PURCHASE AGREEMENT NO. 597-B BETWEEN BOMBARDIER INC. AND PINNACLE AIRLINES, INC. For CRJs: Relating to the Purchase of
Exhibit
10.66
CERTAIN
PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT. THE SYMBOL “[***]” HAS BEEN INSERTED IN PLACE OF THE PORTIONS SO
OMITTED.
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PURCHASE
AGREEMENT NO. 597-B
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BETWEEN
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BOMBARDIER
INC.
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AND
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PINNACLE
AIRLINES, INC.
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For
CRJs:
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Relating
to the Purchase of
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Sixteen
(16) Bombardier CRJ900 Series aircraft
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This
Agreement is made on the 26th day of April, 2007.
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BETWEEN:
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BOMBARDIER
INC., a Canadian corporation, represented by Bombardier Aerospace,
Regional Aircraft, having an office located at 000 Xxxxxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxx, Xxxxxx (“Bombardier”).
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AND:
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Pinnacle
Airlines, Inc., a Georgia corporation, having an office located
at 0000
Xxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxxx, 00000. (“Buyer”)
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WHEREAS,
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[***]
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WHEREAS,
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[***]
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WHEREAS,
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[***]
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WHEREAS,
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[***]
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NOW
THEREFORE, in consideration of the mutual covenants herein contained, Buyer
and
Bombardier agree as follows:
ARTICLE
1 - INTERPRETATION
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1.1
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The
recitials above have been inserted for convenience only and do
not form
part of this Agreement.
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1.2
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The
headings in this Agreement are included for convenience only and
shall not
be used in the construction and interpretation of this Agreement.
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1.3
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In
this Agreement, unless otherwise expressly provided, the singular
includes
the plural and vice-versa.
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1.4
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In
this Agreement the following expressions unless otherwise expressly
provided, mean:
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a.
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“Acceptance
Date” shall
mean the date of execution of the Certificate of Acceptance as
provided in
Article 8.10 (a);
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b.
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“Acceptance
Period”
shall mean the period Buyer shall have to complete the inspection
and
flight test for any Aircraft as more specifically provided in Article
8.6;
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c.
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“Agreement”
means this
Agreement, including its Exhibits, Annexes, Appendices, Schedules
and
those letter agreements (referred to herein as either “Letter
Agreement(s)” or “Letter Agreement” when referring to a specific Letter
Agreement), if any, attached hereto (each of which is incorporated
in this
Agreement by this reference), as they may be amended pursuant to
the
provisions of this Agreement;
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d.
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“Aircraft”
shall mean
any or all the sixteen (16) Bombardier CRJ 900 Series aircraft
model
CL-600-2D24 to be sold and purchased pursuant to this Agreement
together
with any future Aircraft
wich may be assigned by Buyer by Delta pursuant to the Assignment
Agreement and which are sold and purchased pursuant to this
Agreement. For the avoidance of doubt, in the event that
this Agreement covers more than one aircraft (including any aircraft
the
subject of an option purchase), the expression “Aircraft” shall refer to
any one or more of such aircraft as the context
requires;
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e.
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“Aircraft
Base Price”
shall have the meaning attributed to it in Article
4.3;
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f.
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“Aircraft
Purchase Price”
shall have the meaning attributed to it in Article
4.4;
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g.
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[***]
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h.
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[***]
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i.
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“Xxxx
of Sale” shall
mean collectively, an FAA Xxxx of Sale and, in the form attached
hereto as
Exhibit II, a full warranty xxxx of sale, collectively conveying
title to
the Aircraft from Bombardier to Buyer and as more specifically
described
in Article 8.10(c);
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j.
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[***]
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k.
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“Buyer
Responsible Regulatory
Change” shall have the meaning attributed to it
in Article 7.5;
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l.
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“Buyer
Selected Optional
Features” shall mean those optional features referred to in Article
4.2 and as more particularly set forth in Appendix III hereto,
as may be
amended from time to time;
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m.
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“Change
Order” means a
change order substantially in the form of Exhibit IV
hereto;
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n.
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“Delivery
Date” shall
mean the date on which Bombardier delivers the Xxxx of Sale and
Buyer
takes delivery of the Aircraft in accordance with Article 8.10
(c);
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o.
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“Delta”
shall mean Delta
Air Lines, Inc., a Delaware
corporation;
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p.
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“Economic
Adjustment
Formula” shall mean the economic adjustment formula attached hereto
as Exhibit I;
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q.
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“Excusable
Delay” shall
have the meanign attributed to it in Article
12.1.
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r.
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“FAA”
shall mean the
United States Federal Aviation Administration or any department
or agency
of the United States succeeding to the authority and jurisdiction
of the
Federal Aviation Administration;
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s.
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“Non-Excusable
Delay”shall have
the
meaning attributed to in Article
12.1;
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t.
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“Notice”
shall mean any
notice, request, approval, permission, or other communication given
in
accordance with Article 16.1;
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u.
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“Other
Patents” shall
have the meaning attributed to it in Article
17.1;
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v.
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“Permitted
Change” has
the meaning set out in Article
10.2;
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w.
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“Prime
Rate” shall mean
the rate of interest established from time to time by Chase Manhattan
Bank, N.A., or its successor, as its prime
rate;
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x.
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“Readiness
Date” shall
mean the date on which an Aircraft will be ready for commencement
of
Buyer’s inspection, flight test and acceptance in accordance with Article
8.4;
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y.
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“Regulatory
Change”
shall have the meaning attributed to it in Article
7.4;
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z.
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“Scheduled
Delivery
Date” shall mean the specific date of which Bombardier provides
ten
(10) working days advance Notice to Buyer pursuant to Article 8.4
that the
Aircraft will be available for
inspection;
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aa.
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“Scheduled
Delivery
Month(s)” shall mean the month in which each Aircraft is scheduled
for delivery as set forth in Appendix I attached hereto and incorporated
herein by this reference;
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bb.
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“Specification”
shall
mean the specification for the Aircraft more specifically described
in
Article 2.1 and as attached hereto as Appendix II for the Aircraft
as such
specification may be further amended or modified pursuant to the
terms of
this Agreement;
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cc.
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“Taxes”
has the meaning
set out in Article 4.5; and
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dd.
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“TC”
shall
mean
Transport Canada or any department or agency of Canada succeeding
to the
authority and jurisdiction of Transport
Canada.
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1.5
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All
dollar amounts in this Agreement are in United States Dollars.
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1.6
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All
capitalized terms not expressly defined under this Article 1 and
used
elsewhere in this in this Agreement shall have the meanings ascribed
to
such capitalized terms elsewhere herein.
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ARTICLE
2 - SUBJECT MATTER OF SALE
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2.1
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Subject
to the provisions of this Agreement, Bombardier will manufacture,
sell and
deliver and Buyer will purchase sixteen (16) Bombardier CRJ900
Series
aircraft model CL-600-2D24 aircraft manufactured pursuant to the
Specification as supplemented to include the Buyer Selected Optional
Features. The Aircraft Specification may be modified from time
to time and
is supplemented to
reflect the incorporation of the Buyer
Selected Optional
Features.
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ARTICLE
3 - CUSTOMER SUPPORT SERVICES AND WARRANTY
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3.1
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Bombardier
shall provide to Buyer the customer support services pursuant to
the
provisions of Annex A-1 attached hereto.
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3.2
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Bombardier
shall provide to Buyer the warranty and the service life policy
described
in Annex B-1, which shall be the exclusive warranty applicable
to the
Aircraft.
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3.3
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Unless
expressly stated otherwise, the services referred to in 3.1 and
3.2 above
are included in the Aircraft Purchase
Price.
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ARTICLE
4 - PRICE/TAXES
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4.1
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The
basic price for each of the Aircraft is [***] United States Dollars
expressed in July 1, 0000 Xxxxxx Xxxxxx Dollars.
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4.2
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The
basic
price of the
Buyer Selected Optional Features for each Aircraft is [***] United
States
Dollars and is listed in Appendix III hereto and are expressed
in July 1,
0000 Xxxxxx Xxxxxx Dollars. Upon request from Buyer, agreed additions
and
deletions to the Buyer Selected Optional Features in Appendix III
shall be
incorporated on the Aircraft and the basic price of the Buyer Selected
Optional Features shall be adjusted accordingly. Actual changes
to the
Aircraft shall be subject to Bombardier’s required lead times of which it
will provide Buyer reasonable notice.
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4.3
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The
Aircraft Base Price of each Aircraft is the basic price identified
in
Articles 4.1, plus the basic price of the Buyer Selected Optional
Features
identified in Article 4.2. above selected by Buyer for the Aircraft
expressed in July 1, 0000 Xxxxxx Xxxxxx Dollars.
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4.4
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The
Aircraft Base Price shall be
adjusted from July 1, 2006 to the delivery date of the Aircraft
using the
Economic Adjustment Formula in order to determine the Aircraft
Purchase
Price at delivery [***]
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4.5
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The
Aircraft Purchase Price does not include any taxes, fees or duties
including, but not limited to, sales, use, value added (including
the
Canadian Goods and Services Tax), personal property, gross receipts,
franchise, excise taxes, assessments or duties (“Taxes”) which
are or may be imposed by law upon Bombardier, any affiliate of
Bombardier,
Buyer or the Aircraft whether or not there is an obligation for
Bombardier
to collect same from Buyer, by any taxing authority or jurisdiction
occasioned by, relating to or as a result of the execution of this
Agreement or the sale, lease, delivery, storage, use or other consumption
of any Aircraft, [***] or any other
matter,
good or service provided under or in connection with this
Agreement. [***]
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4.6
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If
any Taxes [***] are
imposed upon Buyer or become due or are to be collected from Bombardier
by
any taxing authority, Bombardier shall immediately notify Buyer
upon receipt of such
notice. [***]
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4.7
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Upon
request of one party, the other party shall execute and deliver
to the
requesting party any documents that the requesting party deems
necessary
or desirable in connection with any exemption from or reduction
of or the
contestation of or the defense against any imposition of Taxes.
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ARTICLE
5 - PAYMENT
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5.1
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(a)
[***] Buyer shall
make payment or cause payment to be made for each Aircraft [***]as follows:
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(i)
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[***]
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of
the estimated Aircraft Purchase Price [***] months prior
to its
Scheduled Delivery Month;
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(ii)
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[***]
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of
the estimated Aircraft Purchase Price [***] months prior
to its
Scheduled Delivery Month;
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(iii)
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[***]
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of
the estimated Aircraft Purchase Price [***] months prior
to its
Scheduled Delivery Month; and
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(iv)
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Buyer
shall pay the balance of the Aircraft Purchase Price for each Aircraft
net
of the applicable Credit Memorandum as set forth in Article 1.0
of the
Credit Memorandum Letter Agreement on or before the Delivery Date
for such
Aircraft.
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(b)
[***]
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(i)
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[***]
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(ii)
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[***]
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(iii)
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[***]
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(iv)
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[***]
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(c) Any
payments referred to in paragraphs (a)(i)-(iii) [***] above are pre-delivery
payments (“PDP Payments”) and are to be made in the applicable amount on the
second business day of the applicable month.
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(d)
[***]
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(e) With
respect to Aircraft for which any PDP Payments are due as of the date of
the
Agreement due to their applicable delivery dates, Buyer shall make all such
PDP
Payments as set forth on Exhibit V attached hereto [***]that are due within
[***]
business days of the
execution and delivery by both parties of the Agreement.
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5.2
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If
Buyer fails to pay any amount payable by it under this Agreement
when due,
Buyer shall pay Bombardier daily interest on late payments from
the date
that any payment is [***] days past
due up to
and including the day prior to receipt of payment, at a rate of
[***]percent [***]
per annum over the
prime rate announced by Chase Manhattan for United States dollar
accounts
from time to time, calculated and compounded
monthly. Bombardier’s right to receive such interest is in
addition to any other right or remedy Bombardier has at law as
a result of
Buyer’s failure to make payments when due including the right to terminate
this Agreement, [***].
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5.3
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Buyer
shall make all payments due under this Agreement in immediately
available
funds by deposit on or before the due date to Bombardier’s account in the
following manner or such other bank account as Bombardier may notify
to
Buyer from time to time:
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Transfer
to:
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[***]
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Account
Name:
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[***]
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Account
#:
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[***]
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Bank
Name:
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[***]
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ABA#:
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[***]
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SWIFT
number:
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[***]
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PLEASE
REFERENCE: INVOICE # AND/OR AIRCRAFT SERIAL #
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5.4
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All
other agreed upon amounts due with respect to each Aircraft shall
be paid
on or prior to the Delivery Date of such Aircraft.
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5.5
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Bombardier
shall remain the exclusive owner of the Aircraft, free and clear
of all
rights, liens, charges or encumbrances created by or through Buyer,
until
such time as all payments referred to in this Article 5 have been
made.
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5.6
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All
payments provided for under this Agreement shall be made so as
to be
received in immediately available funds on or before the dates
stipulated
herein.
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ARTICLE
6 - BUYER INFORMATION [***]
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6.1
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During
the manufacture of the Aircraft, Buyer shall provide to Bombardier
all
information as Bombardier may reasonably request to manufacture
the
Aircraft. Bombardier shall advise Buyer of the specific information
required and the latest date by which such information is required,
and
Buyer shall provide such information by the date(s) so advised.
The
requested information and its applicable due date(s) shall be
substantially in the form of Appendix IV, but in any event not
less than
within thirty (30) days of the date on which such information is
required,
and Buyer shall comply with the date(s) so specified; [***].
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Failure,
refusal or delay of Buyer to comply with the requirements of this
Article
may result in an increase in the Aircraft Purchase Price, a delay
in the
delivery of the Aircraft, or both. Further, any revisions to the
Appendix
IV information that Bombardier receives after the respective due
date may
result in an increase in the Aircraft Purchase Price, a delay in
delivery
of the Aircraft, or both.
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6.2
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[***]
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6.3
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[***]
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6.4
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[***]
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6.5
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[***]
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6.6
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[***]
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6.7
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[***]
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6.8
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[***]
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ARTICLE
7 - CERTIFICATION
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7.1
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Bombardier
has obtained or will obtain (a) TC, a TC Type Certificate (Transport
Category), and (b) from the FAA, an FAA Type Certificate for the
Aircraft
purchased under this Agreement.
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7.2
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Bombardier
shall provide to Buyer a TC Certificate of Airworthiness (Transport
Category) for export to the United States of America on or before
the
Delivery Date of each Aircraft, which will bear a statement of
compliance
with the type certificate which will make such Aircraft immediately
eligible for the issuance of and enable Buyer to obtain an FAA
Certificate
of Airworthiness for such Aircraft, unless such statement of compliance
is
not available due to Buyer’s noncompliance with the provisions of Articles
6.1, 6.2 or 6.3.
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7.3
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Bombardier
shall not be obligated to obtain and/or provide any other certificates
(or
similar documents) or approvals as part of this Agreement.
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7.4
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Buyer
is responsible for obtaining all import licenses and/or authorizations
required to import or operate the Aircraft into any country outside
of
Canada.
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7.5
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Bombardier
shall, to the extent permitted by law, provide Buyer with such
assistance
as it may reasonably request to obtain a Canadian export license
to enable
Buyer to export the Aircraft from Canada subject to prevailing
export
control regulations (including those of the United States) in effect
on
the Delivery Date.
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7.6
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If
the use of any of the certificates identified in this Article 7
are
discontinued during the performance of this Agreement, reference
to such
discontinued certificate shall be deemed a reference to any other
certificate or instrument which corresponds to such certificate
or, if
there should not be any such other certificate or instrument, then
Bombardier shall be deemed to have obtained such discontinued
certificate(s) upon demonstrating that the Aircraft complies substantially
with the Specification as supplemented to include the Buyer Selected
Optional Features. References to a regulatory authority shall include
any
succeeding department or agency then responsible for the duties
of said
regulatory authority.
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ARTICLE
8 - DELIVERY AND ACCEPTANCE PROCEDURE
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8.1
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The
Aircraft shall be offered to Buyer for inspection and acceptance
Ex Works
at Bombardier’s facility in Mirabel, Québec or other Bombardier approved
facility reasonably acceptable to Buyer for immediate export during
the
Scheduled Delivery Month.
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8.2
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No
delivery of an Aircraft shall be scheduled beyond [***], except
due to any
inability of Bombardier to provide a delivery position prior to
such date,
any Excusable Delay, Non-Excusable Delay or any default by Bombardier
under the Agreement.
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8.3
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[***]
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8.4
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Bombardier
shall give Buyer at least [***]days advance
Notice by
either overnight courier or facsimile as provided in Article 16,
of the
projected two weeks during which each Aircraft may be ready for
inspection
and delivery, and at least [***] days similar
advance
Noitce, of the projected date of readiness of each Aircraft for
inspection
and delivery.
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In
addition, Bombardier shall give Buyer at least ten (10) working
days
advance Notice, by either overnight courier or facsimile as provided
in
Article 16, of the Readiness Date for each Aircraft. Bombardier
will use
its good faith reasonable efforts to offer the Aircraft to Buyer
for
inspection, acceptance and immediate export at least [***] days prior
to the end
of the applicable Scheduled Delivery Month. Buyer agrees to
inspect and proceed with delivery and immediate export of the Aircraft,
commencing on the Readiness Date.
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8.5
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Within
two (2) days following receipt by Buyer of notice of the Readiness
Date,
Buyer shall:
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(a)
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identify
to Bombardier the names of Buyer’s representatives who will participate in
the inspection, flight test and acceptance; and
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(b)
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provide
evidence of the authority of the designated persons to execute
the
Certificate of Acceptance and other delivery documents on behalf
of Buyer.
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8.6
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Buyer
shall have [***]
consecutive working days commencing on the Readiness Date in which
to
complete the inspection and flight test (such [***] working
day period
being the “Acceptance Period”).
