CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR
CONFIDENTIAL TREATMENT
Exhibit 10.18
XXXXXXX 000XX
XXXXXXXX AGREEMENT DCT-006/2003
BETWEEN
EMBRAER - EMPRESA BRASILEIRA
DE AERONAUTICA S.A.
AND
REGIONAL AIRCRAFT HOLDINGS LTD.
INDEX
PAGE
ARTICLE
1. DEFINITIONS........................................................................................ 4
2. SUBJECT............................................................................................ 6
3. PRICE.............................................................................................. 6
4. PAYMENT............................................................................................ 7
5. DELIVERY........................................................................................... 8
6. CERTIFICATION...................................................................................... 8
7. ACCEPTANCE AND TRANSFER OF OWNERSHIP............................................................... 9
8. STORAGE CHARGE..................................................................................... 10
9. DELAYS IN DELIVERY................................................................................. 11
10. INSPECTION AND QUALITY CONTROL..................................................................... 12
11. CHANGES............................................................................................ 13
12. WARRANTY........................................................................................... 14
13. PRODUCT SUPPORT PACKAGE............................................................................ 14
14. ASSIGNMENT......................................................................................... 14
15. RESTRICTIONS AND PATENT INDEMNITY.................................................................. 15
16. MARKETING PROMOTIONAL RIGHTS....................................................................... 15
17. TAXES.............................................................................................. 16
18. APPLICABLE LAW..................................................................................... 16
19. JURISDICTION....................................................................................... 16
20. TERMINATION........................................................................................ 16
21. OPTION FOR THE PURCHASE OF ADDITIONAL AIRCRAFT..................................................... 17
22. INDEMNITY.......................................................................................... 19
23. NOTICES............................................................................................ 19
24. CONFIDENTIALITY.................................................................................... 20
25. SEVERABILITY....................................................................................... 20
26. NON-WAIVER......................................................................................... 20
27. INTEGRATED AGREEMENT............................................................................... 21
28. NEGOTIATED AGREEMENT............................................................................... 21
29. WAIVER OF JURY TRIAL............................................................................... 21
30. WAIVER OF IMMUNITY................................................................................. 21
Page 1
31. PAYMENTS IN US DOLLARS............................................................................. 21
32. COUNTERPARTS....................................................................................... 22
33. ENTIRE AGREEMENT................................................................................... 22
Page 2
ATTACHMENTS
"A" - AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND REGISTRATION MARKS
"B" - FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
"C" - WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
"D" - PRICE ESCALATION FORMULA
"E" - **Material Redacted**
"F" - **Material Redacted**
"G" - **Material Redacted**
"H" - PERFORMANCE GUARANTEE
Page 3
PURCHASE AGREEMENT DCT-006/2003
THIS AGREEMENT IS ENTERED INTO THIS ____ DAY OF MAY, 2003, BY AND BETWEEN
EMBRAER - EMPRESA BRASILEIRA DE AERONAUTICA S.A. AND REGIONAL AIRCRAFT HOLDINGS
LTD., FOR THE PURCHASE AND SALE OF EMBRAER AIRCRAFT.
THE SALE COVERED BY THIS AGREEMENT SHALL BE GOVERNED SOLELY BY THE TERMS AND
CONDITIONS HEREIN SET FORTH, AS WELL AS BY THE PROVISIONS SET FORTH IN THE
ATTACHMENTS HERETO.
THIS AGREEMENT SHALL NOT BE EFFECTIVE UNLESS AND UNTIL IT IS SIGNED BY AN
AUTHORIZED OFFICER OF REGIONAL AIRCRAFT HOLDINGS LTD. AND EXECUTED BY TWO
AUTHORIZED OFFICERS OF EMBRAER - EMPRESA BRASILEIRA DE AERONAUTICA S.A.
1. DEFINITIONS
For the purpose of this Agreement, the following definitions are hereby
adopted by the Parties and, unless otherwise expressly provided, the
singular includes the plural, the masculine includes the feminine and
neutral genders:
1.1 "Actual Delivery Date" shall mean, with respect to each Aircraft, the date on
which Buyer obtains title to that Aircraft in
accordance with Article 7.
1.2 "AD's" shall mean Airworthiness Directives issued by either
the CTA or the Air Authority, in connection with and
with respect to the Aircraft.
1.3 "Agreement" or "Purchase Agreement" shall mean this Purchase Agreement DCT-006/2003
together with all attachments, supplements and
exhibits hereto, all as modified and amended from time
to time.
1.4 "Air Authority" shall mean the Autoridad de Aviacion Civil ("AAC") of
Panama, or a successor to the AAC from time to time
charged with the administration of civil aviation in
Panama.
1.5 "Aircraft Basic Price" shall mean the Aircraft price, as defined in Article
3.1.
1.6 "Aircraft Purchase Price" shall mean, in respect of an Aircraft, the Aircraft
Basic Price, escalated up to the Contractual Delivery
Date of such Aircraft in accordance with and by
application of the Escalation Formula.
1.7 "Aircraft" shall mean the EMBRAER 190LR aircraft (certification
designation XXX 000-000 XX) (xxx "EMBRAER 190
Aircraft"), manufactured by Embraer according to the
Preliminary Technical Description PTD-190-Rev.3 dated
November 2002, (which, although not attached hereto,
are incorporated herein by reference) and the Aircraft
Specific Configurations, Finishing and Registration
Marks described in the Attachment "A", for sale to
Buyer pursuant to this Agreement, equipped
Page 4
with two engines GE CF-34-10E5A1, manufactured by General
Electric Company, all cases in the condition and
configuration required hereunder, and shall include
Firm Aircraft and Option Aircraft unless the context
requires otherwise.
1.8 "Buyer" shall mean Regional Aircraft Holdings Ltd., a company
with its address x/x Xxxxxxx, Xxxxx x Xxxxx, Xxxxxxx
Xxxxxxxx Xxxx Numero 51 Piso 11, Panama, Rep of Panama.
1.9 "Business Day(s)" shall mean a day other than a Saturday or Sunday on
which banks are open for business in Sao Xxxx dos
Xxxxxx, Sao Paulo, Rio de Janeiro, New York and Panama.
1.10 "Contractual Delivery Date" shall mean the delivery date referred to in Article 5.
1.11 "CTA" shall mean the Aerospace Technical Center of the
Brazilian Ministry of Aeronautics.
1.12 "Day(s) shall mean natural calendar day(s).
1.13 "Embraer" shall mean Embraer - Empresa Brasileira de Aeronautica
S.A., a Brazilian corporation with its principal place
of business at Xx. Xxxxxxxxxx Xxxxx Xxxx, 0000 -
Putim, Sao Xxxx dos Xxxxxx, Sao Paulo, Brazil.
1.14 "Escalation Formula" shall mean the escalation formula contained in
Attachment "D".
1.15 "Firm Aircraft" shall mean the firm order Aircraft referred to in
Article 2.1
1.16 "Initial Deposit" shall mean the initial non-refundable deposit referred
to in Article 4.1.1.
1.17 "Major Changes" shall mean the changes to the design or approved
specification of the Aircraft, as defined in Article
11.2.2.
1.18 "Mandatory Service Bulletins" shall mean the service bulletins applicable to the
Aircraft, which are issued by Embraer to implement the
AD's referred to under Article 11.4.
1.19 "Minor Changes" shall mean the changes to the design of the Aircraft
defined as per the terms and conditions of Article
11.2.1.
1.20 "Option Aircraft Basic Price" shall mean the unit price of the Option Aircraft, as
per the terms and conditions of Article 21.2.
1.20 "Option Aircraft Initial Deposit" shall mean the initial deposit referred to under
Article 21.1.
1.21 "Option Aircraft Purchase Price" shall mean the Option Aircraft Basic Price escalated
in accordance with and by application of the
Escalation Formulas **Material Redacted** as per the
terms and conditions of Article 21.3.
Page 5
1.22 "Option Aircraft" shall be the additional Aircraft that Buyer shall have
the option to purchase as per the terms of Article 21.
1.23 "Parties" shall mean Embraer and Buyer.
1.24 "Product Support Package" shall mean the products and Services to be provided by
Embraer as per Article 13.
1.25 "Scheduled Inspection Date" shall mean the date on which a certain Aircraft
hereunder is available for inspection and acceptance
by and subsequent delivery to Buyer, as per the terms
and conditions of Article 7.1.
1.26 "Services" shall mean the familiarization and on-site support for
the Aircraft, part of the Product Support Package, as
specified in Attachment "B".
1.27 "Technical Publications" shall mean the technical documentation pertaining and
related to the Aircraft as listed in Exhibit 1 to
Attachment "B".
1.28 "USD" or "US$" shall mean the legal currency of the United States of
America.
1.29 "Working Day(s)" shall mean a day, other than Saturday, Sunday, or
holiday, on which Embraer in Sao Xxxx dos Xxxxxx, XX,
Brazil is open for business.
References to Articles or Attachments in the main body of this Purchase
Agreement shall be deemed to be references to Articles of or Attachments to this
Agreement, respectively, except as the context requires otherwise.
2. SUBJECT
Subject to the terms and conditions of this Agreement:
2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery
of ten (10) Firm Aircraft;
2.2 Embraer shall provide to Buyer the Services and the Technical
Publications; and
2.3 Buyer shall have the option to purchase up to twenty (20) Option Aircraft,
in accordance with Article 21.
3. PRICE
3.1 Buyer agrees to pay Embraer, in United States dollars, the Aircraft Basic
Price of USD**Material Redacted** for each EMBRAER 190 Aircraft **Material
Redacted**.
3.2 The Services and Technical Publications are to be provided **Material
Redacted** to Buyer. Additional technical publications as well as other
services shall be billed to Buyer in accordance with Embraer's rates
prevailing at the time Buyer places a purchase order for such additional
technical publications or other services.
3.3 The Aircraft Basic Price shall be escalated according to the Escalation
Formula.
Page 6
Such price as escalated shall be the Aircraft Purchase Price and it will
be provided to Buyer **Material Redacted** months prior to each Aircraft
Contractual Delivery Date.
4. PAYMENT
4.1 The prices specified in the previous Article shall be paid by Buyer by
wire transfer in immediately available United States dollars funds, to a
bank account to be timely informed by Embraer to Buyer, as follows:
4.1.1 The Initial Deposit of **Material Redacted** per Aircraft is due and
payable **Material Redacted**.
