PURCHASE AGREEMENT No. 0604 BETWEEN BOMBARDIER INC. AND PINNACLE AIRLINES CORP. Relating to the Purchase of Twenty-Five (25) Bombardier Q400 Series Aircraft
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Exhibit
10.61
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CERTAIN
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE SYMBOL “[***]” HAS BEEN INSERTED IN PLACE OF THE PORTIONS SO
OMITTED.
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No.
0604
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BETWEEN
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BOMBARDIER
INC.
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AND
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Relating
to the Purchase of
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Twenty-Five
(25) Bombardier Q400 Series Aircraft
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This
Agreement is made on the 17th day of February 2007.
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BETWEEN:
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BOMBARDIER
INC., a Canadian corporation represented by Bombardier Aerospace,
Regional
Aircraft having an office located at 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxx,
Xxxxxxx, Xxxxxx X0X
0X0 (“Bombardier”).
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AND:
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PINNACLE
AIRLINES CORP., a Delaware corporation having an office located at
0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx, Xxxxxx Xxxxxx
00000 (“Buyer”).
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WHEREAS
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Buyer
desires to purchase and Bombardier desires to sell Twenty-Five (25)
Aircraft and related data, documents, and services on the terms and
conditions set out in this Agreement;
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NOW
THEREFORE, in consideration of the mutual covenants herein contained, Buyer
and
Bombardier agree as follows:
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ARTICLE
1 - INTERPRETATION
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1.1
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The
headings in this Agreement are included for convenience only and
shall not
be used in the construction or interpretation of this Agreement.
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1.2
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In
this Agreement, unless otherwise expressly provided, the singular
includes
the plural and vice-versa.
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1.3
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In
this Agreement the following expressions shall have the meaning ascribed
thereto below unless otherwise expressly provided:
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“Acceptance
Date” means the
date of execution of the Certificate of Acceptance by Buyer;
“Acceptance
Period” means a
period of up to three (3) consecutive U.S. and Canadian working days, subject
to
extension pursuant to Section 8.7, commencing on the later of the Readiness
Date
or the date the Aircraft is actually made available to Buyer for ground
inspection and acceptance flight, in which to complete the inspection and
acceptance flight;
“Agreement”
means this
Agreement, including its Schedules, Annexes and letter agreements, if any,
attached hereto and the Specification (each of which is incorporated in the
Agreement by this reference), as they may be amended or supplemented pursuant
to
the provisions of the Agreement;
“Aircraft”
means the aircraft
to be sold and purchased pursuant to this Agreement. For the
avoidance of doubt, in the event that this Agreement covers more than one
aircraft (including any aircraft the subject of an option purchase), the
expression “Aircraft” shall refer to any one or more of such aircraft as the
context requires;
“Aircraft
Purchase Price”
means, for each Aircraft, the Base Price adjusted for (a) Buyer Requested
Changes (b) any Regulatory Changes in respect of which Buyer shall pay
Bombardier’s reasonable charges pursuant to Article 10 and (c) the Economic
Adjustment Formula;
“Base
Price” means, for each
Aircraft the base price of the Aircraft (excluding the Buyer Selected Optional
Features) Ex Works (Incoterms 2000) Bombardier’s facilities in Downsview,
Ontario;
“Xxxx
of Sale” means a xxxx of
sale in the form set out in Schedule II;
“Buyer
Requested Changes”
means changes made pursuant to Section 10.1;
“Buyer
Selected Optional
Features” means the items set out in Appendix IV;
“Certificate
of Acceptance”
means a certificate of acceptance in the form set out in Schedule
I;
“Certificate
of Receipt of
Aircraft” means a certificate in the form set out in Schedule
III;
“Change
Order” means a request
for a change to the Specification in the form set out in Schedule
IV;
“Delivery
Date” means the date
on which Bombardier delivers the Xxxx of Sale to Buyer;
“Economic
Adjustment Formula”
means the economic adjustment formula attached as Appendix I to reflect economic
fluctuations during the period from January 1, 2007 to the Delivery Date
provided that no adjustment shall have the effect of reducing the Aircraft
Purchase Price below the Base Price. [***]
“Excusable
Delay” has the meaning set out in Section 12.1;
“FAA”
means the Federal
Aviation Administration of the United States of America;
“Intellectual
Property” means
a patent, trademark, industrial design or copyright registered with a Canadian
or United States office or agency having jurisdiction with respect thereto
or
similar office or agency of another country whose laws respect the rights of
patent, trademark, industrial design and copyright owners of other
countries;
“Non-Excusable
Delay” has the
meaning set out in Section 13.1;
“Notice”
means any notice,
request, approval, permission, consent or other communication to be given or
required under this Agreement;
“Permitted
Change” has the
meaning set out in Section 10.2;
“Readiness
Date” means the
date on which the Aircraft will be ready for Buyer’s inspection, acceptance
flight and acceptance (as notified by Bombardier to Buyer);
“Regulatory
Change” has the
meaning set out in Section 10.3;
“Scheduled
Delivery Month”
means for each Aircraft the month specified
in
Appendix II for the delivery of each of the Aircraft, as modified from time
to
time pursuant to this Agreement;
“Specification”
means type
specification no. DS8-400 Revision 2 Amendment 1 dated October 30, 2006, a
copy
of which Buyer acknowledges having received, as that specification may be
modified from time to time in accordance with this Agreement;
“Subsidiary”
of a corporation
means a corporation or other entity more than 50% of whose stock or other equity
interest of any class or classes having by the terms thereof ordinary voting
power to elect a majority of the directors (or equivalent officials) is at
the
time owned directly or indirectly by such first mentioned
corporation;
“Taxes”
has the meaning set
out in Section 4.3; and
“TC”
means Transport
Canada.
All
dollar amounts in this Agreement are in United States Dollars and all references
to $ and USD have a corresponding meaning.
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1.5
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In
this Agreement, reference to an Article, Section, Schedule, Annex
or
Appendix shall be construed as a reference to an article, section,
schedule, annex or appendix of and to this Agreement.
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1.6
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In
this Agreement, reference to “include” or “including” shall not mean
including without limitation.
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1.7
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For
the purposes of this Agreement, a corporation is an affiliate of
another
corporation if, but only if, one corporation is a Subsidiary of the
other
corporation or both corporations are Subsidiaries of the same corporation.
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ARTICLE
2 - SUBJECT MATTER OF SALE
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2.1
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Subject
to the terms and conditions of this Agreement, Bombardier will sell
and
Buyer will purchase Twenty-Five (25) Bombardier Q 400 Series aircraft
model 402 aircraft manufactured pursuant to the Specification as
supplemented to include the Buyer Selected Optional Features.
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ARTICLE
3 - CUSTOMER SUPPORT SERVICES AND WARRANTY
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3.1
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Bombardier
shall provide to Buyer the customer support services pursuant to
the
provisions of Annex A.
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3.2
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Bombardier
shall provide to Buyer the warranty and the service life policy described
in Annex B, which shall be the exclusive warranty applicable to the
Aircraft.
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Unless
expressly stated otherwise, the services referred to in Sections
3.1 and
3.2 above are included in the Aircraft Purchase Price.
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ARTICLE
4 - PRICE/TAXES
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4.1
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The
price of the aircraft shall be the relevant Aircraft Purchase Price.
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4.2
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(a)
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The
Base Price for the Aircraft is [***] expressed in January 1, 0000
Xxxxxx
Xxxxxx Dollars.
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(b)
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The
price for the Buyer Selected Optional Features is [***] expressed
in
January 1, 0000 Xxxxxx Xxxxxx Dollars.
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(c)
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The
Aircraft Base Price is [***] which is the sum of the Basic Aircraft
Price
and the Buyer Selected Optional Features, expressed in January 1,
0000
Xxxxxx Xxxxxx Dollars.
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4.3
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The
Aircraft Purchase Price does not include any taxes, fees or duties
including, but not limited to, sales, use, value added (including
the
Canadian Goods and Services Tax), personal property, gross receipts,
franchise, excise taxes, assessments or duties (“Taxes”) (other
than
Canadian income taxes charged on the income of Bombardier and its
affiliates) which are or may be imposed by law upon Bombardier, any
affiliate of Bombardier, Buyer or the Aircraft whether or not there
is an
obligation for Bombardier to collect same from Buyer, by any taxing
authority or jurisdiction occasioned by, relating to or as a result
of the
execution of this Agreement or the sale, lease, delivery, storage,
use or
other consumption of any Aircraft or any other matter, good or service
provided under or in connection with this Agreement. [***]
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4.4
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If
any Taxes (other than Canadian income taxes charged on the income
of
Bombardier) are imposed upon Bombardier or Buyer and become due or
are to
be collected from Bombardier by any taxing authority, Bombardier
shall
notify Buyer. If
the Buyer has not paid for the Aircraft in full, such Taxes shall
be added
to the Aircraft Purchase Price. If Buyer has paid for the
Aircraft, Buyer shall promptly, but no later than ten (10) working
days after receiving such notice, pay such Taxes directly to the
taxing
authority, or reimburse Bombardier for such Taxes, as the case may
be,
including interest and penalties. [***]4.5Upon
Bombardier’s
request, Buyer shall execute and deliver to Bombardier any documents
that
Bombardier deems necessary or desirable in connection with any exemption
from or reduction of or the contestation of or the defense against
any
imposition of Taxes.
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ARTICLE
5 - PAYMENT
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5.1
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Buyer
shall make payment or cause payment to be made for each Aircraft
calculated [***] as
follows:
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(a)
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[***]
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of
the [***] Aircraft
Purchase Price [***]
of the Agreement, less the deposit for such Aircraft received by
Bombardier from the executed proposal No. 1409R2 dated
February 1, 2007;
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(b)
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[***]
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of
the [***] Aircraft
Purchase Price [***]
months prior to its Scheduled Delivery Month;
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(c)
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[***]
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of
the [***] Aircraft
Purchase Price [***]
months prior to its Scheduled Delivery Month; and
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(d)
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the
balance of the net Aircraft Purchase Price on or before the Delivery
Date
of the relevant Aircraft, less the deposit for such Aircraft received
by
Bombardier.
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All
payments referred to in paragraphs (b) and (c) above are to be made on the
first
business day of the applicable month.
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5.2
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If
Buyer fails to pay any amount payable by it under this Agreement
when due,
Buyer shall pay Bombardier daily interest on late payments, from
the date
that any payment becomes due up to and including the day of payment,
at a
rate of [***] per annum over the prime rate announced by the Chase
Manhattan Bank, N.A., or its successor, from time to time, calculated
and
compounded monthly. Bombardier’s right to receive such interest is in
addition to any other right or remedy Bombardier has at law as a
result of
Buyer’s failure to make payments when due including the right to terminate
this Agreement in accordance with Section 14.2.
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5.3
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Buyer
shall make all payments due under this Agreement in immediately available
funds by deposit on or before the due date to Bombardier’s account in the
following manner or such other bank account as Bombardier may notify
to
Buyer from time to time:
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Transfer
to:
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Bank
of America
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0000,
Xxx Xxxxxx
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Xxxxxx,
Xxxxx, X.X.X.
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00000
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Account
Name:
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[***]
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[***]
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Account
#:
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[***]
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Bank
Name:
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[***]
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ABA#:
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[***]
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SWIFT
number:
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[***]
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PLEASE
REFERENCE: INVOICE # AND/OR AIRCRAFT SERIAL #
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5.4
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All
other amounts due, including any taxes, with respect to each Aircraft
shall be paid on or prior to the Delivery Date of the respective
Aircraft.
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5.5
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Bombardier
shall remain the exclusive owner of the Aircraft, free and clear
of all
rights, liens, charges, encumbrances or special property interests
of or
created by or through Buyer, until such time as all payments referred
to
in this Article 5 have been made.
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5.6
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Buyer
shall make all payments hereunder without set-off, deduction or counter
claim of any kind.
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ARTICLE
6 - BUYER INFORMATION
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6.1
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During
the manufacture of the Aircraft, Buyer shall provide to Bombardier
all
information as Bombardier may reasonably request to manufacture the
Aircraft. Bombardier shall advise Buyer of the specific information
required and the latest date by which such information is required,
and
Buyer shall provide such information by the date(s) so advised. The
requested information and its applicable due date(s) shall be
substantially in the form of Appendix V.
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Failure,
refusal or delay of Buyer to comply with the requirements of this
Article
may result in an increase in the Aircraft Purchase Price, a delay
in the
delivery of the Aircraft, or both. Further, any revisions to the
Appendix
V information that Bombardier receives after the respective due date
may
result in an increase in the Aircraft Purchase Price, a delay in
delivery
of the Aircraft, or both.
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6.2
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Buyer
acknowledges that there will be no Buyer furnished equipment installed
or
incorporated on the Aircraft.
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ARTICLE
7 - CERTIFICATION
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7.1
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Bombardier
has obtained or will obtain (a) TC, a TC Type Certificate (Transport
Category), and (b) from the FAA an FAA Type Certificate for the type
of
aircraft purchased under this Agreement.
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7.2
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Bombardier
shall provide to Buyer a TC Certificate of Airworthiness (Transport
Category) for export to the United States for each Aircraft on or
before
the relevant Delivery Date. The Aircraft shall be in a condition
enabling
Buyer (or a person eligible to obtain such certificate under then
applicable law) to obtain at the time of delivery a Standard Airworthiness
Certificate issued pursuant to Part 25 of the U.S. Federal Aviation
Regulations.
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7.3
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Bombardier
shall not be obligated to obtain and/or provide any other certificates
(or
similar documents) or approvals as part of this Agreement.
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7.4
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Buyer
is responsible for obtaining all import licenses and/or authorizations
required to import or operate the Aircraft into any country outside
of
Canada.
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7.5
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Bombardier
shall, to the extent permitted by law and at Buyer’s expense, provide
Buyer with such assistance as it may reasonably request to obtain
a
Canadian export license to enable Buyer to export the Aircraft from
Canada
subject to prevailing export control regulations (including those
of the
United States) in effect on the Delivery Date.
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7.6
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If
the use of any of the certificates identified in this Article 7 are
discontinued during the performance of this Agreement, reference
to such
discontinued certificate shall be deemed a reference to any other
certificate or instrument which corresponds to such certificate or,
if
there should not be any such other certificate or instrument, then
Bombardier shall be deemed to have obtained such discontinued
certificate(s) upon demonstrating that the Aircraft complies substantially
with the Specification as supplemented to include the Buyer Selected
Optional Features. References to a regulatory authority shall include
any
succeeding department or agency then responsible for the duties of
said
regulatory authority.
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ARTICLE
8 - DELIVERY AND ACCEPTANCE PROCEDURE
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8.1
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The
Aircraft shall be offered to Buyer for inspection and acceptance
at
Bombardier’s facility in Downsview, Ontario during the Scheduled Delivery
Month.
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8.2
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Bombardier
shall give Buyer at least [***] days advance
Notice,
of the projected Readiness Date of each Aircraft for inspection and
delivery. In addition, Bombardier shall give Buyer at least ten
(10) working days advance Notice of the Readiness Date.
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8.3
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Within
two (2) business days following receipt by Buyer of the notice of
the
Readiness Date, Buyer shall:
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(a)
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provide
Notice to Bombardier as to the source and method of payment of the
balance
of the Aircraft Purchase Price;
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(b)
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identify
to Bombardier the names of Buyer’s representatives who will participate in
the inspection, acceptance flight and acceptance; and
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(c)
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provide
evidence of the authority of the designated persons to execute the
Certificate of Acceptance and other delivery documents on behalf
of Buyer.
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8.4
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Buyer
shall complete the inspection and flight test of the Aircraft during
the
Acceptance Period.
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8.5
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Up
to four (4) representatives of Buyer may participate in Buyer’s ground
inspection of the Aircraft and two (2) representatives of Buyer may
participate in the acceptance flight. Bombardier shall, if
requested by Buyer, perform an acceptance flight of not less than
one (1)
and not more than [***] hours duration
[***]. Ground
inspection and any acceptance flights shall be conducted in accordance
with Bombardier’s acceptance procedures (a copy of which shall be provided
to Buyer at least thirty (30) days prior to the Scheduled Delivery
Month
of the first Aircraft). At all times during ground inspection
and acceptance flights, Bombardier shall retain control over the
Aircraft.
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8.6
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Unless
a material discrepancy from the Specification (as supplemented to
include
the Buyer Selected Optional Features) is revealed during the ground
inspection or acceptance flight, Buyer shall accept the Aircraft
on or
before the last day of the Acceptance Period in accordance with the
provisions of Section 8.8.
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8.7
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If
any material discrepancy from the Specification is revealed during
the
ground inspection or acceptance flight, the discrepancy will promptly
be
corrected by Bombardier, at no cost to Buyer as soon as reasonably
possible, depending on the nature of the discrepancy and of the time
required for correction, and the Acceptance Period shall be extended
as
necessary. To the extent necessary to verify such correction, Bombardier
shall perform a further acceptance flight.
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8.8
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Upon
completion of the ground inspection and acceptance flight of the
Aircraft
and correction of any material discrepancy from the Specification
(as
supplemented to include the Buyer Selected Optional Features), if
any, the
following shall be promptly accomplished sequentially on the same
day :
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(a)
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Buyer
will sign and deliver to Bombardier a Certificate of Acceptance for
the
Aircraft. Execution of the Certificate of Acceptance by or on behalf
of
Buyer shall be conclusive evidence of Buyer having examined the Aircraft
and found it in accordance with the Specification as supplemented
to
include the Buyer Selected Optional Features as of the Delivery Date;
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(b)
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Bombardier
will deliver to Buyer a TC Certificate of Airworthiness for Export
to the
United States;
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(c)
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Buyer
shall pay Bombardier the balance of the Aircraft Purchase Price and
any
other amounts due;
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(d)
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Upon
receipt by Bombardier of the balance of the Aircraft Purchase Price,
Bombardier shall deliver to Buyer a Xxxx of Sale and shall relinquish
control of the Aircraft to Buyer;
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(e)
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Buyer
shall execute and deliver to Bombardier a Certificate of Receipt
of
Aircraft.
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Each
of
Buyer and Bombardier agree that the Notice of Readiness Date shall be equivalent
to an offer to tender to Buyer of the Aircraft for delivery, and failure,
refusal or delay by Buyer to act on such Notice in accordance with this
Agreement shall constitute a default under this Agreement entitling Bombardier
to pursue its remedies hereunder.
In
addition to any other rights available to Bombardier Buyer shall promptly,
upon
demand, reimburse Bombardier for all costs and expenses incurred by Bombardier
as a result of a failure, refusal or delay by Buyer to accept, take delivery
of
and/or remove the Aircraft from Bombardier’s premises, including but not limited
to amounts for storage, insurance, Taxes and the preservation and protection
of
the Aircraft. In addition, Bombardier may in its reasonable
discretion, without releasing Buyer from any of its liabilities to Bombardier
and without any liability whatsoever of Bombardier to Buyer, deliver the
Aircraft affected by such failure, refusal or delay to another customer to
minimize the impact upon Bombardier of such failure, refusal or delay by Buyer
hereunder, whether or not Bombardier elects to terminate this Agreement with
respect to that Aircraft pursuant to Section 14.2 hereunder.