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8.7
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Up
to four (4) representatives of Buyer may participate in Buyer’s ground
inspection of the Aircraft and two (2) representatives of Buyer
may
participate in the flight test [***]. Bombardier
shall, if requested by Buyer, perform an acceptance flight of not
less
than one (1) and not more than [***] hours
duration. Ground inspection and flight test shall be conducted
in accordance with those acceptance procedures [***] At all
times during ground inspection and flight test, Bombardier shall
retain
control over the Aircraft. The agreed acceptance testing
procedures shall be sufficient to reasonably demonstrate the Aircraft’s
compliance with the Specification [***]
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8.8
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If
no Aircraft material defect or discrepancy is revealed during the
ground
inspection or flight test, Buyer shall accept the Aircraft on or
before
the last day of the Acceptance Period in accordance with the provisions
of
Article 8.10, [***].
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8.9
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If
any material defect or discrepancy in the Aircraft is revealed
by Buyer’s
ground inspection or flight test, the defect or discrepancy will
promptly
be corrected by Bombardier, at no cost to Buyer, which correction
may
occur during or after the Acceptance Period depending on the nature
of the
defect or discrepancy and the time required for correction, provided
that
Bombardier will use its good faith efforts to correct any such
defect or
discrepancy on or before the expiration of the Acceptance Period
and
allowing sufficient time before such expiration to permit the conduct
of
additional test flights. To the extent necessary to verify such
correction, Bombardier shall perform one (1) or more further acceptance
flights. [***].
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8.10
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Upon
successful completion of the ground inspection and acceptance flight
of
the Aircraft and correction of any material defects or discrepancies:
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(a)
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Buyer
will sign a Certificate of Acceptance (in the form of Exhibit I
hereto)
for the Aircraft. Execution of the Certificate of Acceptance by
or on
behalf of Buyer shall be evidence of Buyer having examined the
Aircraft
and found it in accordance with the provisions of this Agreement.
The date
of execution and delivery of the Certificate of Acceptance shall
be the
“Acceptance Date”;
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(b)
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Bombardier
will supply a TC Certificate of Airworthiness for Export and other
documentation required under this Article 8; and
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(c)
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Buyer
shall pay Bombardier the balance of the Aircraft Purchase Price
and any
other amounts agreed by the parties that are due with respect to
such
Aircraft, at which time Bombardier shall issue an FAA xxxx of sale
and a
full warranty xxxx of sale (in the form set forth in Exhibit II
hereto)
passing to Buyer good title to the Aircraft free and clear of all
liens,
claims, charges and encumbrances except for those liens, charges
or
encumbrances created by or claimed through Buyer (the “Xxxx of Sale”);
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(d)
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Delivery
of the Aircraft shall be evidenced by the execution and delivery
of the
Xxxx of Sale, the FAA Xxxx of Sale and of the Certificate of Receipt
of
Aircraft (in the form of Exhibit III hereto);
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[***]
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8.11
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[***]
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8.12
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[***]
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8.13
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[***]
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ARTICLE
9 - TITLE AND RISK
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9.1
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Title
to the Aircraft and risk of loss of or damage to the Aircraft passes
to
Buyer [***]and
Bombardier’s execution and delivery of the Xxxx of Sale to Buyer on the
Delivery Date.
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9.2
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If,
after transfer of title on the Delivery Date, the Aircraft remains
in or
is returned to the care, custody or control of Bombardier, Buyer
shall
retain risk of loss of, or damage to the Aircraft and for itself
and on
behalf of its insurer(s) hereby waives and renounces to, and releases
Bombardier and any of Bombardier’s affiliates from any claim, whether
direct, indirect or by way of subrogation, for damages to or loss
of the
Aircraft arising out of, or related to, or by reason of such care,
custody
or control [***].
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9.3
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At
the time of delivery of the Aircraft to Buyer, the Aircraft shall
be free
and clear of all liens, claims, charges and encumbrances of every
kind
whatsoever, except those arising through Buyer.
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ARTICLE
10 - CHANGES
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10.1
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Buyer
Requested Changes
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Should
Buyer request any change to the Aircraft from that described in
the
Specification as supplemented by the Buyer Selected Optional Features,
Bombardier shall advise Buyer, to the extent reasonably practical,
of the
effect, if any, of such change request on:
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(a)
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the
Scheduled Delivery Date or Scheduled Delivery Month, as applicable;
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(b)
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the
price and payment terms applicable to the Change Order; and
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(c)
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[***]
.
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Such
Change Order shall become effective and binding on the parties hereto when
signed by a duly authorized representative of each party and any such change
shall be made as a Change Order agreed by Buyer and Bombardier.
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10.2
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Bombardier,
may without Buyer’s consent and at no cost to Buyer:
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(a)
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substitute
the kind, type or source of any material, part, accessory or equipment
with any other material, part, accessory or equipment of like,
equivalent
or better kind or type; or
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b)
|
make
such change or modification to the Specification as it deems appropriate
to:
|
|
|
1)
|
improve
the Aircraft, its maintainability or appearance, or
|
2) to
prevent delays in manufacture or delivery, or
3)
to meet
the requirements of Articles 2 and 8, other than for a Regulatory Change
to
which the provisions of Articles 7.4 and 7.5 of this Agreement shall
apply,
|
|
provided,
however, that such substitution, change or modification shall not
materially affect the Aircraft Purchase Price, the Scheduled Delivery
Month or the Aircraft performance characteristics, warranties,
[***]and service
life
policy. Any change made in accordance with the provisions of
this Article 10.2 shall be deemed to be a “Permitted Change”.
|
|
10.3
|
For
any changes to the Aircraft,
other than Regulatory Changes applicable to all aircraft or to
all
aircraft of the same category as the Aircraft, having a material
negative
impact to Buyer on Buyer’s Aircraft Purchase Price, the price of any
individual component, the Scheduled Delivery Date or Scheduled
Delivery
Month or the Aircraft performance characteristics, warranties,
[***]and
service life
policy or
upon
interchangeability/replaceability of Spare Parts, Bombardier will
obtain
Buyer’s consent prior to implementing such change. [***]
|
|
10.4
|
If
any addition or change to, or modification or testing of an Aircraft
is
required by any law or governmental regulation or requirement [***] or interpretation
thereof by any governmental agency having jurisdiction including,
without
limitation, the FAA, in order to meet the requirements of Articles
7.1 or
7.2 (a “Regulatory Change”), unless otherwise agreed, Bombardier shall
implement such Regulatory Change to the affected Aircraft on or
prior to
the deadline for accomplishing such Regulatory Change provided
that in
discharging its obligations hereunder Buyer agrees that Bombardier
may
take into consideration the commercially reasonable needs of the
other
operators affected by such Regulatory Change or Bombardier’s prior
commitments to such operators and the availability of parts; provided
further, however, Bombardier shall not discriminate against Buyer
in
taking any such action. [***].
|
|
10.5
|
[***]
|
Bombardier
shall issue a Change Order, reflecting any Regulatory Change required to
be made
under this Article 10, which shall set forth in detail the particular changes
to
be made and the effect, if any, of such changes on design, performance, weight,
balance, time of delivery, and for Buyer Responsible Regulatory Changes,
on the
Aircraft Base Price.
|
10.6
|
Bombardier
reserves the right to make product improvements at no cost to Buyer
to the
Aircraft without Buyer’s consent, provided that there will be no material
change in Buyer’s Aircraft Purchase Price, the price of any individual
component, the Scheduled Delivery Date or Scheduled Delivery Month
or the
Aircraft performance characteristics, warranties, [***] and service
life
policy or upon interchangeability/replaceability of Spare
Parts. Bombardier will obtain Buyer’s consent for any product
improvements which would have a material negative impact on Buyer’s
Aircraft Purchase Price, the price of any individual component,
the
Scheduled Delivery Date or Scheduled Delivery Month, the Aircraft
performance characteristics, warranties, [***] and service
life
policy or upon interchangeability/replaceability of Spare Parts.
|
|
|
ARTICLE
11 - BUYER’S REPRESENTATIVES AT BOMBARDIER SITE
|
11.1
|
From
time to time, commencing [***] months prior
to the
Scheduled Delivery Month of the first Aircraft to be delivered
and ending
with the Delivery Date of the last Aircraft purchased hereunder,
subject
to Article 11.3 Bombardier shall furnish, without charge, office
space at
Bombardier’s facility relating to the manufacture of the aircraft for one
(1) representative of Buyer. Buyer shall be responsible for all
expenses of its representative and shall notify Bombardier at least
[***]calendar
days prior to
the first scheduled visit of such representative and [***]for each
subsequent
visit.
|
|
11.2
|
Bombardier’s
and Bombardier’s affiliates’ facilities relating to the manufacture of the
Aircraft shall be accessible to Buyer’s representative during normal
working hours. Buyer’s representative shall have the right, to
observe the work at Bombardier’s or Bombardier’s affiliates’ facilities
where the work is being carried out on Buyer’s Aircraft provided there
shall be no disruption in the performance of the work.
|
|
11.3
|
Buyer’s
representative shall conform to Bombardier’s rules and regulations and any
other rules and regulations applicable at the facilities being
visited and
on or before arrival at said facilities shall conform to such rules
and
regulations.
|
|
11.4
|
At
any time prior to delivery of the Aircraft, Buyer’s representative may
request, in writing, correction of parts or materials which they
reasonably believe are not in accordance with the
Specification. Bombardier shall provide a written response to
any such request. Formal communication between Buyer’s representative and
Bombardier shall be solely through Bombardier’s Contract Department or its
designate.
|
ARTICLE
12 - DELAY AND FAILURE TO TAKE DELIVERY
|
12.1
|
[***]
|
|
12.2
|
[***]
|
|
12.3
|
[***]
|
|
|
(a)
|
|
12.4
|
[***]
|
|
12.5
|
[***].
|
|
12.6
|
[***]
|
ARTICLE
13 - INTENTIONALY DELETED
ARTICLE
14 - LOSS OR DAMAGE
|
14.1
|
In
the event that prior to the Delivery Date of any Aircraft, such
Aircraft
is lost, destroyed or damaged beyond repair due to any cause or
reason
(the “Destruction Event”), Bombardier shall promptly notify Buyer in
writing. [***], Bombardier
shall use
commercially reasonable efforts to provide Buyer with the next
available
aircraft or a replacement hereunder, subject to Bombardier’s other written
commitments and production lead times. [***], the terms
and
conditions of this Agreement applicable to the destroyed aircraft
(including the Base Price) shall apply to the replacement aircraft,
[***]Nothing herein
shall
obligate Bombardier to manufacture and deliver such replacement
aircraft
if it would require the reactivation or acceleration of its production
line for the model of aircraft purchased hereunder.
|
|
14.2
|
[***]
|
|
14.3
|
[***]
|
ARTICLE
15 - TERMINATION
|
15.1
|
In
additon to termination rights which are provided for in Article
15.2
below, either party may terminate this Agreement by written notice
to the
other party in the event such other party ceases doing business
as a going
concern, suspends all or substantially all of its business operations,
makes an assignment for the benefit of creditors, generally does
not pay
its debts as they become due or admits in writing its inability
to pay its
debts, petitions for or acquiesces in the appointment of any receiver,
trustee or similar officer to liquidate or conserve its business
or any
substantial part of its assets, commences any legal proceedings
such as
bankruptcy, reorganization or similar proceeding, or becomes the
object of
any such proceeding, unless such proceeding is dismissed or stayed
within
a reasonable period, not to exceed [***] days, or
if a
material writ of attachment and execution or any similar process
is issued
or levied against any significant part of its property and is not
released, stayed, bonded or vacated within [***] days after
its issue
or levy.
|
|
15.2
|
In
addition, this Agreement may be terminated, in whole or in part,
or as to
any one Aircraft before the Delivery Date with respect to such
Aircraft:
|
|
|
(a)
|
as
otherwise provided in this Agreement; or
|
|
|
(b)
|
by
Bombardier, if Buyer is in default or breach of any material term or
condition of this Agreement and Buyer does not cure such default
or breach
within [***] calendar
days after receipt of notice from Bombardier specifying such default
or
breach [***]days
thereafter; or
|
|
|
(c)
|
by
Buyer, if [***].
|
|
15.3
|
In
case of termination of this Agreement by Bombardier in whole or
in part
pursuant to this Article 15:
|
|
|
(a)
|
all
rights which Buyer has under this Agreement or any interest or
claim Buyer
may have in or to any terminated Aircraft shall be null and void
with
immediate effect except as to any Aircraft not the subject of such
termination; and
|
|
|
(b)
|
Bombardier
may sell, lease or otherwise dispose of the terminated Aircraft
to another
party free of any claim by Buyer [***].
|
|
|
(c)
|
[***],
Bombardier shall be
entitled to recover from Buyer all costs, expenses, losses and
damages
incurred by Bombardier as a direct result of Buyer’s default including,
without limitation, all costs incurred as a result of disruption
in
production, training expenses and selling expenses to re-sell the
terminated Aircraft, the cost of all vendor goods purchased in
order to
configure the terminated Aircraft to Buyer’s specification and costs
associated with reconfiguring the terminated Aircraft in order
to re-sell
the Aircraft and any payments received by Bombardier with respect
to all
undelivered terminated Aircraft shall be retained by Bombardier
and
applied against such costs, expenses, losses and damages [***].
|
|
15.4
|
In
the case of a termination by Buyer under Article 15.1 or 15.2(c)
of this
Agreement that portion of all advance payments then held by Bombardier
attributable to undelivered Aircraft as to which the termination
is
applicable shall be returned to Buyer [***]
|
|
15.5
|
[***]
|
|
15.6
|
[***]
|
ARTICLE
16 - NOTICES
|
16.1
|
Any
Notice to be given or required under this Agreement shall be provided
in
writing by registered mail, courier or facsimile providing reasonable
proof of transmission, except that no Notice shall be sent by mail
if
disruption of postal service exists or is threatened either in
the country
of origin or of destination, by the party giving the Notice and
shall be
addressed as follows:
|
|
|
(a)
|
Notices
to Bombardier shall be addressed to:
|
|
|
Bombardier
Inc.
|
|
|
Bombardier
Aerospace Regional Aircraft
|
|
|
000
Xxxxxxx Xxxxxxxxx
|
|
|
Xxxxxxxxx,
Xxxxxxx
|
|
|
Xxxxxx
|
|
|
X0X
0X0
|
|
|
Attention:
Director of Contracts
|
|
Facsimile:
|
[***]
|
|
(b)
|
Notices
to Buyer shall be addressed to:
|
Pinnacle
Airlines, Inc.
|
|
0000
Xxxxxxxxx Xxxxxxxxx
|
|
|
Xxxxxxx,
Xxxxxxxxx, 00000
|
|
|
Attention:
_______________________
|
|
|
Facsimile:
_______________________
|
|
16.2
|
Notice
given in accordance with Article 16.1 shall be deemed sufficiently
given
to by the addressees when received:
|
|
|
(a)
|
if
delivered by hand, on the day when the same shall have been so
delivered;
or
|
|
|
(b)
|
if
mailed or sent by courier on the day indicated on the corresponding
acknowledgment of receipt; or
|
|
|
(c)
|
if
sent by facsimile on the day indicated by the acknowledgment or
the answer
back of the receiver in provable form; provided, however, an
acknowledgment of receipt shall be conclusive only as to the receipt
of
such Notice and shall not constitute the agreement of the addressee
with
the content of the Notice.
|
|
16.3
|
Notwithstanding
the foregoing, any Notice given under this Article 16 or otherwise
with
respect to any asserted breach or default or which exercises or
waives any
right of termination hereunder shall only be given by personal
delivery,
courier or registered mail.
|
ARTICLE
17 - INDEMNITY AGAINST INTELLECTUAL PROPERTY INFRINGEMENT
|
17.1
|
In
the case of any actual or alleged infringement of any Canadian
or United
States patent or, subject to the conditions and exceptions set
forth
below, any patent issued under the laws of any other country in
which
Buyer from time to time may lawfully operate the Aircraft (“Other
Patents”), by the Aircraft, or by any system, accessory, equipment or part
installed in such Aircraft at the time title to such Aircraft passes
to
Buyer, Bombardier shall indemnify, protect and hold harmless Buyer
from
and against all claims, suits, actions, liabilities, damages and
costs
resulting from the infringement, excluding any indirect, incidental,
consequential, or punitive damages (which include without limitation
loss
of revenue or loss of profit) and Bombardier shall, at its option
and
expense:
|
|
|
(a)
|
procure
for Buyer the right under such patent to use such system, accessory,
equipment or part; or
|
|
|
(b)
|
replace
such system, accessory, equipment or part with one of similar nature
and
quality that is non-infringing; or
|
|
|
(c)
|
modify
such system, accessory, equipment or part to make same non-infringing
in a
manner such as to keep it otherwise in compliance with the requirements
of
this Agreement.
|
|
|
Bombardier’s
obligations hereunder shall extend to Other Patents only if from
the time
of design of the Aircraft, system, accessory, equipment or part
until the
alleged infringement claims are resolved:
|
(a)
such other country and the country in which the Aircraft is permanently
registered have ratified and adhered to and are at the time of the actual
or
alleged infringement contracting parties to the Chicago Convention on
International Civil Aviation of December 7, 1944 and are fully entitled to
all
benefits of Article 27 thereof; and
(b)
such other country and the country of registration shall each have been a
party
to the International Convention for the Protection of Industrial Property
(Paris
Convention) or have enacted patent laws which recognize and give adequate
protection to inventions made by the nationals of other countries which have
ratified, adhered to and are contracting parties to both of the forgoing
conventions.
|
17.2
|
[***]
|
|
|
(a)
|
[***]
|
|
|
(b)
|
[***]
|
|
|
(c)
|
[***]
|
|
17.3
|
The
foregoing indemnities in Articles 17.1 [***] do not apply
to: (i) [***], or to avionics
and
engines, or (ii) any computer software not supplied by or approved
for use
by Bombardier with respect to or in support of the Aircraft, system,
accessory, equipment or part that was manufactured by a third party
to
Bombardier’s detailed design without Bombardier’s authorization, or (iii)
Technical Data not described in Annex A-1 under this Agreement.
