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Exhibit 10.1
MASTER PURCHASE AGREEMENT NO. PA-489
BETWEEN
BOMBARDIER INC.
AND
SKYWEST AIRLINES, INC.
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TABLE OF CONTENTS
ARTICLE
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1 INTERPRETATION
2 SUBJECT MATTER OF SALE
3 AIRLINE SUPPORT SERVICES AND WARRANTY
4 PRICE
5 PAYMENT
6 DELIVERY PROGRAM
7 BUYER INFORMATION
8 CERTIFICATION FOR EXPORT
9 ACCEPTANCE PROCEDURE
10 TITLE AND RISK
11 CHANGES
12 BUYER'S REPRESENTATIVES AT MANUFACTURE SITE
13 EXCUSABLE DELAY
14 NON-EXCUSABLE DELAY
15 LOSS OR DAMAGE
16 TERMINATION
17 NOTICES
18 INDEMNITY AGAINST PATENT INFRINGEMENT
19 LIMITATION OF LIABILITY AND INDEMNIFICATION
20 ASSIGNMENT
21 SUCCESSORS
22 APPLICABLE LAWS
23 CONFIDENTIAL NATURE OF AGREEMENT
24 AGREEMENT
EXHIBITS
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I CERTIFICATE OF ACCEPTANCE
II XXXX OF SALE
III CERTIFICATE OF RECEIPT OF AIRCRAFT
IV CHANGE ORDER
ANNEXES
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A AIRLINE SERVICES
B WARRANTY AND SERVICE LIFE POLICY
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This Master Purchase Agreement is made on the 7th day of November, 2000
BY AND BETWEEN: BOMBARDIER INC., a Canadian corporation represented by
BOMBARDIER AEROSPACE, REGIONAL AIRCRAFT having an office
at 000 Xxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxx, Xxxxxx
("Bombardier")
AND: SkyWest Airlines, Inc., a Utah corporation having its
offices at 000 Xxxxx Xxxxx Xxxx, Xx. Xxxxxx, Xxxx,
00000, XXX ("Buyer")
WHEREAS Buyer may in future desire to purchase new Aircraft (as
defined in Article 1.4 of this Master Purchase
Agreement) and related data, documents, and services
under this Agreement (as defined in Article 1.4 of this
Master Purchase Agreement) from Bombardier, and the
parties desire to agree in advance on the terms that
will govern such purchase; and
WHEREAS This Master Purchase Agreement and any subsequent
amendments thereto, together with the Supplement(s) that
may be executed from time to time, will be the governing
document for any future transactions between Bombardier
and Buyer relating to the purchase and sale of new
Bombardier products, currently being offered for sale by
Bombardier Aerospace, Regional Aircraft.
NOW THEREFORE, in consideration of the mutual covenants herein contained, Buyer
and Bombardier agree as follows:
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ARTICLE 1 - INTERPRETATION
1.1 The recitals above have been inserted for convenience only and do not
form part of this Agreement.
1.2 The headings in this Agreement are included for convenience only and
shall not be used in the construction and interpretation of this
Agreement.
1.3 In this Agreement, unless otherwise expressly provided, the singular
includes the plural and vice-versa.
1.4 In this Agreement the following expressions shall, unless otherwise
expressly provided, mean:
(a) "Acceptance Period" shall have the meaning attributed to it in
Article 9.3;
(b) "Acceptance Date" shall have the meaning attributed to it in
Article 9.7(a);
(c) "Agreement" means this Master Purchase Agreement and
Supplements, if any, including their Exhibits, Annexes,
Schedules and Appendices, if any, either attached hereto (each
of which is incorporated in the Agreement by this reference) or
subsequently agreed by the parties, hereto, pursuant to the
provisions of this Agreement;
(d) "Aircraft" shall have the meaning attributed to it in the
applicable Supplement;
(e) "Aircraft Purchase Price" shall have the meaning attributed to
it in the applicable Supplement;
(f) "Base Price" shall have the meaning attributed to it in the
applicable Supplement;
(g) "Xxxx of Sale" shall have the meaning attributed to it in
Article 9.7(c);
(h) "Buyer Selected Optional Features" shall have the meaning
attributed to it in the applicable Supplement;
(i) "Delivery Date" shall have the meaning attributed to it in
Article 9.7(c);
(j) "Economic Adjustment Formula", if applicable, shall have the
meaning attributed to it in the applicable Supplement;
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(k) "Excusable Delay" shall have the meaning attributed to it in
Article 13.1;
(l) "FAA" shall have the meaning attributed to it in Article 8.1;
(m) "Non-Excusable Delay" shall have the meaning attributed to it in
Article 14.1;
(n) "Notice" shall have the meaning attributed to it in Article
17.1;
(o) "Other Patents" shall have the meaning attributed to it in
Article 18.1;
(p) "Permitted Change" shall have the meaning attributed to it in
Article 11.2;
(q) "Readiness Date" shall have the meaning attributed to it in
Article 9.1;
(r) "Regulatory Change" shall have the meaning attributed to it in
Article 8.4;
(s) "Scheduled Delivery Date" shall have the meaning attributed to
it in the applicable Supplement;
(t) "Specification" shall have the meaning attributed to it in the
applicable Supplement;
(u) "Supplement" means a supplementary agreement to this Agreement
entered into by the parties for the purchase of specific
products currently offered for sale by Bombardier Aerospace,
Regional Aircraft;
(v) "Taxes" shall have the meaning attributed to it in Article 4.2;
and
(w) "TC" shall have the meaning attributed to it in Article 8.1.
