As filed with the Securities and Exchange Commission on March 3, 2017
No. 333-215908
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pre-Effective
Amendment No. 1 to
Form F-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Azul S.A.
(Exact name of Registrant as specified in its charter)
Federative Republic of Brazil |
4512 |
Not applicable | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial |
(I.R.S. Employer Identification No.) |
Edifício Jatobá, 8th floor, Castelo Branco Office Park
Avenida Marcos Penteado de Ulhôa Rodrigues, 939
Tamboré, Barueri, São Paulo, SP 06460-040, Brazil.
+55 (11) 4831 2880
(Address, including zip code, and telephone number, including area code, of Registrants principal executive offices)
National Corporate Research, Ltd.
10 East 40th Street, 10th Floor
New York, NY 10016
(212) 947-7200
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications, including communications sent to agent for service, should be sent to:
Stuart K. Fleischmann, Esq. Shearman & Sterling LLP 599 Lexington Avenue New York, NY 10022 |
Filipe B. Areno, Esq. J. Mathias von Bernuth, Esq. Skadden, Arps, Slate, Meagher & Flom LLP Av. Brigadeiro Faria Lima, 3311, 7th Floor São Paulo, SP, 04538-133, Brazil |
Approximate date of commencement of proposed sale of the securities to the public: As soon as practicable after this registration statement becomes effective.
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: ☐
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
CALCULATION OF REGISTRATION FEE
Title of each class of securities to be registered |
Proposed Maximum Aggregate Offering Price(1) |
Amount of registration fee | ||
Preferred shares including in the form of ADSs(2)(3) |
US$100,000,000 | US$11,590 |
(1) | Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act. In accordance with Rule 457(p) under the Securities Act, an aggregate fee of US$13,640 was previously paid in connection with the Registration Statement No. 333-188871 on Form F-1 filed on May 24, 2013, determined at the then-applicable rate of $136.40 per $1,000,000 of the then-proposed maximum aggregate offering price of US$100,000,000. The full unused amount of this fee shall be applied to off-set any registration fees due from time to time for this registration statement. Any additional registration fees will be paid subsequently on a pay-as-you-go basis. |
(2) | Includes preferred shares in the form of ADSs, which the underwriters may purchase solely to cover options to purchase additional shares, if any, and preferred shares which are to be offered in an offering outside the United States but which may be resold from time to time in the United States in transactions requiring registration under the Securities Act. |
(3) | A separate Registration Statement on Form F-6 will be filed for the registration of ADSs issuable upon deposit of the preferred shares registered hereby. Each ADS represents one preferred share. |
The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
EXPLANATORY NOTE
This Pre-Effective Amendment No. 1 to Form F-1 Registration Statement (Registration No. 333-215908) of Azul S.A. is being filed solely to include exhibits to the registration statement not previously filed. Accordingly, Part I, the form of prospectus, has been omitted from this filing.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 6. | Indemnification of Directors and Officers |
Under Brazilian Law, any provision, whether contained in the bylaws of a company or in any agreement, exempting any officer or director against any liability which by law or otherwise would attach to them in respect of negligence, misfeasance, breach of duty or trust, is void. A company may, however, indemnify an officer or director against any liability incurred by them in defending any proceedings, whether criminal or civil, in which a judgment is given in their favor. We have entered into indemnity agreements with two of our independent directors pursuant to which we agree to indemnify and hold each of them harmless for certain losses arising out of their respective positions as directors excluding any willful misconduct, fraud or severe negligence.
Item 7. | Recent Sales of Unregistered Securities |
None.
Item 8. | Exhibits |
(a) | The following documents are filed as part of this registration statement: |
The exhibit index attached hereto is incorporated herein by reference.
(b) | Financial Statement Schedules |
No financial statement schedules are provided because the information called for is not applicable or is shown in the financial statements or notes thereto.
Item 9. | Undertakings |
The undersigned Registrant hereby undertakes that:
(1) | For purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 424(b) (1) or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be part of this registration statement as of the time it was declared effective. |
(2) | For the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. |
(4) | The Registrant will provide to the Underwriters at the closing specified in the Underwriting Agreement ADSs and Preferred Shares in such denominations and registered in such names as required by the Underwriters to permit prompt delivery to each purchaser. |
II-1
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended (the Securities Act), the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this pre-effective amendement No. 1 to the Registration Statement on Form F-1 and has duly caused this pre-effective amendement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sao Paulo, Brazil, on this 3rd day of March, 2017.
Azul S.A. | ||
/s/ David Gary Neeleman | ||
David Gary Neeleman | ||
Chief Executive Officer |
Pursuant to the requirements of the Securities Act, this pre-effective amendement No. 1 to the Registration Statement on Form F-1 has been signed by the following persons in the capacities and on the dates indicated.
Signature |
Title |
Date | ||
* |
Chief Executive Officer | March 3, 2017 | ||
David Gary Neeleman |
||||
* |
Chief Financial Officer | March 3, 2017 | ||
John Peter Rodgerson |
||||
* |
Controller |
March 3, 2017 | ||
Mariana Cambiaghi Lourenço |
||||
* |
Director | March 3, 2017 | ||
Jose Mario Caprioli dos Santos |
||||
* |
Director | March 3, 2017 | ||
Sérgio Eraldo de Salles Pinto |
||||
* |
Director | March 3, 2017 | ||
Carolyn Luther Trabuco |
||||
* |
Director | March 3, 2017 | ||
Gelson Pizzirani |
||||
* |
Director | March 3, 2017 | ||
Renan Chieppe |
||||
* |
Director | March 3, 2017 | ||
Decio Luiz Chieppe |
||||
* |
Director | March 3, 2017 | ||
Michael Lazarus |
||||
* |
Director | March 3, 2017 | ||
John Ray Gebo |
||||
* |
Director | March 3, 2017 | ||
Henri Courpron |
||||
* |
Director | March 3, 2017 | ||
Haoming Xie |
||||
* |
Director | March 3, 2017 | ||
Neng Li |
||||
* |
Director | March 3, 2017 | ||
Stewart Gordon Smith |
||||
* |
Authorized U.S. Representative | March 3, 2017 | ||
Colleen A. De Vries SVP on behalf of National Corporate Research, Ltd. |
* By: | /S/ DAVID GARY NEELEMAN | |
David Gary Neeleman Attorney-in-Fact Pursuant to Power of Attorney |
EXHIBIT INDEX
Exhibit |
Exhibit | |
1.1** | Form of Underwriting Agreement | |
3.1** | By-laws of the Registrant Estatuto Social (English Translation) | |
4.1* | Form of Deposit Agreement among the Registrant, Citibank N.A., as depositary, and the Holders from time to time of American Depositary Shares issued there under, including the form of American Depositary Receipts | |
4.2* | Fifth Amended and Restated Shareholders Agreement, dated as of August 3, 2016, among Azul S.A. and the signatories thereunder. | |
4.3* | Fifth Amended and Restated Registration Rights Agreement, dated as of August 3, 2016, among Azul S.A. and the signatories thereunder. | |
4.4* | Form of Shareholders Agreement among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., Calfinco Inc., Hainan Airlines Co., Ltd. and David Gary Neeleman and as intervening and consenting party, Azul S.A. | |
5.1** | Form of Opinion of Pinheiro Neto Advogados, Brazilian legal counsel of the Registrant, as to the legality of the preferred shares | |
10.1 | Purchase Agreement COM0041-08, dated as of March 11, 2008, between Embraer Empresa Brasileira de Aeronáutica S.A. and Canela Investments LLC, including Amendment No. 1, dated as of April 30, 2008; Amendment No. 2, dated as of July 31, 2008; Amendment No. 3, dated as of October 21, 2008; Amendment No. 4, dated as of August 31, 2008; Amendment No. 5, dated as of November 25, 2008; Amendment No. 6, dated as of December 12, 2008; Amendment No. 7, dated as of December 23, 2008, Amendment No. 8; dated as of March 12, 2009; Amendment No. 9, dated as of October 30, 2009; Amendment No. 10, dated as of December 21, 2009; Amendment No. 11, dated as of October 26, 2010; Amendment No. 12, dated as of September 30, 2011, Amendment No. 13; dated as of November 9, 2011; Amendment No. 14, dated as of December 1, 2011; Amendment No. 15, dated as of January 20, 2012; Amendment No. 16, dated as of May 2, 2012; Amendment No. 17, dated as of July 11, 2012; Amendment No. 18, dated as of December 28, 2012; Amendment No. 19, dated as of April 9, 2013, Amendment No. 20; dated as of May 29, 2013; Amendment No. 21, dated as of June 26, 2013; Amendment No. 22, dated as of March 13, 2014; Amendment No. 23, dated as of April 1, 2014, Amendment No. 24; dated as of April 29, 2014; Amendment No. 25, dated as of May 23, 2014; Amendment No. 26, dated as of July 30, 2014; and Amendment No. 27, dated as of September 24, 2015. | |
10.2 | Sale and Purchase Contract, dated as of December 14, 2010, between Avions de Transport Régional and Canela Investments LLC, including the Amendment No. 1, dated as of December 22, 2011; and Amendment No. 2, dated as of December 4, 2012. | |
10.3 | Global Maintenance Agreement, dated as of March 9, 2015, between Azul Linhas Aéreas Brasileiras S.A. and Avions de Transport Régional, G.I.E., including Amendment No. 1, dated as of January 6, 2016. | |
10.4 | General Terms Agreement No. 1-1190636254, dated as of September 25, 2008, between GE Engine Services Distribution, LLC and Canela Investments, LLC. |
Exhibit |
Exhibit | |
10.5 | OnPoint Overhaul Engine Services Agreement, dated as of September 25, 2009, between GE Engine Services, Inc., GE CELMA Ltda. and Azul Linhas Aéreas Brasileiras S.A., including Amendment No. 1, dated as of May, 2010; Amendment No. 2, dated as of September 25, 2009; Amendment No. 3, dated as of August 13, 2010; Amendment No. 4, dated as of September 22, 2010; Amendment No. 5, dated as of November 10, 2010; Amendment No. 6, dated as of January 31, 2011; Amendment No. 7, dated as of October 19, 2011; Amendment No. 8, dated as of May 15, 2012; Amendment No. 9, dated as of December 15, 2012; Amendment No. 10, dated as of March 28, 2013; Amendment No. 11, dated as of June 13, 2013; Amendment No. 12, dated as of June 13, 2013; Amendment No. 13, dated as of September 17, 2013; Amendment No. 14, dated as of December 30, 2014; Amendment No. 15, dated as of December 30, 2014; Amendment No. 16, dated as of January 31, 2011; Amendment No. 17, dated as of December 18, 2015, between GE Engine Services, Inc., GE CELMA Ltda., Azul S.A., Azul Linhas Aéreas Brasileiras S.A. and TRIP Linhas Aéreas S.A.; and Amendment No. 18, dated as of May 18, 2016. | |
10.6 | Contract for Sale and Other Covenants, dated as of May 25, 2016, between Petrobras Distribuidora S.A. and Azul Linhas Aéreas Brasileiras S.A. | |
10.7 | First Amendment to the Investment Agreement, dated as of August 15, 2012, between Azul S.A., Trip Participações S.A., Trip Investimentos Ltda. and Rio Novo Locações Ltda. (including the restated version of the Investment Agreement as Exhibit I); the Second Amendment to the Investment Agreement, dated as of December 27, 2013; the Third Amendment to the Investment Agreement, dated as of October 22, 2014; the Fourth Amendment to the Investment Agreement, dated as of June 26, 2015, between Azul S.A., Trip Participações S.A., Trip Investimentos Ltda., Rio Novo Locações Ltda. and Calfinco, Inc.; and the Fifth Amendment to the Investment Agreement, dated as of August 3, 2016, between Azul S.A., Trip Participações S.A., Trip Investimentos Ltda., Rio Novo Locações Ltda., Calfinco, Inc. and Hainan Airlines Co. Ltd. | |
10.8 | General Terms Agreement No. 1-4207092154, dated as of January 13, 2016, between CFM International Inc. and Azul Linhas Aéreas Brasileiras S.A. | |
10.9 | A320 NEO Purchase Agreement, dated as of October 24, 2014, between Airbus S.A.S. and Azul Finance LLC., including Amendment No. 1 to the A320 NEO Purchase Agreement, dated as of December 21, 2015. | |
10.10 | Purchase Agreement COM0384-14, dated as of December 30, 2014, between Embraer Empresa Brasileira de Aeronáutica S.A. and Azul Finance 2 LLC., including Amendment No. 1, dated as of September 4, 2015; Amendment No. 2, dated as of March 2, 2016; and Amendment No. 3, dated as of March 31, 2016. | |
21.1* | Subsidiaries of the Registrant | |
23.1* | Consent of Ernst & Young Auditores Independentes S. S. | |
23.2** | Consent of Pinheiro Neto Advogados, Brazilian legal counsel of the Registrant (included in Exhibit 5.1) | |
24.1* | Powers of Attorney (included on signature page to the Registration Statement) |
(*) Previously filed.
(**) To be filed by amendment.
Portions of the exhibit will be omitted pursuant to the request for confidential treatment.
Exhibit 10.1
CONFIDENTIAL TREATMENT REQUESTED REDACTED COPY Confidential Treatment has been requested for portions of this Exhibit. Confidential portions of this Exhibit are designated by [*****]. A complete version of this Exhibit has been filed separately with the Securities and Exchange Commission.
PURCHASE AGREEMENT COM0041-08
between
EMBRAEREMPRESA BRASILEIRA DE AERONÁUTICA S.A.
and
CANELA INVESTMENTS LLC
|
INDEX
ARTICLE |
PAGE | |||||
1. | 4 | |||||
2. | 6 | |||||
3. | 7 | |||||
4. | 7 | |||||
5. | 8 | |||||
6. | 9 | |||||
7. | 10 | |||||
8. | 11 | |||||
9. | 12 | |||||
10. | 14 | |||||
11. | 15 | |||||
12. | 17 | |||||
13. | 17 | |||||
14. | 17 | |||||
15. | 18 | |||||
16. | 20 | |||||
17. | 21 | |||||
18. | 21 | |||||
19. | 21 | |||||
20. | 21 | |||||
21. | 23 | |||||
22. | 25 | |||||
23. | 25 | |||||
24. | 26 | |||||
25. | 27 | |||||
26. | 27 | |||||
27. | 27 | |||||
28. | 28 | |||||
29. | 28 | |||||
30. | 28 | |||||
31. | 28 | |||||
32. | 28 | |||||
33. | 28 | |||||
34. | 28 |
Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENTS
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 30 |
PURCHASE AGREEMENT COM0041-08
THIS AGREEMENT IS ENTERED INTO THIS 11TH DAY OF MARCH 2008, BY AND BETWEEN EMBRAEREMPRESA BRASILEIRA DE AERONÁUTICA S.A. AND CANELA INVESTMENTS LLC, FOR THE PURCHASE AND SALE OF EMBRAER AIRCRAFT.
THE SALE COVERED BY THIS AGREEMENT SHALL BE GOVERNED SOLELY BY THE TERMS AND CONDITIONS HEREIN SET FORTH, AS WELL AS BY THE PROVISIONS SET FORTH IN THE ATTACHMENTS HERETO.
THIS AGREEMENT SHALL NOT BE EFFECTIVE UNLESS AND UNTIL IT IS SIGNED BY AN AUTHORIZED OFFICER OF CANELA INVESTMENTS LLC AND EXECUTED BY TWO AUTHORIZED OFFICERS OF EMBRAEREMPRESA BRASILEIRA DE AERONÁUTICA S.A.
1. | INTERPRETATION |
1.1 Definitions
For the purpose of this Agreement, the following definitions are hereby adopted by the Parties:
1.1.1 Actual Delivery Date: shall mean, with respect to each Aircraft, the date on which Buyer obtains title to that Aircraft in accordance with Article 7.
1.1.2 ADs: shall mean effective Airworthiness Directives issued by either the ANAC or the Airworthiness Authority, in connection with and with respect to the Aircraft.
1.1.3 Agreement or Purchase Agreement: shall mean this purchase agreement.
1.1.4 Aircraft: shall mean the EMBRAER 195 LR (certification designation ERJ 190-200 LR aircraft manufactured by Embraer according to Attachment A, for sale to Buyer pursuant to this Agreement, equipped with two engines identified therein (or, where there is more than one of such aircraft, each of such aircraft).
1.1.5 Aircraft Basic Price: shall mean the Aircraft price, as defined in Article 3.1.
1.1.6 Aircraft Purchase Price: shall mean the Aircraft price, effective on the relevant Aircraft Contractual Delivery Date, resulting from the application of the Escalation Formula to the Aircraft Basic Price as set forth in Article 3.3.
1.1.7 Airworthiness Authority: shall mean the Brazilian Civil Aviation Authority Agência Nacional de Aviação Civil (ANAC) or such other entity in Brazil from time to time charged with the administration of civil aviation.
1.1.8 Business Day(s): shall mean a day on which banks are open for business in São José dos Campos, and São Paulo in Brazil, and in New York in the United States of America.
1.1.9 Buyer: shall mean Canela Investiments LLC, a limited liability company organized and existing under the laws of Delaware with its principal place of business at 2975 West Executive Park Way, 2nd floor, Suite 174, Lehi, UT 84043, USA.
Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
1.1.10 Contractual Delivery Date: shall mean a date within the month indicated in Article 5 on which an Aircraft is scheduled to be tendered to Buyer for inspection and subsequent acceptance and delivery. Except as otherwise expressly indicated differently elsewhere in this Agreement, such date shall be deemed to be the last day of the month indicated in Article 5.
1.1.11 Conversion Aircraft: shall mean [*****] that Buyer may have the right to purchase in accordance with Article 23 of this Agreement, equipped with [*****] engines identified therein (or, where there is more than one of such aircraft, each of such aircraft).
1.1.12 Day(s): shall mean calendar days.
1.1.13 Embraer: shall mean EmbraerEmpresa Brasileira de Aeronáutica S.A., a Brazilian corporation organized and existing under the laws of Brazil with its principal place of business at Av. Brigadeiro Faria Lima, 2170, São José dos Campos, SP, Brazil.
1.1.14 Escalation Formula: shall mean the escalation formula contained in Attachment D.
1.1.15 FAF: shall mean delivery of an Aircraft in fly-away-factory condition (similar to [*****] - flying from the place designated in Article 5 and cleared for export by Embraer).
1.1.16 [*****]: shall mean the aggregate [*****] referred to in Article 4.1.1.
1.1.17 LIBOR: for purposes of calculating any rate under this Agreement for any period for which the same is to be established, shall mean a rate per annum equal to the US$ [*****] LIBOR published or reported by the Telerate Channel (Reference: Telerate page 3570) at 11:00 a.m. London time, in the London interbank market on the first day of such period (or if such date is not a London business day, the immediately preceding London business day) for a period of [*****] (or such other relevant period) and in an amount comparable to the amount for which such rate is to be established. For purposes of this definition, London business day means any day excluding Saturday, Sunday and any day on which commercial banks in London, England are authorized or required by law to remain closed.
1.1.18 Major Changes: shall mean the changes to the design of the Aircraft, as defined in Article 11.2.2.
1.1.19 Mandatory Service Bulletins: shall mean the mandatory service bulletins applicable to the Aircraft, which are issued by Embraer to implement the ADs referred to under Article 11.4.
1.1.20 Minor Changes: shall mean the changes to the design of the Aircraft defined as per the terms and conditions of Article 11.2.1.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
1.1.21 Option Aircraft shall be the additional EMBRAER 195 aircraft that Buyer shall have the option to purchase as per the terms of Article 21.
1.1.22 Parties: shall mean Embraer and Buyer.
1.1.23 Product Support Package: shall mean the products and Services to be provided by Embraer as per Article 13.
1.1.24 Purchase Right Aircraft: shall have the meaning set out in Article 22.
1.1.25 Scheduled Inspection Date: shall mean the date on which a certain Aircraft hereunder is available for inspection and acceptance by and subsequent delivery to Buyer, as per the terms and conditions of Article 7.1.
1.1.26 Services: shall mean the familiarization and [*****] for the Aircraft, part of the Product Support Package, as specified in Article 2.3 of Attachment B.
1.1.27 Technical Publications: shall mean the technical documentation pertaining and related to the Aircraft, as identified in Article 2.2 and listed in Exhibit 1, both to Attachment B.
1.1.28 USD or US$: shall mean the legal currency of the United States of America.
1.1.29 Vendor: shall mean third party suppliers of equipment, parts, tools, ground support and test equipment to Embraer for use on or in connection with the Aircraft.
1.1.30 Working Day(s): shall mean a day, other than Saturday, Sunday or holiday, on which Embraer in São José dos Campos, SP, Brazil is open for business.
1.2 Construction
In this Agreement unless otherwise expressly provided:
1.2.1 words importing the plural shall include the singular and vice versa,
1.2.2 a reference to an Article, Attachment or Exhibit is a reference to an Article, Attachment or Exhibit to this Agreement, and
1.2.3 the headings in this Agreement are to be ignored in construing this Agreement.
2. | SUBJECT |
Subject to the terms and conditions of this Agreement:
2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of [*****] Aircraft.
2.2 Embraer shall provide to Buyer the Services and the Technical Publications as described in Attachment B to this Agreement; and
2.3 Buyer shall have the option to purchase up to [*****] Option Aircraft and up to [*****] Purchase Right Aircraft, in accordance respectively with Articles 21 and 22.
3. | PRICE |
3.1 Buyer agrees to pay Embraer, in United States dollars, for each Aircraft the sum of [*****] (the Aircraft Basic Price).
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0041-08 Rev. 3 | Page 6 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
3.2 The Services and Technical Publications are to be provided [*****] in accordance with Attachment B. Additional technical publications as well as other services shall be billed to Buyer in accordance with Embraers rates prevailing at the time Buyer places a purchase order for such additional technical publications or other services.
3.3 The Aircraft Basic Price shall be escalated according to the Escalation Formula. Such price as escalated shall be the Aircraft Purchase Price and it will be provided by Embraer to Buyer [*****] prior to each Aircraft Contractual Delivery Date.
4. | PAYMENT |
4.1 To secure the Aircraft delivery positions set forth in Article 5 and to ensure delivery of Aircraft in accordance with the delivery schedule set forth in Article 5, Buyer shall pay Embraer for each Aircraft the amounts set forth in Article 3 in accordance with the terms and conditions contained in this Article 4. The Parties acknowledge that each of the Aircraft and the corresponding delivery positions have been reserved for purchase by Buyer and such Aircraft have been removed from the market. The prices specified in Article 3 shall be paid by Buyer by wire transfer in immediately available USD funds, to the bank account to be timely informed by Embraer.
The Aircraft Purchase Price for each Aircraft shall be paid by Buyer, as follows:
4.1.1 Buyer has already paid to Embraer an [*****] in the amount of [*****] per each Aircraft, [*****]. The aggregate amount of such [*****] shall be applied by Embraer towards payment for each Aircraft.
4.1.2 A [*****] payment of each Aircraft Basic Price, less the relevant [*****] is due and payable within [*****] following the execution of this Agreement.
4.1.3 A [*****] payment of each Aircraft Basic Price is due and payable [*****] to each relevant Aircraft Contractual Delivery Date, or within [*****] following the execution of this Agreement, whichever occurs later.
4.1.4 A [*****] payment of each Aircraft Basic Price is due and payable [*****] to each relevant Aircraft Contractual Delivery Date, or within [*****] following the execution of this Agreement, whichever occurs later.
4.1.5 A [*****] payment of each Aircraft Basic Price is due and payable [*****] to each relevant Aircraft Contractual Delivery Date, or within [*****] following the execution of this Agreement, whichever occurs later.
4.1.6 The balance of each Aircraft Purchase Price shall become due and payable upon acceptance of each relevant Aircraft by Buyer.
4.2 In the event of Buyer failing to pay any amount payable as set forth in Articles 4.1.2 through 4.1.5 hereunder on the relevant due date, Buyer shall pay to Embraer immediately upon demand made from time to time interest on such amount, or any part thereof, not paid from the date on which the same was due and payable until the date on which the same is paid in full at the [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0041-08 Rev. 3 | Page 7 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
[*****] per annum pro rated on any part thereof. For the payments referred to under Article 4.1.6, interest shall be calculated as per Article 7.8. Without prejudice to Embraers rights set forth in Article 4.3, interest accrued will be invoiced by Embraer on a monthly basis, beginning one month after the date on which payments should have been made, and payment thereof shall be made by Buyer in accordance with the instructions contained therein.
4.3 Without prejudice to the payment of interest on late payments set forth above, should Buyer fail to make any payment on or before the due date and if such failure shall not have been cured within [*****] following the date on which the amount was due and payable, Embraer shall have the right to [*****]. Notwithstanding the foregoing and without limiting Embraers rights hereunder if any failure to pay shall not have been cured within [*****] Embraer, at its sole discretion shall have the right to postpone or to terminate this Agreement in relation to the affected Aircraft in accordance with Article 20.3. [*****] hereunder shall be deemed to delay the Buyers obligation to make any payment that resulted in a [*****].
4.4 Net payments: all payments to be made by Buyer under this Agreement shall be made without deduction or withholding for any taxes, fees, imposts, duties or charges, except for any taxes, fees, imposts, duties or charges, that are the responsibility of Embraer pursuant to Article 17 and shall be made without any right to set-off. If Buyer is obliged by law to make any deduction or withholding from any such payment, the amount due from Buyer in respect of such payment shall be increased to the extent necessary to ensure that, after the making of such deduction or withholding, Embraer receives a net amount equal to the amount Embraer would have received had no such deduction or withholding been required to be made
4.5 Payment Date: unless otherwise agreed by the Parties in writing, payment of the amounts referred in Articles 4.1.2, 4.1.3, 4.1.4 and 4.1.5, if not due upon the execution of this Agreement, shall be made by Buyer on or before [*****] on which each of such payments is due.
4.6 [*****]: except as expressly determined otherwise in this Agreement, all payments made by Buyer to Embraer hereunder shall be [*****].
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft |
Contractual Delivery Date |
Aircraft |
Contractual Delivery Date | |||
01 |
December 2008 | 19 | November 2010 | |||
02 |
December 2008 | 20 | December 2010 | |||
03 |
December 2008 | 21 | January 2011 | |||
04 |
January 2009 | 22 | February 2011 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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05 |
March 2009 | 23 | March 2011 | |||
06 |
May 2009 | 24 | April 2011 | |||
07 |
June 2009 | 25 | May 2011 | |||
08 |
September 2009 | 26 | June 2011 | |||
09 |
January 2010 | 27 | July 2011 | |||
10 |
February 2010 | 28 | August 2011 | |||
11 |
March 2010 | 29 | September 2011 | |||
12 |
April 2010 | 30 | October 2011 | |||
13 |
May 2010 | 31 | November 2011 | |||
14 |
June 2010 | 32 | December 2011 | |||
15 |
July 2010 | 33 | January 2012 | |||
16 |
August 2010 | 34 | March 2012 | |||
17 |
September 2010 | 35 | May 2012 | |||
18 |
October 2010 | 36 | September 2012 |
5.2 With regards to the delivery of the first three (3) Aircraft in December 2008, Embraer will use commercially reasonable efforts to adjust the schedule so that the first Aircraft is tendered for inspection, acceptance and subsequent delivery to Buyer between the 1st and the 10th of December 2008 and the second and third Aircraft are tendered for inspection, acceptance and subsequent delivery to Buyer between the 15th and 30th of December 2008.
6. | CERTIFICATION |
6.1 The Embraer 195 aircraft is type certified pursuant to airworthiness requirement RBHA 25 (Regulamento Brasileiro de Homologação Aeronáutica) (Airworthiness Standards Transport Category Airplanes), corresponding to U.S. FAR part 25, including amendments 25-1 through to 25-117, except section 25.981(c) of Amendment 25-102, Amendment 25-106, Section 25.735(h) of Amendment 25-107, Amendment 111, Amendment 115 and Amendment 116.
6.2 The Aircraft shall be manufactured by Embraer in compliance with ANAC type certification and the operational requirements of the Airworthiness Authority, except for the items that are under Buyers regulatory responsibility pursuant to the RBHA operational requirements and are not otherwise required to be provided by Embraer under this Agreement. It shall be Buyers responsibility to obtain the certificate of airworthiness together with the Airworthiness Authority and the registration of the Aircraft, at Buyers sole expense.
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7. | ACCEPTANCE AND TRANSFER OF OWNERSHIP |
7.1 Unless Buyer is notified otherwise, the Aircraft shall be delivered in accordance with the provisions and schedules specified in Article 5. Embraer shall give Buyer [*****] advance facsimile notice of the week of anticipated Aircraft delivery and [*****] advance facsimile notice of the date on which Embraer considers that each Aircraft will be ready for delivery. The final notification shall be issued by Embraer to Buyer with no less than [*****] prior to the date that the Aircraft will be made available for Buyers inspection, which date shall be defined as the Scheduled Inspection Date, on which date Buyer shall promptly start inspecting such Aircraft.
7.2 Buyer shall be allowed a reasonable period of time but in no event greater than [*****] to inspect and conduct an acceptance flight of each Aircraft prior to its delivery. Embraer will provide the fuel and insurance for the Aircrafts acceptance flight in accordance with Embraers insurance policy. After such acceptance flight, each Aircraft will be delivered by Embraer to Buyer [*****].
7.3 If Buyer finds an Aircraft acceptable, Buyer shall promptly pay any and all amounts then due and payable pursuant to this Agreement, including but not limited to all amounts referred to in Articles 4.1, 4.2, 7.8 and 8 as applicable and accept delivery of such Aircraft, whereupon the necessary title and risk transfer documents shall be executed in order to effect title transfer. Buyers acceptance of an Aircraft shall be deemed a waiver of any rights to revoke acceptance of the Aircraft for any reason, including for defects unknown to Buyer at the time of acceptance.
7.4 Buyer may decline to accept an Aircraft which Buyer reasonably believes does not comply with the specification set forth in this Agreement or is not in an airworthy condition. For the purposes of this Article 7, an Aircraft shall be deemed not to be materially compliant when one or more of the Aircraft characteristics identified in Article 11.2.1 (i) through (vi) are adversely affected by such non-compliance vis-à-vis the specification set forth in Attachment A1.
7.5 If Buyer declines to accept an Aircraft, Buyer shall immediately give to Embraer written notice of all specific reasons for such refusal and Embraer shall have [*****], commencing on [*****] after receipt of such notice, to take all necessary actions in order to resubmit the Aircraft to Buyer for re-inspection.
7.6 Buyer shall be allowed [*****] to re-inspect the Aircraft, starting immediately upon receipt of notice from Embraer that all necessary actions were taken. The period required for inspection as well as the one mentioned in Article 7.5 shall not be considered as part of the [*****] grace period provided for in Article 9.2.1. In the event Buyer declines to accept an Aircraft after this procedure is carried out twice, the Parties shall convene immediately following final refusal to accept the Aircraft in order to negotiate possible solutions. If within [*****] counted from the date in which Embraer receives notice of such final refusal to accept the Aircraft, Embraer and Buyer fail to reach an agreement in writing, [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7.7 Should Buyer fail to perform the acceptance and transfer of title to the Aircraft or to give Embraer written notice of specific reasons for refusal, within the periods provided for and in accordance with this Article 7, Embraer shall be entitled, at its discretion, to either re-negotiate the terms of this Agreement with Buyer or terminate this Agreement with regard to the affected Aircraft pursuant to Article 20.3. Embraer rights to re-negotiate or terminate this Agreement shall only become effective if such default of Buyer has not been cured within [*****] counted from the Scheduled Inspection Date.
7.8 Notwithstanding the provisions of Article 7.7 and in addition to Embraers rights pursuant to Article 20.3 should Buyer fail to perform the acceptance and transfer of title to the Aircraft within the time period specified in Articles 7.2, 7.3, 7.5 and 7.6, as applicable, interest will accrue [*****] calculated over the unpaid balance of the relevant Aircraft Purchase Price, prorated from the date on which Buyer should have completed the inspection or re- inspection of the Aircraft, as the case may be, until the date in which transfer of title occurs or until the date Embraer terminates this Agreement pursuant to Article 7.7, whichever occurs first. Without prejudice to Embraers rights set forth in Article 7.7, interest accrued will be invoiced by Embraer on a monthly basis, beginning one month after the date on which the Aircraft acceptance or transfer of title should have been performed, and payment thereof shall be made by Buyer in accordance with the instructions contained therein.
7.9 Embraer agrees to indemnify and hold harmless each of Buyer and Buyers officers, agents, employees and assignees (collectively, the Buyer Indemnitees) from and against all liabilities, damages, losses judgments, claims and suits, including costs and expenses incident thereto (Claims), which may be suffered by, accrued against, be charged to or recoverable from such Buyer Indemnitees by reason of loss or damage to property or by reason of injury or death of any person resulting from or in any way connected with the tests on the ground or in-flight prior to the actual delivery of each Aircraft, but for those Claims which are caused by the gross negligence or willful misconduct of Buyer Indemnitees.
8. | STORAGE CHARGE |
8.1 A storage charge equal to [*****] per Day shall be charged by Embraer to Buyer commencing on:
8.1.1 Buyers failure to perform inspection or re-inspection of an Aircraft, per the date or time period specified in writing by Embraer, according to Articles 5 and/or 7, as applicable; or
8.1.2 Buyers acceptance of an Aircraft when Buyer defaults in the fulfillment of any payment due and in taking title to such Aircraft immediately thereafter; or
8.1.3 Buyers failure to remove an Aircraft from [*****] facilities [*****] after title transfer has occurred.
8.2 If however, Buyer notifies Embraer in writing [*****] in advance of its expected delay in the performance of its obligations set forth in Articles 8.1.1, 8.1.2 and 8.1.3 above, the storage charge shall commence on the [*****] after the occurrence of the events set forth in Articles 8.1.1, 8.1.2 or 8.1.3 above, as applicable.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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8.3 In the event that an Aircraft Contractual Delivery Date must be extended by Embraer from that which is designated in Article 5, due to Buyers failure to perform any action or provide any information contemplated by this Agreement other than the ones specified in the preceding paragraphs, the storage charge shall commence on the [*****] after the Contractual Delivery Date relative to such Aircraft.
8.4 Buyer shall pay the storage charge as set forth in Articles 8.1. or 8.3., as applicable, in USD, per each month of delay or prorated for any part thereof, within [*****] after the presentation of each invoice by Embraer.
9. | DELAYS IN DELIVERY |
Except as provided in Articles 9.1 and 9.3, Embraer warrants that there shall be no delays in deliveries of aircraft. The sole remedies for delays in delivery of Aircraft are those provided in this Article 9 and Article 20.2.
9.1 Excusable Delays:
9.1.1 Embraer shall not be held liable or be found in default for any delays in the delivery of an Aircraft beyond the Contractual Delivery Date or in the performance of any act to be performed by Embraer under this Agreement, resulting from the following events or occurrences (hereinafter referred to as Excusable Delays): (a) force majeure, (including, but not limited to acts of God, war or state of war, civil war, insurrection, fire, accident, explosion, flood, act of government, requisition, strike, labor disputes causing cessation or interruption of work, including but not limited to walkouts, sick-outs, protests or slowdowns), (b) inability despite all due and commercially reasonable efforts to procure any materials, equipment, accessories, parts or means of transport, or (c) any delay resulting from any failure by Buyer to perform any action or provide any information contemplated by this Agreement or, (d) delays resulting from any other cause to the extent it is beyond Embraers control or does not result from Embraers fault or negligence.
9.1.2 As soon as practicable but no more than [*****] after the occurrence of any of the above mentioned events which constitute causes of Excusable Delays in the delivery of an Aircraft beyond the Contractual Delivery Date or in the performance of any act or obligation to be performed by Embraer under this Agreement, Embraer undertakes to send a written notice to Buyer including a description of the details involved and an estimate of the effects expected upon the timing of the performance of its contractual obligations.
9.1.3 Any such delays shall extend the time for delivery of an Aircraft or the Product Support Package or the Services, by the same number of Days required for the cause of delay to be remedied, subject to the limit indicated in Article 9.1.4. Embraer undertakes to use commercially reasonable efforts to avoid or remove any such cause of delay and to minimize its effect on the Contractual Delivery Date of an Aircraft. [*****] For the avoidance of doubt, Embraer shall have no obligations under this
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Article 9 and Buyer shall have no rights under this Article 9 with respect to delays occurring pursuant to item 9.1.1(c).
9.1.4 If the cause of such Excusable Delay is such as to last longer than [*****] or to render the performance of this Agreement impossible, as a whole or with respect of one or more specific undelivered Aircraft, then the Parties shall attempt to renegotiate the terms of this Agreement accordingly, within [*****] following the last Day of Excusable Delay as provided for herein. In the event that the Parties fail to agree on such terms, either Party shall have the right to terminate this Agreement with respect of one or more specific undelivered Aircraft, as applicable, without liability to either Party, except as provided for in Article 20.2(i).
9.1.5 If, however, the cause of such Excusable Delay is attributable to Buyer in accordance with Article 9.1.1.(c), Buyer shall not be entitled to terminate this Agreement in accordance with Article 9.1.4 and upon a termination by Embraer the provisions of Article 20.3 shall apply.
9.2 Non-Excusable Delays:
9.2.1 If the delivery of an Aircraft is delayed, and such delay does not constitute an Excusable Delay (hereinafter referred to as Non-Excusable Delays), by more than [*****] after the Contractual Delivery Date for such Aircraft, Buyer will be entitled to claim from Embraer liquidated damages in the following amounts:
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] |
Such liquidated damages shall apply for each Day of delay in excess of the above mentioned [*****] up to the date that the Aircraft is available for inspection and acceptance by, and subsequent delivery to Buyer by means of written confirmation of the successful completion of ground and flight tests performed by Embraer, to be provided as per Article 7.1, it being understood that such liquidated damages will not, in any event, exceed [*****] of the Aircraft Basic Price of the delayed Aircraft and that it will only be due and payable by Embraer to Buyer after Buyer pays to Embraer the total Aircraft Purchase Price, in respect of the affected Aircraft. The Parties acknowledge and agree that such liquidated damages are not a penalty, but are a fair and reasonable estimate of Buyers potential damages.
9.2.2 Upon the occurrence of any event which constitutes a Non-Excusable Delay in the delivery of an Aircraft, Embraer shall, as soon as practicable, send a written notice to Buyer, within a reasonable period of time, including a description of the delays and an estimate of the effects expected upon the delivery of the Aircraft. [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****].
9.2.3 It is agreed between the Parties that if, with respect to a delayed Aircraft, Embraer does not receive a claim for liquidated damages pursuant to Article 9.2.1, from Buyer, within [*****] the Contractual Delivery Date of such Aircraft, Buyer shall be deemed to have fully waived its right to such liquidated damages.
9.3 Delay Due to Loss or Structural Damage of the Aircraft
If, before acceptance of an Aircraft it is lost, destroyed or, in the reasonable opinion of Embraer, is damaged beyond economic repair (Total Loss), then Embraer will notify Buyer to this effect as soon as reasonably possible. Embraer will specify in its notice, or as soon after the notice as possible, the earliest date that an aircraft to replace the Aircraft may be delivered to Buyer and such date shall be the revised Contractual Delivery Date for the replacement aircraft. However, in the event the specified revised Contractual Delivery Date [*****] after the original Contractual Delivery Date, [*****] and: (i) Buyer notifies Embraer of such acceptance within [*****] of the date of receipt of the notice from Embraer, and (ii) the Parties execute an amendment to this Agreement recording the variation in the Contractual Delivery Date, provided however that in case the Total Loss is caused [*****]
If this Agreement terminates in relation to an Aircraft in accordance with this Article 9.3, such termination shall discharge the Parties from all obligations and liabilities of the Parties hereunder with respect to such Aircraft and related Services, except that Embraer shall [*****]
10. | DELIVERY INSPECTION |
10.1 Buyer may elect to observe the manufacturing of the Aircraft in order to verify that the Aircraft is manufactured in accordance with the procedures specified in this Agreement and to all applicable quality standards. Within thirty (30) Days following execution of this Agreement Embraer shall provide Buyer with a description of the relevant milestones of the manufacturing process which Buyer may observe. Upon receipt of such description Buyer shall promptly inform Embraer which milestones it
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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elects to observe. Embraer will then notify Buyer the approximate dates of such milestones and Buyer shall promptly inform the names of no more than [*****] of its representatives that will act as observers (the Observers).The Observers shall be given access to the relevant technical data as reasonably necessary. Observers will, at all times, be supported by the quality assurance personnel of Embraer and shall address any of their observations, comments, doubts or requests to such personnel, provided however that Embraer shall not be deemed to have received any request that may affect the performance of this Agreement unless and until such request is made by Buyer in accordance with Article 24. Observers shall not interfere, disturb, delay or in any other way hinder the manufacture or assembly of the Aircraft, any other aircraft or any other activities carried out by Embraer.
10.2 In order to perform the delivery inspection and acceptance of each Aircraft in accordance with Article 7, Buyer shall send [*****] authorized representatives (the Authorized Representatives) to the facilities of Embraer. Buyer shall communicate to Embraer the names of its Authorized Representatives, by means of written notice, at least fifteen (15) Days prior to each relevant Aircraft Contractual Delivery Date specified in Article 5.
10.3 Such Authorized Representatives, or other representatives indicated by Buyer, shall be authorized and duly empowered to sign the acceptance and transfer of title and risk documents and accept delivery of the Aircraft pursuant to Article 7.
10.4 For the purposes subject hereof, Embraer shall provide communication facilities (telephone, facsimile and high speed internet connection) for Buyers Observers and Authorized Representatives, as well as the necessary tools, measuring devices, test equipment and technical assistance as may be necessary to perform acceptance tests. Embraer shall also make available to Observers and Authorized Representatives (i) free local transportation between Embraer facilities and hotel during normal working hours on the relevant Working Days, and (ii) lunch at the canteen at Embraer facilities on Working Days.
10.5 Buyers Observers and Authorized Representatives shall observe Embraers administrative rules and instructions while at Embraers facilities.
10.6 Buyers Observers and Authorized Representatives shall be allowed exclusively in those areas related to the subject matter hereof. Buyer agrees to hold harmless Embraer from and against all and any kind of liabilities in respect to such representatives, for whom Buyer is solely and fully responsible under all circumstances and in any instance, except to the extent they arise from the gross negligence or willful misconduct of Embraer, its officers, employees and agents.
11. | CHANGES |
11.1 Each Aircraft will comply with the standards defined in Attachment A hereto and shall incorporate all modifications which are classified as ADs mandatory by ANAC or the Airworthiness Authority as provided in Article 11.4, or those agreed upon by Buyer and Embraer in accordance with this Article.
11.2 The Parties hereby agree that changes can be made by Embraer in the design of the Aircraft, the definition of which and its respective classification shall be in compliance to the Aircraft type specification, as follows:
11.2.1 Minor Changes: defined as those modifications which shall not adversely affect the Aircraft in any of the following characteristics:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(i) | Performance, weight or balance; |
(ii) | Structural strength, flight qualities, operation; |
(iii) | Interchangeability of parts defined by Embraer as interchangeable; |
(iv) | Operational safety; |
(v) | Ease of maintenance; |
(vi) | Noise and environmental control; |
11.2.2 Major Changes: defined as those modifications which affect at least one of the topics mentioned in Article 11.2.1.
11.3 Embraer shall have the right, but not the obligation, to incorporate Minor Changes in the Aircraft still in the production line at its own cost, without the prior consent of Buyer.
11.4 Embraer shall convey those Major Changes that are classified as ADs by means of service bulletins approved by the Airworthiness Authority and/or ANAC, as appropriate. Service bulletins that implement such ADs shall be referred to as Mandatory Service Bulletins. Embraer shall incorporate Mandatory Service Bulletins as follows:
11.4.1 Compliance required before Actual Delivery Date: Embraer shall incorporate Mandatory Service Bulletins in undelivered Aircraft [*****] in a reasonable period of time if the compliance time for such Mandatory Service Bulletins is before Actual Delivery Date of an Aircraft and such incorporation shall, to the extent technically possible and commercially reasonable, occur via a terminating action. Embraer shall not be liable for any delays resulting from incorporation of Mandatory Service Bulletins when the Aircraft has already passed the specific production stage affected by the incorporation of said change but Embraer shall use its commercially reasonable efforts to incorporate such changes prior the Actual Delivery Date and to minimize any delays in delivery.
11.4.2 Compliance required after Actual Delivery Date: During a time period of [*****] following the Aircraft Actual Delivery Date, Embraer shall provide parts kits for Mandatory Service Bulletins that are issued either (i) before the relevant Aircrafts Actual Delivery Date but with a compliance time after such date or (ii) after the relevant Aircrafts Actual Delivery Date. Such kits shall be provided [*****], excluding Buyers labor charges for installation of such Mandatory Service Bulletins. Embraer shall not be liable for any down-time of delivered Aircraft that may be necessary for the incorporation of any changes. When flight safety is affected, such changes shall be immediately incorporated. If warranty coverage is not available or applicable pursuant to Attachment C, the provisions of Article 11.5 shall apply.
11.5 Except for the Major Changes referred to in Article 11.4, any other Major Changes such as (i) any change developed by Embraer as product improvement, (ii) any change required by Buyer in relation to the Aircraft configuration, or (iii) any change in the certification regulations presented in the Technical Description, which are required by the Airworthiness Authority as a consequence of alterations, amendments and/or innovations of these applicable regulations, shall be considered as optional and Embraer shall submit to Buyer a Proposal of Major Change (PMC)
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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describing the impacts of such change. Should Buyer not approve such PMC, the change shall not be incorporated in the Aircraft.
11.6 Any Major Change to the Aircraft, made in accordance with the foregoing paragraphs, which affect the provisions of Attachment A hereto, shall be incorporated in said Attachment by means of an amendment.
11.7 Except as far as it relates to ADs mandatory by ANAC or the Airworthiness Authority and Minor Changes, the Aircraft shall, on the Scheduled Inspection Date, comply with the terms and conditions of Attachment A as from time to time amended pursuant to Article 11.6. Determination of such compliance shall be made by Buyer pursuant to Article 7.
12. | WARRANTY AND GUARANTEES |
12.1. Warranty: the materials and workmanship relative to the Aircraft subject of this Agreement will be warranted in accordance with the terms and conditions specified in Attachment C.
12.2 Guarantees: Embraer hereby guarantees to Buyer (i) performance, (ii) dispatch reliability, and (iii) service life, of and with respect to the Aircraft in accordance with the terms and conditions specified respectively in Attachments E, F and G.
13. | PRODUCT SUPPORT PACKAGE |
Embraer shall supply to Buyer the Product Support Package described in Article 2 of Attachment B hereto, which includes Embraers spare parts policy, the Technical Publications and the Services.
14. | ASSIGNMENT |
14.1 Assignment of rights and obligations: Except as otherwise provided in this Article 14, Buyer may not assign, novate or transfer any of its rights or obligations hereunder without the prior written consent of Embraer, which shall not be unreasonably withheld or delayed.
14.2 Upon ten (10) Days prior written notice to Embraer, Buyer may assign all or part of its rights and obligations hereunder with regards to any Aircraft to a bank or other financial institution as part of a purchase money financing arrangement for the purchase of the Aircraft or to a leasing company under a sale-lease-back arrangement where Buyer shall operate the Aircraft as a lessee promptly after delivery to the leasing company. Furthermore, upon (10) Days prior written notice to Embraer, and subject to the prior written consent of Embraer which shall not be unreasonably withheld or delayed, Buyer may assign the warranties identified in Attachment C hereto to the financier of such the Aircraft. [*****].
14.3 Upon no less than fifteen (15) Days prior written notice to Embraer and subject to the prior written consent of Embraer which shall not be unreasonably withheld or delayed, and solely in connection with [*****] payments due under this Agreement, Buyer may assign to the financier of such [*****] its right to purchase the Aircraft to which such [*****] payments are applied in the event the Buyer defaults under such [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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14.3 Notwithstanding the above, this Agreement, [*****], shall not be assigned to any of Embraers competitors, any person or entity which the Parties may be legally restricted to enter in to an agreement, to a debarred person or entity or in case such assignment would infringe US export control regulations or any other applicable law.
14.4 Buyer represents to the benefit of Embraer that any assignment permitted under this Article 14 shall not cause any adverse change to the interests, rights or obligations of Embraer under this Agreement.
15. | RESTRICTIONS AND PATENT INDEMNITY |
15.1 Claims against Buyer. Embraer shall indemnify and hold Buyer, its subsidiaries and affiliates, and their officers, directors, agents and employees (collectively, for purposes of this Article 15, Buyer) harmless from and against any and all royalties, liabilities, damages, settlement costs and expenses, losses, claims, actions, lawsuits, demands, fines, penalties, and all expenses (including but not limited to costs of investigation and defense and reasonable fees incurred for attorneys, expert witnesses, consultants and litigation support services) associated with any of the foregoing (collectively, the Damages) based upon, caused by, arising from, or in any manner connected with, directly or indirectly, any suit, action, proceeding, allegation, assertion or claim that
(a) Any article or service purchased or supplied hereunder or any portion thereof (including without limitation any accessory, equipment or part supplied to Embraer from any other Vendor, manufacturer, or supplier) (collectively, Item) and/or the use or operation thereof constitutes an infringement of any United States or foreign patent, design or model duly granted or registered (Claim), provided that from the time of design of such Item and until such Claim is resolved, such foreign country in which any foreign patent is held and the flag country of the Aircraft is each a party to (1) the International Convention for the Protection of Industrial Property (Paris Convention) in any of its revised forms or (2) Article 27 of the Chicago Convention on International Civil Aviation of December 7, 1944, or
(b) Aircraft software or materials, or any part of such Aircraft software or materials as furnished by Embraer, and used within the scope of the license granted by Embraer, constitutes an alleged or actual infringement of any copyright of the United States or misappropriates any third party trade secret (Copyright Claim), provided that from the time of design of such item and until such Copyright Claim is resolved, any such foreign country in which the infringement claim is made and the flag country of the Aircraft is each a member of The Berne Union.
The indemnification by Embraer provided in this Paragraph 15.1 shall not apply to Buyer furnished or installed equipment, power plant system, or [APUs] and their related parts.
15.2 Buyers Remedies and Judgments. In connection with the foregoing, Embraer agrees to defend at its expense any suit or action in respect of any claim or copyright claim. Buyers remedy and Embraers obligation and liability under this Article 15 are conditional upon Buyer giving Embraer written notice promptly after Buyer receives notice of a suit or action against Buyer alleging infringement or after Buyer receives a written claim of infringement, whichever is earlier. Failure to notify Embraer as provided in the foregoing sentence shall relieve Embraer of liability that
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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it may have to Buyer to the extent that the defense of any such claim is prejudiced thereby. Embraers obligations hereunder with respect to any actual or alleged infringement are also conditioned upon (i) Buyers promptly furnishing to Embraer all the data, papers, records (as requested by Embraer) and other assistance within the control of Buyer material to the resistance of or defense against any such charge or suits for infringement, (ii) Buyers use of diligent efforts in full cooperation with Embraer to reduce royalties, liabilities, damages, costs and expenses involved, and (iii) Embraers prior approval of Buyers payment, assumption or admission of any liabilities, or royalties for which Embraer is asked to respond. Embraer shall have the option but not the obligation at any time to conduct negotiations with the party or parties charging infringement and may intervene in any suit commenced. Whether or not Embraer intervenes in any such suit, it shall be entitled at any stage of the proceedings to assume control and conduct the defense and/or settlement of such suit or action either in the name of Embraer or of Buyer, or both. Buyer shall cooperate with Embraer and shall, upon Embraers reasonable request and [*****], arrange for attendance of representatives of Buyer at hearings and trial and assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of the defense of such suits or actions. Embraer shall assume and pay any and all judgments and all costs assessed against Buyer in a final non-appeallable judgment of any such suit or action, and Embraer will pay any payments in settlement imposed upon or incurred by Buyer with Embraers approval, together with all interest accruing after entry of any such judgment or after the making of any such settlement, [*****].
15.3 Continuing Use. In the event any Item purchased or supplied hereunder, or any portion thereof, becomes the subject of any Claim or Copyright Claim, or if Embraer in its reasonable judgment at any time decides that the item purchased or supplied hereunder, or any portion thereof, shall become the subject of such a Claim or Copyright Claim, Embraer shall promptly, but, in any event, no more than thirty (30) days after receipt of written notice from Buyer of a Claim, Copyright Claim or the entry of any order or decree permanently or temporarily enjoining the use of the Item purchased or supplied hereunder, or any portion thereof, at its own expense and option either: (i) obtain for Buyer the right to use the infringing Item, or portion thereof; or (ii) replace, modify, substitute, or update the infringing article, or portion thereof, so that it becomes non-infringing.
In the event that any such suit or action results in an order, decree or judgment enjoining or otherwise prohibiting Buyer from effectively using any Item for its intended purposes, or any settlement made or approved by Embraer has such result, Embraer agrees at its option and expense to promptly either: (i) procure for Buyer the right to continue using said Item; or (ii) modify said Item so that it becomes non-infringing and otherwise complies with the provisions of this Agreement; or (iii) replace said item with a non-infringing Item suitable for Buyers requirements and in a condition equivalent to that of the Item removed. The
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0041-08 Rev. 3 | Page 19 of 30 |
foregoing provisions hereof shall apply in case of any such order, decree, judgment or settlement-prohibiting Buyer from effectively using any component or part of the Item.
If the party or parties making a Claim or Copyright Claim for which Embraer has agreed to indemnify Buyer hereunder obtains an injunction restraining Buyers use of the Item and a bond or other security will be necessary and efficacious to void same, Embraer shall promptly pay to Buyer the amount of premium for any bond or the costs of any other security given by Buyer to release or void such injunction, or alternatively at Embraers election shall furnish such bond or other security in Buyers behalf.
15.4 Exemptions. Embraer shall not be obligated to indemnify and hold Buyer harmless from all damages caused by, arising from or in any way connected with any suit or action relative to Buyer furnished designs, equipment, materials or data, or any design which is imposed by Buyer on Embraer as an alternative to Embraers suggested design, or any Buyer modification of the Embraer supplied Item, or any component or part thereof, or any new designs, equipment, materials or data incorporated, after delivery and acceptance of the Item, by Buyer without the involvement of Embraer.
The foregoing indemnity shall not extend to any claim of infringement based on any modification, change or combination not in accordance with Embraers written procedures or without Embraers written approval or consent thereto, provided that the claim for infringement relates to the combination, change or modification as opposed to solely the article itself. However, the exclusion set forth in this subparagraph shall not relieve Embraer of its obligation under this Article 15 if the Item continues to be infringing after the removal, as the case may be, of any changes, modifications or combinations, or after-incorporated designs, equipment, materials or data.
15.5 Restrictions. The sales contemplated by this Agreement do not include the transfer of the right to use, or any ownership of, design, copyrights, patents, and other similar rights to Buyer.
16. | MARKETING PROMOTIONAL RIGHTS |
Embraer shall have the right to show for marketing purposes, free of any charge, the image of Buyers Aircraft, painted with Buyers colors and emblems, affixed in photographs, drawings, films, slides, audiovisual works, models or any other medium of expression (pictorial, graphic, and sculptural works), through all mass communications media such as billboards, magazines, newspaper, television, movie, theaters, as well as in posters, catalogues, models and all other kinds of promotional material. In the event such Aircraft is sold to or operated by or for another company or person, Embraer shall be entitled to disclose such fact, as well as to continue to show the image of the Aircraft, free of any charge, for marketing purposes, either with the original or the new colors and emblems, unless otherwise notified, provided that such notification shall be subject to the reasonable satisfaction and agreement of Embraer. If accepted, said prohibition, however, shall in no way apply to the promotional materials or pictorial, graphic or sculptural works already existing or to any contract for the display of such materials or works already binding Embraer at the time of receipt of the notification.
Purchase Agreement COM0041-08 Rev. 3 | Page 20 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
17. | TAXES |
Embraer shall pay all [*****] shall be borne by Buyer.
18. | APPLICABLE LAW |
This Agreement shall in all respects be governed by the laws of the State of New York, including all matters of construction, validity and performance, without giving effect to principles of conflicts of laws other than section 5-1401 and 5-1402 of the New York General Obligations law.
19. | JURISDICTION |
Each Party hereto hereby irrevocably agrees, accepts and submits to, for itself and in respect of any of its property, generally and unconditionally, the non-exclusive jurisdiction of the courts of the State of New York in the City and County of New York and of the United States for the Southern District of New York, in connection with any legal action, suit or proceeding with respect to any matter relating to or arising out of or in connection with this Agreement or any other operative agreement and fully waives any objection to the venue of such courts. Furthermore to the fullest extent permitted by applicable law, each Party hereby waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit action or proceeding any claim that it is not personally subject to the jurisdiction of the above named courts, that the suit, action or proceeding is brought in an inconvenient forum, or that the venue of the suit, action or proceeding is improper.
EACH PARTY HERETO HEREBY EXPRESSLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
20. | TERMINATION |
20.1 Should either Party fail to comply partially or completely with its obligations hereunder, the other Party shall be entitled to give notice of such failure and to require that such failure be remedied within the period specified in that notice, which period shall not be less than [*****]. Should such failure not be remedied within the period so specified, then the Party who gave notice of such failure shall be entitled [*****] NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN ANY CIRCUMSTANCE HEREUNDER FOR ANY CONSEQUENTIAL DAMAGES
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0041-08 Rev. 3 | Page 21 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
(INCLUDING LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE AND INCREASED COSTS) OR PUNITIVE DAMAGES OR INDIRECT OR INCIDENTAL DAMAGES WHICH MAY ARISE OUT OF, OR BE CONNECTED TO, ANY BREACH OR DEFAULT UNDER OF ANY TERM, CONDITION, COVENANT, WARRANTY, OR PROVISION OF THIS AGREEMENT, AND WHICH EITHER PARTY WOULD OTHERWISE BE ENTITLED TO UNDER ANY APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO ANY CLAIMS SOUNDING IN CONTRACT, TORT, EQUITY OR STATUTE.
20.2 Buyer and Embraer shall have the right to terminate this Agreement in respect to the relevant Aircraft, upon the occurrence of any Excusable Delay of [*****] or longer, unless otherwise agreed in writing by the Parties, and Buyer shall have the right to terminate this Agreement in respect to the relevant Aircraft upon the occurrence of any non-Excusable Delay of [*****] or longer after such Aircraft Contractual Delivery Date, such rights to be exercisable by written notice from one Party to the other to such effect no earlier than the [*****] or [*****] as applicable. Upon receipt of such notice of termination by Buyer or Embraer, as the case may be, Embraer shall:
(i) | in case of Excusable Delay: return to Buyer an amount equal to [*****]. |
(ii) | in case of Non-Excusable Delay: return to Buyer an amount equal to [*****]. |
20.3 If Buyer terminates this Agreement before the Actual Delivery Date of an Aircraft [*****] or, if Embraer terminates this Agreement in relation to an Aircraft, pursuant to Articles 4.3, 7.7 or 9.1.5 hereof, Buyer shall pay to Embraer an amount equal to (i) [*****] of the Aircraft Basic Price per terminated Aircraft, if the termination occurs [*****] to the relevant Aircraft Contractual Delivery Date or; (ii) [*****] of the Aircraft Basic Price per terminated Aircraft, if the termination occurs with [*****] to the relevant Aircraft Contractual Delivery Date. [*****] For these
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0041-08 Rev. 3 | Page 22 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
purposes Embraer may, in its sole discretion, retain all amounts previously paid by Buyer, to apply as part of the payments of damages resulting from such default on the part of Buyer. It is hereby agreed by the Parties that upon the receipt by Embraer of the amounts set forth above, no other indemnity shall be due by Buyer to Embraer.
20.4 If either Party terminates this Agreement in respect to an Aircraft pursuant to Article 7.6 hereof, [*****].
21. | OPTION AIRCRAFT |
Buyer shall have the option to purchase [*****] Aircraft, to be delivered in accordance with the following Option Aircraft contractual delivery dates (each an Option Aircraft Contractual Delivery Date):
Aircraft |
Contractual Delivery Date |
Aircraft |
Contractual Delivery Date | |||
01 |
February 2012 | 11 | March 2013 | |||
02 |
April 2012 | 12 | April 2013 | |||
03 |
June 2012 | 13 | May 2013 | |||
04 |
July 2012 | 14 | June 2013 | |||
05 |
August 2012 | 15 | July 2013 | |||
06 |
October 2012 | 16 | August 2013 | |||
07 |
November 2012 | 17 | September 2013 | |||
08 |
December 2012 | 18 | October 2013 | |||
09 |
January 2013 | 19 | November 2013 | |||
10 |
February 2013 | 20 | December 2013 |
The Option Aircraft will be supplied in accordance with the following terms and conditions:
21.1 A [*****] Option Aircraft [*****] of the Aircraft Basic Price, per Option Aircraft, is due and payable within [*****] following the date of exercise (the [*****]).
21.2 The unit basic price of the Option Aircraft shall be equal to [*****], provided that such Option Aircraft be delivered within the delivery period above mentioned and in the same configuration, specification and installations specified in Attachment A1 hereto, as it is written on the date of
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0041-08 Rev. 3 | Page 23 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
signature of this Agreement, determining the Option Aircraft basic price (the Option Aircraft Basic Price).
21.3 The Option Aircraft Basic Price shall be [*****], determining the Option Aircraft purchase price
(the Option Aircraft Purchase Price).
21.4 The payment of the Option Aircraft Purchase Price shall be made according to the following:
21.4.1 The [*****] of the relevant Option Aircraft.
21.4.2 A [*****] of each Option Aircraft Basic Price, less the relevant [*****], is due and payable [*****] to each relevant Option Aircraft Contractual Delivery Date.
21.4.3 A [*****] of each Option Aircraft Basic Price is due and payable [*****] to each relevant Option Aircraft Contractual Delivery Date.
21.4.4 A [*****] of each Option Aircraft Basic Price is due and payable [*****] to each relevant Option Aircraft Contractual Delivery Date.
21.4.5 The balance of each Option Aircraft Purchase Price shall become due and payable upon acceptance of each relevant Option Aircraft by Buyer.
21.4.6 The provisions of Article 4.2 through 4.6 shall apply, mutatis-mutandis, to the payments to be made by Buyer towards the Option Aircraft.
21.5 The option to purchase the Option Aircraft [*****].
21.6 If the options are confirmed by Buyer as specified above, an amendment to this Agreement shall be executed by and between the Parties within [*****] following the Option Aircraft option exercise date, setting forth the terms and conditions applicable to, if any, exclusively to the Option Aircraft.
21.7 The product support package to be applied to the Option Aircraft is described in
Article 2.4 of Attachment B.
21.8 The exercised Option Aircraft shall be subject to conversion to other models as per the terms and conditions contained in Article 23.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0041-08 Rev. 3 | Page 24 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
22. | PURCHASE RIGHT AIRCRAFT |
22.1 Embraer shall grant Buyer the right to purchase up to twenty [*****] EMBRAER 195 aircraft (the Purchase Right Aircraft) configured as per Attachment A1 and available to Buyer at the [*****] that are applicable to the Aircraft (the Purchase Right Basic Price), [*****].
22.2 Subject to no material default on the part of the Buyer having occurred and continuing on the date of exercise, the right to purchase each of the Purchase Right Aircraft shall be exercised by means of a written notice (the Exercise Notice) from Buyer to Embraer, and such right is subject to the existence of enough production capacity at Embraer to comply with Buyers desirable delivery schedule.
22.3 In case Embraer has not received Exercise Notices for all Purchase Right Aircraft on or before December 2012 Buyer shall be deemed to have relinquished its right to acquire any unexercised Purchase Right Aircraft. The Exercise Notice shall specify the desirable delivery month for the Purchase Right Aircraft that Buyer intends to firm-up. The contractual delivery date for any Purchase Right Aircraft (Purchase Right Aircraft Contractual Delivery Date) shall be no later than [*****].
22.4 Following receipt by Embraer of Buyers Exercise Notice, Embraer shall inform Buyer if the desired Purchase Right Aircraft Contractual Delivery Date requested by Buyer is acceptable; otherwise, Embraer shall inform Buyer the closest non-committed delivery position available for sale.
22.5 In case Buyer and Embraer agree in terms of the new Purchase Right Aircraft Contractual Delivery Date, Buyer shall immediately remit to Embraer a [*****] for each exercised Purchase Right Aircraft (the [*****]). The Purchase Right Aircraft payment terms and conditions shall be in accordance with schedule and all terms and conditions contained in Article 4 of this Agreement, mutatis mutandis.
22.6 The product support package to be applied to the exercised Purchase Right Aircraft shall be in accordance with the terms and conditions contained in Article 2.4 of Attachment B.
22.7 If the purchase rights are exercised by Buyer as specified above and the relevant delivery dates are agreed, and the [*****] is paid by Buyer as specified above, an amendment to this Agreement shall be executed by and between the Parties within [*****] following the Purchase Right Aircraft exercise date, setting forth the specific terms and conditions, if any, applicable exclusively to the Purchase Right Aircraft.
22.8 All payments are [*****] and considered part of the payment for the exercised Purchase Right Aircraft.
23. | CONVERSION AIRCRAFT |
23.1 Buyer shall have the flexibility to request the conversion of any exercised Option Aircraft or exercised Purchase Right Aircraft [*****]. To exercise its conversion option, Buyer shall send a written
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0041-08 Rev. 3 | Page 25 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
notice to Embraer to such effect on the date of exercise of the relevant Option Aircraft, or Purchase Right Aircraft, as the case may be.
23.2 Following receipt by Embraer of Buyers conversion request notification, Embraer shall confirm to Buyer within [*****] if the requested Conversion Aircraft are available for conversion as per Buyers request (the Confirmation Notice), in which event such Conversion Aircraft shall be deemed an Aircraft in lieu of the replaced exercised Option or Purchase Right Aircraft, including the delivery of such Conversion Aircraft being scheduled on the Contractual Delivery Date applicable to such replaced exercised Option or Purchase Right Aircraft, subject to possible schedule changes as described below.
23.3 In case Buyer and Embraer do not reach an agreement in relation to such Conversion Aircraft within [*****] after the date of the Confirmation Notice, Buyer shall have the right to either (i) to not exercise the relevant Option or Purchase Right Aircraft, as the case may be, in which case such Option or Purchase Right Aircraft will be considered expired, and in this case no indemnity being due by either Party to the other, except that Embraer shall be entitled to retain the relevant [*****] made by Buyer, or (ii) to accept the relevant Option / Purchase Right Aircraft [*****].
23.4 The Conversion Aircraft Basic Price for [*****], including the optional equipment and customized lay outs defined respectively in Attachments A2, A3 and A4, are:
[*****] | [*****] | [*****] | ||||
[*****] |
[*****] | [*****] | [*****] |
23.5 The performance guarantee for the Conversion Aircraft shall be in accordance with the terms and conditions contained in Attachment E2 (for the [*****]), Attachment E3 (for the [*****]), and Attachment E4 (for the [*****]). The terms and conditions of the Service Life Guarantee presented in Attachment H shall also be applicable for the Conversion Aircraft. Also, the terms and conditions of the Aircraft Warranty Certificate presented in Attachment C shall also be applicable for the Conversion Aircraft.
24. | INDEMNITY |
24.1 Buyer agrees to indemnify and hold harmless each of Embraer and Embraers officers, agents, employees and assignees (collectively, the Embraer Indemnitees) from and against all liabilities, damages, losses, judgments, claims and suits, including necessary costs and expenses incident thereto (collectively, Claims), which may be suffered by, accrued against, be charged to or recoverable from such Embraer Indemnitees by reason of loss or damage to property or by reason of injury or death of any person resulting from or in any way connected with the performance of services by employees, representatives or agents of Embraer for or on behalf of Buyer related to Aircraft after its transfer of title to Buyer, including, but not limited to, technical operations, maintenance, and training services and assistance performed while on the premises of Embraer or Buyer, while in flight on Buyer-
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0041-08 Rev. 3 | Page 26 of 30 |
owned Aircraft or while performing any other service, at any place, in conjunction with the Aircraft operations of Buyer but for those Claims which are caused by the gross negligence or willful misconduct of Embraer Indemnitees.
25. | NOTICES |
All notices permitted or required hereunder shall be in writing in the English language and sent, by registered mail or facsimile, to the attention of the Vice President, Contracts as to Embraer and of the Managing Director as to Buyer, to the addresses indicated below or to such other address as either Party may, by written notice, designate to the other.
23.1 EMBRAER:
EMBRAEREmpresa Brasileira de Aeronáutica S.A.
Av. Brigadeiro Faria Lima, 2170
12.227-901 São José dos CamposSP
Brazil
Telephone: (+55 12) 3927-1410
Facsimile: (+55 12) 3927-1257
23.2 BUYER:
Av. Rio Branco, nº 1, 14º andar, Ala A
Ed. RB1, Centro, Rio de Janeiro, 20090-003
Care of Dr. Sergio Laclau
Telephone:(+55 21) 2272-9294
Facsimile: (+55 12) 2283-0023
26. | CONFIDENTIALITY |
The Parties do not have the right to disclose the terms of this Agreement except as required by law. Each of Buyer and Embraer agrees not to disclose any portion of this Agreement or its Attachments, amendments or any other supplement, to any third party without the previous written consent of the other Party. Without limiting the foregoing, in the event either Party is legally required to disclose the terms of this Agreement, each of Buyer and Embraer agrees to exert its best efforts to request confidential treatment of the Articles and conditions of this Agreement relevantly designated by the other Party as confidential.
27. | FOREIGN CONTENT |
The Aircraft contain commodities, technology and software that were exported from the United States and other countries in accordance with their respective export control regulations. Diversion contrary to U.S. law and/or any other applicable law is prohibited.
Purchase Agreement COM0041-08 Rev. 3 | Page 27 of 30 |
Buyer agrees to comply with any export and re-export control laws of the United States and other countries applicable to the Aircraft, its parts, components, technology and software and, upon Embraers request, to execute and deliver to Embraer the relevant end-user certificates necessary for the export and transfer of the Aircraft to Buyer.
28. | SEVERABILITY |
If any provision or part of a provision of this Agreement or any of the Attachments shall be, or be found by any authority or court of competent jurisdiction to be, illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect.
29. | NON-WAIVER |
Except as otherwise specifically provided to the contrary in this Agreement, any Partys refrain from exercising any claim or remedy provided for herein shall not be deemed a waiver of such claim or remedy, and shall not relieve the other Party from the performance of such obligation at any subsequent time or from the performance of any of its other obligations hereunder.
30. | INTEGRATED AGREEMENT |
All Attachments referred to in this Agreement and/or attached hereto are, by such reference or attachment, incorporated in this Agreement.
31. | NEGOTIATED AGREEMENT |
Buyer and Embraer agree that this Agreement, including all of its Attachments, has been the subject of discussion and negotiation and is fully understood by the Parties, and that the rights, obligations and other mutual agreements of the Parties contained in this Agreement are the result of such complete discussion and negotiation between the Parties.
32. | COUNTERPARTS |
This Agreement may be signed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
33. | ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof and supersedes all previous and connected negotiations, representations and agreements between the Parties. This Agreement may not be altered, amended or supplemented except by a written instrument executed by the Parties.
34. | REPRESENTATIONS AND WARRANTIES |
Each Party represents and warrants to the other that:
Purchase Agreement COM0041-08 Rev. 3 | Page 28 of 30 |
34.1 It is a company duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all necessary corporate power and authority to conduct the business in which it is currently engaged and to enter into and perform its obligations under this Agreement.
34.2 It has taken, or caused to be taken, all necessary corporate action to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; and
34.3 The execution and delivery by it of this Agreement, its performance of its obligations hereunder and its consummation of the transactions contemplated hereby, do not and will not violate or conflict with any provision of its constitutional documents, violate or conflict with any law, rule, or regulation applicable to or binding on it or violate or constitute any breach or default (other than a breach or default that would not result in a material adverse change to it or adversely affect its ability to perform any of its obligations hereunder) under any agreement, instrument or document to which it is a party or by which it or any of its properties is or may be bound or affected.
INTENTIONALLY LEFT BLANKSIGNATURE PAGE FOLLOWS
Purchase Agreement COM0041-08 Rev. 3 | Page 29 of 30 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers and to be effective as of the day and year first above written.
EMBRAEREmpresa Brasileira | Canela Investments LLC | |||||
de Aeronáutica S.A. | ||||||
By: | /s/ Mauro Kern Junior |
By: | /s/ Gerald B. Lee | |||
Name: | Mauro Kern Junior | Name: | Gerald B. Lee | |||
Title: | Executive Vice President | Title: | Managingg Director | |||
Airline Market | ||||||
By: | /s/ Jose Luis D. Molina |
Date: | 11 February 2008 | |||
Name: | Jose Luis D. Molina | Place: | ||||
Title: | Vice President Contracts Airline Market | |||||
Date: | 11 March 2008 | |||||
Place: |
Witnesses: | ||||||||
/s/ Albert P. Close |
/s/ Marlon y. Ramirez | |||||||
Name: | Albert P. Close | Name: | Marlon Y. Ramirez | |||||
ID: | ID: |
Purchase Agreement COM0041-08 Rev. 3 | Page 30 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
AIRCRAFT CONFIGURATION
1. | STANDARD AIRCRAFT |
The Aircraft EMBRAER 195 shall be manufactured according to (i) the Technical Description [*****] dated as of November 2007 which although not attached hereto, are incorporated herein by reference, and (ii) the characteristics described in the items below.
2. | OPTIONAL EQUIPMENT: |
The Aircraft will also be fitted with the following options selected by Buyer:
ITEM |
EQUIPMENT | |
[*****] |
[*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A to Purchase Agreement COM0041-08 Rev. 3 | Page1 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A1
AIRCRAFT CONFIGURATION
ITEM |
EQUIPMENT | |
[*****] |
[*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] |
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A1
AIRCRAFT CONFIGURATION
ITEM |
EQUIPMENT |
ECD | ||
[*****] |
[*****] | Nov. 30, 2008 | ||
[*****] | [*****] | Nov. 30, 2008 | ||
[*****] | [*****] | July 31, 2008 | ||
[*****] | [*****] | May 31, 2008 | ||
[*****] | [*****] | TBD | ||
[*****] |
3. | FINISHING |
The Aircraft will be delivered to Buyer as follows:
3.1 | EXTERIOR FINISHING: |
The fuselage of the Aircraft shall be painted according to Buyers color and paint scheme, which shall be supplied to Embraer by Buyer on or before [*****] prior to the first Aircraft contractual delivery date. The wings and the horizontal stabilizer shall be supplied in the standard colors, i.e., grey BAC707.
Once defined, the choices of color and paint scheme made by Buyer shall apply to all Aircraft. If Buyer requires a color and paint scheme for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A1
AIRCRAFT CONFIGURATION
relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the relevant Aircraft shall be painted in according to the original paint and color scheme.
3.2 | INTERIOR FINISHING: |
The materials and colours of all and any items of interior finishing such as seat covers, carpet, floor lining on galley areas, side walls and overhead lining, galley lining and curtain for the Aircraft will be in accordance with Buyers choices indicated in the Customer Check List Revision N/C executed by and among Buyer, Embraer and C&D Zodiac on February 15, 2008. In case of conflict between the CCL and this Attachment A the latter shall control.
The choices of interior finishing made by Buyer shall apply to all Aircraft. If Buyer requires an interior finishing for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the interior of relevant Aircraft shall be built according to the original choice of Buyer.
3.3 | BUYER FURNISHED EQUIPMENT(BFE) AND BUYER INSTALLED EQUIPMENT (BIE): |
Any BFE materials shall conform to the required standards and comply with all applicable regulations and airworthiness requirements. Delays in the delivery of BFE materials or quality restrictions that prevent the installation thereof in the time frame required by the Aircraft manufacturing process shall entitle Embraer to either delay the delivery of the Aircraft or present the Aircraft to Buyer without such BFE, in which case Buyer shall not be entitled to refuse acceptance of the Aircraft. All BFE equipment shall be delivered in DDP conditions (Incoterms 2000) to C&D Zodiac 14 Centerpointe Drive, La Palma, CA 90623, USA, or to another place to be timely informed by Embraer.
The Aircraft galleys have space provisions for the following BIE items that, unless timely agreed by the Parties, are not supplied or installed by Embraer: Trolleys, ovens, coffee makers, hot jugs and standard units.
Medical kits, defibrillators and wheelchairs, as well as any other equipment classified as medical or pharmaceutical products, shall be BIE items.
3.4 | EMBRAER RIGHT TO PERFORM FOR BUYER: |
If Buyer fails to make any choice or definition which Buyer is required to make regarding the exterior and interior finishing of any Aircraft or to inform Embraer thereof, Embraer shall have the right, but not the obligation, to
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A to Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A1
AIRCRAFT CONFIGURATION
tender the Aircraft for delivery (a) painted white and (b) fitted with an interior finishing selected by Embraer at its reasonable discretion.
The taking of any such action by Embraer pursuant to this Article shall not constitute a waiver or release of any obligation of Buyer under the Purchase Agreement, nor a waiver of any event of default which may arise out of Buyers nonperformance of such obligation, nor an election or waiver by Embraer of any remedy or right available to Embraer under the Purchase Agreement.
No compensation to Buyer or reduction of the Aircraft Offer Price shall be due by virtue of the taking of any such actions by Embraer and Embraer shall be entitled to charge Buyer for the amount of the reasonable expenses of Embraer incurred in connection with the performance of or compliance with such agreement, as the case may be, payable by Buyer upon demand.
4. | REGISTRATION MARKS, TRANSPONDER AND ELT CODES: |
The Aircraft shall be delivered to Buyer with the registration marks painted on them. The registration marks, the transponder code and ELT protocol coding shall be supplied to Embraer by Buyer no later than [*****] before each relevant Aircraft contractual delivery date. Embraer shall be entitled to tender the Aircraft for delivery to Buyer without registration marks, with an inoperative transponder and without setting the ELT protocol coding in case Buyer fails to supply such information to Embraer in due time.
5. | EXPORT CONTROL ITEMS |
The Aircraft contains (i) an [*****] manufactured by [*****] with an embedded [*****] used for emergency backup and flight safety information, and (ii) [*****] manufactured by [*****]. The [*****] and the [*****] that are incorporated into this Aircraft are subject to export control under United States of America law. Transfer or re- export of such items (whether or not incorporated into the Aircraft), as well as their related technology and software may require prior authorization from the US Government.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT A1 AND THE TERMS OF THE TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT A1 SHALL PREVAIL.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A to Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
AIRCRAFT CONFIGURATION
1. | STANDARD AIRCRAFT |
The Aircraft EMBRAER 170 shall be manufactured according to (i) the Technical Description [*****] dated as of November 2007 which although not attached hereto, are incorporated herein by reference, and (ii) the characteristics described in the items below.
2. | OPTIONAL EQUIPMENT: |
The Aircraft will also be fitted with the following options selected by Buyer:
ITEM |
EQUIPMENT | |
[*****] |
[*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A2 to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A2
AIRCRAFT CONFIGURATION
ITEM |
EQUIPMENT | |
[*****] |
[*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] |
[*****]
[*****]
Item |
Equipment |
ECD | ||
[*****] |
[*****] | July 31, 2008 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A2 to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A2
AIRCRAFT CONFIGURATION
[*****]
3. | FINISHING |
The Aircraft will be delivered to Buyer as follows:
3.1 | EXTERIOR FINISHING: |
The fuselage of the Aircraft shall be painted according to Buyers color and paint scheme, which shall be supplied to Embraer by Buyer on or before [*****] prior to the first Aircraft contractual delivery date. The wings and the horizontal stabilizer shall be supplied in the standard colors, i.e., grey BAC707.
Once defined, the choices of color and paint scheme made by Buyer shall apply to all Aircraft. If Buyer requires a color and paint scheme for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the relevant Aircraft shall be painted in according to the original paint and color scheme.
3.2 | INTERIOR FINISHING: |
Buyer shall inform Embraer on or before [*****] prior to the first Aircraft contractual delivery date of its choice of materials and colors of all and any item of interior finishing such as seat covers, carpet, floor lining on galley areas, side walls and overhead lining, galley lining and curtain. The above mentioned schedule for definition of interior finishing shall only be applicable if Buyer selects its materials from the choices offered by and available at Embraer. In case Buyer opts to use different materials and/or
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A2 to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A2
AIRCRAFT CONFIGURATION
patterns, such schedule shall be mutually agreed between the Parties at the time of signature of the Purchase Agreement.
Once defined, the choices of interior finishing made by Buyer shall apply to all Aircraft. If Buyer requires an interior finishing for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the interior of relevant Aircraft shall be built according to the original choice of Buyer.
3.3 | BUYER FURNISHED EQUIPMENT(BFE) AND BUYER INSTALLED EQUIPMENT (BIE): |
Buyer may choose to have carpets, tapestries, seat covers and curtain fabrics supplied to Embraer for installation in the Aircraft as BFE. Materials shall conform to the required standards and comply with all applicable regulations and airworthiness requirements. Delays in the delivery of BFE equipment or quality restrictions that prevent the installation thereof in the time frame required by the Aircraft manufacturing process shall entitle Embraer to either delay the delivery of the Aircraft or present the Aircraft to Buyer without such BFE, in which case Buyer shall not be entitled to refuse acceptance of the Aircraft. All BFE equipment shall be delivered in DDP conditions (Incoterms 2000) to C&D Zodiac 14 Centerpointe Drive, La Palma, CA 90623, USA, or to another place to be timely informed by Embraer.
The Aircraft galleys have space provisions for the following BIE items that, unless timely agreed by the Parties, are not supplied or installed by Embraer: Trolleys, ovens, coffee makers, hot jugs and standard units.
Medical kits, defibrillators and wheelchairs, as well as any other equipment classified as medical or pharmaceutical products, shall be BIE items.
3.4 | EMBRAER RIGHT TO PERFORM FOR BUYER: |
If Buyer fails to make any choice or definition which Buyer is required to make regarding the exterior and interior finishing of any Aircraft or to inform Embraer thereof, Embraer shall have the right, but not the obligation, to tender the Aircraft for delivery (a) painted white and (b) fitted with an interior finishing selected by Embraer at its reasonable discretion.
The taking of any such action by Embraer pursuant to this Article shall not constitute a waiver or release of any obligation of Buyer under the Purchase Agreement, nor a waiver of any event of default which may arise out of Buyers nonperformance of such obligation, nor an election or waiver by Embraer of any remedy or right available to Embraer under the Purchase Agreement.
No compensation to Buyer or reduction of the Aircraft Offer Price shall be due by virtue of the taking of any such actions by Embraer and Embraer shall be
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A2 to Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A2
AIRCRAFT CONFIGURATION
entitled to charge Buyer for the amount of the reasonable expenses of Embraer incurred in connection with the performance of or compliance with such agreement, as the case may be, payable by Buyer upon demand.
4. | REGISTRATION MARKS, TRANSPONDER AND ELT CODES: |
The Aircraft shall be delivered to Buyer with the registration marks painted on them. The registration marks, the transponder code and ELT protocol coding shall be supplied to Embraer by Buyer no later than [*****] before each relevant Aircraft contractual delivery date. Embraer shall be entitled to tender the Aircraft for delivery to Buyer without registration marks, with an inoperative transponder and without setting the ELT protocol coding in case Buyer fails to supply such information to Embraer in due time.
5. | EXPORT CONTROL ITEMS |
The Aircraft contains (i) an [*****] manufactured by [*****] with an embedded [*****] used for emergency backup and flight safety information, and (ii) [*****] manufactured by [*****]. The [*****] and the [*****] that are incorporated into this Aircraft are subject to export control under United States of America law. Transfer or re- export of such items (whether or not incorporated into the Aircraft), as well as their related technology and software may require prior authorization from the US Government.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT A2 AND THE TERMS OF THE TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT A2 SHALL PREVAIL.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A2 to Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
AIRCRAFT CONFIGURATION
1. | STANDARD AIRCRAFT |
The Aircraft EMBRAER 175 shall be manufactured according to (i) the Technical Description [*****] dated as of November 2007 which although not attached hereto, are incorporated herein by reference, and (ii) the characteristics described in the items below.
2. | OPTIONAL EQUIPMENT: |
The Aircraft will also be fitted with the following options selected by Buyer:
ITEM |
EQUIPMENT | |
[*****] |
[*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A3 to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A3
AIRCRAFT CONFIGURATION
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] |
[*****]
[*****]
Item |
Equipment |
ECD | ||
[*****] | [*****] | July 31, 2008 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A3 to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A3
AIRCRAFT CONFIGURATION
[*****]
3. | FINISHING |
The Aircraft will be delivered to Buyer as follows:
3.1 | EXTERIOR FINISHING: |
The fuselage of the Aircraft shall be painted according to Buyers color and paint scheme, which shall be supplied to Embraer by Buyer on or before [*****] prior to the first Aircraft contractual delivery date. The wings and the horizontal stabilizer shall be supplied in the standard colors, i.e., grey BAC707.
Once defined, the choices of color and paint scheme made by Buyer shall apply to all Aircraft. If Buyer requires a color and paint scheme for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the relevant Aircraft shall be painted in according to the original paint and color scheme.
3.2 | INTERIOR FINISHING: |
Buyer shall inform Embraer on or before [*****] prior to the first Aircraft contractual delivery date of its choice of materials and colors of all and any item of interior finishing such as seat covers, carpet, floor lining on galley areas, side walls and overhead lining, galley lining and curtain. The above mentioned schedule for definition of interior finishing shall only be
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A3 to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A3
AIRCRAFT CONFIGURATION
applicable if Buyer selects its materials from the choices offered by and available at Embraer. In case Buyer opts to use different materials and/or patterns, such schedule shall be mutually agreed between the Parties at the time of signature of the Purchase Agreement.
Once defined, the choices of interior finishing made by Buyer shall apply to all Aircraft. If Buyer requires an interior finishing for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the interior of relevant Aircraft shall be built according to the original choice of Buyer.
3.3 | BUYER FURNISHED EQUIPMENT(BFE) AND BUYER INSTALLED EQUIPMENT (BIE): |
Any BFE materials shall conform to the required standards and comply with all applicable regulations and airworthiness requirements. Delays in the delivery of BFE materials or quality restrictions that prevent the installation thereof in the time frame required by the Aircraft manufacturing process shall entitle Embraer to either delay the delivery of the Aircraft or present the Aircraft to Buyer without such BFE, in which case Buyer shall not be entitled to refuse acceptance of the Aircraft. All BFE equipment shall be delivered in DDP conditions (Incoterms 2000) to C&D Zodiac 14 Centerpointe Drive, La Palma, CA 90623, USA, or to another place to be timely informed by Embraer.
The Aircraft galleys have space provisions for the following BIE items that, unless timely agreed by the Parties, are not supplied or installed by Embraer: Trolleys, ovens, coffee makers, hot jugs and standard units.
Medical kits, defibrillators and wheelchairs, as well as any other equipment classified as medical or pharmaceutical products, shall be BIE items.
3.4 | EMBRAER RIGHT TO PERFORM FOR BUYER: |
If Buyer fails to make any choice or definition which Buyer is required to make regarding the exterior and interior finishing of any Aircraft or to inform Embraer thereof, Embraer shall have the right, but not the obligation, to tender the Aircraft for delivery (a) painted white and (b) fitted with an interior finishing selected by Embraer at its reasonable discretion.
The taking of any such action by Embraer pursuant to this Article shall not constitute a waiver or release of any obligation of Buyer under the Purchase Agreement, nor a waiver of any event of default which may arise out of Buyers nonperformance of such obligation, nor an election or waiver by Embraer of any remedy or right available to Embraer under the Purchase Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A3 to Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A3
AIRCRAFT CONFIGURATION
No compensation to Buyer or reduction of the Aircraft Offer Price shall be due by virtue of the taking of any such actions by Embraer and Embraer shall be entitled to charge Buyer for the amount of the reasonable expenses of Embraer incurred in connection with the performance of or compliance with such agreement, as the case may be, payable by Buyer upon demand.
4. | REGISTRATION MARKS, TRANSPONDER AND ELT CODES: |
The Aircraft shall be delivered to Buyer with the registration marks painted on them. The registration marks, the transponder code and ELT protocol coding shall be supplied to Embraer by Buyer no later than [*****] before each relevant Aircraft contractual delivery date. Embraer shall be entitled to tender the Aircraft for delivery to Buyer without registration marks, with an inoperative transponder and without setting the ELT protocol coding in case Buyer fails to supply such information to Embraer in due time.
5. | EXPORT CONTROL ITEMS |
The Aircraft contains (i) an [*****] manufactured by [*****] with an embedded [*****] used for emergency backup and flight safety information, and (ii) [*****] manufactured by [*****]. The [*****] and the [*****] that are incorporated into this Aircraft are subject to export control under United States of America law. Transfer or re- export of such items (whether or not incorporated into the Aircraft), as well as their related technology and software may require prior authorization from the US Government.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT A3 AND THE TERMS OF THE TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT A3 SHALL PREVAIL.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A3 to Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
AIRCRAFT CONFIGURATION
1. | STANDARD AIRCRAFT |
The Aircraft EMBRAER 190 shall be manufactured according to (i) the Technical Description [*****] dated as of November 2007 which although not attached hereto, are incorporated herein by reference, and (ii) the characteristics described in the items below.
2. | OPTIONAL EQUIPMENT: |
The Aircraft will also be fitted with the following options selected by Buyer:
ITEM |
EQUIPMENT | |
[*****] |
[*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A4 to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A4
AIRCRAFT CONFIGURATION
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] |
[*****]
[*****]
Item |
Equipment |
ECD | ||
[*****] | [*****] | July 31, 2008 | ||
[*****] | [*****] | May 31, 2008 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A4 to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A4
AIRCRAFT CONFIGURATION
[*****]
3. | FINISHING |
The Aircraft will be delivered to Buyer as follows:
3.1 | EXTERIOR FINISHING: |
The fuselage of the Aircraft shall be painted according to Buyers color and paint scheme, which shall be supplied to Embraer by Buyer on or before [*****] prior to the first Aircraft contractual delivery date. The wings and the horizontal stabilizer shall be supplied in the standard colors, i.e., grey BAC707.
Once defined, the choices of color and paint scheme made by Buyer shall apply to all Aircraft. If Buyer requires a color and paint scheme for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the relevant Aircraft shall be painted in according to the original paint and color scheme.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A4 to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A4
AIRCRAFT CONFIGURATION
3.2 | INTERIOR FINISHING: |
Buyer shall inform Embraer on or before [*****] prior to the first Aircraft contractual delivery date of its choice of materials and colors of all and any item of interior finishing such as seat covers, carpet, floor lining on galley areas, side walls and overhead lining, galley lining and curtain. The above mentioned schedule for definition of interior finishing shall only be applicable if Buyer selects its materials from the choices offered by and available at Embraer. In case Buyer opts to use different materials and/or patterns, such schedule shall be mutually agreed between the Parties at the time of signature of the Purchase Agreement.
Once defined, the choices of interior finishing made by Buyer shall apply to all Aircraft. If Buyer requires an interior finishing for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the interior of relevant Aircraft shall be built according to the original choice of Buyer.
3.3 | BUYER FURNISHED EQUIPMENT(BFE) AND BUYER INSTALLED EQUIPMENT (BIE) |
Buyer may choose to have carpets, tapestries, seat covers and curtain fabrics supplied to Embraer for installation in the Aircraft as BFE. Materials shall conform to the required standards and comply with all applicable regulations and airworthiness requirements. Delays in the delivery of BFE equipment or quality restrictions that prevent the installation thereof in the time frame required by the Aircraft manufacturing process shall entitle Embraer to either delay the delivery of the Aircraft or present the Aircraft to Buyer without such BFE, in which case Buyer shall not be entitled to refuse acceptance of the Aircraft. All BFE equipment shall be delivered in DDP conditions (Incoterms 2000) to C&D Zodiac 14 Centerpointe Drive, La Palma, CA 90623, USA, or to another place to be timely informed by Embraer.
The Aircraft galleys have space provisions for the following BIE items that, unless timely agreed by the Parties, are not supplied or installed by Embraer: Trolleys, ovens, coffee makers, hot jugs and standard units.
Medical kits, defibrillators and wheelchairs, as well as any other equipment classified as medical or pharmaceutical products, shall be BIE items.
3.4 | EMBRAER RIGHT TO PERFORM FOR BUYER: |
If Buyer fails to make any choice or definition which Buyer is required to make regarding the exterior and interior finishing of any Aircraft or to inform Embraer thereof, Embraer shall have the right, but not the obligation, to tender the Aircraft for delivery (a) painted white and (b) fitted with an interior finishing selected by Embraer at its reasonable discretion.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A4 to Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A4
AIRCRAFT CONFIGURATION
The taking of any such action by Embraer pursuant to this Article shall not constitute a waiver or release of any obligation of Buyer under the Purchase Agreement, nor a waiver of any event of default which may arise out of Buyers nonperformance of such obligation, nor an election or waiver by Embraer of any remedy or right available to Embraer under the Purchase Agreement.
No compensation to Buyer or reduction of the Aircraft Offer Price shall be due by virtue of the taking of any such actions by Embraer and Embraer shall be entitled to charge Buyer for the amount of the reasonable expenses of Embraer incurred in connection with the performance of or compliance with such agreement, as the case may be, payable by Buyer upon demand.
4. | REGISTRATION MARKS, TRANSPONDER AND ELT CODES: |
The Aircraft shall be delivered to Buyer with the registration marks painted on them. The registration marks, the transponder code and ELT protocol coding shall be supplied to Embraer by Buyer no later than [*****] before each relevant Aircraft contractual delivery date. Embraer shall be entitled to tender the Aircraft for delivery to Buyer without registration marks, with an inoperative transponder and without setting the ELT protocol coding in case Buyer fails to supply such information to Embraer in due time.
5. | EXPORT CONTROL ITEMS |
The Aircraft contains (i) an [*****] manufactured by [*****] with an embedded [*****] used for emergency backup and flight safety information, and (ii) [*****] manufactured by [*****]. The [*****] and the [*****] that are incorporated into this Aircraft are subject to export control under United States of America law. Transfer or re- export of such items (whether or not incorporated into the Aircraft), as well as their related technology and software may require prior authorization from the US Government.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT A4 AND THE TERMS OF THE TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT A4 SHALL PREVAIL.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A4 to Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
1. | FERRY FLIGHT ASSISTANCE |
In the event that just after the delivery of the Aircraft Buyer needs to fly the Aircraft outside of the Brazilian territory, Embraer will make available to Buyer the services of a third party representative at the airport in which the Aircraft will make the last stop in Brazilian territory, to support Buyers crew in the interface with Brazilian customs clearances. Such services do not include handling services as refueling, ground equipment and communications and Buyer shall hire such services from a handling service company. Embraer may, if requested by Buyer, assist Buyer in contracting such services. Buyer shall also be responsible for the flight documents (including but no limited to IFR templates & charts) and overflight permits required for the ferry flight, except for the overflight permits for the Brazilian territory which will be provided by Embraer.
If it is necessary that any ferry equipment be installed by Embraer for the ferry flight between Brazil and the country where Buyer intends to fly the Aircraft (if any), Embraer will make available a standard and serviceable ferry equipment kit to Buyer (hereinafter the Kit) at [*****], except as set forth below. In this case, Buyer shall immediately upon its arrival at its final destination, remove the Kit from the Aircraft and return it to a freight forwarder agent as determined by Embraer, at Buyer own expense, including the necessary insurance.
If Embraer provides the Kit to Buyer and if the Kit is utilized, whether totally or not, in Embraers reasonable discretion, Buyer shall pay Embraer the value of a new Kit.
If the non-utilized Kit is not returned to Embraer in 60 Days after the respective Aircraft Delivery Date, complete and in the same condition as it was delivered to Buyer, the availability of another Kit for the first Aircraft ferry flight after such 90 Day period shall not be an Embraer obligation. Furthermore, Buyer shall pay Embraer the value of a new Kit.
In such cases, the original Kit shall become the property of Buyer, and the above- mentioned payment shall be made to Embraer by Buyer upon presentation of a sight draft by Embraer.
2. | PRODUCT SUPPORT PACKAGE |
2.1 | MATERIAL SUPPORT |
2.1.1 | SPARES POLICY |
Embraer guarantees the supply of spare parts, ground support equipment and tooling, except engines and its accessories, hereinafter referred to as Spare(s), for the Aircraft [*****]. Such Spares shall be supplied according to the prevailing availability, sale conditions, delivery schedule and effective price on the date of acceptance by Embraer of a purchase order placed by Buyer for any of such items. The Spares may be supplied either by Embraer in Brazil or through its subsidiaries or distribution centers located abroad.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
The sale and export of parts to Buyer may be subject to export controls and other export documentation requirements of the United States and other countries. Buyer agrees that neither Embraer nor any of its subsidiaries, affiliates or suppliers shall be liable for failure to provide parts and/or services, including without limitation the Services, under this Agreement or otherwise as a result of any ruling, decision, order, license, regulation, or policy of the competent authorities prohibiting the sale, export, re-export, transfer, or release of a part or its related technology. Buyer shall comply with any conditions and requirements imposed by the competent authorities and, upon Embraers request, shall execute and deliver to Embraer any relevant end- user certificates.
Export of the (i) [*****] manufactured by [*****] with an embedded [*****] used for emergency backup and flight safety information, and (ii) [*****] manufactured by [*****] incorporated into this Aircraft are subject to export control under United States of America law. Transfer or re-export of such items (whether or not incorporated into the Aircraft), as well as their related technology and software may require prior authorization from the US Government.
2.1.2 | RSPL |
Upon Buyers request, Embraer shall present to Buyer a recommended Spare provisioning list (the RSPL). The objective of the RSPL is to provide Buyer with a detailed list of Spares that will be necessary to support the initial operation and maintenance of the Aircraft by Buyer. Such recommendation will be based on the experience of Embraer and on the operational parameters established by Buyer.
Embraer will provide a qualified team to attend pre-provisioning conferences as necessary to discuss Buyer requirements and the RSPL as well as any available spare parts support programs offered by Embraer. Such meeting shall be held at a mutually agreed upon place and time, but in no event less than [*****] prior to the Contractual Delivery Date of the first Aircraft.
Buyer may acquire the items contained in the RSPL directly from Embraer or directly from Vendors. Items contained in the RSPL for which Buyer places a purchase order with Embraer (the IP Spares), will be delivered by Embraer to Buyer within [*****] in FCA [*****] condition, at the port of clearance indicated by Embraer.
In order to ensure the availability of IP Spares in accordance with the foregoing at the time of entry into service of the first Aircraft, Buyer commits to place a purchase order with Embraer for those IP Spares Buyer has decided to acquire from Embraer, as soon as practical and in any event not less than [*****] prior to the Contractual Delivery Date of the first Aircraft. At the reasonable request of Embraer, Buyer shall demonstrate that it has provided for the acquisition of those IP Spares that Buyer has
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
decided to acquire from sources other than Embraer, in order to complement the RSPL in a timely manner.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
[*****] |
[*****] | [*****] |
2.1.4 | OTHER SPARES SERVICES |
AOG services: Embraer will maintain a call center for the AOG services, twenty four (24) hours a day, seven (7) days a week. All the contacts with the call center can be made through regular direct lines in Brazil (phone and fax), e-mail and also through the AEROChain e-marketplace in case Buyer subscribes this service. The information concerning regular direct lines and e- mail address shall be obtained through the Customer Account Manager designated to Buyer by Embraer or through Embraers Customer Service offices. Embraer will, subject to availability, deliver parts pursuant to an AOG order from the location which is nearer to Buyer premises, in FCA [*****] condition, Embraer facility, in accordance with Buyers shipping instructions.
Other than AOG orders, Buyer may expedite spare parts orders as spare parts critical orders (imminent AOG or work stoppage situation) or as spare parts routine expedite orders (urgent stock replenishment USR). Embraer will give response advice, within the following times:
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Routine and/or Critical Spares: Embraer will deliver routine and/or critical Spares (other than AOG Spares) in FCA condition, Embraer facility, from the location were such spares are available. Routine and/or critical Spares shall be delivered according to their lead times, depending upon the purchase order priority. All spares will be delivered with the respective authorized release certificate or any similar document issued by a duly authorized person.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
2.2 | AIRCRAFT TECHNICAL PUBLICATIONS |
2.2.1 | AIRCRAFT PUBLICATIONS |
Embraer shall supply, [*****], a total of [*****] complete sets of operational and maintenance publications applicable thereto, in the English language, in accordance with the list contained in Exhibit 1 to this Attachment B. The media [*****] shall be agreed by the Parties [*****] otherwise all publications available [*****] shall be delivered in such media. [*****] of the operational publication in the hard copy format shall be provided by Embraer onboard of each Aircraft.
Such publications are issued under the applicable specification. The revision service for these publications, including mailing services [*****], shall be provided, [*****]. After such period, the mailing services shall also be borne by Buyer. Such publications will be delivered together with the Aircraft.
2.2.2 | VENDOR ITEMS PUBLICATIONS |
Technical publications regarding, among others, parts, systems or equipment supplied by Vendors and installed by Embraer in the Aircraft during the manufacturing process, will be supplied to Buyer directly by such Vendors, in the same quantity as the Embraer technical publication as specified in Article 2.2.1, in their original content and printed form. Vendors are also responsible to keep publications updated through a direct communication system with Buyer. Embraer shall use commercially reasonable efforts to cause Vendors to supply their respective technical publications in a prompt and timely manner.
2.2.3 | [*****] |
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
[*****]
2.2.4 | [*****] |
2.3 | SERVICES |
[*****], except as set forth below, Embraer shall provide the Services described in this Article 2.3, in accordance with the terms and conditions below:
2.3.1 | Familiarization Programs: |
a. | The familiarization programs specified below are offered [*****] with regards to the Aircraft, [*****] and which differ from or are supplementary to the familiarization programs described herein. |
b. | The familiarization programs shall be conducted by the Embraer designated training provider, in accordance with the scope, syllabi and duration of the training program developed by Embraer or the Embraer- designated training provider, in accordance with all applicable regulations and requirements of and approved by the Airworthiness Authority. Buyer may choose to use the training program of Embraer as is or to develop its own training program based on that of Embraer. In any case Buyer shall be solely responsible for preparing and submitting its training programs to the Airworthiness Authority for approval. |
c. | All familiarization programs shall be provided at the training centers of Embraer or its qualified designated representative at its training center or in such other location as Embraer or training provider may reasonably designate. Buyer shall be responsible for costs and expenses related to training services (including but not limited to instructor travel tickets, local transportation, lodging, per diem and non-productive days) carried outside such designated training facilities. |
Embraer shall use commercially reasonable efforts to make the familiarization programs available in Brazil to the extent that the use of an EMBRAER 195 full flight simulator (FFS), or other training devices which are not available in Brazil, is not required. Whenever a FFS or other training devices which are not available in Brazil is required for the familiarization Embraer shall use commercially reasonable efforts to
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 6 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
secure training is available to Buyer at an Embraer-designated training provider in the United States, Central America or South America.
Notwithstanding any of the foregoing to the contrary, in consideration of Buyer entering into a Purchase Agreement with Embraer [*****].
[*****]
[*****]
d. | Notwithstanding the eventual use of the term training in this paragraph 2.3.1, the intent of this program is solely to familiarize Buyers pilots, mechanics, employees or representatives with the operation and maintenance of the Aircraft. It is not the intent of Embraer to provide basic training (ab-initio) to any representatives of Buyer. |
e. | Any trainee appointed by Buyer for participation in any of the familiarization programs shall be duly qualified per the governing body in the country of Buyers operation and fluent in the English language as all training will be conducted in, and all training material will be presented in, such language. Pilots and mechanics shall also have previous experience in the operation and maintenance, as applicable, of jet aircraft or, as a minimum, of twin-engine turboprop aircraft. Neither Embraer nor training provider make any representation or give any guarantee regarding the successful completion of any training program by Buyers trainees, for which Buyer is solely responsible. |
f. | The familiarization programs shall be carried out prior to the Contractual Delivery Date of the last Aircraft, in accordance with a schedule to be agreed upon by Buyer and Embraer not less than [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 7 of 13 |
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ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
prior to the intended beginning of such training schedule. Buyer shall give [*****] advance notice to Embraer of the full name and professional identification data of each trainee. Substitutions of appointed trainees will not be accepted during this period.
g. | Training entitlements regarding each Aircraft that remain unused up to [*****] following the Actual Delivery Date of such Aircraft shall expire and Buyer shall be deemed to have [*****] its rights to such service, no refund or compensation being due by Embraer to Buyer in this case. |
h. | The familiarization programs referred to above covers: |
h.1 | One (1) Pilot familiarization program including (i) a [*****] ground familiarization course as regards Aircraft systems, weight and balance, performance and normal/emergency procedures for up to [*****] and, (ii) [*****] simulator sessions of [*****]. Simulator training includes the services of an instructor and will be carried out on a level D simulator. Buyer shall be solely responsible for selecting experienced training pilots that are fluent in English and duly qualified in multi-engine aircraft operations, navigation and communication. |
h.2 | One (1) maintenance familiarization course for up to [*****] qualified mechanics [*****]. This course shall consist of classroom familiarization with Aircraft systems and structures and shall be in accordance with ATA specification 104, level III. |
h.3 | One (1) Flight Attendant [*****] course for up to [*****] to a [*****] course as regards emergency and abnormal duties, crowd control management, handling of dangerous goods and emergency procedures. |
i. | The presence of Buyers authorized trainees shall be allowed exclusively in those areas related to the subject matter hereof and Buyer agrees to hold harmless Embraer from and against all and any kind of liabilities in respect of such trainees to the extent permitted by law. |
2.3.2 | [*****]: |
a. | With respect to the [*****] Aircraft Embraer shall provide [*****] the following [*****] services: |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 8 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 9 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
b. | At no charge to Embraer, Buyer shall provide the Embraer Rep with communication services (international telephone line, facsimile, high speed internet service and photocopy equipment) as well as suitable secure and private office facilities and related equipment including desk, table, chairs and file cabinet, located at Buyers main base of operation or other location as may be mutually agreed. Buyer shall also (a) arrange all necessary work permits and airport security clearances required for Embraer representatives, to permit the accomplishment of the services mentioned in this item 2.3.2, in due time; and (b) obtain all necessary custom clearances both to enter and depart from Buyers country for Embraers representatives and their personal belongings and professional tools. |
c. | During the stay of the Embraer Rep at Buyers facilities, Buyer shall permit access to the maintenance and operation facilities as well as to the data and files of Buyers Aircraft fleet. |
d. | Embraer shall bear all expenses of the Embraer Rep, including without limitation transportation, board and lodging, while the Embraer Rep is rendering such [*****] at Buyers facilities. Buyer shall bear all expenses related to the transportation, board & lodging of the Embraer Rep in the event such representative is required to render the services provided for herein in any place other than Buyers main operation base (for the pilots) or main maintenance base (for the mechanics). At no charge to Embraer, Buyer shall provide the Embraer pilots which are in the start-up team with transportation means from/to Buyer operational base or airport where such pilots will render the services, so that the pilots can report to Buyers operation facilities or leave the airport in a timely manner according to the schedule of the flights they are engaged in. |
e. | The Embraer Rep shall not participate in test flights or flight demonstrations without the previous written authorization from Embraer. |
f. | Buyer shall include Embraer as additional insured in the Comprehensive Airline Liability insurance policies carried by Buyer, without recourse against Embraer for any failure, act or omission of Embraer Rep while rendering the services described in this paragraph 2.3.2, in such a manner as to cover any and all risks arising from or in any way connected with the Embraer Rep assistance. For such effect, Buyer shall supply Embraer with a copy of the endorsements to the insurance policies, in accordance with the clauses contained in Exhibit 2 to this Attachment B, within [*****] prior to the date on which Embraer Rep services are to begin, as applicable. |
g. | The Parties further understand and agree that in the event Buyer elects not to take all or any portion of the [*****] provided for herein, [*****]. Any |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 10 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
other additional [*****] shall depend on mutual agreement between the Parties and shall be charged by Embraer accordingly.
h. | The presence of Embraer Rep shall be allowed exclusively in those areas related to the subject matter hereof. |
i. | Embraer may, at its own cost and without previous notice to Buyer, substitute at its sole discretion the Embraer Reps rendering the Services at any time during the period in which Services are being rendered. |
j. | The rendering of the Services by Embraers Rep shall, at all times, be carried out in compliance the applicable Brazilian labor legislation. |
k. | During the rendering of the Services, while on the premises of Buyer, Embraer Reps shall strictly follow the administrative routines and proceedings of Buyer, which shall have been expressly and clearly informed to Embraer Reps upon their arrival at said premises. |
l. | There shall be no legal bond of whatever nature between Buyer and Embraer Reps pursuant to labor and welfare issues. Hence, Embraer shall bear all labor and welfare burdens stipulated by law in relation to the Embraer Reps. |
m. | Embraer shall have the right to interrupt the rendering of the Services (i) should any situation occur which, at the discretion of Embraer, could represent a risk to the safety or health of Embraer Reps or (ii) upon the occurrence of any of the following events: strike, insurrection, labor disruptions or disputes, riots, or military conflicts. Upon the occurrence of such an interruption, Embraer shall resume the rendering of the Services for the remainder period immediately after having been informed by Buyer, in writing, of the cessation thereof. No such interruption in the rendering of the Services shall give reason for the extension of the Services beyond the periods identified above. |
n. | Buyer agrees to indemnify and hold harmless Embraer and Embraers officers, agents, employees and assignees from and against all liabilities, damages, losses, judgments, claims and suits, including costs and expenses incident thereto, which may be suffered by, accrued against, be charged to or recoverable from Embraer and/or Embraers officers, agents, employees and assignees by reason of loss or damage to property or by reason of injury or death of any person resulting from or in any way connected with the performance of services by employees, representatives or agents of Embraer for or on behalf of Buyer related to Aircraft delivered by Embraer to Buyer, including, but not limited to, the Services and any other services such as technical operations, maintenance, and training services and assistance performed while on the premises of Embraer or Buyer, while in flight on Buyer-owned Aircraft or while performing such activities, at any place, in conjunction with the Aircraft operations of Buyer, except to the extent attributable to the gross |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0384-14 Execution Version | Page 61 of 30 |
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ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
negligence | or willful misconduct of Embraer, its officers, agents employees and assignees. |
2.3.3 | Account Manager: |
Embraer shall assign one (1) non-dedicated Account Manager to support Buyer shortly after execution of the Purchase Agreement and to support the operations of all Aircraft in Buyers fleet in revenue service for passenger transportation. The Account Manager will be responsible for coordinating all product support related actions of Embraer to assure a smooth Aircraft introduction into service and, thereafter, for concentrating and addressing all issues concerning the operation of the Aircraft by Buyer. A team composed of regional technical representatives, regional spare parts representatives and regional field engineers, as necessary and applicable, shall support the Account Manager.
2.4 | Product Support Package for the Exercised Option Aircraft And Exercised Purchase Right Aircraft |
The product support package for the exercised Option and Purchase Right Aircraft shall be limited to the familiarization program for up to [*****] per exercised Option and Purchase Right Aircraft.
2.5 | Technical and Engineering Support: |
Embraer shall provide remote technical, engineering and flight operations support services three hundred sixty five days a year, twenty four (24) hours a day and seven (7) days a week, for airframe and systems. This service may be accessed by phone, fax and e-mail at the main facilities of Embraer. The technical and engineering support service is designed to support daily operations of the Aircraft by Buyer by assisting Buyer with the identification and investigation of the causes of in-services issues and during AOG situations, as required. The flight operations support service is designed to support Buyer in the use of flight operations publications and [*****]. This service is offered [*****] within such scope and is available for as long as Buyer continues to operate the Aircraft type in regular passenger revenue service. Embraer and Buyer shall agree service standards applicable to technical and engineering support during the negotiation of the Purchase Agreement.
Technical and engineering support is also available to assist Buyer in performing minor structural repairs on the Aircraft, such as dents, abrasions, scrapes and similar damages during normal operations, or caused by ground handling personnel and vehicles while servicing the Aircraft on ground. Such assistance consists of the analysis of damage reports submitted by Buyer, preparation of instructions for repair in accordance with structural repair standard of Embraer. This support shall be provided [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 12 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 13 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1LIST OF TECHNICAL PUBLICATIONS
The technical publications covering Aircraft operation and maintenance shall be delivered to Buyer in accordance with the following list:
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[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Exhibit 1 to Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 1 |
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 2 LIST OF TECHNICAL PUBLICATIONS
Buyer shall include the following clauses in its Hull and Comprehensive Airline Liability insurance policies:
a) | Hull All Risks Policy, including War, Hi-jacking and Other Perils. |
It is hereby understood and agreed that Insurers agree to waive rights of subrogation against Embraer with regard to the insured Aircraft.
This endorsement shall not operate to prejudice Insurers rights of recourse against EmbraerEmpresa Brasileira de Aeronáutica S.A. as manufacturer, repairer, supplier or servicing agent where such right of recourse would have existed had this endorsement not been effected under this Policy.
b) | Comprehensive Airline Liability Policy, based on the AVN53 Additional Insured Endorsement |
It is hereby understood and agreed that EmbraerEmpresa Brasileira de Aeronáutica S.A. including any business entity owned by or subsidiaries to Embraer, and all partners, executive officers, employees and stock holders, are added as Additional Insured only with respect to the operation of the Aircraft by the Named Insured.
This endorsement does not provide coverage for any Additional Insured with respect to claims arising out of its legal liability as manufacturer, repairer, supplier or servicing agent and shall not operate to prejudice Insurers right of recourse against any Additional Insured as manufacturer, repairer, supplier or servicing agent.
c) | Notwithstanding anything to the contrary as specified in the Policy or any endorsement thereof, the coverage stated in paragraphs 1 and 2 above, shall not be cancelled or modified by the Insurer, without [*****] advance written notice to Embraer to such effect. |
This Endorsement attaches to and forms part of Policy No. , and is effective from the day of , 200 .
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Exhibit 2 to Attachment B to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 1 |
CONFIDENTIAL TREATMENT REQUESTED
WARRANTYMATERIAL AND WORKMANSHIP
1) | Embraer, subject to the conditions and limitations hereby expressed, warrants the Aircraft, as follows: |
a. | For a period of [*****] from the date of delivery to Buyer, the Aircraft will be free from: |
| Defects in materials, workmanship and manufacturing processes in relation to parts manufactured by Embraer or by its subcontractors holding an Embraer part number; |
| Defects inherent to the design of the Aircraft and its parts designed or manufactured by Embraer or by its subcontractors holding an Embraer part number. |
b. | For a period of [*****] from the date of delivery to Buyer, the Aircraft will be free from: |
| Defects in operation of parts manufactured by Vendors, excluding the Engines, Auxiliary Power Unit (APU) and their accessories (Vendor Parts), as well as failures of Vendor Parts due to incorrect installation or installation not complying with the instructions issued or approved by their respective Vendors. For the purpose of this warranty, Engine shall mean the complete power plant system which comprises the engine, the nacelle including thrust reverser, the engine mounting structure, all systems inside the nacelle and their integration with the Aircraft, and the Full Authority Digital Engine Control (FADEC) unit. |
| Defects due to non-conformity of Vendor Parts to the technical specification referred to in the Purchase Agreement. |
Once the above mentioned periods have expired, Embraer will transfer to Buyer the original Warranty issued by the Vendors, if it still exists.
2) | The obligations of Embraer as expressed in this Warranty are limited to replacing or repairing defective parts, depending solely upon its own judgment. The defective parts shall be returned to Embraer or its representatives within a period of [*****] after the occurrence of the defect, at Buyers own expense (including but not limited to, freight, insurance, customs duties), adequately packed, provided that such components are actually defective and that the defect has occurred within the periods stipulated in this certificate. Should the defective part not be returned to Embraer within [*****] period, Embraer may have the right, at its sole discretion, to deny the warranty claim. |
NOTE: | Notification of any defect claimed under this item 3 must be given to Embraer within [*****] after such defect is found. |
Freight, insurance, taxes and other costs incurred by Embraer or its representative for the return of the part to Buyer, as well as the associated costs with the re- installation and adjustments are Buyers responsibility.