|
|
17.4
|
Buyer’s
remedies and Bombardier’s obligations and liabilities under this Article
are conditional upon: (i) Buyer giving Bombardier written
notice within ten (10) days after Buyer receives notice of a suit
or
action against Buyer alleging infringement or within [***] days after
Buyer
receives any other written claim of infringement, (ii) Buyer uses
reasonable efforts in full cooperation with Bombardier to reduce
or
mitigate any such expenses, damages, costs or royalties involved,
any
costs or expenses incurred by Buyer in so doing being subject to
indemnity
by Bombardier hereunder, and (iii) Buyer furnishes promptly to
Bombardier
all data, papers and records in its possession or control necessary
or
useful to resist and defend against such claim or
suit. Bombardier may at its option conduct negotiations with
any party claiming infringement and may intervene in any suit or
action. Whether or not Bombardier intervenes, Bombardier shall
be entitled at any stage of the proceedings to assume or control
the
defense [***]. Provided
Bombardier meets its obligations under this Article 18, and assumes
control of any negotiations or the defense of any legal action
hereunder,
Buyer’s remedy and Bombardier’s obligation and liability are further
conditional upon Bombardier’s prior approval of Buyer’s payment or
assumption of any liabilities, expenses, damages, royalties or
costs for
which Bombardier may be held liable or responsible.
|
|
17.5
|
THE
REMEDY PROVISIONS PROVIDED
UNDER ARTICLE 17 HEREOF (THE “PATENT INDEMNITY”) CONSTITUTE BUYER’S SOLE
AND EXCLUSIVE REMEDY AND RIGHT CONCERNING PATENT INFRINGEMENT RESPECTING
ANY AIRCRAFT, SYSTEM, ACCESSORY, EQUIPMENT, PART DELIVERED OR PROVIDED
UNDER THIS AGREEMENT AND BUYER WAIVES, RELEASES, AND RENOUNCES
ALL OTHER
INDEMNITIES, OBLIGATIONS, AND LIABILITIES OF BOMBARDIER AND ALL
OTHER
RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST BOMBARDIER OF ANY
KIND,
EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO
ANY PATENT
INFRINGEMENT BY ANY AIRCRAFT, SYSTEM, ACCESSORY, EQUIPMENT, PART
DELIVERED
OR PROVIDED UNDER THIS
AGREEMENT.
|
ARTICLE
18 - LIMITATION OF LIABILITY; DISCLAIMER AND RELEASE;
INDEMNIFICATION
|
18.1
|
THE
WARRANTIES, OBLIGATIONS AND LIABILITIES OF BOMBARDIER AND THE REMEDIES
OF
BUYER PROVIDED IN THE XXXX OF SALE, ANNEX A-1 AND ANNEX B-1 AND
IN EACH OF
THE [***] LETTER
AGREEMENT ARE
EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES
AND
RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF
BOMBARDIER
AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST BOMBARDIER
OF
ANY KIND, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH
RESPECT TO
ANY NONCONFORMANCE WITH SPECIFICATION OR DEFECT IN ANY AIRCRAFT,
BOMBARDIER PRODUCT, MATERIALS, TRAINING, SERVICES, TECHNICAL DATA
OR
COMPUTER SOFTWARE OR OTHER THING PROVIDED UNDER THIS AGREEMENT,
INCLUDING,
BUT NOT LIMITED TO:
|
|
(A)
|
ANY
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR SUITABILITY;
|
|
(B)
|
ANY
IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF
DEALING OR
USAGE OF TRADE; AND.
|
|
(C)
|
ANY
OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE
TO ANY
AIRCRAFT SUBJECT TO THIS AGREEMENT;
|
|
|
[***]
|
|
18.2
|
EXCLUSION
OF
CONSEQUENTIAL AND OTHER DAMAGES. BOMBARDIER WILL HAVE NO
OBLIGATION OR LIABILITY OF ANY KIND, WHETHER ARISING BY LAW, OR
OTHERWISE
WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF BOMBARDIER, OR OTHERWISE,
FOR LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY OTHER INDIRECT,
INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES WITH RESPECT TO ANY NONCONFORMANCE
WITH
SPECIFICATION OR DEFECT IN ANY AIRCRAFT, BOMBARDIER PRODUCT, MATERIALS,
TRAINING, SERVICES, TECHNICAL DATA, COMPUTER, SOFTWARE OR OTHER
THING
PROVIDED UNDER THIS AGREEMENT. [***]
|
|
18.3
|
[***]
|
|
18.4
|
THE
WAIVERS, RELEASES, RENUNCIATIONS, LIMITATIONS AND EXCLUSIONS OF
LIABILITY
IN THIS ARTICLE 18 SHALL BE BINDING UPON AND THE BENEFITS THEREOF
SHALL
EXTEND TO THE OTHER DIVISIONS, OTHER SUBSIDIARIES, AND OTHER AFFILIATES
OF
EACH RESPECTIVE PARTY AND TO THE OFFICERS, DIRECTORS, EMPLOYEES
AND
REPRESENTATIVES OF SUCH RESPECTIVE DIVISIONS, SUBSIDIARIES AND
OTHER
AFFILIATES ON WHOSE BEHALF AND FOR WHOSE BENEFIT EACH PARTY IS,
FOR
PURPOSES OF THIS ARTICLE 18, ACTING AS AGENT AND TRUSTEE BUT SOLELY
WITH
RESPECT TO ANY CLAIM, CAUSE OF ACTION OR MATTER ARISING UNDER,
IN
CONNECTION WITH OR PURSUANT TO THIS AGREEMENT AND NOT WITH RESPECT
TO ANY
CLAIM, CAUSE OF ACTION OR MATTER ARISING UNDER IN CONNECTION WITH
OR
PURSUANT TO ANY OTHER AGREEMENT, RELATIONSHIP OR OTHER UNDERTAKING
WHICH
IS INDEPENDENT OR SEPARATE FROM THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
|
|
18.5
|
NOTHING
CONTAINED IN THIS ARTICLE 18 SHALL BE INTERPRETED AS A WAIVER,
RELEASE OR
RENUNCIATION BY BUYER OR BOMBARDIER OF ANY RIGHT, REMEDY OR RECOURSE
AVAILABLE TO EITHER OF THEM WITH RESPECT TO CLAIMS OF THIRD
PARTIES.
|
ARTICLE
19 - ASSIGNMENT
|
19.1
|
Buyer
shall have no right to
assign its interest in the aircraft or under this Agreement [***]
|
|
19.2
|
Bombardier
may assign any of its rights to receive money hereunder without
the prior
consent of Buyer, provided that such assignment shall not increase
Buyer’s
liabilities or reduce its rights under this Agreement, such party
shall
agree in writing not to interfere with Buyer’s rights under this Agreement
and Bombardier shall reimburse Buyer for any costs incurred by
Buyer
relating to such assignment.
|
ARTICLE
20 - SUCCESSORS
|
20.1
|
This
Agreement shall inure to the benefit of and be binding upon each
of
Bombardier and Buyer and their respective successors and permitted
assignees.
|
ARTICLE
21 - APPLICABLE LAWS
|
21.1
|
THIS
AGREEMENT SHALL BE SUBJECT
TO AND CONSTRUED IN ACCORDANCE WITH AND THE RIGHTS OF THE PARTIES
SHALL BE
GOVERNED BY THE LAWS OF THE [***],
AND THE PARTIES HAVE AGREED
THAT THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS
FOR THE
INTERNATIONAL SALE OF GOODS IS HEREBY
EXCLUDED.
|
|
21.2
|
[***]Both
parties agree
that service of any and all legal process, summons, notices and
other
documents out of any [***] courts may
be made by
delivering a copy thereof to such party [***] to the address
specified in Article 16.1
|
|
21.3
|
Bombardier’s
obligations under this Agreement shall be subject to and apply
only to the
extent permitted by applicable laws, regulations, directives and/or
orders
regarding export controls, including those of the United States.
|
|
21.4
|
[***]
|
ARTICLE
22 - CONFIDENTIAL NATURE OF AGREEMENT
|
22.1
|
This
Agreement including the Technical Data set forth in Annex A to
the
Agreement, is confidential between the parties and shall not, without
the
prior written consent of the other party, be disclosed by either
party in whole or in part to any other person or body
except: (a) to either party's counsel, special counsel,
accountants, auditors or financial advisors, on a need to know
basis (who
shall be advised of the confidential nature of this Agreement),
(b) as may
be required by any statute, court or administrative order or decree
or
governmental ruling or regulation of any applicable jurisdiction
or as may
be be requested by any applicable taxing or other governmental
authority,
provided that, if practicable and not in violation of any such
applicable
statute, order, decree, ruling or regulation, notice of such disclosure
shall be given to the other party, and (if practicable and not
so in
violation) in advance of such disclosure, and such other party
shall be
permitted (if practicable and not so in violation) to resist disclosure
or
seek confidential treatment of such disclosure and the disclosing
party
shall use all reasonable efforts to cooperate with and assist the
other
party in resisting disclosure or seeking confidential treatment
of such
disclosure, including undertaking the appropriate proceedings or
making
the appropriate applications or requests (at the cost of the other
party)
for such purpose where such other party is not entitled to do so
on its
own behalf, (c) to the extent such information is publicly available
other
than as a result of the disclosure by or on behalf of the disclosing
party, (d) as may be required by financial institutions or arrangers
involved with the financing of the Aircraft or any like kind exchanges,
or
(e) to such other persons as are and to the extent reasonably deemed
necessary for either party to carry out its obligations under this
Agreement.
|
|
ARTICLE
23 - AGREEMENT
|
|
23.1
|
This
Agreement and the matters referred to herein constitutes the entire
Agreement between Bombardier and Buyer and supersede and cancel
all prior
agreements, negotiations, drafts, representations, brochures, alleged
warranties, statements, negotiations, undertakings, letters, memoranda
of
agreement, proposal, acceptances, agreements, understandings, contractsand
communications, whether oral or written, between Bombardier and
Buyer or
their respective agents, with respect to or in connection with
the subject
matter of this Agreement and no agreement or understanding varying
or
supplementing the terms and conditions hereof shall be binding
on either
Bombardier or Buyer hereto unless an amendment to this Agreement
is issued
and duly signed by their respective authorized representatives
pursuant to
the provisions of this Article 23.1. In the event of any inconsistencies
between this Agreement and any of the Appendencies, Exhibits and
Annexes
or other documents referred to herein, the provisions of this Agreement
shall prevail unless otherwise provided. [***]
|
|
23.2
|
If
any of the provisions of this Agreement are for any reason declared
by
judgment of a court of competent jurisdiction to be unenforceable
or
ineffective, those provisions shall be deemed severable from the
other
provisions of this Agreement and the remainder of this Agreement
shall
remain in full force and effect.
|
|
23.3
|
Bombardier
and Buyer confirm to each other they have each obtained the required
authorizations and fulfilled any applicable conditions to enable
each of
them to enter into this Agreement.
|
|
23.4
|
Buyer
and Bombardier agree that this Agreement has been the subject of
discussion and negotiation and is fully understood by the parties
hereto
and that the price of the Aircraft and the other mutual agreements
of the
parties set forth herein were arrived at in consideration of the
provisions contained herein, including the provisions of Article
18.
|
|
23.5
|
This
Agreement may be executed in counterparts each of which will constitute
one and the same document.
|
|
23.6
|
The
parties agree that time is of the essence in all matters concerning
this
Agreement.
|
|
23.7
|
The
failure of either party to enforce at any time any of the provisions
of
this Agreement or require at any time performance of any of the
provisions
hereof, shall in no way be construed to be a waiver of such provisions,
nor in any way affect the validity of this Agreement or any part
hereof or
the right of any such party thereafter to enforce each and every
provision
of this Agreement.
|
|
23.8
|
[***]
|
IN
WITNESS WHEREOF this Agreement was signed on the date written
hereof:
|
For
and on behalf of
|
For
and on behalf of
|
|
PINNACLE
AIRLINES, INC.
|
BOMBARDIER
INC.
|
|
|
Bombardier
Aerospace
|
|
|
Regional
Aircraft
|
|
/s/
Xxxxxx X.
Xxxxxxx
|
[***] Name: Xxxxxx
X. Xxxxxxx
|
Name: [***] Title:
President & CEO
|
Title: [***]
|
|
|
[***]
|
|
|
Name:
[***]Title: [***]
|
|
SCHEDULE
I
|
SCHEDULE
I ECONOMIC ADJUSTMENT FORMULA
|
1.
|
Pursuant
to the provision of Article 4 of the Agreement, economic adjustment
will
be calculated using the following Economic Adjustment Formula:
|
|
|
[***]
|
|
APPENDIX
I
|
|
[***]
|
APPENDIX
I DELIVERY SCHEDULE
|
First
Aircraft
|
[***]
|
|
Second
Aircraft
|
[***]
|
|
Third
Aircraft
|
[***]
|
|
Fourth
Aircraft
|
[***]
|
|
Fifth
Aircraft
|
[***]
|
|
Sixth
Aircraft
|
[***]
|
|
Seventh
Aircraft
|
[***]
|
|
Eighth
Aircraft
|
[***]
|
|
Ninth
Aircraft
|
[***]
|
|
Tenth
Aircraft
|
[***]
|
|
Eleventh
Aircraft
|
[***]
|
|
Twelfth
Aircraft
|
[***]
|
|
Thirteenth
Aircraft
|
[***]
|
|
Fourteenth
Aircraft
|
[***]
|
|
Fifteenth
Aircraft
|
[***]
|
|
Sixteenth
Aircraft
|
[***]
|
|
APPENDIX
II
|
APPENDIX
II TYPE SPECIFICATION
|
|
CRJ:
(Series 900)
|
|
|
TYPE
SPECIFICATION
|
|
|
Number
RAD-690-100 Revision C
|
|
|
May
2005
|
|
Proposed
CRJ900 LOPA (A)
[***]–
76
Passengers
|
[***]
|
|
APPENDIX
III
|
APPENDIX
III BUYER SELECTED OPTIONAL FEATURES
|
Optional
Features
CS:
9DT003_NC
LOPA:
76 Passengers, 12 Business Class, 64 Economy
|
Base
Price
|
|
|
Feature
No. CR)
|
Description
–
CRJ
900 New 76
Passenger Configuration[***]
|
Jul
2006 USD
|
|
00-420
|
Long
Range Version (84,500 lb /38 330 kg MTOW)
|
[***]
|
|
00-243
|
Registration
– United States of America
|
[***]
|
|
00-000
|
Xxxxxxxxx
- Xxxxxx Xxxxxx xx Xxxxxxx
|
[***]
|
|
21-201
|
Baggage
- Temperature Control In Aft Compartment
|
[***]
|
|
21-209
|
Ground
Air Conditioning Cart Connection
|
[***]
|
|
23-221
|
CVR
- 2 Hours, Solid State (L3Comm)
|
[***]
|
|
23-238
|
VHF
Comm - Third Radio - Digital Radio, 25 kHz (Xxxxxxx
VHF-4000)
|
[***]
|
|
23-240
|
HF
Radio-Single (Xxxxxxx XX 9000)
|
[***]
|
|
23
- 260
|
Announcement
& Music System (Hut PBS-600)
|
[***]
|
|
23
- 426
|
ELT
– Three Frequency, Satellite Capable with Dongle (Artex, C406 – 2 &
DGL-1)
|
[***]
|
|
25
- 03 - 202
|
Interior
Finish & Décor – Custom Curtains
|
[***]
|
|
00-00-000
|
Reinforced
Flight Deck Door
|
[***]
|
|
00-00-000
|
Passenger
Seats - Economy Class (BE - Spectrum, Incl. IAT & recline as appl, 32
Seat Pairs)
|
[***]
|
|
00-00-000
|
Pax
Seats - Business Class (BE - Spectrum First Improved Styling, Incl.
IAT
& Recline, 4 Rows)
|
[***]
|
|
00-00-000
|
Passenger
Seats - Leather Dress Covers (32 Seat Pairs)
|
[***]
|
|
00-00-000
|
Passenger
Seats - Seat Mounted Mini-Armrest @Overwing Exit Locations (B/E
Spectrum, Qty 4)
|
[***]
|
|
00-00-000
|
Passenger
Seat - Economy Class - Seat Literature Pocket w/net(B/E Spectrum
(32 Seat
Pairs)
|
[***]
|
|
00-00-000
|
Passenger
Seats - Economy Class - Transparent Life Vest Pouches (32 seat
pairs)
|
[***]
|
|
00-00-000
|
Passenger
Seats - Business Class - Transparent Life Vest Pouches (12
seats)
|
[***]
|
|
00-00-000
|
Passenger
Seats - Business Class - 2 Colour Leather Dress Covers (12
seats)
|
[***]
|
|
00-00-000
|
Pssenger
Seat - Business Class - Seat Literature Pocket w/net(B/E Spectrum
(12 seat
pairs)
|
[***]
|
|
00-00-000
|
Passenger
Seats - Simulated Headrest B/E Spectrum (12 seat pairs)
|
[***]
|
|
25-226
|
Business
Class Section - Interior
|
[***]
|
|
00-00-000
|
Storage
- Entrance area- 4-Door Configuration
|
[***]
|
|
00-00-000
|
Wardrobe LH
Forward unit (34 inches, Business Class) Incl Provisions for 2
stowage
units
|
[***]
|
|
00-00-000
|
Partition
- Under bin and Aisle Curtain (three abreast)
|
[***]
|
|
25
- 31 - 443
|
G1
Galley - Provisions For Hot Meal & Beverage Services, 5 Trolleys (Fwd
RH, Aft-Facing
|
[***]
|
|
00-00-000
|
G2
Galley - Provisions for Snack Service & Crew Storage (FWD, RH,
FWD-Facing)
|
[***]
|
|
00-00-000
|
G3
Galley - Prov. For Snack, 0 Xxxxxxxx (Xxx, XX, XX-Xxxxxx)
|
[***]
|
|
00-00-000
|
Coffee
Maker - Atlas Std. (APC 3510, Qty 2)
|
[***]
|
|
00-00-000
|
Mini-Oven
- Atlas Std,12-Casserole (BEDF300, Qty 1)
|
[***]
|
|
25-419
|
Cabin
Cool White Lighting
|
[***]
|
|
00-00-000
|
Aft
Centreline Entry Lavatory
|
[***]
|
|
00-00-000
|
Baby
Change Table In Lavatory (Qty 2)
|
[***]
|
|
25-490
|
Baggage
- Under-floor Retrieval System
|
[***]
|
|
00-00-000
|
Emergency
equipment - passenger life vests (Qty 76)
|
[***]
|
|
31-240
|
Crew
Force Measurement System (CFMS)
|
[***]
|
|
00-000
|
Xxxx-Xxxx
- ACARS with Miltope Printer (Xxxxxxx CMU-4000)
|
[***]
|
|
33-203
|
Red
Beacon Lights
|
[***]
|
|
33-420
|
Baggage
Door Floodlights (Aft and Under-floor)
|
[***]
|
|
34
- 236
|
FMS
– Dual ACARS Compatible (Xxxxxxx FMS4200
|
[***]
|
|
34-241
|
VHF
NAV - FM Immunity (VIR-432+)
|
[***]
|
|
00-000
|
XXX-Xxxx
(Xxxxxxx XXX-0000X)
|
[***]
|
|
34-260
|
Radio
Altimeter-2nd (Xxxxxxx)
|
[***]
|
|
00-000
|
Xxxxxxxxx-Xxxx
Setting Flashing At 18,000 Ft.
