EXHIBIT 10.13
EMB-145LR
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AMENDED AND RESTATED
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PURCHASE AGREEMENT NUMBER GCT-025/98
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EMBRAER - EMPRESA BRASILEIRA DE AERONAUTICA S.A.
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AND
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REPUBLIC AIRWAYS HOLDINGS, INC.
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Certain portions of this exhibit have been omitted pursuant to a request for
confidential treatment under Rule 406 of the Securities Act of 1933. The
omitted materials have been filed separately with the Securities and Exchange
Commission.
INDEX
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ARTICLE
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01 - DEFINITIONS
02 - SUBJECT
03 - PRICE
04 - PAYMENT
05 - DELIVERY
06 - CERTIFICATION
07 - ACCEPTANCE AND TRANSFER OF OWNERSHIP
08 - STORAGE CHARGE
09 - DELAYS IN DELIVERY
10 - INSPECTION AND QUALITY CONTROL
11 - CHANGES
12 - WARRANTY
13 - TECHNICAL ASSISTANCE SERVICES
14 - SPARE PARTS POLICY
15 - PUBLICATIONS
16 - ASSIGNMENT
17 - RESTRICTIONS AND PATENT INDEMNITY
18 - MARKETING AND PROMOTIONAL RIGHTS
19 - TAXES
20 - APPLICABLE LAW
21 - ARBITRATION
22 - JURISDICTION
23 - TERMINATION
24 - OPTION FOR THE PURCHASE OF ADDITIONAL EMB-145 AIRCRAFT
25 - INDEMNITY
26 - NOTICES
27 - CONFIDENTIALITY
28 - INTEGRATED AGREEMENT
29 - NEGOTIATED AGREEMENT
30 - COUNTERPARTS
31 - ENTIRE AGREEMENT
32 - NO WAIVER
33 - REPRESENTATIONS AND WARRANTIES
34 - EFFECTIVENESS
ATTACHMENTS
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"A-1"- US AIRWAYS AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND REGISTRATION
MARKS
"A-2"- AMERICA WEST AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND
REGISTRATION MARKS
"B"- FERRY EQUIPMENT, SPARE PARTS POLICY AND LIST OF PUBLICATIONS
"C" - WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
"D" - AIRCRAFT PRICE ESCALATION FORMULA
"E" - AUTHORIZED REPRESENTATIVE APPOINTMENT
"F" - FORM OF WARRANTY ▇▇▇▇ OF SALE
"G" - FORM OF GUARANTEE
AMENDED AND RESTATED
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PURCHASE AGREEMENT NO. GCT-025/98
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This Amended and Restated Purchase Agreement is entered into as of this 19 day
of April, 2002 by and between Embraer - Empresa Brasileira de Aeronautica S.A.
and Republic Airways Holdings, Inc., for the purchase and sale of Embraer
aircraft, services and related spare parts.
Solitair Corp. ("Solitair") has assigned to Buyer (as defined below) all of
Solitair's rights and obligations under the Purchase Agreement DCT-025/98
between Embraer and Solitair (as amended before the date of this agreement, the
"Original Purchase Agreement"), with respect to the sale of twenty (20)
unexercised option aircraft (as defined below).
In connection with such assignment, Solitair has also assigned its remaining
rights with respect to the fleet of aircraft delivered under the Original
Purchase Agreement. Solitair has retained its rights and obligations with
respect to the five (5) additional aircraft currently scheduled for delivery
under the Original Purchase Agreement.
This Agreement (as defined below):
(a) amends and restates all rights and obligations of Embraer and Buyer
with respect to the twenty (20) unexercised option aircraft under the
Original Purchase Agreement;
(b) states the rights and obligations of Embraer and Buyer with respect to
seventeen (17) additional option aircraft that were previously connected to
the Original Purchase Agreement;
(c) states the terms and conditions upon which the "Buyer's" remaining
rights under the Original Purchase Agreement will apply to the forty-eight
(48) aircraft previously delivered under the Original Purchase Agreement
and the five (5) additional aircraft scheduled for delivery under the
Original Purchase Agreement.
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. Except as expressly provided to the contrary herein, nothing
in this Agreement shall be deemed to grant Buyer or Chautauqua (as defined
herein) any rights with respect to undelivered aircraft other than the
thirty-seven (37) Option Aircraft (as defined below).
1. DEFINITIONS
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For the purpose of this Agreement, the following definitions are hereby
adopted:
a. 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(c).
b. Aircraft - shall mean the EMB-145 LR aircraft or, where there is more than
one of such aircraft, each of such Aircraft (including Firm Aircraft and
Option Aircraft, as the context requires), manufactured by Embraer, for
sale to Buyer pursuant to this Agreement, according to the Technical
Description number TD-145/010, dated January 1998 (Appendix I), the
Aircraft Specific Configuration, Finishing and Registration Marks
described in Attachment `A-1' (or `A-2', if Buyer notifies Embraer that it
desires to receive the Aircraft such configuration [*], and as may be
amended from time to time by Buyer at its expense as specified in Article
11. [*]
c. Agreement - shall mean this Amended and Restated Purchase Agreement No.
GCT-025/98, its Schedules, and any Letter Agreement between the Parties
executed on the date hereof.
d. Business Day - shall mean days on which the banks in each of New York, New
York, United States and Sao Paulo, and Sao ▇▇▇▇ dos ▇▇▇▇▇▇, ▇.▇. Brazil
are open for the normal transaction of business.
e. Basic Price - shall mean the Aircraft total price, effective on the date
of execution of this Agreement contained in Article 3 (a)(1) or, in case
of revision thereof, on the date of its revision.
f. Buyer - shall mean REPUBLIC AIRWAYS HOLDINGS, INC., a Delaware corporation
with its principal place of business at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ or its assignee pursuant to
Article 16 hereof.
g. Chautauqua - shall mean Chautauqua Airlines, Inc.
h. Contractual Delivery Date - shall mean the delivery dates referred to in
Article 5 hereof.
i. CTA - shall mean the Aerospace Technical Center of the Brazilian Ministry
of Aeronautics.
j. Embraer - shall mean EMBRAER - Empresa Brasileira de Aeronautica S.A., a
Brazilian corporation with its principal place of business at ▇▇.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ - Putim, Sao ▇▇▇▇ dos ▇▇▇▇▇▇, Sao Paulo,
Brazil.
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k. FAA - shall mean the Federal Aviation Administration of the United States
of America.
l. Firm Aircraft - shall have the meaning specified in Article 2.a hereof.
m. Initial Provision List or "IPL" - shall have the meaning specified in
Article 2.b hereof.
n. Option Aircraft - shall have the meaning specified in Article 2.a hereof.
o. Parties - shall mean Embraer and Buyer.
p. Purchase Price - shall mean the Aircraft total price, effective on the
relevant Aircraft Contractual Delivery Date, resulting from the
application of the Escalation Formula contained in Attachment "D" pursuant
to the terms hereof.
q. Services - shall mean technical assistance services, as specified in
Article 13 hereof.
r. Spares - shall mean line replaceable units, spare parts and ground support
equipment, except engines, available for purchase through Embraer, to be
selected and acquired by Buyer through the initial provisioning list
agreed to by the Parties and provided pursuant to Article 2.b. (the
"IPL").
2. SUBJECT
a. Embraer shall sell and Buyer shall purchase and take delivery of zero (0)
firm order Aircraft ("Firm Aircraft") and, if Buyer so elects, up to
thirty-seven (37) option Aircraft ("Option Aircraft") upon the terms and
conditions contained in this Agreement.
b. Embraer shall sell, and Buyer shall acquire, Spares for each of the
Aircraft. Buyer shall inform Embraer at least [*] prior to the Contractual
Delivery Date of the Spares for each Aircraft selected from IPL for such
Aircraft and such Spares shall be delivered in accordance with Article
5.b.
c. Embraer shall render the Services as specified in Article 13.
