1
EXHIBIT 10.76
EMB-135
PURCHASE AGREEMENT NUMBER DCT-039/98
EMBRAER - EMPRESA BRASILEIRA
DE AERONAUTICA S.A.
AND
AMR EAGLE HOLDING CORPORATION
2
INDEX
ARTICLE PAGE
1. DEFINITIONS 1
2. SUBJECT 3
3. PRICE 4
4. PAYMENT 4
5. DELIVERY 7
6. DOCUMENTS 9
7. ACCEPTANCE AND TRANSFER OF OWNERSHIP 9
8. DETAILED SPECIFICATIONS 11
9. ENGINES 11
10. STORAGE CHARGE 11
11. DELAYS IN DELIVERY 12
12. INSPECTION AND QUALITY CONTROL 13
13. CHANGES 14
14. WARRANTY/GUARANTEE 14
15. TECHNICAL ASSISTANCE SERVICES 14
16. SPARE PARTS SUPPLY 14
17. PUBLICATIONS 15
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
19. AIRCRAFT PURCHASE OPTIONS 15
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
24. ASSIGNMENT 16
25. RESTRICTIONS AND PATENT INDEMNITY 16
26. MARKETING / PROMOTIONAL RIGHTS [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION] 16
27. TAXES 16
28. INTENTIONALLY LEFT BLANK 17
29. APPLICABLE LAW 17
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
31. COMPLIANCE WITH LAWS 17
32. TERMINATION 17
33. INDEMNITY 18
34. NOTICES 18
35. CONFIDENTIALITY 19
36. INTEGRATED AGREEMENT 20
37. EFFECT OF TERMINATION 20
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
38. COUNTERPARTS 20
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39. ENTIRE AGREEMENT 20
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
41. TERMS 20
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
43. REMEDIES 21
44. INTENTIONALLY LEFT BLANK 21
45. INDEPENDENT CONTRACTOR 21
46. CAPTIONS, HEREOF, INCLUDING 21
47. INTENTIONALLY LEFT BLANK 21
48. REPRESENTATIONS AND WARRANTIES 21
49. TIME 23
50. FURTHER ASSISTANCE 23
51. SEVERABILITY 23
52. NO WAIVER 23
53. COSTS 24
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
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ATTACHMENTS
"A" - AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND REGISTRATION
MARKS
"B" - FERRY EQUIPMENT [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION]
"C" - AIRCRAFT WARRANTY
"D" - EMB-135 ESCALATION FORMULA
"E" - [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
"F" - [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
"G" - [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
"H" - EMB-135 AND EMB-145 SPARE PARTS POLICY & PRODUCT SUPPORT
"I" - EMB-135 BUYER FURNISHED EQUIPMENT
"J" - [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
"K" - [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
"L" - FORM OF [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION] GUARANTEE
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PURCHASE AGREEMENT NO. DCT -039/98
THIS PURCHASE AGREEMENT NO. DCT-039/98 IS ENTERED INTO AS OF THE 30th DAY OF
SEPTEMBER, 1998, BY AND BETWEEN EMBRAER - EMPRESA BRASILEIRA DE AERONAUTICA
S.A., A BRAZILIAN CORPORATION WITH ITS HEADQUARTERS LOCATED IN SAO ▇▇▇▇ DOS
▇▇▇▇▇▇, BRAZIL, AND AMR EAGLE HOLDING CORPORATION, A DELAWARE CORPORATION WITH
ITS HEADQUARTERS LOCATED IN FORT WORTH, TEXAS, FOR THE PURCHASE AND SALE OF
EMB-145, MODEL EMB-135LR VERSION AIRCRAFT, SERVICES AND RELATED SPARE PARTS.
THIS AGREEMENT SHALL NOT BE EFFECTIVE UNLESS AND UNTIL IT IS SIGNED BY AN
AUTHORIZED OFFICER OF AMR EAGLE HOLDING CORPORATION AND EXECUTED BY TWO
AUTHORIZED OFFICERS OF EMBRAER - EMPRESA BRASILEIRA DE AERONAUTICA S.A.
NOW, THEREFORE, in consideration of the mutual promises, covenants, terms and
conditions set forth herein, and other good and valuable consideration the
receipt and sufficiency of which is hereby acknowledged, the Parties agree as
follows:
1. DEFINITIONS
For the purpose of this Agreement, the following definitions are hereby
adopted by the Parties:
a. Actual Delivery Date - and Actual Delivery - shall have the
definitions provided for in Article 7.c. hereof.
b. Aircraft - shall mean the EMB-145, Model EMB-135LR version aircraft
or, where there is more than one of such aircraft, each of such
aircraft, manufactured by Embraer, for sale to Buyer pursuant to this
Agreement, according to the aircraft specification 135-MS-300,
Revision A dated July 27, 1998 (the "Specification"), and Attachment A
and Attachment G hereto.
c. Basic Price - shall mean the price per Aircraft as defined in Article
3.a.1.
d. Buyer - shall mean AMR Eagle Holding Corporation, a Delaware
corporation, and its successors and permitted assigns (as provided in
this Agreement).
e. CTA - shall mean the Aerospace Technical Center of the Brazilian
Ministry of Aeronautics.