|
[***]
|
|
34-270
|
Weather
Radar - Split Scan (2nd Control Panel)
|
[***]
|
|
34-428
|
Enhanced
GPWS (Honeywell)
|
[***]
|
|
34-466
|
RVSM
Capability (Enhanced CRJ900 Performance)
|
[***]
|
|
35-204
|
Flight
Crew Full Face Oxygen Mask (Eros MagIc Mask - Three)
|
[***]
|
|
35-210
|
Increase
Capacity Crew Oxygen System (77 cu. ft. /2.18 cu. m.)
|
[***]
|
|
52-402
|
Increased
Passenger Accommodation via Removal of Aft Service Door - (Complete
Fuselage Skin)
|
[***]
|
|
79-201
|
Remote
Engine Oil Replenishment System
|
[***]
|
|
Total
Buyer Selected Optional Features
|
[***]
|
|
|
[***]
|
||
|
One
Time Charges
|
[***]
|
|
|
00-213
|
Certification
- FAA (FAR 25)
|
[***]
|
STD
=
Standard
ANAC
= At
No Additional Cost
[***]
FORM
“A” TO APPENDIX IV
FORM
“A” TO APPENDIX IV BUYER’S CUSTOMIZED PAINT SCHEME
Pinnacle Airlines, Inc. hereby approves the attached Customized Paint
Scheme.
|
|
Dated
this ___ day of ______________ 200X.
|
|
|
by:
_________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
Copy
to: Contracts
|
|
|
FORM
“B” TO APPENDIX IV
|
FORM
“B” TO APPENDIX IV BUYER’S INTERIOR DÉCOR AND EMERGENCY EQUIPMENT
LIST
Pinnacle Airlines,
Inc.
hereby approves the attached Interior Décor as submitted by Buyer on, 200X and
confirmed by Bombardier Aerospace on, 200X and hereby approves the attached
Emergency Equipment List and Locations.
|
|
Dated
this ___ day of ______________ 200X
|
|
|
by:
_________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
Copy
to: Contracts
|
|
|
FORM
“C” TO APPENDIX IV
|
FORM
“C” TO APPENDIX IV BUYER’S PLACARDS, LABELS & MARKINGS
Pinnacle Airlines, Inc.hereby approves the attached Placards, Markings,
and Labels as submitted by Buyer on, 200X and confirmed by Bombardier Aerospace
on, 200X.
|
|
Dated
this ___ day of ______________ 200X.
|
|
|
by:
_________________________________
|
|
|
Name:
|
|
|
Title:
|
|
|
Copy
to: Contracts
|
|
|
EXHIBIT
I
|
EXHIBIT
I - CERTIFICATE OF ACCEPTANCE
The
undersigned hereby acknowledges on behalf of Buyer acceptance of the Aircraft
bearing manufacturer's serial number __________ fitted with two engines
MODEL________ bearing serial numbers ____________ and _______________ as
being
in accordance with the terms and conditions of this Agreement signed on the
_______day of _________ between Bombardier Inc. and Buyer.
Place:
Date:
Signed
for and on behalf of Pinnacle Airlines, Inc.
By:
|
|
Title:
Attorney in Fact
|
|
|
EXHIBIT
II
|
EXHIBIT
II - WARRANTY XXXX OF SALE
|
1.
|
For
valuable consideration, Bombardier Inc., as owner of the full legal
and
beneficial title of the Aircraft described as follows:
|
|
|
One
Canadair Regional Jet Model ________________
|
|
Aircraft
Bearing Manufacturer’s serial number:_________
|
,
|
|
|
With:
|
|
|
Two
(2) ___________ engines serial numbers:
|
|
|
together
with all avionics, appliances, instruments, appurtenances, accessories,
furnishings and/or other equipment or property incorporated in
or
installed on or attached to said Aircraft and engines (hereinafter
referred to as the “Aircraft”) does this ________
|
|
|
day
of ______________, 20____, hereby convey, sell, grant, transfer,
bargain
and deliver and set over to Pinnacle Airlines, Inc. (hereinafter
referred
to as “Buyer”), and unto its successors and assigns forever all of
Bombardier Inc.’s right, title and interest in and to such Aircraft.
|
|
2.
|
Bombardier
Inc. represents and warrants to Buyer:
|
(i)
that
Bombardier Inc. 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
to
Buyer; and
(ii)
the
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. Bombardier Inc. hereby covenants and agrees to defend such
title forever against all claims and demands whatsoever.
This
full
Warranty Xxxx of Sale is governed by the internal laws of the [***].
IN
WITNESS WHEREOF, Bombardier Inc. has caused this instrument to be executed
and
delivered by its duly authorized personnel.
BOMBARDIER
INC.:
Per:
title:
|
|
EXHIBIT
III
|
EXHIBIT
III - CERTIFICATE OF RECEIPT OF AIRCRAFT
The
undersigned hereby acknoledges to have received from Bombardier Inc., in
___"city"____, _____"Province"____, _______"Country" ________, on the
__________ day of ________, at the hour of _____________ o'clock, one (1)
Canadair Regional Jet aircraft model _________, bearing
manufacturer's serial number, _______, including with the aircraft the two
engines model ___________ bearing manufacturer's serial numbers __________
&
___________.
Place:
____________________ Date:
______________
Signed
for and on behalf of Pinnacle Airlines, Inc.
By:______________________________
Title:
Attorney in Fact
EXHIBIT
IV
EXHIBIT
IV - CHANGE ORDER
CONTRACT
CHANGE ORDER
|
|
PURCHASER:
|
|
PURCHASE
AGREEMENT NO.:
|
AIRCRAFT
TYPE:
|
|
C.C.O.
NO.:
|
DATED:
|
|
PAGE
__ of __
|
|
|
REASON
FOR CHANGE:
|
|
|
____________________________________________________________________
|
|
|
DESCRIPTION
OF CHANGE:
|
ALL
OTHER
TERMS AND CONDITIONS OF THE AGREEMENT WILL REMAIN UNCHANGED
For
administrative purposes only, a consolidation of the amendments contained
in
this CCO is attached. In the event of inconsistencies between the
consolidation and this CCO, this CCO shall prevail.
|
|
____________________________________________________________________
|
|
FOR
AND ON BEHALF OF:
|
FOR
AND ON BEHALF OF:
|
|
|
Bombardier
Aerospace Regional Aircraft _______________________________
|
|
Signed:_______________________
|
Signed:__________________________
|
|
Date:_________________________
|
Date:____________________________
|
|
|
Exhibit
V
|
|
|
PDP
Payments Due at Execution
|
|
|
[To
be provided based on Article 5]
|
|
|
CUSTOMER
SUPPORT SERVICES
|
|
|
ANNEX
A-1
|
|
|
TECHNICAL
SUPPORT, SPARE PARTS, TRAINING AND TECHNICAL DATA
|
|
|
The
following Customer Support Services are those services to which
reference
is made in Article 3 of the Agreement.
|
|
|
ARTICLE
1 - TECHNICAL SUPPORT
|
|
1.1
|
Factory
Service
|
|
|
Bombardier
agrees to maintain or cause to be maintained the capability to
respond to
Buyer’s technical inquiries, to conduct investigations concerning
repetitive maintenance problems and to issue findings and recommend
action
thereon for as long as ten (10) Bombardier CRJ900 aircraft remain
in
commercial air transport service worldwide.
|
|
|
Bombardier
Customer Services Action Center maintains coverage twenty-four
(24) hours
a day, three hundred and sixty-five (365) days a year to receive
and
respond to operator technical and operational queries. Specialists
accessible through the Action Center include airframe, interiors,
avionics, electrical, propulsion and hydro-mechanical systems.
|
|
1.2
|
Start
Up Team
|
|
1.2.1
|
Bombardier
will provide [***]of
a dedicated, localized Field Service Representative ("FSR") in
conjunction
with each Firm Aircraft acquired by Buyer. The FSR’s responsibility will
be to provide technical advice to Buyer for the maintenance, operation
and
trouble shooting of the Aircraft, technical advice to Buyer of
the line
maintenance and operation of the Aircraft systems and troubleshooting
during scheduled and unscheduled maintenance by Buyer’s designated
personnel. [***][***]
|
|
1.2.2
|
[***]
|
|
1.2.3
|
[***]
|
|
1.2.4
|
FSR,
Start-up Team
|
To
assist
Buyer in the introduction of the Aircraft into revenue service, Bombardier
will
assemble a “Start-Up Team” at Buyer’s main base of operation or other location
as may be mutually agreed. The composition of this start-up team
shall be subject to discussion and could include operational, technical and/or
maintenance support personnel and flight instruction staff (“Start-up Team
Services”). Such Start-Up Team assignment shall be for a period of up to [***] and shall consist
of up
to[***]of flight operation
support and up to [***]
technical and/or maintenance support to commence at a mutually agreed
schedule.
|
1.2.5
|
Intentionally
Deleted
|
|
1.2.6
|
Travel
|
|
|
If
requested by Buyer, the FSR and/or the Start Up team may, at Buyer’s
expense, travel to another location to provide technical advice
to Buyer.
|
|
1.2.7
|
Office
Facilities
|
|
|
Buyer
shall furnish the FSR and the Start Up Team, at no charge to Bombardier,
suitable and office facilities located at Buyer’s main base of operation
or other location as may be mutually agreed. [***]
|
|
1.2.8
|
Additional
Expenses
|
|
|
Buyer
shall reimburse Bombardier (net of any additional taxes on such
reimbursement) the amount of any and all taxes ([***] on the income
of the
FSR and Start Up Team) [***]) and fees
of whatever
nature, including any customs duties, withholding taxes or fees
together
with any penalties or interest thereon, paid or incurred by Bombardier
or
the FSR or the Start Up Team, or other Bombardier employee solely
as a
result of or in connection with the rendering of the FSR or the
Start-Up
Team Services. [***]
|
|
1.2.9
|
Right
to Stop Work
|
|
|
Bombardier
shall not be required to commence or continue the FSR or the Start
Up Team
Services when:
|
|
|
[***]
|
there
exist war, risk of war or warlike operations, riots or insurrections
in
the area of where the FSR services or Start-Up Team Services would
be
performed;
|
|
|
[***]
|
there
exist conditions at [***] facility
at which the
FSR services or Start-up Team services would be performed [***]dangerous
to the
safety or health of the FSR Start Up Team or other Bombardier employee;
provided, however, Bombardier shall only be relieved of its obligation
to
provide such FSR services or Start-Up Services during the period
any such
event or condition exists and shall promptly recommence the FSR
services
and/or Start-Up Services upon termination of any aforementioned
condition
or event[***]
|
|
1.2.10
|
Work
Permits and Clearances
|
|
|
[***],
Buyer [***] in obtaining
and
arranging for all necessary work permits and airport security clearances
required for the FSR and the Start up Team or other Bombardier
employee to
permit timely accomplishment of the FSR and the Start Up Team services
[***].
|
|
1.3
|
In-Service
Maintenance Data
|
|
|
Buyer
agrees to provide to Bombardier in-service maintenance data in
order to
assist Bombardier in providing updates to Bombardier’s recommended
maintenance program. Buyer and Bombardier shall agree on
standards and frequency for communication of such data.
|
|
1.4
|
Additional
Services
|
|
|
At
Buyer’s request Bombardier shall provide a proposal to provide such
additional support services as the parties may agree upon, which
may
include special investigations, maintenance and repair of the Aircraft.
|
|
|
ARTICLE
2 - SPARE PARTS, GSE, TOOLS AND TEST EQUIPMENT
|
|
2.1.1
|
Definitions
|
|
a.
|
“Bombardier
Parts”:
|
|
|
any
spare parts, ground support equipment, tools and test equipment
which bear
an in-house Cage Code number in the Bombardier Provisioning Files
as that
expression is defined in ATA Specification 2000. [***] [***].
|
|
b.
|
“Power
Plant Parts”:
|
|
|
any
power plant or power plant part or assembly carrying the power
plant
manufacturer’s part number or any part furnished by the power plant
manufacturer [***]
|
|
c.
|
“Vendor
Parts”:
|
|
|
any
spare parts, ground support equipment, tools and test equipment
for the
Aircraft which are not Bombardier Parts or Power Plant Parts.
|
|
d.
|
“Spare
Parts”:
|
|
|
all
materials, spare parts, assemblies, special tools and items of
equipment,
including ground support equipment, ordered for the Aircraft by
Buyer from
Bombardier. The term Spare Parts includes Bombardier Parts, Power
Plant
Parts and Vendor Parts;
|
|
e.
|
“Spare
Parts Price Catalogue";
|
shall
mean a list of spare parts prices [***] periodically published
by
Bombardier Inc.;
|
f.
|
“Order”:
|
|
|
any
order for Spare Parts issued by Buyer to Bombardier Inc.; and
|
|
g.
|
“Technical
Data”:
|
|
|
shall
have the meaning attributed to it in Annex A-1 Article 4.1.
|
|
2.1.2
|
Term
and Applicability
|
|
|
The
term of this Annex A-1 Article 2 shall become effective on the
date hereof
and shall remain in full force and effect with respect to the purchase
and
sale of Spare Parts so long as at least ten (10) of the Bombardier
CRJ900 aircraft
remain in commercial air transport service worldwide. The
provisions of Annex A-1 Articles 2.2, 2.6.5, 2.24 and Annex B-1
Article
5.0 shall survive expiration or termination of this Agreement.
|
|
2.2
|
Order
Terms
|
|
|
Terms
and conditions hereof shall apply to all Orders placed by Buyer
with
Bombardier in lieu of any terms and conditions in Buyer’s purchase orders.
|
|
2.3
|
Purchase
and Sale of Spare Parts
|
|
2.3.1
|
Agreement
to Manufacture and Sell
|
Bombardier
shall manufacture, or procure, and make available for sale to Buyer suitable
Spare Parts in quantities sufficient to meet the reasonably anticipated needs
of
Buyer for normal maintenance and normal spares inventory replacement. Bombardier
shall also maintain or cause to be maintained a shelf stock of certain
Bombardier Parts selected by Bombardier to ensure reasonable re-order lead
times
and emergency support for the Aircraft. During the term specified in
Annex A-1 Article 2.2 above, Bombardier shall also maintain or cause to be
maintained a reasonable quantity of Bombardier Parts as insurance
parts. Insurance parts as used herein shall include, but not be
limited to, dispatch-essential parts such as major flight control
surfaces.
|
2.4
|
Agreement
to Purchase Bombardier Parts
|
|
2.4.1
|
Purchase
of Bombardier Parts
|
|
|
[***]
|
|
2.4.2
|
Buyer’s
Right to Redesign or Manufacture
|
|
|
Buyer
shall have a limited [***] right to
redesign
Bombardier Parts, or have them redesigned, manufacture Bombardier
Parts,
or have them manufactured, under the following conditions:
|
|
|
a)
|
When
less than ten (10) aircraft of the type purchased hereunder are
operated
in scheduled commercial air transport service;
|
|
|
b)
|
Any
time Bombardier Parts are needed to effect emergency repairs on
the
Aircraft, provided that such redesign or manufacture by or from
sources
other than Bombardier allows Buyer to obtain Bombardier Parts in
less time
than Bombardier requires to furnish them;
|
|
|
c)
|
If
Buyer has notified Bombardier in writing that any Bombardier Parts
are
defective or unsatisfactory in use and if within a reasonable period
thereafter Bombardier has not provided a satisfactory resolution
or made
redesigned Bombardier Parts available.
|
|
|
[***]
|
|
|
[***]
Buyer’s right to
redesign or to have redesigned or manufacture or to have manufactured
Bombardier Parts under the preceding Article 2.4.2 shall not be
construed
as a granting of a license by Bombardier and shall not obligate
Bombardier
to disclose to anyone Technical Data or other information [***] the payment
of any
license fee or royalty or create any obligation whatsoever to Bombardier
and Bombardier shall be relieved of any obligation or liability
with
respect to patent infringement in connection with any such redesigned
part. Buyer shall be responsible for obtaining all regulatory
authority approvals required by Buyer to repair the Aircraft using
redesigned or manufactured Bombardier Parts as described in the
preceding
Article. Any such redesigned part shall be identified with
Buyer’s part number only.
|
|
2.4.3
|
Notice
to Bombardier of Redesigned Parts
|
|
|
If
Buyer redesigns or has had any Bombardier Parts redesigned, Bombardier
reserves the[***]
rights in the redesigned parts, drawings and the manufacturing
rights of
the redesigned part.
|
|
2.5
|
Purchase
of Vendor Parts & Power Plant Parts
|
|
|
Bombardier
shall not be obligated to maintain a stock of Vendor Parts or Power
Plant
Parts. Bombardier may elect to maintain a spares stock of selected
Vendor
Parts and/or Power Plant Parts at its own discretion to support
provisioning and replenishment sales. Bombardier agrees to use
reasonable
efforts to require its vendors to comply with the terms and conditions
of
this Annex A-1 Article 2 as they apply to Vendor Parts and Power
Plant
Parts. Vendor Parts and Power Plant Parts shall be delivered in
accordance
with the applicable vendor’s quoted lead time plus Bombardier’s internal
processing time.