3. PRICE
a. Buyer agrees to pay Embraer, subject to the terms and conditions of this
Agreement, in United States dollars, the following prices:
1. The Aircraft Basic Price of [*]
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2. Buyer shall have in its sole discretion the right to purchase up to
[*], with respect to Spares.
[*]
b. The Services are to be provided [*].
c. The Aircraft Basic Price [*]. Such price as escalated shall be
the Aircraft Purchase Price and [*].
4. PAYMENT
The prices specified in the previous Article shall be paid in cash, by
means of a wire transfer, on each Business Day specified below by Buyer as
follows for Firm Aircraft:
a. Aircraft
1. An initial deposit of [*].
2. A [*] progress payment [*] is due and payable [*] prior to
each relevant Aircraft Contractual Delivery Date.
3. A [*] progress payment [*], is due and payable [*] prior to
each relevant Aircraft Contractual Delivery Date.
4. A [*] progress payment [*], is due and payable [*] prior to
each relevant Aircraft Contractual Delivery Date.
5. The balance of each Aircraft Purchase Price, shall become due
and payable upon acceptance of each relevant Aircraft by
Buyer.
b. Spares:
1. [*] of the price of Spares for each Aircraft shall become due
and payable [*] prior to the relevant Aircraft Contractual
Delivery
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Date or the date of delivery of the Spares calculated in
accordance with Article 5.b [*].
2. [*] of the price of the Spares for each Aircraft shall become
due and payable upon delivery of the Spares items as set forth
in Article 5.b.
c. Late Payments and Termination for Failure to Make Payments:
Interest will accrue at a Rate of [*] on any amount not paid to
Embraer as set forth in Article 4.a and 4.b above from the date on
which such payments should have been made or as set forth therein
until the actual receipt by Embraer of such amounts. [*]
5. DELIVERY
a. AIRCRAFT: Subject to payment in accordance with Article 4 and the
provisions of Articles 4, 7 and 9, the Aircraft shall be offered for
delivery by Embraer to Buyer, by
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means of a notice, for inspection, acceptance and subsequent
delivery in F.A.F. (Fly Away Factory) condition, at Sao ▇▇▇▇ dos
▇▇▇▇▇▇, State of Sao Paulo, Brazil, according to the schedule set
forth in Article 24 and subject to the terms of that article.
b. SPARES: Subject to receipt by Embraer of the list of Spares selected
by Buyer from the IPL in accordance with Article 2.b, such items
shall be delivered by Embraer to Buyer in F.C.A. (Free Carrier -
INCOTERMS 1990) condition, at Sao ▇▇▇▇ dos ▇▇▇▇▇▇, State of Sao
Paulo, Brazil, or at any other port of clearance that Embraer may
identify to Buyer. The provision of Spares for each Aircraft shall
be delivered on the relevant Aircraft Actual Delivery Date. [*]
6. CERTIFICATION
On the Actual Delivery Date of an Aircraft, the EMB 145-LR aircraft shall
have valid and effective type certificates issued by the CTA and FAA. The
Aircraft shall also be delivered to Buyer with an export certificate of
airworthiness issued by CTA complying with the requirements of FAA
regulation ("FAR") Part 25 and the requirements of the FAA. The condition
of the Aircraft on delivery and the documentation delivered with the
Aircraft, including the above mentioned export certificate of
airworthiness, shall be sufficient to enable Buyer to obtain an FAR Part
25 certificate of airworthiness for the Aircraft. Subject to the above, it
shall be Buyer's responsibility to obtain such certificate of
airworthiness for the Aircraft, at Buyer's sole expense, although
Embraer will provide assistance if requested to do so, at Buyer's cost.
[*]
7. ACCEPTANCE AND TRANSFER OF OWNERSHIP
a. Unless Embraer notifies Buyer otherwise, the Aircraft shall be
delivered in accordance with the provisions and schedules specified
in Article 5 herein. Embraer shall give Buyer [*] advance notice of
the date on which Embraer considers that each Aircraft will be ready
for delivery in the condition specified herein. Upon successful
completion of ground and flight tests performed by Embraer, Buyer
will receive a confirmation from Embraer of the day that the
Aircraft concerned is ready for inspection and will provide Buyer
within [*] notice of the date of such inspection.
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b. Buyer shall be allowed a reasonable period of time to conduct a
ground inspection and an acceptance flight or flights, if necessary
("Inspection") of each Aircraft prior to its delivery. [*] After
such acceptance flight and if Buyer accepts the Aircraft in
accordance with this Article 7, each Aircraft will be delivered by
Embraer to Buyer in accordance with Article 6 hereof [*].
c. Buyer shall accept the Aircraft provided, in the reasonable
determination of Buyer, the Aircraft meets the terms and conditions
of this Agreement. Immediately after such acceptance, Buyer shall
make the payments due, if any, according to Article 4 and accept
delivery of such Aircraft, whereupon [*] title and risk of loss will
be transferred to Buyer and Buyer shall execute the necessary title
and risk transfer documents required in order to effect title
transfer, including but not limited to an FAA form ▇▇▇▇ of Sale and
a Warranty ▇▇▇▇ of Sale substantially in the form attached hereto as
Schedule G. [*]
d. If Buyer declines to accept an Aircraft after its Inspection because
the Aircraft failed to meet the terms of this Agreement, Buyer shall
immediately give Embraer notice of all specific reasons for such
refusal and [*], commencing on the first Business Day after receipt
of such notice, to take all necessary actions [*].
e. Buyer shall inspect the Aircraft, as provided for in Article 7.b.,
within [*] notice from Embraer that all necessary actions were taken
("Reinspection"). [*]
f. Embraer shall ensure that the Spares for each Aircraft are available
for inspection by Buyer on or before the date of delivery in
accordance with Article 5.b. and shall notify Buyer of such
availability. Buyer shall be allowed to inspect the Spares to be
delivered in connection with each Aircraft. [*]
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g. Should Buyer fail to comply with the procedures specified in any of
the preceding items 7 (a) through 7 (e), Embraer shall not be held
liable for any delays in delivery resulting from such failure.
h. [*]
i. Buyer shall be permitted to delegate its duties in this Article 7
and in Article 5 as to the physical inspection, reinspection, and
acceptance and delivery of the Aircraft and Spares to its authorized
representative in the form attached hereto as Schedule F.
j. [*]
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8. STORAGE CHARGE
a. A storage charge equal to [*] shall be charged by Embraer to Buyer
commencing on:
1. Buyer's failure to perform Inspection or Re-inspection of an
Aircraft, per the date or time period specified in writing by
Embraer, according to Article 7.
2. Buyer's acceptance of an Aircraft when Buyer defaults in the
fulfillment of any payment due and in taking title to such
Aircraft immediately thereafter.
3. Buyer's failure within [*] after title transfer to remove an
Aircraft from Embraer's facilities.
Storage charges shall end on the earlier of i) Buyer's and
Embraer's agreement to end such storage charge, ii) removal of
the relevant Aircraft from Embraer's facilities or iii) in the
event this Agreement with respect to such Aircraft is
terminated in accordance with Article 23.
If however, Buyer notifies Embraer in writing [*] in advance
of its expected delay in the performance of its obligations
set forth in this Article 8, the storage charge shall commence
[*] after the occurrence of the events set forth in this
Article 8.a.
b. 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 perform any action or provide any information
contemplated by this Agreement other than the ones specified in the
preceding items, and the Aircraft otherwise was to be delivered on
the Contractual Delivery Date, the storage charge shall commence [*]
after the Contractual Delivery Date relative to such Aircraft.
c. Buyer shall pay the storage charge set forth in Article 8.a. and
8.b., as applicable, per each month of delay or part thereof, within
[*] after the presentation of each invoice by Embraer.