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EMB-135 LR Purchase Agreement Page 1 of 49
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f. Day or Days - shall mean calendar days, unless expressly referenced as
a Business Day or Business Days, which shall mean any day other than a
Saturday, Sunday, or other day on which banking institutions in Fort
Worth, Texas, Sao Paulo, Brazil, Rio de Janeiro, Brazil or Sao ▇▇▇▇
dos ▇▇▇▇▇▇, Brazil are required or permitted by applicable law, rule
or regulation to be closed. As of December 15 of each year of
Scheduled Delivery Months, Embraer shall send Buyer a projected
holiday schedule of days on which the banking institutions in Sao
Paulo, Rio de Janeiro and Sao ▇▇▇▇ dos ▇▇▇▇▇▇, Brazil will be closed,
and Embraer shall promptly advise Buyer of any changes to said
schedule.
g. Delivery Schedule - shall mean the Aircraft delivery schedule as
provided in Article 5.c.
h. Embraer - shall mean Embraer - EMPRESA BRASILEIRA DE AERONAUTICA S.A.,
a Brazilian corporation.
i. Engine or Engines - shall mean the two (2) hot and high enhanced
performance ▇▇▇▇▇▇▇ AE3007A1/3 high bypass ratio turbofan engines
delivered fixed to each airframe.
j. FAA - shall mean the United States Federal Aviation Administration.
k. Financing Agreements - shall mean those financing documents to be
executed between Buyer and Agencia Especial de Financiamento
Industrial ("FINAME") and Banco Nacional de Desenvolvimento Economico
e Social ("BNDES") (FINAME and BNDES together, the " Lender"), and
including but not limited to a funding agreement and all agreements
related thereto (the "Funding Agreement") and any and all agreements
entered into pursuant to the Funding Agreement.
l. IP Spares - shall mean line replaceable units, spare parts and ground
support equipment, except engines, to be selected and purchased by
Buyer from Embraer in Brazil pursuant to a third-party financing
arrangement as initial provisions, based on the initial provisioning
list recommended by Embraer and mutually agreed to by Buyer ("IPL")
and delivered in connection with a specific Aircraft.
m. Party or Parties - shall mean Embraer and/or Buyer.
n. Purchase Agreement, or this Agreement - shall mean this Purchase
Agreement No. DCT-039/98 and all of its Attachments, and EMB-135 and
EMB-145 Letter Agreement I DCT-040/98 executed by Buyer and Embraer as
of the date hereof ("Letter Agreement I").
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EMB-135 LR Purchase Agreement Page 2 of 49
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o. Purchase Price - shall mean the total purchase price for each
Aircraft, effective on the relevant Aircraft's Scheduled Delivery
Date, resulting from the application of the escalation formula
established in Attachment D (the "Escalation Formula") to the Basic
Price as set forth in Article 3.a.1.
p. Scheduled Delivery Date - shall mean the targeted closing date for
each Actual Delivery of Aircraft per Article 5.
q. Scheduled Delivery Month - shall mean the month in which each Aircraft
is scheduled to be delivered per Article 5.
r. Scheduled Inspection Date - shall mean the date on which Embraer shall
make each Aircraft available to Buyer for inspection, which date shall
be at least [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION] prior to the Scheduled Delivery Date unless otherwise
mutually agreed to in writing by the Parties.
s. Services - shall mean all of the technical assistance services
specified in Article 15.
t. Spares - shall mean line replaceable units, spare parts and ground
support equipment purchased through Embraer, except engines, to be
selected from Embraer's illustrated parts catalog and purchased by
Buyer, excluding IP Spares.
u. U.S. or US - shall mean the United States of America.
v. U.S. dollars, US$, USD or dollars - shall mean United States dollars.
2. SUBJECT
a. Embraer shall sell and Buyer shall purchase and take delivery of
seventy-five (75) newly manufactured Aircraft ("Firm Aircraft") and,
if Buyer elects to purchase any or all of the same, seventy-five (75)
newly manufactured option Aircraft ("Option Aircraft") upon the terms
and conditions contained in this Agreement.
b. To the extent requested by Buyer, Embraer shall sell and Buyer shall
acquire IP Spares and Spares for each of the Aircraft referred to in
paragraph a. above.
c. Embraer shall sell and Buyer shall acquire the Services as specified
in Article 15.
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EMB-135 LR Purchase Agreement Page 3 of 49
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3. PRICE
a. Buyer agrees to pay Embraer, in United States dollars [CONFIDENTIAL
PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION] the
following prices:
1. For each Firm Aircraft delivered to Buyer pursuant to this
Agreement, [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY
WITH THE COMMISSION]. The Basic Price shall be escalated
according to the Escalation Formula. The escalated Basic Price
(the "Purchase Price") shall be provided to Buyer one (1) month
prior to each Aircraft's Scheduled Delivery Date. Except as set
forth in this Article the Basic Price constitutes the entire
price Buyer shall pay for each individual Aircraft and Services.
2. For IP Spares ordered pursuant to this Agreement, the aggregate
price of all IP Spares with respect to each Aircraft shall not
exceed [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION] per Aircraft.
b. The Services shall be provided at no additional cost to Buyer. All
other services requested by Buyer to Embraer in writing shall be
billed to Buyer in accordance with Embraer's prevailing rates
therefor.
c. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
4. PAYMENT
To secure the Aircraft delivery positions set forth in Article 5.c. and
to ensure delivery of the Aircraft in accordance with the Delivery
Schedule, Buyer shall pay Embraer for each Aircraft and IP Spares as
follows:
a. Relative to each Firm Aircraft:
1. Embraer acknowledges receipt of deposits of [CONFIDENTIAL PORTION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION] per Firm
Aircraft from Buyer. Such deposits shall be non-refundable
(subject to the provisions of Articles 32.b. and Section 10 of
Letter Agreement I) and shall be considered part of the payment
towards the Basic Price of the relevant Aircraft. The Parties
acknowledge that each of the Firm Aircraft and the corresponding
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EMB-135 LR Purchase Agreement Page 4 of 49
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delivery positions have been reserved for purchase by Buyer and
such Firm Aircraft have been removed from the market.
