Exhibit 10.14
AMENDED AND RESTATED
LETTER AGREEMENT GCT-026/98
This Amended and Restated Letter of Agreement GCT-026/98 ("Agreement") dated
April 19, 2002, is an agreement between Republic Airways Holdings, Inc.
("Buyer") with its principal place of business at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, and EMBRAER - EMPRESA BRASILEIRA DE
AERONAUTICA S.A. ("Embraer"), with its principal place of business at Sao ▇▇▇▇
dos ▇▇▇▇▇▇, Sao Paulo, Brazil, relating to the Amended and Restated Purchase
Agreement GCT-025/98 dated April __, 2002 (the "Purchase Agreement") for the
purchase by Buyer of up to thirty-seven (37) new EMB-145 LR aircraft (the
"Aircraft").
This Agreement constitutes an amendment and modification of the Purchase
Agreement, and it sets forth additional agreements of the Parties with respect
to the matters set forth in the Purchase Agreement. All terms defined in the
Purchase Agreement shall have the same meaning when used herein, and in case of
any conflict between this Agreement and the Purchase Agreement, this Agreement
shall govern.
Solitair Corp. ("Solitair") has assigned to Buyer all of Solitair's rights and
obligations under the Purchase Agreement DCT-025/98 between Embraer and Solitair
(as amended before the date of the Purchase Agreement, the "Original Purchase
Agreement") and Letter Agreement GCT-026/98 dated as of June 17, 1998 between
Embraer and Solitair (as amended before the date of this Agreement, the
"Original Letter Agreement") with respect to the sale of certain unexercised
option aircraft, and in connection with such assignment, Solitair has also
assigned to Buyer its remaining rights with respect to the aircraft delivered
and to be delivered under the Original Purchase Agreement.
Buyer and Embraer now desire to amend and restate certain agreements relating to
such Aircraft, as previously provided in the Original Letter Agreement.
At the time this Agreement becomes effective, neither Buyer nor Embraer shall
have any rights against or obligations to the other pursuant to the Original
Letter Agreement.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby
acknowledged, Embraer and Buyer agree as follows:
1. BRAZILIAN EXPORT SUPPORT
A. Securing Availability of [*] Benefits
[*] shall secure availability of Brazilian Export Financing Program
[*] on behalf of and for the benefit of Buyer for the Aircraft by
obtaining [*] for those Aircraft.
B. Amount of [*] Benefits
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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.
The [*] Benefits [*] of [*] of [*] which may be charged by a
permitted financier of the Aircraft.
To the extent that the [*] Benefits are reduced below the level
referred to above, withdrawn or canceled, [*] , either:
B.1. when and if permitted by the then existing governmental rules
and regulations, [*] or
B.2. [*]
[*]
2. SPARE PARTS CREDITS
Embraer will provide Buyer a spare parts (except engines, engine related
parts and APU) and ground support equipment credit of [*] . This spare
parts credit shall be made available to Buyer upon [*] If for any reason
the Purchase Agreement is partially terminated in relation to any
Aircraft, then Buyer shall pay [*] per each applicable terminated EMB-145
Aircraft and/or [*] per each EMB-140 Aircraft for which such Spare Parts
Credit for any reason has already been provided to Buyer. Each Spare Part
Credit shall only be made available to Buyer in the event there is [*] .
If any such credit is not so made available to Buyer because [*] , such
credit shall be made available [*] . Any portion of such credit which
remains unused [*] shall be deemed to have been waived by Buyer, and no
further compensation shall be due [*] for such Spare Parts Credit. Such
Spare Parts Credit shall be applied against [*]
3. ADDITIONAL SPARES
Notwithstanding the value of Spares stated in Article 3.A.2 of the
Purchase Agreement, the Buyer may acquire Spares in excess of such stated
value, subject to availability of such additional Spares, from Embraer
("Additional Spares"). However, such Additional Spares [*] .
4. FINANCING
A. In the event Buyer elects to assign its rights to an Aircraft to a
financing institution as provided for in Article 16.a of the
Purchase Agreement, it shall provide Embraer with written notice of
the name, address, telephone number and contact person of such
financing institution within [*] prior to intended date of the
assignment; provided that Buyer shall make reasonable efforts to
provide earlier notice. Buyer shall also timely provide Embraer with
any other information Embraer may reasonably request in regard to
such financing institution. Embraer
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shall inform Buyer whether such financing institution has been
approved by Embraer to the extent required pursuant to Article 16 of
the Purchase Agreement within [*] after its receipt of such notice.
B. Notwithstanding anything to the contrary in Article 3 or 24 of the
Purchase Agreement, the Basic Prices for the Aircraft shall [*] if
Buyer does not [*] The Basic Prices for the Aircraft shall also [*]
C. For each Aircraft (excluding Aircraft for which [*] issued), Embraer
shall offer a [*] Such [*] will be based on the determination of [*]
using [*] The Buyer will use commercially reasonable efforts to
provide Embraer with reasonable notice of [*] provided, however, any
failure to provide such notice shall [*] in accordance with the
terms of this Agreement.
C.1 The obligation of Embraer to grant [*] contingent upon Buyer's
[*]
C.2 If Buyer has made the determination set forth above, Embraer
shall then [*] provided however, that Buyer shall make
reasonable efforts to minimize [*]
C.3 If, on a case by case basis, Buyer is unable to use an [*] in
the financing of an Aircraft after making reasonable efforts
to do so, and the Buyer believes in good faith that such
failure is due to [*] Buyer may request that Embraer [*] In
such situation, Embraer shall [*]
C.4 The terms of the [*] shall apply to [*] pursuant to this
Section 4.C.
