7
|
|
12.
|
WARRANTY
|
9
|
|
13.
|
PRODUCT
SUPPORT PACKAGE
|
9
|
|
14.
|
ASSIGNMENT
|
9
|
|
15.
|
RESTRICTIONS
AND PATENT INDEMNITY
|
9
|
|
16.
|
MARKETING
PROMOTIONAL RIGHTS
|
12
|
|
17.
|
TAXES
|
12
|
|
18.
|
APPLICABLE
LAW
|
12
|
|
19.
|
ARBITRATION
|
12
|
|
20.
|
SOVEREIGN
IMMUNITY, VENUE AND FORUM NON CONVENIENS
|
14
|
|
21.
|
TERMINATION
|
14
|
|
22.
|
PURCHASE
OF CONDITIONAL AIRCRAFT
|
14
|
|
23.
|
OPTION
FOR THE PURCHASE OF ADDITIONAL AIRCRAFT
|
15
|
|
24.
|
[*]
|
15
|
|
25.
|
NOTICES
|
15
|
|
26.
|
CONFIDENTIALITY
|
16
|
|
27.
|
INTEGRATED
AGREEMENT
|
16
|
|
28.
|
NEGOTIATED
AGREEMENT
|
16
|
|
29.
|
COUNTERPARTS
|
16
|
|
30.
|
ENTIRE
AGREEMENT
|
17
|
|
31.
|
NO
WAIVER
|
17
|
|
32.
|
REPRESENTATIONS
AND WARRANTIES
|
17
|
|
33.
|
FOREIGN
CONTENT
|
19
|
|
Purchase
Agreement 0190-10 Final Version
|
|
ATTACHMENTS
“A1” -
E190 AIRCRAFT CONFIGURATION
[*]
"B" -
FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
"C" -
WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
"D"-
ESCALATION FORMULA
[*]
[*]
"G" -
SERVICE LIFE GUARANTEE
[*]
[*]
"I" -
AUTHORIZED REPRESENTATIVE APPOINTMENT
"J" -
FORM OF WARRANTY ▇▇▇▇ OF SALE
"K" -
FORM OF GUARANTEE
[*]
*
Confidential
PURCHASE
AGREEMENT COM 0190-10
THIS
AGREEMENT IS ENTERED INTO THIS 3rd DAY OF NOVEMBER, 2010, BY AND BETWEEN EMBRAER
- EMPRESA BRASILEIRA DE AERONÁUTICA S.A. AND REPUBLIC AIRLINE INC., FOR THE
PURCHASE AND SALE OF EMBRAER AIRCRAFT.
THIS
AGREEMENT SHALL NOT BE EFFECTIVE UNLESS AND UNTIL IT IS SIGNED BY AN AUTHORIZED
OFFICER OF REPUBLIC AIRLINE INC. AND EXECUTED BY TWO AUTHORIZED OFFICERS OF
EMBRAER - EMPRESA BRASILEIRA DE AERONÁUTICA S.A.
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.
1. DEFINITIONS
For the
purpose of this Agreement, the Parties hereby adopt the following definitions
and, unless otherwise expressly provided, the singular includes the plural and the masculine includes the feminine and
neutral genders:
1.1
"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.
1.2
"AD's": shall mean Airworthiness Directives issued by either ANAC or the
Aviation Authority, in connection with and with respect to the
Aircraft.
1.3
"Agreement": shall mean this Purchase Agreement COM 0190-10, its Attachments and
the Letter Agreement between the Parties executed on the date
hereof.
1.4
“Aircraft”: shall be deemed to refer to either an EMBRAER 190 Aircraft or
EMBRAER 195 Aircraft referred to in Attachment “A1” and “A2” respectively, for
sale to Buyer pursuant to this Agreement, equipped with two engines identified
therein (or, where the context requires, all of such Aircraft). Aircraft shall
include the Firm Aircraft, Conditional Aircraft, Option Aircraft and Conversion
Aircraft unless expressly provided to the contrary. [*]
1.5
“ANAC”: shall mean the Brazilian civil aviation authority – Agência Nacional de
Aviação Civil.
1.6
"Aviation Authority": shall mean United States Federal Aviation Administration
or FAA.
1.7
"Basic Price": shall mean the total price for an Aircraft, effective on the date
of execution of this Agreement contained in Article 3.1 or, in case of revision
thereof, on the date of its revision.
1.8
"Buyer": shall mean Republic Airline Inc., an Indiana corporation with its
principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, or its assignee pursuant to Article
14.
1.9
"Business Day(s)": shall mean days on which the banks in each of New York, New
York, United States and São Paulo, and São ▇▇▇▇ dos ▇▇▇▇▇▇, ▇.▇. Brazil are open
for the normal transaction of business.
1.10
"Conditional Aircraft": shall be the additional Embraer 190 Aircraft that Buyer
shall have the right to convert to Firm Aircraft as per the terms of Article
22.
1.11 "Contractual Delivery Date": shall mean (i)
for any Firm Aircraft the delivery date referred to in Article 5 for such Firm
Aircraft, (ii) for any Conditional Aircraft, the delivery date referred to in
Article 22.1 for such Conditional Aircraft and (iii) for any Option Aircraft,
the delivery date referred to in Article 23.1 for such Option Aircraft .
1.12 [*]
1.13“ EMBRAER 190 Aircraft” or “E190 Aircraft”: shall
mean an EMBRAER 190 aircraft manufactured by Embraer for sale to Buyer pursuant
to this Agreement according to Attachment “A1”.
1.14 “EMBRAER 195 Aircraft” or “E195 Aircraft”: shall
mean an EMBRAER 195 aircraft manufactured by Embraer for sale to Buyer pursuant
to this Agreement according to Attachment “A2”.
1.15
"Embraer": shall mean Embraer - Empresa Brasileira de Aeronáutica S.A., a
Brazilian corporation with its principal
place of business at ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ - Putim, São ▇▇▇▇ dos
▇▇▇▇▇▇, São Paulo, Brazil.
1.16 "Excusable Delay": shall have the meaning
assigned to such term in Article 9.1.1.
1.17 "FAA":
shall mean the Federal Aviation Administration of the United States of
America.
1.18 "Firm
Aircraft": shall mean the Aircraft specified in Article 2.1.
1.19 "Non-Excusable Delay": any delay in the
delivery of an Aircraft or in the performance of any act by Embraer under this
Agreement that is not an Excusable Delay.
1.20 "Option
Aircraft": shall have the meaning assigned to such term in Article
23.
1.21
"Parties": shall mean Embraer and Buyer.
1.22
"Product Support Package": shall mean the products and Services to be
provided by Embraer as per Article 13.
1.23
"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” to the Basic Price as set
forth in Article 3.3.
1.24
"Services": shall mean the familiarization and on-site support for the
Aircraft, part of the Product Support Package, as specified in Attachment
"B".
1.25
"Technical Publications": shall mean the technical documentation
pertaining and related to the Aircraft as listed in Exhibit 1 to Attachment
"B".
References
to Articles or Attachments in the main body of this Purchase Agreement shall be
deemed to be references to Articles of or Attachments to this Agreement,
respectively, except as the context requires otherwise.
2. SUBJECT
Subject
to the terms and conditions of this Agreement:
2.1 Embraer
shall sell and deliver and Buyer shall purchase and take delivery of six (6)
EMBRAER 190 Aircraft.
2.2 Buyer
shall have the right to purchase (i) up to eighteen (18) Conditional Aircraft in
accordance with Article 22 and (ii) up to twenty-four (24) Option Aircraft in
accordance with Article 23.
2.3 Embraer
shall provide to Buyer the Services and the Technical Publications as described
in Attachment “B”
3. PRICE
3.1 The
Basic Price of each of the first six (6) Firm Aircraft is [*].
3.2 The
Services and Technical Publications are to be provided [*]. Additional technical
publications as well as other services shall be billed to Buyer in accordance
with Embraer’s rates prevailing at the time Buyer places a purchase order for
such additional technical publications or other services.
3.3 The
Basic Price for each Firm Aircraft shall be escalated according to the
Escalation Formula contained in Attachment “D”. Such price as escalated for each
Firm Aircraft shall be the Purchase Price for such Firm Aircraft and it will be
provided by Embraer to Buyer [*] prior to the Contractual
Delivery Date for such Aircraft.
4. PAYMENT
4.1 To
secure the Firm Aircraft delivery positions set forth in Article 5 and to ensure
delivery of the Firm Aircraft in accordance with the Contractual Delivery Dates,
Buyer shall pay Embraer for each Firm Aircraft in accordance with the terms and
conditions contained in this Article 4. The Parties acknowledge that each of the
Firm Aircraft and the corresponding delivery positions have been reserved for
purchase by Buyer and such Firm Aircraft have been removed from the market.
Buyer has already paid to Embraer prior to the execution of this Agreement a
[*] initial deposit (the
“Initial Deposit”) per Firm Aircraft.
The
amounts specified in this Article 4.1 shall be paid by Buyer by wire transfer in
immediately available United States dollars funds, to such bank account in the
United States as directed by Embraer to Buyer [*] prior to the date of
payment, as follows:
4.1.1 [*]
4.1.2 [*]
4.1.3 [*]
4.1.4 [*]
Progress
payments shall be due on the dates specified in Articles 4.1.1 through
4.1.3 except if any such date is not a Business Day in which case the progress
payment shall be [*].
