EMB-140LR
PURCHASE AGREEMENT DCT-043/01
Between
EMBRAER - EMPRESA BRASILEIRA
DE AERONAUTICA S.A.
And
ASTRAL AVIATION, INC.
INDEX
ARTICLE PAGE
1. DEFINITIONS.............................................................2
2. SUBJECT.................................................................4
3. PRICE...................................................................5
4. PAYMENT.................................................................5
5. DELIVERY................................................................6
6. CERTIFICATION...........................................................6
7. ACCEPTANCE AND TRANSFER OF OWNERSHIP....................................7
8. STORAGE CHARGE..........................................................9
9. DELAYS IN DELIVERY.....................................................10
10 INSPECTION AND QUALITY CONTROL.........................................12
11. CHANGES................................................................12
12. WARRANTY...............................................................14
13. PRODUCT SUPPORT PACKAGE................................................14
14. ASSIGNMENT.............................................................14
15. RESTRICTIONS AND PATENT INDEMNITY......................................15
16. MARKETING PROMOTIONAL RIGHTS...........................................16
17. TAXES..................................................................16
18. APPLICABLE LAW.........................................................16
19. JURISDICTION...........................................................16
20. TERMINATION............................................................17
21. OPTION FOR THE PURCHASE OF ADDITIONAL AIRCRAFT.........................19
22. INDEMNITY..............................................................20
23. NOTICES................................................................20
24. CONFIDENTIALITY........................................................21
25. SEVERABILITY...........................................................21
26. NON-WAIVER.............................................................22
27. INTEGRATED AGREEMENT...................................................22
28. NEGOTIATED AGREEMENT...................................................22
29. COUNTERPARTS...........................................................22
30. ENTIRE AGREEMENT.......................................................22
31. LANGUAGE...............................................................22
32. CURRENCY...............................................................22
ATTACHMENTS
"A" AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND REGISTRATION MARKS
"B" FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
"C" WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
"D" PRICE ESCALATION FORMULA
"E" *
"F" *
"G" PERFORMANCE GUARANTEE
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
PURCHASE AGREEMENT DCT-043/01
THIS AGREEMENT IS ENTERED INTO THIS 13th DAY OF AUGUST, 2001, BY AND BETWEEN
EMBRAER - EMPRESA BRASILEIRA DE AERONAUTICA S.A. AND ASTRAL AVIATION, INC. FOR
THE PURCHASE AND SALE OF EMBRAER AIRCRAFT.
THE SALE COVERED BY THIS AGREEMENT SHALL BE GOVERNED SOLELY BY THE TERMS AND
CONDITIONS HEREIN SET FORTH, AND IN THE DOCUMENTS INCORPORATED HEREIN BY
REFERENCE, AS WELL AS BY THE PROVISIONS SET FORTH IN THE ATTACHMENTS HERETO.
THIS AGREEMENT SHALL NOT BE EFFECTIVE UNLESS AND UNTIL IT IS SIGNED BY AN
AUTHORIZED OFFICER OF ASTRAL AVIATION, INC. AND EXECUTED BY TWO AUTHORIZED
OFFICERS OF EMBRAER - EMPRESA BRASILEIRA DE AERONAUTICA S.A.
1. DEFINITIONS
For the purpose of this Agreement, the following definitions are hereby
adopted by the Parties and, unless otherwise expressly provided, the
singular includes the plural, 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 hereof.
1.2 "AD's" shall mean Airworthiness Directives issued by either the
CTA or the Air Authority, in connection with and with respect to
the Aircraft.
1.3 "Agreement" or "Purchase Agreement" shall mean this purchase
agreement.
1.4 "Air Authority" shall mean the Federal Aviation Administration -
FAA, or such other agency of the federal government of the United
States of America from time to time charged with the
administration of civil aviation.
1.5 "Aircraft Basic Price" shall mean the Aircraft price, as defined
in Article 3.1.
1.6 "Aircraft Purchase Price" shall mean the Aircraft price, effective
on the relevant Aircraft Contractual Delivery Date, resulting from
the application of the Escalation Formula to the Aircraft Basic
Price as set forth in Article 3.3.
1.7 "Aircraft" shall mean the EMB--145, model EMB135KL aircraft,
(commercially known as an ERJ-140LR) manufactured by Embraer
according to the Technical Description TD-
140/003, dated June 2001 (which, although not attached hereto, is
incorporated herein by reference) and the Aircraft Specific
Configuration, Finishing and Registration Marks described in the
Attachment "A", for sale to Buyer pursuant to this Agreement,
equipped with two (02), AE3007A1/3 engines manufactured by Rolls
▇▇▇▇▇ ▇▇▇▇▇▇▇ (or, where there is more than one of such aircraft,
each of such aircraft).
1.8 "Buyer" shall mean Astral Aviation, Inc., a company with its
principal place of business at ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, ▇▇▇.
1.9 "Business Day(s)" shall mean a day on which banks are open for
business in Sao ▇▇▇▇ dos ▇▇▇▇▇▇, Sao Paulo, Rio de Janeiro, and
New York.
1.10 "Contractual Delivery Date" shall mean the delivery date referred
to in Article 5 of this Agreement.
1.11 "CTA" shall mean the Aerospace Technical Center of the Brazilian
Ministry of Aeronautics.
1.12 "Day(s)" shall mean calendar days.
1.13 "Embraer" shall mean Embraer - Empresa Brasileira de Aeronautica
S.A., a Brazilian corporation with its principal place of business
at ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ - Putim, Sao ▇▇▇▇ dos ▇▇▇▇▇▇,
Sao Paulo, Brazil.
1.14 "Escalation Formula" shall mean the escalation formula contained
in Attachment "D" hereto.
1.15 "F.A.F. " shall mean that the Aircraft is delivered to Buyer at
Embraer facilities in Sao ▇▇▇▇ dos ▇▇▇▇▇▇, Sao Paulo, Brazil, in
accordance with the terms of this Agreement.
1.16 "Firm Aircraft" shall mean the twenty (20) Aircraft that Buyer has
committed to buy from Embraer, and Embraer committed to sell to
Buyer, subject to the terms of this Agreement.
1.17 "Major Changes" shall mean the changes to the design of the
Aircraft, as defined in Article 11.2.2 hereof.
1.18 "Mandatory Service Bulletins" shall mean the service bulletins
applicable to the Aircraft, which are issued by Embraer to
implement the AD's referred to under Article 11.4 herein.
1.19 "Minor Changes" shall mean the changes to the design of the
Aircraft defined as per the terms and conditions of Article 11.2.1
hereof.
1.20 "Option Aircraft Basic Price" shall mean the unit price of the
Option Aircraft, as per the terms and conditions of Article 21.2
hereof.
1.21 "Option Aircraft Contractual Delivery Date" shall mean the
delivery schedule of the Option Aircraft referred to in Article 21
hereof.
1.22 "Option Aircraft Initial Deposit" shall mean the initial deposit
referred to under Article 21.1 of this Agreement.
1.23 "Option Aircraft Purchase Price" shall mean the escalated price of
the Option Aircraft, as per the terms and conditions of Article
21.3 hereunder.
1.24 "Option Aircraft" shall be the up to twenty (20) additional
ERJ-140 LR Aircraft that Buyer shall have the option to purchase
as per the terms of Article 21 hereof.
1.25 "Parties" shall mean Embraer and Buyer.
1.26 "Product Support Package" shall mean the products, Technical
Publications and Services to be provided by Embraer as per Article
13 herein.
1.27 "Proposal" *
1.28 "Scheduled Inspection Date" shall mean the date on which a certain
Aircraft hereunder is available for inspection and acceptance by
and subsequent delivery to Buyer, as per the terms and conditions
of Article 7.1 hereof.
1.29 "Services" shall mean the familiarization and on-site support for
the Aircraft, part of the Product Support Package, as specified in
Attachment "B".
1.30 "Technical Publications" shall mean the technical documentation
pertaining and related to the Aircraft as listed in Exhibit 1 to
Attachment "B".
1.31 "USD" or "US$" shall mean the legal currency of the United States
of America.
1.32 "Working Day(s)" shall mean a day, other than Saturday, Sunday or
holiday, on which Embraer in Sao ▇▇▇▇ dos ▇▇▇▇▇▇, ▇▇, Brazil is
open for business.
2. SUBJECT
Subject to the terms and conditions of this Agreement:
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
2.1 Embraer shall sell and deliver and Buyer shall purchase and take
delivery of twenty (20) Firm Aircraft;
2.2 Embraer shall provide to Buyer the Services and the Product
Support Package; and
2.3 Buyer shall have the option to purchase up to twenty (20) Option
Aircraft, in accordance with Article 21 hereof.
3. PRICE
3.1 Buyer agrees to pay Embraer, in United States dollars, the total
Aircraft Basic Price of *, at a unit Aircraft
Basic Price of *, * economic condition.
3.2 The Services and Technical Publications are to be provided to
Buyer * 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 Aircraft Basic Price shall be escalated according to the
Escalation Formula. Such price as escalated shall be the Aircraft
Purchase Price and it will be provided to Buyer * prior to each
Aircraft Contractual Delivery Date.
4. PAYMENT
4.1.1 *
4.1.2 The Aircraft Purchase Price of each Aircraft shall become due and
payable upon acceptance of each relevant Aircraft by Buyer, and
shall be paid by Buyer *.
4.2 Net payments:
4.2.1 All payments to be made by Buyer under this Agreement shall be
made without set-off or withholding whatsoever. If Buyer is
obliged by law to make any deduction or withholding from any such
payment, the amount due from Buyer in respect of such payment
shall be increased to the extent necessary to ensure that, after
the making of such deduction or withholding, Embraer receives a
net amount equal to the amount Embraer would have received had no
such deduction or withholding been required to be made.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
4.3 Initial Deposits:
4.3.1 The Initial Deposits shall *, and shall be held by
Embraer *.
5. DELIVERY
Subject to payment in accordance with Article 4 hereof and the provisions
of Articles 7 and 9 hereof, the Aircraft shall be offered by Embraer to
Buyer, by means of a written notice, for inspection, acceptance and
subsequent delivery in F.A.F. condition, at Sao ▇▇▇▇ dos ▇▇▇▇▇▇, State of
Sao Paulo, Brazil, according to the following schedule:
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AIRCRAFT CONTRACTUAL DELIVERY DATE AIRCRAFT CONTRACTUAL DELIVERY DATE
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01 * 2002 11 *
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02 * 12 *
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03 * 13 *
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04 * 14 *
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05 * 15 *
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06 * 16 *
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07 * 17 *
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08 * 18 *
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09 * 19 *
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10 * 20 * 2005
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6. CERTIFICATION
6.1 The Aircraft is Type certified according to FAR 25 amendment 84,
as well as to the requirements of the Air Authority for the
operation of the aircraft by Buyer under FAR 121 except for the
items that are under Buyer/operator's regulatory responsibility
pursuant to the FARs and are not otherwise required to be provided
by Embraer under this Agreement.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
6.2 The Aircraft shall be delivered to Buyer with an export
certificate of airworthiness issued by CTA complying with the type
certificate. The condition of the Aircraft on delivery and the
documentation delivered with the Aircraft, including the above
mentioned export certificate of airworthiness, shall * Buyer
to obtain a certificate of airworthiness for the Aircraft with the
Air Authority. Subject to the above, it shall be Buyer's
responsibility to obtain such certificate of airworthiness for and
the registration of the Aircraft, at Buyer's sole expense.
6.3 *.