1.5 All dollar amounts in this Agreement are in United States Dollars.
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ARTICLE 2 - SUBJECT MATTER OF SALE
2.1 A description of the Aircraft being purchased and sold under the terms
of this Agreement and the related Bombardier specification document
number(s) will be set out in the applicable Supplement. Until a
Supplement, in the form of Supplement No. PA-489-1 attached hereto, is
executed between the parties hereto, neither party shall have any
obligation under the terms of this Agreement.
2.2 This Agreement shall be applicable to the purchase of Aircraft
completed during a period of three (3) years from the
date hereof as evidenced by the execution of a Supplement.
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ARTICLE 3 - CUSTOMER SUPPORT SERVICES AND WARRANTY
3.1 Bombardier shall provide to Buyer the customer support services
pursuant to the provisions of Annex A attached hereto and the
applicable Supplement.
3.2 Bombardier shall provide to Buyer the warranty and the service life
policy described in Annex B attached hereto and the applicable
Supplement which shall be the exclusive warranty applicable to the
Aircraft.
3.3 Unless expressly stated otherwise, the services referred to in 3.1 and
3.2 above and the applicable Supplement are incidental to the sale of
the Aircraft and are included in the Aircraft Purchase Price.
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ARTICLE 4 - PRICE
4.1 (a) The base price for each of the Aircraft is set out in the
applicable Supplement.
(b) The base price of the Buyer Selected Optional Features is set
out in the applicable Supplement.
4.2 The Aircraft Purchase Price (as defined in the applicable Supplement)
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") 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. According to legislation as of the date hereof,
Canadian taxes, duties and Goods and Services Tax are not applicable to
aircraft sold and immediately exported from Canada.
4.3 If any Taxes (other than Canadian income taxes charged on the income of
Bombardier) are imposed upon Buyer or become due or are to be collected
from Bombardier by any taxing authority, Bombardier shall notify Buyer
and 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.
4.4 Upon 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
5.1 The terms of payment for the Aircraft purchased and sold under the
terms of this Agreement shall be set out in the
applicable Supplement.
5.2 Subject to the provisions of Article 9.9 hereof, should Buyer fail to
make any of the payments required under the applicable Supplement on or
before the stipulated date and Buyer does not correct the failure
within a period of thirty (30) days thereafter, Buyer shall be in
default and any Supplement and this Agreement as it relates thereto
shall automatically terminate and Bombardier shall have no further
obligation to Buyer under any Supplement and this Agreement as it
relates thereto, including the obligation to proceed further with the
manufacture of the Aircraft on behalf of Buyer or the sale and/or
delivery of the Aircraft to Buyer. Notwithstanding the preceding
sentence Bombardier shall have the option (but not the obligation) of
waiving such termination should Buyer make arrangements satisfactory to
Bombardier for such payment and all future payments within ten (10)
calendar days of Buyer's default.
5.3 Buyer shall pay Bombardier daily interest on late payments, from the
date that any payment becomes due up to and including the day prior to
receipt of payment, at a rate of two percent (2%) per annum over the
prime rate charged by the National Bank of Canada 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.
5.4 Buyer shall make all payments due under this Agreement and/or any
applicable Supplement in immediately available United States Dollars by
deposit on or before the due date, to Bombardier's account, in the
manner set out in the applicable Supplement.
5.5 All amounts due with respect to each Aircraft shall be paid on or
prior to the Delivery Date of the respective Aircraft.
5.6 All payments provided for under this Agreement and/or any applicable
Supplement shall be made so as to be received by Bombardier in
immediately available funds on or before the dates stipulated herein.
5.7 Bombardier shall remain the exclusive owner of the Aircraft, free and
clear of all rights, liens, charges or encumbrances created by or
through Buyer, until such time as all payments referred to in this
Article 5 have been received in full by Bombardier.
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ARTICLE 6 - DELIVERY PROGRAM
6.1 The Aircraft shall be offered for inspection and acceptance to Buyer at
Bombardier's facility and during the month(s) set forth in the
applicable Supplement.
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ARTICLE 7 - BUYER INFORMATION
7.1 During the manufacture of the Aircraft, Buyer shall provide to
Bombardier on or before the date required by Bombardier, all
information as Bombardier may reasonably request to manufacture the
Aircraft including, without limitation, the selection of furnishings,
internal and external colour schemes.
Buyer will, not less that the number of months set forth in the
applicable Supplement, prior to the delivery of the first Aircraft
governed by such Supplement:
(a) provide Bombardier with an external paint scheme agreed on by
the parties;
(b) select interior colours (from Bombardier's standard colours);
and
(c) provide to Bombardier, on drawings which will be forwarded to
Buyer, language translations for interior and exterior
Aircraft labels.