4.1.2 A **Material Redacted** percent (**Material Redacted**%) **Material
Redacted** progress payment in respect of each Aircraft **Material Redacted** is
due and payable **Material Redacted** prior to the relevant Aircraft Contractual
Delivery Date, or upon the execution of this Agreement, whichever occurs later.
4.1.3 A **Material Redacted** (**Material Redacted**%) **Material Redacted**
progress payment in respect of each Aircraft **Material Redacted** is due and
payable **Material Redacted** prior to such relevant Aircraft Contractual
Delivery Date, or upon the execution of this Agreement, whichever occurs later.
4.1.4 A **Material Redacted** (**Material Redacted**%) **Material Redacted**
progress payment in respect of each Aircraft **Material Redacted** is due and
payable **Material Redacted** prior to each relevant Aircraft Contractual
Delivery Date, or upon the execution of this Agreement, whichever occurs later.
4.1.5 The balance of the Aircraft Purchase Price in respect of an Aircraft,
shall become due and payable upon acceptance of such Aircraft by Buyer.
4.2 Late Payments:
In respect of any amounts which are or may become due and payable pursuant
to Articles 4.1.1 through and including 4.1.4 which amounts are not paid
within **Material Redacted** and payable as set forth in Article 4.1,
interest shall accrue on the relevant amount at the rate of **Material
Redacted** per annum (the "Default Rate") following the Due Date and
ending on the date the relevant amount is received by EMBRAER In respect
of accounts which may become due and payable pursuant to Article 4.1.5,
interest shall accrue thereon at the rate set forth herein above. Without
prejudice to Embraer's rights set forth in Article 4.3 below, interest
accrued will be invoiced by Embraer on a monthly basis, beginning one
month after **Material Redacted**, and payment thereof shall be made by
Buyer in accordance with the instructions contained therein.
4.3 Termination for failure to make payments:
Without prejudice to the payment of interest on late payments set forth
above, should Buyer fail to make any payment on or before the due date,
Embraer shall have the right, at its sole discretion, to either (i)
postpone, the relevant Aircraft Contractual Delivery Date; or (ii)
terminate this Agreement in relation to the affected Aircraft in
accordance with Article 20.3, if such failure shall not have been cured
within **Material Redacted** Days after the date on which Embraer has
issued a
Page 7
written notice to Buyer of such failure.
4.4 Net payments:
4.4.1 All payments to be made by Buyer under this Agreement shall be made
without set-off or withholding whatsoever (except for Embraer Taxes, as defined
in Article 17). If Buyer is obliged by law to make any deduction or withholding
from any such payment (other than for Embraer Taxes), the amount due from Buyer
in respect of such payment shall be increased to the extent necessary to ensure
that, after the making of such deduction or withholding, Embraer receives a net
amount equal to the amount Embraer would have received had no such deduction or
withholding been required to be made.
4.5 Payment Date
Unless otherwise agreed by the Parties in writing, payment of the amounts
referred in Articles 4.1.2, 4.1.3, and 4.1.4 shall be made by Buyer on
**Material Redacted** Day of the month on which each of such payments is
due.
5. DELIVERY
5.1 Aircraft: Subject to payment in accordance with Article 4 and the
provisions of Articles 7 and 9, the Aircraft shall be tendered by Embraer
to Buyer in the condition required hereunder, by means of a written
notice, for inspection, acceptance and subsequent delivery in Fly Away
Factory condition (i.e., Ex works (Incoterms 2000), with the Aircraft to
be flown away by Buyer), at Sao Xxxx dos Xxxxxx, State of Sao Paulo,
Brazil, according to the following schedule:
Aircraft Number Contractual Delivery Date
--------------- -------------------------
1 **Material Redacted**/2006
2 **Material Redacted**
3 **Material Redacted**
4 **Material Redacted**
5 **Material Redacted**
6 **Material Redacted**
7 **Material Redacted**
8 **Material Redacted**
9 **Material Redacted**
10 **Material Redacted**/2008
5.2 **Material Redacted**
6. CERTIFICATION
6.1 By **Material Redacted**, the Embraer 190LR model aircraft shall be type
certified by the Brazilian Airworthiness Authority (CTA) and type
validated by (a) USA FAA in accordance with 14 CFR FAR 25 Amendment 25-84
effective 10 July 1995 and (b) by the Airworthiness Authority of Panama
("AAC"), provided that **Material Redacted**.
Page 8
6.2 The Aircraft shall be delivered to Buyer in conformity with **Material
Redacted** and with the requirements set forth herein. Embraer will
provide Buyer with an export certificate of airworthiness issued by CTA,
which will certify that, as of the date of its issuance, the Aircraft has
been inspected and found to conform in all respects to the CTA / AAC
approved Type Design and in a condition **Material Redacted**. The
condition of the Aircraft on delivery and the documentation delivered with
the Aircraft, including the above mentioned export certificate of
airworthiness, shall **Material Redacted**. Subject to the above, it shall
be Buyer's responsibility to obtain such certificate of airworthiness for
and the registration of the Aircraft, at Buyer's sole expense. **Material
Redacted**
7. ACCEPTANCE AND TRANSFER OF OWNERSHIP
7.1 Unless Buyer is notified of any delay in delivery in accordance with and
in conformity with the terms and conditions of this Agreement, the
Aircraft shall be delivered in accordance with all of the provisions and
schedules specified in Article 5 and otherwise in such condition as
required under this Agreement. Embraer shall give Buyer **Material
Redacted** Days advance facsimile notice of the date on which Embraer
considers that each Aircraft will be ready for inspection, acceptance and
subsequent delivery. Upon successful completion of ground and flight tests
performed by Embraer, Buyer will receive a written confirmation of the
Scheduled Inspection Date, on which date Buyer shall promptly start
inspecting such Aircraft.
7.2 Buyer shall have up to **Material Redacted** Days, as necessary, to
inspect and conduct an acceptance flight of each Aircraft prior to its
delivery. Embraer will provide the fuel and insurance for the Aircraft's
acceptance flight in accordance with Embraer insurance policy.
7.3 If Buyer finds an Aircraft acceptable, Buyer shall promptly pay any and
all amounts then due and payable pursuant to this Agreement, including but
not limited to all amounts referred to under Articles 4.1, 4.2, 7.8 and 8
as applicable and accept delivery of such Aircraft, whereupon the
necessary title and risk transfer documents shall be executed and
exchanged in order to effect title transfer, subject to all express
warranties set forth in this Agreement that by their terms survive
delivery.
7.4 Buyer may decline to accept an Aircraft, which does not materially comply
with the requirements of Article 6, the specification set forth in
Attachment "A" or is not in an airworthy condition. For the purposes of
**Material Redacted**, an Aircraft shall be deemed not to be materially
compliant when one or more of the Aircraft characteristics identified in
Article 11.2.1 **Material Redacted** are adversely affected by such
non-compliance vis-a-vis the specification set forth in Attachment A.
7.5 If Buyer declines to accept an Aircraft, Buyer shall immediately give
Embraer written notice including its reasons for such refusal and Embraer
shall have **Material Redacted** Days, commencing on the first Working Day
after receipt of such notice, to take all necessary actions in order to
resubmit the Aircraft to Buyer for re-inspection.
Page 9
7.6 Buyer shall be allowed **Material Redacted** Days to re-inspect the
Aircraft, starting immediately upon receipt of notice from Embraer that
all necessary actions were taken. The period required for inspection as
well as the one mentioned in Article 7.5 shall not be considered as part
of the **Material Redacted** Day grace period provided for in Article
9.2.1. In the event Buyer declines to accept an Aircraft after **Material
Redacted**, the Parties shall convene promptly after final refusal to
accept the Aircraft in order to negotiate possible solutions. If within
**Material Redacted** Days counted from the date in which Embraer receives
notice of such final refusal to accept the Aircraft, Embraer and Buyer
fail to reach an agreement, then **Material Redacted**.
7.7 Should Buyer fail to perform the acceptance and accept transfer of title
to an Aircraft **Material Redacted** provided for and in accordance with
this Article 7, Embraer shall be entitled, at its reasonable discretion,
to either re-negotiate the terms of this Agreement with Buyer or terminate
this Agreement with regard to the affected Aircraft pursuant to Article
20.3. **Material Redacted**
7.8 Notwithstanding the provisions of Article 7.7 and in addition to Embraer's
rights pursuant to Article 20.3 and **Material Redacted** should Buyer
fail to perform the acceptance and transfer of title to the Aircraft
within the time period specified in Articles 7.2, 7.5 and 7.6, as
applicable **Material Redacted**, interest will accrue at the rate of
**Material Redacted** over the unpaid balance of the relevant Aircraft
Purchase Price, prorated from the date **Material Redacted** Days after
**Material Redacted**. Without prejudice to Embraer's rights set forth in
Article 7.7, interest accrued will be invoiced by Embraer on a monthly
basis, beginning one month after the date on which the Aircraft acceptance
or transfer of title should have been performed, and payment thereof shall
be made by Buyer in accordance with the instructions contained therein.
8. STORAGE CHARGE
8.1 A storage charge equal to USD**Material Redacted** per Day shall be
charged by Embraer to Buyer commencing on:
8.1.1 Buyer's failure to perform inspection or re-inspection of an Aircraft, per
the date or time period properly specified in writing by Embraer, according to
Articles 5 and/or 7, as applicable.
8.1.2 Buyer's acceptance of an Aircraft when Buyer defaults in the fulfillment
of any payment due and in taking title to such Aircraft promptly thereafter.
8.1.3 Buyer's failure to remove an Aircraft from Embraer's facilities after
title transfer has occurred.
8.2 If however, Buyer notifies Embraer in writing **Material Redacted** Days
in advance of its expected delay in the performance of its obligations set
forth in Articles 8.1.1, 8.1.2 and 8.1.3, the storage charge shall
commence on the **Material Redacted** Day after the occurrence of the
events set forth in Articles 8.1.1, 8.1.2 or 8.1.3, as applicable.
8.3 In the event that an Aircraft Contractual Delivery Date must be extended
by Embraer from that which is designated in Article 5, due to Buyer's
failure to
Page 10
perform any action or provide any information contemplated by this
Agreement other than the ones specified in Article 8.1, the storage charge
shall commence on the **Material Redacted** Day after the Contractual
Delivery Date relative to such Aircraft.
8.4 Buyer shall pay the storage charge as set forth in Articles 8.1. or 8.3,
as applicable, in United States dollars, per each month of delay or
prorated for part thereof, within **Material Redacted** Days after the
presentation of each invoice by Embraer.