7. ACCEPTANCE AND TRANSFER OF OWNERSHIP
7.1 The Aircraft shall be delivered in accordance with the provisions
and schedules specified in Article 5 herein. Each Aircraft shall
be offered to Buyer for inspection, acceptance and subsequent
delivery by means of written notices issued by Embraer as follows:
7.1.1. A first notice shall be issued * prior to
the relevant Aircraft Contractual Delivery Date informing Buyer of
the *;
7.1.2. A second notice shall be issued * prior to the
relevant Aircraft Contractual Delivery Date informing Buyer of the
*; and
7.1.3. A third notice shall be issued to Buyer upon *, with confirmation
of the Scheduled Inspection Date, on which date Buyer shall
promptly start inspecting such Aircraft. Embraer shall issue the
notice informing the Buyer of the Scheduled Inspection Date at
least * prior to such Scheduled Inspection Date.
7.1.4. *
7.1.5. *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
7.2 Buyer shall be allowed a reasonable period of time but in no event
greater than * starting on the Scheduled Inspection Date to
inspect and conduct an acceptance flight of each Aircraft prior to
its delivery. *.
7.3 If *, Buyer shall promptly make the due payments according to
Article 4 hereof and accept delivery of such Aircraft, whereupon
the necessary title and risk transfer documents shall be executed
in order to effect title transfer.
7.4 Buyer may decline to accept an Aircraft that does not *.
7.5 If Buyer declines to accept an Aircraft, Buyer shall promptly give
Embraer written notice of all specific reasons for such refusal
and Embraer shall have *, commencing on the first Day after *, to
take * all necessary actions in order to resubmit the Aircraft to
Buyer for re-inspection.
7.6 Buyer shall be allowed * to re-inspect the Aircraft, starting
immediately upon * from Embraer that all necessary actions were
taken. The period required for re-inspection as well as the period
mentioned in item 7.5 during which Embraer is taking actions in
order to resubmit the Aircraft above shall not be considered as
part of the * grace period provided for in item 9.2.1 hereof. *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
7.7 Should Buyer fail to perform the acceptance and transfer of title
to the Aircraft within the periods provided for and in accordance
with this Article 7,and such failure is not due to the
non-compliance of the Aircraft as described in Article 7.4,
Embraer shall be entitled, at its reasonable discretion, to *.
Embraer rights to * shall only become effective if Buyer has not *
within * after the Schedule Inspection Date *.
7.8 Notwithstanding the provisions of Article 7.7 above and in
addition to Embraer's rights pursuant to Article 20.3, should
Buyer fail to perform the acceptance and transfer of title to the
Aircraft within the time period specified in Articles 7.2, 7.5 and
7.6 above, as applicable, *, interest will accrue at the rate of *
over the unpaid balance of the relevant Aircraft Purchase Price,
prorated from the date on which Buyer should have *, until the
date in which transfer of title occurs or until the date Embraer *
pursuant to Article 7.7 above, whichever occurs first. Without
prejudice to Embraer's rights set forth in Article 7.7 above,
interest accrued will be invoiced by Embraer on a monthly basis,
beginning one month after the date on which *, and payment thereof
shall be made by Buyer in accordance with the instructions
contained therein.
8. STORAGE CHARGE
8.1 Subject to Article 8.2, a storage charge equal to * shall be
charged by Embraer to Buyer commencing *:
8.1.1 Buyer's failure to perform inspection or re-inspection of an
Aircraft, per the date or time period specified in writing by
Embraer, according to Articles 5 and/or 7 hereof, as applicable.
8.1.2 Buyer's acceptance of an Aircraft when Buyer defaults in *.
8.1.3 Buyer's failure to remove an Aircraft from Embraer's facilities
after *.
8.2 In the event that an Aircraft Contractual Delivery Date must be
extended by Embraer from that which is designated in Article 5
hereof, due to Buyer's failure to perform any action or provide
any information contemplated by this Agreement other than the ones
specified Articles 8.1.1, 8.1.2, 8.1.3, the storage charge shall
commence * after the Contractual Delivery Date relative to such
Aircraft.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
8.3 Buyer shall pay the storage charge as set forth in Articles 8.1.
or 8.2. hereinbefore, as applicable, in United States dollars, per
each month of delay or prorated for part thereof, within * after *
of each invoice by Embraer.
9. DELAYS IN DELIVERY
9.1 Excusable Delays:
9.1.1 Embraer shall not be held liable or be found in default for any
delays in the delivery of an Aircraft or in the performance of any
act to be performed by Embraer under this Agreement, to the extent
resulting from the following events or occurrences (hereinafter
referred to as "Excusable Delays"): (a) force majeure *, (b) *, c)
any delay resulting from any failure by Buyer to perform any
action or provide any information contemplated by this Agreement
or, (d) delays resulting from any other cause to the extent it is
beyond Embraer's control *.
9.1.2 * after the occurrence of any of the above mentioned events which
constitute * causes of Excusable Delay in delivery of an Aircraft
or in the performance of any act to be performed by Embraer under
this Agreement, Embraer shall send a written notice to Buyer
including a description of details involved and an estimate of the
effects expected upon the timing of the performance of its
contractual obligations.
9.1.3 Any Excusable Delays shall extend the time for delivery of an
Aircraft *, subject to Article 9.1.4. Embraer undertakes to use *
to avoid or remove any such cause of delay and to minimize its
effect on the Contractual Delivery Date of an Aircraft.
9.1.4 If the cause of such Excusable Delay is such as to last longer
than *, then the Parties shall *; failing which, either Party may
terminate this Agreement with regards to the affected Aircraft as
provided for in Article 20.2.
9.2 Non-Excusable Delays:
9.2.1 If the delivery of an Aircraft is delayed by Embraer for any
reason other than an Excusable Delay, for more than *, Buyer
shall be entitled to *,
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
* up to *. If the Aircraft is delayed by Embraer for any reasons
other than an Excusable Delay for *.
9.2.2 If the delivery of an Aircraft is delayed by Embraer for any
reason other than an Excusable Delay *, for more than * then up to
*.
9.2.3 It is hereby understood that any and all * by Embraer pursuant to
this Purchase Agreement will not, in any event, *. Embraer and
Buyer acknowledge that the * as set forth herein and in Items
9.2.1 and 9.2.2 are *. * pursuant to this Article 9.2. shall be *
after Buyer pays to Embraer the Aircraft Purchase Price for the
Aircraft in question.
9.2.4 Upon the occurrence of any event which *, Embraer shall * send a
written notice to Buyer, *.
9.2.5 It is agreed between the Parties that if, with respect to a
delayed Aircraft, Embraer does not receive a * as mentioned in
Article 9.2.1 above, from Buyer, within * after *, Buyer shall be
deemed to have fully waived its right to *.
9.3 Delay Due to Loss or Structural Damage of the Aircraft:
Should any Aircraft be destroyed or damaged before acceptance to
the extent that it becomes commercially useless, Buyer may *
either take a replacement Aircraft at a later delivery date to be
agreed by the Parties, or terminate this Agreement with respect to
such Aircraft by notice to Embraer, given in accordance with
Article 23 hereof, without any liability to either Party *.
Embraer agrees to use * to offer Buyer a replacement Aircraft *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
*.
10 INSPECTION AND QUALITY CONTROL
10.1 Buyer is hereby allowed to have one authorized representative at
Embraer's facilities * to assure * according to the applicable
quality control standards.
Buyer shall communicate to Embraer the name of such
representative, by means of written notice, at least thirty (30)
days prior to the date of the representative's arrival. The
presence of such representative shall not unduly disturb the
normal activities of Embraer.
10.2 Buyer is hereby allowed to have * of authorized representatives at
Embraer's facilities in order to perform the inspection and
acceptance tests on the Aircraft and Spares. Buyer shall
communicate to Embraer the names of such representatives, by means
of written notice, at least * prior to the relevant Aircraft
Scheduled Inspection Date.
10.3 One or more of the representatives referred to in Article 10.2
above, or other representatives duly appointed by Buyer, shall be
authorized to sign the appropriate acceptance and risk documents
and take delivery of the Aircraft and Spares pursuant to Article
7.
10.4 For the purposes hereof, Embraer shall provide, at no charge to
Buyer, room space with communication facilities (telephone and
facsimile) for Buyer's authorized representatives, as well as the
necessary tools, measuring devices, test equipment and technical
assistance as may be necessary to perform acceptance tests.
10.5 Buyer's authorized representatives shall observe Embraer's
administrative rules and instructions while at Embraer's
facilities.
10.6 Buyer's authorized representative 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 to
the extent attributable to negligence, gross negligence or willful
misconduct of such authorized representatives while at Embraer's
facilities.
11. CHANGES
11.1 Each Aircraft will comply with the standards defined in Attachment
"A" hereto and shall incorporate all modifications which are
classified as AD's mandatory by CTA or the Air Authority as
provided in Article 11.4, or those agreed upon by Buyer and
Embraer in accordance with this Article.
11.2 The Parties hereby agree that changes can be made by Embraer in
the design of the Aircraft, the definition of which and its
respective classification shall be in compliance to the Aircraft
type specification, as follows:
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
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 that 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 convey those Major Changes that are classified as
AD's by means of service bulletins approved by the Air Authority
and/or CTA, as appropriate. Service bulletins that implement such
AD's shall be referred to as Mandatory Service Bulletins. Embraer
shall notify Buyer in writing of all Mandatory Service Bulletins
and shall incorporate Mandatory Service Bulletins as follows:
11.4.1 Compliance required before Contractual Delivery Date: Embraer
shall incorporate Mandatory Service Bulletins in undelivered
Aircraft at Embraer's expense prior to the Contractual Delivery
Date if the compliance time for such Mandatory Service Bulletins
is before the Aircraft's Contractual Delivery Date. Embraer shall
not be liable for any delays resulting from incorporation of
Mandatory Service Bulletins when the Aircraft has already passed
the specific production stage affected by the incorporation of
said change *. Embraer shall use * to incorporate such Mandatory
Service Bulletins as promptly as possible.
11.4.2 Compliance required after Contractual Delivery Date: During the *,
Embraer shall * for Mandatory Service Bulletins that are issued
either (i) before the relevant Aircraft's Contractual Delivery
Date but with a compliance time after such date or (ii) after the
relevant Aircraft's Contractual Delivery Date. *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
*. Embraer shall not be liable for any downtime of delivered
Aircraft that may be necessary for the incorporation of any
changes. When flight safety is affected, such changes shall be
incorporated *. If * is not available or applicable *, the
provisions of Article 11.5 shall apply.
11.5 Major changes, (other than those which are AD's mandatory per
Article 11.4), any change developed by Embraer as product
improvement and any change required by Buyer, including those
changes required by Buyer's country authorities as a consequence
of *, shall be considered as optional and, pursuant to Buyer's
request, the corresponding cost proposals shall be submitted by
Embraer to Buyer for consideration and approval. Should Buyer not
approve any such change, it shall not be incorporated in the
Aircraft.
11.6 Any Major Change to the Aircraft, made in accordance with the
foregoing paragraphs that affect the provisions of Attachment "A"
hereto, shall be incorporated in said Attachment "A" by means of
an amendment.
11.7 Except as far as it relates to *, each Aircraft shall, on its
Scheduled Inspection Date, comply with all of the applicable terms
and conditions of Attachment "A" as from time to time amended
pursuant to Article 11.6 above. Determination of such compliance
shall be *.
12. WARRANTY
The Aircraft subject to this Agreement, will be warranted in accordance
with the terms and conditions specified in Attachment "C" hereto. Except
when Article 14 applies, if Buyer intends to *, it is Buyer's
responsibility to obtain *, as well as to provide Embraer written notice
* of any changes *.
13. PRODUCT SUPPORT PACKAGE
Embraer shall supply to Buyer the Product Support Package described in
Article 2 of Attachment "B" hereto, which includes Embraer's spare parts
policy, the Technical Publications and the Services.