9. DELAYS IN DELIVERY
a. EXCUSABLE DELAYS:
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1. Embraer shall not be held liable or be found in default for
any delays in the delivery of an Aircraft or any Spares or in
the performance of any act to be performed by Embraer under
this Agreement, resulting from the following events or
occurrences, hereinafter referred to as "Excusable Delays":
[*]
2. Within [*] after the occurrence of any of the above mentioned
events which constitute causes of Excusable Delays in delivery
of an Aircraft or any Spares or in the performance of any act
to be performed by Embraer under this Agreement, Embraer shall
send a notice to Buyer, [*].
3. Any such delays shall extend the time for delivery of an
Aircraft or Spares by [*].
4. If the cause of such Excusable Delay is such as to last longer
than [*], then Buyer shall have the option to terminate this
Agreement without liability to either party, in accordance
with Article 23.b.
b. NON-EXCUSABLE DELAYS:
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1. If the delivery of an Aircraft or Spares is delayed, not as a
result of an Excusable Delay [*]
2. [*]
3. [*]
4. [*]
5. [*]
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▇. ▇▇▇▇▇ DUE TO LOSS OR STRUCTURAL DAMAGE TO THE AIRCRAFT:
Should any Aircraft be destroyed or damaged before acceptance by the
Buyer to the extent that it becomes commercially useless, Buyer may,
at its sole discretion take a replacement Aircraft under the same
terms and conditions of this Agreement at a later delivery date to
be agreed by the Parties. Within three (3) months after such loss,
Embraer will provide Buyer with a new delivery date for a
replacement Aircraft. [*]
10. INSPECTION AND QUALITY CONTROL
a. Buyer is hereby permitted to have one or more authorized
representatives at Embraer's facilities for a period commencing [*]
prior to the Contractual Delivery Date of each Aircraft in order to
assure that the Aircraft, Spares and Services were developed in
accordance with the procedures specified in this Agreement and
according to all applicable quality control standards. Buyer may
communicate its concerns as to the production of the Aircraft and
Spares to Embraer.
b. Buyer shall communicate to Embraer the names of its authorized
representatives, by means of notice, at least fifteen (15) days
prior to the arrival of the authorized representatives. Buyer may
substitute authorized representatives, provided written notice is
given to Embraer fifteen (15) calendar days prior to effectivity.
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c. Such representatives may also be authorized to sign the acceptance
and transfer of title and risk documents and accept delivery of the
Aircraft and Spares pursuant to Article 7.
d. With respect to this Article 10, Embraer shall provide for use in
accordance with the Agreement at no cost to Buyer, 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.
e. Buyer's authorized representatives shall observe Embraer's
administrative rules and instructions while at Embraer's facilities,
and Buyer's representatives will be provided with all appropriate
rules and regulations upon arrival.
f. Buyer's authorized representatives shall be allowed exclusively in
those areas related to the subject matter hereof and Buyer agrees to
hold harmless Embraer from and against all and any kind of
liabilities in respect to such representatives, for whom Buyer is
solely and fully responsible under all circumstances and in any
instance except to the extent caused by the gross negligence or
willful misconduct of Embraer, its officers, directors, employees or
agents.
11. CHANGES
a. At delivery each Aircraft will comply with the standards defined in
Attachment "A-1 or "A-2" as applicable and shall incorporate all
modifications which are classified as Airworthiness Directives
(AD's) mandatory by CTA or FAA and shall also at Delivery
incorporate any change agreed upon by Buyer and Embraer in
accordance with this Article 11.
b. [*]
c. Embraer may make changes 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:
1. MINOR CHANGES: defined as those modifications which shall not
adversely affect the Aircraft in any of the following:
[*]
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2. MAJOR CHANGES: defined as those modifications which affect at
least one of the topics mentioned in item "c.1." above.
d. Embraer shall have the right, without the prior consent of Buyer, to
make Minor Changes, as referred to in item "c.1" above, in the
design of the Aircraft. The costs of any such changes shall be borne
by Embraer.
e. Major Changes as referred to in item "c.2." above which are
classified as AD's mandatory by CTA and or FAA shall be conveyed to
Buyer by means of Service Bulletins, approved by said authorities.
Incorporation of such Service Bulletins in all Aircraft and Spares
yet to be delivered to Buyer will be made by Embraer at Embraer's
own costs, in a commercially reasonable period of time. [*]
Whenever warranty coverage is not available or applicable, item "e"
of this Article 11 shall apply. [*]
Embraer shall not be held liable for any delays in the Aircraft
Contractual Delivery Date resulting from the execution of any change
classified as mandatory by CTA or FAA when the Aircraft shall have
already passed the specific production stage affected by the
incorporation of said change. [*]
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f. Major Changes (other than those which are AD's mandatory per item
"e" above), any change developed by Embraer as product improvement,
and any change requested by Buyer which are either Major or Minor,
including those changes required by FAA as a consequence of [*]
shall be considered as optional and, pursuant to Buyer's request,
the corresponding cost proposals shall be submitted by Embraer to
Buyer for consideration and approval. Should Buyer not approve any
such change, it shall not be incorporated in the Aircraft.
g. Any change made by Embraer in accordance with the preceding items
which affects the provisions of Attachment "A", shall be
incorporated in said Attachment by means of an amendment. The
amendment shall be submitted to Buyer for signature thirty (30) days
prior to the relevant Aircraft Contractual Delivery Date, a copy of
which shall be received by Embraer, duly signed, prior to such
Aircraft Actual Delivery Date.
h. [*]
12. WARRANTY
The Aircraft and Spares will be warranted in accordance with the terms and
conditions specified in Attachment "C". The warranty may not be assigned
except as permitted by Article 16.
13. TECHNICAL ASSISTANCE SERVICES
a. Familiarization and technical support programs specified below are
being offered at no charge to Buyer unless otherwise specified,
except for the expenses involved with travel and lodging of
Chautauqua's trainees, which shall be borne by Buyer or Chautauqua.
Such familiarization and technical support programs shall be in
accordance with Embraer's training syllabus.
b. Notwithstanding the use of the term "training" in this Article 13 or
in the Agreement, the intent of the Services is solely to
familiarize Chautauqua's pilots, mechanics, employees or
representatives, duly qualified per the governing body
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in the United Sates of America, 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 Chautauqua.
c. [*] Chautauqua must give notice to Embraer one-hundred and twenty
(120) days in advance of its expected training schedule. Should
Buyer or Chautauqua not take all or any portion of the Services on
or before the delivery of Buyer's last Aircraft, Buyer and
Chautauqua shall be deemed to have fully waived their rights to such
service. No other penalty or indemnity shall be due from Embraer in
this case.
d. All Services shall be provided by Embraer or its qualified
designated representative at Embraer's facilities at Fort
Lauderdale, Florida, USA, or at such other location as Embraer shall
reasonably designate in the United States, except that flight
training may also be designated by Embraer to occur in Brazil if it
cannot reasonably occur in the United States.
e. The Services in regard to the Firm Aircraft shall include:
1. One (1) Pilot Familiarization Program [*] including ground
familiarization as regards Aircraft systems, weight and
balance, performance and normal/emergency procedures; Flight
simulator training in accordance with Chautauqua's approved
Flight Operations Training Program, up to, but not exceeding
the equivalent training in Level C simulator.