ARTICLE
9 - TITLE AND RISK
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9.1
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Title
to the Aircraft and risk of loss of or damage to the Aircraft passes
to
Buyer when Bombardier delivers the Xxxx of Sale to Buyer on the Delivery
Date.
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9.2
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If,
after transfer of title on the Delivery Date, the Aircraft remains
in or
is returned to the care, custody or control of Bombardier, Buyer
shall
retain risk of loss of, or damage to the Aircraft and for itself
and on
behalf of its insurer(s) hereby waives, renounces and releases Bombardier
and any of Bombardier’s affiliates from any claim, whether direct,
indirect or by way of subrogation, for damages to or loss of the
Aircraft
arising out of, or related to, or by reason of such care, custody
or
control, [***].
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ARTICLE
10 - CHANGES
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10.1
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Buyer
Requested Changes
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Buyer
shall request changes to the Specification or any Buyer Selected
Optional
Features by way of a Change Order. Should Buyer request a change,
Bombardier shall advise Buyer whether Bombardier is prepared to agree
to
make such change and, if so, of the price and availability of the
change
and, to the extent reasonably practical, of the expected effect,
if any,
of such change request on:
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(a)
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the
Scheduled Delivery Month;
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(b)
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the
price and payment terms applicable to the Change Order; and
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(c)
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the
performance characteristics of the Aircraft.
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Such
Change Order shall become effective and binding on the parties hereto
when
signed by a duly authorized representative of each party. Any changes
made
in accordance with the provisions of this Section 10.1 shall be a
“Buyer
Requested Change” and the cost thereof shall be borne by Buyer. If
delivery of the Aircraft is delayed due to a Buyer Requested Change,
such
delay shall be an Excusable Delay within the meaning of Article 12.
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10.2
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Permitted
Changes
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Bombardier
may, prior to the Delivery Date and without a Change Order or Buyer’s
consent:
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(a)
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substitute
the kind, type or source of any material, part, accessory or equipment
with any other material, part, accessory or equipment of like, equivalent
or better kind or type; or
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b)
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make
such change or modification to the Specification as it deems appropriate
to:
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(1)
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improve
the Aircraft, its performance, maintainability or appearance, or
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(2)
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prevent
delays in manufacture or delivery,
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provided
that such substitution, change or modification shall not (i) increase
the
Aircraft Purchase Price or (ii) materially and adversely affect (a)
the
Scheduled Delivery Month, (b) interchangeability or replaceability
of
spare parts or (c) the performance characteristics of the Aircraft.
If a
substitution, change or modification affects the Aircraft Purchase
Price
or materially affects the Scheduled Delivery Month, interchangeability
or
replaceability of spare parts or the performance characteristics
or
maintainability or appearance of the Aircraft, Buyer’s consent shall be
requested, such consent not to be unreasonably withheld. Any
change made in accordance with the provisions of this Section 10.2
shall
be deemed to be a “Permitted Change” and the cost thereof shall be borne
by Bombardier, incuding the inclusion of any changes to the Technical
Data
at delivery.
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10.3
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Regulatory
Changes
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If
any change to, or modification or testing of, the Aircraft is required
by
any law or governmental regulation or requirement or interpretation
thereof by any governmental agency having jurisdiction in order to
meet
the requirements of Section 7.2 (a “Regulatory Change”), such Regulatory
Change shall be made to the Aircraft prior to the Delivery Date to
the
extent practicable, or at such other time after the Delivery Date
as the
parties may agree upon.
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The
Regulatory Change shall be made without additional charge to Buyer
unless
such Regulatory Change is:
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(a)
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necessary
to comply with any requirement of the United States, the country
of
import, which varies from or is in addition to its regulation, requirement
or interpretation in effect on the date hereof for the issuance of
a
Certificate of Airworthiness in said country of import, in which
case
Buyer shall pay Bombardier’s reasonable charges for such Regulatory
Change, or
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(b)
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required
by any governmental law or regulations or interpretation thereof
promulgated by TC or the FAA which is
effective subsequent to the date of this Agreement but before the
Delivery
Date and which is applicable to all aircraft in general or to all
aircraft
of the same category as the Aircraft, in which case Buyer shall pay
Bombardier’s reasonable charges for such Regulatory Change incorporated in
any such Aircraft.
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If
delivery of the Aircraft is delayed by the incorporation of any Regulatory
Change, such delay shall be an Excusable Delay within the meaning
of
Article 12.
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Bombardier
shall promptly notify Buyer of any necessity to issue a Change Order
reflecting any Regulatory Change, and shall prepare and issue such
change
order which shall set forth in detail the particular changes to be
made
and the anticipated effect, if any, of such changes on design,
performance, weight, balance, Scheduled Delivery Month, Base Price
and
Aircraft Purchase Price. Any Change Orders issued pursuant to this
Article
shall be effective and binding upon the date of Bombardier’s transmittal
of such Change Order.
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10.4
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For
the avoidance of doubt, Bombardier and Buyer acknowledge that Buyer
Requested Changes, Permitted Changes and Regulatory Changes are intended
to be mutually exclusive categories.
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ARTICLE
11 - BUYER’S REPRESENTATIVES AT BOMBARDIER SITE
|
11.1
|
From
time to time, commencing [***] months prior
to the
Scheduled Delivery Month of the first Aircraft to be delivered and
ending
with the Delivery Date of the last Aircraft purchased hereunder,
subject
to Section 11.3 Bombardier shall furnish, without charge, office
space at
Bombardier’s facility relating to the manufacture of the aircraft for one
(1) representative of Buyer. Buyer shall be responsible for all
expenses of its representative and shall notify Bombardier at least
thirty
(30) calendar days prior to the first scheduled visit of such
representative and three (3) days for each subsequent visit.
|
|
11.2
|
Bombardier’s
and Bombardier’s affiliates’, facilities relating to the manufacture of
the aircraft shall be accessible to Buyer’s representative during normal
working hours. Buyer’s representative shall have the right,
upon reasonable notice to Bombardier, to periodically observe the
work at
Bombardier’s or Bombardier’s affiliates’ facilities where the work is
being carried out provided there shall be no disruption in the performance
of the work.
|
|
11.3
|
Buyer’s
representative shall conform to Bombardier’s rules and regulations and any
other rules and regulations applicable at the facilities being visited
and
on or before arrival at said facilities shall enter into a “Limited Access
and Non-disclosure Agreement” with Bombardier.
|
|
|
At
any time prior to delivery of the Aircraft, Buyer’s representative may
request, in writing, correction of parts or materials which they
reasonably believe are not in accordance with the
Specification. Bombardier shall provide a written response to
any such request. Communication between Buyer’s representative and
Bombardier shall be solely through Bombardier’s Contract Department.
|
|
|
Buyer
hereby releases and agrees to defend, indemnify and hold harmless
Bombardier, its affiliates and their respective officers, directors,
agents, employees and contractors from and against all liabilities,
damages, losses, costs and expenses resulting from any acts by Buyer’s
representatives or resulting from injuries to or death of, Buyer’s
representatives while at the facilities of Bombardier or Bombardier’s
affiliates or their respective subcontractors or during inspection,
acceptance flight or acceptance of the Aircraft, regardless of cause
or
fault, [***]
|
ARTICLE
12 - EXCUSABLE DELAY
|
12.1
|
If
Bombardier is prevented or delayed, directly or indirectly, from
performing any of its obligations under this Agreement by an Excusable
Delay, Bombardier shall not be liable for, and shall not be in default
under this Agreement on account of, such delay or non-performance
and the
time fixed or required for the performance of any obligation in this
Agreement shall be extended for a period equal to the period during
which
any such event or the effects thereof shall persist. Excusable Delay
means
an event which is beyond
the reasonable control of Bombardier and includes, without
limitation, the following:
|
|
|
(a)
|
force
majeure or acts of God;
|
|
|
(b)
|
war,
warlike operations, act of the enemy, armed aggression, civil commotion,
insurrection, terrorism, riot or embargo;
|
|
|
(c)
|
fire,
explosion, earthquake, lightning, flood, drought, windstorm or other
action of the elements or other catastrophic or serious accidents;
|
|
|
(d)
|
epidemic
or quarantine restrictions;
|
|
|
(e)
|
any
legislation, act, order, directive or regulation of any governmental
or
other duly constituted authority;
|
|
|
(f)
|
strikes,
lock-out, walk-out, and/or other labour troubles causing cessation,
slow-down or interruption of work;
|
|
|
(g)
|
lack
or shortage or delay in delivery of supplies, materials, accessories,
equipment, tools or parts, despite
[***]
|
|
|
(h)
|
delay
or failure of carriers, subcontractors or suppliers for any reason
whatsoever, despite Bombardier’s reasonable efforts to avoid or mitigate
any such event; or
|
|
|
(i)
|
delay
in obtaining any airworthiness or export approval or certificate,
or any
equivalent approval or certification, by reason of any law or governmental
order, directive or regulation or any change thereto, or interpretation
thereof, by a governmental agency, the effective date of which is
subsequent to the date of this Agreement, or by reason of any change
or
addition made by Bombardier or its affiliates as a result of a request
of
or requirement made by a governmental agency to the compliance program
of
Bombardier or of its affiliate, or any part thereof, as same may
have been
approved by TC, or change to the interpretation thereof to obtain
any such
airworthiness approval or certificate or such equivalent.
|
|
12.2
|
(a)
|
If
Bombardier concludes, based on its appraisal of the facts and normal
scheduling procedures, that due to Excusable Delay delivery of the
Aircraft will be delayed for more than nine (9) months after the
original
Scheduled Delivery Month or any revised date agreed to in writing
by the
parties, Bombardier shall promptly notify Buyer in writing and either
party may within seven (7) days terminate this Agreement with respect
to
the Aircraft by giving Notice to the other party.
|
|
|
(b)
|
If,
due to Excusable Delay, delivery of any Aircraft is delayed for more
than
nine (9) months after the last day of the original Scheduled Delivery
Month or any revised date agreed to by the parties, either party
may
within seven (7) days terminate this Agreement with respect to such
Aircraft by giving Notice to the other party.
|
|
12.3
|
If
prior to the Delivery Date of an Aircraft, that Aircraft is lost,
destroyed or damaged beyond repair as a result of an Excusable Delay,
Bombardier shall promptly notify Buyer in writing. Such Notice shall
specify the earliest date reasonably possible, consistent with
Bombardier’s other contractual commitments and production schedule, by
which Bombardier estimates it would be able to deliver a replacement
for
the lost, destroyed or damaged Aircraft. If the Notice
specifies a date more than [***] months after
the
original Scheduled Delivery Month or any revised date agreed to in
writing
by the parties, either party may within [***] days terminate
this
Agreement with respect to that Aircraft by giving written notice
to the
other party. Unless Buyer exercises any right it may have to
terminate this Agreement with respect to that Aircraft, the parties
shall
execute an amendment to this Agreement which shall set forth the
Delivery
Date for such replacement aircraft and corresponding new replacement
Aircraft Purchase Price; provided, however, that nothing herein shall
obligate Bombardier to manufacture and deliver such replacement aircraft
if it would require the reactivation or acceleration of its production
line for the model of aircraft purchased hereunder. The terms
and conditions of this Agreement otherwise applicable to the replaced
Aircraft shall apply to the replacement aircraft.
|
|
12.4
|
Termination
under Sections 12.2 or 12.3 shall discharge all obligations and
liabilities of Buyer and Bombardier hereunder with respect to such
delayed
Aircraft (and all related undelivered items and services), Bombardier
shall promptly repay to Buyer, and Bombardier’s sole liability and
responsibility shall be limited to the repayment to Buyer, of all
advance
payments for such Aircraft received by Bombardier less any amount
due by
Buyer to Bombardier other than with respect to such delayed Aircraft.
|
|
12.5
|
The
termination rights set forth in Sections 12.2 and 12.3 are exclusive
of
and in substitution for any and all other rights and remedies provided
by
law, contract or otherwise.
|
|
12.6
|
[***]
|
ARTICLE
13 - NON-EXCUSABLE DELAY/FAILURE TO TAKE DELIVERY
|
13.1
|
If
delivery of the Aircraft is delayed by causes not addressed under
Article
12 (a “Non-Excusable Delay”) or Bombardier otherwise fails to deliver an
Aircraft, Bombardier shall pay Buyer, as liquidated damages and not
as a
penalty damages in accordance with this Article 13. The amount
of liquidated damages shall be [***] for each day of Non-Excusable
Delay
in excess of a grace period of [***], subject to
a maximum
of [***] for any such delayed Aircraft. The Buyer acknowledges
that the foregoing amounts of liquidated damages are reasonable in
light
of the circumstances of this Agreement.
|
|
13.2
|
Buyer
will not have the right to refuse to take delivery of any Aircraft
because
of a Non-Excusable Delay unless and until the aggregate duration
of the
Non-Excusable Delay for such Aircraft exceeds [***]. If
Bombardier has not offered an Aircraft for inspection and acceptance
before the end of that [***] period, Buyer
may
terminate the Agreement only as to such Aircraft by giving Notice
to
Bombardier. If, no such Notice has been given and Bombardier
offers such Aircraft for inspection and acceptance and Buyer refuses
to
take delivery of such Aircraft because of Non-Excusable Delay, Buyer
will
be deemed to have terminated the Agreement as to such Aircraft and
Buyer
shall be entitled to recover from Bombardier, as liquidated damages
and
not as a penalty, the amount of liquidated damages calculated under
Section 13.1 to the date of termination. In addition,
Bombardier shall promptly repay to Buyer all advance payments for
such
Aircraft plus daily simple interest thereon from the date of receipt
to
the date of repayment at the prime rate charged by Chase Manhattan
Bank,
N.A., or its successor, from time to time, calculated and compounded
monthly.
|
|
13.3
|
The
liquidated damages payable in accordance with Section 13.1 and Buyer’s
right of termination under Section 13.2 for Non-Excusable Delays,
including a complete failure to deliver, are exclusive of and in
substitution for any and all other rights and remedies provided by
law and
Buyer disclaims, waives, releases and renounces all other remedies
including remedies for (a) any costs incurred by Buyer in securing
temporary or permanent replacement aircraft, (b) any financing, tax,
personnel, facility or other costs or damages incurred by Buyer relating
to delivery or non-delivery of the Aircraft, including but not limited
to
expenses for pilot and ground crew training, maintenance facilities,
scheduling and pilot time, or (c) any indirect, incidental or
consequential damages, including without limitation loss of use,
loss of
revenue or loss of profit.
|
|
13.4
|
[***]
|
ARTICLE
14 - TERMINATION
|
14.1
|
This
Agreement may be terminated, in whole or in part, with respect to
any or
all of the Aircraft before the applicable Delivery Date by either
party
(the “terminating party”) by Notice to the other party (the “other party”)
if:
|
|
|
(a)
|
the
other party makes an assignment for the benefit of creditors or admits
in
writing its inability to pay its debts or generally does not pay
its debts
as they become due; or
|
|
|
(b)
|
a
receiver or trustee is appointed for the other party or for substantially
all of the other party’s assets and, if appointed without the other
party’s consent, such appointment is not discharged or stayed within [***] calendar days
thereafter; or
|
|
|
(c)
|
proceedings
or action under any law relating to bankruptcy, insolvency or the
reorganization or relief of debtors are instituted by or against
the other
party, and, if contested by the other party, are not dismissed or
stayed
within [***] calendar
days thereafter; or
|
|
|
any
writ of attachment or execution or any similar process is issued
or levied
against the other party or any significant part of its property and
is not
released, stayed, bonded or vacated within [***] calendar days
after
its issue or levy.
|
|
14.2
|
This
Agreement may be terminated by Bombardier in whole or in part, before
the
Delivery Date with respect to any or all undelivered Aircraft
|
|
|
(a)
|
if
Buyer is in breach of any payment obligation which continues for
ten days
beyond the due date of such payment obligation; or
|
|
|
(b)
|
if
Buyer is in default or breach of any other material term (including
Article 8) or condition of this Agreement and Buyer does not cure
such
default or breach within [***] calendar days
after
receipt of notice from Bombardier specifying such default or breach.
|
|
14.3
|
This
Agreement may be terminated by Buyer in whole or in part with respect
to
all or any of the Aircraft, as applicable, only pursuant to Articles
12
and 13 and Section 14.1. Buyer’s exclusive rights, remedies and recourse
against Bombardier upon termination under Article 12 or Article 13
are as
set forth in Article 12 or Article 13 respectively.
|
|
14.4
|
In
case of termination of this Agreement by Bombardier in whole or in
part
pursuant to this Article 14:
|
|
|
(a)
|
all
rights which Buyer has under this Agreement or any interest or claim
Buyer
may have in or to any terminated Aircraft shall be null and void
with
immediate effect except as to any Aircraft not the subject of such
termination; and
|
|
|
(b)
|
Bombardier
may sell, lease or otherwise dispose of the terminated Aircraft to
another
party free of any claim by Buyer; and
|
|
|
(c)
|
Bombardier
shall be entitled to recover from Buyer all costs, expenses, losses
and
damages incurred by Bombardier as a result of Buyer’s default including
loss of profit, all costs incurred as a result of disruption in
production, training expenses and selling expenses to re-sell the
terminated Aircraft, the cost of all vendor goods purchased in order
to
configure the terminated Aircraft to Buyer’s specification and costs
associated with reconfiguring the terminated Aircraft in order to
re-sell
the Aircraft and any payments received by Bombardier with respect
to all
undelivered terminated Aircraft shall be retained by Bombardier and
applied against such costs, expenses, losses and damages.
|
|
|
(d)
|
Buyer’s
obligations under Articles 4, 17 and 21 and Section 11.3, and Bombardier’s
obligations under Articles 12, 13, 16 and 21 shall survive any
termination.
|
ARTICLE
15 - NOTICES
|
15.1
|
Any
Notice given under this Agreement shall be in writing and may be
delivered
by hand against written receipt, registered mail, facsimile providing
reasonable proof of transmission or recognized international courier
by
the party giving the Notice and shall be addressed as follows:
|
|
|
(a)
|
to
Bombardier:
|
|
|
Bombardier
Inc.
|
|
|
Bombardier
Aerospace Regional Aircraft
|
|
|
000
Xxxxxxx Xxxxxxxxx
|
|
|
Xxxxxxxxx,
Xxxxxxx
|
|
|
Xxxxxx
|
|
|
X0X
0X0
|
|
|
Attention:
Director of Contracts
|
|
|
Facsimile:
|
[***]
|
|
|
(b)
|
to
Buyer:
|
|
|
Pinnancle
Airlines Corp.