|
|
2.6
|
Spare
Parts Pricing
|
|
2.6.1
|
Spare
Parts Price Catalogue
|
|
|
Prices
for commonly used Bombardier Parts stocked by Bombardier shall
be
published in the Spare Parts Price Catalogue. Bombardier shall
hold the
published prices firm for catalogue listed items for a period of
twelve
(12) months and shall provide at least ninety (90) calendar days
notice
prior to changing the published price. [***] Additional
provisions
are set forth in the Spares Letter Agreement.
|
|
2.6.2
|
Bombardier
Prices for Vendor Parts
|
|
|
If
Buyer orders Vendor Parts from Bombardier, the price shall be as
published
in the Spare Parts Price Catalogue.
|
|
|
2.6.3
|
Quotations
|
|
|
Price
and delivery quotations for items not listed in the Spare Parts
Price
Catalogue shall be provided at Buyer’s request by
Bombardier. Price quotations will be held firm for a period of
ninety (90) calendar days or as otherwise specified by
Bombardier. Responses to quotation requests will be provided
within ten (10) calendar days.
|
|
|
2.6.4
|
Price
Applicability
|
The
purchase price of Bombardier Parts shall be the applicable price set forth
in
the Spare Parts Price Catalogue at time of receipt by Bombardier of Buyer’s
Order or as quoted by Bombardier to Buyer upon request. If Buyer
requests accelerated production, delivery or special handling for Bombardier
Parts not taken into account in the price set out in the Spare Parts Price
Catalogue for such Bombardier Parts, Bombardier may increase the price from
the
original quotation to cover any additional costs to Bombardier resulting
from
such accelerated production, delivery or special handling.
|
|
2.6.5
|
Currency
and Taxes
|
|
|
All
Spare Parts Price Catalogue and quotation prices shall be in U.S.
dollars
and exclusive of transportation, taxes, duties and licenses.
|
|
|
Buyer
shall pay to Bombardier upon demand the amount of any sales, use,
value-added, excise or similar taxes imposed by any federal, provincial
or
local taxing authority within Canada, and the amount of all taxes
imposed
by any taxing authority outside Canada, required to be paid by
Bombardier
as a result of any sale, use, delivery, storage or transfer of
any Spare
Parts. If Bombardier has reason to believe that any such tax is
applicable, Bombardier shall separately state the amount of such
tax in
its invoice. If a claim is made against Bombardier for any such
tax,
Bombardier shall promptly notify Buyer. [***]
|
|
|
In
addition, Buyer shall pay to Bombardier on demand the amount of
any
customs duties required to be paid by Bombardier with respect to
the
importation by Buyer of any Spare Parts.
|
|
|
2.6.6
|
Vendor
Pricing
|
|
|
Bombardier
shall use reasonable efforts to require its major vendors to maintain
any
published price for their parts for a period of at least twelve
(12)
months with a ninety (90) calendar day notice period prior to changing
a
published price.
|
|
2.7
|
Provisioning
|
|
2.7.1
|
Pre-provisioning/Provisioning
Conference
|
|
|
A
pre-provisioning conference shall be convened on a date to be mutually
agreed between Buyer and Bombardier in order to:
|
|
|
(i)
|
discuss
the operational parameters to be provided by Buyer to Bombardier
which
Bombardier considers necessary for preparing its quantity recommendations
for initial provisioning of Spare Parts to be purchased from Bombardier
or
vendors (“Provisioning Items”);
|
|
|
(ii)
|
review
Buyer’s ground support equipment and special tool requirements for the
Aircraft;
|
|
|
(iii)
|
discuss
the format of the provisioning documentation to be provided to
Buyer from
Bombardier for the selection of Provisioning Items; and
|
|
|
(iv)
|
arrive
at a schedule of events for the initial provisioning process, including
the establishment of a date for the initial provisioning conference
(“Initial Provisioning Conference”) which shall be scheduled as mutually
agreed and as early as practicable.
|
|
|
The
time and location of the pre-provisioning conference shall be mutually
agreed upon between the parties; however, Bombardier and Buyer
shall use
their best efforts to convene such meeting within thirty (30) days
after
execution of the Agreement.
|
|
|
Bombardier
acknowledges that Buyer may elect to take a phased approach to
initial
provisioning purchasing.
|
|
2.8
|
Initial
Provisioning Documentation
|
|
|
Initial
provisioning documentation for Bombardier Parts and Vendor Parts
shall be
provided by Bombardier as follows:
|
|
a)
|
Bombardier
shall provide, as applicable to Buyer, [***] or as may
be mutually
agreed, the initial issue of provisioning files as required by
ATA
Specification 2000, Chapter 1 (as may be amended by Bombardier);
|
|
|
Revisions
to this provisioning data shall be issued by Bombardier every ninety
(90)
calendar days until ninety (90) calendar days following the Delivery
Date
of the last Aircraft or as may be mutually agreed;
|
|
b)
|
Bombardier
shall provide, as required by Buyer, all provisioning data files
defined
in Chapter 1 of ATA Specification 2000; and
|
|
|
c)
|
the
Illustrated Parts Catalogue designed to support provisioning shall
be
issued concurrently with provisioning data files and revised at
every
ninety (90) calendar days until expiration of the revision service
described in Annex A-1, Article 4.4.
|
|
2.8.1
|
Obligation
to Substitute Obsolete Spare Parts
|
|
|
In
the event that, [***]
following delivery of the first Aircraft, any Spare Part purchased
by
Buyer from Bombardier is rendered obsolete or unusable due to the
redesign
of the Aircraft or of any accessory, equipment or part thereto
(other than
a redesign at Buyer’s request), Bombardier shall deliver to Buyer new and
usable Spare Parts in substitution for such obsolete or unusable
Spare
Parts upon return of such Spare Parts to Bombardier by
Buyer. Bombardier shall credit Buyer’s account with Bombardier
with the price paid by Buyer for any such obsolete or unusable
Spare Part
and shall invoice Buyer for the purchase price of any such substitute
Spare Part delivered to Buyer.
|
|
2.8.2
|
Delivery
of Obsolete Spare Parts and Substitutes
|
|
|
Obsolete
or unusable Spare Parts returned by Buyer pursuant to Annex A Article
2.8.1. shall be delivered to Bombardier at its plant in Quebec,
or such
other destination as Bombardier may reasonably designate. Spare
Parts
substituted for such returned obsolete or unusable Spare Parts
shall be
delivered to Buyer from Bombardier’s plant in Quebec, or such other
Bombardier shipping point as Bombardier may reasonably
designate. Bombardier shall pay the freight charges for the
shipment from Buyer to Bombardier of any such obsolete or unusable
Spare
Part and for the shipment from Bombardier to Buyer of any such
substitute
Spare Part.
|
|
2.8.3
|
Obligation
to Repurchase Surplus Provisioning Items
|
|
|
During
a period commencing one (1) year after the Delivery Date of the
first
Aircraft, and ending five (5) years after such Delivery Date, Bombardier
shall, upon receipt of Buyer’s written request and subject to the
exceptions in Annex A-1 Article 2.8.4, repurchase unused and undamaged
Provisioning Items which: (i) were recommended by Bombardier as
initial
provisioning for the Aircraft, (ii) were purchased by Buyer from
Bombardier, and (iii) are surplus to Buyer’s needs.
|
|
2.8.4
|
Exceptions
|
|
|
Bombardier
shall not be obligated under Annex A-1 Article 2.8.3 to repurchase
any of
the following: (i) quantities of Provisioning Items in excess of
those
quantities recommended by Bombardier in its Recommended Spare Parts
List
(“RSPL”) for the Aircraft, (ii) Power Plant Parts, QEC Kits, standard
hardware, bulk and raw materials, ground support equipment and
special
tools, (iii) Provisioning Items which have [***] a result
of (a)
Buyer’s modification of the Aircraft or (b) design improvement by the
Aircraft manufacturer or the vendor (other than Provisioning Items
which
have become obsolete because of a defect in design if such defect
has not
been remedied by an offer by Bombardier or the vendor to provide
no charge
retrofit kits or replacement parts which correct such defect), [***] and (iv)
Provisioning Items which become surplus as a result of a change
in Buyer’s
operating parameters provided to Bombardier pursuant to Annex A
Article
2.7, which were the basis of Bombardier’s initial provisioning
recommendations for the Aircraft.
|
|
2.8.5
|
Notification
and Format
|
|
|
Buyer
shall notify Bombardier, in writing, when Buyer desires to return
Provisioning Items which Buyer’s review indicates are eligible for
repurchase by Bombardier under the provisions of Annex A-1 Article
2.8.3. Buyer’s notification shall include a detailed summary,
in part number sequence, of the Provisioning Items Buyer desires
to
return. Such summary shall be in the form of listings as may be
mutually agreed between Bombardier and Buyer, and shall include
part
number, nomenclature, purchase order number, purchase order date
and
quantity to be returned.
|
|
|
Within
five (5) business days after receipt of Buyer’s notification Bombardier
shall advise Buyer, in writing, when Bombardier’s review of such summary
from Buyer will be completed.
|
|
2.8.6
|
Review
and Acceptance by Bombardier
|
|
|
Upon
completion of Bombardier’s review of any detailed summary submitted by
Buyer pursuant to Annex A-1 Article 2.8.5., Bombardier shall issue
to
Buyer a Material Return Authorization notice (“MRA”) for those
Provisioning Items Bombardier agrees are eligible for repurchase
in
accordance with Annex A-1 Article 2.8.3. Bombardier will advise
Buyer of the reason that any Provisioning Items included in Buyer’s
detailed summary are not eligible for return. The MRA notice
shall state the date by which Provisioning Items listed in the
MRA notice
must be redelivered to Bombardier and Buyer shall arrange for shipment
of
such Provisioning Items accordingly.
|
|
2.8.7
|
Price
and Payment
|
|
|
The
price of each Provisioning Item repurchased by Bombardier pursuant
to
Annex A-1 Article 2.8.6 will be the original invoice price thereof,
escalated in accordance with the Escalation Formula. Bombardier
shall pay
the repurchase price by issuing a credit memorandum in favour of
Buyer
which may be applied against amounts due Bombardier for the purchase
of
Spare Parts and services.
|
|
2.8.8
|
Return
of Surplus Provisioning Items
|
|
|
Provisioning
Items repurchased by Bombardier pursuant to Annex A-1 Article 2.8.6
shall
be delivered to Bombardier Free Carrier (Incoterms), at its plant
in
Ontario or Quebec, or other such destination as Bombardier may
reasonably
designate.
|
|
2.8.9
|
Obsolete
Spare Parts and Surplus Provisioning Items - Title and Risk of
Loss
|
|
|
Title
to and risk of loss of any obsolete or unusable Spare Parts returned
to
Bombardier pursuant to Annex A-1 Article 2.8.8 shall pass to Bombardier
upon delivery thereof to Bombardier. Risk of loss of any Spare
Parts
substituted for an obsolete or unusable Spare Part pursuant to
Annex A-1
Article 2.8.1 shall pass to Buyer upon delivery thereof to Buyer.
Title to
and risk of loss of any Provisioning Items repurchased by Bombardier
pursuant to Annex A-1 Article 2.8.3 shall pass to Bombardier upon
delivery
thereof to Bombardier.
|
|
|
With
respect to the obsolete or unusable Spare Parts which may be returned
to
Bombardier and the Spare Parts substituted therefore, pursuant
to Annex
A-1 Article 2.8.1, and the Provisioning Items which may be repurchased
by
Bombardier, pursuant to Annex A-1 Article 2.8.3, the party which
has the
risk of loss of any such Spare Part or Provisioning Item shall
have the
responsibility of providing any insurance coverage thereon desired
by such
party.
|
|
2.9
|
Procedure
for Ordering Spare Parts
|
|
|
Orders
for Spare Parts may be placed by Buyer to Bombardier by any method
of
order placement (including but not limited to SITA, ARINC, telecopier,
letter, facsimile, telephone or hard copy purchase order).
|
|
2.9.1
|
Requirements
|
|
|
Orders
shall include at a minimum order number, part number, nomenclature,
quantity, delivery schedule requested, shipping instructions and
Bombardier’s price, if available. Buyer agrees that orders
placed with Bombardier shall conform to the requirements and procedures
contained in ATA Specification 2000, as applicable to Buyer.
|
|
2.10.2
|
Processing
of Orders
|
|
|
Upon
acceptance of any Order, unless otherwise directed by Buyer, Bombardier
shall, if the Spare Parts are in stock, proceed [***]to prepare
the Spare
Parts for shipment to Buyer. If Bombardier does not have the
Spare Parts in stock, Bombardier shall proceed to acquire or manufacture
the Spare Parts. Purchase order status and actions related to
the shipment of Spare Parts shall be generally consistent with
the
provisions of the World Airline Suppliers Guide [***], as applicable
to
Buyer.
|
|
2.10.3
|
Changes
|
|
|
Bombardier
reserves the right, without Buyer’s consent, to make any necessary
corrections or changes in the design, part number and nomenclature
of
Spare Parts covered by an Order, to substitute Spare Parts and
to adjust
prices accordingly, provided that interchangeability is not affected
and
the unit price is not increased by more than ten percent
(10%). Bombardier shall promptly give Buyer written Notice of
corrections, changes, substitutions and consequent price
adjustments. Corrections, changes, substitutions and price
adjustments which affect interchangeability or exceed the price
limitations set forth above may be made only with Buyer’s consent as
documented by written Notice (as provided in Article 16), which
consent
shall conclusively be deemed to have been given unless Buyer gives
Bombardier written notice of objection within fifteen (15) business
days
after receipt of Bombardier’s Notice. In case of any objection,
the affected Spare Part will be deemed to be deleted from Buyer’s Order.
|
|
2.10
|
Packing
|
|
|
All
Spare Parts ordered shall receive standard commercial packing suitable
for
export shipment via air freight. Such standard packing will generally
be
to ATA 300 standards as amended from time to time. All AOG orders
will be
handled, processed, packed and shipped separately.
|
|
2.11
|
Packing
List
|
|
|
Bombardier
shall insert in each shipment a packing list/release note itemized
to
show:
|
|
(i)
|
the
contents of the shipment;
|
|
(ii)
|
[***]
|
|
(iii)
|
the
approved signature of Bombardier’s TC authority attesting to the
airworthiness of the Spare Parts [***]; and
|
|
(iv)
|
value
of the shipment for customs clearance if required.
|
|
2.12
|
Container
Marks
|
|
|
Upon
Buyer’s request each container shall be marked with shipping marks as
specified on the Order. In addition Bombardier shall, upon
request, include in the markings: gross weight and cubic
measurements.
|
|
2.13
|
Delivery,
Title and Risk of Loss
|
|
2.13.1
|
Delivery
Point
|
|
|
Spare
Parts shall be delivered to Buyer in one of the following manners
at
Bombardier’s sole option:
|
|
|
(i)
|
Free
Carrier (Incoterms 2000) Bombardier’s plant in Quebec, Canada; or
|
|
|
(ii)
|
Free
Carrier (Incoterms 2000) other Bombardier depots or shipping points;
or
|
|
|
(iii)
|
Free
Carrier (Incoterms 2000) vendor’s or subcontractor’s plant.
|
|
|
2.13.2
Delivery Time
|
|
|
Bombardier
will [***]reasonable
efforts to ship to Buyer any and all Bombardier Parts [***] as follows:
|
|
|
a)
|
AOG
Orders
|
|
|
Ship
AOG Orders within four (4) hours of receipt of Order. Buyer’s affected
Aircraft serial number shall be required on AOG Orders;
|
|
|
b)
|
Critical
Orders (A1)
|
|
|
Ship
critical Orders within twenty-four (24) hours of order receipt;
|
|
|
(c)
|
Routine
Orders (A2)
|
|
|
Ship
routine stock item Orders to published lead times or to Buyer’s reasonably
requested date, whichever occurs sooner after receipt of
Order. Shipment of non-stock items shall be in accordance with
quoted lead times or as agreed to with Buyer;
|
|
|
d)
|
Initial
Provisioning Orders
|
|
|
Prior
to the Delivery Date of the first Aircraft or as may be mutually
agreed
upon with Buyer; and
|
|
|
e.)
|
Other
Orders
|
|
|
Shipment
of stock items shall be approximately thirty (30) calendar days
after
Bombardier’s receipt of Buyer’s Order. Shipment of non-stock
items shall be in accordance with quoted lead times or lead times
published in the then current Spare Parts Price Catalogue or provisioning
data.
|
|
2.14
|
Collect
Shipments
|
|
|
Where
collect shipments are not deemed practicable by Bombardier, charges
for
shipment, insurance, prepaid freight charges and all other costs
paid by
Bombardier shall be paid by Buyer promptly upon presentation to
Buyer of
invoices covering the same.
|
|
2.15
|
Freight
Forwarder
|
|
|
If
Buyer elects to use the services of a freight forwarder for the
onward
movement of Spare Parts, Buyer agrees to release Bombardier from
and
indemnify it for any liability for any fines or seizures of Spare
Parts
imposed under any governmental Goods in Transit regulations. Any
such
fines levied against Bombardier will be invoiced to Buyer and any
Spare
Parts conforming to Buyer’s Order seized under such regulations will be
deemed to be received, inspected, and accepted by Buyer at the
time of
seizure. [***]
|
|
2.16
|
Reimbursement
of Expenses
|
|
|
If
Bombardier gives Buyer written notice that an Order is ready for
shipment
and shipment is delayed more than thirty (30) days at Buyer’s request or
without Bombardier’s fault or responsibility, Buyer shall promptly
reimburse Bombardier upon demand for all costs and expenses, including
but
not limited to reasonable amounts for storage, handling, insurance
and
taxes, incurred by Bombardier as a result of such delay.
|
|
2.17
|
Title
and Risk of Loss
|
|
|
Property
and title to the Spare Parts will pass to Buyer upon payment for
the Spare
Parts in full. Until payment in full for Spare Parts, (a) title
to them
will not pass to Buyer, and (b) Bombardier maintains a purchase
money
security interest in them. Risk of loss of the Spare Parts will
pass to
the Buyer upon delivery by Bombardier. With respect to Spare Parts
rejected by Buyer pursuant to Annex A-1 Article 2.19, risk of loss
shall
remain with Buyer until such Spare Parts are re-delivered to Bombardier.
|
|
|
Bombardier
agrees to notify Buyer when material is shipped and shall provide
carrier’s reference information (i.e., waybill number).
|
|
2.18
|
Inspection
and Acceptance
|
|
|
All
Spare Parts shall be subject to inspection by Buyer at destination.