2. A non-refundable (subject to the provisions of Article 32.b. and
Section 10 of Letter Agreement I) progress payment (which shall
be considered part of the payment toward the Basic Price of the
relevant Aircraft) equal to [CONFIDENTIAL PORTION OMITTED AND
FILED SEPARATELY WITH THE COMMISSION] excluding any increase due
to the Escalation Formula, is due and payable upon the later of
(i) the date which is eighteen (18) months prior to the first
(1st) day of the Scheduled Delivery Month of the relevant Firm
Aircraft and (ii) the date of execution of this Agreement.
3. A non-refundable (subject to the provisions of Article 32.b. and
Section 10 of Letter Agreement I) progress payment (which shall
be considered part of the payment toward the Basic Price of the
relevant Aircraft) [CONFIDENTIAL PORTION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION] excluding any increase due to the
Escalation Formula, is due and payable upon the later of (i) the
date which is twelve (12) months prior to the first (1st) day of
the Scheduled Delivery Month of the relevant Firm Aircraft and
(ii) the date of execution of this Agreement.
4. A non-refundable (subject to the provisions of Article 32.b.and
Section 10 of Letter Agreement I) progress payment (which shall
be considered part of the payment toward the Basic Price of the
relevant Aircraft) equal to [CONFIDENTIAL PORTION OMITTED AND
FILED SEPARATELY WITH THE COMMISSION] excluding any increase due
to the Escalation Formula, is due and payable on the date which
is six (6) months prior to the first (1st) day of the Scheduled
Delivery Month of the relevant Firm Aircraft.
5. The balance of each Firm Aircraft's Purchase Price shall become
due and payable as provided herein on each Firm Aircraft's Actual
Delivery Date.
6. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
b. Relative to Option Aircraft:
In the event the Buyer exercises the option to acquire Option
Aircraft as provided for in Article 19, payment for each
individual Option Aircraft's Basic Price shall be made as
follows:
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EMB-135 LR Purchase Agreement Page 5 of 49
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1. A non-refundable (subject to the provisions of Article 32.b. and
Section 10 of Letter Agreement I) deposit of [CONFIDENTIAL
PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION] per
Option Aircraft is due and payable on the date of exercise of the
respective Option. This deposit shall be considered part of the
payment towards the Basic Price of the relevant Option Aircraft.
2. A non-refundable (subject to the provisions of Article 32.b. and
Section 10 of Letter Agreement I) progress payment (which shall
be considered part of the payment toward the Basic Price of the
relevant Option Aircraft) equal to [CONFIDENTIAL PORTION OMITTED
AND FILED SEPARATELY WITH THE COMMISSION] excluding any increase
due to the Escalation Formula, shall be due and payable on the
date which is eighteen (18) months prior to the first (1st) day
of the Scheduled Delivery Month of the relevant Option Aircraft.
3. A non-refundable (subject to the provisions of Article 32.b. and
Section 10 of Letter Agreement I) progress payment (which shall
be considered part of the payment toward the Basic Price of the
relevant Option Aircraft) equal to [CONFIDENTIAL PORTION OMITTED
AND FILED SEPARATELY WITH THE COMMISSION] excluding any increase
due to the Escalation Formula, shall be due and payable on the
date which is twelve (12) months prior to the first (1st) day of
the Scheduled Delivery Month of the relevant Option Aircraft.
4. A non-refundable (subject to the provisions of Article 32.b. and
Section 10 of Letter Agreement I) progress payment (which shall
be considered part of the payment toward the Basic Price of the
relevant Option Aircraft) equal to [CONFIDENTIAL PORTION OMITTED
AND FILED SEPARATELY WITH THE COMMISSION] excluding any increase
due to the Escalation Formula, shall be due and payable on the
date which is six (6) months prior to the first (1st) day of the
Scheduled Delivery Month of the relevant Option Aircraft.
5. The balance of each Option Aircraft's Purchase Price shall become
due and payable as provided herein upon Actual Delivery of the
relevant Option Aircraft from Embraer to Buyer.
6. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
c. Relative to IP Spares:
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EMB-135 LR Purchase Agreement Page 6 of 49
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1. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION] of the price of the IP Spares for each Aircraft (as
set forth in Article 3.a.2 above) shall become due and payable on
the date which is three (3) months prior to the first (1st) day
of the Scheduled Delivery Month of such Aircraft as specified in
Article 5.c.
2. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION] of such price of the IP Spares for each Aircraft
shall become due and payable on the date which is the date of
delivery of the IP Spares for such Aircraft as set forth in
Article 5.e.
3. All payments made pursuant to paragraphs c.1. and c.2. above
shall collectively be referred to as the "IP Spares Price."
d. Interest shall accrue at the rate of [CONFIDENTIAL PORTION OMITTED AND
FILED SEPARATELY WITH THE COMMISSION] per month or any part thereof
(prorated on the basis of a thirty (30) day month for any partial
months) on any amount which is due and owing and which is not paid to
Embraer as set forth in Articles 4.a. and 4.b. from the third Business
Day after the date on which such payments should have been made as
therein set forth, until the actual receipt by Embraer of such
amounts. Such interest shall be payable on demand by Embraer.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
5. DELIVERY
a. Scheduled Delivery Date: The Aircraft shall be delivered per the
Aircraft Delivery Schedule set forth in paragraph c. of this Article.
1. INTENTIONALLY LEFT BLANK
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EMB-135 LR Purchase Agreement Page 7 of 49
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2. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
b. Location: Each Aircraft shall be delivered to Buyer free and clear of
all liens, claims, charges, and encumbrances of any nature whatsoever.
