CONFIDENTIAL AMENDMENT No. 8 TO LETTER AGREEMENT DCT-015/2004
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EXHIBIT
10.2
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CONFIDENTIAL
TREATMENT
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REQUESTED
PURSUANT TO RULE 24b-2
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| Certain portions of this exhibit have been omitted pursuant to a request for confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934. The omitted materials have been filed separately with the Securities and Exchange Commission. |
CONFIDENTIAL
AMENDMENT
No. 8 TO LETTER AGREEMENT DCT-015/2004
This
Amendment No. 8 to Letter Agreement DCT-015/2004, dated as of July 21, 2006
(“Amendment No. 8”) relates to the Letter Agreement DCT-015/2004 (the “Letter
Agreement”) between Embraer - Empresa Brasileira de Aeronáutica S.A. (“Embraer”)
and Republic Airline Inc. (“Buyer”) dated March 19, 2004 and which concerns the
Purchase Agreement DCT-014/2004 (the “Purchase Agreement”), as amended from time
to time (collectively referred to herein as “Agreement”). This Amendment No. 8
is between Embraer and Buyer, collectively referred to herein as the
“Parties”.
This
Amendment No. 8 sets forth additional agreements between Embraer and Buyer
related to the additional sale of 30 Firm EMBRAER 175 Aircraft and related
changes to this deal (the “Additional Order”).
Except
as
otherwise provided for herein all terms of the Letter Agreement shall remain
in
full force and effect. All capitalized terms used in this Amendment No. 8
that
are not defined herein shall have the meaning given in the Letter Agreement.
In
the event of any conflict between this Amendment No. 8 and the Letter Agreement
the terms, conditions and provisions of this Amendment No. 8 shall control.
NOW,
THEREFORE, for good and valuable consideration which is hereby acknowledged
Embraer and Buyer hereby agree as follows:
| 1. | Spare Parts Credit: |
| 1.1 | Article 1(ii) of the Letter Agreement shall be deleted and replaced by the following: |
| “(ii) Spare Parts Credit: Embraer will provide a spare parts (except for engines, engine related parts and APU), ground support equipment and test equipment credit of ***. This*** credit shall be made available to Buyer upon ***. If for any reason ***, then *** Buyer shall ***. *** only be made available to Buyer in the event there is no outstanding balance due from Buyer to Embraer related to the purchase of such Aircraft. If *** credit is not so made available to Buyer because *** such credit shall be made available at such time thereafter ***. Any portion of such credit which remains unused *** shall be deemed to have been waived by Buyer, and no further compensation shall be due from Embraer to Buyer for such *** credit(s). Such *** credit(s) shall be applied ***.” |
| 1.2 | Article 1 of the Letter Agreement shall be amended to insert the following subsection (viii) after subsection (vii): |
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“(viii)
***
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| 2. | Aircraft Purchase Price |
| 2.1 | Article 2.4 of the Letter Agreement *** for ***. |
| 3. | Special *** Condition: Article 8 of the Letter Agreement shall be deleted and replaced by the following: |
| “8. Special *** Condition: |
8.1.
Notwithstanding any provisions to the contrary contained in this Purchase
Agreement including but not limited to Article *** of the Purchase Agreement,
the ***, Buyer shall *** shall be ***
8.2
If at any
time Embraer shall ***, Embraer shall ***
| 4. | *** |
| 5. | Schedule 5: Schedule 5 to the Letter Agreement is hereby deleted and replaced by the attached 2nd Amended and Restated Schedule 5 to this Amendment No.8. |
| 6. | *** |
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CONFIDENTIAL
| 7. | Conversion |
| 7.1 | Buyer shall have the right to *** as provided in Article 4 of the Letter Agreement (Conversion). |
| 7.2 | The first 2 paragraphs of Article 4.a shall be deleted and replaced by the following: |
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“Buyer
shall have the flexibility to request the conversion of any Aircraft
into
the
XXXXXXX 000, XXXXXXX 175 (configured as either an Airways 175 Aircraft
or
Delta 175 Aircraft), the
EMBRAER 190, or the EMBRAER 195 jet aircraft (collectively, the
“Conversion Aircraft”), provided ***.