Parts supplied to Buyer as replacement for defective parts are warranted for the balance of the warranty period still available from the original warranty of the exchanged parts.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment C to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 3 |
ATTACHMENT C
WARRANTYMATERIAL AND WORKMANSHIP
3) | Embraer will accept no warranty claims under any of the circumstances listed below: |
a. | When the Aircraft has been used in an attempt to break records, or subjected to experimental flights, or in any other way not in conformity with the flight manual or the airworthiness certificate, or subjected to any manner of use in contravention of the applicable aerial navigation or other regulations and rules, issued or recommended by government authorities of whatever country in which the aircraft is operated, when accepted and recommended by I.C.A.O.; |
b. | When the Aircraft or any of its parts have been altered or modified by Buyer, without prior approval from Embraer or from the manufacturer of the parts through a service bulletin; |
c. | Whenever the Aircraft or any of its parts have been involved in an accident, or when parts either defective or not complying to manufacturers design or specification have been used; |
d. | Whenever parts have had their identification marks, designation, seal or serial number altered or removed; |
e. | In the event of negligence, misuse or maintenance services done on the Aircraft, or any of its parts not in accordance with the respective maintenance manual; |
f. | In cases of deterioration, wear, breakage, damage or any other defect resulting from the use of inadequate packing methods when returning items to Embraer or its representatives. |
4) | This Warranty does not apply to (a) Buyer-furnished equipment (BFE) or Buyer- installed equipment (BIE), (b) expendable items, whose service life or maintenance cycle is lower than the warranty period, and (c) materials or parts subjected to deterioration. |
5) | The Warranty hereby expressed is established between Embraer and Buyer, and it cannot be transferred, assigned or novated to any third party, except as provided otherwise pursuant to Article 14 (Assignment) of the Purchase Agreement. |
6) | TO THE EXTENT PERMITTED BY LAW, THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND REMEDIES OF BUYER SET FORTH IN THIS WARRANTY CERTIFICATE ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND ANY ASSIGNEE OF EMBRAER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST EMBRAER OR ANY ASSIGNEE OF EMBRAER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMANCE OR DEFECT OR FAILURE OR ANY OTHER REASON IN ANY AIRCRAFT OR OTHER THING DELIVERED UNDER THE PURCHASE AGREEMENT OF WHICH THIS IS AN |
Attachment C to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 3 |
ATTACHMENT C
WARRANTYMATERIAL AND WORKMANSHIP
ATTACHMENT, INCLUDING DATA, DOCUMENT, INFORMATION OR SERVICE, INCLUDING BUT NOT LIMITED TO:
a. | ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; |
b. | ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; |
c. | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OR OTHER RELATED CAUSES OF EMBRAER OR ANY ASSIGNEE OF EMBRAER, WHETHER ACTIVE, PASSIVE OR IMPUTED; AND |
d. | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT, FOR LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO ANY AIRCRAFT OR FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. |
7) | No representative or employee of Embraer is authorized to establish any other warranty than the one hereby expressed, nor to assume any additional obligation, relative to the matter, in the name of Embraer and therefore any such statements eventually made by, or in the name of Embraer, shall be void and without effect. |
Attachment C to Purchase Agreement COM0041-08 Rev. 3 |
Page 3 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
ESCALATION FORMULA
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT D
ESCALATION FORMULA
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT D
ESCALATION FORMULA
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 Rev. 3 | Page 6 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 Rev. 3 | Page 7 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 Rev. 3 | Page 8 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E2 to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E2
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E2 to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E2
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E2 to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E2
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E2 to Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E2
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E2 to Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E2
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E2 to Purchase Agreement COM0041-08 Rev. 3 | Page 6 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E2
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E2 to Purchase Agreement COM0041-08 Rev. 3 | Page 7 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E2
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E2 to Purchase Agreement COM0041-08 Rev. 3 | Page 8 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E3 to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E3
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E3 to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E3
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E3 Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E3
PERFORMANCE AND WEIGHT GUARANTEE
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[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E3 Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E3
PERFORMANCE AND WEIGHT GUARANTEE
[*****]
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[*****] [*****]
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[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E3 Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E3
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E3 Purchase Agreement COM0041-08 Rev. 3 | Page 6 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E3
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E3 Purchase Agreement COM0041-08 Rev. 3 | Page 7 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E3
PERFORMANCE AND WEIGHT GUARANTEE
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E3 Purchase Agreement COM0041-08 Rev. 3 | Page 8 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
PERFORMANCE AND WEIGHT GUARANTEE
[*****] | [*****] |
[*****] |
[*****] | [*****] |
[*****]
[*****]
[*****]
[*****]
[*****] | [*****] |
[*****]
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[*****]
[*****]
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[*****] | [*****] |
[*****]
[*****] | [*****] |
[*****]
[*****] | [*****] |
[*****]
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] |
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[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
[*****] |
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[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
[*****] |
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[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 to Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Purchase Agreement COM0041-08 Rev. 3 | Page 6 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Purchase Agreement COM0041-08 Rev. 3 | Page 7 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Purchase Agreement COM0041-08 Rev. 3 | Page 8 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
DISPATCH RELIABILITY GUARANTEE
This Attachment F specifies the terms and conditions of the Dispatch Reliability
Guarantee (DRG) [*****].
[*****] | [*****] |
[*****]
[*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment F to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 7 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT F
DISPATCH RELIABILITY GUARANTEE
[*****] | [*****] |
[*****]
[*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] |
[*****] | [*****] |
[*****] |
[*****] | [*****] |
[*****] |
[*****] [*****]
[*****] [*****]
[*****] |
[*****] | [*****] |
[*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment F to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 7 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT F
DISPATCH RELIABILITY GUARANTEE
[*****]
[*****] |
[*****] | [*****] |
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] | [*****] |
[*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment F to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 7 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT F
DISPATCH RELIABILITY GUARANTEE
[*****] | [*****] |
[*****] | [*****] |
[*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
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[*****] [*****]
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[*****]
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment F to Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 7 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT F
DISPATCH RELIABILITY GUARANTEE
[*****]
[*****] | [*****] |
[*****] | [*****] |
[*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment F to Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 7 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT F
DISPATCH RELIABILITY GUARANTEE
[*****] | [*****] |
[*****] | [*****] |
[*****] [*****]
[*****] [*****]
[*****] [*****]
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[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment F to Purchase Agreement COM0041-08 Rev. 3 | Page 6 of 7 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT F
DISPATCH RELIABILITY GUARANTEE
[*****]
[*****] | [*****] |
[*****] |
[*****] |
[*****] | [*****] |
[*****] |
[*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment F to Purchase Agreement COM0041-08 Rev. 3 | Page 7 of 7 |
CONFIDENTIAL TREATMENT REQUESTED
SERVICE LIFE GUARANTEE
This Attachment G specifies the terms and conditions of the Service Life Guarantee (SLG) [*****].
[*****] | [*****] |
[*****] | [*****] |
[*****]
[*****]
[*****]
[*****]
[*****]
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[*****] | [*****] |
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[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
SERVICE LIFE GUARANTEE
[*****] [*****]
[*****] [*****]
[*****] [*****]
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[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
SERVICE LIFE GUARANTEE
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL
AMENDMENT No.1 TO PURCHASE AGREEMENT COM0041-08
This Amendment No.1 to the Purchase Agreement dated as of April 30, 2008, (the Amendment No.1) is entered into by and between EmbraerEmpresa Brasileira de Aeronáutica S.A. (Embraer) and Canela Investments LLC (Buyer), collectively referred to herein as the Parties and relates to Purchase Agreement COM0041-08 dated March 11th, 2008, as amended from time to time in writing by the Parties (the Purchase Agreement).
This Amendment No.1 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.1 and the Purchase Agreement this Amendment No.1 shall control.
WHEREAS:
1) | Pursuant and subject to the terms and conditions of the Purchase Agreement, Buyer shall buy and Embraer shall sell [*****] EMBRAER 195 LR Aircraft (the Aircraft) and pursuant to which, Buyer was granted the right to purchase up to [*****] Option Aircraft and [*****] Purchase Right Aircraft; |
2) | Buyer and Embraer have agreed to accelerate the delivery schedule of eleventh and seventh Aircraft, previously forecasted in March and September 2010, to August and November 2009, respectively; |
3) | Buyer has requested and Embraer has agreed that the [*****]; |
4) | As a consequence of the above agreements the Contractual Delivery Dates described in Article 5 of the Purchase Agreement shall be modified, and the Aircraft Basic Price as set forth in Article 4 of the Purchase Agreement shall be modified as herein stated. |
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree, as follows:
1. | ALTERATION OF THE AIRCRAFT DELIVERY SCHEDULE |
Article 5 of the Purchase Agreement is hereby deleted and replaced as follows:
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment Nº 1 to Purchase Agreement COM0050-08 COM0094-08 |
Page 1 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL
Aircraft |
Contractual Delivery Date |
Aircraft |
Contractual Delivery Date | |||
01 |
December 2008 | 19 | November 2010 | |||
02 |
December 2008 | 20 | December 2010 | |||
03 |
December 2008 | 21 | January 2011 | |||
04 |
January 2009 | 22 | February 2011 | |||
05 |
March 2009 | 23 | March 2011 | |||
06 |
May 2009 | 24 | April 2011 | |||
07 |
June 2009 | 25 | May 2011 | |||
08 |
August 2009 | 26 | June 2011 | |||
09 |
September 2009 | 27 | July 2011 | |||
10 |
November 2009 | 28 | August 2011 | |||
11 |
January 2010 | 29 | September 2011 | |||
12 |
February 2010 | 30 | October 2011 | |||
13 |
April 2010 | 31 | November 2011 | |||
14 |
May 2010 | 32 | December 2011 | |||
15 |
June 2010 | 33 | January 2012 | |||
16 |
July 2010 | 34 | March 2012 | |||
17 |
August 2010 | 35 | May 2012 | |||
18 |
October 2010 | 36 | September 2012 |
2. | AIRCRAFT BASIC PRICE |
Article 3.1 of the Purchase Agreement is hereby deleted and replaced as follows:
Buyer agrees to pay Embraer, in United States dollars, for each Aircraft the sum of [*****], [*****] (the Aircraft Basic Price).
3. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments and Letter Agreements, which are not specifically amended by this Amendment No.1, shall remain in full force and effect without any change.
4. | COUNTERPARTS |
This Amendment No.1 may be signed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
This Amendment No.1 may be signed by facsimile with originals duly signed to follow by an internationally recognized courier.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment Nº 1 to Purchase Agreement COM0050-08 COM0094-08 |
Page 2 of 3 |
Execution version
CONFIDENTIAL
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No.1 to be effective as of the date first written above.
EMBRAEREmpresa Brasileira | Canela Investments LLC | |||||
de Aeronáutica S.A. | ||||||
By: | /s/ Satoshi Yakota |
By: | /s/ Gerald B. Lee | |||
Name: | Satoshi Yakota | Name: | Gerald B. Lee | |||
Title: | Executive Vice President | Title: | Managing Director | |||
Strategic Planning and | ||||||
Technology Development | ||||||
By: | /s/ José Luís D. Molina |
|||||
Name: | José Luís D. Molina | |||||
Title: | Vice President Contracts | |||||
Airline Market | ||||||
Date: | June 6, 2008 |
Date: | May 30th, 2008 | |||
Place: | São José dos Campos SP |
Place: | São José dos Campos SP | |||
Brazil | Brazil |
WITNESS: |
WITNESS: | |||||||
s/ Marcio Rodolfo Moneira |
| |||||||
Name: | MARCIO RODOLFO MOREIRA | Name: | ||||||
ID: | 15721595-7 | ID: |
Amendment Nº 1 to Purchase Agreement COM0050-08 COM0094-08 |
Page 3 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL
AMENDMENT No.2 TO PURCHASE AGREEMENT COM0041-08
This Amendment No.2 (Amendment No.2) dated as of July 31, 2008, is entered into by and between Embraer Empresa Brasileira de Aeronáutica S.A. (Embraer) and Canela Investments LLC (Buyer), collectively referred to herein as the Parties and relates to Purchase Agreement COM0041-08 dated March 11th, 2008, as amended from time to time in writing by the Parties (the Purchase Agreement).
This Amendment No.2 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.2 and the Purchase Agreement, this Amendment No.2 shall control.
WHEREAS:
1) | Pursuant and subject to the terms and conditions of the Purchase Agreement, Buyer shall buy and Embraer shall sell [*****] EMBRAER 195 LR Aircraft (the Aircraft) and pursuant to which, Buyer was granted the right to purchase up to [*****] Option Aircraft and [*****] Purchase Right Aircraft; |
2) | The Parties have agreed to convert [*****] [*****] Aircraft into [*****] Aircraft, as well as to revise the delivery schedule set forth in Article 5 of the Purchase Agreement; |
3) | Embraer and Buyer wish to set forth additional agreements of the Parties with respect to certain matters related to the purchase of the above referenced Aircraft. |
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | INTERPRETATION |
1.1 | DEFINITIONS |
a) | Item 1.1.4 shall be deleted and replace as follows: |
1.1.4 Aircraft: shall mean an EMBRAER 190 Aircraft or EMBRAER 195 Aircraft, as defined below, and where the context requires all of such Aircraft.
1.1.4.1 EMBRAER 190 Aircraft or E190 Aircraft: shall mean the EMBRAER 190 LR version aircraft (certification designation ERJ 190-100 IGW) manufactured by Embraer according to Attachment A4, for sale to Buyer pursuant to this Agreement, equipped with two engines identified therein (or, where there is more than one of such aircraft, each of such aircraft) to be purchased by Buyer pursuant to this Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
COM0192-08 Amendment No. 2 to the Purchase Agreement COM0041-08 | Page 1 of 5 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL
1.1.4.3 EMBRAER 195 Aircraft or E195 Aircraft: shall mean the EMBRAER 195 AR version (certification designation: ERJ 190-200 IGW) aircraft listed manufactured by Embraer according to Attachment A-1, for sale to Buyer pursuant to this Agreement, equipped with two engines identified therein (or, where there is more than one of such aircraft, each of such aircraft).
2. | SUBJECT |
Article 2 of the Purchase Agreement shall be modified to read as follows: Subject to the terms and conditions of this Agreement:
2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of [*****] E195 Aircraft and [*****] E190 Aircraft;
2.2 Embraer shall provide to Buyer the Services and the Technical Publications as described in Attachment B to this Agreement; and
2.3 Buyer shall have the option to purchase up to [*****] Option Aircraft and up to [*****] Purchase Right Aircraft, in accordance respectively with Articles 21 and 22.
3. | PRICE |
Article 3.1 of the Purchase Agreement shall be modified to read as follows:
3.1 Buyer agrees to pay Embraer, in United States dollars, for each E190 Aircraft the sum of [*****] (both defined as the Aircraft Basic Price).
4. | DELIVERY |
Article 5 of the Purchase Agreement shall be modified to read as follows:
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft |
Contractual Delivery Date |
Aircraft |
Contractual Delivery Date | |||
01(E195) |
November 2008 | 19(E195) | November 2010 | |||
02(E195) |
December 2008 | 20(E195) | December 2010 | |||
03(E195) |
December 2008 | 21(E195) | January 2011 | |||
04 (E195) |
January 2008 | 22 (E195) | February 2011 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
COM0192-08 Amendment No. 2 to the Purchase Agreement COM0041-08 | Page 2 of 5 |
Execution version
CONFIDENTIAL
05 (E195) |
February 2009 | 23 (E195) | March 2011 | |||
06(E190) |
April 2009 | 24(E195) | April 2011 | |||
07(E190) |
May 2009 | 25(E195) | May 2011 | |||
08(E190) |
June 2009 | 26(E195) | June 2011 | |||
09(E190) |
July 2009 | 27(E195) | July 2011 | |||
10(E190) |
November 2009 | 28(E195) | August 2011 | |||
11(E195) |
January 2010 | 29(E195) | September 2011 | |||
12(E195) |
February 2010 | 30(E195) | October 2011 | |||
13(E195) |
Apri 2010 | 31(E195) | November 2011 | |||
14(E195) |
May 2010 | 32(E195) | December 2011 | |||
15(E195) |
June 2010 | 33(E195) | January 2012 | |||
16(E195) |
July 2010 | 34(E195) | March 2012 | |||
17(E195) |
August 2010 | 35(E195) | May 2012 | |||
18(E195) |
October 2010 | 36(E195) | September 2012 |
5.2 With regards to the delivery of the two (2) Aircraft in December 2008, Embraer will use commercially reasonable efforts to adjust the schedule so that the first Aircraft is tendered for inspection, acceptance and subsequent delivery to Buyer between the 1st and the 10th of December 2008.
5. | CERTIFICATION |
Article 6.1 of the Purchase Agreement shall be modified to read as follows:
6.1 The E190 and E195 Aircraft are type certified pursuant to airworthiness requirement RBHA 25 (Regulamento Brasileiro de Homologação Aeronáutica) (Airworthiness StandardsTransport Category Airplanes), corresponding to U.S. FAR part 25, including amendments 25-1 through to 25-117, except section 25.981(c) of Amendment 25-102, Amendment 25-106, Section 25.735(h) of Amendment 25-107, Amendment 111 , Amendment 115 and Amendment 116.
6. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No.2, shall remain in full force and effect without any change.
COM0192-08 Amendment No. 2 to the Purchase Agreement COM0041-08 | Page 3 of 5 |
Execution version
CONFIDENTIAL
7. | COUNTERPARTS |
This Amendment No.2 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
COM0192-08 Amendment No. 2 to the Purchase Agreement COM0041-08 | Page 4 of 5 |
Execution version
CONFIDENTIAL
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No.2 to be effective as of the date first written above.
EMBRAEREmpresa Brasileira de Aeronáutica S.A.
|
Canela Investments LLC
| |||||
By: | /s/ Mauro Kern Junior |
By: | /s/ Gerald B. Lee | |||
Name: | Mauro Kern Junior | Name: | Gerald B. Lee | |||
Title: | Executive Vice President | Title: | Managing Director | |||
Airline Market | ||||||
By: | /s/ José Luís D. Molina |
|||||
Name: | José Luís D. Molina | |||||
Title: | Vice President Contracts Airline Market |
|||||
Date: | 13 August / 2008 |
Date: | May 30th, 2008 | |||
Place: | SJ Campos |
Place: | São Paulo | |||
WITNESS: |
WITNESS: | |||||||
s/ Marcio Rodolfo Moneira |
/s/ Joice B. Doutel | |||||||
Name: | MARCIO RODOLFO MOREIRA | Name: | Joice Bigliazzi Doutel | |||||
ID: | 15721595-7 | ID: | 30 941 474-4 |
COM0192-08 Amendment No. 2 to the Purchase Agreement COM0041-08 | Page 5 of 5 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL
AMENDMENT No.3 TO PURCHASE AGREEMENT COM0041-08
This Amendment No.3 to the Purchase Agreement dated as of October 21st, 2008, (the Amendment No.3) is entered into by and between EmbraerEmpresa Brasileira de Aeronáutica S.A. (Embraer) and Canela Investment LLC. (Buyer), collectively referred to herein as the Parties and relates to Purchase Agreement COM0041-08 dated March 11th, 2008, as amended from time to time in writing by the Parties (the Purchase Agreement).
This Amendment No.3 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.3 and the Purchase Agreement, this Amendment No.3 shall control.
WHEREAS:
1) | Pursuant and subject to the terms and conditions of the Purchase Agreement, Buyer shall buy and Embraer shall sell [*****] EMBRAER 195 LR Aircraft and [*****] EMBRAER 190 (both herein defined as the Aircraft) and pursuant to which, Buyer was granted the right to purchase up to [*****] Option Aircraft and [*****] Purchase Right Aircraft; |
2) | The [*****] defined in the Escalation Formula subject of the Attachment D to the Purchase Agreement [*****]; and |
3) | The Parties have agreed [*****]. |
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | CHANGES TO ATTACHMENTS OF THE PURCHASE AGREEMENT |
Attachment D to the Purchase Agreement is hereby deleted and replaced as presented on Exhibit 1 to this Amendment No.3 which shall be deemed to be Attachment D for all purposes under the Purchase Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 3 to Purchase Agreement COM0041-08 COM0312-08 |
Page 1 of 3 |
Execution version
CONFIDENTIAL
2. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments and Letter Agreements, which are not specifically amended by this Amendment No.3, shall remain in full force and effect without any change.
3. | COUNTERPARTS |
This Amendment No.3 may be signed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
Amendment No. 3 to Purchase Agreement COM0041-08 COM0312-08 |
Page 2 of 3 |
Execution version
CONFIDENTIAL
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No.3 to be effective as of the date first written above.
By: | /s/ Mauro Kern Junior |
By: | /s/ Gerald B. Lee | |||
Name: | Mauro Kern Junior | Name: | Gerald B. Lee | |||
Title: | Executive Vice President | Title: | Managing Director | |||
Airline Market | ||||||
By: | /s/ Arthur Coutinho |
|||||
Name: | Arthur Coutinho | |||||
Title: | Executive Vice President of Industrial Operations |
|||||
Date: | 12/Dec/08 |
Date: |
| |||
Place: | São José dos Campos |
Place: |
| |||
WITNESS: |
WITNESS: | |||||||
s/ Marcio Rodolfo Moneira |
| |||||||
Name: | MARCIO RODOLFO MOREIRA | Name: | ||||||
ID: | 15721595-7 | ID: |
Amendment No. 3 to Purchase Agreement COM0041-08 COM0312-08 |
Page 3 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT D
ESCALATION FORMULA
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D to the Purchase Agreement COM0041-08 Rev. 0 | Page 1 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT D
ESCALATION FORMULA
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D to the Purchase Agreement COM0041-08 Rev. 0 | Page 2 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT D
ESCALATION FORMULA
[*****] |
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[*****] [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D to the Purchase Agreement COM0041-08 Rev. 0 | Page 3 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
CONFIDENTIAL
AMENDMENT No.4 TO PURCHASE AGREEMENT COM0041-08
This Amendment No.4 (Amendment No. 4) dated as of August 31, 2008, is entered into by and between EmbraerEmpresa Brasileira de Aeronáutica S.A. (Embraer) and Canela Investments LLC (Buyer), collectively referred to herein as the Parties and relates to Purchase Agreement COM0041-08 dated March 11th, 2008, as amended from time to time in writing by the Parties (the Purchase Agreement).
This Amendment No.4 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.4 and the Purchase Agreement, this Amendment No.3 shall control.
WHEREAS:
1) | Pursuant and subject to the terms and conditions of the Purchase Agreement, Buyer shall buy and Embraer shall sell [*****] EMBRAER 195 LR Aircraft and [*****] EMBRAER 190 (both herein defined as the Aircraft) and pursuant to which, Buyer was granted the right to purchase up to [*****] Option Aircraft and [*****] Purchase Right Aircraft; |
2) | Buyer has request and Embraer has agreed to do some changes on the Familiarization Program to the Purchase Agreement; |
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | FAMILIARIZATION PROGRAM [*****] |
1.1 | Item 2.3.1.h.1 of the Attachment B pursuant to the Purchase Agreement is hereby amended by adding the following new paragraph: |
Notwithstanding the provisions above, the Parties have agreed [*****] described in the preceding paragraph into (i) [*****] ground familiarization course as regards Aircraft systems, weight and balance, performance and normal/emergency procedures, and (ii) [*****] to attend [*****] full flight simulator [*****] Such training includes the services of an instructor and will be carried out on a level D full flight simulator. Buyer shall be solely responsible for selecting experienced training pilots that are fluent in English and duly qualified in multi- engine aircraft operations, navigation and communication.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment Nº 4 to Purchase Agreement COM0041-08 | Page 1 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
CONFIDENTIAL
1.2 | Item 2.3.1.h.3 of the Attachment B pursuant to the Purchase Agreement is hereby amended by adding the following new paragraph: |
Notwithstanding the provisions above, the Parties have agreed to [*****] This course shall consist of classroom familiarization, including a general description of Aircraft, safety procedures, doors operations, cabin configuration, flight attendant control panels and the [*****] systems [*****].
2. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No.4, shall remain in full force and effect without any change.
3. | COUNTERPARTS |
This Amendment No.4 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment Nº 4 to Purchase Agreement COM0041-08 | Page 2 of 3 |
Execution version
CONFIDENTIAL
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No.4 to be effective as of the date first written above.
EMBRAEREmpresa Brasileira | Canela Investments LLC | |||||
de Aeronáutica S.A. | ||||||
By: | /s/ Mauro Kern Junior |
By: | /s/ Gerald B. Lee | |||
Name: | Mauro Kern Junior | Name: | Gerald Blake Lee | |||
Title: | Executive Vice President | Title: | Managing Director | |||
Airline Market | ||||||
By: | /s/Artur Coutinho |
|||||
Name: | Artur Coutinho | |||||
Title: | Executive Vice President of | |||||
Industrial Operations | ||||||
Date: | 12/Dec/08 |
Date: |
| |||
Place: | São José dos Campos |
Place: |
|
WITNESS |
WITNESS | |||||||
s/ Marcio Rodolfo Moreira |
| |||||||
Name: | Marcio Rodolfo Moreira | Name: | ||||||
ID: | 15-727595-7 | ID: |
Amendment Nº 4 to Purchase Agreement COM0041-08 | Page 3 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL
AMENDMENT No. 5 TO PURCHASE AGREEMENT COM0041-08
This Amendment No.5 (Amendment No.5) dated as of November 25, 2008, is entered into by and between EmbraerEmpresa Brasileira de Aeronáutica S.A. (Embraer) and Canela Investments LLC (Buyer), collectively referred to herein as the Parties and relates to Purchase Agreement COM0041-08 dated March 11th, 2008, as amended from time to time in writing by the Parties (the Purchase Agreement).
This Amendment No.5 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.5 and the Purchase Agreement, this Amendment No.5 shall control.
WHEREAS:
1) | Pursuant and subject to the terms and conditions of the Purchase Agreement, Buyer shall buy and Embraer shall sell [*****] EMBRAER 195 LR Aircraft and [*****] EMBRAER 190 (both herein defined as the Aircraft) and pursuant to which, Buyer was granted the right to purchase up to [*****] Option Aircraft and [*****] Purchase Right Aircraft; |
2) | The Parties have agreed to modify certain items of the Aircraft specific configuration; |
3) | The Buyer has requested and Embraer has agreed to [*****]; |
4) | As a consequence of the above agreements [*****]. |
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | CONFIGURATION CHANGES TO THE AIRCRAFT |
1.1 | [*****] |
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 5 to Purchase Agreement COM0041-08 | Page 1 of 5 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL
[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 5 to Purchase Agreement COM0041-08 | Page 2 of 5 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL
[*****]
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[*****] | [*****] |
[*****] | [*****] |
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2. | ATTACHMENTS CHANGES |
As a result of the changes referred to above, Attachments A1 and A4 (Aircraft Configuration) and E1 and E4 (Performance and Weight Guarantee) to the Purchase Agreement are hereby deleted and replaced with new Attachments A1 and A4 and E1 and E4 in the form of Exhibit 1, 2, 3 and 4, respectively, to this Amendment No. 5.
3. | BASIC PRICE CHANGE |
Article 3.1 of the Purchase Agreement is hereby modified to read as follows:
3.1 Buyer agrees to pay Embraer, in United States dollars, [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 5 to Purchase Agreement COM0041-08 | Page 3 of 5 |
Execution version
CONFIDENTIAL
4. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments and Letter Agreements, which are not specifically amended by this Amendment No.5 and its Attachment, shall remain in full force and effect without any change.
5. | COUNTERPARTS |
This Amendment No.5 may be signed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
Amendment No. 5 to Purchase Agreement COM0041-08 | Page 4 of 5 |
Execution version
CONFIDENTIAL
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No.5 to be effective as of the date first written above.
EMBRAEREmpresa Brasileira de Aeronáutica S.A.
|
Canela Investments LLC
| |||||
By: | /s/ Mauro Kern Junior |
By: | /s/ Gerald B. Lee | |||
Name: | Mauro Kern Junior | Name: | ||||
Title: | Executive Vice President | Title: | ||||
Airline Market | ||||||
By: | /s/ Artur Coutinho |
|||||
Name: | Artur Coutinho | |||||
Title: | Executive Vice President of Industrial Operations |
|||||
Date: | 15/Dec/08 |
Date: |
| |||
Place: | São José dos Campos |
Place: |
| |||
WITNESS: |
WITNESS: | |||||||
/s/ Marcio Rodolfo Moreira |
| |||||||
Name: | Marcio Rodolfo Moreira | Name: | ||||||
ID: | 15721595-7 | ID: |
Amendment No. 5 to Purchase Agreement COM0041-08 | Page 5 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 1 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A1
AIRCRAFT CONFIGURATION
1. | STANDARD AIRCRAFT |
The Aircraft EMBRAER 195 shall be manufactured according to (i) the Technical Description [*****] dated as of November 2007 which although not attached hereto, are incorporated herein by reference, and (ii) the characteristics described in the items below.
2. | OPTIONAL EQUIPMENT: |
The Aircraft will also be fitted with the following options selected by Buyer:
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 Rev. 3 | Page 1 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 1 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A1
AIRCRAFT CONFIGURATION
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 Rev. 3 | Page 2 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 1 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A1
AIRCRAFT CONFIGURATION
[*****]
[*****] |
[*****] |
ECD | ||
[*****] | [*****] | Nov. 30, 2008 | ||
[*****] | [*****] | Nov. 30, 2008 | ||
[*****] | [*****] | July 31, 2008 | ||
[*****] | [*****] | May 31, 2008 | ||
[*****] | [*****] | TBD |
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 Rev. 3 | Page 3 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A1
AIRCRAFT CONFIGURATION
3. | FINISHING |
The Aircraft will be delivered to Buyer as follows:
3.1 | EXTERIOR FINISHING: |
The fuselage of the Aircraft shall be painted according to Buyers color and paint scheme, which shall be supplied to Embraer by Buyer on or before [*****] prior to the first Aircraft contractual delivery date. The wings and the horizontal stabilizer shall be supplied in the standard colors, i.e., grey BAC707.
Once defined, the choices of color and paint scheme made by Buyer shall apply to all Aircraft. If Buyer requires a color and paint scheme for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the relevant Aircraft shall be painted in according to the original paint and color scheme.
3.2 | INTERIOR FINISHING: |
The materials and colours of all and any items of interior finishing such as seat covers, carpet, floor lining on galley areas, side walls and overhead lining, galley lining and curtain for the Aircraft will be in accordance with Buyers choices indicated in the Customer Check List Revision N/C executed by and among Buyer, Embraer and C&D Zodiac on February 15, 2008. In case of conflict between the CCL and this Attachment A the latter shall control.
The choices of interior finishing made by Buyer shall apply to all Aircraft. If Buyer requires an interior finishing for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the interior of relevant Aircraft shall be built according to the original choice of Buyer.
3.3 | BUYER FURNISHED EQUIPMENT(BFE) AND BUYER INSTALLED EQUIPMENT (BIE): |
Any BFE materials shall conform to the required standards and comply with all applicable regulations and airworthiness requirements. Delays in the delivery of BFE materials or quality restrictions that prevent the installation thereof in the time frame required by the Aircraft manufacturing process shall entitle Embraer to either delay the delivery of the Aircraft or present the Aircraft to Buyer without such BFE, in which case Buyer shall not be entitled to refuse acceptance of the Aircraft. All BFE equipment shall be delivered in DDP conditions (lncoterms
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 Rev. 3 | Page 4 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A1
AIRCRAFT CONFIGURATION
2000) to C&D Zodiac 14 Centerpointe Drive, La Palma, CA 90623, USA, or to another place to be timely informed by Embraer.
The Aircraft galleys have space provisions for the following BIE items that, unless timely agreed by the Parties, are not supplied or installed by Embraer: Trolleys, ovens, coffee makers, hot jugs and standard units.
Medical kits, defibrillators and wheelchairs, as well as any other equipment classified as medical or pharmaceutical products, shall be BIE items.
3.4 | EMBRAER RIGHT TO PERFORM FOR BUYER: |
If Buyer fails to make any choice or definition which Buyer is required to make regarding the exterior and interior finishing of any Aircraft or to inform Embraer thereof, Embraer shall have the right, but not the obligation, to tender the Aircraft for delivery (a) painted white and (b) fitted with an interior finishing selected by Embraer at its reasonable discretion.
The taking of any such action by Embraer pursuant to this Article shall not constitute a waiver or release of any obligation of Buyer under the Purchase Agreement, nor a waiver of any event of default which may arise out of Buyers nonperformance of such obligation, nor an election or waiver by Embraer of any remedy or right available to Embraer under the Purchase Agreement.
No compensation to Buyer or reduction of the Aircraft Offer Price shall be due by virtue of the taking of any such actions by Embraer and Embraer shall be entitled to charge Buyer for the amount of the reasonable expenses of Embraer incurred in connection with the performance of or compliance with such agreement, as the case may be, payable by Buyer upon demand.
4. | REGISTRATION MARKS, TRANSPONDER AND ELT CODES: |
The Aircraft shall be delivered to Buyer with the registration marks painted on them. The registration marks, the transponder code and ELT protocol coding shall be supplied to Embraer by Buyer no later than [*****] before each relevant Aircraft contractual delivery date. Embraer shall be entitled to tender the Aircraft for delivery to Buyer without registration marks, with an inoperative transponder and without setting the ELT protocol coding in case Buyer fails to supply such information to Embraer in due time.
5. | EXPORT CONTROL ITEMS |
The Aircraft contains (i) an [*****] manufactured by [*****] with an embedded [*****] used for emergency backup and flight safety information, and (ii) [*****] manufactured by [*****]. The [*****] and the [*****] that are incorporated into this Aircraft are subject to export control under United States of America law. Transfer or re-export of such
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 Rev. 3 | Page 5 of 6 |
Execution version
EXHIBIT 1 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A1
AIRCRAFT CONFIGURATION
items (whether or not incorporated into the Aircraft), as well as their related technology and software may require prior authorization from the US Government.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT A1 AND THE TERMS OF THE TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT A1 SHALL PREVAIL.
Attachment A1 to Purchase Agreement COM0041-08 Rev. 3 | Page 6 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 2 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A4
AIRCRAFT CONFIGURATION
1. | STANDARD AIRCRAFT |
The Aircraft EMBRAER 190 shall be manufactured according to (i) the Technical Description [*****] dated as of November 2007 which although not attached hereto, are incorporated herein by reference, and (ii) the characteristics described in the items below.
2. | OPTIONAL EQUIPMENT: |
The Aircraft will also be fitted with the following options selected by Buyer:
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A4 to Purchase Agreement COM0041-08 Rev. 1 | Page 1 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 2 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A4
AIRCRAFT CONFIGURATION
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A4 to Purchase Agreement COM0041-08 Rev. 1 | Page 2 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 2 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A4
AIRCRAFT CONFIGURATION
[*****]
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[*****] | ECD | ||
[*****] | [*****] | July 31, 2008 | ||
[*****] | [*****] | May 31, 2008 | ||
[*****] | [*****] | TBD |
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A4 to Purchase Agreement COM0041-08 Rev. 1 | Page 3 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 2 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A4
AIRCRAFT CONFIGURATION
3. | FINISHING |
The Aircraft will be delivered to Buyer as follows:
3.1 | EXTERIOR FINISHING: |
The fuselage of the Aircraft shall be painted according to Buyers color and paint scheme, which shall be supplied to Embraer by Buyer on or before [*****] prior to the first Aircraft contractual delivery date. The wings and the horizontal stabilizer shall be supplied in the standard colors, i.e., grey BAC707.
Once defined, the choices of color and paint scheme made by Buyer shall apply to all Aircraft. If Buyer requires a color and paint scheme for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the relevant Aircraft shall be painted in according to the original paint and color scheme.
3.2 | INTERIOR FINISHING: |
Buyer shall inform Embraer on or before [*****] prior to the first Aircraft contractual delivery date of its choice of materials and colors of all and any item of interior finishing such as seat covers, carpet, floor lining on galley areas, side walls and overhead lining, galley lining and curtain. The above mentioned schedule for definition of interior finishing shall only be applicable if Buyer selects its materials from the choices offered by and available at Embraer. In case Buyer opts to use different materials and/or patterns, such schedule shall be mutually agreed between the Parties at the time of signature of the Purchase Agreement.
Once defined, the choices of interior finishing made by Buyer shall apply to all Aircraft. If Buyer requires an interior finishing for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the interior of relevant Aircraft shall be built according to the original choice of Buyer.
3.3 | BUYER FURNISHED EQUIPMENT(BFE) AND BUYER INSTALLED EQUIPMENT (BIE) |
Buyer may choose to have carpets, tapestries, seat covers and curtain fabrics supplied to Embraer for installation in the Aircraft as BFE. Materials shall
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A4 to Purchase Agreement COM0041-08 Rev. 1 | Page 4 of 6 |
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EXHIBIT 2 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A4
AIRCRAFT CONFIGURATION
conform to the required standards and comply with all applicable regulations and airworthiness requirements. Delays in the delivery of BFE equipment or quality restrictions that prevent the installation thereof in the time frame required by the Aircraft manufacturing process shall entitle Embraer to either delay the delivery of the Aircraft or present the Aircraft to Buyer without such BFE, in which case Buyer shall not be entitled to refuse acceptance of the Aircraft. All BFE equipment shall be delivered in DDP conditions (lncoterms 2000) to C&D Zodiac 14 Centerpointe Drive, La Palma, CA 90623, USA, or to another place to be timely informed by Embraer.
The Aircraft galleys have space provisions for the following BIE items that, unless timely agreed by the Parties, are not supplied or installed by Embraer: Trolleys, ovens, coffee makers, hot jugs and standard units.
Medical kits, defibrillators and wheelchairs, as well as any other equipment classified as medical or pharmaceutical products, shall be BIE items.
3.4 | EMBRAER RIGHT TO PERFORM FOR BUYER: |
If Buyer fails to make any choice or definition which Buyer is required to make regarding the exterior and interior finishing of any Aircraft or to inform Embraer thereof, Embraer shall have the right, but not the obligation, to tender the Aircraft for delivery (a) painted white and (b) fitted with an interior finishing selected by Embraer at its reasonable discretion.
The taking of any such action by Embraer pursuant to this Article shall not constitute a waiver or release of any obligation of Buyer under the Purchase Agreement, nor a waiver of any event of default which may arise out of Buyers nonperformance of such obligation, nor an election or waiver by Embraer of any remedy or right available to Embraer under the Purchase Agreement.
No compensation to Buyer or reduction of the Aircraft Offer Price shall be due by virtue of the taking of any such actions by Embraer and Embraer shall be entitled to charge Buyer for the amount of the reasonable expenses of Embraer incurred in connection with the performance of or compliance with such agreement, as the case may be, payable by Buyer upon demand.
4. | REGISTRATION MARKS, TRANSPONDER AND ELT CODES: |
The Aircraft shall be delivered to Buyer with the registration marks painted on them. The registration marks, the transponder code and ELT protocol coding shall be supplied to Embraer by Buyer no later than [*****] before each relevant Aircraft contractual delivery date. Embraer shall be entitled to tender the Aircraft for delivery to Buyer without registration marks, with an inoperative transponder and without setting the ELT protocol coding in case Buyer fails to supply such information to Embraer in due time.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A4 to Purchase Agreement COM0041-08 Rev. 1 | Page 5 of 6 |
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EXHIBIT 2 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT A4
AIRCRAFT CONFIGURATION
5. | EXPORT CONTROL ITEMS |
The Aircraft contains (i) an [*****] manufactured by [*****] with an embedded [*****] used for emergency backup and flight safety information, and (ii) [*****] manufactured by [*****]. The [*****] and the [*****] that are incorporated into this Aircraft are subject to export control under United States of America law. Transfer or re-export of such items (whether or not incorporated into the Aircraft), as well as their related technology and software may require prior authorization from the US Government.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF TH IS ATIACHMENT A4 AND THE TERMS OF THE TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATIACHMENT A4 SHALL PREVAIL.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A4 to Purchase Agreement COM0041-08 Rev. 1 | Page 6 of 6 |
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EXHIBIT 3 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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EXHIBIT 3 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E1 to Purchase Agreement COM0041-08 Rev. 1 | Page 2 of 8 |
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EXHIBIT 3 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E1 to Purchase Agreement COM0041-08 Rev. 1 | Page 3 of 8 |
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EXHIBIT 3 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E1 to Purchase Agreement COM0041-08 Rev. 1 | Page 4 of 8 |
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Execution version
EXHIBIT 3 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E1 to Purchase Agreement COM0041-08 Rev. 1 | Page 5 of 8 |
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EXHIBIT 3 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E1 to Purchase Agreement COM0041-08 Rev. 1 | Page 6 of 8 |
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Execution version
EXHIBIT 3 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E1 to Purchase Agreement COM0041-08 Rev. 1 | Page 7 of 8 |
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Execution version
EXHIBIT 3 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E1 to Purchase Agreement COM0041-08 Rev. 1 | Page 8 of 8 |
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Execution version
EXHIBIT 4 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E4 to Purchase Agreement COM0041-08 Rev. 0 | Page 1 of 8 |
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Execution version
EXHIBIT 4 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E4 to Purchase Agreement COM0041-08 Rev. 0 | Page 2 of 8 |
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EXHIBIT 4 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E4 to Purchase Agreement COM0041-08 Rev. 0 | Page 3 of 8 |
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Execution version
EXHIBIT 4 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E4 to Purchase Agreement COM0041-08 Rev. 0 | Page 4 of 8 |
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Execution version
EXHIBIT 4 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E4 to Purchase Agreement COM0041-08 Rev. 0 | Page 5 of 8 |
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Execution version
EXHIBIT 4 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E4 to Purchase Agreement COM0041-08 Rev. 0 | Page 6 of 8 |
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Execution version
EXHIBIT 4 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E4 to Purchase Agreement COM0041-08 Rev. 0 | Page 7 of 8 |
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Execution version
EXHIBIT 4 to Amendment N. o 5 to the Purchase Agreement
ATTACHMENT E4
PERFORMANCE AND WEIGHT GUARANTEE
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Attachment E4 to Purchase Agreement COM0041-08 Rev. 0 | Page 8 of 8 |
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Execution version
AMENDMENT No. 6 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 6 to Purchase Agreement COM0041-08, dated as of December 12, 2008 (Amendment 6) relates to the Purchase Agreement COM0041-08 between EmbraerEmpresa Brasileira de Aeronáutica S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 6 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment 6 constitutes an amendment and modification to the Purchase Agreement. All terms defined in the Purchase Agreement shall have the same meaning when used herein and in case of any conflict between this Amendment 6 and the Purchase Agreement, this Amendment 6 shall control.
WHEREAS, pursuant and subject to the terms and conditions of the Purchase Agreement, Buyer shall buy and Embraer shall sell [*****] EMBRAER 195 AR aircraft and [*****] EMBRAER 190 AR aircraft (the Aircraft) and Buyer has been granted the right to purchase up to [*****] Option Aircraft and [*****] Purchase Right Aircraft.
WHEREAS, Buyer has requested [*****] from Embraer with the [*****] Aircraft scheduled to be delivered under the Purchase Agreement in December 2008, such Aircraft bearing Embraer-serial numbers [*****] and [*****] (the Subject Aircraft).
WHEREAS, after execution of this Amendment 6, Embraer may in its sole discretion take the [*****] (as hereinafter defined) for any or both of the Subject Aircraft.
WHEREAS, Buyer is willing to agree that [*****].
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. ADDITIONAL REMEDIES [*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 6 to Purchase Agreement COM0041-08 | Page 1 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 6 TO PURCHASE AGREEMENT COM0041-08
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Amendment No. 6 to Purchase Agreement COM0041-08 | Page 2 of 5 |
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Execution version
AMENDMENT No. 6 TO PURCHASE AGREEMENT COM0041-08
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Amendment No. 6 to Purchase Agreement COM0041-08 | Page 3 of 5 |
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Execution version
AMENDMENT No. 6 TO PURCHASE AGREEMENT COM0041-08
[*****]
4. DISCLAIMER OF WARRANTIES
EMBRAER DOES NOT OFFER, AND HEREBY DISCLAIMS, ANY EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY SERVICE OR ACTION IN CONNECTION WITH THIS AMENDMENT 6, INCLUDING, WITHOUT LIMITATION, STATUTORY WARRANTIES, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST EMBRAER, EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE, WITH RESPECT TO ANY ACTUAL OR ALLEGED DEFICIENCY OR NON-CONFORMANCE IN ANY SERVICE OR ACTIONS PERFORMED FOR BUYER OR ANYTHING PROVIDED TO BUYER PURSUANT TO THIS AMENDMENT 6.
5. REINSTATEMENT OF PURCHASE AGREEMENT
All other provisions and conditions of the Purchase Agreement, as well as its related Attachments and Letter Agreement, which are not specifically amended by this Amendment 6, shall remain in full force and effect without any change.
6. COUNTERPARTS
This Amendment 6 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
This Amendment 6 may be signed by facsimile with originals duly signed to follow by an internationally recognized courier.
[Intentionally left blankSignature page follows]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 6 to Purchase Agreement COM0041-08 | Page 4 of 5 |
Execution version
AMENDMENT No. 6 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 6 to the Purchase Agreement to be effective as of the date first written above.
EMBRAEREmpresa Brasileira de Aeronáutica S.A.
|
Canela Investments LLC
| |||||
By: | /s/ Arthur Coutinho |
By: | /s/ Gerald B. Lee | |||
Name: | Arthur Coutinho | Name: | Gerald Blake Lee | |||
Title: | Executive Vice President of Industrial Operations |
Title: | Managing Director | |||
By: | /s/ José Luís D. Molina |
|||||
Name: | José Luís D. Molina | |||||
Title: | Vice President Contracts Airline Market |
|||||
Date: | December 12, 2008 |
Date: | December 12, 2008 | |||
Place: | São José dos Campos |
Place: | São José dos Campos | |||
Witness: | /s/ Marcio Rodolfo Moreira |
Witness: |
| |||||
Name: | Marcio Rodolfo Moreira |
Name: |
| |||||
ID: | 15.771.595.7 |
Amendment No. 6 to Purchase Agreement COM0041-08 | Page 5 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 7 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 7 to Purchase Agreement COM0041-08, dated as of December 23, 2008 (Amendment 7) relates to the Purchase Agreement COM0041-08 between Embraer- Empresa Brasileira de Aeronautica S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 7 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment 7 constitutes an amendment and modification to the Purchase Agreement. All terms defined in the Purchase Agreement shall have the same meaning when used herein and in case of any conflict between this Amendment 7 and the Purchase Agreement, this Amendment 7 shall control.
WHEREAS, pursuant to Amendment No. 6 to the Purchase Agreement dated as of Decmeber 12, 2008, as amended pursuant to (i) Article 4 of Amendment No. 1 to [*****] dated as of December 15, 2008 and (ii) Article 5 of Amendment No. 2 to [*****] dated as of December 19, 2008 (as so amended, Amendment 6), Buyer requested and received [*****] with the importation and exportation for the [*****] Aircraft scheduled to be delivered under the Purchase Agreement in December 2008, such Aircraft bearing Embraer-serial numbers [*****] (the Subject Aircraft).
WHEREAS, such [*****] of each of the Subject Aircraft.
NOW, THEREFORE, for good and valuable consideration, receipt of which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | RESTATED SECTION 1 TO AMENDMENT 6 |
The terms of Section 1 of Amendment 6 are hereby amended and restated in their entirety to read as follows:
Buyer has requested that Embraer take, and Embraer may in its sole discretion agree to take any or all of, the following actions with respect to one or both of the Subject Aircraft: (i) provide an [*****]; (ii) [*****] any or all Subject Aircraft to [*****]; and (iii) any other action that Embraer may in good faith elect to take in connection with the Subject Aircraft prior to [*****] the applicable Subject Aircraft and either [*****] with respect to such Subject Aircraft or [*****].
2. | RESTATED SECTION 2 TO AMENDMENT 6 |
The terms of Section 2 of Amendment 6 are hereby amended and restated in their entirety to read as follows:
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 7 to Purchase Agreement COM0041-08 | Page 1 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 7 TO PURCHASE AGREEMENT COM0041-08
[*****]
[*****]
3. | RESTATED SECTION 3 TO AMENDMENT 6 |
The terms of Section 3 of Amendment 6 are hereby amended and restated in their entirety to read as follows:
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[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 7 to Purchase Agreement COM0041-08 | Page 2 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 7 TO PURCHASE AGREEMENT COM0041-08
[*****]
[*****]
4. | RESTATED SECTION 4 TO AMENDMENT 6 |
The terms of Section 4 of Amendment 6 are hereby amended and restated in their entirety to read as follows:
EMBRAER DOES NOT OFFER, AND HEREBY DISCLAIMS, ANY EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY SERVICE OR ACTION IN CONNECTION WITH THIS AMENDMENT 6, INCLUDING, WITHOUT LIMITATION, STATUTORY WARRANTIES, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST EMBRAER, EXPRESS OR IMPLIED, ARISING BY STATUTE OR OTHERWISE, WITH RESPECT TO ANY ACTUAL OR ALLEGED DEFICIENCY OR NON- CONFORMANCE IN ANY SERVICE OR ACTIONS PERFORMED FOR BUYER OR ANYTHING PROVIDED TO BUYER PURSUANT TO THIS AMENDMENT 6.
5. | [*****] |
Within [*****] after the date hereof, Buyer shall enter into an agreement with Embraer (i) providing that any event of default under a [*****] by Embraer or an affiliate to an owner of a Subject Aircraft, Buyer or an affiliate shall be a default of and failure by Buyer under the Purchase Agreement, and (ii) [*****] , on terms acceptable to Embraer, any [*****] pursuant to, or any credits or other rights of Buyer with respect to, the Purchase Agreement, to the obligations of an owner of a Subject Aircraft, Buyer or any affiliate pursuant to any [*****] made by, or other agreement with, Embraer or any affiliate. 5. REINSTATEMENT OF PURCHASE AGREEMENT
All other provisions and conditions of the Purchase Agreement, as well as its related Attachments and Letter Agreement, which are not specifically amended by this Amendment 7, shall remain in full force and effect without any change.
6. | COUNTERPARTS |
This Amendment 7 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
This Amendment 7 may be signed by facsimile with originals duly signed to follow by an internationally recognized courier.
[Intentionally left blank Signature page follows]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 7 to Purchase Agreement COM0041-08 | Page 3 of 4 |
Execution version
AMENDMENT No. 7 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 7 to the Purchase Agreement to be effective as of the date first written above.
EMBRAEREmpresa Brasileira de Aeronáutica S.A.
|
Canela Investments LLC
| |||||
By: | /s/ Mauro Kern Junior |
By: | /s/ Gerald B. Lee | |||
Name: | Mauro Kern Junior |
Name: | Gerald Blake Lee | |||
Title: | Executive Vice President | Title: | Managing Director | |||
Airline Market |
||||||
By: | /s/ Flavio Rimoli |
|||||
Name: | Flavio Rimoli |
|||||
Title: | Executive Vice President General Counsel |
|||||
Date: | 23/December/2008 |
Date: |
| |||
Place: | São José dos Campos |
Place: |
| |||
Witness: | /s/ Marcio Rodolfo Moreira |
Witness: |
| |||||
Name: | Marcio Rodolfo Moreira | Name: |
|
Amendment No. 7 to Purchase Agreement COM0041-08 | Page 4 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 8 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 8 to Purchase Agreement COM0041-08, dated as of March 12, 2009 (Amendment 8) relates to the Purchase Agreement COM0041-08 between EmbraerEmpresa Brasileira de Aeronáutica S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 8 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.8 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.8 and the Purchase Agreement, this Amendment No.8 shall control.
WHEREAS:
1) | The Parties desires to implement certain changes to the Aircraft configuration [*****]. |
2) | Buyer has requested and Embraer is willing to postpone the Contractual Delivery Date of the Firm Aircraft # 9 and 10, from July 2009 and November 2009 to January 2010 and February 2010. |
3) | Such postponement shall cause additional modifications to the Aircraft delivery schedule contained in Article 5.1 of the Purchase Agreement; |
4) | In consideration of the postponement, Buyer agrees to pay Embraer the fee as provided for herein. |
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | CONFIGURATION CHANGES TO THE AIRCRAFT |
1.1 | [*****] modification |
Aircraft [*****] shall be delivered with [*****] in the gray color. There will be no weight alteration due to this change. The Basic Price of the [*****] shall be increased by [*****] for each affected Aircraft, [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 8 to Purchase Agreement COM0041-08 | Page 1 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 8 TO PURCHASE AGREEMENT COM0041-08
1.2 | Installation of [*****] |
Aircraft [*****] Aircraft shall be delivered with [*****] installed. Due to this change, the EEW of the affected [*****] Aircraft shall be increased by [*****]. The Attachment E1 and E4 (Performance and Weight Guarantee) shall be amended to reflect this [*****] change. The Basic Price of the Aircraft [*****] shall be increased by [*****].
1.3 | Provisions for [*****] |
Aircraft [*****] Aircraft shall be delivered with provisions for the [*****]. Due to this change, the EEW of the affected [*****] Aircraft shall be increased by [*****]. The Attachment E1 and E4 (Performance and Weight Guarantee) shall be amended to reflect this [*****] change. The Basic Price of the Aircraft [*****], shall be increased by [*****].
1.4 | [*****] Relocation |
[*****] Aircraft [*****] shall be delivered with provisions for a [*****]. Due to this change, the EEW of the affected Aircraft shall be increased by [*****]. The Attachment E4 (Performance and Weight Guarantee) shall be amended to reflect this [*****] change. The Basic Price of the Aircraft [*****] Aircraft shall be increased by [*****].
1.5 | [*****] |
[*****] Aircraft [*****] shall be delivered with a [*****]. Due to this change, the EEW of the affected [*****] Aircraft shall be increased by [*****]. The Attachment E4 (Performance and Weight Guarantee) shall be amended to reflect this [*****]. The Basic Price of the Aircraft [*****] Aircraft shall be increased by [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 8 to Purchase Agreement COM0041-08 | Page 2 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 8 TO PURCHASE AGREEMENT COM0041-08
2. | DELIVERY |
1.1 Article 5 of the Purchase Agreement shall be modified to read as follows: 5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft |
Contractual Delivery Date |
Aircraft |
Contractual Delivery Date | |||
01 (E195) |
November 2008 | 19 (E195) | March 2011 | |||
02 (E195) |
December 2008 | 20 (E195) | April 2011 | |||
03 (E195) |
December 2008 | 21 (E195) | May 2011 | |||
04 (E195) |
January 2008 | 22 (E195) | May 2011 | |||
05 (E195) |
February 2009 | 23 (E195) | June 2011 | |||
06 (E190) |
April 2009 | 24 (E195) | July 2011 | |||
07 (E190) |
May 2009 | 25 (E195) | August 2011 | |||
08 (E190) |
June 2009 | 26 (E195) | September 2011 | |||
09 (E190) |
January 2010 | 27 (E195) | October2011 | |||
10 (E190) |
February 2010 | 28 (E195) | October 2011 | |||
11 (E195) |
May 2010 | 29 (E195) | November 2011 | |||
12 (E195) |
June 2010 | 30 (E195) | December 2011 | |||
13 (E195) |
July 2010 | 31 (E195) | January 2012 | |||
14 (E195) |
October 2010 | 32 (E195) | March 2012 | |||
15 (E195) |
November 2010 | 33 (E195) | May 2012 | |||
16 (E195) |
December 2010 | 34 (E195) | September 2012 | |||
17 (E195) |
January 2011 | 35 (E195) | October 2012 | |||
18 (E195) |
February 2011 | 36 (E195) | November 2012 |
3. | [*****] FEE |
Buyer shall pay Embraer a fixed and firm amount equal to [*****] within [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 8 to Purchase Agreement COM0041-08 | Page 3 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 8 TO PURCHASE AGREEMENT COM0041-08
[*****] after the date of execution of this Amendment No.8 by wire transfer of immediately available funds to an account designated in writing by Embraer.
4. | RESTATEMENT OF LIQUIDATED DAMAGES PROVISIONS |
The Parties hereby agree that in the event of Buyers breach of this Amendment No.8 or in the event of the circumstances specified in Article 20.3 of the Purchase Agreement, the liquidated damages provision set forth in such Article 20.3 of the Purchase Agreement shall apply and each Party hereto restates its understanding that such liquidated damages provision represents a genuine, fair and reasonable estimate of Embraers likely damages.
5. | BASIC PRICE CHANGE |
Article 3.1 of the Purchase Agreement is hereby modified to read as follows:
3.1 Buyer agrees to pay Embraer in United States dollars, the per unit Aircraft Basic Price as indicated in the table below:
[*****] |
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6. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No.8, shall remain in full force and effect without any change.
7. | COUNTERPARTS |
This Amendment No. 8 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 8 to Purchase Agreement COM0041-08 | Page 4 of 5 |
Execution version
AMENDMENT No. 8 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 8 to the Purchase Agreement to be effective as of the date first written above.
EMBRAEREmpresa Brasileira de Aeronáutica S.A.
|
Canela Investments LLC
| |||||
By: | /s/ Arthur Coutinho |
By: | /s/ Gerald B. Lee | |||
Name: | Arthur Coutinho | Name: | Gerald Blake Lee | |||
Title: | Executive Vice President of | Title: | Managing Director | |||
Industrial Operations |
||||||
By: | /s/ Eduardo Munnós de Campos |
|||||
Name: | Eduardo Munnós de Campos | |||||
Title: | Vice President Contracts Airline Market |
|||||
Date: | March 12, 2009 |
Date: | March 12, 2009 | |||
Place: | São José dos Campos |
Place: | São Paulo, Brazil | |||
Witness: | /s/Sandra Boelter de Baslos |
Witness: | /s/Aline Munhoz Zamora | |||||
Name: | Sandra Boelter de Baslos |
Name: | Aline Munhoz Zamora | |||||
RG: | 1066313048 |
RG: 32.484.341 -5 | ||||||
CPF: 216.841.928 -03 |
Amendment No. 8 to Purchase Agreement COM0041-08 | Page 5 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Amendment No. 8 to Purchase Agreement COM0041-08 | Page 1 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Amendment No. 8 to Purchase Agreement COM0041-08 | Page 2 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Amendment No. 8 to Purchase Agreement COM0041-08 | Page 3 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Amendment No. 8 to Purchase Agreement COM0041-08 | Page 4 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Amendment No. 8 to Purchase Agreement COM0041-08 | Page 5 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Amendment No. 8 to Purchase Agreement COM0041-08 | Page 6 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Amendment No. 8 to Purchase Agreement COM0041-08 | Page 7 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
[*****] | [*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Amendment No. 8 to Purchase Agreement COM0041-08 | Page 8 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E4 PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Amendment No. 8 to Purchase Agreement COM0041-08 | Page 1 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E4 PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Amendment No. 8 to Purchase Agreement COM0041-08 | Page 2 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E4 PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Amendment No. 8 to Purchase Agreement COM0041-08 | Page 3 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E4 PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Amendment No. 8 to Purchase Agreement COM0041-08 | Page 4 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E4 PERFORMANCE AND WEIGHT GUARANTEE
[*****]
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[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Amendment No. 8 to Purchase Agreement COM0041-08 | Page 5 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E4 PERFORMANCE AND WEIGHT GUARANTEE
[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Amendment No. 8 to Purchase Agreement COM0041-08 | Page 6 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E4 PERFORMANCE AND WEIGHT GUARANTEE
[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Amendment No. 8 to Purchase Agreement COM0041-08 | Page 7 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT E4 PERFORMANCE AND WEIGHT GUARANTEE
[*****] | [*****] |
[*****] | [*****] |
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[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E4 Amendment No. 8 to Purchase Agreement COM0041-08 | Page 8 of 8 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 9 TO PURCHASE AGREEMENT COM0041-08
This Amendment No.9 to Purchase Agreement COM0041-08, dated as of October 30, 2009 (Amendment 9) relates to the Purchase Agreement COM0041-08 between EmbraerEmpresa Brasileira de Aeronáutica S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 9 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.9 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.9 and the Purchase Agreement, this Amendment No.9 shall control.
WHEREAS:
1) | Pursuant and subject to the terms and conditions of the Purchase Agreement Buyer shall buy and Embraer shall sell [*****] Aircraft and pursuant to which, Buyer was granted the right to purchase up to [*****] Option Aircraft and [*****] Purchase Right Aircraft. |
2) | The Parties have entered into the [*****] of the Purchase Agreement solely with respect to the Aircraft #05, #06 and #08. |
3) | Buyer has requested and Embraer is willing to [*****] the Contractual Delivery Date of the Aircraft #9 and 10, from January and February 2010 to December 2009 and January 2010. |
4) | The Parties desire to implement certain changes to the Aircraft configuration which caused [*****]. |
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | SUBJECT |
1.1 Article 2.1 of the Purchase Agreement shall be modified to read as follows:
Subject to the terms and conditions of this Agreement:
2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of [*****] Aircraft.
2. | DELIVERY |
2.1 Article 5 of the Purchase Agreement shall be modified to read as follows: 5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 9 to Purchase Agreement COM0041-08 | Page 1 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 9 TO PURCHASE AGREEMENT COM0041-08
Aircraft |
Contractual Delivery Date |
Aircraft |
Contractual Delivery Date | |||
01 (E195) |
November 2008 | 19 (E195) | March 2011 | |||
02 (E195) |
December 2008 | 20 (E195) | April 2011 | |||
03 (E195) |
December 2008 | 21 (E195) | May 2011 | |||
04 (E195) |
January 2009 | 22 (E195) | May 2011 | |||
05 (E195) |
Aircraft Terminated | 23 (E195) | June 2011 | |||
06 (E195) |
Aircraft Terminated | 24 (E195) | July 2011 | |||
07 (E195) |
May 2009 | 25 (E195) | August 2011 | |||
08 (E195) |
Aircraft Terminated | 26 (E195) | September 2011 | |||
09 (E195) |
December 2009 | 27 (E195) | October 2011 | |||
10 (E195) |
January 2010 | 28 (E195) | October 2011 | |||
11 (E195) |
May 2010 | 29 (E195) | November 2011 | |||
12 (E195) |
June 2010 | 30 (E195) | December 2011 | |||
13 (E195) |
July 2010 | 31 (E195) | January 2012 | |||
14 (E195) |
October 2010 | 32 (E195) | March 2012 | |||
15 (E195) |
November 2010 | 33 (E195) | May 2012 | |||
16 (E195) |
December 2010 | 34 (E195) | September 2012 | |||
17 (E195) |
January 2011 | 35 (E195) | October 2012 | |||
18 (E195) |
February 2011 | 36 (E195) | November 2012 |
3. | CONFIGURATION CHANGES TO THE AIRCRAFT |
3.1 | [*****] Requirement |
Aircraft #09 and all subsequent E190 and E195 Aircraft shall be delivered with a new [*****]. Due to this change, the EEW of the affected Aircraft shall be increased by [*****] for the [*****] Aircraft, and [*****] for the E195 Aircraft, which shall be considered in the relevant Aircraft [*****] as provided in the Purchase Agreement. The Basic Price of the Aircraft #09, 10 and 11 shall not be affected. Aircraft #12 and all subsequent E195 shall be increased by [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 9 to Purchase Agreement COM0041-08 | Page 2 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 9 TO PURCHASE AGREEMENT COM0041-08
3.2 | [*****] |
Aircraft #11 and all subsequent E195 Aircraft shall be delivered with certain interior equipment and furnishings [*****]. Due to this change, the EEW of the affected E195 Aircraft shall be increased by [*****] which shall be considered in the relevant Aircraft [*****] as provided in the Purchase Agreement. The Basic Price of the Aircraft #11 and all subsequent E195 Aircraft shall be increased by [*****].
4. | BASIC PRICE CHANGE |
Article 3.1 of the Purchase Agreement is hereby modified to read as follows:
3.1 Buyer agrees to pay Embraer in United States dollars, the per unit Aircraft Basic Price as indicated in the table below:
[*****] | [*****] | |
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5. | CHANGES TO ATTACHMENTS OF THE PURCHASE AGREEMENT |
Attachments A1 , A4, E1 , E4 and D to the Purchase Agreement are hereby deleted and replaced as presented in this Amendment No. 9 which shall be deemed to be Attachments A1, A4, E1, E4 and D for all purposes under the Purchase Agreement.
6. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No.9, shall remain in full force and effect without any change.
7. | COUNTERPARTS |
This Amendment No.9 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 9 to Purchase Agreement COM0041-08 | Page 3 of 4 |
Execution version
AMENDMENT No. 9 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 9 to the Purchase Agreement to be effective as of the date first written above.
EMBRAEREmpresa Brasileira de Aeronáutica S.A.
|
Canela Investments LLC
| |||||
By: | /s/ Mauro Kern Junior |
By: | /s/ Gerald B. Lee | |||
Name: | Mauro Kern Junior | Name: | Gerald Blake Lee | |||
Title: | Executive Vice President of | Title: | Director/Attorney in Fact | |||
Airline Market | ||||||
By: | /s/ Eduardo Munnós de Campos |
|||||
Name: | Eduardo Munnós de Campos |
|||||
Title: | Vice President Contracts Airline Market |
|||||
Date: |
|
Date: | October 30, 2009 | |||
Place: |
|
Place: | Barrier SP | |||
Witness: | /s/ Sandra Boelter de Baslos |
Witness: | /s/ Aline Munhoz Zamora | |||||
Name: | Sandra Boelter de Boslos |
Name: | Aline Munhoz Zamora | |||||
RG: | RG: 32.485.341 -5 | |||||||
CPF: 216.841.928 -03 |
Amendment No. 9 to Purchase Agreement COM0041-08 | Page 4 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 10 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 10 to Purchase Agreement COM0041-08, dated as of December 21, 2009 (Amendment No. 10) relates to the Purchase Agreement COM0041-08 between EmbraerEmpresa Brasileira de Aeronáutica S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 10 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.10 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not o!herwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.10 and the Purchase Agreement, this Amendment No.10 shall control.
WHEREAS, this Amendment No.10 sets forth additional agreements between Embraer and Buyer relative to (i) Buyers purchase of additional five (5) new E195 Aircraft to be delivered in 2010 (the Five New E195), (ii) the anticipation of the delivery date of certain Aircraft and (iii) certain special conditions for the last six Aircraft.
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | SUBJECT |
1.1 Article 2.1 of the Purchase Agreement shall be modified to read as follows: Subject to the terms and conditions of this Agreement:
2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of [*****] E195 Aircraft and [*****] E190 Aircraft;
2. | DELIVERY |
2.1 Article 5 of the Purchase Agreement shall be modified to read as follows:
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft |
Contractual Delivery Date |
Aircraft |
Contractual Delivery Date | |||
01 (E195) |
November 2008 | 22 (E195) | January 2011 | |||
02 (E195) |
December 2008 | 23 (E195) | February 2011 | |||
03 (E195) |
December 2008 | 24 (E195) | March 2011 | |||
04 (E195) |
January 2009 | 25 (E195) | April 2011 | |||
05 (E195) |
Aircraft Terminated | 26 (E195) | May 2011 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 10 to Purchase Agreement COM0041-08 | Page 1 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 10 TO PURCHASE AGREEMENT COM0041-08
06 (E190) |
Aircraft Terminated | 27 (E195) | May 2011 | |||
07 (E190) |
May 2009 | 28 (E195) | June 2011 | |||
08 (E190) |
Aircraft Terminated | 29 (E195) | July 2011 | |||
09 (E190) |
December 2009 | 30 (E195) | August 2011 | |||
10 (E190) |
January 2010 | 31 (E195) | September 2011 | |||
11 (E195) |
May 2010 | 32 (E195) | October 2011 | |||
12 (E195) |
June 2010 | 33 (E195) | October 2011 | |||
13 (E195) |
June 2010 | 34 (E195) | November 2011 | |||
14 (E195) |
July 2010 | 35 (E195) | December 2011 | |||
15 (E195) |
August 2010 | 36 (E195) | January 2012 | |||
16 (E195) |
August 2010 | 37 (E195) | March 2012 | |||
17 (E195) |
September 2010 (*) | 38 (E195) | May 2012 | |||
18 (E195) |
September 2010 (*) | 39 (E195) | September 2012 | |||
19 (E195) |
October 2010(*) | 40 (E195) | October 2012 | |||
20 (E195) |
November 2010 (*) | 41 (E195) | November 2012 | |||
21 (E195) |
November 2010 (*) |
(*) | Five New E195 |
3. | SPECIAL CONDITIONS FOR THE [*****] |
The Purchase Price of the [*****] shall be calculated according to the Escalation Formula provided however that the [*****] (for the avoidance of doubts, the entire period to be considered in the [*****] of such [*****] is from January 2008 up to December 2011).
[*****]
4. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No. 10, shall remain in full force and effect without any change.
5. | COUNTERPARTS |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 10 to Purchase Agreement COM0041-08 | Page 2 of 3 |
Execution version
AMENDMENT No. 10 TO PURCHASE AGREEMENT COM0041-08
This Amendment No.10 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 10 to the Purchase Agreement to be effective as of the date first written above.
EMBRAEREmpresa Brasileira | Canela Investments LLC | |||||
de Aeronáutica S.A. | ||||||
By: | /s/ Mauro Kern Junior |
By: | /s/ Gerald B. Lee | |||
Name: | Mauro Kern Junior |
Name: | Gerald Blake Lee | |||
Title: | Executive Vice President Airline Market |
Title: | Director/Attorney in Fact | |||
By: | /s/ Eduardo Munnós de Campos |
|||||
Name: | Eduardo Munnós de Campos |
|||||
Title: | Vice President Contracts | |||||
Airline Market | ||||||
Date: | December 21st, 2009 |
Date: | December 21st, 2009 | |||
Place: |
|
Place: |
|
Witness: | /s/ Sandra Boelter de Baslos |
Witness: | /s/Aline Munhoz Zamora | |||||
Name: | Sandra Boelter de Boslos |
Name: | Aline Munhoz Zamora | |||||
RG: | RG: 32.485.341-5 | |||||||
CPF: 216.841.928-03 |
Amendment No. 10 to Purchase Agreement COM0041-08 | Page 3 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 11 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 11 to Purchase Agreement COM0041-08, dated as of October 26, 2010 (Amendment No. 11) relates to the Purchase Agreement COM0041-08 between EmbraerEmpresa Brasileira de Aeronáutica S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 11 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.11 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not othervvise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.11 and the Purchase Agreement, this Amendment No.11 shall control.
WHEREAS:
1) | The Parties desires to implement certain changes to the Aircraft configuration which [*****]. |
2) | The [*****] defined in the Escalation Formula subject of the Attachment D to the Purchase Agreement is [*****] and the Parties have agreed [*****]. |
3) | The Parties have entered into the [*****] of the Purchase Agreement solely with respect to the Aircraft #09. |
4) | The Parties have also agreed on changing the Contractual Delivery Dates for 2011 and 2012. |
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | SUBJECT |
1.1 | Article 2.1 of the Purchase Agreement shall be modified to read as follows: |
Subject to the terms and conditions of this Agreement:
2.1 | Embraer shall sell and deliver and Buyer shall purchase and take delivery of [*****] E195 Aircraft and [*****] E190 Aircraft; |
2. | DELIVERY |
2.1 | Article 5 of the Purchase Agreement shall be modified to read as follows |
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 11 to Purchase Agreement COM0041-08 | Page 1 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 11 TO PURCHASE AGREEMENT COM0041-08
Paulo, Brazil, according to the following schedule:
Aircraft# |
Contractual Delivery Date |
Aircraft# |
Contractual Delivery Date | |||
01 (E195) |
November 2008 | 22 (E195) | January 2011 | |||
02 (E195) |
December 2008 | 23 (E195) | February 2011 | |||
03 (E195) |
December 2008 | 24 (E195) | March 2011 | |||
04 (E195) |
January 2009 | 25 (E195) | April 2011 | |||
05 (E195) |
Aircraft Terminated | 26 (E195) | May 2011 | |||
06 (E190) |
Aircraft Terminated | 27 (E195) | June 2011 | |||
07 (E190) |
May 2009 | 28 (E195) | July 2011 | |||
08 (E190) |
Aircraft Terminated | 29 (E195) | August 2011 | |||
09 (E190 |
Aircraft Terminated | 30 (E195) | September 2011 | |||
10 (E190) |
January 2010 | 31 (E195) | October 2011 | |||
11 (E195) |
May 2010 | 32 (E195) | November 2011 | |||
12 (E195) |
June 2010 | 33 (E195) | December 2011 | |||
13 (E195) |
June 2010 | 34 (E195) | January 2012 | |||
14 (E195) |
July 2010 | 35 (E195) | February 2012 | |||
15 (E195) |
August 2010 | 36 (E195) | March 2012 | |||
16 (E195) |
August 2010 | 37 (E195) | April 2012 | |||
17 (E195) |
September 2010 (*) | 38 (E195) | May 2012 | |||
18 (E195) |
September 2010 (*) | 39 (E195) | September 2012 | |||
19 (E195) |
October 2010 (*) | 40 (E195) | October 2012 | |||
20 (E195) |
November 2010 (*) | 41 (E195) | November 2012 | |||
21 (E195) |
November 2010 (*) |
(*) Five New E195
3. | CHANGE IN THE AIRCRAFT CONFIGURATION |
3.1 | [*****] |
[*****] Aircraft [*****] have been delivered with the [*****] components installed in the [*****] as referred in the PMC/022 dated February 18th, 2009).
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 11 to Purchase Agreement COM0041-08 | Page 2 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 11 TO PURCHASE AGREEMENT COM0041-08
There is an increase of [*****] in the EEW of such affected [*****] Aircraft due to this change. The Basic Price of the [*****] Aircraft [*****] has been increased by [*****].
3.2 | Change [*****] |
[*****] Aircraft [*****] has been delivered with the [*****] as referred in the PMC/024 dated June 22nd, 2009). There is an increase of [*****] in the EEW of such affected [*****] Aircraft due to this change. The Basic Price of the [*****] Aircraft [*****] has been increased by [*****].
3.3 | Inclusion of [*****] |
Aircraft [*****] shall be delivered with [*****] (as referred in the PMC/027 dated September 3rd, 2009). There will be no weight alteration in the affected Aircraft due to this change. The Basic Price of the Aircraft [*****] shall be increased by [*****].
3.4 | Translation to [*****]. |
Aircraft [*****] shall be delivered with [*****] (as referred in the PMC/028 dated November 9th, 2009). There will be no weight alteration in the affected Aircraft due to this change. The Basic Price of the [*****] shall be increased by [*****].
3.5 | [*****] installation [*****] |
Aircraft [*****] shall be delivered with a [*****] (as referred in the PMC/029 dated January 21st, 2010). There will be no weight alteration in the affected Aircraft due to this change. The Basic Price of the Aircraft [*****] shall be increased by [*****].
3.6 | [*****] |
Aircraft [*****] shall be delivered with [*****] (as referred in the PMC/030 dated January 21st, 2010). There will be no weight alteration on the affected Aircraft due to this change. The Basic Price of the Aircraft [*****] shall be increased by [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 11 to Purchase Agreement COM0041-08 | Page 3 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 11 TO PURCHASE AGREEMENT COM0041-08
3.7 | New [*****] |
Aircraft [*****] shall be delivered with a new [*****] (as referred in the PMC/031 dated February, 24th, 2010). There will be a decrease of [*****] in the EEW of the affected Aircraft due to this change. The Basic Price of the Aircraft [*****] shall be increased by [*****].
4. | BASIC PRICE CHANGE |
4.1 Aircraft Basic Price: Due to changes in the Aircraft configuration, Article 3.1 of the Purchase Agreement is hereby modified to read as follows:
3.1 Buyer agrees to pay Embraer in United States dollars, per unit, the Aircraft Basic Price as indicated in the table below:
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] | |
[*****] | [*****] |
4.2 Aircraft Basic Price for Conversion Aircraft: Due to the changes in the Aircraft configuration, Article 23.4 of the Purchase Agreement is hereby modified to read as follows:
23.4 The Conversion Aircraft Basic Price for each the [*****], in [*****], including the optional equipment and customized lay outs defined respectively in Attachments A2, A3 and A4, are:
[*****] | [*****] | [*****] | ||||
Basic Price |
[*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 11 to Purchase Agreement COM0041-08 | Page 4 of 6 |
AMENDMENT No. 11 TO PURCHASE AGREEMENT COM0041-08
5. | CHANGES TO ATTACHMENTS OF THE PURCHASE AGREEMENT |
As a result of the changes referred to above, Attachments A 1 and A4 (Aircraft Configuration), E1 and E4 (Performance and Weight Guarantee) and Attachment D (Escalation Formula) to the Purchase Agreement are hereby deleted and replaced with new Attachments A1, A4, E1 ,E4 and D to this Amendment No. 11.
6. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No. 11, shall remain in full force and effect without any change.
7. | COUNTERPARTS |
This Amendment No.11 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
Amendment No. 11 to Purchase Agreement COM0041-08 | Page 5 of 6 |
AMENDMENT No. 11 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 11 to the Purchase Agreement to be effective as of the date first written above.
EMBRAEREmpresa Brasileira | Canela Investments LLC | |||||
de Aeronáutica S.A. | ||||||
By: | /s/ Mauro Kern Junior |
By: | /s/ Gerald B. Lee | |||
Name: | Mauro Kern Junior | Name: | Gerald Blake Lee | |||
Title: | Executive Vice-President | Title: | Canela Investments, LLC | |||
New Programs, Airline Market | Managing Director | |||||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President, Contracts Airline Market | |||||
Date: | December 21st, 2009 |
Date: | October 26th, 2010 | |||
Place: |
|
Place: | Barueri SP |
Witness: |
|
Witness: | /s/ Aline Munhoz Zamora | |||||
Name: | Sandra Boelter de Boslos |
Name: | Aline Munhoz Zamora | |||||
RG: | RG: | RG: 32.485.341-5 | ||||||
CPF: 216.841.928-03 |
Amendment No. 11 to Purchase Agreement COM0041-08 | Page 6 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 12 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 12 to Purchase Agreement COM0041-08, dated as of September 30th, 2011 (Amendment No. 12) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 12 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.12 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.12 and the Purchase Agreement, this Amendment No.12 shall control.
WHEREAS:
1) | Buyer desires to purchase [*****] E195 aircraft pursuant to the Purchase Agreement; |
2) | The Parties desires to implement certain changes to the Aircraft configuration which caused [*****]; |
3) | The Parties have entered into a [*****] with respect to each of the following Aircraft #13, 18, 19, 20, 21, 23, 24 and 26; |
4) | Buyer desires to modify the Aircraft delivery schedule contained in Article 5.1 of the Purchase Agreement; |
5) | The Parties desire to include Attachment D1 to the Purchase Agreement. |
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | SUBJECT |
1.1 | Article 2.1 of the Purchase Agreement is hereby modified to read as follows: |
2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of [*****] E195 Aircraft and [*****] E190 Aircraft.
2. | DELIVERY |
2.1 | Article 5.1 of the Purchase Agreement is hereby modified to read as follows: |
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 12 to Purchase Agreement COM0041-08 | Page 1 of 5 |
Execution version
AMENDMENT No. 12 TO PURCHASE AGREEMENT COM0041-08
Aircraft # |
Contractual Delivery Date |
Aircraft |
Contractual Delivery Date | |||
01 (E195) |
Nov 2008 | 32 (E195) | Dec 2011 | |||
02 (E195) |
Dec 2008 | 33 (E195) | Dec 2011 | |||
03 (E195) |
Dec 2008 | 34 (E195) | Jan 2012 | |||
04 (E195) |
Jan 2009 | 35 (E195) | Feb 2012 | |||
05 (E195) |
Aircraft Terminated | 36 (E195) | Mar 2012 | |||
06 (E190) |
Aircraft Terminated | 37 (E195) | Apr 2012 | |||
07 (E190) |
May 2009 | 38 (E195) | May 2012 | |||
08 (E190) |
Aircraft Terminated | 39 (E195) | Oct 2012 | |||
09 (E190) |
Aircraft Terminated | 40 (E195) | Nov 2012 | |||
10 (E190) |
Jan 2010 | 41 (E195) | Dec 2012 | |||
11(E195) |
May 2010 | 42 (E195) | Mar 2013 | |||
12 (E195) |
Jun 2010 | 43 (E195) | May 2013 | |||
13 (E195) |
Aircraft Terminated | 44 (E195) | Jun 2013 | |||
14 (E195) |
Jul 2010 | 45 (E195) | Oct 2013 | |||
15 (E195) |
Aug 2010 | 46 (E195) | Nov 2013 | |||
16 (E195) |
Aug 2010 | 47 (E195) | Feb 2014 | |||
17 (E195) |
Sep 2010 (*) | 48 (E195) | Mar 2014 | |||
18 (E195) |
Aircraft Terminated (*) | 49 (E195) | Apr 2014 | |||
19 (E195) |
Aircraft Terminated(*) | 50 (E195) | Jun 2014 | |||
20 (E195) |
Aircraft Terminated(*) | 51 (E195) | Sep 2014 | |||
21 (El 95) |
Aircraft Terminated(*) | 52 (El 95) | Oct 2014 | |||
22 (E195) |
Jan 2011 | 53 (E195) | Jan 2015 (**) | |||
23 (E195) |
Aircraft Terminated | 54 (E195) | Mar 2015 (**) | |||
24 (E195) |
Aircraft Terminated | 55 (E195) | Jun 2015 (**) | |||
25 (E195) |
Apr 2011 | 56 (E195) | Sep 2015(**) | |||
26 (E195) |
Aircraft Terminated | 57 (E195) | Nov 2015 (**) | |||
27 (E195) |
Jun 2011 | 58 (E195) | Feb 2016 (**) | |||
28 (E195) |
Jul 2011 | 59 (E195) | Apr 2016 (**) | |||
29 (E195) |
Oct 2011 | 60 (E195) | Jun 2016 (**) | |||
30 (E195) |
Nov 2011 | 61 (E195) | Jul 2016 (**) | |||
31 (E195) |
Nov 2011 | 62 (E195) | Sep 2016 (**) |
(*) Five New E195
(**) Additional Firm Aircraft
Amendment No. 12 to Purchase Agreement COM0041-08 | Page 2 of 5 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 12 TO PURCHASE AGREEMENT COM0041-08
3. | CHANGES TO THE AIRCRAFT CONFIGURATION |
3.1 | [*****] modification for [*****] |
Aircraft [*****] shall be delivered with [*****]. The EEW of the affected Aircraft shall increase in [*****] due to this change. The Basic Price of the affected Aircraft shall be increased by [*****].
3.2 | Azul E195Green Livery |
Aircraft [*****] shall be delivered painted in green. The Basic Price of the affected Aircraft shall be increased by [*****].
3.3 | Azul E195Flagship Livery |
Aircraft [*****] shall be delivered painted with the Brazilian flag colors. The Basic Price of the affected Aircraft shall be increased by [*****].
3.4 | Azul E195 Azul Viagens Livery |
Aircraft [*****] shall be delivered painted with LogoJet Azul Viagens colors. The Basic Price of the affected Aircraft shall be increased by [*****].
3.5 | [*****] |
Buyer requested to have Aircraft [*****] to be delivered with [*****]. As a consequence, the Basic Price of the Aircraft [*****] to Aircraft [*****] shall be [*****]. Specifically for Aircraft [*****], due to the fact that the [*****] were performed in an expedited manner, the Basic Price of this Aircraft [*****] shall be [*****].
4. | BASIC PRICE CHANGE |
4.1 | Aircraft Basic Price: Due to changes in the Aircraft configuration, Article 3.1 of the Purchase Agreement is hereby modified to read as follows: |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 12 to Purchase Agreement COM0041-08 | Page 3 of 5 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 12 TO PURCHASE AGREEMENT COM0041-08
3.1 Buyer agrees to pay Embraer in United States dollars, per unit, the Aircraft Basic Price as indicated in the table below:
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] |
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] |
4.2 | Escalation: Article 3.3 of the Purchase Agreement is hereby modified to read as follows: |
3.3 The Basic Price of Aircraft [*****] to Aircraft [*****], Aircraft [*****] and Aircraft [*****] shall be [*****]. The Basic Price of Aircraft [*****], Aircraft [*****] and Aircraft [*****] to Aircraft [*****] shall be [*****].
Such price as escalated shall be the Aircraft Purchase Price and it will be provided by Embraer to Buyer [*****] prior to each Aircraft Contractual Delivery Date.
5. | INCLUSION OF ATTACHMENT D1 |
A new Attachment D1 attached to this Amendment No.12 is hereby included in the Purchase Agreement as Attachment D1.
6. | CHANGE TO CLAUSE SPECIAL CONDITIONS FOR THE [*****] |
Article 3 to Amendment No. 10 to the Purchase Agreement is hereby deleted as if such Article 3 had never been included in the Amendment No. 10 to the Purchase Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 12 to Purchase Agreement COM0041-08 | Page 4 of 5 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 12 TO PURCHASE AGREEMENT COM0041-08
7. | [*****] |
In consideration of Buyer [*****] Aircraft as contemplated in this Amendment No. 12, the [*****] already provided by Embraer to Buyer shall be considered [*****], and therefore there is [*****] by Buyer to Embraer in relation to this [*****].
8. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No.12, shall remain in full force and effect without any change.
9. | COUNTERPARTS |
This Amendment No.12 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 12 to the Purchase Agreement to be effective as of the date first written above.
Embraer S.A | Canela Investments LLC | |||||
By: | /s/ [Illegible] |
By: | /s/ [Illegible] | |||
Name: | José Luis DAvila Molina | Name: | Gerald Blake Lee | |||
Title: | Vice President, Contracts | Title: | Canela Investments, LLC | |||
Airline Market | Managing Director | |||||
By: | /s/ [Illegible] |
|||||
Name: | Eduardo Manhós de Campos | |||||
Title: | Vice President, Latin America | |||||
Airline Market | ||||||
Date: | September 30, 2011 |
Date: | September 30, 2011 | |||
Place: | São José dos Campos, SP |
Place: | Barueri, SP. |
Witnesses: /s/ Fernando Bueno |
Witnesses: /s/ Aline Munhoz Zamara | |||||||
Name: | Fernando Bueno | Name: | Aline Munhoz Zamara | |||||
ID: | RG: 32.485.341-5 | |||||||
CPF: 216.841.928-03 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 12 to Purchase Agreement COM0041-08 | Page 5 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT D1
ESCALATION FORMULA
[*****]
[*****]
[*****]
[*****]
[*****]
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****]
[*****]
[*****]
[*****]
[*****]
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 12 to the Purchase Agreement COM0041-08 | Page 1 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT D1
ESCALATION FORMULA
[*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] |
[*****]
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****]
[*****]
[*****] | [*****] |
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 12 to the Purchase Agreement COM0041-08 | Page 2 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT D1
ESCALATION FORMULA
[*****]
[*****]
[*****]
[*****] |
[*****] | |
[*****] | [*****] [*****] | |
[*****] | [*****] [*****] | |
[*****] | [*****] [*****] |
[*****] | [*****] |
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 12 to the Purchase Agreement COM0041-08 | Page 3 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT D1
ESCALATION FORMULA
[*****]
[*****]
[*****] |
[*****] | |
[*****] | [*****] [*****] | |
[*****] | [*****] [*****] | |
[*****] | [*****] [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 12 to the Purchase Agreement COM0041-08 | Page 4 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 13 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 13 to Purchase Agreement COM0041-08, dated as of November 9, 2011 (Amendment No. 13) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 13 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.13 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.13 and the Purchase Agreement, this Amendment No.13 shall control.
WHEREAS:
1) | The Parties have entered into a [*****] with respect to each of the following Aircraft #27 and #28; |
2) | Buyer has requested to change the Basic Price of certain Aircraft as a result of [*****]. |
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | SUBJECT |
1.1 | Article 2.1 of the Purchase Agreement is hereby modified to read as follows: |
2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of [*****] E195 Aircraft and [*****] E190 Aircraft.
2. | DELIVERY |
2.1 | Article 5.1 of the Purchase Agreement is hereby modified to read as follows: |
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
01 (E195) |
Nov 2008 | 32 (E195) | Dec 2011 | |||
02 (E195) |
Dec 2008 | 33 (E195) | Dec 2011 | |||
03 (E195) |
Dec 2008 | 34 (E195) | Jan 2012 | |||
04 (E195) |
Jan 2009 | 35 (E195) | Feb 2012 | |||
05 (E195) |
Aircraft Terminated | 36 (E195) | Mar 2012 | |||
06 (E190) |
Aircraft Terminated | 37 (El 95) | Apr 2012 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 13 to Purchase Agreement COM0041-08 | Page 1 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 13 TO PURCHASE AGREEMENT COM0041-08
07 (E190) |
May 2009 | 38 (E195) | May 2012 | |||
08 (E190) |
Aircraft Terminated | 39 (E195) | Oct 2012 | |||
09 (E190) |
Aircraft Terminated | 40 (E195) | Nov 2012 | |||
10 (E190) |
Jan 2010 | 41 (E195) | Dec 2012 | |||
11 (E195) |
May 2010 | 42 (E195) | Mar 2013 | |||
12 (E195) |
Jun 2010 | 43 (E195) | May 2013 | |||
13 (E195) |
Aircraft Terminated | 44 (E195) | Jun 2013 | |||
14 (E195) |
Jul 2010 | 45 (E195) | Oct 2013 | |||
15 (E195) |
Aug 2010 | 46 (E195) | Nov 2013 | |||
16 (E195) |
Aug 2010 | 47 (E195) | Feb 2014 | |||
17 (E195) |
Sep 2010 (*) | 48 (E195) | Mar 2014 | |||
18 (E195) |
Aircraft Terminated (*) | 49 (E195) | Apr 2014 | |||
19 (E195) |
Aircraft Terminated(*) | 50 (E195) | Jun 2014 | |||
20 (E195) |
Aircraft Terminated(*) | 51 (E195) | Sep 2014 | |||
21 (E195) |
Aircraft Terminated(*) | 52 (E195) | Oct 2014 | |||
22 (E195) |
Jan 2011 | 53 (E195) | Jan 2015 (**) | |||
23 (E195) |
Aircraft Terminated | 54 (E195) | Mar 2015 (**) | |||
24 (E195) |
Aircraft Terminated | 55 (E195) | Jun 2015 (**) | |||
25 (E195) |
Apr 2011 | 56 (E195) | Sep 2015(**) | |||
26 (El 95) |
Aircraft Terminated | 57 (El 95) | Nov 2015 (**) | |||
27 (E195) |
Aircraft Terminated | 58 (E195) | Feb 2016 (**) | |||
28 (El 95) |
Aircraft Terminated | 59 (El 95) | Apr 2016 (**) | |||
29 (E195) |
Oct 2011 | 60 (E195) | Jun 2016 (**) | |||
30 (E195) |
Nov 2011 | 61 (E195) | Jul 2016 (**) | |||
31 (E195) |
Nov 2011 | 62 (E195) | Sep 2016 (**) |
(*) Five New E195
(**) Additional Firm Aircraft
3. | BASIC PRICE CHANGE |
3.1 Aircraft Basic Price: [*****] by Buyer, Article 3.1 of the Purchase Agreement is hereby modified to read as follows:
3.1 Buyer agrees to pay Embraer in United States dollars, per unit, the Aircraft Basic Price as indicated in the table below:
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 13 to Purchase Agreement COM0041-08 | Page 2 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 13 TO PURCHASE AGREEMENT COM0041-08
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] |
[*****] |
3.2 Escalation: Article 3.3 of the Purchase Agreement is hereby modified to read as follows:
3.3 The Basic Price of Aircraft [*****] to Aircraft [*****], Aircraft [*****] and Aircraft [*****] shall be [*****]. The Basic Price of Aircraft [*****], Aircraft [*****], Aircraft [*****], and Aircraft [*****] to Aircraft [*****] shall be [*****] attached to this Amendment No.13 which is hereby included in the Purchase Agreement.
Such price as escalated shall be the Aircraft Purchase Price and it will be provided by Embraer to Buyer [*****] each Aircraft Contractual Delivery Date.
4. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No.13, shall remain in full force and effect without any change.
5. | COUNTERPARTS |
This Amendment No.13 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 13 to Purchase Agreement COM0041-08 | Page 3 of 4 |
Execution version
AMENDMENT No. 13 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 13 to the Purchase Agreement to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Artur Coutinho |
By: | /s/ Gerald B. Lee | |||
Name: | Artur Coutinho | Name: | Gerald Blake Lee | |||
Title: | COO Chief Operating Officer | Title: | Canela Investments, LLC | |||
Managing Director | ||||||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President, Contracts | |||||
Commercial Aviation | ||||||
Date: | November 9, 2011 |
Date: | November 9, 2011 | |||
Place: | [Illegible], Brazil |
Place: | Barueri, Brazil |
Witness: | /s/ Sandra Boelter de Baslos |
Witness: | /s/ Priscilla Ferreira Branco | |||||
Name: | Sandra Boelter de Baslos |
Name: | Priscilla Ferreira Branco | |||||
Identidade: | 12626633-7 - IPP | |||||||
CPF: | 090614607-67 |
Amendment No. 13 to Purchase Agreement COM0041-08 | Page 4 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT D1
ESCALATION FORMULA
[*****]
[*****]
[*****]
[*****]
[*****]
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****]
[*****]
[*****]
[*****]
[*****]
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 13 to Purchase Agreement COM0041-08 | Page 1 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT D1
ESCALATION FORMULA
[*****]
[*****][*****]
[*****][*****]
[*****]
[*****]
[*****][*****]
[*****][*****]
[*****][*****]
[*****][*****]
[*****]
[*****]
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 13 to Purchase Agreement COM0041-08 | Page 2 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATTACHMENT D1
ESCALATION FORMULA
[*****]
[*****]
[*****]
[*****] | [*****] | |
[*****] |
[*****] | |
[*****] |
[*****] [*****] | |
[*****] |
[*****] [*****] |
[*****] | [*****] |
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 13 to Purchase Agreement COM0041-08 | Page 3 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT D1
ESCALATION FORMULA
[*****]
[*****]
[*****] | [*****] | |
[*****] |
[*****] | |
[*****] |
[*****] [*****] | |
[*****] |
[*****] [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 13 to Purchase Agreement COM0041-08 | Page 4 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 14 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 14 to Purchase Agreement COM0041-08, dated as of December 1st 2011 (Amendment No. 14) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 14 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.14 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.14 and the Purchase Agreement, this Amendment No.14 shall control.
WHEREAS:
1. | Buyer has requested to repaint certain portion of Aircraft #30 prior to delivery: |
2. | Buyer has requested to change the Basic Price of certain Aircraft as a result of [*****]. |
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | EXTERNAL PAINTING CHANGE |
Aircraft #30 shall have some portion of its fuselage repainted as agreed by Buyer and Embraer. The Basic Price of this Aircraft shall be [*****].
2. | BASIC PRICE CHANGE |
2.1 Aircraft Basic Price: [*****] by Buyer, Article 3.1 of the Purchase Agreement is hereby modified to read as follows:
3.1 Buyer agrees to pay Embraer in United States dollars, per unit, the Aircraft Basic Price as indicated in the table below:
[*****] |
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[*****] |
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[*****] |
[*****] | [*****] | ||
[*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 14 to Purchase Agreement COM0041-08 | Page 1 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
AMENDMENT No. 14 TO PURCHASE AGREEMENT COM0041-08
[*****] | [*****] | [*****] | ||
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[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] |
3.2 Escalation: Article 3.3 of the Purchase Agreement is hereby modified to read as follows:
3.3 The Basic Price of Aircraft [*****] to Aircraft [*****], Aircraft [*****] and Aircraft [*****] shall be [*****] to the Purchase Agreement. The Basic Price of Aircraft [*****], Aircraft [*****], Aircraft [*****], Aircraft [*****], Aircraft [*****] and Aircraft [*****] to Aircraft [*****] shall be [*****] attached to this Amendment No.14 which is hereby included in the Purchase Agreement.
Such price as escalated shall be the Aircraft Purchase Price and it will be provided by Embraer to Buyer [*****] to each Aircraft Contractual Delivery Date.
3. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No.14, shall remain in full force and effect without any change.
4. | COUNTERPARTS |
This Amendment No.14 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 14 to Purchase Agreement COM0041-08 | Page 2 of 3 |
Execution version
AMENDMENT No. 14 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 14 to the Purchase Agreement to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Artur Coutinho |
By: | /s/ Gerald B. Lee | |||
Name: | Artur Coutinho | Name: | Gerald Blake Lee | |||
Title: | COO Chief Operating Officer | Title: | Canela Investments, LLC | |||
Managing Director | ||||||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President, Contracts | |||||
Commercial Aviation | ||||||
Date: | December 1st, 2011 |
Date: | Barueri, December 1st, 2011 | |||
Place: | São José dos Campos, SP |
Place: | Barueri, Brazil |
Witness: | /s/ Sandra Boelter de Baslos |
Witness: | /s/ Priscilla Ferreira Branco | |||||
Name: | Sandra Boelter de Baslos |
Name: | Priscilla Ferreira Branco | |||||
Identidade: | 12626633-7 - IPP | |||||||
CPF: | 090614607-67 |
Amendment No. 14 to Purchase Agreement COM0041-08 | Page3 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT D1
ESCALATION FORMULA
[*****]
[*****]
[*****]
[*****]
[*****]
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****]
[*****]
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[*****] |
[*****]
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 14 to Purchase Agreement COM0041-08 | Page 1 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT D1
ESCALATION FORMULA
[*****] |
[*****] | [*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 14 to Purchase Agreement COM0041-08 | Page 2 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT D1
ESCALATION FORMULA
[*****]
[*****]
[*****]
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[*****] | [*****] [*****] | |
[*****] | [*****] [*****] | |
[*****] | [*****] [*****] |
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[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 14 to Purchase Agreement COM0041-08 | Page 3 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT D1
ESCALATION FORMULA
[*****]
[*****]
[*****] |
[*****] | |
[*****] | [*****] [*****] | |
[*****] | [*****] [*****] | |
[*****] | [*****] [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No. 14 to Purchase Agreement COM0041-08 | Page 4 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 15 COM 0021-12 TO PURCHASE AGREEMENT
COM0041-08
This Amendment No. 15 to Purchase Agreement COM0041-08, dated as of January 20, 2012 (Amendment No. 15) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 15 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.15 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.15 and the Purchase Agreement, this Amendment No.15 shall control.
WHEREAS,
a) Buyer has requested and Embraer is willing to [*****] the Contractual Delivery Date of the Aircraft #39, #40 and #41;
b) In view of the above, Parties have agreed to modify the Aircraft delivery schedule contained in Article 5.1 of the Purchase Agreement;
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | DELIVERY |
Article 5.1 of the Purchase Agreement is hereby modified to read as follows:
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
01 (E195) |
Nov 2008 | 32 (E195) | Dec 2011 | |||
02 (E195) |
Dec 2008 | 33 (E195) | Dec 2011 | |||
03 (E195) |
Dec 2008 | 34 (E195) | Jan 2012 | |||
04 (E195) |
Jan 2009 | 35 (E195) | Feb 2012 | |||
05 (E1.95) |
Aircraft Terminated | 36 (E195) | Mar 2012 | |||
06 (E190) |
Aircraft Terminated | 37 (E195) | Apr 2012 | |||
07 (E190) |
May 2009 | 38 (E195) | May 2012 | |||
08 (E190) |
Aircraft Terminated | 39 (E195) | Sep 2012 | |||
09 (E190) |
Aircraft Terminated | 40 (E195) | Oct 2012 | |||
10 (E190) |
Jan 2010 | 41 (E195) | Nov 2012 | |||
11 (E195) |
May 2010 | 42 (E195) | Mar 2013 | |||
12 (E195) |
Jun 2010 | 43 (E195) | May 2013 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 15 to Purchase Agreement COM0041-08 | Page 1 of 3 |
Execution version
AMENDMENT No. 15 COM 0021-12 TO PURCHASE AGREEMENT
COM0041-08
13 (E195) |
Aircraft Terminated | 44 (E195) | Jun 2013 | |||
14 (E195) |
Jul 2010 | 45 (E195) | Oct 2013 | |||
15 (E195) |
Aug 2010 | 46 (E195) | Nov 2013 | |||
16 (E195) |
Aug 2010 | 47 (E195) | Feb 2014 | |||
17 (E195) |
Sep 2010 (*) | 48 (E195) | Mar 2014 | |||
18 (E195) |
Aircraft Terminated (*) | 49 (El 95) | Apr 2014 | |||
19 (E195) |
Aircraft Terminated(*) | 50 (E195) | Jun 2014 | |||
20 (E195) |
Aircraft Terminated(*) | 51 (E195) | Sep 2014 | |||
21 (E195) |
Aircraft Terminated(*) | 52 (E195) | Oct 2014 | |||
22 (E195) |
Jan 2011 | 53 (E195) | Jan 2015 (**) | |||
23 (E195) |
Aircraft Terminated | 54 (E195) | Mar 2015 (**) | |||
24 (E195) |
Aircraft Terminated | 55 (E195) | Jun 2015 (**) | |||
25 (E195) |
Apr 2011 | 56 (E195) | Sep 2015(**) | |||
26 (E195) |
Aircraft Terminated | 57 (E195) | Nov 2015 (**) | |||
27 (E195) |
Aircraft Terminated | 58 (E195) | Feb 2016 (**) | |||
28 (E195) |
Aircraft Terminated | 59 (E195) | Apr 2016 (**) | |||
29 (E195) |
Oct 2011 | 60 (E195) | Jun 2016 (**) | |||
30 (E195) |
Nov 2011 | 61 (E195) | Jul 2016 (**) | |||
31 (E195) |
Nov 2011 | 62 (E195) | Sep 2016 (**) |
(*) Five New E195
(**) Additional Firm Aircraft
2. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments and Letter Agreements, which are not specifically amended by this Amendment No.15, shall remain in full force and effect without any change.
3. | COUNTERPARTS |
This Amendment No.15 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
Amendment No. 15 to Purchase Agreement COM0041-08 | Page 2 of 3 |
Execution version
AMENDMENT No. 15 COM 0021-12 TO PURCHASE AGREEMENT
COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 15 to the Purchase Agreement to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Artur Coutinho |
By: | /s/ Gerald B. Lee | |||
Name: | Artur Coutinho | Name: | Gerald Blake Lee | |||
Title: | COO Chief Operating Officer | Title: | Canela Investments, LLC | |||
Managing Director | ||||||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President, Contracts | |||||
Commercial Aviation | ||||||
Date: | January 23rd , 2012 |
Date: | January 20th , 2012 | |||
Place: | São José dos Campos, SP |
Place: | Barueri, Brazil |
Witness: | /s/ Isabella Brasil Strottmann |
Witness: | /s/ Aline Munloz Zamora | |||||
Name: | Isabella Brasil Strottmann |
Name: | Aline Munloz Zamora | |||||
RG: | 32.485.341-5 | |||||||
CPF: | 216.841.928-03 |
Amendment No. 15 to Purchase Agreement COM0041-08 | Page 3 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 16 to Purchase Agreement COM0041-08, dated as of May 02, 2012 (Amendment No. 16) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 16 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.16 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.16 and the Purchase Agreement, this Amendment No.16 shall control.
WHEREAS, The Parties desires to implement certain changes to the Aircraft configuration which caused an [*****].
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | CHANGES TO THE AIRCRAFT CONFIGURATION |
[*****]
[*****] shall be delivered with [*****]. As a consequence, the Basic Price of the Aircraft [*****] shall be increased by [*****].
2. | BASIC PRICE CHANGE |
2.1 Aircraft Basic Price: Due to changes in the Aircraft configuration, Article 3.1 of the Purchase Agreement is hereby modified to be read as follows:
3.1 Buyer agrees to pay Embraer in United States dollars, per unit, the Aircraft Basic Price as indicated in the table below:
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 16 to Purchase Agreement COM0041-08 | Page 1 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
[*****] |
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3. | INCLUSION OF ATTACHMENT A1 and E1 |
A new Attachment Al and E1 attached to this Amendment No.16 is hereby included in the Purchase Agreement to be read as presented on Exhibit 1 and Exhibit 2 to this Amendment No.16.
4. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No.16, shall remain in full force and effect without any change.
5. | COUNTERPARTS |
This Amendment No.16 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 16 to Purchase Agreement COM0041-08 | Page 2 of 3 |
Execution version
AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 16 to the Purchase Agreement to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Mauro Kern Junior |
By: | /s/ John Peter Rodgerson | |||
Name: | Mauro Kern Junior | Name: | Canela Investments, LLC | |||
Title: | Executive Vice-President | Title: | Managing Director | |||
Engineering and Technology | ||||||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President, Contracts | |||||
Commercial Aviation | ||||||
Date: | May 4th, 2012 |
Date: | May 2nd, 2012 | |||
Place: | São José dos Campos, SP, Brazil |
Place: | Barueri, SP |
Witness: | /s/ Isabella Brasil Strottman |
Witness: | /s/ Aline Munhoz Zamora | |||||
Name: | Isabella Brasil Strottman | Name: | Aline Munhoz Zamora | |||||
RG: | 32.485.341-5 | |||||||
CPF: | 216.841.928-03 |
Amendment No. 16 to Purchase Agreement COM0041-08 | Page 3 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 1 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT A1
AIRCRAFT CONFIGURATION
1. | STANDARD AIRCRAFT |
The Aircraft EMBRAER 195 shall be manufactured according to (i) the Technical Description [*****] dated as of November 2007 which although not attached hereto, are incorporated herein by reference, and (ii) the characteristics described in the items below.
2. | OPTIONAL EQUIPMENT: |
The Aircraft will also be fitted with the following options selected by Buyer:
[*****] | [*****] | |
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[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 | Page 1 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 1 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT A1
AIRCRAFT CONFIGURATION
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[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 | Page 2 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 1 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT A1
AIRCRAFT CONFIGURATION
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 | Page 3 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 1 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT A1
AIRCRAFT CONFIGURATION
[*****]
3. | FINISHING |
The Aircraft will be delivered to Buyer as follows:
3.1 | EXTERIOR FINISHING: |
The fuselage of the Aircraft shall be painted according to Buyers color and paint scheme, which shall be supplied to Embraer by Buyer on or before [*****] prior to the first Aircraft contractual delivery date. The wings and the horizontal stabilizer shall be supplied in the standard colors, i.e., grey BAC707.
Once defined, the choices of color and paint scheme made by Buyer shall apply to all Aircraft. If Buyer requires a color and paint scheme for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 | Page 4 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 1 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT A1
AIRCRAFT CONFIGURATION
received by Embraer. Should Buyer not approve the quotation, the relevant Aircraft shall be painted in according to the original paint and color scheme.
3.2 | INTERIOR FINISHING: |
The materials and colours of all and any items of interior finishing such as seat covers, carpet, floor lining on galley areas, side walls and overhead lining, galley lining and curtain for the Aircraft will be in accordance with Buyers choices indicated in the Customer Check List Revision N/C executed by and among Buyer, Embraer and C&D Zodiac on February 15, 2008. In case of conflict between the CCL and this Attachment A the latter shall control.
The choices of interior finishing made by Buyer shall apply to all Aircraft. If Buyer requires an interior finishing for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the interior of relevant Aircraft shall be built according to the original choice of Buyer.
3.3 | BUYER FURNISHED EQUIPMENT(BFE) AND BUYER INSTALLED EQUIPMENT (BIE): |
Any BFE materials shall conform to the required standards and comply with all applicable regulations and airworthiness requirements. Delays in the delivery of BFE materials or quality restrictions that prevent the installation thereof in the time frame required by the Aircraft manufacturing process shall entitle Embraer to either delay the delivery of the Aircraft or present the Aircraft to Buyer without such BFE, in which case Buyer shall not be entitled to refuse acceptance of the Aircraft. All BFE equipment shall be delivered in DDP conditions (Incoterms 2000) to C&D Zodiac 14 Centerpointe Drive, La Palma, CA 90623, USA, or to another place to be timely informed by Embraer.
The Aircraft galleys have space provisions for the following BIE items that, unless timely agreed by the Parties, are not supplied or installed by Embraer: Trolleys, ovens, coffee makers, hot jugs and standard units.
Medical kits, defibrillators and wheelchairs, as well as any other equipment classified as medical or pharmaceutical products, shall be BIE items.
3.4 | EMBRAER RIGHT TO PERFORM FOR BUYER: |
If Buyer fails to make any choice or definition which Buyer is required to make regarding the exterior and interior finishing of any Aircraft or to inform Embraer thereof, Embraer shall have the right, but not the obligation, to tender the Aircraft for delivery (a) painted white and (b) fitted with an interior finishing selected by Embraer at its reasonable discretion.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 | Page 5 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
EXHIBIT 1 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT A1
AIRCRAFT CONFIGURATION
The taking of any such action by Embraer pursuant to this Article shall not constitute a waiver or release of any obligation of Buyer under the Purchase Agreement, nor a waiver of any event of default which may arise out of Buyers nonperformance of such obligation, nor an election or waiver by Embraer of any remedy or right available to Embraer under the Purchase Agreement.
No compensation to Buyer or reduction of the Aircraft Offer Price shall be due by virtue of the taking of any such actions by Embraer and Embraer shall be entitled to charge Buyer for the amount of the reasonable expenses of Embraer incurred in connection with the performance of or compliance with such agreement, as the case may be, payable by Buyer upon demand.
4. | REGISTRATION MARKS, TRANSPONDER AND ELT CODES: |
The Aircraft shall be delivered to Buyer with the registration marks painted on them. The registration marks, the transponder code and ELT protocol coding shall be supplied to Embraer by Buyer no later than [*****] before each relevant Aircraft contractual delivery date. Embraer shall be entitled to tender the Aircraft for delivery to Buyer without registration marks, with an inoperative transponder and without setting the ELT protocol coding in case Buyer fails to supply such information to Embraer in due time.
5. | EXPORT CONTROL ITEMS |
The Aircraft contains (i) an [*****] manufactured by [*****] with an embedded [*****] used for emergency backup and flight safety information, and (ii) [*****] manufactured by [*****]. The [*****] and the [*****] that are incorporated into this Aircraft are subject to export control under United States of America law. Transfer or re-export of such items (whether or not incorporated into the Aircraft), as well as their related technology and software may require prior authorization from the US Government.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT A1 AND THE TERMS OF THE TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT A1 SHALL PREVAIL.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 | Page 6 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 2 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 | Page 1 of 9 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 2 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 | Page 2 of 9 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 2 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 | Page 3 of 9 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 2 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 | Page 4 of 9 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 2 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 | Page 5 of 9 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 2 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 | Page 6 of 9 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 2 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 | Page 7 of 9 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 2 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 | Page 8 of 9 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 2 TO AMENDMENT No. 16 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT E1
PERFORMANCE AND WEIGHT GUARANTEE
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E1 to Purchase Agreement COM0041-08 | Page 9 of 9 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 17 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 17 to Purchase Agreement COM0041-08, dated as of July 11, 2012 (Amendment No. 17) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 17 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.17 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.17 and the Purchase Agreement, this Amendment No.17 shall control.
WHEREAS, The Parties desires to implement certain changes to the Aircraft configuration which caused an [*****].
Now therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | CHANGE TO THE AIRCRAFT CONFIGURATION |
1.1 | Azul E195 New Logo Jet Sua arte lá em cima |
[*****] shall be delivered painted with the new logo jet Sua arte la em cima. The Basic Price of the affected Aircraft shall be [*****].
2. | BASIC PRICE CHANGE |
2.1 Aircraft Basic Price: Due to changes in the Aircraft configuration, Article 3.1 of the Purchase Agreement is hereby modified to read as follows:
3.1 Buyer agrees to pay Embraer in United States dollars, per unit, the Aircraft Basic Price as indicated in the table below:
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 17 to Purchase Agreement COM0041-08 | Page 1 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 17 TO PURCHASE AGREEMENT COM0041-08
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3. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No. 17, shall remain in full force and effect without any change.
4. | COUNTERPARTS |
The Amendment No. 17 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 17 to Purchase Agreement COM0041-08 | Page 2 of 3 |
Execution version
AMENDMENT No. 17 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment 17 to the Purchase Agreement to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Artur Coutinho |
By: | /s/ David Gary Neeleman | |||
Name: | Artur Coutinho | Name: | David Gary Neeleman | |||
Title: | COO Chief Operating Officer | Title: | President | |||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President, Contracts | |||||
Commercial Aviation | ||||||
Date: |
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Date: |
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Place: |
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Place: |
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Witness: | /s/ [Illegible] |
Witness: | /s/ Aline Munhoz Z. | |||||
Name: | [Illegible] | Name: | Aline Munhoz Z. | |||||
RG: | 32.485.341-5 | |||||||
CPF: | 216.841.928-03 |
Amendment No. 17 to Purchase Agreement COM0041-08 | Page 3 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 18 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 18 to Purchase Agreement COM0041-08, dated as of December 28, 2012 (Amendment No. 18) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment 18 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.18 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.18 and the Purchase Agreement, this Amendment No.18 shall control.
WHEREAS, the Parties have mutually agreed to [*****] of the Purchase Right Aircraft.
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | CHANGE TO PURCHASE RIGHT AIRCRAFT |
1.1 | Article 22.3 of the Purchase Agreement is hereby modified as follows: |
22.3 In case Embraer has not received Exercise Notices for all Purchase Right Aircraft on or before [*****] Buyer shall be deemed to have relinquished its right to acquire any unexercised Purchase Right Aircraft. The Exercise Notice shall specify the desirable delivery month for the Purchase Right Aircraft that Buyer intends to firm-up. The contractual delivery date for any Purchase Right Aircraft (Purchase Right Aircraft Contractual Delivery Date) shall be no later than [*****].
2. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No.18, shall remain in full force and effect without any change.
3. | COUNTERPARTS |
This Amendment No.18 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 18 to Purchase Agreement COM0041-08 | Page 1 of 2 |
Execution version
AMENDMENT No. 18 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 18 to the Purchase Agreement to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Flávío Rímoli |
By: | /s/ John Peter Rodgerson | |||
Name: | Flávío Rímoli | Name: | John Peter Rodgerson | |||
Title: | Executive Vice President | Title: | President | |||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President, Contracts | |||||
Commercial Aviation | ||||||
Date: | January 31st, 2013 |
Date: | October 28th, 2012 | |||
Place: | São José dos Campos, SP |
Place: | Barueri, SP |
Witness: | /s/ [Illegible] |
Witness: | /s/ Aline Munhoz Zamora | |||||
Name: | [Illegible] |
Name: | Aline Munhoz Zamora | |||||
RG: | 32.485.341-5 | |||||||
CPF: | 216.841.928-03 |
Amendment No. 18 to Purchase Agreement COM0041-08 | Page 2 of 2 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No.19 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 19 to Purchase Agreement COM0041-08, dated as of April 9, 2013 (Amendment No. 19) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment No. 19 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.19 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.19 and the Purchase Agreement, this Amendment No.19 shall control.
WHEREAS, Buyer decided to purchase [*****] E195 Aircraft pursuant to the Purchase Agreement.
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | SUBJECT |
1.1 Article 2.1 of the Purchase Agreement is hereby modified to read as follows:
2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of [*****] E195 Aircraft and [*****] E190 Aircraft.
2. | BASIC PRICE CHANGE |
2.1 Due to changes in the Aircraft configuration, Article 3.1 of the Purchase Agreement is hereby modified to read as follows:
3.1 Buyer agrees to pay Embraer in United States dollars, per unit, the Aircraft Basic Price as indicated in the table below:
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No.19 to Purchase Agreement COM0041-08 COM0068-13 |
Page 1 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No.19 TO PURCHASE AGREEMENT COM0041-08
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3. | DELIVERY |
3.1 Article 5.1 of the Purchase Agreement is hereby modified to read as follows:
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
01 (E195) |
Nov 2008 | 33 (E195) | Dec 2011 | |||
02 (E195) |
Dec 2008 | 34 (E195) | Jan 2012 | |||
03 (E195) |
Dec 2008 | 35 (E195) | Feb 2012 | |||
04 (E195) |
Jan 2009 | 36 (E195) | Mar 2012 | |||
05 (E195) |
Aircraft Terminated | 37 (E195) | Apr 2012 | |||
06 (E190) |
Aircraft Terminated | 38 (E195) | May 2012 | |||
07 (E190) |
May 2009 | 39 (E195) | Sep 2012 | |||
08 (E190) |
Aircraft Terminated | 40 (E195) | Oct 2012 | |||
09 (E190) |
Aircraft Terminated | 41 (E195) | Nov 2012 | |||
10 (E190) |
Jan 2010 | 42 (E195) | Mar 2013 | |||
11 (E195) |
May 2010 | 43 (E195) | May 2013 | |||
12 (E195) |
Jun 2010 | 44 (E195) | Jun 2013 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No.19 to Purchase Agreement COM0041-08 COM0068-13 |
Page 2 of 4 |
Execution version
AMENDMENT No.19 TO PURCHASE AGREEMENT COM0041-08
13 (E195) |
Aircraft Terminated | 45 (E195) | Jun 2013 | |||
14 (E195) |
Jul 2010 | 46 (E195) | Oct 2013 | |||
15 (E195) |
Aug 2010 | 47 (E195) | Nov 2013 | |||
16 (E195) |
Aug 2010 | 48 (E195) | Nov 2013 | |||
17 (E195) |
Sep 2010 (*) | 49 (E195) | Feb 2014 | |||
18 (E195) |
Aircraft Terminated(*) | 50 (E195) | Mar 2014 | |||
19 (E195) |
Aircraft Terminated(*) | 51 (E195) | Apr 2014 | |||
20 (E195) |
Aircraft Terminated(*) | 52 (E195) | Jun 2014 | |||
21 (E195) |
Aircraft Terminated(*) | 53 (E195) | Sep 2014 | |||
22 (E195) |
Jan 2011 | 54 (E195) | Oct 2014 | |||
23 (E195) |
Aircraft Terminated | 55 (E195) | Jan 2015 (**) | |||
24 (E195) |
Aircraft Terminated | 56 (E195) | Mar 2015 (**) | |||
25 (E195) |
Apr 2011 | 57 (E195) | Jun 2015 (**) | |||
26 (E195) |
Aircraft Terminated | 58 (E195) | Sep 2015(**) | |||
27 (E195) |
Aircraft Terminated | 59 (E195) | Nov 2015 (**) | |||
28 (E195) |
Aircraft Terminated | 60 (E195) | Feb 2016 (**) | |||
29 (E195) |
Oct 2011 | 61 (E195) | Apr 2016 (**) | |||
30 (E195) |
Nov 2011 | 62 (E195) | Jun 2016 (**) | |||
31 (E195) |
Nov 2011 | 63 (E195) | Jul 2016 (**) | |||
32 (E195) |
Dec 2011 | 64 (E195) | Sep 2016 (**) |
(*) Five New E195
(**) Additional Firm Aircraft
4. | CHANGE TO THE ATTACHMENT D1 |
As a result of the changes referred to above, Attachment D1 (Escalation Formula) to the Purchase Agreement are hereby deleted and replaced with new Attachment D1 to this Amendment No.19.
5. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No.19, shall remain in full force and effect without any change.
6. | COUNTERPARTS |
This Amendment No.19 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
Amendment No.19 to Purchase Agreement COM0041-08 COM0068-13 |
Page 3 of 4 |
Execution version
AMENDMENT No.19 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 19 to the Purchase Agreement to be effective as of the date first written above.