2. One (1) Maintenance Familiarization Course [*]. This course
shall consist of classroom familiarization with Aircraft
systems and structures and shall be in accordance with ATA
specification 104, level III.
3. One (1) Flight Attendant Familiarization Course [*]. This
course shall consist of classroom familiarization, including a
general description of Aircraft and systems to be used by
flight attendants if requested, Embraer may demonstrate
procedures described in the classroom, subject to Buyer's
Aircraft availability.
4. [*]
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Thereafter, every time Buyer requests the placement of an
Embraer technical representative at Chautauqua's
installations, Embraer will charge Buyer according to
Embraer's price list per month per each such Embraer technical
representative's presence. At no charge to Embraer, Buyer
shall insure and require Chautauqua to provide such
representative with reasonable communication facilities
(telephone and facsimile) as well as office space and
facilities at the maintenance base(s) of Chautauqua. Buyer
shall also cause Chautauqua to (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 "4", in due time; and (b) obtain all
necessary custom clearances both to enter and depart from the
United States for Embraer's employees and their personal
belongings and professional tools. During the stay of the
Embraer's technical representative at Chautauqua's base, Buyer
shall cause Chautauqua to permit access to the maintenance and
operation facilities as well as to the data and files of
Chautauqua's fleet of aircraft to the extent necessary to
perform its obligations hereunder. [*] Buyer shall cause
Chautauqua to make available at the office designated for the
technical representative, one (1) set of updated Technical
Publications referred to in Article 15, and it shall be
Chautauqua's responsibility to perform the revision services
in order to maintain such publications updated during the
technical representative's stay at Chautauqua's base. Buyer
shall bear all expenses related to the transportation, board &
lodging of Embraer representative when such representative
shall render the services specified herein in any place other
than Chautauqua's main maintenance base.
Without a previous written authorization from Embraer, Embraer
technical representatives shall not participate in test
flights or flight demonstrations. If Chautauqua obtains such
authorization, Chautauqua shall include the technical
representative in Chautauqua's insurance policy. Embraer
reserves the right to stop the services mentioned in this item
"4", should any of the following situations occur at
Chautauqua's base: a) there is a declared strike in progress;
b) war or war like operations, riots or insurrections; c) any
condition which is dangerous to the safety or health of
Embraer's employee; or d) the government of the United States
refuses permission to Embraer's employee to enter the country.
f. If Buyer or Chautauqua elects not to take all or any portion of the
Services, [*]. Any other additional services shall depend on
subsequent agreement and shall be charged by Embraer accordingly.
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g. Buyer and Chautauqua's authorized trainees and representatives at
Embraer's facilities shall be allowed exclusively in those areas
related to the subject matter hereof and Buyer agrees to, and to
cause the relevant Designated Operator to, hold harmless Embraer
from and against all and any kind of liabilities in respect of such
trainees and representatives for whom Buyer and Chautauqua, as the
case may be, are solely and fully responsible under all
circumstances, except to the extent [*].
14. SPARE PARTS POLICY
[*] Such spare parts and ground support equipment 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 spare parts and ground support equipment may be
supplied either by Embraer or through its subsidiaries or branch offices
located abroad.
15. PUBLICATIONS
a. AIRCRAFT PUBLICATIONS - Embraer has supplied, [*], copies of
operational and maintenance publications applicable thereto, in the
English language and in the quantities as specified in item "3" of
Attachment "B", other than those to be supplied by Embraer together
with each Aircraft at delivery. Such publications are issued under
the applicable specification and are available in hard copies [*],
and subsequently at a nominal fee. Such publications, to the extent
not previously supplied by Embraer, will be delivered together with
the Aircraft.
b. VENDOR ITEMS PUBLICATIONS - With respect to vendor items installed
in the Aircraft which have their own publications, Chautauqua will
receive them in the quantity specified in item "3" of 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 Chautauqua.
16. ASSIGNMENT AND GUARANTEE
a. Buyer or Chautauqua may request, and Embraer will take, any action
reasonably necessary for the purpose of causing an Aircraft and
Spares at the time of
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delivery to be subject to an equipment trust conditional sale, lien
or other arrangement for the initial financing of the Aircraft and
Spares in connection with the delivery of such Aircraft and Spares
to Chautauqua.
b. Except as expressly permitted by this Article 16, Buyer's rights and
obligations hereunder may not be assigned, conveyed, subcontracted,
transferred or delegated, without Embraer's prior written consent.
c. Chautauqua shall guarantee the obligations of Buyer hereunder
pursuant to a guarantee in the form attached hereto as Attachment H,
and it shall be a breach of this Agreement by Buyer if such
guarantee is at any time not effective in accordance with its terms
or if Chautauqua breaches, defaults, or fails to perform under such
guarantee.
17. RESTRICTIONS AND PATENT INDEMNITY
This sale does not include the transfer of designs, copyrights, patents,
and other similar rights to Buyer. Subject to Buyer's or Chautauqua's duty
to promptly advise Embraer of any alleged copyright or patent
infringement, Embraer shall indemnify, defend, protect and hold Buyer and
Chautauqua (including respective officers, controlling persons, employees
and directors) harmless with respect to any claims, suits actions,
judgments, liabilities, damages and costs, including reasonable attorney
fees, made against it or them if the Aircraft or Spares with Embraer part
numbers infringes copyright patents or the proprietary rights of others.
In such event Embraer shall to the extent necessary and as promptly as
possible at its sole option and expense either
(i) procure for Buyer or Chautauqua the right under patent to use the
system, accessory or equipment or part;
(ii) replace such system accessory, equipment or part with such
non-infringing item or part; or
(iii) modify such system, accessory, equipment or part to make it
non-infringing.
18. MARKETING PROMOTIONAL RIGHTS
Embraer shall have the right to show for marketing purposes, free of any
charge, the image of the Aircraft, painted with Buyer's colors and emblems
or the colors and emblems of Chautauqua, 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. 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 show the image of the
Aircraft, free of any charge, for marketing purposes, either with the
original or the new colors and
emblems, unless otherwise notified by Buyer or Chautauqua, provided that
such notification shall be subject to the reasonable satisfaction and
agreement of Embraer. 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. The provisions of this Article shall be included in all
future sales or lease agreements concerning the Aircraft.
19. TAXES
[*]
20. APPLICABLE LAW
This Agreement, and the rights and obligations of the Parties hereunder,
shall in all respects be governed by, and construed and interpreted in
accordance with, the laws of the State of New York (excluding conflicts of
law principles), and including all matters of construction, validity and
performance.
21. ARBITRATION
a. The Parties each irrevocably submit to the exclusive jurisdiction of
arbitration and expressly and irrevocably waive its right to bring
suit against the other party in any court of law except for the
limited purposes of enforcing an arbitral award obtained with
respect to a dispute, or for obtaining any injunctive, temporary or
preventative order or similar order available to it under the laws
of any jurisdiction for a breach or threatened breach by the other
party of this Agreement which threatens irreparable damage.
b. Any dispute submitted for arbitration must be finally settled by
binding and confidential arbitration according to the Rules of the
American Arbitration Association (the "Rules"), except as may be
modified by mutual agreement of Embraer and Buyer. The arbitration,
including the rendering of the award, will be conducted by
arbitrators (selected as set forth below) who are fluent in the
English language. The arbitration proceeding will be conducted with
discovery in accordance with the Federal Rules of Civil Procedure.
The arbitrators will be appointed in accordance with the Rules
except as otherwise provided for herein.