9. DELAYS IN DELIVERY
9.1 Excusable Delays:
9.1.1 Embraer shall not be held liable or be found in default for any delays in
the delivery of an Aircraft or in the performance of any act to be performed by
Embraer under this Agreement, resulting from, but not restricted to, the
following events or occurrences (hereinafter referred to as "Excusable Delays"):
(a) force majeure (including, but not limited to acts of God, war or state of
war, civil war, insurrection, fire, accident, explosion, flood, act of
government, requisition, strike, labor disputes causing cessation or
interruption of work, including but not limited to walkouts, sick-outs, protests
or slowdowns), (b) inability despite due and all commercially reasonable efforts
to procure any materials, equipment, accessories, parts or means of transport,
or (c) any delay resulting from any failure by Buyer to perform any action or
provide any information contemplated by this Agreement or, (d) delays resulting
from any other cause to the extent it is beyond Embraer's control or does not
result from Embraer's fault or negligence.
9.1.2 Within **Material Redacted** Days after the occurrence of any Excusable
Delay, Embraer undertakes to send a written notice to Buyer including a
description of the details involved and an estimate of the effects
expected upon the timing of the performance of its contractual
obligations.
9.1.3 Any such delays shall extend the time for delivery of an Aircraft
**Material Redacted** by the same number of Days required for the cause of
delay to be remedied, subject in all cases to the provisions of Article
9.1.4. Embraer undertakes to use all commercially reasonable efforts to
avoid or remove any cause of Excusable Delay and to minimize its effect on
the Contractual Delivery Date of an Aircraft **Material Redacted**.
9.1.4 If the cause of such Excusable Delay is such as to last longer than
**Material Redacted** Days or to render the performance of this Agreement
impossible, then Buyer shall have the right to terminate this Agreement
without liability to either Party, except as provided for in Article 20.2.
9.1.5 **Material Redacted**
9.2 Non-Excusable Delays:
9.2.1 If the delivery of an Aircraft is delayed for any reason that does not
constitute an Excusable Delay (hereinafter a "Non-excusable Delay") by
more than **Material Redacted** Days after the Contractual Delivery Date
for such Aircraft, Buyer xxxx
Xxxx 11
be entitled to claim from Embraer and Embraer shall pay to Buyer
liquidated damages equal to **Material Redacted** up to the date that the
Aircraft is available for inspection and acceptance by, and delivery to
Buyer in conformity herewith, it being understood that such liquidated
damages will not, in any event, exceed **Material Redacted** and that it
will only be due and payable by Embraer to Buyer within **Material
Redacted** Days after Buyer pays to Embraer the total Aircraft Purchase
Price, **Material Redacted**.
9.2.2 Upon the occurrence of any event, which constitutes a Non-excusable Delay
in delivery of an Aircraft, Embraer undertakes to send a written notice to
Buyer, within **Material Redacted**, including a description of the delay
and an estimate of the effects expected upon the delivery of the Aircraft.
9.2.3 It is agreed between the Parties that if, with respect to a delayed
Aircraft, Embraer does not receive a claim for liquidated damages pursuant
to Article 9.2.1, from Buyer, within **Material Redacted** Days after the
Actual Delivery Date of such Aircraft, Buyer shall be deemed to have fully
waived its right to such liquidated damages.
9.2.4 **Material Redacted**
9.3 Delay Due to Loss or Structural Damage of the Aircraft:
Should any Aircraft be destroyed or damaged before acceptance to the
extent that it becomes commercially useless, Buyer may, **Material
Redacted**, either take a replacement Aircraft at a later delivery date to
be agreed by the Parties, or terminate this Agreement with respect to such
Aircraft by notice to Embraer given in accordance with Article 23, without
any liability to either Party. If this Agreement is terminated **Material
Redacted**, such termination shall discharge the Parties from all
obligations and liabilities of the Parties hereunder with respect to such
Aircraft and Services **Material Redacted**.
10. INSPECTION AND QUALITY CONTROL
10.1 In order to effect inspection and acceptance of the Aircraft as set forth
in Article 7, Buyer shall send one or more authorized representatives to
Embraer's facilities in order to verify that the Aircraft was manufactured
in accordance with the procedures, specifications and other requirements
specified in this Agreement and according to all applicable quality
control standards.
10.2 Buyer shall communicate to Embraer the names of its authorized
representatives, by means of written notice, at least thirty (30) Days
prior to the earliest delivery date specified in Article 5.
10.3 Such representatives, or other representatives indicated by Buyer, shall
be authorized and duly empowered to sign the acceptance and documents and
accept delivery of the Aircraft pursuant to Article 7.
10.4 For the purposes subject of this Article 10, Embraer shall provide
communication facilities (telephone and facsimile) for Buyer's authorized
representatives, as well as the necessary tools, measuring devices, test
equipment and technical assistance as may be necessary to perform
acceptance tests.
Page 12
10.5 Buyer's authorized representatives shall observe Embraer's administrative
rules and instructions while at Embraer's facilities.
10.6 Buyer's authorized representative shall be allowed exclusively in those
areas related to the subject matter of this Article 10 and Buyer
furthermore agrees to hold harmless Embraer from and against all and any
kind of liabilities in respect to such representatives, for whom Buyer is
solely and fully responsible under all circumstances and in any instance.
11. CHANGES
11.1 In addition to the requirements of Article 6, each Aircraft will comply
with the standards defined in Attachment "A" and shall incorporate all
modifications which are classified as AD's mandatory by CTA or the Air
Authority as provided in Article 11.4, or those agreed upon by Buyer and
Embraer in accordance with this Article.
11.2 The Parties hereby agree that changes can be made by Embraer in the
design of the Aircraft, the definition of which and its respective
classification shall be in compliance to the Aircraft type specification,
as follows:
11.2.1 Minor Changes: defined as those modifications which shall not adversely
affect the Aircraft in any of the following characteristics:
**Material Redacted**
11.2.2 Major Changes: defined as those modifications which affect at least one
of the topics mentioned in Article 11.2.1.
11.3 Embraer shall have the right, but not the obligation (except to the
extent required by the CTA or applicable Aviation Authorities), to
incorporate Minor Changes in the Aircraft still in the production line at
its own cost, without the prior consent of Buyer.
11.4 Embraer shall convey those Major Changes that are classified as AD's by
means of service bulletins approved by the Air Authority and/or CTA, as
appropriate. Service bulletins that implement such ADs shall be referred
to as Mandatory Service Bulletins. Embraer shall incorporate Mandatory
Service Bulletins as follows:
11.4.1 Compliance required before Actual Delivery Date: Embraer shall
incorporate Mandatory Service Bulletins at Embraer's expense in a
reasonable period of time if the compliance time for such Mandatory
Service Bulletins is before the Actual Delivery Date. Embraer shall not
be liable for **Material Redacted** resulting from incorporation of
Mandatory Service Bulletins when the Aircraft has already passed the
specific production stage affected by the incorporation of said change.
11.4.2 Compliance required after Actual Delivery Date: During the applicable
Aircraft warranty coverage periods as specified in Attachment "C",
Embraer shall provide parts kits for Mandatory Service Bulletins that
are issued either (i) before the relevant Aircraft's Actual Delivery
Date but with a compliance time after such date or (ii) after the
relevant Aircraft's Actual Delivery Date. Such kits shall be
Page 13
provided **Material Redacted**, excluding **Material Redacted** labor
charges for installation of such Mandatory Service Bulletins **Material
Redacted**. Embraer shall not be liable for any downtime of delivered
Aircraft that may be necessary for the incorporation of any changes. When
flight safety is affected, such changes shall be immediately incorporated.
If warranty coverage is not available or applicable pursuant to Attachment
"C", the provisions of Article 11.5 shall apply.
For the avoidance of doubt, the **Material Redacted** shall **Material
Redacted** pursuant to **Material Redacted**.
11.5 Major changes, (other than those which are AD's mandatory per Article
11.4), any change developed by Embraer as product improvement and any
change required by Buyer, including those changes required by Panamanian
authorities as a consequence of alterations, amendments and/or innovations
of its present applicable regulations, shall be considered as optional
and, pursuant to Buyer's request, the corresponding cost proposals shall
be submitted by Embraer to Buyer for consideration and approval. Should
Buyer not approve any such change, it shall not be incorporated in the
Aircraft.
11.6 Any Major Change to the Aircraft, made in accordance with the foregoing
paragraphs, which affect the provisions of Attachment "A", shall be
incorporated in said Attachment by means of an amendment.
11.7 Except as concerns AD's and Minor Changes, the Aircraft shall, on the
Scheduled Inspection Date, comply with the terms and conditions of
Attachment "A" as from time to time amended pursuant to Article 11.6.
Determination of such compliance shall be made by Buyer pursuant to
Article 7.
12. WARRANTY
The materials, design and workmanship relative to the Aircraft subject to
this Agreement, will be warranted in accordance with the terms and
conditions specified in Attachment "C". If Buyer intends to place the
Aircraft on lease to another Party or to assign, transfer or novate the
rights and obligations except as specified in Article 14, it is Buyer's
responsibility to obtain the prior written consent of Embraer, which
consent shall not be unreasonably withheld or delayed, as well as to
provide Embraer written notice of any changes as to Buyer's designated
lessee or assignee complying with item 5 of Attachment "C".
13. PRODUCT SUPPORT PACKAGE
Embraer shall supply to Buyer the Product Support Package described in
Article 2 of Attachment "B", which includes Embraer's spare parts policy,
the Technical Publications and the Services.
14. ASSIGNMENT
Buyer's rights and obligations hereunder may not be assigned, transferred
or novated without the prior written consent of Embraer, which shall not
be unreasonably withheld or delayed. Notwithstanding the foregoing, Buyer
may immediately before delivery assign the rights to take delivery of an
Aircraft and
Page 14
Buyer's rights pursuant to **Material Redacted** to any related person or
entities or to any trust created by it or such persons or to any financing
party whether by way of security in connection with the financing or the
sale/leaseback of any Aircraft to be operated by Compania Panamena de
Aviacion, S.A.
Embraer's rights and obligations hereunder may not be assigned or
delegated without the prior written consent of Buyer, which shall not be
unreasonably withheld or delayed.