4.2 Late
Payments: Interest will accrue at the rate of [*] per month or pro rated on
any part thereof on any amount not paid to Embraer as set forth in Articles
4.1.1 through 4.1.4, from the date on which
such payments should have been made as therein set forth, until (and excluding) the actual receipt by Embraer of
such amounts. Without prejudice to Embraer's rights set forth in
Article 4.3, interest accrued will be invoiced by Embraer on a monthly basis,
beginning one month after date on which payments should have been made, and
payment thereof shall be made by Buyer in accordance with the instructions
contained therein.
Any
progress payment that would otherwise be due before execution of this Agreement
shall be due within two (2) Business Days after the date of execution of this
Agreement.
4.3 Termination
for failure to make payments:
In case
of a late payment as per the terms and conditions contained in Article 4.2, Embraer shall grant Buyer a [*]. Such [*] period shall apply only to
the [*]. Such
[*] period shall under
no circumstances apply to payments due pursuant to Article 4.1.4. If Buyer fails [*] to make any progress
payment for any Aircraft when due, Embraer
shall be entitled to exercise its termination right pursuant to this paragraph
without waiting for the expiration of the above referenced [*] period. In the event
Embraer does not receive any payment required by Articles 4.1.1 through 4.1.3 within [*] after Buyer receives
written notice from Embraer of its failure to receive the payment, Embraer shall
have the right to either (i) postpone, at its sole criteria, the relevant
Aircraft's Contractual Delivery Date; or
(ii) terminate this Agreement in relation to the affected Aircraft in accordance
with Article 21.3.
[*]
5. DELIVERY
5.1 Subject
to payment in accordance with Article 4 and the provisions of Articles 7 and 9,
Embraer shall offer the Firm Aircraft to Buyer for inspection, acceptance and
subsequent delivery in fly away factory ("FAF") condition, with the Aircraft to
be flown away from Embraer's facilities by Buyer), in compliance with this
Agreement, at São ▇▇▇▇ dos ▇▇▇▇▇▇, Brazil [*] pursuant to Article 7.1
(the “Contractual Delivery Date”).
|
Firm
Aircraft
|
Contractual
Delivery Date
|
|
|
01
|
Aug/11
|
|
|
02
|
[*]
|
|
|
03
|
[*]
|
|
|
04
|
[*]
|
|
|
05
|
[*]
|
|
|
06
|
Dec/11
|
6. CERTIFICATION
6.1 The
EMBRAER 195 and EMBRAER 190 shall be Type Certified pursuant to FAA
airworthiness requirement FAR 25 - Airworthiness Standards Transport Category
Airplanes, including amendments 25-1 through to 25-117, except section 25.981(c)
of ▇▇▇▇ ▇▇-▇▇▇, ▇▇▇▇ 25-106, Section 25.735(h) of ▇▇▇▇ ▇▇-▇▇▇, ▇▇▇▇ 111, Amdt
115 and Amdt 116.
6.2 The
Aircraft shall comply with the operational requirements of the Aviation
Authority, except for the items that are under Buyer's regulatory responsibility
pursuant to the operational requirements of the FAR's which are not otherwise
required to be provided by Embraer under this Agreement.
6.3 The
Aircraft shall be delivered to Buyer with an export certificate of airworthiness
issued by ANAC stating that the aircraft meets the "Type Design" approved by the Aviation Authority. The
condition of the Aircraft on delivery and the documentation delivered with the
Aircraft, including the above mentioned export certificate of airworthiness,
shall enable Buyer to obtain an Aviation Authority certificate of airworthiness.
Subject to the above, it shall be Buyer's responsibility to obtain such
certificate of airworthiness for the registration of the Aircraft with the
Aviation Authority, at Buyer's sole expense. Embraer shall assist
Buyer, at Buyer's request and expense, in obtaining such certificate of
airworthiness from the Aviation Authority. [*]
7. ACCEPTANCE
AND TRANSFER OF OWNERSHIP
7.1
Unless Embraer notifies Buyer otherwise, the Aircraft shall be delivered in
accordance with the provisions and schedule
specified pursuant to 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, Embraer will give
Buyer [*] advance notice of the day that the Aircraft
concerned is ready for inspection by
Buyer.
7.2 Buyer
shall be allowed a reasonable period of time to conduct a ground inspection and
an acceptance flight or flights (together, the "Inspection") of each Aircraft
prior to its delivery. [*] After such acceptance
flight and if Buyer accepts the Aircraft in accordance with this Article 7, such
Aircraft will be delivered by Embraer to Buyer in accordance with Article 6
hereof [*].
7.3 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, with respect to such Aircraft according to Article 4 and
accept delivery of such Aircraft, whereupon [*] title and risk of loss
will be transferred by Embraer to Buyer and Embraer 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 Attachment "J". [*]
7.4 If
Buyer declines to accept an Aircraft after its Inspection because the Aircraft
failed to meet the terms of this Agreement, Buyer shall promptly 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 at no
cost to Buyer in order to resubmit the Aircraft to Buyer for
re-inspection
7.5
Subsequent to a refusal of acceptance pursuant to Article 7.4, Buyer shall
inspect the Aircraft, as provided for in Article 7.2, within [*] after [*] from Embraer that all
necessary actions were taken ("Reinspection"). All costs of such Reinspection
[*].
7.6
Should Buyer or Embraer fail to comply with the procedures specified in this
Article 7, the other party shall not be held liable for any delays in delivery
resulting from such failure.
7.7
Should Buyer not perform its obligations in accordance with this Article 7 [*] Embraer shall be entitled
to [*] its obligations
in accordance with this Article 7 [*] Embraer shall be entitled
to [*] pursuant to
Article 21.3.
7.8
Embraer agrees to indemnify and hold harmless Buyer and Buyer's officers,
directors, 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 Buyer and/or Buyer's officers, directors, agents, employees and
assignees by reason of loss or damage to property, or injury or death of any
person, resulting from or in any way connected with the tests on the ground or
in flight on or prior to Actual Delivery
Date of each Aircraft, except to the extent
attributable to the gross negligence or willful misconduct of Buyer, its
officers, directors, agents, employees and assignees.
*
Confidential
|
Purchase
Agreement 0190-10 Final Version
|
Page of 5 of
20
|
7.9 Buyer shall be permitted to delegate its
duties in this Article 7 as to the physical inspection, reinspection, and
acceptance and delivery of the Aircraft to its authorized representative in the
form attached hereto as Attachment "I".
[*]
8. STORAGE
CHARGE
8.1 A
storage charge equal to [*]
per day shall be charged by Embraer to Buyer commencing on:
8.1.1
Buyer's failure to perform Inspection or Reinspection of an Aircraft, per the
date or time period specified in writing by Embraer, according to Article 7
until such Inspection or Reinspection is performed.
8.1.2
Buyer's default in taking title to such Aircraft when required and making the
payment then due, until such payment is made.
8.1.3
Buyer's failure within [*] after title transfer to
remove an Aircraft from Embraer's facilities.
Storage
charges shall end as provided above or, if earlier on 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 21.3.
If
however, Buyer notifies Embraer in writing [*] days in advance of its
expected delay in the performance of its obligations set forth in this Article
8, the storage charge shall commence [*] day after the occurrence
of the events set forth in this Article 8.1.
8.2 In
the event that an Aircraft's Contractual
Delivery Date must be extended by Embraer from that which is designated pursuant
to Article 5, due to Buyer's failure to perform any action or provide any
information required to be performed or provided
by Buyer 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 [*] day after the Contractual
Delivery Date relative to such Aircraft.
8.3 Buyer
shall pay the storage charge set forth in Article 8.1 and 8.2, as applicable,
per each month of delay or part thereof, within [*] after the presentation of
each invoice by Embraer.
9. DELAYS
IN DELIVERY
9.1
Excusable Delays:
[*]
9.2
Non-Excusable Delays:
[*]
*
Confidential
|
Purchase
Agreement 0190-10 Final Version
|
Page of 6 of
20
|
9.3 Delay
Due to Loss or Structural Damage of the Aircraft: Should any Aircraft be
destroyed or damaged before acceptance by Buyer to the extent that it becomes
commercially useless, Buyer may, at its sole discretion take a replacement
Aircraft of the same model under the same terms and conditions of this Agreement
at a later delivery date to be agreed by the Parties.
Within
one (1) month after such loss, Embraer will provide Buyer
with a new delivery date for a replacement Aircraft of the same
model. If Buyer in its sole discretion rejects the new delivery date
after further consultation with Embraer on scheduling the delivery of the
Aircraft, Buyer may terminate this Agreement with respect to such Aircraft,
[*]. In the event
Embraer [*].
10. INSPECTION
AND QUALITY CONTROL
10.1
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 was
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 to Embraer. Buyer's
representatives shall be allowed to observe certain intermediate stages of the
Aircraft assembly during its manufacture.
10.2
Buyer shall notify Embraer of the name of each of such authorized representative
at least [*] and which
Aircraft it desires to follow and which phase of the production process it
desires to observe. Buyer's representatives shall not interfere with or hinder
the production or manufacture of any Aircraft. Buyer may substitute authorized
representatives, provided written notice is given to Embraer [*].
10.3 Such
representatives may also be authorized to sign the acceptance and transfer of
title and risk documents and accept delivery of the Aircraft pursuant to Article
7.
10.4 With
respect to this Article 10, Embraer shall provide for use in accordance with the
Agreement at no cost to Buyer, communication facilities (internet access,
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.
10.5
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.
10.6
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.
11. CHANGES
11.1 At
delivery each Aircraft will comply with the standards defined in the applicable
Attachment “A”. Also, each Aircraft shall incorporate all modifications which
are classified as Airworthiness Directives (AD’s) mandatory by ANAC or FAA and
shall also at the Actual Delivery Date incorporate any change agreed upon by
Buyer and Embraer in accordance with this Article 11.