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The arbitration proceedings will take place in New York, New York,
and will be conducted in the English language.
c. The Arbitrator will be selected as follows: within fifteen (15)
Business Days of the referral of any matter to arbitration, each
party will select an arbitrator. Thereafter, within fifteen (15)
Business Days of each party's selection of an arbitrator, the two
arbitrators selected by the Parties shall meet to select a mutually
agreeable third arbitrator. In the event a party fails to select an
arbitrator with in the time period specified above, the party that
has timely complied with the selection of an arbitrator shall select
a second arbitrator. These two arbitrators shall within seven (7)
Business Days after the time in which the other party should have
selected an arbitrator, meet to select a mutually agreeable third
arbitrator. These three arbitrators shall comprise the arbitral
panel and all arbitral proceedings shall be conducted in the
presence of all three arbitrators.
d. If there is a dispute submitted to arbitration, any subsequent
additional disputes referred for arbitration (including
counterclaims between the parties) will be consolidated in the same
arbitration proceeding.
e. The arbitral proceeding will not exceed one hundred (100) days
commencing on the date the last arbitrator accepts his or her
appointment. If the arbitral award is not issued within this time,
then the arbitration proceeding will be automatically renewed for
another one hundred (100) days. Evidence may not be taken in the
arbitral proceeding except in the presence of both parties and all
witnesses, if any , may be questioned by both parties. The only
evidence which may be considered by the arbitrators in reaching
their decision is that which is otherwise admissible in accordance
with the then current United States Federal Rules of Evidence.
f. Any decision or award of the arbitrators must be based solely on the
terms of this Agreement and the substantive governing law applicable
to this Agreement. The decision of the arbitrators must be issued in
writing with an explanation of its reasoning, and will be final and
conclusive when issued. Judgment upon the award rendered in the
arbitration may be entered and enforced by the Court specified in
Article 21.g. hereof.
g. Each party irrevocably submits to the exclusive jurisdiction of the
United States District Court for the Southern District of New York
sitting in the County of New York for purposes of enforcing any
arbitral award or for other legal proceedings arising out of this
Agreement or any transactions contemplated in this Agreement as
provided for herein. However nothing contained in this Agreement
shall be deemed to prevent either party from enforcing any decision
of the United States District Court for the Southern District of New
York sitting in the County of New York for purposes of enforcing or
collecting any such award in any court or jurisdiction as such party
deems necessary or prudent.
h. Each party shall bear its own costs and expenses of arbitration. The
parties shall share equally the costs, expenses and fees of any
arbitral panel designated pursuant to this Agreement.
22. SOVEREIGN IMMUNITY, VENUE AND FORUM NON CONVENIENCE
Embraer, under the laws of the United States or of any other jurisdiction
affecting Embraer, is subject to private commercial law and suit, and is
not entitled to sovereign immunity under any such laws, for its
performance of its obligations under this Agreement. Embraer's performance
of its obligations hereunder constitute commercial acts done for
commercial purposes. The parties hereto furthermore waive to the extent
permitted by law any objections to venue of the United States District
Court for the Southern District of New York sitting in the County of New
York for purposes of enforcing any arbitral award and any right or claim
to any transfer or dismissal of any enforcement proceeding in the United
States District Court for the Southern District of New York sitting in the
County of New York on the grounds of forum non convenience.
23. TERMINATION
[*]
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[*]
b.1 [*]
c. [*]
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[*]
d. [*]
e. [*]
24. OPTION FOR THE PURCHASE OF ADDITIONAL EMB-145 AIRCRAFT
[*]
-----------------------------------------
37 EMB-145 DEC03
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Under no circumstances shall Buyer be obligated to accept Aircraft more than
seven (7) Business Days prior to the relevant Contractual Delivery Date.
[*]
a. INITIAL DEPOSIT: [*]
b. BASIC PRICE: [*] unless otherwise modified by the Parties and the
costs for such changes shall be in addition to the Basic Price.
c. ESCALATION: [*]
d. DEPOSIT AND PROGRESS PAYMENTS: The payment of the price specified
in item "b" above, shall be made according to the following:
1. [*]
2. [*]
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3. [*]
4. [*]
5. The balance of each relevant Option Aircraft escalated price
is due and payable upon acceptance of each relevant Aircraft
by Buyer.
e. [*]
f. [*]
g. SERVICES: The services Embraer will provide pursuant to Article 13
in regard to the Option Aircraft which will be delivered pursuant to
this Article 24 shall be in accordance with Article 13.e.1 - 4
above.
25. 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
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damage to property or by reason of injury or death of any person
(excluding Embraer's officers, directors, employees or agents) 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 or Chautauqua,
including, but not limited to, technical operations, maintenance, and
training services and assistance performed while on the premises of
Embraer, Chautauqua, or Buyer, while in flight on Aircraft after Actual
Delivery or while performing any other service, at any place, in
conjunction with the Aircraft [*]
26. NOTICES
All notices permitted or required hereunder shall be in writing in the
English language and sent, by registered mail, express courier or
facsimile, to the attention of the Director of Contracts as to Embraer and
of the President as to Buyer, to the addresses indicated below or to such
other address as either party may, by written notice, designate to the
other. In the event notice is issued by registered mail or express
courier, it shall be deemed received on the day on which the party
receiving such notice executes the delivery receipt. In the event notice
is issued by facsimile, it shall be deemed received on the day on which
the sender of such notice receives a facsimile confirmation receipt of
such facsimile notice.
a. Embraer:
EMBRAER - Empresa Brasileira de Aeronautica S.A.
▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇
12.227-901 Sao ▇▇▇▇ dos ▇▇▇▇▇▇ - SP
BRAZIL
Attention: Director of Contracts
Telephone: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
Facsimile: (▇▇-▇▇) ▇▇▇▇-▇▇▇▇
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b. Buyer
Republic Airways Holdings, Inc.
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a Copy to:
Wexford Capital LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇
Tel: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
27. CONFIDENTIALITY
Neither Party shall have the right to disclose the terms of this Agreement
except as required by law. To the fullest extent permitted by law, except
as aforesaid, neither Party shall disclose any portion of this Agreement
or its Attachments, amendments or any other supplement, to any third
party, other than to its accountants, attorneys, agents, consultants or
permitted assignees without the other Party's prior written consent, and
any such accountants, attorneys, agents consultants or permitted assignees
shall agree in writing to be bound by the terms of this Article 27.
Without limiting the foregoing, in the event either Party is legally
required to disclose the terms of this Agreement, the Parties agree to
exert their reasonable best efforts to request confidential treatment of
the clauses and conditions of this Agreement relevantly designated by
either Party as confidential. Without limiting its obligations pursuant to
the preceding sentence, Buyer agrees that if it is required, in the
opinion of counsel, to file publicly or otherwise disclose the terms of
this Agreement under applicable federal and/or state securities or other
laws, it shall promptly (but in no case less than ten (10) Business Days
prior to the proposed filing in question) notify Embraer so that Embraer
has a reasonable opportunity to contest or limit the scope of such
required disclosure, and Buyer shall request, and shall use its best
reasonable efforts to obtain, confidential treatment for such sections of
this Agreement as Embraer may designate. Buyer further agrees that it
shall not in any circumstances file publicly or otherwise disclose the
terms of this Agreement under applicable federal and/or state securities
or other laws if it has not complied with its obligations pursuant to the
previous sentence. Embraer shall have the right to
terminate this Agreement pursuant to Article 23.c if Buyer fails to comply
with its obligations pursuant to the previous two sentences (e.g., to
notify Embraer that Buyer is required to file or otherwise disclose terms
of this Agreement, to request and use its best reasonable efforts to
obtain confidential treatment of sections designated by Embraer as
confidential, or to file publicly or otherwise disclose the terms of this
Agreement if it has not complied with its obligations).
28. INTEGRATED AGREEMENT
All Attachments referred to in this Agreement and attached hereto are, by
such reference and attachment, incorporated in this Agreement. This
Agreement, including all Attachments and all amendments, modifications and
supplements, is herein and hereinafter called the "Agreement" or the
"Purchase Agreement".