EMBRAER S.A. | Canela Investments LLC | |||||
By: | /s/ Flavio Rimoli |
By: | /s/ John Rodgerson | |||
Name: | Flavio Rimoli | Name: | John Rodgerson | |||
Title: | Executive Vice-President | Title: | Managing Director | |||
Corporate Services | ||||||
By: | /s/ Mauro Kern Junior |
|||||
Name: | Mauro Kern Junior | |||||
Title: | Executive Vice-President | |||||
Engineering & Technology | ||||||
Date: | April 9, 2013 |
Date: | April 9, 2013 | |||
Place: | São José dos Campos SP Brazil |
Place: | São José dos Campos SP Brazil |
WITNESS: |
WITNESS: | |||||||
/s/ Fabiola Neri Tocci Moreira |
/s/ Aline Munhoz Zamora | |||||||
Name: | Fabiola Neri Tocci Moreira | Name: | Aline Munhoz Zamora | |||||
ID: | ID: | |||||||
Amendment No.19 to Purchase Agreement COM0041-08 COM0068-13 |
Page 4 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO AMENDMENT 19 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT D1
ESCALATION FORMULA
[*****] |
[*****] |
[*****]
[*****] |
[*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****]
[*****] |
[*****] | [*****] |
[*****] |
[*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No.14 to the Purchase Agreement COM0041-08 | Page 1 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO AMENDMENT 19 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT D1
ESCALATION FORMULA
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] |
[*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] |
[*****] |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No.14 to the Purchase Agreement COM0041-08 | Page 2 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO AMENDMENT 19 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT D1
ESCALATION FORMULA
[*****] |
[*****] |
[*****] |
[*****] |
[*****] | |
[*****] |
[*****] [*****] | |
[*****] |
[*****] [*****] | |
[*****] |
[*****] [*****] BP |
[*****] |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No.14 to the Purchase Agreement COM0041-08 | Page 3 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO AMENDMENT 19 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT D1
ESCALATION FORMULA
[*****] |
[*****] |
[*****] |
[*****] | |
[*****] |
[*****] [*****] | |
[*****] |
[*****] [*****] | |
[*****] |
[*****] [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D1 to Amendment No.14 to the Purchase Agreement COM0041-08 | Page 4 of 4 |
AMENDMENT No.20 TO PURCHASE AGREEMENT COM0041-08
This Amendment No.20 to Purchase Agreement COM0041-08, dated as of May 29th, 2013 (Amendment No. 20) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment No. 20 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No.20 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.20 and the Purchase Agreement, this Amendment No.20 shall control.
WHEREAS, Buyer and Embraer have agreed to change the Contractual Delivery Month of certain Aircraft.
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | DELIVERY |
1.1 Article 5.1 of the Purchase Agreement is hereby modified to read as follows:
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
01 (E195) |
Nov 2008 | 33 (E195) | Dec 2011 | |||
02 (E195) |
Dec 2008 | 34 (E195) | Jan 2012 | |||
03 (E195) |
Dec 2008 | 35 (E195) | Feb 2012 | |||
04 (E195) |
Jan 2009 | 36 (E195) | Mar 2012 | |||
05 (E195) |
Aircraft Terminated | 37 (E195) | Apr 2012 | |||
06 (E190) |
Aircraft Terminated | 38 (E195) | May 2012 | |||
07 (E190) |
May 2009 | 39 (E195) | Sep 2012 | |||
08 (E190) |
Aircraft Terminated | 40 (E195) | Oct 2012 | |||
09 (E190) |
Aircraft Terminated | 41 (E195) | Nov 2012 | |||
10 (E190) |
Jan 2010 | 42 (E195) | Mar 2013 | |||
11 (E195) |
May 2010 | 43 (E195) | May 2013 | |||
12 (E195) |
Jun 2010 | 44 (E195) | Jun 2013 | |||
13 (E195) |
Aircraft Terminated | 45 (E195) | Jun 2013 | |||
14 (E195) |
Jul 2010 | 46 (E195) | Oct 2013 | |||
15 (E195) |
Aug 2010 | 47 (E195) | Nov 2013 | |||
16 (E195) |
Aug 2010 | 48 (E195) | Nov 2013 |
Amendment No.20 to Purchase Agreement COM0041-08 COM0339-13 |
Page 1 of 3 |
AMENDMENT No.20 TO PURCHASE AGREEMENT COM0041-08
17 (E195) |
Sep 2010 (*) | 49 (E195) | Dec 2013 | |||
18 (E195) |
Aircraft Terminated(*) | 50 (E195) | Dec 2013 | |||
19 (E195) |
Aircraft Terminated(*) | 51 (E195) | Mar 2014 | |||
20 (E195) |
Aircraft Terminated(*) | 52 (E195) | Apr 2014 | |||
21 (E195) |
Aircraft Terminated(*) | 53 (E195) | Jun 2014 | |||
22 (E195) |
Jan 2011 | 54 (E195) | Sep 2014 | |||
23 (E195) |
Aircraft Terminated | 55 (E195) | Oct 2014 (**) | |||
24 (E195) |
Aircraft Terminated | 56 (E195) | Jan 2015 (**) | |||
25 (E195) |
Apr 2011 | 57 (E195) | Mar 2015 (**) | |||
26 (E195) |
Aircraft Terminated | 58 (E195) | Jun 2015 (**) | |||
27 (E195) |
Aircraft Terminated | 59 (E195) | Sep 2015(**) | |||
28 (E195) |
Aircraft Terminated | 60 (E195) | Nov 2015 (**) | |||
29 (E195) |
Oct 2011 | 61 (E195) | Feb 2016 (**) | |||
30 (E195) |
Nov 2011 | 62 (E195) | Apr 2016 (**) | |||
31 (E195) |
Nov 2011 | 63 (E195) | Jun 2016 (**) | |||
32 (E195) |
Dec 2011 | 64 (E195) | Jul 2016 (**) |
(*) Five New E195
(**) Additional Firm Aircraft
2. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No.20, shall remain in full force and effect without any change.
3. | COUNTERPARTS |
This Amendment No.20 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
Amendment No.20 to Purchase Agreement COM0041-08 COM0339-13 |
Page 2 of 3 |
AMENDMENT No.20 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No.20 to the Purchase Agreement to be effective as of the date first written above.
EMBRAER S.A. | Canela Investments LLC | |||||
By: | /s/ Arthur Coutinho |
By: | /s/ John Peter Rodgerson | |||
Name: | Arthur Coutinho | Name: | John Peter Rodgerson | |||
Title: | COOChief Operating Officer | Title: | Managing Director | |||
By: | /s/ José Luis DAvilla Molina |
|||||
Name: | José Luis DAvilla Molina | |||||
Title: | Vice President, Contracts | |||||
Commercial Aviation | ||||||
Date: | June 14, 2013 |
Date: | May 29, 2013 | |||
Place: | São José dos Campos SP |
Place: | Barueri, SP, BR |
WITNESS: |
WITNESS: | |||||||
/s/ Fabiola Neri Moreira |
/s/ Flavia Ferreira da Silva | |||||||
Name: | Fabiola Neri Moreira | Name: | Flavia Ferreira da Silva | |||||
ID: | 33.734.989-7 | ID: | RG 35.356.897-1 SSP-SP | |||||
Amendment No.20 to Purchase Agreement COM0041-08 COM0339-13 |
Page 3 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 21 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 21 to Purchase Agreement COM0041-08, dated as of June 26th , 2013 (Amendment No. 21) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment No. 21 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No. 21 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No. 21 and the Purchase Agreement, this Amendment No. 21 shall control.
WHEREAS, The Parties have entered into a [*****] with respect to the Aircraft #45.
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | SUBJECT |
1.1 Article 2.1 of the Purchase Agreement is hereby modified to read as follows: 2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of [*****] E195 Aircraft and [*****] E190 Aircraft.
2. | DELIVERY |
2.1 Article 5.1 of the Purchase Agreement is hereby modified to read as follows:
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
01 (E195) |
Nov 2008 | 33 (E195) | Dec 2011 | |||
02 (E195) |
Dec 2008 | 34 (E195) | Jan 2012 | |||
03 (E195) |
Dec 2008 | 35 (E195) | Feb 2012 | |||
04 (E195) |
Jan 2009 | 36 (E195) | Mar 2012 | |||
05 (E195) |
Aircraft Terminated | 37 (E195) | Apr 2012 | |||
06 (E190) |
Aircraft Terminated | 38 (E195) | May 2012 | |||
07 (E190) |
May 2009 | 39 (E195) | Sep 2012 | |||
08 (E190) |
Aircraft Terminated | 40 (E195) | Oct 2012 | |||
09 (E190) |
Aircraft Terminated | 41 (E195) | Nov 2012 | |||
10 (E190) |
Jan 2010 | 42 (E195) | Aircraft Terminated | |||
11 (E195) |
May 2010 | 43 (E195) | May 2013 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 21 to Purchase Agreement COM0041-08 COM0353-13 |
Page 1 of 3 |
Execution version
AMENDMENT No. 21 TO PURCHASE AGREEMENT COM0041-08
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
12 (E195) |
Jun 2010 | 44 (E195) | Jun 2013 | |||
13 (E195) |
Aircraft Terminated | 45 (E195) | Aircraft Terminated | |||
14 (E195) |
Jul 2010 | 46 (E195) | Oct 2013 | |||
15 (E195) |
Aug 2010 | 47 (E195) | Nov 2013 | |||
16 (E195) |
Aug 2010 | 48 (E195) | Nov 2013 | |||
17 (E195) |
Sep 2010 (*) | 49 (E195) | Dec 2013 | |||
18 (E195) |
Aircraft Terminated(*) | 50 (E195) | Dec 2013 | |||
19 (E195) |
Aircraft Terminated(*) | 51 (E195) | Mar 2014 | |||
20 (E195) |
Aircraft Terminated(*) | 52 (E195) | Apr 2014 | |||
21 (E195) |
Aircraft Terminated(*) | 53 (E195) | Jun 2014 | |||
22 (E195) |
Jan 2011 | 54 (E195) | Sep 2014 | |||
23 (E195) |
Aircraft Terminated | 55 (E195) | Oct 2014 (**) | |||
24 (E195) |
Aircraft Terminated | 56 (E195) | Jan 2015 (**) | |||
25 (E195) |
Apr 2011 | 57 (E195) | Mar 2015 (**) | |||
26 (E195) |
Aircraft Terminated | 58 (E195) | Jun 2015 (**) | |||
27 (E195) |
Aircraft Terminated | 59 (E195) | Sep 2015(**) | |||
28 (E195) |
Aircraft Terminated | 60 (E195) | Nov 2015 (**) | |||
29 (E195) |
Oct 2011 | 61 (E195) | Feb 2016 (**) | |||
30 (E195) |
Nov 2011 | 62 (E195) | Apr 2016 (**) | |||
31 (E195) |
Nov 2011 | 63 (E195) | Jun 2016 (**) | |||
32 (E195) |
Dec 2011 | 64 (E195) | Jul 2016 (**) |
(*) Five New E195
(**) Additional Firm Aircraft
3. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No. 21, shall remain in full force and effect without any change.
4. | COUNTERPARTS |
This Amendment No. 21 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
Amendment No. 21 to Purchase Agreement COM0041-08 COM0353-13 |
Page 2 of 3 |
AMENDMENT No. 21 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 21 to the Purchase Agreement to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Artur Coutinho |
By: | /s/ John Peter Rodgerson | |||
Name: | Artur Coutinho | Name: | John Peter Rodgerson | |||
Title: | COOChief Operating Officer | Title: | Managing Director | |||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President Contracts | |||||
Commercial Aviation | ||||||
Date: | June 26, 2013 |
Date: | June 26, 2013 | |||
Place: | São José dos Campos, SP |
Place: | Barueri, SP |
WITNESS: |
WITNESS: | |||||||
/s/ Fabiola Neri Tocci Moreira |
/s/ Aline Munhoz Zamora | |||||||
Name: | Fabiola Neri Tocci Moreira | Name: | Aline Munhoz Zamora | |||||
Amendment No. 21 to Purchase Agreement COM0041-08 COM0353-13 |
Page 3 of 3 |
Execution version
AMENDMENT No. 22 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 22 to Purchase Agreement COM0041-08, dated as of March 13, 2014 (Amendment No. 22) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment No. 22 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No. 22 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No. 22 and the Purchase Agreement, this Amendment No. 22 shall control.
WHEREAS, Buyer and Embraer have agreed to accelerate the Contractual Delivery Month of certain Aircraft.
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | DELIVERY |
1.1 Article 5.1 of the Purchase Agreement is hereby modified to read as follows:
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
01 (E195) |
Nov 2008 | 33 (E195) | Dec 2011 | |||
02 (E195) |
Dec 2008 | 34 (E195) | Jan 2012 | |||
03 (E195) |
Dec 2008 | 35 (E195) | Feb 2012 | |||
04 (E195) |
Jan 2009 | 36 (E195) | Mar 2012 | |||
05 (E195) |
Aircraft Terminated | 37 (E195) | Apr 2012 | |||
06 (E190) |
Aircraft Terminated | 38 (E195) | May 2012 | |||
07 (E190) |
May 2009 | 39 (E195) | Sep 2012 | |||
08 (E190) |
Aircraft Terminated | 40 (E195) | Oct 2012 | |||
09 (E190) |
Aircraft Terminated | 41 (E195) | Nov 2012 | |||
10 (E190) |
Jan 2010 | 42 (E195) | Aircraft Terminated | |||
11 (E195) |
May 2010 | 43 (E195) | May 2013 | |||
12 (E195) |
Jun 2010 | 44 (E195) | Jun 2013 | |||
13 (E195) |
Aircraft Terminated | 45 (E195) | Aircraft Terminated | |||
14 (E195) |
Jul 2010 | 46 (E195) | Oct 2013 | |||
15 (E195) |
Aug 2010 | 47 (E195) | Nov 2013 | |||
16 (E195) |
Aug 2010 | 48 (E195) | Nov 2013 |
Amendment No. 22 to Purchase Agreement COM0041-08 COM0107-14 |
Page 1 of 3 |
Execution version
AMENDMENT No. 22 TO PURCHASE AGREEMENT COM0041-08
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
17 (E195) |
Sep 2010 (*) | 49 (E195) | Dec 2013 | |||
18 (E195) |
Aircraft Terminated(*) | 50 (E195) | Dec 2013 | |||
19 (E195) |
Aircraft Terminated(*) | 51 (E195) | Mar 2014 | |||
20 (E195) |
Aircraft Terminated(*) | 52 (E195) | Apr 2014 | |||
21 (E195) |
Aircraft Terminated(*) | 53 (E195) | Jun 2014 | |||
22 (E195) |
Jan 2011 | 54 (E195) | Sep 2014 | |||
23 (E195) |
Aircraft Terminated | 55 (E195) | Oct 2014 (**) | |||
24 (E195) |
Aircraft Terminated | 56 (E195) | Dec 2014 (**) | |||
25 (E195) |
Apr 2011 | 57 (E195) | Mar 2015 (**) | |||
26 (E195) |
Aircraft Terminated | 58 (E195) | Jun 2015 (**) | |||
27 (E195) |
Aircraft Terminated | 59 (E195) | Sep 2015(**) | |||
28 (E195) |
Aircraft Terminated | 60 (E195) | Nov 2015 (**) | |||
29 (E195) |
Oct 2011 | 61 (E195) | Feb 2016 (**) | |||
30 (E195) |
Nov 2011 | 62 (E195) | Apr 2016 (**) | |||
31 (E195) |
Nov 2011 | 63 (E195) | Jun 2016 (**) | |||
32 (E195) |
Dec 2011 | 64 (E195) | Jul 2016 (**) |
(*) Five New E195
(**) Additional Firm Aircraft
2. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No. 22, shall remain in full force and effect without any change.
3. | COUNTERPARTS |
This Amendment No. 22 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
Amendment No. 22 to Purchase Agreement COM0041-08 COM0107-14 |
Page 2 of 3 |
Execution version
AMENDMENT No. 22 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 22 to the Purchase Agreement to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Arthur Coutinho |
By: | /s/ Alexandre Wagner Malfitani | |||
Name: | Arthur Coutinho | Name: | Alexandre Wagner Malfitani | |||
Title: | COOChief Operating Officer | Title: | Attorney In Fact | |||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President Contracts | |||||
Commercial Aviation | ||||||
Date: | March 14, 2014 |
Date: | March 13, 2014 | |||
Place: | São José dos Campos, SP, BR |
Place: | Barueri, SP |
WITNESS: |
WITNESS: | |||||||
/s/ Isabella Brasil Strottmann |
/s/ Aline Munhoz Zamora | |||||||
Name: | Isabella Brasil Strottmann | Name: | Aline Munhoz Zamora | |||||
Amendment No. 22 to Purchase Agreement COM0041-08 COM0107-14 |
Page 3 of 3 |
Execution version
AMENDMENT No. 23 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 23 to Purchase Agreement COM0041-08, dated as of April 1, 2014 (Amendment No. 23) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment No. 23 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No. 23 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No. 23 and the Purchase Agreement, this Amendment No. 23 shall control.
WHEREAS, Buyer and Embraer have agreed to accelerate the Contractual Delivery Month of certain Aircraft.
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | DELIVERY |
1.1 | Article 5.1 of the Purchase Agreement is hereby modified to read as follows: |
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
01 (E195) |
Nov 2008 | 33 (E195) | Dec 2011 | |||
02 (E195) |
Dec 2008 | 34 (E195) | Jan 2012 | |||
03 (E195) |
Dec 2008 | 35 (E195) | Feb 2012 | |||
04 (E195) |
Jan 2009 | 36 (E195) | Mar 2012 | |||
05 (E195) |
Aircraft Terminated | 37 (E195) | Apr 2012 | |||
06 (E190) |
Aircraft Terminated | 38 (E195) | May 2012 | |||
07 (E190) |
May 2009 | 39 (E195) | Sep 2012 | |||
08 (E190) |
Aircraft Terminated | 40 (E195) | Oct 2012 | |||
09 (E190) |
Aircraft Terminated | 41 (E195) | Nov 2012 | |||
10 (E190) |
Jan 2010 | 42 (E195) | Aircraft Terminated | |||
11 (E195) |
May 2010 | 43 (E195) | May 2013 | |||
12 (E195) |
Jun 2010 | 44 (E195) | Jun 2013 | |||
13 (E195) |
Aircraft Terminated | 45 (E195) | Aircraft Terminated | |||
14 (E195) |
Jul 2010 | 46 (E195) | Oct 2013 | |||
15 (E195) |
Aug 2010 | 47 (E195) | Nov 2013 | |||
16 (E195) |
Aug 2010 | 48 (E195) | Nov 2013 |
Amendment No. 23 to Purchase Agreement COM0041-08 COM0150-14 |
Page 1 of 3 |
Execution version
AMENDMENT No. 23 TO PURCHASE AGREEMENT COM0041-08
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
17 (E195) |
Sep 2010 (*) | 49 (E195) | Dec 2013 | |||
18 (E195) |
Aircraft Terminated(*) | 50 (E195) | Dec 2013 | |||
19 (E195) |
Aircraft Terminated(*) | 51 (E195) | Mar 2014 | |||
20 (E195) |
Aircraft Terminated(*) | 52 (E195) | Apr 2014 | |||
21 (E195) |
Aircraft Terminated(*) | 53 (E195) | Jun 2014 | |||
22 (E195) |
Jan 2011 | 54 (E195) | Sep 2014 | |||
23 (E195) |
Aircraft Terminated | 55 (E195) | Oct 2014 (**) | |||
24 (E195) |
Aircraft Terminated | 56 (E195) | Dec 2014 (**) | |||
25 (E195) |
Apr 2011 | 57 (E195) | Dec 2014 (**) | |||
26 (E195) |
Aircraft Terminated | 58 (E195) | Jun 2015 (**) | |||
27 (E195) |
Aircraft Terminated | 59 (E195) | Sep 2015(**) | |||
28 (E195) |
Aircraft Terminated | 60 (E195) | Nov 2015 (**) | |||
29 (E195) |
Oct 2011 | 61 (E195) | Feb 2016 (**) | |||
30 (E195) |
Nov 2011 | 62 (E195) | Apr 2016 (**) | |||
31 (E195) |
Nov 2011 | 63 (E195) | Jun 2016 (**) | |||
32 (E195) |
Dec 2011 | 64 (E195) | Jul 2016 (**) |
(*) | Five New E195 |
(**) | Additional Firm Aircraft |
2. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No. 23, shall remain in full force and effect without any change.
3. | COUNTERPARTS |
This Amendment No. 23 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
Amendment No. 23 to Purchase Agreement COM0041-08 COM0150-14 |
Page 2 of 3 |
Execution version
AMENDMENT No. 23 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 23 to the Purchase Agreement to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Mauro Kern Junior |
By: | /s/ Alexandre Wagner Malfitani | |||
Name: | Mauro Kern Junior | Name: | Alexandre Wagner Malfitani | |||
Title: | Executive Vice-President, Engineering and Technology |
Title: | Attorney In Fact | |||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President Contracts | |||||
Commercial Aviation | ||||||
Date: | April 2, 2014 |
Date: | April 1, 2014 | |||
Place: | São José dos Campos, SP, BR |
Place: | Barueri, SP |
WITNESS: |
WITNESS: | |||||||
/s/ Isabella Brasil Strottmann |
/s/ Aline Munhoz Zamora | |||||||
Name: | Isabella Brasil Strottmann | Name: | Aline Munhoz Zamora | |||||
Amendment No. 23 to Purchase Agreement COM0041-08 COM0150-14 |
Page 3 of 3 |
Execution version
AMENDMENT No. 24 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 24 to Purchase Agreement COM0041-08, dated as of April 29, 2014 (Amendment No. 24) relates to the Purchase Agreement COM0041-08 between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer) dated March 11, 2008 as amended from time to time (the Purchase Agreement). This Amendment No. 24 is executed between Embraer and Buyer, collectively referred to herein as the Parties.
This Amendment No. 24 constitutes an amendment and modification to the Purchase Agreement. All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No. 24 and the Purchase Agreement, this Amendment No. 24 shall control.
WHEREAS, Buyer and Embraer have agreed to accelerate the Contractual Delivery Month of certain Aircraft.
Now, therefore, for good and valuable consideration, which is hereby acknowledged, Embraer and Buyer hereby agree as follows:
1. | DELIVERY |
1.1 Article 5.1 of the Purchase Agreement is hereby modified to read as follows:
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
01 (E195) |
Nov 2008 | 33 (E195) | Dec 2011 | |||
02 (E195) |
Dec 2008 | 34 (E195) | Jan 2012 | |||
03 (E195) |
Dec 2008 | 35 (E195) | Feb 2012 | |||
04 (E195) |
Jan 2009 | 36 (E195) | Mar 2012 | |||
05 (E195) |
Aircraft Terminated | 37 (E195) | Apr 2012 | |||
06 (E190) |
Aircraft Terminated | 38 (E195) | May 2012 | |||
07 (E190) |
May 2009 | 39 (E195) | Sep 2012 | |||
08 (E190) |
Aircraft Terminated | 40 (E195) | Oct 2012 | |||
09 (E190) |
Aircraft Terminated | 41 (E195) | Nov 2012 | |||
10 (E190) |
Jan 2010 | 42 (E195) | Aircraft Terminated | |||
11 (E195) |
May 2010 | 43 (E195) | May 2013 | |||
12 (E195) |
Jun 2010 | 44 (E195) | Jun 2013 | |||
13 (E195) |
Aircraft Terminated | 45 (E195) | Aircraft Terminated | |||
14 (E195) |
Jul 2010 | 46 (E195) | Oct 2013 | |||
15 (E195) |
Aug 2010 | 47 (E195) | Nov 2013 | |||
16 (E195) |
Aug 2010 | 48 (E195) | Nov 2013 |
Amendment No.24 to Purchase Agreement COM0041-08 COM0189-14 |
Page 1 of 3 |
Execution version
AMENDMENT No. 24 TO PURCHASE AGREEMENT COM0041-08
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
17 (E195) |
Sep 2010 (*) | 49 (E195) | Dec 2013 | |||
18 (E195) |
Aircraft Terminated(*) | 50 (E195) | Dec 2013 | |||
19 (E195) |
Aircraft Terminated(*) | 51 (E195) | Mar 2014 | |||
20 (E195) |
Aircraft Terminated(*) | 52 (E195) | Apr 2014 | |||
21 (E195) |
Aircraft Terminated(*) | 53 (E195) | Jun 2014 | |||
22 (E195) |
Jan 2011 | 54 (E195) | Sep 2014 | |||
23 (E195) |
Aircraft Terminated | 55 (E195) | Oct 2014 (**) | |||
24 (E195) |
Aircraft Terminated | 56 (E195) | Dec 2014 (**) | |||
25 (E195) |
Apr 2011 | 57 (E195) | Dec 2014 (**) | |||
26 (E195) |
Aircraft Terminated | 58 (E195) | Apr 2015 (**) | |||
27 (E195) |
Aircraft Terminated | 59 (E195) | Jun 2015(**) | |||
28 (E195) |
Aircraft Terminated | 60 (E195) | Jul 2015 (**) | |||
29 (E195) |
Oct 2011 | 61 (E195) | Oct 2015 (**) | |||
30 (E195) |
Nov 2011 | 62 (E195) | Nov 2015 (**) | |||
31 (E195) |
Nov 2011 | 63 (E195) | Nov 2015 (**) | |||
32 (E195) |
Dec 2011 | 64 (E195) | Dec 2015 (**) |
(*) | Five New E195 |
(**) | Additional Firm Aircraft |
2. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referred Purchase Agreement, as well as its related Attachments, which are not specifically amended by this Amendment No. 24, shall remain in full force and effect without any change.
3. | COUNTERPARTS |
This Amendment No. 24 may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
Amendment No.24 to Purchase Agreement COM0041-08 COM0189-14 |
Page 2 of 3 |
Execution version
AMENDMENT No. 24 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 24 to the Purchase Agreement to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Mauro Kern Junior |
By: | /s/ John Peter Rodgerson | |||
Name: | Mauro Kern Junior | Name: | John Peter Rodgerson | |||
Title: | Executive Vice-President, Engineering and Technology |
Title: | Attorney In Fact | |||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President Contracts | |||||
Commercial Aviation | ||||||
WITNESS: |
WITNESS: | |||||||
/s/ Isabella Brasil Strottmann |
/s/ Aline Munhoz Zamora | |||||||
Name: | Isabella Brasil Strottmann | Name: | Aline Munhoz Zamora | |||||
Amendment No.24 to Purchase Agreement COM0041-08 COM0189-14 |
Page 3 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 25 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 25 (the Amendment No.25) dated as of May 23, 2014 is between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer), collectively referred to herein as the Parties, and constitutes an amendment and modification to Purchase Agreement COM0041-08 dated March 11, 2008 as amended from time to time (the Purchase Agreement).
All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No. 25 and the Purchase Agreement, this Amendment No. 25 shall control.
WHEREAS, the Parties have agreed to modify certain items of the Aircraft specific configuration;
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | CONFIGURATION CHANGES TO THE AIRCRAFT |
[*****]
Azul has requested Embraer to install from factory the option equipment [*****] in the [*****]. In addition, the current [*****] will be removed from the configuration since its functionalities is already included on the [*****].
As a consequence of the changes described above, the weight of the [*****] will be increased by [*****].
As a result of the changes described in this Article 1, the Aircraft Basic Price of the [*****] shall be [*****].
2. | PRICE |
As a result of the changes referred to in Article 1 above, Article 3.1 of the Purchase Agreement is hereby deleted and replaced as follows:
3.1 Buyer agrees to pay Embraer in United States dollars, per unit, the Aircraft Basic Price as indicated in the table below:
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No.25 to PA COM0041-08 COM0246-14 |
Page 1 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 25 TO PURCHASE AGREEMENT COM0041-08
[*****] |
3. | ATTACHMENT CHANGE |
As a result of the changes referred to in Article 1 above, the Attachment A1 to the Purchase Agreement is hereby deleted and replaced in its entirety by the Attachment A1 to this Amendment No. 25, which shall be deemed to be Attachment A1 for all purposes under the Purchase Agreement.
4. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referenced Purchase Agreement, as well as its related Attachments, which are not specifically modified by this Amendment No. 25 shall remain in full force and effect without any change.
5. | COUNTERPARTS |
This Amendment No. 25 may be signed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
This Amendment No. 25 may be signed by facsimile with originals duly signed to follow by an internationally recognized courier.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No.25 to PA COM0041-08 COM0246-14 |
Page 2 of 3 |
Execution version
AMENDMENT No. 25 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 25 to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Mauro Kern Junior |
By: | /s/ John Peter Rodgerson | |||
Name: | Mauro Kern Junior | Name: | John Peter Rodgerson | |||
Title: | Executive Vice-President, Engineering and Technology |
Title: | Attorney in Fact | |||
By: | /s/ Jose Luis DAvila Molina |
|||||
Name: | Jose Luis DAvila Molina | |||||
Title: | Vice President Contracts | |||||
Commercial Aviation | ||||||
Place: | São José dos Campos, SP, Brasil | Place: | Barueri, SP |
Amendment No.25 to PA COM0041-08 COM0246-14 |
Page 3 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 26 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 26 (the Amendment No.26) dated as of July 30, 2014 is between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer), collectively referred to herein as the Parties, and constitutes an amendment and modification to Purchase Agreement COM0041-08 dated March 11, 2008 as amended from time to time (the Purchase Agreement).
All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No. 26 and the Purchase Agreement, this Amendment No. 26 shall control.
WHEREAS, the Parties have agreed to modify certain items of the Aircraft specific configuration;
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | CONFIGURATION CHANGES TO THE AIRCRAFT |
[*****]
Azul has requested Embraer to install from factory a modified [*****], replacing the [*****] by a [*****] with effectivity as of the [*****].
As a consequence of the changes described above, the weight of the [*****] will be increased by [*****].
As a result of the changes described in this Article 1, the Aircraft Basic Price of the [*****] shall be [*****].
2. | PRICE |
As a result of the changes referred to in Article 1 above, Article 3.1 of the Purchase Agreement is hereby deleted and replaced as follows:
3.1 Buyer agrees to pay Embraer in United States dollars, per unit, the Aircraft Basic Price as indicated in the table below:
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No.26 to PA COM0041-08 COM0348-14 |
Page 1 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 26 TO PURCHASE AGREEMENT COM0041-08
[*****]
3. | ATTACHMENT CHANGE |
As a result of the changes referred to in Article 1 above, the Attachment A1 to the Purchase Agreement is hereby deleted and replaced in its entirety by the Attachment A1 to this Amendment No. 26, which shall be deemed to be Attachment A1 for all purposes under the Purchase Agreement.
4. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referenced Purchase Agreement, as well as its related Attachments, which are not specifically modified by this Amendment No.
26 shall remain in full force and effect without any change.
5. | COUNTERPARTS |
This Amendment No. 26 may be signed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
This Amendment No. 26 may be signed by facsimile with originals duly signed to follow by an internationally recognized courier.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No.26 to PA COM0041-08 COM0348-14 |
Page 2 of 3 |
Execution version
AMENDMENT No. 26 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 26 to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Artur Coutinho |
By: | /s/ John Peter Rodgerson | |||
Name: | Artur Coutinho | Name: | John Peter Rodgerson | |||
Title: | COO-Chief Operating Officer | Title: | Managing Director | |||
By: | /s/ Adriana Sarlo |
|||||
Name: | Adriana Sarlo | |||||
Title: | Vice President, Contracts, | |||||
Commercial Aviation | ||||||
Place: | São José dos Campos, SP |
Place: | Barueri, SP |
Amendment No.26 to PA COM0041-08 COM0348-14 |
Page 3 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO AMENDMENT No.26 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT A1
AIRCRAFT CONFIGURATION
1. | STANDARD AIRCRAFT: |
The Aircraft EMBRAER 195 shall be manufactured according to (i) the Technical Description [*****] dated as of November 2007 which although not attached hereto, are incorporated herein by reference, and (ii) the characteristics described in the items below.
2. | OPTIONAL EQUIPMENT: |
The Aircraft will also be fitted with the following options selected by Buyer:
ITEM |
EQUIPMENT | |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 | Page 1 of 5 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO AMENDMENT No.26 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT A1
AIRCRAFT CONFIGURATION
ITEM |
EQUIPMENT | |
[*****] |
[*****] |
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 | Page 2 of 5 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO AMENDMENT No.26 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT A1
AIRCRAFT CONFIGURATION
[*****]
3. | FINISHING: |
The Aircraft will be delivered to Buyer as follows:
3.1 | EXTERIOR FINISHING: |
The fuselage of the Aircraft shall be painted according to Buyers color and paint scheme, which shall be supplied to Embraer by Buyer on or before [*****] prior to the first Aircraft contractual delivery date. The wings and the horizontal stabilizer shall be supplied in the standard colors, i.e., grey BAC707.
Once defined, the choices of color and paint scheme made by Buyer shall apply to all Aircraft. If Buyer requires a color and paint scheme for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 | Page 3 of 5 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO AMENDMENT No.26 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT A1
AIRCRAFT CONFIGURATION
received by Embraer. Should Buyer not approve the quotation, the relevant Aircraft shall be painted in according to the original paint and color scheme.
3.2 | INTERIOR FINISHING: |
The materials and colours of all and any items of interior finishing such as seat covers, carpet, floor lining on galley areas, side walls and overhead lining, galley lining and curtain for the Aircraft will be in accordance with Buyers choices indicated in the Customer Check List Revision N/C executed by and among Buyer, Embraer and C&D Zodiac on February 15, 2008. In case of conflict between the CCL and this Attachment A the latter shall control.
The choices of interior finishing made by Buyer shall apply to all Aircraft. If Buyer requires an interior finishing for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft contractual delivery date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the interior of relevant Aircraft shall be built according to the original choice of Buyer.
3.3 | BUYER FURNISHED EQUIPMENT (BFE) AND BUYER INSTALLED EQUIPMENT (BIE): |
Any BFE materials shall conform to the required standards and comply with all applicable regulations and airworthiness requirements. Delays in the delivery of BFE materials or quality restrictions that prevent the installation thereof in the time frame required by the Aircraft manufacturing process shall entitle Embraer to either delay the delivery of the Aircraft or present the Aircraft to Buyer without such BFE, in which case Buyer shall not be entitled to refuse acceptance of the Aircraft. All BFE equipment shall be delivered in DDP conditions (Incoterms 2000) to C&D Zodiac 14 Centerpointe Drive, La Palma, CA 90623, USA, or to another place to be timely informed by Embraer.
The Aircraft galleys have space provisions for the following BIE items that, unless timely agreed by the Parties, are not supplied or installed by Embraer: Trolleys, ovens, coffee makers, hot jugs and standard units.
Medical kits, defibrillators and wheelchairs, as well as any other equipment classified as medical or pharmaceutical products, shall be BIE items.
3.4 | EMBRAER RIGHT TO PERFORM FOR BUYER: |
If Buyer fails to make any choice or definition which Buyer is required to make regarding the exterior and interior finishing of any Aircraft or to inform Embraer thereof, Embraer shall have the right, but not the obligation, to tender the Aircraft for delivery (a) painted white and (b) fitted with an interior finishing selected by Embraer at its reasonable discretion.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 | Page 4 of 5 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO AMENDMENT No.26 TO PURCHASE AGREEMENT COM0041-08
ATTACHMENT A1
AIRCRAFT CONFIGURATION
The taking of any such action by Embraer pursuant to this Article shall not constitute a waiver or release of any obligation of Buyer under the Purchase Agreement, nor a waiver of any event of default which may arise out of Buyers nonperformance of such obligation, nor an election or waiver by Embraer of any remedy or right available to Embraer under the Purchase Agreement.
No compensation to Buyer or reduction of the Aircraft Offer Price shall be due by virtue of the taking of any such actions by Embraer and Embraer shall be entitled to charge Buyer for the amount of the reasonable expenses of Embraer incurred in connection with the performance of or compliance with such agreement, as the case may be, payable by Buyer upon demand.
4. | REGISTRATION MARKS, TRANSPONDER AND ELT CODES: |
The Aircraft shall be delivered to Buyer with the registration marks painted on them. The registration marks, the transponder code and ELT protocol coding shall be supplied to Embraer by Buyer no later than [*****] before each relevant Aircraft contractual delivery date. Embraer shall be entitled to tender the Aircraft for delivery to Buyer without registration marks, with an inoperative transponder and without setting the ELT protocol coding in case Buyer fails to supply such information to Embraer in due time.
5. | EXPORT CONTROL ITEMS: |
The Aircraft contains (i) an [*****] manufactured by [*****] with an embedded [*****] used for emergency backup and flight safety information, [*****] and (ii) [*****] manufactured by [*****]. The [*****] and the [*****] that are incorporated into this Aircraft are subject to export control under United States of America law. Transfer or re-export of such items (whether or not incorporated into the Aircraft), as well as their related technology and software may require prior authorization from the US Government.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT A1 AND THE TERMS OF THE TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT A1 SHALL PREVAIL.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to Purchase Agreement COM0041-08 | Page 5 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 27 TO PURCHASE AGREEMENT COM0041-08
This Amendment No. 27 (the Amendment No. 27) dated as of September 26, 2015 is between Embraer S.A. (Embraer) and Canela Investments LLC (Buyer), collectively referred to herein as the Parties, and constitutes an amendment and modification to Purchase Agreement, COM0041-08 dated March 11, 2008 as amended from time to time (the Purchase Agreement).
All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No. 27 and the Purchase Agreement, this Amendment No.
27 shall control.
WHEREAS, the Parties have agreed to modify certain items of the Aircraft specific configuration;
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | CONFIGURATION CHANGES TO THE AIRCRAFT |
1.1 | [*****] |
[*****] |
2. | PRICE |
As a result of the changes referred to in Article 1 above, Article 3.1 of the Purchase Agreement is hereby deleted and replaced as follows:
3.1 Buyer agrees to pay Embraer in United States dollars, per unit, the Aircraft Basic Price as indicated in the table below:
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 27 to PA COM0041-08 COM0564-15 |
Page 1 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 27 TO PURCHASE AGREEMENT COM0041-08
[*****]
3. | DELIVERY |
Article 5.1 of the Purchase Agreement is hereby modified to read as follows:
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at Embraer premises in São José dos Campos, State of São Paulo, Brazil, according to the following schedule:
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
01 (E195) |
Nov 2008 | 33 (E195) | Dec 2011 | |||
02 (E195) |
Dec 2008 | 34 (E195) | Jan 2012 | |||
03 (E195) |
Dec 2008 | 35 (E195) | Feb 2012 | |||
04 (E195) |
Jan 2009 | 36 (E195) | Mar 2012 | |||
05 (E195) |
Aircraft Terminated | 37 (E195) | Apr 2012 | |||
06 (E190) |
Aircraft Terminated | 38 (E195) | May 2012 | |||
07 (E190) |
May 2009 | 39 (E195) | Sep 2012 | |||
08 (E190) |
Aircraft Terminated | 40 (E195) | Oct 2012 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Amendment No. 27 to PA COM0041-08 COM0564-15 |
Page 2 of 4 |
AMENDMENT No. 27 TO PURCHASE AGREEMENT COM0041-08
Aircraft # |
Contractual Delivery Date |
Aircraft # |
Contractual Delivery Date | |||
09 (E190) |
Aircraft Terminated | 41 (E195) | Nov 2012 | |||
10 (E190) |
Jan 2010 | 42 (E195) | Aircraft Terminated | |||
11 (E195) |
May 2010 | 43 (E195) | May 2013 | |||
12 (E195) |
Jun 2010 | 44 (E195) | Jun 2013 | |||
13 (E195) |
Aircraft Terminated | 45 (E195) | Aircraft Terminated | |||
14 (E195) |
Jul 2010 | 46 (E195) | Oct 2013 | |||
15 (E195) |
Aug 2010 | 47 (E195) | Nov 2013 | |||
16 (E195) |
Aug 2010 | 48 (E195) | Nov 2013 | |||
17 (E195) |
Sep 2010 (*) | 49 (E195) | Dec 2013 | |||
18 (E195) |
Aircraft Terminated (*) | 50 (E195) | Dec 2013 | |||
19 (E195) |
Aircraft Terminated (*) | 51 (E195) | Mar 2014 | |||
20 (E195) |
Aircraft Terminated (*) | 52 (E195) | Apr 2014 | |||
21 (E195) |
Aircraft Terminated (*) | 53 (E195) | Aircraft Terminated | |||
22 (E195) |
Jan 2011 | 54 (E195) | Sep 2014 | |||
23 (E195) |
Aircraft Terminated | 55 (E195) | Oct 2014 (**) | |||
24 (E195) |
Aircraft Terminated | 56 (E195) | Dec 2014 (**) | |||
25 (E195) |
Apr 2011 | 57 (E195) | Dec 2014 (**) | |||
26 (E195) |
Aircraft Terminated | 58 (E195) | Aircraft Terminated | |||
27 (E195) |
Aircraft Terminated | 59 (E195) | Aircraft Terminated | |||
28 (E195) |
Aircraft Terminated | 60 (E195) | Jul 2015 (**) | |||
29 (E195) |
Oct 2011 | 61 (E195) | Oct 2015 (**) | |||
30 (E195) |
Nov 2011 | 62 (E195) | Nov 2015 (**) | |||
31 (E195) |
Nov 2011 | 63 (E195) | Nov 2015 (**) | |||
32 (E195) |
Dec 2011 | 64 (E195) | Dec 2015 (**) |
(*) | Five New E195 |
(**) | Additional Firm Aircraft |
4. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referenced Purchase Agreement, as well as its related Attachments, which are not specifically modified by this Amendment No. 27 shall remain in full force and effect without any change.
5. | COUNTERPARTS |
This Amendment No. 27 may be signed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
This Amendment No. 27 may be signed by facsimile with originals duly signed to follow by an internationally recognized courier.
Amendment No. 27 to PA COM0041-08 COM0564-15 |
Page 3 of 4 |
AMENDMENT No. 27 TO PURCHASE AGREEMENT COM0041-08
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 27 to be effective as of the date first written above.
Embraer S.A. | Canela Investments LLC | |||||
By: | /s/ Mauro Kern |
By: | /s/ John Peter Rodgerson | |||
Name: | Mauro Kern | Name: | John Peter Rodgerson | |||
Title: | COO-Chief Operating Officer | Title: | Managing Director | |||
By: | /s/ Adriana Sarlo |
|||||
Name: | Adriana Sarlo | |||||
Title: | Vice President, Contracts, | |||||
Commercial Aviation | ||||||
Place: | S. J. Campos-SP-Brazil |
Place: | Barueri, SP-Brazil |
Amendment No. 27 to PA COM0041-08 COM0564-15 |
Page 4 of 4 |
Execution version
Exhibit 10.2
CONFIDENTIAL TREATMENT REQUESTED REDACTED COPY
Confidential Treatment has been requested for portions of this Exhibit. Confidential
portions of this Exhibit are designated by [*****]. A complete version of this Exhibit has
been filed separately with the Securities and Exchange Commission.
SALE AND PURCHASE CONTRACT DATED 14TH DECEMBER 2010
BETWEEN
AVIONS DE TRANSPORT REGIONAL
as Seller
AND
CANELA INVESTMENTS LLC
as Buyer
IN RESPECT OF
TWENTY (20) FIRM ATR 72-600 AIRCRAFT
PLUS
TWENTY (20) OPTION ATR 72-600 AIRCRAFT
CONFIDENTIAL TREATMENT REQUESTED
Execution version
ATR 72-600 SALE AND PURCHASE CONTRACT
CONTENTS
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
ATR / Canela Sale & Purchase Contract 20 Firm + 20 Option ATR 72-600
2 |
CONFIDENTIAL TREATMENT REQUESTED
Execution version
66 | ||||
69 | ||||
APPENDIX C LIST OF DOCUMENTS EXCHANGED AT AIRCRAFT ACCEPTANCE |
71 | |||
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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THIS SALE AND PURCHASE CONTRACT is made this 14th day of December 2010 (the Contract)
BETWEEN:
(1) | AVIONS DE TRANSPORT REGIONAL, a Groupement dInterêt Economique governed by the laws of France, identified under number 323 932 236 RCS Toulouse, the head office of which is located at 1, Allée Pierre Nadot, 31712 BLAGNAC CEDEX, FRANCE (hereinafter referred to as Seller, which expression shall include its successors or permitted assignees unless the context otherwise requires) on the one part; |
AND
(2) | CANELA INVESTMENTS LLC, a limited liability company organized and existing under the laws of Delaware, with its main address at Corporation Trust Center, 1209 Orange Center, Wilmington, U.S.A (hereinafter referred to as the Buyer). |
(hereinafter referred to as individually the Party and collectively the Parties)
WHEREAS:
(A) | Seller is a Groupement dIntérêt Economique governed by articles 251-1 and following of the French commercial code; |
(B) | The members of Seller are: |
(1) | EADS ATR, SA identified under number 393 146 550 RCS Toulouse, the principal office of which is at 1, avenue Didier Daurat, 31703 Blagnac, France; and |
(2) | ALENIA AERONAUTICA the principal office of which is at Via dellAeronautica snc, Pomigliano dArco (NA), Italy. |
(C) | Seller wishes to sell and Buyer wishes to purchase on a firm basis twenty (20) ATR 72-600 aircraft and on an optional basis up to twenty (20) ATR 72-600 aircraft. |
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
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1 - | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
In this Contract the following words and phrases have the meanings indicated:
Aircraft |
means one or more, as the context so requires, of the Firm Aircraft and/or Option Aircraft exercised by Buyer and/or Additional Aircraft exercised by Buyer. |
Acceptance Flight Tests |
has the meaning assigned to it in Clause 10.3. |
Additional Aircraft |
means one or more, as the context so requires of the ten (10) ATR 72-600 aircraft that Buyer has the right to acquire in accordance with the terms of Appendix O (Additional Aircraft) and as more particularly described in Appendix A (Specification). |
Additional Aircraft Scheduled Delivery Date |
means, in respect of each Additional Aircraft, the scheduled delivery date of that Additional Aircraft provided in a notice from Seller to Buyer in accordance with Clause 4 of Appendix O (Additional Aircraft), as it may be modified pursuant to the terms herein. |
ANAC |
means the Agencia Nacional de Aviação Civil (ANAC) of Brazil. |
ATC |
means ATR Training Center located at Sellers headquarters in France. |
ATR 72-200 Specific Spare Parts |
has the meaning assigned to it in Clause 18.5.1. |
ATR 72-200 Trade-In Spares |
has the meaning assigned to it in Clause 18.5.3. |
ATR 72-212A Type Certificate |
means a certificate issued by the DGAC as primary certification authority under N° TC 176 and transferred to EASA under number A.084, that certifies that the ATR72-212A aircraft type complies with the applicable type certification basis and environmental protection requirements when operated within the conditions and limitations specified on the associated type certificate data sheet (TCDS) N°A.084. |
Authorisation |
means an authorization, consent, approval, resolution, licence, exemption, filing, notarization or registration. |
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Authorised Representative |
means an individual having full power and authority to sign on behalf of Buyer, as demonstrated by its by-laws, power of attorney, or being named as so authorized on a secretarys or assistant secretarys certificate list provided by Buyer, or, an individual having full power and authority to sign on behalf of Seller, as demonstrated by evidence of such authority if requested. |
Balance Payment |
has, in respect of each Aircraft, the meaning assigned to it in Clause 6.2.8. |
Base Purchase Price |
has, in respect of each Aircraft, the meaning assigned to it in Clause 5.1. |
Bill of Sale |
means, in respect of each Aircraft, a document in respect of the Aircraft issued at the time of transfer of title to the Aircraft from Seller to Buyer in accordance with Clause 11 (Transfer of Title, Collection and Ferry) in, or substantially in, the form set out in Appendix S (Form of Aircraft Bill of Sale). |
Business Days |
means days on which banks in New York City, Paris and Sao Paulo are open for transactions of a commercial banking business. |
Buyer Affiliate |
means, with respect to Buyer, any affiliate, subsidiary and/or parent company in Brazil or in the United States of America, including but not limited to the Operator. |
Buyer Default |
has the meaning assigned to it in Clause 22.2. |
Buyer Installed Equipment or BIE |
means any equipment, parts, components purchased by Buyer and installed on the aircraft by Buyer on or after Delivery. |
The following parts are considered BIE: First aid kit, medical kit, bio-hazard kit, jungle kit, wheelchair, emergency instruction cards, Braille emergency instruction cards, passenger fife vests and any other similar equipment that Buyer must install on the Aircraft to satisfy operational requirements necessary to obtain a certificate of airworthiness issued by ANAC. |
Buyer Furnished Equipment or BFE |
means the equipment (if any) listed as Buyer Furnished Equipment in Appendix A (Specification). |
Certificate of Acceptance |
means, in respect of each Aircraft, a certificate issued at the time of acceptance at Sellers works in accordance with Clause 10 (Aircraft Acceptance Procedure) in, or substantially in, the form set out in Appendix R (Form of Aircraft Certificate of Acceptance). |
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Change |
means a change to the Specification or Aircraft required by Buyers regulatory authorities, as more fully described in Clause 4.4. |
Commitment Letter |
has the meaning assigned to it in Clause 10.8. |
Country of Registration |
means, in respect of each Aircraft, the country of registration of such Aircraft. |
Delivery Date |
means, in respect of each Aircraft, the actual date on which that Aircraft is delivered to and accepted by Buyer. |
Development Change |
means a change to the Specification or Aircraft implemented by Seller, as more fully described in Clause 3.2. |
Dollars, US$ or the sign $ |
means the lawful currency for the time being of the United States of America. |
DGAC |
means the Direction Générale de lAviation Civile of the Transport Ministry of France. |
EASA |
means the European Aviation Safety Agency of the European Community. |
Euros, or the sign |
means the lawful currency for the time being of France. |
Excusable Delay |
has the meaning assigned to it in Clause 12.1. |
Export Certificate of Airworthiness |
means, in respect of each Aircraft, a certificate of airworthiness for export valid for the transport category (passenger) as issued by the DGAC by delegation and in compliance with EASA regulations. |
Fifth Pre-Delivery Payment |
means, in respect of each Aircraft, the payment to be made by Buyer to Seller in accordance with Clause 6.2.5 for an amount equal to [*****] of the Base Purchase Price of that Aircraft. |
Firm Aircraft |
means one or more, as the context so requires, of the twenty (20) ATR 72-600 aircraft to be firmly acquired hereunder and as more particularly described in the Specification in Appendix A (Specification). |
Firm Aircraft L/C |
has the meaning assigned to it in Clause 6.2.1.2 |
First Pre-Delivery Payment |
means, in respect of each Aircraft, the payment to be made by Buyer to Seller in accordance with Clause 6.2.1 for an amount equal to [*****] of the Base Purchase Price of that Aircraft. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Firm Aircraft Scheduled Delivery Date |
means, in respect of each Firm Aircraft, the scheduled delivery date of that Firm Aircraft as specified in Clause 9.1 and as it may be modified pursuant to the terms herein. |
Fourth Pre-Delivery Payment |
means, in respect of each Aircraft, the payment to be made by Buyer to Seller in accordance with Clause 6.2.4 for an amount equal to [*****] of the Base Purchase Price of that Aircraft. |
Inexcusable Delay |
has the meaning assigned to it in Clause 13.1. |
Inspection and Acceptance Manual |
has the meaning assigned to it in Clause 10.1. |
Interface Problem |
has the meaning given to it in Clause 3.1 of Appendix E (Warranties). |
IP Conference |
has the meaning given to it in Clause 2.3 of Appendix D (Spare Parts Procurement). |
IP Data |
has the meaning given to it in Clause 2.2 of Appendix D (Spare Parts Procurement). |
IP Purchase Orders |
has the meaning given to it in Clause 2.1 of Appendix D (Spare Parts Procurement). |
IP Spares |
has the meaning given to it in Clause 2.1 of Appendix D (Spare Parts Procurement). |
Manuals |
has the meaning assigned to it in Clause 16.2. |
Manufacturer |
means Avions de Transport Regional (or ATR). |
Members |
means the members of ATR, currently EADS ATR and ALENIA AERONAUTICA. |
Option Aircraft |
means one or more, as the context so requires of the ten (10) ATR 72-600 aircraft that Buyer has the option to acquire in accordance with the terms of Appendix N (Option Aircraft) and as more particularly described in Appendix A (Specification). |
Option Aircraft Scheduled Delivery Date |
means, in respect of each Option Aircraft, the scheduled delivery date of that Option Aircraft as specified in Clause 4 of Appendix N (Option Aircraft) and as it may be modified pursuant to the terms herein. |
Operator |
means the operator of the Aircraft, being AZUL LINHAS AÉREAS BRASILEIRAS S/A a company incorporated under the laws of Brazil, the registered office of which is located at Alameda Surubiju, 2010 Alphaville Industrial, Barueri, Sao Paulo, BRAZIL. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Option Notification Date |
has, in respect of each Option Aircraft, the meaning assigned to it in Clause 2.1 of Appendix N (Option Aircraft). |
Purchase Price |
has, in respect of each Aircraft, the meaning assigned to it in Clause 5.2. |
Pre-Delivery Payment |
means, as the context so requires, any or all of the First Pre-Delivery Payment, Second Pre-Delivery Payment, Third Pre-Delivery Payment, Fourth Pre-Delivery Payment and Fifth Pre-Delivery Payment to be paid by Buyer to Seller in respect of the Aircraft. |
Purchase Right Exercise Notice |
has, in respect of each Additional Aircraft, the meaning assigned to it in Clause 2.1 of Appendix O (Additional Aircraft). |
Regulatory Change |
has the meaning assigned to it in Clause 4.3. |
Scheduled Delivery Date |
means, as the context so requires, the Firm Aircraft Scheduled Delivery Date and/or the Option Aircraft Scheduled Delivery Date and/or the Additional Aircraft Scheduled Delivery Date. |
Scheduled Inspection Date |
means, with respect to each Aircraft, the day being [*****] Business Days prior to the Scheduled Delivery Date of any such Aircraft. |
Second Pre-Delivery Payment |
means, in respect of each Firm Aircraft, the payment to be made by Buyer to Seller in accordance with Clause 6.2.2 for an amount equal to [*****] of the Aircraft Purchase Price of that Aircraft. |
Seller Default |
has the meaning assigned to it in Clause 22.3. |
Seller Part |
means, in respect of each Aircraft, each part and component of that Aircraft airframe that is designed and / or manufactured by Seller, that bears Sellers S part number, and, for the purpose of Appendix E (Warranties). |
Sellers Account |
means the bank account detailed in Appendix K (Payment Instructions), or such other account as Seller may notify in writing from time to time to Buyer in accordance with the terms of such Appendix. |
Sellers Warranties |
means, in respect of each Aircraft, the warranties granted by Seller under Clause 1 of Appendix E (Warranties). |
Sellers Warranty Period |
means, in respect of each Aircraft, the duration of Sellers Warranties and has more specifically the meaning given to it in Clause 1.4 of Appendix E (Warranties). |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Spare Parts Catalogue |
has the meaning given to it in Clause 6.1 of Appendix D (Spare Parts Procurement). |
Specification |
means the Technical Specification, as amended to incorporate the agreed changes set forth in Appendix A (Specification) and any subsequent Development Change or SCN in accordance with the terms of this Contract. |
Specification Change Notice or SCN |
means a written change to the Specification, as more fully described in Clause 3.1. |
Start-up Conversion Credit Memorandum |
has the meaning given to it in Clause 5.2 of Appendix H (Start-Up Team) |
Support Period |
has the meaning given to it in Clause 1.2 of Appendix D (Spare Parts Procurement). |
Taxes |
means any present or future tax, VAT, levy, impost, duty, fees, assessment, withholding taxes or other charge of whatever nature and however arising in any country (including without limitation any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same). |
Technical Acceptance Documents |
means the documents listed in Appendix C (List of Documents Exchanged At Aircraft Acceptance) to be remitted by Seller to Buyer on or prior to the signature of the Certificate of Acceptance by Buyer. |
Technical Publications |
has the meaning given to it in Clause 1.1 of Appendix F (Technical Publications). |
Technical Specification |
means the ATR 72-600 technical specification defined in reference document DO/T 3864/07 dated May 2008 or its latest update, which defines an aircraft powered by two Pratt & Whitney PW127M engines with Hamilton Standard 568F six bladed propellers. |
Third Pre-Delivery Payment |
means, in respect of each Aircraft, the payment to be made by Buyer to Seller in accordance with Clause 6.2.3 for an amount equal to [*****] of the Base Purchase Price of that Aircraft. |
Training Conference |
has the meaning given to it in Clause 1.4 of Appendix J (Training). |
Training Conversion Credit Memorandum |
has the meaning given to it in Clause 5.2 of Appendix J (Training). |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Used Aircraft |
means one or more, as the context so requires, of the interim aircraft to be supplied by Seller to Buyer as detailed in Clause 18.1. |
Used Aircraft [*****] |
means, in respect of each Aircraft, the payment to be made by Buyer to Seller in accordance with Appendix P (Used Aircraft Operating Lease Terms) for an amount [*****] per Used Aircraft. |
Vendor |
means, collectively or individually, as the context may allow or require, the engine manufacturer, the propeller manufacturer, the landing gear manufacturer and all other manufacturers of parts other than Seller Parts. |
Vendor Part |
means each part, component or accessory (including the engines, the propellers and the landing gears) that is designed and / or manufactured by a Vendor, selected by Seller for installation in the Aircraft, and that bears the Vendors part number. |
Vendor Warranties |
has, in respect of each Aircraft, the meaning given to it in Clause 2.1 of Appendix E (Warranties). |
Vendor Warranty Manual |
means the manual compiling details of the warranties granted by the Vendors to all ATR aircraft operators including Buyer. |
Vendor Warranty Period |
has, in respect of each Aircraft, the meaning given to it in Clause 2.1 of Appendix E (Warranties). |
Warranty Claim |
means a claim made by Buyer under Clause 1 of Appendix E (Warranties) and which shall be in Sellers form or, if Buyer so prefers, in its own form, provided such form contains at least the following data: |
(a) Description of defect and action taken, if any. |
(b) Date of incident and/or of removal date. |
(c) Description of the defective part. |
(d) Part Number (P/N). |
(e) Serial Number (S/N). |
(f) Position on Aircraft, according to the Catalogue Sequence Number (CSN) of the Illustrated Parts Catalogue (IPC). |
(g) Total flight hours or calendar time as applicable. |
(h) Time since last overhaul (TSO). |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
(i) Aircraft registration number. |
(j) Aircraft total Flight Hours and/or number of landings. |
(k) Location to which warranty item should be returned. |
(l) Claim number. |
(m) Date of claim. |
(n) Delivery date of Item to Buyer |
1.2 | Interpretation |
In the interpretation of this Contract, unless the context otherwise requires:
(a) | References to Clauses or Appendices are to Clauses or Appendices of this Contract. |
(b) | Headings are inserted for convenience only and shall not affect the construction of this Contract or the Appendices. |
(c) | Unless the context otherwise requires, words importing the singular number include the plural number and vice versa. |
(d) | Unless the context otherwise requires, words importing the masculine gender shall include the feminine and neuter gender and vice versa. |
(e) | References to other documents include those documents as may be amended from time to time. |
(f) | Appendices hereto and any documents therein referred to shall be taken, read and construed as an essential and integral part of this Contract. |
(g) | References to acts, statutes and law includes laws, legislation, statutes amending, consolidating and replacing the statutes referred to and all regulations, rules, by-laws made under those acts, statutes or law. |
(h) | Reference to a Party to this Contract includes a reference to its successors and permitted assigns. |
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2 - | SALE AND PURCHASE |
2.1 | Subject to the terms and conditions set forth in this Contract, Seller agrees to sell and deliver and Buyer agrees to purchase and take delivery of twenty (20) Firm Aircraft upon the terms and conditions contained in this Contract. |
In addition, subject to the terms and conditions set forth in this Contract, Buyer may acquire the Option Aircraft and the Additional Aircraft from Buyer.
The sale and purchase of spare parts is dealt with in Appendix D (Spare Parts Procurement) attached hereto.
2.2 | Each Aircraft shall: |
2.2.1 | Be constructed to the standard defined in the Specification in accordance with and under the relevant DGAC Part 21 approval in compliance with EASA regulations; |
2.2.2 | Be inspected, tested and found conform to the ATR 72-212A Type Certificate (as evidenced by the issuance of an Export Certificate of Airworthiness); |
2.2.3 | Be inspected, tested and found conform to the Brazilian type certificate N° EA-9312 (as evidenced by the relevant Export Certificate of Airworthiness or, as applicable, the relevant EASA Form 52 (Aircraft Statement of Conformity) issued for any such Aircraft); |
2.2.4 | Be offered for acceptance with an Export Certificate of Airworthiness together with all relevant documentation to be supplied under this Contract and in a condition: |
(i) | Allowing its inclusion on the aeronautic register of the Brazilian ANAC (the Registro Aeronáutico Brasileiro) and qualifying for the issuance of a certificate of airworthiness issued by ANAC, subject always to Buyer installing the BIE in order for such certificate of airworthiness to be issued; |
(ii) | Complying with the performance requirements set forth in each category of Appendix L (Performance Guarantee), subject to the provisions of said Appendix L, including but not limited to Clause 1 thereof. |
2.2.5 | Meet the following conditions at Delivery: |
(i) | Have all installed parts that are newly manufactured; |
(ii) | Have no calendar life limit parts with [*****] of its life limit available at delivery on structure and main elements; |
(iii) | Have no calendar or time limited cabin safety equipment (such as oxygen bottles, life vests, extinguisher) and engine extinguishers with more than [*****] months variation on remaining life on Delivery between any same part number installed on the Aircraft; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(iv) | Have components with same or higher modification status than the previous delivered Aircraft, unless: |
| There is a delay in the delivery of each such Aircraft by reason of Excusable Delay or Inexcusable Delay which causes the delivery of each such Aircraft to occur after the delivery of another Aircraft originally scheduled to be delivered after each such Aircraft; or |
| The Specification of each such Aircraft is different from the previous Aircraft pursuant to the implementation of (i) an SCN in accordance with Clause 3.1 hereof or (ii) a Regulatory Change or (iii) a Change and such Specification change has the effect for each such Aircraft to have a lower modification status than the previous delivered Aircraft; |
(v) | Have all mandatory modifications embodied with no repetitive inspections or terminating actions to be performed after Delivery, unless the relevant terminating action to cure any repetitive inspection is not available at the time of Delivery. |
2.2.6 | At the time of transfer of title to Buyer, be free and clear of any lien, mortgage, charge, deed of trust, encumbrance, pledge, hypothecation, judicial attachment or seizure, license, assignment by way of security or security interest howsoever created or arising. |
2.3 | A copy of the Technical Specification has been signed for the purpose of identification by or on behalf of the parties. |
2.4 | In case of contradiction and/or inconsistency between the Technical Specification and any other part of this Contract, this Contract shall prevail. |
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3 - | SPECIFICATION CHANGES |
3.1 | Specification Changes Notices |
3.1.1 | Changes to the Specification shall be made only by a Specification Change Notice (SCN), which shall be delivered by Seller to Buyer and which shall set forth in sufficient details: |
(i) | The particular changes to be made therein; |
(ii) | The effect, if any, of such changes on design, performance, weight, balance, authorised payload, zero fuel weight, interchangeability, date of delivery; and |
(iii) | The cost to Buyer (if any) of such SCN quoted in economic conditions reflecting a theoretical delivery on the date of signature of such SCN. |
The SCN shall be binding upon each party when approved and signed by their Authorised Representatives.
3.1.2 | Payment for and in respect of any change detailed in any effective SCN shall be effected as follows: |
(a) | Upon signature of a SCN by both Buyer and Seller, Buyer shall pay to Seller such proportion of the cost of performing the change detailed in such SCN equal to the proportion of the Base Purchase Price of the Aircraft as has been paid up to and including the date on which such SCN is last signed, and |
(b) | The balance of the modification price shall be paid according to the same terms and conditions as stated in Clause 6 (Terms of Payment) hereafter and the Base Purchase Price shall be deemed increased by the amount of the modification price. |
3.1.3 | Buyer may request a change to the Specification by notice in writing to Seller. If Buyers requested change requires preliminary studies, mock-ups and similar work, Seller shall, as promptly as practicable, provide Buyer with a firm quotation of the cost of such studies, mock-ups and similar work. After approval by Buyer of such firm quotation, Seller shall perform the preliminary studies, mock ups and similar work at Buyers expense, whether the latter subsequently agrees or not to the change. |
In the event Buyer does not agree to implement the initially requested change, the expenses specified in the firm quotation for the preliminary work, mock-ups and / or similar work approved by Buyer shall be paid by Buyer to Seller upon submission of Sellers invoice. In the event Buyer agrees to the change and thereby executes an SCN, the expenses specified in the firm quotation for the preliminary work, mock-ups and / or similar work approved by Buyer shall be added to the cost of the Buyer requested SCN.
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Should a change to the Specification involve a subsequent equipment substitution giving rise to an increase in the cost or to termination charges for Seller, such increase or charges shall be borne [*****].
3.2 | Development Changes |
3.2.1 | The Technical Specification may also be revised without Buyers consent to incorporate development changes (the Development Changes) if such Development Changes do not have a material adverse effect on price, delivery, guaranteed performance hereunder (or any other guaranteed element hereunder), weight or balance, structural integrity, operational safety, ease of maintenance of the Aircraft or parts interchangeability or replaceability requirements. |
Development Changes are changes deemed necessary by Seller to correct defects, improve the Aircraft, prevent delay or ensure compliance with this Contract.
3.2.2 | Seller shall promptly but no later than [*****] before the Scheduled Inspection Date of any Aircraft (or immediately if such Development Change is embodied on any Aircraft less than [*****] before its Scheduled Inspection Date), notify Buyer in writing of all Development Changes made pursuant to this Clause 3.2 and affecting any such Aircraft, and provide, in reasonable detail, details of the effect changes on design, design weights, authorised payload, performance and parts interchangeability requirements. Seller shall also supply to Buyer the modified pages of the Technical Specification if any. |
3.2.3 | For the avoidance of doubt, any cost arisen from or in connection with any Development Changes shall be borne [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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4 - | CERTIFICATION & REGULATORY CHANGES |
4.1 | Seller represents that, at the date of execution of this Contract and on each subsequent successive Delivery Date: |
(i) | It has obtained the ATR 72-212A Type Certificate for the ATR 72-212A variant commercially known as ATR 72-500 and its validation in particular by the Registro Aeronautico Italiano (R.A.I.) of Italy, and the Federal Aviation Administration (F.A.A.) of the United States of America; |
The representations made in this Clause 4.1 are made by Seller on the date of execution of this Contract and on each subsequent Delivery Date.
4.2 | Seller also represents that, on each Delivery Date: |
(i) | It will have obtained, at its own cost and expense, the certification by the EASA and by ANAC (through their inclusion in the relevant type certificate data sheet) for any and all non-optional changes between the ATR 72-212A variant commercially known as ATR 72-600 and the ATR 72-212A variant commercially known as ATR 72-500 (such ATR 72-212A variant commercially known as ATR 72-500 being already certified by EASA and ANAC); |
(ii) | All the options and SCNs listed in Appendix A (Specification) will be certified by EASA and by ANAC; |
(iii) | Any Development Change made by Seller or SCNs issued after execution hereof in accordance withy the provisions of this Clause 4 and embodied on the Aircraft will be certified by EASA and by ANAC; and |
(iv) | It will obtain for each Aircraft an Export Certificate of Airworthiness in accordance with Clause 2.2.4 hereof. |
The representations made in this Clause 4.2 shall be made by Seller on each Delivery Date.
4.3 | Buyer acknowledges and agrees that in the event any requirement, regulation or mandate of the DGAC and / or EASA or any interpretation thereof becomes effective between the date of this Contract and the Delivery Date of any Aircraft which has the effect of requiring any changes or modifications to the Specification or to any work carried out or to be carried out in the manufacture of any such Aircraft or the spares or to the testing or to the certification or to the approvals required with respect thereto (the Regulatory Change), Seller shall, without any obligation or requirement to secure the permission or consent of Buyer, make such changes or modifications to the Specification, the Aircraft, the spares, or carry out such testing, and: |
4.3.1 | Seller shall provide Buyer with written notice of each such Regulatory Change and Buyer and Seller shall execute a SCN stating the change or modifications to the Aircraft or the spares or the testing required and the proposed adjustment to the Aircraft price, if any, necessitated by such change, modification or testing, which SCN shall be binding on both Parties. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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4.3.2 | In the case of a Regulatory Change applicable to the Aircraft and not applicable to any aircraft other than the ATR aircraft in the [*****] passenger transport turboprop aircraft category certified under EASA regulations, the costs of all changes, modifications and testing required by such Regulatory Change shall be [*****]. |
4.3.3 | In the case of a Regulatory Change applicable to Aircraft and to other aircraft in the [*****] passenger transport turboprop aircraft category certified under EASA regulations, the costs of all changes, modifications and testing required by such Regulatory Change shall be [*****]. |
4.3.4 | Seller shall provide Buyer with written notice of each such Regulatory Change and Buyer and Seller shall execute a SCN stating the change or modifications to the Aircraft or the spares or the testing required by such change, modification or testing, which SCN shall be binding on both parties. |
Seller represents that as of the date hereof it is not aware of any proposed or confirmed amendment and / or modification of any requirement, regulation or mandate of the DGAC and / or EASA or any interpretation thereof or Notice of Proposed Amendment (or equivalent document issued by DGAC and / or EASA) that would, if adopted, constitute or give rise to or require a Regulatory Change for the Aircraft.
4.3.5 | Prior to the delivery of any Aircraft, Seller shall be entitled to fly any such Aircraft and to use any part thereof for such period or periods as shall be necessary in connection with DGAC and / or EASA requirements related to the Aircraft and Seller shall be under no liability to Buyer in respect of any use or depreciation of any such Aircraft occasioned thereby, so as long as such use or depreciations are not caused by the gross negligence or wilful misconduct of Seller. |
For the avoidance of doubt, Seller shall, without any obligation or requirement to secure the permission or consent of Buyer, make all changes, modifications and testing required pursuant to any requirement, regulation or mandate of the DGAC and / or EASA or any interpretation thereof being issued or becoming effective on or prior to the date of this Contract and [*****].
4.4 | In the event any modification related to the Specification of any Aircraft or any change, addition or modification to any Aircraft (the Changes) is required either: |
(i) | By ANAC for the validation of the DGAC Type Certificate, or |
(ii) | By ANAC or any other authority of the Operator in order to satisfy operational regulations or laws of the country or the countries concerned, subsequent to the date of this Contract and enforceable prior to the delivery of any such Aircraft; or |
(iii) | Pursuant to any regulation, or interpretation thereof, promulgated in Brazil subsequent to the date of this Contract and enforceable prior to the delivery of any such Aircraft, |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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and provided Buyer has notified Seller of the necessity of these Changes with reasonable advance notice to enable their embodiment to any such Aircraft prior to delivery, then the parties will sign an SCN, setting forth in detail the Changes to be made, and their effects, if any, on guaranteed performance or other characteristics of any such Aircraft, price of any such Aircraft, if any, and time of delivery and the cost thereof shall be [*****].
4.5 | Seller shall not be bound to make any modification to the Aircraft consequent on any requirements of the DGAC being issued or becoming effective after the date hereof except insofar as it may be required to do so under the provisions of this Clause 4. |
4.6 | Any postponement of the Scheduled Delivery Date due to modifications made pursuant to this Clause 4 shall be deemed Excusable Delay within the meaning of Clause 12 (Excusable Delay). |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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5 - | AIRCRAFT PRICE |
5.1 | The base purchase price for each Aircraft (the Base Purchase Price) manufactured according to the Specification is [*****]. |
This | Base Purchase Price is established for a theoretical delivery date in [*****]. |
5.2 | The Base Purchase Price for each Aircraft shall be adjusted to determine the purchase price for each Aircraft (the Purchase Price), as follows: |
5.2.1 | [*****] set out in Clause 5.3 hereto; and |
5.2.2 | To include the price of any and all SCNs executed after signature of this Contract in accordance with the provisions of Clause 3 (Specification Changes) and Clause 4 (Certification & Regulatory Changes) hereof, which price shall be adjusted, if applicable, at the time of delivery in accordance with Sellers standard SCN price adjustment formula set out in Clause 5.4 hereof; and |
5.2.3 | To include any other amounts forming part of Purchase Price in accordance with provisions of this Contract. |
5.3 | [*****] |
[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] [*****]
[*****]
5.4 | The price of any SCN shall be varied in respect of changes in economic conditions from a theoretical delivery at the date of signature of any such SCN up to and including and the Delivery Date of the Aircraft where such SCN is implemented, which variation shall be calculated in accordance with the following formula: |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****]
5.5 | If the basis upon which the indices referred to in Clause 5.3 and 5.4 above have been calculated are amended or if the said indices are revised or withdrawn from publication the parties hereto shall agree a revised formula which shall have substantially the same effect as that specified herein. |
In case the parties cannot reach an agreement for a revised formula, a mutually agreed, single independent arbitrator shall calculate a revised formula, which, insofar as possible and in the opinion of the arbitrator, would lead in application to the same adjustment result. The decision of such arbitrator shall be final and binding upon the parties.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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6 - | TERMS OF PAYMENT |
6.1 | In accordance with the Heads of Agreement dated July 16th 2010 entered into by and between Seller and Buyer, Buyer has paid to Seller a [*****] in the amount of [*****] in respect of each of the Firm Aircraft [*****] to and including [*****], which amount shall be credited against the First Pre-Delivery Payment for such Aircraft due pursuant to Clause 6.2.1. |
6.2 | Payment of the balance of the Purchase Price for each Aircraft shall be made according to the following schedule: |
6.2.1 | First Pre-Delivery Payment |
6.2.1.1 | [*****] from execution of this Contract, Buyer shall, in respect of each Aircraft, pay to Seller the First Pre-Delivery Payment to Sellers Account. |
6.2.1.2 | Alternatively, and with respect to each Firm Aircraft only (that is for the avoidance of doubt with respect to the Aircraft [*****] only), Buyer may elect to pay the First Pre-Delivery Payment according to the following scheme: |
| [*****] of the Base Purchase Price of each such Firm Aircraft) [*****] from execution of this Contract; and |
| [*****] of the Base Purchase Price of each such Firm Aircraft) [*****] from execution of this Contract, [*****] |
(i) | [*****] |
[*****] |
(ii) | [*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] |
6.2.1.3 | For the avoidance of doubt, any payment made by Buyer to Seller for any Firm Aircraft pursuant to Clause 6.1 above shall be credited towards the First Pre- Delivery Payment of any such Firm Aircraft. |
6.2.2 | Second Pre-Delivery Payment |
[*****] prior to the Scheduled Delivery Date of each Aircraft, Buyer shall, in respect of such Aircraft, pay to Seller the Second Pre-Delivery Payment to Sellers Account.
6.2.3 | Third Pre-Delivery Payment |
[*****] prior to the Delivery Date of each Aircraft, Buyer shall, in respect of such Aircraft, pay to Seller the Third Pre-Delivery Payment to Sellers Account.
6.2.4 | Fourth Pre-Delivery Payment |
[*****] prior to the Scheduled Delivery Date of each Aircraft, Buyer shall, in respect of such Aircraft, pay to Seller the Fourth Pre-Delivery Payment to Sellers Account.
6.2.5 | Fifth Pre-Delivery Payment |
[*****] prior to the Scheduled Delivery Date of each Aircraft, Buyer shall, in respect of such Aircraft, pay to Seller the Fifth Pre-Delivery Payment to Sellers Account.
6.2.6 | Upon payment by the Operator of the First Deposit (as further defined in Appendix P (Used Aircraft Operating Lease Terms) hereof) for any Used Aircraft, Seller shall credit the Used Aircraft [*****] relating to any such Used Aircraft towards payment of the next due Pre-Delivery Payment relating to the first Firm Aircraft. |
In the event that the First Deposit for any Used Aircraft has been paid prior to execution of this Contract, Seller shall credit the Used Aircraft [*****] relating to any such Used Aircraft towards payment of the First Pre-Delivery Payment relating to the first Firm Aircraft.
6.2.7 | Should the due date for payment of any Second Pre-Delivery Payment and/or Third Pre- Delivery Payment and/or Fourth Pre-Delivery Payment and/or Fifth Pre-Delivery Payment be on a date prior to the execution of this Contract, then such Second Pre- Delivery Payment and/or Third Pre-Delivery Payment and/or Fourth Pre-Delivery Payment and/or Fifth Pre-Delivery Payment shall, as appropriate, become due within [*****] from execution of this Contract. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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6.2.8 | The remaining balance of the Purchase Price for each Aircraft (the Balance Payment) shall be payable upon [*****] for such Aircraft as provided for in Clause 10 (Aircraft Acceptance Procedure). Seller shall furnish to Buyer no later than [*****] prior to the Scheduled Delivery Date of such Aircraft a proforma invoice setting forth the estimated Purchase Price for such Aircraft. |
6.2.9 | For the sake of clarity, any postponement in the Scheduled Delivery Date of the Aircraft pursuant to the provisions of this Contract, including in particular but without limitation, Clauses 3 (Specification Changes), 4 (Certification & Regulatory Changes), 10 (Aircraft Acceptance Procedure), 12 (Excusable Delay), 13 (Inexcusable Delay), 15 (Buyer Specified Equipment and Information), and 22 (Termination) hereof, will, unless such delay results from a default by Buyer, postpone accordingly the payment by Buyer to Seller of any advance payment due by Buyer to Seller pursuant to Clause 6.2.2, 6.2.3, 6.2.4 and 6.2.5 hereof. |
6.3 | All payments due under this Contract shall be made in accordance with the provisions of Appendix K (Payment Instructions) hereto. |
6.4 | All payments and charges to be made by Buyer under this Contract shall be made on the due date in immediately available funds by swift transfer or, in case no due date is stipulated, within [*****] after invoice date. Buyer shall cause payments to be remitted so that Seller receives credit for the full amount of such payment on the due date. |
6.5 | All payments due to Seller hereunder shall be made in full, without set-off, counterclaim, recoupment, deduction or withholding of any kind. Consequently, Buyer shall procure that the sums received by Seller under this Contract shall be equal to the full amounts expressed to be due to Seller hereunder, without deduction or withholding on account of and free from any and all taxes (including any tax required to be deducted or paid under the laws of Buyers jurisdiction in respect of the amount paid Buyer to Seller), levies, imposts, dues or charges of whatever nature. |
6.6 | If Buyer is compelled by law to make any such deduction or withholding, Buyer shall pay such additional amounts as may be necessary in order that the net after-tax amount received by Seller after such deduction or withholding shall equal the amounts which would have been received in the absence of such deduction or withholding and pay to the relevant taxation or other authorities within the period for payment permitted by applicable law, the full amount of the deduction or withholding. |
6.7 | In case of a late payment of any amount of money due by Buyer under this Contract and without prejudice to any other of Sellers rights or remedies, Buyer shall pay interest at a default per annum rate equal to [*****] which interest rate shall apply to any amount outstanding after the relevant payment date and until the actual date of receipt of the payment by Seller, such interest being calculated on a daily basis. In addition, Buyer shall reimburse all costs and expenses (including legal costs) incurred by Seller in the collection of any overdue amount. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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6.8 | The acceptance of any payment by Seller after it is due shall not be deemed to be a waiver of any breach by Buyer of its obligations under this Contract. |
6.9 | For the sake of clarity, Buyer acknowledges and agrees that Pre-Delivery Payments are installment payments of the Purchase Price of the Aircraft and are not deposits, cash collateral or other collateral security for Buyers obligations under this Contract. Once paid, all Pre-Delivery Payments are the property of Seller and may be commingled by it with its and its affiliates other funds, with no interest payable with respect thereto. |
6.10 | Buyer shall not, by virtue of anything contained in this Contract (including, without limitation, any Pre-Delivery Payments hereunder, or any designation or identification by Seller of particular aircraft as an Aircraft to which any of the provisions of this Contract refer), acquire any proprietary or any insurable interests in any Aircraft prior to delivery of and payment for such Aircraft as provided in this Contract. |
6.11 | In addition to any other rights and remedies available to Seller hereunder, Seller shall not be obligated to tender delivery of any Aircraft to Buyer, and shall have no further liability to Buyer with respect thereto, if and so long as Buyer fails to make any Pre-Delivery Payment pursuant to the foregoing provisions of this Clause 6 for any Aircraft at the time and in the amount specified in this Contract and such failure shall continue unremedied for [*****] or more from receipt by Buyer of a written demand from Seller requesting such payment. |
6.12 | Nothing in this Clause 6 shall require Buyer to account to Seller for taxes on income or profits assessed on Seller by the relevant tax authorities. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7- | [*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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8 - | PLANT REPRESENTATIVESINSPECTION |
8.1 | The Aircraft will be manufactured in accordance with the regulations applicable in the country of Seller, subject however to the provisions of Clause 2.2.1. The Aircraft will be inspected exclusively under Sellers inspection systems, as approved by the DGAC in compliance with EASA regulations. |
8.2 | Buyer shall have the right to, at all reasonable times, appoint one or more duly authorised resident inspector(s) at Sellers plant who can inspect the manufacturing process and the work in progress and who will have access to such relevant technical data as is reasonably necessary to carry out said inspection. |
Seller shall authorise or procure for said resident inspector(s) to visit Sellers facilities and, if possible, those of its suppliers and subcontractors at all reasonable times during normal business hours. Such inspection shall be performed in such manner as not to delay or hinder the construction or manufacture of the Aircraft or the performance of this Contract by Seller or any other work in progress in the respective facilities.
The actual detailed inspection of the Aircraft shall only take place in the presence of the inspection personnel of Seller, according to a procedure to be agreed upon with Buyer in the Inspection and Acceptance Manual, under which Buyer shall have all reasonable access to the Aircraft at any time during the final assembly process and written production data relating to the Aircraft as he may reasonably require.
In particular, Seller shall, no later than [*****] prior to the Scheduled Inspection Date of any Aircraft, make available to Buyer a report detailing the configuration and modification status of any such Aircraft. This report shall include a list of all major assemblies with associated part numbers and serial numbers, current equipment list with associated part numbers, serial numbers and modification status, current modification list and any other available Aircraft configuration status.
8.3 | Buyers representatives shall address any of their observations, comments, doubts, or requests to Sellers inspection personnel. Seller will take all required actions to satisfactorily address all Buyers justified requests and observations, being understood that Seller shall never be liable to take any action other than provided for under this Contract. |
8.4 | If access to any part of said facilities where construction is in progress is restricted for security reasons, Seller shall be allowed a reasonable time to make the items available for inspection, elsewhere if possible. |
8.5 | Buyer shall bear all expenses in connection with transport, subsistence, insurance and salary of such resident inspector(s). Seller shall furnish, at no cost to Buyer, suitable office space, office furniture and office facilities (telephone, telefax, copying machine, printer and the like) in order to enable Buyers representatives to fulfil their task properly. |
8.6 | BUYER SHALL INDEMNIFY AND HOLD HARMLESS SELLER, EACH MEMBER, EACH OF THEIR AFFILIATES AND SELLERS EMPLOYEES, DIRECTORS, AGENTS AND OFFICERS (THE SELLER PARTIES) AGAINST ALL |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
LIABILITIES, PENALTIES, DAMAGES, LOSSES AND JUDGMENTS, COSTS, ATTORNEYS FEES AND OTHER EXPENSES (INCLUDING ATTORNEYS FEES INCURRED TO ENFORCE THIS INDEMNITY) (A) RELATING TO OR ARISING OUT OF ANY SUCH INSPECTION OR THE ACTS OR OMISSIONS OF BUYER OR ITS INSPECTORS IN CONDUCTING ANY SUCH INSPECTION OR (B) WHICH MAY BE ASSERTED, ASSESSED OR ACCRUED AGAINST OR INCURRED BY SELLER PARTIES BY REASON OF INJURY TO OR DEATH OF BUYER PARTIES ARISING OUT OF OR IN CONNECTION WITH THE TESTS ON GROUND OR IN FLIGHT PROVIDED FOR IN THIS CLAUSE, EXCEPT IN EACH CASE TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE SELLER PARTIES.
SELLER SHALL INDEMNIFY AND HOLD HARMLESS BUYER, BUYERS EMPLOYEES, DIRECTORS, AGENTS AND OFFICERS, THE OPERATOR, AND THE OPERATORS EMPLOYEES, DIRECTORS, AGENTS AND OFFICERS (THE BUYER PARTIES) AGAINST ALL LIABILITIES, PENALTIES, DAMAGES, LOSSES AND JUDGMENTS, COSTS, ATTORNEYS FEES AND OTHER EXPENSES RELATIVE THERETO WHICH MAY BE ASSERTED, ASSESSED OR ACCRUED AGAINST THE BUYER PARTIES BY REASON OF INJURY TO OR DEATH OF SELLER PARTIES ARISING OUT OF OR IN CONNECTION WITH THE TESTS ON GROUND OR IN FLIGHT PROVIDED FOR IN THIS CLAUSE, EXCEPT IN EACH CASE TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE BUYER PARTIES.
IN THE EVENT ANY CLAIM IS MADE OR SUIT IS BROUGHT AGAINST EITHER PARTY FOR DAMAGES FOR DEATH OR INJURY, THE PARTY AGAINST WHOM CLAIM IS MADE OR SUIT IS BROUGHT SHALL PROMPTLY GIVE NOTICE TO THE OTHER PARTY AND THE LATTER SHALL HAVE THE RIGHT TO SUPERVISE AND CONDUCT THE DEFENSE THEREOF, OR TO EFFECT ANY SETTLEMENT WHICH IT, IN ITS OPINION, DEEMS PROPER.
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9 - | FIRM AIRCRAFT SUPPLY PROGRAM |
9.1 | Subject to the provisions of Clauses 9.2 and 9.3, Seller shall offer the Firm Aircraft for acceptance at [*****] during the following months: |
Firm Aircraft Number |
Aircraft Number |
Aircraft Scheduled Delivery Date | ||
Firm Aircraft N° 1 |
Aircraft N° 1 | October 2011 | ||
Firm Aircraft N° 2 |
Aircraft N° 2 | November 2011 | ||
Firm Aircraft N° 3 |
Aircraft N° 3 | December 2011 | ||
Firm Aircraft N° 4 |
Aircraft N° 4 | January 2012 | ||
Firm Aircraft N° 5 |
Aircraft N° 5 | February 2012 | ||
Firm Aircraft N° 6 |
Aircraft N° 6 | March 2012 | ||
Firm Aircraft N° 7 |
Aircraft N° 7 | April 2012 | ||
Firm Aircraft N° 8 |
Aircraft N° 8 | May 2012 | ||
Firm Aircraft N° 9 |
Aircraft N° 9 | June 2012 | ||
Firm Aircraft N° 10 |
Aircraft N° 10 | July 2012 | ||
Firm Aircraft N° 11 |
Aircraft N° 11 | August 2012 | ||
Firm Aircraft N° 12 |
Aircraft N° 12 | September 2012 | ||
Firm Aircraft N° 13 |
Aircraft N° 13 | October 2012 | ||
Firm Aircraft N° 14 |
Aircraft N° 14 | November 2012 | ||
Firm Aircraft N° 15 |
Aircraft N° 15 | December 2012 | ||
Firm Aircraft N° 16 |
Aircraft N° 16 | January 2013 | ||
Firm Aircraft N° 17 |
Aircraft N° 17 | February 2013 | ||
Firm Aircraft N° 18 |
Aircraft N° 18 | March 2013 | ||
Firm Aircraft N° 19 |
Aircraft N° 19 | April 2013 | ||
Firm Aircraft N° 20 |
Aircraft N° 20 | May 2013 |
9.2 | Each Aircraft shall be offered for delivery in accordance with Clause 10 (Aircraft Acceptance Procedure) within the month indicated above. Seller shall provide written notice to Buyer of the Delivery Date fortnight for such Firm Aircraft [*****]. Seller shall provide written notice to Buyer of the Delivery Date for such Aircraft [*****], which notice shall also inform Buyer about the Scheduled Inspection Date for such Aircraft. |
9.3 | The Scheduled Delivery Date of each Aircraft may be varied in accordance with the other provisions of this Contract, including in particular but without limitation, Clauses 3 (Specification Changes), 4 (Certification & Regulatory Changes), 10 (Aircraft Acceptance |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
Procedure), 12 (Excusable Delay), 13 (Inexcusable Delay), 15 (Buyer Specified Equipment and Information), and 22 (Termination) hereof.
9.4 | On the Delivery of each Aircraft, Seller shall deliver to Buyer the documents listed in Appendix C (List of Documents Exchanged At Aircraft Acceptance). |
9.5 | In the event any export licenses are required under any applicable law in order for Seller to fulfill its obligations under this Contract, the obtaining of such licenses shall be the responsibility of Seller. |
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10 - | AIRCRAFT ACCEPTANCE PROCEDURE |
10.1 | Within [*****] from execution hereof, Seller shall provide Buyer with a draft aircraft delivery and acceptance procedures document (the Inspection and Acceptance Manual) which shall define (i) the procedures, policies and standards for Buyers to accomplish its inspection during the Aircraft manufacturing process at Sellers works and the (ii) the Aircraft delivery and acceptance procedures. Buyer shall cooperate with Seller for the redaction of the Inspection and Acceptance Manual. Buyer and Seller shall mutually approve such Inspection and Acceptance Manual [*****] (such approval not to be unreasonably withheld). In the event of a conflict between the Inspection and Acceptance Manual and this Contract, then this Contract shall take precedence over the Inspection and Acceptance Manual. |
10.2 | Seller shall offer the Aircraft for acceptance at [*****] upon successful completion of the ground and flight tests performed by Seller as part of its production procedure. |
10.3 | Buyer shall during the [*****] immediately preceding the Scheduled Delivery Date of each Aircraft be entitled to inspect such Aircraft and during such period Seller shall fly the Aircraft for a period or periods not exceeding three (3) hours (or such other duration as may be agreed by the parties) to demonstrate in ambient conditions prevailing at Sellers airfield that the Aircraft complies with the terms of this Contract, including in particular Clause 2.2 hereof, in respect of those requirements that can be demonstrated only in flight (the Acceptance Flight Tests). |
10.4 | Throughout the performance of the Acceptance Flight Tests, the operational control of the Aircraft shall remain with Sellers personnel. |
One (1) ATR 72-600 qualified representative of Buyer may be present and have a seat as a First Officer in the cockpit, being understood that, notwithstanding the provisions of the above paragraph but subject always to the supervision of Sellers captain seating in the cockpit, such qualified Buyer representative will, at selected moments during the Acceptance Flight Tests, be able to exercise a degree of operational control over the Aircraft in order to check that the Aircraft complies with the terms of this Contract.
A maximum of three (3) representatives of Buyer having only access to the passenger cabin, may also participate in such Acceptance Flight Tests.
10.5 | The Aircraft shall be operated at Sellers expense and risk and only by Sellers nominees during the Acceptance Flight Tests. |
10.6 | In the event that during, or as a result of the said inspection or of the Acceptance Flight Tests, Buyer acting reasonably considers that any Aircraft fails to comply in any respect with the terms of this Contract, including in particular Clause 2.2, then upon notification of the details of such alleged failure given by Buyer upon the conclusion of the inspection or Acceptance Flight Tests, Seller shall, at its own cost and expense, examine, and if necessary promptly rectify or modify, the Aircraft to bring it into compliance with the terms of this Contract, including in particular Clause 2.2. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Following any rectification or modification of the Aircraft by Seller pursuant to this Clause 10.6, Buyer shall be allowed the amount of time that will be reasonably needed to assess if such rectifications or modifications have brought the Aircraft in compliance with the terms of this Contract.
10.7 | If at any stage Seller acting reasonably considers that the requirements of the terms of this Contract, including in particular Clause 2.2, are met and should Buyer so require, Seller shall demonstrate to Buyers reasonable satisfaction that the Aircraft meets the said requirements with regard to the aspects in doubt. In case Buyer has notified Seller of any failure of the Aircraft to comply with the terms of this Contract in accordance with this Clause 10, and Seller has undertaken rectifying and/or modifying actions of any kind, Seller shall be obliged to perform a new Acceptance Flight Test, should Buyer reasonably request so. |
10.8 | If remedy of a failure is not possible prior to the Delivery Date, and provided always that such failure does not adversely affect the safety, airworthiness or to any material extent the performance, structural life, reliability, economic operation, regular commercial use, maintenance inspection program or maintenance of the Aircraft, Buyer shall not be entitled to refuse to accept the Aircraft by reason of such failure of the Aircraft to meet the requirements of the terms of this Contract. |
In such case however, Seller and Buyer shall agree a program and a schedule for the remedy of such failure by Seller or for a monetary compensation for the non-remedy of such failure by Seller, such agreement being recorded in a commitment letter (the Commitment Letter) jointly executed by Seller and Buyer prior to Delivery.
However, in no circumstances shall Buyer be liable to accept delivery of an Aircraft with deferred rectifications or remedies if the deferment of such rectifications or remedy is not approved by the EASA and / or ANAC.
10.9 | When Buyer is satisfied that the Aircraft meets the Specification and when the said inspection and the Acceptance Flight Tests have been completed on the Aircraft without Buyer notifying Seller of any failure of the Aircraft to comply with the terms of this Contract, or after Seller has remedied any such failure, or, after Seller and Buyer have agreed a program for the remedy of such failure in accordance with the provisions of Clause 10.8 hereof and when an Export Certificate of Airworthiness has been issued for the Aircraft, then Buyer shall sign a Certificate of Acceptance in respect of the Aircraft in triplicate. Should Buyer fail to deliver such Certificate of Acceptance, Buyer shall be deemed to be in default of its obligations pursuant to Clause 22.2 herein. The signature of the Certificate of Acceptance by Buyer shall be deemed a demonstrate compliance of the Aircraft with the Specification and the guaranteed performance, subject however to the matters set forth in the Commitment Letter (if any). |
10.10 | Notwithstanding the provisions of Clause 22.2, if Buyer fails to carry out the said inspection or attend the Acceptance Flight Tests or sign the Certificate of Acceptance without notifying Seller of any failure of the Aircraft to comply with any of the terms of this Contract, Seller shall, [*****] after the satisfactory completion of the Acceptance Flight Tests, notify Buyer that it shall be deemed to have accepted the Aircraft in accordance with the Contract. Seller shall be entitled to sign a Certificate of Acceptance on Buyers behalf and Buyer shall be responsible for the reasonable costs of insurance, |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
storage, and maintenance of the Aircraft incurred by Seller as a result of Buyers failure as aforesaid. |
10.11 | At least [*****] before the Scheduled Delivery Date of each Aircraft, Buyer shall provide to Seller suitable evidence of the authority of designated persons who may sign on Buyers behalf the Certificate of Acceptance together with specimen signatures of the persons so authorised. |
10.12 | Seller shall be entitled to fly the Aircraft and to use any part thereof at its own risk and expense for such period as shall be reasonably necessary in connection with DGAC requirements for obtaining an Export Certificate of Airworthiness and in connection with the Acceptance Flight Tests and Seller shall be under no liability to Buyer in respect of any normal use or depreciation of the Aircraft or any parts thereof occasioned thereby. |
10.13 | BUYER SHALL INDEMNIFY AND HOLD HARMLESS SELLER, EACH MEMBER, EACH OF THEIR AFFILIATES AND SELLERS EMPLOYEES, DIRECTORS, AGENTS AND OFFICERS (THE SELLER PARTIES) AGAINST ALL LIABILITIES, PENALTIES, DAMAGES, LOSSES AND JUDGMENTS, COSTS, ATTORNEYS FEES AND OTHER EXPENSES (INCLUDING ATTORNEYS FEES INCURRED TO ENFORCE THIS INDEMNITY) (A) RELATING TO OR ARISING OUT OF ANY SUCH INSPECTION OR THE ACTS OR OMISSIONS OF BUYER OR ITS INSPECTORS IN CONDUCTING ANY SUCH INSPECTION OR (B) WHICH MAY BE ASSERTED, ASSESSED OR ACCRUED AGAINST OR INCURRED BY THE SELLER PARTIES BY REASON OF INJURY TO OR DEATH OF BUYER PARTIES ARISING OUT OF OR IN CONNECTION WITH THE TESTS ON GROUND OR IN FLIGHT PROVIDED FOR IN THIS CLAUSE, INCLUDING ANY NEGLIGENCE OF SELLER OR IMPUTED TO SELLER, EXCEPT IN EACH CASE TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE SELLER PARTIES. |
SELLER SHALL INDEMNIFY AND HOLD HARMLESS BUYER, BUYERS EMPLOYEES, DIRECTORS, AGENTS AND OFFICERS, THE OPERATOR AND THE OPERATORS EMPLOYEES, DIRECTORS, AGENTS AND OFFICERS (THE BUYER PARTIES) AGAINST ALL LIABILITIES, PENALTIES DAMAGES, LOSSES AND JUDGMENTS, COSTS, ATTORNEYS FEES AND OTHER EXPENSES RELATIVE THERETO WHICH MAY BE ASSERTED, ASSESSED OR ACCRUED AGAINST THE BUYER PARTIES BY REASON OF INJURY TO OR DEATH OF SELLER PARTIES ARISING OUT OF OR IN CONNECTION WITH THE TESTS ON GROUND OR IN FLIGHT PROVIDED FOR IN THIS CLAUSE, EXCEPT IN EACH CASE TO THE EXTENT RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE BUYER PARTIES.
IN THE EVENT ANY CLAIM IS MADE OR SUIT IS BROUGHT AGAINST EITHER PARTY FOR DAMAGES FOR DEATH OR INJURY, THE PARTY AGAINST WHOM CLAIM IS MADE OR SUIT IS BROUGHT SHALL PROMPTLY GIVE NOTICE TO THE OTHER PARTY AND THE LATTER SHALL HAVE THE RIGHT TO SUPERVISE AND CONDUCT THE DEFENCE THEREOF, OR TO EFFECT ANY SETTLEMENT WHICH IT, IN ITS OPINION, DEEMS PROPER.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
11 - | TRANSFER OF TITLE, COLLECTION AND FERRY |
11.1 | Upon signing the Certificate of Acceptance of any Aircraft in accordance with Clause 10 (Aircraft Acceptance Procedure), Buyer shall pay to Seller [*****]. Thereupon, and subject to receipt by Seller of the full payment of the Purchase Price for that Aircraft as aforesaid, Seller shall deliver that Aircraft to Buyer with a Bill of Sale and title to and risk of loss of or damage to that Aircraft shall pass by delivery of the Bill of Sale from Seller to Buyer. |
11.2 | After transfer of title to the Aircraft to Buyer and before the Aircraft is removed from [*****], Seller shall, if requested to do so by Buyer, supply [*****]. |
In addition, upon each Aircraft delivery, Seller shall supply Buyer, [*****] to Buyer, the necessary fuel to top-up each such Aircraft fuel tanks.
11.3 | If Buyer fails to make the necessary arrangements to ferry any Aircraft from [*****] within [*****] after the date of execution of the Certificate of Acceptance, then without prejudice to any other remedies and rights of Seller, Buyer shall, in respect of any subsequent period during which that Aircraft remains at [*****] by Seller as a result of such Buyers failure to perform its obligations. |
11.4 | The obtaining of any import licenses or authorizations required to import the Aircraft or the spares into Brazil, or any other country where the Aircraft will be operated, and any associated costs shall be the responsibility of Buyer. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
12 - | EXCUSABLE DELAY |
12.1 | Seller shall not be liable to Buyer nor shall it be in default for any failure or delay in carrying out any of its obligations under this Contract including but not limited to its obligation to deliver any Aircraft on its Scheduled Delivery Date, due to causes not within Sellers reasonable control including, but not limited to, acts of God or the public enemy; war; warlike operations, hostilities, insurrections or riots; fires, floods, or explosions; earthquakes; epidemics or quarantine restrictions, any act of government (including governmental requisitions, restrictions, priorities, decrees, allocations regulations or orders affecting supplies, facilities, aircraft certification or aircraft deliveries); strikes or other labor troubles causing cessation, slowdown or interruption of work; inability after due and timely diligence to procure materials, systems, accessories equipment or parts; inability to timely procure any materials, equipment, accessories, parts or means of transport in accordance with vendor contracts; delays in delivery of said supplies or parts subject to Sellers orders to subcontractors or suppliers having been placed in due time; unfavourable atmospheric conditions for air navigation during flight tests; loss of, damage to, destruction of or accident involving the Aircraft prior to delivery, serious accidents (except loss, damages, destructions and accidents caused by the negligent acts, omissions or wilful misconduct of Seller); or any other cause beyond Sellers reasonable control, and any such failure, including failure by Seller due to Buyers failure to comply with its obligations, shall be considered an Excusable Delay. |
12.2 | Seller shall notify Buyer of any Excusable Delay as soon as practicable following receipt of actual knowledge of the occurrence of any of the above mentioned events which constitute Excusable Delays, but no later than [*****] after such event. Sellers notice shall include a description of the nature of the Excusable Delay and an estimate of the effects expected upon the timing of the performance of its contractual obligations. Upon written request of Buyer, Seller shall thereafter provide with reasonable updates of the Sellers performance under the Contract with respect to such delays. The Seller shall promptly notify Buyer of the resolution of an Excusable Delay. |
12.3 | In the event of an Excusable Delay affecting any Aircraft, Seller obligations under this Contract with, and solely with, respect to such affected Aircraft shall be deferred for such period or periods as may be necessary to perform such obligations and the Scheduled Delivery Date with, and solely with, respect to such affected Aircraft shall be adjusted accordingly, provided, however, that Seller and Buyer shall use commercially reasonable efforts remove any such cause of delay and to mitigate the impact of the event or events on the timing of the delivery of such affected Aircraft. |
For the avoidance of doubt, it is understood that as part of Sellers efforts to remove any cause of delay and to mitigate the impact of event or events on the timing of delivery of any affected Aircraft as set forth above, Seller shall treat Buyer fairly and equally as other ATR aircraft buyers in case other ATR aircraft than Buyers Aircraft are affected by the same causes of delay as Buyers Aircraft.
If the revised delivery month is [*****] after the Schedule Delivery Date, Buyer will accept such Aircraft when tendered for delivery, subject to the following:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(a) | The Pre-Delivery Payment schedule will be adjusted to reflected the revised delivery month; and |
(b) | All other provisions, including BFE delivery dates, shall remain unaffected. |
12.4 | In the event that the delivery of any Aircraft shall be delayed by reason of any one or more of the causes described above in this Clause 12 for a period of more than [*****] after the end of its Scheduled Delivery Date month, either party shall be entitled to terminate this Contract with, and solely with, respect to such undelivered Aircraft, upon written notice given to the other party within [*****] after the expiration of such [*****] period. Such termination shall discharge the parties of all obligations and liabilities hereunder with, and solely with, respect to such undelivered Aircraft, services, data or other items applicable thereto and to be furnished hereunder and Seller shall pay to Buyer an amount equal to [*****] received from Buyer hereunder with, and solely with, respect to such undelivered Aircraft for which this Contract is so terminated, [*****]. If either party does not so terminate this Contract as it relates to such Aircraft, all terms and conditions hereunder applicable to such Aircraft will remain in effect. |
12.5 | In the event that, prior to delivery, any Aircraft is lost, destroyed or damaged beyond repair it shall be deemed an Excusable Delay (subject to the provisions of clause 12.1) and if consequently the Aircraft (or a replacement aircraft) cannot be delivered within [*****] after the end of its Scheduled Delivery Date month, either party shall be entitled to terminate this Contract with, and solely with, respect to such undelivered Aircraft upon written notice given to the other within [*****] after the expiration of such [*****] period. Any termination under this Clause shall discharge the parties of all obligations and liabilities hereunder with, and solely with, respect to such undelivered Aircraft, services, data or other items applicable thereto and to be furnished hereunder. Seller shall pay to Buyer an amount equal to [*****] received from Buyer hereunder with, and solely with, respect to such undelivered Aircraft for which this Contract is so terminated, [*****]. If either party does not so terminate this Contract as it relates to such Aircraft, all terms and conditions hereunder applicable to such Aircraft will remain in effect. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
13 - | INEXCUSABLE DELAY |
13.1 | If any Aircraft is not delivered [*****] its Scheduled Delivery Date month for any reason other than an Excusable Delay as defined in Clause 12.1, such delay in delivery shall be deemed an Inexcusable Delay for the purposes of this Clause. |
13.2 | Buyer shall have the right to claim the liquidated damages specified below in respect of any Aircraft subject to an Inexcusable Delay and the parties agree that such liquidated damages are a reasonable estimate of the amount of damages Buyer would suffer in the event of an Inexcusable Delay. Seller shall pay to Buyer as liquidated damages an amount determined in accordance with the below table per day of Inexcusable Delay commencing on the [*****] after the last day of the Scheduled Delivery Date month and continuing for each additional day thereafter through the earliest of (i) the actual Delivery Date of any such Aircraft, (ii) the date on which Buyer improperly refuses or delays acceptance of any such Aircraft, or (iii) [*****] after the last day of the Scheduled Delivery Month; provided; that, in no event shall Seller be liable to Buyer for damages with respect to any Aircraft in excess of [*****] additional liquidated damages payable pursuant to Clause 18.4(ii) hereof. |
[*****] [*****]
[*****] [*****]
13.3 | In the event the delivery of any Aircraft is delayed by more than [*****] after the last day of its Scheduled Delivery Date month, and such delay is due to Inexcusable Delay, Buyer shall have the right to terminate this Contract with, and solely, with respect to such undelivered Aircraft, which termination shall be effective by providing Seller with written notice of its intent to so terminate within [*****] after the expiration of such [*****] period. Any termination under this Clause 13.3 shall discharge the parties of all obligations and liabilities (excluding any liquidated damages payable by Seller in accordance with the terms of this Clause 13) with, and solely with, respect to such undelivered Aircraft, services, data or other items applicable thereto and to be furnished hereunder. Seller shall pay to Buyer an amount [*****] (with interest at a default per annum rate equal to [*****] up to the maximum amount permitted by applicable laws, such interest being calculated on a daily basis) received from Buyer hereunder with, and solely with, respect to such undelivered Aircraft for which this Contract is so terminated, less an amount corresponding to the expenses incurred to Seller in supplying to Buyer the product support services relating to such undelivered Aircraft. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
13.4 | Buyer acknowledges and agrees that the remedies as provided in this Clause 13 are its sole and exclusive remedies with respect to Sellers failure to deliver any Aircraft (by virtue of Inexcusable Delay) as scheduled and that any payments made pursuant to this Clause are in full and final settlement of all claims, liabilities and damages for late delivery of any Aircraft (by virtue of Inexcusable Delay) or failure to deliver any Aircraft (by virtue of Inexcusable Delay) and that in no event shall Seller be liable to Buyer for any consequential loss or damage. |
13.5 | Buyer shall not be entitled to terminate its obligations to accept and pay for any Aircraft by reason of any delay in delivery except as provided in this Clause 13 or in Clause 12 (Excusable Delay). |
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14 - | INSURANCE AND INDEMNITY |
14.1 | Buyer shall obtain and maintain at its own expense, or cause the Operator to obtain and maintain at its own expense, hull third party and passenger legal liability insurance policies as hereinafter provided in respect of the Aircraft to be effective on transfer of title to Buyer, provided however that the Operators obtaining and maintaining such insurance will relieve Buyer of any obligation to provide such insurance. Prior to such transfer of title all insurance in respect of the Aircraft shall be the responsibility of Seller. |
14.2 | Not less than [*****] before the Scheduled Delivery Date of each Aircraft, Buyer shall deliver or cause to be delivered to Seller a certificate of insurance evidencing the cover required on transfer of title as aforesaid. |
14.3 | At all times following delivery of any Aircraft, in respect of periods during which training of Buyers pilots or the Operators pilot is conducted or expected to be conducted by Seller in respect of any Aircraft, the Aircraft shall in all respects remain at Buyers or Operators risk and Buyer hereby: |
14.3.1 | Indemnifies and holds harmless Seller, each member, each of their affiliates and Sellers employees, directors, agents, subcontractors and officers (the Seller Parties) against all liabilities, obligations, penalties, damages, losses and judgments, costs, attorneys fees and other expenses (including attorneys fees incurred to enforce this indemnity) relating to or arising out either directly or indirectly of flight or ground training performed on the Aircraft in the course of such training which may be asserted, assessed or accrued against or incurred by the Seller Parties by reason of injury to or death of Buyer or the Operators parties (whichever has received the training) arising out of or in connection with such flight or ground training (except to the extent of gross negligence or willful misconduct of the Seller Parties) and waives any claim against the Seller Parties arising out of such flight or ground training unless such claim is made within the terms of the aircraft warranties contained herein, and |
14.3.2 | Undertakes to join Sellers name in Buyers hull, third party and passenger legal liability insurance policies (which shall be taken out and maintained in a manner and with insurers to be reasonably approved in writing by Seller) for the period of such flight or ground training in such a manner that Seller is held harmless under the hull policy and is indemnified as an additional assured under the third party and passenger legal liability insurance policies. The said liability policies of insurance shall provide the following minimum limits of cover: |
(i) | Public liability / property damage / passenger and baggage legal liability, any one accident / occurrence / unlimited in all: [*****]; |
(ii) | The hull policy of insurance shall provide a waiver of recourse by the insurers, whether by subrogation or otherwise, against Seller, its officers, employees, servants, directors or agents. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
15 - | BUYER SPECIFIED EQUIPMENT AND INFORMATION |
15.1 | Upon terms and conditions to be agreed in writing, Seller shall provide for the installation of the equipment to be furnished by Buyer (if any), and designated Buyer Furnished Equipment in Appendix A (Specification) appended hereto. |
Seller shall advise Buyer with sufficient notice to Buyer of the dates by which Seller needs a written detailed description of the dimensions and weight of Buyer Furnished Equipment and information necessary for the installation and operation thereof, so that Seller may meet the Scheduled Delivery Dates of the Aircraft.
At the request of Seller, Buyer will consign at Sellers facilities any spare Buyer Furnished Equipment items of a critical nature, i.e. items that if found unserviceable could impair the assembly, the testing or the acceptance of the Aircraft. Such spare items, if any, will be returned to Buyer with the last delivered Aircraft.
15.2 | Any delay or failure by Buyer in providing the descriptive information or in furnishing Buyer Furnished Equipment giving rise to a delay in the performance of Sellers obligations under this Contract, will result in a delay in the date at which Seller shall be required to meet its obligation to deliver the Aircraft and, if such delay is more than [*****], will cause the Base Purchase Price of the Aircraft concerned to be increased by the amount of Sellers additional costs, if any, and escalation attributable to such delay or failure by Buyer. In no event shall Seller be liable to Buyer for damages or penalties with respect to delay in the date at which Seller shall be required to meet its obligation to deliver the Aircraft, or liable for any damages, including without limitation any other direct, incidental, special or consequential loss or damage resulting from Buyers delay in providing Buyer Furnished Equipment. |
15.3 | Buyer will [*****] arrange for the Buyer Furnished Equipment [*****]. |
15.4 | Title to and risk of loss of any Buyer Furnished Equipment shall at all times remain with Buyer, who may take out an insurance covering such risks. Except as required by non-waivable provisions of applicable law, Seller shall have no responsibility or reliability for Buyer Furnished Equipment. Seller shall however undertake to exercise all due skill and care in the installation of all Buyer Furnished Equipment. |
15.5 | If Buyer requests Seller to directly supply certain items which are considered as Buyer Furnished Equipment as per the Specification and if such request is notified to Seller in due time in order not to affect the Scheduled Delivery Date of the Aircraft, Seller shall order such items subject to the execution of an SCN reflecting the effect on price, escalation adjustment and other possible conditions of the Contract. |
15.6 | For the avoidance of doubt, none of the warranties or guarantees given by Seller shall apply to Buyer Furnished Equipment even in a case of Seller directly supplying them. |
15.7 | Seller shall bear no liability in respect of any product support relating to any Buyer Furnished Equipment, provided that Seller has exercised due skill and care in the installation of any such Buyer Furnished Equipment as required under Clause 15.4 hereof. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
15.8 | BUYER HEREBY INDEMNIFIES AND HOLDS HARMLESS SELLER FROM AND AGAINST ALL CLAIMS AND LIABILITIES, INCLUDING COSTS AND EXPENSES (INCLUDING ATTORNEYS FEES) INCIDENT THERETO OR INCIDENT TO SUCCESSFULLY ESTABLISHING THE RIGHT TO INDEMNIFICATION, FOR INJURY TO OR DEATH OF ANY PERSON OR PERSONS, INCLUDING EMPLOYEES OF BUYER BUT NOT EMPLOYEES OF SELLER, OR FOR LOSS OF OR DAMAGE TO ANY PROPERTY, INCLUDING ANY AIRCRAFT, ARISING OUT OF OR DIRECTLY CONNECTED WITH ANY NONCONFORMANCE OR DEFECT IN ANY BFE. THIS INDEMNITY WILL NOT APPLY WITH RESPECT TO ANY NONCONFORMANCE OR DEFECT CAUSED BY BUYERS INSTALLATION OF THE BFE. |
15.9 | BUYER HEREBY INDEMNIFIES AND HOLDS HARMLESS SELLER FROM AND AGAINST ALL CLAIMS, SUITS, ACTIONS, LIABILITIES, DAMAGES AND COSTS ARISING OUT OF ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS BY BFE OR ARISING OUT OF THE INSTALLATION OR USE OF BFE BY SELLER. |
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Execution version
16 - | CUSTOMER SUPPORT SERVICES, GUARANTEES AND WARRANTIES |
16.1 | Seller shall provide the spare parts services provided for in Appendix D (Spare Parts Procurement), the product warranties provided for in Appendix E (Warranties), the customer support services provided for in Appendices F (Technical Publications), G (Engineering Assistance), H (Start-Up Team), I (Field Service), J (Training) and the guarantees provided for in Appendices L (Performance Guarantees) and M (Dispatch Reliability Guarantee) appended hereto. |
16.2 | Seller shall deliver the Aircraft and spares to Buyer together with applicable documentation and manuals therefor in hard copy or otherwise (below in this Clause collectively referred to as Manuals), and Buyer shall accept the same, with the benefits and subject to all the terms and conditions of the warranties and other provisions contained in Appendix F (Technical Publications). |
16.3 | WAIVER, RELEASE AND RENUNCIATION |
ALL WARRANTIES, SUPPORT SERVICES AND GUARANTEES OF SELLER AND REMEDIES OF BUYER SET FORTH IN CLAUSE 16.1, THE RELATED APPENDICES AND THE BILL OF SALE ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES AND LIABILITIES OF SELLER AND RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO ANY NONCONFORMITY OR DEFECT IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, TRAINING, SERVICES, ACCESSORY OR PART DELIVERED TO AND ACCEPTED BY BUYER UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:
(A) | ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR OR ANY PURPOSE, |
(B) | ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE, |
(C) | ANY OBLIGATION OR LIABILITY OF SELLER OR ANY RIGHT, CLAIM OR REMEDY OF BUYER IN CONTRACT OR IN TORT, WHETHER OR NOT ARISING FROM SELLERS NEGLIGENCE, ACTUAL OR IMPUTED, AND |
(D) | ANY OBLIGATION OR LIABILITY OF SELLER OR ANY RIGHT, CLAIM OR REMEDY OF BUYER FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART, FOR LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART, OR FOR ANY DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, |
PROVIDED THAT IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON IS HELD UNLAWFUL OR OTHERWISE INEFFECTIVE THE REMAINDER OF THIS SECTION 16.3 SHALL REMAIN IN FULL FORCE AND EFFECT.
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Execution version
THE WARRANTIES, SUPPORT SERVICES AND GUARANTEES SET FORTH IN SECTION 16.1 SHALL NOT BE EXTENDED, ALTERED OR VARIED EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY SELLER AND BUYER.
NOTWITHSTANDING THE FOREGOING, THIS CLAUSE 16.3 SHALL NOT APPLY TO ANY DEFECT OR FAILURE IN ANY SERVICE DELIVERED OR PROVIDED BY SELLER UNDER THIS CONTRACT WHERE SUCH DEFECT OR FAILURE WAS CAUSED BY SELLERS GROSS NEGLIGENCE;
16.4 | WITHOUT LIMITING THE WAIVER, RELEASE AND RENUNCIATION SET FORTH IN SECTION 16.3, AND SUBJECT TO SECTIONS 13.2 AND 13.4, BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL CLAIMS TO ANY FURTHER DAMAGES, DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, INCLUDING LOSS OF PROFITS, REVENUE OR USE OF AN AIRCRAFT, AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES, ARISING UNDER OR BY VIRTUE OF A BREACH OF THIS CONTRACT, ANY NONCONFORMITY OR DEFECT IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, TRAINING, SERVICES, ACCESSORY OR PART OR ANY OTHER SELLER NONPERFORMANCE UNDER THIS CONTRACT. |
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Execution version
17 - | OPTION AIRCRAFT & ADDITIONAL AIRCRAFT |
17.1 | In addition to the twenty (20) Firm Aircraft, Buyer shall have the option to purchase ten (10) optional aircraft (the Option Aircraft) as provided for in Appendix N (Option Aircraft). |
17.2 | In addition to the twenty (20) Firm Aircraft and ten (10) Option Aircraft, Buyer shall have the right to purchase ten (10) additional aircraft (the Additional Aircraft) as provided for in Appendix O (Additional Aircraft). |
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18 - | SUPPLY OF INTERIM CAPACITY |
18.1 | Scope |
18.1.1 | In consideration of Buyer acquiring the Aircraft and subject to such acquisition, Seller is willing to assist Buyer to source interim capacity in order to maximize the number of aircraft operated by the Operator starting from December 2010 and subsequently during the years 2011 and 2012. |
18.1.2 | Seller shall procure or cause to procure to the Operator [*****] used ATR 72-200 aircraft (the Used Aircraft) on [*****]. |
In that respect, Seller has at this time identified [*****] used ATR 72-200 aircraft from its own asset portfolio and from [*****] is ready to [*****] to the Operator on a [*****]. The Used Aircraft currently contemplated for [*****] by the Operator are [*****] ATR 72-200 aircraft bearing [*****]. The Lease of such Used Aircraft is subject to entry into mutually acceptable leasing arrangements consistent with Appendix P (Used Aircraft Operating Lease Terms) hereto.