*
Confidential
|
Purchase
Agreement 0190-10 Final Version
|
Page of 7 of
20
|
[*]
11.2
Embraer can make changes in the design of the Aircraft in accordance with the
terms and conditions set forth in Articles 11.2 through 11.7. The definition of
which and its respective classification shall be in compliance to the Aircraft
type specification, as follows:
11.2.1
Minor Changes: defined as those modifications which shall not adversely affect
the Aircraft in any of the following characteristics:
[*]
11.2.2
Major Changes: defined as those modifications, which affect at least one of the
topics mentioned in Article 11.2.1.
11.3
Embraer shall have the right, but not the obligation, to incorporate Minor
Changes in the Aircraft still in the production line at its own cost, without
the prior consent of Buyer.
11.4
Embraer shall provide Buyer with written notice (the "Proposal of Major Change
or PMC") of those Major Changes that are classified as AD's by means of service
bulletins approved by the Aviation Authority and/or ANAC, as appropriate.
Service bulletins that implement such AD's shall be referred to as Mandatory
Service Bulletins ("MSB"). Embraer shall incorporate Mandatory Service Bulletins
as follows:
11.4.1
Compliance required before Contractual Delivery Date: Embraer shall incorporate
MSB in undelivered Aircraft at Embraer's expense in a reasonable period of time
if the compliance time for such MSB is before the Aircraft's Contractual
Delivery Date. Embraer shall not be liable for any delays resulting from
incorporation of MSB when the Aircraft has already passed the specific
production stage affected by the incorporation of said change but Embraer shall
[*] to incorporate such
changes prior to the Aircraft's Contractual Delivery Date [*]. In the event of delay
caused by incorporation of any Embraer Service Bulletin (other than an MSB),
[*].
11.4.2
Compliance required after Contractual Delivery Date: During the applicable
Aircraft warranty coverage periods as specified in the Aircraft Warranty that is
the subject of Attachment "C", Embraer shall [*]. When flight safety is
affected, such changes shall be immediately incorporated. If warranty coverage
is not available or applicable pursuant to Attachment "C", the provisions of
Article 11.5 shall apply.
11.5
Except for the Major Changes referred to in Article 11.4, any other Major
Change, such as (i) any change developed by Embraer as product improvement, (ii)
any change requested by Buyer in relation to the Aircraft configuration, or
(iii) any change required by the Aviation Authority as a consequence of
alterations, amendments and/or innovations of its present applicable
regulations, shall be considered as optional and, pursuant to Buyer's request,
Embraer shall submit to Buyer a Proposal of Major Change ("PMC"), which shall
describe all possible impacts on the provisions contained in this Agreement,
including but not limited to Aircraft pricing, weight, etc. Should Buyer not
approve such PMC, the change shall not be incorporated in the
Aircraft.
11.6 Any
Major Change to an Aircraft, made in accordance with the foregoing paragraphs
that affect the provisions of the applicable 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's Contractual Delivery Date, a copy of which shall be received by
Embraer, duly signed, prior to such Aircraft's Actual Delivery
Date.
*
Confidential
|
Purchase
Agreement 0190-10 Final Version
|
Page of 8 of
20
|
11.7
Except [*] should an
Aircraft not comply with the terms and conditions of the applicable Attachment
“A” Buyer shall be entitled to either [*]. Determination of such
compliance shall be made by Buyer pursuant to Article 7.
12. WARRANTY
The
materials and workmanship relative to the Aircraft subject to this Agreement
will be warranted in accordance with the terms and conditions specified in
Attachment "C". [*]
13. PRODUCT
SUPPORT PACKAGE
Embraer
shall supply to Buyer the Product Support Package described in Article 2 of
Attachment "B", which includes Embraer's spare parts policy, the Technical
Publications and the Services.
14. ASSIGNMENT
14.1
Buyer may request, and Embraer will take, any action reasonably necessary for
the purpose of causing an Aircraft at the time of delivery to be subject to an
equipment trust, conditional sale, lien, lease or other arrangement for the
initial financing of the Aircraft in connection with the delivery of such
Aircraft to Buyer, provided however that [*] the assignment of its
rights and obligations contained in Attachment C shall be governed by the
provisions of Attachment C.
14.2 Buyer may
assign its rights with respect to Aircraft to another wholly-owned subsidiary of
Republic Airways Holdings Inc. ("Holdings", and such subsidiary, the “Sibling”)
as provided in this Article 14.2. Such assignment and the Sibling’s exercise of
such rights shall be subject to [*].
14.3
Except as expressly permitted by this Article 14, neither Embraer's nor Buyer's
rights and obligations hereunder may be assigned, conveyed, subcontracted,
transferred or delegated, without the other party's prior written
consent.
14.4
Holdings shall guarantee the obligations of Buyer hereunder pursuant to a
guarantee in the form attached hereto as Attachment "K", 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 Holdings breaches, defaults, or fails to
perform under such guarantee.
15. RESTRICTIONS
AND PATENT INDEMNITY
15.1
Claims Against Buyer. Embraer shall indemnify and hold Buyer, its subsidiaries
and affiliates, and their officers, directors, agents and employees
(collectively, for purposes of this Article 15, "Buyer") harmless from and
against any and all royalties, liabilities, damages, settlement costs and
expenses, losses, claims, actions, lawsuits, demands, fines, penalties, and all
expenses (including but not limited to costs of investigation and defense and
reasonable fees incurred for attorneys, expert witnesses, consultants and
litigation support services) associated with any of the foregoing (collectively,
the "Damages") based upon, caused by, arising from, or in any manner connected
with, directly or indirectly, any suit, action, proceeding, allegation,
assertion or claim that
|
|
(x)
any article or service purchased or supplied hereunder or any portion
thereof (including without limitation any accessory, equipment or part
supplied to Embraer from any other manufacturer, or supplier)
(collectively, "Item") and/or the use or operation thereof constitutes an
infringement of any United States or foreign patent, design or model duly
granted or registered ("Claim"), provided that from the time of design of
such Item and until such Claim is resolved, such foreign country in which
any foreign patent is held and the flag country of the Aircraft is each a
party to (1) the International Convention for the Protection of
International Property (Paris Convention) in any of its revised forms or
(2) Article 27 of the Chicago Convention on International Civil Aviation
of December 7, 1944, or
|
*
Confidential
|
Purchase
Agreement 0190-10 Final Version
|
Page of 9 of
20
|
|
|
(y)
Aircraft software or materials, or any part of such Aircraft software or
materials as furnished by Embraer, and used within the scope of the
license granted by Embraer, constitutes an alleged or actual infringement
of any copyright of the United States or misappropriates any third party
trade secret ("Copyright Claim"), provided that from the time of design of
such item and until such Copyright Claim is resolved, any such foreign
country in which the infringement claim is made and the flag country of
the Aircraft is each a member of The Berne
Union.
|
The
indemnification by Embraer provided in this Paragraph 15.1 shall not apply to
Buyer furnished or installed equipment, engines, or APUs and their related
parts.
15.2
Buyer’s Remedies and Judgments. In connection with the foregoing,
Embraer agrees to defend at its expense any suit or action in respect of any
claim or copyright claim. Buyer’s remedy and Embraer’s obligation and
liability under this Article 15 are conditional upon Buyer giving Embraer
written notice promptly after Buyer receives notice of a suit or action against
Buyer alleging infringement or after Buyer receives a written claim of
infringement, whichever is earlier. Failure to notify Embraer as
provided in the foregoing sentence shall relieve Embraer of liability that it
may have to Buyer only to the extent that the defense of any such claim is
prejudiced thereby. Embraer’s obligations hereunder with respect to any actual
or alleged infringement are also conditioned upon (i) Buyer's promptly
furnishing to Embraer all the data, papers, records and other assistance within
the control of Buyer material to the resistance of or defense against any such
charge or suits for infringement, (ii) upon Embraer’s reasonable request,
Buyer's use of diligent efforts in full cooperation with Embraer to reduce
royalties, liabilities, damages, costs and expenses involved, and (iii)
Embraer's prior approval of Buyer's payment, assumption or admission of any
liabilities, or royalties for which Embraer is asked to indemnify Buyer
hereunder. [*] Embraer shall
have the option but not the obligation at any time to conduct negotiations with
the party or parties charging infringement and may intervene in any suit
commenced. Whether or not Embraer intervenes in any such suit, it shall be
entitled at any stage of the proceedings to assume control and conduct the
defense and/or settlement of such suit or action either in the name of Embraer
or of Buyer, or both. Buyer shall cooperate with Embraer and shall,
upon Embraer’s reasonable request and at Embraer’s expense, arrange for
attendance of representatives of Buyer at hearings and trial and assist in
effecting settlements, securing and giving evidence, obtaining the attendance of
witnesses and in the conduct of the defense of such suits or actions. Embraer
shall assume and pay any and all [*] assessed against Buyer in
a judgment of any such suit or action, and Embraer will pay any payments in
settlement imposed upon or incurred by Buyer with Embraer’s approval, together
with all interest accruing after entry of any such judgment or after the making
of any such settlement, [*].
15.3
Continuing Use. In the event any Item purchased or supplied hereunder, or any
portion thereof, becomes the subject of any Claim or Copyright Claim, or if
Embraer in its reasonable judgment at any time decides that the item purchased
or supplied hereunder, or any portion thereof, shall become the subject of such
a Claim or Copyright Claim, Embraer shall promptly, but, in any event, no more
than thirty (30) days after receipt of written notice from Buyer of a Claim,
Copyright Claim or the entry of any order or decree permanently or temporarily
enjoining the use of the Item purchased or supplied hereunder, or any portion
thereof, at its own expense and option either: (i) obtain for Buyer the right to
use the infringing Item, or portion thereof; or (ii) replace, modify,
substitute, or update the infringing article, or portion thereof, so that it
becomes non-infringing.