Use of
Spare Parts or failure of Buyer to give notice of rejection within
thirty
(30) days after receipt shall constitute acceptance. Acceptance
shall be
final and Buyer waives the right to revoke acceptance for any reason,
whether or not known to Buyer at the time of acceptance. Buyer’s remedies
for defects discovered before acceptance are exclusively provided
for in
Annex A-1 Article 2.19 herein.
|
|
2.19
|
Rejection
|
|
|
Any
notice of rejection referred to in Annex A-1 Article 2.18 shall
specify
the reasons for rejection. If Bombardier concurs with a rejection,
Bombardier shall, at its option, correct, repair or replace the
rejected
Spare Parts. Buyer shall, upon receipt of Bombardier’s written
instructions and Material Return Authorization (“MRA”) number, return the
rejected Spare Parts to Bombardier at its specified plant, or other
destination as may be mutually agreeable. The return of the
rejected Spare Parts to Bombardier and the return or delivery of
a
corrected or repaired rejected Spare Part or any replacement for
any such
Spare Part to Buyer shall be at Bombardier’s expense. Any
corrected, repaired or replacement Spare Parts shall be subject
to the
provisions of this Agreement.
|
|
2.20
|
Payment
|
|
|
Except
as provided in Annex A-1 Article 2.21 below, payment terms shall
be net
thirty (30) calendar days of [***] invoice
date. Any overdue amount shall bear interest from the due date
until actual payment is received by Bombardier at an annual rate
of
interest equal to the U.S. prime interest rate as established from
time to
time by Chase Manhattan, plus two percent (2%) calculated and compounded
monthly. [***]
|
|
2.21
|
Payment
for Provisioning Items
|
|
|
Payment
for Provisioning Items shall be made by Buyer as follows:
|
|
a)
|
a
deposit of [***] of the total price of the Provisioning Items as
selected
by Buyer, upon signature of the spares provisioning document placement
by
of the Provisioning Items Order with Bombardier; and
|
|
b)
|
the
balance of the total price of Provisioning Items upon their delivery.
|
|
2.22
|
[***]
|
|
2.23
|
Regulations
|
|
|
Buyer
shall comply with all applicable monetary and exchange control
regulations
and shall obtain any necessary authority from the governmental
agencies
administering such regulations to enable Buyer to make payments
at the
time and place and in the manner specified herein.
|
|
2.24
|
Warranty
|
|
|
The
warranty applicable to Spare Parts is set forth in Annex B-1 hereto.
|
|
2.25
|
Cancellation
of Orders
|
|
|
Except
as otherwise may apply to initial provisioning, if Buyer cancels
an Order,
Bombardier, at its option, shall be entitled to recover, as liquidated
damages, an amount based upon the following parameters:
|
|
a)
|
if
work accomplished on the Order has been limited to Bombardier Spares
Department, or the part has been identified as “shelf stock” in the Spare
Parts Price Catalogue, no cancellation charges shall be made;
|
|
b)
|
if
production planning has been completed on the Order and shop orders
have
been written, but no shop time or material charges have been made
against
the Order, the cancellation charge shall be ten percent (10%) of
the
price;
|
|
c)
|
if
shop time or material charges have been made against the Order,
the
cancellation charge shall be based on the cost of such time and
materials,
plus overhead; and
|
|
d)
|
if
the Spare Parts covered by the Order can be absorbed into Bombardier’s
inventory without increasing Bombardier’s normal maximum stock level, no
cancellation charges shall be made.
|
|
2.26
|
Lease
|
|
|
Bombardier
shall select and make available certain insurance parts for lease,
subject
to availability and Buyer agreeing to the terms and conditions
as set out
in Bombardier’s standard Master Component Lease Agreement.
|
|
2.27
|
Additional
Terms and Conditions
|
|
|
Bombardier’s
conditions of sale are deemed to incorporate the terms and conditions
stated herein and [***].
|
|
|
ARTICLE
3 - TRAINING
|
|
3.1
|
General
Terms
|
|
3.1.1
|
The
objective of the training programs (the “Programs”) described in this
Agreement is to familiarize and assist Buyer’s personnel in the
introduction, operation, and maintenance of the Aircraft.
|
|
3.1.2
|
Bombardier
shall offer the Programs to Buyer in the English language, at Bombardier’s
training facility [***] The Programs
shall be
completed prior to the Delivery Date of the last Aircraft purchased
herein.
|
|
3.1.3
|
Buyer
shall be responsible for all travel and living expenses (including
local
transportation) of Buyer’s personnel incurred in connection with the
Programs.
|
|
3.1.4
|
The
Programs shall be designed to reflect the model and/or configuration
of
the Aircraft and may include differences training to identify such
configuration or model. Manuals or other training material which
are
provided during the Programs exclude revision service, except as
otherwise
provided in this Annex A-1.
|
|
3.1.5
|
The
Programs are designed for candidates who meet the following minimum
prerequisites:
|
|
|
Pilots
|
|
|
(a)
|
hold
airplane multi-engine rating;
|
|
|
(b)
|
have
recent multi-crew experience;
|
|
|
(c)
|
hold
valid instrument flight rating;
|
|
|
(d)
|
hold
valid medical certificate;
|
|
|
(e)
|
have
a functional comprehension of the English language;
|
|
|
(f)
|
captains
hold current and valid ATP license or equivalent (minimum of 3,000
hours
recommended); and
|
|
|
(g)
|
first
officers hold current and valid commercial license or equivalent
(minimum
of 1,500 hours recommended).
|
|
|
Flight
Attendants
|
|
|
(a)
|
qualified
flight attendant with previous experience; or
|
|
|
(b)
|
hold
recent flight attendant training course certificate including fire
fighting training, first aid training, in-flight emergency training,
safety procedures training and crew communications training; and
|
|
|
(c)
|
have
a functional comprehension of the English language.
|
|
|
Flight
Dispatchers
|
|
|
(a)
|
qualified
flight dispatcher with previous experience; or
|
|
|
(b)
|
familiar
with aircraft performance, weight and balance and flight planning;
and
|
|
|
(c)
|
have
a functional comprehension of the English language.
|
|
|
Maintenance
Technicians
|
|
|
(a)
|
hold
a valid AME license or equivalent, or have sufficient knowledge
and
experience (minimum 3 years experience recommended);
|
|
|
(b)
|
have
experience with digital communications, glass cockpit and built-in
test
equipment; and
|
|
|
(c)
|
have
a functional comprehension of the English language.
|
|
3.1.6
|
Prior
to commencement of the Programs, upgrade training can be arranged
for
Buyer’s personnel who do not meet the above minimum
requirements. Any such upgrade training shall be provided upon
terms and conditions to be mutually agreed.
|
|
3.1.7
|
Should
any of Buyer’s personnel who do not meet the above minimum requirements
encounter problems during their training, any additional training
or costs
(such as costs for interpreters) shall be borne by Buyer.
|
|
3.1.8
|
A
training conference shall be held, as soon as practicable, to establish
the content and schedule of the Programs.
|
|
3.2
|
Flight
Crew Training Program
|
|
3.2.1
|
Ground
School and Simulator Training
|
|
|
[***],
Bombardier will
provide for each delivered Aircraft at such dates as are mutually
agreed,
FAA approved transition training for [***] of Buyer’s crews
[***] who meet
the
minimum entry requirement provided in the applicable training
manual. Each course shall consist of up to eighty (80) hours of
classroom instruction which may include part task trainer, Computer
Based
Training (CBT), and/or Flight Training Device (FTD). [***] Bombardier
shall provide a simulator instructor for [***]missions
for each crew
trained on Bombardier's designated simulator in Montreal; each
mission
shall consist of four (4) hours in the simulator and required
briefing/debriefing sessions. Bombardier shall furnish each of
Buyer’s
pilots attending the course with [***].
|
|
3.2.2
|
In-flight
Training
|
|
|
Should
Buyer require on-Aircraft flight training (in addition to simulator
training), such training shall be conducted on Buyer’s Aircraft after the
Delivery Date, for four hours each for up to a maximum of of Buyer’s
pilots. Bombardier shall provide an instructor pilot at no
additional charge. Buyer shall be responsible for the cost of fuel,
oil,
landing fees, taxes, insurance, maintenance and any other associated
operating expenses required for the Aircraft during such flight
training. All such training shall take place at Bombardier’s
facilities in Montreal, Canada. During such flights, no passengers
shall
be permitted aboard the Aircraft.
|
|
3.2.3
|
Flight
Attendant Course
|
|
|
Subject
to the terms and conditions [***], Bombardier
will
provide Buyer with one (1) flight attendant training course for
up to
[***] of Buyer’s
qualified personnel. This course shall present general
information on the Aircraft and detailed information on the operation
of
the passenger safety and emergency equipment. Buyer shall
assist Bombardier in the development of the Flight Attendant training
guide to incorporate Buyer’s specific equipment and procedures.
|
|
3.2.4
|
Recurrent
Pilot Training
|
|
|
Bombardier
shall, upon Buyer’s request, provide a proposal for a TC or FAA approved
recurrent pilot training course for type rated pilots, customized
in
content to meet the recurrent training requirements of Buyer’s pilots.
|
|
3.2.5
|
Course
Training Material
|
|
|
Bombardier
shall, upon Buyer’s request, present a proposal to provide training
materials used to conduct the Flight Crew Ground Training course.
|
|
3.3
|
Maintenance
Training
|
|
3.3.1
|
Airframe
and Power Plant Systems Maintenance Course
|
|
|
Subject
to the terms and conditions [***], , train
up to[***] of Buyer’s qualified
personnel [***]in an
airframe and powerplant systems maintenance course. This
training shall emphasize detailed systems description, operation,
and
routine line maintenance practices. The course material shall
be principally mechanical with electrical and avionics information
for
overall systems comprehension. The course duration shall be for
a maximum of twenty-five (25) working days. In the event a
portion of the above training takes place by mutual agreement at
Buyer’s
designated facility, Buyer shall be responsible for all reasonable
travel
and living expenses of Bombardier’s instructor personnel.
|
|
3.3.2
|
Electrical
and Avionics Systems Maintenance Course
|
|
|
Subject
to the terms and conditions [***], Bombardier
shall
provide an electrical and avionics systems maintenance course for
[***]. This
course shall emphasize detailed systems description, operation
and routine
line maintenance practices. The course material shall be
principally electrical and avionics but shall include mechanical
information for overall systems comprehension. The course duration
shall
be for a maximum of twenty-five (25) working days. In the event
a portion of the above training takes place by mutual agreement
at Buyer’s
designated facility, Buyer shall be responsible for all reasonable
travel
and living expenses of Bombardier’s instructor personnel.
|
|
3.3.3
|
Specialist
Courses
|
|
|
At
Buyer’s request, Bombardier shall make a proposal for specialist courses
which will be derived from Bombardier’s standard courses detailed herein.
|
|
3.3.4
|
Recurrent
Training
|
|
|
At
Buyer’s request, Bombardier shall make a proposal for a Regulatory
Authority approved training plan for maintenance recurrent training.
|
|
3.3.5
|
Vendor
Training
|
|
|
At
Buyer’s request, Bombardier shall assist Buyer to obtain vendor
maintenance training.
|
|
3.3.6
|
Course
Training Material
|
|
|
Bombardier,
upon Buyer’s request, shall present a proposal to provide training
materials (without revision service) used to conduct Bombardier’s standard
maintenance training.
|
|
3.4
|
Insurance
|
|
3.4.1
|
Buyer
shall at all times[***] secure and
maintain
in effect, at its own expense, insurance policies covering the
Aircraft
including without limitation:
|
|
|
a)
|
liability
insurance covering public liability, passenger, crew, property
and cargo
damage, including war and [***] in amounts
not less than [***] for any single occurrence;
|
|
|
b)
|
all
risk aircraft hull and [***] insurance
for an
amount which is not less than its then [***].
|
|
3.4.2
|
The
liability policy shall name Bombardier (and its [***]) as additional
insured. The hull policy shall contain a waiver of subrogation
in favour of Bombardier (and its [***]). All
insurance policies shall provide for payments despite any
misrepresentations or breach of warranty by any person (other than
the
assured receiving payments) and shall not be subject to any offset
by any
other insurance carried by Bombardier except that Buyer shall not
be
required to provide insurance with respect to the manufacturing,
repair
and maintenance activities of Bombardier (and of its affiliates)
and the
related potential liability (product or otherwise) arising therefrom[***]
|
|
ARTICLE
4 - TECHNICAL DATA
|
|
4.1
|
Technical
Data
|
|
4.1.1
|
Manuals
and Other Technical Data
|
|
|
Bombardier
will provide to Buyer, [***] technical
data
(collectively, “Technical Data”) as described in Attachment A, comprising
information on items manufactured according to Bombardier’s detailed
design or as may otherwise be required to reflect Aircraft instrumentation
as mutually agreed. [***]
|
|
4.1.2
|
Additional
Technical Data
|
|
|
Any
additional Manual(s) and associated revisions purchased over and
above
those listed herein, shall be subject to the terms and conditions
specified in Bombardier’s “Manual Status and Price List”.
|
|
4.2
|
Shipment
|
|
|
All
Technical Data provided hereunder shall be delivered to Buyer Free
Carrier
(Incoterms) Bombardier’s designated facilities and at a time to be
mutually agreed to between Buyer and Bombardier.
|
|
|
Buyer’s
shipping address and contact information is as follows:
|
|
|
Name:
|
|
|
Address:
|
|
|
Contact:
|
|
|
Phone
#:
|
|
|
Fax
#:
|
|
|
Shipping
Account Number:
|
|
Carrier:
|
|
|
Account
Number:
|
|
4.3
|
Proprietary
Technical Data
|
|
|
It
is understood and Buyer acknowledges that the Technical Data and
any other
technical data marked as confidential provided herein is proprietary
to
Bombardier and/or its vendors. All rights to copyright belong to
Bombardier and/or its vendors and the Technical Data shall be kept
confidential by Buyer. Buyer agrees to use the Technical Data solely
to
maintain, operate, overhaul or repair the Aircraft or to make
installation, repair, maintenance or alteration thereto as provided
in
this Agreement or as otherwise allowed by Bombardier and/or the
vendors.
|
|
|
Technical
Data shall not be disclosed to third parties or used by Buyer or
furnished
by Buyer for the design or manufacture of any Aircraft or Spare
Parts
including Bombardier Parts or items of equipment, except when manufacture
or redesign is permitted under the provisions of Annex A-1 Article
2.4.2
hereof or in compliance with Article 22 this Agreement and then
only to
the extent and for the purposes expressly permitted therein, and
provided
further the recipient shall enter into Standard Form Non-Disclosure
and
Data Licensing Agreement.
|
|
4.4
|
Revision
Service
|
|
|
4.4.1
|
Revisions
to the Technical Data to reflect the Aircraft at Delivery Date
shall be
provided to Buyer within six (6) months following the Delivery
Date of
each of the Aircraft, respectively.
|
|
|
4.4.2
|
Bombardier
shall incorporate in the applicable documents all applicable Bombardier
originated Service Bulletins, any Bombardier originated changes
and
Airworthiness Directives[***]The manuals
shall then
contain both the original and revised configuration.
|
|
4.5
|
Passenger
Information Cards
|
|
|
Bombardier
will provide one (1) reproducible master for the preparation of
passenger
information cards. For an additional cost, subject to negotiation,
Bombardier will provide, in Bombardier’s standard format, laminated
passenger information cards in quantities requested.
|
|
4.6
|
Vendor
Manuals
|
|
|
All
vendor manuals and revisions will be shipped directly by vendors
to Buyer.
|
|
|
ATTACHMENT
A
|
|
AIRLINE:
|
MEDIUM
|
|||||
|
Canadair
Regional Jet
Series
900
|
“Supplied
as "Fly-away" with each Aircraft
|
CSP
No.
|
Total
Quantity
|
Qty
Paper
|
Qty
CD
|
SGML
|
|
PUBLICATION
TITLE
PUBLICATION
TITLE
|
||||||
|
Airplane
Flight Manual (AFM)
|
1
|
B-012
|
*
|
X
|
X
|
|
|
Flight
Crew Operating Manual (FCOM)
|
1
|
B-013
|
*
|
X
|
X
|
|
|
Quick
Reference Handbook (QRH)
|
1
|
B-022
|
*
|
X
|
X
|
|
|
Pilot's
Checklist
|
1
|
B-017
|
*
|
X
|
X
|
|
|
Weight
and Balance Manual
|
1
|
B-041
|
*
|
X
|
||
|
Flight
Planning and Cruise Control Manual – (Imperial EP Version)
|
C-118
|
*
|
Opt
|
X
|
||
|
Flight
Planning and Cruise Control Manual – (Metric)
|
C-119
|
*
|
Opt
|
X
|
||
|
Airport
Planning Manual (APM)
|
C-020
|
*
|
X
|
|||
|
Crash
Crew Chart
|
B-072
|
*
|
X
|
X
|
||
|
Dispatch
Deviation Guide (DDG) (FAA)
|
BC-109
|
*
|
X
|
|||
|
Master
Minimum Equipment List (MMEL) (FAA)
|
ABC-045
|
*
|
X
|
|||
|
Maintenance
Facilities and Equipment Planning Manual (MFEPM)
|
C-035
|
*
|
X
|
|||
|
Maintenance
Planning Manual (MPM) (Refer to Note 1)
|
B-054
|
*
|
X
|
|||
|
Maintenance
Requirements Manual (MRM)
|
B-053
|
*
|
X
|
|||
|
Maintenance
Task Cards
|
B-089
|
*
|
X
|
|||
|
Aircraft
Maintenance Manual - Part 1 and 2 (AMM)
|
B-001A/B
|
*
|
||||
|
Power
Plant Build-up Manual (PPBM)
|
B-002
|
*
|
X
|
|||
|
Power
Plant Ground Run Manual
|
B-05*
|
*
|
X
|
|||
|
Wiring
Diagram Manual (WDM)
|
C-003
|
*
|
||||
|
Illustrated
Parts Catalogue (IPC)
|
B-00*
|
*
|
||||
|
Illustrated
Tool & Equipment Manual (ITEM)
|
B-007
|
*
|
X
|
|||
|
Structural
Repair Manual (SRM)
|
B-008
|
*
|
X
|
|||
|
Fault
Isolation Manual (FIM)
|
B-009
|
*
|
||||
|
Non-Destructive
Test Manual (NDT)
|
B-010
|
*
|
X
|
|||
|
ATA
Chapter Breakdown
|
B-0*4
|
*
|
X
|
X
|
||
|
AMTOSS
& User Guide
|
B-105
|
*
|
X
|
X
|
||
|
Master
Index of Technical Publications
|
B-011
|
*
|
X
|
X
|
X
|
|
|
Component
Maintenance Manual (CMM)
|
BC-033
|
*
|
X
|
|||
|
Refuel/Defuel
Handbook
|
B-021
|
*
|
X
|
|||
|
Service
Bulletins/Service Letters
|
*
|
X
|
X
|
|||
|
X=
Not
Available
|
||||||
|
|
*
As provided in Article 4.1.1 of Annex X-0
|
|
|
XXXXX
X-0
|
|
|
WARRANTY
AND SERVICE LIFE POLICY
|
|
ARTICLE
1 - WARRANTY
|
The
following warranty is that to which reference is made in Article 3 of the
Agreement and Article 2.25 of Annex A-1 of the Agreement.