|
|
|
0000
Xxxxxxxxx Xxxxxxxxx, Xxxxx 000
|
|
|
Xxxxxxx,
Xxxxxxxxx
|
|
|
Xxxxxx
Xxxxxx 00000
|
|
|
Attention:
Xxxxx Xxxx, Chief Financial Officer
|
|
|
Facsimile:
[***]
|
|
|
E-mail:
[***]
|
|
|
Attention:
Xxxx Xxxxxxx, Chief Operating Officer
|
|
|
Facsimile:
[***]
|
|
|
Email:
[***]
|
|
15.2
|
Notice
given in accordance with Section 15.1 shall be deemed sufficiently
given
to by the addressees when received:
|
|
|
(a)
|
if
delivered by hand, on the day when the same shall have been so delivered;
or
|
|
|
(b)
|
if
mailed or sent by courier on the day indicated on the corresponding
acknowledgment of receipt; or
|
|
|
(c)
|
if
sent by telex or facsimile on the day indicated by the acknowledgment
or
the answer back of the receiver in provable form
|
|
|
E-mail
shall be provided as courtesy but shall not constitute notice hereunder.
|
ARTICLE
16 - INDEMNITY AGAINST INTELLECTUAL PROPERTY INFRINGEMENT
|
16.1
|
In
the case of any actual or alleged infringement of any registered
Canadian
or United States Intellectual Property or, subject to the conditions
and
exceptions set forth below, any registered Intellectual Property
issued
under the laws of any other country in which Buyer from time to time
may
lawfully operate the Aircraft (“Other Intellectual Property”), by the
Aircraft, or by any system, accessory, equipment or part installed
in such
Aircraft at the time title to such Aircraft passes to Buyer, Bombardier
shall indemnify, protect and hold harmless Buyer from and against
all
claims, suits, actions, liabilities, damages and costs resulting
from the
infringement, excluding any indirect, incidental, consequential,
or
punitive damages (which include loss of revenue or loss of profit)
and
Bombardier shall, at its option and expense:
|
|
|
(a)
|
procure
for Buyer the right under such patent to use such system, accessory,
equipment or part; or
|
|
|
(b)
|
replace
such system, accessory, equipment or part with one of the similar
nature
and quality that is non-infringing; or
|
|
|
(c)
|
modify
such system, accessory, equipment or part to make same non-infringing
in a
manner such as to keep it otherwise in compliance with the requirements
of
this Agreement.
|
|
|
Bombardier’s
obligation hereunder shall extend to Other Intellectual Property
only if
from the time of design of the Aircraft, system, accessory, equipment
or
part until the alleged infringement claims are resolved:
|
|
|
(a)
|
such
other country and the country in which the Aircraft is permanently
registered have ratified and adhered to and are at the time of the
actual
or alleged infringement contracting parties to the Chicago Convention
on
International Civil Aviation of December 7, 1944 and are fully entitled
to
all benefits of Article 27 thereof; and
|
|
|
(b)
|
such
other country and the country of registration shall each have been
a party
to the International Convention for the Protection of Industrial
Property
(Paris Convention) or have enacted patent laws which recognize and
give
adequate protection to inventions made by the nationals of other
countries
which have ratified, adhered to and are contracting parties to both
of the
forgoing conventions.
|
|
16.2
|
The
foregoing indemnity does not apply to equipment provided by Buyer
to
Bombardier, or to avionics, engines or any system, accessory, equipment
or
part that was not manufactured to Bombardier’s detailed design or to any
system, accessory, equipment or part manufactured by a third party
to
Bombardier’s detailed design without Bombardier’s authorization.
|
|
16.3
|
Buyer’s
remedy and Bombardier’s obligation and liability under this Article are
conditional upon (i) Buyer giving Bombardier written notice within
ten
(10) days after Buyer receives notice of a suit or action against
Buyer
alleging infringement or within twenty (20) days after Buyer receives
any
other written claim of infringement (ii) Buyer uses reasonable efforts
in
full cooperation with Bombardier to reduce or mitigate any such expenses,
damages, costs or royalties involved, and (iii) Buyer furnishes promptly
to Bombardier all data, papers and records in its possession or control
necessary or useful to resist and defend against such claim or
suit. Bombardier may at its option conduct negotiations with
any party claiming infringement and may intervene in any suit or
action. Whether or not Bombardier intervenes, Bombardier shall
be entitled at any stage of the proceedings to assume or control
the
defence of any claim. Buyer’s remedy and Bombardier’s
obligation and liability are further conditional upon Bombardier’s prior
approval of Buyer’s payment or assumption of any liabilities, expenses,
damages, royalties or costs for which Bombardier may be held liable
or
responsible.
|
|
16.4
|
The
indemnity, obligations and liabilities of Bombardier and remedies
of Buyer
set out in this article are exclusive and accepted by Buyer to be
in lieu
of and in substitution for, and Buyer hereby waives, releases and
renounces, all other indemnities, obligations and liabilities of
Bombardier and of its affiliates and all other rights, remedies and
claims, including claims for damages, direct, indirect, incidental,
consequential, or punitive of Buyer against Bombardier and its affiliates
express or implied, arising by law or otherwise, with respect to
any
actual or alleged Intellectual Property infringement of any kind
by the
aircraft or any installed system, accessory, equipment or part.
|
|
|
|
ARTICLE
17 - LIMITATION OF LIABILITY; DISCLAIMER AND RELEASE;
INDEMNIFICATION
|
17.1
|
IN
NO EVENT WILL BOMBARDIER OR ANY OF ITS AFFILIATES HAVE ANY OBLIGATION
OR
LIABILITY (AT LAW OR IN EQUITY), WHETHER ARISING IN CONTRACT, WARRANTY
(INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE), IN TORT (INCLUDING THE ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE
OR
STRICT PRODUCTS LIABILITY, OR OTHERWISE) FOR LOSS OF USE, REVENUE
OR
PROFIT OR FOR ANY OTHER INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES OF ANY KIND OR NATURE WHATSOEVER.
|
|
17.2
|
THE
WARRANTIES, OBLIGATIONS AND LIABILITIES OF BOMBARDIER AND THE REMEDIES
OF
BUYER EXPRESSLY PROVIDED IN THIS AGREEMENT, THE XXXX OF SALE, ANNEX
A AND
ANNEX B EXCLUSIVELY SET FORTH BOMBARDIER’S OBLIGATIONS WITH RESPECT TO ANY
NON-CONFORMANCE OF THE AIRCRAFT WITH THE SPECIFICATION OR ANY DEFECT
IN
THE AIRCRAFT, AND ARE ACCEPTED BY BUYER TO BE ITS EXCLUSIVE REMEDY
AND
BOMBARDIER EXPRESSLY DISCLAIMS AND BUYER HEREBY WAIVES, RELEASES
AND
RENOUNCES ALL OTHER REMEDIES, WARRANTIES, GUARANTEES, OBLIGATIONS,
REPRESENTATIONS OR LIABILITIES, EXPRESS OR IMPLIED, OF BOMBARDIER
AND ITS
AFFILIATES WITH RESPECT TO EACH AIRCRAFT OR PART THEREOF, PRODUCT,
DOCUMENT OR SERVICE DELIVERED OR PROVIDED UNDER THIS AGREEMENT, ARISING
IN
FACT, IN LAW, IN CONTRACT, IN TORT, OR OTHERWISE, INCLUDING:
|
|
|
A.
|
ANY
IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE;
|
|
|
B.
|
ANY
IMPLIED WARRANTY OR CONDITION 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 ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE OR STRICT
PRODUCTS
LIABILITY OF BOMBARDIER OR ITS AFFILIATES; AND
|
|
|
D.
|
ANY
OBLIGATION, LIABILITY OR RESPONSIBILITY FOR LOSS OF OR DAMAGE TO
ANY
AIRCRAFT SUBJECT TO THIS AGREEMENT.
|
|
17.3
|
BUYER
(FOR ITSELF AND ON BEHALF OF ITS SUCCESSORS AND ASSIGNS) AGREES TO
DEFEND,
INDEMNIFY AND HOLD HARMLESS BOMBARDIER, ITS AFFILIATES AND THEIR
RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES AND CONTRACTORS,
AND
EACH OF THEM, FOR ALL CLAIMS FOR LOSS OF OR DAMAGE TO PROPERTY, INCLUDING
THE AIRCRAFT, OR FOR INJURIES TO OR DEATH OF ANY AND ALL PERSONS
RESULTING, DIRECTLY OR INDIRECTLY, FROM THE USE OR OPERATION OF THE
AIRCRAFT AFTER ACCEPTANCE AND DELIVERY OF THE AIRCRAFT TO BUYER,
HOWEVER
ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE)
AND
WHETHER OR NOT ATTRIBUTABLE TO ANY ACT OR OMISSION OF BOMBARDIER
OR ITS
AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, EMPLOYEES
AND
CONTRACTORS. THE ABOVE AGREEMENT TO DEFEND INDEMNIFY AND HOLD HARMLESS
DOES NOT APPLY TO LIABILITY TO THIRD PARTIES FOR DEATH OR INJURY
ARISING
OUT OF AN ACCIDENT TO THE EXTENT CAUSED BY (1) [***].
|
ARTICLE
18 - ASSIGNMENT
|
18.1
|
Except
as provided in Sections 18.2 and 18.3, Buyer shall not assign, sell,
transfer, charge or dispose of (in whole or in part) any of its rights
or
obligations hereunder without Bombardier’s prior written consent, and
without such consent any purported assignment, sale, transfer, charge
or
disposition shall be void and of no effect. In the event of an
assignment, sale, transfer, charge or disposition with Bombardier’s
consent, Buyer shall remain jointly and severally liable with any
assignee
for the performance of all and any of Buyer’s obligations under this
Agreement and Bombardier reserves the right as a condition of its
consent
to amend one or more of the terms and conditions of this Agreement.
|
|
18.2
|
Either
party may assign, sell, transfer or dispose of (in whole or in part)
any
of its rights and obligations hereunder to a wholly owned Subsidiary
provided that there is no increase to the liability and/or responsibility
of the non-assigning party and that the assigning party remains jointly
and severally liable with any assignee for the performance of its
obligations under this Agreement.
|
|
18.3
|
After
transfer of title of the Aircraft, Buyer may assign, its rights and
corresponding obligations under the Agreement to a third party purchaser
of the Aircraft, provided said third party agrees in writing to be
bound
by all the terms and conditions of this Agreement.
|
|
18.4
|
Bombardier
may assign any of its rights to receive money hereunder without the prior
consent of Buyer.
|
ARTICLE
19 - SUCCESSORS
|
19.1
|
This
Agreement shall inure to the benefit of and be binding upon each
of
Bombardier and Buyer and their respective successors and permitted
assigns.
|
ARTICLE
20 - APPLICABLE LAWS
|
20.1
|
This
Agreement shall be governed and construed in accordance with the
laws of
the [***] without
regard to any conflicts of laws principles which might result in
the
application of the laws of any other jurisdictionand the parties
have
agreed that the application of the United Nations Convention on Contracts
for the International Sale of Goods is hereby excluded.
|
|
20.2
|
Bombardier’s
obligations under this Agreement shall be subject to and apply only
to the
extent permitted by applicable laws, regulations, directives and/or
orders
regarding export controls, including those of the United States.
|
ARTICLE
21 - CONFIDENTIAL NATURE OF AGREEMENT
|
21.1
|
This
Agreement and its terms are is confidential between the parties and
shall
not, without the prior written consent of the other party, be disclosed
by
either party (or its directors, officers, employees or agents) in
whole or
in part to any other person or body except as may be necessary for
either
party to carry out its obligations under this Agreement or as required
by
applicable laws, regulations and government orders.
|
|
21.2
|
Except
as may be reasonably required for the normal operation, maintenance,
overhaul and repair of the Aircraft, Buyer shall hold confidential
all
technical data and information supplied by or on behalf of Bombardier.
Buyer shall not reproduce any technical data or information or divulge
the
same to any third party without the prior written consent of Bombardier.
|
|
21.3
|
Either
party may announce the signing of this Agreement by means of a notice
to
the press provided that the content and date of the notice has been
agreed
to by the other party.
|
|
21.4
|
This
Article 21 shall survive any termination of this Agreement.
|
ARTICLE
22 - AGREEMENT
|
22.1
|
This
Agreement constitutes the entire Agreement between Bombardier and
Buyer
and supersedes and cancels all prior agreements, negotiations, drafts,
representations and communications, whether oral or written, between
Bombardier and Buyer or their respective agents, with respect to
or in
connection with the subject matter of this Agreement.
|
|
22.2
|
No
agreement or understanding varying or supplementing the terms and
conditions hereof shall be binding on either Bombardier or Buyer
unless an
amendment to this Agreement is issued and duly signed by their respective
authorized representatives pursuant to the provisions of this Article.
|
|
22.3
|
In
the event of any inconsistencies between this Agreement and any of
the
Schedules and Annexes or other documents referred to herein, the
provisions of this Agreement shall prevail.
|
|
22.4
|
If
any of the provisions of this Agreement are for any reason declared
by
judgment of a court of competent jurisdiction to be unenforceable
or
ineffective, those provisions shall be deemed severable from the
other
provisions of this Agreement and the remainder of this Agreement
shall
remain in full force and effect.
|
|
22.5
|
THE
BENEFIT OF THE WAIVER, RELEASE, RENUNCIATION AND EXCLUSION OF LIABILITY
IN
EACH OF ARTICLES 12, 13 AND 17 AND SECTIONS 8.9, 11.3 AND 16.4, ANNEX
A
SECTION 2.9.4.5 AND ANNEX B SECTION 5.1 EXTENDS ALSO TO THE OTHER
DIVISIONS, OTHER SUBSIDIARIES, AND OTHER AFFILIATES OF BOMBARDIER
INC.
(COLLECTIVELY THE “BOMBARDIER GROUP”) AND TO THE OFFICERS, DIRECTORS,
EMPLOYEES AND REPRESENTATIVES OF THE BOMBARDIER GROUP, ON WHOSE BEHALF
AND
FOR WHOSE BENEFIT BOMBARDIER IS, FOR PURPOSES OF THIS SECTION 22.5,
ACTING
AS AGENT AND TRUSTEE.
|
|
22.6
|
Bombardier
and Buyer confirm to each other they have each obtained the required
authorizations and fulfilled any applicable conditions to enable
each of
them to enter into this Agreement.
|
|
22.7
|
Buyer
and Bombardier agree that this Agreement has been the subject of
discussion and negotiation and is fully understood by the parties
hereto
and that the price of the Aircraft and the other mutual agreements
of the
parties set forth herein were arrived at in consideration of the
provisions contained herein including in Sections 11.3, 13.2, 13.3,
14.3
and 16.4 and Article 17.
|
|
|
IN
WITNESS WHEREOF this Agreement was signed on the date written hereof:
|
|
BOMBARDIER
INC., represented by
|
|
|
Bombardier
Aerospace
|
|
|
Regional
Aircraft
|
|
/s/
Xxxxxx Xxxxxxx
Per:
Xxxxxx Xxxxxxx
Title:President
&
Chief
Executive
Officer
|
/s/[***]
Per:
[***]
Title:Vice
President, Contracts
|
|
|
/s/
[***]Per:
[***]
Title:Manager,
Contracts
|
|
|
APPENDIX
I
|
ECONOMIC
ADJUSTMENT FORMULA
|
1.
|
Pursuant
to the provision of Article 4 of the Agreement, economic adjustment
will
be calculated using the following Economic Adjustment Formula:
|
|
|
[***]
|
|
|
APPENDIX
II
|
DELIVERY
SCHEDULE
|
Aircraft
|
Scheduled
Delivery Month
|
|
First
Aircraft
Second
Aircraft
Third
Aircraft
Fourth
Aircraft
Fifth
Aircraft
Sixth
Aircraft
Seventh
Aircraft
Eighth
Aircraft
Ninth
Aircraft
Tenth
Aircraft
Eleventh
Aircraft
Twelfth
Aircraft
Thirteenth
Aircraft
Fourteenth
Aircraft
Fifteenth
Aircraft
Sixteenth
Aircraft
Seventeenth
Aircraft
Eighteenth
Aircraft
Nineteenth
Aircraft
Twentieth
Aircraft
Twenty-first
Aircraft
Twenty-second
Aircraft
Twenty-third
Aircraft
Twenty-fourth
Aircraft
Twenty-fifth
Aircraft
|
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
|
|
|
APPENDIX
III
|
APPENDIX
III TYPE SPECIFICATION
|
DETAIL
SPECIFICATION
|
|
Number
DS8-400,
|
|
Revision
2 Amendment 1,
|
|
dated
October 30, 2006
|
|
APPENDIX
IV
|
APPENDIX
IV BUYER SELECTED OPTIONAL FEATURES
[***]
Q400
LOPA for Pinnacle/Continental – 74 Passengers
[***]
|
|
APPENDIX
V
|
BUYER
INFORMATION/DUE DATES
|
BUYER
INFORMATION
|
DUE
DATES
|
|
Customized
Paint Scheme.
|
Within
[***] days of signing
this Agreement.