14. ASSIGNMENT
Except with regards to the guarantees granted by Embraer for the
exclusive benefit of Buyer pursuant to Attachments E, F and G, Buyer's
rights and obligations hereunder may be assigned: (a) to * with Embraer's
consent *, (b) to subsidiaries and affiliates which are *; 14.1 (c) to
any lender, owner, or other financing party (or any trustee for any of
the foregoing) in connection with
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
any Aircraft financing on behalf of Buyer; and which results in Buyer's
operation of the relevant Aircraft, and (d) in connection with Buyer's
consolidation with or merger *.
14.2 Notwithstanding anything to the contrary contained herein:
14.2.1 no such assignment shall *;
14.2.2 any assignee or transferee shall represent, to the benefit of
Embraer, its express agreement and consent to be bound by the
terms and conditions of this Agreement as assigned when exercising
rights thereunder;
14.2.3 Embraer shall be notified by Buyer of any such assignment or
transfer at least *.
14.2.4 in no instance shall such assignment or transfer be made to or for
the benefit of any transferee or assignee which is a * of *. For
the purposes hereof * shall mean *.
14.2.5 any assignee or transferee of Buyer shall be invested with the
requisite power and authority to carry out the transactions
contemplated under this Agreement.
15. RESTRICTIONS AND PATENT INDEMNITY
This sale does not include the transfer of designs, copyrights, patents,
and other similar rights to Buyer. Subject to Buyer's duty to promptly
advise Embraer of any alleged copyright or patent infringement of which
Buyer becomes aware, Embraer shall defend, indemnify and hold harmless
Buyer and its affiliates, successors, directors, officers, employees and
agents from an against all claims, suits, losses, liabilities and
reasonable expenses (including without limitation reasonable attorneys'
fees and legal expenses) arising out of any actual or alleged
infringement of any patent, trademark, trade secret, copyright, or other
intellectual property right through *. In addition, if any action use of
any Aircraft, * enjoined by reason of infringement, Embraer shall, at its
sole expense and Embraer's option, either (i) procure for Buyer the right
to continue using the infringing items; (ii) modify the items * to render
them non-infringing; (iii) replace the infringing items with
non-infringing items *.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
16. MARKETING PROMOTIONAL RIGHTS
Provided *, and provided that *, Embraer shall have the right to show for
marketing purposes, free of any charge, the image of Buyer's 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. Buyer shall be entitled to
*, provided however *.
17. TAXES
Embraer shall be responsible for and pay all taxes, fees, charges,
imposts and duties arising out of or in connection with the performance
of this Agreement, or the sale, delivery or transfer of any Aircraft or
other things furnished under this Agreement that may imposed under
Brazilian laws, *. All other taxes, imposts, fees, withholding taxes,
stamp taxes, documentary taxes and any other similar or dissimilar taxes,
as well as any *, as may be imposed on the sale subject of this Agreement
shall be borne by Buyer.
18. APPLICABLE LAW
This Purchase Agreement, and the rights and obligations of the Parties
hereunder, shall be governed by and construed and interpreted in
accordance with the laws of the State of New York, USA.
19. JURISDICTION
All disputes arising in connection with this Purchase Agreement shall be
finally settled in the United States District Court for the Southern
District of New York located in the county of New York, provided that if
such court lacks jurisdiction, disputes shall be resolved in the state
courts for the state of New York. The Parties hereby waive any other
court of Jurisdiction that may be competent for settlement of disputes
arising from this Agreement.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
20. TERMINATION
20.1 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 *.
Should such failure not be remedied within the period so specified, the
Party who gave notice of such failure shall be entitled * this Agreement.
Should termination occur in accordance with the foregoing, the defaulting
Party shall *. The foregoing provision shall not apply in any
circumstance where a specific right of termination is made available
hereunder or will be made available hereunder upon the expiration of a
specific period of time. Except as otherwise provided for herein, neither
Party shall * under of any term, condition, covenant, warranty, or
provision of this Agreement, and which either Party would *.
*
20.2 Upon the occurrence of any Excusable Delay of * after the Aircraft
Contractual Delivery Date, Buyer shall have the right to *. If Buyer does
not elect to terminate * after *, Embraer shall *. Termination by either
Party shall be exercised by means of written notice to such effect, to be
issued within the above referred to time periods.
20.3 Buyer shall have the right to terminate * upon the occurrence of any
non-Excusable Delay of * after the Aircraft Contractual Delivery Date,
and if Buyer does not exercise its right to terminate, Embraer may
terminate * after the relevant Aircraft Contractual Delivery Date.
Termination by either Party shall be exercised by means of written notice
to such effect, to be issued in the case of Buyer not more than * after
the Contractual Delivery Date of the Relevant Aircraft, and in the case
of Embraer not more than * after the Contractual Delivery Date of the
Relevant Aircraft.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
20.4 Buyer shall be entitled to terminate * after final refusal of acceptance
in accordance with the terms of Article 7.6. If Buyer has not terminated
* within * following final refusal of acceptance, Embraer *.
20.5 *
20.6 Upon receipt of a notice of termination by Buyer or Embraer, as the case
may be, pursuant to Articles 20.2, 20.3, 20.4 or 20.5 *, it being hereby
agreed by the Parties that no other *.
20.7 If Buyer terminates * before an Aircraft Actual Delivery Date (except
when such termination is for * or, if Embraer terminates *, pursuant to
Articles 4.1 or 7.7 hereof, Buyer shall * provided that if such
termination occurs *. Embraer and Buyer acknowledge that the *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
*. For these purposes Embraer may, in its sole discretion, * resulting
from such default on *.
20.8 If Buyer terminates * pursuant to Article 7.6 hereof, Embraer, upon
Buyer's request, *.
21. OPTION FOR THE PURCHASE OF ADDITIONAL AIRCRAFT Buyer shall have the
option to purchase up to twenty (20) Option Aircraft provided however
that the Option Aircraft shall be exercised *.
21.1 Each Option Aircraft shall be configured as per Attachment "A" and
shall be available to Buyer at the Firm Aircraft Basic Price and
on the *. Any additional Buyer selected optional equipment and/or
specific interior configuration changes will affect the Aircraft
Basic Price for each applicable Option Aircraft accordingly. The
Option Aircraft Basic Price is subject to the Escalation Formula.
21.2 Buyer shall exercise options in *. If Buyer fewer than * Option
Aircraft *, Buyer's right to purchase that number of Option
Aircraft equal to *. For example, if Buyer exercises *, Buyer
shall be deemed to have waived *.
21.3 There shall be a minimum of * between the exercise of *.
21.4 In order to exercise its option, Buyer shall inform Embraer of its
decision to acquire each relevant Option Group by means of a
written notice to Embraer, return receipt requested.
21.5 Upon receipt of such notice Embraer shall inform Buyer, *.
21.6 If Buyer *, Buyer shall promptly * to Embraer.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
21.7 If Buyer and Embraer cannot *, the right of Buyer to * be
terminated *.
21.8 The product support package to be applied to the Option Aircraft
is described in Article 2.3.1 of Attachment "B".
22. INDEMNITY
22.1 Buyer agrees to indemnify and hold harmless Embraer and Embraer's
officers, agents, employees and assignees from and against all
liabilities, damages, losses, judgments, claims and suits,
including costs and expenses incident thereto, which may be
suffered by, accrued against, be charged to or recoverable from
Embraer and/or Embraer's officers, agents, employees and assignees
by reason of loss or damage to property or by reason of injury or
death of any person (excluding any employees, agents directors and
officers of Embraer) 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, while on the premises of Embraer or
Buyer, while in flight on Buyer-owned Aircraft or while performing
any other service, at any place, in conjunction with the Aircraft
operations of Buyer *.
22.2 *
23. NOTICES
All notices, invoices or other correspondence permitted or required
hereunder shall be in writing in the English language and sent, by
recognized international courier or facsimile, to the attention of the
Director of Contracts as to Embraer and of the President of Astral as to
Buyer, to the addresses indicated below or to such other address as
either Party may, by written notice, designate to the other. Notices,
invoices or other correspondence shall be deemed to be received when the
sending facsimile machine issues a delivery receipt for the facsimile of
such notice, invoice or other correspondence, and when such notice,
invoices or other correspondence are sent by * , such notices, invoices
or other correspondence shall be *.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
23.1 EMBRAER:
EMBRAER - Empresa Brasileira de Aeronautica S.A.
▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
12.227-901 Sao ▇▇▇▇ dos ▇▇▇▇▇▇ - SP
Brasil
Telephone: (▇▇▇-▇▇) ▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇-▇▇) ▇▇▇▇-▇▇▇▇
23.2 BUYER:
Astral Aviation, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attn: President
With a copy to: General Counsel
24. CONFIDENTIALITY
Buyer and Embraer agree not to disclose any portion of this Purchase
Agreement or its attachments or amendments or any other supplement or any
information submitted in connection herewith to any third party without
the other Party's written consent, except as required by law, regulation
or court order. Without limiting the foregoing, in the event either Party
is legally required to disclose the terms of this Purchase Agreement,
such Party agrees to * to obtain confidential treatment of the clauses
and conditions of this Purchase Agreement as designated by the other
Party. The provisions of this Article supersede any prior agreement
between the parties related to the use and disclosure of information
exchanged between the Parties. This Article 24 shall not prohibit the
parties from disclosing the terms of this Agreement and all related
documents to their respective legal counsel, accountants and auditors. In
connection with any financing associated with Buyer's financing of the
Aircraft, * to the financing institution which will provide financing,
provided *.
25. SEVERABILITY
If any provision or part of a provision of this Agreement or any of the
Attachments shall be, or be found by any authority or court of competent
jurisdiction to be, invalid or unenforceable, such invalidity or
unenforceability shall not affect the other provisions or parts of such
provisions of this Agreement, all of which shall remain in full force and
effect.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
26. NON-WAIVER
Except as otherwise specifically provided to the contrary in this
Agreement, any Party's refraining 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.
27. INTEGRATED AGREEMENT
All Attachments referred to in this Agreement and/or attached hereto are,
by such reference or attachment, incorporated in this Agreement.
28. NEGOTIATED AGREEMENT
Buyer and Embraer agree that this Agreement, including all of its
Attachments, has been the subject of discussion and negotiation and is
fully understood by the Parties, and that the rights, obligations and
other mutual agreements of the Parties contained in this Agreement are
the result of such complete discussion and negotiation between the
Parties.
29. COUNTERPARTS
This Agreement may be signed by the Parties hereto 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.
30. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties,
superseding all prior oral or written agreements, understandings,
representations, proposals and negotiations on the subject matter hereof;
and there are no conditions affecting this Agreement that are not
expressed herein. This Agreement may not be altered, amended or
supplemented except by a written instrument executed by the Parties.
31. LANGUAGE
All the correspondence, documents, specifications and other materials to
be provided to Buyer, whether in tangible or electronic form and whether
provided by Embraer or other vendors, must be provided in the English
language
32. CURRENCY
Unless otherwise agreed in writing, all payments to be made by the
Parties hereunder shall be made in United States dollars
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 ASTRAL AVIATION, INC.
de Aeronautica S.A.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President Title: President & CEO
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director of Contracts
Date: August 13, 2001 Date: August 15, 2001
Place: Sao ▇▇▇▇ dos ▇▇▇▇▇▇, ▇▇ Place: Oak Creek, WI U.S.A.