|
1.1
|
Warranty
|
|
1.1.1
|
Subject
to Annex B-1 Articles 1.9, 1.10, and 2.0, Bombardier warrants that,
at the
date of delivery of the Aircraft:
|
|
a)
|
the
Aircraft shall conform to the Specification, except that any matter
stated
in the Specification as type characteristics, estimates or approximations
is excluded from this Warranty;
|
|
b)
|
the
Aircraft shall be free from defects caused by the failure of Bombardier
to
install a Vendor Part or Power Plant Part in accordance with reasonable
instructions of the vendor;
|
|
|
c)
|
the
Bombardier Parts installed on the Aircraft at delivery shall be
free from
defects in material or workmanship;
|
|
d)
|
the
Bombardier Parts installed on the Aircraft at delivery shall be
free from
defects in design, having regard to the state of the art as of
the date of
such design.
|
|
1.1.2
|
Subject
to Annex B-1 Articles 1.2.1(c), 1.9, 1.10 and 2.0, the warranty
set forth
in Annex B-1 Article 1.1.1(c) and (d) above shall[***].
|
|
1.1.3
|
Bombardier
further warrants that, at the time of delivery, the Technical Data
shall
be free from error.
|
|
1.2
|
Warranty
Period
|
|
1.2.1
|
The
warranty set forth in Annex B-1 Article 1.1 shall remain in effect
for any
defect covered by the Warranty (a “Defect”) becoming apparent during the
following periods (individually, the “Warranty Period”):
|
|
|
a)
|
for
failure to conform to the Specification and in the installation
referred
to in Annex B-1 Article 1.1.1(a) and 1.1.1(b), forty-eight (48)
months
from the Delivery Date;
|
|
|
b)
|
for
those Defects in material or workmanship or design (having regard
to the
state of the art at the time of such design) in Bombardier Parts
referred
to in Annex B-1 Article 1.1.1(c) and 1.1.1(d), forty-eight (48)
months
from the Delivery Date;
|
|
|
c)
|
for
those Defects in material or workmanship or design (having regard
to the
state of the art at the time of such design) in Bombardier Parts
referred
to in Annex B-1 Article 1.1.2, [***]; and
|
|
|
d)
|
for
errors in the Technical Data referred to in Annex B-1 Article 1.1.3,
twelve (12) months from the date of delivery of the applicable
Technical
Data.
|
|
1.3
|
Repair,
Replacement or Rework
|
|
|
As
to each matter covered by this warranty, Bombardier’s sole obligation and
liability under this warranty is expressly limited to, at Bombardier’s
election, correction by the repair, replacement or rework of the
defective
part or item of Technical Data. The repaired, replaced or
reworked part or item of Technical Data which is the subject of
the
warranty claim shall then be warranted under the same terms and
conditions
for the then unexpired portion of the Warranty Period. [***]
|
|
|
In
the case of a Defect relating to non-conformance with the Specification,
Bombardier shall correct that Defect in the equipment item or part
in
which the Defect appears, except that Bombardier will not be obligated
to
correct any Defect which has no material adverse effect on the
maintenance, use or operation of the Aircraft.
|
|
1.4
|
Claims
Information
|
|
|
Bombardier’s
obligations hereunder are subject to a warranty claim to be submitted
in
writing to Bombardier’s warranty administrator, which claim shall include
but not be limited to the following information:
|
|
|
a)
|
the
identity of the part or item involved, including the Part number,
serial
number if applicable nomenclature and the quantity claimed to be
defective;
|
|
|
b)
|
the
manufacturer’s serial number of the Aircraft from which the part was
removed;
|
|
|
c)
|
the
date the claimed Defect became apparent to Buyer;
|
|
|
d)
|
the
total flight hours (and cycles if applicable) accrued on the part
at the
time the claimed Defect became apparent to Buyer; and
|
|
|
e)
|
a
description of the claimed Defect and the circumstances pertaining
thereto.
|
|
1.5
|
Warranty
Claim Procedure
|
|
|
In
order to enable a Warranty Claim to be adequately processed, each
claim
shall be addressed as follows:
|
|
a.
|
Buyer
shall [***] send a
written warranty claim notice (the “Warranty Notice”) by facsimile or
e-mail to Bombardier's warranty department within [***] days
following the date that any Defect giving rise to a warranty claim
becomes
apparent to Buyer;
|
|
b.
|
Buyer
shall consult the Supplier Information Manual available on-line
via RACS
website (xxx.xxxx.xxxxxxxxxx.xxx)
for the location to which the Bombardier Part shall be
returned;
|
|
c.
|
If
requested by Bombardier, Buyer shall return the defective part,
as
directed by Bombardier, within a period of fifteen (15) Days following
Bombardier’s request for the return of such part;
and
|
|
d.
|
[***].
|
|
1.6
|
Labour
Reimbursement
|
|
|
For
correction of Defects Bombardier shall establish a reasonable estimate
for
the labour hours required for the repair, replacement or rework
of the
defective Bombardier Part and, if the repair, replacement or rework
is
performed by Buyer, Bombardier shall reimburse Buyer for Bombardier
estimated hours or for Buyer’s actual labour hours, whichever is less, for
the repair, replacement or rework of the defective Bombardier Part
excluding any work necessary to gain access to and to re-install
said
Bombardier Part. Such reimbursement shall be based upon Buyer’s
direct labour rate per man-hour plus burden rate of fifty percent
(50%),
subject to annual review and adjustment of such labour rate as
mutually
agreed; provided, however, that this amount shall not exceed fifty
percent
(50%) of the Bombardier published selling labour rate.
|
|
1.7
|
Approval,
Audit, Transportation and Waiver
|
|
|
All
warranty claims shall be subject to audit and approval by Bombardier.
Bombardier will use reasonable efforts to advise in writing the
disposition of Buyer’s warranty claim within thirty (30) days following
the receipt of the claim and (if requested) return of the defective
Bombardier Part to Bombardier’s designated facility or that Buyer hold
such defective Bombardier Parts while Bombardier completes its
investigation regarding such Bombardier Part, [***] Bombardier
shall notify Buyer of Bombardier’s disposition of each claim.
|
|
|
Buyer
shall pay all costs of transportation of the defective part from
Buyer to
Bombardier, [***]
all
costs of transportation of the repaired, corrected or replacement
parts
back to Buyer.
|
|
1.8
|
Limitations;
Timely Filing
|
|
1.8.1
|
Bombardier
shall be relieved of and shall have no obligation or liability
under this
warranty if:
|
|
|
a)
|
[***]
the
Aircraft was operated with products or parts not specifically approved
by
Bombardier, [***]
|
|
|
b)
|
[***]
the
Aircraft was not operated or maintained in accordance with the
Technical
Data listed in Attachment A of Annex A-1 and the manufacturer’s
documentation furnished to Buyer (including Service Bulletins and
airworthiness directives) [***]
|
|
|
c)
|
[***]
the
Aircraft was not operated under normal airline use [***]
|
|
d)
|
[***]
|
|
18.2
|
[***]
|
|
1.8.3
|
The
warranty does not apply to Buyer Furnished Equipment.
|
|
1.9
|
Normal
Usage
|
|
|
Normal
wear and tear and the need for regular maintenance and overhaul
shall not
constitute a Defect or failure under this warranty.
|
|
1.10
|
Overhaul
of Warranty Parts
|
|
|
Bombardier’s
liability for a Bombardier Part which has a Defect and is overhauled
by
Buyer within the Warranty Period shall be limited only to that
portion of
the labour and material replacement related to the Defect.
|
|
1.11
|
No
Fault Found
|
|
|
In
the event that a Bombardier Part returned under a warranty claim
is
subsequently established to be serviceable then Bombardier shall
be
entitled to charge and recover from Buyer any reasonable costs
incurred by
Bombardier in connection with such warranty claim. Providing, however,
in
the event that repetitive in-service failure occurs on the particular
Bombardier Part which is subsequently identified by Bombardier
on a
repeated basis to be “no fault found”, then Bombardier and Buyer shall
discuss and mutually agree a course of further action to help identify
the
problem. In the event the fault is ultimately confirmed to be a
legitimate warranty claim then the above mentioned costs incurred
by
Bombardier and charged to Buyer shall be waived or, if already
paid,
refunded to Buyer.
|
|
1.12
|
[***]
|
|
|
ARTICLE
2 - VENDOR WARRANTIES
|
|
2.1
|
Warranties
from Vendors
|
|
|
The
provisions of this Annex B-1 apply to Bombardier Parts only. However,
Bombardier has made or shall make reasonable efforts to obtain
favourable
warranties from vendors, with respect to Vendor Parts and Power
Plant
Parts. Except as specifically provided under this Annex B-1 Article
2,
Bombardier shall have no liability or responsibility for any such
Vendor
Parts and Power Plant Parts and the warranties for those Vendor
Parts and
Power Plant Parts shall be the responsibility of the vendor and
a matter
as between Buyer and vendor[***].
|
|
2.2
|
Vendor
Warranty Backstop
|
|
|
For
those Vendor Parts installed on the Aircraft at the Delivery Date
or
subsequently purchased through Bombardier, excluding the Power
Plant or
the Power Plant Parts, in the event the parties agree that a vendor
is in
default in the performance of any material obligation under any
applicable
warranty obtained by Bombardier from such vendor pursuant to Annex
B-1
Article 2.1 above, the warranties and all other terms and conditions
of
Annex B-1 Article 1 shall become applicable as if the Vendor Parts
had
been a Bombardier Part, except that the warranty period shall be
the
Warranty Period as set forth herein or by the vendor’s warranty, whichever
is shorter and all transportation costs associated with the Vendor
Parts
shall be borne by Buyer.
|
|
2.3
|
Bombardier’s
Interface Commitment
|
|
|
In
the event of a dispute in the application of a Vendor Part warranty,
at
Buyer’s request addressed to Bombardier’s warranty administrator,
Bombardier shall, without charge, conduct an investigation and
analysis of
any such dispute resulting from a technical interface problem to
determine, if possible, the cause of the interface problem and
then
recommend feasible corrective action. Buyer shall furnish to
Bombardier all data and information in Buyer’s possession relevant to the
interface problem and shall cooperate with Bombardier in the conduct
of
its investigation and such tests as may be
required. Bombardier, at the conclusion of its investigation,
shall advise Buyer in writing of Bombardier’s opinion as to the cause of
the problem and Bombardier’s recommended corrective action.
|
|
|
ARTICLE
3 - SERVICE LIFE POLICY
|
|
3.1
|
Applicability
|
|
|
The
Service Life Policy (“SLP”) described in this Annex B-1 Article 3 shall
apply if fleet wide and repetitive failures occur in any Covered
Component, which is defined in Annex B-1 Article 3.7.
|
|
3.2
|
Term
|
|
|
Covered
Component
|
Should
such failures occur in any Covered Component within one hundred and forty-four
(144) months following delivery of the Aircraft containing such Covered
Component, Bombardier shall, as promptly as practicable and at its
option;
|
|
a)
|
design
and/or furnish a correction for such failed Covered Component;
or
|
|
|
furnish
a replacement Covered Component (exclusive of standard parts such
as
bearings, bushings, nuts, bolts, consumables and similar low value
items).
|
|
3.3
|
Price
|
|
|
Any
Covered Component which Bombardier is required to furnish under
this SLP
shall be provided for at a price calculated in accordance with
the
following formula:
|
|
|
[***]
|
|
3.4
|
Conditions
and Limitations
|
|
3.4.1
|
The
following general conditions and limitations shall apply to the
SLP:
|
|
|
a)
|
the
transportation cost for the return to Bombardier’s designated facility, if
practicable, of any failed Covered Component, necessary for failure
investigation or redesigning studies shall be borne by Buyer;
|
|
|
b)
|
Bombardier’s
obligations under this SLP are conditional upon the submission
of
reasonable proof acceptable to Bombardier that the failure is covered
hereby;
|
|
|
c)
|
Buyer
shall [***]
report
any failure of a Covered Component in writing to Bombardier’s Warranty
administrator within [***]
days
after such failure becomes evident;
|
|
|
d)
|
the
provisions of Annex B-1 Article 1.9 of the Warranty (except for
subparagraphs (d) and (e) thereof) are incorporated by this reference
and
shall condition Bombardier’s obligations under this SLP with respect to
any Covered Component;
|
|
|
e)
|
Bombardier’s
obligations under this SLP shall not apply to any Aircraft which
has not
been correctly modified in accordance with the specifications or
instructions contained in the relevant Service Bulletins which
are
furnished to Buyer prior to receipt by Bombardier from Buyer of
any notice
of an occurrence which constitutes a failure in a Covered Component,
[***], however,
the
provisions of this subparagraph shall only apply in the event that
[***];
|
f)
this SLP shall not apply to a failure of a Covered Component, if Bombardier
determines that such failure may not reasonably be expected to occur on a
fleet
wide and repetitive basis; and
|
|
g)
|
this
SLP shall not apply to a Covered Component, where the failure results
from
an accident, abuse, misuse, degradation, negligence or wrongful
act or
omission, unauthorized repair or modification adversely affecting
a
Covered Component , impact or foreign object damage, to any Covered
Component.
|
|
3.5
|
Coverage
|
|
|
This
SLP is neither a warranty, performance guarantee nor an agreement
to
modify the Aircraft to conform to new developments in design and
manufacturing art. Bombardier’s obligation is only to provide correction
instructions to correct a Covered Component or furnish replacement
at a
reduced price as provided in this SLP.
|
|
3.6
|
Assignment
|
|
|
Except
as permitted by the terms of the Agreement, Buyer’s rights under this SLP
shall not be assigned, sold, leased, transferred or otherwise alienated
by
contract, operation of law or otherwise, without Bombardier’s prior
written consent. Any unauthorized assignment, sale, lease,
transfer, or other alienation of Buyer’s rights under the SLP shall
immediately void all of Bombardier’s obligations under the SLP.
|
|
3.7
|
Covered
Component
|
|
|
Only
those items or part thereof listed in Attachment A to this Annex
B-1 shall
be deemed to be a Covered Component, and subject to the provisions
of this
SLP.
|
|
ARTICLE
4 - GENERAL
|
|
4.1
|
It
is agreed that Bombardier shall not be obligated to provide to
Buyer any
remedy which is a duplicate of any other remedy which has been
provided to
Buyer under any other part of this Annex B-1.
|
|
ARTICLE
5 - DISCLAIMER
|
|
5.1
|
THIS
ANNEX B-1 AND THE RIGHTS
AND REMEDIES OF BUYER AND THE OBLIGATIONS OF BOMBARDIER HEREUNDER
ARE
SUBJECT TO [***].
|
|
Annex
B-1 - Attachment A
|
COVERED
COMPONENTS
|
|
1.
|
WING
|
|
|
a.
|
Upper
and lower integral xxxxxxxx machined wing planks.
|
|
|
b.
|
Machined
spar, including auxiliary spars.
|
|
|
c.
|
Caps,
webs and stiffeners on fabricated spars.
|
|
|
d.
|
Front
spar to rear spar wing box ribs.
|
|
|
e.
|
Main
landing gear (MLG) machined trunnion rib.
|
|
|
f.
|
MLG
side stay machined attachment fittings.
|
|
|
g.
|
Wing/fuselage
machined attachment fittings.
|
|
|
2.
|
FUSELAGE
|
|
|
a.
|
Window
and windshield frame structure, but excluding the windows and windshield.
Exterior skins, doublers, circumferential frames but excluding
all
systems, fairings, insulation, lining and decorative clips and
brackets.
|
|
|
b.
|
Engine
mount support box structure and machined pylon attachment fittings.
Primary structure frames around body openings for passenger door,
baggage
door, avionics door, flying control access door, APU access door
and
emergency exits.
|
|
|
c.
|
Nose
landing gear well structure, including wheel well walls, ceiling,
pressure
bulkheads and pressure floor structural components at fuselage
wing
cutout.
|
|
|
3.
|
VERTICAL
STABILIZER
|
|
|
a.
|
All
spars.
|
|
|
b.
|
Horizontal
to vertical stabilizer machined attachment fittings.
|
|
|
c.
|
Front
spar to fuselage frame machined attachment fittings.
|
|
|
d.
|
Exterior
skins, ribs, stringers between front and rear spars and machined
closing
rib.
|
|
|
4.
|
HORIZONTAL
STABILIZER
|
|
|
Front
and rear spars and exterior skins, rib and stringers between front
and
rear spars.
|
|
|
[***]
|
April
26,
2007
Pinnacle
Airlines, Inc.