*
Confidential
|
Purchase
Agreement 0190-10 Final Version
|
Page of 10 of
20
|
In the
event that any such suit or action results in an order, decree or judgment
enjoining or otherwise prohibiting Buyer from effectively using any Item for its
intended purposes, or any settlement made or approved by Embraer has such
result, Embraer agrees at its option and expense to promptly either: (i) procure
for Buyer the right to continue using said Item; or (ii) modify said Item so
that it becomes non-infringing and otherwise complies with the provisions of
this Agreement; or (iii) replace said item with a non-infringing Item suitable
for Buyer's requirements and in a condition equivalent to that of the Item
removed. The foregoing provisions hereof shall apply in case of any
such order, decree, judgment or settlement prohibiting Buyer from effectively
using any component or part of the Item.
If the
party or parties making a claim or copyright claim for which Embraer has agreed
to indemnify Buyer hereunder obtains an injunction restraining Buyer's use of
the Item and a bond or other security will be necessary and efficacious to void
same, Embraer shall promptly pay to Buyer the amount of premium for any bond or
the costs of any other security given by Buyer to release or void such
injunction, or alternatively at Embraer's election shall furnish such bond or
other security in Buyer's behalf.
15.4
Exemptions. [*]
from all damages caused by, arising from or in any way connected with in
the event of any suit or action relative to Buyer furnished designs, equipment,
materials or data, or any design which is imposed by Buyer on Embraer as an
alternative to Embraer’s suggested design, or any Buyer modification of the
Embraer supplied Item, or any component or part thereof, or any new designs,
equipment, materials or data incorporated, after delivery and acceptance of the
Item, by Buyer without the involvement of Embraer.
15.5
Modifications. The foregoing indemnity shall not extend to any claim of
infringement based on any modification, change or combination not in accordance
with Embraer's written procedures or without Embraer's written approval or
consent thereto, provided that the claim for infringement relates to the
combination, change or modification as opposed to solely the article itself.
However, the exclusion set forth in this subparagraph shall not relieve Embraer
of its obligation under this Article 15 if the Item continues to be infringing
after the removal, as the case may be, of any changes, modifications or
combinations, or after-incorporated designs, equipment, materials or
data.
15.6
Restrictions. The sales contemplated by this Agreement do not include the
transfer of the right to use, or any ownership of, design, copyrights, patents,
and other similar rights of Buyer.
*
Confidential
|
Purchase
Agreement 0190-10 Final Version
|
Page of 11 of
20
|
16. 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, 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 continue to show the
image of the Aircraft, free of any charge, for marketing purposes, with the
original colors and emblems, unless otherwise notified by Buyer, provided that
any prohibition 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. If the Aircraft is sold to or operated by or for another company
or person, Buyer shall upon Embraer’s request seek the approval of such other
company or person to show the image of the Aircraft as described
above.
17. 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. [*]
18. 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 including all matters of construction, validity
and performance.
19. ARBITRATION
19.1 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.
19.2 Any
dispute submitted for arbitration must be finally settled by binding and
confidential arbitration according to the Rules of the American Arbitration
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.
*
Confidential
|
Purchase
Agreement 0190-10 Final Version
|
Page of 12 of
20
|
19.3 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.
19.4 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.
19.5 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.
19.6 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 19.7.
19.7 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 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.
19.8 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.
|
Purchase
Agreement 0190-10 Final Version
|
Page of 13 of
20
|
20. SOVEREIGN
IMMUNITY, VENUE AND FORUM NON CONVENIENS
Embraer
represents and warrants that, under the laws of the United States or of any
other jurisdiction affecting Embraer, it 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 constitutes commercial acts done for
commercial purposes. The Parties 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 conveniens.
21. TERMINATION
21.1
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 [*] days. 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 [*].
21.2
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
[*].
21.3 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 [*].
21.4 If
Buyer terminates this Agreement in respect to an Aircraft or all Aircraft, as
the case may be, pursuant to Article 9.3 or 11.7, Embraer, upon Buyer's request,
shall [*].
21.5 In
the case of a termination of this Agreement or as to any Aircraft, the
indemnities set forth in Article 7.8 and 15 of this Agreement, Article 2.3.2.i
of Attachment "B", and the warranty as provided for in Attachment “C ” (and as
such warranty may have been assigned pursuant to Article 14.1), the ferry
equipment and product support package provided for in Attachment “B”[*] with respect to any
delivered Aircraft shall survive the termination of this Agreement or the
termination of this Agreement with respect to one or more Aircraft.
22. PURCHASE
OF CONDITIONAL AIRCRAFT
16.1 Subject
to being converted to a Firm Aircraft as provided below, the Conditional
Aircraft shall be delivered on the last day of the applicable month set forth
below or such earlier date in such month specified pursuant to Article
7.1.
|
Conditional
Aircraft |
Contractual
Delivery Date |
Conditional
Aircraft
|
Contractual
Delivery Date |
|||
|
07
|
Mar/12
|
16
|
[*]
|
|||
|
08
|
[*]
|
17
|
[*]
|
|||
|
09
|
[*]
|
18
|
[*]
|
|||
|
10
|
[*]
|
19
|
[*]
|
|||
|
11
|
[*]
|
20
|
[*]
|
|||
|
12
|
[*]
|
21
|
[*]
|
|||
|
13
|
[*]
|
22
|
[*]
|
|||
|
14
|
[*]
|
23
|
[*]
|
|||
|
15
|
[*]
|
24
|
Jun/13
|
*
Confidential
|
Purchase
Agreement 0190-10 Final Version
|
Page of 14 of
20
|
22.2
Buyer and Embraer shall amend this Agreement to convert each Conditional
Aircraft to Firm Aircraft, provided that [*].
23. OPTION
FOR THE PURCHASE OF ADDITIONAL AIRCRAFT
23.1
Buyer shall have the option to purchase up to twenty-four (24) option EMBRAER
190 Aircraft (the "Option Aircraft"). [*]
24. [*]
[*]
25. 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 Vice President, Contracts – Airline Market 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.
25.1
EMBRAER:
EMBRAER -
Empresa Brasileira de Aeronáutica S.A.
▇▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
12.227-901
São ▇▇▇▇ dos ▇▇▇▇▇▇ – SP – Brazil
Telephone:
(▇▇▇-▇▇) ▇▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇-▇▇) ▇▇▇▇-▇▇▇▇
25.2
BUYER:
Republic
Airline Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
and
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
*
Confidential
|
Purchase
Agreement 0190-10 Final Version
|
Page of 15 of
20
|
26. 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 without the other Party's
prior written consent, other than (i) to its accountants, attorneys, agents,
consultants or permitted assignees or (ii) with respect to delivery schedules
for relevant Aircraft, the applicable aircraft configuration and Attachment “C”
to potential financing parties and their consultants, provided that in either
case a Party (x) shall notify the other Party of such disclosure at or before
the time it is made and (y) shall have caused all recipients to comply with the
terms of this Article 26 prior to making such disclosure. 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 terminate this Agreement
pursuant to Article 21.3 if Buyer fails to comply with its obligations pursuant
to the previous two sentences (e.g., to notify Embraer that Buyer is require 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).
27. 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".
28. 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.
29. 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.
*
Confidential
|
Purchase
Agreement 0190-10 Final Version
|
Page of 16 of
20
|
30. 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.
31. 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.
32. REPRESENTATIONS
AND WARRANTIES
32.1
Effective as of the date of this Agreement and as of the Actual Delivery Date of
each Aircraft, Embraer represents and warrants that:
32.1.1
Embraer is a corporation duly organized, validly existing and in good standing
under the laws of Brazil, is the manufacturer of the EMBRAER 190 and EMBRAER 195
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.
32.1.2
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.
32.1.3
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.
32.1.4
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.
|
Purchase
Agreement 0190-10 Final Version
|
Page of 17 of
20
|
32.1.5
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.
32.1.6
Each of the foregoing representations and warranties shall survive the execution
and delivery of this Agreement and any termination hereof.
32.2
Effective as of the date of this Agreement and as of the Actual Delivery Date of
each Aircraft, Buyer represents and warrants that:
32.2.1
Buyer is a corporation duly organized and validly existing under the laws of the
its state of incorporation in the United States 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.
32.2.2
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.
32.2.3
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.
32.2.4
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.
32.2.5
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.
32.2.6
Each of the foregoing representations and warranties shall survive the execution
and delivery of this Agreement and any termination hereof.
|
Purchase
Agreement 0190-10 Final Version
|
Page of 18 of
20
|
33. FOREIGN
CONTENT
The
Aircraft contain commodities, technology and software that were exported from
the United States and other countries in accordance with their respective export
control regulations. Diversion contrary to U.S. law and/or any other applicable
law is prohibited.