Failure of Buyer to comply with these requirements may result in an
increase in price, a delay in delivery of the Aircraft, or both.
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ARTICLE 8 - CERTIFICATION FOR EXPORT
8.1 Bombardier has obtained or will obtain from Transport Canada,
Airworthiness ("TC"), a TC Type Approval or Certificate (Transport
Category) and from the Federal Aviation Administration of the United
States ("FAA") an FAA Type Certificate for the type of aircraft
purchased under this Agreement and any applicable Supplement.
8.2 Bombardier shall provide to Buyer a TC Certificate of Airworthiness
(Transport Category) for Export to the United States of America, on or
before the Delivery Date.
8.3 Bombardier shall not be obligated to obtain any other certificates or
approvals as part of this Agreement. The obtaining of any import
license or authority required to import or operate the Aircraft into
any country outside of Canada shall be the responsibility of Buyer.
Bombardier shall, to the extent permitted by law, and with Buyer's
assistance, seek the issuance of a Canadian export license to enable
Buyer to export the Aircraft from Canada subject to prevailing export
control regulations in effect on the Delivery Date.
8.4 If any addition or 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 Article 8.2 (a
"Regulatory Change"), such Regulatory Change shall be made to the
Aircraft prior to Delivery Date, or at such other time after the
Delivery Date as the parties may agree upon.
8.5 The Regulatory Change shall be made without additional charge to Buyer
unless such Regulatory Change is:
(a) necessary to comply with any requirement of the country
specified in the TC Certificate of Airworthiness for Export,
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, in which case Buyer shall pay Bombardier's reasonable
charges for such Regulatory Change, or
(b) required by any governmental law or regulations or
interpretation thereof promulgated by TC, or the FAA as
applicable, 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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8.6 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 13.
8.7 Bombardier shall issue a Change Order, reflecting any Regulatory Change
required to be made under this Article 8, which shall set forth in
detail the particular changes to be made and the effect, if any, of
such changes on design, performance, weight, balance, time of delivery,
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.
8.8 If the use of any of the certificates identified in this Article 8 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.
8.9 Reference 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 9 - ACCEPTANCE PROCEDURE
9.1 Bombardier shall give Buyer at least thirty (30) days advance notice,
by facsimile or telegraphic communication or other expeditious means,
of the projected date of readiness of each Aircraft for inspection and
delivery.
Bombardier shall give Buyer at least ten (10) working days advance
notice, by facsimile or telegraphic communication or other expeditious
means, of the date on which an Aircraft will be ready for Buyer's
inspection, flight test and acceptance (the "Readiness Date").
9.2 Within two (2) days following receipt by Buyer of the notice of
Readiness Date Buyer shall:
(a) provide notice to Bombardier as to the source and method of
payment of the balance of the Aircraft Purchase Price;
(b) identify to Bombardier the names of Buyer's representatives
who will participate in the inspection, flight test and
acceptance; and
(c) provide evidence of the authority of the designated persons to
execute the Certificate of Acceptance and other delivery
documents on behalf of Buyer.
9.3 Buyer shall have three (3) consecutive working days commencing on the
Readiness Date in which to complete the inspection and flight test
(such three (3) working day period being the "Acceptance Period").
9.4 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 flight test. Bombardier shall, if requested by
Buyer, perform an acceptance flight of not less than one (1) and not
more than three (3) hours duration. Ground inspection and flight test
shall be conducted in accordance with Bombardier's acceptance
procedures (a copy of which shall be provided to Buyer at least 30 days
prior to the Scheduled Delivery Date of the first Aircraft governed by
the applicable Supplement hereunder) and at Bombardier's expense. At
all times during ground inspection and flight test, Bombardier shall
retain control over the Aircraft.
9.5 If no Aircraft defect or discrepancy is revealed during the ground
inspection or flight test, Buyer shall accept the Aircraft on or before
the last day of the Acceptance Period in accordance with the provisions
of Article 9.7.
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9.6 If any material defect or discrepancy in the Aircraft is revealed by
Buyer's ground inspection or flight test, the defect or discrepancy
will promptly be corrected by Bombardier, at no cost to Buyer, which
correction may occur during or after the Acceptance Period depending on
the nature of the defect or discrepancy and of the time required for
correction. To the extent necessary to verify such correction,
Bombardier shall perform one (1) or more further acceptance flights.
9.7 Upon completion of the ground inspection and acceptance flight of
the Aircraft and correction of any defects or discrepancies:
(a) Buyer will sign a Certificate of Acceptance (in the form of
Exhibit I hereto ) for the Aircraft. Execution of the
Certificate of Acceptance by or on behalf of Buyer shall be
evidence of Buyer having examined the Aircraft and found it in
accordance with the provisions of this Agreement. The date of
signature of the Certificate of Acceptance shall be the
"Acceptance Date";
(b) Bombardier will supply a TC Certificate of Airworthiness for
Export, and
(c) Buyer shall pay Bombardier the balance of the Aircraft
Purchase Price and any other amounts due, at which time
Bombardier shall issue a xxxx of sale (in the form of Exhibit
II hereto) passing to Buyer good title to the Aircraft free
and clear of all liens, claims, charges and encumbrances
except for those liens, charges or encumbrances created by or
claimed through Buyer (the "Xxxx of Sale"). The date on which
Bombardier delivers the Xxxx of Sale and Buyer takes delivery
of the Aircraft shall be the "Delivery Date".