18.1.3 | The availability of the Used Aircraft remains however subject to the receipt by Seller from Buyer of the Used Aircraft [*****], as detailed in Appendix P (Used Aircraft Operating Lease Terms) hereto. |
Seller hereby acknowledges receipt of the Used Aircraft [*****] for the [*****] Used Aircraft to be procured by Seller hereunder.
For the avoidance of doubt, each Used Aircraft [*****] will be [*****] in accordance with the terms of Clause 6.2.7 hereof.
18.1.4 | In addition, Seller reserves the right to replace any of the Used Aircraft listed above by another used ATR 72-200 aircraft bearing a different Manufacturer Serial Number, being understood that such replacement used aircraft may be owned and leased by a third-party lessor or operator. |
18.2 | Used Aircraft Operating Lease Terms |
18.2.1 | The [*****] Used Aircraft shall be available for delivery starting from December 2010 and onwards. |
18.2.2 | The proposed terms relating to the Used Aircraft operating leases, including but not limited to aircraft delivery and return conditions, lease term, rentals and securities are detailed in Appendix P (Used Aircraft Operating Lease Terms) hereto. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
18.2.3 | The specifications of each Used Aircraft will be communicated to the Operator as soon as practicable and at the latest at the stage of each Used Aircraft operating lease agreement negotiation. |
18.3 | Training Services Advance |
Subject to the payment by Buyer to Seller of all pre-delivery payments for each Aircraft then due and payable in accordance with Clause 6.2 hereof, the following training services for the Aircraft may be advanced to be used before the Used Aircraft entry into service so as to ensure adequate Used Aircraft introduction in the Operators fleet:
| Flight crew courses set forth in Clause 3.1 of Appendix J (Training) for the first [*****] Firm Aircraft; |
| Cabin crew courses set forth in Clause 3.2 of Appendix J (Training) for the first [*****] Firm Aircraft; |
| Mechanics courses set forth in Clause 3.3 of Appendix J (Training) for the first [*****] Firm Aircraft; |
| Ground staff courses set forth in Clause 3.4 of Appendix J (Training) for the first [*****] Firm Aircraft; and |
| Customer service assistance set forth in Appendix I (Field Service) hereof. |
Any such advanced training as detailed above will be provided for the ATR 72-200 type where applicable (that is for the avoidance of doubt for the flight crew transition course, flight crew TRI courses, flight attendant instructor courses and mechanics T1 and T1 additional module courses).
The difference courses from the Used Aircraft ATR 72-200 type to the ATR 72-600 Aircraft type will be [*****] by Seller to Buyer for such pilots, flight attendants and mechanics initially trained to ATR 72-200 Used Aircraft type.
For the avoidance of doubt, the right granted to Buyer to benefit from any such training services advance and from any ATR 72-200 to ATR 72-600 difference training shall be assigned by to the Operator in the event of an assignment by the Buyer to the Operator of the training services set forth in Appendix J (Training) and Appendix I (Field Service) hereof.
18.4 | Lease Extension due to Firm Aircraft Delivery Delay |
Should (i) a delay in delivery of a Firm Aircraft lead to a lease extension of any Used Aircraft, and (ii) any Used Aircraft for which a lease extension is so required need airframe check(s) (C / 2Ye / 4Ye / 8Ye / 36,000 Cy) performed during the lease extension period, then during the period of airframe check performance (and solely during such period):
(i) | [*****] and |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
Execution version
(ii) | In case of an Inexcusable Delay, Buyer shall be entitled to supplemental liquidated damages, in addition to the liquidated damages provided in Clause 13.2, in the amount of [*****] for each day of such airframe check performance. |
18.5 | [*****] |
18.5.1 | [*****] |
[*****]
18.5.2 | [*****] |
[*****]
18.5.3 | [*****] |
[*****]
(i) | [*****] |
(ii) | [*****] |
(iii) | [*****] |
(iv) | [*****] |
(v) | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
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18.5.4 | [*****] |
[*****]
[*****] [*****] [*****]
[*****] [*****] [*****]
[*****]
18.5.5 | [*****] |
[*****]
[*****]
18.6 | In case of contradiction and/or inconsistency between this Contract and any Used Aircraft Operating Lease Agreement (as defined in Appendix P (Used Aircraft Operating lease Terms) hereof), any such Used Aircraft Operating Lease Agreement shall prevail. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
19 | MISCELLANEOUS |
19.1 | Save as expressly provided in this Contract, no alteration of the terms of this Contract shall be effective unless contained in a written document signed by Authorised Representatives of both parties. |
19.2 | If a provision of this Contract is or becomes illegal, invalid or cannot be enforced in any jurisdiction, that will not affect: |
19.2.1 | The legality, validity or enforceability in that jurisdiction of any of the other provisions of this Contract; or |
19.2.2 | The legality, validity or enforceability in any other jurisdiction of that or any other provision of this Contract. |
19.3 | This Contract is the whole agreement between Seller and Buyer for purchasing the Aircraft and supersedes and replaces all previous agreements, understandings, commitments or representations whatsoever whether oral or written, including for the sake of clarity the Heads of Agreement executed by and between Seller and Buyer on July 16th 2010. |
19.4 | Buyer and Seller agree that this Contract is an international supply contract which has been the subject of discussion and negotiation, that all its terms and conditions are fully understood by the parties, 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 hereof specifically including all waivers, releases and renunciations by Buyer set out herein. |
19.5 | The time stipulated in this Contract for all payments by Buyer to Seller or by Seller to Buyer and for each party to perform its obligations under this Contract will be of the essence. |
19.6 | Each party shall, and shall use all reasonable endeavours to procure that third parties shall, execute and sign such documents and do such acts and things as any other party shall reasonably request in order to carry out the intended purpose of this Contract or to establish, perfect, preserve or enforce that partys rights under this Contract. |
19.7 | There are no third party beneficiaries of this Contract. No person who is not a party to this Contract shall have, under this Contract, any benefit or right to enforce any of its terms. |
19.8 | The indemnities, waivers, disclaimers and exculpations set forth in this Contract including but not limited to these contained in Sections 14 and 16 shall survive the expiration or termination of this Contract with respect to any or all Aircraft. |
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20 - | TAXES |
20.1 | Seller shall pay, indemnify and hold Buyer harmless from any and all Taxes [*****]. Buyer shall pay, indemnify and hold Seller harmless from [*****]. Upon the request of either Party, the other Party shall execute and deliver to the requesting Party any document reasonably necessary or desirable in connection with an exemption from, reduction of or the contesting of the imposition of any Taxes resulting from or arising in connection with this Contract and the sale of the Aircraft under this Contract. In the event that any Tax that is subject to indemnification pursuant to this Section 20.1 is imposed on a Party, the Party seeking indemnification shall promptly notify the other Party of the imposition of such Taxes, provided that the failure to promptly notify the indemnifying Party will not relieve the indemnifying Party of its obligations pursuant to this Section 20.1 except to the extent that such failure harms the indemnifying Party,. |
20.2 | In addition to the above, and for the sake of clarity, in case of a withholding tax being applied on the payment of the Purchase Price of any Aircraft, Buyer shall make a complementary payment to Seller in an amount equal to the amount of the withholding tax, so that the net amount received by Seller is equal to the amount which would have been received by Seller had no such withholding tax been levied. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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21 - | PATENT INDEMNITY |
21.1 | Seller shall, within [*****] calendar days of notice, indemnify Buyer and Buyers officers, employees, agents and shareholders from and against any damages, costs or expenses including legal costs (excluding damages, costs, expenses, loss of profits and other liabilities in respect of or resulting from loss of use of the Aircraft) resulting from any infringement or claim of infringement of: |
(a) | Any [*****] patent, or |
(b) | Any patent issued under the laws of any other country in which Buyer or the Operator may lawfully operate the Aircraft, provided that: |
(i) | From the time of design of the Aircraft, accessory, spares, equipment or part and until infringement claims are resolved, such country and the flag country of the Aircraft are legally bound by and recognise their obligations and duties under the Chicago Convention on International Civil Aviation of December 7, 1944 and the flag country is fully entitled to all benefits of Article 27 thereof, or, in the alternative, |
(ii) | From such time of design and until infringement claims are resolved such country must either be a party to the International Convention for the protection of Industrial Property, or have in full force and effect patent laws which recognise and give adequate protection to patents issued under the laws of other countries. |
21.2 | Should any unit or part of the Aircraft be held to infringe any patent and should Buyer be enjoined from using same, Seller will then at its option and at its expense: |
(i) | Procure for Buyer the right to use the unit or part thereof free of any liability for patent infringement, or, |
(ii) | Replace as soon as possible the unit or part thereof with a non-infringing substitute otherwise complying with the requirements of this Contract. |
21.3 | If a suit is commenced or threatened against Buyer for infringement or if Buyer receives a written claim alleging infringement, Buyer shall forthwith notify Seller giving particulars thereof and shall use diligent efforts in full co-operation with Seller to reduce royalties, damages, costs and expenses involved and shall, subject to applicable law, furnish to Seller all data, papers, records and other assistance within Buyers knowledge, control or possession, which may be used as material to resistance or defense against such claim or suit. |
Buyer shall refrain from admitting any liability or making any payment or assuming any expenses, damages, costs or royalties for which Seller may be asked to assume liability or otherwise acting in a manner prejudicial to Sellers defense or resistance to such suit or claim.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Seller shall upon demand indemnify Buyer against any damages, costs or expenses (excluding damages, costs, expenses, loss of profits and other liabilities in respect of or resulting from loss of use of the Aircraft) incurred by Buyer in so cooperating with Seller or in performing or omitting to perform any action pursuant to this Clause 21.3.
21.4 | For the avoidance of doubt, the indemnity contained in this Section 21 is subject to the exclusions contained in Article 16.3 and 16.4. |
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22 - | TERMINATION |
22.1 | In the event that either Seller or Buyer: |
22.1.1 | Is unable to or admits in writing its inability to pay its debts generally as they become due or makes a general assignment for the benefit of creditors; or |
22.1.2 | Files a voluntary petition under bankruptcy, reorganization or insolvency laws or if such a petition is filed against Buyer or Seller and such petition is not discharged within [*****]; or |
22.1.3 | Petitions for, or acquiesces in, the appointment of any receiver, trustee, custodian or similar officer to liquidate or conserve its business or any substantial part of its assets; or |
22.1.4 | Commences under the laws of any competent jurisdiction any proceeding involving its insolvency, readjustment of debt, dissolution, liquidation, reorganization or any other similar proceeding for the relief of financially distressed debtors; or |
22.1.5 | Becomes the object of any proceeding or action of the type described in Subsections 22.1.3 or 22.1.4 above relating to a substantial part of its assets and such proceeding or actions remains undismissed or unstayed for a period of at least [*****]; or |
22.1.6 | Is divested of a substantial part of its assets, or suspends a substantial part of his business, or ceases doing business for a period of at least [*****]; or |
22.1.7 | Is subject to an order for relief under the United States bankruptcy code, |
then the other party may, to the full extent permitted by law, by written notice terminate all or part of this Contract.
22.2 | If Buyer fails, in breach of this Contract, to: |
22.2.1 | Pay any Pre-Delivery Payment set forth in Clause 6.2 with respect to any Aircraft on the due date for such payment; or |
22.2.2 | Take delivery of any Aircraft when tendered for delivery in accordance with the terms of this Contract; or |
22.2.3 | Deliver the signed Certificate of Acceptance to Seller for any Aircraft in compliance with Clause 10.9; or |
22.2.4 | Pay the Purchase Price to Seller for any Aircraft in compliance with Clause 11.1; or |
22.2.5 | Perform or comply with any material obligation expressed to be assumed by Buyer under this Contract with respect to any Aircraft or under any Used Aircraft operating lease, |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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and such failure (a Buyer Default) continues for a period of more than [*****] after the receipt of notice by Buyer from Seller to correct such failure, then Seller may without prejudice to its other rights under this Contract, by written notice to Buyer:
(a) | Terminate this Contract by written notice to Buyer with, and solely with respect to any such Aircraft for which Buyer has defaulted in its obligations; and/or |
(b) | Proceed by appropriate court action or actions to enforce performance of this Contract, including without limitation the payment of all other amounts due by Buyer to Seller pursuant to this Contract; and/or |
(c) | Proceed by appropriate court action to recover damages for breach of this Contract. |
Any termination under this Clause 22.2 shall discharge the parties of all obligations and liabilities hereunder with, and solely with, respect to such Aircraft for which the Contract is so terminated and any related services, data or other items applicable thereto and to be furnished hereunder and, Seller, without prejudice to any other rights and remedies available to it under this Contract or by law, shall be entitled to [*****] under this Contract with, and solely with, respect to any such Aircraft for which the Contract is so terminated.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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23 - | TERMINATION PROCEDURE |
23.1 | To the fullest extent permitted by law, the termination of this Contract, pursuant to Clause 22 (Termination) shall become effective immediately upon receipt by the relevant party of the written notice sent by the other party without it being necessary for either party to take any further action or to seek any consent from the other party or any court having jurisdiction. |
23.2 | The right of the parties to terminate this Contract shall be without prejudice to any other rights and remedies available to such party to seek termination of this Contract before any court having jurisdiction pursuant to any failure by the other party to perform its obligations under this Contract. |
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24 - CONFIDENTIAL NATURE OF CONTRACT AND INFORMATION
24.1 | This Contract is confidential between the parties and shall not without prior written consent of the other party be disclosed by either party in whole or in part to any other person or body except (i) their employees, attorneys, accountants, financial advisors, lenders (including for the sake of clarity any entity with whom Buyer may enter into a sale and lease back transaction), investors and consultants having a need to know for the purpose of implementing the provisions of this Contract and only to the extent that such persons are bound by similar confidentiality covenants and that the relevant party has been informed in writing of the disclosure of this Contract to such persons or (ii) as may be required under law or by government entities or (iii) insofar as may be necessary for either party to carry out its obligations under applicable laws or regulations. |
24.2 | Any and all studies, reports, analyses, forecasts, or other documents relating to traffic, revenue, or costs predicted in connection with the Operators possible use of the Aircraft given or made available to Buyer, whether prepared in whole or in part by Seller or at Sellers direction, shall, if used by Buyer, be a matter wholly for Buyers judgment and in no circumstances shall Seller be liable to Buyer or any third party for any consequences that may flow from such use and Buyer indemnifies Seller in respect of any such liability to any third party. Such documents are confidential and shall not without prior written consent of Seller be disclosed in whole or in part by Buyer to any third party except (i) as may be necessary under any applicable law and (ii) to the extent such information or documents are or become part of the public domain. |
24.3 | Except as may be reasonably required for the normal operation, maintenance, overhaul and repair of the Aircraft, Buyer shall hold confidential all technical data, documents and information supplied by or on behalf of Seller and shall not reproduce any such technical data, documents or information or divulge the same to any third party without the prior written consent of Seller except (i) as may be necessary under any applicable law and (ii) to the extent such information or documents are or become part of the public domain. |
24.4 | The submission of such studies, reports, analyses, forecasts, or other documents referred to above, and any use made thereof by Buyer or Seller, shall in no circumstances constitute a joint venture, partnership or other similar relationship between Seller and Buyer. |
24.5 | If applicable law requires disclosure, the parties hereto will coordinate the timing of such disclosure. |
24.6 | Either party may announce the signing of this Contract by means of a notice to the press, subject to prior approval of the other party and provided always that the other party has agreed in advance to the content of such notice. |
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25 - | COLLATERAL AGREEMENTS AND REPRESENTATIONS |
25.1 | The parties have negotiated this Contract (and the other related agreements entered into between the parties on the date hereof) on the basis that the terms and conditions set out herein represent the entire agreement between them relating in any way whatsoever to the Aircraft, services and spares which form the subject matter of this Contract and accordingly they agree that all liabilities for and remedies in respect of any representations made are excluded save insofar as provided in this Contract (and the other related agreements entered into between the parties on the date hereof). Neither party shall have any claim against the other on the grounds that it has placed any reliance whatsoever on any representations, agreements, statements, or understandings, whether oral or in writing, made prior to the date of this Contract, other than those expressly incorporated or recited in this Contract (or any other related agreement entered into between the parties on the date hereof). |
25.2 | No studies, reports, analyses, forecasts, or other documents relating to traffic, revenue, or costs predicted in connection with Buyers possible use of the Aircraft prepared by or at the direction of Seller and given to Buyer shall constitute or evidence warranties, representations, or any contractual or other commitments on the part of Seller and do not form part of this Contract, and Buyer waives any claims against Seller that it has placed any reliance on any statement in any such document for any purpose. All assumptions reflected in any such documents are based on information available to Seller when prepared and are subject to change. The accuracy and reliability of such information varies according to the availability of information to Seller. Accordingly, conclusions based on these assumptions are indicative only and Seller disclaims responsibility and Buyer accepts that Seller is not liable for any decisions made, expenses incurred, or opportunities foregone by Buyer after receipt of any such document or information. |
25.3 | Seller represents to Buyer that, at the date of execution of this Contract and on each successive Delivery Date: |
(1) | It is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation; |
(2) | It has the power to own its assets and to carry on its business as it is being conducted; |
(3) | The obligations expressed to be assumed by it in this Contract are legal, valid, binding and enforceable obligations; |
(4) | It has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into and performance of this Contract and the transactions contemplated by this Contract; and |
(5) | All Authorisations required or desirable (a) to enable it lawfully to enter into, exercise its rights and comply with its obligations under this Contract, and (b) to make this Contract admissible in evidence in its jurisdiction of incorporation have in each case been obtained or effected and are in full force and effect. |
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The representations made in this Clause 25.3 are made by Seller on the date of execution of this Contract and on each Delivery Date.
25.4 | Buyer represents to Seller that, at the date of execution of this Contract and on each Delivery Date: |
(1) | It is a corporation, duly incorporated and validly existing under the law of its jurisdiction of incorporation; |
(2) | It has the power to own its assets and to carry on its business as it is being conducted; |
(3) | The obligations expressed to be assumed by it in this Contract are legal, valid, binding and enforceable obligations; |
(4) | It has the power to enter into, perform and deliver, and has taken all necessary action to authorize its entry into and performance of this Contract and the transactions contemplated by this Contract; and |
(5) | All Authorisations required or desirable (a) to enable it lawfully to enter into, exercise its rights and comply with its obligations under this Contract, and (b) to make this Contract admissible in evidence in its jurisdiction of incorporation have in each case been obtained or effected and are in full force and effect. |
The representations made in this clause 25.4 are made by Buyer on the date of execution of this Contract and on each Delivery Date.
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26 - | ASSIGNMENT OF CONTRACT |
26.1 | This Contract is not assignable in whole or in part without the prior written consent of the other party except; |
26.1.1 | Buyer may assign its rights to purchase the Aircraft for the purpose of financing of the Aircraft, in whole or in part, provided, however, that Buyer so notifies Seller in writing in advance, and such assignment is subject to the limitations of this Contract; |
26.1.2 | Assignment of Warranties, Product Support, Training and other rights and obligations to the Operator. |
Buyer intends to lease each of the Aircraft to the Operator. In connection with the lease of the Aircraft, Seller hereby consents that Buyer assigns to the Operator its rights and obligations relating to any Used Aircraft as well as to any warranties, guarantees, spare parts procurement, technical publications, technical assistance, training and other product support services, including but not limited to the following Clauses and Appendixes, provided however that such assignment shall not incur obligations for Seller in addition to the obligations under this Contract:
| Clause 16 (Customer Support Services, Guarantees and Warranties) |
| Clause 18 (Interim Aircraft) |
| Appendix D (Spare Parts Procurement) |
| Appendix E (Warranties) |
| Appendix F (Technical Publications) |
| Appendix G (Engineering Assistance) |
| Appendix H (Start-Up Team) |
| Appendix I (Field Service) |
| Appendix J (Training) |
| Appendix L (Performance Guarantee) |
| Appendix M (Dispatch Reliability Guarantee) |
Such assignment will be accomplished by a tripartite agreement entered into by and between Seller, Buyer and the Operator. Pursuant to any such assignment, the Operator shall be bound to the same confidentiality provisions as the Buyer with respect to disclosure and reproduction of all technical data, documents and information supplied by or on behalf of Seller.
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26.1.3 | Seller may assign in whole or in part any of its rights to receive money hereunder; and |
26.1.4 | Sellers interest in this Contract shall be assignable in pursuance of any merger, consolidation or re-organisation or voluntary sale or transfer of all or substantially all Sellers assets. |
26.2 | Notwithstanding any assignment of this Contract under clause 26.1.1 or 26.1.2, Buyer shall remain fully liable to Seller to perform all the obligations and duties of Buyer hereunder and the exercise by any assignee of any of the rights assigned shall not release Buyer from any of its duties or obligations to Seller under this Contract, save to the extent that such exercise by the assignee shall constitute performance of such duties and obligations. |
26.3 | Notwithstanding any assignment of this Contract under clause 26.1.3 or 26.1.4, Seller shall remain fully liable to Buyer to perform all the obligations and duties of Seller hereunder and the exercise by any assignee of any of the rights assigned shall not release Seller from any of its duties or obligations to Buyer under this Contract, save to the extent that such exercise by the assignee shall constitute performance of such duties and obligations. |
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27 - | APPLICABLE LAW & ARBITRATION |
27.1 | Governing Law |
Pursuant to and in accordance with Section 5-1401 of the New York General Obligations Law, the parties hereto agree that this Contract in all respects shall be governed by, and construed in accordance with, the laws of the State of New York, U.S.A. as applied to contracts to be performed wholly within the State of New York (Exclusive of Section 7-101 of the New York General Obligations Law which is inapplicable to this Contract).
27.2 | Arbitration |
27.2.1 | Any dispute (a Dispute) arising out of or in connection with this Contract (including a dispute regarding the existence, validity or termination of this Contract or the consequences of its nullity) shall be referred to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (ICC) (the Rules), which Rules are deemed to be incorporated by reference into this arbitration agreement. |
27.2.2 | The arbitral tribunal shall consist of three (3) arbitrators. The seat of arbitration shall be New York, U.S.A. All hearings shall take place in New York, New York and the language of the arbitration shall be English. |
27.2.3 | The governing law of this arbitration agreement shall be the substantive laws of the State of New York, U.S.A. |
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28 - | NOTICES |
28.1 | Any notices to be served hereunder may be addressed in the case of Seller: |
By post to Avions de Transport Regional
1 Allée Pierre Nadot
31712 Blagnac Cedex
France
Attention: Senior Vice President Commercial
By facsimile to +33 5 6221 6336
By email to: contracts@atr.fr
and in the case of Buyer:
By post to Canela Investments LLC
c/o Azul Linhas Aéreas Brasileiras S/A
Alameda Surubiju, 2010
Alphaville Industrial, Barueri
Sao Paulo
Brazil
Attention: Vice President / Legal Director
By facsimile to +55 11 4134 9890
By email to: contratos@voeazul.com.br
28.2 | All notices and requests required or authorised hereunder shall be given in writing either by personal delivery to an Authorised Representative of the party to whom the same is given or by registered mail (return receipt requested) or by facsimile and the date upon which any such notice or request is so personally delivered or if such notice or request is given by facsimile, the date upon which it is received by the addressee shall be deemed to be the effective date of such notice or request, provided that the sender has received oral or written confirmation from the recipient that all pages of the notice or request were received in legible form. Advance copies may however be delivered by email to the electronic addresses set forth above. |
28.3 | All notices, communications and documents to be given under this Contract shall be in English. If they are not in English, they must be given with a certified English translation. If there is any difference between the English version of any notices given or to be given in connection herewith and any version in any other language, the English version will apply. |
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IN WITNESS WHEREOF the parties have signed this Contract in two (2) original copies in the English language on the date first above written, each party acknowledging receipt of one such copy.
For and on behalf of: CANELA INVESTMENTS LLC |
||||||
Signature: | /s/ Gerald B. Lee |
|||||
Name: | Gerald B. Lee | |||||
Title: | Managing Director | |||||
Date: | 14/12/2010 | |||||
For and on behalf of: AVIONS DE TRANSPORT REGIONAL |
||||||
Signature: | /s/ Filippo Bagmato |
|||||
Name: | Filippo Bagmato | |||||
Title: | CEO HTR | |||||
Date: | 14/12/2010 | |||||
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SPECIFICATION
The ATR 72-600 Technical Specification DO/T 3864/07 dated May 2008 is issued as a separate document. It is amended in accordance with the following list.
1 | ATR 72-600 TECHNICAL SPECIFICATION DO/T 3864/07 DATED MAY 2008 |
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u | Two Pratt & Whitney PW 127M engines & Hamilton/Ratier 568F propellers |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] | [*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
Delivery Month
July 2010
October 2011 November 2011 December 2011 January 2012 February 2012 March 2012 April 2012 May 2012 June 2012 July 2012 August 2012 September 2012 October 2012 November 2012 December 2012 January 2013 February 2013 March 2013 April 2013 May 2013 June 2013 July 2013 August 2013 September 2013 October 2013 November 2013 December 2013 January 2014 February 2014 March 2014 April 2014 May 2014 June 2014 July 2014 August 2014 September 2014 October 2014 November 2014 December 2014 |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Delivery Month
January 2015 February 2015 March 2015 April 2015 May 2015 June 2015 July 2015 August 2015 September 2015 October 2015 November 2015 December 2015
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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LIST OF DOCUMENTS EXCHANGED AT AIRCRAFT ACCEPTANCE
1 | CERTIFICATES |
1.1 | Type airworthiness certificate |
1.2 | Type certificate of nuisance limitation |
1.3 | Airworthiness Certificate for Export |
1.4 | Noise limitation certificate for export |
1.5 | Certificate of radio compliance for export |
1.6 | Non registration and non mortgage certificate |
1.7 | Temporary permit to fly (unless not granted by Civil Aviation Authority) |
2 | TECHNICAL DOCUMENTATION |
2.1 | ATR 72-600 Specification |
2.2 | Design standard SCN / Option list |
2.3 | Aircraft Modification List |
2.4 | Aircraft Inspection Report |
2.5 | Airworthiness Directives Compliance Check List |
2.6 | Aircraft Component List (sorted by ATA chapter) CD / Hard Copies |
2.7 | Log Books |
Aircraft Log Book
Engine Log Books (LHRH)
Turbomachine (LHRH)
Gearbox reduction (LHRH)
List of engines components (RHLH)
List of Service Bulletins embodied on Engines (LHRH) Propellers Log Books (LHRH)
Landing Gear Log Book
Main (LHRH)
Nose
Batteries Log Books
2.8 | Loose / emergency equipment list |
2.9 | Weight and balance report |
2.10 | Commitment Letter (if any) |
2.11 | Technical Publications |
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SPARE PARTS PROCUREMENT
CONTENTS
1 | GENERAL |
1.1 | Preamble |
1.2 | Support Period |
1.3 | Warranties |
2 | INITIAL PROVISIONING |
2.1 | Initial Provisioning Purchase Orders |
2.2 | Initial Provisioning Data |
2.3 | Initial Provisioning Conference |
2.4 | Initial Provisioning Ordering & Delivery |
2.5 | Initial Provisioning Investment Forecast |
2.6 | Initial Provisioning Investment Buy-Back |
3 | INVENTORY |
3.1 | General |
4 | RE-PROVISIONING |
4.1 | General |
4.2 | AOGs |
4.3 | Critical/Routine Orders |
5 | PACKAGING |
6 | DELIVERY |
7 | PRICING |
7.1 | Sellers Price Catalogue |
7.2 | Quotations |
7.3 | Cancellation Charges |
8 | PAYMENT AND TRANSFER OF TITLE |
9 | SPARES SERVICES |
9.1 | Standard Exchange and Repair Services |
9.2 | Lease Service |
EXHIBIT A: SPARE PARTS SERVICES
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1 | GENERAL |
1.1 | Preamble |
This Appendix D describes the terms and conditions of the support that will be provided by Seller (or a designated partner) to Buyer in respect of the spares falling into the following spares usage categories:
UC 1: Manufacturer proprietary items (Proprietary Items)
UC 2: Vendors units (Vendors Units)
UC 7: Vendors units breakdown parts (Vendors Breakdown Parts)
UC 8: Modification Kits
UC 9: Repair Kits
It shall be noted that Aviation Logistics shall provide spare support for spares falling into the following spares usage categories:
UC 3: Hardware and standard items (Hardware)
UC 5: Raw and bulk materials (Raw & Bulk Materials)
UC 6: Ingredients (Ingredients)
It shall be also noted the ECA Sinters shall provide spare support for spares falling into the following spares usage category:
UC 4: Tools, test and ground support equipment (GSE)
Should Buyer request so, GSE and tooling shall be furnished through ATR by ECA Sinters.
1.2 | Support Period |
During a period commencing with the date hereof and continuing as long as at least [*****] aircraft of the ATR model are operated in commercial air transport service (the Support Period), Seller will maintain or have maintained a reasonable stock as defined in Clause 3 of this Appendix and will furnish interchangeable and/or equivalent products adequate to meet Buyers needs for repairs and replacements on all Aircraft of the above mentioned model. Such spares will be sold and delivered with reasonable promptness upon receipt of Buyers orders.
Seller shall use its best efforts to obtain a similar service from all Vendors for ATR parts that are originally installed on Aircraft and not manufactured by Seller.
1.3 | General Terms & Conditions |
Unless otherwise stated herein, the general sales conditions applicable to spares sales and spares support and services are detailed in the ATR Terms and Conditions of Sales of Goods and Services, available on-line or on Sellers support web site.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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2 | INITIAL PROVISIONING |
2.1 | Initial Provisioning Purchase Orders |
Buyers purchase orders of spares addressed to Seller shall be considered as initial provisioning purchase orders (IP Purchase Orders) provided they are received by Seller within [*****] following the delivery of any Aircraft or Used Aircraft. All spares delivered pursuant to such IP Purchase Orders shall be considered as initial provisioning spare parts package (IP Spares).
2.2 | Initial Provisioning Data |
Initial provisioning data (IP Data) for both the Aircraft and the Used Aircraft shall be furnished by Seller to Buyer as soon as available in the form of listing or computer file providing Buyer with the necessary evaluation time and allowing the on-time delivery of the IP Spares.
Seller shall prepare and furnish to Buyer the following data in the English language.
2.2.1 | Sellers Data |
Seller will provide to Buyer the following:
(i) | A list of long lead time items and main components of the Aircraft and Used Aircraft as advanced data, on hard copy at a time to be mutually agreed; |
(ii) | A complete initial provisioning recommendation that includes Proprietary Items, Vendors Units, Hardware and Ingredients at the IP Conference (as defined below); and |
(iii) | A customised recommendation of GSE and Raw & Bulk Material as required for the maintenance of the Aircraft and maintenance of the Used Aircraft. |
2.2.2 | IP Data compliance and configuration guarantee |
Seller shall ensure that its IP Data supplied to Buyer shall comply with the latest certification standard of the Aircraft or with the specification of the Used Aircraft and that said data will allow spares orders consistent with the status of the parts installed on Buyers Aircraft or Used Aircraft.
This provision shall not cover the parts incorporated on Buyers Aircraft or Used Aircraft as a consequence of Buyers modifications unknown to Seller and not designed nor agreed by Seller.
2.2.3 | Cross reference / interchangeable parts listing |
Seller shall also supply to Buyer a list of cross reference/interchangeable parts including hardware, sealant, adhesives, and electrical connectors. Such listing shall cross reference parts to standard aeronautical (AN), military (MS) or other norms.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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2.3 | Initial Provisioning Conference |
Seller shall organise on Buyers request an initial provisioning conference (the IP Conference) for the purpose of preparing the initial provisioning of spare parts to Buyer. The IP Conference will take place at Sellers premises or at any other mutually agreed location as early as possible after execution of this Contract.
2.4 | Initial Provisioning Ordering & Delivery |
2.4.1 | Buyers IP Purchase Orders shall be placed no later than [*****] following the IP Conference. |
2.4.2 | In order to ensure the operation of Buyers Aircraft, and subject to the IP Purchase Orders being placed as mentioned here above, Seller shall deliver the IP Spares relating to the Aircraft and included in the initial provisioning as follows: |
(i) | At least [*****] of the quantities of each item ordered for each block of Aircraft (a block of Aircraft being defined as [*****] Aircraft to be delivered in sequence), one [*****] prior to delivery of the first Aircraft of each such block of Aircraft to Buyer. |
(ii) | [*****] of the quantities of each item ordered for each block of Aircraft (the IP Block) [*****] after the delivery of the first Aircraft of each such block of Aircraft to Buyer. |
In the event that, [*****] after the delivery of the first Aircraft of each such block of Aircraft to Buyer, less than [*****] of IP Block relating to each such block of Aircraft is delivered by Seller to Buyer, then Seller shall provide Buyer with a credit equal to (i) [*****] minus [*****] of the IP Block relating to each such block of Aircraft delivered by Seller to Buyer, up to a maximum of [*****] multiplied by the (ii) aggregate value of the undelivered portion of the IP Block ordered by the Buyer.
2.4.3 | Seller shall ensure that during the Initial Provisioning phase, the parts manufactured by Seller or its subcontractors shall be supplied in conformity with the latest configuration standard of the Aircraft. Otherwise, Seller or its subcontractors shall replace such items at [*****]. |
2.5 | [*****] |
[*****] | [*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] | [*****] |
[*****] |
[*****] | [*****] [*****] |
[*****] | [*****] [*****] |
[*****] |
[*****] | [*****] |
[*****]
[*****]
3 | INVENTORY |
Seller undertakes to keep a sufficient inventory of spare parts in its own stores, including spare parts as defined in Clause 1.1 of this Appendix D, and shall supply interchangeable and/or alternate items to meet the demand and shipping schedule requirements made known by Buyer for replacement or repair purposes.
4 | RE-PROVISIONING |
4.1 | General |
Seller shall support Buyers re-provisioning orders of spare parts from its spares centres.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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4.2 | AOGs |
Seller will provide a twenty-four (24) hours per day, seven (7) days a week emergency service, inclusive of holiday periods, to allow the supply of the concerned spare part(s) available in Sellers stores, workshops and production line, including high-cost/long lead time spare parts.
Seller will respond to Buyers AOG notice within [*****] after receipt of an AOG order and ship [*****] from its warehouse within [*****].
4.3 | Critical / Routine Orders |
4.3.1 | Critical Orders |
Seller will respond to Buyers critical order within [*****] and will endeavour to ship [*****] from its warehouse the parts within [*****] lead-time.
4.3.2 | Routine Orders |
Seller will respond to Buyers routine order within [*****] and will endeavour to ship [*****] from its warehouse the parts within [*****] lead-time.
4.3.3 Slow moving items sourced by Seller on a back to back order basis: [*****] from the date of receipt of the order.
4.3.4 | Other items (insurance items, modification kits ) will be quoted upon request. |
Exact delivery lead-time will be confirmed to Buyer upon acknowledgement of his order and will supersede any previous information.
5 | PACKAGING |
5.1 | All prices shall include packaging according to ATA SPEC 300 category 3 or category 2 (as appropriate). Seller shall provide for spare parts if so requested by Buyer with an order packaging according to ATA SPEC 300 category 1 at cost price less Sellers cost for category 2 packaging. Seller accepts the burden of proof of proper packaging of spare parts shipped to Buyer. |
5.2 | Seller shall include in and fasten outside all shipping containers either packaging cards prepared in accordance with ATA SPEC 200 or packaging sheets at Buyers choice. Seller shall also include in the container copy of the pro-forma invoice for customs clearance. |
6 | DELIVERY |
6.1 | All shipment of new and used parts must be accompanied by documentation substantiating their condition such as EASA form one / FAA 8130-3 / Certificate of Conformity / test reports (as applicable), and with respect to life limited parts, time since installation (TSI), time since overhaul (TSO) and time since new (TSN). |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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6.2 | Should the Buyer find damage or functional faults affecting the delivered part, or deviations from the purchase order specification, Buyer shall be entitled to return subject part within (30) days after receipt at Sellers or its subcontractors expense. |
6.3 | Late Delivery |
6.3.1 | In the event of a delay in delivery of any spare part other than a structural part (ATR Proprietary Item) beyond the timeframe provided in Section 4.2 and 4.3.1 of this Appendix D and such delay is not due not an Excusable Delay, the provisions of this Clause 6.3 shall apply. |
6.3.2 | Subject always to 6.3.1 above, if Seller does not deliver a spare part within the timeframe provided in Section 4.2 and 4.3.1 of this Appendix D, Seller shall issue to Buyer a credit equal to [*****] of the spare part purchase price for every additional day beyond the timeframe provided in Section 4.2 and 4.3.1 of this Appendix D, such amount to be capped at [*****] of the spare parts purchase price. |
6.3.3 | In addition to the delay remedies provided in 6.3.2 above, if a spare part relating to an AOG notice is not shipped within the guidelines set forth in Clause 4.2 of this Appendix D, Seller shall issue to Buyer a credit equal to [*****] of the purchase price of the spare part for every [*****] the part is delayed before shipment to Buyer, such amount to be capped at [*****] of the spare parts purchase price, provided always that the number of spare parts purchased by Buyer to Seller on an AOG basis does not exceed [*****] of the total number of spare parts purchased by Buyer to Seller. |
6.3.4 | The damages as set forth in Sections 6.2.2 and 6.2.3 of this Appendix D shall be paid by Seller only if : |
(i) | Buyer has ordered from Seller to the mutually agreed quantities and at the mutually agreed dates as specified in the Initial Provisioning Conferences, and has kept at all times an on-site stock of spare part comparable in terms of value and quantities to the on-site stock value and quantities agreed during the Initial Provisioning Conferences (subject to any adjustment pursuant to Clause 2.5 of this Appendix D); or |
(ii) | Buyer has placed routine orders within published lead times. |
7 | PRICING |
The provisions contained in this Clause 6 will apply to both initial provisioning and re- provisioning orders.
7.1 | Sellers Price Catalogue |
Price for Proprietary Items, Vendors Units or other spare parts will be provided directly through the ATR support web site (the Spare Parts Catalogue).
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Spare Parts Catalogue prices shall be effective at the date of issue of each year. However, ATR reserves the right to increase or decrease said Spare Parts Catalogue prices during that one (1) year period in case of significant and justified error in the published price of an item in the Spare Parts Catalogue or, in particular for the Non Proprietary Items, in case of change of price from the Vendor or supplier.
Every year, upon:
Application of specific indexation mechanism included in each suppliers contract,
Negotiations performed with vendors,
Feedback information from ATR customer base and suppliers network,
World wide spares market assessment,
ATR will ensure that the variations applied to its pricing policy remain in line with the variations applied during the year in the regional aircraft market.
All prices listed in ATR Spare Parts Catalogue are expressed in Dollars or Euros on ex-works basis (Incoterms 2000 definition), and exclusive of all taxes and duties.
7.2 | Quotations |
Prices for items not published in the Spare Parts Catalogue will be quoted within [*****] for procurable items (items having a part number) and [*****] for non-procurable items (items not having a part number) from Buyers request for quotation. Seller shall provide service bulletin kit prices within [*****] from service bulletin approval.
7.3 | AOG or Expediting Fees |
Buyer shall not be bound to pay any AOG or expediting fee of any kind for AOG spare parts orders.
7.4 | [*****] |
7.4.1 | [*****] |
[*****]
[*****]
[*****]
7.4.2 | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
[*****]
[*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
[*****] [*****]
[*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] [*****]
[*****]
[*****]
7.5 | Cancellation charges |
In the event Buyer elects to cancel a spare parts order already received by Seller, Seller may, at its discretion, charge Buyer a cancellation fee for refusing to take delivery of all or part of the goods according to the figures set out in this Clause 7.5.
The cancellation charges that Seller is entitled to recover are expressed as a percentage or the total of the then current brand new price of the spares covered by the order, which percentage is depending on the elapsed time from the order date as set out below:
| If the order is cancelled between [*****] days before the estimated delivery date, then [*****] of the amount of the order will be charged to Buyer |
| If the order is cancelled between [*****] days before estimated delivery date, then [*****] of the amount of the order will be charged to Buyer |
| If contract is cancelled between [*****] days before estimated delivery date, then [*****] of the amount of the contract will be charged to Buyer |
| If the order is cancelled [*****] days or more before estimated delivery date, then [*****] cancellation charges will apply |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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8 | PAYMENT AND TRANSFER OF TITLE |
8.1 | Payment shall be made by Buyer to Seller within [*****] from the date mentioned on the invoice or invoice statements. |
In the event of any delayed payment under this Appendix C, Seller is entitled to damages from Buyer at the default rate as per article 6.7 of this Contract. These damages will be calculated from the [*****] after the date mentioned on the invoice or invoice statements until the date payment is received by Seller and will be applicable to any outstanding amount due by Buyer to Seller.
8.2 | Property in and title to the spares parts will not pass to Buyer until the relevant price is fully paid to Seller. |
9 | SPARES SERVICES |
9.1 | Standard Exchange and Repair Services |
A standard exchange and repair service will be provided by Seller for some overhaulable / repairable items including Vendors Units and Airframe parts listed in Exhibit A to this Appendix D. The applicable conditions will be set forth in the spares support and services catalogue as published on ATR support website and/or in separate documents, as applicable.
9.2 | Lease Services |
A lease service will be provided by Seller and shall apply to:
(i) | Airframe parts listed hereto as Exhibit A to this Appendix |
(ii) | Components listed in the spares support & services catalogue as published on ATR support website. |
The applicable terms and conditions will be set forth in the spares support & services catalogue and/or in separate documents, as applicable.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
EXHIBIT A TO
APPENDIX DCLAUSE 9
SPARE PARTS SERVICES
List of Insurance Items eligible for repair, lease or standard exchange:
| DOOR ASSY ENTRY |
| DOOR ASSY HATCH |
| DOOR ASSY EMERGENCY |
| DOOR ASSY CARGO |
| DOOR ASSY SERVICE |
| DOOR ASSY LH LANDING GEAR |
| DOOR ASSY RH LANDING GEAR |
| ELEVATOR LH WITH TABS |
| ELEVATOR RH WITH TABS |
| RUDDER ASSY |
| TAIL CONE ASSY |
| AIR INTAKE DUCT |
| AIR INLET STRUCTURE |
| LEADING EDGES |
| FLAPS ASSY INBOARD |
| FLAPS ASSY OUTBOARD |
| AILERON ASSY LH |
| AILERON ASSY RH |
| SPOILER LH |
| SPOILER RH |
| ENGINE MOUNT ASSY |
| ENGINE COWLS |
| ENGINE NACELLE FAIRING |
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WARRANTIES
1 | SELLERS WARRANTY |
1.1 | Sellers Warranties on Aircraft |
Subject to Clause 1.4 (Warranty Period), 1.5 (Exclusions) and 2 (Vendor Warranties) hereof, Seller warrants to Buyer that each Aircraft shall, at the time of its delivery to Buyer:
(i) | Be free from defects in material; |
(ii) | Be free from defects in workmanship (including processes of manufacture); |
(iii) | Be free from defects in design (including selection of materials) having regard to the state of the art at the date of its design; and |
(iv) | Be free from defects arising from failure to conform to the Specification of the Aircraft, except to those portions of the Specification where it is expressly stated that they are estimates, approximations or design aims. |
1.2 | Sellers Warranties on Seller Parts |
Subject to Clause 1.4 (Warranty Period) and Clause 1.5 (Exclusions) hereof, Seller warrants to Buyer that each Seller Part shall, at the time of delivery of the Aircraft to Buyer:
(i) | Be free from defects in material; |
(ii) | Be free from defects in workmanship (including processes of manufacture); |
(iii) | Be free from defects in design (including selection of materials) having regard to the state of the art at the date of its design; and |
(iv) | Be free from defects in its installation in the Aircraft. |
1.3 | Sellers Warranties on Vendor Parts |
1.3.1 Subject to Clause 1.4 (Warranty Period) and Clause 1.5 (Exclusions) hereof, Seller warrants to Buyer that each Vendor Part shall, at the time of delivery of the Aircraft to Buyer:
(i) | Be free from defects in its installation in the Aircraft; |
(ii) | Be suitable for its intended use; and |
(iii) | Be installed in such a manner as not to invalidate any Vendor Warranties. |
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1.4 | Warranty Period |
Sellers Warranties shall be limited to those defects that become apparent within:
| For the warranty in respect of defects in design, [*****] months; and |
| For the warranty in respect of other defects, [*****] months or [*****] (whichever shall first expire) |
after delivery of the Aircraft (the Sellers Warranty Period)
1.5 | Exclusions |
1.5.1 | Buyers rights under Sellers Warranties are subject to the Aircraft and Seller Parts being maintained, overhauled, repaired and operated in accordance with instructions issued by Seller, or with the instructions issued or approved by Buyers Airworthiness Authorities. |
1.5.2 | Sellers liability under Sellers Warranties shall not extend to fair wear and tear nor to: |
(i) | Any Aircraft or Seller Part which either (a) has been repaired, altered or modified after delivery except by Seller or in a manner approved or authorised by Seller or (b) which has not been properly serviced or maintained as required under the Manuals, Technical Publications or by relevant aviation authorities; |
(ii) | Any Aircraft or Seller Part which has been operated by Buyer in its damaged state subsequent to its involvement in an accident (except during the flight on which such damage has occurred), or for any other reason; |
(iii) | Seller Parts from which the manufacturers trade mark, name, serial number or other identification marks have been removed; and |
(iv) | Conditions resulting from the acts or omissions of Buyer. |
1.6 | Administration of Sellers Warranties on Seller Parts |
With respect to Seller Parts, Sellers Warranties shall be administered as hereinafter provided.
(i) | Should Buyer discover a defect during the Warranty Period that entitles Buyer to make a claim under Sellers Warranties, Buyer shall within [*****] after such discovery file a Warranty Claim addressed to Seller to the attention of ATR Customer Support Warranty Desk and shall promptly send to Seller the relevant Seller Part alleged to be defective; |
(ii) | All transportation costs, insurance, and any other expenses in connection with return of the defective Seller Part to Sellers facilities (or to any facility designated by Seller) shall be borne [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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All transportation costs, insurance and any other expenses in connection with return of the Seller Parts repaired under the Sellers Warranties to Buyers main base, shall be borne [*****];
(iii) | Seller shall at its own expense promptly make all repairs or replacements necessary to make the relevant defective Seller Part comply in all respects with Sellers Warranties. Seller shall have the sole right to determine whether the relevant defective Seller Part shall be repaired, overhauled or replaced; |
(iv) | If any relevant defective Seller Part cannot be repaired or overhauled economically, Seller shall, at Buyers option, either: |
(a) | Provide, [*****], a replacement part (having the same or higher value, the same or higher remaining life and the same or higher modification status) within a lead-time of [*****] from the date on which such relevant defective Seller Part is received at Sellers premises (or at the facilities designated by Seller); or |
(b) | Extend a corresponding credit to Buyer for Buyers future purchase of parts, |
and the relevant defective Seller Part shall without further act become the property of Seller;
(v) | All warranty repairs, overhauls and corrections will be at Sellers expense provided Seller or its representative accepts that the claim is subject to the Sellers Warranties; |
(vi) | Warranty Claim determination will be reasonably based upon reports from Sellers regional or on site representative, historical data logs, inspection, tests and findings during repair and failure analysis; |
(vii) | Seller shall have the right to inspect, without unreasonably interfering with Buyers operations, the Aircraft and relevant documents and other recognised records in the event of any claim under this Clause; |
(viii) | If Seller Parts which are sent to Seller under warranty consideration are found to be in a No Fault Found status, Seller shall notify Buyer and Buyer shall refund to Seller its transportation costs and reasonable test charges; |
(ix) | The unexpired portion of the original warranty shall apply to any Seller Part replaced or repaired under this Clause. |
1.7 | Ferry of Aircraft |
In the event that Buyer desires to ferry an Aircraft to Sellers premises or other agreed location for consideration of a Warranty Claim, Buyer will notify Seller of its intention and Seller will before such ferry have the right to inspect such Aircraft. Seller shall thereafter promptly make all repairs or replacements necessary under any valid Warranty Claim to make the relevant defective Seller Part comply in all respects with Sellers Warranties, subject always to the provisions of Clause 1.6 of this Appendix D.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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1.8 | On-Aircraft Work By Seller |
Repairs or correction under a Warranty Claim may justify the dispatch by Seller of a working team to make such repair or correction through the accomplishment of a Seller Service Bulletin at Buyers facilities. Seller and Buyer will agree on a schedule and place for such work to be performed, Seller shall thereafter promptly make all repairs or replacements necessary under any valid Warranty Claim to make the relevant defective Seller Part comply in all respects with Sellers Warranties, subject always to the provisions of Clause 1.6 of this Appendix.
1.9 | In-house Warranty |
After previous approvals in writing from Seller or its representative at Buyers base (which approval shall not be unreasonably withheld), Buyer may be authorised to perform, subject to the terms of the Sellers Warranties and the terms hereof, the repair of Seller Parts covered by the Sellers Warranties in-house. Sellers representative has the right to request return shipment of removed Seller Parts, if the nature of the failure requires technical investigation.
Sellers representative shall further have the right to be present during the disassembly and inspection of the defective Seller Parts. Buyer shall repair or correct such parts in accordance with Sellers instructions.
In such event, Buyer shall file a Warranty Claim within [*****] after discovery of a defect for which Sellers Warranties apply, along with a statement of the labour cost expended plus the cost of the material required for repair at current catalogue prices whereupon Seller shall promptly pay to Buyer such amount. Alternatively, Buyer may elect to request Seller to credit to its account in an amount equal to the [*****] at current catalogue prices.
The man-hours authorised for in-house repair of any item by Buyer shall be based on [*****] provided that the man-hours expended are not otherwise required for maintenance work currently being carried out on the Aircraft or other unrelated items.
For the purpose of this clause, the warranty labour rate shall be [*****] of Buyers average direct hourly labour rate. For this purpose, average direct hourly labour rate means the average hourly rate (excluding all fringe benefits, premium time allowances, social charges, business taxes and the like) paid to Buyers employees whose jobs are directly related to the performance of the repair or modification. Prior to or concurrent with submission of Buyers first claim for labour reimbursement hereunder, Buyer shall notify Seller of Buyers then current average direct hourly labour rate, and thereafter Buyer shall promptly notify Seller of any significant change in such rate. If requested, Buyer shall furnish to Seller such data as may be reasonably required to substantiate such rate.
In no case will reimbursement be made to Buyer for repair costs including labor and material in excess of those which would have resulted if repairs had been carried out at Sellers facilities. The labour cost to be credited by Seller as aforesaid shall account for:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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| Fault Location |
| Disassembly, |
| Repair, |
| Reassembly, |
| Final inspection and test. |
Claims for in-house Warranty credit shall be in accordance with the format of a Warranty Claim and will include the additional following data:
| Part number of parts |
| Serial Number of parts |
| Description of parts |
| Quantity of parts, |
| Unit price of parts, |
| Total price of parts, |
| Total labour hours, |
| Total claim value. |
If a part has a malfunction and is rectified by Buyer within the Warranty Period after previous approval from Seller or Sellers representative, Seller shall be responsible only for the portion of rectification cost related to the malfunction, in accordance with the material and man-hour prices as previously defined.
Buyer shall retain failed defective parts for a period of [*****] after the date of completion of repair. At Sellers request, such parts are to be returned to Sellers designated facilities, within [*****] from receipt of such request.
2 | VENDOR WARRANTIES |
2.1 | Vendor Warranties on Vendor Parts |
2.1.1 | Prior to the delivery of the Aircraft, Seller shall obtain from each Vendor enforceable warranties covering defects in material, workmanship and design (the Vendor Warranties) in respect of the Vendor Parts. Seller warrants that Buyer will be entitled to the benefit thereof in accordance with the terms and conditions of the Vendor Warranty Manual. |
Seller shall, at the time of delivery of the Aircraft, supply to Buyer the Vendor Warranty Manual detailing the warranties that are available to Buyer in respect of Vendor Parts.
The Vendor Warranties shall be administered in accordance with the terms of the Vendor Warranty Manual. Buyer shall address any claim arising under the Vendor Warranties directly to the appropriate Vendor, and keep Seller informed
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
of the process of its claim. Any Vendor Part claimed to be subject to Vendor Warranties shall be sent directly to the applicable Vendor
2.1.2 | [*****] |
2.1.3 | Seller shall also [*****] to obtain a [*****] years MTBUR warranty from those Vendors for which the MTBUR guarantees contained in the Vendor Warranty Manual is less than [*****] years. |
2.2 | Failure by Vendor to Honour Vendor Warranties |
In the event that (i) any Vendor, under any standard warranty obtained by Seller and set out in the Vendor Warranty Manual, defaults in the performance of any material obligation in respect of such standard warranty and (ii) Buyer submits to Seller reasonable proof that such default has occurred, then Sellers Warranty shall apply to such defect to the same extent as if it was a defect to a Seller Part.
At Sellers request, Buyer shall assign to Seller, and Seller shall be subrogated, to all of Buyers rights against such Vendor with respect to such defect and arising by reason of such default.
Any accessory, equipment or part selected by Buyer and installed in an Aircraft at Buyers request whether following a request for change prior to execution of this Contract or following signature of a SCN shall be excluded from this Clause 2.2.
3 | INTERFACE COMMITMENT |
3.1 | Interface Problems |
If Buyer experiences any technical problem in the operation of the Aircraft or its systems due to malfunction or failure of an accessory, equipment or part, the cause of which, after due and reasonable investigation by Buyer, is not readily identifiable as attributable to the design characteristics of one or more components of the Aircraft (an Interface Problem) Seller shall, if requested by Buyer, and without charge to Buyer, promptly conduct an investigation and analysis of such Interface Problem to determine, if possible, the cause or causes of the Interface Problem and to recommend such corrective action. Buyer shall furnish to Seller all data and information in Buyers possession relevant to the Interface Problem, and shall cooperate with Seller in the conduct of its investigations and such tests as may be required. At the conclusion of its investigations, Seller shall promptly advise Buyer in writing of Sellers opinion as to the cause or causes of the Interface Problem and Sellers recommendations as to corrective action.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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3.2 | Sellers Responsibility |
If Seller determines that the Interface Problem is primarily attributable to a defect in the design of any component manufactured to Sellers detailed design, Seller shall correct the design of such component, at [*****] to Buyer, to the extent of any then existing obligations of Seller under Seller Warranty.
3.3 | Vendors Responsibility |
If Seller determines that the Interface Problem is primarily attributable to a defect in the design of a component not manufactured to Sellers design, Seller shall, if requested by Buyer, assist Buyer in processing any warranty claim Buyer may have against the manufacturer of such component. Seller shall also take whatever action is permitted by its contract with such manufacturer in an effort to obtain a correction of the Interface Problem acceptable to Buyer.
3.4 | Joint Responsibility |
If Seller determines in that the Interface Problem is partially attributable to a defect in the design of a component manufactured to Sellers detailed design and partially to a defect in the design of components not manufactured to Sellers detailed design, Seller shall, if requested by Buyer, seek a solution to the Interface Problem through the co-operative efforts of Seller and the manufacturers of the other components involved. Seller shall promptly advise Buyer of such corrective action as may be proposed by Seller and such other manufacturers, such proposal to be consistent with any then existing obligations of Seller and such other manufacturers.
If such proposal is acceptable to Buyer, the proposed action shall be taken. Acceptance by Buyer of such action shall constitute full satisfaction of any claim Buyer may have against either Seller or such other manufacturers with respect to such Interface Problem.
3.5 | General provisions for Interface Commitment |
All requests under this Clause 3 shall be directed to Sellers and / or Vendors warranty administrators as appropriate.
Except as specifically set forth in this Clause 3, this Clause 3 shall not be deemed to impose on Seller any obligation not expressly set forth elsewhere in this Contract. All reports, recommendations, data and other documents furnished by Seller to Buyer pursuant to this Clause 3 shall be deemed to be delivered under this Contract and shall be subject to the limitations set forth in this Clause 3.
4 | SERVICE LIFE POLICY |
In addition to the warranties set forth in Clause 1 (Sellers Warranty) and Clause 2.1.2 above, Seller further agrees that should a Failure occur, in any of the Items listed in Exhibit A to this Appendix D, and subject to the general conditions and limitations set forth in Clause 4.4 below, then the provisions of this Clause 4 shall apply.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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4.1 | For the purpose of this Clause 4, the following definitions shall apply: |
(i) | Item means any of the items of primary structure specified in the Exhibit A hereto, |
(ii) | Failure means any breakage or defect that impairs the utility and safety or reliability of the Item. |
4.2 | Subject to general conditions and limitations set forth in Clause 4.4 below, Seller undertakes that if a Failure occurs in an Item before the Aircraft in which that Item was initially installed has completed [*****] flying hours or before the Aircraft in which that part is incorporated has completed [*****] landings or within [*****] months after the delivery of said Aircraft to Buyer (whichever shall first occur), Seller shall, at its own discretion, and as promptly as practicable and at the price hereinafter provided either: |
(a) | Design and furnish to Buyer a correction for the Item affected by the Failure and provide any parts required for such correction, or |
(b) | Replace such Item. |
4.3 | Any Item that Seller is required to furnish to Buyer under this Service Life Policy in connection with correction or replacement of an Item shall be furnished to Buyer at a price determined in accordance with the following formula: |
[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
or
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] [*****]
[*****] [*****]
[*****]
4.4 | General Conditions and Limitations |
4.4.1 | The undertakings given in Clauses 4.2 and 4.3 above shall not apply during the period of the warranty applicable to that Item under Clause 1 (Seller Warranty), nor if the Failure of the Item is due to any of the causes referred to in Clauses 1.5.2 (i), (ii) and / or (iii). |
4.4.2 | This Service Life Policy is applicable to Failures as defined in Clause 4.1, subject to maintenance and overhaul processes as indicated in Sellers technical documentation and/or any other Sellers technical written instructions being strictly complied with by Buyer. |
4.4.3 | The provisions of Clause 1.5.1 above are incorporated herein by this reference and shall condition Sellers obligation under this Service Life Policy with respect to any listed Item. |
4.4.4 | Buyer shall maintain historical records with respect to the Item adequate to enable determination as to whether the alleged Failure is covered by the present undertaking and (if so) to define the cost to be borne [*****] in accordance with Clause 4.3 above. |
4.4.5 | Buyer shall keep Seller or its representative informed of any significant incident whatsoever occurring or recorded, resulting in any damage to the Aircraft. Failure to comply with this requirement shall invalidate this Service Life Policy. |
4.4.6 | Buyer will have to perform the structural inspections in accordance with the program described in section 8 of the Maintenance Planning Document to be supplied to Buyer according to Appendix F (Technical Publications) hereafter. |
Such inspections shall be carried out at Buyers expense and the reports relating thereto furnished to Seller in case of disclosure of a Failure, to allow Seller to take all necessary corrective actions. Service Life Policy application is, in all case, conditional to Buyers conformity with such inspection program.
4.4.7 | In case of any Failure, Buyer shall be obliged to report the breakage or defect in writing or by fax to Seller within [*****] days after any breakage or defect in a listed Item becomes evident whether or not said breakage or defect can reasonably be expected to occur in any other Aircraft. Buyer shall inform Seller of defect or Failure in sufficient detail to enable Seller to deem whether said Failure or defect is subject to the present Service Life Policy. |
4.4.8 | The return to Seller, if such return is deemed practicable by Seller of any listed Item subject to a Failure, shall be at [*****] expense. [*****] shall bear all return transportation costs to Buyers main base. Any required disassembly of the Aircraft or parts thereof, removal of the covered Item subject to a Failure and |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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reassembly, installation, inspection and test of the corrected or replaced Item shall be at [*****] expense. If such disassembly, reassembly, installation, inspection and test, is accomplished by Seller at Buyers request, the rates to be charged by Seller for any such services shall not exceed [*****] during substantially the same time period.
4.4.9 | Any listed Item subject to a Failure and returned to Seller shall be under Sellers responsibility from the time it has been received at Sellers designated premises for repair until the time it has been returned at Buyers main base. During such period of time, Buyer shall no bear any liability as regard the risk of loss or damage relating to any such Item. |
4.4.10 | Should Seller issue a modification in order to avoid a structural Failure and should Seller elect to deliver the necessary modification kit free of charge to Buyer, then the validity of this commitment under Clause 4 hereof shall be subject to Buyer incorporating in the Aircraft, within a reasonable time to be mutually agreed between Buyer and Seller, such modification as promulgated by Seller and in accordance with Sellers instruction. |
4.4.11 | This Service Life Policy is neither a warranty, performance guarantee nor an agreement to modify the Aircraft, or airframe components to conform to new developments hereafter occurring in the state of airframe design and manufacturing art. Sellers obligation herein is to make only those corrections to the Airframe components or furnish replacement therefore as provided in this Clause 4. |
4.4.12 | Buyers rights under this Clause 4 shall not be assigned, sold, leased, transferred or otherwise alienated by operation of law or otherwise, to other operators except as provided for in Clause 26 (Assignment of Contract) hereof, and without prior Sellers consent thereto given in writing. |
Any unauthorised assignment, sale, lease, transfer or other alienation of Buyers rights under this Service Life Policy shall immediately void this Service Life Policy in its entirety.
5 | GENERAL CONDITIONS APPLICABLE TO APPENDIX E |
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER AND/OR ITS SUPPLIERS AND REMEDIES OF BUYER SET FORTH IN THIS APPENDIX E ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF SELLER AND/OR ITS SUPPLIERS AND RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST SELLER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA DELIVERED UNDER THIS AGREEMENT INCLUDING BUT NOT LIMITED TO:
(A) | ANY WARRANTY AGAINST HIDDEN OR LATENT DEFECTS (GARANTIE DES VICES CACHES) |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(B) | ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; |
(C) | ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; |
(D) | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER ARISING IN CONTRACT OR IN TORT AND WHETHER OR NOT ARISING FROM SELLERS AND / OR ITS SUPPLIERS NEGLIGENCE, ACTUAL OR IMPUTED; AND |
(E) | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA DELIVERED UNDER THIS AGREEMENT. |
NEITHER SELLER NOR ITS SUPPLIERS SHALL HAVE ANY OBLIGATION OR LIABILITY, HOWSOEVER ARISING, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ANY LIABILITY TO THIRD PARTY INCURRED BY BUYER
FOR THE AVOIDANCE OF DOUBT, SELLER SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGES CLAUSED BY THE GROUNDING OF THE AIRCRAFT DUE TO A DEFECT IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA DELIVERED UNDER THIS AGREEMENT, AND/OR FOR ANY EXPENSES INCURRED BY BUYER IN OBTAINING ANY SUBSTITUTE AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE OR DATA
NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS CLAUSE 5 OF APPENDIX E, NOTHING CONTAINED IN SUCH PROVISION SHALL AFFORD TO SELLER ANY WIDER EXCLUSION OF ANY LIABILITY OF SELLER THAN SELLER MAY EFFECTIVELY EXCLUDE HAVING REGARD TO THE PROVISIONS OF ANY APPLICABLE LAW.
IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE THE REMAINDER OF THIS APPENDIX E SHALL REMAIN IN FULL FORCE AND EFFECT.
FOR THE PURPOSES OF THIS CLAUSE 5, SELLER SHALL INCLUDE SELLER, ITS AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.
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EXHIBIT A TO
APPENDIX ECLAUSE 4
LIST OF PRIMARY STRUCTURE PARTS
The Items covered by the Service Life Policy pursuant to Clause 4 of this Appendix E are those described hereunder. [*****] are excluded from this Service Life Policy.
[*****]
[*****] | [*****] |
[*****] | [*****] |
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[*****] |
[*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] | [*****] |
[*****] | [*****] |
[*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] |
[*****] | [*****] |
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[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
Seller has contracted with MESSIER HISPANO BUGATTI a Service Life Policy transferable to Buyer, covering the [*****] items as listed above.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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TECHNICAL PUBLICATIONS
1 | GENERAL |
1.1 | Specification |
The technical publications (the Technical Publications), where practicable, shall be provided in general accordance with Air Transport Association of America (ATA) Specification No. 100.
Seller acknowledges Buyers desire to have Technical Publications issued in SGML or XML format. Such Technical Publications formats are not available today, but should these formats become available, Buyer shall have access to Technical Publications in those formats at [*****] compared to the existing formats.
1.2 | Delivery |
The Technical Publications and corresponding revisions will be sent to one address only defined by Buyer in the contractually agreed quantities as specified in Clause 3 of this Appendix F and the agreed frequencies. Packing and shipment will be [*****].
All present or future tax, levy, impost, duty, fees, assessments or other charge of whatever nature and however arising (including, without limitation, any penalty or interest payable in connection with any failure to pay or any delay in paying any of the same) including but not limited to custom, import and/or export duties shall be paid by [*****] to the relevant authorities in respect of any item delivered [*****] by Seller.
[*****] shall never be liable to pay any of the above future tax, levy, impost, duty, fees, assessments or other charge of whatever nature in respect of any item delivered [*****] by Seller.
If any item delivered [*****] by Seller is stopped by any custom authority for whatever reasons, [*****] shall have obligation to take any step to obtain such custom clearance.
1.3 | Language |
The Technical Publications will be supplied in the English language using the aeronautical terminology in common use.
1.4 | Technical Level of Publications |
The level of Publications at delivery of any Aircraft will correspond to the configuration level of any such Aircraft as defined [*****] before such delivery. The Aircraft configuration level at delivery will be introduced into the Technical Publications at the first revision following the delivery.
Significant modifications applied to any Aircraft when delivered and not dealt with in the Technical Documentation shall be covered in advance copies or temporary revisions.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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1.5 | Revision Service |
Technical publications will be revised [*****] and such a revision service will be provided at [*****] until [*****] after the delivery of the last Aircraft hereunder. Revision services thereafter will be subject to a separate agreement between Seller and Buyer.
For the avoidance of doubt, any Option Aircraft or Additional Aircraft (as applicable) exercise pursuant to Appendices N (Option Aircraft) and O (Additional Aircraft) hereto will extend accordingly the [*****] revision service period set forth in the above paragraph.
Unscheduled revisions (or equivalent information) to incorporate changes involving safety of operations or safety of maintenance, shall be provided, [*****], for as long as Buyer operates the Aircraft through Technical Publications (including operational documentation) temporary revisions or through regular yearly revisions.
1.6 | Buyer Furnished Equipment |
Information related to Buyer Furnished Equipment will be included [*****] in the Technical Publications to the extent necessary for the comprehension of the corresponding system(s). Buyer shall supply Buyer Furnished Equipment publications between [*****] before scheduled delivery of the Technical Publications.
1.7 | Service Bulletins |
In accordance with Clause 1.5 of this Appendix F, service bulletins information will be incorporated into the Technical Publications (Aircraft Maintenance Manual, Aircraft Wiring Manual and Illustrated Parts Catalogue) after written notice of Buyers intention to embody the Service Bulletin on its fleet. In this case, both information Before SB and After SB will appear in the manuals concerned.
1.8 | On-line access |
On line web access to the envelope ATR 72-600 documentation will be provided to a Buyers users through the ATR Doc portal for as many users as Buyer may reasonably request.
1.9 | Effectiveness |
1.9.1 | The following manuals will be customised: |
| Aircraft Maintenance Manual |
| Description and Operation Manual |
| Trouble Shooting Manual |
| Job Instruction Cards |
| Illustrated Parts Catalogue |
| Wiring Diagram Manual |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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| Aircraft Wiring Manual |
| Aircraft Schematic Manual |
| Aircraft Wiring Lists |
| Operational Manual |
| Airplane Flight Manual |
| Flight Crew Operating Manual |
| Check List |
| Weight and Balance Manual |
| List of Applicable Publications |
1.9.2 | Other Manuals will cover all ATR 72-600Aircraft. Effectivities (as applicable) will be defined by Manufacturer Serial Number. |
1.10 | Airworthiness Authorities |
ANAC representatives may have free access to ATR website dedicated to technical documentation (URL: http://www.atrdoc.com), in order to get an on-line access to all ATR technical publication referring to their operators.
1.11 | Additional Requirements |
If Buyer requires additional copies or other reproductions, or preparation in different form or revisions of any of the data specified in this Clause 1, Seller shall supply requirements to Buyer under purchase orders received from Buyer by Seller. Seller prices for such copies or other reproductions shall be reasonable.
1.12 | Proprietary Rights |
All data given to Buyer is for the sole use of Buyer, or its approved repair agencies, which undertake the responsibility not to divulge the content of said documents.
2 | MANUALS |
2.1 | Maintenance and associated Manuals |
2.1.1 | Aircraft Maintenance Manual |
This manual will be in general accordance with ATA 100 Specification with texts and illustrations that will be separated. This manual has been split into three separate Manuals:
| Description and Operation Manual |
| Trouble Shooting Manual |
| Job Instruction Cards |
Engine line maintenance data furnished by the engine manufacturer shall be given in documents separated from this manual.
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2.1.2 | Illustrated Parts Catalogue |
This manual identifies and illustrates replaceable Aircraft parts and assemblies, and will be in general accordance with ATA 100 specification.
2.1.3 | Wiring Diagram Manual |
This manual describes all the wiring of the Aircraft and will be in general accordance with ATA 100 Specification. The Wiring Diagram Manual has been split into three separate Manuals:
| Aircraft Wiring Manual |
| Aircraft Schematic Manual |
| Aircraft Wiring Lists |
2.1.4 | Structural Repair Manual |
This manual contains descriptive information for identification and repair of the Aircraft primary and secondary structure. This Manual will be in general accordance with ATA 100 Specification.
2.1.5 | Non Destructive Testing Manual |
This manual contains descriptive data and specific instructions concerning structural non destructive tests. This Manual will be in general accordance with ATA 100 Specification.
2.1.6 | Illustrated Tools and Equipment Manual |
This manual provides technical data sheets for all specific tool and equipment required for the maintenance and repair of the Aircraft. Standard tools and airport service equipment are not covered in this Manual that will be in general accordance with ATA 100 Specification.
2.1.7 | Maintenance Planning Document and Maintenance Review Board Document |
These documents will provide periodic maintenance requirements data necessary to plan and conduct the Aircraft maintenance checks and inspections. In addition, all the Airworthiness limitations will be grouped in one approved section.
2.1.8 | Structural Repair Kits Manual (SRKM) |
The SRKM is intended for use in identifying and provisioning parts required for aircraft repair in the event of damages caused by service vehicles, resulting from a crash. The SRKM covers all structure parts of defined zones and provides the kit list of parts.
2.1.9 | Corrosion PreventionCorrosion InspectionCorrosion Findings (DPCICF) |
This document is intended to provide with general information on corrosion in order to assist customers in easily finding out the relevant data necessary to
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develop and implement their maintenance program for corrosion and to take appropriate preventive and curative actions when necessary.
2.2 | Operational Manuals |
2.2.1 | Airplane Flight Manual |
The Airplane Flight Manual is related to a specific airplane, whose model is specified on the heading page of the manual. It is approved by the Airworthiness Authorities.
2.2.2 | Flight Crew Operating Manual |
The Flight Crew Operating Manual only contains pages applicable to the Aircraft of the specific customers fleet. It gives the Aircraft technical, procedural and performance characteristics.
2.2.3 | Check List |
This manual provides in a condensed form the normal, abnormal and emergency procedures detailed in the Flight Crew Operating Manual.
2.2.4 | Weight and Balance Manual |
This manual specific to each Aircraft enables the operator to determine the centre of gravity in relation with the loading of the Aircraft. This manual will be in general accordance with ATA 100 Specification.
2.2.5 | Master Minimum Equipment List |
This list defines the components and the related conditions under which, when the components are defective, the Aircraft may be cleared for flight in accordance with Sellers Airworthiness Authorities and EASA regulations.
2.2.6 | Airport Planning |
This manual prepared and issued according to Specification NAS 3601 indicates Aircraft characteristics data required for general airport planning information.
2.2.7 | Crash Crew Chart |
This chart provides the information required for Aircraft evacuation in the event of a crash.
2.3 | Component Manuals |
2.3.1 | Overhaul Manuals/or Component Maintenance Manuals/Manufacturer |
These manuals contain instructions concerning the overhaul and/or repair of components, together with the procedures for restoring such components to fully serviceable condition. These manuals will be in general accordance with ATA 100 Specification.
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2.4 | Miscellaneous Documentation |
2.4.1 | Service Bulletins |
This document will be in general accordance with ATA 100 Specification. Service Bulletins will be delivered as soon as practicable and will cover Sellers designated changes on the Aircraft that affect any Aircraft delivered hereunder. A Service Bulletin Index will be supplied regularly.
2.4.2 | List of Applicable Publications |
This list is a record of the various Technical Publications with the date of the last valid revision.
2.5 | Airworthiness Directives Information |
Seller shall inform Buyer of any Airworthiness Directive possibly affecting the Aircraft as might be issued by any relevant Aviation Authority.
3 | LIST OF MANUALS |
The list of manuals to be supplied by Seller to Buyer is set forth in the tables hereafter.
3.1.1 | Maintenance documentation |
DESCRIPTION
|
[*****] | [*****] | [*****] | [*****] | ||||
DVD-ROM PACKAGE: AMM (JIC+DO+TSM) + IPC + WDM (ASM+AWL+AWM) |
[*****] |
[*****] |
[*****] |
[*****] | ||||
AIRCRAFT MAINTENANCE MANUALS |
[*****] |
[*****] |
[*****] |
[*****] | ||||
AMM/Job Instruction Cards |
[*****] |
[*****] |
[*****] |
[*****] | ||||
AMM/Description Operation Manual |
[*****] |
[*****] |
[*****] |
[*****] | ||||
AMM/Trouble Shooting Manual
|
[*****] |
[*****] |
[*****] |
[*****] | ||||
ILLUSTRATED PARTS CATALOG |
[*****] |
[*****] |
[*****] |
[*****] | ||||
IPC ROW DATA (Text Editable)
|
[*****] |
[*****] |
[*****] |
[*****] | ||||
WIRING DIAGRAM MANUALS |
[*****] |
[*****] |
[*****] |
[*****] | ||||
WDM/Aircraft Wiring Manual |
[*****] |
[*****] |
[*****] |
[*****] | ||||
WDM/Aircraft Schematic Manual |
[*****] |
[*****] |
[*****] |
[*****] | ||||
WDM/Aircraft Wiring Lists
|
[*****] |
[*****] |
[*****] |
[*****] |
(1) | Available in DVD Rom Formatincludes ATR@Nav ATR@Nav is subject to the signature of a specific licence agreement for exclusive use of ATR@Nav loading Adobe Acrobat n@vigator |
(2) | Available in CD Rom Format All files in Adobe Acrobat pdf format |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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3.1.2 | Operational documentation |
DESCRIPTION
|
[*****] | [*****] | [*****] | [*****] | ||||
PACK OPS CD ROM: (AFM / FCOM / CL & QRH / WBM / MMEL)
|
[*****] | [*****] | [*****] | [*****] | ||||
SET COCKPIT including AFM/FCOM/CL/WBM/MMEL |
[*****] |
[*****] | [*****] | [*****] | ||||
AIRCRAFT FLIGHT MANUAL |
[*****] | [*****] | [*****] | [*****] | ||||
FLIGHT CREW OPERATING MANUAL |
[*****] | [*****] | [*****] | [*****] | ||||
CHECK LIST |
[*****] | [*****] | [*****] | [*****] | ||||
WEIGHT AND BALANCE MANUAL |
[*****] | [*****] | [*****] | [*****] | ||||
MASTER MINIMUM EQUIPMENT LIST
|
[*****] | [*****] | [*****] | [*****] |
(1) | Available in CD Rom Format- All files in Adobe Acrobat pdf format |
MSN N° | TBD | |
Airline IATA Code & Designation | AD | |
Language | English | |
Authorities | DGAC | |
Weight Standard Unit (Kg & lb) | Kg |
3.1.3 | Various document |
DESCRIPTION
|
[*****] | [*****] | [*****] | [*****] | ||||
SERVICE BULLETINS PACK: (SB + CI + TI + SL)
|
[*****] |
[*****] | [*****] | [*****] | ||||
STRUCTURAL PACK (SRM+SRKM+NDTM+CPCICF)
|
||||||||
STRUCTURAL REPAIR MANUALS |
[*****] | [*****] | [*****] | [*****] | ||||
STRUCTURAL REPAIR KIT MANUALS |
[*****] | [*****] | [*****] | [*****] | ||||
CORROSION PREV. / INSP. / FINDING |
[*****] | [*****] | [*****] | [*****] | ||||
NON-DESTRUCTIVE TESTING MANUAL
|
[*****] | [*****] | [*****] | [*****] | ||||
PLANNING PACK (MPD + MRB) |
[*****] | [*****] | [*****] | [*****] | ||||
MAINTENANCE PLANNING MANUALS |
[*****] | [*****] | [*****] | [*****] | ||||
MAINTENANCE REVIEW BOARD MANUAL |
[*****] | [*****] | [*****] | [*****] | ||||
MPD SPREADSHEET AMASIS Compatible - Excel 2000/2003 version
|
[*****] |
[*****] |
[*****] |
[*****] | ||||
MISCELLANEOUS MANUALS (CLM+QEC+ITEM+AP+CMM/M)
|
||||||||
COMPONENT LOCATION MANUAL |
[*****] | [*****] | [*****] | [*****] | ||||
QUICK ENGINE CHANGE BUILD-UP-GUIDE |
[*****] | [*****] | [*****] | [*****] | ||||
ILLUSTRATED TOOL AND EQUIPMENT MANUAL |
[*****] | [*****] | [*****] | [*****] | ||||
AIRPORT PLANNING MANUAL |
[*****] | [*****] | [*****] | [*****] | ||||
COMPONENT MAINTENANCE MANUAL / MANUFACTURER | [*****] |
[*****] |
[*****] |
[*****] | ||||
CRASH CREW CHART |
[*****] | [*****] | [*****] | [*****] | ||||
LIST OF APPLICABLE PUBLICATIONS
|
[*****] | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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DESCRIPTION | TYPE C=Customized A=All Version
|
Paper Copies |
Internet ATR|Doc |
CD or DVD ROM copies (pdf) |
CONTRACTUALS MANUALS (VD+VWM+VPSA) | ||||||||
VENDOR DIRECTORY |
[*****] |
[*****] |
[*****] |
[*****] | ||||
VENDOR WARRANTY MANUAL |
[*****] |
[*****] |
[*****] |
[*****] | ||||
VENDOR PRODUCT SUPPORT AGREEMT
|
[*****] |
[*****] |
[*****] |
[*****] |
(1) | Available in DVD Rom FormatAll files in Adobe Acrobat pdf format |
(2) | Available in CD Rom Format All files in Adobe Acrobat pdf format |
4 | ACCESS TO MANUFACTURERS DRAWINGS |
4.1 | Upon Buyers request stating the purpose of such request, Seller shall supply to Buyer on a [*****] basis any Aircraft drawing required for the troubleshooting and repair of the Aircraft (excluding however the manufacture of parts by Buyer) with its associated translation into English if applicable, subject to prior Sellers shareholders consent. Seller shall endeavour its commercially reasonable efforts efforts to obtain this consent prior to the delivery of the first Aircraft on a once-for-all and not on a case-by-case basis and Sellers shareholders consent may be provided in the form of a confidentiality agreement between Seller, Sellers shareholders and Buyer. |
4.2 | Seller shall supply such drawings either by facsimile or in digital format by electronic mail, as may be appropriate, within [*****] hours, unless the issuance or the translation of those drawings require the verification by Sellers design office, in which event such drawings shall be supplied not later than [*****] following Buyers request. Seller shall however endeavour its best efforts to supply such drawings within [*****] hours in case of AOG. |
4.3 | The use of such drawings by Buyer shall be on a confidential basis and limited to Buyers exclusive use in the troubleshooting and repair of the Aircraft (excluding however the manufacture of parts by Buyer) and to the period of time that the Aircraft are remaining in operation with Buyer. So long as Buyer shall not infringe upon Sellers intellectual proprietary rights, Buyer shall not be bound to pay any royalties or fees for the use of such drawings. |
4.4 | All drawings supplied hereunder shall be furnished in strict confidentiality and Buyer shall commit to not disclose either externally or internally nor to copy any of such drawings without Sellers prior written consent. |
4.5 | Seller acknowledges Buyers desire to have Aircraft drawings issued in electronic format. Such Aircraft drawings formats are not available today, but should these formats become available, Buyer shall have access to Aircraft drawings in electronic format [*****] and under the same conditions prevailing in this Clause 4. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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4.6 | These provisions do not grant any warranty, express or implied, with respect to the quality, validity, or usefulness of such drawings. Seller, Sellers shareholders, Sellers suppliers and/or Sellers shareholders suppliers shall not be liable for damages of any kind as a result of Buyer reliance on or use for the purposes stated herein of such drawings provided hereunder. |
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Execution version
ENGINEERING ASSISTANCE
1 | TECHNICAL DESK ASSISTANCE |
Seller shall provide Buyer with 24 hours per day, seven days a week, all year, inclusive of holiday periods, technical desk assistance on a [*****].
2 | NO TECHNICAL OBJECTION & LIKE ADVICE |
Supply of Non Technical Objections (NTO) and like advice shall be provided to Buyer on a [*****] for routine requests for up-to [*****] of engineering work.
For NTO and like advice requiring more than [*****] of engineering work, such engineering work will be charged to Buyer on the basis of conditions described in Clause 3 of this Appendix G.
Upon Buyers request, Airworthiness Authority approval shall be provided on a [*****] basis for all ATR provided interim and/or permanent dispositions
3 | REPAIR DRAWING PRICE POLICY |
3.1 | Introduction |
The structures engineering group provides 24 hours per day, seven days a week, all year, inclusive of holiday periods on-call service to assist the operators to solve problems in terms of:
| Aircraft damage assessment |
| Providing responses to structural technical queries |
| Assisting in the use of the aircraft structural documentation |
| Providing repair solutions by means of repair instruction, sketch or drawing. |
Buyer will be charged for all repair solutions to rectify structural dents, punctures, scratches, lightning strike damage, hail damage, corrosion, etc. except for those covered by the Aircraft Service Life Policy.
Once the classification of the requested repair solution and related lead-time have been requested by Buyer and agreed by Seller, Seller will make all efforts to meet the lead-time or the repair solution charges will be waived.
Seller shall continue to produce generic repairs and to update the Structural Repair Manual (SRM) with the objective to provide the operators as much autonomy as possible.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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3.2 | Terms of Reference |
The lead-time shall start from the receipt of a comprehensive damage report, and of the purchase order when applicable. It shall end when the repair solution has been made available to Buyer. When appropriate, a temporary repair solution shall be supplied.
The process shall include (as applicable) repair instruction, sketch or drawing and structural engineering support. When required the Airworthiness Authorities approval will be provided at a later time.
The level of priority associated to each type of repair solution shall be as follows, where working hours refer to Seller headquarters working hours:
Category |
Definition |
[*****] | [*****] | |||||
A |
A O G |
Customers request is required on an AOG basis, and lead-time for structural instruction completion is of [*****] maximum.
|
[*****] [*****] |
[*****] | ||||
B |
Customers request is required on an AOG basis, but lead-time for structural instruction completion is over [*****].
|
[*****] [*****] |
[*****] | |||||
C |
R O U T I N E |
Structural instruction is not required on an AOG basis, and requires less u than 8 MH of engineering work. | [*****] | [*****] | ||||
D |
Structural instruction is not requiredon an AOG basis, and requires more than 8 MH of engineering work. | [*****] | [*****] |
According to the above classification tables, the following rates will apply:
Category Charging rate 2010 Economic Conditions
A | [*****] |
B | [*****] |
C | [*****] |
D | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Buyer shall however be waived from any charge (either pursuant to B or D) above until [*****] after delivery of the last Firm Aircraft. For avoidance of doubt, any Option Aircraft or Additional Aircraft (as applicable) exercise pursuant to Appendices N (Option Aircraft) and O (Additional Aircraft) hereto will extend accordingly this [*****].
3.3 | Limitations |
If a repair instruction proves to be included in ATR technical publications as available to Buyer (including through on-line access), and thus Buyers request proves to be the result of inadequate use of such available ATR technical documentations, the charging rate for such repair instruction will be [*****] from the first hour spent by Seller engineering team. Seller shall however, during [*****] years following delivery of the first Used Aircraft, waive Buyers payment obligation for the [*****] engineering hours spend by Seller with respect any repair instruction, as requested by Buyer, that has proved to be included in ATR technical publications.
If Seller has reasonable grounds to believe that any request made by Buyer on an AOG basis could have been made on a routine basis, Seller shall be entitled to request to Buyer reasonable proof of the necessity to make such request on an AOG basis. Should Buyer fail to provide such proof in a form and substance reasonably satisfactory to Seller, then the charging rate for any such request unduly placed on AOG basis will be [*****] from the first hour spent by Seller engineering team.
4 | PROCEDURE |
During normal working hours, Buyer will have to directly contact Seller usual technical correspondent by phone. Outside normal working hours, Buyer will have to directly contact Seller Technical Desk by phone.
Any request shall be made official by faxing to Seller the description of the damage as set out on a specific repair solution request form.
Within the reaction time defined above, Seller shall have to acknowledge receipt of the request, ask for further information if necessary and propose temporary solution when applicable. Upon receipt of a comprehensive damage report, Seller shall fax the authorization for repair form completed, for Buyer agreement.
For chargeable repair solution, the clock guarantee lead-time will begin upon receipt of an official request from Buyers engineering team and a comprehensive damage report as confirmed by Seller. Buyer will follow-up with a purchase order within [*****] of the official engineering request.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
START-UP TEAM
1 | FERRY FLIGHT & LINE TRAINING ASSISTANCE |
1.1 | At the delivery of the first Used Aircraft, Seller shall second to Buyer [*****] of its instructor pilots in order to perform the ferry flight of the first Used Aircraft and line training for a duration of [*****] per Firm Aircraft, that is for [*****] in total for the [*****] Firm Aircraft ordered hereunder. |
Line training provides the opportunity for a flight crew to carry into practice the procedures and techniques learned during the ground and flying training sessions of a transition course. This is accomplished under the supervision of a crew member specifically nominated and trained for the task.
1.2 | Ferry flight and line training assistance shall be limited to [*****] in total, notwithstanding any Option Aircraft or Additional Aircraft exercise pursuant to Appendices N (Option Aircraft) and O (Additional Aircraft) hereof. |
However, on top of [*****] assistance referred to above, Seller shall also second to Buyer [*****] of its instructor pilots in order to perform the ferry flight of [*****] (either Used Aircraft or Aircraft). Buyer shall inform Seller with reasonable advance notice of its requirement for any ferry flight assistance.
1.3 | At all times during the ferry flight and during line training, responsibility and liability for such flight and the operation of the Aircraft shall remain with Buyer and Buyer shall ensure that appropriate insurance cover, in a form reasonably satisfactory to Seller, is in place. The flight duty schedule of the flight crew member(s) must comply with the applicable French/European regulations. |
1.4 | During ferry flight and line training, the cost of fuel, maintenance, landing and navigation fees shall [*****]. |
2 | PILOTS START-UP TEAM |
Seller shall provide to Buyer [*****] a start-up team of pilots according to the terms of this Clause 2, being understood that any such pilots will be supplied by Seller through third party service providers.
The pilots shall be qualified and experienced ATR 72-200 captains that will fly Buyers Used Aircraft during revenue service and that will be made available to Buyer at Buyers main base or at any other Buyers base for [*****] per Firm Aircraft, that is for the [*****] Firm Aircraft ordered hereunder in the quantities and during the period set out below:
(i) | [*****] each following delivery of the first Used Aircraft to Buyer; and |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(ii) | Thereafter, [*****] each (following the period mentioned in Clause 2 (i) above); and |
(iii) | Thereafter, [*****] each (following the period mentioned in Clause 2 (ii) above). |
Start-up team pilot assistance shall be limited to [*****] in total notwithstanding any Option Aircraft or Additional Aircraft exercise pursuant to Appendices N (Option Aircraft) and O (Additional Aircraft) hereof.
3 | AIRCRAFT MAINTENANCE START-UP TEAM |
Seller shall provide to Buyer [*****] a start-up team of aircraft maintenance engineers according to the terms of this Clause 3, being understood that any such maintenance engineers will be supplied by Seller through third party service providers.
This team of qualified airframe / powerplant and / or avionics / electrics experienced on the ATR72 will ensure smooth introduction and operation of the ATR 72 aircraft into Buyers fleet and will be made available to Buyer at Buyers main base or at any other Buyers base in the quantities and during the period set out below:
(i) | [*****] each following delivery of the first Used Aircraft to Buyer; and |
(ii) | Thereafter, [*****] after delivery of the last Firm Aircraft hereunder. |
Start-up team maintenance engineers assistance shall be limited to [*****] notwithstanding any Option Aircraft or Additional Aircraft exercise Appendices N (Option Aircraft) and O (Additional Aircraft) hereof.
The maintenance engineer start-up team will provide assistance and additional training / on the job support to Buyers maintenance personnel. Maintenance activities could include:
(i) | Completion of schedule and unscheduled maintenance on the Aircraft in accordance with applicable Buyers approved maintenance program; |
(ii) | Assistance in maintenance planning and logistics, working closely with Buyers personnel to provide them experience and skills to acquire rapidly necessary autonomy in different areas of aircraft maintenance, particularly for line activities and type A airframe visits. |
4 | ADDITIONAL START-UP ASSISTANCE |
4.1 | Additional Start-Up Assistance |
Seller shall also provide to Buyer [*****] the following start-up assistance:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(i) | Secondment at Buyers main base of an operations engineer for [*****] in total, with the objective of assisting Buyer in building performance charts and other per formance related procedures; |
(ii) | Secondment at Buyers main base of an maintenance program engineer for [*****] in total, with the objective of assisting Buyer in building its maintenance program for either (or both) the Used Aircraft or the ATR 72-600 Aircraft; and |
(iii) | Secondment at Buyers main base of a spare engineer for [*****] in total, with the objective of assisting Buyer in placing spares purchase orders and other related procedures. |
The timing on which Seller shall provide such assistance shall be further agreed by the parties, being understood that (a) each of the above assistance periods may be split in two or more periods provided that the cumulated total of the assistance does not exceed the above mentioned [*****] total period, and (b) the above assistance may be available to Buyer starting from the delivery of the first Used Aircraft, should Buyer so request.
4.2 | Vendors Field Service Assistance |
Starting from receipt by Buyer of the first Aircraft, Seller shall arrange to procure routine visits and during the first Hot Section Inspection (HSI) by competent representatives of the Engine manufacturer.
When necessary, routine visits will also be arranged for representatives of major vendors.
5 | START-UP PACKAGE ADJUSTMENT |
5.1 | The composition of the start-up team shall be subject to further joint detailed review and discussion between Seller and Buyers personnel. |
5.2 | Should Buyer elect to remove any service from the start-up package set forth in this Appendix H, then Seller [*****] according to the rates set forth in Exhibit A to this Appendix H. |
The [*****] shall be available to Buyer for the [*****].
5.3 | Should Buyer elect for the [*****], it shall be available to Buyer upon each Aircraft delivery and for [*****]. |
6 | INDEMNITY AND INSURANCE |
BUYER SHALL INDEMNIFY AND HOLD HARMLESS SELLER, SELLERS EMPLOYEES AND SUBCONTRACTORS AGAINST ALL LIABILITIES, DAMAGES, LOSSES AND JUDGMENTS, COSTS, ATTORNEYS FEES AND OTHER EXPENSES RELATIVE THERETO WHICH MAY BE ASSERTED, ASSESSED OR ACCRUED AGAINST SELLER AND ITS EMPLOYEES OR SUBCONTRACTORS BY REASON OF INJURY TO OR DEATH OF BUYERS
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
PERSONNEL ARISING OUT OF OR IN CONNECTION WITH THE PRESENT CLAUSE, EXCEPT TO THE EXTENT OF SELLERS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
SELLER SHALL INDEMNIFY AND HOLD HARMLESS BUYER AND BUYERS EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES AND JUDGMENTS, COSTS, ATTORNEYS FEES AND OTHER EXPENSES RELATIVE THERETO WHICH MAY BE ASSERTED, ASSESSED OR ACCRUED AGAINST BUYER, ITS EMPLOYEES AND SUBCONTRACTORS BY REASON OF INJURY TO OR DEATH OF SELLERS EMPLOYEES ARISING OUT OF OR IN CONNECTION WITH THE PRESENT CLAUSE EXCEPT TO THE EXTENT OF BUYERS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IN THE EVENT ANY CLAIM IS MADE OR SUIT IS BROUGHT AGAINST EITHER PARTY FOR DAMAGES, FOR DEATH OR INJURY, THE PARTY AGAINST WHOM CLAIM IS MADE OR SUIT IS BROUGHT, SHALL PROMPTLY GIVE NOTICE TO THE OTHER PARTY AND THE LATTER SHALL HAVE THE RIGHT TO SUPERVISE AND CONDUCT THE DEFENCE THEREOF, OR TO EFFECT ANY SETTLEMENT WHICH IT, IN ITS OPINION, DEEMS PROPER.
BUYER SHALL BE SOLELY LIABLE FOR, AND SHALL INDEMNIFY AND HOLD HARMLESS SELLER, ITS OFFICERS, AGENTS, EMPLOYEES AND SUBCONTRACTORS FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES FOR ALL INJURIES TO AND DEATH OF PERSONS AND FOR LOSS OF OR DAMAGE TO PROPERTY, HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH THE SERVICES UNDER THIS APPENDIX, EXCEPT WHERE IT ARISES FROM THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SELLER, ITS OFFICERS, AGENTS AND SUBCONTRACTORS. IN PROVIDING SUCH SERVICES, SELLERS EMPLOYEES AND SUBCONTRACTORS ARE DEEMED TO BE ACTING IN AN ADVISORY CAPACITY ONLY AND SOLELY WHERE ANY LIABILITY IS INVOLVED, SHALL THEY BE DEEMED TO ACT AS BUYERS EMPLOYEES OR AGENTS EITHER DIRECTLY OR INDIRECTLY.
FOR THE FERRY FLIGHT, LINE TRAINING AND PILOT ASSISTANCE SET OUT IN CLAUSE 1 AND 2 OF THIS APPENDIX H, BUYER SHALL (1) INDEMNIFY AND WAIVE ANY RIGHTS OF RECOURSES AGAINST SELLER AND ITS SUBCONTRACTORS IN RESPECT OF HULL ALL RISKS INSURANCE POLICY AND (2) NAME SELLER AND ITS SUBCONTRACTORS AS ADDITIONAL INSURED IN RESPECT OF THIRD PARTIES AND/OR PASSENGERS AND/OR FREIGHT LIABILITY RISKS.
BUYER SHALL DELIVER TO SELLER A CERTIFICATE OF INSURANCE EVIDENCING THE COVERAGE REQUIRED BY THIS CLAUSE.
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Execution version
EXHIBIT A TO
APPENDIX HCLAUSE 5
START-UP TEAM CONVERSION RATES
Start-Up Team |
Contract Section | Minimum Quantity to be Supplied |
Start-Up Conversion Credit / Unit |
|||||||
Pilot Training Assistance |
||||||||||
Ferry Flight & Line Training Assistance |
||||||||||
ATR Instructors Lease |
Appendix H-1 | [*****] | [*****] | |||||||
ATR Instructors Accomodation |
Appendix H-1 | [*****] | [*****] | |||||||
ATR Instructors One Way Tickets |
Appendix H-1 | [*****] | [*****] | |||||||
Pilot Start-Up Team |
||||||||||
Flying Captain Assistance |
Appendix H-2 | [*****] | [*****] | |||||||
Flying Captain Accomodation |
Appendix H-2 | [*****] | [*****] | |||||||
Flying Captain Return Tickets |
Appendix H-2 | [*****] | [*****] | |||||||
Maintenance Training Assistance |
||||||||||
Mechanics Start-Up Team |
||||||||||
Maintenance Engineer Assistance |
Appendix H-3 | [*****] | [*****] | |||||||
Maintrenance Engineers Accomodation |
Appendix H-3 | [*****] | [*****] | |||||||
Maintenance Engineer Return Tickets |
Appendix H-3 | [*****] | [*****] | |||||||
Other Assistance |
||||||||||
Operations Engineer Assistance |
||||||||||
Operations Engineer Assistance |
Appendix H-4.1 (i) | [*****] | [*****] | |||||||
Operations Engineer Accomodation |
Appendix H-4.1 (i) | [*****] | [*****] | |||||||
Operations Engineer Return Tickets |
Appendix H-4.1 (i) | [*****] | [*****] | |||||||
Maintenance Program Engineer Assistance |
||||||||||
Maintenance Program Engineer Assistance |
Appendix H-4.1 (ii) | [*****] | [*****] | |||||||
Maintenance Program Engineer Accomodation |
Appendix H-4.1 (ii) | [*****] | [*****] | |||||||
Maintenance Program Engineer Return Tickets |
Appendix H-4.1 (ii) | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
FIELD SERVICE
1 | Seller shall provide [*****] to Buyer the assistance of [*****] per Aircraft. |
This CSR will be available at Buyers main base as from the delivery of the first (1st) Used Aircraft and, based on the proposed Delivery Schedule and based an order of [*****] Firm Aircraft, will stay at Buyers main base until [*****] months after delivery of the last Aircraft hereunder. For the avoidance of doubt, any Option Aircraft or Additional Aircraft (as applicable) exercise pursuant to Appendices N (Option Aircraft) and O (Additional Aircraft) hereof will generate an additional [*****] CSR assistance per exercised Option Aircraft or Additional Aircraft (as applicable).
2 | The CSR will have a wide experience in all fields in order to provide their know-how in (i) organization, (ii) logistics, (iii) communication and (iv) trouble shooting. The CSR will focus on: |
(i) | Technical assistance (such as on job training for Buyers mechanics, usage of technical publications) but shall also be able to set-up all the communications with Seller product support and engineering directories. |
(ii) | Buyers mechanics assistance for the trouble shooting and line maintenance of the Aircraft. |
3 | Buyer shall cause transportation to be made available for the CSR mentioned in Clause 1 of this Appendix I, [*****] to Seller, for work-related travel that have been previously mutually agreed by the CSR and Buyer. However, [*****] shall pay the round trip air transportation charges of such CSR (for duty travel) between Toulouse France and Buyers main base. |
4 | [*****] shall bear all expenses in connection with transport, subsistence, insurance and salary of such CSR. Buyer shall furnish, [*****] to Seller, suitable office space and facilities (telephone, telefax, copying machine, printer and the like) and secretarial services for business purposes only in order to enable Sellers representative to fulfill its task properly. |
5 | Seller shall have the right to withdraw its assigned personnel on short notice, if conditions arise which are dangerous to their safety or health, or which prevent them from fulfilling their contractual tasks. |
6 | Indemnity |
BUYER SHALL BE SOLELY LIABLE FOR, AND SHALL INDEMNIFY AND HOLD HARMLESS SELLER, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES FOR ALL INJURIES TO AND DEATH OF PERSONS AND FOR LOSS OF OR DAMAGE TO PROPERTY, HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH THE SERVICES UNDER THIS APPENDIX, EXCEPT WHERE IT ARISES FROM THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SELLER, ITS
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
OFFICERS, AGENTS OR CSRS. IN PROVIDING SUCH SERVICES, SELLERS EMPLOYEES ARE DEEMED TO BE ACTING IN AN ADVISORY CAPACITY ONLY AND SOLELY WHERE ANY LIABILITY IS INVOLVED, SHALL THEY BE DEEMED TO ACT AS BUYERS EMPLOYEES OR AGENTS EITHER DIRECTLY OR INDIRECTLY.
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Execution version
TRAINING
1 | GENERAL |
1.1 | Seller shall provide, [*****], thorough training for Buyers personnel as set out in this Appendix J. |
For the avoidance of doubt, any training service set forth in this Appendix J for which available quantities are expressed on a per Aircraft basis shall also be supplied to Buyer under such per Aircraft quantities for any exercised Option Aircraft or exercised Additional Aircraft (as the case may be) pursuant to Appendix N (Option Aircraft) or O (Additional Aircraft) hereof.
1.2 | The training services set forth herein below will be conducted at Sellers training school being ATC facilities in Toulouse (France) unless otherwise specified herein. |
Sellers training school must have JAR-FCL approved training certificate (FTO or TRTO in accordance with JAR-FCL 1.055) and all instructors must have JAR-FCL certificate. The flight examination instructor must be JAR-FCL authorized.
1.3 | Crew and ground staff training relating to any Aircraft may be performed from [*****] prior to the Delivery of any such Aircraft until [*****] after delivery of the last Aircraft covered by this Contract. |
1.4 | The courses will be scheduled on mutually agreed plans to be discussed in a training conference (the Training Conference) to be held as soon as practicable after signature of this Contract and in all cases before the first course commences. The Training Conference shall detail and validate the training courses provided by Seller in Clause 3 below. |
In addition Buyer shall be entitled to request to Seller to exchange courses set out in Clause 3 of this Appendix J by other training courses of equivalent value proposed by Sellers Training School based upon the Sellers Training School catalogue price in force at the time such exchange is requested.
1.5 | For the purpose of this Appendix J, a Conversion Training Course means a training course for pilots, who have obtained a type certificate for a Transport Category aircraft prior to commencement of the course at the Sellers Training School. |
2 | COURSE QUALIFICATION |
2.1 | Buyer warrants that the trainees which shall be enrolled for training pursuant to the provisions hereof shall be able to fully understand written and spoken English. The trainees participating in the Conversion Training Courses shall have the prerequisite Turboprop Transport Category experience in order to attend the Conversion Training Courses. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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2.2 | It is clearly understood and agreed that the courses provided by ATR Training Centre (ATC) to Buyer are Conversion Training Courses. |
In the event that a trainee enrolled on a Conversion Training Course lacks the necessary entry- level preparation, the trainee shall, after consultation with Buyer, either be cycled through an appropriate entry level training program or be withdrawn from the program. All cost associated with such entry level training program together with those associated with the cancellation of the scheduled Conversion Training Course shall be borne [*****] upon the furnishing of appropriate invoices by ATC.
2.3 | In fulfilment of its obligations to provide training courses hereunder, Sellers training school shall deliver to trainees a certificate of satisfactory completion at the end of such courses. This certificate does not constitute satisfaction or qualification by any official civil aviation authority but may be presented to any such authority as confirmation of satisfactory completion of Sellers training course. |
2.4 | Prior to the commencement of a course, Buyer shall provide Sellers training school with an attendance list of the trainees to be enrolled for each course and the validated performance of each trainee and any further information that ATC may require. It is understood between Buyer and Seller that Sellers standard courses are designed and approved to bring Turboprop Transport specialists to a professional knowledge of the ATR aircraft. Seller shall not be held liable for the unsatisfactory performance of any individual trainee for whatever reason. |
3 | TRAINING COURSES |
3.1 | Flight Crew Training |
Flight Crew training services will include the following:
3.1.1 | ATR Flight Crew Standard Course (Type Rating) for [*****] per Aircraft, that is for [*****] in total for the [*****] Firm Aircraft ordered hereunder. |
This training program is a [*****] training course that shall consist of a standard course as follows:
(1) | Ground training Instruction: [*****] |
(2) | Synthetic Flight Training / FFT: [*****] |
(3) | Synthetic Flight Training / FFS: [*****] |
(4) | 1 flight consisting of [*****] per pilot. |
As prerequisites, each captain must hold a current Airlines Transport Pilot Licence and should be in a position to justify having flown at least [*****] (or equivalent) and [*****] in a turbo-prop aircraft. The co-pilot shall be required to hold a current commercial
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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pilots license with instrument rating and multi-engine rating. Each pilot shall have crew co-ordination ability.
Each crewmember should have been qualified and served in the same capacity on another aircraft in the same group as the Aircraft (JAR 25/FAR 25 approved) within the last twelve months following the beginning of the training program. Trainees who do not meet such requirements must obtain a written approval from the Sellers training centre manager.
The flight training phase shall be performed on Buyers own aircraft after delivery (or if not possible for practical reasons to have such flight training in Toulouse on Buyers Aircraft, Seller may decide by itself to use any other similar ATR aircraft available in France). Seller shall provide [*****], the services of flight instructors and the line maintenance which shall include servicing and pre-flight checks. Buyer shall at its own expense, provide spare parts, as required, shall bear the cost of fuel and landing fees and shall contract third party liability insurance coverage, in a form reasonably satisfactory to Seller.
It shall be responsibility of Buyer to obtain any authorisations and validations of flight instructors licenses as may be required by the aviation authority having jurisdiction over the Aircraft.
3.1.2 | ATR Type Rating Instructor (TRI) training for [*****] in total for the [*****] Firm Aircraft ordered hereunder. |
This TRI Training Course will be spread over [*****] and shall consist of an initial course as follows:
(1) | Phase 1 Ground Course: [*****] |
(2) | Phase 2 Simulator Instruction: [*****] |
(3) | Phase 3 Airborne Instruction [*****] |
TRI Module 1 training may be performed at Buyers main base by an ATR instructor. In such a case, Buyer shall supply suitable classroom(s) and IT means and the ATR instructors travelling, living and any such similar expenses (in accordance with Sellers prevailing travelling policy) shall be borne [*****].
Nb: Flight Instructors have to be approved by the local authority in order to become Check Pilots.
3.2 | Cabin Attendant Training |
Cabin Crew training services will include the following:
3.2.1 | ATR Flight Attendant Instructor Training for [*****] in total for the [*****] Firm Aircraft ordered hereunder. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The proposed Flight Attendant Instructor Training course is [*****] training course. |
Cabin crew training may be performed at Buyers main base on Buyers Aircraft by an ATR instructor. In such a case, Buyer shall supply suitable classroom(s) and IT means and the ATR instructors travelling, living and any such similar expenses (in accordance with Sellers prevailing travelling policy) shall be borne [*****].
3.3 | Mechanics Training |
Mechanics training services will include the following PART 147 training:
3.3.1 | ATR Mechanics / Electrics T1 maintenance course (theoretical / module 1 / module 2) for [*****] in total for the [*****] Firm Aircraft ordered hereunder. |
The proposed T1 modules theoretical, 1 (simulator) and 2 (on job training) maintenance courses are respectively [*****] training courses.
They are addressed to B1 category maintenance personnel who are required to issue certificates for release to service following line and base maintenance including aircraft structure, power plants, mechanical and electric systems and replacement of avionics LRU, requiring simple tests to prove their serviceability.
3.3.2 | ATR Avionics T1 additional modules maintenance course (theoretical / module 1 / module 2) for [*****] Firm Aircraft ordered hereunder. |
The proposed T1 additional modules theoretical, 1 (simulator) and 2 (on job training) maintenance courses are respectively [*****] training courses.
They are addressed to maintenance personnel who are wishing to get upgraded from category B1 to category B2 with an additional training covering the avionics systems at level III.
3.3.3 | ATR T4 Base Maintenance Certifying Engineer course for [*****] Firm Aircraft ordered hereunder. |
The proposed T4 course is a [*****] training courses based on CBT training.
It is addressed to maintenance supervisors who are required to issue certificates of release to service following line and base maintenance for the Aircraft.
T1 theoretical module, T1 additional theoretical module and T4 training may be performed at Buyers main base by an ATR instructor. In such a case, Buyer shall supply suitable classroom(s) and IT means and the ATR instructors travelling, living and any such similar expenses (in accordance with Sellers prevailing travelling policy) shall be borne [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Mechanics training services will also include the following non PART 147 training:
3.3.4 | ATR Engine Run-up maintenance course for [*****] Buyers mechanics per Aircraft, that is for [*****] mechanics in total for the [*****] Firm Aircraft ordered hereunder. |
The proposed training course is a [*****] training course performed on simulator only.
As a prerequisite to enrolment on the courses outlined in this Clause 3.3, trainees must have a sound practical background in aircraft maintenance.
Seller shall be entitled to regroup in the same course, trainees from different Buyers.
For courses requesting a PART 147 approval, the trainees shall be in compliance with PART 147 prerequisites, which shall be provided, upon Buyers request, by ATC.
3.4 | Ground Staff Training |
Seller shall provide Buyer the following ground staff courses
3.4.1 | System General Familiarization training (duration: [*****]) for up to [*****] of Buyers management members in total; |
3.4.2 | Performance & Flight Planning training (duration: [*****] for [*****] Buyers ground staff member per Aircraft, that is for [*****] ground staff members in total for the [*****] Firm Aircraft ordered hereunder; |
3.4.3 | Weight & Balance training (duration: [*****]) for [*****] Buyers ground staff member per Aircraft, that is for [*****] ground staff members in total for the [*****] Firm Aircraft ordered hereunder; |
3.4.4 | FOS training (duration: [*****]) for [*****] Buyers ground staff member per Aircraft, that is for [*****] ground staff members in total for the [*****] Firm Aircraft ordered hereunder. |
Ground staff training may be performed at Buyers main base by an ATR instructor. In such a case, Buyer shall supply suitable classroom(s) and IT means and the ATR instructors travelling, living and any such similar expenses (in accordance with Sellers prevailing travelling policy) shall be borne [*****].
4 | SOFTWARE TOOLS & WEB TRAINING |
4.1 | ATR Course Software (ACOS) or successor software |
Seller shall deliver to Buyer on a [*****] basis for use in Buyers own training program [*****] training center licence (allowing simultaneous connection of up to [*****]) of the ATR Course Software (ACOS) incorporating all modules (Pilot, Flight Attendant and Maintenance) in the ATR 72-600 version.
Seller shall also provide Buyer with the first annual revision service of such software.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The ACOS software is a state-of-the-art program for Pilots, Mechanics and Flight Attendants. It benefits from the use of the latest PC technologies in terms of interactivity, video integration, sounds and ergonomics. However, Seller reserves the right to replace the ACOS software by any state of the art CBT software of similar or higher standard it may develop prior to the delivery of the Aircraft.
4.2 | Web Training Software |
Seller is currently developping a Web Based Trainer allowing [*****] as selected by Buyer to use Computer Based Training through internet. The use of such Web Based Trainer could perfectly supplement the ACOS (or its successor) software to be furnished hereunder for installation on Buyers training academy server.
The usage of the above Web Based Trainer shall be granted to Buyer [*****].
4.3 | Flight Operation Software (FOS) |
Seller shall provide Buyer [*****] FOS modules 1 (Take-off & Landing Charts), 2 (In Flight Performance) and 4 (En Route Net Flight Path) for the ATR 72-600 version.
The above FOS license may be installed on [*****] for the exclusive use of Buyers personnel.
5 | TRAINING PACKAGE ADJUSTMENT |
5.1 | The training package set forth in Clause 3 of this Appendix J may be adjusted within the limit of the total amount to reflect actual requirements of Buyer. |
5.2 | Should Buyer elect to remove any service from the training package set forth in Clause 3 of this Appendix J, then Seller shall [*****] to the rates set forth in Exhibit A to this Appendix J, and provided that a minimum training package is supplied by Seller to Buyer, as detailed in Exhibit A to this Appendix J. |
The [*****] shall be available to Buyer for [*****].
5.3 | Should Buyer elect for the [*****], it shall be available to Buyer upon each Aircraft delivery and [*****] for each such individual Aircraft. |
6 | INDEMNITY AND INSURANCE |
BUYER SHALL INDEMNIFY AND HOLD HARMLESS SELLER AND SELLERS EMPLOYEES AGAINST ALL LIABILITIES, DAMAGES, LOSSES AND JUDGEMENTS, COSTS, ATTORNEYS FEES AND OTHER EXPENSES RELATIVE THERETO WHICH MAY BE ASSERTED, ASSESSED OR ACCRUED AGAINST SELLER AND ITS EMPLOYEES BY REASON OF INJURY TO OR DEATH OF BUYERS PERSONNEL ARISING OUT OF OR IN CONNECTION WITH THE
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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PRESENT CLAUSE, EXCEPT TO THE EXTENT OF SELLERS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
SELLER SHALL INDEMNIFY AND HOLD HARMLESS BUYER AND BUYERS EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES AND JUDGMENTS, COSTS, ATTORNEYS FEES AND OTHER EXPENSES RELATIVE THERETO WHICH MAY BE ASSERTED, ASSESSED OR ACCRUED AGAINST BUYER AND ITS EMPLOYEES BY REASON OF INJURY TO OR DEATH OF SELLERS EMPLOYEES ARISING OUT OF OR IN CONNECTION WITH THE PRESENT CLAUSE EXCEPT TO THE EXTENT OF BUYERS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IN THE EVENT ANY CLAIM IS MADE OR SUIT IS BROUGHT AGAINST EITHER PARTY FOR DAMAGES, FOR DEATH OR INJURY, THE PARTY AGAINST WHOM CLAIM IS MADE OR SUIT IS BROUGHT, SHALL PROMPTLY GIVE NOTICE TO THE OTHER PARTY AND THE LATTER SHALL HAVE THE RIGHT TO SUPERVISE AND CONDUCT THE DEFENCE THEREOF, OR TO EFFECT ANY SETTLEMENT WHICH IT, IN ITS OPINION, DEEMS PROPER.
BUYER SHALL BE SOLELY LIABLE FOR AND HEREBY INDEMNIFIES AND HOLDS HARMLESS SELLER, ITS OFFICERS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL LIABILITIES, DAMAGES, LOSSES, COSTS AND EXPENSES FOR LOSS OF OR DAMAGE TO PROPERTY HOWSOEVER ARISING OUT OF OR IN CONNECTION WITH ANY SUCH TESTS, CHECK OUT AND CONTROLS UNDER THIS CLAUSE ARISING AFTER DELIVERY OF THE AIRCRAFT, EXCEPT WHERE IT ARISES FROM THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SELLER, ITS OFFICERS, AGENTS AND SUBCONTRACTORS. IN PERFORMING SUCH TESTS, CHECK OUTS AND CONTROLS.
FOR THE FLIGHT TRAINING PERIOD AS DESCRIBED IN SUB-CLAUSES 3 OF THIS APPENDIX J, BUYER SHALL (1) INDEMNIFY AND WAIVE ANY RIGHTS OF RECOURSES AGAINST SELLER AND ITS SUBCONTRACTORS IN RESPECT OF HULL ALL RISKS INSURANCE POLICY AND (2) NAME SELLER AND ITS SUBCONTRACTORS AS ADDITIONAL INSURED IN RESPECT OF THIRD PARTIES AND/OR PASSENGERS AND/OR FREIGHT LIABILITY RISKS.
BUYER SHALL DELIVER TO SELLER A CERTIFICATE OF INSURANCE EVIDENCING THE COVERAGE REQUIRED BY THIS CLAUSE.
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EXHIBIT A TO
APPENDIX JCLAUSE 5
START-UP TEAM CONVERSION RATES
Training Package |
Contract Section | Minimum Quantity to be Supplied |
Training Conversion Credit / Unit |
|||||||||
Flight Crew Training |
||||||||||||
ATR 72-600 Transition Training [*****] |
Appendix J-3.1.1 | [*****] | [*****] | |||||||||
ATR 72-600 Type Rating Instructor Course |
Appendix J-3.1.2 | [*****] | [*****] | |||||||||
ATR 72-600 Aircraft Renting (TRI Course) |
Appendix J-3.1.2 | [*****] | [*****] | |||||||||
Cabin Crew Training |
||||||||||||
Cabin Attendant Instructor Training |
Appendix J-3.2.1 | [*****] | [*****] | |||||||||
Mechanics Training |
||||||||||||
T1 Avionics / Electrics Training |
Appendix J-3.3.1 | [*****] | [*****] | |||||||||
T1 Difference Training |
Appendix J-3.3.2 | [*****] | [*****] | |||||||||
Base Maintenance Certifying Training |
Appendix J-3.3.3 | [*****] | [*****] | |||||||||
Engine Run-up Training |
Appendix J-3.3.4 | [*****] | [*****] | |||||||||
Ground Staff Training |
||||||||||||
General Familiarization Course |
Appendix J-3.4.1 | [*****] | [*****] | |||||||||
Performance & Flight Planning Training |
Appendix J-3.4.2 | [*****] | [*****] | |||||||||
Weight & Balance Training |
Appendix J-3.4.3 | [*****] | [*****] | |||||||||
FOS Training |
Appendix J-3.4.4 | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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PAYMENT INSTRUCTIONS
All payments due to Seller under this Contract shall be made to:
Bank |
: |
[*****] | ||
Beneficiary |
: |
Avions de Transport Régional (ATR). | ||
Bank Code |
: |
[*****] | ||
Branch Code |
: |
[*****] | ||
Account No |
: |
[*****] | ||
Swift Code |
: |
[*****] | ||
IBAN |
: |
[*****] | ||
Reference |
: |
Sale of ATR 72-600 aircraft |
Or such other account as Seller may notify in writing from time to time to Buyer at least [*****] prior to the date such payment is due
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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PERFORMANCE GUARANTEE
[*****] | [*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] | [*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] | [*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] | [*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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DISPATCH RELIABILITY GUARANTEE
[*****] | [*****] |
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] | [*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] | [*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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OPTION AIRCRAFT
1 | SCOPE |
In consideration of Buyer purchasing from Seller the twenty (20) Firm Aircraft Buyer shall have the right to acquire up-to ten (10) optional new ATR 72-600 aircraft (the Option Aircraft) in addition to the twenty (20) Firm ATR 72-600 Aircraft [*****].