In
the case of Multiple Paint Schemes, within [***] months prior
to
delivery of each Aircraft.
|
|
Interior
Décor – Standard Materials and Combinations.
|
Within
thirty [***] days of
signing this Agreement.
|
|
Interior
Décor – Standard Materials, Custom Combinations.
|
[***]
months prior to
delivery of the frst applicable Aircraft.
|
|
Interior
Décor –Custom Materials, Custom Combinations.
|
[***]
months prior to
delivery of the first applicable Aircraft.
|
|
Placards,
Markings, Labels and Translations.
|
Within
[***] days of signing
this Agreement.
|
|
Emergency
Equipment – Standard Selection/Locations.
|
Within
[***] days of signing
this Agreement.
|
|
Emergency
Equipment –Custom Selection/Locations.
|
[***]
months prior to
delivery of the first applicable Aircraft.
|
|
Aircraft
Registration Number(s).
|
[***]
months prior to
delivery of each Aircraft.
|
|
Mode
S Transponder Octal Code(s), as applicable.
|
[***]
months prior to
delivery of each Aircraft.
|
|
SELCAL
Code(s), as applicable.
|
[***]
months prior to
delivery of each Aircraft.
|
|
GPWS
Audio Call-out (Mode 6) Codes, as applicable.
|
[***]
months prior to
delivery of each Aircraft.
|
FORM
“A” TO APPENDIX V
FORM
“A” TO APPENDIX V BUYER’S CUSTOMIZED PAINT SCHEME
[Buyer’s name] hereby approves the attached Customized Paint
Scheme.
|
|
Dated
this ___ day of ______________ 200X.
|
|
|
by:
_________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
Copy
to: Contracts
|
|
FORM
“B” TO APPENDIX V
|
FORM
“B” TO APPENDIX V BUYER’S INTERIOR DÉCOR AND EMERGENCY EQUIPMENT
LIST
[Buyer’s name]hereby approves the attached Interior Décor as submitted by
Buyer on, 200X and confirmed by Bombardier Aerospace on, 200X and hereby
approves the attached Emergency Equipment List and Locations.
|
|
Dated
this ___ day of ______________ 200X
|
|
|
by:
_________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
Copy
to: Contracts
|
|
FORM
“C” TO APPENDIX V
|
FORM
“C” TO APPENDIX V BUYER’S PLACARDS, LABELS & MARKINGS
[Buyer’s
name]hereby approves the attached Placards, Markings, and Labels as
submitted by Buyer on, 200X and confirmed by Bombardier Aerospace on,
200X.
|
|
Dated
this ___ day of ______________ 200X.
|
|
|
by:
_________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
Copy
to: Contracts
|
|
SCHEDULE
I
|
SCHEDULE
I - CERTIFICATE OF ACCEPTANCE
The
undersigned hereby acknowledges on behalf of Buyer acceptance of the Aircraft
bearing manufacturer's serial number __________ fitted with two engines
MODEL________ bearing serial numbers ____________ and _______________ as being
in accordance with the terms and conditions of this Agreement signed on the
_______day of _________ between Bombardier Inc. and Buyer.
Place:
Date:
Signed
for and on behalf of Buyer name
By:
|
|
Title:
Attorney in Fact
|
|
SCHEDULE
II
|
SCHEDULE
II - XXXX OF SALE
FOR
VALUABLE CONSIDERATION, BOMBARDIER INC. AS REPRESENTED BY BOMBARDIER AEROSPACE
REGIONAL AIRCRAFT (“BOMBARDIER”), OWNER OF THE FULL LEGAL AND BENEFICIAL TITLE
OF THE AIRCRAFT DESCRIBED AS FOLLOWS:
ONE BOMBARDIER
Q400 SERIES AIRCRAFT MODEL AIRCRAFT BEARING:
MANUFACTURER’S
SERIAL
NO.:
_________________________, WITH:
PWC-123
ENGINES SERIAL
NOS.:
AND
DOES
THIS DAY
OF 200X HEREBY
SELL, GRANT, TRANSFER AND DELIVER ALL RIGHT, TITLE AND INTEREST IN AND TO SUCH
AIRCRAFT UNTO: PINNACLE AIRLINES CORP. (“BUYER”).
BOMBARDIER
HEREBY REPRESENTS AND WARRANTS TO BUYER THAT:
(I)
BOMBARDIER HAS GOOD AND MARKETABLE TITLE TO THE AIRCRAFT AND THE GOOD AND LAWFUL
RIGHT TO THE AIRCRAFT AND THE GOOD AND LAWFUL RIGHT TO SELL THE SAME TO BUYER;
AND
(II)
GOOD AND MARKETABLE TITLE TO THE AIRCRAFT IS HEREBY DULY VESTED IN PINNACLE
AIRLINES CORP. FREE AND CLEAR OF ALL CLAIMS, LIENS, ENCUMBRANCES AND RIGHTS
OF
OTHERS OF ANY NATURE. BOMBARDIER HEREBY COVENANTS AND AGREES TO DEFEND SUCH
TITLE FOREVER AGAINST ALL CLAIMS AND DEMANDS WHATSOEVER.
BY
VIRTUE
OF THE EXECUTION OF THIS XXXX OF SALE, BOMBARDIER HEREBY DIVESTS ITSELF OF
ALL
ITS RIGHT, TITLE AND INTEREST OF ANY KIND IN THE AIRCRAFT, IN FAVOUR OF
BUYER.
BUYER:
PLACE:
TIME:
For
and
on behalf of
BOMBARDIER
INC.
Bombardier
Aerospace
Regional
Aircraft
Per:
Title:
|
SCHEDULE
III
|
SCHEDULE
III - CERTIFICATE OF RECEIPT OF AIRCRAFT
The
undersigned hereby acknoledges to have received from Bombardier Inc., in
___"city"____, _____"Province"____, _______"Country" ________, on the
__________ day of ________, at the hour of _____________ o'clock, one (1)
Bombardier Q400 aircraft model _________, bearing manufacturer's
serial number, _______, including with the aircraft the two engines model
___________ bearing manufacturer's serial numbers __________ &
___________.
Place:
____________________ Date:
______________
Signed
for and on behalf of Buyer name
By:______________________________
Title:
Attorney in Fact
SCHEDULE
IV
SCHEDULE
IV - CHANGE ORDER
|
|
(PRO
FORMA)
|
CONTRACT
CHANGE ORDER
|
|
PURCHASER:
|
|
PURCHASE
AGREEMENT NO.:
|
AIRCRAFT
TYPE:
|
|
C.C.O.
NO.:
|
DATED:
|
|
PAGE
__ of __
|
|
|
REASON
FOR CHANGE:
|
|
|
____________________________________________________________________
|
|
|
DESCRIPTION
OF CHANGE:
|
ALL
OTHER
TERMS AND CONDITIONS OF THE AGREEMENT WILL REMAIN UNCHANGED
For
administrative purposes only, a consolidation of the amendments contained in
this CCO is attached. In the event of inconsistencies between the
consolidation and this CCO, this CCO shall prevail.
|
|
____________________________________________________________________
|
|
FOR
AND ON BEHALF OF:
|
FOR
AND ON BEHALF OF:
|
|
|
Bombardier
Aerospace Regional Aircraft _______________________________
|
|
Signed:_______________________
|
Signed:__________________________
|
|
Date:_________________________
|
Date:____________________________
|
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
Xxxxxxxxx
00000
|
Gentlemen:
|
Subject: Letter
Agreement No. 01 – Credit Memo
Letter
Agreement No. 01 (the “Letter Agreement”) to Purchase Agreement No. PA-0604 (the
“Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating
to the purchase of twenty-five (25) Bombardier Q400 Series
Aircraft.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein shall have the same
meaning as in the Agreement.
|
1.0
|
In
consideration of Buyer having entered into the Agreement, Bombardier
shall
issue to Buyer, at the time of delivery of each Aircraft, a credit
memorandum in the amount of amount of [***]
|
|
2.0
|
[***]
|
|
3.0
|
[***]
|
| 4.0 | Buyer may use the credit memorandum provided hereunder to pay the balance of the payment due for the Aircraft at the time of delivery or such credit memorandum may be used to purchase goods and services directly from Bombardier such as spare parts; flight crew training (including pilot, flight attendant, flight dispatcher); maintenance and ground personnel training; onsite technical assistance (including field service, technicians, instructor pilots) and technical manuals. |
|
5.0
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
6.0
|
This
Letter Agreement constitutes an integral part of the Agreement and
is
subject to the terms and conditions contained therein.
|
|
7.0
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof, then
this
Letter Agreement shall prevail.
|
|
8.0
|
In
the event of termination of the
Agreement, this Letter Agreement shall become automatically null
and void
with respect to all undelivered
Aircraft.
|
|
|
[Remainder
of page intentionally left blank]
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and
Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
/s/
[***] /s/
Xxxxxx X.
Xxxxxxx
Name:
[***]
Per:
Xxxxxx Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
/s/
[***]
Name: [***]
Title: Manager,
Contracts
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
XX
00000
|
Gentlemen:
|
Subject: Letter
Agreement No. 02 – Option Aircraft
Letter
Agreement No. 02 (the “Letter Agreement”) to Purchase Agreement No. PA-0604 (the
“Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating to the purchase of
twenty-five
(25) Bombardier Q400 Series Aircraft.
In
consideration of Buyer having entered into the Agreement, Bombardier agrees
to
reserve an additional five (5) Q400 Series aircraft (the "Option Aircraft")
for
the benefit of Buyer under the following general conditions:
1.0
The Option Aircraft will be as described in Article 2 of the
Agreement.
|
2.0
|
The
basic price for each of the Option Aircraft shall be the Base Price
set
forth in Article 4.2 of the Agreement, [***] to reflect
product
improvements in the Bombardier Q400 Series aircraft, as applicable.
The
Option Aircraft will be offered for acceptance to Buyer Ex Works
Bombardier's offices or premises in Downsview,
Ontario.
|
|
3.0
|
[***]
|
|
4.0
|
Buyer
shall exercise its right to purchase the Option Aircraft by providing
to
Bombardier irrevocable written notice of its intention to do so no
later
than the first day of the fifteenth month prior to the Scheduled
Delivery
Month of the applicable Option Aircraft.
|
|
5.0
|
Bombardier
acknowledges that Buyer has made a deposit of [***] per Option Aircraft
(the "Option
Deposit"). [***]
|
|
6.0
|
Buyer
shall make payment or cause payment to be made for each Option Aircraft
[***] as follows:
|
|
(a)
|
[***]
of the
Option Aircraft Purchase Price [***]
of the Option Aircraft (less the deposit for such Option Aircraft
received
by Bombardier from the executed proposal No. 1409R2 dated February
1,
2007);
|
|
(b)
|
[***]
of the
Option Aircraft Purchase Price [***]
months prior to its Scheduled Delivery Month of each Option
Aircraft;
|
|
|
(c)
|
[***]
of the
Option Aircraft Purchase Price [***]
months prior to its Scheduled Delivery Month of each Option Aircraft;
and
|
|
|
(d)
|
the
balance of the net Option Aircraft Purchase Price, less the Option
Deposit, on or before the date of delivery of such Option Aircraft.
|
|
7.0
|
Scheduled
Delivery Months of the Option Aircraft are as follows:
|
|
Scheduled
Delivery
Month
|
|
First
Option Aircraft
|
[***]
|
|
|
|
|
| Second Option Aircraft | [***] |
|
Third
Option Aircraft
|
[***]
|
| Fourth Option Aircraft | [***] |
|
Fifth
Option Aircraft
|
[***]
|
|
From
the date of execution of the Agreement until the first day of the
fifteenth month prior to the Scheduled Delivery Month of each Option
Aircraft, [***]
|
|
8.0
|
Buyer's
failure to exercise its rights with respect to any Option Aircraft
shall
result in the cancellation of Buyer’s right to such Option Aircraft.
|
|
9.0
|
Upon
exercise of Buyer's right to purchase the Option Aircraft by execution
of
this Letter Agreement, the parties shall consider all definitions,
terms
and conditions of the Agreement as applicable, unless expressly noted
otherwise.
|
|
10.0
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
11.0
|
This
Letter Agreement constitutes an integral part of the Agreement and
is
subject to the terms and conditions contained therein.
|
|
12.0
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof, then
this
Letter Agreement shall prevail.
|
|
13.0
|
In
the event of the termination of
the Agreement, this Letter Agreement shall become automatically null
and
void with respect to all undelivered
Aircraft.
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
/s/
[***] /s/
Xxxxxx
Xxxxxxx
Name:
[***] Per:
Xxxxxx
Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
/s/
[***]
Name:
[***]
Title: Manager,
Contracts
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
Pinnacle
Airlines Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
XX
00000
|
Gentlemen:
|
Subject: Letter
Agreement
No. 03 – [***]
Letter
Agreement No. 03 (the “Letter Agreement”) to Purchase Agreement No. PA-0604 (the
“Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating to the purchase of
twenty-five
(25) Bombardier Q400 Series Aircraft.
|
[***]
|
1.0
[***]
|
2.0
|
[***]
|
|
3.0
|
[***]
|
|
4.0
|
[***]
|
|
5.0
|
[***]
|
|
6.0
|
[***]
|
|
(c)
|
[***];
|
|
(d)
|
[***];
|
|
(e)
|
[***]
|
|
(f)
|
[***].
|
|
7.0
|
[***]
|
|
|
[***]
|
|
8.0
|
[***]
|
|
9.0
|
[***]
|
|
10.0
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
11.0
|
This
Letter Agreement constitutes an integral part of the Agreement and
is
subject to the terms and conditions contained therein.
|
|
12.0
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof, then
this
Letter Agreement shall prevail.
|
|
13.0
|
In
the event of the termination of
the Agreement, this Letter Agreement shall become automatically null
and
void with respect to all undelivered
Aircraft.
|
|
|
[Remainder
of page intentionally
left blank]
|
|
|
Yours
very truly,
|
|
|
BOMBARDIER
AEROSPACE
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
/s/
[***]
/s/
Xxxxxx
Xxxxxxx
Name:
[***]
Per:
Xxxxxx
Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
/s/
[***]
Name: [***]
Title: Manager,
Contracts
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
Pinnacle
Airlines Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
Xxxxxxxxx
00000
|
Gentlemen:
|
Subject: Letter
Agreement No. 04 – [***]Deposits
[***]
Letter
Agreement No. 04 (the “Letter Agreement”) to Purchase Agreement No. PA-0604 (the
“Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating
to the purchase of twenty-five (25) Bombardier Q400 Series
Aircraft.
This
Letter Agreement when accepted and agreed to by Buyer contemporaneously with
the
execution of the Agreement, will evidence our further agreement with respect
to
the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meanings as in the Agreement.
|
1.0
|
Deposits
|
|
1.1
|
Notwithstanding
Article 5.0 of the Agreement with respect to the Deposits for the
Sixteenth through to the Twenty-Fifth Aircraft, Buyer shall pay:
|
|
|
(a)
|
[***]
of the
Aircraft Purchase Price [***]
of the Agreement (less the deposit for such Aircraft received by
Bombardier from the executed proposal No. 1409R2 dated February 1,
2007);
|
|
|
(b)
|
[***]
of the
Aircraft Purchase Price [***]
months prior to the Scheduled Delivery Month of the applicable Aircraft;
|
|
|
(c)
|
[***]
of the
Aircraft Purchase Price [***]
months prior to the Scheduled Delivery Month of the applicable Aircraft;
and
|
|
|
(d)
|
[***]of
the
Aircraft Purchase Price [***]
months prior to the Scheduled Delivery Month of the applicable Aircraft.
|
|
2.0
|
[***]
|
|
3.0
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
4.0
|
This
Letter Agreement constitutes an integral part of the Agreement and
is
subject to the terms and conditions contained therein.
|
|
5.0
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof, then
this
Letter Agreement shall prevail.
|
|
6.0
|
In
the event of the termination of
the Agreement, this Letter Agreement shall become automatically null
and
void with respect to all undelivered
Aircraft
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
/s/
[***] /s/
Xxxxxx
Xxxxxxx
Name:
[***]
Per:
Xxxxxx
Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
/s/
[***]
Name: [***]
Title: Manager,
Contracts
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
Pinnacle
Airlines Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
Xxxxxxxxx
00000
|
Gentlemen:
|
Subject: Letter
Agreement
No. 05 – [***]
Letter
Agreement No. 05 (the “Letter Agreement”) to Purchase Agreement No. PA-0604 (the
“Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating
to the purchase of twenty-five (25) Bombardier Q400 Series
Aircraft.
This
Letter Agreement when accepted and agreed to by Buyer contemporaneously with
the
execution of the Agreement, will evidence our further agreement with respect
to
the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meanings as in the Agreement.
|
1.0
|
[***]
|
2.0
[***]
3.0
[***]
|
4.0
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
5.0
|
This
Letter Agreement constitutes an integral part of the Agreement and
is
subject to the terms and conditions contained therein.
|
|
6.0
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof, then
this
Letter Agreement shall prevail.
|
|
7.0
|
In
the event of the termination of
the Agreement, this Letter Agreement shall become automatically null
and
void with respect to all undelivered
Aircraft.
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
/s/
[***]
/s/ Xxxxxx
Xxxxxxx
Name:
[***]
Per: Xxxxxx Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
/s/
[***]
Name: [***]
Title: Manager,
Contracts
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
Pinnacle
Airlines Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
Xxxxxxxxx
00000
|
Gentlemen:
|
Subject: Letter
Agreement No. 06 – Spectrum Seats
Letter
Agreement No. 06 (the “Letter Agreement”) to Purchase Agreement No. PA-0604 (the
“Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating
to the purchase of twenty-five (25) Bombardier Q400 Series
Aircraft.
This
Letter Agreement when accepted and agreed to by Buyer contemporaneously with
the
execution of the Agreement, will evidence our further agreement with respect
to
the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meanings as in the Agreement.
|
1.0
|
The
Aircraft is currently configured with BE Aerospace Model 925 seats.
Buyer
has indicated that it desires BE Spectrum Seats on the Aircraft.
|
|
2.0
|
Upon
completion of the certification of the BE Spectrum Seats on the Aircraft,
Bombardier will confirm availability and pricing of the BE Spectrum
Seats
and issue a contract change order to effect the following changes
to the
Agreement:
|
Remove:
825SO90149
Passenger Seats - Recline
Feature
[***]
|
|
Additions:
|
825SO90500-74
Passenger Seats – Economy Class “BE Spectrum, incl. IAT & Recline as
applicable*”= [***] Jan 07
US
|
|
*Includes
Front Row IAT.
|
|
3.0
|
[***]
.
|
|
4.0
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
5.0
|
This
Letter Agreement constitutes an integral part of the Agreement and
is
subject to the terms and conditions contained therein.
|
|
6.0
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof, then
this
Letter Agreement shall prevail.
|
|
7.0
|
In
the event of the termination of
the Agreement, this Letter Agreement shall become automatically null
and
void with respect to all undelivered
Aircraft.
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
/s/
[***] /s/
Xxxxxx
Xxxxxxx
Name:
[***]
Per:
Xxxxxx Xxxxxxx
Title:
Vice President,
Contracts Title:
President & Chief Executive Officer
/s/
[***]
Name: [***]
Title: Manager,
Contracts
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
Pinnacle
Airlines Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
Xxxxxxxxx
00000
|
Gentlemen:
|
Subject: Letter
Agreement
No. 07 – [***]
Letter
Agreement No. 07 (the “Letter Agreement”) to Purchase Agreement No. PA-0604 (the
“Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating
to the purchase of twenty-five (25) Bombardier Q400 Series
Aircraft.
This
Letter Agreement when accepted and agreed to by Buyer contemporaneously with
the
execution of the Agreement, will evidence our further agreement with respect
to
the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meanings as in the Agreement.
|
1.0
|
[***]
|
|
2.0
|
[***]
|
|
3.0
|
[***]
|
|
4.0
|
[***]
|
|
5.0
|
[***]
|
|
6.0
|
[***]
|
|
7.0
|
[***]
|
|
8.0
|
[***]
|
|
9.0
|
Duplicate
Remedies
|
|
|
It
is agreed that Bombardier shall not be obligated to provide to Buyer
any
remedy under this Letter of Agreement which is a duplicate of any
other
remedy which has been provided to Buyer elsewhere under the Agreement.
|
|
10.0
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
11.0
|
This
Letter Agreement constitutes an integral part of the Agreement and
is
subject to the terms and conditions contained therein.
|
|
12.0
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof, then
this
Letter Agreement shall prevail.
|
|
13.0
|
In
the event of the termination of
the Agreement, this Letter Agreement shall become automatically null
and
void with respect to all undelivered Aircraft. The terms and
conditions of this Letter Agreement will continue to apply (albeit
with
[***] to reflect a reduced number of Aircraft or changed circumstances,
as
applicable) to the Aircraft delivered prior to the date of
termination.
|
|
|
[Remainder
of page intentionally
left blank]
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
/s/
[***] /s/
Xxxxxx X.