Delivery of the Aircraft shall be evidenced by the execution and
delivery of the Xxxx of Sale and of the Certificate of Receipt of
Aircraft (in the form of Exhibit III hereto ).
9.8 Provided that Bombardier has met all of its obligations under this
Article 9, should Buyer not accept, pay for and take delivery of any of
the Aircraft governed by the applicable Supplement within ten (10)
calendar days after the end of the Acceptance Period of such Aircraft,
Buyer shall be deemed to be in default of the terms of this Agreement
with respect to all the undelivered Aircraft governed by the applicable
Supplement.
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9.9 Buyer shall promptly, upon demand, reimburse Bombardier for all costs
and expenses reasonably incurred by Bombardier as a result of Buyer's
failure to accept or take delivery of the Aircraft, including but not
limited to reasonable amounts for storage, insurance, taxes,
preservation or protection of the Aircraft. Provided that Bombardier
has met all of its obligations under this Article 9, should Buyer not
accept, pay for and/or take delivery of any one of the Aircraft
governed by a Supplement within thirty (30) calendar days following the
end of the Acceptance Period, the present Agreement, with respect to
all Aircraft governed by such Supplement shall automatically terminate.
Bombardier shall however, have the option (but not the obligation) of
waiving such termination should Buyer, within ten (10) calendar days
following such termination, make arrangements satisfactory to
Bombardier to accept delivery and provide payment for all amounts owing
or to become due pursuant to this Agreement and the applicable
Supplement.
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ARTICLE 10 - TITLE AND RISK
10.1 Title to the Aircraft and risk of loss of or damage to the Aircraft
passes to Buyer when Bombardier presents the Xxxx of Sale to Buyer on
the Delivery Date.
10.2 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 and renounces to, 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 11 - CHANGES
11.1 Other than a Permitted Change as described in Article 11.2, or a
Regulatory Change as described in Article 8.4, any change to the
Aircraft (including without limitation the Specification) or any
features, changing such Aircraft from that described in the
Specification, requested by Buyer, and as may be mutually agreed upon
by the parties hereto, shall be made using a change order ("Change
Order") substantially in the format of Exhibit IV hereto. Should Buyer
request a change, Bombardier shall advise Buyer, to the extent
reasonably practical, of the effect, if any, of such change request on:
(a) the Scheduled Delivery Date;
(b) the price and payment terms applicable to the Change Order; and
(c) any other material provisions of this Agreement which will be
affected by the Change Order.
Such Change Order shall become effective and binding on the parties
hereto when signed by a duly authorized representative of each party.
11.2 Bombardier, prior to the Delivery Date and without a Change Order or
Buyer's consent, may:
(a) 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
(b) make such change or modification to the Specification as it
deems appropriate to:
1) improve the Aircraft, its maintainability or appearance,
or
2) to prevent delays in manufacture or delivery, or
3) to meet the delivery requirements of Articles 2, 6 and 8,
other than with respect to a Regulatory Change to which
the provisions of Articles 8.4 and 8.5 shall apply,
provided that such substitution, change or modification shall not
affect the Aircraft Purchase Price or materially affect the Scheduled
Delivery Date, interchangeability or replacability of spare parts or
performance characteristics of the Aircraft. Any change made in
accordance with the provisions of this Article 11.2 shall be deemed to
be a "Permitted Change" and the cost thereof shall be borne by
Bombardier.
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ARTICLE 12 - BUYER'S REPRESENTATIVES AT MANUFACTURE SITE
12.1 From time to time, commencing with the date which is thirty (30) days
prior to the Scheduled Delivery Date of the first Aircraft governed by
the applicable Supplement, and ending with the Delivery Date of the
last Aircraft purchased hereunder, Bombardier shall furnish, without
charge, office space at Bombardier's facility for one (1)
representative of Buyer. Buyer shall be responsible for all expenses of
its representative and shall notify Bombardier at least thirty (30)
days prior to the first scheduled visit of such representative and
three (3) days for each subsequent visit.
12.2 Bombardier's and Bombardier's affiliates' facilities shall be
accessible to Buyer's representative during normal working hours.
Buyer's representative shall have the right 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.
12.3 Bombardier shall advise Buyer's representative of Bombardier's or
Bombardier's affiliates' rules and regulations applicable at the
facilities being visited and Buyer's representative shall conform to
such rules and regulations.
12.4 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 or it's designate.