Brazil
Witnesses:
/s/ ▇▇▇▇▇▇ ▇. Close /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
--------------------------- -----------------------------
Name: ▇▇▇▇▇▇ ▇. Close Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
ID: 8895361-0 SSP/SP ID:
--------------------------------------------------------------------------------
ATTACHMENT "A"
AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND REGISTRATION MARKS
--------------------------------------------------------------------------------
1. STANDARD AIRCRAFT
The Aircraft shall be manufactured according to the standard
configuration specified in the Technical Description TD-140/003, dated
June 2001 and the optional equipment described in item 2.
2. OPTIONAL EQUIPMENT
2.1 OPTIONS TO STANDARD AVIONICS CONFIGURATION
*
2.2 OPTIONAL SYSTEM/OTHER EQUIPMENT
*
2.3 INTERIOR OPTIONAL ITEMS
*
2.4 *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 1 of 2
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ATTACHMENT "A"
AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND REGISTRATION MARKS
--------------------------------------------------------------------------------
3. FINISHING
3.1. EXTERIOR FINISHING:
The fuselage of the Aircraft shall be painted according to Buyer's
color and paint scheme that shall be supplied to Embraer by Buyer
on or before * prior to the relevant Aircraft Contractual Delivery
Date, *. The wings and the horizontal stabilizer shall be supplied
in the standard colors, i.e., ▇▇▇▇ BAC707.
3.2. INTERIOR FINISHING:
Buyer shall inform Embraer on or before * prior to the relevant
Aircraft Contractual Delivery Date of its choice of materials and
colors of all and any item of interior finishing such as seat
covers, carpet, floor lining on galley areas, side walls and
overhead lining, galley lining and curtain. 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, Buyer shall *.
4. REGISTRATION MARKS AND TRANSPONDER CODE
The Aircraft shall be delivered to Buyer with the registration marks
painted on them. Buyer shall supply the registration marks and the
transponder code to Embraer no later than * before each relevant Aircraft
Contractual Delivery Date.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT
BETWEEN THE TERMS OF THIS ATTACHMENT "A" AND THE TERMS OF THE TECHNICAL
DESCRIPTION TD-140/005 DATED JUNE 2001, THE TERMS OF THIS ATTACHMENT "A" SHALL
PREVAIL.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 2 of 2
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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 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 its arrival in Ft. Lauderdale, FL, USA,
remove the Kit from the Aircraft and return it to Embraer in Brazil at
Buyer's own expense, including the necessary insurance.
If Embraer provides the Kit to Buyer and *, Buyer shall pay *.
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 Embraer shall make a representative available on board of the Aircraft
during * in order to *. Such representative shall remain on board of the
Aircraft until *. Any other arrangement shall be requested * prior to the
relevant Aircraft Contractual Delivery Date and shall be contingent upon
*.
2. PRODUCT SUPPORT PACKAGE
2.1 SPARES
2.1.1. SPARES POLICY
Embraer guarantees the supply of spare parts, lines replaceable units and
ground support equipment, except engines and its accessories, hereinafter
referred to as "Spare(s)", for the Aircraft for a period of * 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 it subsidiaries or branch offices. Embraer
shall also assist Buyer as required to * spare parts in *.
2.1.2. INITIAL PROVISIONING
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 1 of 8
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ATTACHMENT "B"
FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
--------------------------------------------------------------------------------
Upon Buyer's request, Embraer shall present to Buyer a list containing
Embraer's suggestion for an initial provisioning of Spares for purchase
by Buyer.
The objective of the initial provisioning list (IPL) is to provide Buyer
with accurate technical data supplied by Embraer, in order to enable an
adequate selection of Spares, aiming to support initial scheduled
maintenance, based upon operational parameters established by Buyer.
Buyer may elect to acquire the items contained in the IPL *. In the event
that Buyer elects to purchase all items contained in the IPL * (the "IP
Spares"), in order to have the necessary IP Spares available by the time
of the first Aircraft Contractual Delivery Date, Buyer must place a
purchase order at Embraer for the acquisition of the IP Spares on or
before * prior to the first Aircraft Contractual Delivery Date. The
delivery schedule of such IP Spares shall be agreed upon by the Parties
at the time of *. Should Buyer not inform Embraer of IP Spares items
selected by Buyer within the schedule set forth above, *.
2.1.3. PRE-PROVISIONING CONFERENCE
Embraer will, without charge, provide a qualified team to attend
pre-provisioning conferences as necessary to discuss Buyer requirements
and all points of the IPL. Such meeting shall be held as soon as
practicable following execution of the Purchase Agreement in *.
2.1.4. DATA
Initial provisioning data will be supplied to Buyer upon request.
a. INITIAL PROVISIONING DATA: Embraer will supply initial
provisioning data within a time period to be mutually agreed upon
by both Parties.
b. PROVISIONING DATA REVISIONS: As requested, the IPL will have the
data updated by incorporating engineering and price changes.
Embraer will maintain a master copy of the IPL updated until
*.
2.1.5. SPARES RECOMMENDATIONS (other than IP Spares)
Embraer will provide, if requested, a breakdown of recommended Spares to
support the components used during the Aircraft operation (inventory
reprovisioning).
2.1.6. DELIVERY OF SPARES
Except for those Spares referred to in item 2.1.4. above, IP Spares are
normally in inventory and available for delivery on the Aircraft
Contractual
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 2 of 8
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ATTACHMENT "B"
FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
--------------------------------------------------------------------------------
Delivery Date. Nevertheless, delivery dates shall be *. Replenishment of
Embraer made parts will be in accordance with * and *. Embraer will
deliver Spares or IP Spares in FCA (Free Carrier - INCOTERMS 1990)
condition, at Sao ▇▇▇▇ dos ▇▇▇▇▇▇, State of Sao Paulo, Brazil, or at any
other port of clearance that may be chosen by Embraer and informed to
Buyer.
2.1.7. EMERGENCY SPARES SERVICE
Embraer will maintain an emergency Spares service. Such service consists
of AOG desk accessible through toll-free calling numbers and trained
spare-parts specialists available, twenty four (24) hours a day, seven
(7) days a week. *.
2.1.8. CREDIT FOR SURPLUS IP SPARES
Embraer offers to Buyer a program for certain surplus IP Spares
manufactured by Embraer and which were * 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 * and ending *,
Embraer will, *, offer a credit for new and unused IP Spares
manufactured by Embraer *. Such credit may be used toward the
purchase of *.
e.1 EXCEPTIONS: Embraer will not issue credits for IP Spares
which * and for
IP Spares which *.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 3 of 8
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ATTACHMENT "B"
FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
--------------------------------------------------------------------------------
e.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 *.
e.3 DELIVERY OF SURPLUS IP SPARES: IP Spares for which a
credit has been requested shall be delivered by
Buyer, *. 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.
e.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.
2.2 AIRCRAFT TECHNICAL PUBLICATIONS:
2.2.1. AIRCRAFT PUBLICATIONS
Embraer shall supply, *, copies of operational and maintenance
publications applicable thereto, in the English language and in the
quantities as specified in Exhibit "1" to this Attachment "B". Such
publications are issued under the applicable specification and are
available in hard copies, *. Such publications will be delivered together
with the Aircraft, proportionally to the number of Aircraft purchased, up
to the maximum quantity described in Exhibit "1" to this Attachment "B".
2.2.2. VENDOR ITEMS PUBLICATIONS
With respect to vendor items installed in the Aircraft which have their
own publications, Buyer will receive them in the quantity specified in
Exhibit "1" to this Attachment "B", in their original content and printed
form, directly from the suppliers, which are also responsible to keep
them continuously updated through a direct communication system with
Buyer.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 4 of 8
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ATTACHMENT "B"
FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
--------------------------------------------------------------------------------
2.2.3 *
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, *.
2.3 SERVICES
Embraer shall provide or cause to be provided, familiarization programs
and * support for the Aircraft (the "Services") in accordance with the
terms and conditions described below:
2.3.1 Familiarization Programs:
a. Familiarization program specified below is being offered at no
charge to Buyer, except for *, as well as, *. The familiarization
programs shall be conducted by FlightSafety International in
accordance with the customer-training program and with all
applicable regulations and requirements of the FAA and shall
include all required manuals and course material.
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 familiarization program, as applicable, shall occur prior to
*. Buyer must give written notification to Embraer * in advance of
Buyer's expected training schedule. Should Buyer not take all or
any portion of the familiarization program for an Aircraft 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.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 5 of 8
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ATTACHMENT "B"
FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
--------------------------------------------------------------------------------
d. All familiarization programs shall be provided by FlightSafety
International in *.
e. The familiarization program referred to above covers:
e.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 a * in accordance
with flight operations training program of Buyer duly
approved by the Air Authority.
e.2 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 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 responsible for submitting its training programs to
the Air Authority for approval; Embraer shall *.
g. The Parties further understand and agree that in the event Buyer
does not * Buyer will *. Embraer shall *:
h. *. Any other additional services requested by Buyer shall depend
on mutual agreement between the Parties and shall be charged by
Embraer accordingly.
i. 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
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 6 of 8
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ATTACHMENT "B"
FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
--------------------------------------------------------------------------------
any kind *.
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:
If and to the extent that Buyer so desire:
a. Embraer shall indicate at its sole discretion, and provide at no
cost to Buyer, *.
b. *
c. At no charge to Embraer, Buyer shall provide such * with
communication facilities (telephone, facsimile) as well as work
space and facilities at Buyer's main maintenance base, and Buyer
shall also *, to permit the accomplishment of the services
mentioned in this item 2.3.2, in due time. *. Buyer agrees to
assist Embraer and the employees of Embraer * in obtaining *.
d. During the *, Buyer shall permit access to the maintenance and
operation facilities as well as to the data and files of Buyer's
Aircraft fleet. It is hereby agreed and understood that Buyer
shall make available *, one (1) set of updated Technical
Publications 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 *.
e. Buyer shall bear all expenses related to the transportation, board
& lodging of * when *.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 7 of 8
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ATTACHMENT "B"
FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
--------------------------------------------------------------------------------
f. Without a previous written authorization from Embraer, * shall
not participate in test flights or flight demonstrations. In case
Buyer obtains such previous authorization, Buyer shall include the
* 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 *. Any other
additional * support shall depend on mutual agreement between the
Parties and shall be charged by Embraer accordingly.
h. The presence of * 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 FSR *.
2.3.3 *
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 24b-2. A portion of this page
and two additional pages were redacted.
Page 8 of 8
--------------------------------------------------------------------------------
EXHIBIT 1 TO ATTACHMENT B - LIST OF TECHNICAL PUBLICATIONS
--------------------------------------------------------------------------------
The quantity of technical publications covering Aircraft operation and
maintenance shall be delivered to Buyer in accordance with the following list:
QUANTITES OF SETS TO BE SUPPLIED FOR BUYER UNDER THIS CONTRACT
OPERATIONAL SET
Title Qty (copies)
1. Airplane Flight Manual (AFM) +
2. Weight & Balance Manual (WB) +
3. Operations Manual (OM) +
4. Quick Reference Handbook (QRH) +
5. Dispatch Deviation Procedures Manual (DDPM) +
6. Supplementary Performance Manual (SPM) +
7. Operational Bulletins Set (OB) +
MAINTENANCE SET
Title Qty (copies)
8. Aircraft Maintenance Manual (AMM) +
9. Illustrated Parts Catalog (IPC) +
10. Fault Isolation Manual (FIM) +
11. Non Destructive Manual (NDI) +
12. Scheduled Maintenance Requirements Document (SMRD) +
13. Wiring Manual (WM) +
14. Structural Repair Manual (SRM) +
15. Service & Information Bulletins Set (SB/IB) +
16. Service Newsletters (SNL) +
17. System Schematic Manual (SSM) +
18. Instructions for Ground Fire Extinguishing and Rescue
(IGFER) +
19. Airport Planning Manual (APM) +
20. Illustrated Tool & Equipment Manual (ITEM) +
21. Task Card Manual (TCM) +
22. Ramp Maintenance Manual (RMM) +
23. Powerplant Build-up Manual (PPBM) +
24. Auxiliary Power Unit Build up Manual (APUBM) +
25. Corrosion Prevention Manual (CPM) +
26. Vendor Service Publications Set (*) +
(*) To be delivered by the suppliers directly to Buyer.
+ Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Exhibit 1 to Attachment B Page 1 of 2
--------------------------------------------------------------------------------
EXHIBIT 1 TO ATTACHMENT B - LIST OF TECHNICAL PUBLICATIONS
--------------------------------------------------------------------------------
QUANTITES OF EXTRA SETS TO BE PROVIDED ON BOARD OF EACH AIRCRAFT
OPERATIONAL SET
Title Qty (copies)
27. Airplane Flight Manual (AFM) +
28. Weight & Balance Manual (WB) +
29. Operations Manual (OM) +
30. Quick Reference Handbook (QRH) +
31. Dispatch Deviation Procedures Manual (DDPM) +
32. Supplementary Performance Manual (SPM) +
+ Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Exhibit 1 to Attachment B Page 2 of 2
--------------------------------------------------------------------------------
ATTACHMENT "C"
EMB-140 WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
--------------------------------------------------------------------------------
1. Embraer, subject to the conditions and limitations hereby expressed,
warrants all Aircraft subject of the Purchase Agreement to which this is
an Attachment, as follows:
a. For a period of * from the date of delivery to the Buyer, the
Aircraft will be free from:
o Defects in materials, workmanship and manufacturing
processes in relation to parts manufactured by Embraer or
by its subcontractors holding an Embraer part number;
o 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 * from the date of delivery to the Buyer, the
aircraft will be free from:
o Defects in operation of vendor (Embraer's supplier)
manufactured parts, not including the Engines, Engine
accessories, as identified in Exhibit 1 hereto
("Accessories"), and the Auxiliary Power Unit (APU) and its
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.
o 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 *, 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
*
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 1 of 3
--------------------------------------------------------------------------------
ATTACHMENT "C"
EMB-140 WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
--------------------------------------------------------------------------------
*, 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, depending solely upon its own judgment, the parts that
are returned to Embraer or its representatives *, 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 defect not be reported to Embraer in writing
prior to returning the defective part to Embraer or the defective part
not be returned to Embraer *, Embraer may have the right, at its sole
discretion, to deny the warranty claim. *.
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 arising in any of the following
circumstances:
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;
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 2 of 3
--------------------------------------------------------------------------------
ATTACHMENT "C"
EMB-140 WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
--------------------------------------------------------------------------------
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 *.
6. The Warranty hereby expressed is established between Embraer and the
first Buyer, and it cannot be transferred or assigned to others, unless
by written consent of Embraer, 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;
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.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 3 of 3
--------------------------------------------------------------------------------
EXHIBIT 1 TO ATTACHMENT "C"
*
--------------------------------------------------------------------------------
*
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Exhibit 1 to Attachment "C" to PA DCT - 043/01 Page 1 of 1
--------------------------------------------------------------------------------
ATTACHMENT "D"
ESCALATION FORMULA
--------------------------------------------------------------------------------
*
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 24b-2. Three pages (including
this page) were redacted.
Page 1 of 3
--------------------------------------------------------------------------------
ATTACHMENT "E"
*
--------------------------------------------------------------------------------
*
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 24b-2. Two pages (including this
page) were redacted.
Page 1 of 2
--------------------------------------------------------------------------------
ATTACHMENT "F"
*
--------------------------------------------------------------------------------
*
* Indicates that material has been omitted and confidential treatment has
been requested therefor. All such omitted material has been filed
separately with the SEC pursuant to Rule 24b-2. Nine pages (including
this page) were redacted.
Page 1 of 9
--------------------------------------------------------------------------------
ATTACHMENT "G"
PERFORMANCE * GUARANTEE
--------------------------------------------------------------------------------
1. GUARANTEES
Embraer, subject to the conditions and limitations hereby expressed, and
considering the Aircraft EMB-140 LR equipped with Embraer furnished Rolls
▇▇▇▇▇ ▇▇▇▇▇▇▇ AE3007A1/3 engines, guarantees that each Aircraft on the
relevant Actual Delivery Date shall comply with the following
performance:
1.1 TAKE-OFF
The FAA approved take-off field length at a gross weight at the
start of the ground roll of *, on a standard day (ISA), at a sea
level altitude, zero wind, no obstacles, dry runway, using TO
Mode, with Flap 9 deg, shall not be more than the guarantee value:
Guarantee: *
The Aircraft will meet FAA approved minimum climb gradient for one
engine inoperative climb, after takeoff at sea level, at a
temperature of ISA+23(Degree)C, using TO Mode, with Flap 9 deg and
increased V2, and with takeoff weight not less than the guarantee
value:
Guarantee: *
1.2 LANDING
The FAA approved landing field length at a gross weight of * and
at a sea level altitude shall not be more than the guarantee
value:
Guarantee: *
1.3 CRUISE SPECIFIC AIR RANGE
The cruise specific air range at a gross weight of * in a standard
day (ISA), at an altitude of 35,000 ft, at 440 KTAS using not more
than maximum cruise thrust, shall not be less than the guarantee
value:
Nominal: *
Tolerance: *
Guarantee: *
1.4 SPEED
The level flight speed at a gross weight of *, in a standard day
(ISA), at an altitude of 35,000 ft and using not more than maximum
cruise thrust, shall not be less than the guarantee value:
Nominal: *
Guarantee: *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 1 of 7
--------------------------------------------------------------------------------
ATTACHMENT "G"
PERFORMANCE * GUARANTEE
--------------------------------------------------------------------------------
1.5 *
1.6. OPERATIONAL EMPTY WEIGHT
The operational empty weight (OEW) for Customer configuration is
*.
--------------------------------------------------------------------------------
ITEMS Weight Weight
--------------------------------------------------------- (kg) (lb)
I) STANDARD AIRCRAFT CONFIGURATION * *
--------------------------------------------------------------------------------
II) CUSTOMER OPTIONS
--------------------------------------------------------------------------------
A) OPTIONS TO STD AVIONIC CONFIGURATION
*
-----------------------------------------------------------------------
B) OPTIONAL SYSTEM / OTHER EQUIPMENT
*
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 2 of 7
--------------------------------------------------------------------------------
ATTACHMENT "G"
PERFORMANCE * GUARANTEE
--------------------------------------------------------------------------------
C) INTERIOR OPTIONAL ITEMS
*
-----------------------------------------------------------------------
SUB-TOTAL (Options ) * *
--------------------------------------------------------------------------------
SUB-TOTAL (M.E.W) (*) * *
--------------------------------------------------------------------------------
D) OPERATING ITEMS - *
*
-----------------------------------------------------------------------
SUB-TOTAL (Fixed Allowance) * *
--------------------------------------------------------------------------------
TOTAL (O.E.W) * *
--------------------------------------------------------------------------------
*
1.7 *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 3 of 7
--------------------------------------------------------------------------------
ATTACHMENT "G"
PERFORMANCE * GUARANTEE
--------------------------------------------------------------------------------
2. EMB-140 LR AIRCRAFT CONFIGURATION
2.1 The guarantees stated above are based on the Aircraft
configuration as defined in the Technical Description TD-140/003
dated June 2001, plus specific Buyer configuration options as
defined at Attachment "A" to the Purchase Agreement, (hereinafter
adjustment to this Aircraft Performance Guarantees shall be made
for changes in such Detail Specification (including but not
limited to Buyer requests for changes, Proposal of Major Changes
or any other changes mutually agreed upon between the Buyer and
Embraer) approved in writing by the Buyer and Embraer. Such
adjustments shall be accounted for by Embraer in its evidence of
compliance with the guarantees. In the event a change is made to
any law, governmental regulation or requirement, or in the
interpretation of any such law, governmental regulation or
requirement that affects the certification basis for the Aircraft,
and as a result thereof, a change is made to the configuration
and/or the performance of the Aircraft in order to obtain
certification, the guarantees set forth in this Aircraft
Performance Guarantee shall be appropriately modified to reflect
any such change.
2.2 The performance guarantees of * shall be adjusted by Embraer for
the following in its evidence of compliance with such guarantees:
a. Changes to the Detail Specification including Change
Requests, Master Changes, Change Orders or any other
changes mutually agreed upon between the Buyer and Embraer.
b. The difference between the component weight allowances
given in the appropriate section of the Detail
Specification and the actual weights.
3. GUARANTEE CONDITIONS
3.1 All guaranteed performance data are based on the ICAO
International Standard Atmosphere (ISA) unless otherwise
specified. Altitudes are pressure altitudes.
3.2 The FAA Regulations referred to in this Attachment are, unless
otherwise specified, the Certification Basis regulations specified
in the Aircraft Type Certificate Data Sheet.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 4 of 7
--------------------------------------------------------------------------------
ATTACHMENT "G"
PERFORMANCE * GUARANTEE
--------------------------------------------------------------------------------
3.3 The takeoff and landing guarantees are based on hard surface,
level and dry runways with no wind or obstacles, no clearway or
stopway, and with automatic anti-skid operative unless otherwise
specified. The takeoff performance is based on no engine bleed for
air conditioning or thermal anti-icing and the Auxiliary Power
Unit (APU) turned off unless otherwise specified. The improved
climb performance procedure will be used for takeoff as required.
The landing data is based on the use of automatic spoilers.
3.4 The cruise specific air range, speed and the climb, cruise and
descent portions of the mission guarantees include allowances for
normal electrical power extraction and normal operation of the air
conditioning system. Normal power extraction shall be defined as
not less than a 37 kW total electrical and hydraulic loads. Normal
operation of the air conditioning system shall be defined as
operation in the automatic mode, with the temperature control set
to maintain a nominal cabin temperature of 75 (Degree)F, and all
air conditioning systems operating normally. This operation
nominally allows a sea level cabin altitude to be maintained up to
19,500ft and a maximum cabin pressure differential of 7.8 pounds
per square inch at higher altitudes, with a nominal Aircraft cabin
ventilation rate of 1,100 cu.ft per min at 35,000 ft including
passenger cabin recirculation (nominal recirculation is 42 % not
considering ▇▇▇▇▇▇ flow). The APU is turned off unless otherwise
specified.
3.5 The cruise specific air range, speed and the climb, cruise, and
descent portions of the mission guarantees are based on an
Aircraft center of gravity location of 15% of the mean aerodynamic
chord.
3.6 Performance, where applicable, is based on a fuel Lower Heating
Value (LHV) of 18,580 BTU per pound and a fuel density of 6.70
pounds per U.S. gallon.
4. PARTIES' OBLIGATIONS ACCORDING TO THIS GUARANTEE
4.1 During the Aircraft acceptance to be performed by Buyer in
accordance with Article 7 of the Purchase Agreement, Buyer shall
check the Aircraft performance specified in Article 1 of this
Attachment, by using the Aircraft Flight Manual (AFM) and by
comparing the flight test data, at the atmospheric conditions
prevailing during the flight, with the information presented in
the Supplementary Performance Manual (SPM). All the performance
guarantee under this Attachment are in accordance with both
manuals above mentioned, taking into consideration the established
tolerances.
4.2 Embraer's obligations in respect to the guarantees stated in
Article 1 of this Attachment, are limited to Buyer's right to
*.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 5 of 7
--------------------------------------------------------------------------------
ATTACHMENT "G"
PERFORMANCE * GUARANTEE
--------------------------------------------------------------------------------
4.3 In case during the above mentioned acceptance procedure, it is
proven that the Aircraft performance does not comply with the
performances specified in Article 1 of this Attachment, *.