15. RESTRICTIONS AND PATENT INDEMNITY
This sale does not include the transfer of designs, copyrights, patents,
and other similar rights to Buyer. Embraer warrants that the Aircraft and
all systems, accessories, equipment, items and parts manufactured by or at
the direction or utilizing designs of Embraer do not infringe any patent,
copyright or other proprietary right of any person. Subject to Buyer's
duty to promptly advise Embraer of any alleged infringement (it being
understood that any failure to so notify Embraer shall only relieve
Embraer of its obligations pursuant hereto to the extent of actual
prejudice suffered by Embraer as a direct result of such failure), Embraer
shall indemnify, defend, protect and hold Buyer harmless with respect to
any claims, suits, actions, judgments, liabilities, damages and costs,
including reasonable attorney fees and expenses arising out of or in
connection with any actual or alleged infringement by any Aircraft or any
system, accessory, equipment, item or part installed on any Aircraft at
the time of delivery of such Aircraft or thereafter, at Embraer's
direction. In the event of any such infringement, and in addition to the
foregoing obligations of Embraer, Embraer shall promptly, at its sole
option and expense, either: (i) procure for Buyer the right to use the
system, accessory or equipment or part; (ii) replace such system
accessory, equipment or part with a non-infringing item or part; or (iii)
modify such system, accessory, equipment or part to make it
non-infringing.
This indemnity shall not apply to Buyer-furnished equipment, nor to
aircraft engines or APUs, nor to any system, accessory, equipment or part
that was not manufactured to Embraer's detailed design, nor to any system,
accessory, equipment or part manufactured to Embraer's detailed design
without Embraer's consent.
16. MARKETING PROMOTIONAL RIGHTS
Embraer shall have the right to show for marketing purposes, free of any
charge, the image of Buyer's Aircraft, painted with Buyer's colors and
emblems, affixed in photographs, drawings, films, slides, audiovisual
works, models or any other medium of expression (pictorial, graphic, and
sculptural works), through all mass communications media such as
billboards, magazines, newspaper, television, movie, theaters, as well as
in posters, catalogues, models and all other kinds of promotional
material. **Material Redacted** Embraer **Material Redacted**. In the
event such Aircraft is sold to or operated by or for another company or
person, Embraer shall be entitled to disclose such fact, as well as to
continue to
Page 15
show the image of the Aircraft, free of any charge, for marketing
purposes, either with the original. If accepted, said prohibition,
however, shall in no way apply to the promotional materials or pictorial,
graphic or sculptural works already existing or to any contract for the
display of such materials or works already binding Embraer at the time of
receipt of the notification. **Material Redacted**.
17. TAXES
Embraer shall pay all taxes **Material Redacted** as may be imposed under
Brazilian laws. All other taxes, **Material Redacted** as may be imposed
on the transactions subject of this Agreement, shall be borne by Buyer.
18. APPLICABLE LAW
This Agreement shall be construed in accordance with and its performance
shall be governed by the laws of the State of New York, USA without regard
to any conflict of law rules other than General Obligations Law 5-1401 and
5-1402.
19. JURISDICTION
All disputes arising in connection with this Agreement shall be finally
settled in the courts of the United States District Court for the Southern
District of New York located in the county of New York, provided that if
such court lacks jurisdiction, disputes shall be resolved in the state
courts for the state of New York sitting in the Borough of Manhattan, City
of New York. The Parties hereby waive any other court of Jurisdiction that
may be competent for settlement of disputes arising from this Agreement.
**Material Redacted**
20. TERMINATION
20.1 Should either Party fail to perform its obligations hereunder, the other
Party shall be entitled to give notice of such failure and to require that
such failure be remedied within the period specified in that notice, which
period shall not be less than **Material Redacted** Days. Should such
failure not be remedied within the period so specified, then the Party who
gave notice of such failure shall be entitled to terminate this Agreement
**Material Redacted**. The foregoing provision shall not apply in any
circumstance where a specific right of termination is made available
hereunder or will be made available hereunder upon the expiration of a
specific period of time. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS
AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN ANY
CIRCUMSTANCE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL OR PUNITIVE
DAMAGES WHICH MAY ARISE OUT OF, OR BE CONNECTED TO, ANY BREACH OR DEFAULT
UNDER OF ANY TERM, CONDITION, COVENANT, WARRANTY, OR PROVISION OF THIS
AGREEMENT, AND WHICH EITHER PARTY WOULD OTHERWISE BE ENTITLED TO UNDER ANY
APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO ANY CLAIMS SOUNDING IN
CONTRACT, TORT, EQUITY OR STATUTE.
20.2 Buyer and Embraer shall have the right to terminate this Agreement in
respect to
Page 16
the relevant Aircraft, upon the occurrence of any Excusable Delay of
**Material Redacted** Days or longer, unless otherwise agreed in writing
by the Parties, and Buyer shall have the right to terminate this Agreement
in respect to the relevant Aircraft upon the occurrence of any
Non-excusable Delay of **Material Redacted** Days or longer after the
relevant Aircraft Contractual Delivery Date, such rights to be exercisable
by written notice from one Party to the other to such effect no earlier
than such **Material Redacted** Day, as applicable. Upon receipt of such
notice of termination by Buyer or Embraer, as the case may be, **Material
Redacted**. It is hereby agreed by the Parties that, in either case, no
other indemnity shall be due by Embraer to Buyer.
**Material Redacted**
20.3 If Buyer terminates this Agreement before the Actual Delivery Date of an
Aircraft (except as provided in Article 20.1 and 20.2) or if Embraer
terminates this Agreement in relation to an Aircraft, pursuant to Articles
4.3 or 7.7, Buyer shall pay to Embraer (i) damages in an amount equal to
**Material Redacted**. For these purposes Embraer may **Material
Redacted**. It is hereby agreed by the Parties that upon the receipt by
Embraer of the amounts set forth above, no other indemnity shall be due by
Buyer to Embraer.
**Material Redacted**
20.4 If Buyer terminates this Agreement in respect to an Aircraft pursuant to
Article 7.6, Embraer, shall **Material Redacted**, with no other penalty
or indemnity being due by Embraer to Buyer in this case.
**Material Redacted**
20.5 **Material Redacted**
21. OPTION FOR THE PURCHASE OF ADDITIONAL AIRCRAFT
Buyer shall have the option to purchase twenty (20) additional Option
Aircraft, to be delivered in accordance with the following Option Aircraft
contractual delivery date:
Option **Material Option Exercise
Aircraft Delivery month Redacted** Aircraft Delivery month Date
-------- -------------- ---------- -------- -------------- --------
1 **Material **Material 12 **Material **Material
Redacted** Redacted** Redacted** Redacted**
2 **Material 13 **Material
Redacted** Redacted**
3 **Material **Material 14 **Material
Redacted** Redacted** Redacted**
4 **Material 15 **Material **Material
Redacted** Redacted** Redacted**
5 **Material **Material 16 **Material
Redacted** Redacted** Redacted**
Page 17
Option **Material Option Exercise
Aircraft Delivery month Redacted** Aircraft Delivery month Date
-------- -------------- ---------- -------- -------------- --------
6 **Material 17 **Material
Redacted** Redacted**
7 **Material 18 **Material **Material
Redacted** Redacted** Redacted**
8 **Material 19 **Material
Redacted** Redacted**
9 **Material **Material 20 **Material
Redacted** Redacted** Redacted**
10 **Material
Redacted**
11 **Material
Redacted**
The Option Aircraft will be supplied in accordance with the following terms and
conditions:
21.1 **Material Redacted** is due and payable by Buyer to Embraer in
accordance with **Material Redacted**.
21.2 The unit basic price of the Option Aircraft shall be equal to the unit
Aircraft Basic Price, provided that such Option Aircraft be delivered
within the delivery period above mentioned and in the same
configuration, specification and installations specified in Attachment
"A", as it is written on the date of signature of this Agreement,
determining the Option Aircraft Basic Price.
21.3 The unit basic price of each relevant Option Aircraft above mentioned
shall be escalated according to the escalation formula subject of
Attachment "D", determining the Option Aircraft Purchase Price.
21.4 The payment of the Option Aircraft Purchase Price shall be made
according to the following:
21.4.1 **Material Redacted** shall apply **Material Redacted**.
21.4.2 A progress payment of **Material Redacted** percent (**Material
Redacted**%) of the unit Option Aircraft Basic Price less the relevant
Option Aircraft Initial Deposit is due and payable **Material Redacted**
prior to each relevant Option Aircraft contractual delivery date.
21.4.3 A progress payment of **Material Redacted** percent (**Material
Redacted**%) of the unit Option Aircraft Basic Price is due and payable
**Material Redacted** prior to each relevant Option Aircraft contractual
delivery date.
21.4.4 A progress payment of **Material Redacted** percent (**Material
Redacted**%) of the unit Option Aircraft Basic Price is due and payable
**Material Redacted** prior to each relevant Option Aircraft contractual
delivery date.
21.4.5 The balance of each relevant Option Aircraft Purchase Price is due and
payable upon acceptance of each relevant Option Aircraft by Buyer.
Page 18
21.4.6 The provisions of Article 4.3 through 4.5 shall apply mutatis-mutandis,
to the payments to be made by Buyer towards the Option Aircraft.
21.5 Buyer has the option to purchase the Option Aircraft in **Material
Redacted**. Exercise of each **Material Redacted** shall be accomplished
by means of a written notice from Buyer delivered to Embraer by mail,
return receipt requested, express delivery or facsimile, no later than
the "Exercise Date" **Material Redacted**, otherwise **Material
Redacted**.
On the **Material Redacted** Exercise Date, Buyer shall inform Embraer
**Material Redacted** will be exercised or not. In the event on the
Exercise Date Buyer elects to not exercise **Material Redacted**,
Buyer's options **Material Redacted**.
If, however, in the Exercise Date Buyer elects to exercise its option in
**Material Redacted**, Buyer will **Material Redacted**, provided
however **Material Redacted** in Embraer's **Material Redacted**.
21.6 If the options are confirmed by Buyer as specified above, (a) an
amendment to this Agreement shall be executed by and between the Parties
within thirty (30) Days following the Option Aircraft option exercise
date, setting forth the terms and conditions applicable to, if any,
exclusively to the Option Aircraft and (b) the **Material Redacted**
shall **Material Redacted**.
21.7 For the avoidance of any doubt, the terms and conditions contained in
this Agreement shall also apply to any exercised Option Aircraft, with
the exception that the product support package to be applied to the
exercised Option Aircraft shall be as described in Article 2 of
Attachment "B".