Xxxxxxx
Name:
[***] Per:
Xxxxxx
Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
/s/
[***]
Name: [***]
Title:Manager,
Contracts
|
|
APPENDIX
A TO LETTER AGREEMENT NO. 07
|
[***]
APPENDIX
A TO LETTER AGREEMENT NO. 07
[***]
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
Pinnacle
Airlines Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
Xxxxxxxxx
00000
|
Gentlemen:
|
Subject: Letter
Agreement No. 08 – [***]
Letter
Agreement No. 08 (the “Letter Agreement”) to Purchase Agreement No. PA-0604 (the
“Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating
to the purchase of twenty-five (25) Bombardier Q400 Series
Aircraft.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein shall have the same
meaning as in the Agreement.
|
1.0
|
[***]
|
|
2.0
|
[***]
|
3.0
[***]
4.0
[***]
5.0
[***]
|
6.0
|
[***]
|
|
|
7.0
|
[***]
|
8.0
[***]
|
9.0
|
[***]
|
|
10.0
|
[***]
|
11.0
[***]
|
12.0
|
Duplicate
Remedies
|
|
|
It
is agreed that Bombardier shall not be obligated to provide to Buyer
any
remedy under this Letter of Agreement which is a duplicate of any
other
remedy which has been provided to Buyer elsewhere under the Agreement.
|
|
13.0
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
14.0
|
This
Letter Agreement constitutes an integral part of the Agreement and
is
subject to the terms and conditions contained therein.
|
|
15.0
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof, then
this
Letter Agreement shall prevail.
|
|
16.0
|
In
the event of the termination of
the Agreement, this Letter Agreement shall become automatically null
and
void with respect to all undelivered Aircraft. The terms and
conditions of this Letter Agreement will continue to apply (albeit
with
[***] to reflect a reduced number of Aircraft or changed circumstances,
as
applicable) to the Aircraft delivered prior to the date of
termination.
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
/s/
[***]
/s/
Xxxxxx
Xxxxxxx
Name:
[***] Per:
Xxxxxx
Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
/s/
[***]
Name: [***]
Title: Manager,
Contracts
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
Pinnacle
Airlines Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
Xxxxxxxxx
00000
|
Gentlemen:
|
Subject: Letter
Agreement No. 09 – [***]
Letter
Agreement No. 09 (the “Letter Agreement”) to Purchase Agreement No. PA-0604 (the
“Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating
to the purchase of twenty-five (25) Bombardier Q400 Series
Aircraft.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein shall have the same
meaning as in the Agreement.
|
1.0
|
This
Letter Agreement constitutes
an integral part of the Agreement and evidences our further agreement
with
the matters set forth below. All terms used herein and in the
Agreement and not defined herein, shall have the same meaning as
in the
Agreement.
|
2.0
[***]
3.0
[***]
|
4.0
|
[***]
|
|
5.0
|
[***]
|
6.0
[***]
|
7.0
|
[***]
|
|
8.0
|
[***]
|
|
9.0
|
[***]
|
|
10.0
|
[***]
|
|
11.0
|
[***]
|
|
12.0
|
[***]
|
|
13.0
|
Duplicate
Remedies
|
|
|
It
is agreed that Bombardier shall not be obligated to provide to Buyer
any
remedy under this Letter of Agreement which is a duplicate of any
other
remedy which has been provided to Buyer elsewhere under the Agreement.
|
|
14.0
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
15.0
|
This
Letter Agreement constitutes an integral part of the Agreement and
is
subject to the terms and conditions contained therein.
|
|
16.0
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof, then
this
Letter Agreement shall prevail.
|
|
17.0
|
In
the event of the termination of
the Agreement, this Letter Agreement shall become automatically null
and
void with respect to all undelivered Aircraft. The terms and
conditions of this Letter Agreement will continue to apply (albeit
with
[***] to reflect a reduced number of Aircraft or changed circumstances,
as
applicable) to the Aircraft delivered prior to the date of
termination.
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
/s/
[***] /s/
Xxxxxx
Xxxxxxx
Name:
[***] Per:
Xxxxxx
Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
/s/
[***]
Name: [***]
Title: Manager,
Contracts
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
Pinnacle
Airlines Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
Xxxxxxxxx
00000
|
Gentlemen:
|
Subject: Letter
Agreement
No. 11 – [***]
Letter
Agreement No. 11 (the “Letter Agreement”) to Purchase Agreement No. PA-0604 (the
“Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating
to the purchase of twenty-five (25) Bombardier Q400 Series
Aircraft.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein shall have the same
meaning as in the Agreement.
|
1.0
|
[***]
|
|
2.0
|
[***]
|
|
3.0
|
[***]
|
|
4.0
|
This
Letter Agreement constitutes an integral part of the Agreement and
is
subject to the terms and conditions contained therein.
|
|
5.0
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof, then
this
Letter Agreement shall prevail.
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and
Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
/s/
[***] /s/
Xxxxxx
Xxxxxxx
Name:
[***] Per:
Xxxxxx
Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
/s/
[***]
Name: [***]
Title: Manager,
Contracts
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
Pinnacle
Airlines Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
Xxxxxxxxx
00000
|
Gentlemen:
|
Subject: Letter
Agreement
No. 12 – [***]
Letter
Agreement No. 12 (the “Letter Agreement”) to Purchase Agreement No. PA-0604 (the
“Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating
to the purchase of twenty-five (25) Bombardier Q400 Series
Aircraft.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein shall have the same
meaning as in the Agreement.
|
1.0
|
[***]
|
|
2.0
|
[***].
|
|
3.0
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
4.0
|
This
Letter Agreement constitutes an integral part of the Agreement and
is
subject to the terms and conditions contained therein.
|
|
5.0
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof, then
this
Letter Agreement shall prevail.
|
|
6.0
|
In
the event of termination of the Agreement, this Letter Agreement
shall
become automatically null and
void with respect to all undelivered
Aircraft.
|
|
|
[Remainder
of page intentionally left blank]
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
/s/
[***]
/s/
Xxxxxx
Xxxxxxx
Name:
[***]
Per:
Xxxxxx
Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
/s/
[***]
Name: [***]
Title: Manager,
Contracts
APPENDIX
I
|
|
[***]
|
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
Pinnacle
Airlines Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
Xxxxxxxxx
00000
|
Gentlemen:
|
Subject: Letter
Agreement
No. 10A – [***]
Letter
Agreement No. 10A (the “Letter Agreement”) to Purchase Agreement No. PA-0604
(the “Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating
to the purchase of twenty-five (25) Bombardier Q400 Series
Aircraft.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with
respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein shall have the same
meaning as in the Agreement.
1.0
[***]
|
2.0
|
[***]
|
2.1
3.0
[***]
|
4.0
|
[***]
|
|
5.0
|
[***]
|
6.0
[***]
7.0
[***]
8.0
[***]
9.0
General
Terms
|
9.1
|
It
is agreed that Bombardier shall not be obligated to provide to
Buyer any
remedy under this Letter of Agreement which is a duplicate of any
other
remedy which has been provided to Buyer elsewhere under the Agreement.
|
|
9.2
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the
provisions
of this Letter Agreement are personal to Buyer and shall not be
assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
9.3
|
This
Letter Agreement constitutes an integral part of the Agreement
and is
subject to the terms and conditions contained therein.
|
|
9.4
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof,
then this
Letter Agreement shall prevail.
|
|
9.5
|
In
the event of termination of the
Agreement, this Letter Agreement shall become automatically null
and void
with respect to all undelivered
Aircraft.
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and
Accepted
BOMBARDIER
INC. For and on
behalf of
Bombardier
Aerospace Pinnacle
Airlines Corp.
Regional
Aircraft
Name:
[***]
Per:
Xxxxxx Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
Name: [***]
Title: Manager,
Contracts
|
February
17, 2007
|
Xx.
Xxxxxx Xxxxxxx
President
& Chief Executive Officer
Pinnacle
Airlines Corp.
0000
Xxxxxxxxx Xxxx., Xxxxx 000
Xxxxxxx,
Xxxxxxxxx
00000
|
Gentlemen:
|
Subject: Letter
Agreement
No. 10B – [***]
Letter
Agreement No. 10B (the “Letter Agreement”) to Purchase Agreement No. PA-0604
(the “Agreement”) between Bombardier Inc., represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines Corp. (“Buyer”) relating
to the purchase of twenty-five (25) Bombardier Q400 Series
Aircraft.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with
respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein shall have the same
meaning as in the Agreement.
1.0
[***]
2.0
[***]
3.0
[***]
4.0
[***]
|
5.0
|
[***]
|
6.0
[***]
7.0
[***]
8.0
[***]
9.0
General
Terms
|
9.1
|
It
is agreed that Bombardier shall not be obligated to provide to
Buyer any
remedy under this Letter of Agreement which is a duplicate of any
other
remedy which has been provided to Buyer elsewhere under the Agreement.
|
|
9.2
|
Except
as may be otherwise agreed in Article 18 of the Agreement, the
provisions
of this Letter Agreement are personal to Buyer and shall not be
assigned
or otherwise disposed of by Buyer without the prior written consent
of
Bombardier, which consent shall not be unreasonably withheld.
|
|
9.3
|
This
Letter Agreement constitutes an integral part of the Agreement
and is
subject to the terms and conditions contained therein.
|
|
9.4
|
Should
there be any inconsistency between this Letter Agreement and the
Agreement
with respect to the subject matter covered by the terms hereof,
then this
Letter Agreement shall prevail.
|
|
9.5
|
In
the event of termination of the
Agreement, this Letter Agreement shall become automatically null
and void
with respect to all undelivered
Aircraft.
|
Yours
very truly,
Bombardier
Inc.
Acknowledged
and Accepted
BOMBARDIER
INC.
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines Corp.
Regional
Aircraft
Name:
[***] Per:
Xxxxxx
Xxxxxxx
Title:
Vice President,
Contracts
Title: President & Chief Executive Officer
Name:
[***]
Title: Manager,
Contracts
CUSTOMER
SUPPORT SERVICES
ANNEX
A
TECHNICAL
SUPPORT, SPARE PARTS, TRAINING AND TECHNICAL DATA
The
following Customer Support Services are those services to which reference
is
made in Article 3 of the Agreement.
ARTICLE
1 - TECHNICAL SUPPORT
|
1.1
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Factory
Service
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Bombardier
agrees to maintain or cause to be maintained the capability to
respond to
Buyer’s technical inquiries, to conduct investigations concerning
repetitive maintenance problems and to issue findings and recommend
action
thereon for as long as ten (10) Bombardier Q 400 Series aircraft
remain in
commercial air transport service worldwide.
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1.2
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Field
Service Representative
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1.2.1
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Services
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Bombardier
shall assign one (1) Field Service Representative (“FSR”) to Buyer’s main
base of operation or other location as may be mutually
agreed. [***]
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1.2.2
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Term
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Such
assignment shall be for [***]person-months,
and shall commence approximately one (1) month prior to the Delivery
Date
of the first Aircraft. The FSR assignment may be extended on
terms and conditions to be mutually agreed. [***]
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1.2.3
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Responsibility
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The
FSR’s responsibility shall be to provide technical advice to Buyer
for the
line maintenance and operation of the Aircraft systems and troubleshooting
during scheduled and unscheduled maintenance by Buyer’s designated
personnel (“FSR
Services”).
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1.2.4
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Start-up
Team
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To
assist
Buyer in the introduction of the Aircraft into revenue service, Bombardier
will
assemble a “Start-Up Team” at Buyer’s main base of operation or other location
as may be mutually agreed. The composition of this start-up team
shall be subject to discussion and could include operational, technical and/or
maintenance support personnel and flight instruction staff (“Start-up Team
Services”).
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1.2.5
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Term
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Such
Start-Up Team Services shall be for a period of up to [***]
person-months and shall commence at a mutually agreed schedule.
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1.2.6
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Travel
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If
requested by Buyer, the FSR and/or the Start Up team may, at Buyer’s
expense, travel to another location to provide technical advice
to Buyer.
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1.2.7
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Office
Facilities
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Buyer
shall furnish the FSR and the Start Up Team, at no charge to Bombardier,
suitable and private office facilities and related equipment including
desk, file cabinet, access to two telephone lines, facsimile and
photocopy
equipment conveniently located at Buyer’s main base of operation or other
location as may be mutually agreed.
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1.2.8
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Additional
Expenses
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Buyer
shall reimburse Bombardier (net of any additional taxes on such reimbursement)
the amount of any and all taxes (except taxes [***]on
the income of the FSR or the Start Up Team [***])
and fees of whatever nature, including any customs duties, withholding taxes
or
fees together with any penalties or interest thereon, paid or incurred by
Bombardier or the FSR or the Start Up Team, or other Bombardier employee
as a
result of or in connection with the rendering of the services.
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1.2.9
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Right
to Stop Work
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Bombardier
shall not be required to commence or continue the FSR or Start
Up Team
Services when:
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(a)
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there
is a labour dispute or work stoppage in progress at Buyer’s facilities;
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(b)
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there
exist war, risk of war or warlike operations, riots or insurrections;
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(c)
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there
exist conditions that are dangerous to the safety or health of
the FSR,
Start Up Team or other Bombardier employee; or
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(d)
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the
Government of the country where Buyer’s facilities are located or where
Buyer desires the FSR and/or Start Up Team to travel refuses the
Bombardier employee permission to enter said country or Buyer’s base of
operations.
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1.2.10
Work Permits and Clearances
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Buyer
shall [***]
airport security clearances required for the FSR, Start up Team
or other
Bombardier employee to permit timely accomplishment of the FSR
and/or
Start Up Team Services.
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1.3
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In-Service
Maintenance Data
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Buyer
agrees to provide to Bombardier in-service maintenance data in
order to
assist Bombardier in providing updates to Bombardier’s recommended
maintenance program. Buyer and Bombardier shall agree on
standards and frequency for communication of such data.
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1.4
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Additional
Services
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At
Buyer’s request Bombardier shall provide a proposal to provide such
additional support services as the parties may agree upon, which
may
include special investigations, maintenance and repair of the Aircraft.
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ARTICLE
2 - SPARE PARTS, GSE, TOOLS AND TEST EQUIPMENT
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2.1
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Definitions
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(a)
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“Bombardier
Parts”:
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any
spare parts, ground support equipment, tools and test equipment
which bear
an in-house Cage Code number in the Bombardier Provisioning Files.
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(b)
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“Illustrated
Parts Catalogue”:
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shall
mean a spare parts reference manual depicting assembly and component parts
lists
breakdowns and illustrations in disassembly sequence;
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(c)
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“Order”:
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any
order for Spare Parts issued by Buyer to Bombardier;
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(d)
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“Power
Plant Parts”:
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any
power
plant or power plant part or assembly carrying the power plant manufacturer’s
part number or any part furnished by the power plant manufacturer purchased
as
Spare Parts.
(e) “Spare
Parts”:
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all
materials, spare parts, assemblies, special tools and items of
equipment,
including ground support equipment, ordered for the Aircraft by
Buyer from
Bombardier. The term Spare Parts includes Bombardier Parts, Power
Plant
Parts and Vendor Parts;
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(f)
“Spare Parts Price Catalogue" :
shall
mean a list of spare parts prices periodically published by Bombardier
Inc.;
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(g)
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“Technical
Data”:
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shall
have the meaning attributed to it in Annex A Section 4.1;
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(h)
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“Vendor
Parts”:
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any
spare parts, ground support
equipment, tools and test equipment for the Aircraft which are not Bombardier
Parts or Power Plant Parts; [***]
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2.2
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Term
and Applicability
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The
term of this Annex A Article 2 shall become effective on the date
hereof
and shall remain in full force and effect with respect to the purchase
and
sale of Spare Parts so long as at least ten (10) of the Bombardier
Q 400
Series aircraft remain in commercial air transport service worldwide.
The
provisions of Annex A Sections 2.3, 2.7.5, 2.25 and Annex B Article
5.0
shall survive expiration or termination of this Agreement.
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2.3
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Order
Terms
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Terms
and conditions hereof shall apply to all Orders placed by Buyer
with
Bombardier in lieu of any terms and conditions in Buyer’s purchase orders.
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2.4
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Purchase
and Sale of Spare Parts
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2.4.1
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Agreement
to Manufacture and Sell
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Bombardier
shall manufacture, or procure, and make available for sale to Buyer
suitable Spare Parts in quantities sufficient to meet the reasonably
anticipated needs of Buyer for normal maintenance and normal spares
inventory replacement. Bombardier shall also maintain or cause
to be
maintained a shelf stock of certain Bombardier Parts selected by
Bombardier to ensure reasonable re-order lead times and emergency
support.
Bombardier shall also maintain or cause to be maintained a reasonable
quantity of Bombardier insurance parts. Insurance parts as used
herein
shall include, but not be limited to, dispatch-essential parts
such as
major flight control surfaces.
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2.5
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Agreement
to Purchase Bombardier Parts
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2.5.1
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Purchase
of Bombardier Parts
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In
consideration of Bombardier’s obligation under Annex A Section 2.4.1, during the
term stated in Annex A Section 2.2, Buyer agrees to purchase Bombardier Parts
only from Bombardier or from airlines operating the same type aircraft purchased
herein [***]. Buyer
may however purchase Bombardier Parts from any [***]
source whatsoever, redesign Bombardier Parts, or have them redesigned,
manufacture Bombardier Parts, or have them manufactured, under the following
conditions:
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(a)
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when
less than ten (10) aircraft of the type purchased hereunder are
operated
in scheduled commercial air transport service;
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(b)
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any
time Bombardier Parts are needed to effect emergency repairs on
the
Aircraft, provided that such purchase, redesign or manufacture
by or from
sources other than Bombardier allows Buyer to obtain Bombardier
Parts in
less time than Bombardier requires to furnish them; or
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(c)
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if
Buyer has notified Bombardier in writing that any Bombardier Parts
are
defective or unsatisfactory in use and if within a reasonable period
thereafter Bombardier has not provided a satisfactory resolution
or made
redesigned Bombardier Parts
available.