Buyer
agrees to comply with any export and re-export control laws of the United States
and other countries applicable to the Aircraft, its parts, components,
technology and software and, upon Embraer’s request, to execute and deliver to
Embraer the relevant end-user certificates necessary for the export and transfer
of the Aircraft to Buyer.
|
Purchase
Agreement 0190-10 Final Version
|
Page of 19 of
20
|
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 de Aeronáutica S.A. | BUYER – Republic Airline Inc. | |||
| By: | /s/ Paulo ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ e ▇▇▇▇▇ | By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ | |
| Name: Paulo ▇▇▇▇▇ ▇▇ ▇▇▇▇▇ e ▇▇▇▇▇ | Name: | |||
| Title: Executive Vice-President |
Title:
|
|||
| Airline Market | ||||
| By: | /s/ ▇▇▇▇ ▇▇▇▇ ▇’▇▇▇▇▇ ▇▇▇▇▇▇ | |||
| Name: ▇▇▇▇ ▇▇▇▇ ▇’▇▇▇▇▇ ▇▇▇▇▇▇ | ||||
| Title: Vice President, Contracts | ||||
|
Airline
Market
|
||||
|
Date:
Place:
Sao ▇▇▇▇ dos ▇▇▇▇▇▇, Brazil
|
Date:
Place:
|
|||
|
Witnesses:
|
||||
| /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ | ||||
|
Name:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ID:
|
Name:
ID:
|
|||
|
Purchase
Agreement 0190-10 Final Version
|
Page of 20 of
20
|
|
ATTACHMENT “A1” – E190 AIRCRAFT
CONFIGURATION
|
|
1.
|
STANDARD
AIRCRAFT
|
The
aircraft shall be the EMBRAER 190 AR (certification designation: ERJ 190-100
IGW) jet aircraft manufactured in accordance with Embraer’s Technical
Description TD 190 Rev. 14 July 2010, which although not attached hereto, is
incorporated herein by reference, and (ii) the characteristics described in the
items below.
|
2.
|
OPTIONAL
EQUIPMENT:
|
2.1.
SELECTED OPTIONS
The
Aircraft shall be equipped with the following options equipments:
Aircraft
type and model
EMBRAER 190 AR with
CF34-10E6
Optional
Equipment
[*]
*
Confidential
| Attachment A1 to Purchase Agreement COM 0190-10 Final Version |
Page 1 of
1
|
|
ATTACHMENT “A1” – E190 AIRCRAFT
CONFIGURATION
|
|
3.
|
FINISHING
|
The
Aircraft will be delivered to Buyer as follows:
|
3.1
|
EXTERIOR
FINISHING:
|
The
fuselage of the Aircraft shall be painted according to Buyer’s colour and paint
scheme, which shall be supplied to Embraer by Buyer on or before six (6) months
prior to the first Aircraft Contractual Delivery Date. The wings and the
horizontal stabilizer shall be supplied in the standard colours, i.e., grey
BAC707.
[*]
|
3.2
|
INTERIOR
FINISHING:
|
Buyer
shall inform Embraer on or before [*] months prior to the first
Aircraft Contractual Delivery Date of its choice of materials and colours 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. The
above mentioned schedule for definition of interior finishing shall only be
applicable if Buyer selects its materials from the choices offered by and
available at Embraer. In case Buyer opts to use different materials and/or
patterns, such schedule shall be mutually agreed between the Parties no longer
than 1 month after signature of the Purchase Agreement.
[*]
|
3.3
|
BUYER
FURNISHED EQUIPMENT (BFE) AND BUYER INSTALLED EQUIPMENT
(BIE):
|
Buyer may
choose to have carpets, tapestries, seat covers and curtain fabrics supplied to
Embraer for installation in the Aircraft as BFE. Materials shall conform to the
required standards and comply with all applicable regulations and airworthiness
requirements. Delays in the delivery of BFE equipment or quality restrictions
that prevent the installation thereof in the time frame required by the Aircraft
manufacturing process shall entitle Embraer to either delay the delivery of the
Aircraft or present the Aircraft to Buyer without such BFE, in which case Buyer
[*].
The
Aircraft galleys have space provisions for the following BIE items that, unless
timely agreed by the Parties, are not supplied or installed by Embraer:
Trolleys, ovens, coffee makers, hot jugs, water boilers and standard
units.
[*]
|
3.4
|
EMBRAER
RIGHT TO PERFORM FOR BUYER:
|
If Buyer
fails to make any choice or definition which Buyer is required to make regarding
the exterior and interior finishing of any Aircraft or to inform Embraer thereof
and such failure continues for fifteen (15) days after Embraer gives notice of
such failure, Embraer shall have the right, but not the obligation, to make such
choice or definition on behalf of Buyer at its reasonable
discretion.
*
Confidential
| Attachment A1 to Purchase Agreement COM 0190-10 Final Version |
Page 2 of
2
|
|
ATTACHMENT “A1” – E190 AIRCRAFT
CONFIGURATION
|
The
taking of any such action by Embraer pursuant to this Article shall not
constitute a waiver or release of any obligation of Buyer under the Purchase
Agreement, nor a waiver of any event of default which may arise out of Buyer’s
nonperformance of such obligation, nor an election or waiver by Embraer of any
remedy or right available to Embraer under the Purchase Agreement.
No
compensation to Buyer or reduction of the Aircraft Purchase Price shall be due
by virtue of the taking of any such actions by Embraer and Embraer shall be
entitled to charge Buyer for the amount of the reasonable expenses of Embraer
incurred in connection with the performance of or compliance with such
agreement, as the case may be (to the extent not otherwise included in the Basic
Price), payable by Buyer upon demand.
|
4.
|
REGISTRATION
MARKS, TRANSPONDER AND ELT CODES:
|
The
Aircraft shall be delivered to Buyer with the registration marks painted on
them. The registration marks, the transponder code and ELT protocol coding shall
be supplied to Embraer by Buyer no later than ninety (90) days before each
relevant Aircraft contractual delivery date. Embraer shall be entitled to tender
the Aircraft for delivery to Buyer without registration marks, with an
inoperative transponder and without setting the ELT protocol coding in case
Buyer fails to supply such information to Embraer in due time.
|
5.
|
EXPORT
CONTROL ITEMS
|
The
Aircraft contains (i) an IESI (Integrated Electronic Standby Instrument System)
manufactured by Thales Avionics with an embedded QRS-11 gyroscopic microchip
used for emergency backup and flight safety information, and (ii) IRU (Inertial
Reference Unit) manufactured by Honeywell International. The IESI and the IRU
that are incorporated into this Aircraft are subject to export control under
United States of America law. Transfer or re-export of such items (whether or
not incorporated into the Aircraft), as well as their related technology and
software may require prior authorization from the US Government.
IT IS
HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT
BETWEEN THE TERMS OF THIS ATTACHMENT “A1” AND THE TERMS OF THE TECHNICAL
DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT “A1” SHALL
PREVAIL.
| Attachment A1 to Purchase Agreement COM 0190-10 Final Version |
Page 3 of
2
|
|
[*]
|
[*]
|
*Confidential
|
|
ATTACHMENT
B - FERRY EQUIPMENT AND PRODUCT SUPPORT
PACKAGE
|
|
1.
|
FERRY
EQUIPMENT AND ASSISTANCE
|
|
1.1
|
If
it is necessary for any ferry equipment to be installed by Embraer in the
Aircraft for the ferry flight between Brazil and the United States of
America, Embraer will make available a standard ferry equipment to Buyer
(hereinafter the “Kit”), at no charge to Buyer, except as set forth below.
In this case, Buyer shall immediately upon the Aircraft’s arrival in the
United States, remove the Kit from the Aircraft and deliver (or send it)
to Embraer Aircraft Customer Services, Inc. (“EACS”). EACS shall return
the Kit to Embraer in Brazil at [*] including the
necessary insurance.
|
If
Embraer provides the Kit to Buyer and if the Kit is either utilized, whether
totally or not, or if the Kit is not returned by Buyer, in Embraer’s reasonable
discretion, complete and in the same condition as it was delivered to Buyer,
Buyer shall pay Embraer the value of a new Kit. In such case, the original Kit
shall [*] and the
above-mentioned payment shall be made to Embraer by Buyer upon presentation of a
sight draft by Embraer.
|
1.2
|
[*]
|
|
1.3
|
At
no additional charge to Buyer and at Buyer’s request, Embraer shall make a
representative available on board of the Aircraft during the ferry flight
in order to assist Buyer’s flight crew with the communication with
Brazilian custom clearances and Aircraft refueling individuals and to
assist in obtaining support from Embraer in case any such support becomes
necessary during the Brazilian portion of the ferry flight. Such
representative shall remain on board of the Aircraft until the last stop
in Brazilian territory. Any other arrangement shall be requested by Buyer
with [*] days prior to the relevant Aircraft
Contractual Delivery Date and Embraer will inform Buyer the terms and
conditions to provide such additional service to
Buyer.
|
|
2.
|
PRODUCT
SUPPORT PACKAGE
|
|
2.1
|
MATERIAL
SUPPORT
|
|
2.1.1
|
Spares
Parts General Policy: Embraer guarantees the supply of line replaceable units, spare parts, ground
support equipment and tooling, except engines and engine accessories, hereinafter referred to
as “Spare(s)”, for the Aircraft for a period of [*] years after
production of the last aircraft of the same type. Such Spares 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 Spares may be supplied either by Embraer in
Brazil or through its subsidiaries or distribution centers located
abroad.
|
Embraer’s
spare parts policy is to provide the following categories of spares as specified
in the respective Embraer publications and available to be purchased through
Embraer:
|
·
|
Line
Replaceable Units (LRU’s);
|
|
|
·
|
Parts
to repair and overhaul components manufactured under Embraer specification
to be used only on the Aircraft;
|
|
|
·
|
Parts
to line maintenance;
|
|
|
·
|
Parts
to fulfill all maintenance tasks per maintenance manual and/or maintenance
plan issued by Embraer;
|
|
|
·
|
Embraer-made
parts;
|
*
Confidential
|
ATTACHMENT
B - FERRY EQUIPMENT AND PRODUCT SUPPORT
PACKAGE
|
|
·
|
Aircraft
Ground Equipment (AGE);
|
|
|
·
|
Aircraft
Ground Equipment spare parts manufactured under Embraer
specifications;
|
|
|
·
|
Special
tools; and
|
|
|
·
|
Bulk
materials.
|
|
2.1.2
|
Recommended
Spare Parts List (“RSPL”): Upon Buyer’s request, Embraer shall present to
Buyer a recommended Spare provisioning list (the “RSPL”). The objective of
the RSPL is to provide Buyer with a detailed list of Spares that will be
necessary to support the initial operation and maintenance of the Aircraft
by Buyer. Such recommendation will be based on the experience of Embraer
and on the operational parameters established by
Buyer.
|
Embraer
will provide a qualified team to attend pre-provisioning conferences, as
necessary, to discuss Buyer requirements and the RSPL as well as any available
spare parts support programs offered by Embraer. Such meeting shall be held at a
mutually agreed upon place and time, [*] prior to the Contractual
Delivery Date of the first Firm Aircraft.