12.5 BUYER HEREBY RELEASES AND AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS
BOMBARDIER, ITS ASSIGNEES AND AFFILIATES AND THEIR OFFICERS, DIRECTORS,
AGENTS, EMPLOYEES AND CONTRACTORS FROM AND AGAINST ALL LIABILITIES,
DAMAGES, LOSSES, COSTS AND EXPENSES RESULTING FROM INJURIES TO OR DEATH
OF OR LOSS OF OR DAMAGE TO PROPERTY OF BUYER OR BUYER'S REPRESENTATIVES
WHILE AT BOMBARDIER'S OR BOMBARDIER'S AFFILIATES OR SUBCONTRACTOR'S
FACILITIES AND/OR DURING INSPECTION, FLIGHT TEST OR ACCEPTANCE OF THE
AIRCRAFT, WHETHER OR NOT CAUSED BY THE ACTIVE, PASSIVE OR IMPUTED
NEGLIGENCE OR STRICT PRODUCTS LIABILITY OF BOMBARDIER, ITS ASSIGNEES,
AFFILIATES OR THEIR OFFICERS, DIRECTORS, AGENTS, EMPLOYEES OR
CONTRACTORS.
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ARTICLE 13 - EXCUSABLE DELAY
13.1 In the event of a delay on the part of Bombardier in the performance of
its obligations or responsibilities under the provisions of this
Agreement or any applicable Supplement due directly or indirectly to a
cause which is beyond the reasonable control or without the fault or
negligence of Bombardier (an "Excusable Delay"), Bombardier shall not
be liable for, nor be deemed to be in default under this Agreement nor
under the applicable Supplement on account of such delay in delivery of
the Aircraft or other performance hereunder and the time fixed or
required for the performance of any obligation or responsibility in
this Agreement or the applicable Supplement shall be extended for a
period equal to the period during which any such cause or the effect
thereof persist. Excusable Delay shall be deemed to include, without
limitation, delays occasioned by the following causes:
(a) force majeure or acts of God;
(b) war, warlike operations, act of the enemy, armed aggression,
civil commotion, insurrection, riot or embargo;
(c) fire, explosion, earthquake, lightning, flood, draught,
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;
(h) delay or failure of carriers, subcontractors or suppliers for
any reason whatsoever; or
(i) delay in obtaining type certification or any airworthiness
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 the applicable Supplement, 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.
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13.2 (a) If Bombardier concludes, based on its appraisal of the facts and
normal scheduling procedures, that due to Excusable Delay
delivery of an Aircraft will be delayed for more than twelve
(12) months after the originally Scheduled Delivery Date or any
revised date agreed to in writing by the parties, Bombardier
shall promptly notify Buyer in writing and either party may then
terminate the applicable supplement and the Agreement as it
relates thereto with respect to such Aircraft by giving written
notice to the other within fifteen (15) days after receipt by
Buyer of Bombardier's notice.
(b) If, due to Excusable Delay, delivery of an Aircraft is delayed
for more than twelve (12) months after the Scheduled Delivery
Date, either party may terminate the applicable Supplement and
the Agreement as it relates thereto with respect to such
Aircraft by giving written notice to the other within fifteen
(15) days after the expiration of such twelve (12) month period.
13.3 Termination under Article 13.2 shall discharge all obligations and
liabilities of Buyer and Bombardier hereunder with respect to such
delayed Aircraft and all related undelivered items and services, except
that 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.
13.4 The termination rights set forth in Article 13.2 are in substitution
for any and all other rights of termination or contract lapse arising
by operation of law in connection with Excusable Delays.
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ARTICLE 14 - NON-EXCUSABLE DELAY
14.1 If delivery of the Aircraft is delayed by causes not excused under
Article 13.1 (a "Non-Excusable Delay"), Bombardier shall pay Buyer, as
liquidated damages and not as a penalty, the amount as set forth in the
applicable Supplement for each day of Non-Excusable Delay in excess of
a grace period of the number of days set forth in the applicable
Supplement, to a maximum of the amount set forth in the applicable
Supplement for any such delayed Aircraft.
14.2 Any right Buyer might otherwise have to refuse to accept delivery of an
Aircraft when offered by Bombardier for inspection and acceptance
following a Non-Excusable Delay is included within the rights and
remedies for which the liquidated damages provided pursuant to Article
14.1 are the exclusive right and remedy. 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 the period as set forth in the
applicable Supplement. If Bombardier has not offered an Aircraft for
inspection and acceptance before the end of that period as set forth in
the applicable Supplement, Buyer may terminate the Agreement as to such
Aircraft by giving notice to Bombardier. If, no such notice having been
given, 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 and the applicable Supplement as to such Aircraft. Buyer
shall, effective upon such termination, be entitled to recover from
Bombardier, as liquidated damages and not as a penalty, the aggregate
amount of liquidated damages calculated under Article 14.1 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 the National Bank of Canada from time to time,
calculated and compounded monthly.
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ARTICLE 15 - LOSS OR DAMAGE
15.1 In the event that prior to the Delivery Date of any Aircraft, the
Aircraft is lost, destroyed or damaged beyond repair due to any cause,
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. The applicable Supplement
and this Agreement as it relates thereto shall automatically terminate
with respect to such Aircraft unless Buyer gives Bombardier written
notice, within thirty (30) days of Bombardier's notice, that Buyer
desires a replacement for such Aircraft. If Buyer gives such notice to
Bombardier, the parties shall execute an amendment to the applicable
Supplement 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 and the applicable Supplement applicable to the replaced
Aircraft shall apply to the replacement aircraft.