D. Embraer shall make [*] to assist Buyer's efforts to[*] Embraer shall
not be obliged to assist Buyer in efforts to [*]
E. For the avoidance of doubt, Embraer shall not be deemed to have [*]
5. AIRCRAFT ESCALATION PRICE
A. The Basic Prices are subject to Embraer's standard escalation
formula contained in Attachment "D" (the "Escalation Formula") to
the Purchase Agreement.
B. The Escalation Formula applied to each Aircraft [*] for each of such
Aircraft. However, in the event that the delivery date provided for
any of such Aircraft is delayed for any reason not attributable to
Embraer [*] and the Basic Price of the such relevant Aircraft shall
be [*] in accordance with the Escalation Formula.
C. The calculation of [*] shall be made for the [*] applicable for each
relevant Aircraft [*], and the result so obtained [*] shall be [*].
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D. The Purchase Price for such Aircraft shall be determined as follows:
(i) If [*], the Aircraft Purchase Price shall be equal to [*], or:
(ii) If [*], but [*], the [*] shall be [*] and the applicable
Aircraft Purchase Price shall be equal to [*], or:
(iii) If [*], the applicable Aircraft Purchase Price shall be equal
to [*], and the result so obtained shall be [*].
E. The conditions described above shall only be applicable in the event
[*]. In the event, in any of the situations described above, [*],
the applicable Aircraft Purchase Price will be equal to the
applicable Aircraft Basic Price [*]."
6. SPARE PARTS [*]
Embraer shall at all times provide Buyer [*] its published base spare
parts catalogue price list which includes only Embraer-made parts. This
[*] shall be applicable for the [*] . . Such [*] shall be applicable for
spare parts purchase orders to be placed at Embraer after the signature of
this Agreement.
7. ADDITIONAL AIRCRAFT [*]
Embraer shall provide an [*] in accordance with the terms and conditions
specified in Schedule "3-A" to this Agreement.
Embraer shall provide a [*] and [*] in accordance with the terms and
conditions specified in Schedules "4" and "5", respectively. These [*]
shall apply to [*].
8. [*]
A. DECISION TO [*]
Buyer may at Buyer's option, elect to [*] (as defined below) [*] ,
provided that Buyer informs Embraer by means of a written notice
("Election Notice") no later than the date which Buyer confirms the
exercise of its option to purchase such Option Aircraft, according
to Article 24 of the Purchase Agreement, of its intention to
exercise such [*] right. Buyer may elect to [*] .
EMB-140 Aircraft - shall mean the EMB-145, Model EMB-135 [*]
Aircraft, or, where there is more than one of such Aircraft, each of
such Aircraft, manufactured by Embraer, for sale to Buyer pursuant
to the Purchase Agreement, according to Technical Description
TD-140/002, dated April 2000, the Aircraft Specific Configuration,
Finishing and Registration Marks described in Schedule "6" to this
Letter Agreement, as may be amended from time to time by Buyer at
its expense as specified in Article 11 of the Purchase Agreement.
The Aircraft is composed entirely of vendor parts and parts
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manufactured by Embraer and Embraer subcontractors, and the parts
manufactured by Embraer and Embraer subcontractors shall have
Embraer part numbers.
Any initial deposit or progress payment paid by Buyer pursuant to
Articles 4.a or 24.d of the Purchase Agreement with respect to any
Aircraft [*] , shall be [*] in the same manner as [*] .
B. APPLICATION OF PURCHASE AGREEMENT [*] :
Except as provided in this paragraph "b", all terms and conditions
applicable for the Aircraft shall also be applicable MUTATIS MUTANDI
[*] .
B.1. The unit Basic Price [*] shall be [*] in [*] economic
conditions in the configuration, specification and
installations specified in Schedule "6", provided that there
will be [*] as described in Section 4.c of this Agreement and
any other [*] agreed to in writing between Embraer and Buyer.
In the event Buyer enters into a [*] for [*] , the [*] Basic
Price shall be [*]
B.2. Schedule "3-B" shall apply to the [*] Aircraft in lieu of
Schedule "3-A".
9. [*] PAYMENTS
9.1 FIRM AIRCRAFT
A. [*] payments for the Firm Aircraft pursuant to Articles [*] of the
Purchase Agreement shall be [*], subject to [*] pursuant to [*]
below.
B. In order to [*], from the date such [*] payment is due until the
Actual Delivery Date for each Aircraft.
9.2 OPTION AIRCRAFT
A. Notwithstanding anything to the contrary in the Purchase Agreement,
Buyer shall [*] until [*].
B. The [*] payments for the Option Aircraft pursuant to Articles [*] of
the Purchase Agreement shall be [*], subject to [*] pursuant to [*]
below.
C. In order to [*], from the date such [*] payment is due until the
Actual Delivery Date for each Aircraft.
D. Items A and B shall not apply to Option Aircraft [*].
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9.3 GENERAL TERMS FOR [*] PROGRESS PAYMENTS
A. Amounts owed by Buyer pursuant to this Article 9 shall not [*] and
shall be paid by Buyer directly to Embraer upon [*]
B. Buyer shall not withhold or deduct any portion of [*] ; provided
that Embraer shall cooperate reasonably with Buyer in executing any
[*] forms requested by Buyer.