Buyer may
elect to acquire all the items contained in the RSPL or to combine a partial
acquisition of the RSPL items with a participation in the special spare parts
support programs, available from Embraer.
Buyer may
acquire the items contained in the RSPL directly from Embraer (the “IP Spares”)
or directly from Embraer’s vendors. (If Buyer places a IP Spares purchase order
on or before [*] days
prior to the first Contractual Delivery Date of a Firm Aircraft, on or before
[*] days prior to the
second Firm Aircraft Contractual Delivery Date, and on or before [*]. For purchase
orders placed by Buyer after the schedule
set forth above, the IP Spares shall be provided to Buyer in accordance with the
quoted lead times.
Embraer
will deliver the IP Spares in FCA (Free Carrier - Incoterms 2000) condition, at
the port of clearance indicated by Embraer
[*].
If
requested by Buyer, Embraer will update the data of the RSPL incorporating
engineering and price changes. Embraer will maintain a master copy of the RSPL
updated [*].
|
2.1.3
|
Credit
for surplus IP Spares: Embraer offers to Buyer a program for certain
surplus IP Spares manufactured by Embraer 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:
|
|
a.
|
Credit
Program: During the period commencing [*] after delivery of
the first Aircraft under the Purchase Agreement of which this is an
Attachment and ending [*] after such delivery,
Embraer will, [*]
offer a credit for new and unused IP Spares manufactured by Embraer (i)
which have been supplied by Embraer as IP Spares for the Aircraft subject
of this Agreement and (ii) which are surplus to Buyer´s needs. Such credit
may be used toward the purchase of Spares manufactured by Embraer,
Technical Publications or Services (excluding training) offered by
Embraer.
|
*
Confidential
|
Attachment
“B” to Purchase Agreement COM 0190-10 Final Version
|
Page 2 of
2
|
|
ATTACHMENT
B - FERRY EQUIPMENT AND PRODUCT SUPPORT
PACKAGE
|
|
|
a.1
|
Exceptions:
Embraer will not issue credits for IP Spares which were purchased by Buyer
in excess to or differently from the IP Spares recommended in writing by
Embraer to Buyer by the IPL as initial provisioning for the Aircraft and
for IP Spares which have become obsolete or have been superseded by
another part as a result of (i) Buyer’s modification of an Aircraft for
which the IP Spares were purchased; (ii) Embraer design improvements
(except for IP Spares which have become obsolete because of a defect in
design); (iii) IP Spares which are shelf-life limited; (iv) damaged IP
Spares; or (v) IP Spares that were not properly
stored.
|
|
|
a.2
|
Credit values: The credit for each IP Spare to be
issued by Embraer will be: (i) an amount equal to [*] or (ii) an amount equal to [*] whichever is
less.
|
|
|
a.3
|
Delivery of surplus IP Spares: IP Spares for which
a credit has been requested shall be delivered by Buyer, freight and
insurance prepaid, to Embraer’s plant in
São ▇▇▇▇ dos ▇▇▇▇▇▇, ▇▇, Brazil, or any other destination as Embraer may
reasonably designate. All returned IP Spares are subject to
Embraer’s quality control inspection and acceptance. All
IP Spares which are rejected by Embraer’s quality
control and/or are included in the exceptions set forth in paragraph a.1
hereinabove, will be returned to Buyer at Buyer’s expense,
no credit being due in this
case.
|
|
|
a.4
|
Credit issue: After Embraer’s acceptance
of those IP Spares 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.
|
|
2.1.4
|
Other
Spare Parts Services:
|
|
a.
|
AOG
services: Embraer will maintain a call center for the AOG services,
twenty-four (24) hours a day, seven (7) days a week. All the contacts with
the call center can be made through TOLL FREE numbers (phone and fax),
e-mail [*].
Embraer will also maintain the regular direct lines (phone and fax), in
case of failures. The information concerning TOLL FREE, regular lines and
e-mail address can be obtained through the Customer Account Manager
designated to Buyer by Embraer or through Embraer’s Customer Service
offices. Embraer will deliver parts under AOG from Buyer nearest location,
provided that the part is available at this location at the moment of the
request, in FCA condition - Embraer’s facility, respecting Buyer’s
shipping instructions.
|
Other
than AOG orders, Buyer may expedite spare parts orders as spare parts critical
orders (imminent AOG or work stoppage situation) or as spare parts routine
expedite orders (urgent stock replenishment – “USR”). [*]
[*]
|
b.
|
Routine
and/or Critical Spares: Embraer will deliver routine and/or critical
Spares (other than AOG Spares) in [*] depending on where
the purchase order was placed with or otherwise agreed between Embraer and
Buyer. Routine and/or critical Spares shall be delivered according to
their lead times, depending upon the purchase order priority and with the
respective authorized release certificate or any similar document issued
by a duly authorized person.
|
*
Confidential
|
Attachment
“B” to Purchase Agreement COM 0190-10 Final Version
|
Page 3 of
3
|
|
ATTACHMENT
B - FERRY EQUIPMENT AND PRODUCT SUPPORT
PACKAGE
|
|
2.1.5
|
Parts
Exchange Program: According to its prevailing availability, Embraer may
offer an “exchange program” for repairable parts whenever the vendor does
not have its own exchange program.
|
|
2.1.6
|
Parts
Repair Program: For any repair required by Buyer on any Embraer or vendor
repairable item, Embraer may assist Buyer to perform such repair in order
to ensure the shortest turn around time
(TAT).
|
|
2.1.7
|
Pricing:
Embraer will maintain a spare parts price list updated periodically. Items
not shown on the list will be quoted on
request.
|
|
2.2
|
AIRCRAFT
TECHNICAL PUBLICATIONS:
|
|
2.2.1
|
Aircraft
Publications: Embraer shall supply, at no additional charge to Buyer,
[*] complete sets
of operational and maintenance publications
(as defined in Exhibit 1 hereto), plus one (1) operational set (as
defined in Exhibit 1 hereto) on board of each Aircraft to be delivered to
Buyer, in the English language. The list of manuals is specified in
Exhibit “1” to this Attachment “B”. Such publications are issued under the
applicable specification and are [*]. The revision
service for these publications is provided, [*] and the software
license fee [*].
|
|
2.2.2
|
Vendor’s
items Publications: With respect to vendor items installed in the Aircraft
which have their own publications, Buyer will receive them in the same
quantity specified in paragraph 2.2.1, 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
Buyer.
|
|
2.2.3
|
All
Embraer Operational and Maintenance Technical Publications are available
[*] except for
[*] that are
available [*].
|
Maintenance
Technical Publications, [*] will be provided [*].
|
2.2.4
|
The
Parties further understand and agree that in the event Buyer elects not to
take all or any one of the publications above mentioned, or revisions
thereof, no refund or other financial adjustment of the Aircraft Basic
Price will be made since such publications are offered at no charge to
Buyer.
|
|
2.2.5
|
The
terms and conditions of this Article 2.2 do not apply to [*] except for [*] that Embraer shall
[*].
|
|
2.3
|
SERVICES
|
Embraer
shall provide familiarization programs and on-site support for the Aircraft (the
“Services”) in accordance with the terms and conditions described
below:
|
2.3.1
|
Aircraft
familiarization program:
|
|
a.
|
The
familiarization program specified in paragraph “e” below (the “Training
Package”) is being offered at [*] except for the [*] which are used in
flight training to be performed in the Aircraft, if any, as well as,
travel and board & lodging expenses of Buyer’s trainees, [*]. The Training
Package shall be conducted in accordance with Buyer’s training program and
with all applicable regulations and requirements of the Aviation
Authority.
|
*
Confidential
|
Attachment
“B” to Purchase Agreement COM 0190-10 Final Version
|
Page 4 of
4
|
|
ATTACHMENT
B - FERRY EQUIPMENT AND PRODUCT SUPPORT
PACKAGE
|
|
b.
|
Notwithstanding the eventual use of the term
“training” in this
paragraph 2.3.1, the intent of this program is solely to familiarize
Buyer’s pilots, mechanics, employees or representatives,
duly qualified per the governing body in the country of Buyer’s operation,
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 Buyer.
|
|
c.
|
The Training Package, as applicable, shall occur
prior to the [*] Aircraft Actual Delivery Date, as it shall be
previously agreed upon by Buyer and Embraer[*].
|
Buyer
must give written notification to Embraer [*] days in advance of Buyer’s expected training
schedule (including the full name and identification of each attendee) and Buyer
shall [*]. Substitutions
will not be accepted for training within this period.