2 | EXERCISE OF OPTION |
2.1 | Buyer shall notify Seller in writing, no later than [*****] prior to the scheduled delivery date as set forth in Clause 4 hereof (the Option Notification Date) of its intent to exercise the option to purchase any Option Aircraft. |
2.2 | Upon exercise of such option to purchase each Option Aircraft, Buyer shall pay the First Pre- Delivery Payment for such Option Aircraft as mentioned in clause 6.2.1 of this Contract, upon which payment such exercised Option Aircraft shall become an Aircraft for the purpose of this Contract and, unless specified otherwise, the terms and conditions of this Contract in respect of the Aircraft firmly ordered shall apply mutatis mutandis to such exercised Option Aircraft. |
3 | OPTION AIRCRAFT SPECIFICATION |
The Option Aircraft shall be manufactured under the Specification.
4 | OPTION AIRCRAFT DELIVERY |
The Option Aircraft can be made available for delivery to Buyer according to the following delivery schedule:
Option Aircraft | Aircraft Number | Option Aircraft Scheduled Delivery Date | ||
Option Aircraft N° 1 | Aircraft N° 21 |
[*****] | ||
Option Aircraft N° 2 | Aircraft N° 22 | [*****] | ||
Option Aircraft N° 3 | Aircraft N° 23 | [*****] | ||
Option Aircraft N° 4 | Aircraft N° 24 | [*****] | ||
Option Aircraft N° 5 | Aircraft N° 25 | [*****] | ||
Option Aircraft N° 6 | Aircraft N° 26 | [*****] | ||
Option Aircraft N° 7 | Aircraft N° 27 | [*****] | ||
Option Aircraft N° 8 | Aircraft N° 28 | [*****] | ||
Option Aircraft N° 9 | Aircraft N° 29 | [*****] | ||
Option Aircraft N° 10 | Aircraft N° 30 | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The provisions of Clause 9.2 to 9.5 of this Contract shall apply mutatis mutandis to any exercised Option Aircraft.
5 | OPTION AIRCRAFT PRICE |
The Option Aircraft shall be [*****].
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ADDITIONAL AIRCRAFT
1 | SCOPE |
Seller hereby grants to Buyer the option to acquire up to a total of ten (10) additional aircraft (the Additional Aircraft) in addition to the twenty (20) Firm Aircraft and to the ten (10) Option Aircraft.
2 | EXERCISE OF PURCHASE RIGHTS |
2.1 | Buyer may at any time on or prior to [*****] exercise its purchase right for any Additional Aircraft, subject to: |
(i) | Buyer having no remaining right to exercise any Option Aircraft in accordance with Appendix N (Option Aircraft) hereof; |
(ii) | Written notification (the Purchase Right Exercise Notice) by Buyer of such purchase right exercise including the Additional Aircraft scheduled delivery date sought by Buyer for such Additional Aircraft; |
(iii) | Availability of aircraft at the scheduled delivery date requested by Buyer, being understood that should such Additional Aircraft delivery position requested by Buyer not being available, Seller shall propose to Buyer the next available ATR 72-600 delivery position. |
2.2 | Upon exercise of such purchase right for any Additional Aircraft, Buyer shall pay the First Pre- Delivery Payment for such Additional Aircraft as mentioned in clause 6.2.1 of this Contract (and other pre-delivery payments as they may fall due pursuant to Clause 6.2 of this Contract), upon which payment such exercised Additional Aircraft shall become an Aircraft for the purpose of this Contract and, unless specified otherwise, the terms and conditions of this Contract in respect of the Aircraft firmly ordered shall apply mutatis mutandis to such exercised Additional Aircraft |
3 | ADDITIONAL AIRCRAFT SPECIFICATION |
The Additional Aircraft shall be manufactured under the Specification.
4 | ADDITIONAL AIRCRAFT DELIVERY |
4.1 | Within [*****] from receipt from Buyer of the Purchase Right Exercise Notice for any Additional Aircraft, Seller shall notify to Buyer the effective delivery date for that Additional Aircraft (the Additional Aircraft Scheduled Delivery Date) in accordance with Clause 2 of this Appendix O. |
4.2 | The Additional Aircraft Scheduled Delivery Date so notified will be reserved for Buyer upon payment of the First Pre-Delivery Payment for that exercised Additional Aircraft. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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4.3 | The provisions of Clause 9.2 to 9.5 of this Contract shall apply mutatis mutandis to any exercised Additional Aircraft. |
5 | ADDITIONAL AIRCRAFT PRICE |
The Additional Aircraft shall be offered [*****].
In particular, [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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USED AIRCRAFT OPERATING LEASE TERMS
1. LESSOR: |
AVIONS DE TRANSPORT REGIONAL, Groupement dIntérêt Economique governed by the Laws of France, the head office of which is located at 1, Allée Pierre Nadot, 31712 BLAGNAC CEDEX, FRANCE, or any other company designated by Seller as owner of the Used Aircraft, |
(hereinafter the Lessor). |
2. LESSEE: |
AZUL LINHAS AEREAS BRASILEIRAS S/A a company incorporated under the laws of Brazil, the registered office of which is located at Alameda Surubiju, 2010 Alphaville Industrial, Barueri, SAO PAULO, BRAZIL, |
(hereinafter the Lessee). |
3. AIRCRAFT: |
[*****] used ATR 72-200 bearing Manufacturer Serial Number MSN [*****] (or substitutes therefor) powered by two Pratt and Whitney PW124B engines, or any other used ATR aircraft that Seller may propose pursuant to the provisions of Section 16 of this Appendix P. |
(individually or collectively the Used Aircraft) |
The Used Aircraft shall be delivered in as is, where is and fly away conditions. However, the Used Aircraft shall be in the conditions outlined hereafter: |
(i) | Airworthy; |
(ii) | With all of the Aircraft equipment, components, systems, parts and each engine and propeller functioning and installed in accordance with manufacturers recommendations; |
(iii) | With an Export Certificate of Airworthiness issued by the French DGAC (or equivalent document); |
(iv) | In a condition qualifying for the issuance of a certificate of airworthiness by ANAC, subject always to such exemptions as might be granted by ANAC to issue such certificate of airworthiness (in particular with respect to FAR 121.344 requirements) |
(v) | In a clean condition by international standards allowing immediate commercial passengers operations; |
The Operating Lease Agreements will contain detailed delivery conditions relating to panels, ceilings, floors, bins, etc based on standard industry practices. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(vi) | With [*****] passenger seats equipped with [*****] grey leather covers, and [*****] carpets. |
Seats types may be different from one Used Aircraft to the other. However, seats covers and carpets shall be made in identical material for all Used Aircraft. |
(vii) | With exterior livery painted in Buyers livery to be communicated by Buyer to Seller not later than [*****] prior to the first Used Aircraft Delivery; |
(viii) | With interior and exterior placards in English, except for those needing to be bilingual according to Brazilian regulations which shall be in Brazilian Portuguese / English; |
(ix) | Weighed following painting in Buyers livery; |
(x) | Equipped, where not already specified with ACAS Ch. 7, B- RNAV compliant GPS system coupled with EFIS, Single HF system and 2nd ADF; |
(xi) | Embodied with all EASA Airworthiness Directives and mandatory Service Bulletins affecting the Aircraft and / or the engines issued prior to the delivery of each Used Aircraft and having a compliance date [*****] months after the delivery date of each such Used Aircraft (whichever is less); |
(xii) | With no deferred maintenance or waivers; |
(xiii) | With no temporary or time-limited structural repairs unless permanent repair is not available. |
No special or unique inspection or check requirements which are specific to the Used Aircraft (as opposed to all aircraft of the same model) will exist with respect to the Aircraft so long as such unique inspection can be avoided by the execution of a permanent repair that is available; |
(xiv) | Fresh from a recent [*****] and from any other airframe check of lower interval than those two checks; |
(xv) | Clear for airframe structural checks (C check, 2 Ye / 4Ye / 8 Ye / 36,000 Cy inspection) having a compliance date falling within the [*****] of feach Used Aircraft (whichever is less). |
An average annual utilisation of [*****] and [*****] shall be considered for the purpose of this Section D.3(xiv); |
(xvi) | With a minimum of [*****] (whichever is the limiting factor) on the propellers, landing gear and other time (or life) limited components |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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to the next scheduled overhaul (or replacement) unless mutually agreed otherwise. |
Those time (or life) limited components for which the total limit is less than [*****] months shall have a minimum of [*****] remaining to the next overhaul (or replacement); |
(xvii) | With engines having elapsed less than [*****] since last Hot Section Inspection and less than [*****] since last Overhaul; |
Each engine life limited part located in the hot section (including HP blades) of any engine shall have a minimum of cycles remaining equal to [*****] less the number of flight hours elapsed since the last Hot Section Inspection of that engine. |
Each engines life limited part located in the cold section of any engine shall have a minimum of cycles remaining equal to [*****] less the number of flight hours elapsed since the last Overhaul of that engine. |
A comprehensive borescope inspection of each Used Aircraft engine will be performed by Seller upon each relevant delivery. |
(xviii) | With brakes having an average over the Used Aircraft fleet of [*****] remaining; |
(xix) | With tyres having an average over the Used Aircraft fleet of [*****] remaining; and |
(xx) | Free and clear of any operational liens on Delivery. |
After execution of the definitive Operating Lease Agreement(s), additional changes and in particular changes due to the further local Aviation Authority requirements may also be incorporated in the Used Aircraft specification upon terms and conditions to be agreed concerning the effect on performance, delivery dates and price of the Used Aircraft. |
4. OPERATING LEASE AGREEMENTS: |
The parties agree that the operating lease of the Used Aircraft remains subject to the negotiation and to the execution not later than [*****] prior to the Delivery Date of each Used Aircraft of a mutually satisfactory definitive operating lease agreement (with respect to each Aircraft the Operating Lease Agreement and collectively the Operating Lease Agreements), the basic terms and conditions of which are outlined below and that the lease of the Used Aircraft shall be effective only upon such execution. |
5. DELIVERY: |
The Used Aircraft shall be delivered to the Lessee according to the following schedule (the Delivery Date): |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] in December 2010 : [*****] |
[*****] in January 2011 : [*****] |
The remaining [*****] between February and June 2011. |
The exact Delivery Dates and the exact MSN will be notified to the Lessee as soon as practicable and at the latest at the stage of each Used Aircraft Operating Lease agreement negotiation. |
Notwithstanding the above Delivery Date, and with the exception of the [*****] Used Aircraft, the Used Aircraft shall not be delivered earlier than [*****] after execution of the relevant Operating Lease Agreement. |
The Used Aircraft shall be delivered to the Lessee at Toulouse (France) airport or any such other European airport as the Lessor may notify in writing to the Lessee. |
6. LEASE TERM: |
The lease period for the Used Aircraft shall be approximately [*****], depending on the Used Aircraft. |
The Used Aircraft shall be returned to the Lessor according to the following schedule: |
Used Aircraft N°1: | Upon delivery of Aircraft N°4 (scheduled for [*****] according to the delivery Schedule set forth in Clause 9.1 of this Contract)
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Used Aircraft N°2: | Upon Delivery of Aircraft N°6 (scheduled for [*****] according to the delivery Schedule set forth in Clause 9.1 of this Contract)
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Used Aircraft N°3: | Upon Delivery of Aircraft N°8 (scheduled for [*****] according to the delivery Schedule set forth in Clause 9.1 of this Contract)
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Used Aircraft N°4: | Upon Delivery of Aircraft N°9 (scheduled for [*****] according to the delivery Schedule set forth in Clause 9.1 of this Contract)
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Used Aircraft N°5: | Upon Delivery of Aircraft N°10 (scheduled for [*****] according to the delivery Schedule set forth in Clause 9.1 of this Contract) | |||
Used Aircraft N°6: | Upon Delivery of Aircraft N°11 (scheduled for [*****] according to the delivery Schedule set forth in Clause 9.1 of this Contract)
| |||
Used Aircraft N°7: |
Upon Delivery of Aircraft N°12 (scheduled for [*****] according to the delivery Schedule set forth in Clause 9.1 of this Contract)
|
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Used Aircraft N°8 : |
Upon Delivery of Aircraft N°13 (scheduled for [*****] according to the delivery Schedule set forth in Clause 9.1 of this Contract) |
The Lessor reserves the right to select which specific MSN shall be returned [*****], subject to giving the Lessee a notice thereof at the latest on [*****]. |
7. LEASE RENTALS: |
Rentals throughout the Lease Term of each Used Aircraft (the Rents) shall be [*****], prorated for a shorter period. |
All Rents payable hereunder shall be paid in [*****] and shall be net of withholding or any other tax or deduction. |
This is a net lease and the rights of the Lessor in and to the Rents shall be absolute and unconditional and shall not be subject to any reduction, set-off, defence, counterclaim or recoupment for any reason whatsoever. |
8. SECURITIES: |
8.1 Used Aircraft [*****] |
Buyer has already provided Seller in the form of [*****] in the amount of [*****] per Used Aircraft for each of the [*****] Used Aircraft. |
The Used Aircraft [*****] for any Used Aircraft shall be [*****] upon payment by the Lessee of the [*****] for that Used Aircraft pursuant to the relevant Operating Lease Agreement. |
The Used Aircraft [*****] will be the property of the Lessor and [*****] except as specifically provisioned under this Agreement. |
8.2 First Deposit |
Upon execution of the Operating Lease Agreement for any Used Aircraft, the Lessee shall provide the Lessor [*****] for that Used Aircraft. |
In case of Seller or any Sellers subsidiary being the Lessor of any Aircraft (as opposed to a third party lessor that is unrelated to Seller), the [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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8.3 Second Deposit |
On or prior to the delivery of any Used Aircraft, the Lessee shall provide the Lessor [*****] in an amount equal to [*****]. |
8.4 Security |
The aggregate of [*****] for each Used Aircraft shall constitute [*****] upon such Used Aircraft delivery and shall be [*****] under the relevant Operating Lease Agreement. |
If the Lessee fails to comply with any provision of the relevant Operating Lease Agreement or any event of default occurs and is continuing, the Lessor may immediately or at any time thereafter without prior written notice to the Lessee [*****]. |
8.5 [*****] |
At Buyers request, [*****]. |
[*****] |
9. OPERATING COSTS: |
The lease of the Used Aircraft is on the basis of a net lease and the Lessee shall be responsible for all costs (save as agreed otherwise herein) associated with the delivery and redelivery, possession, insurance, operation, maintenance and use of the Used Aircraft including taxes, withholdings and duties of any kind. |
The Lessor shall however be responsible for its own income taxes in any relevant jurisdiction. |
10. MAINTENANCE |
10.1 General Principles |
The Used Aircraft shall be maintained to the Lessees certification authority and country of registers certification authority approved maintenance program by a maintenance contractor reasonably approved by the Lessor and at the expense of the Lessee. |
In the event of the Lessee performing scheduled maintenance during the Lease Term on any Used Aircraft propeller, landing gear or |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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engine, the Lessor shall bear the cost of leasing a replacement propeller, landing gear or engine (as applicable, with the exception however of those engines that have been delivered to the Lessee fresh from HSI or overhaul). The Lessee shall however continue to pay to the Lessor Supplemental Rents for the hours accumulated on such propeller, landing gear or engine (as applicable). |
Notwithstanding the above, the Lessor shall bear the cost of any Used Aircraft unscheduled airframe maintenance, if the reason of such maintenance is a defect existing on such Used Aircraft on or prior its delivery to the Lessee. |
10.2 Mandatory Modifications |
The Used Aircraft shall be in compliance with all Airworthiness Directives and all Service Bulletins mandatory issued during the Lease Term affecting the Used Aircraft and having a compliance date within the lease term. |
Should the Lessee be obliged to implement a mandatory modification on the Used Aircraft so as to conform with the above paragraph, then the Lessor shall make a contribution to the cost of such mandatory modification by payment to the Lessee of an amount equal to: |
[*****] [*****]
[*****]
[*****] [*****]
[*****]
[*****] [*****]
11 [*****] : |
The Lessee shall pay[*****] to the Lessor each month [*****]. |
As a separate obligation, the Lessor shall make [*****] to the Lessee, upon submission by the Lessee to the Lessor of invoices evidencing [*****]. |
Payments of [*****] and of [*****] shall be governed by a [*****] (with respect to each Aircraft the [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Each [*****] shall be substantially the same (except for the specifics of each Used Aircraft such as MSN and delivery date) as the [*****] already executed by and between the Lessor and the Lessee for the [*****]. |
12. INSURANCE: |
The Lessee shall at all times during the Lease Term and at its own expense maintain comprehensive airline liability insurance, including passenger, baggage, cargo and Airline General Third Party Legal Liability, all risks hull and hull war, confiscation, nationalization, expropriation, political risk and related perils. The Lessor shall be named as additional insured in respect of liability insurance and as sole loss payee with respect to the hull insurance. |
With respect to all risks hull and war and allied perils insurance, the Lessor shall be the sole Loss Payee. Public Liability insurance shall have a minimum coverage of [*****]. |
13. REGISTRATION: |
The Aircraft shall remain throughout the Lease Term under the Brazilian Register or under any other register that the Lessor in its sole discretion may approve, subject to the Lessee providing the appropriate securitization for de-registration purpose. |
In this respect, a set of documents including but not limited to a de-registration power of attorney and a legal opinion shall be asked to be provided by the Lessee at Lessees cost within the lease documents in order to make the Lessors rights enforceable. |
14. RETURN CONDITIONS: |
The Aircraft shall be returned in [*****] as may be notified in writing by the Lessor to the Lessee. |
The Aircraft shall be returned to the Lessor with a valid Export Certificate of Airworthiness or equivalent document issued by the certification authority of the country of registration and in a state and condition reflecting in essence the delivery conditions set forth in this Appendix P. |
The Lessee shall however be [*****] affecting the airframe, the engines, the propellers, the landing gears and other [*****] components. |
15. COSTS AND EXPENSES: |
The Lessor and the Lessee shall each be responsible for their own legal fees incurred in the negotiation of the Operating Lease Agreements. |
The Lessee shall be responsible for all costs associated with perfecting the Lessors ownership interest and the Operating Lease Agreements in the state of registration, the state of habitual base of the Aircraft (and other states as appropriate given the operation of the Aircraft). |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The Lessee shall also be responsible for all costs incurred by the Lessor in connection with the enforcement of preservation of Lessors rights under the Operating Lease Agreements. |
15. GOVERNING LAW: |
Each of the Operating Lease Agreements and all operative documents shall be construed, governed by and performance thereof shall be determined in accordance with the laws of New York. Any dispute under the Operating Lease Agreements shall be submitted and finally resolved by the courts of the State of New York. |
16. USED AIRCRAFT [*****]: |
Seller reserves the right to [*****] being understood that (i) [*****] and (ii) [*****]. |
In such an event, the provisions of this Appendix P shall remain valid. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] [*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] [*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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FORM OF AIRCRAFT CERTIFICATE OF ACCEPTANCE
This Certificate of Acceptance is delivered on the date set forth below by CANELA INVESTMENTS LLC (the Buyer) to AVIONS DE TRANSPORT REGIONAL (the Seller), pursuant to an aircraft sale and purchase contract dated as of 15th December 2010 between Seller and Buyer (the Contract). Terms used in this Certificate of Acceptance shall have the meaning given to such terms in the Contract.
The Acceptance Flight Tests relating to the ATR 72-600 Aircraft, Manufacturers Serial Number [MSN], Registration Marks [], have been carried out at Sellers delivery center located at [*****], on the [day]th day of [month] [year].
In view of said tests having been carried out with satisfactory results, CANELA INVESTMENTS LLC whose main address is at Corporation Trust Center, 1209 Orange Center, Wilmington, U.S.A, hereby irrevocably approves this Aircraft as being in conformity with the provisions of the aforesaid Contract.
Said Acceptance does not impair the rights that CANELA INVESTMENTS LLC may derive from the warranties granted by AVIONS DE TRANSPORT REGIONAL.
Made in Blagnac, on this [day]th day of [month] [year]
For and on behalf of
CANELA INVESTMENTS LLC
Name:
Title:
Signature:
Date:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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FORM OF AIRCRAFT BILL OF SALE
Know all men by these presents that the undersigned AVIONS DE TRANSPORT REGIONAL (ATR), a French Groupement dIntérêt Economique whose registered address is 1, Allée Pierre Nadot31712 Blagnac Cedex, FRANCE, is the owner of the full legal and beneficial title of the following Aircraft:
MANUFACTURER OF AIRCRAFT |
MANUFACTURER OF PROPULSION SYSTEM |
ATR |
PRATT & WHITNEY CANADA INC. |
MODEL |
MODEL |
ATR 72-600 |
PW 127 Mengines |
568F-1propellers
MANUFACTURER SERIAL NUMBER |
MANUFACTURER SERIAL NUMBERS |
[ ] |
L/H engine: [ ] |
R/H engine: [ ]
L/H propeller: [ ] |
R/H propeller: [ ]
REGISTRATION MARKS
[ ]
That such title to said Aircraft is free and clear of all mortgages or other encumbrances.
The Groupement dIntérêt Economique AVIONS DE TRANSPORT RÉGIONAL whose registered office is situated at 1, Allée Pierre Nadot31712 BLAGNAC CÉDEX, FRANCE does this [day] day of [month] [year], sell, grant, transfer and deliver all of its above described right, title to the above described Aircraft together with all equipment installed therein unto CANELA INVESTMENTS LLC whose main address is at Corporation Trust Center, 1209 Orange Center, WILMINGTON, U.S.A and to its successors and assigns forever, said Aircraft to be registered as the property of CANELA INVESTMENTS LLC
In witness whereof, the present document has been executed by a duly authorized representative.
Made in Blagnac, on this [day] day of [month] [year]
For and on behalf of
AVIONS DE TRANSPORT REGIONAL
Name:
Title:
Signature:
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DATED DECEMBER 22nd 2011
AVIONS DE TRANSPORT REGIONAL G.I.E.
as Seller
and
CANELA INVESTMENTS LLC
as Buyer
AMENDMENT AGREEMENT N°1
In respect of a
SALE AND PURCHASE CONTRACT
DATED DECEMBER 14th 2010
Draft Issue 1 December 16th, 2011
CONFIDENTIAL TREATMENT REQUESTED
Draft Issue 1 December 16th, 2011
THIS AMENDMENT AGREEMENT N°l is made on the 22nd day of December 2011.
BETWEEN:
(1) | AVIONS DE TRANSPORT REGIONAL, a Groupement dInterét Economique governed by the laws of France, identified under number 323 932 236 RCS Toulouse, the head office of which is located at 1. Allée Pierre Nadot, 31712 BLAGNAC CEDEX, FRANCE (hereinafter referred to as Seller, which expression shall include its successors or permitted assignees unless the context otherwise requires) on the one part; |
AND
(2) | CANELA INVESTMENTS LLC, a limited liability company organized and existing under the laws of Delaware, with its main address at Corporation Trust Center, 1209 Orange Center, Wilmington, U.S.A (hereinafter referred to as the Buyer). |
WHEREAS
(1) | On December 14th 2010, Canela Investments LLC (the Buyer) and Avions de Transport Régional (the Seller) have entered into a sale and purchase contract (as amended and supplemented from time to time, the Contract) relating to the purchase of twenty (20) firm ATR 72-600 aircraft and up to twenty (20) optional ATR 72-600 aircraft (the Aircraft). |
(2) | Buyer and Seller now wish to amend the terms of the Contract. |
NOW THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, the parties hereto agree as follows:
1. | DEFINITIONS |
1.1 | All capitalised terms used herein and not otherwise defined shall have the meaning ascribed thereto in the Contract. |
2. | AMENDMENT TO CLAUSE 6 OF THE CONTRACT |
2.1 | In Clause 6.2.1.2 of the Contract, the words [*****] wherever they appear, shall be deleted and replaced by the words [*****]. |
3. | AMENDMENT TO APPENDIX J OF THE CONTRACT |
3.1 | In Clause 4.2 of Appendix J (Training) of the Contract, the last paragraph shall be deleted in its entirety and replaced by the following paragraph: |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
ATR / Canela 20 Firm + 10 Option + 10 Additional ATR 72-600 Aircraft
Sale and Purchase Contract Amendment Agreement N°1
Page 2 |
CONFIDENTIAL TREATMENT REQUESTED
Draft Issue 1 December 16th, 2011
The usage of the above Web Based Trainer shall be granted to Buyer [*****].
3.2 | In Clause 4.3 of Appendix J (Training) of the Contract, the first paragraph shall be deleted in its entirety and replaced by the following paragraph: |
Seller shall provide Buyer [*****].
3.3 | The following new clause 4.4 shall be added after Clause 4.3 of Appendix J (Training) of the Contract: |
4.4 | Single-point Performance Software (SPS) |
Seller shall provide Buyer [*****].
The above SPS license may be installed [*****].
4. | MISCELLANEOUS |
4.1 | This Amendment Agreement N°1 (the Amendment Agreement N°l) to the Contract (i) is an integral part thereof, (ii) is subject to all of the terms and conditions contained therein and (iii) evidences our further agreement with respect to the matters set forth below. |
4.2 | Unless the context otherwise requires, capitalised terms used herein and not otherwise defined in this Amendment Agreement N°1 shall have the same meanings ascribed to them in the Contract. In the event of contradiction between the terms of this Amendment Agreement N°1 and the terms of the Contract, the terms of this Amendment Agreement N°1 shall prevail. |
4.3 | Section headings and/or numberings are inserted for convenience only and shall not in any way affect the interpretation of this Amendment Agreement N°1 and/or of the Contract. |
4.4 | Seller hereby makes for the benefit of Buyer each of the representations made pursuant to Clause 25.3 of the Contract as of the date hereof with reference to the circumstances existing as of the date hereof |
4.5 | Buyer hereby makes for the benefit of Seller each of the representations made pursuant to Cause 25.4 of the Contract as of the date hereof with reference to the circumstances existing as of the date hereof. |
4.6 | The provisions of Clause 27 (Applicable Law & Arbitration) of the Contract shall apply mutatis mutandis to this Amendment Agreement N°1. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
ATR / Canela 20 Firm + 10 Option + 10 Additional ATR 72-600 Aircraft
Sale and Purchase Contract Amendment Agreement N°1
Page 3 |
Draft Issue 1 December 16th, 2011
If the terms of this Amendment Agreement N°1 meet your approval please so indicate by signing in the space provided below.
For and on behalf of: CANELA INVESTMENTS LLC |
For and on behalf of: AVIONS DE TRANSPORT REGIONAL | |||||
Signature: | /s/ Gerald B. Lee |
Signature: | /s/ J. Desbarats | |||
Executed by: | Gerald B. Lee | Executed by: | J. Desbarats | |||
Title: | AttorneyInFact | Title: | SUP Commercial | |||
Date: | December 16, 2011 | Date: | December 16, 2011 | |||
ATR / Canela 20 Firm + 10 Option + 10 Additional ATR 72-600 Aircraft
Sale and Purchase Contract Amendment Agreement N°1
Page 4 |
DATED DECEMBER 4th 2012
AVIONS DE TRANSPORT REGIONAL G.I.E.
as Seller
and
CANELA INVESTMENTS LLC
as Buyer
AMENDMENT AGREEMENT N°2
In respect of a
SALE AND PURCHASE CONTRACT
DATED DECEMBER 14th 2010
CONFIDENTIAL TREATMENT REQUESTED
Execution version
THIS AMENDMENT AGREEMENT N°2 is made on the 4th day of December 2012.
BETWEEN:
(1) | AVIONS DE TRANSPORT REGIONAL, a Groupement dInterét Economique governed by the laws of France, identified under number 323 932 236 RCS Toulouse, the head office of which is located at 1, Allée Pierre Nadot, 31712 BLAGNAC CEDEX, FRANCE (hereinafter referred to as Seller, which expression shall include its successors or permitted assignees unless the context otherwise requires) on the one part; |
AND
(2) | CANELA INVESTMENTS LLC, a limited liability company organized and existing under the laws of Delaware, with its main address at Corporation Trust Center, 1209 Orange Center, Wilmington, U.S.A (hereinafter referred to as the Buyer). |
WHEREAS
(1) | On December 14th 2010, Canela Investments LLC (the Buyer) and Avions de Transport Régional (the Seller) have entered into a sale and purchase contract (as amended and supplemented from time to time, the Contract) relating to the purchase of twenty (20) firm ATR 72-600 aircraft and up to twenty (20) optional ATR 72-600 aircraft (the Aircraft). |
(2) | Buyer and Seller now wish to amend the terms of the Contract. |
NOW THEREFORE,
for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by the parties hereto, the parties hereto agree as follows:
1. | DEFINITIONS |
1.1 | All capitalised terms used herein and not otherwise defined shall have the meaning ascribed thereto in the Contract. |
2. | AMENDMENT TO APPENDIX O OF THE CONTRACT |
2.1 | In Clause 2.1 of Appendix O (Additional Aircraft) of the Contract, the words [*****] shall be deleted and replaced by the words [*****]. |
3. | MISCELLANEOUS |
3.1 | This Amendment Agreement N°2 (the Amendment Agreement N°2) to the Contract (i) is an integral part thereof, (ii) is subject to all of the terms and conditions contained therein and (iii) evidences our further agreement with respect to the matters set forth below. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
1 |
Execution version
3.2 | Unless the context otherwise requires, capitalised terms used herein and not otherwise defined in this Amendment Agreement N°2 shall have the same meanings ascribed to them in the Contract. In the event of contradiction between the terms of this Amendment Agreement N°2 and the terms of the Contract, the terms of this Amendment Agreement N°2 shall prevail. |
3.3 | Section headings and/or numberings are inserted for convenience only and shall not in any way affect the interpretation of this Amendment Agreement N°2 and/or of the Contract. |
3.4 | Seller hereby makes for the benefit of Buyer each of the representations made pursuant to Clause 25.3 of the Contract as of the date hereof with reference to the circumstances existing as of the date hereof |
3.5 | Buyer hereby makes for the benefit of Seller each of the representations made pursuant to Cause 25.4 of the Contract as of the date hereof with reference to the circumstances existing as of the date hereof. |
3.6 | The provisions of Clause 27 (Applicable Law & Arbitration) of the Contract shall apply mutatis mutandis to this Amendment Agreement N°2. |
If the terms of this Amendment Agreement N°2 meet your approval please so indicate by signing in the space provided below.
For and on behalf of: CANELA INVESTMENTS LLC |
For and on behalf of: AVIONS DE TRANSPORT REGIONAL | |||||
Signature: | /s/ John Peter Rodgerson |
Signature: | /s/ J. DESBARATS | |||
Executed by: | John Peter Rodgerson | Executed by: | J. DESBARATS | |||
Title: | Canela Investments, LLC Managing Director |
Title: | SVP COMMERCIAL | |||
Date: | December 4th, 2012 | Date: | December 4th, 2012 | |||
2 |
Execution version
Exhibit 10.3
CONFIDENTIAL TREATMENT REQUESTED REDACTED COPY
Confidential Treatment has been requested for portions of this Exhibit. Confidential
portions of this Exhibit are designated by [*****]. A complete version of this Exhibit has
been filed separately with the Securities and Exchange Commission.
GLOBAL MAINTENANCE AGREEMENT
Contract No. DS/CS-3957/14 issue 7
Between
AZUL LINHAS AÉREAS BRASILEIRAS S/A
(as Company)
and
AVIONS DE TRANSPORT REGIONAL, G.I.E.
(as Repairer)
March 9th, 2015
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CONTENTS
Clause |
Page | |||||
1. | SUBJECT-MATTER OF THE AGREEMENT | 6 | ||||
2. | DEFINITIONS AND INTERPRETATION | 6 | ||||
3. | DURATION AND RENEWAL | 15 | ||||
4. | EXCUSABLE DELAY | 15 | ||||
5. | SERVICES, LEASE AND OBLIGATIONS OF THE PARTIES | 16 | ||||
6. | DELIVERIES | 18 | ||||
7. | WORK ORDERS | 20 | ||||
8. | INSURANCES | 21 | ||||
9. | WARRANTIES | 22 | ||||
10. | PRICES | 22 | ||||
11. | RECONCILIATION | 22 | ||||
12. | INVOICING AND PAYMENT TERMS | 23 | ||||
13. | SECURITY DEPOSIT | 26 | ||||
14. | DISCLAIMER | 27 | ||||
15. | LIABILITY AND INDEMNITY | 27 | ||||
16. | TERMINATION | 28 | ||||
17. | CONDITIONS PRECEDENT | 31 | ||||
18. | EXPORT CONTROL | 31 | ||||
19. | NOTICES | 31 | ||||
20. | CONFIDENTIALITY | 32 | ||||
21. | TAXES | 34 | ||||
22. | ASSIGNMENT | 34 | ||||
23. | MISCELLANEOUS | 35 | ||||
24. | GOVERNING LAW AND ARBITRATION | 37 |
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39 | ||||
EXHIBIT 1 - LIST OF ATR AIRCRAFT COVERED UNDER THIS AGREEMENT |
40 | |||
42 | ||||
43 | ||||
44 | ||||
45 | ||||
EXHIBIT 6 - LRUS COVERED BY REPAIR AND STANDARD EXCHANGE SERVICES |
61 | |||
70 | ||||
74 | ||||
80 | ||||
84 | ||||
86 | ||||
92 | ||||
93 | ||||
94 | ||||
101 | ||||
106 | ||||
108 | ||||
109 |
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THIS GLOBAL MAINTENANCE AGREEMENT (HEREINAFTER REFERRED TO AS THE AGREEMENT OR GMMA) IS MADE ON March 9th 2015:
BETWEEN:
AZUL LINHAS AÉREAS BRASILEIRAS S/A, a company incorporated under the laws of Brazil, the registered office of which is located at Avenida Marcos Penteado de Ulhôa Rodrigues, 939 - Edif. Castello Branco Office Park - Torre Jatobá - 9° andar - CEP 06460-040 - Alphaville Industrial - Barueri - São Paulo - Brazil, identified under Cadastro Nacional de pessoa Juridica (CNPJ) number 09.296.295/0001-60.
Hereafter referred to as the Company or AZUL,
on the one part,
AND:
AVIONS DE TRANSPORT REGIONAL, G.I.E., a French groupement dintérêt économique established under articles L.251-1 to L251-23 of the French Commercial Code, whose registered office is at 1 allée Pierre Nadot, 31712 Blagnac, France identified under Corporate and Trade Register of Toulouse number 323 932 236,
Hereafter referred to as the Repaireror ATR,
on the other part.
Hereinafter individually referred to as the Party or collectively as the Parties, as the context requires.
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RECITALS:
1) | WHEREAS AZUL and ATR have entered into a Global Maintenance Agreement ref DS/CC-2612/10 (dated December 24th, 2010) to support AZUL ATR aircraft fleet for operational support tasks as well as scheduled and unscheduled maintenance, as amended from time to time (GMA AZUL); and, |
2) | WHEREAS TRIP and ATR have entered into a Global Maintenance Agreement ref DS/C- 2883/09 (dated September 10th, 2010) to support TRIP ATR aircraft fleet for operational support tasks as well as scheduled and unscheduled maintenance, as amended from time to time (GMA TRIP); and, |
3) | WHEREAS pursuant to an investment agreement dated on May 25, 2012, entered into between Trip shareholders and Azul S.A., TRIP became a wholly owned subsidiary of the latter, integrating the Azul Group which already includes AZUL, an operating company, as duly approved in due time by their respective corporate governing bodies and the relevant authorities (National Civil Aviation Agency-ANAC-and Brazilian Antitrust Authority-CADE); and |
4) | WHEREAS further to operation as detailed above in 3), AZUL progressively operated an enlarged fleet of Aircraft coming from TRIP; and, |
5) | WHEREAS, in consideration of the local repair service in Brazil and the Aircraft fleet now solely operated by AZUL, the Parties wish to terminate the GMA TRIP and the GMA AZUL, and to enter into negotiation for a new GMLA between ATR and AZUL, on the terms and conditions set forth herein. |
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
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1. | SUBJECT-MATTER OF THE AGREEMENT |
This Agreement describes the terms and conditions according to which the Repairer (i) shall provide, or cause its Subcontractors to provide, Services for the Companys Aircraft fleet; and (ii) agrees to lease the Stock to the Company and the Company agrees to take the Stock on lease, subject to the terms and conditions set forth on Exhibit 8.
2. | DEFINITIONS AND INTERPRETATION |
2.1 | Unless otherwise defined, capitalised terms, singular or plural, used in this Agreement shall have the meaning set out below: |
Abnormal Use |
means any usage, maintenance, storage, handling of the Aircraft, or its sub-assemblies, or its systems, or Items fitted on it including LRUs, Main Elements, Spare Main Elements, that does not comply with all applicable technical documentation and any other instructions issued by the manufacturers and which is not attributable to the Repairer or Subcontractors, including:
(i) Any failure by the Company to correctly comply with any Repairer and/or OEM instructions or recommendations, technical directives, or any workmanship defect, lack of qualification, non-approved repair and/or maintenance method; or,
(ii) Any negligence or failure to exercise reasonable effort(s) made to initiate corrective action(s), or lateness or total or partial failure in undertaking corrective action(s), for Aircraft or LRU(s) or Main Element(s) malfunctions which should have been reasonably identified by the Company; or,
(iii) Any Aircraft, LRU(s) or Main Element(s) suffering damage or premature removal arising out of or in connection with any defective storage, inappropriate Packaging or transport by the Company or its forwarder agent, or gross negligence or wilful misconduct of the Company(or its subcontractors or agents); or
(iv) Any events or circumstances, including: FOD, abnormal wear, hard contact, material drop or shock, engine fire or submersion, lightning strike, hard landing, hail (including on storage position), partial or total destruction or loss of Aircraft, LRU(s) or, Main Element(s); | |
Affiliates |
means with respect to any entity, any entity Controlled by, Controlling or under Common Control with, the first entity, and/or their respective lawful successors and/or assigns; | |
Agreement |
has the meaning set forth in page four (4) here above; | |
Aircraft |
means collectively or individually as the context requires the ATR aircraft listed in Exhibit 1 (List of ATR Aircraft covered under this Agreement), amended from time to time by way of notice sent to the Company , as relevant, by Repairer in order to cover any further ATR aircraft entering the Companys fleet, including the airframe, engines, propellers and landing gears and parts installed on the Aircraft, when solely operated by the Company ; |
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CONFIDENTIAL TREATMENT REQUESTED
Airworthiness Authority |
means, in respect of any jurisdiction, the Government Entity, which under the laws of such jurisdiction, has control over civil aviation or the registration, airworthiness, operation of aircraft in such jurisdiction, including, in the European Union, the European Aviation Safety Agency (the EASA) and, in the United States of America, the Federal Aviation Administration (the FAA); | |
Airworthiness Directives or AD |
means enforceable rules issued by the relevant Airworthiness Authorities that have a mandatory impact on Aircraft operation and/or maintenance; | |
Aircraft Maintenance Manual or AMM |
means the customized manual, drafted in compliance with the ATA100 specifications, issued by ATR, as Aircraft manufacturer, and which is split into three (3) separate parts, namely: the Description and Operation Manual, the Trouble Shooting Manual and the Job Instruction Cards; the purpose of which is to provide all information required for Aircraft maintenance, while ensuring personnel and flight safety; | |
Aircraft On Ground or AOG |
means the highest priority designation to process a requirement for an LRU and/or maintenance action; when applied to an Aircraft, such term indicates that such Aircraft is unable to continue or to be returned to revenue service until that appropriate action is taken; | |
ANAC |
means Agência Nacional de Aviação Civil, the Brazilian Civil Aviation Authority; | |
ATA |
means Air Transport Association of America Inc.; | |
ATA 300 |
means documentation issued by ATA (as amended from time to time, or any other ATAs substituted documentation) reviews the design, development and procurement of effective packaging of supplies shipped by either Party to the other Party; it provides packaging instructions for repairable and expendable units and components, included packaging standards for kits, preparation of hazardous materials for shipment and handling of electrostatic discharge sensitive devices. | |
BER or Beyond Economical Repair |
means the case in which the repair cost of any unserviceable Item is greater than [*****] of the price for a brand new identical LRU and/or Main Element; | |
BUR or Basic Unscheduled Removal |
means any basic unplanned removal, premature removal of a LRU or a Main Element, due to a sub-component or accessory induced malfunction. Likewise, removal of a LRU and/or a Main Element, component or accessory due to a problem which could have been rectified using troubleshooting and/or corrective line maintenance actions as specified in the applicable AMM is not considered to be a BUR; | |
Business Day |
means a day, other than a Saturday or a Sunday, on which banks are open for the transaction of domestic and foreign exchange business in Paris (France) and São Paulo (Brazil); | |
CMM or Component Maintenance Manuals |
means a manual issued either by any relevant OEM and containing instruction concerning the overhaul and/or repair of components together with procedures for restoring such components to a fully serviceable condition. These manuals shall be compliant with ATA100 Specification; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Confidential Information |
means all and/or any part of any information and/or data disclosed to and/or obtained by either Party from the other Party during the Term relating to or in connection with the performance of this Agreement; such information is conclusively considered as confidential without it being necessary to mention at the moment of its disclosure, and includes: (i) technical information, such as instructional know-how, academic and/or practical maintenance courses and/or aircraft piloting courses, programs, software, manufacturing secrets, processes, prototypes, research work, studies, plans, sketches, formulae, samples, specifications, diagrams, etc., (ii) commercial information, such as list of customers, suppliers, etc., (iii) financial (tariffs, margins, market parts, etc.), (iv) legal information, such as the Agreement, Exhibits, contracts, amendments, appendices, contractual relations, negotiations, partners, etc. and (v) written, electronic or oral information (hard copy, computer, digital, etc.); | |
Control, Controlled, Controlling and Common Control |
are to be interpreted as follows:
I. A company is deemed to control another company:
(i) When it directly or indirectly holds a fraction of the capital that gives it a majority of the voting rights at that companys general meetings;
(ii) When it alone holds a majority of the voting rights in that company by virtue of an agreement entered into with other partners or shareholders and this is not contrary to the companys interests;
(iii) When it effectively determines the decisions taken at that companys general meetings through the voting rights it holds;
(iv) When it is a partner in, or shareholder of, that company and has the power to appoint or dismiss the majority of the members of that companys administrative, management or supervisory structures.
II.It is presumed to exercise such control when it directly or indirectly holds a fraction of the voting rights above 40% and no other partner or shareholder directly or indirectly holds a fraction larger than its own.
III.For the purposes of the same sections of the present chapter, two or more companies acting jointly are deemed to jointly control another company when they effectively determine the decisions taken at its general meetings. | |
Core Unit |
means any unserviceable LRU returned by the Company to the Repairer as a counterpart to standard exchange; | |
Credit Note |
Credit Note Means the credit note to be issued by the Repairer in accordance with Clause 11 (Reconciliation) of this Agreement. | |
CSN |
means the accrued Cycles Since New; | |
CSO |
means the accrued Cycles Since Overhaul; | |
CY or Cycle |
means a completed Aircraft takeoff and landing sequence; | |
Day |
means a calendar day; |
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Default |
means any failure by either Party to perform or observe any material obligation under this Agreement, including as set forth with Clause 16.1 b) and including Abnormal Use; | |
Delivery |
means the act of the Repairer putting at the Companys disposal any Item at Delivery Location according to the terms of this Agreement; | |
Delivery Location |
means the Repairers facility as defined under Clause 6 (Deliveries) of this Agreement; | |
Early Event |
concerns LRU and/or Main Element and/or Aircraft airframe maintenance subject to Scheduled Event and designates a situation where a Scheduled Event takes place before it is scheduled pursuant to Exhibit 11 Clause 1.2 for the Main Element and/or to the CMM for the LRU when applicable; | |
End Date |
means the date on which this Agreement is terminated or expires, and shall be the earlier to occur of the following, as appropriate:
(i) the end of the Initial Term as defined in Clause 3.1of this Agreement; or,
(ii) the end of the term of each annual renewal of this Agreement as per Clause 3.2 of this Agreement; or,
(iii) the date on which all or part of this Agreement is terminated as per Clause 16 (Termination); | |
Euros or |
designates the legal currency of the member countries of the European Union who have adhered to the European Monetary Union; | |
Excusable Delay |
has the meaning set forth in Clause 4.1 of this Agreement; | |
Fleet Turnover |
means the amount normally invoiced under this Agreement using the Standard Operations and all applicable prices in Exhibit 14 (Price conditions); | |
FHor Flight Hour |
means airborne flight hour, the unit of measure of each Aircraft flight activity for the time elapsed between Aircraft take-off and Aircraft landing; | |
FOD |
stands for Foreign Object Damage and means any damage, whether direct or indirect, to any Item and/or the airframe caused as a result of or related to any foreign object not forming part of any Item and/or the airframe; | |
Government Entity |
means any national government, political subdivision thereof, or local jurisdiction thereof; | |
Incoterms |
means the international rules for the interpretation of trade terms published by the International Chamber of Commerce (ICC), 2000 edition; | |
Initial Term |
has the meaning set forth in Clause 3.1 of this Agreement; | |
Item |
means, as the case may be, any LRU, Main Element, Spare Main Element, any of their sub-assembly or sub-component, any part of the Stock, or for the sake of clarity any part covered under this Agreement; |
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CONFIDENTIAL TREATMENT REQUESTED
Law |
means any applicable law, order, statute, statutory instrument, regulation, decree, directive or instrument of equivalent effect; | |
LIBOR |
stands for London Interbank Offered Rate, which designates the annual rate equal to one month in Eurodollars quoted at 11:00 hours or approximately 11:00 hours (London time), as indicated on Reuters screen LIBOR01page, for an amount and period selected by the Repairer, which is available to the subscribers to the Telerate electronic display terminal, [*****] prior to the corresponding period; | |
LOC or StandBy Letter of Credit |
means an irrevocable letter of credit in the form or substantial form stipulated by Exhibit 13 (Form of StandBy Letter of Credit), in accordance with Uniform Customs and Practice (UCP) for the documentary credit, 2007 revision, ICC publication n°600, issued by a major international bank, confirmed by and domiciliated in NATIXIS, Paris, France, provided by the Company to the Repairer in accordance with Clause 13 (Security Deposit) of this Agreement; | |
Loss |
means any and all losses, costs, charges, expenses, interests (including default interest), fees (including legal fees and value-added tax thereon if applicable), payments, demands, liabilities, claims, actions, proceedings (including stamp, documentary, registration or other duties, taxes or any charges incurred by and/or in connection with proceedings), penalties, damages, adverse judgments, orders or other sanctions; | |
Lost Potential |
with respect to LRU and/or Main Elements subject to Scheduled Events, designates, in the case of an Early Event, [*****]; | |
LRU(s) or Line Replaceable Unit(s) |
means any equipment that can be replaced on line by the Companys technicians and listed into Exhibit 6 (LRUs covered by repair and standard exchange Services); | |
Main Element |
means a propeller and/or a landing gear and/or an engine as listed in Exhibit 3 (Main Elements and part numbers covered by this Agreement) and/or in Exhibit 5 (Stock), or any of their respective sub-assemblies; | |
MMEL or Master Minimum Equipment List |
means a document provided by ATR providing operating and maintenance procedures for a categorized list of systems, instruments and equipment on an ATR aircraft that may be inoperative for flight; | |
Mean Time Between Unscheduled Removals or MTBUR |
means a figure for assessing performance calculated by dividing the total number of FH of the ATR aircraft worldwide fleet during a given period, by the number of unscheduled removals of LRUs recorded during the same period on the same fleet; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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MPD or Maintenance Planning Document |
means the documents issued by the Aircraft manufacturer, providing periodic maintenance requirements data necessary to plan and conduct the Aircraft maintenance checks and inspections, in force on the Signing Date; | |
MRBR |
means the Maintenance Review Board Report, which outlines the initial minimum maintenance requirements to be used in the development of an approved continuous airworthiness maintenance program for the Aircraft, and which is issued by the Maintenance Review Board (MRB); | |
Measured Removal Rate(s) or MRR |
designates, for the Aircraft and depending on the Aircraft age, the quantity of LRU removals per one thousand (1,000) FH, established in units and tens, to be measured during each period of three (3) consecutive Months of Aircraft activity during the Term for all LRUs listed into Exhibit 6 (LRUs covered by repair and standard exchange Services) excluding Main Elements and/or Main Element subassemblies, repair warranty and Rogue units; | |
Month |
refers to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month (and references to months shall be construed accordingly) save that, where any such period would otherwise end on a non-Business Day, it shall end on the next Business Day, provided that if a period starts on the last Business Day in a calendar month or if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last Business Day in that later month; | |
NFF or No Fault Found |
means any event where an Item removed from an Aircraft by the Company and returned to the Repairer for repair is declared serviceable with non-confirmed fault by the latter through strip report or where a serviceable Item removed from the Pool by the Repairer and delivered to the Company under the standard exchange Service set out in Exhibit 9 (Spare parts standard exchange Service) is returned by the Company to the Repairer unused; | |
Notice |
means any notice or communication pertaining to this Agreement which shall be given in writing delivered by hand and/or by courier service with proof of delivery and/or by fax, and:
a) if delivered by hand, shall have been deemed received when so delivered; or,
b) if delivered by registered mail, shall be deemed to have been received by the addressee on the Day on which it shall have signed as received; or,
c) if delivered by fax, shall be deemed to have been received by the addressee on the next Business Day following electronic acknowledgement.
In the event a Party chooses to give a Notice by several of the aforesaid means, the earliest of the receipt dates will be considered.
In any case, any notice or communication shall be also transmitted by an e-mail with attached copy of such (in format PDF or similar support)n, for courtesy purpose only. |
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OEM or Original Equipment Manufacturer |
means a manufacturer of parts other than ATR manufactured parts including the engine manufacturer, the propeller manufacturer, the landing gear manufacturer or an LRU manufacturer; | |
Packaging or Packed |
means packaging of any Item or packed Item, as relevant, shipped by either Party to other Party under the Agreement, in compliance with the following:
(i) Repairers and/or its suppliers and/or its Subcontractors and/or OEMs recommendations, as relevant; and
(ii) ATA 300 specifications for air transport; and/or
(iii) International Carriage Of Dangerous Goods By Road (ADR) regulation for good and reusable condition; and/or,
(iv) International Air Transport Association (IATA) Dangerous Goods Regulations, for any shipment of dangerous Items.
| |
Person |
means any state, division of a state, Government Entity, individual or corporate body or any association of any one or more of the foregoing; | |
Pool |
designates a stock of serviceable LRUs listed in Exhibit 6 (LRUs covered by repair and standard exchange Services), available on a non-exclusive basis to the Company under standard exchange Service as per Exhibit 9 (Spare parts standard exchange Service); such Pool may be amended from time to time by the Repairer by way of Notice sent to the Company, in compliance with this Agreement, subject to Companys approval. | |
Repair Shop |
means any FAA/EASA part 145 or ANAC approved repair shop selected by the Repairer and acting as its Subcontractor; | |
Repairer Indemnified Parties |
means the Repairer and/or ATR, as relevant, and/or their Affiliates and/or their respective lawful successors and/or assigns and/or their respective subsidiaries, officers, directors, employees, agents or Subcontractors; | |
Reference Removal Rate(s) or RRR |
designates the standard reference rate of LRU removals per one thousand (1,000) FH, established in units and tens, during each period of six (6) consecutive Months of Aircraft activity during the Term for all LRUs listed into Exhibit 6 (LRUs covered by repair and standard exchange Services) excluding Main Elements and/or Main Element sub-assemblies, and indicated in Clause 1.3.1 of the Exhibit 14 (Price conditions); | |
Rogue Units |
designates a LRU for which the same serial number has been removed from an Aircraft on three (3) or more occasions for similar discrepancies (except regarding specific services not covered by the Services and except to the extent caused by Companys Default), or four (4) NFF based on official Repair Shop data within a twelve (12) Month period, with confirmation of approved trouble shooting as per the CMM and/or the AMM; |
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Scheduled Event |
with respect to LRUs and/or Main Elements and/or Aircraft airframe that are subject to programmed overhauls and/or inspections, designates such overhaul and/or inspections that shall take place after a specified number of accrued FH and/or Cycles or Months as set out in Exhibit 11 (Main Elements Services) for the Main Elements and in the CMM for the relevant LRUs; | |
Security Deposit |
designates the cash payment and/or the LOC issued, as security for the Companys performance of all of its obligations under this Agreement, in compliance with Clause 13 (Security Deposit) of this Agreement; | |
Service |
means any and all operational support tasks to be carried out by the Repairer and/or its Subcontractors under this Agreement, as defined in Exhibit 2 (List of Services provided under this Agreement); | |
Signing Date |
means the date indicated on page four (4) of this Agreement and refers to the date on which this Agreement is signed by both Parties; | |
Spare Main Element |
means the spare Main Element(s) the Repairer makes available to the Company during Main Element maintenance according to Exhibit 11 (Main Elements Services); | |
Standard Operations |
has the meaning set forth in Clause 3.2 of Exhibit 14 (Price conditions); | |
Start Date |
means the date occurring thirty (30) Days after the Signing Date, subject to fulfilment of the conditions set out in Clause 17 (Conditions precedent); | |
Stock |
means all or part of the Items, as relevant, listed in Exhibit 5 (Stock); | |
Storage Location |
means Companys facilities where the Stock is located as defined in Exhibit 8 (Lease of the Stock); | |
Subcontractor |
means any Person, including a Repair Shop, engaged by the Repairer to support the Repairer in the performance of its contractual obligations under this Agreement; | |
SWIFT |
stands for the Society for Worldwide Interbank Financial Telecommunication; | |
Taxe(s) |
mean any and all present or future fees (including license, recording, documentation and registration fees), taxes [including income taxes, gross receipts taxes, capital taxes, franchise taxes, net worth taxes, gross profits taxes, sales taxes, rental taxes, use taxes, turnover taxes, value added taxes, ad valorem taxes, property taxes (tangible and intangible), excise taxes, customs or import duty, documentary and stamp taxes], licenses, levies, imposts, duties, charges, assessments or withholdings of any nature whatsoever, whether now existing or hereafter adopted, enacted or amended, howsoever imposed, levied or asserted by any Government Entity or taxing authority together with any and all penalties, fines, additions to tax and interest thereon; | |
TBO |
stands for Time Between Overhaul and means the FH or CY elapsed between two (2) consecutive overhauls; | |
Term |
means the period of time starting from the Signing Date and ending on the End Date; |
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Time and Material |
means any sale of goods and services, not covered by the scope of this Agreement and charged to the Company, which is subject to the ATR General Terms and Conditions for the Sale of Goods and Services; | |
TNR or Technically Non Reparable |
means where an unserviceable Item (i) is not repairable according to ATA 100 and/or (ii) for which no technical repair can be considered; | |
TSN or Time Since New |
means the FH elapsed since new; | |
TSO or Time Since Overhaul |
means the FH elapsed since the last overhaul; | |
US Dollar or $ |
designates the legal currency of the United States of America; | |
Vendor Warranty Manual |
means the manual giving details of the warranties granted by an OEM with respect to certain parts of Aircraft, provided by the said OEM; | |
Week |
means a period of seven (7) Days; | |
Work Order |
means any order issued by the Company to the Repairer for any of the Services and being one of the forms set out in Exhibit 7 ([Repairer standard Work Order forms), as applicable. |
2.2 | In this Agreement, save as otherwise expressly indicated to the contrary, any reference to: |
2.2.1 | this Agreement or any other agreement or document shall be construed as a reference to this Agreement or such other agreement or document as amended, novated or supplemented from time to time; any reference to this Agreement includes its Exhibits; and, |
2.2.2 | any Clause shall be construed as a reference to a clause of this Agreement and/or of an Exhibit to this Agreement, as relevant; and, |
2.2.3 | any Exhibit shall be construed as a reference to an Exhibit to this Agreement; and, |
2.2.4 | Headings: Clauses and Exhibits headings and sub-headings are used in this Agreement only for the ease of reading. They are not intended to affect its meaning and should not be used for the sake of its construction; and, |
2.2.5 | includingshall be construed as a reference to including, without limitation, or including but not limited to ; and, |
2.2.6 | Singular and plural: wherever the context so requires, the singular shall include the plural and vice versa; and, |
2.2.7 | a date will be by reference to the Gregorian calendar; and, |
2.2.8 | in writing includes any modes of reproducing words in a legible and non-transitory form but does not include e-mail (but can include the copy PDF of any document sent |
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by | e-mail); and, |
3. | DURATION AND RENEWAL |
3.1 | The Agreement enters into force on the Signing Date; it will have a duration of [*****] as from the Start Date (the Initial Term). |
3.2 | Upon expiry of the Initial Term, this Agreement [*****] unless a Notice of non-renewal is given by either Party to the other Party [*****] prior to the expiry of the Initial Term or the end of a renewal period, if any. |
3.3 | The Agreement shall end on the End Date without any further action, unless otherwise provided under this Agreement. |
4. | EXCUSABLE DELAY |
4.1 | If a Party (the Affected Party) is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by an event which is unpredictable and unavoidable, including war or civil or foreign armed aggression, riots, fires, floods, explosions, earthquakes or accidents, epidemics or quarantine restrictions, any act of a Government Entity, embargoes, export prohibitions, failure by a subcontractor and/or vendor to furnish supplies or parts or delay the same, strikes or labour troubles causing cessation of work, such event will be referred to as an Excusable Delay. |
4.2 | The Affected Party will give Notice to the other Party (the Non-Affected Party) of such Excusable Delay as soon as reasonably possible after it becomes aware thereof, and the Affected Party will use its reasonable endeavours to mitigate the effects of such Excusable Delay, without being obliged however to incur any unreasonable costs. |
4.3 | Neither Party shall be held liable, or deemed to be in Default, if it fails to perform its obligations under this Agreement due to an Excusable Delay; without prejudice to Clause 4.5 hereinafter, the time fixed for the performance by the Affected Party of its obligations affected by the Excusable Delay shall be equivalent to the time set out under this Agreement plus a grace period equivalent to the time lost further to the occurrence of and because of the Excusable Delay. |
4.4 | As soon as reasonably possible after the end of the Excusable Delay, the Affected Party shall give Notice to the Non-Affected Party that the Excusable Delay has ended. |
4.5 | If the Excusable Delay continues for more than [*****] as from the receipt by the Non-Affected Party of the Notice as per Clause 4.2, each Party shall be entitled to terminate this Agreement according to the terms of Clause 16.4 hereof. |
5. | SERVICES AND OBLIGATIONS OF THE PARTIES |
5.1 | Services |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The Repairer shall provide the Company with the Services listed in Exhibit 2 (List of Services provided under this Agreement).
5.2 | General conditions of the Services |
5.2.1 | The Services shall comply with the applicable AMM, MRBR and MPD issued by ATR, as Aircraft manufacturer, and the relevant CMM in force as of the Signing Date, and with the EASA and/or FAA or ANAC regulations in force at the time of performance of such Services |
5.2.2 | Should the AMM, MRBR or the MPD be modified in a manner that is likely to modify or impact the performance of the Services, the Parties hereby agree to negotiate in good faith the consequences of such modifications and impacts on this Agreement (including on the prices set out in Exhibit 14 Price conditions). |
5.2.3 | Audit of the Repair: Company shall have the right, under EUR OPS or PART M equivalent applicable regulation approval, to audit the management and the performance of the Services provided by the Repairer under this Agreement, subject to giving a [*****] prior Notice to the Repairer. The cost of any such audits by the Companys representative(s) shall be borne by the Company unless if, as a result of that audit, the Repairer is found to be in Default, in which cases the cost of such audit will be borne by the Repairer. |
5.2.4 | Companys audit: at any time during the Term, the Repairer may: |
(i) | audit the management and the performance of the Companys maintenance activities which are still under Companys responsibility; and/or, |
(ii) | arrange for operational visits, in order to check that the Company complies with its obligations under this Agreement; and/or, |
(iii) | investigate in any place, with the assistance of the Company, the causes of any abnormal removal or failure rate of any Item and/or Abnormal Use. |
The Repairer shall give a Notice to the Company no later than [*****] prior to such audit or operational visit.
The Company shall provide at no cost for the Repairer all necessary support to the Repairers representative(s) and give access to:
(i) | the Companys facilities or any other place where the Aircraft and/or any data or document related to Aircraft maintenance and operations that the Repairer may require may be located; and, |
(ii) | the exact number of accumulated FH and Cycles for any Aircraft and Items operating or maintenance records. |
Unless otherwise agreed between the Parties, any operational visit shall be conducted during the scheduled operations of the Aircraft and the Repairer or its representative(s) shall use its reasonable endeavors not to disrupt the Companys scheduled operations.
The cost incurred by the Repairer to conduct such audits and visits will be borne by the Repairer unless (i) a Companys Default (as defined in Clause 16 Termination) has occurred and/or (ii) as a result of that audit or visit, the Company is found to be in Default, in which cases the cost of such audit or operational visit will be borne by the Company .
The Repairer has no duty or obligation to perform any audit or operational visit and shall
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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not incur any obligation or liability if it does not perform any of its audit or operational visit rights referred to in this Clause 5.2.4.
The Repairer shall notify the Company of the outcome of any such audit or operational visit and of any remedial action that the Company shall perform to comply with its obligations under this Agreement. The Company shall carry out all such remedial actions within a mutually agreed time period , otherwise the Company shall be deemed in Default.
It is acknowledged and agreed that any audit or operational visit by the Repairer will be conducted by the Repairer for its own purposes in connection with this Agreement and the Repairer shall have no responsibility, liability or obligations with respect to the safety compliance with any AD, operation or, except as otherwise provided herein, maintenance of any Aircraft, all of which shall be the sole responsibility, liability and obligation of the Company.
5.3 | Obligations of the Parties |
5.3.1 | Obligations of the Company |
5.3.1.1 | As a counterpart to the terms and conditions (including pricing conditions) agreed between the Parties under this Agreement [*****]. In the event, the Company fails to do so, the Repairer shall be entitled to revise such terms and conditions in order to take into account such failure. |
5.3.1.2 | During the Term, the Company shall: |
(i) | operate and maintain the Aircraft in compliance with all applicable technical documentation and any other instructions issued by ATR and the OEM; and, |
(ii) | remove and install LRUs and Main Elements from and on Aircraft; and, |
(iii) | comply with any AD, and order such incorporation or modifications from the Repairer; and consequently manage the update of Aircraft, LRUs and Main Elements mandatory or regulatory technical notices and log books and deliver to the Repairer a copy of such documentation upon each maintenance event or upon Repairers request; and, |
(iv) | promptly inform the Repairer in case the Company or their insurer intends to attend any LRU or Main Element tear-down at the Repair Shop; and, |
(v) | provide the Repairer not later than the tenth (10th) Day of each Month with an activity report relating to each Aircraft and each Main Element serial number, and containing at least FH and Cycles performed during the preceding Month, the TSN, CSN, TSO, CSO, and the removals/installations events during such Month; and, |
(vi) | preserve the Aircraft, any Main Elements and/or any and all sub-assemblies in accordance with the AMM in case any Aircraft is temporarily unused by the Company for any reason whatsoever. |
5.3.2 | Obligations of the Repairer |
During the Term, the Repairer shall use its reasonable commercial endeavors, in accordance
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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with this Agreement:
(i) | to carry out the Services pursuant to the Work Order(s) placed by the Company ; and, |
(ii) | to ensure that the Services provided to Company shall comply with EASA, FAA or ANAC regulations in force, as applicable |
(iii) | in the event of specific or exceptional circumstances affecting the Company or the Repairer, to obtain the assistance of any one or several third Parties servicers or suppliers of spare parts, subject to the Company s prior approval; and |
(iv) | to administer LRUs and Main Elements warranty claims issued by the Company. |
6. | DELIVERIES |
The Delivery Location shall be one of the addresses set out in Clauses 6.1 and 6.2 hereafter as the context requires.
6.1 | Items delivered by the Repairer to the Company |
Unless otherwise set forth in this Agreement, the Repairer shall deliver to the Company:
6.1.1 | any Item as relevant in accordance with Exhibits 8 (Lease of the Stock), , 11 (Main Elements Services) and 15 (Advanced Pool Stock), [*****] and Packed at the following address: |
ATR Customer Support
C/O DHL Solutions
ZA du Pont Yblon
95500 Bonneuil en France
And;
any Item from the List A of the Exhibit 6 (LRUs covered by repair and standard exchange services), as relevant in accordance with Exhibit 9 (Spare parts standard exchange Service) and Exhibit 10 (LRUs repair Service), [*****] and Packed at the following address:
ATR Customer Support
C/O DHL Solutions
ZA du Pont Yblon
95500 Bonneuil en France
And:
any Item from the List B of the Exhibit 6 (LRUs covered by repair and standard exchange services), as relevant in accordance with Exhibit 9 (Spare parts standard exchange Service) and Exhibit 10 (LRUs repair Service), [*****] and Packed at the following address:
Helibras Helicópteros do Brasil Air Bus Helicopters
Rodovia Dom Pedro I Km 87 Pista Norte
Condomínio Barão de Mauá
Atibaia São Paulo
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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or at any other address the Repairer may from time to time notify to the Company.
6.1.2 | Intentionally left blank |
6.2 | Items returned by the Company to the Repairer |
The Company shall return to the Repairer:
6.2.1 | any Item as relevant, in accordance with Exhibits 8 (Lease of the Stock), 11 (Main Elements Services) and 15 (Advanced Pool Stock), [*****] and Packed at the following address: |
ATR Customer Support
C/O DHL Solutions
ZA du Pont Yblon
95500 Bonneuil en France
And;
any Item from the List A of the Exhibit 6 (LRUs covered by repair and standard exchange services) as relevant in accordance with Exhibit 9 (Spare parts standard exchange Service) and Exhibit 10 (LRUs repair Service), [*****] and Packed at the following address:
ATR Customer Support
C/O DHL Solutions
ZA du Pont Yblon
95500 Bonneuil en France
And:
any Item from the List B of the Exhibit 6 (LRUs covered by repair and standard exchange services) as relevant in accordance with 9 (Spare parts standard exchange Service) and 10 (LRUs repair Service), [*****] and Packed at the following address:
Helibras Helicópteros do Brasil Air Bus Helicopters
Rodovia Dom Pedro I Km 87 Pista Norte
Condomínio Barão de Mauá
Atibaia São Paulo
or at any other address the Repairer may from time to time notify to the Company.
6.2.2 | Intentionally left blank |
6.3 | Nota fiscal reporting |
Regarding the Items flow between the Stock and the Pool and vice et versa, as set forth under Clause 6 hereof, the Parties shall have the following obligations:
- | From Stock to Pool: the Company shall issue in due time any necessary document or required by the Repairer, including the Nota Fiscal which shall comprise full, accurate |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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and complete information (as further detailed here below) and be in a form and substance compliant with applicable laws and regulations.
- | From Pool to Stock: subject to receipt from the Company of any necessary document or required by the Repairer as set forth here above, as relevant, the Repairer shall issue or have issued by third party in due time any necessary document or required by the Company in the frame of the Services, including the Nota Fiscal which shall comprise full, accurate and complete information (as further detailed here below) and be in a form and substance compliant with applicable laws and regulations. In addition, the Repairer shall provide or have provided by third party, a weekly reporting to the Company regarding the traceability of the Items and promptly answer to any request from the Company related thereto, in a form and substance in accordance with the form attached in Exhibit 18 (Nota fiscal reporting). |
For the avoidance of doubt, each Nota Fiscal shall be established in compliance with the relevant CFOP code according to the latest revision of SINIEF (Sistema Nacional Integrado de Informações Econômico-Fiscais), the current version is 07/01, which shall notably comprise the following element:
- | Seller of the goods: Name, address, contact information, Federal registration number, State Registration number |
- | Acquirer of the goods: Name, address, contact information, Federal registration number, State Registration number |
- | Transaction: type of transaction, nature of the transaction, transaction code, date of the transaction |
- | Product: description, code, quantity, value, serial number of the relevant Item |
- | Taxes : calculation basis, tax rate |
- | Other information: freight, insurance, other costs |
- | Additional information: in case of special taxation |
7. | WORK ORDERS |
During the Term, the Company shall use the appropriate Work Order form (Exhibit 7 Repairer Standard Work Order Forms), depending on the nature of the Service requested, and send the Work Order to the Repairer according to the notice details below or any other contact the Repairer may from time to time notify to the Company.
For any Services | ATR SPARES DISTRIBUTION DESK | |||
requested in standard |
Tel: (33) 5 62 21 60 80 | |||
conditions (including |
Fax: (33) 5 62 21 62 80 | |||
routine and critical): |
e-mail: spares.orders@atr.fr | |||
For any Services |
A.O.G. DESK: | |||
requested in AOG |
Tel: (33) 5 62 21 62 00 | |||
conditions: |
Fax: (33) 5 62 21 62 62 | |||
e-mail: aog.toulouse@atr.fr |
8. | INSURANCES |
8.1 | Without prejudice to any term and condition under this Agreement, the Company shall maintain in force, at all times during the Term and [*****], at its own costs and expenses, with insurers of internationally recognized |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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reputation reasonably acceptable to the Repairer, insurances in accordance with industry standards with respect to the undertakings of the Company in Clause 15 (Liability and Indemnity) of this Agreement including:
(i) | Aircraft Hull and Spares All Risks Insurances (including, to the extent usually available war and allied perils); and, |
(ii) | Comprehensive General Third Party Legal Liability and Aircraft Passengers and Third Party Legal Liability Insurance in respect of incidents involving Aircraft to the extent usually available, having a Combined Single Limit of not less than [*****] any one occurrence; and, |
(iii) | Employers liability insurance; and, |
(iv) | Repairers values to be insured, including: |
- | Lease of Stock (Exhibit 8 Clause 2.2) and Advanced Pool Service (Exhibit 15): the Items of the Stock shall be insured by the Company under Spares All Risk Insurance for not less than the full replacement value; and, |
- | Main Elements Service (Exhibit 11): each Spare Main Element to be delivered by the Repairer to the Company shall be insured by the Company, for not less than its full replacement value, under the Hull Insurance when installed on the Aircraft in addition to the agreed value of such Aircraft and under the Spares All Risk Insurance while in Stock prior to attachment or following removal and replacement from the Aircraft, including transportation to and from the Company. |
8.2 | In respect of Hull and Spares All Risk Insurances, the Repairer shall be named as additional insured and loss payee for their respective rights and interests, to the extent required under Clause 15 (Liability and Indemnity) of this Agreement. |
8.3 | In respect of Liability Insurance, the Repairer shall be named as additional insured and loss payee, as relevant, to the extent required under Clause 15 (Liability and Indemnity), with severability of interest and confirmation that the Company policy shall be primary without right of contribution. |
8.4 | In respect of all of the above insurances to contain breach or warranty provisions and confirmation the policies shall not be cancelled or materially changed without [*****] prior written notice [*****] or such lesser period in respect of War and Allied Peril). |
8.5 | Any applicable deductible shall be borne by the Company with respect to the above insurances. |
8.6 | At the latest upon the Signing Date, the Company shall provide the Repairer with relevant insurance certificates, in English, evidencing insurance requirements of this Clause 8, in a form reasonably acceptable to the Repairer, to be attached to this Agreement in the Exhibit 17 (Insurance certificates). |
Upon each renewal of the relevant insurance policies, the Company shall on reasonable request provide the Repairer with relevant insurance certificates in order to evidence insurance is maintained in accordance with this Clause 8. The Company also agrees to promptly pay each premium in respect of the aforesaid insurances and in the event of its failure to take out or maintain any such insurance then, without prejudice to any other rights it may have in respect of such failure, the Repairer may do so in its place and recover the cost
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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of doing so from the Company.
8.7 | The Repairer shall at its own expense procure and maintain in force, with insurers of internationally recognized reputation acceptable to the Company an Aviation Liability insurance which should include: |
(i) | Aviation Products Liability insurance: the Repairer shall maintain or shall cause its Subcontractors to maintain a Products Liability Insurance during the performance of the Services up to an amount not less than [*****] per occurrence and in the annual aggregate; and, |
(ii) | Hangar Keeper Liability insurance: the Repairer shall maintain or shall cause its Subcontractors to maintain during the performance of the Services an Hangar Keeper Liability Insurance in an amount of not less than [*****] any one occurrence. |
The Repairer shall, at the latest upon the Signing Date, provide the Company with evidence of the insurance maintained in accordance with this Clause 8.7.
9. | WARRANTIES |
Upon Delivery, and subject to the terms of this Agreement, including the disclaimers and limitations on liability set forth in such warranties and in Clause 14 (Disclaimer) of this Agreement, the Company shall be entitled to the benefit of the following warranties:
i) | For new LRUs or Main Elements, the terms and conditions set into the related Vendor Warranty Manual and in ATR72-600 Aircraft in the relevant clauses of the relevant Aircraft sale and purchase agreement, shall apply. |
ii) | For used LRUs and Main Elements repaired and overhauled by the Repairer, the warranty period shall start on the date of Delivery and shall end [*****] thereafter, whichever occurs the earliest, and such warranty shall be subject to the exclusions of warranty set forth in Exhibit 10 (LRUs Repair Service) and in Exhibit 11 (Main Elements Services). |
10. | PRICES |
The Company shall pay to the Repairer the prices for the Services set out in Exhibit 14 (Price conditions).
11. | RECONCILIATION |
11.1 | Reconciliation: Every [*****] as from the Start Date and throughout the Term, the Parties will record the actual number of FH and Cycles [*****] of the preceding [*****] period, in order to reconcile (i) the amount effectively due to the Repairer with (ii) the total amount already paid by the Company , as relevant, as per Clause 12.1 (ii) hereafter, with respect of such period, as follows: |
(i) | In case the amount effectively due to the Repairer with respect of the number |
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of FH and Cycles accumulated during the considered [*****] period is higher than the total amount already paid by the Company for the said period, the Repairer shall then issue an additional invoice in an amount equal to the difference between these amounts, to be paid by the Company as per Clause 12 (Invoicing and payment terms); or,
(ii) | In case the amount effectively due to the Repairer with respect of the number of FH and Cycles accumulated during the considered [*****] period is lower than the total amount already paid by the Company for said period, the Repairer shall issue a credit in an amount equal to the difference between these amounts; and/or, |
(iii) | In case MRR is above RRR, the Repairer shall invoice an amount equal to the price set out in Clauses 2.2 and 3 of the Exhibit 14 (Price conditions), multiplied by the Aircraft fleet FH accrued during the [*****] reference period, multiplied by the difference between the MRR and the RRR; or, |
(iv) | In case MRR is less than RRR, the Repairer shall issue a credit in an amount equal to the price set out in Clauses 2.2 and 3 of the Exhibit 14 (Price conditions), multiplied by the Aircraft fleet FH accrued during the [*****] reference period, multiplied by the difference between the RRR and the MRR, with a maximum allowed difference of [*****]. |
Each reconciliation shall be independent and shall have no impact on any subsequent reconciliation and/or invoicing.
11.2 | Final reconciliation: within [*****] as from the End Date and without prejudice to Clause 6 of Exhibit 14 (Price conditions) when applicable, a final reconciliation shall be performed by the Repairer as per this Clause 11 (Reconciliation). |
Any Credit Note resulting from this final reconciliation and due by the Repairer to the Company shall be issued within [*****] as from the effective End Date, subject to Clause 11.3 of this Agreement.
11.3 | Each time a Credit Note results from any reconciliation, the Repairer shall issue such Credit Note to the Company, provided that the Company, is not in Default. |
12. | INVOICING AND PAYMENT TERMS |
12.1 | The Repairer shall invoice the Company: |
(i) | [*****] |
(ii) | [*****] |
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[*****]
[*****] |
[*****]
[*****] |
[*****] |
[*****] |
[*****]
[*****] |
[*****] |
[*****] |
[*****] |
[*****]
[*****] |
(iii) | [*****] |
(iv) | [*****] |
(v) | [*****] |
(vi) | [*****] |
(vii) | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(viii) | [*****] |
(ix) | [*****] |
(x) | [*****] |
(xi) | [*****] |
12.2 | Unless otherwise set out herein, the Company shall pay all invoices issued by the Repairer pursuant to this Agreement, as follows: |
(i) | within thirty (30) Days from the date of issuance of the Repairers invoice; and, |
(ii) | in US Dollars; and, |
(iii) | by SWIFT wire transfer; and, |
(iv) | to the following bank account : |
NATIXIS PARIS
30 Avenue Pierre Mendès-France 75013 PARIS FRANCE
Bank Code: [*****]
Branch Code: [*****]
Beneficiary: Avions de Transport Régional G.I.E.
Bank Account: [*****]
Key: [*****]
IBAN Code: [*****]
or such other account as the Repairer may from time to time notify to the Company.
For the sake of clarity, the Repairer shall issue any invoice at least ten (10) Days before the first Day of the Month of reference for the Services.
12.3 | Payments due to the Repairer herein shall be made in full, without set-off, counterclaim, deduction or withholding of any kind. Consequently, the Company shall procure that the sums received by the Repairer under this Agreement shall be equal to the full amounts expressed to be due to the Repairer herein, without deduction or withholding on account of and free from any and all Taxes (including all applicable sales, use, transfer and value added taxes and any tax required to be deducted or paid under the Laws of the country the Services are provided in respect of amounts paid by the Company to the Repairer), levies, imposts, dues or charges of whatever nature. |
12.4 | If any payment due to the Repairer (the Unpaid Amount) remains unpaid after the date on which it is payable (the Due Date), without prejudice to any other rights or remedies that it may have at Law and/or under this Agreement, the Repairer shall be entitled to charge interests on such overdue sum from the Due Date until the actual date of payment of such sum at a rate per annum equal to the aggregate of [*****], such interest being calculated on a monthly basis. In any case, such interest rate shall not be lower than the highest of the three (3) following rates: |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(i) | [*****] |
(ii) | [*****] |
(iii) | [*****] |
In addition to the foregoing, and in compliance with Article L441-6 of the French Commercial Code, the Company shall pay a minimum fixed sum of forty (40) euros for compensation of recovery costs and reimburse all costs and expenses (including legal costs) incurred by the Repairer in the collection of any Unpaid Amount.
12.5 | Invoice dispute: any invoice disputed by the Company shall have to be issued by Notice duly documented to the Repairer within [*****] from the date of its issuance. For the sake of clarity, the undisputed portion of such invoice shall be paid pursuant to this Agreement. Any invoice not disputed by the Company within said [*****] period, shall be deemed to be accepted by the Company. |
13. | SECURITY DEPOSIT |
13.1 | As per provisions of Clause 17 (Conditions precedent), and unless otherwise agreed by the Parties, the Company shall pay the Security Deposit to the Repairer in an amount equal to the aggregate of: |
(i) | [*****], as per Exhibit 14 (Price conditions); and, |
(ii) | [*****] of the value of the Stock. |
For the sake of clarity, the global amount of Security Deposit payable at the time of the Signing Date shall be [*****].
13.2 | Such Security Deposit shall be constituted either, as follows, at the option of the Company: |
(i) | a cash deposit by SWIFT wire transfer to the bank account indicated in Clause 12.2 (iv); or, |
(ii) | one (1) LOC with a validity of at least [*****], acceptable to the Repairer acting reasonably. Such LOC shall be renewed and its confirmation extended, at the latest [*****] before the expiry of each previous LOC; all costs incurred as a result of the issuance and confirmation of the LOC shall be borne by the Company. |
It is agreed that the Security Deposit must be available for the period ending [*****] after the Term; such Security Deposit shall be the property of the Repairer and shall be non-refundable except as set out in this Agreement.
Provided the Company is not in Default under this Agreement and/or any other agreement entered into between the Parties and subject to the prior written approval of the Repairer, the Company shall be entitled to substitute the LOC by a cash deposit, and vice et versa, subject to the terms of this Clause 13.
13.3 | In the event that the LOC is not renewed or extended as per the terms of Clause 13.2 here above, the cash deposit shall become immediately due and payable and the Repairer shall be entitled to draw such LOC, in order for the Repairer to receive an amount equal to the Security Deposit. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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13.4 | If, during the Term, the Company is in Default under this Agreement or under any other agreement entered into between the Repairer and the Company, and without prejudice to any rights and remedies available at Law and/or under this Agreement, the Repairer shall be entitled to forthwith use, apply or retain all or any portion of the Security Deposit, in order to remedy such Default, including the failure to pay any due sums, the compensation or otherwise reimbursement of any sums which the Repairer may in its discretion advance or expend as a result of said failure. |
If the Repairer so uses, applies or retains all or any portion of the Security Deposit, such use, application or retention shall not be deemed a cure or waiver of its rights hereunder and/or at Law as a consequence of any such Default, unless such use, application or retention has discharged in full the relevant sums then due and owed to the Repairer by the Company, and the Company shall voluntarily or promptly upon written demand provide to the Repairer additional security in an amount sufficient to restore the Security Deposit.
13.5 | At the maximum at the end of the period of [*****] following the Term, (or such early date as the Company has made all payments due hereunder at the Repairer satisfaction), and provided that the Company is not in Default under this Agreement or any other agreement entered into between the Parties, the Repairer shall pay to the Company an amount equal to the balance of the Security Deposit, if any. |
14. | DISCLAIMER |
TO THE EXTENT PERMITTED BY LAW, THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT SET OUT THE REPAIRERS ENTIRE LIABILITY WITH RESPECT TO ALL GOODS AND SERVICES SUPPLIED HEREUNDER AND THE COMPANY AGREES THAT ALL OTHER CONDITIONS, WARRANTIES AND TERMS EXPRESSED OR IMPLIED BY LAW, STATUTE OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED.
15. | LIABILITY AND INDEMNITY |
15.1 | SUBJECT TO CLAUSE 15.2 BELOW, THE REPAIRER, SHALL NOT BE LIABLE TO THE COMPANY FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING UNDER OR IN RELATION TO THIS AGREEMENT (WHETHER ARISING FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, MISREPRESENTATION OR OTHERWISE): |
[*****]
[*****]
15.2 | NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR RESTRICT ANY LIABILITY |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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OF THE REPAIRER FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR MISCONDUCT,, OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW.
15.3 | WITHOUT PREJUDICE TO CLAUSES 15.1 AND 15.2, THE COMPANY SHALL, EXCEPT IN CASE OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF THE REPAIRER, BE LIABLE FOR AND SHALL INDEMNIFY AND HOLD HARMLESS THE REPAIRER INDEMNIFIED PARTIES FROM AND AGAINST ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, SUITS, ACTIONS, PROCEEDINGS, JUDGEMENTS, COSTS AND EXPENSES INCIDENT THERETO (INCLUDING LEGAL EXPENSES AND ATTORNEY FEES INCIDENT THERETO OR INCIDENT TO SUCCESSFULLY ESTABLISHING THE RIGHT TO INDEMNIFICATION), FOR INJURY TO OR DEATH OF ANY PERSON AND/OR FOR LOSS OF OR DAMAGE TO ANY PROPERTY AND/OR FOR LOSS OF USE THEREOF ARISING (INCLUDING THE AIRCRAFT), CAUSED BY OR IN ANY WAY CONNECTED TO THE PERFORMANCE OF THIS AGREEMENT. |
16. | TERMINATION |
16.1 | Termination events: without prejudice to any other rights under this Agreement and/or at Law, either Party shall be entitled to terminate all or part of this Agreement by Notice of termination, as per Clauses 16.4 (Termination procedure) and 16.6 (Consequences of termination), in the following events: |
a) | Insolvency: the other Party becomes insolvent or goes into liquidation or ceases paying its debts as they fall due or makes an assignment for the benefit of creditors or if such Party being a limited Company passes a resolution for its winding up or if a petition for its winding up is presented or it files for protection from its creditors under any applicable Law relating to bankruptcy or insolvency or any analogous event in any jurisdiction shall take place; and/or |
b) | Default: the other Party is in Default and does not remedy the same within [*****], or such extended period granted by the non-defaulting Party, from Notice of default specifying the failure and requiring the remedy of such, from the non-defaulting Party. |
For the purpose of this Clause 16.1.b), will be deemed as material obligations under this Agreement, without the following being exhaustive:
(i) | the compliance by the Company with any of its payment obligations; |
(ii) | the compliance by the Company with the provisions of Clause 17 (Conditions precedent) of this Agreement; |
(iii) | the operation by the Company of at least one (1) Aircraft; |
(iv) | the use by the Company of any Item, delivered by the Repairer to the Company pursuant to Exhibits 8 (Lease of the Stock), 9 (Spare parts standard exchange Service), 10 (LRU repair Service), 11 (Main Elements Services) and 15 (Advanced Pool Stock) exclusively on Aircraft and to benefit of the Parties; |
(v) | the return by the Company to the Repairer of any unserviceable Item which should be exclusively removed from an Aircraft; |
(vi) | the compliance by the Repairer with its Delivery obligations; |
(vii) | the compliance by the Parties with any of the insurance obligations as per Clause 8 (Insurances) of this Agreement; |
(viii) | the compliance by either Party with any other of its obligations which by its |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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nature | and/or context is intended to be material. |
c) | Excusable Delay: an Excusable Delay event lasting for more than [*****] in accordance with Clause 4.5 of this Agreement. |
16.2 | Left intentionally blank |
16.3 | Suspension procedure: notwithstanding the terms of Clause 16.4 below, in the event of a Companys Default as per Clause 16.1.b), the Repairer shall be entitled to suspend all or part of this Agreement by way of Notice of suspension which shall specify: |
(i) | the Services for which such suspension shall be immediately effective until such Companys Default is corrected; and |
(ii) | that any pending Work Order and/or placed as from the Notice of suspension will be provided upon specific commercial proposal subject to Payment In Advance procedure (and/or any additional conditions to be agreed upon by the Parties, as relevant). |
For the sake of clarity, such Notice of suspension shall not be construed as a waiver by the Repairer of its rights regarding (i) the obligation of the Company to perform each and every of its obligations under this Agreement and/or (ii) the right of the Repairer to enforce each and every of such Companys obligations and/or (iii) the right of the Repairer to terminate this Agreement, as per this Clause 16 (Termination) of this Agreement.
16.4 | Termination procedure: to the fullest extent permitted by Law and/or under this Agreement, the termination of all or part of this Agreement, for any reason whatsoever, as per Clauses 3 (Duration and renewal) and 16 (Termination), shall become effective as from the receipt by the relevant Party of a Notice of termination from the other Party, or any other period to be granted by such other Party, without it being necessary to take any further action or to seek any consent from the relevant Party or any court having jurisdiction. |
The right of a Party to terminate all or part of this Agreement as per this Clause 16 shall be without prejudice to its other rights and remedies available at Law and/or under this Agreement to seek termination of all or part of this Agreement before any court having jurisdiction, following arbitration proceedings consistent with Clause 24 (Governing law and arbitration) of this Agreement.
In case of termination of part of this Agreement, the Notice of termination shall specify the Services that shall be terminated on the date of such termination.
Any Work Order placed prior to the termination of all or part of this Agreement shall remain valid, provided that (i) any sum due by the Company to the Repairer under the Agreement and/or any other agreement between (i) the Repairer and (ii) the Company has been paid and (ii) when applicable, the Company having paid in advance the relevant Work Order price.
In the cases set forth within Clause 16.1.b) above, the non-defaulting Party shall be entitled to proceed by appropriate court action or actions, following arbitration proceedings consistent with Clause 24 (Governing law and arbitration) of this Agreement., to enforce performance of this Agreement, and/or to recover damages, without incurring any liability whatsoever and without prejudice to any other rights it may have at Law and/or under this Agreement, and specifically its right to terminate all or part of this Agreement.
16.5 | Early termination fee: subject to not being in breach of any of its obligation under the Agreement, the Company may terminate this Agreement for convenience by way of Notice of termination; the Agreement shall be then terminated following a [*****] period as from |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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the receipt of such Notice by the Repairer or any other lesser period to be granted by the Repairer.
Notwithstanding this Clause 16 (Termination), upon receipt of such Notice of termination and without prejudice to any rights it may have at Law, the Repairer shall invoice to the Company an early termination fee equivalent to [*****], which shall be paid within [*****] as from the issuance date of the said invoice and/or set off against any outstanding or due payment to the Company, at the Repairers discretion.
16.6 | Consequences of termination |
16.6.1 | Upon the End Date and without prejudice to any right that either Party may have at Law and/or under this Agreement [notably as per Clause 13 (Security Deposit)], the termination and/or expiry of the Agreement shall have the following consequences: |
a) | Payment and reimbursement: subject to the provision of reasonable documentary evidence, any outstanding and/or due amounts by either Party to the other Party under this Agreement shall be promptly paid, and any and all legal fees and out-of-pocket expenses of the Party which terminates this Agreement for the other Partys Default including stamp, documentary, registration or other like duties, taxes or any charges incurred and/or in connection with enforcing, perfecting, protecting or preserving (or attempting to enforce, perfect, protect or preserve) any of its rights, or in suing for or recovering any sum, under this Agreement shall be forthwith reimbursed; and/or, |
b) | Return of the Items: the Repairer shall be entitled, in accordance with the terms and conditions of this Agreement, including Clause 6 (Deliveries), to: |
(i) | direct the Company to forthwith return the Items (excluding the Stock which, for the sake of clarity, shall be treated as per terms and conditions of Clause 6 (Return of the Stock) of the Exhibit 8 and Clause 7 (Purchase or return of the Advanced Pool Stock) of the Exhibit 15 to the address hereafter and/or any other address the Repairer may notify from time to time to the Company: |
[*****]
and/or;
(ii) | repossess the Items and the Company agrees that the Repairer may enter onto the Companys premises where such Items may be located; and/or, |
(iii) | carry out any work, repair, re-certification, overhaul or replacement required to put such Items in serviceable condition. |
In any case under this Clause 16.6.1.b) (Return of the Items), the Company shall forthwith reimburse and pay any Loss incurred and/or suffered by the Repairer.
c) | Termination for Default: in addition to the provisions of Clause 16.6.1.a) and b) here above, the defaulting Party shall indemnify and/or pay any Loss the other Party may sustain and/or incur as a result of such Default. |
d) | In addition to the provisions of Clause 16.6.1.a) and b) and 16.6.1.c) here above, in the event the Repairer terminates the Agreement further to the occurrence of the event set out in Clause 16.1.b) (iii), the Company shall indemnify and/or pay for any Loss the |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Repairer | may sustain and/or incur as a result of such termination |
16.6.2 | Mitigation |
In case of termination of all or part for any reason whatsoever and/or expiry of this Agreement, either Party shall use reasonable endeavours to mitigate its Loss (to the extent within its control to do so), but it shall not be obliged to consult with the other Party concerning any proposed course of action or to notify such other Party of the taking of any particular action.
17. | CONDITIONS PRECEDENT |
The Repairers obligations under this Agreement shall be subject to each of the following conditions precedent having been met (or expressly waived by the Repairer) to the Repairers satisfaction at the latest the [*****] Day from the Signing Date:
(ii) | the Security Deposit being available as per Clause 13 (Security Deposit);and, |
(iii) | a statement signed by a duly authorized officer of AZUL recording the status (serial number, TSN, TSO, CSN, CSO, as applicable) of each Main Element as of the Signing Date; and, |
(iv) | a fully executed original of this Agreement; |
(v) | the phase-in as per Clause 5 of the Exhibit 14 (Price conditions). |
18. | EXPORT CONTROL |
The Company warrants that the Items, the Aircraft and Services shall be used for commercial purposes only, and shall be used and/or re-exported (where relevant) in compliance with all export control laws and regulations (hereinafter referred to as Export Laws), including those applicable to parts and components of the Items and the Aircraft. The Company acknowledges that the Repairers obligations under this Agreement are subject to all such Export Laws, and that the Repairer shall in no event be liable in the event that the performance by the Repairer of any of its obligations under this Agreement is affected or impaired by Export Laws.
19. | NOTICES |
No Notice shall be deemed to have been duly given by a Party to the other unless addressed as follows or to such other place or Person as the Parties may respectively designate in writing.
The Repairer shall be addressed at:
AVIONS DE TRANSPORT REGIONAL, G.I.E.
1, allée Pierre Nadot
31712 Blagnac CEDEX
France
Attention: | Mr Cyril DUPUY | |
E-mail: cyril.dupuy@atr.fr | ||
Fax +00 33 5 62 21 67 40 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The Company shall be addressed at:
AZUL |
||||
Avenida Marcos Penteado de Ulhoa Rodrigues, 939, Castello Branco Office - Park - Torre Jatobá - 9° andar - CEP 06460-040 - Alphaville Industrial, Barueri, SaoPaulo, Brazil | ||||
Attention |
Evandro Braga de Oliveira | |||
: |
Technical officer | |||
E-mail: evandro.oliveira@voeazul.com.br | ||||
Fax |
55 11 4134-9890 |
20. | CONFIDENTIALITY |
20.1 | Confidentiality obligations |
Unless otherwise provided in this Agreement, any Confidential Information released by either of the Parties (the Disclosing Party) to the other Party (the Receiving Party) shall not be released in whole or in part to any third party.
In particular, the Receiving Party undertakes:
- | to keep the Confidential Information strictly confidential, not to deliver, disclose or publish it to any third party including subsidiary companies and companies having an interest in its capital, except as otherwise agreed in writing by the Disclosing Party; |
- | to use the Confidential Information solely for the purpose of this Agreement and except as otherwise expressly agreed in writing by the Disclosing Party, not to use the same or permit its use for any other purpose; |
- | to disclose the Confidential Information only to those of its direct employees having a need to know such Confidential Information in order to make permitted use thereof, after having beforehand clearly informed such employees of the strictly confidential nature of the Confidential Information and caused them to observe said conditions of confidentiality. The Receiving Party shall be responsible for the correct performance of said obligations of confidentiality by its employees and shall keep up to date the list of its personnel, to whom Confidential Information is communicated, which list shall be made available to the Disclosing Party at its request; |
- | not to duplicate the Confidential Information nor to copy or reproduce the same beyond the purpose of the Agreement; |
- | not to disclose Confidential Information to any third party, unless such third party is acting at the instruction of the Receiving Party and such disclosure is reasonably necessary to accomplish the purpose of the Agreement, provided however, that prior to any such disclosure both of the following conditions are satisfied: |
(i) | each of such third parties, shall have signed an acknowledgement to keep such Confidential Information as strictly confidential; and, |
(ii) | the Receiving Party shall have obtained written prior approval of the Disclosing Party of such proposed disclosure, which approval may be not unreasonably withheld or delayed. |
- | promptly notify the Disclosing Party if a disclosure of Confidential Information is required by a Government Entity or by Law and to use all reasonable effort to assist the Disclosing Party in limiting such disclosure to the extent permitted by Law; |
- | upon discovery of any disclosure of Confidential Information, regardless of whether such discovery is intentional or inadvertent, the Receiving Party shall promptly notify the Disclosing Party and take all reasonable actions (i) to retrieve the disclosed Confidential Information, (ii) to destroy any unauthorized copies thereof and (iii) to |
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stop | further disclosure. |
20.2 | Non application of confidentiality obligations |
The obligations of Receiving Party with respect to Confidential Information as set forth in this Clause 20.1 above shall not be applicable to information which:
(a) | upon the Signing Date was part of the public domain or became part of the public domain after the disclosure, other than by a violation of the Agreement or any other non-disclosure agreement or the applicable Law of any jurisdiction; or |
(b) | was already lawfully known by the Receiving Party, as evidenced by written records bearing an unquestionable date, prior the Signing Date by the Disclosing Party and was unrestricted; or |
(c) | was lawfully disclosed to the Receiving Party subsequently to the signature of the Agreement by a third party which had not received the same directly or indirectly from the Disclosing Party and that such disclosure does not violate any non-disclosure agreement. |
20.3 | Permitted disclosure of Confidential Information |
Notwithstanding any provision to the contrary in the Agreement, the Receiving Party shall be entitled to disclose Confidential Information if required to do so:
(a) | by order of a court or government agency of competent jurisdiction; or |
(b) | by any applicable Law, |
provided, however, that prior to making such disclosure, the Receiving Party shall if possible advise the Disclosing Party of the circumstances requiring such disclosure in order to afford the Disclosing Party sufficient advance notice to permit to raise any objections that it may deem appropriate.
20.4 | Disclosing Partys proprietary rights |
Any Confidential Information shall remain the property of the Disclosing Party. The Agreement shall not be construed as granting or conferring to the Receiving Party, either expressly or by implication, any license or proprietary interest in or to any Confidential Information nor any right of use beyond the purpose of this Agreement.
The Repairer, its Affiliates and/or its Subcontractors as applicable shall remain the exclusive owner of any intellectual property right related to the Services including: design of the LRUs, Main Elements, job cards, task cards, operating manual or industrial process, as relevant. No title to or other ownership interest in the Confidential Information is transferred except as specifically stated in the Agreement, and the Receiving Party hereby expressly disclaims any such rights or interests.
The Receiving Party hereby acknowledges and recognises that Confidential Information is protected by copyright Laws and related international treaty provisions, as the case may be.
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20.5 | For the sake of clarity, and for the purpose of this Clause 20 and this Agreement, any of the receiving Partys Affiliates and their Subcontractors shall not be considered as third party and shall be entitled to have access to any Confidential Information disclosed by the disclosing Party in connection with this Agreement. |
20.6 | This Clause 20 shall survive termination or expiry of this Agreement for a period of five (5) years following such End Date. |
21. | TAXES |
The prices set out in this Agreement [*****] and the [*****] shall not be required to pay and the [*****] shall bear, any present or future Taxes in any country of the Delivery [*****] pursuant to the requirements of this Agreement including the following:
i) | Taxes levied on goods imported into or services to be delivered under this Agreement; and, |
ii) | Taxes levied on materials, equipment, tools and documentation imported temporarily which are required for the performance of this Agreement; and, |
iii) | Taxes levied in Companys country for goods or services delivered by the Repairer to the Company; and, |
iv) | Value added taxes, sales tax, services tax, or any similar taxes imposed in any country, on goods or services delivered to the Company. |
In the event any of the Items above are levied upon the [*****], the [*****] shall promptly issue a Notice to the [*****]. The [*****], within [*****] of receipt of such notification from the [*****] shall either cause the charge to be waived or pay the charges directly. For those Items above that the [*****] is required by Law to pay, the [*****] shall charge the [*****] and the [*****] shall reimburse the [*****] in an amount which leaves the [*****] in the same economic situation as if such payment of charges and reimbursement thereof had not been required.
If the Company is required by Law to make a withholding of taxes on the payments due to the Repairer under this Agreement, the Company shall gross up the payment so that the payment received by the Repairer after such withholding tax shall be the same amount of the prices described herein.
For sake of clarity, the Repairer shall bear income tax assessed on the Repairers income and net profits in its country.
For Items delivered by the Repairer to the Company, the final customs clearance on flow between any Repairers Affiliate located abroad and warehouse located in Brazil, as notably set forth in Clause 6, shall be borne by the Company. Customs duties, IPI, ISS, ICMS and other similar taxes shall be paid by the Company.
In addition, the Company shall provide the Repairer with the « import declarations » pertaining to any import activities performed by the Company.
22. | ASSIGNMENT |
There are no beneficiaries of this Agreement other than the Parties hereto and their Affiliates and Subcontractors to the extent provided herein.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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This Agreement shall be binding on the successors and permitted assignees of the Parties hereto.
a) | This Agreement has been entered into between the Parties in consideration of and based on characteristics specific to the Parties. Consequently either this Agreement or any of the respective rights or obligations of the Parties hereunder may be assigned or otherwise transferred, in whole or in part, in any form whatsoever (including by way of change of Control), by either Party subject to the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, and any attempt to do so without such consent shall be null and void. |
b) | Notwithstanding the above: |
(i) | the Parties may at any time assign or transfer all or part of its rights and obligations under this Agreement to any of its Affiliates provided that such assignment or transfer is previously notified to the other Party. In such event, any reference in this Agreement to the assigning Party shall be deemed to constitute a reference to the assignee with respect to the part of this Agreement that is assigned; and, |
(ii) | nothing in this Agreement shall in any way restrict any change in shareholding or control of the Parties or its Affiliates or the Repairers rights to delegate obligations of it hereunder to a Subcontractor. provided that, in such case, the Repairer will remain responsible for the provision of the Services in accordance with the terms of this Agreement. |
provided such assignment or transfer, change in shareholding or control has no material adverse effect on any of the Companys rights and obligations under this Agreement.
23. | MISCELLANEOUS |
23.1 | The time stipulated in this Agreement for all payments by the Company to the Repairer under this Agreement shall be of the essence. |
23.2 | Survival: notwithstanding anything to the contrary stated in this Agreement, no termination or expiry of this Agreement shall affect the following rights or obligations of any Party hereto: |
(a) | with respect to any payment hereunder actually owed by either Party to the other under this Agreement prior to the End Date; and/or, |
(b) | pursuant to Clauses 2 Definitions and interpretation, 4 Excusable Delay, 8 Insurances, 9 Warranties, 14 Disclaimer, 15 Liability and indemnity, 16 Termination, 20 Confidentiality, 23.2 Survival, 23.5 No waiver, 23.8 Severability, and 24 Governing law and arbitration; and/or, |
(c) | pursuant to any other provisions of this Agreement that, by their nature and context, are intended to survive termination of this Agreement. |
23.3 | Representations: each Party represents to the other Party that: |
23.3.1 | It is a legal entity duly incorporated and validly existing under the laws of the jurisdiction indicated in this Agreement; |
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23.3.2 | The entering into and performance by it of its obligations in this Agreement are within its corporate powers and have been duly authorized by all necessary corporate action and are not in violation of any applicable Law or documents, and do not require the consent or approval of, or registration or filing with, any Government Entity other than those already obtained or effected; |
23.3.3 | The signatory executing this Agreement on such Partys behalf has been vested with the necessary authority and power to enter into this Agreement on its behalf; |
23.3.4 | This Agreement constitutes the Parties legal, valid and binding obligation; |
23.3.5 | Subject to Clause 20 (Confidentiality), it will furnish all information relating to the provisions of the Services hereunder reasonably required by the other Party and/or any Government Entity; |
23.4 | Left intentionally blank |
23.5 | No waiver: the failure by either Party to enforce at any time any of the provisions of this Agreement, or to require at any time the performance by the other Party of any of the provisions hereof, shall not be construed to be a waiver of such provisions, nor in any way affect the validity of this Agreement or any part thereof, or the right of such Party thereafter to enforce each and every such provision. |
23.6 | Independent contractors: neither Party is the representative or agent of the other Party for the purposes of this Agreement and nothing herein shall be construed as authorizing either Party to act as the other Partys representative or agent. Notwithstanding any other provisions of this Agreement, this Agreement shall not be construed as a joint venture, partnership, agency, incorporation or business association. Each Party hereto shall remain an independent contractor. |
23.7 | Amendments: this Agreement shall only be varied or amended by a written document duly signed by duly authorized representatives of both Parties. Notwithstanding the foregoing, Exhibit 1 (List of ATR aircraft covered under this Agreement) and the Pool may be amended from time to time by the Repairer by way of Notice sent to the Company, unless, for LRUs reference suppression/replacement, the Company does not agree the same by way of Notice within [*****] as from the receipt date of the said Notice from the Repairer, in compliance with this Agreement and provided that it has no material economic impact to the Company. |
23.8 | Severability: if any term or provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other terms and provisions hereof shall remain in full force and effect, and the Parties shall negotiate in good faith in order to modify this Agreement with a provision having substantially the same legal and commercial effect as the severed provision. |
23.9 | Entire Agreement: this Agreement constitutes the entire agreement between the Parties and supersedes and replaces all prior discussions, representations, understandings or agreements whether verbal or written, between the Parties hereto or their agents with respect to or in connection with the subject matter hereto, save and except for the provisions of any agreements which by their nature or wording are intended to remain in full force and effect (including pre-existing confidentiality or non-disclosure undertakings not otherwise covered herein). No other documents and agreements, including either Partys standard terms and conditions, whether existing or future, will apply between the Parties with respect to the subject matter of this |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Agreement, unless where otherwise expressly provided for in this Agreement.
Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy (other than for breach of contract) in respect of any statement, representation, insurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement.
Nothing in this Clause shall limit or exclude any liability of either Party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment.
23.10 | Language: the Parties declare that they have requested and hereby confirm their express wish that this Agreement and any and all related documents be drawn up in the English language (or, if not in English, with a certified English translation). |
23.11 | Costs and expenses: except where this Agreement provides otherwise, each Party shall pay its own costs relating to the negotiation, preparation, execution and implementation of this Agreement and of any document related hereto. |
23.12 | Counterparts: this Agreement shall be signed in several counterparts, each of such counterparts so signed shall constitute an original, and all counterparts together shall constitute a single instrument. Any executed version delivered via facsimile transmission or electronic mail (PDF format) shall be binding to the same extent as an original. Any Party who delivers such an executed version agrees to subsequently deliver an original counterpart to any Party that requests it. |
23.13 | Publicity and public announcements: the Parties shall not make public announcements, press releases and/or advertise on the signature and/or the existence of this Agreement (but not its contents) without the prior written consent of the other Party. |
The Repairer is entitled to use the Companys name and associated logos as a business reference for its marketing activities in relation with the Services, provided such use (i) has no adverse impact on, such as but not limited to, Companys reputation and image and (ii) complies with graphic design policy of the Company.
23.14 | Companys audited financial statements: during the Term of this Agreement, the Company undertakes to provide promptly the Repairer with (i) its audited financial statements and (ii) any other financial information it shall request, acting reasonably, for each relevant financial year. It is hereby agreed that any such information shall be prepared in accordance with the applicable accounting policies. |
23.15 | For the sake of clarity and transparency, the Services to be provided under this Agreement by the Repairer will not involve the transfer of know-how to the Company by no means whatsoever. The Services shall be performed without the presence of any Companys technician and no technical report shall be delivered by the Repairer in connection therewith (except if expressly required by the Company, as foreseen on Clause 23.3.5). |
24. | GOVERNING LAW AND ARBITRATION |
24.1 | Governing law: |
Pursuant to and in accordance with Section 5-1401 of the New York General Obligations Law, the Parties hereto agree that this Agreement in all respects, and any claim or cause of action based upon or arising out of this Agreement, or any dealing between the Parties
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CONFIDENTIAL TREATMENT REQUESTED
relating to the subject matter of this Agreement or the transactions contemplated hereby or the Company/Repairer relationship being established, shall be governed by, and construed in accordance with, the laws of the State of New York, U.S.A. as applied to contracts to be performed wholly within the State of New York (Exclusive of Section 7-101 of the New York General Obligations Law which is inapplicable to this Agreement).
24.2 | Arbitration: in the event of a dispute arising out of or relating to this Agreement, including without limitation disputes regarding the existence, validity or termination of this Agreement (a Dispute), either Party may notify such Dispute to the other through service of a written notice (the Notice of Dispute). The Parties shall make their reasonable endeavours to settle the Dispute amicably by a committee composed of one (1) management representative of each Party (the Representatives). Such committee shall be created by the Parties within [*****] from the date of receipt of the Notice of Dispute. |
24.2.1 | Subject to sub-Clause 24.2.5 below and in the event the Representatives (i) fail to create such committee or (ii) do not agree on an amicable settlement within [*****] from the date the committee referred to in this sub-Clause 24.2 has been created or such longer period as may be agreed upon in writing by the Representatives (the Amicable Settlement Period), the Dispute shall be exclusively and finally settled under the Rules and Conciliation of Arbitration of the International Chamber of Commerce (the ICC) by an arbitral tribunal composed of three (3) arbitrators; each Party shall then appoint one (1) arbitrator within [*****] from the last day of the Amicable Settlement Period and the third arbitrator, who will act as President, will be appointed by the other two (2) arbitrators. In case the two (2) arbitrators appointed by the Parties do not agree on this choice with [*****] from the date the last arbitrator is appointed, the third arbitrator will be appointed by the ICC Court. |
24.2.2 | The arbitration, and any proceedings, and meetings incidental to or related to the arbitration process, shall take place in New York, U.S.A, and the language to be used in the arbitral proceedings shall be English; arbitral award shall be final and binding upon the Parties. |
24.2.3 | The arbitration shall be kept confidential and the existence of the proceeding and any element of it shall not be disclosed to any third party. Any information relating to and/or documents generated for the purpose of or produced in the arbitration, including any awards, shall remain confidential between the Parties, the arbitrators and any other Person involved in the arbitration proceedings, except to the extent that disclosure may be required pursuant to any order of court or other competent authority or tribunal, or to protect or pursue a legal rights or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority. |
24.2.4 | During any period of negotiation or arbitration, the Parties shall continue to meet their respective obligations in accordance with the provisions of the Agreement. |
24.2.5 | Notwithstanding any provision of this Clause 24.2 the Parties may, at any time, seek and decide to settle a Dispute either through direct negotiations or in accordance with the ICC rules in respect of the alternative dispute resolution. |
24.3 | Judgment upon any award may be entered in any court having jurisdiction or application may be made to the court for a judicial recognition of the award or an order of enforcement, as the case may be. |
24.4 | Recourse to jurisdictions is expressly excluded except as provided for in the ICC Rules of Conciliation and Arbitration concerning Conservatory and Interim measures. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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This Agreement has been executed in two (2) original copies in the English language on the Signing Date.
On behalf of: |
On behalf of:
|
|||||
AZUL LINHAS AÉREAS BRASILEIRAS |
AVIONS DE TRANSPORT REGIONAL | |||||
(Company) |
(Repairer)
|
|||||
Signed by: |
/s/ Amir Nasruddin | Signed by: | /s/ Massimo Castorina | |||
Function: |
Attorney in fact | Function: | Vice-President Commercial | |||
Product Support & Services |
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 LIST OF ATR AIRCRAFT COVERED UNDER THIS AGREEMENT
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
[*****]
This list may be amended from time to time by way of Notice sent to the Company by Repairer in order to cover any further ATR aircraft entering the Companys fleet, including the airframe, engines, propellers and landing gears and parts installed on the Aircraft, when solely operated by the Company.
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT 2 LIST OF SERVICES PROVIDED UNDER THIS AGREEMENT
The Repairer shall provide the Company with the following Services:
[*****]
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 3 MAIN ELEMENTS COVERED UNDER THE AGREEMENT
[*****]
Part number of each assembly and subcomponent to be provided by the Company.
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 4 LIST OF LANDING GEAR ON CONDITION PARTS
[*****]
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The following Exhibit is composed of sixteen (16) pages, into which are listed [*****] part numbers.