To
exercise the conversion of an Aircraft, Buyer shall send a written
notice
to Embraer to such effect at least *** prior to the scheduled delivery
date of the Aircraft that Buyer intends to convert, if the Conversion
Aircraft is ***, or *** prior to the scheduled delivery date of
the
Aircraft that Buyer intends to convert, if the Conversion Aircraft
is ***,
in which case such scheduled delivery date shall be the scheduled
delivery date of the Conversion Aircraft.”
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| 7.3 | 7.3 The last paragraph of Article 4.a shall be deleted and replaced with the following: |
| “Except as provided in this ***, all terms and conditions applicable to an Aircraft that has been converted pursuant this Article 4 shall apply mutatis mutandis to the Conversion Aircraft.” | |
| 7.4 | Article 4.b shall be deleted and replaced with the following: |
| “b) EMBRAER 175 Conversion Aircraft Offer Price: The Basic Price for each Conversion Aircraft that is configured as an Airways 175 Aircraft or Delta 175 Aircraft (the “175 Conversion Aircraft”) ***.” | |
| 7.5 | Article 4 of the Letter Agreement - Conversion, a new Article 4.e shall be added as follows: |
| “e) EMBRAER 170 Conversion Aircraft Offer Price: | |
| The Basic Price for each Conversion Aircraft that is an EMBRAER 170 Aircraft (the “170 Conversion Aircraft”) ***. | |
| 7.6 | The penultimate paragraph of Article 4 shall be deleted and replaced with the following: |
| “Each 170 Conversion Aircraft shall be configured as per Attachment A to the Purchase Agreement, each 175 Conversion Aircraft shall be configured as an Airways 175 Aircraft or a Delta 175 Aircraft (as specified in the applicable conversion notice) and each 190 Conversion Aircraft or 195 Conversion Aircraft shall be configured as per Exhibit 3, and shall be available to Buyer at each relevant Conversion Aircraft Basic Price and in ***.” | |
| 8. |
***
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| 9. | *** |
| 9.1 | The *** for *** shall be ***. For the avoidance of doubt, *** under the Agreement. |
| 10. | *** |
| 10.1 | Embraer shall ***. |
| 10.2 | *** shall ***. |
| 10.3 | The *** shall *** and the *** shall be ***. |
| 11. | Miscellaneous |
All
other
provisions of the Letter Agreement which have not been specifically amended
or
modified by this Amendment No. 8 shall remain valid in full force and effect
without any change.
(Signature
page follows)
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CONFIDENTIAL
IN
WITNESS WHEREOF, EMBRAER and BUYER, by their duly authorized officers, have
entered into and executed this Amendment No. 8 to Letter Agreement to be
effective as of the date first written above.
| EMBRAER - Empresa Brasileira de Aeronáutica S.A. | Republic Airline Inc. | ||
| /s/ Xxxxxxxxx Xxxxxx Curado | /s/ Xxxxx Xxxxxxx | ||
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| Name:
Xxxxxxxxx Xxxxxx Curado Title: Executive Vice President More Title: Airline Market |
Name:
Xxxxx Xxxxxxx Title: President |
| /s/ Xxxx Xxxx X. Xxxxxx | |||
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| Name:
Xxxx Xxxx X.
Xxxxxx Title: Director of Contracts More Title: Airline Market |
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| Date: July 21, 2006 | Date: July 21, 0000 | ||
| Xxxxx: Xxx Xxxx Xxx Xxxxxx, XX, Xxxxxx | Place: Indianapolis |
| Witness: /s/ Xxxxxx Xxxxxxx Xxxxx | Witness: /s/ Xxxx-Xxxx Xxxxxx | ||
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| Name:
Xxxxxx
Xxxxxxx Xxxxx |
Name:
Xxxx-Xxxx
Xxxxxx |
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SCHEDULE
"5" - MUTUAL SUPPORT-SECOND AMENDED AND RESTATED
This
schedule sets forth additional agreements of the Parties with
respect to the matters set forth in the Purchase Agreement DCT-014/2004)
dated
as of March 19, 2004, as amended (including the Letter Agreement DCT-015/2004,
as amended) between Embraer and Buyer (the "Agreement"). All terms defined
in
the Agreement shall have the same meaning when used herein, and in case
of any
conflict between this *** and the Agreement, this *** shall govern.