[*] should Buyer not take all
or any portion of the Training Package on or before [*] Buyer shall be deemed to
have fully waived its rights to such service, no refund or indemnity being due
by Embraer to Buyer in this case.
|
d.
|
The Training Package shall be conducted by
Embraer’s designated trainer provider in United States, or at such other location, as Embraer shall
reasonably designate [*].
|
|
e.
|
The Training Package
covers:
|
|
e.1
|
One (1) Pilot Familiarization Program for up to
[*]
including (i) ground familiarization as regards Aircraft systems, weight
and balance, performance and normal/emergency procedures and, (ii) flight
simulator training in [*] in accordance with
the Aviation Authority’s approved Flight Operations Training
Program.
|
|
e.2
|
One
(1) Maintenance Familiarization Course for up to [*]. This course shall
consist of classroom familiarization with Aircraft systems and structures
and shall be in accordance with ATA specification 104, level
III.
|
|
e.3
|
One
(1) Flight Attendant Familiarization Course for up to [*]. This course shall
consist of classroom familiarization, including a general description of
Aircraft and systems to be used by flight
attendants.
|
|
|
f.
|
Buyer shall be solely responsible for submitting
its training programs to the Aviation Authority for
approval.
|
|
g.
|
The presence of Buyer’s authorized
trainees 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 of such trainees to the
extent permitted by
law.
|
Any other
service will be subject to a specific agreement to be negotiated by the Parties
and will be charged by Embraer accordingly.
|
2.3.2
|
[*]
support:
|
|
a.
|
Embraer
shall identify in its sole discretion, and provide a technical support
representative (“TSR”) [*].
|
*
Confidential
|
Attachment
“B” to Purchase Agreement COM 0190-10 Final Version
|
Page 5 of
5
|
|
ATTACHMENT
B - FERRY EQUIPMENT AND PRODUCT SUPPORT
PACKAGE
|
|
b.
|
TSR shall assist and advise Buyer on the Aircraft
maintenance during its initial operation and act as liaison between Buyer
and Embraer.
|
|
c.
|
At no charge to Embraer, Buyer shall provide each
such TSR with communication services (internet access, telephone,
facsimile) as well as office space and facilities at Buyer’s designated
maintenance base. Buyer shall also (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 2.3.2, in due
time; and (b) obtain all necessary custom clearances both to enter and
depart from Buyer’s country for Embraer’s employees
and their personal belongings and professional
tools.
|
|
d.
|
During the [*] Buyer shall permit access to the maintenance and
operation facilities as well as to the data and files of Buyer’s fleet of
each Aircraft Group. It is hereby agreed and understood that Buyer shall
make available [*] one (1) set of updated Technical Publications
relating to such Aircraft Group as referred to in Article 2.2 above, it
being Buyer’s responsibility to perform the revision services
in order to maintain such publications updated within the period
[*].
|
|
e.
|
Buyer shall bear all expenses related to
[*].
|
|
f.
|
Without a previous written authorization from
Embraer, TSR shall not participate in test flights or flight
demonstrations. In case Buyer obtains such previous authorization, Buyer
shall include the TSR in Buyer’s insurance
policy. Embraer reserves the right to halt the services mentioned in this
item 2.3.2, should any of the following situations occur at
Buyer’s base: a) there is a labor dispute or work
stoppage in progress; b) war or war like operations, riots or
insurrections; c) any conditions which is dangerous to the safety or
health of Embraer’s employee; or d) the government of
Buyer’s country refuses permission to
Embraer’s employee to enter the
country.
|
|
g.
|
The Parties further understand and agree that in
the event Buyer elects not to take all or any portion of the [*] support provided for herein, [*]. Any other additional [*] support shall depend on mutual agreement between
the Parties and shall be charged by Embraer
accordingly.
|
|
h.
|
The presence of TSR shall be allowed exclusively
in those areas related to the subject matter hereof and Embraer agrees to
hold harmless Buyer from and against all and any kind of liabilities in
respect of such TSR to the extent permitted by
law.
|
*
Confidential
|
Attachment
“B” to Purchase Agreement COM 0190-10 Final Version
|
Page 6 of
6
|
|
ATTACHMENT
B - FERRY EQUIPMENT AND PRODUCT SUPPORT
PACKAGE
|
|
i.
|
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 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,
including, but not limited to, the Services and any other services such as
technical operations, maintenance, and training services and assistance
performed while on the premises of Embraer or Buyer, while in flight on
Buyer-owned Aircraft or while performing such activities, at any place, in
conjunction with the Aircraft operations of Buyer, [*].
|
*
Confidential
|
Attachment
“B” to Purchase Agreement COM 0190-10 Final Version
|
Page 7 of
7
|
|
EXHIBIT
1 TO ATTACHMENT B – LIST OF TECHNICAL
PUBLICATIONS
|
[*] of the following technical publications covering
Aircraft operation and maintenance, plus
[*] shall be delivered to Buyer
in accordance with the following list:
OPERATIONAL
SET
|
1.
Airplane Flight Manual (AFM)(*)
|
|
2.
Weight & Balance Manual (WB)(*)
|
|
3.
Airplane Operations Manual (AOM)(*)
|
|
4.
Quick Reference Handbook (QRH)(*)
|
|
5.
Dispatch Deviation Procedures Manual (DDPM)(*)
|
|
6.
Operational Bulletins Set (OB)
|
|
7.
Master Minimum Equipment List ANAC (MMEL)
|
|
8.
Standard Operating Procedures Manual (SOPM)
|
|
9.
Flight Attendant Manual (FAM)
|
MAINTENANCE
SET
|
1.
Aircraft Maintenance Manual (AMM)
|
|
2.
Aircraft Illustrated Parts Catalog (AIPC)
|
|
3.
Fault Isolation Manual (FIM)
|
|
4.
Non Destructive Testing Manual (NDT)
|
|
5.
Maintenance Planning Document (MPD)
|
|
6.
Wiring Manual (WM)
|
|
7.
Structural Repair Manual (SRM)
|
|
8.
Service Bulletins Set (SB)
|
|
9.
Service Newsletters (SNL)
|
|
10.
Parts Information Letter (PIL)
|
|
11.
System Schematic Manual (SSM)
|
|
12.
Instructions for Ground Fire Extinguishing and Rescue
(IGFER)
|
|
13.
Airport Planning Manual (APM)
|
|
14.
Illustrated Tool & Equipment Manual (ITEM)
|
|
15.
Task Card System CDROM (TCS)
|
|
16. Ramp
Maintenance Manual (RMM)
|
|
17.
Vendor Service Publications Set (**)
|
|
18.
Corrosion Prevention Manual (CPM)
|
|
19.
Embraer Component Maintenance Manual (CMM)
|
|
20.
Airplane Recovery Manual (ARM)
|
|
21.
Maintenance Facility and Equipment Planning (MFEP)
|
|
22.
Standard Wiring Practices Manual (SWPM)
|
|
23.
Standard Manual (SM)
|
|
24.
Consumable Products Catalog (CPC)
|
|
25.
Maintenance Review Board Report
(MRB)
|
[*]
*
Confidential
|
Exhibit
1 to Attachment B to Purchase Agreement COM 0190-10 Final
Veraion
|
Page 7 of
7
|
|
ATTACHMENT
“C” – WARRANTY – MATERIAL AND
WORKMANSHIP
|
|
1)
|
Embraer,
subject to the conditions and limitations hereby expressed, warrants the
Aircraft subject of the Purchase Agreement to which this is an Attachment,
as follows:
|
|
a.
|
For
a period of [*]
months from the date of delivery to 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 [*]
months from the date of delivery to Buyer, each 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
(“Vendor Parts”), 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 of Vendor Parts to the technical specification
referred to in 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 or ground support equipment, not including Engines, APU and
their Accessories, which have been manufactured by Embraer or by its
subcontractors holding an Embraer part number, which will permit their
particular identification and which have been sold by Embraer or its
representatives will, for a period of [*] months from the date
of the invoice, be free from defects of material, workmanship,
manufacturing processes and defects inherent to the design of the above
mentioned parts or ground support
equipment.
|
|
b.
|
All
spare parts or ground support equipment, which have been designed and
manufactured by vendors, not including Engines, APU and their related
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 [*] months from the date
of the invoice, be free from malfunction, defect of material and
manufacture.
|
|
3)
|
The
obligations of Embraer as expressed in this Warranty are limited to
replace or repair defective parts, depending solely upon its own judgment.
The defective parts shall be returned to Embraer or its representatives
within a period of [*] days after the later
of either the occurrence of the defect, or after Buyer should reasonably
have been aware of the defect, whichever is longer, at Buyer’s own expense
(including but not limited to, freight, insurance, 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 returned to Embraer within
such [*] day period, Embraer may have the right, at
its sole discretion, to deny the warranty claim. [*]
|
*
Confidential
|
Attachment
“C” to Purchase Agreement COM 0190-10 Final
Version
|
Page 1 of
3
|
|
ATTACHMENT
“C” – WARRANTY – MATERIAL AND
WORKMANSHIP
|
|
NOTE:
|
Notification
of any defect claimed under this item 3 must be given to Embraer within
[*] after such
defect is found.
|
Freight,
insurance, taxes and other costs incurred by Embraer or its representative for
the return of the part to Buyer, as well as the associated costs with the
reinstallation and adjustments are Buyer’s responsibility.