9.4 [*] PROGRESS PAYMENTS
Upon receipt of the Purchase Price for each Firm Aircraft, Embraer
shall [*] Embraer shall [*]
10. BRIDGE FINANCING
Embraer has provided a temporary financing structure ("Bridge Financing")
for six (6) EMB-135 [*] model aircraft to Chautauqua in accordance with
the terms of the letter agreement, interim loan agreement, aircraft
security agreement and security agreement supplement agreed between
Embraer and Chautauqua for each such Aircraft. Any breach, default or
failure to perform under the Bridge Financings by Chautauqua shall be a
breach of the Purchase Agreement. Any breach, default or failure to
perform by Buyer under the Purchase Agreement shall be an "Event of
Default" under the Bridge Financings, as such term is defined in the
Bridge Financing agreements.
11. [*]
Buyer is entitled to [*] spare parts [*] per each Aircraft for Chautauqua,
up to a maximum of [*] A portion of such [*] spare parts [*] shall be made
available to Buyer in [*] , with additional [*] to be made available on a
schedule agreed by Embraer and Buyer that increases [*] after the first
delivery of [*] spare parts.
The identification of the parts which will be included [*] shall be
mutually agreed upon by the Parties. During [*] , Embraer shall have the
right to [*] , however, keeping the [*] level.
Availability of [*] is conditioned upon Buyer, Chautauqua and Embraer's
designee in the United States of America entering into a [*] agreement to
be negotiated by Buyer and Embraer's designee in good faith within [*]
days following execution of this Agreement and Embraer's and Buyer's
performance of their obligations thereunder. Nevertheless, the following
conditions precedent shall be fulfilled to the reasonable satisfaction of
Embraer and its designee:
a. Buyer/Chautauqua has provided the appropriate fillings of [*]
and any other filings reasonably requested by Embraer, as to evidence
[*]; and
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b. Buyer/Chautauqua has provided evidence of appropriate insurance
coverage for [*]. Such insurance shall, among other stipulations, [*].
The Parties furthermore agree that Buyer/Chautauqua shall pay Embraer a
[*], based upon [*] The [*] will be [*] for a period of [*] and shall
decrease during the [*] according to the same schedule by which it
increased during the first [*] Upon expiration of such [*], Chautauqua
may [*] or [*].
Buyer/Chautauqua shall pay Embraer the purchase price of [*] spare part
within [*] days of Chautauqua's [*] of the [*] spare [*]. The price for
the [*] spare parts shall be based upon [*] Embraer shall [*] as to be
provided for in the [*] Agreement in order to [*] through the [*], except
as provided to the contrary in this Section 10.
In the event, for any reason the Purchase Agreement is terminated with
respect to any Aircraft, [*] .
12. SIMULATOR DATA PACKAGE
If, on or before [*] , (i) Buyer elects to acquire its own flight
simulator, (ii) Buyer requests from Embraer [*] , (iii) Embraer and Buyer
have entered into a [*] agreement [*] , and (iv) Embraer, Buyer and the
simulator vendor have entered into an agreement with respect to [*] ; then
Embraer shall [*] , which shall include [*] . Such [*] shall be provided
to Buyer within [*] after Buyer's notification to Embraer [*] . Buyer may
[*] ; provided that, subject to [*] provided Embraer and [*] have entered
into an agreement with Buyer for [*] , in form and substance satisfactory
to Buyer.
13. MISCELLANEOUS
All terms and conditions of the Purchase Agreement that have not been
specifically altered or modified hereunder shall remain in full force and
effect and time is of the essence under this Agreement.
[The remainder of this page has been left blank intentionally.]
[*]
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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: By:
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Name: Name:
------------------------- -----------------------------
Title: Title:
------------------------ ----------------------------
By:
---------------------------
Name:
-------------------------
Title:
------------------------
Witness: Witness:
------------------------ --------------------------
Name: Name:
--------------------------- -----------------------------
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SCHEDULE "1" - [*] BASIC CONDITIONS
Subject to the terms and conditions of Article 4.c of [*] Embraer agrees to
provide [*] for each Aircraft [*] actual sale of the Aircraft [*], as
applicable.
1. Embraer will [*] of the Aircraft [*] means the actual delivery date of the
relevant Aircraft, [*]months after the Actual Delivery Date.
2. [*] with respect to an Aircraft, [*] or such lesser amount as the Buyer
may elect [*]
3. [*] means the greater [*] Embraer will negotiate in good faith
[*]Notwithstanding anything above to the contrary, in the event that the
Buyer [*]
4. [*] means the actual cost of [*] determined as [*] as shown on the [*]
with respect to [*]
5. [*] means the [*] amount payable by [*] such amount determined to be the
difference between [*]
6. [*] means [*]contemplating [*] between [*] Embraer shall be informed of
all such [*] as soon as available.
7. [*] means the period commencing on the date which is [*] of the relevant
Aircraft and ending on the date [*] of the relevant Aircraft.
8. Embraer shall be [*] as soon as such are received and in any event at [*]
If Embraer and Buyer fail to agree that [*]
9. The Aircraft shall comply in full with, [*]
10. Embraer shall have [*] but no obligation, [*]
11. Each Party shall bear its own costs [*]
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SCHEDULE "2" - [*] BASIC CONDITIONS
Subject to the terms and conditions of Article 4.c of [*] Embraer agrees to
provide [*] for each Aircraft [*] actual sale of the Aircraft [*], as
applicable.
1. Embraer will [*] of the relevant Aircraft, [*] of the relevant Aircraft,
[*] months after the Actual Delivery Date.