29. NEGOTIATED AGREEMENT
This Agreement, including all of its Attachments, has been the subject of
discussion and negotiation and is fully understood by the Parties, and the
rights, obligations and other agreements of the Parties contained in this
Agreement are the result of complete discussion and negotiation between
the Parties.
30. 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.
31. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement of the Parties with
respect to the sale described as its subject and supersedes all previous
and connected negotiations, representations and agreements between the
Parties. This Agreement may not be altered, amended or supplemented except
by a written instrument executed by the Parties.
32. NO WAIVER
Any Party's forbearance 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. Buyer acknowledges that Embraer has not waived any rights it
may have against Buyer, Chautauqua or Solitair Corp., arising out of any
acts before the date this Purchase Agreement becomes effective.
33. REPRESENTATIONS AND WARRANTIES
A. Effective as of the date of this Agreement and as of the Actual
Delivery Date of each Aircraft, Embraer represents and warrants that:
1. Embraer is a corporation duly organized, validly existing and in
good standing under the laws of Brazil, is the manufacturer of the
EMB-145LR model aircraft and has all necessary corporate power and
authority to conduct the business in which it is currently engaged
and to enter into and perform its obligations under this Agreement.
2. Embraer has taken, or caused to be taken, all necessary corporate
action to authorize the execution and delivery of this Agreement and
the performance of its obligations hereunder.
3. The execution and delivery by Embraer of this Agreement, the
performance by Embraer of its obligations hereunder and the
consummation by Embraer of the transactions contemplated hereby, do
not and will not (A) violate or conflict with any provision of the
constitutional documents of Embraer, (B) violate or conflict with
any law, rule, or regulation applicable to or binding on Embraer or
(C) violate or constitute any breach or default (other than a breach
or default that would not (x) result in a material adverse change to
Embraer or (y) adversely affect Embraer's ability to perform any of
its obligations hereunder),under any agreement, instrument or
document to which Embraer is a party or by which Embraer or any of
its properties is or may be bound or affected.
4. The execution and delivery by Embraer of this Agreement, the
performance by Embraer of its obligations hereunder and the
consummation by Embraer of the transactions contemplated hereby do
not and will not require the consent, approval or authorization of,
or the giving of notice to, or the registration with, or the
recording or filing of any documents with, or the taking of any
other action in respect of, (A) any trustee or other holder of any
indebtedness or obligation of Embraer, (B) any national, state or
municipal government regulatory, judicial, or administrative entity
of competent jurisdiction, or (C) any other party.
5. This Agreement has been duly authorized, executed and delivered by
Embraer and, assuming the due authorization, execution and delivery
hereof by the other Party constitutes the legal, valid and binding
obligation of Embraer enforceable against Embraer in accordance with
the terms hereof, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium and
other similar laws affecting the rights of creditors generally and
general principles of equity, whether considered in a proceeding at
law or in equity.
6. Each of the foregoing representations and warranties shall survive
the execution and delivery of this Agreement and any termination
hereof.
B. Effective as of the date of this Agreement and as of the Actual Delivery
Date of each Aircraft, Buyer represents and warrants that:
1. Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware and has all
necessary corporate power and authority to conduct the business in
which it is currently engaged and to enter into and perform its
obligations under this Agreement.
2. Buyer has taken, or caused to be taken, all necessary corporate
action to authorize the execution and delivery of this Agreement and
the performance of its obligations hereunder.
3. The execution and delivery by Buyer of this Agreement, the
performance by Buyer of its obligations hereunder and the
consummation by Buyer of the transactions contemplated hereby, do
not and will not (A) violate or conflict with any provision of the
constitutional documents of Buyer, (B) violate or conflict with any
law, rule, or regulation applicable to or binding on Buyer or (C)
violate or constitute any breach or default (other than a breach or
default that would not (x) result in a material adverse change to
Buyer or (y) adversely affect Buyer's ability to perform any of its
obligations hereunder),under any agreement, instrument or document
to which Buyer is a party or by which Buyer or any of its properties
is or may be bound or affected.
4. The execution and delivery by Buyer of this Agreement, the
performance by Buyer of its obligations hereunder and the
consummation by Buyer of the transactions contemplated hereby do not
and will not require the consent, approval or authorization of, or
the giving of notice to, or the registration with, or the recording
or filing of any documents with, or the taking of any other action
in respect of, (A) any trustee or other holder of any indebtedness
or obligation of Buyer, (B) any national, federal, state or local
government regulatory, judicial, or administrative entity of
competent jurisdiction (other than recordation of the Aircraft with
FAA) or (C) any other party.
5. This Agreement has been duly authorized, executed and delivered by
Buyer and, assuming the due authorization, execution and delivery
hereof by the other Party constitutes the legal, valid and binding
obligation of Buyer enforceable against Buyer in accordance with the
terms hereof, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization, receivership, moratorium and
other similar laws affecting the rights of creditors generally and
general principles of equity, whether considered in a proceeding at
law or in equity.
6. Each of the foregoing representations and warranties shall survive
the execution and delivery of this Agreement and any termination
hereof.
34. EFFECTIVENESS
A. This Agreement shall become effective at the time all of the following
events have occurred: (a) it is signed by an authorized officer of Buyer
and executed by two authorized officers of Embraer; [*]
B. At the time this Agreement becomes effective, neither Buyer nor Embraer
shall have any rights or obligations to the other pursuant to the Original
Purchase Agreement except as expressly restated herein.
[*]
[*]
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[*]
[*]
[*]
[*]
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E. [*]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed
and delivered by their proper and duly authorized officers and to be effective
as of the day and year first above written.
EMBRAER - EMPRESA BRASILEIRA REPUBLIC AIRWAYS HOLDINGS, INC.
DE AERONAUTICA S.A.
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
____________________________ ____________________________
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Curado Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
__________________________ ___________________________
Title: E.V.P. Airline Market Title: President
_________________________ __________________________
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
________________________
Title: Director of Centro C&S
_______________________
Date: April 19, 2002 Date: April 19, 2002
_________________________ __________________________
Place:________________________ Place:_________________________
Witness: /s/ ▇▇▇▇▇▇▇▇ Beuvo Witness: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________ _______________________
Name: ▇▇▇▇▇▇▇▇ Beuvo Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________ __________________________
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ATTACHMENT "A-1"
AIRCRAFT UNDER US AIRWAYS CONFIGURATION
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AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND REGISTRATION MARKS
------------------------------------------------------------------
1. STANDARD AIRCRAFT
The Aircraft shall be manufactured according to the standard configuration
specified in the Technical Description TD-145/010, dated January 1998
(Appendix I) (the "Technical Description") and the optional equipment
described in item 2 below.
[*]
[*]
[*]
[*]
[*]
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[*]
[*]
[*]
3. FINISHING
a. EXTERIOR FINISHING:
The Aircraft shall be painted according to the US Airways color and
paint scheme, which has been supplied to Embraer by Buyer.
b. INTERIOR FINISHING:
Buyer has informed Embraer 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. In case Buyer elects to use different materials
and or patterns, such schedule shall be agreed between the Parties
at the time of signature of this Purchase Agreement.
4. REGISTRATION MARKS
The Aircraft shall be delivered to Buyer with the registration marks
painted on them, which shall be supplied to Embraer by Buyer no later than
ninety (90) days before each relevant Aircraft Contractual Delivery Date.
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IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT "A-1" AND THE
TERMS OF THE TECHNICAL DESCRIPTION, THE TERMS OF THIS ATTACHMENT "A-1"
SHALL PREVAIL.