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2.5.2
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Buyer’s
Right to Purchase, Redesign or Manufacture
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Buyer’s
right to purchase, redesign or to have redesigned or manufacture
or to
have manufactured Bombardier Parts under the preceding Article
shall not
be construed as a granting of a license by Bombardier and shall
not
obligate Bombardier to disclose to anyone Technical Data or other
information nor to the payment of any license fee or royalty or
create any
obligation whatsoever to Bombardier and Bombardier shall be relieved
of
any obligation or liability with respect to patent infringement
in
connection with any such redesigned part. Buyer shall be
responsible for obtaining all regulatory authority approvals required
by
Buyer to repair the Aircraft using redesigned or manufactured Bombardier
Parts as described in the preceding Article. Any such
redesigned part shall be identified with Buyer’s part number only.
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2.5.3
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Notice
to Bombardier of Redesigned Parts
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If
Buyer redesigns or has had any Bombardier Parts redesigned, Buyer
shall
immediately thereafter advise Bombardier and make available [***]
to Bombardier and its affiliates any such redesigned part or manufacturing
process therefore or drawings thereof. If Bombardier requests,
Buyer shall negotiate with Bombardier, within sixty (60) calendar
days
after such redesigned part or manufacturing process therefore or
drawings
thereof are made available to Bombardier, for the granting to Bombardier
of the exclusive manufacturing rights of the redesigned part.
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2.6
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Purchase
of Vendor Parts & Power Plant Parts
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Bombardier
shall not be obligated to maintain a stock of Vendor Parts or Power
Plant
Parts. Bombardier may elect to maintain a spares stock of selected
Vendor
Parts and/or Power Plant Parts at its own discretion to support
provisioning and replenishment sales. Bombardier agrees to use
reasonable
efforts to require its vendors to comply with the terms and conditions
of
this Annex A Article 2 as they apply to Vendor Parts and Power
Plant
Parts. Vendor Parts and Power Plant Parts shall be delivered in
accordance
with the applicable vendor’s quoted lead-time plus Bombardier’s internal
processing time.
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2.7
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Spare
Parts Pricing
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2.7.1
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Spare
Parts Price Catalogue
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Prices
for commonly used Bombardier Parts stocked by Bombardier shall
be
published in the Spare Parts Price Catalogue. Bombardier shall
hold the
published prices firm for catalogue listed items for a period of[***]months
and shall provide at least [***]
calendar days notice prior to changing the published price.
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2.7.2
Bombardier Prices for Vendor Parts
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If
Buyer orders Vendor Parts from Bombardier, the price shall be as
published
in the Spare Parts Price Catalogue [***].
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2.7.3
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Quotations
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Price
and delivery quotations for items not listed in the Spare Parts
Price
Catalogue shall be provided at Buyer’s request by
Bombardier. Price quotations will be held firm for a period of
[***]
calendar days or as otherwise specified by
Bombardier. Responses to quotation requests will be provided
within ten (10) calendar days. Except for AOG Orders for
Bombardier Parts orders which shall be in accordance with Article
2.14.2
herein. [***].
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2.7.4
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Price
Applicability
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The
purchase price of Bombardier Parts shall be the applicable price
set forth
in the Spare Parts Price Catalogue at time of receipt by Bombardier
of
Buyer’s Order or as quoted by Bombardier to Buyer upon
request. If Buyer requests accelerated production, delivery or
special handling for Bombardier Parts not taken into account in
the price
set out in the Spare Parts Price Catalogue for such Bombardier
Parts,
Bombardier may increase the price from the original quotation to
cover any
additional costs to Bombardier resulting from such accelerated
production,
delivery or special handling.
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2.7.5
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Currency
and Taxes
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All
Spare Parts Price Catalogue and quotation prices shall be in U.S.
dollars
and exclusive of transportation, taxes, duties and licenses.
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Buyer
shall pay to Bombardier upon demand the amount of any sales, use, value-added,
excise or similar taxes imposed by any federal, provincial or local taxing
authority within Canada, and the amount of all taxes imposed by any taxing
authority outside Canada, required to be paid by Bombardier as a result of
any
sale, use, delivery, storage or transfer of any Spare Parts. If
Bombardier has reason to believe that any such tax is applicable, Bombardier
shall separately state the amount of such tax in its invoice. If a
claim is made against Bombardier for any such tax, Bombardier shall promptly
notify Buyer. [***]
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In
addition, Buyer shall pay to Bombardier on demand the amount of
any
customs duties required to be paid by Bombardier with respect to
the
importation by Buyer of any Spare Parts.
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2.7.6
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Vendor
Pricing
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Bombardier
shall use reasonable efforts to require its major vendors to maintain
any
published price for their parts for a period of at least[***]
months with a [***]calendar
day notice period prior to changing a published price.
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2.8
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Provisioning
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2.8.1
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Pre-provisioning/Provisioning
Conference
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A
pre-provisioning conference shall be convened on a date to be mutually
agreed between Buyer and Bombardier in order to:
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(i)
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discuss
the operational parameters to be provided by Buyer to Bombardier
which
Bombardier considers necessary for preparing its quantity recommendations
for initial provisioning of Spare Parts to be purchased from Bombardier
or
vendors (“Provisioning
Items”);
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(ii)
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review
Buyer’s ground support equipment and special tool requirements for the
Aircraft;
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(iii)
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discuss
the format of the provisioning documentation to be provided to
Buyer from
Bombardier for the selection of Provisioning Items; and
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(iv)
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arrive
at a schedule of events for the initial provisioning process, including
the establishment of a date for the initial provisioning conference
(“Initial Provisioning
Conference”) which shall be scheduled where possible at least
twelve (12) months prior to delivery of the first Aircraft.
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The
time and location of the pre-provisioning conference shall be mutually
agreed upon between the parties; however, Bombardier and Buyer
shall use
their best efforts to convene such meeting within thirty (30) days
after
execution of the Agreement.
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2.9
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Initial
Provisioning Documentation
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Initial
provisioning documentation for Bombardier Parts and Vendor Parts
shall be
provided by Bombardier as follows:
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(a)
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Bombardier
shall provide, as applicable to Buyer, no later than eighteen (18)
months
prior to the Scheduled Delivery Date of the first Aircraft, or
as may be
mutually agreed, the initial issue of provisioning files as required
by
ATA Specification 2000, Chapter 1 (as may be amended by Bombardier);
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Revisions
to this provisioning data shall be issued by Bombardier every [***]
calendar days until [***]
calendar days following the Delivery Date of the last Aircraft
or as may
be mutually agreed;
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(b)
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Bombardier
shall provide, as required by Buyer, all provisioning data files
defined
in Chapter 1 of ATA Specification 2000; and
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(c)
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the
Illustrated Parts Catalogue designed to support provisioning shall
be
issued concurrently with provisioning data files and revised at
every
[***]
calendar days until expiration of the revision service described
in Annex
A, Section 4.4.
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2.9.1
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Obligation
to Substitute Obsolete Spare Parts
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In
the event that, prior to delivery of the [***]Aircraft,
any Spare Part purchased by Buyer from Bombardier is rendered obsolete
or
unusable due to the redesign of the Aircraft or of any accessory,
equipment or part thereto (other than a redesign at Buyer’s request),
[***]. Bombardier
shall credit Buyer’s account with Bombardier with the price paid by Buyer
for any such obsolete or unusable Spare Part upon return of such
Spare
Parts to Bombardier by Buyer. [***]
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2.9.2
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Delivery
of Obsolete Spare Parts and Substitutes
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Obsolete
or unusable Spare Parts returned by Buyer pursuant to Annex A Section
2.9.1. shall be delivered to Bombardier at its plant in Ontario
or such
other destination as Bombardier may reasonably designate. Spare
Parts
substituted for such returned obsolete or unusable Spare Parts
shall be
delivered to Buyer from Bombardier’s plant in Ontario or such other
Bombardier shipping point as Bombardier may reasonably
designate. Bombardier shall pay the freight charges for the
shipment from Buyer to Bombardier of any such obsolete or unusable
Spare
Part and for the shipment from Bombardier to Buyer of any such
substitute
Spare Part.
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2.9.3
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Obligation
to Repurchase Surplus Provisioning Items
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During
a period [***]
after the Delivery Date of the first Aircraft, and ending [***]years
after such Delivery Date, Bombardier shall, upon receipt of Buyer’s
written request and subject to the exceptions in Annex A Section
2.9.4,
repurchase unused and undamaged Provisioning Items which: (i) were
recommended by Bombardier as initial provisioning for the Aircraft,
(ii)
were purchased by Buyer from Bombardier, and (iii) are surplus
to Buyer’s
needs.
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2.9.4
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Exceptions
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Bombardier
shall not be obligated under Annex A Section 2.9.3 to repurchase
any of
the following: (i) quantities of Provisioning Items in excess of
those
quantities recommended by Bombardier in its Recommended Spare Parts
List
(“RSPL”) for
the
Aircraft, (ii) Power Plant Parts, QEC Kits, standard hardware,
bulk and
raw materials, ground support equipment and special tools, (iii)
Provisioning Items which have become obsolete or have been replaced
by
other Provisioning Items as a result of (a) Buyer’s modification of the
Aircraft or (b) design improvement by the Aircraft manufacturer
or the
vendor (other than Provisioning Items which have become obsolete
because
of a defect in design if such defect has not been remedied by an
offer by
Bombardier or the vendor to provide no charge retrofit kits or
replacement
parts which correct such defect), and (iv) Provisioning Items which
become
surplus as a result of a change in Buyer’s operating parameters provided
to Bombardier pursuant to Annex A Section 2.8, which were the basis
of
Bombardier’s initial provisioning recommendations for the Aircraft.
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2.9.5
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Notification
and Format
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Buyer
shall notify Bombardier, in writing, when Buyer desires to return
Provisioning Items which Buyer’s review indicates are eligible for
repurchase by Bombardier under the provisions of Annex A Section
2.9.3. Buyer’s notification shall include a detailed summary,
in part number sequence, of the Provisioning Items Buyer desires
to
return. Such summary shall be in the form of listings as may be
mutually agreed between Bombardier and Buyer, and shall include
part
number, nomenclature, purchase order number, purchase order date
and
quantity to be returned.
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Within
five (5) business days after receipt of Buyer’s notification Bombardier
shall advise Buyer, in writing, when Bombardier’s review of such summary
from Buyer will be completed. [***]
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2.9.6
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Review
and Acceptance by Bombardier
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Upon
completion of Bombardier’s review of any detailed summary submitted by
Buyer pursuant to Annex A Section 2.9.5, Bombardier shall issue
to Buyer a
Material Return Authorization notice (“MRA”) for
those
Provisioning Items Bombardier agrees are eligible for repurchase
in
accordance with Annex A Section 2.9.3. Bombardier will advise
Buyer of the reason that any Provisioning Items included in Buyer’s
detailed summary are not eligible for return. The MRA notice
shall state the date by which Provisioning Items listed in the
MRA notice
must be redelivered to Bombardier and Buyer shall arrange for shipment
of
such Provisioning Items accordingly.
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2.9.7
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Price
and Payment
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The
price of each Provisioning Item repurchased by Bombardier pursuant
to
Annex A Section 2.9.6 will be the original invoice price thereof.
Bombardier shall pay the repurchase price by issuing a credit memorandum
in favour of Buyer [***]which
may be applied against amounts due Bombardier for the purchase
of Spare
Parts and services.
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2.9.8
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Return
of Surplus Provisioning Items
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Provisioning
Items repurchased by Bombardier pursuant to Annex A Section 2.9.6
shall be
delivered to Bombardier Free Carrier (Incoterms), at its plant
in Ontario,
or other such destination as Bombardier may reasonably designate.
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2.9.9
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Obsolete
Spare Parts and Surplus Provisioning Items - Title and Risk of
Loss
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Title
to and risk of loss of any obsolete or unusable Spare Parts returned
to
Bombardier pursuant to Annex A Section 2.9.8 shall pass to Bombardier
upon
delivery thereof to Bombardier. Risk of loss of any Spare Parts
substituted for an obsolete or unusable Spare Part pursuant to
Annex A
Section 2.9.1 shall pass to Buyer upon delivery thereof to Buyer.
Title to
and risk of loss of any Provisioning Items repurchased by Bombardier
pursuant to Annex A Section 2.9.3 shall pass to Bombardier upon
delivery
thereof to Bombardier.
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With
respect to the obsolete or unusable Spare Parts which may be returned
to
Bombardier and the Spare Parts substituted therefore, pursuant
to Annex A
Section 2.9.1, and the Provisioning Items which may be repurchased
by
Bombardier, pursuant to Annex A Section 2.9.3, the party which
has the
risk of loss of any such Spare Part or Provisioning Item shall
have the
responsibility of providing any insurance coverage thereon desired
by such
party.
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2.10
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Procedure
for Ordering Spare Parts
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Orders
for Spare Parts may be placed by Buyer to Bombardier by any method
of
order placement (including but not limited to SITA, ARINC, telecopier,
letter, facsimile, telephone or hard copy purchase order).
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2.10.1
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Requirements
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Orders
shall include at a minimum order number, part number, nomenclature,
quantity, delivery schedule requested, shipping instructions and
Bombardier’s price, if available. Buyer agrees that orders
placed with Bombardier shall conform to the requirements and procedures
contained in ATA Specification 2000, as applicable to Buyer.
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2.10.2
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Processing
of Orders
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Upon
acceptance of any Order, unless otherwise directed by Buyer, Bombardier
shall, if the Spare Parts are in stock, proceed to prepare the
Spare Parts
for shipment to Buyer. If Bombardier does not have the Spare Parts
in
stock, Bombardier shall proceed to acquire or manufacture the Spare
Parts.
Purchase order status and actions related to the shipment of Spare
Parts
shall be generally consistent with the provisions of the World
Airline
Suppliers Guide, as applicable to Buyer.
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2.10.3
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Changes
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Bombardier
[***]
corrections, changes in the design, part number substitutions and
consequent price adjustments. Corrections, changes,
substitutions and price adjustments which [***]
may be made only with Buyer’s consent, which consent shall conclusively be
deemed to have been given [***]Buyer
providing written notice of [***]
objection within fifteen (15) business days after receipt of Bombardier’s
notice. In case of any objection, the affected Spare Part will
be deemed to be deleted from Buyer’s Order.
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2.11
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Packing
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All
Spare Parts ordered shall receive standard commercial packing suitable
for
export shipment via air freight. Such standard packing will generally
be
to ATA 300 standards as amended from time to time. All AOG orders
will be
handled, processed, packed and shipped separately.
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2.12
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Packing
List
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Bombardier
shall insert in each shipment a packing list/release note itemized
to
show:
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(i)
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the
contents of the shipment,
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(ii)
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the
approved signature of Bombardier’s TC authority attesting to the
airworthiness of the Spare Parts.
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(iii)
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value
of the shipment for customs clearance if required.
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2.13
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Container
Marks
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Upon
Buyer’s request each container shall be marked with shipping marks as
specified on the Order. In addition Bombardier shall, upon
request, include in the markings: gross weight and cubic
measurements.
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2.14
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Delivery
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2.14.1
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Delivery
Point
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Spare
Parts shall be delivered to Buyer in one of the following manners
at
Bombardier’s sole option:
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(i)
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Free
Carrier (Incoterms 2000) Bombardier’s plant in Ontario, Canada; or
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|
|
(ii)
|
Free
Carrier (Incoterms 2000) other Bombardier depots or shipping points;
or
|
|
|
(iii)
|
Free
Carrier (Incoterms 2000) vendor’s or subcontractor’s plant.
|
|
2.14.2
|
Delivery
Time
|
|
|
Bombardier
shall use reasonable efforts so that shipment of Bombardier Parts
to Buyer
be as follows:
|
|
|
(a)
|
AOG
Orders
|
|
|
Ship
AOG Orders within four (4) hours of receipt of Order. Buyer’s affected
Aircraft factory production number shall be required on AOG Orders;
|
|
|
(b)
|
Critical
Orders (A1)
|
|
|
Ship
critical Orders within twenty-four (24) hours of order receipt;
|
|
|
(c)
|
Expedite
Orders (A2)
|
|
|
Ship
expedite Orders within seven (7) calendar days of order receipt;
|
|
|
(d)
|
Initial
Provisioning Orders
|
|
|
Prior
to the Delivery Date of the first Aircraft or as may be mutually
agreed;
and
|
|
|
(e)
|
Other
Orders
|
|
|
Shipment
of stock items shall be approximately thirty (30) calendar days
after
Bombardier’s receipt of Buyer’s Order. Shipment of non-stock
items shall be in accordance with quoted lead times or lead times
published in the current Spare Parts Price Catalogue or provisioning
data.
|
|
|
[***]
|
|
2.15
|
Collect
Shipments
|
|
|
Where
collect shipments are not deemed practicable by Bombardier, prepaid
freight charges, insurance and all other costs paid by Bombardier
shall be
paid by Buyer promptly upon presentation to Buyer of invoices covering
the
same.
|
|
2.16
|
Freight
Forwarder
|
|
|
If
Buyer elects to use the services of a freight forwarder for the
onward
movement of Spare Parts, Buyer agrees to release Bombardier from
and
indemnify it for any liability for any fines or seizures of Spare
Parts
imposed under any governmental Goods in Transit regulations. Any
such
fines levied against Bombardier will be invoiced to Buyer and any
Spare
Parts seized under such regulations will be deemed to be received,
inspected, and accepted by Buyer at the time of seizure.
|
|
2.17
|
Reimbursement
of Expenses
|
|
|
If
Bombardier gives Buyer written notice that an Order is ready for
shipment
and shipment is delayed more than thirty (30) days at Buyer’s request or
without Bombardier’s fault or responsibility, Buyer shall promptly
reimburse Bombardier upon demand for all costs and expenses, including
but
not limited to reasonable amounts for storage, handling, insurance
and
taxes, incurred by Bombardier as a result of such delay.
|
|
2.18
|
Title
and Risk of Loss
|
|
|
Property
and title to the Spare Parts will pass to Buyer upon payment for
the Spare
Parts in full. Until payment in full for Spare Parts, (a) title
to them
will not pass to Buyer, and (b) Bombardier maintains a purchase
money
security interest in them. Risk of loss of the Spare Parts will
pass to
the Buyer upon delivery by Bombardier. With respect to Spare Parts
rejected by Buyer pursuant to Annex A Section 2.20, risk of loss
shall
remain with Buyer until such Spare Parts are re-delivered to Bombardier.
|
|
|
Bombardier
agrees to notify Buyer when material is shipped and shall provide
carrier’s reference information (i.e., waybill number).
|
|
2.19
|
Inspection
and Acceptance
|
|
|
All
Spare Parts shall be subject to inspection by Buyer at destination.
Use of
Spare Parts or failure of Buyer to give notice of rejection or
non-conformance within thirty (30) days after receipt shall constitute
acceptance. Buyer’s remedies for defects discovered before acceptance are
exclusively provided for in Annex A Section 2.20 herein.
|
|
2.20
|
Rejection
|
|
|
Any
notice of rejection referred to in Annex A Section 2.19 shall specify
the
reasons for rejection. If Bombardier concurs with a rejection,
Bombardier
shall, at its option, correct, repair or replace the rejected Spare
Parts.