22. INDEMNITY
Buyer agrees to indemnify and hold harmless Embraer and Embraer's
officers, agents, employees and assignees from and against all
liabilities, damages, losses, judgments, claims and suits, including
costs and expenses incident thereto, which may be suffered by, accrued
against, be charged to or recoverable from Embraer and/or Embraer's
officers, agents, employees and assignees by reason of loss or damage to
property or by reason of injury or death of any person resulting from or
in any way connected with the performance of services by employees,
representatives or agents of Embraer for or on behalf of Buyer related
to Aircraft delivered by Embraer to Buyer, including, but not limited
to, technical operations, maintenance, and training services and
assistance performed while on the premises of Embraer or Buyer, while in
flight on Buyer-owned Aircraft or while performing any other service, at
any place, in conjunction with the Aircraft operations of Buyer, except
to the extent caused by Embraer's willful misconduct or gross
negligence.
23. NOTICES
All notices permitted or required hereunder shall be in writing in the
English language and sent, by recognized international courier service
or facsimile, to the attention of the Director of Contracts as to
Embraer and of the CEO as to Buyer, to the addresses indicated below or
to such other address as either Party may, by
Page 19
written notice, designate to the other. All notices shall be deemed to
have been duly made, given and received, only when properly addressed (as
set forth below): (i) on the date received by personal delivery; or (ii)
on the date received when deposited with a internationally recognized
courier service; or (iii) five business days after sending, when sent via
Certified Mail, Return Receipt Request; or (iv) upon receipt when sent via
facsimile (with a second copy sent via Mail) to the facsimile number set
forth below and a confirmation of receipt is received by the sending
Party:
23.1 EMBRAER:
EMBRAER - Empresa Brasileira de Aeronautica S.A.
Xx. Xxxxxxxxxx Xxxxx Xxxx, 0000
12.227-901 Sao Xxxx dos Xxxxxx - SP - Brasil
Telephone: (x00 00) 0000-0000
Facsimile: (x00 00) 0000-0000
23.2 BUYER:
REGIONAL AIRCRAFT HOLDINGS LTD.
x/x Xxxxxxx, Xxxxx x Xxxxx
Xxxxxxx Xxxxxxxx Xxxx Numero 51 Piso 11
Panama, Rep of Panama
Fax: 000-000-0000
24. CONFIDENTIALITY
Neither Buyer nor Embraer shall disclose the terms of this Agreement
except as needed to its officers, employees, auditors, insurers (brokers)
and legal advisors and except (a) as required by law or legal process, (b)
to a prospective financing party in connection with the financing of
Aircraft (limited to assignable provisions), or (c) with the prior written
consent of the other party. In addition, Buyer and Embraer may disclose
the terms of this Agreement **Material Redacted**, provided that
**Material Redacted**, or in the case of **Material Redacted**. Without
limiting the foregoing, in the event either Party is legally required to
disclose the terms of this Agreement, each Party agrees to exert its best
efforts to request confidential treatment of the articles and conditions
of this Agreement relevantly designated by the other as confidential.
25. SEVERABILITY
If any provision or part of a provision of this Agreement or any of the
Attachments shall be, or be found by any authority or court of competent
jurisdiction to be, illegal, invalid or unenforceable, such illegality,
invalidity or unenforceability shall not affect the other provisions or
parts of such provisions of this Agreement, all of which shall remain in
full force and effect.
26. NON-WAIVER
Page 20
Except as otherwise specifically provided to the contrary in this
Agreement, any Party's refrain from exercising any claim or remedy
provided for herein shall not be deemed a waiver of such claim or remedy,
and shall not relieve the other Party from the performance of such
obligation at any subsequent time or from the performance of any of its
other obligations hereunder.
27. INTEGRATED AGREEMENT
All attachments and exhibits referred to or delivered in connection with
this Agreement and/or attached hereto are, by such reference or
attachment, incorporated in this Agreement to the same extent as if fully
set forth herein.
28. NEGOTIATED AGREEMENT
Buyer and Embraer agree that this Agreement, including all of its
Attachments, has been the subject of discussion and negotiation and is
fully understood by the Parties, and that the rights, obligations and
other mutual agreements of the Parties contained in this Agreement are the
result of such complete discussion and negotiation between the Parties.
29. WAIVER OF JURY TRIAL
EACH OF EMBRAER AND BUYER HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING TO WHICH THEY ARE BOTH PARTIES INVOLVING, DIRECTLY OR
INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE)
IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH THIS AGREEMENT.
30. WAIVER OF IMMUNITY
To the extent that either party may in any jurisdiction in which
proceedings may at any time be taken for the determination of any question
arising under or for the enforcement of this Agreement be entitled to
claim or otherwise be accorded for itself or its respective property,
assets or revenues immunity fro suit or attachment (whether in aid of
execution, before judgment or otherwise) or other legal process, and to
the extent that in any such jurisdiction, there may be attributed to
either party, or its respective property, assets or revenues such immunity
(whether or not claimed), both Parties hereby irrevocably agree not to
claim and waive such immunity to the fullest extent permitted by the law
of such jurisdiction.
31. PAYMENTS IN US DOLLARS
All amounts to be paid hereunder shall be paid in United States dollars
("Dollars"), in immediately available funds. The specifications of Dollars
in this transaction is of the essence. The obligations of either party in
respect of payments to be made hereunder shall not be discharged by an
amount paid in another currency, whether pursuant to a judgment or
otherwise, to the extent that the amount so paid on prompt conversion to
Dollars under normal banking procedures does not yield the amount of
Dollars owing to the party receiving the same. If a party receives an
amount in respect of the other party's liability under this Agreement or
if such liability is converted into a claim, proof, judgment or
Page 21
order in a currency other than Dollars, the party liable for payment will
indemnify the party to whom payment is to be made an in independent
obligation against any loss arising out of or as a result of such receipt
or conversion. If the amount received by such party, when converted into
Dollars (at the market rate at which the receiving party is able on the
relevant date to purchase Dollars in New York with that other currency) is
less than the amount owed in Dollars the party liable for such payment
hereunder will, forthwith on demand, pay to the party entitled to receive
such payment an amount in Dollars equal to the deficit.
32. COUNTERPARTS
This Agreement may be signed by the Parties in any number of separate
counterparts with the same effect as if the signatures thereto and hereto
were upon the same instrument and all of which when taken together shall
constitute one and the same instrument.
33. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the Parties with
respect to the matters contained herein and supersedes all previous and
connected negotiations, representations and agreements between the
Parties, whether in writing or other form. This Agreement may not be
altered, amended or supplemented except by a written instrument executed
by the Parties.
Page 22
ATTACHMENT "A" - AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND
REGISTRATION MARKS
1. STANDARD AIRCRAFT
The EMBRAER 190 Aircraft shall be manufactured according to the standard
configuration specified in Embraer's Preliminary Technical Description
PTD-190/195 Rev.3 dated as of November 2002 **Material Redacted**.
2. OPTIONAL EQUIPMENT
2.1 OPTIONS TO STANDARD AVIONICS CONFIGURATION
**Material Redacted**
2.2 OPTIONAL SYSTEM/OTHER EQUIPMENT
a) GE CF34-10E5A1 Engines
b) LR Version
**Material Redacted**
2.3 INTERIOR OPTIONAL ITEMS
**Material Redacted**
**Material Redacted**
3. FINISHING
The Aircraft will be delivered to Buyers as follows:
3.1 EXTERIOR FINISHING:
The fuselage of the Aircraft shall be painted according to Buyer's color
and paint scheme which shall be supplied to Embraer by Buyer on or before
**Material Redacted** months prior to the relevant Aircraft Contractual
Delivery Date.
The wings and the horizontal stabilizer shall be supplied in the standard
colors, i.e., xxxx BAC707.
3.2 INTERIOR FINISHING:
Buyer shall inform Embraer on or before **Material Redacted** months prior
to the relevant Aircraft Contractual Delivery Date of its choice of
materials and colors of all and any item of interior finishing such as
seat covers, carpet, floor lining on galley areas, side walls and overhead
lining, galley lining and curtain. The above-mentioned schedule for
definition of interior finishing shall only be applicable if Buyer selects
its materials from the choices offered by and available at Embraer. In
case Buyer opts to use different materials and or patterns, such schedule
shall be **Material Redacted** by the time Buyer informs Embraer its
intention to use such different materials and patterns.
3.3 BUYER FURNISHED AND BUYER INSTALLED EQUIPMENT (BFE AND BIE):
Buyer may choose to have carpets, tapestries, seat covers and curtain
fabrics supplied to Embraer for installation in the Aircraft as BFE.
Materials shall conform
to the required standards and comply with all applicable regulations and
airworthiness requirements. Delays in the delivery of BFE equipment or
quality restrictions that prevent the installation thereof in the time
frame required by the Aircraft manufacturing process shall entitle Embraer
to either delay the delivery of the Aircraft or present the Aircraft to
Buyer without such BFE, in which case Buyer **Material Redacted** of the
Aircraft **Material Redacted**. All BFE equipment shall be delivered to
Embraer in DDP - Embraer facilities in Sao Xxxx dos Xxxxxx, XX, Brazil
(Incoterms 2000) conditions.
The Aircraft galleys have provisions for the following BIE items that,
unless timely agreed by the Parties, are not supplied or installed by
Embraer: Trolleys, ovens, coffee makers, hot jugs and standard units.
4. REGISTRATION MARKS AND TRANSPONDER CODE
The Aircraft shall be delivered to Buyer with the registration marks
painted on them. The registration marks and the transponder code shall be
supplied to Embraer by Buyer no later than ninety (90) Days before each
relevant Aircraft Contractual Delivery Date.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT
BETWEEN THE TERMS OF THIS ATTACHMENT "A" AND THE TERMS OF THE PRELIMINARY
TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT "A" SHALL
PREVAIL.
Page 2 of 2
ATTACHMENT B
FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
1. FERRY EQUIPMENT AND ASSISTANCE
1.1 If it is necessary for any ferry equipment to be installed by
Embraer for the ferry flight of any Aircraft between Brazil and
Panama, Embraer will make available a standard ferry equipment to
Buyer (hereinafter the "Kit"), at **Material Redacted**, except as
set forth below. In this case, Buyer shall immediately upon its
arrival in Panama, remove the Kit from the Aircraft and return it to
Embraer in Brazil at **Material Redacted**, including the necessary
insurance.
If Embraer provides the Kit to Buyer and if the Kit is either
utilized, whether totally or not, or if the Kit is not returned by
Buyer, complete and in the same condition **Material Redacted** as
it was delivered to Buyer, Buyer shall pay Embraer the **Material
Redacted**.