2. [*] with respect to an Aircraft, [*] or such lesser amount as the Buyer
may elect [*]
3. [*] means the greater [*] Embraer may, but will not be under the
obligation to, [*]
4. [*] means [*] provided, however, [*] Embraer shall be informed of [*]
5. [*] means [*]
6. Embraer shall be informed of [*] as soon as such [*]
7. [*] means the actual [*] determined as[*] as shown on the [*], reduced by
[*] further reduced by [*]
8. [*] means the maximum amount payable [*] as the case may be, [*] such
amount determined to be the difference between [*]
9. Embraer shall have [*] but no obligation, [*]
10. The Aircraft shall comply in full with, or exceed, the [*] Buyer shall
provide Embraer with an [*]
11. Each Party shall bear its own costs [*]
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SCHEDULE "3-A" - EMB-145 AIRCRAFT [*]
1. [*]
Embraer, subject to the conditions and limitations hereby expressed, and
considering the Aircraft with a maximum takeoff weight of [*] pounds ([*]
kg) and equipped with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
engines, [*] each Aircraft as follows:
a. On the Aircraft Actual Delivery Date, the Aircraft will [*]
a.1 [*]
[*] a gross weight of [*] pounds ([*] Kg) in a standard day
(ISA), at an altitude of [*] feet, at [*] KTAS using not more
than [*] :
[*]
A.2 [*]
a.2.1 The [*] for a stage length of [*] nautical miles in
still air, shall [*]
[*]
Note: the above [*] is subject to the same tolerance
applicable to the M.E.W. pursuant to Paragraph a.3
below.
The above [*] is based on the following conditions and
operating rules:
Stage Length:
The stage is defined as [*] .
Takeoff: [*]
Climbout Maneuver:
Following the takeoff [*] , the Aircraft [*] while
climbing to [*] feet above the departure airport
altitude and [*] .
Climb:
The Aircraft climbs from [*] feet above the departure
airport altitude to [*] feet altitude [*] . The Aircraft
then accelerates [*] . The climb continues at [*] until
[*] feet is reached. The climb continues at [*] to
cruise altitude. The temperature is [*] during the
climb.
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[*] is used throughout the climb.
Cruise:
The Aircraft cruises at [*] .
The cruise altitude is [*] feet.
The temperature is [*] during cruise.
The cruise thrust [*] .
Descent:
The Aircraft descends [*] .
The descent continues [*] to an altitude of [*] feet.
The temperature is [*] during descent.
Approach and Landing Maneuver:
The Aircraft [*] while [*], then descends and lands. The
destination airport elevation is at sea level.
Fixed Allowances:
For the purpose of [*] and for the purpose of [*],
the following shall be used [*]:
Taxi-out fuel: [*].
Takeoff and Climbout Maneuver fuel: [*] .
Approach and Landing Maneuver fuel: [*] .
Taxi-in fuel (shall be consumed from the reserve fuel):
[*] .
The usable reserve fuel remaining upon completion of the
landing: [*] .
A.2.2 OPERATIONAL EMPTY WEIGHT BASIS
Operational empty weight (OEW) derived in accordance
with Paragraph a.2.3 shall be used as the basis for [*].
A.2.3 EMB-145 WEIGHT SUMMARY
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ITEMS WEIGHT WEIGHT
(KG) (LB)
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[*] - M.E.W. Std. EMB-145 Aircraft [*] [*]
Configuration
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[*] - Option to std EMB-145 Aircraft (*) [*] [*]
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[*] - M.E.W. Customer Configuration [*] [*]
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[*] - Operating Items [*] [*]
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[*] - Pilot and Copilot (180 Lb each) (**) [*] [*]
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[*] - Stewardess (140 Lb each) (**) [*] [*]
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[*] - Engine oil [*] [*]
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[*] - Hydraulic Fluid [*] [*]
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[*] - Unusable Fuel [*] [*]
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[*] - Apu Oil [*] [*]
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[*] - Toilet Fluid [*] [*]
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[*] - Water [*] [*]
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[*] - Flight Kit [*] [*]
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[*] - Crew Baggage [*] [*]
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[*] - Catering Standard [*] [*]
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[*] - Pass. Serv. Equip. [*] [*]
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[*] - 2nd Attendant [*] [*]
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[*] - O. E. W. Customer Configuration [*] [*]
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REMARKS:
(*) See [*] .
(**) In accordance with [*]
A.2.4 CUSTOMER OPTIONS TABLE:
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ITEMS OPT WEIGHT WEIGHT
(KG) (LB)
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A) OPTIONS TO STD AVIONIC CONFIGURATION
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[*]
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B) OPTIONAL SYSTEM / OTHER EQUIPMENT
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[*]
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C) INTERIOR OPTIONAL ITEMS
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[*]
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SUB-TOTAL (OPTIONS STD A/C) [*] [*]
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[*]
A.3 [*]
2. AIRCRAFT CONFIGURATION
2.1 The [*] are based on the EMB-145 Basic Aircraft configuration as
defined
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in the Technical Description TD-145/010 dated January 1998, plus
specific Buyer configuration options as defined in Attachment "A" to
the Purchase Agreement, (hereinafter referred to as the Detail
Specification). Appropriate adjustment [*] for changes in such
Detail Specification approved in writing by the Buyer and Embraer.
Such adjustments shall be accounted for by Embraer in its evidence
[*].
In the event a change is made to any law, governmental regulation or
requirement, or in the interpretation of any such law, governmental
regulation or requirement that affects the certification basis for
the Aircraft, and as a result thereof, a change is made to the
configuration [*].
2.2 The [*] of Paragraph 1.a.2.1 and the Manufacturer's Empty Weight [*]
of Section 1.a.3 shall be adjusted by Embraer for the following in
its evidence [*]:
(1) Changes to the Detail Specification including Change Requests,
Master Changes, Change Orders or any other changes mutually
agreed upon between the Buyer and Embraer.