4.4 Upon acceptance of the Aircraft by Buyer, *.
5. GUARANTEE COMPLIANCE
5.1 Compliance with the guarantees * shall be based on the conditions
specified in that sections, the Aircraft configuration contained
in Attachment "A" to the Purchase Agreement and the guarantee
conditions of Section 3 above.
5.2 Compliance with the takeoff and landing performance guarantees
shall be based on the FAA approved Airplane Flight Manual for the
Aircraft.
5.3 Compliance with the cruise specific air range, speed, and the
climb, cruise and descent portions of the mission guarantees shall
be established by calculations based on the comparison mentioned
in Section 4.1 above.
5.4 The data derived from tests shall be adjusted as required by
conventional methods of correction, interpolation or extrapolation
in accordance with established engineering practices to show
compliance with the performance guarantee.
5.5 *.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 6 of 7
--------------------------------------------------------------------------------
ATTACHMENT "G"
PERFORMANCE * GUARANTEE
--------------------------------------------------------------------------------
6. EXCLUSIVE GUARANTEES
6.1 The only performance guarantees applicable to the Aircraft are
those set forth in this document. The performance guarantees set
forth herein are established between Buyer and Embraer and may not
be transferred or assigned to others, unless by previous written
consent of Embraer.
6.2 THE GUARANTEES, OBLIGATIONS AND LIABILITIES OF Embraer, AND
REMEDIES OF Buyer SET FORTH IN THIS PERFORMANCE 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 ASSIGNED OF Embraer,
EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO
ANY ACHIEVED PERFORMANCE.
6.3 The terms and conditions of this performance guarantee do not
alter, modify or impair, in any way, the terms and conditions of
Attachment "C" (Aircraft Warranty Certificate) to the Purchase
Agreement.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 7 of 7
Letter Agreement DCT-044/01
This Letter Agreement DCT-044/01 (the "Letter Agreement") is entered into this
13th day of August, 2001, by and between Embraer - Empresa Brasileira de
Aeronautica S.A. ("Seller"), and Astral Aviation, Inc. ("Buyer"), collectively
known as the "Parties", and relates to Purchase Agreement DCT-043/01 dated as of
the13th of August, 2001 (the "Agreement").
This Letter Agreement constitutes an amendment, supplement and modification to
the Agreement as it sets forth additional agreements of the Parties with respect
to the matters set forth therein. All terms defined in the Agreement, except as
otherwise required or expressly determined hereunder, shall have the same
meaning when used herein and in case of any conflict between this Letter
Agreement and the Agreement, this Letter Agreement shall prevail.
WHEREAS:
a. The Parties have entered into the Agreement, pursuant to, and subject to
the terms and conditions of, which Buyer shall buy and Seller shall sell
twenty (20) firm EMB140 LR Aircraft (the "Aircraft") and Buyer shall have
the option to purchase up to twenty (20) additional Aircraft.
b. The Parties wish to set forth the additional agreements of the Parties
with respect to certain matters related to the purchase of the above
referenced Aircraft.
NOW, THEREFORE, for and in consideration of the foregoing and other good and
valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. Simulator Data Package
In the event Buyer elects to acquire its own flight simulator or flight
training device, then Embraer will provide its proprietary ERJ140
simulator data package (the "Sim Data Package") for one Buyer simulator
or flight training device. The data package shall be available *. In
the event Buyer exercises its rights to convert the ERJ 140 to ERJ 135 or
▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ shall provide the complementary simulator data package
for the ERJ 135 or the ▇▇▇ ▇▇▇, as may be elected by Buyer. All simulator
data packages shall be provided *.
It is understood that the Sim Data Package shall be used exclusively *.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 1 of 10
The supply of the Sim Data Package is subject to the Parties entering
into a data license agreement that shall define all terms and conditions
for the utilization of the Sim Data Package, including without limitation
the *.
2. Spares Parts Credit
Embraer will provide Buyer a spare parts and ground support equipment
credit of * up to a maximum of *. This credit shall be available *.
This credit shall be used for the purchase of spare parts and ground
support equipment (except engines, engine related parts and APU) from the
Embraer-Brazil spare parts facility.
All spare part credits granted to Buyer in connection with the Purchase
Agreement shall only be applied against Buyer's purchase from
Embraer-Brazil of spare parts (except engines, engine related parts and
APU) and ground support equipment (GSE). Spare parts credits made
available to Buyer will expire, *. Buyer shall not be entitled to apply
spare parts credits *. When using credits for the purchase of the items
listed above, Buyer shall clearly indicate such condition in the relevant
purchase order or request for quotation.
3. Spare Parts Consignment
A consignment of spare parts, up to a maximum value of * will be provided
*. This total amount of * shall be accomplished during *. The consignment
stock shall be placed at a single location chosen *.
The consignment period shall begin at the time of delivery of the first
Firm Aircraft and end *. Upon expiration, Buyer shall either return
unused parts or purchase the remaining stock. * carrying charge on the
value of the spare parts on consignment will apply.
Details as to the execution of this consignment and the final consignment
parts
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 2 of 10
list are to be * and shall be documented in a Consignment Agreement to be
executed by Buyer and Embraer.
4. *
5. *
6. Ground Support Equipment *
Embraer shall provide to Buyer the then existing * of ground support
equipment related to the operation of the Aircraft. Such * shall be used
*.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 3 of 10
7. *
8. *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 4 of 10
9. Financing
The terms and conditions pursuant to which Embraer shall * to * financing
support for * Firm Aircraft to be acquired by Buyer in accordance the
Purchase Agreement are outlined in Attachment 2 hereto, and are subject
to *.
10. Aircraft Conversion
Conversion Allowance: Buyer shall be allowed to convert one or more of
the Firm Aircraft, starting *, and any one or more of the Option Aircraft
to an ERJ 135 LR or ERJ 145 LR aircraft (the "Conversion Aircraft"), as
the case may be, provided that Buyer *.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 5 of 10
Whenever Buyer converts an Aircraft to an ▇▇▇ ▇▇▇ ▇▇ aircraft, the ERJ
135 LR Conversion Aircraft shall thereafter be an "Aircraft" for all
purposes of the Agreement, except that in this case the definition of the
term "Aircraft" shall mean the ERJ-135 LR aircraft manufactured by
Embraer according to Technical Description TD-135/005, dated June 2001
(the "135 Technical Description", which, although not attached to the
Agreement, will be incorporated therein by reference) and the Aircraft
Specific Configuration, Finishing and Registration Marks as described in
Attachment 1 to this Letter Agreement, for sale to Buyer pursuant to the
Agreement, equipped with two (02), AE3007A1/3 engines manufactured by
Rolls Royce Corporation (or, where there is more than one of such
aircraft, each of such Aircraft), and that all references in the
Agreement to the "Technical Description" shall, with respect to said ERJ
135 LR Conversion Aircraft, be deemed to refer to the 135 Technical
Description. Whenever Buyer converts an Aircraft to an ▇▇▇ ▇▇▇ ▇▇
aircraft, the ERJ 145 LR Conversion Aircraft shall thereafter be an
"Aircraft" for all purposes of the Agreement, except that in this case
the definition of the term "Aircraft" shall mean the ERJ-145 LR aircraft
manufactured by Embraer according to Technical Description TD-145/017,
dated December 2000 (the "145 Technical Description", which, although not
attached to the Agreement, will be incorporated therein by reference) and
the Aircraft Specific Configuration, Finishing and Registration Marks as
described in Attachment 1 to this Letter Agreement, for sale to Buyer
pursuant to the Agreement, equipped with two (02), AE3007A1 engines
manufactured by Rolls Royce Corporation (or, where there is more than one
of such aircraft, each of such Aircraft), and that all references in the
Agreement to the "Technical Description" shall, with respect to said ERJ
145 LR Conversion Aircraft, be deemed to refer to the 145 Technical
Description.
Conversion ERJ 135 LR Aircraft Pricing: The ERJ 135 LR Conversion
Aircraft basic price (the "ERJ 135 LR Basic Price") in * economic
conditions, as specified in Attachment "1" for each ▇▇▇ ▇▇▇ ▇▇ aircraft
as specified in Attachment "1" is *.
Conversion ERJ 145 LR Aircraft Pricing: The ERJ 145 LR Conversion
Aircraft basic price (the "ERJ 145 LR Basic Price") in * economic
conditions, as specified in Attachment "1" for each ▇▇▇ ▇▇▇ ▇▇ aircraft
as specified in Attachment."1" is *.
For any Conversion Aircraft, any additional Buyer selected optional
equipment and/or specific interior configuration changes will affect the
ERJ 145 LR Basic Price, which will be adjusted accordingly upon agreement
of the Parties.
Basic Price Escalation: With respect to each ERJ 135 LR Conversion
Aircraft, the ERJ 135 LR Basic Price shall be the "Aircraft Basic Price"
for such Conversion Aircraft for purposes of the Agreement, and it shall
be subject to escalation by application of the Escalation Formula as set
forth in Article 3.3 of the Agreement. With respect to each ERJ 145 LR
Conversion Aircraft, the ERJ 145 LR Basic Price shall be the "Aircraft
Basic Price" for such Conversion
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 6 of 10
Aircraft for purposes of the Agreement, and it shall be subject to
escalation by application of the Escalation Formula as set forth in
Article 3.3 of the Agreement.
Conversion Aircraft Progress Payments: *.
11. ER Version and Decrease of MTOW/MLW/ZFW
Buyer shall be entitled to convert any or all the ▇▇▇ ▇▇▇ ▇▇, ▇▇▇ 135 LR
or ERJ 145 LR Aircraft into the corresponding ER models, including the
decrease of MTOW/MLW/ZFW subject, however, to *. Buyer's execise of the
conversion allowance shall not affect *.
12. * Parts
Embraer, subject to the conditions and limitations expressed in the
Warranty Certificate subject of Attachment C to the Purchase Agreement,
represents to the benefit of Buyer that all parts installed in or on the
Aircraft at the time of delivery thereof to Buyer will *. For the
purpose hereof, * shall mean *.
13. Representations And Warranties
Embraer and Buyer, respectively, represent and warrant the following to
each other:
a. Effective as of the date of this Agreement and as of the Actual
Delivery of each Aircraft, Embraer represents and warrants that:
1. Embraer is a corporation duly organized, validly existing
and in good standing under the laws of Brazil 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.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 7 of 10
2. Embraer has taken, or caused to be taken, all necessary
corporate action to authorize the execution and delivery of
this Agreement and the performance of its obligations
hereunder.
3. The execution and delivery by Embraer of this Agreement,
the performance by Embraer of its obligations hereunder and
the consummation by Embraer of the transactions
contemplated hereby, do not and will not (A) violate or
conflict with any provision of the constitutional documents
of Embraer, (B) violate or conflict with any law, rule, or
regulation applicable to or binding on Embraer or (C)
violate or constitute any breach or default (other than a
breach or default that would not (x) result in a material
adverse change to Embraer or (y) adversely affect Embraer's
ability to perform any of its obligations hereunder) under
any agreement, instrument or document to which Embraer is a
party or by which Embraer or any of its properties is or
may be bound or affected.
4. The execution and delivery by Embraer of this Agreement,
the performance by Embraer of its obligations hereunder and
the consummation by Embraer of the transactions
contemplated hereby do not and will not require the
consent, approval or authorization of, or the giving of
notice to, or the registration with, or the recording or
filing of any documents with, or the taking of any other
action in respect of, (A) any trustee or other holder of
any indebtedness or obligation of Embraer, (B) any
national, state or municipal government regulatory,
judicial, or administrative entity of competent
jurisdiction, or (C) any other party.