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
EXCHANGER-HEAT,DUAL | [*****] | ||
[*****] |
CONDENSER | [*****] | ||
[*****] |
COOLING UNIT | [*****] | ||
[*****] |
VALVE-TURBINE INLET CONTROL | [*****] | ||
[*****] |
FLIGHT DATA ACQUISITION UNIT | [*****] | ||
[*****] |
FLIGHT GUIDANCE CONTROL PANEL | [*****] | ||
[*****] |
AUTO PILOT SERVO-ACTUATOR | [*****] | ||
[*****] |
AUTO PILOT CAPSTAN | [*****] | ||
[*****] |
CVR-SOLID STATE | [*****] | ||
[*****] |
CONTROL UNIT-CVR | [*****] | ||
[*****] |
AUDIO CONTROL PANEL | [*****] | ||
[*****] |
AMPLIFIER-PASSENGER ADDRESS | [*****] | ||
[*****] |
STARTER GENERATOR-DC | [*****] | ||
[*****] |
CONTROL UNIT-GENERATOR,AC | [*****] | ||
[*****] |
CONTROL UNIT-BUS POWER,AC | [*****] | ||
[*****] |
CONTACTOR-ACW | [*****] | ||
[*****] |
ATTENDANT PANEL | [*****] | ||
[*****] |
ATTENDANT PANEL | [*****] | ||
[*****] |
ATTENDANT PANEL USB KEY | [*****] | ||
[*****] |
HANDLE-ENG1 FIRE | [*****] | ||
[*****] |
ROD-DYNAMOMETRIC,ROLL | [*****] | ||
[*****] |
SWITCH UNIT-FLAP CONTROL | [*****] | ||
[*****] |
ACTUATOR-ELEVATOR | [*****] | ||
[*****] |
ACTUATOR-TRIM | [*****] | ||
[*****] |
VALVE BLOCK-FLAP | [*****] | ||
[*****] |
RESTRICTOR-FLAP VLV BLOCK FLOW, EXTN LINE | [*****] | ||
[*****] |
ACTUATOR-STICK PUSHER | [*****] | ||
[*****] |
VALVE BLOCK-SPOILER | [*****] | ||
[*****] |
SHAKER-STICK | [*****] | ||
[*****] |
ACTUATOR-SPOILER | [*****] | ||
[*****] |
CABLE-TENSION REGULATOR | [*****] | ||
[*****] |
COUPLING-REFUEL/DEFUEL | [*****] | ||
[*****] |
CONTROLLER-HORN ANTI ICING | [*****] | ||
[*****] |
RESISTOR-HORN ANTI ICING,LH ELEVATOR | [*****] | ||
[*****] |
RESISTOR-HORN ANTI-ICING,RH ELEVATOR | [*****] | ||
[*****] |
RESISTOR-HORN ANTI-ICING,RUDDER | [*****] | ||
[*****] |
RESISTOR-HORN ANTI ICING,LH AILERON | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
RESISTOR-HORN ANTI ICING,RH AILERON | [*****] | ||
[*****] |
VALVE-DE ICING DUAL DISTRIBUTOR | [*****] | ||
[*****] |
PROBE-CCAS ALPHA | [*****] | ||
[*****] |
ACCELEROMETER-THREE AXIS | [*****] | ||
[*****] |
TRANSMITTER-POSITION SYNCHRO | [*****] | ||
[*****] |
RESERVOIR-BRAKE | [*****] | ||
[*****] |
CYLINDER-MASTER | [*****] | ||
[*****] |
VALVE-SELECTOR,LG | [*****] | ||
[*****] |
ACCUMULATOR-PARKING | [*****] | ||
[*****] |
ABSORBER-SHOCK | [*****] | ||
[*****] |
VALVE-PARKING | [*****] | ||
[*****] |
VALVE-BRAKE | [*****] | ||
[*****] |
VALVE-RELIEF,LOW PRESSURE | [*****] | ||
[*****] |
VALVE-BRAKE | [*****] | ||
[*****] |
VALVE-DIFFERENTIAL CONTROL | [*****] | ||
[*****] |
SELECTOR | |||
[*****] |
BOX-UPLOCK | [*****] | ||
[*****] |
FLUX VALVE | [*****] | ||
[*****] |
VALVE-FEED STOP | [*****] | ||
[*****] |
PUMP-PROPELLER FEATHERING | [*****] | ||
[*****] |
PUSH-PULL CABLE-PROP CONDITION | [*****] | ||
[*****] |
PUMP GOVERNOR-PROPELLER | |||
[*****] |
OVERSPEED | [*****] | ||
[*****] |
EXCITERIGNITION I.C. | [*****] | ||
[*****] |
EJECTOR, FUEL WASTE | [*****] | ||
[*****] |
SERVO VALVE | [*****] | ||
[*****] |
FUEL PUMP | [*****] | ||
[*****] |
PUSH-PULL CABLE-PROPELLER POWER | [*****] | ||
[*****] |
ACTUATOR-OIL COOLER FLAP | [*****] | ||
[*****] |
COOLER-OIL | [*****] | ||
[*****] |
REFERENCE UNIT-ATTITUDE AND HEADING | [*****] | ||
[*****] |
GROUND COOLING FAN | [*****] | ||
[*****] |
SMOKE DETECTOR | [*****] | ||
[*****] |
TOTAL [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
CONTROLLER-DIGITAL | [*****] | ||
[*****] |
COOLING UNIT | [*****] | ||
[*****] |
FAN-AIR EXTRACTION | [*****] | ||
[*****] |
VALVE-ELECTROPNEUMATIC OUTFLOW | [*****] | ||
[*****] |
VALVE-PACK FLOW CONTROL | [*****] | ||
[*****] |
VALVE-PNEUMATIC OUTFLOW | [*****] | ||
[*****] |
VALVE-SHUTOFF TURBOFAN | [*****] | ||
[*****] |
VALVE-TRIM AIR | [*****] | ||
[*****] |
VALVE-TURBINE INLET CONTROL | [*****] | ||
[*****] |
COUPLER HF ANTENNA | [*****] | ||
[*****] |
ECU-3000 | [*****] | ||
[*****] |
HANDSET-CABIN ATTENDANT | [*****] | ||
[*****] |
MANAGEMENT UNIT-ACARS | [*****] | ||
[*****] |
TRANSCEIVER-HF | [*****] | ||
[*****] |
VHF/COMM TRANSCEIVER | [*****] | ||
[*****] |
VHF-4000-8,33 KHZ | [*****] | ||
[*****] |
CONTROL UNIT-BUS POWER,DC | [*****] | ||
[*****] |
CONTROL UNIT-GENERATOR,DC | [*****] | ||
[*****] |
GENERATOR-AC | [*****] | ||
[*****] |
SENSOR-HALL EFFECT | [*****] | ||
[*****] |
STATIC INVERTER | [*****] | ||
[*****] |
TRANSFORMER RECTIFIER UNIT | [*****] | ||
[*****] |
TRANSMITTER-EMERGENCY LOCATOR | [*****] | ||
[*****] |
DETECTOR UNIT | [*****] | ||
[*****] |
HANDLE-ENG2 FIRE | [*****] | ||
[*****] |
ACTUATOR-FLAP | [*****] | ||
[*****] |
DAMPER-RUDDER | [*****] | ||
[*****] |
REFUEL CONTROL PANEL | [*****] | ||
[*****] |
INDICATOR LEVEL SWITCH | [*****] | ||
[*****] |
PUMP-ELECTRIC,AC | [*****] | ||
[*****] |
DETECTOR-ICE | [*****] | ||
[*****] |
VALVE-ANTI ICING PRESS REG AND | |||
[*****] |
SHUTOFF | [*****] | ||
[*****] |
VALVE-ANTI ICING SHUTOFF | [*****] | ||
[*****] |
VALVE-DE ICING DUAL DISTRIBUTOR | [*****] | ||
[*****] |
CLOCK | [*****] | ||
[*****] |
DIGITAL FLIGHT DATA RECORDER | [*****] | ||
[*****] |
EFIS CONTROL PANEL LH SIDE | [*****] | ||
[*****] |
EFIS CONTROL PANEL RH SIDE | [*****] | ||
[*****] |
INDEX CONTROL PANEL | [*****] | ||
[*****] |
INTEGRATED AVIONICS DISPLAY | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
MPC-ED36 | [*****] | ||
[*****] |
MULTIFUNCTION COMPUTER | [*****] | ||
[*****] |
MULTI-FUNCTION CONTROL PANEL | [*****] | ||
[*****] |
MULTIPURPOSE CONTROL & DISPLAY UNIT | [*****] | ||
[*****] |
SENSOR-WHEEL SPEED | [*****] | ||
[*****] |
VALVE-DIFFERENTIAL CONTROL SELECTOR | [*****] | ||
[*****] |
VALVE-SELECTOR,SWIVEL | [*****] | ||
[*****] |
EMERGENCY LIGHTING POWER SUPPLY MODULE | [*****] | ||
[*****] |
LIGHT-ANTICOLLISION,WHITE | [*****] | ||
[*****] |
LIGHT-ANTI COLLISION,RED | [*****] | ||
[*****] |
LIGHT-LANDING | [*****] | ||
[*****] |
LIGHT-STROBE | [*****] | ||
[*****] |
POWER SUPPLY-UNIT ANTI COLLISION LIGHT | [*****] | ||
[*****] |
POWER SUPPLY-UNIT ANTI COLLISION LIGHT | [*****] | ||
[*****] |
AIR DATA COMPUTER | [*****] | ||
[*****] |
ATC TRANSPONDER | [*****] | ||
[*****] |
ATTITUDE HEADING REF UNIT | [*****] | ||
[*****] |
FLUX VALVE | [*****] | ||
[*****] |
INTEGRATED ELEC STAND-BY EQUIP | [*****] | ||
[*****] |
INTERROGATOR-DME | [*****] | ||
[*****] |
NAVIGATOR PROCESSOR UNIT (GPS RECEIVER) | [*****] | ||
[*****] |
PROBE-AIR TEMPERATURE | [*****] | ||
[*****] |
PROBE-PITOT | [*****] | ||
[*****] |
RADIO-ALTIMETER TRANSCEIVER | [*****] | ||
[*****] |
RECEIVER-VOR/ILS/MKR | [*****] | ||
[*****] |
T2CAS COMPUTER | [*****] | ||
[*****] |
TRANSCEIVER-WEATHER RADAR | [*****] | ||
[*****] |
VOR/ILS/MKR RECEIVER | [*****] | ||
[*****] |
WX RADAR CONTROL PANEL | [*****] | ||
[*****] |
TRANSMITTER/REGULATOROXYGEN PRESS | [*****] | ||
[*****] |
DUCT-DISCHARGE DOWNSTREAM VALVE | [*****] | ||
[*****] |
VALVE ASSY-SHUTOFF | [*****] | ||
[*****] |
VALVE-XFEED,AIR BLEED | [*****] | ||
[*****] |
CAC SWM | [*****] | ||
[*****] |
CORE AVIONICS CABINET I/P O/P MODULE AP | [*****] | ||
[*****] |
CORE AVIONICS CABINET I/P O/P MODULE-S | [*****] | ||
[*****] |
CORE AVIONICS CABINET I/P O/P MODULE-DC | [*****] | ||
[*****] |
INTEGRATED CORE PROCESSING | |||
[*****] |
MODULE | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
PROPELLER BLADES | [*****] | ||
[*****] |
PROPELLER ASSEMBLY | [*****] | ||
[*****] |
BRUSH BLOCK ASSY | [*****] | ||
[*****] |
CONTROL ELECTRONIC-PROPELLER | [*****] | ||
[*****] |
GOVERNOR-PROPELLER OVERSPEED | [*****] | ||
[*****] |
MODULE VALVE PROPELLER | [*****] | ||
[*****] |
SWITCH-PRESSURE,HYDRAULIC | [*****] | ||
[*****] |
PIPE-EXHAUST | [*****] | ||
[*****] |
TRANSMITTER-FUEL FLOW | [*****] | ||
[*****] |
ENGINE ELECTRONIC CONTROL | [*****] | ||
[*****] |
SENSOR TORQUE METER | [*****] | ||
[*****] |
VALVE ASSY,INTERCOMPRESS BLEED | [*****] | ||
[*****] |
VALVE INTERCOMPRESSOR BLEED | |||
[*****] |
MFC | [*****] | ||
[*****] |
CONTROL,AUTOFEATHER | [*****] | ||
[*****] |
COOLER - OIL | [*****] | ||
[*****] |
FLOW DIVIDER & DUMP VALVE | [*****] | ||
[*****] |
FUEL HEATER | [*****] | ||
[*****] |
TOTAL [*****] | [*****] |
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
COOLING UNIT | [*****] | ||
[*****] |
EXCHANGER-HEAT,DUAL | [*****] | ||
[*****] |
VALVE-PACK FLOW CONTROL | [*****] | ||
[*****] |
VALVE-PNEUMATIC OUTFLOW | [*****] | ||
[*****] |
VALVE-TRIM AIR | [*****] | ||
[*****] |
VALVE-TURBINE INLET CONTROL | [*****] | ||
[*****] |
AMPLIFIER-PASSENGER ADDRESS | [*****] | ||
[*****] |
AUDIO CONTROL PANEL | [*****] | ||
[*****] |
COUPLER HF ANTENNA | [*****] | ||
[*****] |
CVR-SOLID STATE | [*****] | ||
[*****] |
REMOTE CONTROL AUDIO UNIT | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
TRANSCEIVER-HF | [*****] | ||
[*****] |
CONTROL UNIT-BUS POWER,AC | [*****] | ||
[*****] |
CONTROL UNIT-BUS POWER,DC | [*****] | ||
[*****] |
CONTROL UNIT-GENERATOR,AC | [*****] | ||
[*****] |
CONTROL UNIT-GENERATOR,DC | [*****] | ||
[*****] |
GENERATOR-AC | [*****] | ||
[*****] |
INVERTER-STATIC | [*****] | ||
[*****] |
SENSOR-HALL EFFECT | [*****] | ||
[*****] |
STARTER GENERATOR-DC | [*****] | ||
[*****] |
TRANSMITTER-EMERGENCY LOCATOR | [*****] | ||
[*****] |
DETECTOR-SMOKE | [*****] | ||
[*****] |
ACTUATOR-TRIM | [*****] | ||
[*****] |
VALVE BLOCK-FLAP | [*****] | ||
[*****] |
VALVE BLOCK-SPOILER | [*****] | ||
[*****] |
PUMP-FUEL ELECTRIC | [*****] | ||
[*****] |
PUMP-ELECTRIC,AUXILIARY,DC | [*****] | ||
[*****] |
DETECTOR-ICE | [*****] | ||
[*****] |
VALVE-DE ICING DUAL DISTRIBUTOR | [*****] | ||
[*****] |
MULTIFUNCTION COMPUTER | [*****] | ||
[*****] |
PROBE-CCAS ALPHA | [*****] | ||
[*****] |
BOX-UPLOCK | [*****] | ||
[*****] |
CONTROL UNIT-ANTISKID SYSTEM | [*****] | ||
[*****] |
SENSOR-WHEEL SPEED | [*****] | ||
[*****] |
VALVE-SELECTOR,SWIVEL | [*****] | ||
[*****] |
EMERGENCY LIGHTING POWER SUPPLY MODULE | [*****] | ||
[*****] |
LIGHT-ANTICOLLISION,WHITE | [*****] | ||
[*****] |
LIGHT-LANDING | [*****] | ||
[*****] |
LIGHT-STROBE | [*****] | ||
[*****] |
POWER SUPPLY UNIT-STROBE LIGHT | [*****] | ||
[*****] |
PROBE-PITOT | [*****] | ||
[*****] |
TRANSMITTER/REGULATOR OXYGEN PRESS | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
Page 51/110 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
DUCT-DISCHARGE DOWNSTREAM VALVE | [*****] | ||
[*****] |
VALVE ASSY-SHUTOFF | [*****] | ||
[*****] |
VALVE-HP AIR BLEED | [*****] | ||
[*****] |
VALVE-HP AIR BLEED | [*****] | ||
[*****] |
VALVE-XFEED,AIR BLEED | [*****] | ||
[*****] |
PUMP-PROPELLER FEATHERING | [*****] | ||
[*****] |
SWITCH-PRESSURE,HYDRAULIC | [*****] | ||
[*****] |
PIPE-EXHAUST | [*****] | ||
[*****] |
TRANSMITTER-FUEL FLOW | [*****] | ||
[*****] |
PUSH-PULL CABLE-PROPELLER POWER | [*****] | ||
[*****] |
ACTUATOR-OIL COOLER FLAP | [*****] | ||
[*****] |
COOLER-OIL | [*****] | ||
[*****] |
BRAKE, PROPELLER | [*****] | ||
[*****] |
EXCITERIGNITION I.C. | [*****] | ||
[*****] |
EJECTOR, FUEL WASTE | [*****] | ||
[*****] |
COOLER OIL | [*****] | ||
[*****] |
SERVO VALVE | [*****] | ||
[*****] |
VALVE INTERCOMPRESSOR BLEED | [*****] | ||
[*****] |
FUEL HEATER | [*****] | ||
[*****] |
FUEL PUMP | [*****] | ||
[*****] |
TOTAL [*****] | [*****] |
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
PROPELLER ASSY | [*****] | ||
[*****] |
PROPELLER ASSY | [*****] | ||
[*****] |
MULTIFONCTION COMPUTER | [*****] | ||
[*****] |
PROPELLER ASSY | [*****] | ||
[*****] |
MFC | [*****] | ||
[*****] |
MFC | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
Page 52/110 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
BRAKE, PROPELLER | [*****] | ||
[*****] |
BRAKE, PROPELLER | [*****] | ||
[*****] |
AIR DATA COMPUTER | [*****] | ||
[*****] |
STARTER GENERATOR-DC | [*****] | ||
[*****] |
BLADE PROPELLER | [*****] | ||
[*****] |
TRANSCEIVER-TCAS | [*****] | ||
[*****] |
BRAKE, PROPELLER | [*****] | ||
[*****] |
BRAKE, PROPELLER | [*****] | ||
[*****] |
MODULE VALVE PROPELLER | [*****] | ||
[*****] |
MODULE VALVE PROPELLER | [*****] | ||
[*****] |
ACTUATOR-NOSE | [*****] | ||
[*****] |
FCU-HYDRO MECHANICAL | [*****] | ||
[*****] |
ELECTRONIC ENGINE CONTROL UNIT | [*****] | ||
[*****] |
COMPUTER-AFCS | [*****] | ||
[*****] |
REMOTE CONTROL AUDIO UNIT | [*****] | ||
[*****] |
REMOTE CONTROL AUDIO UNIT | [*****] | ||
[*****] |
TRANSCEIVER-RADIO ALTIMETER | [*****] | ||
[*****] |
GROUND PROXIMITY WARNING | |||
[*****] |
COMPUTER | [*****] | ||
[*****] |
VALVE-HP AIR BLEED | [*****] | ||
[*****] |
INDICATOR-VERTICAL SPEED | [*****] | ||
[*****] |
GENERATOR-AC | [*****] | ||
[*****] |
COOLER-OIL | [*****] | ||
[*****] |
REMOTE CONTROL AUDIO UNIT | [*****] | ||
[*****] |
VALVE-DIFFERENTIAL CONTROL | |||
[*****] |
SELECTOR | [*****] | ||
[*****] |
VALVE INTERCOMPRESSOR BLEED | [*****] | ||
[*****] |
FLIGHT DATA ACQUISITION UNIT | [*****] | ||
[*****] |
FLIGHT DATA ACQUISITION UNIT | [*****] | ||
[*****] |
FLIGHT DATA ACQUISITION UNIT | [*****] | ||
[*****] |
ACTUATOR-MAIN | [*****] | ||
[*****] |
ACTUATOR-MAIN RH | [*****] | ||
[*****] |
ADVISORY DISPLAY UNIT-AFCS | [*****] | ||
[*****] |
VALVE ASSY-P2.5,P3 AIR PRESS.VALVE | [*****] | ||
[*****] |
CONDENSER | [*****] | ||
[*****] |
TRANSFORMER RECTIFIER UNIT | [*****] | ||
[*****] |
CONTROL,AUTOFEATHER | [*****] | ||
[*****] |
VALVE BLOCK-FLAP | [*****] | ||
[*****] |
VALVE BLOCK-FLAP | [*****] | ||
[*****] |
FUEL HEATER | [*****] | ||
[*****] |
ACTUATOR-MAIN | [*****] | ||
[*****] |
PROBE-CCAS ALPHA | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
Page 53/110 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
PROBE-CCAS ALPHA | [*****] | ||
[*****] |
COUPLER-HF ANTENNA | [*****] | ||
[*****] |
GOVERNOR-PROPELLER OVSP | [*****] | ||
[*****] |
DUCT-DISCHARGE DOWNSTREAM VALVE | [*****] | ||
[*****] |
CONTROLLER-DIGITAL | [*****] | ||
[*****] |
RECEIVER-VOR/ILS/MKR | [*****] | ||
[*****] |
FUEL PUMP | [*****] | ||
[*****] |
VALVE-ELECTROPNEUMATIC OUTFLOW | [*****] | ||
[*****] |
MOUNT ANTENNA-WEATHER RADAR | [*****] | ||
[*****] |
PUMP, HYDRAULIC, OVSP GOV | [*****] | ||
[*****] |
CONTROL ELECTRONIC-PROPELLER | [*****] | ||
[*****] |
BOBBIN | [*****] | ||
[*****] |
DATA COLLECTION UNIT | [*****] | ||
[*****] |
PUMP-ELECTRIC,AC | [*****] | ||
[*****] |
TRANSCEIVER-HF | [*****] | ||
[*****] |
RESISTOR-HORN ANTI ICING,LH | |||
[*****] |
ELEVATOR | [*****] | ||
[*****] |
RESISTOR-HORN ANTI-ICING,RH | |||
[*****] |
ELEVATOR | [*****] | ||
[*****] |
ACTUATOR-CARGO DOOR | [*****] | ||
[*****] |
INTERROGATOR-DME | [*****] | ||
[*****] |
INDICATOR-CAB PRESS | [*****] | ||
[*****] |
VALVE-ANTI ICING PRESS REGULATOR AND SHUTOFF | [*****] | ||
[*****] |
VALVE-SELECTOR,SWIVEL | [*****] | ||
[*****] |
SOLID STATE FLIGHT DATA RECORDER | [*****] | ||
[*****] |
ANTENNA-TCAS | [*****] | ||
[*****] |
CONTROL PANEL-AFCS | [*****] | ||
[*****] |
PUMP-ELECTRIC,AUXILIARY,DC | [*****] | ||
[*****] |
TRANSCEIVER-VHF | [*****] | ||
[*****] |
ASSISTER-FREE FALL,MLG | [*****] | ||
[*****] |
CONTROLLER-INSTRUMENT REMOTE | [*****] | ||
[*****] |
COUPLER HF ANTENNA | [*****] | ||
[*****] |
SEAT-DISABLED PASSENGER,RH | [*****] | ||
[*****] |
SEAT-DISABLED PASSENGER,LH | [*****] | ||
[*****] |
CONTROLLER-INSTRUMENT REMOTE | [*****] | ||
[*****] |
DAMPER-RUDDER | [*****] | ||
[*****] |
BAR ASSY-TORQUE | [*****] | ||
[*****] |
HANDLE-ENG1 FIRE | [*****] | ||
[*****] |
HANDLE-ENG2 FIRE | [*****] | ||
[*****] |
INDICATOR-TAS/TEMP | [*****] | ||
[*****] |
CONTROL PANEL-EFIS | [*****] | ||
[*****] |
PROBE-AIR TEMPERATURE | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
Page 54/110 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
SENSOR-HALL EFFECT | [*****] | ||
[*****] |
HANDSET-CABIN ATTENDANT | [*****] | ||
[*****] |
JOINT | [*****] | ||
[*****] |
INDICATOR-FUEL FLOW/FUEL USED,KG | [*****] | ||
[*****] |
CLOCK | [*****] | ||
[*****] |
VALVE-SELECTOR,LG | [*****] | ||
[*****] |
HOCKMOUNT-AFT LATERAL,RH | [*****] | ||
[*****] |
EXCITER-IGNITION I.C. | [*****] | ||
[*****] |
SENSOR TORQUE METER | [*****] | ||
[*****] |
SENSOR TORQUE METER | [*****] | ||
[*****] |
INDICATOR-FUEL QUANTITY,KG | [*****] | ||
[*****] |
INDICATOR-FUEL QUANTITY,KG | [*****] | ||
[*****] |
VALVE-DE ICING DUAL DISTRIBUTOR | [*****] | ||
[*****] |
MASK ASSY-REGULATOR,OXYGEN | [*****] | ||
[*****] |
CONTROL BOX-WEATHER RADAR | [*****] | ||
[*****] |
DETECTOR UNIT | [*****] | ||
[*****] |
TRANSCEIVER-VHF | [*****] | ||
[*****] |
VALVE-DE ICING DUAL DISTRIBUTOR | [*****] | ||
[*****] |
BATTERY-MAIN | [*****] | ||
[*****] |
ACCELEROMETER-THREE AXIS | [*****] | ||
[*****] |
PUMP-PROPELLER FEATHERING | [*****] | ||
[*****] |
MOTOR-WIPER,F/O | [*****] | ||
[*****] |
MOTOR-WIPER,CAPTAIN | [*****] | ||
[*****] |
INDICATOR-PRESSURE,TRIPLE | [*****] | ||
[*****] |
ACTUATOR-UNLOCKING,MLG | [*****] | ||
[*****] |
PANEL-ATTENDANT | [*****] | ||
[*****] |
SENSOR, TORQUE MONITOR | [*****] | ||
[*****] |
INDICATOR-ITT | [*****] | ||
[*****] |
CONTROL UNIT-TCAS | [*****] | ||
[*****] |
SWITCH-PROXIMITY | [*****] | ||
[*****] |
SERVO VALVE | [*****] | ||
[*****] |
SWITCH-PROXIMITY | [*****] | ||
[*****] |
VALVE-REFUEL/DEFUEL | [*****] | ||
[*****] |
SWITCH-OVERTEMPERATURE | [*****] | ||
[*****] |
CYLINDER-MASTER | [*****] | ||
[*****] |
INDICATOR-AIRSPEED,STANDBY | [*****] | ||
[*****] |
COMPENSATOR-COLD JUNCTION | [*****] | ||
[*****] |
COMPENSATOR-COLD JUNCTION | [*****] | ||
[*****] |
TRANSMITTER-FUEL FLOW | [*****] | ||
[*****] |
COMPENSATOR-COLD JUNCTION | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
Page 55/110 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
TANK-FUEL DRAIN AND EJECTOR PUMP | [*****] | ||
[*****] |
EJECTOR, FUEL WASTE | [*****] | ||
[*****] |
SENSOR-WHEEL SPEED | [*****] | ||
[*****] |
CONTROL UNIT-DUAL ATC | [*****] | ||
[*****] |
LEVER-CONTROL,L/G | [*****] | ||
[*****] |
CONTROL UNIT-OVEN | [*****] | ||
[*****] |
INDICATOR-ITT | [*****] | ||
[*****] |
CLOCK | [*****] | ||
[*****] |
CLOCK | [*****] | ||
[*****] |
CONTROL UNIT-VHF | [*****] | ||
[*****] |
VALVE-FLUX | [*****] | ||
[*****] |
LIGHT-STROBE | [*****] | ||
[*****] |
CONTROL UNIT-VOR/ILS/DME | [*****] | ||
[*****] |
CONTROL UNIT-ADF | [*****] | ||
[*****] |
SWITCH-PRESSURE | [*****] | ||
[*****] |
MASK ASSY-REGULATOR,OXYGEN | [*****] | ||
[*****] |
FLOW DIVIDER & DUMP VALVE | [*****] | ||
[*****] |
TRANSMITTER-EMERGENCY LOCATOR | [*****] | ||
[*****] |
INDICATOR-OIL TEMP/PRESS | [*****] | ||
[*****] |
VALVE-TWO WAY AND WATER DRAIN | [*****] | ||
[*****] |
SWITCH-PROXIMITY | [*****] | ||
[*****] |
CONTACTOR-ACW | [*****] | ||
[*****] |
SWITCH-PROXIMITY | [*****] | ||
[*****] |
ACTUATOR-OIL COOLER FLAP | [*****] | ||
[*****] |
LIGHT-LANDING | [*****] | ||
[*****] |
EMERGENCY LIGHTING POWER SUPPLY MODULE | [*****] | ||
[*****] |
SWITCH-OVERTEMPERATURE | [*****] | ||
[*****] |
SWITCH-PRESSURE,HYDRAULIC | [*****] | ||
[*****] |
VALVE-CHECK | [*****] | ||
[*****] |
PROBE-PITOT | [*****] | ||
[*****] |
INDICATOR-FUEL TEMPERATURE | [*****] | ||
[*****] |
ANTENNA-RADIO-ALTIMETER RECEPTION | [*****] | ||
[*****] |
CONTROL UNIT-ATC | [*****] | ||
[*****] |
CONTROL UNIT-VHF | [*****] | ||
[*****] |
STATIC INVERTER | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
Page 56/110 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
EXCHANGER-HEAT,DUAL | [*****] | ||
[*****] |
TRANSCEIVER-TCAS | [*****] | ||
[*****] |
PLAYER-CASSETTE | [*****] | ||
[*****] |
CONTROLLER-WINDSHIELD TEMPERATURE | [*****] | ||
[*****] |
FAN-GROUND COOLING | [*****] | ||
[*****] |
FAN-RECIRCULATION | [*****] | ||
[*****] |
TOTAL [*****] | [*****] |
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
AUTO PILOT CAPSTAN | [*****] | ||
[*****] |
AUTO PILOT SERVO-ACTUATOR | [*****] | ||
[*****] |
FLIGHT GUIDANCE CONTROL PANEL | [*****] | ||
[*****] |
VHF/COMM TRANSCEIVER | [*****] | ||
[*****] |
POWER TRIM BOX | [*****] | ||
[*****] |
CLOCK | [*****] | ||
[*****] |
DIGITAL FLIGHT DATA RECORDER | [*****] | ||
[*****] |
EFIS CONTROL PANEL LH SIDE | [*****] | ||
[*****] |
EFIS CONTROL PANEL RH SIDE | [*****] | ||
[*****] |
INDEX CONTROL PANEL | [*****] | ||
[*****] |
INTEGRATED AVIONICS DISPLAY | [*****] | ||
[*****] |
MPC-ED36 | [*****] | ||
[*****] |
MULTI-FUNCTION CONTROL PANEL | [*****] | ||
[*****] |
MULTIPURPOSE CONTROL & DISPLAY UNIT | [*****] | ||
[*****] |
AIR DATA COMPUTER | [*****] | ||
[*****] |
ATC TRANSPONDER | [*****] | ||
[*****] |
ATTITUDE HEADING REF UNIT | [*****] | ||
[*****] |
FLUX VALVE | [*****] | ||
[*****] |
INTEGRATED ELEC.STAND-BY EQUIP | [*****] | ||
[*****] |
INTERROGATOR-DME | [*****] | ||
[*****] |
NAVIGATOR PROCESSOR UNIT (GPS RECEIVER) | [*****] | ||
[*****] |
RADIO-ALTIMETER TRANSCEIVER | [*****] | ||
[*****] |
RECEIVER-VOR/ILS/MKR | [*****] | ||
[*****] |
T2CAS COMPUTER | [*****] | ||
[*****] |
WX RADAR CONTROL PANEL | [*****] | ||
[*****] |
CAC SWM | [*****] | ||
[*****] |
CORE AVIONICS CABINET INPUT OUPUT MODULE AUTO PILOT | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
Page 57/110 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
CORE AVIONICS CABINET INPUT OUPUT MODULE-DC | [*****] | ||
[*****] |
CORE AVIONICS CABINET INPUT OUTPUT MODULE-S | [*****] | ||
[*****] |
INTEGRATED CORE PROCESSING MODULE | [*****] | ||
[*****] |
PRINTER | [*****] | ||
[*****] |
ICP 110VM | [*****] | ||
[*****] |
ICP 111VM | [*****] | ||
[*****] |
ICP 111VM | [*****] | ||
[*****] |
ICP 112VM | [*****] | ||
[*****] |
ICP 114VM | [*****] | ||
[*****] |
ICP 131VM | [*****] | ||
[*****] |
ICP 131VM | [*****] | ||
[*****] |
ICP 132VM | [*****] | ||
[*****] |
ICP 400VM | [*****] | ||
[*****] |
ICP 401VM | [*****] | ||
[*****] |
ICP 402VM | [*****] | ||
[*****] |
ICP 404VM | [*****] | ||
[*****] |
ICP 6VM | [*****] | ||
[*****] |
ICP 811VM | [*****] | ||
[*****] |
CENTRAL MAIN INSTRUMENT | [*****] | ||
[*****] |
PANEL LIGHT | [*****] | ||
[*****] |
LIGHT MANAGEMENT UNIT | [*****] | ||
[*****] |
TCAS DIRECTIONAL ANTENNA | [*****] | ||
[*****] |
TOTAL [*****] | [*****] |
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
T2CAS Computer | [*****] | ||
[*****] |
T2CAS Computer | [*****] | ||
[*****] |
TOTAL [*****] | [*****] |
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
PROBE-PITOT | [*****] | ||
[*****] |
EJECTION DUCT | [*****] | ||
[*****] |
BUS POWER CONTROL UNIT | [*****] | ||
[*****] |
BATTERY-EMERGENCY | [*****] | ||
[*****] |
AFTER ROLLER BLIND | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
Page 58/110 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
OXYGEN CYLINDER ASSY | [*****] | ||
[*****] |
DIGITAL FLT DATA RECORDER | [*****] | ||
[*****] |
ATTITUDE HEADING REF UNIT | [*****] | ||
[*****] |
PCMCIA | [*****] | ||
[*****] |
POWER SUPPLY UNIT | [*****] | ||
[*****] |
FUSELAGE GROUND LIGHT | [*****] | ||
[*****] |
EMERGENCY POWER SUPPLY | [*****] | ||
[*****] |
INTERCOMPRESSOR BLEED VALVE | [*****] | ||
[*****] |
BATTERY-MAIN | [*****] | ||
[*****] |
MOTOR AND PUMP ASSEMBLY | [*****] | ||
[*****] |
FIRE EXTINGUISHER | [*****] | ||
[*****] |
TRIM INDICATOR | [*****] | ||
[*****] |
AISLE MARKING EMERGENCY | [*****] | ||
[*****] |
INTERTURBINE TEMP.INDICATOR | [*****] | ||
[*****] |
INTERTURBINE TEMP.INDICATOR | [*****] | ||
[*****] |
PROPELLER SPEED INDICATOR | [*****] | ||
[*****] |
VHF/COMM TRANSCEIVER | [*****] | ||
[*****] |
STANDBY ALTIMETER | [*****] | ||
[*****] |
AIR DATA COMPUTER | [*****] | ||
[*****] |
AIRSPEED INDICATOR | [*****] | ||
[*****] |
REFUEL CONTROL PANEL | [*****] | ||
[*****] |
ELECTRONIC ENGINE | |||
[*****] |
CONTROL | [*****] | ||
[*****] |
VHF/COMM CONTROL PANEL | [*****] | ||
[*****] |
T2CAS COMPUTER | [*****] | ||
[*****] |
FWD SIDE LH ISOLATOR | [*****] | ||
[*****] |
EFIS CONTROL PANEL RH | [*****] | ||
[*****] |
EFIS CONTROL PANEL LH | [*****] | ||
[*****] |
INDEX CONTROL PANEL | [*****] | ||
[*****] |
INTEGRATED CORE PROCESSING MOD | [*****] | ||
[*****] |
PROPELLER VALVE MODULE | [*****] | ||
[*****] |
REMOTE CONTROL AUDIO UNIT | [*****] | ||
[*****] |
REMOTE CONTROL AUDIO UNIT | [*****] | ||
[*****] |
LP CHECK VALVE | [*****] | ||
[*****] |
MPC | [*****] | ||
[*****] |
EMERGENCY LOCATOR BEACON | [*****] | ||
[*****] |
EMERGENCY POWER SUPPLY | [*****] | ||
[*****] |
PRESSURE REG & S/O VALVE | [*****] | ||
[*****] |
PRESSURE REG & S/O VALVE | [*****] | ||
[*****] |
HALL EFFECT CURRENT | [*****] | ||
[*****] |
TOTAL [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
Page 59/110 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
TRIM ACTUATOR | [*****] | ||
[*****] |
T.I.C. VALVE | [*****] | ||
[*****] |
AIR CYCLE UNIT | [*****] | ||
[*****] |
LP CHECK VALVE | [*****] | ||
[*****] |
DUAL DISTRIBUTOR VALVE | [*****] | ||
[*****] |
HALL EFFECT CURRENT | [*****] |
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
AUTO PILOT SERVO-ACTUATOR | [*****] | ||
[*****] |
EXCHANGER | [*****] | ||
[*****] |
CHECK VALVE | [*****] | ||
[*****] |
PRESSURE REG AND S/O VALVE | [*****] | ||
[*****] |
PRESSURE REG AND S/O VALVE | [*****] | ||
[*****] |
INTEGRATED CORE PROCESSING MOD | [*****] | ||
[*****] |
TOTAL [*****] | [*****] |
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
VALVE BLOCK-FLAP | [*****] | ||
[*****] |
DUCT-DISCHARGE DOWNSTREAM VALVE | [*****] | ||
[*****] |
DUCT-DISCHARGE DOWNSTREAM VALVE | [*****] | ||
[*****] |
VALVE-SELECTOR,SWIVEL | [*****] | ||
[*****] |
VALVE-SELECTOR,SWIVEL | [*****] | ||
[*****] |
JOINT | [*****] | ||
[*****] |
LIGHT-LANDING | [*****] | ||
[*****] |
ICP 112VM | [*****] | ||
[*****] |
ICP 114VM | [*****] | ||
[*****] |
TCAS DIRECTIONAL ANTENNA | [*****] | ||
[*****] |
TCAS DIRECTIONAL ANTENNA | [*****] | ||
[*****] |
SERVO VALVE | [*****] | ||
[*****] |
TOTAL [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
Page 60/110 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] |
PROBE-PITOT | [*****] |
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
Page 61/110 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 6 LRUs COVERED BY REPAIR AND STANDARD EXCHANGE SERVICES
The following Exhibit is composed of eight (8) pages, into which are listed [*****] part numbers.
1. | List A |
The following list of LRUs contains [*****] part numbers.
[*****] |
Description | |
[*****] |
WATER EXTRACTOR | |
[*****] |
AIR CYCLE UNIT | |
[*****] |
DIGITAL CONTROLLER | |
[*****] |
CONDITIONED AIR CHECK VALVE | |
[*****] |
REGULATOR-PRESSURE | |
[*****] |
PRESSURE REG AND S/O VALVE | |
[*****] |
BUTTERFLY MODULATING VALVE | |
[*****] |
CHECK VALVE | |
[*****] |
CHECK VALVE | |
[*****] |
PRESSURIZATION INDICATOR | |
[*****] |
DUAL TEMPERATURE INDICATOR | |
[*****] |
CONTROLLER-TEMP | |
[*****] |
OVERTEMP. SWITCH | |
[*****] |
VLV-U/FLOOR ISOL/VEN | |
[*****] |
CONDENSER | |
[*****] |
CONTROLLER-MANUAL | |
[*****] |
VLV-SHUTOFF TURBOFAN | |
[*****] |
TEMPERATURE CONTROL VALVE | |
[*****] |
RECIRCULATION FAN ASSY | |
[*****] |
GROUND COOLING FAN | |
[*****] |
E/E COOLING FAN | |
[*****] |
AMBIANT PRESSURE UNIT | |
[*****] |
UNDER FLOOR VALVE | |
[*****] |
GND OUTFLOW VALVE | |
[*****] |
ROD-DYNAMOMETRIC ELE | |
[*****] |
ROD-DYNAMOMTRC RUDDR | |
[*****] |
FORCE DETECTOR ROD | |
[*****] |
ROD-DYNAMOMETRIC ELE | |
[*****] |
AP.SERVO ACTUATOR | |
[*****] |
ADVISORY DISPLAY | |
[*****] |
AUTOPILOT COMPUTER | |
[*****] |
AUTOPILOT COMPUTER | |
[*****] |
AP/FD CONTROL PANEL | |
[*****] |
FLIGHT GUIDANCE CONTROL PANEL | |
[*****] |
FLIGHT GUIDANCE CONTROL PANEL | |
[*****] |
FLIGHT GUIDANCE CONTROL PANEL |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
Description | |
[*****] |
AUTO PILOT SERVO-ACTUATOR | |
[*****] |
CAPSTAN | |
[*****] |
DIGITAL PLAYER | |
[*****] |
MONITOR | |
[*****] |
COCKPIT VOICE RECORDER | |
[*****] |
VHF/COMM TRANSCEIVER | |
[*****] |
DUAL SYSTEM ADAPTER | |
[*****] |
HF/COMM TRANSCEIVER | |
[*****] |
AUTOMATIC ANTENNA COUPLER | |
[*****] |
HF/COMM CONTROL PANEL | |
[*****] |
AUTOMATIC ANTENNA COUPLER | |
[*****] |
HF/COMM TRANSCEIVER | |
[*****] |
VHF/COMM TRANSCEIVER | |
[*****] |
VHF/COMM TRANSCEIVER | |
[*****] |
VHF COMM TRANSCEIVER | |
[*****] |
VHF-4000-8,33 KHZ | |
[*****] |
VHF 4000 | |
[*****] |
MANAGEMNT UNIT-ACARS | |
[*****] |
VHF/COMM CONTROL PANEL | |
[*****] |
VHF/COMM CONTROL PANEL | |
[*****] |
ATTENDANT HANDSET | |
[*****] |
ATTENDANT HANDSET | |
[*****] |
ATTENDANT HANDSET | |
[*****] |
SELECTION PNL-SELCAL | |
[*****] |
REMOTE CONTROL AUDIO UNIT | |
[*****] |
REMOTE CONTROL AUDIO UNIT | |
[*****] |
REMOTE CONTROL AUDIO UNIT | |
[*****] |
PASSENGER ADDRESS AMPLIFIER | |
[*****] |
SELCAL DECODER | |
[*****] |
STATIC INVERTER | |
[*****] |
TRANSFORMER RECTIFIER UNIT | |
[*****] |
GENERATOR CONTROL UNIT | |
[*****] |
HALL EFFECT CURRENT | |
[*****] |
CURRENT TRANSFORMER | |
[*****] |
BATTERY CH/DISCH.AMMETER | |
[*****] |
GENERATOR CONTROL UNIT | |
[*****] |
ELEC.POWER MESURING ASSY | |
[*****] |
BUS POWER CONTROL UNIT | |
[*****] |
AC.CONTACTOR | |
[*****] |
TRANSFORMER RECTIFIER UNIT | |
[*****] |
DC CONTACTOR | |
[*****] |
EMERGENCY LOCATOR BEACON | |
[*****] |
TOILET-PSU | |
[*****] |
EMERGENCY LOCATOR BEACON |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
Description | |
[*****] |
LF.FIRE-SHUT-OFF CTL.PANEL | |
[*****] |
RH.FIRE-SHUT-OFF CTL.PANEL | |
[*****] |
FIRE DETECTION CONTROL UNIT | |
[*****] |
FAN SMOKE DETECTION | |
[*****] |
SMOKE DETECTOR | |
[*****] |
DETECTION BOX | |
[*****] |
CONTROL BOX | |
[*****] |
SMOKE DETECTOR | |
[*****] |
SMOKE DETECTOR | |
[*****] |
POSITION TRANSMITTER | |
[*****] |
RELEASABLE CENTRING UNIT | |
[*****] |
CABLE TENSION REGULATOR | |
[*****] |
FLAPS POSITION INDICATOR | |
[*****] |
FLAPS POSITION INDICATOR | |
[*****] |
TRIM INDICATOR | |
[*****] |
TRIM INDICATOR | |
[*****] |
SHAFT-FLEXIBLE | |
[*****] |
FLAP CONTROL SWITCH UNIT | |
[*****] |
ELECTROMECHANICAL ACTUATOR | |
[*****] |
STICK PUSHER | |
[*****] |
FLAP VALVE BLOCK | |
[*****] |
SPOILER VALVE BLOCK | |
[*****] |
ALPHA PROBE | |
[*****] |
POWER TRIM BOX | |
[*****] |
RUDDER DAMPER | |
[*****] |
RESTRICTOR UNIT | |
[*****] |
RESTRICTOR UNIT | |
[*****] |
RUDDER DAMPER | |
[*****] |
FLAP ACTUATOR | |
[*****] |
FLAP ACTUATOR | |
[*****] |
STICK SHAKER | |
[*****] |
AILERON GUST-LOCK ACTUATOR | |
[*****] |
SPOILER ACTUATOR | |
[*****] |
FIRE SHUT-OFF VALVE | |
[*****] |
CROSSFEED VALVE | |
[*****] |
MOTIVE FLOW VALVE | |
[*****] |
ACTUATOR-FUEL LP VLV | |
[*****] |
ACTUATOR-FUEL CROSSF | |
[*****] |
GRAVITY FILLER CAP | |
[*****] |
FUEL TANK TEMP.INDICATOR | |
[*****] |
FUEL CONTROL UNIT | |
[*****] |
REFUEL CONTROL PANEL | |
[*****] |
FUEL QUANTITY REPEATER | |
[*****] |
FUEL QUANTITY INDICATOR |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
Description | |
[*****] |
FUEL QUANTITY INDICATOR | |
[*****] |
FUEL PROBE(N1) | |
[*****] |
FUEL QUANTITY PRESELECTOR | |
[*****] |
FUEL QUANTITY PRESELECTOR | |
[*****] |
CLINOMETER-ROLL ATT | |
[*****] |
FUEL ELECTROPUMP | |
[*****] |
FUEL ELECTROPUMP | |
[*****] |
JET PUMP | |
[*****] |
ENGINE FEED JET PUMP | |
[*****] |
FUEL PUMP CANISTER | |
[*****] |
REFUEL/DEFUEL COUPLING | |
[*****] |
REFUELLING ASSEMBLY | |
[*****] |
REFUELLING ASSEMBLY | |
[*****] |
RESERVOIR | |
[*****] |
LINE ACCUMULATOR | |
[*****] |
PRESSURE MODULE | |
[*****] |
LOW LEVEL SWITCH | |
[*****] |
AC MOTOR DRIVEN PUMP | |
[*****] |
DC HYDRAULIC PUMP | |
[*****] |
TRIPLE INDIC | |
[*****] |
ICE DETECTOR | |
[*****] |
WIPER MOTOR CONVERTER | |
[*****] |
WIPER MOTOR CONVERTER | |
[*****] |
MAIN WINDSHIELD CONTROLLER | |
[*****] |
STBY DE ICING CTL UNIT | |
[*****] |
DUAL DISTRIBUTOR VALVE | |
[*****] |
REGULATOR/SHUTOFF VALVE | |
[*****] |
SHUT OFF VALVE | |
[*****] |
ANTI-ICING CONTROLLER | |
[*****] |
LEFT ELEVATOR HORN | |
[*****] |
RIGHT ELEVATOR HORN | |
[*****] |
RUDDER HORN | |
[*****] |
LEFT AILERON HORN | |
[*****] |
RIGHT AILERON HORN | |
[*****] |
LEFT AILERON HORN | |
[*****] |
RIGHT AILERON HORN | |
[*****] |
ATTENDANT PANEL | |
[*****] |
QUICK ACCESS RECORDER | |
[*****] |
APIU | |
[*****] |
DIGITAL FLT DATA RECORDER | |
[*****] |
DIGITAL FLT DATA RECORDER | |
[*****] |
LINEAR ACCELEROMETER | |
[*****] |
MPC-ED36 | |
[*****] |
ATTENDANT PANEL |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
Description | |
[*****] |
ATTENDANT PANEL | |
[*****] |
ROD-DYNAMOMETRIC,ROL | |
[*****] |
CREW ALERTING PANEL | |
[*****] |
ENTRY PANEL-FLT DATA | |
[*****] |
CLOCK | |
[*****] |
EFIS CONTROL PANEL RH SIDE | |
[*****] |
EFIS CONTROL PANEL RH SIDE | |
[*****] |
EFIS CONTROL PANEL LH SIDE | |
[*****] |
EFIS CONTROL PANEL LH SIDE | |
[*****] |
INDEX CONTROL PANEL | |
[*****] |
INDEX CONTROL PANEL | |
[*****] |
MULTI-FUNCTION CONTROL PANEL | |
[*****] |
MULTI-FUNCTION CONTROL PANEL | |
[*****] |
INTEGRATED AVIONICS DISPLAY | |
[*****] |
FDAU | |
[*****] |
FDAU | |
[*****] |
MPC | |
[*****] |
CLOCK | |
[*****] |
MULTIPURPOSE CONTROL & DISPLAY UNIT | |
[*****] |
MULTIFUNCTION COMPUTER | |
[*****] |
CLOCK | |
[*****] |
PARKING VALVE | |
[*****] |
BRAKING RESERVOIR | |
[*****] |
MASTER CYLINDER | |
[*****] |
LANDING GEAR CONTROL VALVE | |
[*****] |
PARKING ACCUMULATOR | |
[*****] |
HYDRAULIC DUMPER | |
[*****] |
NORMAL METERING VALVE | |
[*****] |
WHEEL SPEED TRANSD ASSY | |
[*****] |
PARKING VALVE | |
[*****] |
NORMAL METERING VALVE | |
[*****] |
MODULE-ANTISKIP | |
[*****] |
ANTISKID VALVE MANIFOLD | |
[*****] |
ANTISKID CONTROL UNIT | |
[*****] |
ANTISKID CONTROL UNIT | |
[*****] |
VLV-RELIEF LOW PRESS | |
[*****] |
RESTRICTOR VALVE | |
[*****] |
SOLENOID VALVE NLG | |
[*****] |
SWIVEL SELECTOR VALVE | |
[*****] |
DIFF CONTROL SELECT VALVE | |
[*****] |
UP LOCK BOX | |
[*****] |
LANDING GEAR SELECTOR | |
[*****] |
ANTICOLL.LTG POWER SPLY UNIT |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
Description | |
[*****] |
TRANSFORMER-115V/5V- | |
[*****] |
LIGHT-LOGO | |
[*****] |
WING-ENG SCAN LIGHT LH | |
[*****] |
WING-ENG SCAN LIGHT LH | |
[*****] |
WING-ENG SCAN LIGHT RH | |
[*****] |
WING-ENG SCAN LIGHT LH | |
[*****] |
LANDING LIGHT | |
[*****] |
ANTICOLL.LTG POWER SPLY UNIT | |
[*****] |
ANTICOLL. LIGHT | |
[*****] |
TOTAL AIR TEMP SENSOR | |
[*****] |
FLUX VALVE COMPENSATOR | |
[*****] |
FLUX VALVE | |
[*****] |
ATTITUDE HEADING REF UNIT | |
[*****] |
VSI/TCAS INDICATOR | |
[*****] |
ALTIMETER | |
[*****] |
VSI/TCAS INDICATOR | |
[*****] |
PROBE-PITOT | |
[*****] |
RADIOMAGNETIC INDICATOR | |
[*****] |
ADF.RECEIVER | |
[*****] |
VOR/ILS/MKR.RECEIVER | |
[*****] |
DME RECEIVER | |
[*****] |
ATC CONTROL PANEL | |
[*****] |
DME INDICATOR | |
[*****] |
ADAPTER | |
[*****] |
ATC TRANSPONDER | |
[*****] |
ATC TRANSPONDER | |
[*****] |
ATC TRANSPONDER | |
[*****] |
IND-AIRSPEED STDBY | |
[*****] |
STANDBY ALTIMETER | |
[*****] |
AIR DATA COMPUTER | |
[*****] |
INDICATOR-TAS/TEMP | |
[*****] |
AIRSPEED INDICATOR | |
[*****] |
ATTITUDE HEADING REF UNIT | |
[*****] |
EFIS SYMBOL GENERATOR | |
[*****] |
EFIS.CONTROL PANEL | |
[*****] |
CRS/HDG.REMOTE CONTROLLER | |
[*****] |
CRS/ALT.REMOTE CONTROLLER | |
[*****] |
WX.RADAR CONTROL PANEL | |
[*****] |
WX.RADAR CONTROL PANEL | |
[*****] |
WX.RADAR CONTROL PANEL | |
[*****] |
RADAR RECEIVER TRANSCEIVER | |
[*****] |
ATC TRANSPONDER | |
[*****] |
MULTI. CONTROL & DISPLAY UNIT | |
[*****] |
TRANSCEIVER RECEIVER TCAS |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
Description | |
[*****] |
VOR/ILS/MKR.RECEIVER | |
[*****] |
DME TRANSCEIVER | |
[*****] |
VOR/ILS/MKR.RECEIVER | |
[*****] |
ATC CONTROL PANEL | |
[*****] |
VOR/ILS/DME.CONTROL PANEL | |
[*****] |
ADF.CONTROL PANEL | |
[*****] |
TCAS CONTROL PANEL | |
[*****] |
NAVIGATOR PROCESSOR UNIT | |
[*****] |
NAVIGATOR PROCESSOR UNIT | |
[*****] |
T2CAS COMPUTER | |
[*****] |
RADIO-ALTIMETER TRANSCEIVER | |
[*****] |
RADIO-ALTIMETER TRANSCEIVER | |
[*****] |
EGPWS MK8 COMPUTER | |
[*****] |
GPWS MK2 COMPUTER | |
[*****] |
INTEGRATED ELEC.STAND-BY EQUIP | |
[*****] |
AIR DATA COMPUTER | |
[*****] |
GPS RECEIVER | |
[*****] |
GPS RECEIVER | |
[*****] |
STANDBY HORIZON | |
[*****] |
RADAR RECEIVER TRANSCEIVER | |
[*****] |
OXYGEN SOLENOID VALVE | |
[*****] |
OXYGEN REGULATOR MASK ASSY | |
[*****] |
OXYGEN REGULATOR MASK ASSY | |
[*****] |
OXYGEN PRESS.XMTR/REG | |
[*****] |
DUCT DISCHARGE DOWNSTREAM VALV | |
[*****] |
CHECK VALVE | |
[*****] |
PRESSURE REG & S/O VALVE | |
[*****] |
BLEED AIR SHUTOFF VALVE | |
[*****] |
ISOLATION VALVE | |
[*****] |
INTEGRATED CORE PROCESSING MOD | |
[*****] |
IOM S | |
[*****] |
CAC SWM | |
[*****] |
IOM - DATA CONCENTRATOR | |
[*****] |
CORE AVIONICS CABINET RACK | |
[*****] |
IOM - AUTO PILOT | |
[*****] |
CARGO DOOR ACTUATOR | |
[*****] |
COCKPIT DOOR CONTROL UNIT | |
[*****] |
HYDRAULIC PRESSURE SWITCH | |
[*****] |
MOTOR AND PUMP ASSEMBLY | |
[*****] |
PROPELLER COND.PUSH-PULL | |
[*****] |
PROPELLER SPEED INDICATOR | |
[*****] |
OVERSPEED GOVERNOR | |
[*****] |
OIL PUMP | |
[*****] |
ELECTRONIC PROPELLER CONTROL |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
[*****] |
Description | |
[*****] |
PROPELLER VALVE MODULE | |
[*****] |
ELECTROVALVE | |
[*****] |
PROPELLER BLADE | |
[*****] |
EJECTION DUCT | |
[*****] |
EJECTION DUCT | |
[*****] |
IND-FUEL TEMP | |
[*****] |
FUEL FLOW INDICATOR | |
[*****] |
FUEL FLOW TRANSMITTER | |
[*****] |
ENGINE POWER PUSH-PULL | |
[*****] |
HP SPEED INDICATOR | |
[*****] |
TORQUE INDICATOR | |
[*****] |
INTERTURBINE TEMP.INDICATOR | |
[*****] |
PROPELLER TORQUE INDICATOR | |
[*****] |
OIL COOLER FLAP ACTUATOR | |
[*****] |
THERMOSTATIC VALVE | |
[*****] |
OIL COOLER | |
[*****] |
OIL TEMP/PRESS.INDICATOR | |
[*****] |
OIL PRESSURE SENSOR | |
[*****] |
CONTROL ENGINE ELECTRONIC | |
[*****] |
EXCITER-IGNITION | |
[*****] |
EJECTOR-FUEL WASTE | |
[*****] |
VALVE ASSY-INTERCOMPRESSOR BLEED | |
[*****] |
VALVE ASSY-INTERCOMPRESSOR BLEED | |
[*****] |
AUTOFEATHER CONTROL | |
[*****] |
FUEL CONTROL-MECHANICAL | |
[*****] |
COOLER-OIL, FUEL COOLED | |
[*****] |
FLOW DIVIDER AND DUMP VALVE | |
[*****] |
VALVE ASSY-SERVO | |
[*****] |
PUMP-FUEL | |
[*****] |
BRAKE HYDROMECHANICAL ASSY | |
[*****] |
EFIS.CATHODE RAY TUBE |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
2. | List B |
The following list of LRUs contains [*****] part numbers.
[*****] |
Description | |
[*****] |
T.I.C. VALVE | |
[*****] |
EXCHANGER | |
[*****] |
AUDIO CONTROL PANEL | |
[*****] |
BUS POWER CONTROL UNIT | |
[*****] |
AC GENERATOR | |
[*****] |
DC STARTER GENERATOR | |
[*****] |
TRIM ACTUATOR | |
[*****] |
DUAL DISTRIBUTOR VALVE | |
[*****] |
ANTICOLL. LIGHT | |
[*****] |
STROBE LIGHTS | |
[*****] |
POWER SUPPLY UNIT | |
[*****] |
EMERGENCY POWER SUPPLY | |
[*****] |
HEATER-OIL TO FUEL |
For sake of clarity, the above lists may be amended from time to time by way of Notice sent to the Company by the Repairer.
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
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Execution version
EXHIBIT 7 REPAIRER STANDARD WORK ORDER FORMS
7-1 Standard exchange order:
AZULATR | Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 |
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Execution version
7-2 Repair order:
Agreement ref.: code client-GMA-01
| ||
SHIPPING DATE: | ||
PAGE: 1 / 1 |
REPAIR ORDER
(THIS FORM MUST BE ENCLOSED INSIDE THE BOX WITH THE UNIT)
FROM:
|
TO (Shipping address):
| |||
COMPANY NAME Sender:
Tel: Fax: |
ATR CUSTOMER SUPPORT c/o DHL Solutions ZA du Pont Yblon 95 500 Bonneuil en France FRANCE | |||
REPAIR ORDER NUMBER : |
DATA RELATED TO REMOVED UNIT | ||||||||||
A/C DATA |
TYPE: | MSN: | FH: | |||||||
REGISTRATION: | CY: | |||||||||
UNIT DATA |
PART NUMBER: | TSN: | ||||||||
AMENDMENT: | CSN: | |||||||||
SERIAL NBR: | TSO: | |||||||||
DESIGNATION:PAGE: | CSO: |
WARRANTY COVERAGE | ||||||
INSTALLATION DATE: |
VENDOR (O.E.M.): | YES | NO | |||
REMOVAL DATE: |
A.C.S. REPAIR: | YES | NO |
REASON FOR REMOVAL |
||
REQUESTED WORK | ||||
REPAIR OVERHAUL BENCH TEST CALIBRATION |
MODIFICATION | (Please indicate the requested SB and final PN) | ||
OTHER WORKS TO INCORPORATE / REMARKS | ||||
ATRGlobal Maintenance Agreement |
ATR form ref. 7-2 |
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Execution version
7-3 Standard exchange Core Unit returned to ATR Pool:
Agreement ref.: code client-GMA-01
| ||
SHIPPING DATE: | ||
PAGE: 1 / 1 |
STANDARD EXCHANGE CORE UNIT RETURNED TO ATR POOL
(THIS FORM MUST BE ENCLOSED INSIDE THE BOX WITH THE UNIT)
FROM:
|
TO (Shipping address):
| |||
COMPANY NAME
Sender: Tel: Fax: |
ATR CUSTOMER SUPPORT c/o DHL Solutions ZA du Pont Yblon 95 500 Bonneuil en France FRANCE | |||
EXCHANGE ORDER REFERENCE: |
||
UNIT DELIVERED BY ACS: |
||
PART NUMBER: |
SERIAL NBR: |
DATA RELATED TO REMOVED UNIT | ||||||||||
A/C DATA |
TYPE: | MSN: | FH: | |||||||
REGISTRATION: | CY: | |||||||||
CORE UNIT DATA |
PART NUMBER: | TSN: | ||||||||
AMENDMENT: | CSN: | |||||||||
SERIAL NBR: | TSO: | |||||||||
DESIGNATION: | CSO: |
WARRANTY COVERAGE | ||||||
INSTALLATION DATE: |
VENDOR (O.E.M.): | YES | NO | |||
REMOVAL DATE: |
A.C.S. REPAIR: | YES | NO |
REASON FOR REMOVAL |
||||||
REMARKS |
||
ATR - Global Maintenance Agreement |
ATR form ref. 7-3 |
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Execution version
Agreement ref.: code client-GMA-01
| ||
DATE: |
PAGE: 1 / 1 |
LOAN ORDER
FOR MAIN ELEMENT AVAILABILTY UNDER GMA
FROM:
|
TO:
| |||
COMPANY NAME:
Sender:
Tel: Fax: |
A.C.S.-ATR CUSTOMER SUPPORT
Attn:
Tel for routine orders: (33) 5 62 21 60 80 Tel for AOG orders: (33) 5 62 21 62 00 Fax for routine orders: (33) 5 62 21 62 80 Fax for AOG orders: (33) 5 62 21 62 62 | |||
REQUEST FOR A/C TYPE: | RGSTN: | MSN: | ||||
LOAN ORDER NUMBER |
DELIVERY LEAD TIME: |
A.O.G. CRITICAL | ||||
REQUESTED PART NUMBER
|
DESCRIPTION | REASON | ||||
DATA RELATED TO PART NUMBER REMOVED FROM AIRCRAFT
| ||||||
PART NUMBER |
S / N | Removal date |
COMMENTS
| |||
SHIPPING ADDRESS IF SPECIFIC (Different from standard shipping address) |
REMARKS |
||||||
ATR - Global Maintenance Agreement |
ATR form ref. 7-4 |
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 8 LEASE OF THE STOCK
1. Lease of the Stock
The Repairer agrees to lease the Stock to the Company and the Company agree to take the Stock on lease, subject to the terms and conditions of this Agreement.
2. Content and value of the Stock
2.1 | Content: the Stock listed in Exhibit 5 (Stock) contains serviceable Items, either brand new or used, depending on availability of such Items by the Repairer at the time of their respective Delivery. |
2.2 | Value: the Stock total value for brand new Items, under economic conditions prevailing in two thousand fourteen (2014), shall be: |
For the initial AZUL stock delivered under economic conditions 2010, [*****]
For the stock delivered under the AZUL amendment 3 under economic conditions 2011, [*****]
For the stock delivered under the AZUL amendment 4 under economic conditions 2011, [*****]
For the first batch, stock delivered under the GMA TRIP under economic conditions 2011 [*****]
For the second batch limited to the parts not recommended by the repairer, stock delivered under the GMA TRIP under economic conditions 2011 [*****]
For the sake of clarity, parts of the Stock contained into the second batch that are recommended by Repairer, are provided [*****] delivered under the GMA TRIP under economic conditions 2011 [*****]
For the batch related to the Amendment 5, stock delivered under economic conditions 2013 [*****]
For the batch related to the Amendment 6, stock delivered under economic conditions 2014 [*****]
For the batch related to the Amendment 7, stock delivered under economic conditions 2014 [*****]
For the batch related to the 2014 OSS replenishment, stock delivered under economic conditions 2014 [*****]
For the batch related to the Pitot exchange, stock delivered under economic conditions 2014 [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
For the sake of clarity,
The total Stock value of Exhibit 5 list shall be:
[*****]
And the lease fee payable in Exhibit 14 (Price conditions)shall be based on the value of [*****] corresponding to parts of the Stock contained into the TRIP second batch that are recommended by Repairer, i.e. [*****]
In the event the Repairer delivers used Items to the Company, the value of each such used Item shall be quoted at [*****] of the brand new value indicated in Exhibit 5 (Stock) and the total value of the Stock shall be adjusted accordingly by way of Notice sent by the Repairer to the Company.
2.3 | Modification of the Stock: on the first anniversary date of the Start Date, the Parties may review the content of the Stock and shall, in case of a variation in the contents of the Stock, amend the Agreement accordingly by way of Notice sent by the Repairer to the Company. Following such amendment, the Company shall return to the Repairer any Item of the Stock, or request the Repairer to replace any Item within the Stock subject to the following conditions: |
a) | the Item returned by the Company (i) has never been used by the Company since the Start Date, (ii) is in serviceable condition, (iii) is delivered in its original Packaging and with all appropriate airworthiness documents; and, |
b) | the Item shall be returned as per Clause 6.2 of this Agreement; and, |
c) | if an Item is returned to the Repairer, the value of the Stock shall be modified by deduction of the initial value of the relevant Item applicable at the time of its Delivery; and, |
d) | if an Item is added to the Stock, the value of the Stock shall be increased according to the ATR spare parts catalogue price for the added Item at the economic conditions corresponding to the time when the Stock is modified. |
The Company shall be responsible for and pay any costs incurred by and/or in connection with the return to the Repairer and/or replacement of such Items of the Stock, including transportation costs, customs duties, formalities and commissions, re-certification fees if documents are missing or damages are found or the conditions of this Clause 2.3 are otherwise not complied with by the Company.
2.4 | Inventory of the Stock: the Repairer or any representative it designates shall have the right to inspect the Stock and to audit any records relating thereto at any reasonable time upon giving prior Notice to the Company, which shall provide full access to such Stock to enable the Repairer to conduct periodic inventory inspections and/or any audit of the Stock. |
Should any Item of the Stock be missing, partially or totally damaged, or not have its appropriate airworthiness documentation at the time the Repairer or its representative carries out its inspection and/or audit, and if the Company cannot justify such Item as being under repair, the Company shall have [*****] to remedy the situation to the satisfaction of the Repairer, failing which, the Repairer shall invoice the Company the price for any such lost or damaged Item at the ATR spare parts catalogue price applicable on the date of such invoice for a new part initially delivered by the Repairer. In the event the Repairer initially delivered used Items to the Company, each such used lost Item shall be invoiced at [*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] of the brand new value at the ATR spare parts catalogue price applicable on the date of such invoice.
3. Stock Delivery
3.1 | Provided the Company has met each of the conditions precedent as per Clause 17 (Conditions precedent) of the Agreement, the Stock shall be delivered to the Company by the Repairer with the relevant airworthiness documents (certificate of conformity, ANAC SEGVOO 003 or EASA Form 1 or FAA Form 8130-3), [*****] to the Repairer stores located at the address set forth in Clause 6.1 of this Agreement, or such other location as the Repairer may from time to time notify to the Company . |
3.2 | The Repairer shall use its reasonable endeavours to deliver [*****] in quantity of the Stock within [*****] as from the Start Date. |
3.3 | As from the Delivery of the Stock, the Company is appointed as the custodian of the Stock and, all risks relating to or arising in connection with the Stock shall be transferred to, vested in and borne by the Company, which shall promptly notify the Repairer of any loss or damage to the Stock. |
3.4 | Within [*****] as from the date of Delivery of any Item of the Stock, the Company shall be responsible for obtaining and shall provide the Repairer with evidence in respect of (i) custom clearance, including payment fees, customs duties, and (ii) customs declarations, with respect to the relevant Stock Item. |
4. Storage Location of the Stock
(i) | The Storage Location shall be: |
Rodovia Santos Dumont, Km 66, Jardim Itatinga, Campinas São Paulo, Brazil CEP 13052-970.
And
Av Portugal, 5139, Itapoa Belo Horizonte, Minas Genais, Brazil
or any other address notified from time to time by the Company to the Repairer, or by default the address of the Company as indicated in page four (4) of this Agreement.
(ii) | The Stock shall be kept with its corresponding documentation in secured warehouse facilities at the Storage Location, which shall be separated from any area used to store any other equipment, and each Item shall be clearly identified as belonging to the Repairer and/or the Stock owner with the inscription ATR PROPERTY. |
(iii) | The Company shall notify to the Repairer the name and address of the owner or landlord of the Storage Location, if relevant, and each time such owner or landlord changes; the Company shall notify the said new owner or landlord, if relevant, of the Repairers property of the Stock and copy the Repairer of such notification. |
(iv) | The Company shall be liable for maintaining the Stock by applying the best methods for storage and maintenance as required by applicable EASA or |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ANAC regulations at its own costs, particularly for parts subject to limited shelf life or cure date.
5. | Use and repair of the Stock |
(i) | Each Item listed in Exhibit 3 (Main Elements covered under this Agreement) and Exhibit 6 (LRUs covered by repair and standard exchange Services) withdrawn from the Stock and used by the Company shall be exclusively repaired by the Repairer. |
(ii) | The Company shall be entitled to withdraw and use Items from the Stock in accordance with its operational needs, to remedy to any corresponding unserviceable Item fitted on the Aircraft covered under this Agreement (Exhibit 1 List of ATR Aircraft covered under this Agreement). |
(iii) | In such case, the Company shall return to the Repairer such unserviceable Item removed from the Aircraft with a Work Order for repair in the form set out in Exhibit 7-2 within [*****] from the withdrawal of the corresponding Item from the Stock. |
The Repairer shall then repair, as relevant, such unserviceable Item in accordance with the provisions of Exhibits 10 and/or 11 and re-deliver to the Company a serviceable Item with the relevant associated airworthiness documentation (i.e. a certificate of conformity, ANAC SEGVOO 003 and EASA Form 1 or FAA Form 8130-3,and when applicable the log book duly filled with any technical information).
The Company shall then place such serviceable Item into the Stock.
(iv) | In the event that the unserviceable Item removed from the Aircraft is declared BER or TNR (copy of the Repair Shop report will be given to the Company ), and is not covered by Services as defined in Exhibit 10 and/or Exhibit 11, the Repairer will invoice such unserviceable Item to the Company , except if the Company replaces such unserviceable Item with an equivalent serviceable Item which shall be placed into the Stock. |
(v) | Should the Company place a standard exchange Work Order, as per Exhibit 9 to replace any Item withdrawn from the Stock to replace an equivalent unserviceable Item removed from any Aircraft, then after repair and/or overhaul of such unserviceable Item, the Repairer will place such repaired and/or overhauled Item into the Pool and will not deliver it to the Company . |
(vi) | [*****]. |
In the event the Company purchases any Item of the Stock, the Parties agrees to modify accordingly the price indicated in Clause 1.1 of the Exhibit 14 (Price conditions), to take into account monthly lease rental only for the remaining Items of the Stock.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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6. | Return of the Stock |
6.1 | Within [*****] as from the End Date, the Company shall notify the Repairer of its decision to either: |
(a) | [*****] and/or, |
(b) | return the Stock to the Repairer as per Clause 6.2 of the Agreement in accordance with the following terms and conditions; such return shall have to be performed within [*****] following such Notice. |
If the Company fails to notify the Repairer as provided here above, the Repairer shall either (i) invoice as per (a) here above and/or (ii) direct the Company to return the Stock within [*****] following the term of the aforesaid [*****] period and/or (iii) repossess the Stock, at its discretion.
6.2 | If the Company fails to return the Stock as provided here above, the Company shall be charged interest at a rate equal to [*****] of the value of the non-returned Items, per Day as from the end of the aforesaid [*****] period, until the non-returned Items are duly received or repossessed by the Repairer. |
The Repairer shall be entitled to set off such late return interests with the Security Deposit pursuant to Clause 13 (Security Deposit).
6.3 | In the event any Item of the Stock is not returned to or repossessed by the Repairer within [*****] period as from the End Date, the Repairer may consider, at its discretion, such Item as lost and shall then invoice such Item to the Company at the ATR spare parts catalogue price in force at the time of such invoice. |
The Repairer shall be entitled, at its sole discretion, to set off the corresponding amount(s) with the Security Deposit as specified in Clause 13 (Security Deposit).
6.4 | In the event that (i) any Item is returned to the Repairer without the appropriate airworthiness documentation, or (ii) whenever the Items are returned without the original documents supplied by the Repairer, or (iii) if the Repairer has to test, to replace or to repair such returned Item(s) due to damage or deterioration as a result of incorrect storage, inappropriate Packaging and/or transport, or (iv) for any other reason whatsoever, the Company shall bear any associated re-certification, repair, overhaul, and/or replacement costs for such Items at the ATR spare parts catalogue prices applicable on the date of return of such Item to the Repairer. |
6.5 | Conditions for the return of the Main Elements: when returned or repossessed, if the TSO of the Main Element is different from the TSO at the time of its Delivery, the Repairer shall invoice to the Company the Lost Potential as per the conditions of this Agreement. |
In case the maintenance of the Main Elements is not covered by this Agreement, the Company shall return any Main Element with the same TSO as the one at the time of its Delivery. If such TSO is higher, the Repairer shall invoice to the Company the works necessary to restore such TSO based on Time and Material conditions.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7. | Payment and transfer of the property title |
7.1 | Save as otherwise set out in this Agreement, the purchase price for any Item of the Stock shall be paid in accordance with the provisions of Clause 12 (Invoicing and payment terms). |
7.2 | Notwithstanding the provisions of Clause 5 above, title to the Stock shall remain with Stock owner at all times until the Stock has been purchased by the Company as per Clause 6 above and provided that any amount of the corresponding invoice has been fully received by the Repairer in accordance with Clause 12 (Invoicing and payment terms). |
The Company specifically agrees that it shall not acquire any interest, equity or share of the Stock, or pledge or create any lien of any sort whatsoever prior to the transfer of title to the Stock to it in accordance with this Agreement and shall fully indemnify the Stock Owner and/or the Repairer with respect to any consequence of a non-compliance with its obligations under this Clause 7.2.
7.3 | The Company may not, under any circumstances, perform or permit any action to be taken that may be detrimental to the Repairers and/or Stock owners property title to the Stock, including: |
i) | The Company must not transfer, sell, charge, pawn, mortgage, negotiate, dispose of, or intend to negotiate or dispose of the Stock; and, |
ii) | The Company shall take the necessary measures in order to prevent the Stock from being seized or taken away, or to check the Stock in the event of a seizure by distress or any other similar legal process. However, if the Stock is seized or taken away, the Company must immediately notify the Repairer and indemnify the Repairer and/or the Stock owner for any Loss incurred by the Repairer and/or the Stock owner as a result of the above-mentioned events, and shall mitigate any such Loss by using its reasonable endeavours to re-possess the Stock or to re-acquire the Stock. |
7.4 | Case of use of the Stock as per Clause 5 of the Exhibit 8 (Lease of the Stock): the title to the Item withdrawn from the Stock shall pass to the Company upon installation of such Item on the Aircraft, subject to (i) full and complete payment of any and all sums due by the Company in connection with this Agreement and (ii) the completion of all of its obligations under Clause 5 of the Exhibit 8 (Lease of the Stock). |
The title to the Item removed from the Aircraft and sent to the Repairer for repair as per Clause 5 hereof shall pass to the Repairer and/or the Stock owner, as relevant, upon such removal.
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EXHIBIT 9 SPARE PARTS STANDARD EXCHANGE SERVICE
The Company shall granted access to the Pool on a standard exchange basis where the Company may order any LRU listed in Exhibit 6 and provide the Repairer in return with an equivalent (same part number or same standard interchangeable) unserviceable LRU removed from the Aircraft. This right of access to the Pool is not exclusive to the Company.
1. | Pool content |
The Pool is a set of serviceable LRUs listed in Exhibit 6 (LRUs covered by repair and standard exchange Services) available upon the Start Date, provided the Company has complied with its obligations pursuant to Clause 17 (Conditions precedent).
In the event of any Aircraft technical modification and upon the Company s written request, the Repairer may update the list set forth in Exhibit 6 (LRUs covered by repair and standard exchange Services), in which case, the price set out in Clause 1.2 of the Exhibit 14 (Price conditions) shall be adjusted accordingly.
2. | Access to the Pool |
To access the Pool and take Delivery of the requested LRU, the Company must place a written standard exchange Work Order (by filling the form ref 7-1 in Exhibit 7) with the Repairer.
3. | Repairers obligations |
3.1 | Pool management |
The Repairer shall be responsible for managing and maintaining the Pool at his own expense and in compliance with the relevant OEM recommendations.
Any LRU from the Pool delivered to the Company by the Repairer or any Repair Shop shall comply with the applicable Aircraft technical specifications.
3.2 | Dispatching the Items |
(i) | Any LRU from the Pool shall be delivered to the Company pursuant to Clause 6.1 of the Agreement within [*****] for routine orders, within [*****] for critical orders or within [*****] for AOG orders (limited to classified no-go and go if LRUs according to MMEL) as the case may be, starting from the Day of receipt by the Repairer of a standard exchange Work Order. |
(ii) | The dispatch lead times set forth in Clause 3.2 (i) above remain subject to: |
(a) | reception by the Repairer of written standard exchange Work Order 7.1 duly filled in by the Company; and, |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(b) | the availability in the Company s facilities of a stock of critical Items at least at the level of Repairers recommendations for the Aircraft fleet; and, |
(c) | the number of AOG standard exchange Work Orders being less than [*****] of the total number of standard exchange Work Orders placed by the Company over the last [*****]; and, |
(d) | The Company not being in breach of any of its obligations under this Agreement, including Clause 4.1 (i) of this Exhibit 9. |
(iii) | Provided the conditions set out in Clause 3.2 (ii) of this Exhibit 9 are met and the Company placed an A.O.G. standard exchange Work Order with the Provider, should the Company be obligated, after Providers approval, to lease similar LRU from a third Party servicer due to the unavailability of the requested LRU in the Pool, then the Provider will reimburse to the Company, for [*****] until the date of delivery of the requested unit by the Provider to the Company. The Provider shall not under any circumstances have any liability whatsoever (including liability of any consequential loss or damage) in respect of any late delivery of any part other than the liability set forth in this Clause 3.2(iii) . (iv) Any LRU of the Pool will be provided at its latest standard or fully interchangeable standard with the relevant certificate of conformity and, ANAC SEGVOO 003 and EASA form 1/FAA form 8130-3 dual release. |
(v) | LRUs delivered from the Pool are covered by the provisions of Clause 9 (Warranties). |
(vi) | Any LRU of the Pool subject to TBO event shall be delivered to the Company with no less than [*****] of life remaining to the next scheduled overhaul. |
4. | Core Unit return |
4.1 | Return lead time |
(i) | The Company shall return to the Repairers facilities indicated in Clause 6 (Deliveries) any Core Unit with the Work Order form ref 7-3 duly filled-in, as standard exchange counterparts, within a maximum [*****] as from the Delivery Date of the LRU from the Pool for any Items from the list A of the Exhibit 6 (LRUs covered by repair and standard exchange services) and within a maximum of [*****] as from the Delivery Date of the LRU from the Pool for any Items from the list B of the Exhibit 6 (LRUs covered by repair and standard exchange services). |
For sake of clarity, in the event a Core Unit is not returned by the Company to the right Delivery Location as specified in the Clause 6 (Deliveries), the Repairer shall be entitled to charge the Company transportation costs, associated taxes and Customs duties due to the re-exportation of such Core Unit to the right Delivery Location.
(ii) | Prior to dispatching any Core Unit, the Company will also send by fax or by email all the data related to the dispatch (including the date of dispatch and the carriers name). |
(iii) | Notwithstanding the above provision in sub-clause 4.1 (i), in the event a Core Unit is not received by the Repairer within [*****] after Delivery date of the LRU for by the Repairer to the Company for any Items from the list A of the Exhibit 6 (LRUs covered by repair and standard |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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exchange services) and within a maximum [*****] as from the Delivery Date of the LRU from the Pool for any Items from the list B of the Exhibit 6 (LRUs covered by repair and standard exchange services), the Repairer shall be entitled to charge the Company , as the case may be, late fee equivalent to [*****] of the value of the part per Day starting the [*****] up to maximum the [*****] for any Items from the list A of the Exhibit 6 (LRUs covered by repair and standard exchange services) and starting the [*****] up to maximum the [*****] for any Items from the list B of the Exhibit 6 (LRUs covered by repair and standard exchange services) after the Companys standard exchange Work Order date, as the case may be. In the event the Core Unit is not returned by the [*****] for any Items from the list A of the Exhibit 6 (LRUs covered by repair and standard exchange services) or by the [*****] for any Items from the list B of the Exhibit 6 (LRUs covered by repair and standard exchange services) after the Companys standard exchange Work Order date, as the case may be, the Repairer will declare the Core Unit as lost in exchange as lost and shall be entitled to invoice to the Company , as the case may be, the amount corresponding to the value of the serviceable LRU primarily delivered by the Repairer according to spare parts catalogue price in force on the date of its Delivery. Title to such serviceable LRU shall pass to the Company, as the case may be, upon full payment of the Repairers invoice. The Repairer shall be entitled to withdraw without delay the related amount from the Security Deposit as per Clause 13 (Security Deposit).
(iv) | In case of accumulated not returned Core Units pursuant to sub-clause 4.1 (iii) above, the Repairer shall be entitled, subject to a [*****] prior Notice, to suspend the Companys Pool access. |
4.2 | Any Core Unit shall be repaired in accordance with Exhibit 10 (LRUs repair Service). |
5. | Specific services not covered by standard exchange Service |
The following services and their related costs (labor and parts) are not eligible to the standard exchange Service, and shall be managed on Time and Material conditions:
(i) | services performed for LRU(s) fitted on Aircraft to comply with Aircraft redelivery conditions or delivery conditions of a third party. For sake of clarity, Aircraft redelivery conditions or delivery conditions of a third party will have to be declared by the Company to the Repairer in anticipation [*****] before the stop of the Aircraft; |
(ii) | services performed for any part of the Companys own inventory if any, to be replaced, or maintained, re-certified, tested, checked, for inventory management and/or maintenance reasons (shelf life, cure dates ). |
6. | Transfer of title and risks |
6.1 | Title to the Items featured in the Pool, or in the Stock in the event of Clause 5 (v) of the Exhibit 8 (Lease of the Stock), or the Advanced Pool Stock of Clause 7 of the Exhibit 15 (Advanced Pool Service), remains at all times with the Repairer until: |
(a) | receipt by the Repairer of the corresponding Core Unit in compliance with Clause 4.1 of this Exhibit 9 and of a confirmation from the Repair Shop that such Core Unit is repairable; and, |
(b) | full and complete discharge of any and all sums due by the Company under or in connection with this Agreement. |
Title to the corresponding Core Unit shall pass to the Repairer and/or the Stock owner free from any lien, security or other encumbrance upon removal of such Core Unit from the Aircraft.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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For the sake of clarity, in the event of Clause 5 (v) of the Exhibit 8 (Lease of the Stock) and Clause 7 of the Exhibit 15 (Advanced Pool Service), the Repairer and/or the Stock Owner shall remain the owner of the serviceable LRU sent from the Pool to the Stock and to the Advanced Pool Stock, as replacement.
6.2 | Notwithstanding the above, in the event the Core Unit is invoiced to the Company as per Clause 4.2 above, the transfer of title to the serviceable LRU primarily delivered from the Pool shall take place upon receipt by the Repairer of the full payment for the invoice relating to such serviceable LRU. |
6.3 | The Company hereby represents and warrants that (i) it is the lawful owner of the Core Unit and/or (ii) it is duly entitled to transfer the title to such Core Unit in accordance with Clause 6.1 above. |
6.4 | In any event, all risks whatsoever and howsoever relating to or arising in connection with any serviceable LRU of the Pool shall be transferred to, vested in and borne by the Company , as from Delivery thereof pursuant to Clause 6 (Deliveries). |
7. | THIS EXHIBIT IS PART OF THE AGREEMENT AND ALL APPLICABLE PROVISIONS THEREOF ARE APPLICABLE HERETO. WITHOUT LIMITING THE FOREGOING, ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT AND TO THE DISCLAIMERS AND LIMITATIONS ON WARRANTIES AND DAMAGES, INCLUDING CONSEQUENTIAL DAMAGES, SET FORTH THEREIN. |
8. | FURTHER ASSURANCES |
The Repairer retains title to any serviceable LRU until payment therefor as provided above. As a precautionary measure however, the Company agrees that the Repairer shall have all rights and remedies afforded to a secured party upon the default of a debtor as provided in the UCC and grants a security interest to the Repairer in all of the Companys right, title and interest in each serviceable LRU and the proceeds thereof and all general (including payment) intangibles related thereto or arising therefrom to secure the prompt and punctual payment and performance when due of all obligations of the Company under this Agreement, including this Exhibit.
The Company shall do all acts and things necessary or advisable, including execute and deliver all documents, to ensure that the Repairers right, title and interest in and to the serviceable LRUs is perfected in all applicable jurisdictions and otherwise protected against the current or future claims of any third-party, including the Companys creditors, mortgagees, lessors, financing parties, trade creditors, any owner of an aircraft and other Persons. Such acts and things shall include obtaining such consents and approvals from, and execution, delivery, registration, recordation and filing of such UCC financing statements (including continuation statements and amendments), FAA mortgages and other documents with, such registries, governmental authorities and third parties as the Repairer may reasonably request.
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EXHIBIT 10 LRUs REPAIR SERVICE
1. | Definition of repair |
Any unserviceable LRU, not declared BER or TNR, shall be repaired or overhauled by the Repairer in compliance with the relevant CMM and according to ANAC or EASA/FAA part 145 regulations.
If the Company receives from the Repairer a LRU repaired or overhauled under ANAC regulation only with associated ANAC SEGVOO 003 release, the Company may have the right in case of Aircraft redelivery for replacement of such part by another one with relevant certificate of conformity EASA form 1/FAA form 8130-3 dual release. The Repairer shall make its best efforts to provide to the Company the Services in compliance with EASA and FAA for all LRU repaired or overhauled by the local repair shops by end of December of 2015;
[*****].
If the Repairer receives from the Company an excessive number of unserviceable LRUs compared to the MTBUR for such LRU, the Repairer may assist the Company in investigating the causes of such situation, and each Party shall take all necessary corrective actions to the satisfaction of the other Party acting reasonably.
2. | Information concerning unserviceable LRUs returned to the Repairer |
The Company shall send to the Repairer any unserviceable LRU, as relevant, with a Work Order in the form set out in Exhibit 7-2 (for any single repair) or in the form attached as Exhibit 7-3 (for the repair of any Core Unit).
3. | Documents provided with the repaired or overhauled LRU |
The following documents shall be provided by the Repairer to the Company with any repaired or overhauled LRU under this Agreement:
(i) | EASA form 1 certificate or FAA form 8130-3 or, if applicable, ANAC SEGVOO 003, |
(ii) | Strip report issued by the Repair Shop, and |
(iii) | An invoice, if such repair service is not covered by the scope of this Agreement. |
4. | Specific services not covered by LRU repair Service |
The following repairs and their related costs (labor and parts) are not covered by the prices set out in Clause 1.3.1 of the Exhibit 14 (Price conditions) and shall be managed on Time and Material conditions:
(i) | all costs of technical modifications that may be incurred due to the embodiment on LRUs of Airworthiness Directives, service bulletins, optional or recommended modifications. |
(ii) | the repair of an unserviceable LRU or additional costs resulting from Items received in damaged conditions due to Abnormal Use, mishandling, corrosion, abrasion, FOD and/or missing Items, |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(iii) | any additional costs in repairing or overhauling any unserviceable LRU due to Companys failure to produce data as required hereunder,, |
(iv) | any cost and expense, direct and/or indirect, that may arise out of or connected with any additional technical expertise and/or counter expertise to be performed on any LRU, at the Companys request, in the event the Company challenges the Repairers primary expertise, or repair cost estimation, or repair solution, |
(v) | replacement or repair of LRUs sub-components unapproved by the OEM, |
(vi) | the maintenance costs relating to any failure of the Company to observe or comply with its obligations under this Agreement, |
(vii) | all battery repairs or replacements, |
(viii) | propeller brake disk replacements, |
(ix) | CVR and DFDR memory and/or tape analysis and/or read outs. |
5. | Discarding the LRUs |
The Parties acknowledge that under normal operating conditions any unserviceable LRU may be BER or TNR.
The Repairer shall notify the Company in case of BER or TNR status of any unserviceable LRU, and shall request the Companys approval to discard such unserviceable LRU.
If the Company denies such approval, the unserviceable LRU shall be delivered back to it at the [*****] costs and risks.
The Companys failure to respond to such Repairers request within [*****] following the Repairers notification of BER or TNR shall constitute an approval for the Repairer to discard the relevant unserviceable LRU.
If the discarded unserviceable LRU has been replaced with a serviceable LRU of the Pool or of the Stock pursuant to the provisions of Exhibits 8 (Lease of the Stock) or 9 (Spare parts standard exchange Service), the Repairer shall invoice and the Company shall pay for the price of such serviceable LRU of the Pool or of the Stock, based on the ATR spare parts catalogue sales price applicable at the date of such invoice for brand new or used LRU, as the case may be.
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT 11 MAIN ELEMENTS SERVICES
1. | Field of application |
1.1 | The Repairer shall provide the Company with a Main Elements maintenance (as per Clause 2 of this Exhibit 11) and availability (as per Clause 3 of this Exhibit 11) Service. |
This Service is applicable to:
a) | Main Elements listed in Exhibit 3 (Main Elements and parts numbers covered by the Agreement) when installed on an Aircraft, and |
b) | any Main Elements in the Stock as relevant, and |
c) | any Spare Main Element. |
The Services provided to the Company by the Repairer in accordance with this Exhibit 11 cover off-Aircraft tasks and works performed by the Repairer. For the sake of clarity and unless otherwise agreed between the Parties, standard exchange Service shall not be available for Main Elements under this Agreement, except for propeller blades and slip ring as per Clause 3 of this Exhibit 11.
1.2 | Main Elements maintenance program (Scheduled Events) |
At the date of entry into force of this Agreement, the Parties acknowledge and agree that applicable intervals for inspections / overhauls on Main Elements are:
i) | for propellers: |
[*****].
ii) | for landing gears: |
[*****].
The Repairer reserves its rights to require the Company to modify the above Main Elements maintenance program in accordance with the Aircraft manufacturer MRBR and/or MPD, to optimize the Company s Aircraft dispatch reliability, provided the Companys Airworthiness Authorities enable so.
2. | Main Elements maintenance Service description |
2.1 | Any off-Aircraft maintenance task and work to be performed on Main Elements and Spare Main Elements shall be carried out in accordance with the relevant CMM for each Main Element. Such maintenance tasks with respect to each Aircraft comprise the following services |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
on which are based the prices set out in Clause 1.3.2 of the Exhibit 14 (Price conditions):
[*****]
2.2 | Maintenance for Scheduled Events |
The Repairer shall provide the maintenance Service for Scheduled Events, in accordance with the applicable maintenance program of each Main Element described at Clause 1.2 of Exhibit 11.
In the event that the Main Elements maintenance program set out in Clause 1.2 of this Exhibit 11 shall be changed, the Parties hereby agree that the Repairer may modify the price conditions set out in Clause 1.3.2 of the Exhibit 14 (Price conditions), as relevant.
2.3 | Basic Unscheduled Removals |
The repair of Main Elements due to BUR shall be performed by the Repairer according to the relevant CMMV and provided that:
- | The Company has fulfilled its obligations as per Clause 5 of this Exhibit; and, |
- | the maintenance tasks are related to normal Aircraft operation in accordance with all technical documentation and any other instructions issued by ATR or the OEM; and, |
- | the maintenance tasks are not related to specific conditions as per Clause 6 of this Exhibit. |
3. | Spare Main Elements availability Service description |
3.1 | With respect to each Aircraft, prices set out in Clause 1.3 of the Exhibit 14 (Price conditions) comprise the availability of Spare Main Element for Scheduled Events and BUR according to the provisions of sub-clause 3.2 hereof. |
For the sake of clarity, propeller blades and slip rings may be available through the standard exchange Service, as per the Exhibit 9 (Spare parts standard exchange Service).
.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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3.2 | Availability of Spare Main Element(s) for Scheduled Events and BUR: |
3.2.1. | Such Service includes, at any time and for the entire fleet, |
- | [*****] propellers, |
- | [*****] landing gear, |
In the event the Company requires any additional Spare Main Element, the Repairer will make a proposal on Time and Material conditions.
3.2.2 | Subject to the Company having complied with its obligations as per Clause 5 of this Exhibit 11, the Repairer shall make available such Spare Main Element(s) during the period necessary for the maintenance for Scheduled Events and BUR of Aircraft Main Element(s). |
3.3 | The Repairer will make Spare Main Element(s) available to the Company during maintenance for BUR of Main Elements within [*****] from the date of receipt by the Repairer of the Companys Work Order in the form set out in Exhibit 7-4. |
4. | Return to the Repairer of the Main Element or Spare Main Element |
At the time the Repairer delivers to the Company a Spare Main Element or returns any repaired or overhauled Main Element to the Company , for fitment on the Company s Aircraft, the Company will deliver back to the Repairer the Main Element removed for repair or overhaul or the Spare Main Element previously obtained from the Repairer, with required technical documentation on a date (the Due Date) within a time period of [*****] starting from the Delivery date of the Spare Main Element or the repaired or overhauled Main Element. When the Main Element removed for repair or overhaul is replaced by a Spare Main Element of the Stock or a spare of the Company s property, the Company shall return to the Repairer or the designated Repair Shop such removed Main Element, with required technical documentation within a time period of [*****], starting from the removal date of the Spare Main Element.
For returning the Main Elements and Spare Main Elements to the Repairer, the Company shall use adapted container or when applicable the containers received from the Repairer. Any container received by the Repairer or its approved Repair Shop in incomplete or damaged condition from the Company shall be subject to refurbishment or replacement at Companys cost and expense in addition to the prices specified in the Exhibit 14 (Price conditions).
Should the Company fail to deliver the Main Element removed for repair or overhaul or the Spare Main Element(s) back to the Repairer or the Repair Shop on the above Due Date and without prejudice to other rights the Repairer may have at Law and/or under this Agreement, the Repairer may charge late return fees to the Company in an aggregate amount of:
- | [*****] |
- | [*****] |
per [*****] of delay, as from the Due Date until the Spare Main Element or the Main Element is duly received by the Repairer or the Repair Shop. The Repairer shall be entitled to withdraw such late return fees from the Security Deposit pursuant to Clause 13 (Security Deposit).
5. | Companys obligations |
In order to allow the Repairer to perform the maintenance tasks defined in Clause 2.1 of this Exhibit 11 in compliance with the relevant OEMs technical specifications, the Company
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
agrees:
◾ | to provide the Repairer every [*****] with a detailed status of the Main Elements showing the Scheduled Events for the next [*****]; |
◾ | to send to the Repairer a Work Order for the Services at the latest [*****] before the event, either for maintenance Service and/or for availability Service; |
◾ | to send to the Repairer the log book, log card and back to birth certificate of the landing gears removed for repair or overhaul or spare landing gear; |
◾ | that, to be eligible for availability Service, no Main Element within the Stock pursuant to Exhibit 8 (Lease of the Stock) and/or the Company s own on-site stock shall be available in the Company s premises, as per the Repairers initial provisioning recommendation. |
Moreover, the Company shall:
5.1 | In respect of the propellers: |
(i) | perform line checks (not limited to lubricant levels, blade balancing, blade anti-erosion film replacements, etc...) and the required consumable spare parts replacements during the Aircrafts entire service life; |
(ii) | procure all the tools necessary for the line maintenance of the propellers including the propeller balancing tool; and |
(iii) | initiate and pursue an efficient staggering program to ensure a smooth schedule removal plan for shop maintenance. |
5.2 | In respect of the landing gears: |
(i) | perform the line checks (including Messier best practices service letter 631-32-218) and the required consumable spare parts replacements during the Aircrafts entire service life, on landing gears, wheels and tires; and |
(ii) | procure all the tools necessary for the line maintenance of the landing gear including the appropriate tooling used for wheels replacement. If required, the Repairer will have to assist the Company in procuring these tools (buying, hiring, etc.); and |
(iii) | initiate and pursue an efficient staggering program to ensure a smooth schedule removal plan for shop maintenance. |
5.3 | Left intentionally blank |
5.4 | On-Aircraft tasks |
All scheduled and unscheduled on-Aircraft maintenance activities, tasks and works and line maintenance, including the following, are under and at the Companys responsibility, risks, costs and expenses:
(i) | line maintenance tasks associated with engines, propellers, landing gears, wheels, brakes and tires, |
(ii) | Main Elements removals and installations for BUR and Scheduled Events, |
(iii) | Main Elements accessories removals and installations, |
(iv) | Main Elements conditioning for storage, |
(v) | grease and lubricant refilling, seals, gaskets, hardware and consumable parts replacement, |
(vi) | propellers balancing, blades removals and installations, |
(vii) | ensure that log books are reflecting the updated maintenance status of each Main Element. |
(viii) | engine fuel nozzles removals and installations, |
(ix) | engine control trend monitoring performance and analysis, |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
(x) | regular cleaning of the engines, |
(xi) | inspection of internal parts (boroscopic inspection). |
6. | Specific services not covered by Main Elements Service |
The following services and their related costs (labor and parts) are not covered by the prices set out in Clause 1.3.2 of the Exhibit 14 (Price conditions) and shall be managed on Time and Material conditions:
(i) | all costs of technical modifications that may be incurred due to the embodiment on Main Elements of Airworthiness Directives, service bulletins, optional or recommended modifications, |
(ii) | replacement or repair of Main Elements sub-Items costs relating to any failure of the Company to comply with its obligations under this Agreement, |
(iii) | the replacement cost of a Main Element and/or its sub-assemblies that is declared BER or TNR, |
(iv) | any additional costs in connection with the repair or overhaul of any Main Element serial number due to Companys failure to produce data as required hereunder, |
(v) | Items and/or any sub-Items received in damaged conditions due to Abnormal Use, mishandling, incorrect storage, lightning strike, FOD, corrosion, abrasion or erosion, dropped or water immersion, over-torque condition or over-speed in excess of transient or over-temperature |
(vi) | Services performed on Main Element(s) fitted on Aircraft to comply with Aircraft redelivery conditions or delivery conditions to a third party, . For sake of clarity, Aircraft redelivery conditions or delivery conditions of a third party will have to be declared by the Company to the Repairer in anticipation [*****] before the stop of the Aircraft, |
(vii) | the replacement of missing parts and parts unapproved by the OEM, |
(viii) | the repair of damages or replacements resulting from previous repair and/or overhaul not performed pursuant to this Agreement, |
(ix) | for the landing gears, the replacement of life limited parts, repair and/or replacement of On Condition Parts listed in Exhibit 4, replacement of any part (including expendables) which vendor price exceeds [*****] with the exception of parts listed in Exhibit 11 Clause 2.1 (ii), |
(x) | for the propellers, replacement of dome, repair of armbore, replacement of de-icer and replacement of nickel sheath. |
7. | Discarding the Main Elements |
The Parties acknowledge that under normal operating conditions any Main Element may be declared BER or TNR.
The Repairer shall notify the Company in case of BER or TNR status of any Main Element, and shall request the Companys approval to discard such Main Element.
If the Company denies such approval, the Main Element shall be delivered back to the Company at its costs and risks.
The Parties agree that the absence of a response by the Company to such Repairers request within [*****] from the sending of the Repairers notification of BER or TNR constitutes an approval for the Repairer to discard the relevant Main Element.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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In the event the Repairer shall discard any unserviceable Main Element, the Company shall pay the applicable price for test and/or scrap, as the case may be.
In case of the discarded Main Element is an unserviceable propeller blade that has been replaced with a serviceable propeller blade of the Pool or of the Stock pursuant to the provisions of Exhibits 8 (Lease of the Stock) or 9 (Spare parts standard exchange Service), the Repairer shall invoice and the Company shall pay for the price of such serviceable propeller blade of the Pool or of the Stock, based on the ATR spare parts catalogue sales price applicable at the date of such invoice for brand new or used, as the case may be.
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EXHIBIT 12 INTENTIONALLY LEFT BLANK
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EXHIBIT 13 FORM OF STANDBY LETTER OF CREDIT
By swift message to our addressee BANK NATIXIS (SWIFT Code: CCBPFRPP)
Issuing Bank: (NAME AND ADDRESS)
Issuing Bank SWIFT Code:
Confirming Bank:
Applicant:
Beneficiary: ATR
StandBy Letter of Credit reference:
By order of [AZUL NAME], located at [AZUL ADDRESS], we hereby issue our irrevocable and confirmed StandBy Letter of Credit in favour of Avions de Transport Régional, located 1 allée Pierre Nadot 31712 Blagnac, France (ATR), for the aggregate amount of USD XXXX (XXX USD) available for the period ending twelve (12) Months after the Term of the GMA (as defined below);
Available by payment at sight by NATIXIS against your written demand bearing the Clause drawn under irrevocable StandBy Letter of credit (letter of credit reference) issued by (issuing bank name and address) accompanied by the following document:
- | Beneficiarys signed certificate specifying the amount drawn and stating: |
(1) | that the amount claimed is due and payable by [AZUL NAME] in connection with the Global Maintenance Agreement between ATR as the Repairer and [AZUL NAME] as the Company executed on (date) for the XXX [Services] (the GMA); and, |
(2) | that the Beneficiary has requested payment of the amount claimed from [AZUL NAME] who is in default. |
Partial drawings are permitted.
The Beneficiary shall not be entitled to assign or transfer any right, title or interest in this StandBy Letter of Credit to any other party.
All banking charges and commissions are for the account of the Applicant.
This StandBy Letter of Credit is subject to the 2007 revision of the Uniform Customs and Practices for Documentary Credits of the International Chamber of Commerce Publication 600.
This StandBy Letter of Credit will take effect on the (date).
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CONFIDENTIAL TREATMENT REQUESTED
1. | Prices |
The price payable for the Services shall be the sum of the prices set out in this Agreement and established in accordance with the economic conditions prevailing in two thousand and fifteen (2015).
1.1 | The lease fee payable for the lease of the Stock (based on the Stock technical contents defined in Exhibits 5 [Stock] and 8 [Lease of the Stock]), as from the Start Date is [*****]: |
(i) | an amount of [*****] corresponding to [*****] of the Stock value which is set in Exhibit 8 (Lease of the Stock), Clause 2.2 ; or |
(ii) | in the event the Repairer delivers used Items to the Company as per Clause 2.2 of the Exhibit 8 (Lease of the Stock), the [*****] set forth in 1.1 (i) here above shall be payable from the Start Date until the date on which the last Item of the Stock is delivered. On such latter mentioned date, the Repairer will notify to the Company the exact and definitive Stock value, and the accordingly revised monthly lease payment based upon [*****] of such exact and definitive Stock value. Upon Delivery of the last Item of the Stock, the Repairer shall issue a credit equal to the difference between: |
a. | the total amount of lease payments actually paid by the Company since the Start Date according to Clause 1.1 (i) here above, and |
b. | the price the Company should have paid for the used Items delivered by the Repairer according to Clause 1.1 (ii) here above. |
1.2 | The price payable [*****] per Aircraft by the Company to the Repairer for the standard exchange Service set out in Exhibit 9 (Spare parts standard exchange Service) is as follows (with unlimited POOL access): |
[*****] |
[*****] |
[*****] |
[*****] |
[*****] |
1.3 | The prices per airborne FH per Aircraft payable by the Company to the Repairer for the repairs and overhauls of the LRUs and the Main Elements set out in this Agreement are: |
1.3.1 | For LRU repair and overhaul: |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
[*****] |
[*****] |
[*****] |
[*****] |
[*****] |
[*****] |
1.3.2 | For the Main Element Services as per Exhibit 11 (Main Elements Services): |
i) | propellers [*****] per Aircraft): |
(a) | For maintenance |
- | [*****] |
- | [*****] |
The above propellers maintenance provisions and availability prices are defined as a result of the following repartition related to the maintenance of the following propeller hub, actuator, transfer tube and blades composing each propeller assembly:
Blades | Hub | Actuator | Transfer Tube |
Adjusting Nut | ||||||||
[*****] |
[*****] [*****] |
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
| ||||||
[*****] [*****] |
[*****]
|
[*****]
|
[*****]
|
[*****]
|
[*****]
|
(b) | For availability [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
ii) | left intentionally blank |
iii) | landing gears (per shipset): |
For 42-500, 72-500, 72-600 landing gears:
(a) | For maintenance: |
[*****] |
[*****] |
plus
(b) | For availability |
[*****] |
[*****] |
The above landing gear maintenance provisions and availability prices are defined as a result of the following repartition related to the maintenance of the following sub-assemblies composing each landing gear assembly
[*****] |
[*****] |
|||||||
NLG |
[*****] | [*****] | ||||||
Drag Brace |
[*****] | [*****] | ||||||
MGL |
[*****] | [*****] | ||||||
Side Brace |
[*****] | [*****] |
Life limited parts repair or replacement will be subject to a case by case quotation.
1.3.3 | Additional flat rates: |
Additional flat rates here under shall be applied for the following operations, as applicable:
a) | for [*****], a flat rate of : |
For [*****]: [*****]
b) | for [*****], a flat rate of : |
For [*****]: [*****]
2. | Reconciliation conditions |
2.1 | Left intentionally blank |
2.2 | Price adjustment for LRUs removal rate reconciliation |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
Any difference, to be measured in units and tens, between the RRR and the MRR pursuant to the conditions set out in Clause 11.1 (iii) and (iv) of the Agreement, shall be invoiced or credited, provided the Company is not in Default of any of its obligations pursuant to this Agreement, per airborne FH on the basis of:
for [*****]
[*****] [*****]
for [*****]
[*****] [*****]
for [*****] [*****]
[*****] [*****]
In addition, at each reconciliation based on the actual flown flight hours, the Repairer shall credit back:
[*****]
2.3 | Early Events |
The Parties agree that the prices for each Service subject to Scheduled Events are based on the achievement of the applicable maintenance program(s), expressed in [*****].
In case of deviation of the Scheduled Event maintenance program parameters by a number of [*****] shall be considered an Early Event.
For any Early Event, whichever the context, the Repairer shall invoice the Company an amount equal to the Lost Potential multiplied by the applicable price mentioned in Clause 1.3 of this Exhibit.
2.4 | Calendar Limits |
For propellers and landing gears, the prices given in Clause 1.3.2 of this Exhibit 14 are subject to the achievement of the applicable [*****] specified in Clause 1.2 of Exhibit 11 (Main Elements Services) hereto. In case a maintenance event is necessary to comply with a calendar limit, the Company shall settle the applicable prices in Clauses 1.3.2 and 3 of this Exhibit 14 at the time of the event, multiplied by the full interval specified in Clause 1.2 of Exhibit 11 (Main Elements Services) hereto less the amount already paid by the Company to the Repairer for the number of [*****] accrued since the last overhaul.
3. | Prices adjustment |
For the sake of clarity, the adjustment conditions set out in Clauses 3.1 and 3.2 below [*****].
3.1 | Commercial conditions for price adjustment |
3.1.1 | For Lease of the Stock, standard exchange Service and LRUs repair Service |
The prices set out in this Agreement will be increased, if applicable, [*****] in accordance with the following adjustment formula:
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
where:
[*****] is the [*****] for the year N+1, and [*****],
[*****]: is the [*****] as determined by economic conditions of year N (current year),
[*****]: is the [*****] in the year N,
[*****]: is the corresponding [*****] of the year N-1,
[*****]: is the [*****] in the year N,
[*****]: is the corresponding [*****] of the year N-1.
Escalation is subject to a [*****] for Stock, Clause 1.1 of the Exhibit 14, and Standard Exchange services, Clause 1.2 of the Exhibit 14.
Escalation is subject to a [*****] for LRU repair service, Clause 1.3 and Clause 2.2 of the Exhibit 14.
Escalation is subject to a [*****].
3.1.2 | For Main Elements Services |
The prices set out in this Agreement relative to the Main Elements will be [*****].
Escalation is subject to a [*****] for Main Elements repair service [*****] In any case the final result of the applicable annual adjustment rate [*****] Clause 1.3 of the exhibit 14.
3.2 | Technical conditions for prices adjustment |
The prices set out in this Exhibit 14 shall be modified [*****] at the occasion of the invoicing reconciliation pursuant to Clause 11 (Reconciliation) if the Standard Operations of the Aircraft, analyzed at the time of the adjustment (all calculations are made with figures corresponding to [*****]), change by more or less [*****] with respect to the estimated values of the same parameters, considered at the time of commencement of the Term.
As from the date this Agreement enters into force, the Parties agree to take into account the following basic operating parameters (the Standard Operations) as a reference for the above calculation:
(i) | [*****] |
- | [*****] |
- | [*****] |
- | [*****] |
(ii) | [*****] |
- | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
- | [*****] |
- | [*****] |
4. | Specific conditions |
4.1 | Companys Aircraft fleet change(s) |
[*****].
4.2 | Unused Aircraft |
During the Term, should any Aircraft remain temporarily unused for less than [*****] by the Company for whatever reason, the Company shall not request or obtain from the Provider a change in prices or terms and conditions set out in this Agreement in Clause 12 (Invoicing and Payment terms).
5. | Phase-in: |
As a condition precedent to the entry into force of this Agreement, as reflected in Clause 17 (Conditions Precedent), the Company shall pay to the Repairer an amount corresponding for each Main Element and/or any sub-assembly thereof, to the number of FH or CY accrued since the last overhaul or since new as applicable, at the date of entry into force of the Agreement, multiplied by the applicable rate defined in Clauses 1.3 and 3 of this Exhibit 14 and applicable at the date of the first event.
6. | Phase-out: Refundable maintenance provisions |
6.1 | Upon termination of this Agreement with respect to one or more Aircraft and/or Services in accordance with the terms of this Agreement (except as a result of a Company Default) (the Termination Date), the Repairer shall reimburse the Company Maintenance Provisions related to landing gears maintenance services and/or their sub-component for ATR 72-600 only based on [*****] of the amount set out in Clause 1.3.2 of the Exhibit 14 (Price Conditions)for maintenance services (the Refund Amount), taking into account the price applicable [*****] as per Clauses 3 of the Exhibit 14 (Price Conditions) and when applicable adjusted every [*****] as per Clause 10 and 11, for [*****] for Main Elements: between the re-installation on such Aircraft after the last shop repair or overhaul or exchange occurred under this Agreement, as evidenced in the relevant EASA, FAA, TC, or ANAC release form and ending on the Termination Date. |
For sake of clarity, since the Company will pay such service based on,
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
- | for ATR 42-500, ATR 72-500 and ATR 72-600, [*****] of the price by the hours and [*****] |
- | for ATR 72-600, [*****] of the price by the hours and [*****], |
- | for ATR 42-500 and ATR 72-500 [*****] of the price by the hours and [*****], |
[*****]. In addition, it is agreed by the parties that [*****] out of [*****] of the maintenance provision paid for the maintenance of the landing gears [*****].
Should any Aircraft be an ATR and/or ATR Affiliates property, then Refund Amount shall be reimbursed to the owner.
The Repairer will reimburse the Refund Rate provided that:
(i) | the Company has returned to the Repairer all Spare(s), Main Element(s), Items of the Stock, Core Units and unserviceable LRUs the Repairer may have delivered or to be returned to the Repairer according to the terms of this Agreement, and |
(ii) | The Company has paid to the Repairer all amounts due under this Agreement , and |
(iii) | The Company is not in Default of any of its obligations under this Agreement. |
6.2 | It is also understood that [*****] to be taken into account for such a refund process are only those accrued for the original Main Element(s) of Aircraft when fitted on Companys Aircraft or alternatively spare(s) main elements of Company property. [*****] accrued on Spare Main Element(s) provided by the Repairer to the Company under this Agreement and/or any Main Element(s) different from those installed on Aircraft on the date they were originally delivered to the Company or not owned by the Company shall not be taken into account in the calculation of the Refund Rate phase-out set out in this Clause 6. |
6.3 | Such phase out shall occur simultaneously with the final reconciliation as per Clause 11.2 of this Agreement. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 15 ADVANCED POOL SERVICE
1. | Advanced Pool Stock Availability |
With the scope of further facilitating the maintenance operations of the Company, Repairer agrees to make available the Advanced Pool Stock to the Company and Company agrees to store the Advanced Pool Stock in a restricted area at the Storage Location. The provision, holding, use and disposal of the Advanced Pool Stock and its review shall be subject to the terms and conditions of this Agreement.
2. | Provision and value of the Advanced Pool Stock |
2.1 | The Advanced Pool Stock is composed of items defined in Exhibit 16 (Advanced Pool Stock), which may be either brand new items or Used Serviceable Items depending on availability of each item of the Advanced Pool Stock into Repairers inventory at the time of their respective delivery. |
2.2 | The Advanced Pool Stock is governed by this Agreement until it is (i) either returned to the Repairer at the Expiry Date, (ii) purchased by Company in accordance with Clause 6 hereunder, or (iii) upon redelivery of the Advanced Pool Stock to Repairer after the termination of this Agreement pursuant to Clause 16 of this Agreement. |
2.3 | The Advanced Pool Stock shall be provided to Company by Repairer for the duration of the Term provided Company has met each of the Conditions Precedent set out in Clause 17 of the Agreement to the satisfaction of the Repairer before the Start Date. |
2.4 | The Advanced Pool Stock total value, under economic conditions 2010, shall be: |
[*****]
For the sake of clarity, the total Stock value of Exhibit 16 (Advanced Pool Stock) list shall be: [*****].
In the event the Repairer delivers Used Serviceable Items to the Company, the value of each such Used Serviceable Items shall be quoted at [*****] of the brand new value indicated in Exhibit 16 (Advanced Pool Stock) and the total value of the Advanced Pool Stock shall be adjusted accordingly.
3. | Delivery |
3.1 | The items of the Advanced Pool Stock will be delivered by Repairer to Company, with the relevant airworthiness documents (certificate of conformity, ANAC SEGVOO 003, EASA Form 1 or FAA Form 8130-3), [*****] ATR stores located at the address set forth in Clause 6.1 of this Agreement, or such other location as Repairer may from time to time notify to Company. |
3.2 | Delivery of the Advanced Pool Stock shall take place gradually. Repairer shall use its reasonable efforts to deliver [*****] of the items of the Advanced Pool Stock (in quantity) at the Start Date. Delivery of the Advanced Pool Stock shall be subject to the Stock delivery. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
3.3 | Notwithstanding the fact that the Repairer is the owner of the Advanced Pool Stock, all risks whatsoever and howsoever relating to or arising in connection with the Advanced Pool Stock and any item of the Advanced Pool Stock, shall be transferred to, vested in and borne by the Company as from the delivery of each item of the Advanced Pool Stock by Repairer to Company. |
3.4 | Company shall be responsible for and proceed to custom clearance of any item of the Advanced Pool Stock. Within a maximum [*****] lead time from the date any item of the Advanced Pool Stock is delivered, Company shall provide Repairer with evidence that any fees, customs duties, and customs declarations has been paid and made, failing which Repairer may consider such failure as a Company Default pursuant Clause 16 of this Agreement. |
4. | Management and Handling Procedures |
4.1 | Location |
i. | Company shall keep the Advanced Pool Stock in secured warehouse facilities at the Storage Location, the use of which is reserved for storing and protecting the Advanced Pool Stock owned by Repairer. These facilities shall be separated from any areas used to store any other equipment and the Storage Location shall be clearly marked with the inscription ATR PROPERTY. All the items of the Advanced Pool Stock will be stored with their corresponding documentation. |
ii. | Company agrees to maintain the Advanced Pool Stock by applying the best standard methods for storage and maintenance as required by applicable EASA regulations at its own maintenance and storage costs, particularly for parts subject to limited shelf life or cure date. |
iii. | Company shall promptly notify the Repairer any loss or damage to the Advanced Pool Stock whilst under its management. |
iv. | Prior to the Delivery Date and upon each renewal of any policy, the Company shall supply the Repairer with certificates of insurance compliant with the terms and conditions set out in Clause 8 of this Agreement. |
v. | If at any time during the term, the Storage Location is not owned by the Company and is leased from a third party, the Company shall advise the Repairer of the name and address of the owner or landlord of such facilities or if any change of the owner or landlord occurs. It shall be the responsibility of the Company to notify said owner or landlord of the Repairers right of ownership in and to the Advanced Pool Stock and copy the Repairer of such notification. |
vi. | The Company agrees to assume liability for and to indemnify and keep harmless Repairer against any loss, cost, expense (including the fees of professional advisers and out of pocket expense), financial liability, taxes, damage or monetary loss of any kind which Repairer may suffer or incur as a consequence of the loss or damage to any item of the Advanced Pool Stock. |
4.2 | Use |
The Company shall be entitled to, provided no Company Default has occurred and is continuing, withdraw and use any of the items of the Advanced Pool Stock pursuant standard
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
exchange service conditions defined in Exhibit 9 and in accordance with its operational needs, solely for the remedy of parts associated defects on the Aircraft covered under this Agreement.
4.3 | Inventory |
The Repairer or its agent shall have the right to inspect the Advanced Pool Stock and to audit any records relating thereto at any reasonable time upon giving prior written notice to the Company. The Company shall provide full access to enable the Repairer to conduct periodic inventory inspection of the Advanced Pool Stock.
Should any part of the Advanced Pool Stock be missing, partially or totally damaged, or has not its appropriate airworthiness documentation at the time the Repairer or its agent carries out its inspection/audit, and if the Company cannot justify the part being under repair, the Company shall have a period of [*****] to remedy the situation to the satisfaction of the Repairer, failing which, the Repairer shall invoice the Company the price for any such lost or damaged item at the ATR spare parts catalogue price applicable at the date of such invoice.
5. | Purchase Option |
[*****]
6. | Modifying the Composition of the Advanced Pool Stock |
Upon either partys request, the parties agree to review the content of the Advanced Pool Stock at the first anniversary date of the Start Date. Shall the parties agree to modify the content of the Advanced Pool Stock, the following conditions shall apply:
i. | item returned by the Company that has never been used by the Company since the Start Date, is received by the Repairer in serviceable condition, in its original packaging and with all appropriate airworthiness documents; |
ii. | the item shall be returned in accordance with the provisions of Clause 6.2 of this Agreement; and |
iii. | if an item is returned to the Repairer from the Advanced Pool Stock, the value of the Advanced Pool Stock shall be modified by subtraction of the initial value of the concerned item; and |
iv. | if an item is added to the Advanced Pool Stock, the value of the Advanced Pool Stock shall be increased pursuant to the ATR Spares Catalogue price for the added item at the economical condition of the moment the Advanced Pool Stock is modified. |
The Company shall be responsible for and pay any costs incurred by the return to Repairer and/or replacement of such items of the Advanced Pool Stock, including but not limited to transportation costs, customs duties, formalities and commissions, re-certification fees if documents are missing or damages are found.
7. | Purchase or Return of the Advanced Pool Stock |
7.1 | Promptly on the Expiry Date, and subject to Clause 5 of this Exhibit 15, the Company shall |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
have the option to:
i. | [*****] |
ii. | re-deliver the items of the Advanced Pool Stock to the Repairer in accordance with Clause 6.2 of this Agreement or to any other address indicated from time to time by Repairer to the Company, in accordance with the following terms and conditions. |
7.2 | In the event that any items are delivered back to the Repairer without the appropriate airworthiness documentation, or whenever the parts are returned without the original documents supplied by the Repairer, or if the Repairer has to test, to replace or to repair such returned item(s) of the Advanced Pool Stock due to damage or deterioration as a result of incorrect storage, inappropriate packaging and/or transport, or for any other reason whatsoever, the Company is liable for any associated re-certification, repair, overhaul, or replacement costs for such items at the ATR catalogue prices applicable on the date of delivery of such item to the Company. |
7.3 | If the Company fails to deliver the Advanced Pool Stock or any part(s) of the Advanced Pool Stock within [*****] of the Expire Date, the Company shall pay late return fees equal to [*****] of the value of the non returned part(s), per Day since the Expire Date, until: a) the missing part(s) are duly received by the Repairer, or b) a maximum [*****] from the Expire Date. The Repairer will be entitled to withdraw such late return fees from the Security Deposit pursuant to Clause 13. |
7.4 | The Company acknowledges and agrees that in the event any item of the Advanced Pool Stock, or the entire Advanced Pool Stock, is not re-delivered to the Repairer within [*****] of the Expire Date, this item or the Advanced Pool Stock shall be deemed lost, and the Repairer will invoice this item of the Advanced Pool Stock to the Company at the ATR spare parts Catalogue price in force at the date of delivery of any such item of the Advanced Pool Stock. Should the Company fail to pay such invoice, Repairer will be entitled, at its sole discretion, to withdraw the corresponding amount(s) from the Security Deposit. |
8. | Payment and Transfer of the Title to Property |
8.1 | Save as otherwise set out in this Agreement, the purchase price for any item of the Advanced Pool Stock shall be paid in accordance with the provisions of Clause 12. |
8.2 | Notwithstanding the provisions of Clause 6 of Exhibit 9, title to the Advanced Pool Stock or any item thereof shall remain with the Repairer at all times until such Advanced Pool Stock or part thereof has been purchased by the Company and provided that the amount of the corresponding invoice has been fully received by the Repairer in accordance with Clauses 10 and 12 of this Agreement. The Company specifically agrees that it shall not acquire any interest, equity or share of the Advanced Pool Stock, or pledge or create any lien of any sort whatsoever prior to the transfer of title to the Advanced Pool Stock to the Company in accordance with this Agreement. It is hereby acknowledged and agreed that the Company is appointed as the custodian of the Advanced Pool Stock, which appointment the Company hereby accepts until such time as the Repairer has received the Companys payment in full for the Advanced Pool Stock or any item if the Advanced Pool Stock in case such Advanced Pool Stock or item is either missing, damaged, without airworthiness documentation, purchased by the Company or not returned by the Company to the Repairer in accordance with the provisions of this Agreement. |
8.3 | The Company may not, under any circumstances, perform or permit any action to be taken that |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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may be detrimental to the Repairers title to and property in the Advanced Pool Stock, including without limitation:
i. | the Company must not transfer, sell, charge, pawn, mortgage, negotiate, dispose of, or intend to negotiate or dispose of the Advanced Pool Stock or any item of the Advanced Pool Stock ; and |
ii. | the Company shall take the necessary measures in order to prevent the Advanced Pool Stock or part of the Advanced Pool Stock from being seized or taken away, or to check the Advanced Pool Stock in the event of a seizure by distress or any other similar legal process. However, if the Advanced Pool Stock or part of the Advanced Pool Stock is seized or taken away, the Company must immediately inform the Repairer in writing and indemnify the Repairer for any losses, costs or expenses incurred by the Repairer as a result of the above-mentioned events, and shall mitigate any such Losses, costs or expenses by using its best efforts to re-possess the Advanced Pool Stock or to re-acquire the Advanced Pool Stock or any item of the Advanced Pool Stock. |
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 16 ADVANCED POOL STOCK
The following Exhibit is composed of two (2) pages, into which are listed [*****] part numbers.
First List for [*****] specific fleet contains [*****] part numbers
[*****] |
DESCRIPTION |
[*****] | ||
[*****] | CONDENSER | [*****] | ||
[*****] | COOLING UNIT | [*****] | ||
[*****] | VALVE-TURBINE INLET CONTROL | [*****] | ||
[*****] | AUDIO CONTROL PANEL | [*****] | ||
[*****] | CONTROL UNIT-HF | [*****] | ||
[*****] | REMOTE CONTROL AUDIO UNIT | [*****] | ||
[*****] | CONTROL UNIT-BUS POWER,DC | [*****] | ||
[*****] | CONTROL UNIT-GENERATOR,AC | [*****] | ||
[*****] | STARTER GENERATOR-DC | [*****] | ||
[*****] | PROBE-CCAS ALPHA | [*****] | ||
[*****] | PROBE-PITOT | [*****] | ||
[*****] | VALVE-HP AIR BLEED | [*****] | ||
[*****] | EXCITER - IGNITION I.C. | [*****] | ||
[*****] | SERVO VALVE | [*****] | ||
[*****] | FUEL PUMP | [*****] | ||
TOTAL |
Second List for [*****] specific fleet contains [*****] part numbers
[*****] |
DESCRIPTION |
[*****] | ||
[*****] | REMOTE CONTROL AUDIO UNIT | [*****] | ||
[*****] | REMOTE CONTROL AUDIO UNIT | [*****] | ||
[*****] | CONTROL UNIT-BUS POWER,DC | [*****] | ||
[*****] | FCU-HYDRO MECHANICAL | [*****] | ||
[*****] | FCU-HYDRO MECHANICAL | [*****] | ||
[*****] | AUDIO CONTROL PANEL | [*****] | ||
[*****] | EXCITER - IGNITION I.C. | [*****] | ||
[*****] | EXCITER - IGNITION I.C. | [*****] | ||
[*****] | PROBE-CCAS ALPHA | [*****] | ||
[*****] | PROBE-CCAS ALPHA | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
[*****] |
DESCRIPTION |
[*****] | ||
[*****] | CONTROL UNIT-GENERATOR,DC | [*****] | ||
[*****] | SERVO VALVE | [*****] | ||
[*****] | CONTROL UNIT-VHF | [*****] | ||
[*****] | CONDITIONER,TORQUE SIGNAL | [*****] | ||
[*****] | ALTIMETER-STANDBY,MILLIBARS | [*****] | ||
[*****] | CONTROL UNIT-VHF | [*****] | ||
[*****] | ELECTRONIC SYSTEM UNIT | [*****] | ||
[*****] | INDICATOR-STANDBY HORIZON | [*****] | ||
[*****] | CONTROL,AUTOFEATHER | [*****] | ||
[*****] | CONTROL,AUTOFEATHER | [*****] | ||
[*****] | GOVERNOR-PROPELLER OVSP | [*****] | ||
[*****] | PUMP-PROPELLER FEATHERING | [*****] | ||
[*****] | PUMP-PROPELLER FEATHERING | [*****] | ||
[*****] | SWITCH-PROXIMITY | [*****] | ||
TOTAL [*****] | [*****] |
[*****] |
DESCRIPTION |
[*****] | ||
[*****] | PROBE PITOT | [*****] |
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT 17 INSURANCE CERTIFICATES
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT.