(2) The difference between the component weight allowances given
in the appropriate section of the Detail Specification and the
actual weights.
3. [*] CONDITIONS
3.1 [*] performance data are based on the ICAO International Standard
Atmosphere (ISA) and specified variations therefrom; altitudes are
pressure altitudes.
3.2 The FAA Regulations (FAR) referred to in this Schedule are, unless
otherwise specified, the EMB-145 Certification Basis regulations
specified in the Type Certificate Data Sheet. [*] .
3.3 The cruise specific air range, [*] include allowances for normal
electrical power extraction and normal operation of the air
conditioning system. Normal power extraction shall be defined as not
less than a [*] total electrical and hydraulic loads. Normal
operation of the air conditioning system shall be defined as
operation in the automatic mode, with the temperature control set to
maintain a nominal cabin temperature of 75(Degree)F, and all air
conditioning systems operating normally. This operation nominally
allows a sea level cabin altitude to be maintained up to [*] feet
and a maximum cabin pressure differential of [*] pounds per square
inch at higher altitudes, with a nominal Aircraft cabin ventilation
rate of [*] cubic feet per minute at [*] ft including passenger
cabin recirculation (nominal recirculation is [*] percent not
considering ▇▇▇▇▇▇ flow). The APU is turned off unless otherwise
specified.
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3.4 The cruise specific air range, speed [*] are based on [*].
3.5 Performance, where applicable, is based on a fuel Lower Heating
Value (LHV) of [*] BTU per pound and a fuel density of [*] pounds
per U.S. gallon.
4. PARTIES' OBLIGATIONS [*]
RELATIVE TO THE [*] STATED IN PARAGRAPH 1.a above:
4.1 During the [*] in accordance with Article [*] of the Purchase
Agreement, Buyer shall check the Aircraft [*] , by using the EMB-145
Aircraft Flight Manual (AFM) and by comparing the flight test data,
at the atmospheric conditions prevailing during the flight, with the
information presented in the EMB-145 Supplementary Performance
Manual (SPM). [*] are in accordance with both manuals above
mentioned, taking into consideration the established tolerances.
4.2 [*] obligations in respect to the [*] , are limited to [*] should it
be reasonably verified that [*]
4.3 In case during the above mentioned [*] , it is proven that the
Aircraft [*] does [*] , but Buyer [*] , then Embraer shall [*]
with respect to such [*].
4.4 Upon [*] , all obligations of Embraer regarding the Aircraft [*].
5. [*]
5.1 [*] Section 1.a shall be based on the conditions specified in that
section, the Aircraft configuration of Section 2 and the [*]
conditions of Section 3.
5.2 [*] the takeoff, landing, [*] shall be based on the FAA-approved
Airplane Flight Manual for the EMB-145.
5.3 [*] 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 provisions of Section 1.a.
5.5 [*] shall be based on information in the appropriate approved weight
and balance manual, or associated document or report.
5.6 [*] set forth in this Schedule does not depend on the engine meeting
[*] contained in the engine specification.
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6. [*]
6.1 [*] applicable to the Aircraft are those set forth in this document.
The [*] 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 [*] 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[*] .
6.3 The terms and conditions [*] do not alter, modify or impair, in any
way, the terms and conditions of Attachment C (▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ CERTIFICATE) to the Purchase Agreement.
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SCHEDULE "3-B"
EMB 140 - AIRCRAFT [*]
1. [*]
Embraer, subject to the conditions and limitations hereby expressed, and
considering the Aircraft with a maximum takeoff weight of [*] pounds ([*]
kg) and equipped with ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇/▇
engines, [*] each Aircraft as follows:
A. On the Aircraft Actual Delivery Date, the Aircraft will [*]:
A.1 [*]
[*] a gross weight of [*]pounds ([*]Kg) in a standard
day (ISA), at an altitude of [*]feet, at [*]KTAS using
not more than [*]:
[*]
[*]
[*]
A.2 [*]
A.2.1 The [*] for a stage length of [*]nautical miles in still
air, shall [*]:
[*]
Note: The above [*] is subject to the same tolerance
applicable to the MEW pursuant to Paragraph a.3
below.
The above [*] is based on the following conditions and
operating rules:
Stage Length:
The stage is defined as [*].
Takeoff:
[*].
[*].
[*].
Climbout Maneuver:
Following the takeoff [*], the EMB-140 Aircraft [*]
while climbing to [*] feet above the departure airport
altitude and [*].
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Climb:
The EMB-140 Aircraft climbs from [*] feet above the
departure airport altitude to [*]feet altitude at [*].
The EMB-140 Aircraft then accelerates [*]. The climb
continues at [*] until [*] feet is reached. The climb
continues at [*] to cruise altitude. The temperature is
[*] during the climb. [*] is used throughout the climb.
Cruise:
The EMB-140 Aircraft cruises at [*].
The cruise altitude is [*] feet.
The temperature is [*] during cruise.
The cruise thrust [*].
Descent:
The EMB-140 Aircraft descends [*]. The descent continues
[*] to an altitude of [*] feet. The temperature is [*]
during descent.
Approach and Landing Maneuver:
The EMB-140 Aircraft [*] while [*], then descends and
lands. The destination airport elevation is at sea
level.
Fixed Allowances:
For the purpose of [*] and for the purpose of [*], the
following shall be used [*]:
Taxi-out fuel: [*].
Takeoff and Climbout Maneuver fuel: [*].
Approach and Landing Maneuver fuel: [*].