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.
|
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
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)
|
This
Warranty does not apply to defects presented by expendable items, arising after the applicable service life
or maintenance cycle for such item,
and to materials or parts subjected to
deterioration.
|
|
6)
|
The
Warranty hereby expressed is established between Embraer and Buyer, and it
cannot be transferred or assigned to others, unless by written consent of
Embraer, according to Article 14 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 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;
|
*
Confidential
|
Attachment
“C” to Purchase Agreement COM 0190-10 Final
Version
|
Page 2 of
3
|
|
ATTACHMENT
“C” – WARRANTY – MATERIAL AND
WORKMANSHIP
|
|
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.
|
[*]
*
Confidential
|
Attachment
“C” to Purchase Agreement COM 0190-10 Final
Version
|
Page 3 of
3
|
|
[*]
|
[*]
|
*Confidential
|
|
[*]
|
[*]
|
*Confidential
|
|
[*]
|
[*]
|
*Confidential
|
|
ATTACHMENT
“G” – SERVICE LIFE
GUARANTEE
|
|
1.
|
If
during the first [*]
cycles, or [*] after the relevant
Aircraft Actual Delivery Date, whichever comes earlier, during the
Aircraft Service Life, any defects or material breakage related to fatigue
(a “Structural Defect”) occur in the Primary Structure of the
following:
|
|
a)
|
Fuselage
|
|
b)
|
Wings,
excluding the flight control
surfaces
|
|
c)
|
Pylon
|
|
d)
|
Empennage,
excluding flight controls
surfaces
|
|
e)
|
Landing
gears
|
“Primary
Structure” being defined as those parts which are considered main structural
elements, designed and directed to carry the flight loads and inertial loads
subject to occur during normal flight operating conditions, as specified for in
the approved Airplane Flight Manual or other applicable approved Technical
Publications, but not including the fairings, wing tips, stabilizer tips,
vertical stabilizer front fairing, aileron, flaps, rudder and other secondary
elements not having primary structural function), Embraer shall provide to Buyer
a design remedy and a corrective modification kit or replacement item as
appropriate, being such costs borne by the Parties as described in the table
below:
[*]
|
2.
|
Landing
gear restoration performed in accordance with Buyer’s Aviation Authority
approved maintenance program and Embraer’s recommendations shall not be
deemed to be a failure for purposes of this Service Life
Guarantee.
|
|
3.
|
Embraer
shall not have any obligation to Buyer under this Service Life Guarantee
to the extent that the Structural Defect results directly and primarily
from:
|
|
|
a.
|
Buyer
failing to maintain, inspect or operate the Aircraft substantially as
required by applicable maintenance manuals as amended from time to time or
in accordance with the applicable airworthiness regulation then in force
and the most recently updated Aviation Authority approved Operations and
Airplane Flight Manual.
|
|
|
b.
|
Buyer
operating the Aircraft in a manner that differs in any significant respect
from normal passenger service
operations.
|
|
|
c.
|
Structural
Defects having been caused directly and primarily by accidental or willful
damage to the Aircraft, use of parts or repairs not approved by Embraer,
hard landings as defined in the Buyer’s Maintenance Program, violent
evasive action or similar abnormal use of the
Aircraft.
|
|
|
d.
|
Buyer
not having adequately trained personnel in structural inspection and
detection techniques in Aircraft structures and
components.
|
|
4.
|
This
Service Life Guarantee is applicable only to Structural Defects and shall
not extend to any component in any structural item incorporated in the
Aircraft if such components are stated in Embraer’s Technical Publications
to have a safe life of less than [*] cycles or [*] and is subject to
written notification having been given to Embraer by Buyer of any claim
hereunder within [*] of the determination
by Buyer that said Structural Defects
exist.
|
*
Confidential
|
Attachment
“G” to Purchase Agreement COM 0190-10 Final
Version
|
Page 1 of
2
|
|
ATTACHMENT
“G” – SERVICE LIFE
GUARANTEE
|
|
5.
|
THE
GUARANTEES, OBLIGATIONS AND LIABILITIES OF EMBRAER, AND REMEDIES OF BUYER
SET FORTH IN THIS AIRCRAFT SERVICE LIFE GUARANTEE ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL
OTHER RIGHTS, CLAIMS, DAMAGES AND REMEDIES OF BUYER AGAINST EMBRAER OR ANY
ASSIGNEE OF EMBRAER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE,
SOLELY WITH RESPECT TO ANY GUARANTEED LEVEL OF AIRCRAFT SERVICE
LIFE.
|
|
6.
|
The
terms and conditions of this Service Life Guarantee do not alter, modify
or impair, in any way, the terms and conditions of Embraer’s standard
Aircraft Warranty Certificate, contained in Attachment C to the Purchase
Agreement.
|
|
7.
|
This
Service Life Guarantee is assignable under the terms and conditions of
Article 14 of the Purchase Agreement, but is not transferable in a sale,
sub-lease or other disposition of the
Aircraft.
|
|
Attachment
“G” to Purchase Agreement COM 0190-10 Final
Version
|
Page 2 of
2
|
|
[*]
|
[*]
|
*Confidential
|
|
[*]
|
[*]
|
*Confidential
|
|
ATTACHMENT
“I” – APPOINTMENT OF AUTHORIZED
REPRESENTATIVE
|
(“Buyer”)
hereby designates and appoints _________________ as the authorized
representative of Buyer for the purpose of inspecting, re-inspecting, 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 EMBRAER-_____ aircraft having
Manufacturer’s Serial No. _______ (including the engines, appliances and parts
installed thereon, the “Aircraft”), as defined in that certain Purchase
Agreement COM ▇▇▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Airline Inc. and EMBRAER dated November 3, 2010,
to be delivered by Embraer to Buyer pursuant to the Purchase Agreement
Assignment to be dated as of or about _________ __, 201_ between ……………… and
Buyer, including the authority to accept delivery of said Aircraft, and to
execute and deliver any additional documents with respect to the delivery for
said Aircraft in such form as such authorized representative executing the same
shall deem appropriate.
|
Dated:
|
__________
__, 201_
|
By:
Name:
Title:
The
foregoing appointment is hereby accepted
Name:
|
Attachment
“I” to Purchase Agreement COM 0190-10 Final
Version
|
Page 1 of
1
|
|
ATTACHMENT
“J” – FORM OF WARRANTY ▇▇▇▇ OF
SALE
|
KNOW ALL
MEN BY THESE PRESENTS THAT Embraer – Empresa Brasileira de Aeronáutica S.A.
(“SELLER”), a Brazilian company, whose address ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ -
Putim, São ▇▇▇▇ dos ▇▇▇▇▇▇, São Paulo, Brazil, is the owner of good and
marketable title to that certain EMBRAER-_____aircraft bearing Manufacturer’s
Serial No. ___________, with two General Electric
CF34-___ Engines bearing manufacturer’s serial numbers [________] and
[________], and all appliances, parts, instruments, appurtenances,
accessories, furnishings and/or other equipment or property incorporated in or
installed on or attached to said aircraft and
engines (hereinafter collectively referred to as the “Aircraft”) to be sold by SELLER under the Purchase Agreement COM 0190-10,
dated as of November 3, 2010, including Attachments, Exhibits, Letters,
Amendments and Agreements by and between SELLER and Republic Airline Inc.
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
__________, 201_, 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 ____________________, 201_.
EMBRAER –
EMPRESA BRASILIERA DE AERONAUTICA S.A.
By:
Name:
Title:
|
Attachment
“J” to Purchase Agreement COM 0190-10 Final
Version
|
Page 1 of
1
|
|
ATTACHMENT
“K” - FORM OF
GUARANTEE
|
FORM OF
GUARANTY
FOR VALUE
RECEIVED, Republic Airways Holdings Inc., a corporation organized under the laws
of Delaware (“Guarantor”), pursuant to Article 14.4 of that certain Purchase
Agreement COM 0190-10 dated as of November 3, 2010 between Republic Airline Inc.
(“Buyer”) and EMBRAER-Empresa Brasileira de Aeronáutica 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
performance and observance by Buyer of each covenant, agreement, undertaking,
representation, warranty and any other obligation or condition binding upon or
to be performed or observed by it under and in accordance with the terms of the
Purchase Agreement, and (ii) the due and
punctual payment of each amount that Buyer is or may become obligated to pay
under and in accordance with the terms of the Purchase Agreement (such payment and other obligations of Buyer being
herein referred to as the “Obligations”) and in the event of any
nonpayment or nonperformance, agrees to pay or perform or cause such payment or
performance to be made of such nonpayment or nonperformance. 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 enter into 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 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
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 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.
|
|
Attachment
“K” to Purchase Agreement COM 0190-10 Final
Version
|
Page 1 of
4
|
|
ATTACHMENT
“K” - FORM OF
GUARANTEE
|
|
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 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.
|
Attachment
“K” to Purchase Agreement COM 0190-10 Final
Version
|
Page 2 of
4
|
|
ATTACHMENT
“K” - FORM OF
GUARANTEE
|
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.
|
Attachment
“K” to Purchase Agreement COM 0190-10 Final
Version
|
Page 3 of
4
|
|
ATTACHMENT
“K” - FORM OF
GUARANTEE
|
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 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 25 of the Purchase
Agreement. Guarantor hereby agrees to be bound as if it were the Buyer by the
provisions of Articles 18, 19, 20, 21, and 26 of the Purchase Agreement, which
are incorporated herein by reference as if fully set forth herein.
Dated:
________ __, 201_
By:
Name:
Title:
|
Attachment
“K” to Purchase Agreement COM 0190-10 Final
Version
|
Page 4 of
4
|
|
[*]
|
[*]
|
*Confidential
|