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EXHIBIT 18 NOTA FISCAL REPORTING
Reporting 1:
Dedicated to the pool import + 1st standard exchange loop
Shall be submitted once (after all serviceable parts from the pool sent to Azul)
Part number |
Serial number |
Nota Fiscal CFOP 5949 number Flow Azul -> Helibras |
Nota Fiscal CFOP 5949 number Flow Helibras -> Azul |
Fiscal value | ||||
Table with XXX lines (XXX = number of parts to be imported) |
||||||||
... |
Reporting 2:
Dedicated to subsequent standard exchanges
Shall be submitted on a monthly basis
Part number |
Serial number |
Nota Fiscal CFOP 5949 number Flow Azul -> Helibras |
Nota Fiscal CFOP 5949 number Flow Helibras -> Azul |
Fiscal value | ||||
... |
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT.
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Amendment n° 01
to the Global Maintenance Agreement ref. DS/C-3957/14 Issue 7 dated March 9th , 2015
|
BETWEEN
AZUL LINHAS AÉREAS BRASILEIRAS S/A
AND
AVIONS DE TRANSPORT REGIONAL, G.I.E.
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TABLE OF CONTENTS:
CLAUSE | PAGE | |||||
1. |
DEFINITIONS | 4 | ||||
2. |
AMENDMENT | 4 | ||||
3. |
EFFECTIVE DATE AND DURATION | 5 | ||||
4. |
CONFIDENTIALITY | 5 | ||||
5. |
GOVERNING LAW - ARBITRATION | 7 | ||||
6. |
MISCELLANEOUS | 8 |
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CONFIDENTIAL TREATMENT REQUESTED
This amendment (hereinafter referred to as the Amendment) is entered into on January 6th, 2016.
BETWEEN:
AZUL LINHAS AÉREAS BRASILEIRAS S/A, a company incorporated under the laws of Brazil, the registered office of which is located at Avenida Marcos Penteado de Ulhôa Rodrigues, 939 - Edif. Castello Branco Office Park - Torre Jatobá - 9° andar - CEP 06460-040 - Alphaville Industrial - Barueri - São Paulo - Brazil, identified under Cadastro Nacional de pessoa Juridica (CNPJ) number 09.296.295/0001-60.
Hereafter referred to as the Company or AZUL,
On the one part,
AND:
AVIONS DE TRANSPORT REGIONAL, G.I.E., a French groupement dintérêt économique established under articles L.251-1 to L251-23 of the French Commercial Code, whose registered office is at 1 allée Pierre Nadot, 31712 Blagnac, France identified under Corporate and Trade Register of Toulouse number 323 932 236,
Hereafter referred to as the Repairer or ATR,
On the other part.
Hereinafter individually referred to as the Party or collectively as the Parties
RECITALS:
WHEREAS the Repairer and the Company entered into a Global Maintenance Agreement as referenced here above (as amended and supplemented from time to time, hereafter referred to as the GMA) for the purpose of providing the Company with Services for the maintenance of the Aircraft; and,
WHEREAS in consideration of modification of the operations, the Repairer and the Company agree to amend the GMA in order to update the number of [*****] required for the invoicing; and,
WHEREAS the Parties wish to amend certain provisions of the GMA upon the terms and conditions set out below.
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
1. | DEFINITIONS |
Unless otherwise defined, capitalised terms, singular or plural, used in this Amendment, shall have the same meaning ascribed thereto in the GMA.
2. | AMENDMENT |
The following Clauses, sentences or words of the GMA are amended as follows:
2.1 | Clause 12 INVOICING AND PAYMENT TERMS |
(i) | Clause 12.1(ii) of the GMA shall be cancelled and substituted as follow: |
[*****] |
[*****] |
[*****] |
[*****] |
[*****] |
[*****] |
[*****] |
[*****] |
(ii) | Any other provision of Clause 12 shall remain in full force and effect. |
2.2 | Exhibit 14 PRICE CONDITIONS |
(i) | Clause 3.2 of the Exhibit 14 of the GMA shall be cancelled and substituted as follow: |
3.2 | Technical conditions for prices adjustment |
The prices set out in this Exhibit 14 shall be modified every [*****] at the occasion of the invoicing reconciliation pursuant to Clause 11 (Reconciliation) if the Standard Operations of the
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
Aircraft, analyzed at the time of the adjustment (all calculations are made with figures corresponding to [*****], change by more or less [*****] with respect to the estimated values of the same parameters, considered at the time of commencement of the Term.
As from the date this Agreement enters into force, the Parties agree to take into account the following basic operating parameters (the Standard Operations) as a reference for the above calculation:
(i) | [*****] |
- | [*****] |
(ii) | [*****] |
- | [*****] |
(ii) Any other provision of the Exhibit 14 shall remain in full force and effect.
3. | EFFECTIVE DATE AND DURATION |
This Amendment shall enter into force on the date of its signature by both Parties and, unless otherwise agreed upon in writing by the Parties through a subsequent amendment to the GMA, shall remain in force for the term of the referenced GMA.
4. | CONFIDENTIALITY |
4.1 | Confidentiality obligations |
Unless otherwise provided in this Amendment, any Confidential Information released by either of the Parties (the Disclosing Party) to the other Party (the Receiving Party) shall not be released in whole or in part to any third party.
In particular, the Receiving Party undertakes:
- | to keep the Confidential Information strictly confidential, not to deliver, disclose or publish it to any third party including subsidiary companies and companies having an interest in its capital, except as otherwise agreed in writing by the Disclosing Party; |
- | to use the Confidential Information solely for the purpose of this Amendment and except as otherwise expressly agreed in writing by the Disclosing Party, not to use the same or permit its use for any other purpose; |
- | to disclose the Confidential Information only to those of its direct employees having a need to know such Confidential Information in order to make permitted use thereof, after having beforehand clearly informed such employees of the strictly confidential nature of the Confidential Information and caused them to observe said conditions of confidentiality. The Receiving Party shall be responsible for the correct performance of said obligations of confidentiality by its employees and shall keep up to date the list of its personnel, to whom Confidential Information is communicated, which list shall be made available to the Disclosing Party at its request; |
- | not to duplicate the Confidential Information nor to copy or reproduce the same beyond the purpose of the Amendment; |
- | not to disclose Confidential Information to any third party, unless such third party is acting at the instruction of the Receiving Party and such disclosure is reasonably necessary to accomplish the purpose of the Amendment, provided however, that prior to any such disclosure both of the following conditions are satisfied: |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(i) | each of such third parties, shall have signed an acknowledgement to keep such Confidential Information as strictly confidential; and, |
(ii) | the Receiving Party shall have obtained written prior approval of the Disclosing Party of such proposed disclosure, which approval may be not unreasonably withheld or delayed. |
- | promptly notify the Disclosing Party if a disclosure of Confidential Information is required by a Government Entity or by Law and to use all reasonable effort to assist the Disclosing Party in limiting such disclosure to the extent permitted by Law; |
- | upon discovery of any disclosure of Confidential Information, regardless of whether such discovery is intentional or inadvertent, the Receiving Party shall promptly notify the Disclosing Party and take all reasonable actions (i) to retrieve the disclosed Confidential Information, (ii) to destroy any unauthorized copies thereof and (iii) to stop further disclosure. |
4.2 Non application of confidentiality obligations
The obligations of Receiving Party with respect to Confidential Information as set forth in this Clause 4.1 above shall not be applicable to information which:
(a) | upon the Signing Date was part of the public domain or became part of the public domain after the disclosure, other than by a violation of the Amendment or any other non-disclosure Amendment or the applicable Law of any jurisdiction; or |
(b) | was already lawfully known by the Receiving Party, as evidenced by written records bearing an unquestionable date, prior the Signing Date by the Disclosing Party and was unrestricted; or |
(c) | was lawfully disclosed to the Receiving Party subsequently to the signature of the Amendment by a third party which had not received the same directly or indirectly from the Disclosing Party and that such disclosure does not violate any non-disclosure Amendment. |
4.3 | Permitted disclosure of Confidential Information |
Notwithstanding any provision to the contrary in the Amendment, the Receiving Party shall be entitled to disclose Confidential Information if required to do so:
(a) | by order of a court or government agency of competent jurisdiction; or |
(b) | by any applicable Law, |
provided, however, that prior to making such disclosure, the Receiving Party shall if possible advise the Disclosing Party of the circumstances requiring such disclosure in order to afford the Disclosing Party sufficient advance notice to permit to raise any objections that it may deem appropriate.
4.4 | Disclosing Partys proprietary rights |
Any Confidential Information shall remain the property of the Disclosing Party. The Amendment shall not be construed as granting or conferring to the Receiving Party, either expressly or by implication, any license or proprietary interest in or to any Confidential Information nor any right of use beyond the purpose of this Amendment.
The Repairer, its Affiliates and/or its Subcontractors as applicable shall remain the exclusive owner of any intellectual property right related to the Services including: design of the LRUs, Main Elements, job cards, task cards, operating manual or industrial process, as relevant. No title to or other ownership interest in
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CONFIDENTIAL TREATMENT REQUESTED
the Confidential Information is transferred except as specifically stated in the Amendment, and the Receiving Party hereby expressly disclaims any such rights or interests.
The Receiving Party hereby acknowledges and recognises that Confidential Information is protected by copyright Laws and related international treaty provisions, as the case may be.
4.5 | For the sake of clarity, and for the purpose of this Clause 4 and this Amendment, any of the receiving Partys Affiliates and their Subcontractors shall not be considered as third party and shall be entitled to have access to any Confidential Information disclosed by the disclosing Party in connection with this Amendment. |
4.6 | This Clause 4 shall survive termination or expiry of this Amendment for a period of five (5) years following such End Date. |
5. GOVERNING LAW - ARBITRATION
5.1 | Governing law: |
Pursuant to and in accordance with Section 5-1401 of the New York General Obligations Law, the Parties hereto agree that this Amendment in all respects, and any claim or cause of action based upon or arising out of this Amendment, or any dealing between the Parties relating to the subject matter of this Amendment or the transactions contemplated hereby or the Company/Repairer relationship being established, shall be governed by, and construed in accordance with, the laws of the State of New York, U.S.A. as applied to contracts to be performed wholly within the State of New York (Exclusive of Section 7-101 of the New York General Obligations Law which is inapplicable to this Amendment).
5.2 | Arbitration: in the event of a dispute arising out of or relating to this Amendment, including without limitation disputes regarding the existence, validity or termination of this Amendment (a Dispute), either Party may notify such Dispute to the other through service of a written notice (the Notice of Dispute). The Parties shall make their reasonable endeavours to settle the Dispute amicably by a committee composed of one (1) management representative of each Party (the Representatives). Such committee shall be created by the Parties within [*****] from the date of receipt of the Notice of Dispute. |
5.2.1 | Subject to sub-Clause 5.2.5 below and in the event the Representatives (i) fail to create such committee or (ii) do not agree on an amicable settlement within [*****] from the date the committee referred to in this sub-Clause 5.2 has been created or such longer period as may be agreed upon in writing by the Representatives (the Amicable Settlement Period), the Dispute shall be exclusively and finally settled under the Rules and Conciliation of Arbitration of the International Chamber of Commerce (the ICC) by an arbitral tribunal composed of three (3) arbitrators; each Party shall then appoint one (1) arbitrator within [*****]from the last day of the Amicable Settlement Period and the third arbitrator, who will act as President, will be appointed by the other two (2) arbitrators. In case the two (2) arbitrators appointed by the Parties do not agree on this choice with [*****] from the date the last arbitrator is appointed, the third arbitrator will be appointed by the ICC Court. |
5.2.2 | The arbitration, and any proceedings, and meetings incidental to or related to the arbitration process, shall take place in New York, U.S.A, and the language to be used in the arbitral proceedings shall be English; arbitral award shall be final and binding upon the Parties. |
5.2.3 | The arbitration shall be kept confidential and the existence of the proceeding and any element of it shall not be disclosed to any third party. Any information relating to and/or documents generated for the purpose of or produced in the arbitration, including any awards, shall remain confidential |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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between the Parties, the arbitrators and any other Person involved in the arbitration proceedings, except to the extent that disclosure may be required pursuant to any order of court or other competent authority or tribunal, or to protect or pursue a legal rights or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority.
5.2.4 | During any period of negotiation or arbitration, the Parties shall continue to meet their respective obligations in accordance with the provisions of the Amendment. |
5.2.5 | Notwithstanding any provision of this Clause 5.2 the Parties may, at any time, seek and decide to settle a Dispute either through direct negotiations or in accordance with the ICC rules in respect of the alternative dispute resolution. |
5.3 | Judgment upon any award may be entered in any court having jurisdiction or application may be made to the court for a judicial recognition of the award or an order of enforcement, as the case may be. |
5.4 | Recourse to jurisdictions is expressly excluded except as provided for in the ICC Rules of Conciliation and Arbitration concerning Conservatory and Interim measures. |
6. | MISCELLANEOUS |
6.1 | This Amendment contains the entire agreement between the Parties regarding the subject-matter and shall supersede any previous understandings, commitments and/or representations whatsoever oral or written. |
6.2 | In case of any inconsistency between the terms of the GMA and this Amendment regarding the subject-matter, the latter shall prevail. |
To the extent not inconsistent with this Amendment, all terms and conditions of the GMA shall remain valid and binding.
6.3 | This Amendment shall not be varied or modified except by a written document duly signed by duly authorized representatives of both Parties. |
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IN WITNESS WHEREOF, the duly authorized representatives of the Parties hereto have agreed to execute this Amendment in two (2) original copies in the English language.
On behalf of: /s/ Renato Covelo
|
On behalf of:
| |||||
AZUL LINHAS AÉREAS BRASILEIRAS S/A (the Company)
|
AVIONS DE TRANSPORT REGIONAL (the Repairer)
| |||||
Signed by: Renato Covelo |
Signed by: | M. Castoriwa | ||||
Function: Attorney In Fact |
Function: | VP Commercial | ||||
Date: December 18th, 2015 |
Date: | January 6th, 2016 |
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CONFIDENTIAL TREATMENT REQUESTED
Exhibit 10.4
CONFIDENTIAL TREATMENT REQUESTED REDACTED COPY Confidential
Treatment has been requested for portions of this Exhibit. Confidential portions of this
Exhibit are designated by [*****]. A complete version of this Exhibit has
been filed separately with the Securities and Exchange Commission.
GE Aviation |
General
Terms
Agreement
No. GE-1-1190636254
PROPRIETARY INFORMATION NOTICE The information contained in this document is GE Proprietary Information and is disclosed in confidence. It is the property of GE and shall not be used, disclosed to others, or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document shall appear on any such reproduction. Export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Execution version
GENERAL TERMS AGREEMENT NO. GE-I-1190636254
Table of Contents
● | Agreement | |||||
SECTION I DEFINITIONS | ||||||
SECTION II TERMS & CONDITIONS | ||||||
ARTICLE 1 | | PRODUCTS | ||||
ARTICLE 2 | | PRODUCT PRICES | ||||
ARTICLE 3 | | PRODUCT ORDER PLACEMENT | ||||
ARTICLE 4 | | DELIVERY, TITLE, TRANSPORTATION, RISK OF LOSS, PACKAGING OF GE PRODUCTS | ||||
ARTICLE 5 | | PAYMENT FOR PRODUCTS | ||||
ARTICLE 6 | | GENERAL | ||||
ARTICLE 7 | | TAXES AND DUTIES | ||||
ARTICLE 8 | | WARRANTIES AND PRODUCT SUPPORT PLAN | ||||
ARTICLE 9 | | EXCUSABLE DELAY | ||||
ARTICLE 10 | | PATENTS | ||||
ARTICLE 11 | | DATA | ||||
ARTICLE 12 | | LIMITATION OF LIABILITY | ||||
ARTICLE 13 | | GOVERNMENT AUTHORIZATION, EXPORT SHIPMENT | ||||
ARTICLE 14 | | PERSONAL DATA PROTECTION | ||||
ARTICLE 15 | | NOTICES | ||||
ARTICLE 16 | | MISCELLANEOUS | ||||
● | Exhibit A Engine Warranty Plan | |||||
SECTION I | | WARRANTIES | ||||
SECTION II | | GENERAL CONDITION | ||||
● | Exhibit B Product Support Plan | |||||
SECTION I | | SPARE PARTS PROVISIONING | ||||
SECTION II | | TECHNICAL PUBLICATIONS AND DATA | ||||
SECTION III | | TECHNICAL TRAINING | ||||
SECTION IV | | CUSTOMER SUPPORT AND SERVICE | ||||
SECTION V | | ENGINEERING SUPPORT | ||||
SECTION VI | | PERFORMANCE TREND MONITORING | ||||
SECTION VII | | GENERAL CONDITIONS PRODUCT SUPPORT PLAN | ||||
● |
Exhibit C Payment Terms | |||||
● |
Exhibit D Standard Diagnostics Services |
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GENERAL TERMS AGREEMENT NO. GE-I-1190636254
THIS GENERAL TERMS AGREEMENT NO. [GE-1-1190636254] (hereinafter referred to as this Agreement), dated as of the 25th day of September, 2008, by and between General Electric Company, a corporation organized under the law of the State of New York, U.S.A., (including its successors and assigns), acting through its GE-Aviation business unit located in Evendale, Ohio, U.S.A. (hereinafter referred to as GE), GE Engine Services Distribution, LLC, a Delaware limited liability company having its principal office at One Neumann Way MD 111, Cincinnati, Ohio 45215 (hereinafter referred to as GE-LLC) and Canela Investments LLC, a limited liability company organized under the law of Delaware (hereinafter referred to as Airline). GE, GE-LLC and Airline are also referred to in this Agreement as the Parties or individually as a Party.
WITNESSETH
WHEREAS, Airline has acquired, or is in the process of acquiring a certain number of aircraft equipped with installed GE Engines, and
WHEREAS, GE, GE-LLC and Airline desire to enter into this Agreement to establish the terms and conditions governing the sale by GE and GE-LLC and the purchase by Airline of spare Engines, related equipment and spare parts therefor and the Product Services to be supplied by GE in support of such installed and spare Engines for use by Airline with respect to its commercial passenger operation purposes (Activities), and
FURTHER, GE acknowledges that GE-LLC is a 100% owned subsidiary of GE.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the respective Parties hereto agree as follows to the respective Sections of this Agreement. Capitalized terms used herein that are otherwise undefined shall have the meanings ascribed to them in Section I (Definitions), unless the context requires otherwise.
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GENERAL TERMS AGREEMENT NO. GE-I-1190636254
SECTION I - DEFINITIONS
These definitions shall apply for all purposes of this Agreement unless the context otherwise requires.
Aircraft means the aircraft on which the Erigine(s) listed in the applicable letter agreement to this Agreement is (are) installed.
Agreement means this General Terms Agreement (together with all exhibits, and specific transaction agreements (Letter Agreements) and attachments) between GE and Airline.
Airworthiness Directive means a requirement for the inspection, repair or modification of the Engine or any portion thereof as issued by the Federal Aviation Administration of the United States Department of Transportation (FAA).
ANAC shall mean the Agéncia Nacional de Aviação Civil, the Brazilian Airworthiness Authority or any successor thereto.
ATA means the Air Transport Association of America.
Data means all information and data of any type, form or nature (including, but not limited to, designs, drawings, blueprints, tracings, plans, models, layouts, software, specifications, technical publications, electronic transmittals, customer website data and memoranda) which may be furnished or made available to Airline by GE or GE-LLC, directly or indirectly, as the result of this Agreement, excluding information or data that is in the public domain in Airlines possession prior to being furnished by GE or GE-LLC, furnished to Airline by a third party not associated with GE or GE-LLC or independently developed by Airline.
Engine means the FAA certified Engine(s) described in the applicable letter agreement(s) to this Agreement or covered under this Agreement pursuant to Article 8 hereof.
Expendable Parts means those parts which must routinely be replaced during inspection, repair, or maintenance, whether or not such parts have been damaged, and other parts which are customarily replaced at each such Inspection and maintenance period such as filter inserts and other short-lived items which are not dependent on wear out but replaced at predetermined intervals.
Failed Parts means those Parts and Expendable Parts suffering a Failure, including Parts suffering Resultant Damage.
Failure means the breakage of a Part, failure to function of a Part, or damage to a Part, rendering it not Serviceable and such breakage, failure or damage has been determined to the reasonable satisfaction of the Parties to be due to causes within GEs control, including, but not limited to, a defect in design. Failure shall also include any defect in material or workmanship.
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Failure does not include any such breakage, malfunction or damage that is due to normal wear and tear that can be restored by overhaul or repair.
Flight Cycle means the complete running of an Engine from start through any condition of flight and ending at Engine shutdown. A touch and go landing used during pilot training shall be considered as a Flight Cycle.
Flight Hours means the cumulative number of airborne hours in operation of each Engine computed from the time an aircraft leaves the ground until it touches the ground at the end of a flight.
Foreign Object Damage means any damage to the Engine caused by objects that are not part of the Engine and Engine optional equipment.
GE Products means spare Engines, related optional equipment, technical data, and other products offered from time to time, as may be offered for sale and/or provided by GE.
GE-LLC Products means spare Parts, Expendable Parts, Engine Modules, and other products offered from time to time, as may be offered for sale and/or provided by GE-LLC.
[*****]
Module means a major sub-assembly of any of the Engines described in the applicable letter agreements or covered under this Agreement pursuant to Article 8 hereof.
Part means only those FAA certified Engine and Engine Module Parts which have been sold originally to Airline by GE for commercial use. The term excludes parts that were furnished on new Engines and Modules but are procured directly from vendors. Such parts are covered by the vendor warranty and the GE Vendor Warranty Back Up. Also excluded are Expendable Parts and customary short-lived items such as igniters and filter inserts.
[*****]
Part Cycles means the total number of Flight Cycles accumulated by a Part.
Parts Repair means the GE recommended rework or restoration of Failed Parts to a Serviceable condition.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Part Time means the total number of Flight Hours accumulated by a Part.
Resultant Damage means the damage suffered by a Part in warranty because of a Failure of another Part or Expendable Part within the same engine, provided the Part or Expendable Part causing the damage was in warranty.
Serviceable when used to describe an Engine or Part, means in a airworthy condition within the limits defined in the applicable Engine manuals, specification and/or publications by the type certificate holder.
Scrapped Parts means those Parts determined by GE to be un-Serviceable and not repairable by virtue of reliability, performance or repair costs. Such Parts shall be considered as scrapped if they bear a scrap tag duly countersigned by a GE representative. Such Parts shall be destroyed and disposed of by Airline unless requested by GE for engineering analysis, in which event any handling and shipping shall be at GEs expense.
Spare Engine means an Engine acquired in support of Airlines fleet of Aircraft for use as a spare Engine when another Engine in such fleet is unavailable due to damage or is otherwise being repaired or serviced.
Ultimate Life of a Part means the approved limitation on use of a Part, in cumulative Flight Hours or Flight Cycles, which a U.S. government authority establishes as the maximum period of allowed operational time for such Parts in Airline service, with periodic repair and restoration.
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SECTION II - TERMS AND CONDITIONS
ARTICLE 1 - PRODUCTS
A. | Airline may purchase under the terms and subject to the conditions hereinafter set forth, Spare Engines, Engine Modules, spare Parts, related optional equipment, technical data and other products offered from time to time, as may be offered for sale by GE and GE-LLC (hereinafter referred to as Product(s)) in quantities and in configurations reasonably required to support Airlines Activities and the aircraft applications operated by Airline in connection therewith. |
B. | In order to assure that an adequate supply of GE Spare Engines are available to support the operating fleet of GE powered aircraft, GE reserves the option, for a limited period of time following the sale of Spare Engines to Airline, to repurchase Spare Engines which Airline proposes to utilize for other than its own operating purposes. |
Accordingly, if prior to the accumulation of [*****] Flight Hours on any Spare Engine sold hereunder, Airline elects to a) offer such Spare Engine for resale or b) undertake action to cause components or parts of such Spare Engine to be made available for sale, Airline shall give GE prompt advanced written notice of such determination (Airlines Notice). Promptly upon receipt of such notice, GE shall have the option to repurchase the Spare Engine from Airline (the GE Repurchase Option) at the lower of a) the [*****] less [*****] which, as agreed by the parties, shall be equal to [*****] or b) [*****]. If request by GE, an independent expert, jointly designated by GE and Airline, shall [*****]. GE shall give Airline notice of its decision to decline or to exercise such GE Repurchase Option within [*****] of its receipt of Airlines Notice. Fulfillment by GE of the GE Repurchase Option shall be conditional upon technical inspection, review and acceptance of the Spare Engine and its records by GE and the execution of a mutually acceptable purchase agreement. For the avoidance of doubt, such GE Repurchase Option shall not apply to any sale of a Spare Engine intended to secure sale/leaseback financing in connection with the initial purchase of such Spare Engine or to the leasing of an Engine to a third party.
ARTICLE 2 - PRODUCT PRICES
A. | In General. The selling price of GE-LLC or GE Products will be the respective prices which are quoted in GE-LLCs Spare Parts Price Catalog, as revised from time to time (the Spare Parts Catalog or Catalog) or in GEs written quotation or proposal from time to time and (ii) confirmed in a Letter Agreement with GE for the purchase of Spare Engines or in a purchase order placed by Airline and accepted by GE-LLC. GE shall quote such prices in |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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U.S. Dollars and Airline shall pay for GE-LLC or GE Products in U.S. Dollars. GE-LLC will advise Airline in writing [*****] in advance of any changes in prices affecting a significant portion of the prices in the Catalog. During such [*****] period, GE¬LLC shall not be obligated to accept Airline purchase orders for quantities of spare Parts in excess of up to [*****] of Airlines normal usage beyond the effective date of the announced price change. |
B. | Spare Engines. Spare Engine prices will be quoted as base prices, subject to escalation using the appropriate GE Engine escalation provisions then in effect. The appropriate GE escalation provisions will be set forth in each applicable letter agreement to this Agreement. No change to such escalation provisions will apply to Airline until GE provides Airline at least [*****] prior written notice. |
ARTICLE 3 - GE PRODUCT ORDER PLACEMENT
A. | The terms and conditions set forth herein are in lieu of all printed terms and conditions appearing on Airlines purchase orders. |
B. | Airline shall place purchase orders for GE or GE-LLC Products and GEs or GE-LLCs acknowledgment of each purchase order shall constitute acceptance thereof. Airlines execution of a Letter Agreement shall, for the purchase of Spare Engines, serve as Airlines purchase order for such Spare Engines and GEs receipt thereof. |
ARTICLE 4 - DELIVERY, TITLE, TRANSPORTATION, RISK OF LOSS, PACKAGING OF PRODUCTS
A. | Shipment of GE Products and GE-LLC Products shall be from [*****]. |
B. | Delivery of all GE Products and GE-LLC Products shall be as follows (hereinafter Delivery): |
(i) | For GE Products and GE-LLC Products shipped from the U.S. to a domestic U.S. destination, Delivery of such GE Products and GE-LLC Products shall be [*****] at [*****] described in Paragraph A of this Article; |
(ii) | For GE Products and GE-LLC Products shipped from the U.S. to a destination outside the U.S., Delivery of such GE Products and GE-LLC Products shall be to Airline at [*****]. Unless otherwise agreed, [*****] shall be responsible for exporting the GE Products and GE-LLC Products out of the U.S.; |
(iii) | For GE Products and GE-LLC Products shipped from a location outside the U.S., Delivery of such GE Products and GE-LLC Products shall be [*****] from [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****], title to GE Products and GE-LLC Products as well as risk of loss thereof or damage thereto shall pass to Airline. [*****] for all risk and expense in obtaining any required licenses and carrying out all customs formalities for the exportation and importation of goods in accordance with the Article titled Government Authorization of this Agreement.
C. | [*****] transportation of such GE and GE-LLC Products from the point of shipment described in Paragraph A of this Article until Delivery in accordance with Paragraph 8 of this Article. |
ARTICLE 5 - PAYMENT FOR PRODUCTS
Payment terms are set forth in the attached Exhibit C.
ARTICLE 6 - GENERAL
Solely for purposes of Articles 7-16 of the Agreement, the abbreviation Seller shall refer to both GE and GE-LLC since each entity will be subject to these terms. In addition, again solely for purposes of Articles 7-16 of the Agreement, the term Product(s) shall refer to both GE Product(s) and GE-LLC Product(s).
ARTICLE 7 - TAXES AND DUTIES
Unless otherwise specified in this Agreement, Seller shall be responsible for and pay directly all corporate and individual taxes measured by net income or profit imposed by any governmental authority on Seller, its employees or subcontractors in any way connected with this Agreement (Seller taxes). Airline shall be responsible for and pay directly when due and payable all taxes, duties, fees, or other charges of any nature (including, but not limited to, ad valorem, consumption, excise, franchise, gross receipts, import, license, property, sales, stamp, storage, transfer, turnover, use, or value-added taxes, and any and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto), other than Seller taxes, imposed by any governmental authority on Seller or its employees or subcontractors in any way connected with this Agreement (Airline taxes). All payments due and payable to Seller by Airline under this Agreement shall be made without deduction or withholding for Airline taxes, except that if Airline shall be required by law to deduct or withhold any Airline taxes from or in respect of any amount payable by it to Seller hereunder, the amount payable by Airline shall be increased by such amount as may be necessary so that after making all required deductions or withholdings (including deductions or withholdings with respect to any additional amounts payable pursuant to this sentence), Seller receives the same amount that it would have received if no such deduction or withholding had been made. If Seller is nevertheless required to pay Airline taxes, Airline shall, promptly upon presentation of Sellers invoice for the Airline taxes, reimburse Seller for the Airline taxes. Airline shall provide to Seller on a timely basis accurate official receipts for deducted or withheld taxes. All rights to drawback of customs duties paid by Seller to the customs authorities of the country of manufacture of any products shall belong to Seller. Airline agrees to cooperate with Seller to obtain a drawback. 9
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ARTICLE 8 - WARRANTY AND PRODUCT SUPPORT PLAN
Applicable warranties are set forth in Exhibit A relating to all Engines or Parts, including Expendable Parts, either purchased by Airline directly from GE or GE-LLC or installed on Airlines Aircraft as original equipment. Product support activities are set forth in Exhibit B.
A. | All Products, when required by the U.S. Government, shall, at time of delivery: |
1. | Conform to a Type Certificate issued by the FAA. |
2. | Conform to applicable regulations issued by the FAA, provided such regulations are promulgated prior to the date of acceptance by Seller of the purchase order issued by Airline for such Products in accordance with this Agreement. |
ARTICLE 9 - EXCUSABLE DELAY
Seller shall not be liable or in breach of its obligations under this Agreement to the extent performance of such obligations is delayed or prevented, directly or indirectly, by causes beyond its reasonable control, including acts of God, fire, terrorism, war (declared or undeclared), severe weather conditions, earthquakes, epidemics, material shortages, insurrection, acts or omissions of Airline or Airlines suppliers or agents, any act or omission by any governmental authority, strikes, labor disputes, acts or threats of vandalism or terrorism (including disruption of technology resources), transportation shortages, or vendors failure to perform (each an Excusable Delay). The delivery or performance date shall be extended for a period equal [*****]. Seller shall use reasonable efforts to continue performance whenever such causes are removed. If Seller is delayed by any acts or omissions of Airline or Airlines other contractors or suppliers, Seller shall be entitled to an equitable adjustment in price and time for performance. In the event an excusable delay continues for a period of [*****] or more beyond the scheduled delivery or performance date, Airline or Seller may, upon [*****] written notice to the other, cancel the part of this Agreement so delayed, Seller shall return to Airline all payments relative to the canceled part of this Agreement and Airline shall pay Seller its reasonable cancellation charges in the event Airline elects to cancel the affected part of this Agreement.
ARTICLE 10 - PATENTS
A. | Seller shall handle all claims and defend any suit or proceeding brought against Airline insofar as based on a claim that any Product furnished under this Agreement, without any alteration or further combination, constitutes an infringement of any patent of the United States or of any patent of any other country that is signatory to Article 27 of the Convention on International Civil Aviation signed by the United States at Chicago on December 7, 1944, in which Airline is authorized to operate or in which another airline pursuant to lawful interchange, lease or similar arrangement, operates aircraft of Airline. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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B. | Sellers liability hereunder is conditioned upon Airline promptly notifying Seller in writing and giving Seller authority, information and assistance (at Sellers expense) for the defense of any suit or proceeding. In case such Product is held in such suit or proceeding to constitute infringement and the use of said Product is enjoined, Seller shall, at its own expense and at its option, either (1) procure for Airline the right to continue using such Product; (2) replace same with satisfactory and non-infringing Product; or (3) modify same so it becomes satisfactory and non-infringing Product. Seller shall not be responsible to Airline or to any third party, for incidental or consequential damage, including, but not limited to, costs, expenses, liabilities or loss of profits resulting from loss of use. |
C. | The remedies described in Paragraphs (A) and (B) above do not apply to any Product or Part (1) not purchased by Airline from Seller (except for Products or Parts installed as Original Equipment on aircraft owned, leased or operated by Airline); (2) that was changed, modified, or not used for its intended purpose; or (3) that was manufactured by Seller to Airlines unique specifications or directions. |
The obligations recited in this Article shall constitute the sole and exclusive liability of Seller for actual or alleged patent infringement.
ARTICLE 11 - DATA
A. | All Data is proprietary to and shall remain the property of Seller. All Data is provided to or disclosed to Airline in confidence, and shall neither (1) be used by Airline or be furnished by Airline to any other person, firm or corporation for the design or manufacture or repair of any products, articles, compositions of matter, or processes, nor (2) be permitted out of Airlines possession, or divulged to any other person, firm or corporation, nor (3) be used in the creation, manufacture, development, or derivation of any repairs, modifications, spare parts, designs or configuration changes, or to obtain FAA or any other government or regulatory approval of any of the foregoing. Data shall not be used for the maintenance, repair, or assessment of continued airworthiness of any products not supplied or covered under this Agreement. If GEs written consent is given for reproduction in whole or in part, any existing notice or legend shall appear in any such reproduction. Nothing in this Agreement shall preclude Airline from using such Data for the modification, overhaul, or maintenance work performed by Airline or by its contractors on Airlines Products; except that all repairs or repair processes that require substantiation (including, but not limited to, high technology repairs) will be the subject of a separate license and substantiated repair agreement between Seller and Airline. |
B. | Seller warrants that it either owns or will secure the right for Airline to use, as set forth in this Paragraph, software delivered as part of an Engine by Seller to Airline under this Agreement. Seller agrees to provide to Airline, as part of the delivered Engines, a copy of all software, in machine readable (object code) format, necessary solely for the operation of Engines provided under this Agreement. Seller will provide to Airline and Airline agrees to accept and execute all necessary license agreements, if any, that are required to memorialize such rights to use such software. Airline agrees that it shall have no rights to sublicense, |
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decompile or modify any software provided by Seller without the prior express written consent of the owner of such software. Airline shall be solely responsible for negotiating any licenses necessary to secure for Airline any additional rights in any software. |
ARTICLE 12 - LIMITATION OF LIABILITY
The liability of Seller to Airline arising out of, connected with, or resulting from the manufacture, sale, design, possession, use or handling of any Product or Parts thereof or therefor (including Engines installed on Airlines owned or leased aircraft as original equipment and engines obtained, acquired, leased or operated before or after the execution of this Agreement) or furnishing of services, whether in contract, warranty, tort (including, without limitation, negligence, but excluding willful misconduct or gross negligence) or otherwise, shall be as set forth in this Agreement or in Exhibit A or B or in the applicable letter agreements to the Agreement and [*****]. The foregoing shall constitute the sole remedy of Airline and the sole liability of Seller. In no event shall Seller be liable for incidental, punitive, special, indirect or consequential damages, including but not limited to, damage to, or loss of use, revenue or profit with respect to any aircraft, engine, or part thereof. THE WARRANTIES AND GUARANTEES SET FORTH IN EXHIBIT A AND ANY APPLICABLE LETTER AGREEMENTS ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND GUARANTEES WHETHER WRITTEN, STATUTORY, ORAL, OR IMPLIED (INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE).
For the purpose of this Article, the term Seller shall be deemed to include General Electric Company, its subsidiaries (including but not limited to GE Engine Services Distribution, LLC), assigns, subcontractors, suppliers, Product co-producers, and the respective directors, officers, employees, and agents of each.
ARTICLE 13 - GOVERNMENT AUTHORIZATION, EXPORT SHIPMENT
Airline shall be responsible for obtaining any required licenses or any other required governmental authorization and shall be responsible for complying with all U.S. and foreign government licensing and reporting requirements relating to the export of the Products. Airline shall restrict disclosure of all information and data furnished in connection with such authorization to the extent permitted by applicable law and shall ship the subject matter of the authorization to only those destinations that are authorized by the U.S. Government.
ARTICLE 14 - PERSONAL DATA PROTECTION
A. | Personal Data is any information relating to an identified or identifiable natural person or to any legal entity if such legal entity is subject to data protection legislation in their country of incorporation (Data Subject). |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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B. | Airline and Seller each agree that any Personal Data obtained from the other Party will be deemed Data of the other Party as defined in this Agreement whether or not the Personal Data is publicly available. |
C. | Airline and Seller each represent that in providing Personal Data to one another they will comply with all applicable laws and regulations, including but not limited to providing notices to or obtaining consents from the Data Subjects when required. |
D. | Steps shall be taken to implement and maintain physical, technical and organizational measures to ensure the security and confidentiality of Personal Data in order to prevent accidental, unauthorized or unlawful access, use, modification, disclosure, loss or destruction of Personal Data. The security measures taken shall be in compliance with applicable data protection laws and shall be adapted to the risks represented by the processing and the nature of the personal data to be collected and/or stored. |
ARTICLE 15 - NOTICES
Any notices under this Agreement shall become effective upon receipt and shall be in writing and be delivered or sent by mail, courier service, personal service or fax to the respective parties at the following addresses, which may be changed by written notice:
If to: | If to: | General Electric Company | ||||
GE-Aviation | ||||||
One Neumann Way, M.D. | ||||||
Cincinnati, Ohio 45215-1988 USA | ||||||
Attn: | Attn: | Customer Support Manager | ||||
Facsimile Number: | Facsimile Number: | |||||
Telephone Number: | Telephone Number: | |||||
If to: | GE Engine Services Distribution, LLC | |||||
One Neumann Way, MD 111 | ||||||
Cincinnati, OH 45215-6301 | ||||||
Attn: | President | |||||
Facsimile Number: (513) 552-2144 | ||||||
Telephone Number: (513) 552-2278 |
Notices will be effective and will be deemed to have been given to (or received by) the recipient: (A) upon delivery, if sent by courier, express mail, or delivered personally; (B) on the next business day following receipt, if sent by facsimile; or (C) on the fifth (5th) day after posting (or on actual receipt, if earlier) in the case of a letter sent prepaid first class mail.
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ARTICLE 16 - MISCELLANEOUS
A. | Assignment of Agreement. This Agreement may not be assigned, in whole or in part, by any Party without the prior written consent of the other Parties; except, that, (i) Airlines consent shall not be required for the assignment by Seller of all or a portion of the Agreement to a subsidiary of Seller and (ii) Airline shall have the right, without the prior written consent of Seller, to assign this Agreement to Airlines parent or to one or more wholly-owned subsidiaries of Airlines parent, provided that each assignee shall assume all of the obligations of Airline under this Agreement and agree to become jointly and severally liable, as a Party to this Agreement, for performance of all of the obligations of Airline under this Agreement. Airline agrees that notwithstanding any such assignment, Airline will remain liable for the performance and obligations of Airline hereunder. Any assignment in violation of this Article shall be null, void and unenforceable |
B. | Applicable Law; Venue. All aspects of this Agreement and the obligations arising hereunder will be governed in accordance with the law of the State of New York, U.S.A.; except, that New York conflict of law rules will not apply if the result would be the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. |
C. | Entire Agreement; Modification. This Agreement contains the entire and only agreement between the parties, and it supersedes all pre-existing agreements between such parties, respecting the subject matter hereof; and any representation, promise or condition in connection therewith not incorporated herein shall not be binding upon either Party. No modification or termination of this Agreement or any of the provisions herein contained shall be binding upon the Party against whom enforcement of such modification or termination is sought, unless it is made in writing and signed on behalf of Seller and Airline by duly authorized executives. |
D. | Confidentiality of Information. This Agreement and letter agreements contain information specifically for Airline and Seller, and nothing herein contained shall be divulged by Airline or Seller to any third person, firm or corporation, without the prior written consent of the other Parties, which consent shall not be unreasonably withheld; except (i) that Airlines consent shall not be required for disclosure by Seller of this Agreement and letter agreements, and related information given by Airline to Seller, to an Engine program participant, joint venture participant, engineering service provider or consultant to Seller so as to enable Seller to perform its obligations under this Agreement or letter agreements or to build the Engine or to provide informational data; (ii) to the extent required by Government agencies, by law, or to enforce this Agreement; and (iii) to the extent necessary for disclosure to the Parties respective insurers, accountants or other professional advisors who must likewise agree to be bound by the provisions of this Article. In the event (i) or (iii) occur, suitable restrictive legends limiting further disclosure shall be applied. In the event the Agreement, or other Seller information or data is required to be disclosed by or filed with government agencies by law, or by court order, Airline shall notify Seller at least [*****] in advance of such disclosure or filing and shall cooperate fully with Seller in |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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seeking confidential treatment of sensitive terms of the Agreement or such information and data. |
E. | Duration of Agreement. This Agreement shall remain in full force and effect until (i) Airline ceases to operate at least [*****] powered by Engines set forth herein, or (ii) less than [*****] powered by such Engines are in commercial airline service, or (iii) the occurrence of a material breach of the obligations set forth in Article 11. Nothing herein shall affect the rights and obligations and limitations set forth in this Agreement as to Products ordered for delivery and work performed prior to termination of this Agreement. |
F. | Survival Of Certain Clauses. The rights and obligations of the Parties under the following Articles and related Exhibits shall survive the expiration, termination, completion or cancellation of this Agreement: |
Payment for Products
Taxes and Duties
Patents
Data
Limitation of Liability
Governmental Authorization, Export Shipment
Miscellaneous
G. | Language. This Agreement, orders, Data, notices, shipping invoices, correspondence and other writings furnished hereunder shall be in the English language. |
H. | Severability. The invalidity or un-enforceability of any part of this Agreement, or the invalidity of its application to a specific situation or circumstance, shall not effect the validity of the remainder of this Agreement, or its application to other situations or circumstances. In addition, if a part of this Agreement becomes invalid, the Parties will endeavor in good faith to reach agreement on a replacement provision that will reflect, as nearly as possible, the intent of the original provision. |
I. | Waiver. The waiver by any Party of any provision, condition, or requirement of this Agreement, shall not constitute a waiver of any subsequent obligation to comply with such provision, condition, or requirement. |
J. | Dispute Resolution. If any dispute arises relating to this Agreement, the Parties will endeavor to resolve the dispute amicably, including by designating senior managers who will meet and use commercially reasonable efforts to resolve any such dispute. If the Parties senior managers do not resolve the dispute within [*****] of first written request, either party may request that the dispute be settled and finally determined by binding arbitration, in accordance with the Commercial Arbitration Rules of the American Arbitration Association in New York, New York, by one or more arbitrators appointed in accordance with the AAA Rules. The arbitrator(s) will have no authority to award punitive damages, attorneys fees and related costs or any other damages not measured by the prevailing partys actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the Agreement and applicable law. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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GENERAL TERMS AGREEMENT NO. GE-I-1190636254
The award of the arbitrator(s) will be final, binding and non-appealable, and judgment may be entered thereon in any court of competent jurisdiction. All statements made or materials produced in connection with this dispute resolution process and arbitration are confidential and will not be disclosed to any third party except as required by law or subpoena. The Parties intend that the dispute resolution process set forth in this Article will be their exclusive remedy for any dispute arising under or relating to this Agreement or its subject matter. Either party may at any time, without inconsistency with this Article, seek from a court of competent jurisdiction any equitable, interim, or provisional relief to avoid irreparable harm or injury. This Article will not apply to and will not bar litigation regarding claims related to a partys proprietary or intellectual property rights, nor will this Article be construed to modify or displace the ability of the Parties to effectuate any termination contemplated in this Agreement. |
K. | Electronic Transactions. |
(i) | Seller may grant Airline access to and use of the GE Customer Web Center (CWC) and/or other GE Web sites (collectively, GE Sites). Airline agrees that such access and use shall be governed by the applicable GE Site Terms and Conditions, provided, however, that in the event of a conflict with the provisions of this Agreement, this Agreement shall govern. |
(ii) | Seller may permit Airline to place purchase orders for certain Products on the GE Sites by various electronic methods (Electronic POs). The Parties agree that such Electronic POs a) constitute legally valid, binding agreements; b) have the same force and effect as purchase orders placed in paper format signed by Airline in ink; and c) are subject to the terms and conditions hereof. |
(iii) | Seller may permit Airline to access certain technical Data through the CWC, including, but not limited to GE technical publications under the terms and conditions of this Agreement. Airline shall be responsible for contacting its FAA representative for guidelines on the use of such electronic technical data. |
(iv) | Airline represents and warrants that any employee or representative who places Electronic POs or accesses Data through the CWC is authorized by Airline to do so and has obtained a login name(s) and password(s) through the GE Site registration process. Seller shall be entitled to rely on the validity of a login name or password unless notified otherwise in writing by Airline. |
Counterparts: This Agreement may be signed by the Parties in separate counterparts, and any single counterpart or set of counterparts, when signed and delivered to the other Parties shall together constitute one and the same document and be an original Agreement for all purposes.
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GENERAL TERMS AGREEMENT NO. GE-I-1190636254
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and the year first above written.
CANELA INVESTMENTS LLC | GENERAL ELECTRIC COMPANY | |||||
By: /s/ Gerald B. Lee | By: /s/ Illegible | |||||
Typed Name: Gerald B. Lee | Typed Name: DOUGLAS J. IZARRA | |||||
Title: Managing Director | Title: GENERAL MANAGER SALES | |||||
Date: 9/25/08 | Date: 9-25-2008 | |||||
GE ENGINE SERVICES DISTRIBUTION, LLC | ||||||
By: /s/ Illegible | ||||||
Typed Name: DOUGLAS J. IZARRA | ||||||
Title: GENERAL MANAGER SALES | ||||||
Date: 9-25-2008 |
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EXHIBIT A
[*****] ENGINE WARRANTY PLAN
SECTION I - WARRANTIES
A. | New Engine Warranty |
1. | GE warrants each new Engine and Module against Failure for the initial [*****] Flight Hours as follows: |
a. | [*****] will be granted for any Failed Parts. |
b. | [*****] for disassembly, reassembly, test and Parts Repair of any new Engine part will be granted for replacement of Failed Parts. |
c. | Such [*****] will be: [*****] from new to [*****] Flight Hours and decreasing pro rata from [*****] at [*****] Flight Hours to [*****] at [*****] Flight Hours. |
2. | As an alternative to the above [*****], GE shall upon request of Airline: |
a. | Arrange to have Engines and Modules suffering Failure repaired per the terms of paragraph 1 above, at a facility designated by GE. |
B. | New Parts Warranty |
In addition to the warranty granted for new Engines and Modules GE warrants Parts as follows:
1. | During the first [*****] Flight Hours for such Parts GE will grant [*****] for repair labor for Failed Parts. |
2. | GE will grant a pro rata [*****] for Scrapped Parts decreasing from [*****] at [*****] Flight Hours Part Time to [*****] at the applicable hours designated in the applicable Engine Parts Table set forth in Attachment I to this Exhibit A. |
C. | Ultimate Life Warranty |
1. | GE warrants Ultimate Life limits on a Part for which a FAA imposed Ultimate Life limitation is published. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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2. | GE will grant a pro rata [*****] of [*****] when new, decreasing pro rata from [*****] when new to [*****] at [*****] Flight Cycles and [*****] when new to [*****] Flight Cycles for HPT Components if the Engine is the [*****]. Credit will be granted only when such Parts are permanently removed from service by a U.S. Government or ANAC imposed Ultimate Life Limitation of less than [*****] Flight Cycles or [*****] Flight Cycles for HPT Components if the Engine is the [*****]. Credit will not be granted under this Ultimate Life Warranty for any individual Failure or other cause not related to the total usage capability of all such Parts in Airline service. |
D. | Campaign Change Warranty |
1. | A campaign change will be declared by GE when a new Part design introduction, Part modification, Part Inspection, or premature replacement of an Engine or Module is required by a time compliance GE Service Bulletin implementing an Airworthiness Directive. GE will grant the following [*****]: |
(i) | [*****] for Parts in inventory or removed from service when new or with [*****] Flight Hours or less total Part Time. |
(ii) [*****] | for Parts in inventory or removed from service with over [*****] Flight Hours since new, regardless of warranty status. |
2. | [*****] GE will grant [*****] for disassembly, reassembly, modification, testing, or Inspection of GE-supplied Engines, Modules or Parts therefor when such action is required to comply with a mandatory time compliance GE Service Bulletin implementing an Airworthiness Directive implementing an Airworthiness Directive. |
3. | Life controlled Parts which are set forth in the Ultimate Life Warranty and which are retired by Ultimate Life limits including FAA Airworthiness Directive, are [*****] from Campaign Change Warranty. |
E. | Warranty Pass-On |
If requested by Airline and consented to by GE in writing, which consent will not be unreasonably withheld, GE will permit assignment of the warranty support for Engines sold by Airline to commercial Airline operators, or to other aircraft operators. Such warranty support will be limited to Engines or Parts which were purchased under this Agreement or to initially installed Engines purchased by Airline from the Aircraft manufacturer and apply to the unexpired portion of the New Engine Warranty, New Parts Warranty, Ultimate Life Warranty, Campaign Change Warranty, Vendor Back-Up Warranty, and Vendor Interface Warranty (collectively, the Engine Warranties), and will require such operator(s) to agree
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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in writing to be bound by and comply with all the terms and conditions, including the limitations, applicable to the Engine Warranties.
Sellers consent shall not be required for the assignment by Airline to one or more financing institutions of Airlines rights to the Engine Warranties, each such assignment made in respect to Airlines initial financing of one or more new Aircraft or spare Engine(s), as the case may be. In exercising any rights under such Engine Warranties, such assignee shall be conclusively deemed to have accepted the applicable terms and conditions of this GTA, including the limitations, applicable to the Engine Warranties. The exercise by such assignee of any rights to the Engine Warranties shall not release Airline from any of its duties or obligations to Seller under this GTA except to the extent of actual performance by the assignee. Sellers liability to either or both Airline and its assignee shall not be increased, duplicated or multiplied in any way by reason of such assignment. Airline shall provide the assignee an extracted copy of the terms and conditions of this GTA (including a copy of this paragraph) applicable to the Engines Warranties. Sellers consent to the assignment under the foregoing terms shall be deemed fulfilled, without further action by the Seller, upon receipt by Seller of Airlines written notice identifying the assignee of the Engine Warranties.
F. | Vendor Back-Up Warranty |
1. | GE controls and accessories vendors provide a warranty on their products used on GE Engines. This warranty applies to controls and accessories sold to GE for delivery on installed or spare Engines and controls and accessories sold by the vendor to Airline on a direct purchase basis. In the event the controls and accessories suffer a failure during the vendors warranty period, Airline will submit a claim directly to the vendor in accordance with the terms and conditions of the vendors warranty. |
2. | In the event a controls and accessories vendor fails to provide a warranty at least as favorable as the GE New Engine Warranty (for complete controls and accessories) or New Parts Warranty (for components thereof), or if provided, rejects a proper claim from Airline, GE will intercede on behalf of Airline to resolve the claim with the vendor. In the event GE is unable to resolve a proper claim with the vendor, GE will honor a claim from Airline under the provisions and subject to the limitations of GEs New Engine or New Parts Warranty, as applicable. Settlements under Vendor Back-Up Warranty will exclude credits for resultant damage to or from controls and accessories procured directly by Airline from vendors. |
G. | Vendor Interface Warranty |
Should any control or accessory, for which GE is responsible, develop a problem due to its environment or interface with other controls and accessories or with an Engine, Module or equipment supplied by the aircraft manufacturer, GE will be responsible for initiating corrective action. If the vendor disclaims warranty responsibility for Parts requiring
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replacement, GE will apply the provisions of its New Parts Warranty to such Part whether it was purchased originally from GE or directly from the vendor.
H. | THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, STATUTORY, ORAL, OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE). |
SECTION II - GENERAL CONDITIONS
A. | Airline will maintain adequate operational and maintenance records and make these available for GE inspection. |
B. | GE will deny a claim under any of the Warranty provisions, and the Warranty provisions will not apply if: |
(1) | such claim resulted from the subject Engine, Module or any Parts thereof: |
| Not being properly installed or maintained in accordance with GE recommendations; or |
| Being operated contrary to applicable GE recommendations as contained in its Manuals, Bulletins, or other written instructions effective at the time; or |
| Being repaired or altered in such a way as to impair its safety of operation or efficiency; or |
| Being subjected to misuse, neglect or accident; or |
| Being subjected to Foreign Object Damage; or |
| Being subjected to any other defect or cause (whether sole or contributory) not within the control of GE; or |
| Not incorporating all mandatory service bulletins related to the cause or failure. |
C. | The express provisions herein set forth the maximum liability of GE with respect to all claims of any kind under this Exhibit A, including, without limitation, contracts, warranty, tort and negligence arising out of the manufacture, design, sale, possession, use or handling of the Products (including Engines installed on Airlines owned or leased aircraft as original equipment and engines obtained, acquired, leased or operated before or after the execution of this Agreement) or Parts thereof or therefor, and [*****] GEs liability to Airline [*****] of the Engine, service or other thing giving rise to Airlines claim. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
In no event shall GE be liable for incidental, special, punitive or consequential damages. For the purpose of this Section II, the term GE shall be deemed to include the General Electric Company, its subsidiaries, assigns, subcontractors, suppliers, Product co-producers, and the respective directors, officers, employees, and agents of each. If Airlines uses non-GE Parts or non- GE approved repairs and such parts or repairs cause personal injury, |
death or property damage to third parties, Airline shall indemnify and hold harmless GE from all claims and liabilities connected therewith. This indemnification shall survive termination of this Agreement.
D. | Airline shall apprise GE of any Failure within [*****] after the discovery of such Failure in order to make a claim under a Warranty with respect to such Failure. Such notice shall include a delineation of all other products or parts not supplied by GE which have been incorporated into the Engine that may have contributed to the Failure or that are involved with the operation of the module in which the Failure occurred. Any Part for which a [*****] is requested by Airline shall be returned to GE upon specific request by GE and must be accompanied by sufficient information to identify the Part and the reason for its return. In such event, upon return to GE, such Part shall become the property of GE unless GE directs otherwise. Transportation expenses shall be borne by GE. |
E. | The warranty applicable to a replacement Part provided under the terms of the New Engine Warranty or New Parts Warranty shall be the same as the warranty on the original Part. The unexpired portion of the applicable warranty will apply to Parts repaired under the terms of such warranty. |
F. | Airline will cooperate with GE in the development of Engine operating practices, repair procedures, and the like with the objective of improving Engine operating costs. |
G. | If compensation becomes available to Airline under more than one warranty or other Engine program consideration, Airline [*****] receive [*****] compensation but will receive the [*****] to Airline under [*****] warranty or other program consideration. |
H. | Any repair which is performed without the prior authorization of GE will not be covered by the applicable warranty. |
I. | Should Airline elect to have a Part repaired under Section I.A.2, transportation to and from repair facilities shall be paid by Airline; provided however, if Airline made such election due to a long lead time for such Part such that requesting repair of the Part would better fulfill Airlines immediate need, transportation to and from repair facilities shall be shared equally between GE and Airline. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ATTACHMENT I
Parts Time (Hours) |
||||
[*****] [*****] | ||||
Fan Rotor/Booster |
||||
Disk, Spool |
[*****] | |||
Shaft |
[*****] | |||
Spinner |
[*****] | |||
Fan Frame |
||||
Casings |
[*****] | |||
Hub & Struts |
[*****] | |||
Fairings |
[*****] | |||
Splitter |
[*****] | |||
Mount |
[*****] | |||
#1 and #2 Bearing Support |
||||
Bearings |
[*****] | |||
Support |
[*****] | |||
Inlet Gearbox and #3 BRG |
||||
Bearings |
[*****] | |||
Gear |
[*****] | |||
Case |
[*****] | |||
Compressor Rotor |
||||
Disk and Spools |
[*****] | |||
Shaft |
[*****] | |||
Compressor Stator |
||||
Casings |
[*****] | |||
Variable Stator Actuating Rings |
[*****] | |||
Shrouds |
[*****] | |||
Combustor Diffuser Nozzle (CDN) |
||||
Casings |
[*****] | |||
Combustor Liners |
[*****] | |||
Fuel Atomizer |
[*****] | |||
HPT Nozzle Support |
[*****] | |||
HPT Rotor |
||||
Disk |
[*****] | |||
Forward Seal |
[*****] | |||
Shaft |
[*****] | |||
Retaining Ring |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Parts Time (Hours) | ||||
|
[*****] [*****] |
| ||
LP Turbine |
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Casing |
[*****] | |||
Vane Assembles |
[*****] | |||
Interstage Seals |
[*****] | |||
Disks |
[*****] | |||
Shaft |
[*****] | |||
Bearings |
[*****] | |||
Turbine Frame |
||||
Casings and Struts |
[*****] | |||
Hub |
[*****] | |||
Sump |
[*****] | |||
Mount |
[*****] | |||
Accessory and Drive Gearboxes |
||||
Case |
[*****] | |||
Shafts |
[*****] | |||
Gears |
[*****] | |||
Bearings |
[*****] |
* Warranty Parts List may change
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT B
PRODUCT SUPPORT PLAN
SECTION I - SPARE PARTS PROVISIONING
A. | Provisioning Data |
1. | In connection with Airlines initial provisioning of spare Parts, GE or GE-LLC shall furnish Airline with data in accordance with ATA Specification 2000 using a revision mutually agreed to in writing by GE and Airline. |
B. | Return Of Parts |
Airline shall have the right to return to GE-LLC, at GE-LLCs expense, any new or unused Part which has been shipped in excess of the quantity ordered or which is not the part number ordered or which is in a discrepant condition except for damage in transit.
C. | Parts Buy-Back |
Within the first [*****] after delivery of the [*****] aircraft to Airline, GE-LLC will agree (i) to repurchase at the invoiced price, any initially provisioned spare Parts purchased from GE-LLC which GE-LLC recommended that Airline purchase, in the event Airline finds such Parts to be surplus to Airlines needs; or (ii) to exchange with Airline the equivalent value thereof in other spare Parts. Such Parts must be new and unused, in original GE packaging, and shall meet GE inspection requirements. Parts which become surplus to Airlines needs by reason of Airlines decision to upgrade or dispose of Products are excluded from this provision unless such upgrade was done at GEs suggestion to address the reliability of Parts already purchased by Airline. Shipping costs for Parts returned will be [*****].
D. | Parts of Modified Design |
1. | GE-LLC shall have the right to make modifications to design or changes in the spare Parts sold to Airline hereunder. |
2. | GE-LLC will from time to time inform Airline in accordance with the means set forth in ATA Specification 2000, when such spare Parts of modified design become available for shipment hereunder. |
3. | Spare Parts of the modified design will be supplied unless Airline advises GE-LLC in writing of its contrary desire within [*****] of the issuance of the Service Bulletin specifying the change to the modified Parts. In such event, Airline may |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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negotiate for the continued supply of spare Parts of the pre-modified design at a rate of delivery and price to be agreed upon. |
E. | Spare Parts Availability |
1. | GE-LLC will maintain a stock of spare Parts to cover Airlines emergency needs. For purposes of this Paragraph, emergency is understood by GE-LLC and Airline to mean the occurrence of any one of the following conditions: |
AOG |
| Aircraft on Ground | ||||
Critical |
| Imminent AOG or Work Stoppage | ||||
Expedite |
| Less than Normal Lead Time |
Airline will order spare Parts according to lead time as provided in Paragraph 1. above, but should Airlines spare Parts requirements arise as a result of an emergency, Airline can draw such spare Parts from GE-LLCs stock. A 24-hour Customer Response Center is available to Airline for this purpose. If an emergency does exist, GE-LLC will use its best efforts to ship required spare Part(s) within the time period set forth below following receipt of an acceptable purchase order from Airline:
AOG |
| [*****] | ||||
Critical |
| [*****] | ||||
Expedite |
| [*****] |
Should Airline execute a long-term exclusive service agreement with GE Engine Services, Inc. then GE will make all reasonable efforts to have Airlines spare Parts orders fulfilled by GE Celma so to improve the response times listed above.
Airline shall provide GE with spare Parts provisioning forecasts, updated at least [*****], specifying projected requirements to cover at least the following [*****] period. Airline agrees to promptly notify GE in the event the Airline will not achieve such projected requirements. If Airline does not supply such forecast provisioning then GE may modify the spare Part lead time currently defined in the Spare Parts Catalog.
SECTION II - TECHNICAL PUBLICATIONS AND DATA
GE will furnish, [*****], technical manuals, including revisions thereof, to Airline. Technical manuals shall be furnished by GE to Airline in mutually agreed upon quantities. All technical manuals provided by GE shall be in the English language and in accordance with mutually agreed upon provisions of the ATA Specification.
SECTION III - TECHNICAL TRAINING
A. | Introduction |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
GE shall make technical training available to Airline, at GEs designated facilities. Details on scope, quantity, materials, and planning shall be as mutually agreed.
B. | Scope |
The training furnished under this Agreement shall be as follows:
| Product as previously defined in this Agreement. |
| Quantity [*****] to Airline for [*****] to Airline for each additional aircraft. |
| Courses detailed in training catalog (www.geae.com/training). |
* [*****]
The Customer Support Manager, in conjunction with appropriate GE Training representatives, will be available to conduct a review session with Airline to schedule required training. To assure training availability, such review shall be conducted [*****] prior to the delivery date of the [*****] aircraft.
C. | Training Location |
Unless arranged otherwise with GE concurrence, training shall be provided by GE in English at one or more of the GE designated facilities identified in the training catalog.
If an alternate site is desired, GE will furnish a quotation with following minimum conditions that must be met in order to deliver equivalent training at the alternate site.
1. | Airline will be responsible for providing acceptable classroom space and equipment including engines, special tools, and hand tools required to conduct the training. |
2. | Airline will pay GEs travel and living charges for each GE instructor for each day, or fraction thereof, such instructor is away from GEs designated facility, including travel time. |
3. | Airline will pay for round-trip transportation for GEs instructors and shipment of training materials between the designated facility and such alternate training site. |
Should Airline execute a long-term exclusive service agreement with GE Engine Services, Inc. then GE will make all reasonable efforts to conduct as much training as feasible at the GE Celma facility located in Brazil.
D. | Airline Responsibility |
During engine maintenance training at any of the GE designated facilities, Airline shall be responsible for any expenses of Airlines trainees such as:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
| Air and ground transportation expenses |
| Lodging (hotel accommodations) |
| Meals |
| All Medical physicians, medication, emergencies, etc. |
| Other various and sundry expenses (visits to other businesses, entertainment, etc.). |
Airline will be responsible for shipping costs of training materials in all cases.
SECTION IV - CUSTOMER SUPPORT AND SERVICE
A. | Customer Support Manager |
GE shall assign to Airline [*****], a Customer Support Manager located at GEs factory to provide and coordinate appropriate liaison between the Airline and GEs factory personnel.
B. | Field Support |
GE shall make available to Airline, [*****], field service representation at Airlines facility. GE will provide the level of representation required to ensure that GE is able to expeditiously and accurately deliver data that is required to resolve technical issues.
GE will also assist with the introduction of new aircraft/Engines into Airlines fleet, resolution of unscheduled maintenance actions, product scrap approval, and rapid communication between Airlines maintenance base and GEs factory personnel. Throughout the operation of these Engines, the Customer Support Center (CSC) and the Customer Web Center (CWC) will augment support [*****].
SECTION V - ENGINEERING SUPPORT
GE shall make factory based engineering support available, [*****], to Airline, for typical powerplant issues.
SECTION VI - PERFORMANCE TREND MONITORING
GE will also provide the standard diagnostics services set forth in Exhibit D.
SECTION VII - GENERAL CONDITIONS PRODUCT SUPPORT PLAN
A. | All support provided by GE above, is provided to Airline exclusively for the maintenance and overhaul by Airline of Airlines Products provided that such Products are operated in the original Engine configuration, or in a modified Engine configuration which does not, directly or indirectly, affect such Products or in an Engine configuration that has been approved by GE. The support provided herein may not be utilized for any other purpose, or |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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assigned or otherwise transferred to any third party, without the written consent of GE, which consent may be exercised by GE in its sole discretion. Technical support for shops offering engine maintenance and overhaul services to third party customers is available from GE directly. |
B. | Airline will maintain adequate operational and maintenance records with respect to Products and make these available for GE inspection. |
C. | This Product Support Plan is subject to the provisions of the Article titled Limitation of Liability of the Agreement to which this Exhibit B is attached. |
D. | Airline will cooperate with GE in the development of Engine operating practices, repair procedures, and the like with the objective of improving Engine operating costs. |
E. | Except as provided in the Warranty Pass-On provisions in Paragraph E of Exhibit A of the Agreement to which this Exhibit B is attached and the assignment provisions in Article 16.A of this Agreement, this Product Support Plan applies only to the original purchaser of the Engine except that installed Engines supplied to Airline through the aircraft manufacturer shall be considered as original Airline purchases covered by this Product Support Plan. |
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EXHIBIT C
PAYMENT TERMS
A. | Airline shall make payment in United States Dollars and in immediately available funds. Payment will be effective upon receipt thereof. |
| For spare Engines and Modules: |
- | [*****] prior to a scheduled delivery date, GE shall render to Customer an invoice for [*****] of the base price (unescalated) which Customer shall pay within [*****] of the date of the invoice; and |
- | Payment of the balance, [*****] amount for price escalation to the month of scheduled delivery, if any, shall be made at [*****] of each item. |
- | Solely for administrative purposes (including shipping, export and taxation requirements), Customer shall have the right to place, and GE shall have the right to require, a purchase order reflecting the Customer commitment to purchase a Spare Engine or Module as contained in the applicable Letter Agreement. For avoidance of doubt, placement of such purchase order shall not affect the payment obligation of Customer specified above, or the shipment obligation of GE as set forth in the applicable Letter Agreement. |
| For special tools and test equipment, payment of the selling price shall be made at time of delivery thereof. |
| For spare Parts including Expendable Parts, payment shall be made [*****]. |
B. | All invoicing and payments (including payment details) hereunder shall be transmitted electronically to GEs bank account as notified by GE on its invoices. |
C. | If delivery hereunder is delayed by Airline, payment shall be made based on the delivery schedule set forth in the applicable Letter Agreement. |
D. | GE may establish different payment terms in the event Airline consistently fails to make payment according to the terms set forth above. |
E. | If Airline fails to make any of the foregoing payments when due, Airline will also pay to GE, without prejudice to any other rights available to GE under this Agreement, interest on any late payment, calculated from the payment due date to the date of actual remittance. Interest will be computed at [*****], but in no event will the rate of interest be greater than the highest rate then permitted under applicable law. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT D
STANDARD DIAGNOSTICS SERVICES
1. | DIAGNOSTICS SERVICE ELEMENTS |
A. | Diagnostics Services. GE shall provide the following services (hereinafter Services) to Airline in support of the Engines [*****] to the Airline: |
1. | Base Service Elements. |
a. | Engine condition data will be automatically processed by [*****] when received at the designated GE facility. GE will be responsible for operating and maintaining the [*****] and the necessary facilities. |
b. | Significant shifts in Engine condition data trends will be automatically detected and notice of said shifts (Alerts) will be sent to Airline via email. |
c. | Airline will be given access to web-based tools for reviewing Engine condition data, managing Alerts and assessing Engine health. |
d. | [*****] for Engine condition monitoring trend shift observation, including engineering review, analysis, and recommendations will be provided to Airline as required on a [*****] basis. |
2. | GE will identify a Service integration team leader to provide initial program set-up, and provide technical support necessary to assist the Airline in meeting Airline obligations specified in Article 2. |
3. | As a part of the above Services, GE shall review only the data and messages delivered by Airline in accordance with Section 2 needed to perform the Services. |
4. | GE and Airline agree that any information provided to Airline by GE for use in trending, performance analysis, troubleshooting, and managing operations are advisory only. |
2. | AIRLINES RESPONSIBILITY UNDER THE DIAGNOSTICS PROGRAM |
A. | Airline (or Airlines operator by delegation of this responsibility) shall: |
1. | Provide GE all information and records requested by GE that are reasonably necessary for GE to establish and provide the Service (including, but not limited to, avionics specifications, aircraft/engine maintenance history, engine configuration information, etc.). To the extent that such information and records are not owned by Airline, Airline represents and warrants that it has full authorization to disclose such information and records to GE and that GE has the right to use such information and records for all of the purposes that they are provided to GE by Airline, including fulfilling GEs obligations under this Agreement. |
2. | Make available to GE data used in the monitoring and diagnostics of Engines eligible for coverage. Airline will authorize Airlines air-to-ground service provider to forward the data directly to the [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
D-1 | ||||
GE PROPRIETARY INFORMATION | ||||
(subject to restrictions on cover page) |
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CONFIDENTIAL TREATMENT REQUESTED
If air-to-ground equipment is not available, GE will work with the Airline to establish means such that the data is provided with minimal manual intervention.
3. | Access the Service via the GE Extranet. A web browser, an internet service provider and a userid/password (supplied by GE) is required. Such access shall be subject to the then-current GE Extranet Terms and Condition as provided on the GE Extranet site. |
4. | It remains the sole responsibility of Airline to conclusively identify and resolve aircraft and Engine faults or adverse trends and make all maintenance decisions affecting Airline aircraft. GE and Airline agree that this allocation of responsibility is reflected in the price of the Service. |
B. | Airline acknowledges that the Services performed hereunder may be conducted by GE affiliates outside of the U.S., and that there is no prohibition on GEs export of Customer data for such purposes. |
3. | WARRANTY |
A. | GE warrants to Airline that technical information and/or data furnished pursuant to the Diagnostics Services shall conform, as of the time and date of delivery, to the information provided by Airline and used by GE. If any technical information and/or data furnished by GE hereunder does not meet this requirement and Airline so notifies GE within the time of performance hereunder, GE shall correct the discrepancy, at its cost, by providing corrected data. The above limited warranty does not extend to data received but not reviewed by GE. |
B. | It is understood that any information provided to Airline by GE for use in trending, performance analysis, troubleshooting, and managing operations is advisory only. Information contained in or generated by the Service represents an estimate based upon generally available fleet data or variable data furnished by Airline. |
C. | THE FOREGOING DIAGNOSTICS SERVICE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESSED, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.) |
4. | ASSIGNMENT |
Airline shall be permitted with GEs consent (not to be unreasonably withheld) to authorize a third party service provider to have access to [*****] for the sole purpose of managing the use of [*****] with regard to Airlines Engines on behalf of Airline, provided that, Airline and the third party service provider execute a Notice of Authorization and Agreement in a form to be provided by GE upon Airlines request, providing (1) written notice to GE of such authorization, and (2) the third party service providers agreement in writing to accept the terms and conditions of this Agreement as if the third party service provider was the Airline hereunder. System access by a third party service provider pursuant to such
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
D-2 | ||||
GE PROPRIETARY INFORMATION | ||||
(subject to restrictions on cover page) |
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authorization shall be limited to the features for data entry, plotting and configuration updates. In no event shall such third parties have access to other features of the system, including without limitation, real-time viewing, root-cause analysis, customized reporting or alarm configurations. In no event shall any such authorization by Airline and agreement by the third party service provider increase, duplicate or expand GEs obligations, liability or any available remedies hereunder.
D-3 | ||||
GE PROPRIETARY INFORMATION | ||||
(subject to restrictions on cover page) |
Execution version
Exhibit 10.5
CONFIDENTIAL TREATMENT REQUESTED REDACTED COPY
Confidential Treatment has been requested for portions of this Exhibit. Confidential
portions of this Exhibit are designated by [*****]. A complete version of this Exhibit has
been filed separately with the Securities and Exchange Commission.
OnPointsm Solutions
RATE PER ENGINE FLIGHT HOUR
ENGINE SERVICES AGREEMENT
BETWEEN
GE Engine Services, Inc. and GE Celma Ltda.
And
Azul Linhas Aereas Brasileiras S.A.
Agreement Number: 1-1373258434
Dated: September 25, 2009
This proposed Agreement will remain open until September 25, 2009 and will expire if not signed by all Parties on or before that date.
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, Inc. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Azul Agreement # 1-1373256434 | September 25, 2009 Proprietary Information Subject to Restrictions on Cover Page |
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CONFIDENTIAL TREATMENT REQUESTED
TABLE OF CONTENTS
TABLE OF CONTENTS |
2 | |||
ARTICLE 1 DEFINITIONS |
3 | |||
ARTICLE 2 TERM/ENGINES/SERVICES |
3 | |||
ARTICLE 3 RATE PER EFH SERVICES |
3 | |||
ARTICLE 4 SUPPLEMENTAL WORK |
6 | |||
ARTICLE 5 PRICING |
7 | |||
ARTICLE 6 INVOICING AND PAYMENT |
8 | |||
ARTICLE 7 FLEET MANAGEMENT |
10 | |||
ARTICLE 8 WARRANTY |
12 | |||
ARTICLE 9 DELIVERY/REDELIVERY |
13 | |||
ARTICLE 10 ADDITION OF ENGINES |
14 | |||
ARTICLE 11 REMOVAL OF ENGINES |
14 | |||
ARTICLE 12 TERMINATION |
15 | |||
ARTICLE 13 REPRESENTATIONS |
16 | |||
ARTICLE 14 GENERAL TERMS AND CONDITIONS |
17 | |||
EXHIBIT A: DEFINITIONS |
18 | |||
EXHIBIT B: ENGINES COVERED |
20 | |||
EXHIBIT C: RATE ADJUSTMENT |
22 | |||
EXHIBIT D: PRICE ADJUSTMENT MATRIX |
23 | |||
EXHIBIT E: SUPPLEMENTAL WORK PRICING |
24 | |||
EXHIBIT F: SUPPLEMENTAL WORK PRICING ANNUAL ADJUSTMENT |
25 | |||
EXHIBIT G: SUPPLEMENTAL WORK PRICING FIXED PRICE LABOR SCHEDULE |
26 | |||
EXHIBIT H: SUPPLEMENTAL ON-WING SUPPORT |
27 | |||
EXHIBIT I: LINE REPLACEABLE UNITS |
29 | |||
EXHIBIT J: GENERAL TERMS AND CONDITIONS |
30 | |||
EXHIBIT K: WARRANTY AND GUARANTY ASSIGNMENT LETTER |
35 | |||
EXHIBIT L: [*****] DISTRIBUTION SCHEDULE |
36 | |||
EXHIBIT M: OPTIONAL AIRCRAFT |
37 | |||
EXHIBIT N: LEASED AIRCRAFT |
39 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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OnPointsm Solutions Engine Services Agreement
THIS ENGINE SERVICES AGREEMENT is made and is effective as of September 25, 2009 (the Effective Date) by and between Azul Linhas Aereas Brasileiras S.A., having its principal place of business at Alameda Surubiju n° 2010, Alphaville Industrial, Barueri SP, CEP 06455-040, Brazil 0 Brazil (Customer) and GE Engine Services, Inc., having its principal place of business at One Neumann Way, Cincinnati, Ohio 45215 and GE Celma Ltda. (GE Celma), having its principal place of business at Rua Alice Herve 356, Petropolis, 25669-900, Brazil (jointly referred to as GE) (either a Party or collectively, the Parties).
ARTICLE 1 DEFINITIONS
Capitalized terms used in this Agreement and not otherwise defined have the meaning set forth in Exhibit A.
ARTICLE 2 TERM/ENGINES/SERVICES
2.1 Term. (Each Partys obligation to perform will commence upon September 25, 2009 (the Commencement Date) and such obligation will continue, unless sooner terminated, for a period of [*****] per engine for the current leased fleet listed in Exhibit B and [*****] per engine for the owned fleet from date of Engine delivery to customer, or [*****], whichever occurs first (the Term). Parties may renew or extend this Agreement upon mutual agreement prior to the end of the Initial Term.
2.2 Engines. The Engines covered by this Agreement are set forth on Exhibit B. During the term of this Agreement. GE shall [*****] of both Rate Per EFH and Supplemental Work Services for the Engines.
2.3 Services Provided. GE will provide Services to restore Engines to Serviceable condition in accordance with the Repair Specification, the Workscope and the terms of this Agreement.
2.4 Eligibility. New Engines are eligible for Rate Per EFH Services and Supplemental Work Services on the date of their delivery. Any Used Engines covered under this Agreement are eligible for Supplemental Services as of the Commencement Date and are eligible for Rate Per EFH Services either as of the date of the completion of a Qualifying Shop Visit (QSV) or, if GE has determined that a QSV is not necessary as of the Commencement Date.
ARTICLE 3 RATE PER EFH SERVICES
3.1 Covered Services. GE will provide the following Services (the Rate Per EFH Services) at a shop visit on a Rate Per EFH basis:
a. | Provide, either at a Repair Station. an approved subcontractor, or such other location as agreed by Customer and GE, all labor, materials and parts necessary to return an Engine to a Serviceable condition, in accordance with the Workscope and minimum build specifications including Engine test and boroscope when required. |
b. | Remove. inspect and reinstall, if Serviceable, [*****]. |
c. | Recommend. as appropriate, the replacement of a Delivered Engine with a Serviceable replacement Engine of like configuration and condition. If Customer agrees to such replacement, title to the removed Engine will vest with GE and title to the replacement Engine will vest with Customer, provided the terms of such replacement comply with any aircraft lease applicable to such replaced Engine. Customer will make its best commercial efforts to facilitate such title passage. |
d. | Inspect, repair and replace [*****]. |
e. | Repair GE [*****] identified in Exhibit I received with an Engine for a Rate Per EFH Shop Visit and which were installed on the Engine when it was removed from the aircraft for Services, as evidenced by records provided in accordance with Article 9. |
f. | Comply with Airworthiness Directives (AD) that are published as of the Commencement Date and ADs and [*****] that are required to be incorporated during the term of this Agreement. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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g. | Provide all labor, materials and parts necessary to return Engine to a Serviceable condition when an Engine or module requires Services for, or as a result of, [*****], to a maximum amount for each Engine of the [*****] of any insurance deductible covering such [*****] event or [*****]. |
h. | Services necessary on an Engine when [*****] is determined to be the sole cause of an event. |
i. | If an Engine is determined by GE to be BER, then such Engine shall either: |
(i) | be removed from the Agreement at the request of Customer pursuant to the terms of Article 11 hereof or |
(ii) | be replaced by GE with an engine of equivalent age and/or with equivalent hours and cycles to the BER engine. In the later case, if the BER Engine was eligible to receive Services under Article 3 except for meeting the definition of BER condition, then the replacement engine shall be provided [*****] by GE; if the BER Engine was not eligible to receive Services under Article 3 hereof, then Customer shall pay the fair market value of such replacement engine. |
j. | GE will provide inventory control for all Customer owned parts and material secured in a segregated area within the DRS facility. GE will provide inventory reports including usage and activity reports in an electronic format on a reasonable mutually agreed basis describing the contents and status of the Customer owned parts inventory. |
3.2 Rate Per EFH Shop Visit. Engines that require maintenance or repair that cannot be performed on-wing (as determined by Customer and GEs Customer Program Manager or delegate), will be eligible for a shop visit at which GE will provide Rate Per EFH Services (a Rate Per EFH Shop Visit) if the shop visit is necessary to:
a. | After troubleshooting by Customer in accordance with the Aircraft Maintenance Manual (AMM) and/or Fault Isolation Manual (FIM), correct a known deficiency or performance deterioration which has created an Unserviceable condition; |
b. | Comply with an AD if such AD mandates compliance prior to the next scheduled shop visit per the Removal Schedule; or |
c. | Install [*****] (unless [*****] at the last shop visit prior to the Commencement Date did not conform to the minimum build requirement in the Repair Specification). |
d. | On wing and onsite repairs to avoid engine removals or engine shop visit are [*****] in the Rate per EFH as further outlined in [*****]. |
e. | Customer will implement an engine stagger program [*****] and time on wing due to several airplanes/engines with the same (or close to) time since new. All engines effected in a Stagger program are [*****] in the Rate Per EFH Shop Visit |
3.3 Transportation. GE [*****] of roundtrip transportation to and from [*****] to the Designated Repair Station for each Rate Per EFH Shop Visit or Supplemental Work Services.
3.3.1 | Delivery and Redelivery From the Commencement Date through December 31, 2012, Delivery and Redelivery shall be as follows: |
a. Delivery. The Engine shall be Delivered by the Customer together with all applicable records and required data [*****] International Chamber of Commerce, [*****], at the [*****], whereby Customer fulfills the obligations of seller and GE fulfills the obligations of buyer. Delivery shall occur at [*****] when the Engine is loaded for transport for delivery to GEs Designated Repair Station. All transportation costs, including licenses, and risk of loss from the moment of [*****] at [*****] throughout the transportation of the Engine to GEs Designated Repair Station will be [*****] Until Redelivery, GE shall keep an insurance coverage against loss of or damage to the Engines and other components while Engines are in its care (or its contracted transportation agents), custody and control in an amount equal to or greater than the full replacement cost of such Engines.
b. Redelivery. After completion of Services. GE shall Redeliver the Engine to the Customer, [*****], International Chamber of Commerce. [*****], at [*****] or to a different location to be mutually agreed by the Parties
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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provided that [*****] will not be greater compared to [*****] and if advised by [*****], in writing, by email with at least [*****] prior to scheduled shipment date; whereby Customer fulfills the obligations of buyer and GE fulfills the obligations of seller.=.
3.3.2 | Alternate Delivery and Redelivery As soon as practicable thereafter GE Celma becomes the Designated Repair Station in accordance with the terms of Section 7.5 hereof, but in no event later than December 31, 2012, Delivery and Redelivery shall be as follows: |
a. Delivery. The Engine shall be Delivered by Customer together with all applicable records and required data Delivered [*****] International Chamber of Commerce, [*****], being made available at [*****] whereby Customer fulfills the obligations of seller and GE fulfills the obligations of buyer.
b. Redelivery. After completion of Services, GE shall Redeliver the Engine with legally required certifications, [*****], International Chamber of Commerce, [*****], at [*****], whereby Customer fulfills the obligations of buyer and GE fulfills the obligations of seller.
In the event that an Engine (s) need to be serviced at GE Strother after December 31, 2012, the Delivery Terms of 3.3.1 apply; provided that Customers financial obligation will not be greater of Delivery terms set forth in Section 3.3.2 hereof.
For the avoidance of any doubt, after December 31, 2012, all transportation costs, including transportation taxes, import and export fees. licenses, fees and risk of loss from [*****] until the Engine is returned [*****] to Customer will be [*****]. GE shall keep an insurance coverage against loss of or damage to the Engines and other components while Engines are in its care (or its contracted transportation agents), custody and control in an amount equal to or greater than the full replacement cost of such Engines.
3.3.3 Completion of Services. After completion of Services, GE will Redeliver the Engine to Customer. In the event Redelivery of an Engine cannot occur due to any act or failure to act of Customer, GE may place such Engine into storage. In such event, GE will notify Customer of such storage, GEs Redelivery obligations will be deemed fulfilled, all risk of loss or damage to the Equipment will thereupon pass to Customer, and any amounts payable to GE upon Redelivery will be payable upon presentation of GEs invoice. Customer will reimburse GE for all expenses incurred by GE. such as, but not limited to, preparation for and placement into storage, handling, inspections, preservation and insurance of the Equipment. Upon payment of all amounts due hereunder, GE will assist and cooperate with Customer in the removal of Equipment placed in storage.
3.4 | Diagnostics. GE will provide comprehensive diagnostics services to identify and diagnose trend shifts as follows: |
a) Engine condition data will be automatically processed [*****] when received at the designated GE facility. GE will be responsible for operating and maintaining the [*****] and the necessary facilities.
b) [*****] for Engine condition monitoring trend shift observation, including engineering review, analysis, and recommendations will be provided to Customer, as required on a [*****] basis;
c) Access to [*****] for [*****] support and consultation as required on a [*****] basis.
d) [*****] teleconference to review reports and program status.
e) [*****] engine health trend summary and analysis reports.
f) [*****] engine thrust derate report.
g) If desired by Customer, access to web-based tools for reviewing Engine condition data and assessing Engine health.
h) [*****] automated processing of Engine exceedance data with automated exceedance notification via e-mail to Customer.
i) [*****] notification and recommendation to Customer regarding Engine exceedances impacting next aircraft dispatch.
j) [*****] automated processing of aircraft and Engine fault data with automated fault notification via e-mail to Customer.
k) [*****] notification and recommendation to Customer regarding Engine faults impacting next aircraft dispatch.
l) Daily aircraft and Engine fault summary reports [*****] with analysis of Engine faults.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
Any information provided to Customer by GE for use in troubleshooting and managing operations is advisory only. GE is not responsible for line maintenance or other actions resulting from such advice. Customer is responsible for identifying and resolving any aircraft or Engine faults or adverse trends.
3.5 On Wing Support. GE On-Wing Support, Inc. (OWS) will provide scheduled, unscheduled, line or hospital shop maintenance Services which are not otherwise considered to be Rate Per EFH Services, up to a maximum of [*****] hours per year during the first contract year of the Agreement and each year thereafter. Customer may carry over a maximum of [*****] of the unused hours from any one year however, the carry-over amount is [*****]. Therefore the maximum number of hours is [*****] in any given contract year following the first contract year. Every [*****] accrued in non-labor related expenses (e.g., travel time, shipping, materials, etc.) will be equivalent to [*****]. Any OWS Services provided in excess of the hours described above will be invoiced as Supplemental Work as per exhibit H.
3.6 All services will be performed in accordance with (1) AAA regulations, (2) OEM overhaul and repair manuals, (3) Azul Engine Maintenance Program, and such other particular condition as may be expressly mutually agreed to in writing by the Customer Azul and GE.
3.7 Turn Around Time Guarantee (TAT Guarantee). GE guarantees a [*****] Turn Around Time for shop visits at Strother and [*****] for shop visits to be performed at GE Celma (reducing to [*****] for the second, [*****] for the third year, and [*****] thereafter) as follows for the repair of Engines to a Performance Restoration Workscope in accordance with the terms herein. Turn time shall commence upon: [*****]. Turn Around Time shall end when the Engine is ready for Redelivery (as defined herein and evidenced solely by GEs placement of the 8130 Tag, or equivalent governing agency compliance tag, on such Engine) and picked up from the Designated repair Station by GEs or its contracted agent for shipment to Customers facility. GE shall add [*****] days to the Turn Around Time for Engines received with full [*****] attached. Changes to the Workscope may alter the committed Turn Around Time, which shall be mutually agreed upon at the time the changes are made. In the event of an Interruption of Service, then the guaranteed Turn Around Time shall be extended by the period of such delay. For purposes of this Article 3.7 only, Interruption of Service shall mean an interruption in the Servicing of the Engine due to: (a) circumstances described in Exhibit J, Article 2.0, Excusable Delay; (b) Customers failure to timely provide GE with information, records or parts to enable GE to proceed with the timely processing of the Engine: or (c) the Engine is delivered to GE with missing parts, and Customer or GE cannot immediately supply replacement parts for such missing parts. Such TAT guarantee shall be contingent upon GEs use of Ratable Parts.
For the purpose of this Section 3.7, TAT shall be calculated on a 12 month rolling average basis.
If the TAT is greater than what had been stated above, the DRS shall develop a mutually agreeable action plan with the Customer and will implement such action plan as soon as practicable thereafter.
3.8 EGT Margin Guarantee GE guarantees a [*****] EGTM as follows for the repair of Engines to a Performance Restoration workscope. Should the Performance Restoration workscope EGTM be [*****], Customer and GE will review the performance, inspection and workscope records to evaluate potential causes for the recorded EGTM. Customer and GE will mutually agree on follow up actions to remedy the condition including the option of reinducting the Engine into the shop for EGT margin correction. For the purpose of this Clause EGTM shall mean Exhaust Gas Temperature Margin (EGTM). GE further guarantees that during the first [*****] of an engine following a Performance restoration, the maximum stabilized EGT will not exceed the certified Limit. The certified limit is exceeded if the engine will not achieve takeoff thrust without exceeding the certified limit for EGT.
ARTICLE 4 SUPPLEMENTAL WORK
4.1 | Supplemental Work. Supplemental Work will include, but will not be limited to: |
a. | Any and all Services not covered under Article 3 as Rate Per EFH Services; |
b. | Any Services provided on Engines not eligible for Rate Per EFH Services; |
c. | Services required as a result of: |
(i) | An Aircraft Accident or Aircraft Incident; |
(ii) | An act of God, military action or terrorist activity; |
(iii) | Improper or negligent installation, operation, removal or maintenance of Customers Engine not in conformance with OEM manuals and experimental test applied to the Engine, unless performed by GE; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(iv) | The use of a non-GE [*****], part or repair; |
(v) | Damage caused by transport of an Engine by unapproved method unless done so by GE or GEs contractor; |
(vi) | Removal and replacement of all non-GE parts; |
(vii) | [*****] above and beyond what is covered in Article 3; |
(viii) | The incorporation of [*****] not covered in Article 3; |
(ix) | Engine [*****] programs or [*****] to another [*****]; |
(x) | Lease return conditions or sale of the Engine; |
(xi) | Repair or replacement of [*****] components; or |
(xii) | Replacement of [*****]. |
d. | Repair and maintenance services for Engine transportation stands and containers during shop visits; and |
e. | Services provided at a shop visit for which Customer Delivered an Engine for Services against the advice and consent of GEs Customer Program Manager or delegate unless it is determined after Delivery of the Engine that such shop visit does qualify as a Rate Per EFH Shop Visit under Article 3.2. |
f. | In the event an Engine is delivered to GE for Supplemental Work Shop Visit, which includes Full Performance Restoration, GE will provide such shop visit services in accordance with the Rate per EFH Services, and any over and above (supplemental) charges will be invoiced accordingly as agreed to by the Parties at Workscope determination. |
ARTICLE 5 PRICING
5.1 | Rate Per EFH Pricing. Unless otherwise stated, all rates and prices are in 2009 US Dollars. Rate Per EFH Services will be performed by GE at the Rate Per EFH as follows. |
[*****] | [*****] | [*****] | [*****] | [*****] | [*****] | [*****] | ||||||||
Popular rate |
[*****] | [*****] | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||
Restored rate |
[*****] | [*****] | [*****] | [*****] | [*****] | [*****] | [*****] |
The above [*****] incurred starting on May 1st 2009. The above [*****] is applicable to all EFH incurred since new.
| Total [*****] Rate includes [*****]. |
| Total [*****] includes [*****]. |
5.2 | Rate Per EFH Operating Parameters. The Rate Per EFH is predicated on the following parameters: |
Engines: | Utilization: | EFH/EFC Ratio: | [*****] | Altitude Ambient |
||||||
Type: CF34-10E7 Qty: [*****] installed and [*****] spare Delivered in accordance with the Delivery Schedule set forth on Exhibits B, M and N [*****] Minimum Build = [*****] |
[*****] Average EFH Per Year |
[*****] hrs / 1 cycle | [*****] at a thrust rating of [*****] lbs. |
|
[*****] [*****] |
|
5.3 | Rate Per EFH Adjustment. |
a. | Escalation. This rate shall adjust on an annual basis in accordance with the escalation formula set forth on Exhibit C. |
b. | Severity. The Rate Per EFH will be adjusted when there is a deviation from the parameters in Article 5.2 per the Price Adjustment Matrix. Customer will provide information regarding the above parameters on a monthly basis and in a mutually agreed upon format in accordance with Article 6. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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5.4 Supplemental Pricing. Supplemental Work Services will be performed by GE in accordance with pricing provisions set forth on Exhibit E. This rate shall adjust on an annual basis in accordance with the escalation formula set forth on Exhibit F.
5.5 | [*****]. GE shall make available to Customer a maximum of [*****] of [*****]. These [*****] will be made available to Customer in the [*****] on the [*****] outlined in Exhibit L attached hereto. |
[*****] for [*****] totaling [*****] shall be issued to the Customer within [*****] of Customer written request to GE subsequent to the issuance dates identified in the Exhibit L. For [*****], at the earlier of, end of the [*****] aircraft lease term or as of the date Customer returns aircraft to the lessor, Customer shall return such engine thrust levels to the [*****]. Such [*****] amounts are [*****] and are [*****] for any change in the operating parameters (including number and delivery dates of Engines) set forth in Article 5.2 that reduces the Contracted Hours. Contracted Hours are defined as the Annual Utilization multiplied by number of Engines multiplied by the number of years in the Term.
The remaining issued [*****] may only be [*****] by Customer towards (i) the purchase of aircraft engine services from GE under a separate OnPoint Overhaul (time and material or component repair only) agreement between Customer and GE for the maintenance or repair of Customers Engines, up to a maximum of [*****] of the invoice amount; (ii) up to a maximum of [*****] of the amount due under any Supplemental Work invoice issued under an OnPoint Solutions Rate Per EFH Agreement covering the Engines; or (iii) the purchase of up to [*****] CF34-10E7 spare engines up to a maximum of [*****] of [*****] may be used for each spare engine and will be available on the issuance dates identified in Exhibit L.
Such [*****] will be issued and valid only if Customer is current in all payments due and is otherwise not in material breach under this Agreement and any other applicable agreements to which [*****] are to be applied. GE shall be entitled to set off from such [*****] any outstanding obligation and amounts that are due and owing from Customer to GE (and not subject to a good faith dispute). Customer may carry over [*****]; however, [*****] must be applied by the end of the term of this Agreement. Any [*****] amounts outstanding at the end of the term of the Agreement will be canceled.
If an Engine is removed from the Agreement and has not incurred sufficient EFH to meet the Contracted Hours for that Engine. any remaining [*****] to be issued shall be reduced and, within [*****] of such Engines removal, Customer [*****] on a pro-rata basis based on EFH incurred and for which GE has received all Rate Per EFH Payments under this Agreement. By way of example only, if an Engine being removed has incurred and GE has received all Rate Per EFH Payments for [*****] and the total Contracted Hours for this Engine are [*****], then Customer shall [*****] such Engine as determined on a pro-rata basis based on the number of Engines covered by the Agreement. If GE has not received any Rate Per EFH Payments on the removed Engine, Customer shall [*****] allocated and [*****] such Engine as determined on a [*****] basis based on the number of Engines covered by the Agreement.
In the event of termination of this Agreement due to any reason other than the material breach by GE, such [*****] will be cancelled and [*****] issued and applied as of the time of termination shall be [*****] to GE by Customer within [*****] of termination of this Agreement.
ARTICLE 6 INVOICING AND PAYMENT
6.1 Rate Per EFH Payments.
Monthly Billing: [*****] of each month, Customer will provide to GE the Time Since New and Cycles Since New Hours by Engine serial number. Concurrently, GE and/or the Customer will provide to the other Party data on the average derate for each Engine in the previous month. Using this data. and the data provided by the Customer in the preceding [*****], GE will determine the average flight leg, annualized utilization derate and Altitude Adjusted Ambient Temperature parameters for the previous quarter for each Engine. The Current escalated [*****] for each Engine will be adjusted in accordance with the Price Adjustment Matrix based on these parameters. This rate, [*****], will be provided to the Customer in the monthly invoice no later than the [*****] the month. For the sake of clarity, the first EFH invoice will consist of all hours back to the commencement date. Customer will make payment within [*****] from the date of the invoice.
[*****] Customer will remit to GE, prior to Redelivery of each Engine, an amount [*****] by that Engine since delivery from manufacturer of the aircraft in which such Engine was originally installed
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(for a new installed Engine), or since delivery from manufacturer (for a new spare Engine), or since the last Rate Per EFH Shop Visit for that Engine, whichever occurred last, multiplied by the Current adjusted and escalated [*****]. In the event that Customer causes such payment to be made on its behalf by a third party, and such third party fails to pay some or all of the payment due to GE, then Customer will make the payment, in whole or in part, to make up the amount not paid. In the event that such payment is not paid in full, GE is not obligated to perform its obligations under this Agreement with respect to such Engine.
6.2 EFH Minimum.
The monthly average EFH minimum is the lowest point on the Price Adjustment Matrix.
a. [*****]: GE will compare the actual total EFH reported for each Engine during each calendar [*****] with the monthly minimum multiplied by [*****] If the reported actual EFH is less than the EFH minimum, GE will render an invoice and Customer will pay GE the difference times the applicable adjusted and escalated [*****]. Payment will be made within [*****] from the date of the invoice.
b. [*****]: At the time of an Engines Rate Per EFH Shop Visit, GE will compare the actual total EFH reported for such Engine since new or since the last Rate Per EFH Shop Visit with the required EFH minimum. If the reported actual EFH for such Engine is less than the cumulative EFH minimum accrued during such period, then GE will render an invoice and Customer will pay GE the difference times the applicable Current adjusted and escalated [*****].
c. Engine Removal: In the event of an Engines removal from this Agreement, or upon termination of this Agreement if an Engine has not had a Rate Per EFH Shop Visit, GE will compare the actual total EFH reported for such Engine since new or since the last Rate Per EFH Shop Visit with the required minimum EFH. If the reported actual EFH is less than the EFH minimum, GE will render an invoice and Customer will pay GE the difference times the applicable adjusted and escalated [*****] Rate. Payment will be made within [*****] from the date of the invoice.
d. If [*****] or more of Customers engine fleet fail to meet EFH minimum during any [*****] consecutive [*****] throughout the term of the Agreement, GE will render an invoice for all installed Engines which did not meet such EFH minimum, and Customer will pay GE the difference times the applicable adjusted and escalated [*****]. Payment will be made within [*****] from the date of the invoice. Any [*****] paid by the Customer under this clause will be credited back to the Customer at the time of a Performance Restoration Shop Visit.
e. For the sake of clarification, [*****] should not be considered for the EFH minimum calculation, unless it is installed in the Aircraft and, at this moment, the [*****] EFH will account for the installed [*****] that it has replaced.
6.3 Supplemental Work Payments.
a. | Initial Invoice: Upon completion of Supplemental Work Services, GE will issue an initial invoice for the Services which Customer will pay within [*****] of the date of invoice. All invoices shall be payable by Customer [*****] in satisfaction of GEs performance of Supplemental Work Services. |
b. | Final Invoice: Following Redelivery, GE will issue a final invoice for Supplemental Work Services based on actual charges to complete the Services, including any credits due Customer. Such invoice will be reconciled with the initial invoice and Customers payment. Customer will pay the final invoice within [*****] of the date of the invoice. All invoices shall be payable by Customer [*****] in satisfaction of GEs performance of Supplemental Work Services. |
6.4 Late Payment Remedies. Should Customer fail to make any payment when due, GE may [*****], compounded daily on any unpaid balance commencing on the next Day after the payment due date until such time as the payment plus the late payment charges are received by GE in full. Payments will be applied to any late payment fees then to the oldest outstanding amounts in order of succession. If Customer fails to make any payment, which is not the subject of a good faith dispute, when due, and does not cure such failure within [*****] of such due date, GE may terminate or suspend performance of all or any portion of this Agreement. In the event Customers account becomes delinquent or Customers credit status negatively changes, different terms of payment or other commercially acceptable assurances of payment may be applied.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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6.5 Payment. Considering that the use and/or installation of equipment and spare parts imported from the United States of America account for a significant portion of the Services and that GE Celma shall be responsible for performing the Services by it self or through other DRS throughout the term of the Agreement to restore Engines to Serviceable condition in accordance with the Repair Specification, the Workscope and the terms of this Agreement. all invoices and payments under this Agreement shall be made in Brazilian Reais in an amount equivalent to the USA Dollars values referenced hereunder, as determined by using the average buy rate for the United States Dollar as published by the Central Bank of Brazil through SISBACEN, PTAX-800, option 5, as of the date of payment by Customer under the terms of this Agreement. Payment shall be made [*****] by Customer to the bank account and address designated below:
GE Celma ltda
[*****]
[*****]
[*****]
CNPJ: 33.435.231/0001-87
ARTICLE 7 FLEET MANAGEMENT
7.1 Program Manager. GE will assign Customer Program Manager who will be the point of contact for Customer with respect to Services and who will:
a. | Draft a Procedures Manual and submit it to the Customer for mutual approval; The Procedures Manual will define standard or routine operating procedures used during daily execution of this Agreement such as shipping and delivery instructions, routine communications, AOG procedures, technical performance reviews, Engine technical documentation standards, Engine and Parts configuration control and [*****] parts handling, and any other mutually agreed operating procedures. In the event of a conflict between the Procedures Manual and this Agreement. then this Agreement shall take precedence over the Procedures Manual. |
b. | Work with the Customer, on a [*****] basis, to develop a Removal Schedule and a shipment schedule which will identify by serial number the Engine(s) to be removed and shipped during the following [*****] month period, the anticipated reason for removal of each, and the schedule for Delivery. |
c. | Work with the Customer to develop a Repair Specification which is consistent with the GE Workscope Planning Guide. Customization beyond the recommendations in the Workscope Planning Guide can be addressed but may result in an adjustment in the pricing set forth in Article 5. Any subsequent changes or amendments to the Repair Specification will be mutually agreed by the Parties and may result in an adjustment in the pricing set forth in Article 5. |
d. | Work with Customer in developing as required Supplemental Workscope requirements. |
e. | Managing and overseeing GEs relationship with Customer with respect to this Agreement |
f. | Take care of all issues related to Customers account as its single point of communications. In the event of absence of the assigned Customer Program Manager, GE will designate an acting program manager who will be knowledgeable in all Customer related Issues in order to oversee all work requirements. |
g. | To be the focal point to ensure that GE fulfils its obligation to Customer under this Agreement. |
h. | Customer and GE will hold meetings on a quarterly basis, or such other time frame as may be mutually agreed to by the Parties, at a location to be determined by the Parties to review any issues concerning this Agreement. |
i. | Each Party shall ensure that all such meetings are attended by its appropriate representatives in order to facilitate discussion of each of the items listed above |
7.2 Workscope. Prior to Induction. GE will prepare a Workscope in accordance with GE Workscope Planning II Guide, Repair Manual and Repair specification , Customers Aircraft/Engine Maintenance Program, Customers General Maintenance Manual and provide it to Customer for approval. Workscope shall incorporate the [*****] minimum build specification requirement of [*****] remaining before a next shop visit.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7.3 Records. The GE record system will include documentation of all Services performed, Rework operations required and disposition of all Parts replaced. GE agrees to keep all records herein described in form and detail sufficient for accurate and expeditious administration of this Agreement and shall furnish Customer with the following records and reports, as applicable for each Shop Visit, upon the release of any Engine, Module or other Component to Customer (unless otherwise specified):
| FAA Form 8130-3 Airworthiness Approval Tag and ANAC equivalent (Segvoo 003) |
| FAA Form 337 Major Repair and Alteration and ANAC equivalent (Segvoo 001). |
| FAA Airworthiness Directives Compliance Status Report, |
| Engine Life Limited Parts status, |
| Engine Modules Serial Number, Time and Cycles Since New / Overhaul, |
| Service Bulletin / Modification Incorporation Report, |
| List of Installed Accessories and Components including Times and Cycles (as required), |
| FAA Form 8130-3 or Segvoo 003 for each accessory / wiring harness repaired / modified / bench tested, |
| Engine Test Log, |
| Incoming Inspection report |
| Shop findings report |
| List of Engine Parts On / Off log (as required),, |
| Confirmation of engine long term preservation, |
| Open item list, |
| Life of all Life Limited Parts and/or time tracking Parts, i.e. list of hours and cycles (TSN, CSN, TSLSV, CSLSV, TSO, CSO), and |
| Powerplant Inventory Checklist |
| As required, accident and damage reports, including pictures and laboratory investigation results, will be issued by GE |
7.3 Line Maintenance. Customer will provide all line maintenance and repair and line station support, consistent with Customers historical maintenance practices and OEM recommendations.
7.4 Monitoring Equipment. Customer will provide an automated method to transfer operational and maintenance data to GE for the monitoring and diagnosis of Engine condition. If the aircraft is equipped with air-to-ground equipment such as AGARS. the Customer will forward the data directly to the GE SITA/ARINC address. If air-ground equipment is not available, GE will work with Customer to establish an alternate electronic means of providing this data.
7.5 Designated Repair Station. The Designated Repair Station (DRS) will be Strother until December 31, 2012 GE will make reasonable efforts to place full overhaul capability into the Celma, Brazil shop for CF34-10E engines. Based on volume of demand for CF34-10E engine overhauls in Latin America, GE estimates capability to be achieved in the 2012/2013 timeframe. GE will make reasonable efforts to have a similar level of overhaul capability on the CF34-10E engine as it does on other product lines that are serviced at the Celma, Brazil shop. GE may change the DRS upon Customers consent, which shall not be unreasonably withheld or delayed provided such facility is properly certified and rated by the Approved Aviation Authority to perform the required services as required by the mutually approved workscope between Azul and GE and in accordance with the terms of the Agreement. GE may provide Services at a location other than a Repair Station including performance of repairs on-wing or on-site provided GE has obtained Azuls prior written consent to perform such services at a location other than the DRS. If GE changes the DRS, Customers financial obligations, including related taxes, fees, import and customs duties (if any) under this Agreement will be no greater than if Services were performed at the initial DRS or Celma after December 31, 2012. If GE Celma is not operational by December 31st, 2012, GE and Customer will work on a mutual beneficial plan to resolve such delay in order to keep Customers financial obligations under this Agreement no greater than if Services were to be performed at GE Celma as of December 31, 2012.
7.6 Subcontracting. All Services performed under the Agreement will be performed by GE or its designated subcontractors at maintenance and repair facilities that are properly licensed, rated, certified by the AAA to perform the Services. GE will obtain Customers consent, pursuant to its General Maintenance Manual requirements, which shall not be unreasonably withheld or delayed, prior to subcontracting Services on an entire Engine assembly. However, GE shall not be required to obtain Customers consent to subcontract Services on individual components of an Engine. If GE does subcontract Services, the Customer obligations under this Agreement will be no greater than if such Services were performed at the DRS. Customer will, at its sole expense, have the right to review GEs quality system audit report(s) for such subcontractor(s). Subcontracting of any Services will not relieve GE of its performance obligations set forth in this Agreement. GE shall remain responsible for any subcontractors performance thereof.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7.7 | Parts Replacement Procedures. |
a. | Missing Parts. Upon Delivery, GE will notify Customer of any (A) components or LRUs missing from Engines. GE will replace such missing items at Customers expense as Supplemental Work, unless Customer notifies GE in writing within a reasonable period of time of receiving GEs notice that Customer wishes to furnish such missing items within a period of time specified by GE. |
b. | Parts Replacement. GE will determine which parts are required to perform the Services and will provide all parts and materials (new or used Serviceable, including use of Rotable Parts) required to accomplish the Services. Each used Serviceable part will be a GE part of a similar age, value and utility to the removed Part. GE may issue compatible parts from GEs Rotable Parts inventory to replace Customers parts requiring Services. Customer agrees to accept compatible Rotable Parts that are in compliance with the OEM Approved Repair Specification provided: |
1. | GE supplied replacement parts will be of equal or greater value and equal or latest configuration than that of the Part that is being replaced In order to maintain configuration and/or modification standard in accordance with the Customers General Maintenance Manual. |
2. | With respect to used, serviceable replacement parts, no incident/accident-related Parts from sources other than Customer shall be installed in any Engine. |
3. | Parties shall work to the best reasonable efforts to determine and identify LRU parts used from the pool, which have been removed multiple times in the previous 12 months. GE will work with Customer to determine the course of action for the LRU components identified with multiple removals. |
c. | Life Limited Parts. All replacement Life Limited Parts will have complete back to birth traceability. GE will provide Customer with information about the previous owners for each replacement Life Limited Part if so applicable and requested. No replacement Life Limited Parts will be incident/accident-related, as evidenced by GE to Customer in accordance with the Customers General Maintenance Manual. |
d. | GE will replace, as Supplemental Work, any LLP that GE receives from Customer without the required records. Prior to replacing such LLP, GE will notify Customer of any missing (or incomplete) records and allow Customer two business days to acknowledge and forward such missing or incomplete records, or GE may immediately replace such LLP without additional notice. |
e. | Customer Furnished Equipment (CFE). For Supplemental Work only, upon GEs prior approval on a case-by-case basis, Customer may supply parts to GE as CFE, if such parts are:(A) GE parts; (B) consistent with the approved Workscope; (C) provided with an AAA serviceability tag; and (D) ready for immediate use. Such CFE is subject to a material handling fee in accordance with Supplemental Work pricing in Exhibit E. |
f. | Title to Parts or Material. GE furnished parts and material incorporated into an Engine will be deemed to have been sold to Customer and title to such parts and material will pass to Customer upon incorporation into such Engine. Risk of loss or damage to such parts and material will pass to Customer upon Redelivery of the Engine. Title to and risk of loss of any parts removed from the Engine that are replaced by other parts (including Repairable parts) will pass to GE upon incorporation of replacement parts into the Engine. |
g. | Scrapped Parts. GE will dispose of all Scrapped Parts at its sole expense and without any further adjustment to Customer. For Supplemental work, Customer shall have final approval for determining if a part is BER. |
7.8 Auditing. The appropriate aviation authorities and Customers representatives may at all reasonable times, audit the performance of Services. No such auditing shall constitute an acceptance of Services.
ARTICLE 8 WARRANTY
8.1 | Workmanship Warranties. |
a. | Services Warranty |
Rate Per EFH and Supplemental Work Services performed shall be free from defects in workmanship. Defects in workmanship will be remedied through continued performance of Services under the Agreement for the balance of the term thereof.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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For Engines repaired and Redelivered within [*****] calendar months preceding expiration of this Agreement, if Customer claims a defect in workmanship within either [*****] calendar months or [*****] EFH following Redelivery, whichever comes first. and a) Customer provides written notice to GE of such defect within [*****] of its discovery, and b) Customer ships to GE the part or component which gives rise to the claim, or. in cases in which shipment is commercially impracticable, makes such part or component reasonably available to GEs personnel, and c) GE reasonably establishes that Customers claim is correct, GE will provide the following:
(i) | Repair or replacement of such defective workmanship using its own forces or subcontractor; provided that time spent by GE to correct defective workmanship shall not count towards workmanship guarantee period detailed in this Section 8. 1 or, upon prior written approval from GE, ii) pay Customers reasonable, direct costs for such repairs, but in no event shall such costs exceed GEs internal costs of repair (For the avoidance of any doubt, Customer shall not be liable for expenses associated with the correction of defect in workmanship in accordance with the terms of this Section 8.1.) and iii) reimburse Customer for transportation expenses reasonably incurred and adequately documented by Customer in connection with the warranty claim. The warranty period for the repaired or replaced workmanship will be the remainder of the original warranty period. |
b. | Conditions and Limitations Applicable to Services Warranty |
Any warranty for Engines or parts, LRUs, components and material thereof, including the design, material or engineering defects of a manufacturer, will be the warranty, if any, of the manufacturer of such Engines or parts, LRUs, components or material thereof.
The foregoing will constitute the sole remedy of Customer and the sole liability of GE for defective workmanship relative to Customers Engines. The liability of GE connected with or resulting from the Services warranty will not in any case exceed the cost of correcting the defect as provided above, and, upon the expiration of the shortest period described therein, all such liability will terminate. In no event will GE be liable for any special, expectation, consequential, incidental, resultant, indirect, punitive or exemplary damages (including loss of use, loss of profit or loss of revenue in connection with the Engines).
THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESSED, IMPLIED OR STATUTORY (INCLUDING ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE).
8.2 Assignment of Warranties. Customer will assign to GE all applicable Engine warranties and guarantees using the Warranty Assignment Letter attached as Exhibit K. Upon termination of the Agreement. any such remaining warranties will be reassigned to Customer.
8.3 Pre-existing Warranties. Customer will assure that any requested repair of an Engine, accessory or component that is covered under a third-party warranty that is not assigned to GE will be performed directly by that person at no expense to GE. Notwithstanding the above, GE may accept a purchase order for the time and material repair of a warranted item from Customer or the person giving the warranty.
ARTICLE 9 DELIVERY/REDELIVERY
9.1 Delivery. All Engines to be serviced will be delivered by Customer to GE. Such Engines will be shipped to GE for restoration to a serviceable condition in accordance with Customers schedule and operational requirements and the agreed to Shipment Schedule. If Customer holds any Engines beyond the timing set forth by the Shipment Schedule, then GE, at its sole discretion, will send an invoice to Customer for the [*****] per Article 6.1 or elect to remove the Engine held by Customer in accordance with Article 11.1.1.
9.2 External Engine Configuration. Prior to the first shop visit under this Agreement, the Parties shall agree upon an external Engine configuration specification. Upon Delivery of each Engine, GE will notify Customer of any deviations from the configuration specification of Engines Delivered for Service, and GE and Customer will work to resolve the deviations.
9.3 Engine Documentation. Upon Delivery of each Engine, Customer will provide to GE the information and records set forth in the Procedures Manual. Customers failure to timely furnish the required information may delay Induction of the Engine for Service, may cause an Excusable Delay and may result in premature LLP replacement. Upon receipt of Engine at GE facility, GE will inspect the Engine and complete a receipt condition report. Such report will be forwarded to Customer
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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within five (5) business days after of engine delivery to GE facility. Report shall include notification of any Accessories/Components, LRU found to be missing or damaged in transit.
9.4 Packaging. Customer is responsible for all packaging, labeling and associated documentation of the Engine at Delivery, in accordance with the International Civil Aviation Organizations (ICAO) Technical Instructions for the Safe Transport of Dangerous Goods by Air, and if the Engine is to be transported over the United States of America, the US Department of Transport Regulations 48 CFR 171-180. If required by applicable law or regulations, Customer will further provide a material safety data sheet to GE at Delivery of the Engine indicating any substances contained within the Engine to be consigned. Customer will indemnify, defend and hold harmless GE from all or any claims, liabilities, damages, judgments, costs, penalties, fines and/or any punitive damages imposed, alleged, or assessed by any third party against GE and caused by and to the extent of Customers non-compliance with this Article 9.4.
9.5 Shipping Stands. Customer will provide and maintain all shipping stands, shipping containers, mounting adapters, inlet plugs and covers, required to package the Engine for Redelivery. GE will return each engine stand with the engine that it was originally delivered with. In no event, GE shall return an engine stand to Customer that is not owned by Customer, unless agreed to between the Parties.
9.6 Redelivery. After completion of Services. GE will prepare and package the Engine for Redelivery to Customer and provide a Services records package that complies with AAA regulations within five (5) business days of redelivery. Customer will accept redelivery at Customers facility defined in associated Work Order and complete a redelivery condition report. GE will advise Customer of the completion of Services and will arrange for transportation to Customer designated facility. Such notice will be given five (5) days prior to the scheduled ship date. GE shall comply with the reasonable instructions of Customer as to markings to be placed on invoices, bills of lading, packing lists, correspondence and shipping containers.
ARTICLE 10 ADDITION OF ENGINES
10.1 Addition of Engines. Customer and GE may agree to amend Exhibit 8 to add Engines to the Agreement after the Commencement Date. For each added Engine, Customer will provide information, including, but not limited to, Engine serial number, aircraft tail number, previous operator, current owner, operating time and fight cycles since new and, if applicable, operating time and fight cycles since last shop visit, historic derate information and thrust rating to be used. Added Engines that have not undergone a shop visit will be eligible for Rate Per EFH Services and Supplemental Services on the date of their addition to the Agreement. Added Engines that have undergone a shop visit are eligible for Supplemental Services as of the date of their addition to the Agreement and are eligible for Rate Per EFH Services either as of the date of the completion of the QSV or, the date of their addition to the Agreement if no QSV is necessary. GE will determine if such QSV is required based on an evaluation of the operating parameters of the Engine and other technical considerations. Such QSV shall be invoiced on a Supplemental Work basis. Engines that have previously and exclusively been maintained off wing by GE or one of its repair stations pursuant to a maintenance or repair service agreement will not require a QSV.
10.2 Adjustment of Rate. GE will evaluate the effect of any Engines addition on the Rate Per EFH taking into consideration effects on the fleet size, age and condition of the Engines and other commercial considerations and may adjust the Rate Per EFH accordingly upon mutual agreement. The adjusted Rate Per EFH will be incorporated into the Agreement by way of amendment and Customer will pay the adjusted Rate Per EFH for all EFH incurred by all Engines from the date such added Engine enters the Agreement.