Taxi-in fuel (shall be consumed from the reserve fuel):
[*].
The usable reserve fuel remaining upon completion of the
landing: [*].
A.2.2 OPERATIONAL EMPTY WEIGHT BASIS
Operational empty weight (OEW) derived in accordance
with Paragraph a.2.3 shall be used as the basis [*].
A.2.3 EMB-140 WEIGHT SUMMARY
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--------------------------------------------------------------------
ITEMS [*] [*]
--------------------------------------------------------------------
1 - M.E.W Std. EMB-140 Aircraft [*] [*]
Configuration(*)
--------------------------------------------------------------------
--------------------------------------------------------------------
2 - Option to std EMB-140 Aircraft (**) [*] [*]
--------------------------------------------------------------------
--------------------------------------------------------------------
3 - M.E.W. Customer Configuration LR [*] [*]
version
--------------------------------------------------------------------
--------------------------------------------------------------------
4 - Operating Items [*] [*]
--------------------------------------------------------------------
a - Pilot and Copilot (180 Lb each) (***) [*] [*]
--------------------------------------------------------------------
b - Stewardess (140 Lb each) (***) [*] [*]
--------------------------------------------------------------------
c - Engine oil [*] [*]
--------------------------------------------------------------------
d - Hydraulic Fluid [*] [*]
--------------------------------------------------------------------
e - Unusable Fuel [*] [*]
--------------------------------------------------------------------
f - Apu Oil [*] [*]
--------------------------------------------------------------------
g - Toilet Fluid [*] [*]
--------------------------------------------------------------------
h - Water [*] [*]
--------------------------------------------------------------------
i - Flight Kit [*] [*]
--------------------------------------------------------------------
j - Crew Baggage [*] [*]
--------------------------------------------------------------------
k - Catering Standard [*] [*]
--------------------------------------------------------------------
l - Pass. Serv. Equip. [*] [*]
--------------------------------------------------------------------
m - 2nd Attendant [*] [*]
--------------------------------------------------------------------
--------------------------------------------------------------------
5 - O. E. W. Customer Configuration LR [*] [*]
version
--------------------------------------------------------------------
--------------------------------------------------------------------
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REMARKS:
(*) See [*].
(**) In accordance with [*]
A.2.4 CUSTOMER OPTIONS TABLE:
------------------------------------------------------------------------------
ITEMS OPT WEIGHT WEIGHT
(KG) (LB)
------------------------------------------------------------------------------
A) OPTIONS TO STD AVIONIC CONFIGURATION
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
B) OPTIONAL SYSTEM / OTHER EQUIPMENT
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
C) INTERIOR OPTIONAL ITEMS
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
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------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
[*] [*] [*] [*]
------------------------------------------------------------------------------
------------------------------------------------------------------------------
SUB-TOTAL (OPTIONS STD A/C) [*] [*] [*]
------------------------------------------------------------------------------
[*]
A.3 [*]
a.3.1 [*]:
[*]
[*]
[*]
2. EMB-140 AIRCRAFT CONFIGURATION
2.1 The [*] are based on the EMB-140 Basic Aircraft configuration as
defined in the Technical Description TD-140/002 dated April 2000,
plus specific Buyer configuration options as defined in Attachment
"A" to the Purchase Agreement, (hereinafter referred to as the
Detail Specification). Appropriate adjustment [*] for changes in
such Detail Specification approved in writing by the Buyer and
Embraer. Such adjustments shall be accounted for by Embraer in its
evidence [*].
In the event a change is made to any law, governmental regulation or
requirement, or in the interpretation of any such law, governmental
regulation or requirement that affects the certification basis for
the EMB-140 Aircraft, and as a result thereof, a change is made to
the configuration [*].
2.2 The [*] of Paragraph 1.a.5 and the Manufacturer's Empty Weight [*]
of Section 1.a.6 shall be adjusted by Embraer for the following in
its evidence [*]:
(1) Changes to the Detail Specification including Change Requests,
Master Changes, Change Orders or any other changes mutually
agreed upon between the Buyer and Embraer.
(2) The difference between the component weight allowances given
in the appropriate section of the Detail Specification and the
actual weights.
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3. [*] CONDITIONS
3.1 [*] performance data are based on the ICAO International Standard
Atmosphere (ISA) and specified variations therefrom; altitudes are
pressure altitudes.
3.2 The FAA Regulations (FAR) referred to in this Schedule are, unless
otherwise specified, the EMB-140 Certification Basis regulations
specified in the Type Certificate Data Sheet. [*].
3.3 The [*] are based on [*] unless otherwise specified. The [*] is
based on [*] unless otherwise specified. The [*] procedure will be
used [*] as required. The [*] data is based on the use of [*].
3.4 The cruise specific air range, speed [*] include allowances for
normal electrical power extraction and normal operation of the air
conditioning system. Normal power extraction shall be defined as not
less than a[*] total electrical and hydraulic loads. Normal
operation of the air conditioning system shall be defined as
operation in the automatic mode, with the temperature control set to
maintain a nominal cabin temperature of 75(DEGREE)F, and all air
conditioning systems operating normally. This operation nominally
allows a sea level cabin altitude to be maintained up to [*] feet
and a maximum cabin pressure differential of [*] pounds per square
inch at higher altitudes, with a nominal EMB-140 Aircraft cabin
ventilation rate of [*]cubic feet per minute at [*] ft including
passenger cabin recirculation (nominal recirculation is [*] percent
not considering ▇▇▇▇▇▇ flow). The APU is turned off unless otherwise
specified.
3.5 The cruise specific air range, speed [*] are based on an EMB-140
Aircraft [*].