Delivery of each Aircraft shall take place in Sao ▇▇▇▇ dos ▇▇▇▇▇▇,
Brazil. At delivery, each Aircraft shall fully conform to the delivery
specifications set forth herein, and shall otherwise conform to the
terms of this Agreement.
c. Aircraft Delivery Schedule: Subject to payment in accordance with
Article 4 and each Party's compliance with the terms and conditions of
this Agreement, the Aircraft shall be made available for delivery by
Embraer to Buyer, in the condition provided by this Agreement, at Sao
▇▇▇▇ dos ▇▇▇▇▇▇, State of Sao Paulo, Brazil, according to the
following schedule:
FIRM AIRCRAFT
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
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EMB-135 LR Purchase Agreement Page 8 of 49
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OPTION AIRCRAFT
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
d. Limit on Delivery: Notwithstanding anything set forth in this
Agreement, in no event shall Buyer be obligated to take delivery of
any more than [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION] Aircraft in any month.
e. IP Spares: Subject to receipt by Embraer of the list of IP Spares
selected by Buyer from the IPL by the times contemplated by Article 2
of Attachment H and Embraer's acceptance of such list (which
acceptance shall not be unreasonably withheld or delayed), such IP
Spares shall be delivered by Embraer to Buyer, in F.C.A. (Free Carrier
- Incoterms 1990) condition, at Sao ▇▇▇▇ dos ▇▇▇▇▇▇, State of Sao
Paulo, Brazil, or at any other port of clearance that is mutually
agreed to by Buyer and Embraer. [CONFIDENTIAL PORTION OMITTED AND
FILED SEPARATELY WITH THE COMMISSION] Should Buyer not inform Embraer
of IP Spares items selected by Buyer within times contemplated by
Article 2 of Attachment H, the IP Spares shall be provided to Buyer in
F.C.A. condition, at the same places above mentioned, one hundred
eighty (180) days after receipt by Embraer of the list of spares
selected by Buyer from the IPL, provided, however, that Buyer provides
such information to Embraer no later than the relevant Aircraft's
Actual Delivery Date. Spares shall be delivered in accordance with
Section M of Attachment H.
6. DOCUMENTS
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
At the time of Actual Delivery of each Aircraft, Embraer will possess a
valid type certificate issued by the FAA and applicable to the Aircraft.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
Embraer shall assist Buyer in obtaining such certificate. Subject to the
above, it shall be Buyer's responsibility to obtain such FAR Part 25
Individual Certificate of Airworthiness for the Aircraft, at Buyer's
sole expense, [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
7. ACCEPTANCE AND TRANSFER OF OWNERSHIP
a. The Aircraft shall be delivered in accordance with the Delivery
Schedule. Prior to the Scheduled Inspection Date, Embraer shall
perform and complete the ground and flight test.
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EMB-135 LR Purchase Agreement Page 9 of 49
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b. Embraer shall make each Aircraft available to Buyer for inspection on
the Scheduled Inspection Date. The date on which Embraer actually
makes the Aircraft available to Buyer for inspection shall be referred
to as the "Readiness Date". On or after the Readiness Date, Buyer
shall inspect and conduct an acceptance flight of the Aircraft at
Embraer's facilities in Sao ▇▇▇▇ dos ▇▇▇▇▇▇, Brazil, which shall be
conducted jointly by Buyer and Embraer designated personnel. The
inspection and acceptance flight shall be completed at least three (3)
Business Days prior to the relevant Aircraft's Scheduled Delivery Date
or as Embraer and Buyer shall agree in writing. The fuel for the
Aircraft's acceptance flight test shall be provided by Embraer.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION] Upon ground check(s) and acceptance test flight(s)
acceptable to Buyer, Buyer shall provide Embraer with a Certificate of
Technical Acceptance.
c. If Buyer finds an Aircraft acceptable, then on the relevant Scheduled
Delivery Date, it shall acquire the Aircraft and make the payments due
according to Article 4 and accept delivery of such Aircraft, whereupon
the following shall occur: (i) Embraer shall provide Buyer a Warranty
▇▇▇▇ of Sale [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION] an FAA Form ▇▇▇▇ of Sale and an invoice marked "paid
in full"; (ii) Buyer shall provide Embraer with a Certificate of
Technical Acceptance and Certificate of Acceptance and Delivery
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION] indicating that the relevant Aircraft has met or exceeded
all of the criteria set forth in the Aircraft Acceptance Guide and
satisfies the terms and conditions of this Agreement; and (iii)
Embraer shall provide to Buyer a CTA Certificate of Export. Upon
delivery of the above-referenced bills of sale and certificates, title
and risk of loss with respect to the relevant Aircraft shall pass from
Embraer to Buyer and actual delivery ("Actual Delivery") of the
relevant Aircraft shall be deemed to have taken place on such date
(the "Actual Delivery Date").
d. If Buyer declines to accept an Aircraft because it reasonably believes
that the Aircraft does not meet the conditions specified in this
Agreement, Buyer shall promptly give Embraer written notice of all
specific reasons for such refusal and Embraer shall have five (5)
days, commencing on the first (1st) day after receipt of such notice,
to take all necessary actions in order to resubmit the Aircraft to
Buyer for re-inspection. Buyer shall reinspect the Aircraft within
five (5) days after receipt of notice from Embraer that all necessary
actions were taken.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
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EMB-135 LR Purchase Agreement Page 10 of 49
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f. Embraer shall ensure that the IP Spares for each Aircraft are
available for inspection by Buyer on or before the date of delivery in
accordance with Article 5.e. and shall notify Buyer of such
availability. Buyer shall be allowed to inspect the IP Spares to be
delivered in connection with each Aircraft.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
g. Should Buyer or Embraer fail to comply with the procedures specified
in any of the preceding items of this Article 7, the other Party shall
not be held liable for any delay in delivery to the extent such delay
was caused by such failure to comply.