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ATTACHMENT "A-2"
AIRCRAFT UNDER AMERICA WEST CONFIGURATION
------------------------------------------------------------------------------
AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND REGISTRATION MARKS
-----------------------------------------------------------------
1. STANDARD AIRCRAFT
The Aircraft shall be manufactured according to the standard configuration
specified in the Technical Description TD-145/010, dated January 1998
(Appendix I) (the "Technical Description") and the optional equipment
described in item 2 below.
2. [*]
[*]
[*]
[*]
[*]
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[*]
[*]
3. FINISHING
a. EXTERIOR FINISHING:
The Aircraft shall be painted according to the America West color
and paint scheme, which has been supplied to Embraer by Buyer.
b. INTERIOR FINISHING:
Buyer has informed Embraer 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. In case Buyer elects to use different materials
and or patterns, such schedule shall be agreed between the Parties.
4. REGISTRATION MARKS
The Aircraft shall be delivered to Buyer with the registration marks
painted on
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them, which shall be supplied to Embraer by Buyer no later than ninety
(90) days before each relevant Aircraft Contractual Delivery Date.
IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT "A-2" AND
THE TERMS OF THE TECHNICAL DESCRIPTION, THE TERMS OF THIS ATTACHMENT "A-2"
SHALL PREVAIL.
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ATTACHMENT "B"
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FERRY EQUIPMENT,
----------------
SPARE PARTS POLICY AND LIST OF PUBLICATIONS
-------------------------------------------
1. FERRY EQUIPMENT
If it is necessary for any ferry equipment to be installed by Embraer
for the ferry flight between Brazil and the United States of America,
Embraer may provide such equipment to Buyer, for a price to be agreed
between the Parties. In this case, Buyer shall immediately upon its
arrival remove such ferry equipment from the Aircraft and turn it over
to Embraer in Brazil at Buyer's own expense.
If Embraer provides any ferry equipment to Buyer and if such equipment
is utilized, for any reason, or if such equipment is not returned by
Buyer, in Embraer's sole judgment, complete and in perfect condition,
Buyer shall fully indemnify Embraer for the value of such equipment,
provided that in case of partial utilization of, or damage to any such
equipment, the value to be charged shall be the price of a new complete
set of equipment.
[*]
2. SPARE PARTS
2.0 [*]
[*]
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[*]
2.1 INITIAL PROVISIONING
The objective of the IPL is to provide Buyer with accurate
technical data supplied by Embraer, in order to enable an
adequate selection of spares, aiming to support initial
scheduled maintenance, based upon operational parameters
established by Chautauqua.
2.2 PROVISIONING
[*]
2.3 DATA
Initial provisioning data has been supplied Chautauqua upon
request.
2.3.1 INITIAL PROVISIONING DATA: Embraer has supplied
initial provisioning data.
2.3.2 PROVISIONING DATA REVISIONS: As requested, the
Chautauqua IPL will have the data updated by
incorporating engineering and price changes.
Embraer will maintain a master copy of the
Chautauqua IPL updated until ninety (90)
calendar days after delivery of the last
Aircraft.
2.4 SPARE PARTS RECOMMENDATIONS
[*]
2.5 DELIVERY OF SPARE PARTS
Except for those spare parts referred to in item 2.4. above,
Spare items (initial provisioning spare parts) are normally in
inventory and available for delivery on the Aircraft
Contractual Delivery Date. Nevertheless, delivery dates shall
be those agreed between the Parties in the Purchase
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Agreement. Replenishment of Embraer made parts will be in
accordance with the lead times quoted by Embraer. Embraer will
deliver parts in FCA (Free Carrier - Incoterms 1990)
condition, at Sao ▇▇▇▇ dos ▇▇▇▇▇▇, State of Sao Paulo, Brazil,
or at any other port of clearance that may be chosen by
Embraer and informed to Buyer.
2.6 EMERGENCY SPARE PARTS SERVICE
Embraer will maintain an emergency spare parts service, twenty
four (24) hours a day, seven (7) days a week. [*]
[*]
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[*]
2.8. [*]
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2.9. PARTS REPAIR PROGRAM
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For any repair required by Chautauqua on any Embraer or vendor
repairable item, Embraer may assist Chautauqua to perform such
repair in order to ensure the shortest turn around time (TAT).
2.10. PRICING
Embraer will maintain a spare parts price list updated
periodically. Items not shown on the list will be quoted on
request.
3. LIST OF PUBLICATIONS
As provided for in Article 15 of this Agreement, the technical
publications covering operation and maintenance shall be delivered to
Buyer in accordance with the following list:
QTY
TITLE (COPIES)
----- --------
OPERATIONAL
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MAINTENANCE - BASIC SET
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MAINTENANCE SUPPLEMENTARY SET
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If Buyer elects not to take all or any one of the publications mentioned in this
Section 3, or revisions thereof, no refund or other financial adjustment of the
Basic Price will be made since such publications are offered at no cost to Buyer
as referred to in Article 15.a of the Purchase Agreement.
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ATTACHMENT "C"
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AIRCRAFT WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
1. Embraer, subject to the conditions and limitations hereby expressed,
warrants the Aircraft as follows:
a. For a period of forty-eight (48) months from the date of delivery to
the first Buyer, each 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 thirty-six (36) months from the date of delivery to
the first Buyer, the 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, 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 to the Technical Description Number
TD 145 /010 dated January 1998 as may be amended by Buyer's
Aircraft Technical Specification referred to in Article 1.b of
the Purchase Agreement of the Aircraft.
Once the above mentioned periods have expired, Embraer will transfer to
Buyer the original warranty issued by the vendors, if it still exists.
2. Embraer, subject to the conditions and limitations hereby expressed,
warrants that:
a. All spare parts which have been manufactured by Embraer or by its
subcontractors holding an Embraer part number, and by vendors which
will permit their particular identification and which have been sold
by Embraer or its representatives will, for a period of twenty four
(24) months from the date of delivery of such spares to Buyer, be free
from defects of material,
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Amended and Restated EMB-145LR Purchase Agreement Page 1 of 4
DCT-025/98 - Attachment C 45167443_3.DOC
workmanship, manufacturing processes and defects inherent to the
design of the above mentioned parts.
b. All ground support equipment, which has been designed and manufactured
by Embraer or by its subcontractors holding an Embraer part number and
by vendors, not including Engines, APU and their 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 twelve (12) months from the date
of delivery to Buyer of said equipment, be free from malfunction,
defect of material and manufacture.
3. The obligations of Embraer as expressed in this warranty and as specified
in Article 11.e are limited to replacement, repair or rework of the
defective item, depending solely upon Embraer's own judgment, of the parts
that are returned to Embraer or its representatives within a period of
sixty (60) days after the occurrence of the defect, at Buyer's own 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 shipped to Embraer
within such sixty (60) days period, Embraer may in its sole discretion,
deny the warranty claim. In the event that it is not practical in the
international commercial transportation industry to return the part or
component which is the subject of a warranty claim under this Attachment C,
to Embraer, because of either its extremely large size or its relationship
to the Airframe, then thirty (30) days after a defect is found in such
structural component (hereafter referred to as "Structural Component"),
Buyer shall send notice of such defect to Embraer and notwithstanding the
above, Buyer shall not be obligated to return such Structural Component to
Embraer. Embraer shall thereafter send an appropriate inspection team to
Buyer's facilities to inspect the Structural Component for the alleged
defect. In the event that Embraer in its sole judgment finds the Structural
Component defective, it shall either repair, rework, or replace the
defective Structural Component.
Notification of any defect claimed under three (3) above must be given to
Embraer within thirty (30) calendar days after such defect is found.