Buyer shall, upon receipt of Bombardier’s written instructions and
Material Return Authorization (“MRA”) number,
return
the rejected Spare Parts to Bombardier at its specified plant,
or other
destination as may be mutually agreeable. The return of the
rejected Spare Parts to Bombardier and the return or delivery of
a
corrected or repaired rejected Spare Part or any replacement for
any such
Spare Part to Buyer shall be at Bombardier’s expense. Any
corrected, repaired or replacement Spare Parts shall be subject
to the
provisions of this Agreement.
|
|
2.21
|
Payment
|
|
|
Payment
terms shall be net thirty (30) calendar days of invoice date for
established open accounts. Any overdue amount shall bear interest
from the
due date until actual payment is received by Bombardier at an annual
rate
of interest equal to the U.S. prime interest rate as established
from time
to time by the Chase Manhattan Bank, N.A., or its successor, plus
two
percent (2%) calculated and compounded monthly [***].
|
|
2.22
|
Payment
for Provisioning Items
|
Payment
for Provisioning Items shall be in accordance with 2.21 above.
|
2.23
|
Modified
Terms of Payment
|
|
|
Bombardier
reserves the right to alter the terms of payment:
|
|
|
(i)
|
at
any time by giving Buyer thirty (30) days’ prior written notice of the new
terms, and
|
|
|
(ii)
|
without
prior notice if Buyer fails to pay when due an amount Buyer owes
under any
agreement with Bombardier.
|
|
2.24
|
Regulations
|
|
|
Buyer
shall comply with all applicable monetary and exchange control
regulations
and shall obtain any necessary authority from the governmental
agencies
administering such regulations to enable Buyer to make payments
at the
time and place and in the manner specified herein.
|
|
2.25
|
Warranty
|
|
|
The
warranty applicable to Spare Parts is set forth in Annex B hereto.
|
|
2.26
|
Cancellation
of Orders
|
|
|
Except
as otherwise may apply to initial provisioning, if Buyer cancels
an Order
[***]
Bombardier, at its option, shall be entitled to recover, as liquidated
damages, an amount based upon the following parameters:
|
|
|
(a)
|
if
work accomplished on the Order has been limited to Bombardier Spares
Department, or the part has been identified as “shelf stock” in the Spare
Parts Price Catalogue, no cancellation charges shall be made;
|
|
|
(b)
|
if
production planning has been completed on the Order and shop orders
have
been written, but no shop time or material charges have been made
against
the Order, the cancellation charge shall be ten percent (10%) of
the
price;
|
|
|
(c)
|
if
shop time or material charges have been made against the Order,
the
cancellation charge shall be based on the cost of such time and
materials,
plus overhead; and
|
|
|
(d)
|
if
the Spare Parts covered by the Order can be absorbed into Bombardier’s
inventory without increasing Bombardier’s normal maximum stock level, no
cancellation charges shall be made.
|
|
2.27
|
Lease
|
|
|
Bombardier
shall select and make available certain Insurance Parts for lease,
subject
to availability and Buyer agreeing to the terms and conditions
as set out
in Bombardier’s standard Master Component Lease Agreement.
|
|
2.28
|
Additional
Terms and Conditions
|
|
|
Bombardier’s
conditions of sale are deemed to incorporate the terms and conditions
stated herein. Additional terms and conditions applicable at
time of receipt of each order from Buyer may be added providing
such terms
and conditions do not conflict with the terms and conditions provided
herein. Such additional terms and conditions shall be provided
to Buyer at least [***]
calendar days prior to their effective date.
|
ARTICLE
3 - TRAINING
3.1
General Terms
|
3.1.1
|
The
objective of the training programs (the “Programs”) described
in
this Agreement is to familiarize and assist Buyer’s personnel in the
introduction, operation, and maintenance of the Aircraft.
|
|
3.1.2
|
Bombardier
shall offer the Programs to Buyer in the English language, at a
Bombardier
designated facility. At Buyer’s request, the Programs (excluding simulator
and devices) may be conducted at Buyer’s facility in which case Buyer
shall be responsible for all costs associated with such on-site
training.
The Programs shall be completed prior to the Delivery Date of the
last
Aircraft purchased herein.
|
|
3.1.3
|
Buyer
shall be responsible for all travel and living expenses (including
local
transportation) of Buyer’s personnel incurred in connection with the
Programs.
|
|
3.1.4
|
The
Programs shall be designed to reflect the model and/or configuration
of
the Aircraft and may include differences training to identify such
configuration or model. Manuals or other training material which
are
provided during the Programs exclude revision service.
|
|
3.1.5
|
The
Programs are designed for candidates who meet the following minimum
prerequisites:
|
|
|
Pilots
|
|
|
(a)
|
hold
airplane multi-engine rating;
|
|
|
(b)
|
have
recent multi-crew experience;
|
|
|
(c)
|
hold
valid instrument flight rating;
|
|
|
(d)
|
hold
valid medical certificate;
|
|
|
(e)
|
have
a functional comprehension of the English language;
|
|
|
(f)
|
captains
hold current and valid ATP license or equivalent (minimum of 3,000
hours
recommended); and
|
|
|
(g)
|
first
officers hold current and valid commercial license or equivalent
(minimum
of 1,500 hours recommended).
|
|
|
Flight
Attendants
|
|
|
(a)
|
qualified
flight attendant with previous experience; or
|
|
|
(b)
|
hold
recent flight attendant training course certificate including fire
fighting training, first aid training, in-flight emergency training,
safety procedures training and crew communications training; and
|
|
|
(c)
|
have
a functional comprehension of the English language.
|
|
|
Flight
Dispatchers
|
|
|
(a)
|
qualified
flight dispatcher with previous experience; or
|
|
|
(b)
|
familiar
with aircraft performance, weight and balance and flight planning;
and
|
|
|
(c)
|
have
a functional comprehension of the English language.
|
|
|
Maintenance
Technicians
|
|
|
(a)
|
hold
a valid AME license or equivalent, or have sufficient knowledge
and
experience (minimum three (3) years experience recommended);
|
|
|
(b)
|
have
experience with digital communications, glass cockpit and built-in
test
equipment; and
|
|
|
(c)
|
have
a functional comprehension of the English language.
|
|
3.1.6
|
Prior
to commencement of the Programs, upgrade training can be arranged
for
Buyer’s personnel who do not meet the above minimum
requirements. Any such upgrade training shall be provided upon
terms and conditions to be mutually agreed.
|
|
3.1.7
|
Should
any of Buyer’s personnel who do not meet the above minimum requirements
encounter problems during their training, any additional training
or costs
(such as costs for interpreters) shall be borne by Buyer.
|
|
3.1.8
|
A
training conference shall be held, as soon as practical, prior
to the
Scheduled Delivery Date of the first Aircraft to Buyer, or as may
be
otherwise agreed, to establish the content and schedule of the
Programs.
|
|
|
3.2
Flight Crew Training
|
|
3.2.1
|
Flight
Crew Ground Training
|
|
|
Bombardier
shall, with each
Aircraft delivered,
provide
TC or FAA approved
[***]training
for up to [***]pilots
who meet the minimum entry
requirements. Each standard course shall consist of up to
[***]hours
of classroom instruction,
which may include Computer Based Training (CBT) and the following
Systems
Integration Training: Electronic Flight Instrument Training (EFIS),
Cockpit Procedures Mock-up (CPM) and Cockpit Procedures Training
(CPT). [***]Bombardier
shall furnish each of
Buyer’s pilots attending the course one (1) copy of the Pilot Training
Manuals (without revision service). [***]
|
|
3.2.2
|
Recurrent
Pilot Training
|
|
|
Bombardier
shall, upon Buyer’s request, assist in arranging recurrent pilot training
at FlightSafety Canada, or at FlightSafety International in Seattle,
Washington or Farnbourgh, England.
|
|
3.2.3
|
Flight
Attendant Course
|
Bombardier
shall provide a familiarization course for up to [***]
of Buyer's flight attendant personnel who meet the minimum prerequisites.
This
course presents information on pertinent Aircraft cabin systems, the operation
of the passenger safety and emergency equipment and emergency procedures
training. Bombardier shall furnish for each participant in this
course [***]. Buyer
shall assist Bombardier in the development of the Flight Attendant Manual
to
incorporate Buyer’s specific equipment and procedures. Bombardier
will not be responsible for local FAA approvals on behalf of the
Buyer. At the conclusion of the course, Buyer shall [***].
The standard course duration is for a maximum of five (5) training
days.
|
3.3
|
Maintenance
Training
|
|
3.3.1
|
General
|
|
|
The
Maintenance Training shall be designed to meet the requirements
of the TC
for an Aircraft Maintenance Engineer License (AME-M, AME-E) or
FAA
equivalent. The training is also suitable for maintenance instructors,
supervisory personnel and senior maintenance engineers or mechanics.
|
|
|
Buyer’s
personnel attending Bombardier’s maintenance training courses shall
receive a Maintenance Training Manual (without revision service)
which is
used during the training. Maintenance Training shall consist of
classroom instruction supported by appropriate illustrations and
maintenance training aids, [***]. Maintenance
Training shall include escorted tours of aircraft production and
flight
line areas whenever possible.
|
|
3.3.2
|
Initial
Maintenance Course
|
|
|
Bombardier
shall, with each Aircraft delivered, provide first line maintenance
training for up to [***]
of Buyer’s qualified personnel. The course consists of
instruction pertaining to the entire Aircraft and its systems covering
systems familiarization, servicing and maintenance, engine and
propeller
installation and controls rigging. [***] The
course. It includes instruction in the procedures mock-up
followed by six (6) hours in the flight simulator to provide ground
running and taxiing training. If practical experience is
provided using Buyer's Aircraft, Buyer shall be responsible for
the cost
of fuel, oil, taxes, insurance, maintenance and any other associated
expenses required for the Aircraft during the maintenance initial
course.
The course duration shall be for a maximum twenty (20) working
days.
|
|
3.3.3
|
Avionics
Maintenance Course
|
|
|
[***]The
Avionics Maintenance Course consists of instruction chiefly pertaining
to
the electrical, pitot static, navigation, communications, auto
flight, and
other avionics systems of the Aircraft. Practical experience is
provided using a hands-on training device [***].
If practical experience is provided using Buyer’s Aircraft, Buyer shall be
responsible for the cost of fuel, oil, taxes, insurance, maintenance
and
any other associated expenses required for the Aircraft during
the
avionics maintenance course. The standard course duration
is for a maximum of fifteen (15) training days.
|
|
3.3.4
|
Specialist
Courses
|
|
|
Bombardier
shall at Buyer’s request, provide a proposal for specialist courses which
will be derived from Bombardier’s standard courses.
|
|
3.3.5
|
Vendor
Training
|
|
|
In
general there is no charge for Bombardier vendor training, however,
travel
and accommodation costs are borne by Buyer where the training is
provided
at the vendor’s facility. Vendor training is desirable to
support additional shop maintenance functions such as wheels, brakes
and
engine shops. If requested by Buyer, Bombardier shall assist Buyer
to
obtain such vendor training.
|
|
3.4
|
Insurance
|
|
3.4.1
|
Buyer
shall at all times during[***]
secure and maintain in effect, at its own expense, insurance policies
covering the Aircraft including without limitation:
|
|
|
(a)
|
liability
insurance covering public liability, passenger, crew, property
and cargo
damage, including war and [***], in
amounts not less than [***]for
any single occurrence;
|
|
|
(b)
|
all
risk aircraft hull and engine insurance for an amount which is
not less
than its then [***]
|
|
3.4.2
|
The
liability policy shall name Bombardier (and its [***])
as additional insured[***] The
hull policy shall contain a [***]in
favour of Bombardier (and its [***]). All
insurance policies shall provide for payments despite any
misrepresentations or breach of warranty by any person (other than
the
assured receiving payments) and shall not be subject to any offset
by any
other insurance carried by Bombardier except that Buyer shall not
be
required to provide insurance with respect to the manufacturing,
repair
and maintenance activities of Bombardier (and of its affiliates)
and the
related potential liability (product or otherwise) arising therefrom[***]
|
|
ARTICLE
4 - TECHNICAL DATA
|
|
4.1
|
Technical
Data
|
|
4.1.1
|
Technical
Data Provided
|
|
|
Bombardier
shall furnish to Buyer the Technical Data described in Attachment
“A”
hereto (the “Technical Data”) in the then current available medium in
quantities specified in Attachment A. The Technical Data shall
be in the
English language and in accordance with Specification ATA 100 Revision
34,
as applicable shall provide information on items manufactured according
to
Bombardier’s detailed design and in those units of measures used in the
Specification or as may otherwise be required to reflect Aircraft
instrumentation as may be mutually agreed.
|
|
4.1.2
|
Additional
Technical Data
|
|
|
Any
additional Manual(s) and associated revisions purchased over and
above
those listed herein, shall be subject to the terms and conditions
specified in Bombardier’s “Manual Status and Price List”.
|
|
4.2
|
Shipment
|
|
|
All
Technical Data furnished hereunder shall be delivered to Buyer
Free
Carrier (Incoterms) Bombardier’s designated facilities and at a time to be
mutually agreed to between Buyer and Bombardier.
|
Buyer’s
shipping address and contact information is as follows:
|
|
Name:
|
|
|
Address:
|
|
|
Contact:
|
|
|
Phone
#:
|
|
|
Fax
#:
|
|
|
Shipping
Account Number:
|
|
Carrier:
|
|
|
Account
Number:
|
|
4.3
|
Proprietary
Technical Data
|
|
|
It
is understood and Buyer acknowledges that the Technical Data provided
herein is proprietary to Bombardier and/or its vendors. All rights
to
copyright belong to Bombardier and/or its vendors and the Technical
Data
shall be kept confidential by Buyer. Buyer agrees to use the Technical
Data solely to maintain, operate, overhaul or repair the Aircraft
or to
make installation or alteration(s) thereto allowed by Bombardier.
|
|
|
Technical
Data shall not be disclosed to third parties or used by Buyer or
furnished
by Buyer for the design or manufacture of any Aircraft or Spare
Parts
including Bombardier Parts or items of equipment, except when manufacture
or redesign is permitted under the provisions of Annex A Section
2.5
hereof or for the maintenance of the Aircraft and then only to
the extent
and for the purposes expressly permitted therein, and provided
further the
recipient shall enter into Standard Form Non-Disclosure and Data
Licensing
Agreement.
|
4.4
Revision Service
|
|
.
|
Bombardier
will provide Buyer with revision service commencing upon delivery of the
first
Technical Data to Buyer and shall continue for[***]years
following delivery of
Buyer’s first Aircraft. Subsequent revision service shall be provided dependent
upon incorporation of Bombardier issued Service Bulletins.
|
4.4.1
|
Revisions
to the Technical Data to reflect the Aircraft at Delivery Date
shall be
provided to Buyer within six (6) months following the Delivery
Date of
each of the Aircraft, respectively.
|
|
4.4.2
|
Provided
the revision service is being supplied under the terms of this
Agreement
or by subsequent purchase order, Bombardier shall incorporate in
the
applicable documents all applicable Bombardier originated Service
Bulletins, any Bombardier originated changes and Airworthiness
Directives.
The manuals shall then contain both the original and revised
configuration.
|
|
4.5
|
Passenger
Information Cards
|
Bombardier
will provide one (1) reproducible master for the preparation of passenger
information cards. For an additional cost, subject to negotiation,
Bombardier will provide, in Bombardier’s standard format, laminated passenger
information cards in quantities requested.
4.6
Vendor Manuals
All
vendor manuals and revisions will be shipped directly by vendors to
Buyer. [***].
ATTACHMENT
A
|
Available
Formats
|
||||||
|
Dash
8 Series 400
|
“Supplied
as "Fly-away" with each Aircraft
|
PSM
No.
|
Total
Quantity
|
Paper
|
PDF
CD
|
SGML
CD
|
|
PUBLICATION
TITLE
|
||||||
|
Airplane
Operating Manual (AOM)
|
[***]
|
1-84-1
|
[***]
|
X
|
X
|
|
|
Powerplant
Build-up Manual (PPBM)
|
1-84-10
|
[***]
|
X
|
|||
|
Airport
Planning Manual (APM)
|
1-84-13
|
[***]
|
X
|
|||
|
Crash-Fire-Rescue
Manual (CFRM)
|
1-84-14
|
[***]
|
X
|
|||
|
Master
Minimum Equipment List (MMEL inc. MMELP)
|
1-84-16
|
[***]
|
X
|
|||
|
Maintenance
Facilities and Equipment Planning Manual (MFEPM)
|
1-84-17
|
[***]
|
X
|
|||
|
Consumable
Products Manual (CPM)
|
1-84-18
|
[***]
|
X
|
|||
|
Airplane
Flight Manual (AFM)
|
[***]
|
1-84-1A
|
[***]
|
X
|
X
|
|
|
Quick
Reference Handbook (QRH)
|
[***]
|
1-84-1B
|
[***]
|
X
|
X
|
|
|
Aircraft
Maintenance Manual (AMM) (incl. PWC Maint. Manual)
|
1-84-2
|
[***]
|
||||
|
Ramp
Servicing Manual (RSM)
|
1-84-2S
|
[***]
|
X
|
|||
|
Illustrated
Tool & Equipment Manual (ITEM)
|
1-84-2T
|
[***]
|
X
|
|||
|
Wiring
Manual (WM)
|
1-84-2W
|
[***]
|
||||
|
Structural
Repair Manual (SRM)
|
1-84-3
|
[***]
|
||||
|
Aircraft
Illustrated Parts Catalogue (AIPC)
|
1-84-4
|
[***]
|
||||
|
Fault
Isolation Manual (FIM)
|
1-84-23
|
[***]
|
||||
|
Component
Maintenance Manual (CMM)
|
1-84-6
|
[***]
|
||||
|
Maintenance
Requirements Manual (MRM)
|
1-84-7
|
[***]
|
X
|
|||
|
Maintenance
Planning Document (MPD)
|
1-84-7P
|
[***]
|
||||
|
Maintenance
Task Cards Manual (MTCM)
|
1-84-7TC
|
[***]
|
||||
|
Non-Destructive
Test Manual (NDT)
|
1-84-7A
|
[***]
|
X
|
|||
|
Weight
and Balance Manual (WBM)
|
[***]
|
1-84-8
|
[***]
|
X
|
X
|
|
|
Cargo
Loading Manual (CLM)
|
1-84-8A
|
[***]
|
X
|
|||
|
Aircraft
Recovery Manual (ARM)
|
1-84-9
|
[***]
|
X
|
|||
|
Corrosion
Prevention Manual (CPM)
|
1-GEN-5
|
[***]
|
X
|
|||
|
Service
Bulletins (SB)
|
-
|
[***]
|
X
|
|||
|
Service
Letters (SL)
|
-
|
[***]
|
X
|
|||
|
X
= Format Not
Available
|
||||||
ANNEX
B
WARRANTY
AND SERVICE LIFE POLICY
ARTICLE
1 - WARRANTY
This
Annex B sets out the warranty referred to in Article 3 of the Agreement and
Section 2.25 of Annex A of the Agreement.