Embraer
will use *** to obtain *** for ***:
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Aircraft:
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***
Aircraft scheduled for delivery under the Agreement
***.
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***:
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Republic
Airline Inc., a wholly-owned subsidiary of Republic
Airways Holdings Inc. (“Parent”), with a parent guarantee consistent with
those generally offered in the US for airlines of same size and
financial
condition as Buyer, as Debt Providers may require with it being
understood
that there shall be ***. Except in connection with ***, Buyer
shall not be
entitled to assign any support provided or to be provided pursuant
to ***.
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Net
Aircraft Purchase Price:
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The
escalated Aircraft Purchase Price as defined in the
Agreement, to be shown on the relevant invoice, and excluding
BFE items,
*** as well as any and all taxes, VAT, imposts, levies, and duties
accrued
either in Brazil or USA ***.
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***:
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*
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*
Provider:
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*
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Terms:
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Buyer
agrees to cooperate reasonably and in good faith with
Embraer and/or any prospective *** Provider in documenting and
closing the
financing transactions on an expedited basis. Buyer shall also
provide
financial and other information requested by such persons, subject
to the
execution of confidentiality agreements as appropriate.
***
shall be ***.
*
*
If
*** provides ***shall agree to ***.
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Financed
Amount:
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***,
with Buyer to pay *** at delivery.
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Security:
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***,
the relevant *** Provider shall receive a perfected
security interest qualifying for the protections of Section 1110
of the
Bankruptcy Code. The security interest shall be ***.
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Debt
Term:
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***
years, payable in ***.
***
for *** shall be ***, then it may ***, ***. A *** shall
be ***.
At
*** request, *** may ***.
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***
Rate:
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The
*** shall be ***.
***
The
*** *** shall be equal to ***, provided that ***, the
*** shall be *** but ***.
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***
Fees
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If
required by ***, Buyer shall ***. Buyer shall also
***.
Embraer
may, *** require Buyer to ***. If Buyer ***, Embraer
shall ***.
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Financing
Cooperation:
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Unless
Buyer and Embraer agree *** shall select a *** which
Buyer ***.
The
*** for the *** shall include (1) an *** on terms
consistent with ***, *** or as ***, (2) an agreement that ***
may continue
to *** and that ***; (3) a requirement that ***; and (4) other
terms
reasonably agreed by ***. Embraer shall ***.
During
the term of *** will not ***. In addition, *** will
not ***.
Buyer
furthermore agrees that it shall ***.
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*:
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***
pursuant to *** are ***:
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(1)
Absence of any material adverse change in the business,
operations or financial condition of Parent or Buyer as reflected
in
Parent’s year-end audited financial statements for the year ended December
31, 2005.
(2)
Absence of litigation by or against Buyer or any Parent
subsidiary, which is reasonably expected to have a material adverse
effect
upon the operations of Buyer.
(3)
No *** that *** or ***.
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(4)
No changes or amendments to Section 1110 of the United
States Bankruptcy Code as currently legislated and interpreted
(“Section
1110”) in a manner that would materially adversely affect the financing
parties in a United States aircraft financing, and that has had
a
materially adverse effect on the aircraft financing market.
(5)
Buyer shall be an air carrier eligible for the
protections of Section 1110.
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(6)
There shall not be a monetary or material default by
Buyer or any affiliate with respect to the pertinent financing
parties and
Embraer or any affiliate at the time of financing, and no
material default under the EMB-145 Purchase
Agreement.
(7)
All reasonable legal fees, disbursements and
out-of-pocket expenses of Embraer (excluding amounts associated
with basic
delivery documents such as bills of sale and partial assignments
of rights
under the relevant purchase agreement) and any party associated
with the
financing hereunder of such Aircraft relating to such financing
(excluding
amounts that Embraer is obligated to pay under ***) (“Expenses”), shall be
paid by Buyer at closing or upon demand thereafter.
After
each financing and refinancing of *** for any Aircraft
hereunder, Embraer and Buyer shall determine ***. If the ***
Embraer shall
at Buyer’s request *** Buyer shall ***.
***
(8)
Additional customary conditions precedent in aircraft
financings as may be required by the lender, including but not
limited to
issuance of required legal opinions.
(9)
Parent shall continue to ***.
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*
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The
above-mentioned *** is the only *** that Embraer will provide
Buyer under the terms and conditions contained in this Agreement and the
Purchase Agreement. Any additional *** may be requested by Buyer shall
be
subject to Embraer analysis, and the conditions under which Embraer may
provide
such additional *** (including but not limited to additional costs to Buyer),
will be communicated to Buyer by Embraer.
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