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxxxx,
XX
XXX,
00000
Subject: [***]
Gentlemen,
This
shall constitute the [***]
Letter Agreement” to Purchase Agreement No. PA-0597-B dated April 26, 2007 (the
“Agreement”), between Bombardier Inc. represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines, Inc. (“Buyer”) relating
to the purchase of certain Bombardier Regional Jet Series 900 Aircraft as
more
particularly defined therein.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with
respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meaning as in the Agreement.
|
[***]
8.0
|
Limitation
of
Liability
|
|
|
THIS
LETTER AGREEMENT AND THE RIGHTS AND REMEDIES OF BUYER AND THE OBLIGATIONS
OF BOMBARDIER HEREUNDER ARE SUBJECT TO THE PROVISIONS OF ARTICLE
18.1 AND
18.2 OF THE AGREEMENT.
|
|
11.0
|
[***],
the
provisions of this Letter Agreement are personal to Buyer and shall
not be
assigned or otherwise disposed of by Buyer[***]
|
|
12.0
|
This
Letter Agreement constitutes an integral part of the Agreement
and subject
to the terms and conditions contained therein. Should there be
any
inconsistency between this Letter Agreement and the Agreement with
respect
to the subject matter covered by the terms hereof, this Letter
Agreement
shall prevail.
|
|
13.0
|
In
the event of the termination of
the Agreement, this Letter Agreement shall survive as to any Aircraft
delivered under the
Agreement.
|
REMAINING
PORTION OF THE PAGE INTENTIONALLY LEFT BLANK
Yours
very
truly
Acknowledged and Accepted
BOMBARDIER
INC
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines, Inc.
Regional
Aircraft
/s/[***]
/s/ Xxxxxx X.
Xxxxxxx
Name:
[***] Name:
Xxxxxx
X. Xxxxxxx
Title:
Contracts Account
Executive
Title: President & CEO
/s/
[***]
Name:
[***]
Title: Director,
Contacts
|
APPENDIX
A
|
[***]
Appendix
B
[***]
April
26,
2007
Pinnacle
Airlines, Inc.
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxxxx,XX
XXX,
00000
Subject: [***]
Gentlemen,
This
shall constitute the “[***]
Letter Agreement” to Purchase Agreement No. PA-0597B dated April 26, 2007 (the
“Agreement”), between Bombardier Inc. represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines, Inc. (“Buyer”) relating
to the purchase of certain Bombardier Regional Jet Series 900 Aircraft as
more
particularly defined therein.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with
respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meaning as in the Agreement.
[***] [***]
[***] [***]
6.0
Limitation
THIS
LETTER AGREEMENT AND THE RIGHTS AND REMEDIES OF BUYER AND THE OBLIGATIONS
OF
BOMBARDIER HEREUNDER ARE SUBJECT TO THE PROVISIONS OF ARTICLES 18.1 AND 18.2
OF
THE AGREEMENT.
|
7.0
|
In
the event of the termination of the Agreement, this Letter Agreement
shall
survive such termination with respect to all Aircraft delivered
under the
Agreement.
|
|
8.0
|
[***],
the
provisions of this Letter Agreement are personal to Buyer and shall
not be
assigned or otherwise disposed of by Buyer [***] Any
unauthorized assignment, sale, lease, transfer, or other alienation
of
Buyer's rights under the [***]
as to any Aircraft [***]
shall immediately void all of Bombardier's obligations under the
[***] as
to such Aircraft.
|
|
9.0
|
This
Letter Agreement constitutes an integral part of the Agreement
and is
subject to the terms and conditions contained therein. Should there
be any
inconsistency between this Letter Agreement and the Agreement with
respect
to the subject matter covered by the terms hereof, this Letter
Agreement
shall prevail.
|
REMAINING
PORTION OF THE PAGE INTENTIONALLY LEFT BLANK
Yours
very
truly
Acknowledged and Accepted
BOMBARDIER
INC
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines, Inc.
Regional
Aircraft
/s/
[***] /s/
Xxxxxx
Xxxxxxx
Name:
[***] Name:
Xxxxxx
Xxxxxxx
Title:
Manager,
Contracts
Title: President & CEO
/s/
[***]
Name:
[***]
Title: Director,
Contacts
.
April
26,
2007
Pinnacle
Airlines, Inc.
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxxxx,
XX 00000
Subject: [***]
Gentlemen,
This
shall constitute the “[***]
Letter Agreement” to Purchase Agreement No. PA-0597-B dated April 26, 2007 (the
“Agreement”), between Bombardier Inc. represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines, Inc. (“Buyer”) relating
to the purchase of certain Bombardier Regional Jet Series 900 Aircraft as
more
particularly defined therein.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with
respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meaning as in the Agreement.
|
1.0
|
[***]
|
|
2.0
|
[***]
|
|
3.0
|
[***]
|
4.0
In the event of the termination of the Agreement, this Letter Agreement shall
survive such termination with respect to all Aircraft delivered under the
Agreement.
|
5.0
|
[***],
the
provisions of this Letter Agreement are personal to Buyer and,
shall not
be assigned or otherwise disposed of by Buyer [***]
|
|
6.0
|
This
Letter Agreement constitutes an integral part of the Agreement
and is
subject to the terms and conditions contained therein. Should there
be any
inconsistency between this Letter Agreement and the Agreement with
respect
to the subject matter covered by the terms hereof, this Letter
Agreement
shall prevail.
|
REMAINING
PORTION OF THE PAGE INTENTIONALLY LEFT BLANK
Yours
very
truly
Acknowledged and Accepted
BOMBARDIER
INC
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines, Inc.
Regional
Aircraft
/s/
[***] /s/
Xxxxxx
Xxxxxxx
Name:
[***] Name:
Xxxxxx
Xxxxxxx
Title:
Manager,
Contracts
Title: President & CEO
/s/
[***]
Name: [***]
Title: Director,
Contacts
April
26,
2007
Pinnacle
Airlines, Inc.
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxxxx,
XX
XXX,
00000
Subject: [***]
Gentlemen,
This
shall constitute the “[***] Letter
Agreement” to Purchase Agreement No. PA-0597-B dated April 26, 2007 (the
“Agreement”), between Bombardier Inc. represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines, Inc. (“Buyer”) relating
to the purchase of certain Bombardier Regional Jet Series 900 Aircraft as
more
particularly defined therein.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with
respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meaning as in the Agreement.
[***]
|
2.0
|
[***]
,
the provisions of this Letter Agreement are personal to Buyer and
shall
not be assigned or otherwise disposed of by Buyer [***]
|
|
3.0
|
This
Letter Agreement constitutes an integral part of the Agreement
and is
subject to the terms and conditions contained therein. Should there
be any
inconsistency between this Letter Agreement and the Agreement with
respect
to the subject matter covered by the terms hereof, this Letter
Agreement
shall prevail.
|
REMAINING
PORTION OF THE PAGE INTENTIONALLY LEFT BLANK
Yours
very
truly
Acknowledged and Accepted
BOMBARDIER
INC
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines, Inc.
Regional
Aircraft
/s/
[***]
/s/
Xxxxxx
Xxxxxxx
Name:
[***] Name:
Xxxxxx
Xxxxxxx
Title:
Manager,
Contracts
Title: President & CEO
/s/
[***]
Name: [***]
Title: Director,
Contacts
April
26,
2007
Pinnacle
Airlines, Inc.
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxxxx,
XX
XXX,
00000
Subject: Tax
Issue
Gentlemen,
This
shall constitute the “Tax Issues Letter Agreement” to Purchase Agreement No.
PA-0597-B dated April 26, 2007 (the “Agreement”), between Bombardier Inc.
represented by Bombardier Aerospace, Regional Aircraft (“Bombardier”) and
Pinnacle Airlines, Inc. (“Buyer”) relating to the purchase of certain Bombardier
Regional Jet Series 900 Aircraft as more particularly defined
therein.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with
respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meaning as in the Agreement.
1.0
[***]
|
2.0
|
[***]
|
|
3.0
|
[***]
|
|
4.0
|
In
the event of the termination of the Agreement, this Letter Agreement
shall
survive such termination with respect to all Aircraft delivered
under the
Agreement.
|
|
5.0
|
[***],
the
provisions of this Letter Agreement are personal to Buyer and shall
not be
assigned or otherwise disposed of by Buyer with[***]
|
|
6.0
|
This
Letter Agreement constitutes an integral part of the Agreement
and is
subject to the terms and conditions contained therein. Should there
be any
inconsistency between this Letter Agreement and the Agreement with
respect
to the subject matter covered by the terms hereof, this Letter
Agreement
shall prevail.
|
REMAINING
PORTION OF THE PAGE INTENTIONALLY LEFT BLANK
Yours
very
truly
Acknowledged and Accepted
BOMBARDIER
INC
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines, Inc.
Regional
Aircraft
/s/
[***]
/s/ Xxxxxx
Xxxxxxx
Name:
[***] Name:
Xxxxxx
Xxxxxxx
Title:
Manager,
Contracts
Title: President & CEO
/s/
[***]
Name: [***]
Title: Director,
Contacts
April
26,
2007
Pinnacle
Airlines, Inc.
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxxxx,
XX 00000
Subject: Credit
Memorandum
Gentlemen,
This
shall constitute the “Credit Memorandum Letter Agreement” to Purchase Agreement
No. PA-0597-B dated April 26, 2007 (the “Agreement”), between Bombardier Inc.
represented by Bombardier Aerospace, Regional Aircraft (“Bombardier”) and
Pinnacle Airlines, Inc. (“Buyer”) relating to the purchase of certain Bombardier
Regional Jet Series 900 Aircraft as more particularly defined
therein.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with
respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meaning as in the Agreement.
|
1.0
|
In
consideration of Buyer having entered into the Agreement, upon
delivery
and payment in full for each of the Aircraft, Bombardier shall
issue to
Buyer a credit memorandum in the amount of [***] United States
Dollars,
expressed in July 1, 0000 Xxxxxx Xxxxxx Dollars for each
Aircraft. Such credit memoranda shall be used by Buyer to
reduce the amount payable on delivery of each of the
Aircraft. [***]
|
|
2.0
|
[***],
the
provisions of this Letter Agreement are personal to Buyer and shall
not be
assigned or otherwise disposed of by Buyer [***]
|
|
3.0
|
This
Letter Agreement constitutes an integral part of the Agreement
and is
subject to the terms and conditions contained therein. Should there
be any
inconsistency between this Letter Agreement and the Agreement with respect
to the subject matter covered by the terms hereof, this Letter
Agreement
shall prevail.
|
REMAINING
PORTION OF THE PAGE INTENTIONALLY LEFT BLANK
Yours
very
truly
Acknowledged and Accepted
BOMBARDIER
INC
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines, Inc.
Regional
Aircraft
/s/
[***] /s/
Xxxxxx X.
Xxxxxxx
Name:
[***] Name:
Xxxxxx X.
Xxxxxxx
Title:
Manager,
Contracts
Title: President & CEO
/s/
[***]
Name: [***]
Title: Director,
Contacts
April
26,
2007
Pinnacle
Airlines, Inc.
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxxxx,
Xxxxxxx
XXX,
00000
Subject: [***]
Gentlemen,
This
shall constitute the “[***]
Letter Agreement” to Purchase Agreement No. PA-0597-B dated April 26, 2007 (the
“Agreement”), between Bombardier Inc. represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines, Inc. (“Buyer”) relating
to the purchase of certain Bombardier Regional Jet Series 900 Aircraft as
more
particularly defined therein.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with
respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meaning as in the Agreement.
|
1.0
|
[***]
|
2.0 [***]
|
3.0
|
[***]
|
|
4.0
|
[***]
|
|
5.0
|
[***]
|
|
|
[***]
|
|
6.0
|
[***]
|
|
7.0
|
Conditions
and
Limitations
|
|
7.1
|
[***]
|
|
7.2 [***]
|
|
7.3
|
[***]
|
|
7.4
|
[***]
|
|
8.0 [***]
|
|
8.2
|
[***]
|
|
9.0
|
[***]
|
|
10.0
|
[***]
|
|
10.2
|
[***]
|
|
11.0
|
Duplicate
Remedies
|
|
|
It
is agreed that Bombardier will not be obligated to provide to Buyer
any
remedy, which is a duplicate of any other remedy, which has been
provided
to Buyer elsewhere under the Agreement, by the Power Plant manufacturer
or
by any Supplier.
|
|
12.0
|
Limitation
of
Liability
|
|
|
THIS
LETTER AGREEMENT AND THE RIGHTS AND REMEDIES OF BUYER AND THE OBLIGATIONS
OF BOMBARDIER HEREUNDER ARE SUBJECT TO THE PROVISIONS OF ARTICLE
18.1 AND
18.2 OF THE AGREEMENT.
|
|
13.0
|
[***],
the provisions of this Letter Agreement are personal to Buyer and
shall
not be assigned or otherwise disposed of by Buyer [***]
|
|
14.0
|
This
Letter Agreement constitutes an integral part of the Agreement
and subject
to the terms and conditions contained therein. Should there be
any
inconsistency between this Letter Agreement and the Agreement with
respect
to the subject matter covered by the terms hereof, then this Letter
Agreement shall prevail.
|
|
15.0
|
In
the event of the Termination of
the Agreement, this Letter Agreement shall survive as to any Aircraft
delivered under the
Agreement.
|
Yours
very
truly
Acknowledged and Accepted
BOMBARDIER
INC
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines, Inc.
Regional
Aircraft
/s/
[***]
/s/ Xxxxxx
Xxxxxxx
Name:
[***] Name:
Xxxxxx
Xxxxxxx
Title:
Manager,
Contracts
Title: President & CEO
/s/
[***]
Name:
[***]
Title: Director,
Contacts
Pinnacle
Airlines, Inc.
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxxxx,
XX
XXX,
00000
Subject: [***]
Gentlemen,
This
shall constitute the “[***]Letter
Agreement” to Purchase Agreement No. PA-0597B dated April 26, 2007 (the
“Agreement”), between Bombardier Inc. represented by Bombardier Aerospace,
Regional Aircraft (“Bombardier”) and Pinnacle Airlines, Inc. (“Buyer”) relating
to the purchase of certain Bombardier Regional Jet Series 900 Aircraft as
more
particularly defined therein.
This
Letter Agreement, when accepted by and agreed to by Buyer contemporaneously
with
the execution of the Agreement, will evidence our further agreement with
respect
to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meaning as in the Agreement.
1.0
[***]
2.0 [***]
3.0
[***]
3.5.1 [***]
4.0
[***]kg).
5.0 [***]
6.0
[***]
7.0 [***]
8.0
Limitation of Liability
|
|
THIS
LETTER AGREEMENT AND THE RIGHTS AND REMEDIES OF BUYER AND THE OBLIGATIONS
OF BOMBARDIER HEREUNDER ARE SUBJECT TO THE PROVISIONS OF ARTICLE
18.1 AND
18.2 OF THE AGREEMENT.
|
|
9.0
|
[***],
the provisions of this Letter Agreement are personal to Buyer and
shall
not be assigned or otherwise disposed of by Buyer [***]
|
|
10.0
|
This
Letter Agreement constitutes an integral part of the Agreement
and subject
to the terms and conditions contained therein. Should there be
any
inconsistency between this Letter Agreement and the Agreement with
respect
to the subject matter covered by the terms hereof, this Letter
Agreement
shall prevail.
|
|
11.0
|
In
the event of the Termination of
the Agreement, this Letter Agreement shall survive as to any Aircraft
delivered under the
Agreement.
|
REMAINING
PORTION OF THE PAGE INTENTIONALLY LEFT BLANK
Yours
very
truly
Acknowledged and Accepted
BOMBARDIER
INC
For and on behalf of
Bombardier
Aerospace
Pinnacle Airlines, Inc.
Regional
Aircraft
Name:
[***] Name:
________________
Title:
Manager,
Contracts
Title: ________________
Name: [***]
Title: Director,
Contacts
[Missing
Graphic Reference]
April
27,
2007
Pinnacle
Airlines, Inc.
0000
Xxxxxxxxx Xxxxxxxxx
Xxxxxxx,
XX
XXX,
00000
[***]Letter
Agreement to Purchase
Agreement No. PA-0597B (the “Agreement”) between Bombardier Inc. represented by
Bombardier Aerospace, Regional Aircraft (“Bombardier”) and Pinnacle Airlines,
Inc. (for purposes of this Letter Agreement “Buyer”) relating to the purchase of
sixteen (16) Bombardier Regional Jet Series 900 firm Aircraft (the
“Aircraft”)
Gentlemen:
Bombardier
hereby commits [***],
subject to the terms and conditions defined herein and in Attachment 1 hereto,
for the above referenced Aircraft that will be acquired by Buyer pursuant
to the
Agreement. This Letter Agreement, when accepted by and agreed to by
Buyer contemporaneously with the execution of the Agreement, will evidence
the
parties’ agreement with respect to the matters set forth below.
All
terms
used herein and in the Agreement and not defined herein, shall have the same
meaning as in the Agreement.
|
1.0
|
[***]
|
|
2.0
|
[***]
|
[***]
3.0
[***]
|
[***]5.0
|
[***]
|
|
6.0
|
[***]
|
|
8.0
|
[***]
|
Should
there be any inconsistency between this Letter Agreement and the Agreement
with
respect to the subject matter covered by the terms hereof, then this Letter
Agreement shall prevail.
|
Yours
very truly,
|
Acknowledged
and Accepted
|
|
BOMBARDIER
INC.
Bombardier
Aerospace
Regional
Aircraft
|
For
and on behalf of
Pinnacle
Airlines, Inc.
|
|
Name: ___________________
|
Name: ___________________
|
|
Title: ___________________
|
Title: ___________________
|
|
Name: ___________________
|
|
|
Title: ___________________
|
ATTACHMENT
1 TO [***]LETTER
AGREEMENT
|
[***][***][***][***][***]
|
[***][***][***][***][***][***][***][***][***][***]
|
[***][***][***]
|
|
[***][***][***][***]
|
|
[***]
|
[***][***]
[***]
|
DEFINITIONS:
|
Any
capitalized terms used and not defined herein shall have the meanings
ascribed to them in that certain Purchase Agreement No. PA-0597B
dated
March ___, 2007, by and between Pinnacle Airlines, Inc. and Bombardier
Inc.
|