3.6 Performance, where applicable, is based on a fuel Lower Heating
Value (LHV) of [*] BTU per pound and a fuel density of [*] pounds
per U.S. gallon.
4. PARTIES' OBLIGATIONS [*]
RELATIVE TO THE [*] STATED IN PARAGRAPH 1.a above:
4.1 During the [*] in accordance with Article [*] of the Purchase
Agreement, Buyer shall check the EMB-140 Aircraft [*], by using the
EMB-140 Aircraft Flight Manual (AFM) and by comparing the flight
test data, at the atmospheric conditions prevailing during the
flight, with the information presented in the EMB-140 Supplementary
Performance Manual (SPM). [*] are in accordance with both manuals
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above mentioned, taking into consideration the established
tolerances.
4.2 [*] obligations in respect to the [*], are limited to [*] should
it be reasonably verified that [*]
4.3 In case during the above mentioned [*], it is proven that the
EMB-140 Aircraft [*] does [*], but Buyer [*], then Embraer shall [*]
with respect to such [*].
4.4 Upon [*], all obligations of Embraer regarding the Aircraft [*].
5. [*]
5.1 [*] Section 1.a shall be based on the conditions specified in that
section, the EMB-140 Aircraft configuration of Section 2 and the [*]
conditions of Section 3.
5.2 [*] the takeoff, landing, [*] shall be based on the FAA-approved
Airplane Flight Manual for the EMB-140.
5.3 [*] 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 provisions of Section 1.a.
5.5 [*] shall be based on information in the appropriate approved weight
and balance manual, or associated document or report.
5.6 [*] set forth in this Schedule does not depend on the engine meeting
[*] contained in the engine specification.
6. [*]
6.1 [*] applicable to the EMB-140 Aircraft are those set forth in this
document. The [*] 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 [*] 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[*].
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6.3 The terms and conditions [*] do not alter, modify or impair, in any
way, the terms and conditions of Attachment C (AIRCRAFT WARRANTY
CERTIFICATE) to the Purchase Agreement.
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SCHEDULE "5" - [*]
References to "Aircraft" in this [*] shall be deemed to include all EMB-145 and
EMB-135KL model aircraft delivered (or to be delivered) to Chautauqua as
operator pursuant to Purchase Agreement DCT-025/98 between Embraer and Solitair
Corp., and all aircraft to be delivered to Chautauqua as operator pursuant to
the Amended and Restated Purchase Agreement DCT-025/98 between Embraer and
Republic Airways Holdings, Inc. The first [*] period under [*] shall be deemed
[*]
I. Definitions
a. Available for [*]
An [*] which is [*] and [*] by signature of the responsible
maintenance personnel of Chautauqua, as defined in Article II.a of
this Schedule "5", at least [*] shall be deemed to be[*] .
b. [*]
1. A [*] occurs when the malfunction of an item, or necessary
checking and/or corrective actions, cause a [*] not to be
available [*] , or a [*] .
2. [*]
3. To be accounted as [*] , any [*] , either verbal or written,
must result in [*] corrective action.
4. A repetitive [*] shall not be counted as [*] . [*] .
c. [*]
[*] is the actual [*] obtained by the Chautauqua's [*] .
[*] computed monthly commencing with[*] by Chautauqua, as follows
[*]
II. Embraer, subject to the conditions and limitations expressed in this
Schedule "5", will [*] :
a. This [*] will be applicable only for Aircraft first operated by
Chautauqua and only so long as the Aircraft are operated by
Chautauqua.
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b. The [*] for the first [*] period after [*] shall be [*] The [*] for
the second [*] period [*] shall be [*] The [*] for the third [*]
period after commencement of commercial operations [*] shall be [*]
The [*] for the [*] period [*] (the "Final Period") shall be [*]
(collectively "GDR").
c. In the event that [*] any [*] period referred to above is lower than
[*] , Embraer shall diligently, after notification by Buyer:
1. [*] mutually agreed to by the Parties;
2. Make recommendations concerning Chautauqua's programs, [*] ;
and
3. Take all measures, as deemed necessary and appropriate by
Embraer when [*] does not provide the [*] .
d. In the event that the [*] described in paragraph II.b. above is [*]
than the [*] , Embraer shall [*] :
[*]
[*]
In the event the [*] described in paragraph II.b. above is [*] ,
then [*] Buyer or Chautauqua shall calculate measurements and submit
them to Embraer within [*] after the end of each [*] period referred
to in Article II a. of this Schedule "5". [*] shall attempt to reach
an agreement over the data within [*] of the submission. [*]
e. This [*] is based upon the following assumptions [*] , and any
change to the assumptions shall be cause for reevaluation or
adjustments of [*] in Embraer's sole discretion.
[*] , plus or minus [*] with a minimum average flight hours per
flight cycle, of [*]
f. The following elements are not [*] :
[*] due to reasons other than Aircraft mechanical failures,
including without limitation:
- Air Traffic Control
- Weather
- Acts of God (i.e. natural disasters, floods and earthquakes,
lightning strikes, bird strikes etc.).
- Accidents
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- Incidents
- Negligence
- Force majeure
- [*]
- Optional equipment other than that identified on Attachment
"A" to the Purchase Agreement
- [*]
- [*] - Non-availability of spares or equipment, [*] as provided
for in paragraph [*] ;
- [*] ;
- [*] which could have been prevented if the Minimum Equipment
List ("▇▇▇") issued and/or approved by the local regulatory
authority was followed
- [*] ,
- [*] caused by Chautauqua's negligence or misuse of parts or
Chautauqua's failure to take all maintenance actions on the
Aircraft as recommended in all applicable maintenance manuals
- [*] or parts that has/have been involved in an accident, or
when parts either defective or not complying to manufacturer's
design or specification have been used;
- [*] parts that have had their identification marks,
designation, seal or serial number altered or removed
- [*].