In such case, the original Kit shall become the property of Buyer,
and Buyer shall make the above mentioned payment to Embraer upon
presentation of a sight draft by Embraer.
1.2 Embraer shall make a representative available on board each Aircraft
during the ferry flight of such Aircraft in order to support Buyer's
personnel in assisting the flight crew with Air Traffic Control
(ATC) communications while over flying Brazilian airspace, and
communication with Brazilian custom clearances and Aircraft
refueling individuals. Such representative shall remain on board of
the Aircraft until the last stop in Brazilian territory. Any other
arrangement shall be requested by Buyer no less than thirty (30)
Business Days prior to the relevant Aircraft Contractual Delivery
Date and shall be contingent upon the concurrence of Embraer at its
sole criteria, such concurrence not to be unreasonably withheld.
2. PRODUCT SUPPORT PACKAGE
2.1 MATERIAL SUPPORT
2.1.1. SPARES POLICY
Embraer guarantees the supply of spare parts, ground support
equipment and tooling, except engines and its accessories,
hereinafter referred to as "Spare(s)", for the Aircraft for a
period of **Material Redacted** years after **Material
Redacted** delivery of the last aircraft of the same type
**Material Redacted**. Except as may otherwise be expressly
set forth herein, such Spares shall be supplied according to
the prevailing availability, sale conditions, delivery
schedule and effective price on the date of acceptance by
Embraer of the purchase order. The Spares may be supplied
either by Embraer in Brazil or through its subsidiaries or
distribution centers located abroad.
2.1.2. RSPL
As soon as reasonably practicable, but no later than
**Material Redacted** months prior to the first Aircraft
delivery date, Embraer shall present to Buyer a recommended
Spare provisioning list (the "RSPL"). The objective of the
RSPL is to provide Buyer with a detailed list of Spares that
will be
reasonably necessary to support the initial operation and
maintenance of the Aircraft by Buyer. Such recommendation
will be made in consultation with Buyer and be based on the
experience of Embraer and on the operational parameters
established by Buyer.
Embraer will provide a qualified team to attend
pre-provisioning conferences as necessary to discuss Buyer
requirements and the RSPL as well as any available spare
parts support programs offered by Embraer. Such meeting shall
be held at a mutually agreed upon place and time.
Buyer may elect to acquire all the items contained in the
RSPL or to combine a partial acquisition of the RSPL items
with a participation in the special spare parts support
programs, available from Embraer.
Buyer may acquire the items contained in the RSPL directly
from Embraer or directly from Embraer's vendors. For the
items contained in the RSPL that Buyer elects to purchase
directly from Embraer (the "IP Spares"), Buyer must place a
purchase order with Embraer on or before **Material
Redacted** Days prior to the first Aircraft Contractual
Delivery Date in order to have the IP Spares available in
stock by the **Material Redacted**. For purchase orders
placed by Buyer out of the schedule set forth above, the IP
Spares shall be provided to Buyer in accordance with the
quoted lead times. Embraer will deliver the IP Spares in
**Material Redacted** condition, at the port of clearance
indicated by Embraer.
As requested by Buyer, but in no case **Material Redacted**,
Embraer will update the data of the RSPL incorporating
engineering and price changes. Embraer will maintain a master
copy of the RSPL updated until **Material Redacted**.
2.1.3. CREDIT FOR SURPLUS IP SPARES
Embraer offers to Buyer a program for certain surplus IP
Spares manufactured by Embraer and which were recommended in
writing by Embraer limited to the quantities, part numbers
and serial numbers (if applicable) identified in the relevant
invoices. Such program will provide terms no less favorable
than the following:
a. Credit Program: During the period commencing **Material
Redacted** years after delivery of the first Aircraft
under the Purchase Agreement of which this is an
Attachment and ending **Material Redacted** years after
such delivery, Embraer will, upon receipt of a written
request and subject to the exceptions and conditions in
paragraphs a.1; a.2; a.3 and a.4 of this section, offer
a credit for new and unused IP Spares manufactured by
Embraer (i) which have been supplied by Embraer as IP
Spares for the Aircraft subject of this Agreement and
(ii) which are surplus to Buyer's needs. Such
credit may be used toward the purchase of Spares
manufactured by Embraer, Technical Publications or
Services (excluding training) offered by Embraer.
b. EXCEPTIONS: Embraer will not issue credits for IP
Spares which
Page 2
were purchased by Buyer in excess of or differently
from the Spares recommended in writing by Embraer to
Buyer by the IPL as initial provisioning for the
Aircraft (as amended from time to time by agreement of
the Parties) and for IP Spares which have become
obsolete or have been superseded by another part as a
result of (i) Buyer's modification of an Aircraft for
which the IP Spares were purchased; (ii) Embraer design
improvements (except for IP Spares which have become
obsolete because of a defect in design); (iii) IP
Spares which are shelf-life limited; (iv)damaged IP
Spares; or (v) IP Spares that were not stored in
accordance with OEM guidelines.
c. CREDIT VALUES: The credit for each IP Spare to be
issued by Embraer will be: **Material Redacted** an
amount equal to **Material Redacted**.
d. DELIVERY OF SURPLUS IP SPARES: IP Spares for which a
credit has been requested shall be delivered by Buyer,
freight and insurance prepaid, to Embraer's plant in
Sao Xxxx dos Xxxxxx, XX, Brazil, or any other
destination as Embraer may reasonably designate. All
returned IP Spares are subject to Embraer's quality
control inspection and acceptance. All IP Spares which
are rejected by Embraer's quality control and/or are
included in the exceptions set forth in paragraph a.1
hereinabove, will be returned to Buyer at Buyer's
expense, no credit being due in this case.
e. CREDIT ISSUE: After Embraer's acceptance of those IP
Spares suitable for the credit program, under the terms
of this Agreement, Embraer will notify the available
credit amount to Buyer and provide all relevant
information as to credit utilization.
2.1.4. OTHER SPARES SERVICES
AOG services: Embraer will maintain a call center for the AOG
(Aircraft On Ground) services, twenty four (24) hours a day,
seven (7) days a week. All the contacts with the call center
can be made through TOLL FREE numbers (phone and fax) and
e-mail. Embraer will also maintain the regular direct lines
(phone and fax), in case of failures. The information
concerning TOLL FREE, regular lines and e-mail address can be
obtained through the Customer Account Manager designated to
Buyer by Embraer or through Embraer's Customer Service
offices. Embraer will deliver parts under AOG from the
nearest location to Buyer's facilities, provided that the
part is available at this location at the moment of the
request **Material Redacted**
Other than AOG orders, Buyer may expedite spare parts orders
as spare parts critical orders (imminent AOG or work stoppage
situation) or as spare parts routine expedite orders (urgent
stock replenishment - "USR"). Embraer will deliver expedite
spare parts ordered, within the following lead times:
Page 3
**Material Redacted**
Routine and/or Critical Spares: Embraer will deliver routine
and/or critical Spares (other than AOG Spares) **Material
Redacted**, depending on where the purchase order was placed
with or otherwise agreed between Embraer and Buyer. Routine
and/or critical Spares shall be delivered according to their
lead times, depending upon the purchase order priority and
with the respective authorized release certificate or any
similar document issued by a duly authorized person.
Upon receipt of an order from Buyer, according to the above
referred terms, Embraer shall send to Buyer the shipping
information (airwaybill number and flight date and number)
after receipt of such information from the freight forwarder
indicated by Buyer in the shipping instructions provided to
Embraer by Buyer in the relevant order.
AIRCRAFT TECHNICAL PUBLICATIONS:
2.2.1. AIRCRAFT PUBLICATIONS
Embraer shall supply, at **Material Redacted**, copies of
operational and maintenance publications applicable thereto,
in the English language and in the quantities as specified in
Exhibit "1" to this Attachment "B". Such publications are
issued under the applicable specification **Material
Redacted**. The revision service for these publications is
provided, **Material Redacted**, including mailing services
(except for air cargo shipping) and the software license fee
for the CD ROM, **Material Redacted**.
2.2.2. VENDOR ITEMS PUBLICATIONS
With respect to vendor items installed in the Aircraft which
have their own publications, Buyer will receive them in the
quantity specified in Exhibit "1" to this Attachment "B", in
their original content and printed form, directly from the
suppliers, which are also responsible to keep them
continuously updated through a direct communication system
with Buyer.
2.2.3 Within **Material Redacted** months prior to the Contractual
Delivery Date of the first Aircraft, Embraer shall **Material
Redacted**, and Buyer shall **Material Redacted** no later
than **Material Redacted** before the first Aircraft
Contractual Delivery Date, **Material Redacted**.
2.2.4 The Parties further understand and agree that in the event
Buyer elects not to take all or any one of the publications
above mentioned, or revisions thereof, no refund or other
financial adjustment of the Aircraft Basic Price will be made
since such publications are offered at no charge to Buyer.
SERVICES
Embraer shall provide familiarization programs and on-site support
for the Aircraft (the "Services") in accordance with the terms and
conditions described below:
Page 4
2.3.1 Familiarization Programs:
a. Familiarization program specified below is being
offered at **Material Redacted**, except for **Material
Redacted**. The familiarization programs shall be
conducted in accordance with the customer's training
program and with all applicable regulations and
requirements of the FAA.
b. Notwithstanding the eventual use of the term "training"
in this paragraph 2.3.1, the intent of this program is
solely to familiarize Buyer's pilots, mechanics,
employees or representatives, duly qualified per the
governing body in the country of Buyer's operation,
with the operation and maintenance of the Aircraft. It
is not the intent of Embraer to provide basic training
("ab-initio") to any representatives of Buyer.
c. The familiarization program, as applicable, shall occur
prior to **Material Redacted** Aircraft Actual Delivery
Date as it shall be previously agreed upon by Buyer and
Embraer. Buyer must give written notification to
Embraer **Material Redacted** Days in advance of
Buyer's expected training schedule, including the full
name and identification of each attendee. Substitutions
will not be accepted for training within this period.
Should Buyer not take all or any portion of the
familiarization program for an Aircraft on or before
**Material Redacted** months following the Actual
Delivery Date of such Aircraft, Buyer shall be deemed
to have fully waived its rights to such service, no
refund or indemnity being due by Embraer to Buyer in
this case.
d. All familiarization programs **Material Redacted**
shall be provided by Embraer or its qualified
designated representative in **Material Redacted**, or
at such other location as Embraer shall reasonably
designate.
e. The part of the pilot familiarization program relative
to the ground school shall be provided, **Material
Redacted** as may be agreed by Embraer and Buyer.