8. DETAILED SPECIFICATIONS
Each Aircraft shall be manufactured in accordance with and at Actual
Delivery shall meet or exceed the specifications and requirements
contained in (i) this Agreement and (ii) the Specification.
9. ENGINES
Each of the Engines shall be manufactured in accordance with, and, on the
Actual Delivery Date shall meet or exceed, the specifications and
requirements of ▇▇▇▇▇▇▇ Specification C1051, dated September 1, 1998.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
10. STORAGE CHARGE
a. A per day storage charge equal to [CONFIDENTIAL PORTION OMITTED AND
FILED SEPARATELY WITH THE COMMISSION] per applicable Aircraft shall be
charged by Embraer to Buyer commencing on:
1. The Scheduled Inspection Date if Buyer fails to perform
inspection or re-inspection of an Aircraft, within the times
specified in this Agreement, until such inspection or
re-inspection is performed and if this Agreement is not
terminated earlier.
2. The Aircraft's Actual Delivery Date if Buyer fails when otherwise
required by this Agreement to remove an Aircraft from Embraer's
facilities within three (3) Business Days of the Actual Delivery
Date of such Aircraft until such Aircraft is removed, and if this
Agreement is not terminated earlier.
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EMB-135 LR Purchase Agreement Page 11 of 49
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[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
c. Buyer shall pay the storage charge as set forth in this Article 10, as
applicable, in US dollars five [CONFIDENTIAL PORTION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION] after the presentation of an invoice
by Embraer for such storage charges.
11. DELAYS IN DELIVERY
a. TIMELINESS REQUIRED
Except as provided in paragraph b. of this Article, Embraer warrants
that there shall be no delays in Actual Delivery of the Aircraft and:
(i) Agrees that in the event Embraer notifies Buyer of such a delay
(which notification occurs [CONFIDENTIAL PORTION OMITTED AND
FILED SEPARATELY WITH THE COMMISSION] or more prior to the
Scheduled Delivery Date) then, after [CONFIDENTIAL PORTION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION] Days unexcused
delay, Embraer shall pay Buyer as liquidated damages the amounts
listed in the following schedule:
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
(ii) Agrees that in the event Embraer notifies Buyer of a delay
(which notification occurs less than [CONFIDENTIAL PORTION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION] prior to the
Scheduled Delivery Date) then, [CONFIDENTIAL PORTION OMITTED AND
FILED SEPARATELY WITH THE COMMISSION] unexcused delay, it shall
pay Buyer, as liquidated damages, the amounts listed in the
following schedule:
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
In the event that Embraer fails to deliver an Aircraft which fully
conforms to the delivery specifications set forth herein, Buyer shall
not be required to accept such Aircraft until it complies with such
delivery specifications and (provided that Buyer has performed, after
Embraer having timely afforded Buyer an opportunity to do so, a
general inspection at least five (5) Business Days prior to the
Scheduled Delivery Date and performed an acceptance test flight at
least three (3) Business Days prior to the Scheduled Delivery Date in
accordance with Article 7 of this Agreement), Embraer shall, after the
five (5)
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EMB-135 LR Purchase Agreement Page 12 of 49
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Business Days period described above, be liable for damages as
provided in this Article.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
b. EXCUSED DELAY
Neither Party shall be responsible for delays in delivery of Aircraft
to the extent caused by (each referred to as an "Excused Delay") (i)
acts of God, riots, wars, natural disasters, fires, floods,
explosions, third-party criminal acts, earthquakes, serious accidents,
epidemics, quarantine restrictions, acts of government (except as
otherwise provided for in Article 13.f. and Section 10 of Letter
Agreement I hereof), or [CONFIDENTIAL PORTION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION] or provide any information as provided
by this Agreement.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
c. LOSS OF AIRCRAFT PRIOR TO DELIVERY
In the event that, prior to the Actual Delivery Date, any Aircraft is
lost, destroyed, or damaged beyond economic repair, and consequently
cannot be delivered as provided in this Agreement, Buyer shall have
the right to either:
1. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
2. Terminate this Agreement with respect to the lost, destroyed, or
damaged Aircraft and receive a complete refund (irrespective of
any other provisions of this Agreement regarding
non-refundability of such items) of all deposits and progress
payments associated with such Aircraft (with interest at the rate
of [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION] per annum from the time of payment of such deposits
and payments through the date of termination) associated with
such Aircraft.
12. INSPECTION AND QUALITY CONTROL
a. Buyer is hereby allowed to have, at any and all times during normal
business hours, one or more authorized representatives at Embraer's
facilities in order to assure that the Aircraft, IP Spares and
Services are manufactured or performed in accordance with the
procedures specified in this Agreement and according to all applicable
quality control standards. Upon a request by
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 13 of 49
18
Buyer, Embraer shall use reasonable commercial efforts to arrange for
such representative to visit the facilities of Embraer's suppliers.
Buyer shall communicate to Embraer the names of such authorized
representatives, by means of notice, at least thirty (30) days prior
to each Aircraft's Scheduled Delivery Date.
b. Buyer shall communicate the names of its authorized representatives to
sign the acceptance and transfer of title and risk documents and
accept delivery of the Aircraft and IP Spares pursuant to Article 7,
at least [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION] prior to each Scheduled Delivery Date.
c. For the purposes hereof, Embraer shall provide at no cost to Buyer,
reasonable office space and communication facilities (telephone and
facsimile) for Buyer's authorized representatives, as well as the
necessary tools, measuring devices, test equipment and technical and
other assistance as may be necessary to perform acceptance tests.
d. Buyer's authorized representatives shall be provided with all
appropriate Embraer rules and regulations upon arrival and shall
observe Embraer's administrative rules and instructions while at
Embraer's facilities.
e. 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 of and to the extent caused by such representatives, for
whom Buyer is solely and fully responsible under all circumstances and
in any instance except as provided in Article 33.