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ARTICLE 16 - TERMINATION
16.1 Any Supplement hereto and this Agreement as it relates thereto may be
terminated, in whole or in part, with respect to any or all of the
Aircraft governed by such Supplement before the applicable Delivery
Date by Bombardier or Buyer by notice of termination to the other party
upon the occurrence of any of the following events:
(a) a 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 a party or for
substantially all of such party's assets and, if appointed
without such party's consent, such appointment is not discharged
or stayed within thirty (30) 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 a party, and, if contested by such
party, are not dismissed or stayed within thirty (30) calendar
days thereafter; or
(d) any writ of attachment or execution or any similar process is
issued or levied against a party or any significant part of its
property and is not released, stayed, bonded or vacated within
thirty (30) calendar days after its issue or levy.
16.2 In addition, any Supplement hereto and this Agreement as it relates
thereto may be terminated, in whole or in part, before the Delivery
Date with respect to any or all undelivered Aircraft governed by the
applicable Supplement:
(a) as otherwise provided in this Agreement or the applicable
Supplement; or
(b) by Bombardier, if Buyer is in default or breach of any material
term or condition of this Agreement or the applicable Supplement
and Buyer does not cure such default or breach within thirty
(30) calendar days after receipt of notice from Bombardier
specifying such default or breach.
(c) by Buyer, if Bombardier is in default or breach of any material
term or condition of this Agreement or the applicable Supplement
and such breach remains uncured for a period of sixty (60)
calendar days following receipt of a notice from Buyer
specifying the nature of default or breach.
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16.3 In case of termination under Articles 5.2 or 9.9, or by Bombardier
pursuant to Articles 16.1 or 16.2:
(a) all rights (including property rights), if any, which Buyer or
its assignee may have or may have had in or to this Agreement
and the applicable Supplement or any or all of the undelivered
Aircraft governed by such Supplement shall become null and void
with immediate effect;
(b) Bombardier may sell, lease or otherwise dispose of such
Aircraft to another party free of any claim by Buyer; and
(c) all amounts paid by Buyer with respect to the applicable
undelivered Aircraft governed by the applicable Supplement shall
be retained by Bombardier and shall be applied against the
costs, expenses, losses and damages incurred by Bombardier as a
result of Buyer's default and/or the termination of this
Agreement and the applicable Supplement. Buyer hereby
acknowledges and recognizes that such costs, expenses, losses
and damages will aggregate not less than the amount previously
paid by Buyer with respect to such undelivered Aircraft.
16.4 Subject to Article 14.1, in the event of termination of this Agreement
and the applicable Supplement by Buyer, Buyer's sole rights, remedies
and recourses against Bombardier and Bombardier's obligations to Buyer
shall be limited to only the return by Bombardier of those amounts paid
by Buyer to Bombardier hereunder on account of the undelivered Aircraft
governed by the applicable Supplement.
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ARTICLE 17 - NOTICES
17.1 Any notice, request, approval, permission, consent or other
communication ("Notice"), to be given or required under this Agreement
or a Supplement shall be provided in writing, by registered mail,
facsimile, courier, telegraphic or other electronic communication
providing reasonable proof of transmission, except that no notice shall
be sent by mail if disruption of postal service exists or is threatened
either in the country of origin or of destination, by the party giving
the Notice and shall be addressed as follows:
(a) Notices to Bombardier shall be addressed to:
Bombardier Inc.
Bombardier Aerospace, Regional Aircraft
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx
Xxxxxx X0X 0X0
Attention: Director of Contracts
Facsimile: (000) 000-0000
(b) Notices to Buyer shall be addressed to:
SkyWest Airlines, Inc.
000 Xxxxx Xxxxx Xxxx
Xx. Xxxxxx, Xxxx
XXX, 00000
Attention: Vice-President, Planning
Facsimile: (000) 000-0000
17.2 Notice given in accordance with Article 17.1 shall be deemed
sufficiently given to and received by the addressees:
(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.
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ARTICLE 18 - INDEMNITY AGAINST PATENT INFRINGEMENT
18.1 In the case of any actual or alleged infringement of any Canadian or
United States patent or, subject to the conditions and exceptions set
forth below, any patent issued under the laws of any other country in
which Buyer from time to time may lawfully operate the Aircraft ("Other
Patents"), 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,
punitive incidental or consequential damages (which include without
limitation 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 Patents only if
from the time of design of the Aircraft, system, accessory, equipment
or part until the alleged infringement claims are resolved:
(d) 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
(e) 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.
18.2 The foregoing indemnity does not apply to BFE, 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.
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18.3 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 defense. 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.
18.4 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,
PUNITIVE INCIDENTAL OR CONSEQUENTIAL, OF BUYER AGAINST BOMBARDIER AND
ITS AFFILIATES EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH
RESPECT TO ANY ACTUAL OR ALLEGED PATENT INFRINGEMENT BY THE AIRCRAFT OR
ANY INSTALLED SYSTEM, ACCESSORY, EQUIPMENT OR PART.