**Material Redacted** The familiarization program
referred to above covers:
e.1 One (1) Pilot Familiarization Program for up to
**Material Redacted** pilots per Aircraft
including (i) ground familiarization as regards
Aircraft systems, weight and balance, performance
and normal/emergency procedures and, (ii) flight
simulator training in a **Material Redacted**
simulator in accordance with the local
airworthiness authority's approved Flight
Operations Training Program.
e.2 One (1) Maintenance Familiarization Course for up
to **Material Redacted**qualified mechanics
**Material Redacted**. This course shall consist
of classroom familiarization with Aircraft
systems and structures and shall be in accordance
with ATA specification 104, level III.
Page 5
e.3 One (1) Flight Attendant Familiarization Course
for up to **Material Redacted**. This course
shall consist of classroom familiarization,
including a general description of Aircraft and
systems to be used by flight attendants.
**Material Redacted**
e.4 **Material Redacted**
e.5 **Material Redacted**
f. If requested, Embraer through its field support
representative referred to in Article 2.3.2 below, may
demonstrate the procedures described in the classroom,
subject to Buyer's Aircraft availability.
g. Buyer shall be solely responsible for submitting its
training programs to the Air Authority for approval.
Embraer shall give Buyer reasonable assistance in such
process.
h. The presence of Buyer's authorized trainees shall be
allowed exclusively in those areas related to the
subject matter hereof and Buyer agrees to hold harmless
Embraer from and against all and any kind of
liabilities in respect of such trainees to the extent
permitted by law.
i. **Material Redacted**
Any other service will be subject to a specific agreement to
be negotiated by the Parties and will be charged by Embraer
accordingly.
2.3.2 **Material Redacted**support:
a. Embraer shall indicate at its sole discretion, and
provide **Material Redacted** to Buyer, the services of
a field support representative ("FSR") **Material
Redacted**
b. FSR shall assist and advise Buyer on the Aircraft
maintenance during its initial operation and act as
liaison between Buyer and Embraer.
c. At no charge to Embraer, Buyer shall provide such FSR
with communication services (telephone, facsimile) as
well as office space and facilities at Buyer's main
maintenance base, and Buyer shall also (a) arrange all
necessary work permits and airport security clearances
required for Embraer employees, to permit the
accomplishment of the services mentioned in this item
2.3.2, in due time; and (b) obtain all necessary custom
clearances both to enter and depart from Buyer's
country for Embraer's employees and their personal
belongings and professional tools.
d. During the **Material Redacted**, Buyer shall permit,
as required, reasonable access to the maintenance and
operation facilities as well as to the data and files
of Buyer's Aircraft fleet during normal business hours.
It is hereby agreed and understood that Buyer shall
make available at the office designated for permanence
of the FSR, one (1) set of updated Technical
Publications as referred to in Article 2.2 above, it
being Buyer's responsibility to perform the revision
services
Page 6
in order to maintain such publications updated within
the period **Material Redacted**
e. Buyer shall bear all **Material Redacted**. These
expenses shall be borne by Embraer **Material
Redacted**.
f. Without a previous written authorization from Embraer,
FSR shall not participate in test flights or flight
demonstrations. In case Buyer obtains such previous
authorization, Buyer shall include the FSR in Buyer's
insurance policy. Embraer reserves the right to halt
the services mentioned in this item 2.3.2, should any
of the following situations occur at Buyer's base (for
the duration of such situation): a) there is a labor
dispute or work stoppage in progress; b) war or war
like operations, riots or insurrections; c) any
conditions which is dangerous to the safety or health
of Embraer's employee; or d) the government of Buyer's
country refuses permission to Embraer's employee to
enter the country.
g. The Parties further understand and agree that in the
event Buyer elects not to take all or any portion of
the **Material Redacted** support provided for herein,
**Material Redacted**. Any other additional **Material
Redacted** support shall depend on mutual agreement
between the Parties and shall be charged by Embraer
accordingly.
h. The presence of FSR shall be allowed exclusively in
those areas related to the subject matter hereof and
Embraer agrees to hold harmless Buyer from and against
all and any kind of liabilities in respect of such FSR
to the extent permitted by law, **Material Redacted**.
2.4 PRODUCT SUPPORT PACKAGE FOR THE OPTION AIRCRAFT
The product support package for the exercised Option Aircraft shall
be limited to **Material Redacted**.
Page 7
EXHIBIT "1" TO ATTACHMENT B - TECHNICAL PUBLICATIONS LIST
The quantity of technical publications covering Aircraft operation and
maintenance shall be delivered to Buyer in accordance with the following list:
OPERATIONAL SET
Title **Material Redacted**
1. Airplane Flight Manual (AFM)(*) **Material Redacted**
2. Weight & Balance Manual (WB)(*) **Material Redacted**
3. Airplane Operations Manual (AOM)(*) **Material Redacted**
4. Quick Reference Handbook (QRH)(*) **Material Redacted**
5. Dispatch Deviation Procedures Manual (DDPM)(*) **Material Redacted**
6. Supplementary Performance Manual (SPM)(*) **Material Redacted**
7. Operational Bulletins Set (OB) **Material Redacted**
8. Standard Operating Procedures Manual (SOPM) **Material Redacted**
9. Flight Attendant Manual (FAM) **Material Redacted**
MAINTENANCE SET
Title **Material Redacted**
10. Aircraft Maintenance Manual (AMM) (***) **Material Redacted**
11. Aircraft Illustrated Parts Catalog (AIPC) (***) **Material Redacted**
12. Fault Isolation Manual (FIM) (***) **Material Redacted**
13. Non Destructive Testing Manual (NDI) (***) **Material Redacted**
14. Maintenance Planning Document (MPD) (****)
15. Wiring Manual (WM) (***) **Material Redacted**
16. Structural Repair Manual (SRM) (***) **Material Redacted**
17. Service & Information Bulletins Set (SB/IB) **Material Redacted**
18. Service Newsletters (SNL) **Material Redacted**
19. Parts Information Letter (PIL) **Material Redacted**
20. System Schematic Manual (SSM) (***) **Material Redacted**
21. Instructions for Ground Fire Extinguishing and Rescue (IGFER) (****) **Material Redacted**
22. Airport Planning Manual (APM) (****) **Material Redacted**
23. Illustrated Tool & Equipment Manual (ITEM) (****) **Material Redacted**
24. Task Card System CDROM (TCS) (***) **Material Redacted**
25. Ramp Maintenance Manual (RMM) (***) **Material Redacted**
26. Power plant Build-up Manual (PPBM) (**) **Material Redacted**
27. Corrosion Prevention Manual (CPM) (***) **Material Redacted**
28. Component Maintenance Manual (CMM) (**) **Material Redacted**
29. Airplane Recovery Manual (ARM) (****) **Material Redacted**
30. Maintenance Facility and Equipment Planning (MFEP) (****) **Material Redacted**
31. Standard Wiring Practices Manual (SWPM) (****) **Material Redacted**
32. Standard Manual (SM) **Material Redacted**
33. Consumable Products Catalog (CPC) **Material Redacted**
34. Maintenance Review Board Report (MRB) **Material Redacted**
(*) One extra copy on board each Aircraft
(**) To be delivered by the suppliers directly to Buyer.
(***) **Material Redacted**
(****) **Material Redacted**
Page 0
XXXXXXXXXX "X"
XXXXXXXX CERTIFICATE - MATERIAL AND WORKMANSHIP
1. Embraer, subject to the conditions and limitations hereby expressed,
warrants the Aircraft subject of the Purchase Agreement to which this will
be an Attachment, as follows:
a. For a period of **Material Redacted** months from the date of
delivery to Buyer, such Aircraft will be free from:
- Defects in materials, workmanship and manufacturing processes in
relation to parts manufactured by Embraer or by its
subcontractors holding an Embraer part number;
- Defects inherent to the design of the aircraft and its parts
designed or manufactured by Embraer or by its subcontractors
holding an Embraer part number.
b. For a period of **Material Redacted** months from the date of
delivery to Buyer, such Aircraft will be free from:
- Defects in operation of vendor (Embraer's supplier) manufactured
parts, not including the Engines, Auxiliary Power Unit (APU) and
their accessories ("Vendor Parts"), as well as failures of
mentioned parts due to incorrect installation or installation
not complying with the instructions issued or approved by their
respective manufacturers.
- Defects due to non-conformity of Vendor Parts to the technical
specification referred to in the Purchase Agreement of the
aircraft.
Once the above-mentioned periods have expired, Embraer will transfer to
Buyer the original Warranty issued by the vendors, to the extent the same
remains in effect and shall provide Buyer with reasonable assistance in
enforcing its rights in respect thereof.
2. Embraer, subject to the conditions and limitations hereby expressed,
warrants that:
a. All spare parts or ground support equipment, not including Engines,
APU and their Accessories, which have been manufactured by Embraer
or by its subcontractors holding an Embraer part number, which will
permit their particular identification and which have been sold by
Embraer or its representatives will, for a period of **Material
Redacted** months from the date of the invoice, be free from defects
of design, material, workmanship, manufacturing processes and
defects inherent to the design of the above mentioned parts or
ground support equipment.
b. All spare parts or ground support equipment, which have been
designed and manufactured by vendors, not including Engines, APU and
their related accessories, and stamped with a serial number which
will permit their particular identification and which have been sold
by Embraer or its representatives will, for a period of **Material
Redacted** months from the date of the invoice, be free from
malfunction, defect of material and manufacture.
3. The obligations of Embraer as expressed in this Warranty are limited to
replace or repair **Material Redacted** depending solely upon its own
judgment, the parts that are returned to Embraer or its representatives
within a period of **Material
Redacted** Days after the occurrence of the defect, at Buyer's expense
(including but not limited to, freight, insurance, taxes and customs
duties), adequately packed, provided that such components are actually
defective and that the defect has occurred within the periods stipulated
in this certificate. Should the defective part not be returned to Embraer
within such **Material Redacted** Days period, Embraer shall have the
right, at its sole discretion, to deny the warranty claim.
NOTE: Notification of any defect claimed under this item 3 must be given
to Embraer within **Material Redacted** Days after such defect is
found.
All parts **Material Redacted**. All parts **Material Redacted**.
Parts supplied to Buyer as replacement for defective parts are warranted
for the balance of the warranty period still available from the original
warranty of the exchanged parts.