13. CHANGES
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
14. WARRANTY/GUARANTEE
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
15. TECHNICAL ASSISTANCE SERVICES
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
16. SPARE PARTS SUPPLY
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 14 of 49
19
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
17. PUBLICATIONS
a. Aircraft Publications - Embraer shall supply, at no cost to Buyer,
copies of the operational and maintenance publications applicable to
the Aircraft, in the English language, that are listed in, and in the
quantities as specified in this Article. Such publications are issued
under the applicable specification and are available in hard copies
(and to the extent available shall be offered in digital or microfilm
format and software at a price to Buyer equal to Embraer's cost) and,
as provided below, in CD ROM. The revision service for these
publications shall be provided by Embraer, free of charge, excluding
mailing services [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY
WITH THE COMMISSION] Such publications shall be delivered as
reasonably agreed to by the Parties, to the maximum allowed for under
this Article.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
b. Vendor Item Publications - With respect to vendor items installed in
the Aircraft which have their own publications, Buyer shall receive
such publications in the quantity specified in Article 17.c., 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.
c. List of Publications - The technical publications covering operation
and maintenance shall be delivered to Buyer in accordance with the
following list:
OPERATIONAL
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
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 Basic Price will be made.
18. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
19. AIRCRAFT PURCHASE OPTIONS
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 15 of 49
20
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
24. ASSIGNMENT
Except as set forth in Article 14, neither Party may assign, convey,
subcontract, transfer or delegate this Agreement or any part hereof or
any of such Party's rights, duties or obligations hereunder, without the
prior written consent of the other Party; provided, however, that any
such consent to such assignment, conveyance, subcontracting, transfer or
delegation shall not relieve the assigning Party of any of its
obligations under this Agreement. Any attempted assignment,
subcontracting or delegation which does not comply with this Article
shall be null and void. Notwithstanding the foregoing provisions of this
Article 24, Buyer may assign this Agreement or any or all of its rights
hereunder to purchase any one or more of the Firm Aircraft or Option
Aircraft to (a) American Eagle Airlines, Inc. and (b) any one or more
other majority owned subsidiaries of Buyer or of AMR Corporation that is
incorporated under the laws of the United States or any state thereof or
any territory or possession of the United States; and provided that
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
guarantees the obligations of such assignee in the form attached as
Attachment L hereto. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY
WITH THE COMMISSION]
25. RESTRICTIONS AND PATENT INDEMNITY
a. The sale and purchase contemplated hereby does not include the
transfer of designs, copyrights, patents, and other similar
intellectual property rights to Buyer. Embraer shall indemnify,
defend, and hold Buyer harmless from and against any and all Claims
(as defined in Article 33 hereof) made against any Buyer Indemnitees
that the Aircraft, or any part thereof, infringes any design,
copyright, patent or similar right of others.
b. If any Claim is made or brought against any Buyer Indemnitees for
infringement or if Buyer receives a written claim alleging
infringement, Buyer shall promptly give notice thereof to Embraer.
26. MARKETING / PROMOTIONAL RIGHTS [CONFIDENTIAL PORTION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION]
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
27. TAXES
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 16 of 49
21
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
28. INTENTIONALLY LEFT BLANK
29. 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 [CONFIDENTIAL PORTION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION], and including all matters of
construction, validity and performance. Buyer and Embraer agree that all
disputes arising under this Agreement shall be resolved in accordance
with the procedures set forth in Article 30. [CONFIDENTIAL PORTION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
31. COMPLIANCE WITH LAWS
Each Party shall comply with all applicable laws, rules, and regulations
promulgated by Competent Authorities, with respect to that Party's
obligations under this Agreement, and with respect to all of the
transactions contemplated hereby. [CONFIDENTIAL PORTION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION]
32. TERMINATION
a. Except as otherwise provided in this Agreement, 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 five (5) days from
the date that the failing party receives such notice. Should such
failure be material and not be remedied within the period so
specified, then the Party who gave notice of such failure shall be
entitled to terminate this Agreement with respect to all remaining
Aircraft for which Actual Delivery has not yet occurred, and shall be
entitled to such other remedies as may be provided in this Agreement
and as may be available by law or in equity (subject to the limits
provided in this Agreement) along with reimbursement of costs incurred
in enforcing its rights and remedies, including reasonable attorney's
fees.
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 17 of 49
22
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
33. INDEMNITY
a. Embraer shall indemnify, defend, and hold harmless Buyer and Buyer's
officers, directors, agents, employees, subsidiaries, affiliates, and
permitted assignees, and each of them (collectively, and including
without limitation Buyer, the "Buyer Indemnitees") from any and all
claims, suits, actions, judgments, fines, penalties, damages, losses,
and liabilities, including, but not limited to, third party claims and
reasonable attorneys' fees, costs of litigation, and other expenses
relating thereto, including the cost of establishing the right to
indemnification under this Article (collectively, the "Claims") which
may be made, asserted, assessed, or accrued against any Buyer
Indemnitee by reason of: [CONFIDENTIAL PORTION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION]
b. Buyer shall indemnify, defend, and hold harmless Embraer and Embraer's
officers, directors, agents, employees, subsidiaries, affiliates and
permitted assignees, and each of them (collectively, and including
without limitation Embraer, the "Embraer Indemnitees") from and
against all Claims which may be made, asserted, assessed, or accrued
against any Embraer Indemnitee by reason of: [CONFIDENTIAL PORTION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
c. In the event that any Claim is made or commenced against the Party
seeking indemnification hereunder or any Buyer Indemnitees or Embraer
Indemnitees, as applicable, the Party seeking indemnification
hereunder shall give prompt written notice thereof to the indemnifying
Party [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
e. The rights and obligations under this Article 33 will survive the
termination or expiration of this Agreement for any reason.