5. This Agreement has been duly authorized, executed and
delivered by Embraer and, assuming the due authorization,
execution and delivery hereof by the other Party
constitutes the legal, valid and binding obligation of
Embraer enforceable against Embraer in accordance with the
terms hereof, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting the rights of
creditors generally and general principles of equity,
whether considered in a proceeding at law or in equity.
6. Each of the foregoing representations and warranties shall
survive the execution and delivery of this Agreement and
any termination hereof.
b. Effective as of the date of this Agreement and as of the Actual
Delivery 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.
Page 8 of 10
2. Buyer has taken, or caused to be taken, all necessary
corporate action to authorize the execution and delivery of
this Agreement and the performance of its obligations
hereunder.
3. The execution and delivery by Buyer of this Agreement, the
performance by Buyer of its obligations hereunder and the
consummation by Buyer of the transactions contemplated
hereby, do not and will not (A) violate or conflict with
any provision of the constitutional documents of Buyer, (B)
violate or conflict with any law, rule, or regulation
applicable to or binding on Buyer or (C) violate or
constitute any breach or default (other than a breach or
default that would not (x) result in a material adverse
change to Buyer or (y) adversely affect Buyer's ability to
perform any of its obligations hereunder) under any
agreement, instrument or document to which Buyer is a party
or by which Buyer or any of its properties is or may be
bound or affected.
4. The execution and delivery by Buyer of this Agreement, the
performance by Buyer of its obligations hereunder and the
consummation by Buyer of the transactions contemplated
hereby do not and will not require the consent, approval or
authorization of, or the giving of notice to, or the
registration with, or the recording or filing of any
documents with, or the taking of any other action in
respect of, (A) any trustee or other holder of any
indebtedness or obligation of Buyer, (B) any national,
federal, state or local government regulatory, judicial, or
administrative entity of competent jurisdiction, or (C) any
other party.
5. This Agreement has been duly authorized, executed and
delivered by Buyer and, assuming the due authorization,
execution and delivery hereof by the other Party
constitutes the legal, valid and binding obligation of
Buyer enforceable against Buyer in accordance with the
terms hereof, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization, receivership,
moratorium and other similar laws affecting the rights of
creditors generally and general principles of equity,
whether considered in a proceeding at law or in equity.
6. Each of the foregoing representations and warranties shall
survive the execution and delivery of this Agreement and
any termination hereof.
IN WITNESS WHEREOF, the Parties have caused this Letter Agreement to be
duly executed and delivered by their proper and duly authorized officers
on the day and year first above written.
Page 9 of 10
Astral Aviation, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President and CEO
Date and place: ▇-▇▇-▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇.▇.▇.
EMBRAER - Empresa Brasileira de Aeronautica S.A.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- --------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President Title: Director of Contracts
Date and place: August 13, 2001
Sao ▇▇▇▇ dos ▇▇▇▇▇▇, ▇▇
Brazil
Page 10 of 10
--------------------------------------------------------------------------------
ATTACHMENT 1
CONVERSION AIRCRAFT SPECIFIC CONFIGURATION,
FINISHING AND REGISTRATION MARKS
--------------------------------------------------------------------------------
1. STANDARD AIRCRAFT
The Aircraft shall be manufactured according to the standard
configuration specified in Embraer's Technical Description as follows:
a) ▇▇▇ ▇▇▇ ▇▇ - ▇▇-▇▇▇/▇▇▇ dated June 2001
b) ERJ 145 LR - TD 145/017 dated December 2000
2. OPTIONAL EQUIPMENT
The following optional equipment is included in Buyer's Aircraft
specification:
2.1 OPTIONS TO STANDARD AVIONICS CONFIGURATION
*
2.2 OPTIONAL SYSTEM/OTHER EQUIPMENT
*
2.3 ENGINES
*
2.4 INTERIOR OPTION - INCLUDING 3 OVENS
*
2.5 ADDITIONAL INTERIOR OPTIONAL ITEMS
*
2.6 *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 1 of 2
--------------------------------------------------------------------------------
ATTACHMENT 1
CONVERSION AIRCRAFT SPECIFIC CONFIGURATION,
FINISHING AND REGISTRATION MARKS
--------------------------------------------------------------------------------
3. FINISHING
3.1 EXTERIOR FINISHING:
The fuselage of the Conversion Aircraft shall be painted according
to Buyer's color and paint scheme that shall be supplied to
Embraer by Buyer on or before * prior to the relevant Conversion
Aircraft Contractual Delivery Date. The wings and the horizontal
stabilizer shall be supplied in the standard colors, i.e., ▇▇▇▇
BAC707.
3.2 INTERIOR FINISHING:
Buyer shall inform Embraer on or before * prior to the relevant
Conversion Aircraft Contractual Delivery Date of its choice of
materials and colors of all and any item of interior finishing
such as seat covers, carpet, floor lining on galley areas, side
walls and overhead lining, galley lining and curtain. 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, Buyer shall provide
Embraer at least 6 (six) months prior written notice.
4. REGISTRATION MARKS AND TRANSPONDER CODE
The Conversion Aircraft shall be delivered to Buyer with the
registration marks painted on them. Buyer shall supply the
registration marks and the transponder code to Embraer no later
than * before each relevant Conversion Aircraft Contractual
Delivery Date.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT
BETWEEN THE TERMS OF THIS "ATTACHMENT 1" AND THE TERMS OF THE TECHNICAL
DESCRIPTIONS TD135/005 DATED JUNE 2001 AND TD-145/017 DATED DECEMBER 2000, THE
TERMS OF THIS "ATTACHMENT 1" SHALL PREVAIL.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 2 of 2
--------------------------------------------------------------------------------
ATTACHMENT "D"
FINANCING TERM SHEET
--------------------------------------------------------------------------------
Aircraft: Twenty (20) firm ERJ-140ER Jet Aircraft (the "Firm Aircraft") as
defined in Article 2 of the proposal between Embraer and Midwest
Express Holdings, Inc. (the "Guarantor") dated as of April 4, 2001
(the "Proposal"). Astral Aviation, Inc. (the "Purchaser") is a
wholly-owned subsidiary of Midwest Express Airlines, Inc. (the
"Parent"), which is wholly-owned by the Guarantor. The Purchaser,
the Parent and the Guarantor shall be referred to collectively as
the "Purchaser Parties".
Aircraft Offer Price: The Aircraft Offer Price is defined in Article 3 of
the Proposal and is subject to Embraer's standard escalation
formula based on * economic conditions until delivery,
as provided in the purchase agreement to be executed between
Embraer and the Purchaser. The escalated Aircraft Offer Price is
the "Net Aircraft Purchase Price".
Financing Transaction: Financing of the * Firm Aircraft will be
arranged by Purchaser working in close coordination with and
supported by Embraer to best optimize the Embraer Support
Commitment (as defined below).
Financing of these Aircraft is anticipated to be achieved by way
of *. In addition, Embraer will arrange for *, at the option of
the Purchaser, for up *. (If * agrees to provide * will provide *.
Embraer
Support
Commitment: (A) * For the Firm Aircraft
Embraer shall provide or shall cause to be provided:
(1) *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 1 of 8
(2) *. Embraer and Purchaser shall agree upon *
following execution of this financing term sheet.
There will be *.
(3) *. The debt structure shall have no other
constraints on the amortization profile, which shall
be an optimized U.S. lease debt repayment profile.
The debt shall bear a fixed interest rate equal to
the *, on terms (or, to the extent not *, and as to
applicable matters not dealt with *, terms *.
Alternatively, * notice *, at Purchaser's option,
the * may be used in *, with the * (or, to the
extent herein provided, *) of Net Aircraft Purchase
Price and * funding the balance. Any such * shall be
* at * option, and may be converted *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 2 of 8
(in which case * shall, for the avoidance of doubt,
provide an * as provided herein, *).
(4) Embraer shall negotiate the terms of each * with *.
To the extent that * do not *, Embraer will *, and,
if there is *, then the *. Any such negotiations
shall be conducted *. To the extent that any *
provision affects * rights or obligations under *,
such * provisions shall *. Embraer shall negotiate
in good faith * as to other terms requested by *.
(B) * Financing Option For Up To * Firm Aircraft
(1) If Purchaser exercises the * Financing Option, *.
Payments by Purchaser will be *. The terms of any such *
financing shall be * (or, to the extent not more *, terms
*, and as to applicable matters not dealt with in *, terms
*.
(2) For informational purposes, based on *, the average *
would be *.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 3 of 8
For each of the * and the * Option, * may arrange to have *
provided by *, or through *, which may require the
utilization of special purpose corporation(s) and/or trust
arrangements, *. Under any * option other * will * and set
on a date * option not earlier * and * not later than *.
(C) * Financing
* financing for * aircraft with a * of Net Aircraft
Purchase Price, *, with * payments monthly in arrears, and
* upon at least * notice, on terms *; provided that if *
shall be provided for that term.
Conditions
Precedent: (1) Absence of any material adverse change in the
financial condition of Guarantor * (in this regard,
Guarantor commits to deliver to Embraer its latest
audited financial statements), including without
limitation: *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 4 of 8
(2) All * must be up to date at the time of financing.
Debt *: Any debt support to be funded by or arranged *
shall be *.
Additional
Agreements: (1) The Purchaser Parties shall * any financing party or
any other participant in the financing structure and
shall provide routine financial and other
information of the type customarily provided
aircraft financiers.
(2) All invoices and financial obligations relative to
pertinent lender and lessor must be up to date at
the time of financing.
(3) The Purchaser Parties and Embraer waive trial by
jury in respect of any claim based upon or arising
out of financings and resulting transactions.
(4) All payments to be made by the Purchaser Parties in
favor of the financing parties shall be *
(5) Each of Embraer and the Purchaser Parties shall be
responsible *
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 5 of 8
(6) All reasonable Iegal fees and disbursements, and
out-of-pocket expenses of Embraer (including, with
respect to Embraer travel to the extent approved or
requested by the Purchaser), any trustee, or any
financing party, in each case associated solely with
the financing documentation of any Aircraft
delivery, including but not limited to registration
fees/expenses that are customary in aircraft
transactions, shall be for the account of the
Purchaser and shall be paid or caused to be paid by
Purchaser on closing of such Aircraft financings.
(7) Embraer Board approval, which * April 16, 2001.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 6 of 8
(8) In the event of a material adverse change or
disruption in the financial/lease markets *.
Spares *: Embraer will issue for each Aircraft a spare parts * for
Embraer-supplied spare parts as follows:
*
This difference represents *.
*
Validity: The terms and conditions of this Financing Term Sheet
remain valid through the delivery of the * Aircraft.
Effect on Purchase
Agreement: As to any Aircraft, if * fails to arrange or provide
the financing support described under this Financing Term
Sheet, as a result of *.
* Agreement: If a Purchaser Party enters into an * and the Purchaser *,
shall have no *.
Guarantee: The Guarantor shall unconditionally guarantee the payment
and performance of all of the Purchaser's obligations *.
This Financing Term Sheet is *. The terms and conditions of this Financing Term
Sheet are subject to *.
It is the responsibility of Purchaser and Embraer to treat any and all
information related to the form and
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 7 of 8
amount of any support which may be provided by Embraer and the execution of this
Financing Term Sheet in a confidential manner and not to provide to any third
party such information without the express written consent of the other party
and then only subject to the third party agreeing to Embraer's or Purchaser's
confidentiality agreement. It is acknowledged that ▇▇▇▇▇▇▇ & ▇▇▇▇▇ is acting as
advisor to the Purchaser *. The above does not apply where Purchaser or the
applicable third party is required to disclose such information by law or
compelled by court order to do so.