4. Embraer will accept no warranty claims under any of the circumstances
listed below:
a. When the Aircraft has been subjected to experimental flights (not
including **Material Redacted** undertaken at the request of
Embraer), or in any other way not in conformity with the flight
manual or the airworthiness certificate, or subjected to any manner
of use in contravention of applicable navigation or other
regulations and rules of either the government authorities of
whatever country in which the aircraft is operated or I.C.A.O.;
b. When the Aircraft or any of its parts have been altered or modified
by Buyer, without prior approval from Embraer or from the
manufacturer of the parts through a service bulletin **Material
Redacted**;
c. Whenever the Aircraft or any of its parts have been involved in an
accident (other than an accident unrelated to the claim for which
coverage is sought), or when parts either defective or not complying
to manufacturer's design or specification have been used **Material
Redacted**;
d. Whenever parts have had their identification marks, designation,
seal or serial number altered or removed;
e. In the event of negligence, misuse or maintenance services done on
the aircraft, or any of its parts not in accordance with the
respective maintenance manual;
f. In cases of deterioration, wear, breakage, damage or any other
defect resulting from the use of inadequate packing methods when
returning items to Embraer or its representatives.
5. This Warranty does not apply to defects presented by expendable items,
whose service life or maintenance cycle is lower than the warranty period,
and to materials or parts subjected to deterioration.
6. The Warranty hereby expressed is established between Embraer and Buyer,
and it cannot be transferred or assigned to others, unless by written
consent of Embraer or according to Article 14 of the Purchase Agreement of
which this is an Attachment.
Page 2 of 3
7. THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND REMEDIES OF
BUYER SET FORTH IN THIS WARRANTY CERTIFICATE ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL
OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND ANY ASSIGNEE
OF EMBRAER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST
EMBRAER OR ANY ASSIGNEE OF EMBRAER, EXPRESS OR IMPLIED, ARISING BY LAW OR
OTHERWISE, WITH RESPECT TO ANY NON-CONFORMANCE OR DEFECT OR FAILURE OR ANY
OTHER REASON IN ANY AIRCRAFT OR OTHER ITEM DELIVERED UNDER THE PURCHASE
AGREEMENT OF WHICH THIS IS AN ATTACHMENT, INCLUDING DATA, DOCUMENT,
INFORMATION OR SERVICE, INCLUDING BUT NOT LIMITED TO:
a. ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
b. ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
c. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER
OR NOT ARISING FROM THE NEGLIGENCE OR OTHER RELATED CAUSES OF
EMBRAER OR ANY ASSIGNEE OF EMBRAER, WHETHER ACTIVE, PASSIVE OR
IMPUTED; AND
d. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR
DAMAGE TO ANY AIRCRAFT, FOR LOSS OF USE, REVENUE OR PROFIT WITH
RESPECT TO ANY AIRCRAFT OR FOR ANY OTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
For the **Material Redacted**.
8. No representative or employee of Embraer is authorized to establish any
other warranty than the one hereby expressed, nor to assume any additional
obligation, relative to the matter, in the name of Embraer and therefore
any such statements eventually made by, or in the name of Embraer, shall
be void and without effect.
Page 3 of 3
ATTACHMENT "D"
PRICE ESCALATION FORMULA
**Material Redacted**
**3 pages**
Page 1
ATTACHMENT "E"
**MATERIAL REDACTED**
**Material Redacted**
**2 pages**
Page 1 of 1
ATTACHMENT "F"
**MATERIAL REDACTED**
**Material Redacted**
**8 pages**
Page 1 of 1
ATTACHMENT "G"
**MATERIAL REDACTED**
**Material Redacted**
**8 pages**
Page 1 of 1
ATTACHMENT "H" - PERFORMANCE GUARANTEE
1. GUARANTEES
Embraer, subject to the conditions and limitations hereby expressed, and
considering the Aircraft EMBRAER 190 LR version, equipped with Embraer
furnished General Electric CF34-10E5A1 engines, guarantees that each
Aircraft on the relevant Actual Delivery Date shall comply with the
following performance:
1.1 CRUISE SPECIFIC AIR RANGE
The cruise specific air range at a gross weight of **Material
Redacted** lb (**Material Redacted** kg) in a standard day (ISA), at
an altitude of **Material Redacted** ft, at **Material Redacted**
KTAS using not more than maximum cruise thrust, shall not be less
than the guarantee value:
Nominal: **Material Redacted** NAM/lb
Guarantee: **Material Redacted** NAM/lb
1.2 WEIGHT GUARANTEE
1.2.1 Maximum Take-Off Weight (MTOW) of the Aircraft shall not be
less than **Material Redacted** lb.
1.2.2 Maximum Landing Weight (MLW) of the Aircraft shall not be less
than **Material Redacted** lb.
1.2.3 Maximum Zero Fuel Weight (MZFW) of the Aircraft shall not be
less than **Material Redacted** lb.
1.2.4 Maximum Equipped Empty Weight (EEW) for the Aircraft in Buyer
configuration as defined in the table below is guaranteed not
to exceed **Material Redacted** lb (**Material Redacted** kg).
**Material Redacted**
1.3 **Material Redacted**
2. AIRCRAFT CONFIGURATION
2.1 The guarantees stated above are based on the Aircraft configuration
as defined in the Technical Description PTD-190 Rev.3, dated
November/2002, plus specific Buyer configuration options as defined
at Attachment "A" to the Purchase Agreement, (hereinafter referred
to as the "Detail Specification"). If necessary, appropriate
adjustment to this Aircraft Performance Guarantees shall be made for
changes in such Detail Specification (including but not limited to
Buyer requests for changes, Proposal of Major Changes or any other
changes mutually agreed upon between the Buyer and Embraer) approved
in writing by the Buyer and Embraer. Embraer shall account for such
adjustments in its evidence of compliance with the guarantees. Any
**Material Redacted**, this **Material Redacted**.
In the event that after the date of this Agreement any unforeseen
change is made to any law, governmental regulation or mandatory
requirement, or in the
application of any such law, governmental regulation or requirement
that affects the certification basis for the Aircraft, and as a
result thereof, a change is made to the configuration and/or the
performance of the Aircraft in order to obtain certification, the
guarantees set forth in this Aircraft Performance Guarantee shall be
appropriately modified to reflect any such change.
2.2 The performance guarantees of **Material Redacted** shall be
adjusted by Embraer for the following in its evidence of compliance
with such guarantees:
a. Changes to the Detail Specification including change requested
by Buyer, Major Changes (as defined in the Purchase Agreement)
or any other changes mutually agreed upon between the Buyer
and Embraer.
b. The difference between the component weight allowances given
in the appropriate section of the Detail Specification and the
actual weights.
3. GUARANTEE CONDITIONS
3.1 All guaranteed performance data are based on the ICAO International
Standard Atmosphere (ISA) unless otherwise specified. Altitudes are
pressure altitudes.
3.2 Unless otherwise specified, the CTA Certification Basis regulations
are specified in the Aircraft Type Certificate Data Sheet.
3.3 The **Material Redacted** include **Material Redacted**
3.4 The **Material Redacted** are based on **Material Redacted**.
3.5 Performance, where applicable, is based on a fuel Lower Heating
Value (LHV) of 18.580 BTU per pound and a fuel density of 6.7 lb per
Gallon.
4. PARTIES' OBLIGATIONS ACCORDING TO THIS GUARANTEE
4.1 During the Aircraft acceptance to be performed by Buyer in
accordance with Article 7 of the Purchase Agreement, Buyer shall
check the Aircraft performance specified in Section 1 of this
Attachment H **Material Redacted**.
4.2 Embraer's obligations in respect to the guarantees stated in Section
1 of this Attachment H, are limited to Buyer's right to **Material
Redacted**, should it be reasonably verified that such Aircraft
during the acceptance procedure specified in Article 7 of the
Purchase Agreement, cannot comply with the performances guaranteed
hereunder after Embraer has had an opportunity to cure such
deficiencies in accordance with Article 7 of the Purchase Agreement.
4.3 In case during the above mentioned acceptance procedure, it is
proven that the Aircraft performance does not comply with the
performances specified in Section 1 of this Attachment H, **Material
Redacted**.
4.4 Upon acceptance of the Aircraft by Buyer, all obligations of Embraer
regarding the Aircraft performance guarantees shall cease.
5. GUARANTEE COMPLIANCE
5.1 Compliance with the guarantees of **Material Redacted** shall be
based on the conditions specified in that sections, the Aircraft
configuration contained in Attachment "A" to the Purchase Agreement
and the guarantee conditions of Section 3 above.
Page 2 of 3
5.2 Compliance with the takeoff and landing performance guarantees shall
be based on the CTA approved Airplane Flight Manual for the
Aircraft.
5.3 Compliance with the **Material Redacted** shall be established by
calculations based on the comparison mentioned in Section 4.1 above.
5.4 The data derived from tests shall be adjusted as required by
conventional methods of correction, interpolation or extrapolation
in accordance with established engineering practices to show
compliance with the performance guarantee.
5.5 Compliance with the Manufacturer's Empty Weight guarantee shall be
based on information in the appropriate approved weight and balance
manual, or associated document or report.
6. EXCLUSIVE GUARANTEES
6.1 The only performance guarantees applicable to the Aircraft are those
set forth in this document. The performance guarantees set forth
herein are established between Buyer and Embraer and may not be
transferred or assigned to others, unless by previous written
consent of Embraer.
6.2 THE GUARANTEES, OBLIGATIONS AND LIABILITIES OF Embraer, AND REMEDIES
OF Buyer SET FORTH IN THIS PERFORMANCE GUARANTEE ARE EXCLUSIVE AND
IN SUBSTITUTION FOR, AND Buyer HEREBY WAIVES, RELEASES AND
RENOUNCES, ALL OTHER RIGHTS, CLAIMS, DAMAGES AND REMEDIES OF Buyer
AGAINST Embraer OR ANY ASSIGNED OF Embraer, EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE, WITH RESPECT TO AIRCRAFT PERFORMANCE.
6.3 The terms and conditions of this performance guarantee do not alter,
modify or impair, in any way, the terms and conditions of Attachment
"C" (Aircraft Warranty Certificate) to the Purchase Agreement or
other express warranties in the Purchase Agreement.
Page 3 of 3
EXHIBIT 1 TO THE ATTACHMENT "H"
EXHIBIT 1
**Material Redacted**
**7 pages**
Page 1 of 1