34. NOTICES
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
If to Buyer: AMR Eagle Holding Corporation.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ 5494
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attn: Senior Vice President of Planning
Phone: [CONFIDENTIAL PORTION OMITTED
Fax: AND FILED SEPARATELY WITH THE
COMMISSION]
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 18 of 49
23
With a copy to: American Airlines, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇ 5675
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attn: Corporate Secretary
Phone: [CONFIDENTIAL PORTION OMITTED
Fax: AND FILED SEPARATELY WITH THE
COMMISSION]
If to Embraer: Empresa Brasileira de Aeronautica, S.A.
▇▇. ▇▇▇▇. ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Sao ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇▇
Attn: Senior Manager-Contracts
Phone: [CONFIDENTIAL PORTION OMITTED
Fax: AND FILED SEPARATELY WITH THE
COMMISSION]
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
35. CONFIDENTIALITY
Buyer and Embraer understand that certain commercial, operational and
financial information contained in, or obtained pursuant to this
Agreement is considered by the Parties as privileged and confidential.
Buyer and Embraer each agrees that it shall treat this Agreement, all
provisions hereof, and such information as privileged and confidential
and shall not, without the prior written consent of the other Party,
disclose such Agreement or information to any other person except to its
auditors and legal counsel and except as may be required (i) by
applicable law or governmental regulations, or (ii) for financing the
Aircraft. In connection with any disclosure of this Agreement, any
provisions hereof, or such information in accordance with the terms of
this Article, Buyer or Embraer, as applicable, shall use reasonable
efforts to minimize the extent of disclosure and shall request and use
its reasonable efforts to obtain confidential treatment of this
Agreement, the provisions hereof, and such information. The Parties agree
to cooperate with each other in making and supporting any such request
for confidential information.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 19 of 49
24
36. INTEGRATED AGREEMENT
All Attachments referred to in this Agreement and attached hereto are, by
such reference and attachment, incorporated in this Agreement.
37. EFFECT OF TERMINATION
In the event this Agreement is terminated, whether in whole or in part,
the Parties' obligations (including without limitation the Warranty, the
Service Life Policy and all the other customer and product support
obligations under this Agreement) with regard to Aircraft that have been
previously delivered will continue in full force and effect in accordance
with the terms of this Agreement.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
38. 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.
39. ENTIRE AGREEMENT
This Agreement and all related written agreements constitute the entire
agreement of the Parties with respect to the subject matter hereof and
supersede all previous negotiations, representations and agreements
between the Parties, [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY
WITH THE COMMISSION]. This Agreement may not be altered, amended or
supplemented except by a written instrument executed by the Parties.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
41. TERMS
Technical and trade terms not otherwise defined herein shall have the
meanings assigned to them as generally accepted in the international
aircraft manufacturing industry.
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 20 of 49
25
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
43. REMEDIES
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
For the avoidance of doubt, the specific remedy provided in each such
Article or Attachment or Letter Agreement I shall be exclusive only with
respect to the specific breach or default referenced in such section;
with respect to any other breaches or defaults not specified within the
Articles and Attachments referred to above, all remedies at law or in
equity shall be available.
44. INTENTIONALLY LEFT BLANK
45. INDEPENDENT CONTRACTOR
Each of the Parties is an independent contractor. Nothing in this
Agreement is intended or shall be construed to create or establish any
agency, partnership, joint venture, or fiduciary relationship between the
Parties. Neither Party nor any of its affiliates has any authority to act
for or to incur any obligations on behalf of or in the name of the other
Party or any of its affiliates.
46. CAPTIONS, HEREOF, INCLUDING
The captions and headings appearing in this Agreement have been inserted
as a matter of convenience and in no way define, limit or enlarge the
scope of this Agreement or any of the provisions hereof. "Including" or
"include" shall be deemed to mean "including without limitation" or
"include without limitation," respectively, unless otherwise specified in
this Agreement. All references in this Agreement to "herein," "hereof,"
"hereto," "hereby," or "hereunder" shall be deemed references to this
Agreement as a whole and not to any particular section, subsection,
article, subarticle, paragraph, subparagraph, sentence or clause of this
Agreement.
47. INTENTIONALLY LEFT BLANK
48. REPRESENTATIONS AND WARRANTIES
a. Effective as of the date of this Agreement and as of the Actual
Delivery of each Aircraft, Embraer represents and warrants that:
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 21 of 49
26
1. Embraer is a corporation duly organized, validly existing and in
good standing under the laws of Brazil and has all necessary
corporate power and authority to conduct the business in which it
is currently engaged and to enter into and perform its
obligations under this Agreement.
2. Embraer has taken, or caused to be taken, all necessary corporate
action to authorize the execution and delivery of this Agreement
and the performance of its obligations hereunder.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
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.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
b. Effective as of the date of this Agreement and as of the Actual
Delivery of each Aircraft, Buyer represents and warrants that:
1. Buyer is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware and has all
necessary corporate power and authority to conduct the business
in which it is currently engaged and to enter into and perform
its obligations under this Agreement.
2. Buyer has taken, or caused to be taken, all necessary corporate
action to authorize the execution and delivery of this Agreement
and the performance of its obligations hereunder.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
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
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 22 of 49
27
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.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
49. TIME
Time is of the essence with respect to the performance of the provisions
hereof.
50. FURTHER ASSISTANCE
Each Party shall do and perform, at such Party's expense, such further
acts and execute and deliver such further instruments and documents as
may be required by applicable law, rule or regulation or as may be
reasonably requested by the other Party to effectuate the purposes of
this Agreement.