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ARTICLE 19 - LIMITATION OF LIABILITY AND INDEMNIFICATION
19.1 BOMBARDIER SHALL HAVE NO OBLIGATION OR LIABILITY (AT LAW OR IN EQUITY),
WHETHER ARISING IN CONTRACT (INCLUDING WITHOUT LIMITATION, WARRANTY),
IN TORT (INCLUDING THE ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE, OR GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, OR STRICT PRODUCTS LIABILITY OF
BOMBARDIER OR ITS AFFILIATES), OR OTHERWISE, FOR ANY CLAIM CAUSE OF
ACTION, OR MATTER OF ANY KIND ARISING UNDER, IN CONNECTION WITH OR
PURSUANT TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREIN, FOR
LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER INDIRECT, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE.
19.3 THE WARRANTIES, LIABILTIES AND OBLIGATIONS OF BOMBARDIER, AND THE
REMEDIES OF BUYER SET FORTH IN THIS AGREEMENT ) ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL
OTHER WARRANTIES, GUARANTEES, OBLIGATIONS, REPRESENTATIONS AND
LIABILITIES OF, AND RIGHTS, CLAIMS, REMEDIES, DAMAGES, COSTS AND
EXPENSES AGAINST, BOMBARDIER OR ANY SUCCESSOR OR PERMITTED
ASSIGNEE,EXPRESSED OR IMPLIED ARISING IN FACT, IN LAW, IN EQUITY, IN
CONTRACT, IN TORT OR OTHERWISE, INCLUDING BUT NOT LIMITED TO (a) ANY
IMPLIED WARRANTY OR CONDITIONS OF MERCHANTABLITY OR FITNESS, (b) ANY
IMPLIED WARRANTY OR CONDITON ARISING FROM COURSE OF PERFORMANCE, COURSE
OF DEALING OR USAGE OF TRADE, (c) ANY OBLIGATION, LIABILITY, RIGHT,
CLAIM OR REMEDY FOR NON-CONFORMANCE OR DEFECT OR FAILURE OF ANY KIND OR
LOSS OF OR DAMAGE TO ANY AIRCRAFT OR PART THEREOF, ANY SPARE PARTS OR
ANY TECHNICAL DATA, PRODUCT, DOCUMENT OR SERVICE PROVIDED UNDER THIS
AGREEMENT. (d) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR
LOSS OF OR DAMAGE TO ANY AIRCRAFT, ANY XXXX PARTS, ANY VENDOR PARTS,
ANY SPARE PARTS OR ANY TECHNICAL DATA.
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19.3 BUYER HEREBY RELEASES AND AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS
BOMBARDIER, ITS SUBSIDIARIES, AFFILIATES, SUBCONTRACTORS AND LESSORS,
AND THEIR RESPECTIVE EMPLOYEES, DIRECTORS, OFFICERS AND AGENTS, AND
EACH OF THEM, FROM AND AGAINST ALL LIABILITIES, CLAIMS, DAMAGES,
LOSSES, COSTS AND EXPENSES FOR LOSS OF OR DAMAGE TO PROPERTY INCLUDING
ANY AIRCRAFT, AND LOSS OF USE THEREOF, OR INJURIES TO OR DEATH OF ANY
AND ALL PERSONS (INCLUDING BUYER'S DIRECTORS, OFFICERS, AGENTS AND
EMPLOYEES BUT EXCLUDING BOMBARDIER'S DIRECTORS, OFFICERS, AGENTS AND
EMPLOYEES), ARISING DIRECTLY OR INDIRECTLY OUT OF OR IN CONNECTION WITH
ANY SERVICE PROVIDED UNDER THIS AGREEMENT.
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ARTICLE 20 - ASSIGNMENT
20.1 Either party may assign, sell, transfer or dispose of (in whole or in
part) any of its rights and obligations hereunder or a Supplement to a
wholly owned subsidiary or affiliate 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 obligation under this Agreement.
20.2 Except as provided in Article 20.1, Buyer shall not assign, sell,
transfer or dispose of (in whole or in part) any of its rights or
obligations hereunder or a Supplement without Bombardier's prior
written consent. In the event of such assignment, sale, transfer or
disposition 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 and (including for more certainty) the applicable Supplement.
20.3 Notwithstanding Article 20.2 above, Buyer may assign, after transfer of
title of the Aircraft, its rights under this Agreement, save and except
for any rights of Buyer which are expressly stated to be personal to
Buyer, to a third party purchaser of any one of the Aircraft, provided
said third party acknowledges in writing to be bound by the applicable
terms and conditions of this Agreement, and provided that there is no
increase to the liability and/or responsibility of Bombardier.
20.4 Bombardier may assign any of its rights to receive money hereunder
without the prior consent of Buyer.
20.5 Notwithstanding the other provisions of this Article 20, Bombardier
shall, at Buyer's cost and expense, if so requested in writing by
Buyer, take any action reasonably required for the purpose of causing
any of the Aircraft to be subjected (i) to, after the Delivery Date, an
equipment trust, conditional sale or lien, or (ii) to another
arrangement for the financing of the Aircraft by Buyer, providing,
however, there shall be no increase to the liability and/or
responsibility of Bombardier arising through such financing.