- [*] which lead to a [*] (including but not limited to worn,
flat and cut tires, servicing (ATA Chapter 12), hard landing,
dead batteries, and worn brakes).
III. The foregoing [*] is provided subject to Chautauqua's adherence in all
material respects to the following general conditions:
a. Airplane Operation
Aircraft shall be operated in airline service in accordance with FAA
regulations and as recommended by Embraer through the official and
most updated Operations and Airplane Flight Manual. Chautauqua shall
have available [*] spare aircraft for each [*] Aircraft at all
times.
b. Inspection Program
The Aircraft shall be maintained in accordance with the most current
EMB-145 MRB document and using [*] Chautauqua's program must [*].
Chautauqua's program should also include [*].
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c. Aircraft Manuals
[*]
d. ▇▇▇
[*]
e. Stocking Levels
Chautauqua shall stock and maintain [*] reasonable recommended [*],
throughout [*]. There shall be a [*] at each line maintenance base
along with [*] Chautauqua shall annually provide an [*] to [*] which
shows [*].
f. Parts Repair
[*]
g. Staff Levels
Chautauqua shall have [*] to properly [*] during [*] . This shall
include, but not be limited to, [*] .
h. Training
Chautauqua shall put and keep in place a training program approved
by the FAA, [*] :
[*]
i. [*] Cleaning
Chautauqua shall keep the [*] reasonably clean, [*] at all times.
This includes without limitation, [*] -
j. Service Bulletins
When Embraer recommends that Chautauqua implement a service bulletin
which improves [*] , Embraer Customer Support Department shall
contact Chautauqua's Vice President of Maintenance, in writing, with
recommendations that the service bulletin be complied with.
Chautauqua will schedule the Aircraft for incorporation of such
service bulletin [*]
k. Ground Support Equipment
Embraer shall provide Chautauqua two lists of tooling and ground
support equipment required to maintain the Aircraft which lists
shall be subject to Chautauqua's reasonable approval. [*] Chautauqua
will be required to maintain these levels of required tooling and
ground support equipment in good working order at all times.
l. [*] Reporting
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Chautauqua shall provide [*] to Embraer a [*] . This report shall
include [*] and part number and serial number of the components
removed and installed shall be maintained by [*]
m. Rejection
Chautauqua shall not unreasonably reject [*] Any such rejection
shall [*] .
n. Certification or Regulatory Changes
[*].
o. [*] Meeting
An [*] Meeting shall be scheduled, if necessary, and at the end of
[*] of Chautauqua's Aircraft operation. Representatives of
Chautauqua and Embraer shall participate in the meetings and will:
1. [*];
2. Eliminate irrelevant or non-Aircraft-intrinsic [*] from
computed [*]; and
3. Review Chautauqua's compliance with Service Bulletins as
required by Article III.j of this Schedule "5", [*].
Chautauqua shall permit Embraer access to all of its data which can
be used in understanding and analyzing the dispatch reliability
failure.
IV. Suspension
[*] automatically suspended and shall not apply during the period of any
labor disruption or dispute involving [*] which affects in whole or in
part [*] .
V. Chautauqua will not include in the calculation [*]
a. When the Aircraft has been used in an attempt to break records, [*]
or in any other way not in conformity with [*] ; and
b. When the Aircraft or any of its parts has/have been altered or
modified by Chautauqua, [*] .
VI. [*] 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 ASSIGNEE OF EMBRAER, EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE, [*] .
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VII. The terms and conditions of this [*] do not alter, modify or impair, in
any way, the terms and conditions of [*] to the Purchase Agreement.
VIII. The [*] is established between Embraer and Buyer and it cannot be
transferred or assigned to others, unless by previous written consent of
Embraer.
IX. [*] Chautauqua shall execute a waiver consistent with Section VI of this
Schedule "5", in a form acceptable to Embraer.
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SCHEDULE "6"
EMB-140 AIRCRAFT UNDER [*] CONFIGURATION
AIRCRAFT SPECIFIC CONFIGURATION, FINISHING AND
REGISTRATION MARKS
STANDARD 140 AIRCRAFT
THE AIRCRAFT SHALL BE MANUFACTURED ACCORDING TO THE STANDARD CONFIGURATION
SPECIFIED IN EMBRAER'S TECHNICAL DESCRIPTION TD-140/002 DATED AS OF APRIL
2000, TYPE CERTIFICATION FAA, AND INCLUDING THE FOLLOWING OPTIONAL ITEMS:
OPTIONAL EQUIPMENT:
2.1 OPTIONS TO STANDARD AVIONICS CONFIGURATION
[*]
2.2 OPTIONAL SYSTEM/OTHER EQUIPMENT
[*]
INTERIOR OPTIONAL ITEMS
[*]
3. FINISHING
a. EXTERIOR FINISHING:
THE AIRCRAFT SHALL BE PAINTED ACCORDING TO THE AMR EAGLE 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. If
Buyer opts 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
them, which shall be supplied to Embraer by Buyer no later than [*] before
each relevant Aircraft Contractual Delivery Date.
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IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS SCHEDULE "6" AND THE TERMS
OF THE TECHNICAL DESCRIPTION TD-140/002, DATED APRIL 2000, THE TERMS OF THIS
SCHEDULE "6" SHALL PREVAIL.
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