51. SEVERABILITY
Except as otherwise set forth in this Agreement, if either Party receives
in writing any indication from a competent governmental, judicial or
administrative authority to the effect that any part of this Agreement
contravenes any applicable law, rule or regulation, and cannot qualify
for any clearance or exemption, or if any part of this Agreement is, or
shall become, or shall be declared illegal, invalid or unenforceable in
any jurisdiction for any reason (including both by reason of the
provisions of any legislation and also by reason of any decision of any
competent governmental, judicial or administrative authority, either
having jurisdiction over this Agreement or having jurisdiction over any
Party), such part shall be severed from this Agreement in the
jurisdiction in question and such contravention, illegality, invalidity
or unenforceability shall not in any way prejudice or affect the
remaining parts of this Agreement which shall continue in full force and
effect. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
52. NO WAIVER
No waiver of any breach or obligation under this Agreement by either
Party shall constitute a waiver of any subsequent similar breach or
obligation or of any other provision hereof. No waiver shall be effective
unless made in writing and signed by a duly authorized representative of
the waiving Party.
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 23 of 49
28
53. COSTS
Each Party shall bear its own costs of attorneys, accountants and
financial advisors in connection with the preparation, negotiation and
execution of this Agreement.
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 24 of 49
29
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 AMR EAGLE HOLDING CORPORATION
DE AERONAUTICA S.A.
By: By:
-------------------------------- ---------------------------------
Name: Name:
------------------------------ -------------------------------
Title: Title:
----------------------------- ------------------------------
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
Witness: Witness:
--------------------------- ----------------------------
Name: Name:
------------------------------ -------------------------------
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement Page 25 of 49
30
ATTACHMENT A
EMB-135
AIRCRAFT SPECIFIC CONFIGURATION,
FINISHING AND REGISTRATION MARKS
1. BUYER'S SPECIFIC CONFIGURATION
1.1. [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION]
1.4. INTENTIONALLY LEFT BLANK
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
1.8. INTENTIONALLY LEFT BLANK
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
3. FINISHING
a. EXTERIOR FINISHING:
The Aircraft shall be painted according to Buyer's color and
paint scheme [CONFIDENTIAL PORTION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION]
b. INTERIOR FINISHING:
Buyer has informed Embraer of its choice of materials and
colors [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION] interior finishing [CONFIDENTIAL PORTION
OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
4. REGISTRATION MARKS
The Aircraft shall be delivered to Buyer with the registration marks
painted on them. Buyer shall supply Embraer with the applicable
registration marks for the applicable Aircraft no later than
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
before each relevant
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement- Attachment A Page 1 of 8
31
Scheduled Delivery Date; [CONFIDENTIAL PORTION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION].
IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT A AND THE TERMS OF
THE TECHNICAL DOCUMENTS, THE TERMS OF THIS ATTACHMENT A SHALL PREVAIL.
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement- Attachment A Page 2 of 8
32
ATTACHMENT B
EMB-135
FERRY EQUIPMENT [CONFIDENTIAL PORTION OMITTED AND FILED
SEPARATELY WITH THE COMMISSION]
1. FERRY EQUIPMENT
If it is necessary for any ferry equipment to be installed by Embraer
for the ferry flight of any Aircraft between Brazil and United States,
Embraer shall provide such necessary equipment to Buyer [CONFIDENTIAL
PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]. Buyer shall
immediately upon its arrival remove such ferry equipment from the
Aircraft and return it to Embraer in Brazil at Buyer's own expense.
The ferry equipment shall be returned complete and in the condition it
was in at the time placed on the Aircraft for the ferry flight. Buyer
shall fully indemnify Embraer for the value of such equipment
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION].
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement- Attachment B Page 1 of 1
33
ATTACHMENT C
EMB-135
AIRCRAFT WARRANTY
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement- Attachment C Page 1 of 4
34
ATTACHMENT D
EMB-135
ESCALATION FORMULA
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement- Attachment D Page 1 of 5
35
ATTACHMENT E
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
36
ATTACHMENT F
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement- Attachment F Page 1 of 10
37
ATTACHMENT G
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement- Attachment G Page 1 of 1
38
TABLE 1 TO
ATTACHMENT G
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
Page 1 of 28
39
ATTACHMENT H
EMB-135 AND EMB-145
SPARE PARTS POLICY & PRODUCT SUPPORT
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
2. PRODUCT SUPPORT
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement- Attachment H Page 1 of 10
40
ATTACHMENT I
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement- Attachment I Page 1 of 2
41
ATTACHMENT J
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement- Attachment J Page 1 of 2
42
ATTACHMENT K
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement-Attachment K Page 1 of 2
43
ATTACHMENT L
FORM OF [CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH
THE COMMISSION] GUARANTY
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
Dated: ,
--------------- -----
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
By:
-------------------------
Name:
Title:
--------------------------------------------------------------------------------
EMB-135 LR Purchase Agreement- Attachment l Page 1 of 5
44
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE
COMMISSION] LETTER AGREEMENT I DCT-040/98
[CONFIDENTIAL PORTION OMITTED AND FILED SEPARATELY WITH THE COMMISSION]
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.
AMR EAGLE HOLDING CORPORATION EMBRAER - EMPRESA
BRASILEIRA DE AERONAUTICA S.A.
By: By:
-------------------------------- ---------------------------------
Name: Name:
------------------------------ -------------------------------
Title: Title:
----------------------------- ------------------------------
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Witness: Witness:
--------------------------- ----------------------------
Name: Name:
------------------------------ -------------------------------
--------------------------------------------------------------------------------
[CONFIDENTIAL PORTION OMITTED AND FILED Page 1 of 20
SEPARATELY WITH THE COMMISSION]
Letter Agreement 1