If Purchaser and Embraer do not enter into a purchase agreement on or before May
30, 2001, or such other date as Embraer and the Purchaser may agree upon in
writing, all obligations under this Financing Term Sheet shall be deemed
terminated, and all obligations of Embraer and the Purchaser fulfilled.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 8 of 8
--------------------------------------------------------------------------------
AMENDMENT No. 01 TO LETTER AGREEMENT DCT-044/01
--------------------------------------------------------------------------------
This Amendment No. 01 ("Amendment 01") dated as of September __, 2001 by and
between Embraer - Empresa Brasileira de Aeronautica S.A. ("Embraer") and Astral
Aviation, Inc. ("Buyer"), and relates to Letter Agreement No. DCT-044/01 dated
August 13, 2001 (the "Letter Agreement").
All terms defined in the Letter Agreement shall have the same meaning when used
herein, and in case of any conflict between this Amendment 01 and the Letter
Agreement, this Amendment shall control.
This Amendment 01 sets forth the further agreement between Embraer and the
"Buyer" relative to certain changes requested by the "Buyer" in the Aircraft
configuration described in Attachment "1" to the Letter Agreement.
NOW, THEREFORE, in consideration of the foregoing, Embraer and the "Buyer" do
hereby agree as follows:
1. Each of the ERJ 135 LR Conversion Aircraft and ERJ 145 LR Conversion
Aircraft shall have the following modifications:
(a) * shall be excluded from the Aircraft configuration;
(b) * shall be included in the Aircraft configuration.
Due to such changes, the net weight of the ERJ 135 LR Conversion Aircraft
and ERJ 145 LR Conversion Aircraft shall be *, which shall be considered
in all performance guarantees *, and the Conversion Aircraft Basic Price
shall be *.
2. As a result of the ERJ 135 LR Conversion Aircraft and ERJ 145 LR
Conversion Aircraft configuration changes as specified above, the Parties
agree that notwithstanding the provisions of the Letter Agreement the
Conversion Aircraft Basic Price for each of the ERJ 135 LR Conversion
Aircraft and ERJ 145 LR Conversion Aircraft shall be *. Therefore, the
ERJ 135 LR Conversion Aircraft Basic Price shall be * and
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 1 of 2
the ERJ 145 LR Conversion Aircraft Basic Price shall be *.
3. All other provisions and conditions of the Letter Agreement, as well as
its Attachment, which are not specifically amended by this Amendment 01,
shall remain in full force and effect without any change.
IN WITNESS WHEREOF, Embraer and Buyer by their duly authorized officers, have
entered into and executed this Amendment No. 01 to the Letter Agreement to be
effective as of the date first written above.
EMBRAER - EMPRESA BRASILEIRA ASTRAL AVIATION, INC.
DE AERONAUTICA S.A
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President Title: President & CEO
Airline Market
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director of Contracts
Date: October 23, 2001 Date: 10-19-01
Place: Sao ▇▇▇▇ dos ▇▇▇▇▇▇, ▇▇ Place: Oak Creek, WI U.S.A.
Brazil
Witnesses:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------- -----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 2 of 2
--------------------------------------------------------------------------------
AMENDMENT No. 01 TO PURCHASE AGREEMENT DCT-043/01
--------------------------------------------------------------------------------
This Amendment No. 01 ("Amendment 01") dated as of September __, 2001 by and
between Embraer - Empresa Brasileira de Aeronautica S.A. ("Embraer") and Astral
Aviation, Inc. ("Buyer"), and relates to Purchase Agreement No. DCT-043/01 dated
August 13, 2001 (the "Purchase Agreement").
All terms defined in the Purchase Agreement shall have the same meaning when
used herein, and in case of any conflict between this Amendment 01 and the
Purchase Agreement, this Amendment shall control.
This Amendment 01 sets forth the further agreement between Embraer and the
"Buyer" relative to certain changes requested by Buyer in the Aircraft
configuration described in Attachment "A" to the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing, Embraer and Buyer do hereby
agree as follows:
1. Each of the Firm Aircraft and Option Aircraft shall have the following
modifications:
(a) * shall be excluded from the Aircraft configuration;
(b) * shall be included in the Aircraft configuration.
Due to such changes, the net weight of the Aircraft shall be *, which
shall be considered in all performance guarantees *, and the Aircraft
Basic Price shall be *.
2. As a result of the Firm Aircraft and Option Aircraft configuration
changes as specified above, the Parties agree that notwithstanding the
provisions of the Purchase Agreement the Aircraft Basic Price for each of
the Firm Aircraft and Option Aircraft shall be *. Therefore, the Aircraft
Basic Price shall *.
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 1 of 2
3. All other provisions and conditions of the Purchase Agreement, as well as
its Attachments and Letter Agreement, which are not specifically amended
by this Amendment 01, shall remain in full force and effect without any
change.
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have
entered into and executed this Amendment No. 01 to the Purchase Agreement to be
effective as of the date first written above.
EMBRAER - EMPRESA BRASILEIRA ASTRAL AVIATION, INC.
DE AERONAUTICA S.A
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President Title: President & CEO
Airline Market
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director of Contracts
Date: October 23, 2001 Date: October 19, 2001
Place: Sao ▇▇▇▇ dos ▇▇▇▇▇▇, ▇▇ Place: Oak Creek, WI U.S.A.
Brazil
Witnesses:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------- -----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Page 2 of 2
--------------------------------------------------------------------------------
AMENDMENT No. 02 TO PURCHASE AGREEMENT DCT-043/01
--------------------------------------------------------------------------------
This Amendment No. 02 ("Amendment 02") dated as of October __, 2001 by and
between Embraer - Empresa Brasileira de Aeronautica S.A. ("Embraer") and Astral
Aviation, Inc. ("Buyer"), and relates to Purchase Agreement No. DCT-043/01 dated
August 13, 2001 (the "Purchase Agreement").
All terms defined in the Purchase Agreement shall have the same meaning when
used herein, and in case of any conflict between this Amendment 02 and the
Purchase Agreement, this Amendment 02 shall control.
This Amendment 02 sets forth the further agreement between Embraer and the
"Buyer" relative to certain changes in the Firm Aircraft Contractual Delivery
Dates and in the period of time to exercise the Option for the Purchase of
Additional Aircraft.
NOW, THEREFORE, in consideration of the foregoing, Embraer and Buyer do hereby
agree as follows:
1. The delivery Schedule in Section 5 of the Purchase Agreement is hereby
deleted and replaced with the following schedule:
--------------------------------------------------------------------------------
AIRCRAFT CONTRACTUAL DELIVERY DATE AIRCRAFT CONTRACTUAL DELIVERY DATE
--------------------------------------------------------------------------------
01 * 2003 11 *
--------------------------------------------------------------------------------
02 * 12 *
--------------------------------------------------------------------------------
03 * 13 *
--------------------------------------------------------------------------------
04 * 14 *
--------------------------------------------------------------------------------
05 * 15 *
--------------------------------------------------------------------------------
06 * 16 *
--------------------------------------------------------------------------------
07 * 17 *
--------------------------------------------------------------------------------
08 * 18 *
--------------------------------------------------------------------------------
09 * 19 *
--------------------------------------------------------------------------------
10 * 20 * 2006
--------------------------------------------------------------------------------
2. The first sentence of Article 21 is hereby deleted and replaced with the
following text:
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 1 of 2
"Buyer shall have the option to purchase up to twenty (20) Option
Aircraft provided however that the Option Aircraft shall be exercised
*."
3. All other provisions and conditions of the Purchase Agreement, as well as
its Attachments, which are not specifically amended by this Amendment 02,
shall remain in full force and effect without any change.
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have
entered into and executed this Amendment No. 02 to the Purchase Agreement to be
effective as of the date first written above.
EMBRAER - EMPRESA BRASILEIRA ASTRAL AVIATION, INC.
DE AERONAUTICA S.A
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President Title: President & CEO
Airline Market
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ___________________________
--------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: _________________________
Title: Director of Contracts
Title: ________________________
Date: October 23, 2001
Place: Sao ▇▇▇▇ dos ▇▇▇▇▇▇, ▇▇
Brazil Date: __________________________
Witnesses: Place: _________________________
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------- By:_____________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: __________________________
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 2 of 2
--------------------------------------------------------------------------------
AMENDMENT No. 03 TO PURCHASE AGREEMENT DCT-043/01
--------------------------------------------------------------------------------
This Amendment No. 03 ("Amendment 03") dated as of March 6, 2002 by and between
Embraer - Empresa Brasileira de Aeronautica S.A. ("Embraer") and Astral
Aviation, Inc. ("Buyer"), and relates to Purchase Agreement No. DCT-043/01 dated
August 13, 2001, as amended from time to time (the "Purchase Agreement").
All terms defined in the Purchase Agreement shall have the same meaning when
used herein, and in case of any conflict between this Amendment 03 and the
Purchase Agreement, this Amendment 03 shall control.
This Amendment 03 sets forth the further agreement between Embraer and the
"Buyer" relative to certain changes in the Firm Aircraft Contractual Delivery
Dates.
NOW, THEREFORE, in consideration of the foregoing, Embraer and Buyer do hereby
agree as follows:
1. FIRM AIRCRAFT
Article 5 of the Purchase Agreement is hereby deleted and replaced by the
following:
"5. DELIVERY
5.1 Subject to payment in accordance with Article 4 hereof and the
provisions of Articles 7 and 9 hereof, the Aircraft shall be
offered by Embraer to Buyer, by means of a written notice, for
inspection, acceptance and subsequent delivery in F.A.F.
condition, at Sao ▇▇▇▇ dos ▇▇▇▇▇▇, State of Sao Paulo, Brazil,
according to the following schedule:
--------------------------------------------------------------------------------
AIRCRAFT CONTRACTUAL DELIVERY DATE AIRCRAFT CONTRACTUAL DELIVERY DATE
--------------------------------------------------------------------------------
01 * 2004 11 *
--------------------------------------------------------------------------------
02 * 12 *
--------------------------------------------------------------------------------
03 * 13 *
--------------------------------------------------------------------------------
04 * 14 *
--------------------------------------------------------------------------------
05 * 15 *
--------------------------------------------------------------------------------
06 * 16 *
--------------------------------------------------------------------------------
07 * 17 *
--------------------------------------------------------------------------------
08 * 18 *
--------------------------------------------------------------------------------
09 * 19 *
--------------------------------------------------------------------------------
10 * 20 * 2007
--------------------------------------------------------------------------------
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 1 of 3
5.2 *
2. MISCELLANEOUS
All other provisions and conditions of the Purchase Agreement, as well as its
Attachments, which are not specifically amended by this Amendment 03, shall
remain in full force and effect without any change.
[REMAINDER OF THIS HAS BEEN LEFT BLANK INTENTIONALLY]
* Indicates that material has been omitted and confidential treatment has been
requested therefor. All such omitted material has been filed separately with
the SEC pursuant to Rule 24b-2.
Page 2 of 3
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have
entered into and executed this Amendment No. 03 to the Purchase Agreement to be
effective as of the date first written above.
EMBRAER - EMPRESA BRASILEIRA ASTRAL AVIATION, INC.
DE AERONAUTICA S.A
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President Title: President & CEO
Airline Market
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: ___________________________
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: _________________________
Title: Executive Vice President Title: ________________________
Industrial
Date: March 7, 2002 Date: 3-6-02
Place: Sao ▇▇▇▇ Dos Compos, SP Place: Oak Creek, WI
Brazil
WITNESS:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ By: ___________________________
---------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Name:__________________________
Page 3 of 3