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ARTICLE 21 - SUCCESSORS
21.1 This Agreement shall inure to the benefit of and be binding upon each
of Bombardier and Buyer and their respective successors and permitted
assignees.
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ARTICLE 22 - APPLICABLE LAWS
22.1 THIS AGREEMENT (AND INCLUDING FOR MORE CERTAINTY ANY APPLICABLE
SUPPLEMENTS) SHALL BE SUBJECT TO AND CONSTRUED IN ACCORDANCE WITH AND
THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY THE DOMESTIC LAWS OF THE
PROVINCE OF ONTARIO, CANADA, EXCLUDING THE CHOICE OF LAW RULES, AND THE
PARTIES HAVE AGREED THAT THE APPLICATION OF THE UNITED NATIONS
CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS HEREBY
EXCLUDED.
22.2 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.
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ARTICLE 23 - CONFIDENTIAL NATURE OF AGREEMENT
23.1 This Agreement is confidential between the parties and shall not,
without the prior written consent of the other party, be disclosed by
either party in whole or in part to any other person or body except:
iii) as may be required by financial institutions or arrangers
involved with the financing of the Aircraft, and then only
subject to such person or body agreeing to execute the
other party's confidentiality agreement. It is the
disclosing party's responsibility to have such form
executed with any third party prior to disclosure of any
such information and to provide such form to the other
party for approval. The foregoing does not apply where the
disclosing party or the applicable third party is required
to disclose such information by law or compelled by court
order to do so, and
iv) as may be required by United Airlines Inc. ("United"), and
then only after a request in writing from United and only
subject to specified receiving personnel of United
agreeing to execute a confidentiality agreement in a form
reasonably acceptable to Bombardier.
23.2 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.
23.3 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.
23.4 In the event that this Agreement is required to be filed as an exhibit
to a registration statement under the Securities Act of 1933 as
amended, (the "Securities" Act) or a periodic report under the Exchange
Act of 1934, as amended (the "Exchange" Act) Buyer shall notify
Bombardier, by written notice, at least forty-five (45) days prior to
the date of such anticipated filing of such determination and the
reasons therefor, and shall use its best efforts to work with
Bombardier to prepare and file with the Securities and Exchange
Commission (the "Commission") a request for confidential treatment
pursuant to Rule 24b-2 under the Exchange Act or Rule 406 under the
Securities Act, as the case may be, with respect to information in this
Agreement, and such other information as Bombardier may reasonably
request.
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Subject to compliance with the foregoing, and notwithstanding the other
provisions of this Article, portions of this Agreement or a Supplement
hereto may be filed as exhibits to such registration statement or
periodic report to the extent required by the Commission and such
filing shall not constitute a breach hereof by Buyer. This provision
shall survive until the latter of (i) the complete performance by Buyer
of its obligation hereunder or (ii) two (2) years from the date hereof.
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ARTICLE 24 - AGREEMENT
24.1 This Agreement including any Supplements pursuant hereto, as same may
be amended from time to time, and the matters referred to herein
constitute the entire Agreement between Bombardier and Buyer with
respect to the Bombardier products governed by the applicable
Supplements and supersede and cancel all prior representations,
brochures, alleged warranties, statements, negotiations, undertakings,
letters, memoranda of agreement, proposals, acceptances, agreements,
understandings, contracts 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 and the
applicable Supplement and no agreement or understanding varying the
terms and conditions hereof shall be binding on either Bombardier or
Buyer hereto unless an amendment to this Agreement or the applicable
Supplement is issued and duly signed by their respective authorized
representatives. In the event of any inconsistencies between this
Agreement and a Supplement or other documents referred to herein, the
provisions of the Supplement shall prevail.
24.2 If any of the provisions of this Agreement or a Supplement 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/the Supplement
and the remainder of this Agreement/the Supplement shall remain in full
force and effect.
24.3 THE BENEFIT OF THE WAIVER, RELEASE, RENUNCIATION AND EXCLUSION OF
LIABILITY IN ARTICLE 19, 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.
24.4 Bombardier and Buyer confirm to each other they have each obtained the
required authorizations and fulfilled any conditions applicable to
enable each of them to enter into this Agreement and any Supplement.
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24.5 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 other mutual agreements of the parties set forth
herein were arrived at in consideration of the provisions contained in
Articles, 12.5, 18.4, 19, Annex A Article 2.9.4.5 and Annex B Article
5.1.
In witness whereof this Agreement was signed on the date written hereof:
For and on behalf of For an on behalf of
SKYWEST AIRLINES, INC. BOMBARDIER INC.
Bombardier Aerospace
"Xxxxxxxx X. Xxxx" "Xxxxx Xxxxxx"
Signed:_____________________ Signed:________________
Xxxxxxxx X. Xxxx Xxxxx Xxxxxx
Executive Vice President Manager of Contracts
CFO, and Treasurer Regional Aircraft
"Xxxx Xxxxxxxxxxx"
Signed:_____________________
Xxxx Xxxxxxxxxxx
Vice President, Planning
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