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1.1
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Warranty
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1.1.1
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Subject
to Annex B Section 1.9 and 1.10, and Article 2.0, Bombardier warrants
that, at the date of delivery of the Aircraft:
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(a)
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the
Aircraft shall conform to the Specification, except that any matter
stated
in the Specification as type characteristics, estimates or approximations
is excluded from this Warranty;
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(b)
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the
Aircraft shall be free from defects caused by the failure of Bombardier
to
install a Vendor Part or Power Plant Part in accordance with reasonable
instructions of the vendor, except for Bombardier Parts purchased
as spare
parts, the warranty period shall be twelve (12) months from the
date of
delivery of such Bombardier Spare parts;
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(c)
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the
Bombardier Parts installed on the Aircraft shall be free from defects
in
material or workmanship; and
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(d)
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the
Bombardier Parts installed on the Aircraft shall be free from defects
in
design, having regard to the state of the art as of the date of
such
design.
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1.1.2
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Subject
to Annex B Sections 1.9 and 1.10 and Article 2.0, the warranty
set forth
in Annex B Sections 1.1.1(c) and (d) above shall also be applicable
to
Bombardier Parts purchased as Spare Parts, except that, notwithstanding
Annex B Section 1.2, this warranty for Bombardier Parts purchased
as Spare
Parts shall remain in effect for any defect covered by such warranty
becoming apparent during the twelve (12) months from the date of
delivery
of such Bombardier Part.
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1.1.3
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Bombardier
further warrants that, at the time of delivery, the Technical Data
shall
be free from error.
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1.2
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Warranty
Period
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1.2.1
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The
warranty set forth in Annex B Section 1.1 shall remain in effect
for any
defect covered by the Warranty (a “Defect”) becoming
apparent during the following periods (individually, the “Warranty Period”):
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(a)
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for
failure to conform to the Specification and in the installation
referred
to in Annex B Section 1.1.1(a) and 1.1.1(b), forty-eight (48) months
from
the Delivery Date;
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(b)
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for
those Defects in material or workmanship in Bombardier Parts referred
to
in Annex B Section 1.1.1(c) and 1.1.2, forty-eight (48) months
from the
Delivery Date;
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(c)
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for
those Defects in design referred to in Annex B Section 1.1.1(d),
forty-eight (48) months from the Delivery Date; and
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(d)
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for
errors in the Technical Data referred to in Annex B Section 1.1.3,
twelve
(12) months from the date of delivery of the applicable Technical
Data.
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1.3
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Repair,
Replacement or Rework
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As
to each matter covered by this warranty, Bombardier’s sole obligation and
liability is expressly limited to, at Bombardier’s election, correction by
the repair, replacement or rework of the defective part or item
of
Technical Data [***] The repaired, replaced or reworked part or
item of Technical Data which is the subject of the warranty claim
shall
then be warranted under the same terms and conditions for the then
unexpired portion of the Warranty Period.
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In
the case of a Defect relating to non-conformance with the Specification,
Bombardier shall correct that Defect in the equipment item or part
in
which the Defect appears, except that Bombardier will not be obligated
to
correct any Defect which has no material adverse effect on the
maintenance, use or operation of the Aircraft.
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1.4
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Claims
Information
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Bombardier’s
obligations hereunder are subject to a warranty claim to be submitted
in
writing to Bombardier’s warranty administrator, which claim shall include
the following information or any other information that may be
reasonably
required:
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(a)
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the
identity of the part or item involved, including the Part number,
serial
number if applicable nomenclature and the quantity claimed to be
defective;
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(b)
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the
manufacturer’s serial number of the Aircraft from which the part was
removed;
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(c)
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the
date the claimed Defect became apparent to Buyer;
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(d)
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the
total flight hours (and cycles if applicable) accrued on the part
at the
time the claimed Defect became apparent to Buyer; and
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(e)
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a
description of the claimed Defect and the circumstances pertaining
thereto.
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1.5
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Warranty
Claim Procedure
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In
order to enable a Warranty Claim to be adequately processed, each
claim
shall be addressed as follows:
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(a)
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Buyer
shall send a written warranty claim notice (the “Warranty Notice”) by
facsimile or e-mail to Bombardier's warranty department within
[***] days
following the date that any Defect giving rise to a warranty claim
becomes
apparent to Buyer;
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(b)
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Buyer
shall consult the Supplier Information Manual available on-line
via RACS
website (xxx.xxxx.xxxxxxxxxx.xxx) for the location to which the
Bombardier
Part shall be returned;
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(c)
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if
requested by Bombardier, Buyer shall return the defective part,
as
directed by Bombardier, within a period of [***] days following
Bombardier’s request for the return of such part; and
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[***]
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1.6
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Timely
Corrections
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Bombardier
shall make the repair, replacement or rework, following receipt
of the
defective part or item, [***] as applicable, with reasonable care
and
dispatch.
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1.7
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Labour
Reimbursement
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For
correction of Defects Bombardier shall establish a reasonable estimate
for
the labour hours required for the repair, replacement or rework
of the
defective Bombardier Part and, if the repair, replacement or rework
is
performed by Buyer, Bombardier shall reimburse Buyer for Bombardier
estimated hours or for Buyer’s actual labour hours, whichever is less, for
the repair, replacement or rework of the defective Bombardier Part
excluding any work necessary to gain access to and to re-install
said
Bombardier Part. Such reimbursement shall be based upon Buyer’s
direct labour rate per man-hour plus burden rate of fifty percent
(50%),
subject to annual review and adjustment of such labour rate as
mutually
agreed; provided, however, that this amount shall not exceed fifty
percent
(50%) of the then current Bombardier published selling labour rate.
[***].
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1.8
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Approval,
Audit, Transportation and Waiver
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All
warranty claims shall be subject to audit and approval by Bombardier.
Bombardier will use reasonable efforts to advise in writing the
disposition of Buyer’s warranty claim within thirty (30) days following
the receipt of the claim and (if requested) return of the defective
Bombardier Part to Bombardier’s designated facility. Bombardier
shall notify Buyer of Bombardier’s disposition of each claim.
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Buyer
shall pay all costs of transportation of the defective part from
Buyer to
Bombardier and [***] all costs of transportation of the repaired,
corrected or replacement parts back to Buyer.
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1.9
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Limitations
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1.9.1
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Bombardier
shall be relieved of and shall have no obligation or liability
under this
warranty if:
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(a)
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the
Aircraft was operated with any products or parts not specifically
approved
by Bombardier, unless Buyer furnishes reasonable evidence acceptable
to
Bombardier that such products or parts were not a cause of the
Defect; or
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(b)
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the
Aircraft was not operated or maintained in accordance with Bombardier’s
Technical Data and the manufacturer’s documentation furnished to Buyer
(including Service Bulletins and airworthiness directives) unless
Buyer
furnishes reasonable evidence acceptable to Bombardier that such
operation
or maintenance was not a cause of the Defect; or
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(c)
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the
Aircraft was not operated under normal airline use, unless Buyer
furnishes
reasonable evidence acceptable to Bombardier that such operation
was not a
cause of the Defect; or
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(d)
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Buyer
does not
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(1)
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report
the Defect in writing to Bombardier’s warranty administrator within thirty
(30) calendar days following such Defect becoming apparent, and
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(2)
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retain
the Bombardier Part claimed to be defective [***] advised by Bombardier
to
return such Bombardier Part to Bombardier’s designated facility in order
for Bombardier to finalize its evaluation of the warranty claim
or to
otherwise dispose of such Bombardier Part or to otherwise dispose
of such
Bombardier Part; or
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(e)
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Buyer
does not submit [***] to Bombardier within thirty (30) calendar
days after
the Defect becomes apparent that the Defect is due to a matter
covered
within this warranty[***]
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1.9.2
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The
warranty does not apply to Buyer Furnished Equipment.
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1.10
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Normal
Usage
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Normal
wear and tear and the need for regular maintenance and overhaul
shall not
constitute a Defect or failure under this warranty.
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1.11
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Overhaul
of Warranty Parts
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Bombardier’s
liability for a Bombardier Part which has a Defect and is overhauled
by
Buyer within the Warranty Period shall be limited only to that
portion of
the labour and material replacement related to the Defect.
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1.12
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No
Fault Found
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In
the event that a Bombardier Part returned under a warranty claim
is
subsequently established to be serviceable then Bombardier shall
be
entitled to charge and recover from Buyer any reasonable costs
incurred by
Bombardier in connection with such warranty claim. Providing, however,
in
the event that repetitive in-service failure occurs on the particular
Bombardier Part which is subsequently identified by Bombardier
on a
repeated basis to be “no fault found”, then Bombardier and Buyer shall
discuss and mutually agree a course of further action to help identify
and
correct the problem. In the event the fault is ultimately
confirmed to be a legitimate warranty claim then the above mentioned
costs
incurred by Bombardier and charged to Buyer shall be waived.
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ARTICLE
2 - VENDOR WARRANTIES
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2.1
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Warranties
from Vendors
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The
provisions of this Annex B apply to Bombardier Parts only. However,
Bombardier has made or shall make reasonable efforts to obtain
favorable
warranties from vendors, with respect to Vendor Parts and Power
Plant
Parts. Except as specifically provided under this Annex B Article
2,
Bombardier shall have no liability or responsibility for any such
Vendor
Parts and Power Plant Parts and the warranties for those Vendor
Parts and
Power Plant Parts shall be the responsibility of the vendor and
a matter
as between Buyer and vendor.
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2.2
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Vendor
Warranty Backstop
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For
those Vendor Parts installed on the Aircraft at the Delivery Date
or
subsequently purchased through Bombardier, excluding the Power
Plant or
the Power Plant Parts, in the event the parties agree that a vendor
is in
default in the performance of any material obligation under any
applicable
warranty obtained by Bombardier from such vendor pursuant to Annex
B
Section 2.1 above, the warranties and all other terms and conditions
of
Annex B Article 1 shall become applicable as if the Vendor Parts
had been
a Bombardier Part, except that the warranty period shall be the
Warranty
Period as set forth herein or by the vendor’s warranty, whichever is
shorter and all transportation costs associated with the Vendor
Parts
shall be borne by Buyer.
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2.3
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Bombardier’s
Interface Commitment
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In
the event of a dispute in the application of a Vendor Part warranty,
at
Buyer’s request addressed to Bombardier’s warranty administrator,
Bombardier shall, without charge, conduct an investigation and
analysis of
any such dispute resulting from a technical interface problem to
determine, if possible, the cause of the interface problem and
then
recommend feasible corrective action. Buyer shall furnish to
Bombardier all data and information in Buyer’s possession relevant to the
interface problem and shall cooperate with Bombardier in the conduct
of
its investigation and such tests as may be
required. Bombardier, at the conclusion of its investigation,
shall advise Buyer in writing of Bombardier’s opinion as to the cause of
the problem and Bombardier’s recommended corrective action.
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ARTICLE
3 - SERVICE LIFE POLICY
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3.1
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Applicability
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The
Service Life Policy (“SLP”) described
in this
Annex B Article 3 shall apply if [***] in any Covered Component
defined in
Annex B Section 3.7 below [***].
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3.2
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Term
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3.2.1
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Should
such failures occur in any Covered Component within one hundred
and
forty-four (144) months following delivery of the Aircraft containing
such
Covered Component, Bombardier shall, as promptly as practicable
and at its
option;
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(a)
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design
and/or furnish a correction for such failed Covered Component;
or
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(b)
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furnish
a replacement Covered Component (exclusive of standard parts such
as
bearings, bushings, nuts, bolts, consumables and similar low value
items).
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3.3
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Price
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Any
Covered Component which Bombardier is required to furnish under
this SLP
shall be provided for at a price calculated in accordance with
the
following formula:
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P
= C x [***]T
[***]
144
[***]
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Where:
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P
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=
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Price
of Covered Component to Buyer;
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C
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=
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Bombardier’s
then current price for the Covered Component;
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T
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=
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The
total time to the nearest month since the Aircraft containing the
Covered
Component was delivered by Bombardier [***]
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3.4
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Conditions
and Limitations
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3.4.1
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The
following general conditions and limitations shall apply to the
SLP:
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(a)
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the
transportation cost for the return to Bombardier’s designated facility, if
practicable, of any failed Covered Component necessary for failure
investigation or redesigning studies shall be borne by Buyer;
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(b)
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Bombardier’s
obligations under this SLP are conditional upon the submission
of
reasonable proof to Bombardier that the failure is covered hereby;
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(c)
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Buyer
shall report any failure of a Covered Component in writing to Bombardier’s
Warranty administrator within two (2) months after such failure
becomes
evident. Failure to give this required notice shall excuse
Bombardier from all obligations with respect to such failure;
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(d)
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the
provisions of Annex B Section 1.9 of the Warranty (except for
subparagraphs (d) and (e) thereof) are incorporated by this reference
and
shall condition Bombardier’s obligations under this SLP with respect to
any Covered Component;
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(e)
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Bombardier’s
obligations under this SLP shall not apply to any Aircraft which
has not
been correctly modified in accordance with the specifications or
instructions contained in the relevant [***] Service Bulletins
which are
furnished to Buyer prior to receipt by Bombardier from Buyer of
any notice
of an occurrence which constitutes a failure in a Covered
Component. The provisions of this subparagraph shall not apply
in the event that Buyer furnishes reasonable evidence acceptable
to
Bombardier that such failure was not caused by Buyer’s failure to so
modify the Aircraft; [***]
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[***]this
SLP shall not apply to a Covered Component where the failure results
from
an accident, abuse, misuse, negligence or wrongful act or omission,
unauthorized repair or [***] adversely affecting a Covered Component,
impact or foreign object damage, to any Covered Component.
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3.5
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Coverage
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This
SLP is neither a warranty, performance guarantee nor an agreement
to
modify the Aircraft to conform to new developments in design and
manufacturing art. Bombardier’s obligation is only to provide correction
instructions to correct a Covered Component or furnish replacement
at a
reduced price as provided in this SLP.
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3.6
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Assignment
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Buyer’s
rights under this SLP shall not be assigned, sold, leased, transferred
or
otherwise alienated by contract, operation of law or otherwise,
without
Bombardier’s prior written consent. Any unauthorized
assignment, sale, lease, transfer, or other alienation of Buyer’s rights
under the SLP shall immediately void all of Bombardier’s obligations under
the SLP.
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3.7
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Covered
Component
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Only
those items or part thereof listed in Attachment A to this Annex
B shall
be deemed to be a Covered Component, and subject to the provisions
of this
SLP.
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ARTICLE
4 - GENERAL
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4.1
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It
is agreed that Bombardier shall not be obligated to provide to
Buyer any
remedy which is a duplicate of any other remedy which has been
provided to
Buyer under any other part of this Annex B.
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ARTICLE
5 - DISCLAIMER
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5.1
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BOMBARDIER
SHALL HAVE NO OBLIGATION OR LIABILITY (AT LAW OR IN EQUITY) IN
CONTRACT
(INCLUDING, WITHOUT LIMITATION, WARRANTY), IN TORT (WHETHER OR
NOT ARISING
FROM THE ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE OR STRICT PRODUCTS
LIABILITY OF BOMBARDIER OR ITS AFFILIATES) OR OTHERWISE, FOR ANY
INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION
LOSS OF
USE, LOSS OF REVENUE OR LOSS OF PROFIT, WITH RESPECT TO:
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(1)
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ANY
DEFECT IN THE BOMBARDIER PARTS OR TECHNICAL DATA OR ANY OTHER THING
DELIVERED;
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(2)
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ANY
DELAY IN PERFORMANCE OR COMPLETE FAILURE TO PERFORM ITS OBLIGATIONS
SET
FORTH IN THIS ANNEX B FOR ANY REASON WHATSOEVER; OR
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(3)
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ANY
FAILURE TO PERFORM ANY OF ITS OTHER OBLIGATIONS.
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NOTHING
IN THIS ARTICLE SHALL
BE CONSTRUED TO ALTER OBLIGATIONS EXPRESSLY ASSUMED BY BOMBARDIER,INCLUDING
WITHOUT LIMITATION,
THE PROVISIONS OF THIS ANNEX B.
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Attachment
A to Annex B
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COVERED
COMPONENTS
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WING
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(a)
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Upper
and lower wing skins and stringers between front to rear spars.
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(b)
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Wing
spar caps, webs and uprights.
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(c)
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Main
box (front spar to rear spar) wing ribs.
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(d)
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Main
box splice plates, fittings.
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(e)
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Wing
to nacelle structural attachments.
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(f)
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Wing
to fuselage structural attachments.
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(g)
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Support
structure in the wing to spoilers, spoiler actuators and ailerons.
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(h)
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Main
gear support structure.
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(i)
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Engine
support fittings.
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FUSELAGE
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(a)
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External
surface skins and doublers, stringers, circumferential frames between
forward pressure bulkhead and aft pressure dome, excluding all
systems,
insulation, lining and decorative clips and brackets.
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(b)
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Window
and windshield structure but excluding the windows and windshields.
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(c)
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Primary
structure frames around body openings for passenger doors, cargo/baggage
doors and emergency exits.
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(d)
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Nose
gear support structure.
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(e)
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Floor
beams and supporting structure in the flight compartment and cabin
including the lavatory, excluding seat tracks in both areas.
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(f)
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Forward
pressure bulkhead and aft pressure dome.
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(g)
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Floor
beams and supporting structure in the baggage compartment providing
same
is not damaged through abusive handling of baggage or cargo.
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VERTICAL
TAIL (including
fuselage aft of aft pressure dome)
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(a)
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Fuselage
external surface skins, stringers and frames between aft pressure
dome and
rear fin spar frame.
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(b)
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Fin
skins and stiffeners between front and rear spars.
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(c)
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Fin
front, centre and rear spar caps, webs and uprights.
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(d)
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Main
box (front spar to rear spar) fin ribs.
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(e)
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Fin
hinge and actuator support structure for rudder and elevator.
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(f)
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Fore
rudder structure and hinge and actuator brackets.
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(g)
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Aft
rudder forward cell structure and hinge and radius rod brackets.
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HORIZONTAL
TAIL
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(a)
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Tailplane
skins and stringers.
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(b)
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Tailplane
spar caps, webs and uprights.
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(c)
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Tailplane
main box (front spar to rear spar) ribs.
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(d)
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Tailplane
hinge support structure for elevator.
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(e)
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Elevator
forward cell structure and hinge and actuator brackets.
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(f)
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Horizontal
tail structure attachments.
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