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. However, freight, insurance, taxes and
other costs eventually incurred during the shipment to Embraer or its
representative, re-installation and adjustments are Buyer's responsibility.
4. Embraer will accept no warranty claims under any of the circumstances
listed below unless it can be demonstrated in accordance with the standards
of the
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Page 2 of 4
international aircraft manufacturing industry that such operation or
maintenance or other circumstance did not cause the defect:
a. When the Aircraft has been used in an attempt to break records, or
subjected to experimental flights, or in any other way not in
conformity with the flight manual or the airworthiness certificate, or
subjected to any manner of use in contravention of the applicable
aerial navigation or other regulations and rules, issued or
recommended by government authorities of whatever country in which the
aircraft is operated, when accepted and recommended by I.C.A.O.;
b. When the Aircraft or any of its parts have been altered or modified by
Buyer, without prior approval from Embraer or from the manufacturer of
the parts through a service bulletin;
c. Whenever the Aircraft or any of its parts have been involved in an
accident, or when parts either defective or not complying to
manufacturer's design or specification have been used;
d. Whenever parts have had their identification marks, designation, seal
or serial number altered or removed;
e. In the event of negligence, misuse or maintenance services done on the
Aircraft, or any of its parts not in accordance with the respective
maintenance manual;
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. The warranty hereby expressed 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 the first
Buyer, and it cannot be transferred or assigned to others, unless by
written consent of Embraer, or as otherwise provided for pursuant to
Article 16 of the Purchase Agreement of which this is an Attachment.
7. THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND REMEDIES OF
BUYER SET FORTH IN THIS WARRANTY CERTIFICATE ARE EXCLUSIVE AND IN
SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL
OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND ANY ASSIGNEE
OF EMBRAER AND ALL
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OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST EMBRAER OR ANY ASSIGNEE
OF EMBRAER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT
TO ANY NON-CONFORMANCE OR DEFECT OR FAILURE OR ANY OTHER REASON IN ANY
AIRCRAFT OR OTHER THING DELIVERED UNDER THE PURCHASE AGREEMENT OF WHICH
THIS IS AN ATTACHMENT, INCLUDING DATA, DOCUMENT, INFORMATION OR SERVICE,
INCLUDING BUT NOT LIMITED TO:
a. ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
b. ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR USAGE OF TRADE;
c. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR
NOT ARISING FROM THE NEGLIGENCE OR OTHER RELATED CAUSES OF EMBRAER OR
ANY ASSIGNEE OF EMBRAER, WHETHER ACTIVE, PASSIVE OR IMPUTED; AND
d. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR
DAMAGE TO ANY AIRCRAFT, FOR LOSS OF USE, REVENUE OR PROFIT WITH
RESPECT TO ANY AIRCRAFT OR FOR ANY OTHER DIRECT, INCIDENTAL OR
CONSEQUENTIAL DAMAGES.
8. No representative or employee of Embraer is authorized to establish any
other warranty than the one hereby expressed, nor to assume any additional
obligation, relative to the matter, in the name of Embraer and therefore
any such statements eventually made by, or in the name of Embraer, shall be
void and without effect.
9. Provided the provisions hereof are still effective in accordance with their
terms, then Buyer may assign Buyer's rights pursuant to this warranty to
any entity (but for entities or air carriers which are owned, effectively
controlled or managed by any other airframe manufacturer which competes in
the thirty seven (37) to seventy (70) seat turbo jet market ("Transferee"))
provided Buyer notifies Embraer of the identity of such Transferee at least
thirty (30) calendar days prior to such transaction. In the event such
Transferees or Other Transferees (as defined herein) subsequently transfer
any Aircraft or Spares, any Transferees' or Other Transferees' rights which
remain pursuant to this Warranty with respect to such Aircraft and Spares
may also be transferred to any other entity (but for entities or air
carriers which are owned, effectively controlled or managed by any other
airframe manufacturer which competes in the thirty seven (37) to seventy
(70) seat turbo jet market ("Other Transferees")) provided that the
Transferees or Other Transferees notify Embraer of the identity of such
other entity at least sixty (60) calendar days prior to such transaction.
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Page 4 of 4
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ATTACHMENT D
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AIRCRAFT
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ESCALATION FORMULA
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ATTACHMENT E
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APPOINTMENT OF AUTHORIZED REPRESENTATIVE
--------------------------------------
("Buyer") hereby designates and appoints _________________ as the
authorized representative of Buyer for the purpose of inspecting, reinspecting,
and accepting delivery from EMBRAER-Empresa Brasileira de Aeronautica S.A.
("Embraer"), on behalf of and in the name of Buyer, of the Embraer Model
EMB-145/EMB-135KL aircraft having Manufacturer's Serial No. 145___ (including
the engines, appliances and parts installed thereon, the "Aircraft") and Spares,
as defined in that certain Amended and Restated Purchase Agreement GCT-025/1998
between Republic Airways Holdings, Inc. and EMBRAER dated April __, 2002, to be
delivered by Embraer to Buyer pursuant to the Purchase Agreement Assignment to
be dated as of or about ______ __, 200_ between Republic Airways Holdings, Inc.
and Buyer, including the authority to accept delivery of said Aircraft and
Spares, and to execute and deliver any additional documents with respect to the
delivery for said Aircraft and Spares in such form as such authorized
representative executing the same shall deem appropriate.
Dated: __________ __, 200_
______________
By:_______________________
Name:
Title:
The foregoing appointment
is hereby accepted
------------------------
Name:
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ATTACHMENT "F"
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FORM OF WARRANTY ▇▇▇▇ OF SALE
-----------------------------
KNOW ALL MEN BY THESE PRESENTS THAT Embraer - Empresa Brasileira de Aeronautica
S.A. ("SELLER"), a Brazilian company, whose address ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇ - Putim, Sao ▇▇▇▇ dos ▇▇▇▇▇▇, Sao Paulo, Brazil, is the owner of good and
marketable title to that certain EMB-145 LR aircraft bearing Manufacturer's
Serial No. ___________, with all appliances, parts, instruments, appurtenances,
accessories, furnishings and/or other equipment or property incorporated in or
installed on or attached to said engine (hereinafter collectively referred to as
the "Aircraft") purchased by Republic Airways Holdings, Inc. ("BUYER") under the
Amended and Restated Purchase Agreement No. 025/98, dated as of _______ __,
2002, including Attachments, Exhibits, Letters, Amendments and Agreements by and
between SELLER and [BUYER].
THAT for and in consideration of the sum of US$ 10.00 and other valuable
consideration, receipt of which is hereby acknowledged, SELLER does this
__________ day of __________, 200_, grant, convey, transfer, bargain and sell,
deliver and set over to BUYER and unto its successors and assigns forever, all
of SELLER's rights, title and interest in and to the Aircraft.
THAT SELLER hereby represents and warrants to BUYER, its successors and assigns:
(i) that SELLER has good and marketable title to the Aircraft and the good and
lawful right to the Aircraft and the good and lawful right to sell the
same; and
(ii) that good and marketable title to the Aircraft is hereby duly vested in
BUYER free and clear of all claims, liens, encumbrances and rights of
others of any nature. SELLER hereby covenants and agrees to defend such
title forever against all claims and demands whatsoever.
This Full Warranty ▇▇▇▇ of Sale is governed by the laws of the state of New
York, United States of America.
IN WITNESS WHEREOF, SELLER has caused this instrument to be executed and
delivered by its duly authorized officer and attorney in fact.
Date as of ____________________, 200_.
EMBRAER - EMPRESA BRASILIERA DE AERONAUTICA S.A.
By: ___________________________
Name: ___________________________
Title: ___________________________
CHAUTAUQUA GUARANTY
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