10.3 Adjustment of Rate for Optional Engines and Leased Engines (Exhibit M and N). The Parties agree that any Engines added by mutual agreement per the terms of Exhibits M and N will be incorporated into the Agreement by way of amendment and it shall comply with all terms and conditions set forth in Exhibits M and N and applicable terms and conditions of this Agreement.
ARTICLE 11 REMOVAL OF ENGINES
11.1 Removal of Engines. Customer may remove Engines from this Agreement upon advance written notice, if Customer is no longer operating the Engines and is no longer responsible for maintenance of the Engines for the following reasons:
a. | Bona fide sale or other bona fide transfer to an unaffiliated third party; |
b. | Return to the Lessor; or |
c. | If the Engine has been reasonably determined to be BER |
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In all cases of Engine removal, GE and Customer must mutually agree on which Engine will be removed, unless Customers lessor dictates otherwise. Any Engine removal will be subject to reconciliation provisions set forth below.
11.1.1 GE may remove Engines from this Agreement in accordance with Article 9.1 hereof. In this case, Customer acceptance shall not be necessary.
11.2 Reconciliation:
1. | If a removed Engine has not undergone a shop visit for Rate Per EFH Services, Customer will pay GE, an amount equal to [*****] of the [*****], as escalated and adjusted in accordance with the terms of this Agreement, for every EFH since such removed Engine has been covered by the Agreement. GE will retain all [*****] payments received up to the time of removal; |
2. | If a removed Engine has undergone at least one shop visit for Rate Per EFH Services, GE will calculate the total cumulative charges for all Rate Per EFH Services provided for such removed Engine as if such Services were provided on a Supplemental Work basis and the Supplemental Work pricing had applied (Supplemental Charges). GE will then compare such Supplemental Charges to the [*****] payments received from the Customer for such removed Engine. If Supplemental Charges are greater than the [*****] payments received from the Customer for the removed Engine at the time of the Rate Per EFH Shop Visit less [*****], then GE will invoice Customer for the difference. On the other hand, if Supplemental Charges are lower than the [*****] payments received from the Customer for the removed Engine at the time of the Rate Per EFH Shop Visit, then GE will credit Customer for the difference. GE will also invoice Customer in an amount equal to [*****] of the [*****] , as escalated in accordance with the terms of this Agreement, for the EFH incurred by such Engine since the last Rate Per EFH Shop Visit. Customer will pay the invoice within [*****] of receipt. GE will retain all [*****] payments received up to the time of removal. |
GE agrees that if Customer removes an Engine from the Agreement due to the end of a leasing contract with a lessor, and if by that moment. Customer adds an Engine to the Agreement to compensate GE for the loss of a removed Engine, GE will evaluate the impact of the removal as well as the addition of new Engines, and will enter into good faith negotiation with Customer. in order to mitigate some of the reconciliation fees set forth in articles 11.2.a and 11.2.b above. If Parties do not reach an agreement after negotiating in good faith, Customer acknowledges and consents that reconciliation as per the terms of Section 11.2 (a) and (b) hereof shall apply to such removed Engines. GE will retain all [*****] payments received up to the time of removal.
11.3 Adjustment of Rate:
GE will evaluate the effect of any Engines removal on the Rate Per EFH taking into consideration effects on the fleet size, age and condition of the Engines and may adjust the Rate Per EFH accordingly upon mutual agreement. The adjusted Rate Per EFH will be incorporated into the Agreement by way of amendment and Customer will pay the adjusted Rate Per EFH for all EFH incurred by all Engines from the date of the Engine removal.
ARTICLE 12 TERMINATION
12.1 Insolvency. Either Party may terminate or suspend performance of all or any portion of this Agreement if the other Party: (A) makes any agreement with any of other Partys affiliated and/or related companies as creditors due to its inability to make timely payments of its debts; (B) enters into bankruptcy or liquidation, whether compulsory or voluntary; (C) becomes insolvent; or (D) becomes subject to the appointment of a receiver of the whole or material part of its assets. If such termination should occur, Customer will not be relieved of its payment obligation for Services rendered hereunder.
12.2 Material Provisions. Either Party may terminate this Agreement upon [*****] written notice to the other for failure to comply with any material provision of this Agreement, unless the failure will have been cured or the Party in breach has substantially effected all acts required to cure the failure prior to such [*****].
12.3 Other Agreements. Customers material breach of this Agreement, if not cured hereunder, will. at GEs option, be a material breach of all other agreements and contracts between Customer and GE. In such an event. GE may: (A) suspend performance under this Agreement, and any or all of the other agreements and contracts until a reasonable time after all defaults have been cured; (B) require Customer to [*****] Fleet terminate this Agreement and any or all other such agreements and contracts; and/or (D) pursue any other remedy with respect to this Agreement or the other agreements and contracts which the law permits.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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12.4 Maximum Removals. If the number of Engines decreases to less than [*****] of the highest number of Engines at any time during the term of this Agreement. GE may terminate this Agreement.
12.5 Payment for Services Performed. In the event of termination of this Agreement for any reason, Customer will pay GE, in addition to any other remedy allowable under this Agreement or applicable law, for all Services or work performed by GE up to the time of such termination under the applicable terms and prices of this Agreement including all costs, fees, and charges incurred by GE in providing support and material under this Agreement including lease engines. In addition, the terms of the reconciliation of Rate Per EFH Payments under the removal of Engines provisions of Article 11 will apply.
12.6 Work in Process, Redelivery of Customers Engines. Upon the termination or expiration of this Agreement, GE will complete all work in process in a diligent manner and Redeliver all Engines, parts and related documentation, provided that Customer (a) has paid in full all charges for all such Services and material, plus all costs, fees and penalties, incurred by GE in providing support. including any lease engines, and (b) has returned all lease engines provided under this Agreement.
12.7 Minimum EFH Utilization. If [*****] of installed engines is not meeting the monthly EFH minimum at any time during the term of this Agreement. GE may terminate the Agreement.
12.8 Termination due to Change in the Currency of Reference If the use of US Dollars as the currency of reference for payments in Reais under this Agreement pursuant to Article 6.5 is changed due to a change on Brazilian law and or Brazilian regulations on the subject, the Parties shall work together in good faith to develop an alternative solution to this issue. If the Parties are unsuccessful in developing an alternative resolution, either party shall be entitled to cause the immediate termination of this Agreement upon a thirty (30) day prior written notice to the other party without paying any damages or indemnity to in connection with such termination.
ARTICLE 13 REPRESENTATIONS
13.1 Customer represents to that it is a corporation, duly organized, validly existing and in good standing under the laws of Brazil. GE represents that it is a corporation, duly organized, validly existing and in good standing under the laws of State of Delaware.
13.2 Customer and GE each represent that the execution and delivery of this Agreement has been duly and validly authorized by all requisite action on their part. This Agreement has been duly executed and delivered on behalf of Customer and GE, and constitutes a legal, valid and binding obligation of Customer and GE enforceable in accordance with its terms.
13.3 Customer and GE each represent that they have had an opportunity to review this Agreement and consult with legal counsel prior to execution, and the final form of this Agreement is the result of good faith, arms length negotiations. Customer and GE each represent that this Agreement is fair and commercially reasonable, and is an ordinary maintenance agreement in their respective industries. Customer further represents that this Agreement is supported by mutual consideration and promises that benefits Customer even though GE may only be required to provide minimal Service during any given month. Similarly, GE represents that this Agreement is supported by mutual consideration and promises that benefits GE even though GE may be required to provide extensive Service during any given month.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ARTICLE 14 GENERAL TERMS AND CONDITIONS
The General Terms and Conditions are set forth on Exhibit J.
IN WITNESS WHEREOF, The parties hereto have executed this Agreement as of the day and the year first above written.
GE ENGINE SERVICES, INC. | Azul Linhas Aereas Brasileiras S.A. | |||||||
By: | /s/ Douglas J. Izarra | By: | /s/ Gerald B. Lee | |||||
Printed Name: | Douglas J. Izarra | Printed Name: | Gerald B. Lee | |||||
Title: | General Manager-LAT-[Illegible] | Title: | Diretor |
GE Celma Ltda. | ||
By: | /s/ [Illegible] | |
Printed Name: | Marcelo Luiz da Silva Soares | |
Title: | CEO |
By: | /s/ [Illegible] | |
Printed Name: | Joao Batista Guimaraes Moraes | |
Title: | CFO |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A: DEFINITIONS
Capitalized terms used in the recitals and elsewhere in the Agreement but not otherwise defined in this Agreement will have the following meanings:
Agreement This Rate Per EFH Engine Services Agreement, as the same may be amended or supplemented from time to time, including all its Exhibits.
Aircraft Accident An occurrence caused by the operation of an aircraft in which any person suffers a fatal injury or serious injury as a result of being in or upon the aircraft or by direct contact with the aircraft or anything attached to the aircraft, or in which the aircraft receives substantial damage or a third partys property is damaged in any way.
Aircraft Incident An occurrence, other than an Aircraft Accident, caused by the operation of an aircraft that affects or could affect the safety of operations and that is investigated and reported.
Airworthiness Directive or AD A document issued by the AAA having jurisdiction over the Engines, identifying an unsafe condition relating to such Engines and, as appropriate, prescribing inspections and the conditions and limitations, if any, under which the Engines may continue to operate.
Approved Aviation Authority or AAA As applicable, the Federal Aviation Administration of the United States (FAA), the European Aviation Safety Authority (EASA), ANAC or, as identified by Customer and agreed in writing by GE, such other equivalent foreign aviation authority having jurisdiction over the performance of Services provided hereunder.
Beyond Economic Repair or BER When the cost, calculated on a Supplemental Work basis, to restore an Engine to the requirements of the Repair Specification [*****] of the fair market value of a comparable Serviceable Engine.
CLP The manufacturers Current catalog or manufacturers Current list price pertaining to a new Engine or part thereof.
Current As of the time of the applicable Service or determination.
[*****]
Day Calendar day unless expressly stated otherwise in writing. If performance is due on a recognized public holiday, performance will be postponed until the next business day.
Delivery (i) For Engines serviced at GE Celma shop, the arrival of an Engine together with all applicable records and required data [*****], International Chamber of Commerce, [*****] at [*****], whereby Customer fulfills the obligations of seller and GE fulfills the obligations of buyer; and (ii) For Engines serviced at any other Designated Repair Station, the arrival of an Engine together with all applicable records and required data [*****], International Chamber of Commerce, [*****], at the [*****], whereby Customer fulfills the obligations of seller and GE fulfills the obligations of buyer. Deliver will mean the act by which Customer accomplishes Delivery.
Designated Repair Station or DRS The primary Repair Station designated by GE where GE performs Services on Engines.
Dollars or $ The lawful currency of the United States of America.
Engine Each bare engine assembly or, as applicable, Engine module, which is the subject of this Agreement and identified in Exhibit B, [*****] as described in the engine manufacturers specification manuals.
Engine Flight Hour or EFH Engine flight hour expressed in hourly increments of aircraft flight from wheels up to wheels down.
Foreign Object Damage or FOD Damage to any portion of the Engine caused by impact with or ingestion of a nonEngine object such as birds, hail, ice or normal runway debris. FOD may be further classified as a Major FOD, which means FOD that causes an out of limit condition per the Aircraft Maintenance Manual, and which, either immediately or over time, requires the Engine to be removed from service or prevents the reinstallation of the Engine.
Induction The date work commences on the Engine at the DRS when all of the following have taken place: (i) GEs receipt of the Engine and required data (ii) Parties approval of the Workscope (iii) Parties agreement on use of the Customer Furnished Equipment: and (iv) receiving inspection (including pre-testing if needed).
Life Limited Part or LLP A part with a limitation on use established by the OEM or the AAA, stated in cumulative EFH or cycles.
Line Replaceable Unit or LRU A major control or accessory that is mounted on the external portion of an Engine. which can be replaced while the Engine is on-wing.
New Engine An Engine which has not undergone a shop visit, which has less than [*****] EFH since new and which contains only GE approved parts and GE approved repairs.
OEM The original manufacturer of an Engine or part thereof.
Performance Restoration The Services performed during a shop visit in which, at a minimum, the combustor and high-pressure turbine are exposed and subsequently refurbished, consistent with the Repair Specification.
Price Adjustment Matrix The matrix set forth on Exhibit D by which the Rate Per EFH is adjusted based on Customers operating parameters.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Procedures Manual A separate document, not part of this Agreement, which provides detailed procedures and guidance for the administration of the Agreement. In case of conflict between the Procedures Manual and the Agreement, the Agreement will prevail.
Qualifying Shop Visit A Repair Station visit during which the initial Performance Restoration is performed on an Engine on a Supplemental Work basis and which shall include the removal of all non-GE parts and non-GE approved LRUs, parts and repairs. The purpose of the Qualifying Shop Visit is to qualify such Engine for the Rate Per EFH fixed rate pricing for subsequent shop visits.
Rate Per EFH The [*****] and the [*****] as set forth in Article 5.
Rate Per EFH Services Those Services provided pursuant to Article 3.
Rate Per EFH Payments Any payments made pursuant to Article 6.
Redelivery (i) For Engines serviced at GE Celma shop, the shipment of a Serviceable Engine with legally required certifications. [*****], International Chamber of Commerce, [*****], at [*****], whereby Customer fulfills the obligations of buyer and GE fulfills the obligations of seller; and (ii) For Engines serviced at any other Designated Repair Station, the shipment of a Serviceable Engine with legally required certifications, [*****], International Chamber of Commerce, [*****], at the [*****], whereby Customer fulfills the obligations of buyer and GE fulfills the obligations of seller. Redeliver will mean the act by which GE completes Redelivery.
Removal Schedule The schedule jointly developed by GE and Customer for Engine removals for Services or Engine removal from operation.
Repair Specification The mutually agreed repair specification which establishes the minimum baseline to which an Engine or part thereof will be inspected, repaired, modified, reassembled and tested to make and Engine Serviceable. Such Repair Specification will meet or exceed the recommendations of the OEMs operational specifications, applicable OEM maintenance or overhaul manuals and Customers maintenance plan that has been approved by the AAA.
Repair Station One or more of the repair facilities owned by GE or its affiliates, now or in the future. which are certified by an appropriate AAA to perform the applicable Service hereunder. A list of such repair facilities will be provided upon request.
Repairable Capable of being made Serviceable.
Rotable Part A new or used Serviceable part drawn from a common pool of parts used to support one or more customers. A Rotable Part replaces a like part removed from an Engine when such removed part requires repair.
Scrapped Parts Those parts determined by GE to be Unserviceable and BER.
Service(s) With respect to an Engine or part thereof, all or any part of those maintenance, repair and overhaul services provided under this Agreement as either Rate Per EFH Services or Supplemental Work Services. Serviced will be construed accordingly.
Service Bulletin or SB The document issued and identified as a Service Bulletin by an OEM to notify the operator of modifications, substitution of parts, special inspections, special checks, amendment of existing life limits or establishment of first time life limits, or conversion of an Engine from one model to another.
Serviceable Meeting all OEM and AAA specified standards for airworthiness.
Shipment and Induction Schedule The schedule jointly developed by GE and Customer for an unserviceable Engine to be shipped by Customer to GE for Services and to be inducted at DRS. If GE and Customer fail to agree to a Ship Schedule within [*****] of an Engine removal, then GE, at its sole discretion, will send an invoice to Customer for the [*****] per Article 6.1 or elect to remove the Engine held by Customer in accordance with Article 11.1.1.
Supplemental Work Services Those Services provided pursuant to Article 4.
Termination The ending of this Agreement before the expiration of the Initial Term or extension thereof.
Unserviceable Not meeting all OEM and AAA specified standards for airworthiness.
Used Engine An Engine which has undergone a shop visit or which has more than [*****] EFH since new.
Workscope The document written by GE and approved by Customer describing the prescribed repair or approach to repair of an Engine to meet the requirements of the Repair Specification, including appropriate reliability and performance enhancements.
Workscope Planning Guide The document published by GE Aviation which describes the on condition maintenance concept for the engines. This document communicates the timing and extent of work required to enable operators to achieve reliability, performance, and maintenance cost goals.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT B: ENGINES COVERED
Customer will maintain a spare Engine(s) to installed Engines ratio of not less [*****] rounded up to the next whole Engine, during the term of this Agreement. However, GE will work with Customer if the ratio falls [*****].
Embraer Aircraft Order Delivery Schedule
A/C Qty. | Engine /Aircraft Type | Delivery Date | ||
[*****] |
[*****] | Jan 2009 | ||
[*****] |
[*****] | Feb 2009 | ||
[*****] |
[*****] | Dec 2008 | ||
[*****] |
[*****] | Feb 2009 | ||
[*****] |
[*****] | Feb 2009 | ||
[*****] |
[*****] | May 2009 | ||
[*****] |
[*****] | May 2009 | ||
[*****] |
[*****] | Jun 2009 | ||
[*****] |
[*****] | Oct 2009 | ||
[*****] |
[*****] | Jan 2010 | ||
[*****] |
[*****] | Feb 2010 | ||
[*****] |
[*****] | Apr 2010 | ||
[*****] |
[*****] | May 2010 | ||
[*****] |
[*****] | Jun 2010 | ||
[*****] |
[*****] | Jul 2010 | ||
[*****] |
[*****] | Aug 2010 | ||
[*****] |
[*****] | Oct 2010 | ||
[*****] |
[*****] | Nov 2010 | ||
[*****] |
[*****] | Jan 2011 | ||
[*****] |
[*****] | Feb 2011 | ||
[*****] |
[*****] | Mar 2011 | ||
[*****] |
[*****] | Apr 2011 | ||
[*****] |
[*****] | May 2011 | ||
[*****] |
[*****] | May 2011 | ||
[*****] |
[*****] | Jun 2011 | ||
[*****] |
[*****] | Jul 2011 | ||
[*****] |
[*****] | Aug 2011 | ||
[*****] |
[*****] | Sep 2011 | ||
[*****] |
[*****] | Oct 2011 | ||
[*****] |
[*****] | Nov 2011 | ||
[*****] |
[*****] | Dec 2011 | ||
[*****] |
[*****] | Jan 2012 | ||
[*****] |
[*****] | Feb 2012 | ||
[*****] |
[*****] | Mar 2012 | ||
[*****] |
[*****] | Apr 2012 | ||
[*****] |
[*****] | May 2012 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****] Spare Engine Delivery Schedule
Spare Engine Qty. | Engine Type | Delivery Date | ||
[*****] |
[*****] | Feb 2009 | ||
[*****] |
[*****] | June 2009 | ||
[*****] |
[*****] | Oct 2009 | ||
[*****] |
[*****] | July 2010 | ||
[*****] |
[*****] | May 2011 | ||
[*****] |
[*****] | Dec 2011 | ||
[*****] |
[*****] | May 2012 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT C: RATE ADJUSTMENT
The Rate Per EFH will be adjusted for fluctuation of the economy as described below:
Year of Operation (YO) will be identified as a given year of calendar operation. The prices for any YO will be adjusted in accordance with the following formula:
[*****]
Where: [*****]
Composite Index YO = [*****]
Labor Index YO = [*****]
Where: YO-1 | = Year prior to YO |
BY | = Base Year, which will be [*****] |
BY-1 | = Year prior to BY |
The calculation of Pn for any YO will be made effective January 1 of the YO.
Labor Index = the twelve (12) point weighted average of ECI 336411W Labor Index (North American Industrial Classification System (NAICS) Code 336411, (BLS code: CIU2023211000000I), base month and year December [*****] = 100), as published by the Bureau of Labor Statistics, U.S. Department of Labor, rounded to the second decimal place, for the twelve (12) month period ending on the last day of June of each year. Should the U.S. Department of Labor revise the methodology used for the determination of the values to be used to determine this index, cease publishing this index, or for any reason has not released values needed to determine the applicable price adjustment, GE will select a substitute for such values from data published by the Bureau of Labor Statistics or other similar data reported by non governmental United States organizations. Appropriate revisions of the formula will be made as required to reflect any substitute values.
Spare Parts Index YO = the compounded percentage price change from the BY to the YO, calculated using the annual average price changes published by GE for the CF34-10 Spare Parts Price Catalog, and rounded to the first decimal place. For example, and for illustrative purposes only, if the YO were 2001, and the published average Spare Parts Catalog price changes were an increase of [*****] Spare Parts Catalog, an increase of [*****] Spare Parts Catalog, and an increase of [*****] Spare Parts Catalog, the Spare Parts Index YO would be [*****] calculated as follows: [*****].
All Rates are also subject to economic price adjustments on January 1 of each year based upon the cumulative change in these indices with weightings as shown: For cumulative changes in the Composite Index set forth below less than or equal to [*****], the Rate Per EFH will be adjusted by the cumulative percentage change in the composite index. For cumulative changes in the Composite Index set forth greater than [*****], but less than or equal to [*****] the Rate Per EFH will be adjusted by [*****] . However, on an annual basis, for changes in the Composite Index greater than [*****], the Rate Per EFH will be adjusted by [*****] , plus [*****] of the changes greater than [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT D: PRICE ADJUSTMENT MATRIX
When the actual operating parameters do not precisely equal the values on the tables, severity will be calculated by [*****]. The resultant severity value [*****]. The final severity applied will be [*****].
Should Customers actual operating parameters go beyond the furthest points of the table provided, GE shall adjust the table to cover Customers updated operating parameters. Such adjusted table will be applied retroactively to the time Customers operating parameters moved beyond the points provided and, if applicable, GE shall invoice or provide a credit to Customer for any amounts that would have been applicable if the rates on such table had been in effect at the time the flight hours were incurred.
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT E: SUPPLEMENTAL WORK PRICING
1. Direct Labor Charges at the DRS: Charged in accordance with the Fixed Price Labor set forth in Exhibit G. | ||||||
2. All Other Labor Charges Not Specified in Exhibit G
[*****] per labor hour | ||||||
3. Charges For Parts and Material (GE furnished, unless stated otherwise)
| ||||||
Type Of Material |
Price | Handling Fee | ||||
New Parts (Including LL |
CLP | [*****] | ||||
Rotable Parts |
Price of the repair when applicable |
[*****] [*****] [*****] | ||||
Customer Furnished Equipment |
Not Applicable | [*****] [*****] [*****] | ||||
Type Of Material |
Price | Handling Fee | ||||
Used Serviceable Parts | [*****] of CLP | [*****] CLP | ||||
Subcontracted Services | Subcontractor Invoice | [*****] of Invoice | ||||
4. Component And Accessories Repair: Per GE Component Repair Directory or Accessory Repair Catalog pricing in effect at time of repair. | ||||||
5. Test Cell Usage Charges [*****] per test, plus labor, fuel, oil and other material |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT F: SUPPLEMENTAL WORK PRICING ANNUAL ADJUSTMENT
1. | Basis: |
All prices are stated in [*****] United States Dollars and are effective through [*****].
2. | Escalation of Hourly Labor Rates, Fixed Price Labor Charges and Test Cell Usage Charges: |
On [*****] and every [*****] of successive years, hourly labor rates, fixed price labor charges and test cell usage charges set forth in the following pricing schedules will be adjusted by an amount [*****] in the 12 point weighted average of the Employment Cost Index for Workers in Aerospace Manufacturing (North American Industrial Classification System (NAICS) Code 336411(BLS code: CIU2023211000000I)) as released by the US Department of Labor, Bureau of Labor Statistics for the twelve (12) month period ending 31 June of the prior year as compared to the average of the twelve (12) month period ending 31 June of one (1) year previous; provided however, that any [*****] which is less than zero (0) will, for purposes of this Agreement, be deemed equal to zero (0). Should the U.S. Department of Labor revise the methodology used for the determination of the values to be used to determine this index, cease publishing this index, or for any reason has not released values needed to determine the applicable price adjustment, the parties will agree on selection of a substitute for such values from data published by the Bureau of Labor Statistics or other similar data reported by non governmental United States organizations. Appropriate revisions of the formula will be made as required to reflect any substitute values. Each such increase will be effective as to Services performed on or after the relevant change date.
3. | Escalation of Maximum Charge for Handling Fees |
GE reserves the right to increase maximum charge for the Handling Fees set forth in the preceding schedules by values [*****] in the aggregate CLP; provided however, that any [*****] which is less than zero (0) will, for purposes of this Agreement, be deemed equal to zero (0). Each such increase will be effective as to Services performed on or after the relevant change date. For the avoidance of any doubt, the percentage will not be subject to escalation but only the maximum amount.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT G: SUPPLEMENTAL WORK PRICING FIXED PRICE LABOR SCHEDULE -
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT H: SUPPLEMENTAL ON-WING SUPPORT
SERVICES
GE On Wing Support, Inc., will provide on wing support technicians, along with special tooling, to perform flight-line services, on wing and off wing inspection, maintenance, and repair of Engines as specified in a mutually executed work order by Customer. Such Engine support services may be provided, as designated by Customer and agreed by GE at Customers facilities or at repair facilities owned by GE On Wing Support, Inc. or its affiliates. All Services provided shall be in accordance with its standard commercial quality control policies, procedures, and practices. A turn-time estimate for each workscope for acceptance by Customer prior to beginning of Services will be provided.
FIXED WORKSCOPE PRICING
Fixed Prices for Workscopes provided by GE On Wing Support, Inc. include the labor charges involved in preparation and execution of the workscope requiring normal manpower and tooling in normal work conditions. It does not include consumables or other charges that may be applicable. Prices are stated in year [*****] U.S. Dollars and will remain in effect for the noted calendar year. After the initial term, GE On Wing Support will quote its Current list prices.
CF34-10 Fixed Workscope Pricing | ||||
[*****] | ||||
[*****] | ||||
Replacement of: |
||||
Accessory Gearbox |
[*****] | |||
Transfer Gearbox |
[*****] | |||
Fan Blade Change and Lubrication (Same Set) |
[*****] | |||
Fan Blade Change and Lubrication (Change Set & Verify Balance) |
[*****] | |||
LPT |
[*****] | |||
LPT + HPT |
[*****] | |||
Fuel Nozzles (Full Set Off Wing) |
[*****] | |||
Fuel Nozzles (Full Set On Wing) |
[*****] | |||
Borescopes: |
||||
Complete |
[*****] | |||
Complete + Vídeo |
[*****] | |||
Hot Section (HPT, Stg 1 Nozzles & Combustor) |
[*****] | |||
Borescope Blending Off Wing Only (per day) |
[*****] | |||
Other Workscopes: |
||||
Engine Change |
[*****] | |||
Engine Change with [*****] Swap |
[*****] | |||
Powerplant [*****] Builds |
[*****] | |||
Top Case |
[*****] | |||
Top case + bottom case |
[*****] | |||
VSV Dynamic Rig Check |
[*****] | |||
Static Rig Check VSV/VBV system |
[*****] | |||
Fan Trim balance |
[*****] | |||
Fan Case Abradable Grind |
[*****] | |||
ECU Software Upgrades |
[*****] | |||
Engine Receiving/Prep-To-Ship |
[*****] | |||
Engine Preservation |
[*****] |
Other pricing applicable for Engine maintenance provided by GE On Wing Support, Inc
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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A. | Workscope Pricing and Deployment |
1) | If additional workscopes not listed in the fixed price workscope schedule are required, they will be priced and quoted prior to beginning of work. The fixed rate workscope schedule pricing covers all technician repair activity, preparation and deprep requiring normal manpower and tooling in normal work conditions. Reasonable additional charges may apply for unusual engine or work conditions. |
2) | For Services performed at a location other than a station owned by GE On Wing Support, Inc. at the direction of Customer, the following deployment charges may be accessed unless a fixed price is agreed for a specific deployment: |
a) | Travel time for domestic travel from a GE On Wing Support site will be invoiced at the rate of [*****] per technician per day. Additional charges will apply for international deployments. |
b) | Travel and living expenses will be charged at actual price, plus a [*****] administrative fee. Miscellaneous expenses may be charged at a reasonable [*****] rate. |
c) | Charges for shipping tooling to job site will be billed at [*****] cost. |
3) | Should a delay outside the control of GE On Wing Support, Inc occur which results in technician idle time necessitating an additional unplanned overnight stay, Customer may be charged [*****] per day per technician in addition to the applicable travel and living costs. |
4) | Engine Unloading/Loading/Prep-To-Ship Fee is applicable to all engines that must be unloaded and prepped for shipment by OWS. |
5) | For deployment requested within [*****] hours of initial contact or [*****], an expedite fee of [*****] of the total invoice will be applied. |
6) | Parts ordered for agreed workscope will be per standard Unit Pack Quantity (UPQ); parts not consumed as part of the agreed workscope will be turned over to Customer. |
7) | When GE OWS agrees to deploy technicians to facilities designated by Customer, it may, at its option, make arrangements to provide security for its and its affiliates employees to the extent it views it necessary to meet a potential security threat or situation. Customer agrees to bear all reasonable additional cost for security arrangements. |
B. | Material and Subcontractor |
GE On Wing Support, Inc. furnished material or subcontracted services required for Services performed on Customers Equipment at the direction of Customer shall be charged at acquisition cost plus a [*****] fee with a maximum of [*****] per line item.
C. | Supplemental OWS Labor Hourly Billing |
Direct labor for services performed is [*****].
Customer will be entitled to use any remaining OWS hour as per article 3.5 herein towards any of the supplemental OWS invoice.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT I: LINE REPLACEABLE UNITS
The following list contains [*****] that are [*****] during a Rate Per EFH Shop Visit in accordance with Article 3.1(e).
Package | Component | QPE | Classification | Latest Port Number | Shop Support (Y/N) | |||||
[*****] |
[*****] | [*****] | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT J: GENERAL TERMS AND CONDITIONS
1.0 LIMITATION OF LIABILITY AND INDEMNIFICATION
1.1 Total Liability. The total liability of GE for any and all claims, whether in contract, warranty, tort (including negligence but excluding willful misconduct and gross negligence), product liability, patent infringement or otherwise, for any damages arising out of, connected with or resulting from the performance or non-performance of any Service or from the manufacture, sale, Redelivery, resale, repair, overhaul, replacement or use of the Engine or any item or part thereof, will not exceed the price allocable to the repaired or overhauled item, part or Service which gives rise to the claim. Notwithstanding the foregoing, in no event will GE have any liability hereunder, whether as a result of breach of contract, warranty, tort (including negligence but excluding willful misconduct and gross negligence), product liability, or otherwise, for any special, consequential, incidental, resultant or indirect damages, (including, without limitation, loss of: use, profit, revenue or goodwill) or punitive or exemplary damages.
In no event will GE have any liability hereunder, whether as a result of breach of contract, warranty, tort (including negligence), product liability, patent liability, or otherwise, for the design, material, workmanship, engineering defects or product liability and any damages whatsoever, including damages to personal property and for personal injury or death, caused in any way by the manufacturer of an Engine, or the parts, LRUs, components or material, thereof, or related thereto.
In the event Customer uses non-GE parts or non-GE approved LRUs, parts or repairs in an Engine and such LRUs, parts or repairs cause personal injury, death or property damage to third parties, Customer shall indemnify and hold harmless GE from all claims and liabilities associated therewith. The preceding indemnity shall apply whether or not GE was provided a right under this Agreement to remove such LRUs, parts or repairs, and irrespective of the exercise by GE of such right.
The limitation of liability contained in this Article 1.1 shall not apply to any liability on the part of GE in connection with third party claims, in respect to death or personal injury, alleging in whole or in part, the actual negligence of GE in workmanship.
1.2 Definition. For the purpose of this Article 1, the term GE is deemed to include GE and its parent and affiliated companies, the subcontractors and suppliers of any Services furnished hereunder, and the directors, officers, employees, agents and representatives of each.
2.0 EXCUSABLE DELAY
2.1 Excusable Delay. Either Party will be excused from, and will not be liable for, any delay in performance or failure to perform hereunder (except for the obligation to pay money or credit or debit an account which will not be excused hereunder), and will not be deemed to be in default for any delay in or failure of performance hereunder due to causes beyond its reasonable control. Such causes will be conclusively deemed to include, but not be limited to acts of God, fire, terrorism, war (declared or undeclared), severe weather conditions, earthquakes, epidemics, material shortages, insurrection, acts or omissions of the other Party, any act or omission by any governmental authority, strikes, labor disputes, acts or threats of vandalism or terrorism (including disruption of technology resources), or transportation shortages (each an Excusable Delay). [*****].
2.2 Continuing Obligations. Section 2.1 will not, however, relieve either Party from using its best commercial efforts to avoid or remove such causes of delay and continue performance with reasonable dispatch when such causes are removed. During the period of an excusable delay, GE will have the right to invoice Customer for Services performed, and Customer will pay all such invoices net thirty (30) Days.
2.3 Extended Delay Termination. If delay resulting from any of the foregoing causes extends for more than [*****] and the Parties have not agreed upon a revised basis for continuing the Services, including any adjustment of the price, then either Party, upon [*****] written notice to the other, may terminate the performance of Services with respect to the Engine for which Services were delayed.
3.0 NOTICES
3.1 Acknowledgment. All notices required or permitted under this Agreement will be in writing and will be delivered personally, via first class return receipt requested mail, by facsimile, by courier service, or by express mail, addressed as follows, or to such other address as either Party may designate in writing to the other Party from time to time:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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GE Engine Services, Inc. | Azul Linhas Aereas Brasileiras | |||
Attn: | Attn: | |||
Phone: | Phone: | |||
Fax: | Fax: | |||
Copy to: Senior Counsel, GE Engine Services Inc. MD F-125, Cincinnati, Ohio 45215 | Copy to: | |||
GE Celma Ltda. | ||||
Attn: | ||||
Phone: | ||||
Fax: | ||||
Copy to: | ||||
Senior Counsel, GE Engine Services Inc. MD F-125, Cincinnati, Ohio 45215 |
3.2 Effect of Notices. Notices will be effective and will be deemed to have been given to (or received by) the recipient: (A) upon delivery, if sent by courier, express mail, or delivered personally; (B) on the next business day following receipt, if sent by facsimile; or (C) on the fifth (5th) day after posting (or on actual receipt, if earlier) in the case of a letter sent prepaid first class mail.
4.0 TAXES AND OTHER:
4.1 Taxes, Duties or Charges. In addition to the price for the Services and save otherwise as expressly provided in this Agreement, Customer will pay to the appropriate authority or to GE, as applicable, upon demand, any Federal, State, Municipal, local or foreign taxes (including sales, use, ad valorem, excise, turnover or value added taxes), duties, fees, charges, imposts, tariffs, tax on circulation or transfer or assessments of any nature (but excluding taxes assessed on the income, profits or gains) as in force today or created, altered, or otherwise introduced in the future (Taxes), assessed or levied in connection with GEs performance under this Agreement. For avoidance of doubt and purpose of illustration, any and all Taxes incurred by GE in fulfilling responsibilities under this Agreement (including, but not limited to, Contribuição de Intervenção no Domínio Econômico (CIDE) and ISSQN (tax on services of any nature) (if applicable) borne upon payment to non-Brazilian service providers) shall be added to Customers invoice as a separate line item(s) in addition to the amount calculated pursuant to Article 6, Invoicing and Payment of this Agreement.
4.2 Right To Protest/Refund. If claim is made against GE for any such Taxes, GE will immediately notify Customer and, if requested by Customer, GE will not pay except under protest, and if payment be made, GE will use all reasonable efforts to obtain a refund thereof. If all or any part of any such Taxes be refunded, GE will repay to Customer such part thereof as Customer will have paid. Customer will pay to GE, upon demand, all expenses (including penalties, interest and attorneys fees) incurred by GE in protesting payment and in endeavoring to obtain such refund.
4.3 Withholdings. All payments by Customer to GE under this Agreement will be free of all withholdings of any nature whatsoever except to the extent otherwise required by law, and if any such withholding is so required, Customer will pay an additional amount such that after the deduction of all amounts required to be withheld, the net amount received by GE will equal the amount that GE would have received if such withholding had not been required.
5.0 DISPUTE RESOLUTION, ARBITRATION
5.1 Dispute Resolution. If any dispute arises relating to this Agreement, the Parties will endeavor to resolve the dispute amicably, including by designating senior managers who will meet and use commercially reasonable efforts to resolve any such dispute. If the Parties senior managers do not resolve the dispute within [*****] of first written request, either party may request that the dispute be settled and finally determined by binding arbitration, in accordance with the Commercial Arbitration Rules of the American Arbitration Association in New York, New York, three (3) arbitrators appointed in accordance with the American Arbitration Association Rules. Each of GE and Airline shall select one arbitrator and the two arbitrators so selected will select the third arbitrator. If the two arbitrators fail to reach agreement on the selection of third arbitrator within [*****], then such third arbitrator shall be appointed by the International Court of Arbitration of the International Chamber of Commerce (ICC). The arbitrator(s) will have no authority to award punitive damages, attorneys fees and related costs or any other damages not measured by the prevailing partys actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the Agreement and applicable law. The award of the arbitrator(s) will be final, binding and non-appealable, and judgment may be entered thereon in any court of competent jurisdiction. All statements made or materials produced in connection with this dispute resolution process and arbitration are confidential and will not be disclosed to any third party except as required by law or subpoena. The Parties
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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intend that the dispute resolution process set forth in this Article will be their exclusive remedy for any dispute arising under or relating to this Agreement or its subject matter.
5.2 Exception. Either party may at any time, without inconsistency with this Article, seek from a court of competent jurisdiction any equitable, interim, or provisional relief to avoid irreparable harm or injury. This Article will not apply to and will not bar litigation regarding claims related to a partys proprietary or intellectual property rights, nor will this Article be construed to modify or displace the ability of the Parties to effectuate any termination contemplated in Article 12 of the Agreement.
6.0 NONDISCLOSURE OF PROPRIETARY DATA
6.1 Non-Disclosure. Unless the Parties otherwise agree in writing, any knowledge, information or data which the Parties have or may disclose to each other shall be held in confidence and may not be either disclosed or used for any purpose, except that GE may disclose the same to its affiliates, subsidiaries, joint venture participants, engineering service provider, or consultants as needed to perform the Services provided under this Agreement. The preceding clause will not apply to information which (1) is or becomes part of the general public knowledge or literature otherwise than as a result of breach of any confidentiality obligation to GE, or (2) was, as shown by written records, known to the receiving party prior to receipt from the disclosing party.
6.2 Intellectual Property. Nothing contained in this Agreement will convey to either Party the right to use the trademarks of the other, or convey or grant to Customer any license under any patent owned or controlled by GE.
7.0 PATENTS
7.1 Claims. GE will handle all claims and defend any suit or proceeding brought against Customer insofar as based on a claim that, without further combination, any material or process used in the repair of any items furnished under this Agreement constitutes an infringement of any patent or copyright of the U.S. This Section 7.1 will apply only to the extent that such material or process is so used to GEs specification.
7.2 Liability. GEs liability under this Article 7 is expressly conditioned upon Customer promptly notifying GE in writing and giving GE exclusive authority, information and assistance (at GE expense) for the handling, defense or settlement of any claim, suit or proceeding. In case such material or process is held in such suit to constitute infringement and the use of said material or process is enjoined, GE will, at GEs own expense and at GEs option, either, (1) settle or defend such claim or suit or proceeding arising therefrom, or (2) procure for Customer the right to continue using said material or process in the item repaired under this Agreement, or (3) replace or modify such item with an item incorporating non-infringing material or process, or (4) refund the repair price applicable to such material or process.
7.3 Indemnification. The preceding Section 7.2 will not apply: (1) to any material or process or part thereof of Customer design or specification, or used at Customers direction in any repair under this Agreement, or (2) to the use of any material or process furnished under this Agreement in conjunction with any other apparatus, article, material or process. As to any material or process or use described in the preceding sentence, GE assumes no liability whatsoever for patent or copyright infringement, and Customer will, in the same manner as GE is obligated to Customer above, indemnify, defend and hold GE harmless from and against any claim or liability, including costs and expense in defending any such claim or liability in respect thereto.
7.4 Remedy. THE FOREGOING WILL CONSTITUTE CUSTOMERS SOLE REMEDY AND GES SOLE LIABILITY FOR PATENT OR COPYRIGHT INFRINGEMENT BY ANY MATERIAL OR PROCESS AND IS SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN ARTICLE 1, LIMITATION OF LIABILITY. THE PATENT WARRANTY OBLIGATIONS RECITED ABOVE ARE IN LIEU OF ALL OTHER PATENT WARRANTIES WHATSOEVER, WHETHER ORAL, WRITTEN, EXPRESSED, IMPLIED OR STATUTORY (INCLUDING ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE).
8.0 [*****]
8.1 [*****] Customer hereby [*****] to GE a [*****] in the [*****] GE or any of GEs affiliates at any time ([*****], to secure all amounts owed by Customer to GE hereunder, and GE will have all [*****] under the Uniform Commercial Code and applicable law with respect to such property. Customer consents to [*****] and similar instruments necessary to perfect GEs security interests as required by the UCC, Federal Aviation Administration, and applicable law. Customer will also exert commercially reasonable efforts to obtain from [*****] as the case may be, of a [*****], which [*****] will be subordinate to prior [*****] granted by Customer to third parties, in any other property in the [*****] or any of GEs affiliates at any time ([*****] Customer to GE hereunder, and GE will have [*****] and applicable law with respect to [*****]. [*****] Customer will promptly execute and deliver all documentation, as reasonably requested by GE, [*****] and any other statutory [*****] applicable law. Customer shall not [*****] in Engines that are [*****] to those of GE without GEs prior written consent.
8.1.1 In the event Customer becomes delinquent in making payments under this Agreement, except for payments which are the subject of a good faith dispute, GE [*****] under this Agreement until all payments due in exchange for the respective Services provided and spare parts and components furnished in connection therewith are fully paid.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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For the purpose of this provision, GE shall be considered as bailee of those Engines and the Customer as bailor, and the value of the Customers corresponding debt to GE shall be the bailment consideration referred to in Article 644 of the Civil Code. Customer shall reimburse GE for all costs and expenses incurred by GE with the maintenance of the Engines retained in accordance with the terms set forth in this Agreement, which may be strictly necessary to avoid the deterioration of the aforesaid Engines until the full payment of the overdue payments.
8.2 [*****]. Customer: (i) acknowledges that GE has the [*****] under applicable law (foreign or domestic) against [*****] and (ii) agrees to supply such information, including name and address [*****] as reasonably requested by GE to facilitate filing of such [*****] in New York or any other jurisdiction where Services may be performed. With respect to Engines leased by Customer, GE understands that Customer has been [*****] GE may, at its option, notify [*****] and [*****].
8.3 [*****] If Customer fails to [*****] under this Agreement and GE [*****] whether pursuant to a [*****] under this Agreement or a [*****], then Customer [*****] and a [*****] either (i) certifying that the Engine has not been involved in any Aircraft Accident or Incident or (ii) specifying the date and facts surrounding any Accident or Incident in which the Engine has been involved and the nature and extent of the damage sustained (such records, log books, certificate and other documentation referred to hereinafter as the Engine Documents). The Parties recognize that the failure by Customer to [*****] may have a material, adverse effect on the value of any Engine with respect to which [*****] and the [*****], and that the [*****] GE may sustain as a result are not readily calculable.
9.0 GENERAL PROVISIONS
9.1 Assignment. This Agreement, any related purchase order or any rights or obligations hereunder may not be assigned without the prior written consent of the other Party, except that Customers consent will not be required for an assignment by GE to one of GEs affiliates. In the event of any such substitution, Customer will be so advised in writing. Any assignment in contradiction of this clause will be considered null and void.
9.2 Governing Law, Waiver of Immunity. The Agreement will be interpreted and applied in accordance with the substantive laws of the State of New York, without giving effect to its choice of law or conflict of law provisions, rules or procedures (except to the extent that the validity, perfection or creation of any lien or security interest hereunder and the exercise of rights or remedies with respect of such lien or security interest for a particular item of equipment are governed by the laws of a jurisdiction other than New York). With respect to any Customer who is incorporated or based outside the United States, to the extent that such Customer or any of its property becomes entitled at any time to any immunity on the grounds of sovereignty or otherwise from any legal action, suit or proceeding of any nature, Customer hereby irrevocably waives the application of such immunity and particularly, the U.S. Foreign Sovereign Immunities Act, 28 U.S.C. 1602, et. seq., insofar as such immunity relates to Customers rights and obligations in connection with this Agreement.
9.3 Savings Clause. If any portion of this Agreement will be determined to be a violation of or contrary to any controlling law, rule or regulation issued by a court of competent jurisdiction, then that portion will be unenforceable in such jurisdiction. However, the balance of this Agreement will remain in full force and effect.
9.4 Beneficiaries. Except as herein expressly provided to the contrary, the provisions of this Agreement are for the Parties mutual benefit and not for the benefit of any third party.
9.5 Controlling Language. The English language will be used in the interpretation and performance of this Agreement. All correspondence and documentation arising out of or connected with this Agreement and any related purchase order(s), including Engine records and Engine logs, will be in the English language.
9.6 Non-Waiver of Rights and Remedies. Any failure or delay in the exercise of rights or remedies hereunder will not operate to waive or impair such rights or remedies. Any waiver given will not be construed to require future or further waivers.
9.7 Titles/Subtitles. The titles and subtitles given to the sections of the Agreement are for convenience. They do not limit or restrict the context of the article or section to which they relate.
9.8 Currency Judgment. This is an international transaction in which the specification of United States Dollars is of the essence. No payments required to be made under this Agreement will be discharged by payments in any currency other than United States Dollars, whether pursuant to a judgment, arbitration award or otherwise.
9.9 No Agency Fees. Customer represents and warrants that no officer, employee, representative or agent of Customer has been or will be paid a fee or otherwise has received or will receive any personal compensation or consideration by or from GE in connection with the obtaining, arranging or negotiation of this Agreement or other documents entered into or executed in connection herewith.
9.10 On-Site Representative. Subject to the following conditions, GE agrees to permit one Designated Representative, from time to time during the term of this Agreement, to enter onto its premises at the Designated Repair Station for the purpose of supporting
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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the Services on Engines. GE will furnish such Designated Representative the use of a non-exclusive workspace, including the use of a local telephone line, internet access and parking accommodations. Costs incurred by such Designated Representative, including long distance telephone charges, fax or computer charges will be the responsibility of Customer, and if charged to GE in the first instance, will be invoiced to Customer. GE will provide ground transportation from nearest major international airport to DRS for a maximum of [*****] trips each quarter.
9.11 No Agency. Nothing in this Agreement will be interpreted or construed to create a partnership, agency or joint venture between GE and Customer.
9.12 Entire Agreement. This Agreement, together with its Exhibits, contains and constitutes the entire understanding and agreement between the Parties hereto respecting the subject matter hereof, and supersedes and cancels all previous negotiations, agreements, representations and writings in connection herewith. This Agreement may not be released, discharged, abandoned, supplemented, modified or waived, in whole or in part, in any manner, orally or otherwise, except by a writing of concurrent or subsequent date signed and delivered by a duly authorized officer or representative of each of the Parties hereto making specific reference to this Agreement and the provisions hereof being released, discharged, abandoned, supplemented, modified or waived.
9.13 Counterparts. This Agreement may be executed in one or more counterparts, all of which counterparts will be treated as the same binding agreement, which will be effective as of the date set forth on the first page hereof, upon execution and delivery by each Party hereto to the other Party of one or more such counterparts.
9.14 Governmental Authorization. Customer will be the importer and/or exporter of record and will be responsible for timely obtaining any import license, export license, exchange permit or other required governmental authorization relating to the Engine. At Customers request and expense, GE will assist Customer in its application for any required U.S. export licenses. GE will not be liable if any authorization is not renewed or is delayed, denied, revoked or restricted, and Customer will not thereby be relieved of its obligation to pay for Services performed by GE. All transported Engines will be subject to the U.S. Export Administration Regulations and/or International Traffic in Arms Regulations. Customer agrees not to dispose of U.S. origin items provided by GE other than in and to the country of ultimate destination and/or as identified in an approved government license or authorization, except as said laws and regulations may permit.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT K: WARRANTY AND GUARANTEE ASSIGNMENT LETTER
(Customer Letterhead)
(Date)
(Name and Address of Original Engine Manufacturer)
Attn:
Re: | Assignment of Third Party Warranty and Guarantees |
Dear (Sir/Madam):
(Customer) and the (Original Engine Manufacturer) entered into Agreement Number dated , 20 , wherein (Customer) agreed to purchase a specified number of aircraft engines and (Original Engine Manufacturer) agreed to provide certain warranties and guarantees with regard to said engines to (Customer).
(Customer) and GE Engine Services, Inc. have entered into a separate engine maintenance agreement Number dated 20 , (Maintenance Agreement) for the maintenance, repair and overhaul of said engines. The Maintenance Agreement specifies that (Customer) shall, during the term of the Agreement, assign to GE Engine Services, Inc. the benefit of all warranties and guarantees applicable to the engines covered by the Maintenance Agreement.
This letter serves as official notification: 1) to (Original Engine Manufacturer) of Customers assignment of the applicable warranties and guarantees under the engine purchase agreement; and 2) to GE Engine Services, Inc. of (Customer)s fulfillment of this obligation under the Maintenance Agreement.
The following warranties and guarantees are hereby assigned to GE.
| New Engine Warranty |
| New Parts Warranty |
| Ultimate Life Warranty |
| Campaign Change Warranty |
| Shop Visit Rate Guarantee |
| Extended Campaign Change Guarantee |
| Exhaust Gas Temperature (EGT) Guarantee |
(Original Engine Manufacturer), please indicate your concurrence with said assignment by signing in the space provided below and returning a copy of this letter to the undersigned.
(Signature Block)
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EXHIBIT L: [*****] DISTRIBUTION SCHEDULE
Owned Aircraft Cash and Spare Engine [*****]
[*****] |
[*****] |
Delivery Date | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Jan-10 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Feb-10 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Apr-10 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
May-10 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Jun-10 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Jul-10 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Aug-10 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Oct-10 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Nov-10 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Jan-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Feb-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Mar-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Apr-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
May-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
May-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Jun-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Jul-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Aug-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Sep-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Oct-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Nov-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Dec-11 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Jan-12 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Feb-12 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Mar-12 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
Apr-12 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] |
May-12 | [*****] | [*****] | [*****] | |||||||
[*****] | [*****] | [*****] | [*****] | [*****] | ||||||||
[*****] | [*****] | [*****] | [*****] | [*****] | ||||||||
[*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT M: OPTIONAL AIRCRAFT
Customer shall be entitled to add up to [*****] Engines as per the delivery schedule below following the terms and conditions set forth in this Agreement, which will be installed in the [*****] optional owned aircraft in accordance with the purchase agreement between the Customer and the aircraft manufacturer.
The optional aircraft, once added Into the Customers existing fleet covered under this Agreement in accordance with the terms set forth herewith will be entitled to pricing set forth In Article 5.1 through 5.4 of the Agreement provided it comply with Rate Per EFH Operational Parameters set forth in Article 5.2 and in compliance with the terms and conditions set forth in this Exhibit. Pricing will be escalated in accordance with escalation formula set forth on Exhibit C; provided. however, that It shall not be subject to any escalation cap until the date aircraft is delivered as per contractual delivery dates listed below, and as from such delivery date it shall be subject to a [*****] escalation cap with a Hyper-out of [*****] during the entire Term of the Agreement: provided; further, that Customer takes delivery of each such optional aircraft within [*****] of such delivery dates. The term of this Agreement shall be [*****] for each of such optional owned aircraft.
In case of any change of the delivery dates (plus or minus [*****]) set forth herein below, GE will evaluate the effect on the Rate Per EFH taking into consideration effects on the fleet size and other commercial considerations and may adjust the Rate Per EFH accordingly. The adjusted Rate Per EFH will be incorporated into the Agreement by way or amendment and Customer will pay the adjusted Rate Per EFH for all the EFH incurred by the optional aircraft engines and Leased aircraft engines identified in Exhibit M and N from the date each of such Engine enters the Agreement.
The optional aircraft, once added to the Customers fleet and accepted by GE to be included in this Agreement shall be entitled to a [*****] of [*****] per aircraft [*****]. Such [*****] will be available to Customer in 04 consecutive annual installments or[*****]. The first installment shall be available within [*****] as of the delivery of the aircraft in accordance with the delivery date.
Customer will maintain a spare Engine(s) to installed Engines ratio of not less than [*****] rounded up to the next whole Engine, during the term of this Agreement. However, GE will work with Customer if the ratio falls slightly less than [*****] .
Optional AJC delivery schedule
[*****] | Contractual Delivery Date |
[*****] | Contractual Delivery Date | |||
[*****] | February 2012 | [*****] | March 2013 | |||
[*****] | April 2012 | [*****] | April 2013 | |||
[*****] | June 2012 | [*****] | May 2013 | |||
[*****] | July 2012 | [*****] | June 2013 | |||
[*****] | August 2012 | [*****] | July 2013 | |||
[*****] | October 2012 | [*****] | August 2013 | |||
[*****] | November 2012 | [*****] | September 2013 | |||
[*****] | December 2012 | [*****] | October 2013 | |||
[*****] | January 2013 | [*****] | November 2013 | |||
[*****] | February 2013 | [*****] | December 2013 | |||
[*****] | Contractual Delivery Date |
[*****] | Contractual Delivery Date | |||
[*****] | January 2014 | [*****] | November 2014 | |||
[*****] | February 2014 | [*****] | December 2014 | |||
[*****] | March 2014 | [*****] | January 2015 | |||
[*****] | April 2014 | [*****] | February 2015 | |||
[*****] | May 2014 | [*****] | March 2015 | |||
[*****] | June 2014 | [*****] | April 2015 | |||
[*****] | July 2014 | [*****] | May 2015 | |||
[*****] | August 2014 | [*****] | June 2015 | |||
[*****] | September 2014 | [*****] | July 2015 | |||
[*****] | October 2014 | [*****] | August 2015 |
[*****] shall be issued to the Customer within [*****] of Customer written request to GE subsequent to the delivery dates or the above delivery schedule. Such [*****] amounts are not subject to escalation and are subject to reduction for any change in the operating parameters (including number and delivery dates or Engines) set forth in Article 5.2 that reduces the Contracted Hours considering the additional Optional Aircraft. Contracted Hours are defined as the Annual Utilization multiplied by number of Engines multiplied by the number or years in the Term.
The remaining [*****] may only be applied by Customer towards (i) the [*****] of aircraft engine goods and services from GE, up to a maximum or [*****] including [*****] of spare engines, provided that those engines are incremental to the spare engine delivery schedule identified in Exhibit L. [*****] be available on the delivery dates of such engines.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Such [*****] will be issued and valid only if Customer is current in all payments due and is otherwise not in material breach under this Agreement and any other applicable agreements to which [*****] are to be applied. GE shall be entitled to set off from such [*****] any outstanding obligation and amounts that are due and owing from Customer to GE (and not subject to a good faith dispute). Customer may carry over any [*****] , however. [*****] must be applied by the end of the term of this Agreement. Any [*****] amounts outstanding at the end of the term of the Agreement will be canceled.
If an Engine is removed from the Agreement and has not incurred sufficient EFH to meet the Contracted Hours for that Engine, any remaining [*****] to be issued shall be reduced and, within [*****] of such Engines removal, Customer shall [*****] to GE [*****] on a pro-rata basis based on EFH incurred and for which GE has received all Rate Per EFH Payments under this Agreement. By way of example only, if an Engine being removed has Incurred and GE has received all Rate Per EFH Payments for [*****] and the total Contracted Hours for this Engine are [*****] , then Customer shall [*****] of the [*****] and paid against such Engine as determined on a pro-rata basis based on the number of Engines covered by the Agreement. If GE has not received any Rate Per EFH Payments on the removed Engine. Customer shall [*****] of the [*****] allocated and [*****] against such Engine as determined on a pro-rata basis based on the number of Engines covered by the Agreement.
In the event of termination of this Agreement due to any reason other than the material breach by GE, such [*****] will be cancelled and any amount issued and applied as of the time of termination shall be [*****] to GE by Customer within [*****] of termination of this Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT N: LEASED AIRCRAFT
Customer shall have the right to add up to [*****] New Engines (Engines having less than or equal to 50 EFH since new) within the next [*****] months [*****] as of the Commencement Date, as per the delivery schedule set forth herein below, following the terms and conditions set forth in this Agreement, which will be installed in the [*****] additional leased aircraft (besides [*****] ). The added New Engines should not have more than 50 EFH since new when delivered to Customer. For the avoidance of any doubt, Parties agree that Used Engines (meaning for the purposes of this Agreement, Engines having more than 50 EFH since new) shall not be entitled to the terms and conditions set forth in this Exhibit N.
The leased aircraft, once added into the Customers existing fleet covered under this Agreement in accordance with the terms set forth herewith shall be entitled to pricing set forth in Article 5.1 through 5.4 of the Agreement provided it follows Rate Per EFH Operational Parameters set forth in Article 5.2 and in compliance with the terms and conditions set forth in this Exhibit. . Pricing will be escalated in accordance with escalation formula set forth on Exhibit C; provided, however, that it shall not be subject to any escalation cap until the date aircraft is delivered as per contractual delivery dates listed below, and as from such delivery date it shall be subject to a [*****] escalation cap with a Hyper-out of [*****] during the Term of the Agreement; provided; further, that Customer takes delivery of [*****] optional aircraft in each of the following years: 2010, 2011 and 2012 as set forth herein below. The term of this Agreement shall be [*****] for each of such New Engines following terms and conditions of the [*****] lease agreements of each such aircrafts.
In case of any change of the delivery dates set forth herein below, GE will evaluate the effect on the Rate Per EFH taking into consideration effects on the fleet size and other commercial considerations and may adjust the Rate Per EFH accordingly. The adjusted Rate Per EFH will be incorporated into the Agreement by way of amendment and Customer will pay the adjusted Rate Per EFH for all the EFH incurred by the optional aircraft engines and Leased aircraft engines identified in Exhibit M and N from the date each of such Engine enters the Agreement.
Customer will maintain a spare Engine(s) to installed Engines ratio of not less than [*****], rounded up to the next whole Engine, during the term of this Agreement. However, GE will work with Customer if the ratio falls slightly less than [*****].
Leased A/C delivery schedule:
Customer is entitled to add up to [*****] Leased Aircraft per year.
Aircraft | Contractual Delivery Date | |
01 | November 2009 | |
02 | 2010 (Specific month to be decided by Customer) | |
03 | 2010 (Specific month to be decided by Customer) | |
04 | 2010 (Specific month to be decided by Customer) | |
05 | 2011 (Specific month to be decided by Customer) | |
06 | 2011 (Specific month to be decided by Customer) | |
07 | 2011 (Specific month to be decided by Customer) | |
08 | 2012 (Specific month to be decided by Customer) | |
09 | 2012 (Specific month to be decided by Customer) | |
10 | 2012 (Specific month to be decided by Customer) |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Azul Agreement # 1-1373256434 | September 25, 2009 Proprietary Information Subject to Restrictions on Cover Page |
- 39 - |
Execution version
GE Engine Services, Inc.
Amendment Number 1 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, Inc.
And
Azul Linhas Aereas Brasileiras S.A.
Agreement Number: 1-1373258434
Dated: September 12, 2011
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
|
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 1 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
AMENDMENT NUMBER 1
THIS AMENDMENT NUMBER 1 (Amendment) is made and is effective as of September 12, 2011 (the Effective Date) by and between Azul Linhas Aereas Brasileiras S.A., having its principal place of business of Alameda Surubiju nº 2010, Alphaville Industrial, Baruen - SP, CEP 06455 040, Brazil O Brazil (Customer) and GE Engine Services, Inc., having its principal place of business of One Neumann Way, Cincinnati, Ohio 45215 and GE Celma Ltda. (GE Celma), having its principal place of business of Rua Alice Herve 356, Petropolis, 25669-900, Brazil (jointly referred to as GE) (either a Party) or collectively, the Parties).
RECITALS
WHEREAS, the Parties have entered into a OnPointsm Solutions Agreement, Number 1-1373258434 (Agreement), doted September 25, 2009, and
WHEREAS, the Parties desire to amend Section 5.5 and Exhibit L of the Agreement to adjust utilization of [*****] by Customer; and
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
Capitalized terms used, and terms otherwise defined, in this Amendment shall have the meaning assigned to them under the Agreement.
1. Section 5.5 of the Agreement is hereby amended to reflect new [*****] language and it shall read as follows:
5.5 [*****]. GE shall make available to Customer a maximum of [*****] of [*****]. These [*****] will be made available to Customer in the [*****] on the [*****] outlined in Exhibit L attached hereto.
[*****] for [*****] totaling [*****] shall be issued to the Customer within [*****] of Customer written request to GE subsequent to the issuance dates identified in the Exhibit L. Such [*****] may only be applied by Customer as follows:
(1) For [*****] earned in Year 2010, up to [*****] of such total [*****] can be used towards this Agreement or Supplemental Work invoices issued under this Agreement or ony other purchase of aircraft engine services from GE under a separate OnPoint Overhaul (time and material or component repair only); provided that up to a maximum of [*****] or each invoice amount may be paid with such [*****];
(2) For [*****] earned from Year [*****]: (i) up to [*****] of such total [*****] con be used towards this Agreement; provided that up to a maximum of [*****] of each invoice amount may be paid with such [*****]; and (ii) the remaining [*****] of such total [*****] (i.e. [*****]) can be used towards any Supplemental Work invoices issued under this Agreement or any other purchase of aircraft engine services from GE under a separate OnPoint Overhaul (time and material or component repair only) between Customer and GE for the maintenance or repair of Customers Engines; provided that up to a maximum of [*****] of each invoice amount may be paid with such [*****].
The remaining [*****] issued [*****] as identified in Exhibit L, [*****] spare engines above the [*****] firm spare as per Exhibit 8 (Spare Engine Delivery Schedule), at the rate of a maximum of [*****] applied per each additional spare. The availability of this [*****], if the delivery schedule in Exhibit L is brought forward.
Such [*****] will be issued and valid only if Customer is current in all payments due and is otherwise not in material breach under this Agreement and any other applicable agreements to which [*****] are to be applied. GE shall be entitled to set off from such [*****] any outstanding obligation and amounts that are due and owing from Customer to GE (and not subject to a good faith dispute). Customer may carry over [*****]; however, [*****] must be applied by the end of the term of this Agreement. Any [*****] amounts outstanding at the end of the term of the Agreement will be canceled.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 2 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
For [*****] at the earlier of, end of the [*****] aircraft lease term or as of the date Customer returns aircraft to the lessor, Customer shall return such engine [*****] to the [*****].
All [*****] amounts are not subject to escalation and are subject to reduction for any change in the operating parameters (including number and delivery dates of Engines) set forth in Article 5.2 that reduces the Contracted Hours. Contracted Hours and are defined as the Annual Utilization multiplied by number of Engines multiplied by the number of years in the Term.
2. Exhibit L ( [*****] Distribution Schedule) of the Agreement is hereby replaced in its entirety and it shall read as follows:
[*****] | [*****] | [*****] | ||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] |
In case of changes in the original delivery dates set forth in Exhibit B of the Agreement, GE will evaluate the effect taking into consideration effects on the fleet size and other commercial considerations and may adjust the [*****] Distribution Schedule set forth herein above.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 3 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
All other terms and conditions contained in the Agreement, which are not modified by this Amendment No. 1 shall remain in full force and effect.
IN WITNESS WHEREOF, GE and Customer have caused this Amendment No. 1 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
GE ENGINE SERVICES, INC. | AZUL LINHAS AEREAS BRASILEIRAS S.A. | |
BY: /s/ Mark E. Ulliman | BY: /s/ Gerald B. Lee | |
NAME: Mark E. Ulliman | NAME: Gerald Blake Lee | |
TITLE: RGM Sales Operations | TITLE: Director | |
DATE: Sept. 6 2011 | DATE: July 14 [illegible] | |
BY: | ||
NAME: | ||
TITLE: | ||
DATE: | ||
GE CELMA LTDA | ||
BY: /s/ Eduardo S. Wildberger | /s/ João Moragas | |
NAME: Eduardo S. Wildberger | JOÃO MORAGAS | |
TITLE: Dir DE OPERAÇÕES | CFO | |
DATE: Sept, 12th 2011 | SEPT, 12TH 2011 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 4 of 4 |
GE Engine Services, Inc.
Amendment Number 2 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, Inc.
And
Azul Linhas Aereas Brasileiras S.A.
Agreement Number: 1-1373258434
Dated: September 25, 2009
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, Inc. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
|
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 1 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
AMENDMENT NUMBER 1
THIS AMENDMENT Number 1 (Amendment) is made as of this date, by and between Azul Linhas Aereas Brasileiras S.A., having its principal place of business at Alameda dos Indigenas 66, Planalto Paulista São Paulo , CEP 040059-060 Brazil (Customer) and GE Engine Services, Inc., having its principal place of business at One Neumann Way, Cincinnati, Ohio 45215 USA (GE); (either a Party or collectively, the Parties).
RECITALS
WHEREAS, the Parties have entered into a OnPointsm Solutions Agreement, Number 1-1373258434 (Agreement), dated September 25, 2009; and
WHEREAS, the Parties desire to Amend EXHIBIT D: PRICE ADJUSTMENT MATRIX of the Agreement; and
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
Capitalized terms used, and terms otherwise defined, in this Amendment shall have the meaning assigned to them under the Agreement.
1. EXHIBIT D: PRICE ADJUSTMENT MATRIX of the Agreement is hereby amended to include the additional severity value tables as follows:
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 2 of 3 |
GE Engine Services, Inc.
All other terms and conditions contained in the Agreement, including any amendments thereto, which are not modified by this Amendment No. 1 shall remain in full force and effect.
IN W ITNESS W HEREOF, GE and Customer have caused this Amendment No. 1 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
GE ENGINE SERVICES, INC. | Azul Linhas Aereas Brasileiras S.A. | |||||
BY: | /s/ Mark E. Ulliman | BY: | /s/ Gerald B. Lee | |||
NAME: | Mark E. Ulliman | NAME: | Gerald Blake Lee | |||
TITLE: | RGM Sales Operations | TITLE: | Director | |||
DATE: | September 6, 2011 | DATE: | July 14, 2010 | |||
GE CELMA LTDA | ||||||
BY: | /s/ Eduardo S. Wildberger | /s/ JOÃO MORAGAS | ||||
NAME: | Eduardo S. Wildberger | JOÃO MORAGAS | ||||
TITLE: | Dir DE Operações | CFO | ||||
DATE: | Sept, 12th 2011 | SEPT, 12TH 2011 |
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 3 of 3 |
Execution version
GE Engine Services, Inc.
Amendment Number 3 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, Inc.
And
Azul Linhas Aereas Brasileiras S.A.
Agreement Number: 1-1373258434
Dated: August 13th 2010
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, Inc. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
|
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 1 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
AMENDMENT NUMBER 1
THIS AMENDMENT Number 3 (Amendment) is made and is effective as of August 13, 2010 (the Effective Date) by and between Azul Linhas Aereas Brasileiras S.A., having its principal place of business at Alameda Surubiju nº 2010, Alphaville Industrial, Barueri SP, CEP 06455-040, Brazil C Brazil (Customer) and GE Engine Services, Inc., having its principal place of business at One Neumann Way, Cincinnati, Ohio 45215 and GE Celma Ltda. (GE Celma), having its principal place of business at Rua Alice Herve 356, Petropolis, 25669-900, Brazil (jointly referred to as GE) (either a Party or collectively, the Parties).
RECITALS
WHEREAS, the Parties have entered into a OnPointsm Solutions Agreement, Number 1-1373258434 (Agreement), dated September 25, 2009; and
WHEREAS, the Parties desire to amend Section 5.5 and Exhibit L of the Agreement to adjust utilization of [*****] by Customer; and
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
Capitalized terms used, and terms otherwise defined, in this Amendment shall have the meaning assigned to them under the Agreement.
1. Section 5.5 of the Agreement is hereby amended to reflect new [*****] language and it shall read as follows:
5.5 [*****]. GE shall make available to Customer a maximum of [*****] of [*****]. These [*****] will be made available to Customer in the [*****] on the [*****] outlined in Exhibit L attached hereto.
[*****] totaling [*****] shall be issued to the Customer within [*****] of Customer written request to GE subsequent to the issuance dates identified in the Exhibit L. Such [*****] may only be applied by Customer as follows:
(1) For [*****] earned in Year [*****], up to [*****] of such total [*****] can be used towards this Agreement or Supplemental Work invoices issued under this Agreement or ony other purchase of aircraft engine services from GE under a separate OnPoint Overhaul (time and material or component repair only); provided that up to a maximum of [*****] of each invoice amount may be paid with such [*****];
(2) For [*****] earned from Year [*****]: (i) up to [*****] of such total [*****] can be used towards this Agreement; provided that up too maximum of [*****] of each invoice amount may be paid with such [*****]; and (ii) the remaining [*****] of such total [*****] (i.e. [*****]) can be used towards any Supplemental Work invoices issued under this Agreement or any other purchase of aircraft engine services from GE under a separate OnPoint Overhaul (time and material or component repair only) between Customer and GE for the maintenance or repair of Customers Engines; provided that up to a maximum of [*****] of each invoice amount may be paid with such [*****].
The remaming [*****] issued [*****] as identified in Exhibit L, are effective and available as per the [*****] distribution spreadsheet below and after the purchase of the [*****] firm spare engines as per Exhibit B (Spare Engine Delivery Schedule). These [*****] can be applied towards purchase of spare engines only, at the rate of a maximum of [*****] for each additional purchased spare engine. The availability of this [*****], if the delivery schedule in Exhibit L is brought forward.
Such [*****] will be issued and valid only if Customer is current in oil payments due and is otherwise not in material breach under this Agreement and any other applicable agreements to which [*****] are to be applied. GE shall be entitled to set off from such [*****] any outstanding obligation and amounts that are due and owing from Customer to GE (and not subject to a good faith dispute). Customer may carry over [*****]; however, all [*****] must be applied by the end of the term of this Agreement. Any [*****] amounts outstanding at the end of the term of the Agreement will be canceled.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 2 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
For [*****], at the earlier of, end of the [*****] aircraft lease term or as of the date Customer returns aircraft to the lessor, Customer shall return such [*****].
All [*****] amounts are not subject to escalation and are subject to reduction for any change in the operating parameters (including number and delivery dates of Engines) set forth in Article 5.2 that reduces the Contracted Hours. Contracted Hours are defined as the Annual Utilization multiplied by number of Engines multiplied by the number of years in the Term.
2. Exhibit L ([*****] Distribution Schedule) of the Agreement is hereby replaced in its entirety and it shall read as follows:
EXHIBIT L: [*****] DISTRIBUTION SCHEDULE
[*****] | [*****] | [*****] | ||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | |||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | |||
[*****] | [*****] | [*****] | ||
[*****] | [*****] | [*****] |
In case of changes in the original delivery dates set forth in Exhibit B of the Agreement, GE will evaluate the effect taking into consideration effects on the fleet size and other commercial considerations and may adjust the [*****] Distribution Schedule set forth herein above.
All other terms and conditions contained in the Agreement, which are not modified by this Amendment No. 3 shall remain in full force and effect.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 3 of 4 |
Execution version
GE Engine Services, Inc.
IN W ITNESS W HEREOF, GE and Customer have caused this Amendment No. 3 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
GE ENGINE SERVICES, INC. | Azul Linhas Aereas Brasileiras S.A. | |||||
BY: | /s/ David Kircher | BY: | Gerald Blake Lee | |||
NAME: | David Kircher | NAME: | Gerald Blake Lee | |||
TITLE: | Regional GM Sales | TITLE: | Azul Linhas Aereas Brasileiras S.A. | |||
DATE: | August 25, 2010 | DATE: | August 13, 2010 | |||
BY: | ||||||
NAME: | ||||||
TITLE: | ||||||
DATE: | ||||||
GE CELMA LTDA | ||||||
BY: | /s/ Eduardo S. Wildberger | /s/ João Moragas | ||||
NAME: | Eduardo S. Wildberger | JOÃO MORAGAS | ||||
TITLE: | Dir DE OPERAÇÕES | CFO | ||||
DATE: | Sept, 12th 2011 | SEPT, 12TH 2011 |
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 4 of 4 |
Execution version
GE Engine Services, Inc.
Amendment Number 4 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, Inc.
And
Azul Linhas Aereas Brasileiras S.A.
Agreement Number: 1-1373258434
Dated: September 22, 2010
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, Inc. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
|
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 1 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
AMENDMENT NUMBER 4
THIS AMENDMENT Number 4 (Amendment) is made as of this date, by and between Azul Linhas Aereas Brasileiras S.A., having its principal place of business at Alameda dos Indigenas 66, Planalto Paulista São Paulo , CEP 040059-060 Brazil (Customer) and GE Engine Services, Inc., having its principal place of business at One Neumann Way, Cincinnati, Ohio 45215 USA and GE Celma Ltda. (GE Celma), having its principal place of business at Rua Alice Herve 356, Petropolis, 25669-900, Brazil (jointly referred to as GE) (either a Party or collectively, the Parties).
RECITALS
WHEREAS, the Parties have entered into a OnPointsm Solutions Agreement, Number 1-1373258434 (Agreement), dated September 25, 2009; and
WHEREAS, the Parties desire to add [*****] new engines and [*****] new spare [*****] to the Agreement therefore Exhibit B thereof shall be amended to reflect such additional engines; and
WHEREAS, GE agreed to [*****] to Customer due to the addition of new engines to the Agreement, the Parties desire to amend Section 5.5 of the Agreement and Exhibit L of the Agreement [*****] Distribution Schedule; and
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
Capitalized terms used, and terms otherwise defined, in this Amendment shall have the meaning assigned to them under the Agreement.
1) Customer is adding [*****] new aircraft to its fleet per the below delivery schedule and desires to add [*****] firm new engines and [*****] new spare [*****] to the Agreement per ARTICLE 10 ADDITION OF ENGINES of the Agreement.
Delivery schedule for [*****] New Aircraft and [*****] spare:
[*****] | [*****] | Delivery Date | ||
[*****] |
[*****] | Sep-10 | ||
[*****] |
[*****] | Sep-10 | ||
[*****] |
[*****] | Oct-10 | ||
[*****] |
[*****] | Nov-10 | ||
[*****] |
[*****] | Nov-10 | ||
[*****] | [*****] | Delivery Date | ||
[*****] |
[*****] | Nov-10 |
The delivery schedule is amended to reflect the addition of the new engines and new spare [*****] and are included in Item 4 of this Amendment.
The firm engines once added into the Customers existing fleet covered under the Agreement in accordance with the terms set forth herewith will be entitled to pricing set forth in Article 5.1 through 5.4 of the Agreement provided it comply with Rate Per EFH.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 2 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
Operational Parameters set forth in Article 5.2 and in compliance with the terms and conditions set forth in this Amendment. Pricing will be escalated in accordance with escalation formula set forth on Exhibit C of the Agreement; provided, however, that it shall not be subject to any escalation cap until the date aircraft is delivered as per delivery dates listed above, and as from such delivery date it shall be subject to a [*****] escalation cap with a Hyper-out of [*****] during the entire Term of the Agreement; provided; further, that Customer takes delivery of each such firm aircraft within [*****] of such delivery dates. The term of this Agreement shall be [*****] for each of such firm owned aircraft and [*****] additional spare engine.
The firm aircraft listed above, once added to the Customers fleet shall be entitled to a [*****] [*****] of [*****] per aircraft for [*****], not subject to escalation. The [*****] distribution for the added aircraft is included in the schedule below in Item 2 of the Amendment.
2. Section 5.5 of the Agreement is hereby amended to reflect the issuance new [*****] as described in item
1 above and it shall read as follows:
5.5 [*****]. GE shall make available to Customer a maximum of [*****] of [*****] These [*****] will be made available to Customer in the [*****] on the [*****] outlined in Exhibit L attached hereto.
[*****] for [*****] totaling [*****] shall be issued to the Customer within [*****] of Customer written request to GE subsequent to the issuance dates identified in the Exhibit L. Such [*****] may only be applied by Customer as follows:
(1) For [*****] earned in Year 2010, up to [*****] of such total [*****] can be used towards this Agreement or Supplemental Work invoices issued under this Agreement or ony other purchase of aircraft engine services from GE under a separate OnPoint Overhaul (time and material or component repair only); provided that up to a maximum of [*****] or each invoice amount may be paid with such [*****];
(2) For [*****] earned from Year [*****]: (i) up to [*****] of such total [*****] can be used towards this Agreement; provided that up to a maximum of [*****] of each invoice amount may be paid with such [*****] and (ii) the remaining [*****] of such total [*****] can be used towards any Supplemental Work invoices issued under this Agreement or any other purchase of aircraft engine services from GE under a separate OnPoint Overhaul (time and material or component repair only) between Customer and GE for the maintenance or repair of Customers Engines; provided that up to a maximum of [*****] of each invoice amount may be paid with such [*****].
The remaming [*****] issued [*****] as identified in Exhibit L, [*****] spare engines above the [*****] firm spare as per Exhibit B (Spare Engine Delivery Schedule), at the rate of a maximum of [*****] applied per each additional spare. The availability of this [*****], if the delivery schedule in Exhibit L is brought forward.
Such [*****] will be issued and valid only if Customer is current in all payments due and is otherwise not in material breach under this Agreement and any other applicable agreements to which [*****] are to be applied. GE shall be entitled to set off from such [*****] any outstanding obligation and amounts that are due and owing from Customer to GE (and not subject to a good faith dispute). Customer may carry over [*****]; however, all [*****] must be applied by the end of the term of this Agreement. Any [*****] amounts outstanding at the end of the term of the Agreement will be canceled.
For [*****], at the earlier of, end of the [*****] year aircraft lease term or as of the date Customer returns aircraft to the lessor, Customer shall return such [*****] configuration.
All [*****] amounts are not subject to escalation and are subject to reduction for any change in the operating parameters (including number and delivery dates of Engines) set forth in Article 5.2 that reduces the Contracted Hours. Contracted Hours are defined as the Annual Utilization multiplied by number of Engines multiplied by the number of years in the Term.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 3 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
3. Exhibit L [*****] Distribution Schedule) of the Agreement is hereby replaced in its entirety and it shall read as follows:
[*****] |
[*****] | |||
[*****] |
[*****] | |||
[*****] |
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[*****] |
[*****] | [*****] |
In case of changes in the original delivery dates set forth in Exhibit B of the Agreement, GE will evaluate the effect taking into consideration effects on the fleet size and other commercial considerations and may adjust the [*****]. Distribution Schedule set forth herein above.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 4 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
4. Exhibit B (ENGINES COVERED) of the Agreement is hereby replaced in its entirety and it shall read as follows:
Customer will maintain a spare Engine(s) to installed Engines ratio of not less than [*****], rounded up to the next whole Engine, during the term of this Agreement. However, GE will work with Customer if the ratio falls slightly less than [*****].
[*****] | [*****] | Delivery Date | ||
[*****] |
[*****] |
Dec-08 | ||
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Jan-09 | ||
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[*****] | [*****] | Delivery Date | ||
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Jun-12 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 5 of 6 |
Execution version
GE Engine Services, Inc.
All other terms and conditions contained in the Agreement, which are not modified by this Amendment No. 4 shall remain in full force and effect.
IN WITNESS WHEREOF, GE and Customer have caused this Amendment No. 4 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
GE ENGINE SERVICES, INC. | AZUL LINHAS AERE AS BRASILEIRAS S.A. | |||||
BY: | /s/ David Kircher |
BY: | /s/ Gerald B. Lee | |||
NAME: | David Kircher | NAME: | Gerald B. Lee | |||
TITLE: | Regional GM-Sales | TITLE: | Attorney-in-Fact | |||
DATE: | November 16, 2010 | DATE: | ||||
BY: | ||||||
NAME: | ||||||
TITLE: | ||||||
GE CELMA LTDA |
BY: | /s/ João B. G. Moragas | ||||
BY: |
/s/ [Illegible] |
NAME: | João B. G. Moragas | |||
NAME: |
Julio C. Talon |
TITLE: | Finance Director | |||
TITLE: |
General Manager |
DATE: | November 29, 2010 |
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 6 of 6 |
Execution version
GE Engine Services, Inc.
Amendment Number 5 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, LLC.
GE CELMA Ltda.
And
Azul Linhas Aereas Brasileiras S.A.
Agreement Number: 1-1373258434
Dated: November 10th 2010
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
|
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 1 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
AMENDMENT NUMBER 5
THIS AMENDMENT Number 5 (Amendment) is made and is effective as of November 10, 2010 (the Effective Date) by and between Azul Linhas Aereas Brasileiras S.A., having its principal place of business at Alameda Surubiju nº 2010, Alphaville Industrial, Barueri SP, CEP 06455-040, Brazil (Customer) and GE Engine Services, LLC, having its principal place of business at One Neumann Way, Cincinnati, Ohio 45215 and GE Celma Ltda. (GE Celma), having its principal place of business at Rua Alice Herve 356, Petropolis, 25669-900, Brazil (jointly referred to as GE) (either a Party or collectively, the Parties).
RECITALS
WHEREAS, the Parties have entered into a OnPointsm Solutions Agreement, Number 1-1373258434 (Agreement), dated September 25, 2009, and
WHEREAS, the Parties desire to amend Section 5.5 and Exhibit L of the Agreement to adjust [*****] to be distributed to Customer; and
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
Capitalized terms used, and terms otherwise defined, in this Amendment shall have the meaning assigned to them under the Agreement.
1. Section 5.5 of the Agreement is hereby amended to reflect new [*****] language due to an advancement of [*****] and due to a modification to the wording to allow all of the [*****] in [*****] to be used towards this Agreement and it shall read as follows:
5.5 [*****]. GE shall make available to Customer a maximum of [*****] of [*****]. These [*****] will be made available to Customer in the [*****] on the [*****] outlined in Exhibit L attached hereto.
[*****] for [*****] totaling [*****] shall be issued to the Customer within [*****] of Customer written request to GE subsequent to the issuance dates identified in the Exhibit L. Such [*****] may only be applied by Customer as follows:
For [*****] earned from Year [*****], up to [*****] of such total [*****] can be used towards this Agreement or Supplemental Work invoices issued under this Agreement or ony other purchase of aircraft engine services from GE under a separate OnPoint Overhaul (time and material or component repair only); provided that up to a maximum of [*****] of each invoice amount may be paid with such [*****].
The remaming [*****], as identified in Exhibit L, [*****] spare engines above the [*****] firm spare as per Exhibit B (Spare Engine Delivery Schedule), at the rate of a maximum of [*****] applied per each additional spare. The availability of this [*****], if the delivery schedule in Exhibit L is brought forward.
Such [*****] will be issued and valid only if Customer is current in all payments due and is otherwise not in material breach under this Agreement and any other applicable agreements to which [*****] are to be applied. GE shall be entitled to set off from such [*****] any outstanding obligation and amounts that are due and owing from Customer to GE (and not subject to a good faith dispute). Customer may carry over any [*****]; however, all [*****] must be applied by the end of the term of this Agreement. Any [*****] amounts outstanding at the end of the term of the Agreement will be canceled.
For [*****], at the earlier of, end of the [*****] year aircraft lease term or as of the date Customer returns aircraft to the lessor, Customer shall return such [*****] configuration.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 2 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
All [*****] amounts are not subject to escalation and are subject to reduction for any change in the operating parameters (including number and delivery dates of Engines) set forth in Article 5.2 that reduces the Contracted Hours. Contracted Hours are defined as the Annual Utilization multiplied by number of Engines multiplied by the number of years in the Term.
2. In order to reflect issuance of [*****] as per section 1 above, Exhibit L ([*****] Distribution Schedule) of the Agreement is hereby replaced in its entirety and it shall read as follows:
[*****] |
[*****] | [*****] | ||
[*****] |
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In case of changes in the original delivery dates set forth in Exhibit B of the Agreement, GE will evaluate the effect taking into consideration effects on the fleet size and other commercial considerations and may adjust the [*****] Distribution Schedule set forth herein above.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 3 of 4 |
Execution version
GE Engine Services, Inc.
All other terms and conditions contained in the Agreement, which are not modified by this Amendment No. 5 shall remain in full force and effect.
IN WITNESS WHEREOF, GE and Customer have caused this Amendment No. 5 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
GE ENGINE SERVICES, INC. | AZUL LINHAS AERE AS BRASILEIRAS S.A. | |||||
BY: | /s/ David Kircher |
BY: | /s/ Gerald B. Lee | |||
NAME: | David Kircher | NAME: | Gerald B. Lee | |||
TITLE: | Regional GM-Sales | TITLE: | Attorney-in-Fact | |||
DATE: | December 1, 2010 | DATE: | ||||
GE CELMA LTDA | ||||||
BY: | /s/ Eduardo S. Wildberger |
BY: | ||||
NAME: | Eduardo S. Wildberger | NAME: | ||||
TITLE: | Dir de Operações | TITLE: | ||||
DATE: | Sept 12th, 2011 | |||||
BY: | /s/ João Moragas |
|||||
NAME: | João Moragas | |||||
TITLE: | CFO | |||||
DATE: | SEPT 12th, 2011 |
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 4 of 4 |
Execution version
GE Engine Services, Inc.
Amendment Number 6 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, LLC
GE CELMA Ltda.
And
Azul Linhas Aereas Brasileiras S.A.
Agreement Number: 1-1373258434
Dated: January 31st, 2011
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 1 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
AMENDMENT NUMBER 6
THIS AMENDMENT Number 6 (Amendment) is made and is effective as of January 31, 2011 (the Effective Date) by and between Azul Linhas Aereas Brasileiras S.A., having its principal place of business at Alameda Surubiju nº 2010, Alphaville Industrial, Barueri SP, CEP 06455-040, Brazil (Customer) and GE Engine Services, LLC, having its principal place at business at One Neumann Way, Cincinnati, Ohio 45215 and GE Celma Ltda. (GE Celma), having its principal place at business at Rua Alice Herve 356, Petropolis, 25669-900, Brazil (jointly referred to as GE) (either a Party or collectively, the Parties).
RECITALS
WHEREAS, the Parties have entered into a OnPointsm Solutions Agreement, Number 1-1373258434 (Agreement), dated September 25, 2009; and Amendment 1 through 5; and
WHEREAS, the Parties desire to amend Exhibit L of the Agreement to adjust [*****] to be [*****] to Customer; and
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, end other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
Capitalized terms used, and terms otherwise defined, in this Amendment shall have the meaning assigned to them under the Agreement.
1. Exhibit L ([*****] Distribution Schedule) of the Agreement is hereby amended to reflect new [*****] distribution throughout [*****] to address Customer [*****], and it shall read as follows:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 2 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
[*****]
In case of changes in the original delivery dates set forth in Exhibit B of the Agreement, GE will evaluate the effect taking into consideration effects on the fleet size and other commercial considerations and may adjust the [*****] Distribution Schedule set forth herein above. All other terms and conditions contained in the Agreement, which are not modified by this Amendment No. 6 shall remain in full force and effect.
IN WITNESS WHEREOF, GE and Customer have caused this Amendment No. 6 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 3 of 4 |
Execution version
GE Engine Services, Inc.
GE ENGINE SERVICES, INC. | Azul Linhas Aereas Brasileiras S.A. | |
BY: /s/ David Kircher |
BY: /s/ Gerald B. Lee | |
NAME: David Kircher |
NAME: Gerald B. Lee | |
TITLE: Regional GM-Sales |
TITLE: Attorney - in - Fact | |
DATE: December 1, 2010 |
DATE: | |
GE CELMA LTDA. |
BY: | |
BY: /s/ Eduardo S. Wildberger |
NAME: | |
NAME: Eduardo S. Wildberger |
TITLE: | |
TITLE: DIR. DE OPERAÇÕES |
DATE: | |
DATE: Sept 12th, 2011 |
||
BY: /s/ João Moragas |
||
NAME João Moragas |
||
TITLE CFO |
||
DATE SEPT 12th, 2011 |
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 4 of 4 |
Execution version
GE Engine Services, Inc.
Amendment Number 7 to
OnPointSM OVERHAUL
ENGINE SERVICES AGREEMENT
Between
GE Engine Services, LLC
GE CELMA Ltda.
And
Azul Linhas Aereas Brasileiras S.A.
Agreement Number: 1-1373258434
Dated: Oct. 19th, 2011
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
|
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 1 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
AMENDMENT NUMBER 7
THIS AMENDMENT Number 7 (Amendment) is made and is effective as of Sept. 7th, 2011 (the Effective Date) by and between Azul Linhas Aereas Brasileiras S.A., having its principal place of business at Alameda Surubiju nº 2010, Alphaville Industrial, Barueri SP, CEP 06455-040, Brazil (Customer) and GE Engine Services, LLC, having its principal place of business at One Neumann Way, Cincinnati, Ohio 45215 and GE Celma Ltda. (GE Celma), having its principal place of business at Rua Alice Herve 356, Petropolis, 25669-900, Brazil (jointly referred to as GE) (either a Party or collectively, the Parties).
RECITALS
WHEREAS, the Parties have entered into a OnPointsm Solutions Agreement, Number 1-1373258434 (Agreement), dated September 25, 2009; and Amendment 1 through 6; and
WHEREAS, the Parties desire to amend Article 6 of the Agreement to add section 6.6 with the purpose of [*****]; and
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
Capitalized terms used, and terms otherwise defined, in this Amendment shall have the meaning assigned to them under the Agreement.
1. Article 6 of the Agreement is hereby amended (1) with addition of a new section 6.6 and (2) with modification of [*****] and it shall read as follows:
[*****] Customer will remit to GE, prior to Redelivery of each Engine, an amount equal [*****] by that Engine since delivery from manufacturer of the aircraft in which such Engine was originally installed (for a new installed Engine), or since delivery from manufacturer (for a new spare Engine), or since the last Rate Per EFH Shop Visit for that Engine, whichever occurred last, multlptied by the Current adjusted and escalated [*****], except as otherwise provided for in section 6.6 below. In the event that Customer causes such payment to be made on its behalf by a third party, and such third party fails to pay some or all of the payment due to GE, then Customer will make the payment, in whole or in part, to make up the amount not paid. In the event that such payment is not paid in full, GE is not obligated to perform its obligations under this Agreement with respect to such Engine.
6.6 ESNs [*****] In consideration for the [*****], the first Rate Per EFH Shop Visit for ESNs [*****] The second Rate Per EFH Shop Visit for ESNs [*****] will be invoiced at an [*****] by that Engine since [*****] in which such Engine was originatty instatled. For each subsequent shop visit, the terms of section 6.1 apply.
IN WITNESS WHEREOF, GE and Customer have caused this Amendment No. 7 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 2 of 3 |
Execution version
GE Engine Services, Inc.
GE ENGINE SERVICES, INC. | Azul Linhas Aereas Brasileiras S.A. | |
BY: /s/ [Illegible] |
BY: /s/ Gerald B. Lee | |
NAME: [Illegible] |
NAME: Gerald B. Lee | |
TITLE: Commercial Operations Manager |
TITLE: Attorney - in - Fact | |
DATE: 1 Feb 2012 |
DATE: October 19, 2014 | |
GE CELMA LTDA. |
BY: | |
BY: /s/ João Moragas |
NAME: | |
NAME: João B. G. Moragas |
TITLE: | |
TITLE: CFO |
DATE: | |
DATE: 21 Mar 2012
|
||
BY: /s/ Eduardo Wildberger
|
||
NAME: Eduardo Wildberger
|
||
TITLE: OPERATIONS DIRECTOR
|
||
DATE: 21 MAR 2012 |
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 3 of 3 |
Execution version
GE Engine Services, Inc.
Amendment Number 8 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, LLC
GE CELMA Ltda.
And
Azul Linhas Aereas Brasileiras S.A.
Agreement Number: 1-1373258434
Dated: May 15th, 2012
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 1 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
Amendment Number 8 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, LLC; GE CELMA Ltda.
And
Azul Linhas Aereas Brasileiras S.A.
THIS AMENDMENT Number 8 (Amendment) is made and is effective as of May 15th, 2012 (the Effective Date) by and between Azul Linhas Aereas Brasileiras S.A., having its principal place of business at Alameda Surubiju nº 2010, Alphaville Industrial, Barueri SP, CEP 06455-040, Brazil (Customer) and GE Engine Services, LLC., having its principal place of business at One Neumann Way, Cincinnati, Ohio 45215 and GE Celma Ltda. (GE Celma), having its principal place of business at Rua Alice Herve 356, Petropolis, 25669-900, Brazil (jointly referred to as GE) (either a Party or collectively, the Parties).
RECITALS
WHEREAS, the Parties have entered into a OnPointsm Solutions Agreement, Number 1-1373258434 (Agreement), dated September 25, 2009; and Amendment 1 through 7; and
WHEREAS, the Parties desire to amend the Agreement to add [*****] CF34-10E7 powered Optional Aircraft and [*****] additional CF34-10E7 spare engines; and
WHEREAS, the Parties now desire to amend the Agreement to add coverage for [*****]
WHEREAS, the Parties desire to amend Section 5.5 of the Agreement to adjust the [*****] to Customer; and
WHEREAS, the Parties desire to amend Exhibit L of the Agreement to adjust the [*****] distribution; and
WHEREAS, the Parties desire to amend Exhibit M of the Agreement to adjust the number of Optional Aircraft,
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
Capitalized terms used, and terms otherwise defined, in this Amendment shall have the meaning assigned to them under the Agreement.
1. | Once the [*****] CF34-10E7 powered Optional Aircraft and the [*****] additional CF34-10E7 spare engines are added into the Customers existing fleet covered under the Agreement in accordance with the terms set forth herewith will be entitled to pricing set forth in Article 5.1 through 5.4 of the Agreement provided it comply with Rate per EHF Operational Parameters set forth in Article 5.2 and in compliance with the terms and conditions set forth in this Amendment. Pricing will be escalated in accordance with escalation formula set forth on Exhibit C of the Agreement, provided however that it shall not be subject to any escalation cap until the date aircraft is delivered as per Exhibit B of the Agreement, and as from such delivery date shall be subject to a [*****] escalation cap with a Hyper-out of [*****] during the entire Term of the Agreement, provided further, that Customer takes delivery of each such firm aircraft within [*****] of such delivery dates. The term of this Agreement shall be [*****] for each of such firm owned aircraft and spare engine. |
2. | Exhibit B (Engines Covered) of the Agreement is hereby replaced to reflect the new Engine Type in the delivery schedule as follows: |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 2 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
EXHIBIT B: Engines Covered
Customer will maintain a spare Engine(s) to installed Engines ratio of not less than [*****], rounded up to the next whole Engine, during the term of this Agreement. However, GE will work with Customer if the ratio falls slightly less than [*****].
Aircraft Delivery Schedule
[*****] | Delivery Date | [*****] | ||
[*****] |
Dec-08 | [*****] | ||
[*****] |
Jan-09 | [*****] | ||
[*****] |
Feb-09 | [*****] | ||
[*****] |
Mar-09 | [*****] | ||
[*****] |
Apr-09 | [*****] | ||
[*****] |
May-09 | [*****] | ||
[*****] |
Jun-09 | [*****] | ||
[*****] |
Jul-09 | [*****] | ||
[*****] |
Dec-09 | [*****] | ||
[*****] |
Nov-09 | [*****] | ||
[*****] |
Feb-10 | [*****] | ||
[*****] |
Jun-10 | [*****] | ||
[*****] |
Jun-10 | [*****] | ||
[*****] |
Jun-10 | [*****] | ||
[*****] |
Jul-10 | [*****] | ||
[*****] |
Aug-10 | [*****] | ||
[*****] |
Aug-10 | [*****] | ||
[*****] |
Sep-10 | [*****] | ||
[*****] |
Sep-10 | [*****] | ||
[*****] |
Oct-10 | [*****] | ||
[*****] |
Dec-10 | [*****] | ||
[*****] |
Dec-10 | [*****] | ||
[*****] |
Jan-11 | [*****] | ||
[*****] |
Feb-11 | [*****] | ||
[*****] |
Mar-11 | [*****] | ||
[*****] |
May-11 | [*****] | ||
[*****] |
Jun-11 | [*****] | ||
[*****] |
Sep-11 | [*****] | ||
[*****] |
Sep-11 | [*****] | ||
[*****] |
Nov-11 | [*****] | ||
[*****] |
Dec-11 | [*****] | ||
[*****] |
Dec-11 | [*****] | ||
[*****] |
Dec-11 | [*****] | ||
[*****] |
Jan-12 | [*****] | ||
[*****] |
Jan-12 | [*****] | ||
[*****] |
Mar-12 | [*****] | ||
[*****] |
Mar-12 | [*****] | ||
[*****] |
Apr-12 | [*****] | ||
[*****] |
May-12 | [*****] | ||
[*****] |
Sep-12 | [*****] | ||
[*****] |
Oct-12 | [*****] | ||
[*****] |
Nov-12 | [*****] | ||
[*****] |
Mar-13 | [*****] | ||
[*****] |
May-13 | [*****] | ||
[*****] |
Jun-13 | [*****] | ||
[*****] |
Oct-13 | [*****] | ||
[*****] |
Nov-13 | [*****] | ||
[*****] |
Feb-14 | [*****] | ||
[*****] |
Mar-14 | [*****] | ||
[*****] |
Apr-14 | [*****] | ||
[*****] |
Jun-14 | [*****] | ||
[*****] |
Sep-14 | [*****] | ||
[*****] |
Oct-14 | [*****] | ||
[*****] |
Jan-15 | [*****] | ||
[*****] |
Mar-15 | [*****] | ||
[*****] |
Jun-15 | [*****] | ||
[*****] |
Sep-15 | [*****] | ||
[*****] |
Nov-15 | [*****] | ||
[*****] |
Feb-16 | [*****] | ||
[*****] |
Apr-16 | [*****] | ||
[*****] |
Jun-16 | [*****] | ||
[*****] |
Jul-16 | [*****] | ||
[*****] |
Sep-16 | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 3 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
[*****] Spare Engine Delivery Schedule
[*****] | [*****] | Delivery Date | ||
[*****] |
[*****] | 9-Feb | ||
[*****] |
[*****] | 9-Jun | ||
[*****] |
[*****] | 9-Nov | ||
[*****] |
[*****] | 10-Jun | ||
[*****] |
[*****] | 10-Nov | ||
[*****] |
[*****] | 11-Jun | ||
[*****] |
[*****] | 11-Dec | ||
[*****] |
[*****] | 12-Jun | ||
[*****] |
[*****] | 13-Jun | ||
[*****] |
[*****] | 14-Nov | ||
[*****] |
[*****] | 15-Dec |
The Spare Engine Delivery Schedule may chance from time-to-time according the changes of the Aircraft Delivery Schedule in order to respect the [*****] Minimum Number of Spares).
3. | Section 5.5 of the Agreement is hereby amended to reflect new [*****] earnings and distribution due to the addition of the [*****] and the [*****] New [*****] to be used towards this Agreement shall read as follows: |
5.5 [*****]. GE shall make available to Customer a maximum of [*****] of [*****]. These [*****] will be made available to Customer in the [*****] on the [*****] outlined in Exhibit L attached hereto.
[*****] totaling [*****] shall be issued to the Customer within five (5) Days of Customer written request to GE subsequent to the issuance dates identified in the Exhibit L. Such [*****] may only be applied by Customer as follows:
It is understood the [*****] schedule was revised by Amendment #5 in [*****] and the Parties have put in place a [*****]. It is also understood that these [*****] were not precedent setting and there is not an obligation for GE to move [*****].
For [*****] available from Year 2010 through [*****], up to [*****] of such total [*****] can be used towards this Agreement or Supplemental Work invoices issued under this Agreement or any other purchase of aircraft engine services from GE under a separate OnPoint Overhaul (time and material or component repair only); provided that up to a maximum of [*****] of each invoice amount may be paid with such [*****];
The remaining [*****] issued [*****], as identified in Exhibit L, [*****] spare engines above the [*****] firm spare as per Exhibit B (Spare Engine Delivery Schedule), at the rate of a maximum of [*****] applied per each additional spare. The availability of this [*****] will be adjusted sooner than [*****], if the delivery schedule in Exhibit L is brought forward.
GE shall provide to Customer a [*****] in the amount of [*****] to be used solely for the [*****] by this Agreement. This [*****] is not subject to renewal, extension, or escalation, and shall be available according to Exhibit L [*****] Distribution Schedule). The [*****] issued will equal [*****] of the total invoiced amount for the test, evaluation, and [*****].
a) | This [*****] shall apply only to [*****] |
b) | Customer must provide to GE a copy of the [*****] serial number and any other documentation reasonably requested by GE to document the [*****] before the [*****] becomes payable to Customer. |
c) | Once [*****], the [*****] will be made available on a [*****] and shall be applied only to any open Customer [*****] issued pursuant to this Agreement. |
Such [*****] will be issued and valid only if Customer is current in all payments due and is otherwise not in material breach under this Agreement and any other applicable agreements to which [*****] are to be applied. GE shall be entitled to set off from [*****] any outstanding obligation and amounts that are due and owing from Customer to GE (and not subject to a good faith dispute).
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 4 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
Customer may carry over any [*****]; however, all [*****] must be applied by the end of the term of this Agreement. Any [*****] amounts outstanding at the end of the term of the Agreement will be canceled.
All [*****] amounts are not subject to escalation and are subject to reduction for any change in the operating parameters (including number and delivery dates of Engines) set forth in Article 5.2 that reduces the Contracted Hours. Contracted Hours are defined as the Annual Utilization multiplied by number of Engines multiplied by the number of years in the Term.
If an Engine is removed from the Agreement and has not incurred sufficient EFH to meet the Contracted Hours for that Engine, any remaining [*****] to be issued shall be reduced and, within [*****] of such Engines removal, Customer shall [*****] to GE the [*****] on a pro-rata basis based on EFH incurred and for which GE has received all Rate Per EFH Payments under this Agreement. By way of example only, if an Engine being removed has incurred and GE has received all Rate Per EFH Payments for [*****] and the total Contracted Hours for this Engine are [*****], then Customer shall [*****] of the [*****] as determined on a pro-rata basis based on the number of Engines covered by the Agreement. If GE has not received any Rate Per EFH Payments on the removed Engine, Customer shall [*****] of the [*****] allocated and paid against such Engine as determined on a pro-rata basis based on the number of Engines covered by the Agreement.
In the event of termination of this Agreement due to any reason other than the material breach by GE, such [*****] will be cancelled and any amount issued and applied as of the time of termination shall be [*****] to GE by Customer within [*****] of termination of this Agreement.
4. | Exhibit L ([*****] Distribution Schedule) of the Agreement is hereby replaced to reflect new [*****] distribution. |
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 5 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
In case of changes in the original delivery dates set forth in Exhibit B of the Agreement, GE will evaluate the effect taking into consideration effects on the fleet size and other commercial considerations and may adjust the [*****] Distribution Schedule set forth in Exhibit L.
5. | The Optional Aircraft Delivered Schedule established on Exhibit M of the Agreement is hereby deleted and replace by the following table: |
[*****]
Aircraft |
Contractual Delivery Date |
Aircraft |
Contractual Delivery Date | |||
[*****] |
June 2015 | [*****] | April 2016 | |||
[*****] |
July 2015 | [*****] | May 2016 | |||
[*****] |
August 2015 | [*****] | June 2016 | |||
[*****] |
September 2015 | [*****] | July 2016 | |||
[*****] |
October 2015 | [*****] | August 2016 | |||
[*****] |
November 2015 | [*****] | September 2016 | |||
[*****] |
December 2015 | [*****] | [*****] | |||
[*****] |
January 2016 | [*****] | [*****] | |||
[*****] |
February 2016 | [*****] | [*****] | |||
[*****] |
March 2016 |
IN WITNESS W HEREOF, GE and Customer have caused this Amendment No. 8 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
Azul Linhas Aereas Brasileiras S.A. | Azul Linhas Aereas Brasileiras S.A. | |
BY: | BY: /s/ Alexandre Malfitani | |
NAME: | NAME: Alexandre Malfitani | |
TITLE: | TITLE: Finance Director | |
DATE: | DATE: 7/10/2012 | |
GE Celma Ltda. | GE Celma Ltda. | |
BY: /s/ Eduardo Soares Wildberger | BY: João B. G. Moragas | |
NAME: Eduardo Soares Wildberger | NAME: João B. G. Moragas | |
TITLE: DIRECTOR OPERAÇÕES | TITLE: Finance Director | |
DATE: 7/25/2012 | DATE: 7/25/2012 | |
GE Engine Services, LLC | ||
BY: /s/ Paul McElhinney | ||
NAME: Paul McElhinney | ||
TITLE: CEO, Aviation Services | ||
DATE: July 10, 2012 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 6 of 6 |
Execution version
GE Engine Services, Inc.
Amendment Number 9 to
OnPointSM OVERHAUL
ENGINE SERVICES AGREEMENT
Between
GE Engine Services, LLC
GE Celma Ltda.
And
Azul Trip S.A.
Azul Linhas Aéreas Brasileiras S.A.
Trip Linhas Aéreas S.A.
Agreement Number: 1-1373258434
Dated: December 15th, 2012
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 1 of 8 |
Execution version
GE Engine Services, Inc.
Amendment Number 9 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, LLC; GE Celma Ltda.
And
Azul Trip S.A.; Azul Linhas Aéreas Brasileiras S.A.;
Trip Linhas Aéreas S.A.
THIS AMENDMENT Number 9 (Amendment) is made and is effective as of December 15th, 2012 (the Effective Date) by and between Azul Trip S.A., with its address at Av. Marcos Penteado de Ulhôa Rodrigues, nº 939, 8º andar, Edificio Jatobá, Condominio Castelo Branco Office Park, Tamboré, CEP, 06460-040 (Holding), Azul Linhas Aéreas Brasileiras S.A., with its address at Alameda Surubiju nº 2010, Alphaville Industrial, Barueri SP, CEP 06455-040, Brazil (Azul), Trip Linhas Aéreas S.A., with its address at Avenida Cambacicas, nº 1200, Parque Imperador, Campinas SP, Brazil, CEP 13097-104 (Trip), GE Engine Services, LLC., with its address at One Neumann Way, Cincinnati, Ohio 45215 (GEES) and GE Celma Ltda., with its address at Rua Alice Herve 356, Petropolis, 25669-900, Brazil (GE Celma), GEES and GE Celma are jointly referred to as GE and all the signatories if this Amendment are hereinafter referred to as a Party or collectively, the Parties.
RECITALS
WHEREAS, the Azul Linhas Aéreas Brasileiras S.A. and GE have entered into a OnPointsm Solutions Agreement, Number 1-1373258434 (Agreement), dated September 25, 2009 and Amendment 1 through 8;
WHEREAS, due to the acquisition of 100% of Trips shares by Azul Holding, Trip will become a wholly owned subsidiary of Azul Holding, integrating the Azul Group which already includes Azul Linhas Aréas Brasileiras S.A. (Azul);
WHEREAS, Holding, Azul and Trip now desire to concentrate its fleet management under the Holding;
WHEREAS, the Parties desire to amend the Agreement and Amendments 1 to 8 to reflect the new structure of Holding, Azul and Trip and to include Holding and Trip as Parties of the Agreement.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, end other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
Capitalized terms used, and terms otherwise defined, in this Amendment shall have the meaning assigned to them under the Agreement.
1. | The Parties hereby include Holding and Trip as signatories of the Agreement and therefore the first paragraph of the Agreement shall now be read as follows: |
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 2 of 8 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
THIS ENGINE SERVICES AGREEMENT is made and is effective as of September 25, 2009 (the Effective Date) by and between Azul Trip S.A. with its address at Av. Marcos Penteado de Ulhôa Rodrigues, n° 939, 8° andar. Edificio Jatobá, Condomlnio Castelo Branco Office Park, Tamboré SP, Brazil, CEP, 06460-040 (Holding), Trip Linhas Aéreas S.A., with its address at Avenida Cambacicas, n° 1200, Parque Imperador, Campinas SP, Brazil, CEP 13097-104 (Trip), Azul Linhas Aéreas Brasileiras S.A,, with Its address at Alameda Surubiju n° 2010, Alphaville Industrial, Banieri SP, CEP 06455-040, Brazil (Azul) and GE Engine Services, Inc., with its address at One Neumann Way, Cincinnati, Ohio 45215 (GEES) and GE Celme Lida, with Its address at Rua Alice Nerve 356, Petropolis, 25669-900, Brazil (GE Celma).
Azul and Trip are jointly referred to as Customer; GEES and GE Celma are jointly referred to as GE; and all signatories are hereinafter referred to either as a °Party or collectively, the Parties.
2. | The Parties hereby add [*****] Trip leased [*****] aircraft to the Agreement (Trip [*****] Leased Fleet) that is identified in Attachment A hereto. GE and Trips obligation under the Agreement will commence upon Effective Date and will continue, unless sooner terminated, for a period of [*****] per engine for the Trip [*****] Leased Fleet, or [*****], whichever occurs first (the Term). |
3. | All terms and conditions of the Agreement shall be applied to Trip [*****] Leased Peet except for the ones provided below: |
3.1 The Parties agree that exclusively for Trip [*****] Leased Fleet there will be [*****] for [*****] For that reason, the Parties agree that no reference made to [*****] on Articles 3.1 and 3.2 of the Agreement shall apply to Trip [*****] Leased Fleet.
[*****] inspection, repair and replacement shall be considered as Supplemental Work and therefore included on Article 4.1.
In no event, there will be Supplemental charges for labor costs associated with [*****] inspection and/or replacement.
3.2 The Parties agree to complement Article 5 Pricing of the Agreement to include the following pricing condition exclusively for Trip [*****] Leased Fleet:
PRICING FOR TRIP [*****] LEASED FLEET
Rate Per EFH Pricing. Unless otherwise stated, all rates and prices are In [*****] US Dollars. Rate Per EFH Services will be performed by GE at the Rate Per EFH as follows and is applicable to all EFH incurred starting on the Effective Date.
[*****] Structure:
[*****] [*****]
Rate Per EFH Parameters. The Rate Per EFH is predicated on the following parameters:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 3 of 8 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
[*****] |
[*****] | [*****] | [*****] | [*****] | ||||
[*****] |
[*****] | [*****] | [*****] | [*****] | ||||
Rate Per EFH Adjustment
a. Escalation. The Rate Per EFH shall adjust on an annual basis in accordance with the escalation formula set forth in Exhibit C of the Agreement.
b. Severity. The Rate Per EFH will be adjusted when there is a deviation from the parameters above per the Price Adjustment Matrix to be further mutually agreed by the Parties. Trip will provide information regarding the above parameters on a monthly basis and in a mutually agreed upon format in accordance with Article 6 of the Agreement.
Supplemental Pricing. Supplemental Work Services will be performed by GE in accordante with pricing provisions set forth on Exhibit E of the Agreement. This rate shall adjust on an annual basis in accordance with the escalation formula set forth on Exhibit F of the Agreement.
3.3 The Parties agree to complement item 6.1 (Rate Per EFH Payments) of the Agreement to include the following paragraph:
Regarding uniquely the Trip [*****] Leased Fleet, only the Monthly Billing conditions shall be applicable.
3.4 The Parties agree to complement Article 7.2 Workscope of the Agreement to include the following paragraph exclusively for Trip E-195 Leased Fleet:
7.2.1 Workscope for Trip E-195 Leased Fleet. Prior to Induction, GE will prepare a Workscope in accordance with GE Workscope Planning Guide, Repair Manual and Repair specification , Customers Aircraft/Engine Maintenance Program, Customers General Maintenance Manual and provide it to Customer for approval. Workscope shall incorporate the [*****] missing (the LLP) minimum build specification requirement of [*****] remaining before a next shop visit.
3.5 The Parties agree to complement item 11.2 (ReooncifiatIon) of the Agreement to include the following reconciliation conditions exclusively for Trip [*****] Leased Fleet:
Reconciliation for Trip [*****] Leased Fleet:
1. If a removed Engine has not undergone a shop visit far Rate Per EFH Services, GE will credit to Trip within [*****] of such Engines removal, all Rate Per EFH Payments received for such Engine since the date that such Engine entered the Agreement whichever occurred last, [*****].
2. If a removed Engine has undergone at least one shop visit for Rate Per EFH Services. GE will calculate the total cumulative charges for all Rate Per EFH Services provided for such removed Engine as if such Services were provided on a Supplemental Work basis and the Supplemental Work pricing had applied (Supplemental Charges). GE will then compare such Supplemental Charges to the total cumulatie Rate Per EFH Payments received from Trip for such removed Engine [*****]. If
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 4 of 8 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
the Supplemental Charges are [*****] than the total cumulative Rate Per EFH Payments received from Trip, GE will [*****] for the difference. Trip will [*****] within [*****] of receipt.
4. GE shall make available to Trip a [*****] of [*****] of [*****]. These [*****] will be made available to Trip in the amounts on the dates outlined in Attachment C hereto.
[*****] shall be issued to the Trip Within [*****] of Trip written request to GE subsequent to the issuance dates Identified in Attachment C. Such [*****] may only be applied by Trip as follows:
Up to [*****] of such total [*****] can be used towards this Agreement or Supplemental Work Invoices issued under this Agreement or any other purchase of aircraft engine services from GE under a separate OnPoint Overhaul (time and material or component repair only); provided that up to a maximum of [*****] of each invoice amount may be paid with such [*****];
Such [*****] will be issued and valid only if Trip is current in all payments due and is otherwise not in material breach under this Agreement and any other applicable agreements to which [*****]. GE shall be entitled to set off from such [*****] any outstanding obligation and amounts that are due and owing from Trip to GE (and not subject to a good faith dispute). Trip may carry over [*****]; however, [*****] must be applied by the end of the term of this Agreement. Any [*****] amounts outstanding at the end of the term of the Agreement will be canceled.
All [*****] amounts are not subject to escalation and are subject to reduction for any change in the operating parameters (including number and delivery dates of Engines) set forth in Article 5.2 that reduces the Contracted Hours. Contracted Hours are defined as the Annual Utilization multiplied by number of Engines multiplied by the number of years in the Term.
If an Engine Is removed from the Agreement and has not incurred sufficient EFH to meet the Contracted Hours for that Engine, any remaining [*****] to be issued shall be reduced and, within [*****] of such Engines removal, Trip shall [*****] to GE the [*****] on a [*****] basis based on EFH incurred and for which GE has received all Rate Per EFH Payments under this Agreement. By way of example only, if an Engine being removed has incurred and GE has received all Rate Per EFH Payments for [*****] and the total Contracted Hours for this Engine are [*****] then Trip shall [*****] to GE [*****] of the [*****] and paid against such Engine as determined on a [*****] basis based on the number of Engines covered by the Agreement. If GE has not received any Rate Per EFH Payments on the removed Engine, Trip shall [*****] to GE [*****] of the [*****] allocated and [*****] against such Engine as determined on a [*****] basis based on the number of Engines covered by the Agreement.
In the event of termination of this Agreement due to any reason other than the material breach by GE, such [*****] will be cancelled and any amount issued and applied as of the time of termination shall be [*****] to GE by Trip within [*****] of termination of this Agreement.
5. The Parties also agree that any other subsidiaries or affiliates of Holding that are, or may become, and continue to be subject to the direct or indirect control of, or in which at least [*****] of its ownership is held by Holding might be included in the Agreement and referred to as Customer.
6. Except as provided in this Amendment 9, all provisions of the Agreement and its Amendments 1 to 8 shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this Amendment 9 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 5 of 8 |
Execution version
GE Engine Services, Inc.
Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
Azul Trip S.A. | Azul Linhas Aéreas Brasileiras S.A. | |
BY: /s/ John Peter Rodgerson | BY: /s/ John Peter Rodgerson | |
NAME: John Peter Rodgerson | NAME: John Peter Rodgerson | |
TITLE: Attorney in Fact | TITLE: Attorney in Fact | |
DATE: | DATE: | |
TRIP Linhas Aéreas S.A. | TRIP Linhas Aéreas S.A. | |
BY: /s/ José Mario Caprioli dos Santos | BY: /s/ Evandro Braga de Oliveira | |
NAME: José Mario Caprioli dos Santos | NAME: Evandro Braga de Oliveira | |
TITLE: CEO | TITLE: Management And Quality Director | |
DATE: | DATE: | |
GE Engine Services, LLC | GE Celma Ltda. | |
BY: /s/ Eduardo S. Wildberger | BY /s/ João Moragas | |
NAME: Eduardo S. Wildberger | NAME João Moragas | |
TITLE: Operations Director | TITLE Finance Director | |
DATE: | DATE | |
/s/ Thomas D. Hoferor Thomas D. Hoferor Director, Engine Services 12 Feb 2013 |
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 6 of 8 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
ATTACHMENT A: TRIP [*****] LEASED FLEET
[*****] | [*****] | Delivery Date | ||
[*****] |
[*****] |
December 2012 | ||
[*****] |
[*****] |
December 2012 | ||
[*****] |
[*****] |
February 2013 | ||
[*****] |
[*****] |
April2013 | ||
[*****] |
[*****] |
May2013 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 7 of 8 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
ATTACHMENT C: [*****] DISTRIBUTION SCHEDULE
Date | [*****] | |
January 2013 |
[*****] | |
April 2013 |
[*****] | |
July 2013 |
[*****] | |
October 2013 |
[*****] | |
January 2014 |
[*****] | |
April 2014 |
[*****] | |
July 2014 |
[*****] | |
October 2014 |
[*****] | |
January 2015 |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 8 of 8 |
Execution version
GE Engine Services, Inc.
Amendment Number 10 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, LLC GE Celma Ltda.
And
Azul Trip S.A.
Azul Linhas Aéreas Brasileiras S.A.
Trip Linhas Aéreas S.A.
Agreement Number: 1-1373258434
Dated: March 28, 2013
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 1 of 7 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
Amendment Number 10 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT Between
Between
GE Engine Services, LLC; GE CELMA Ltda.
And
Azul Trip S.A.; Azul Linhas Aereas Brasileiras S.A.;
Trip Linhas Aéreas S.A.
THIS AMENDMENT Number 10 (Amendment) is made and is effective as of March 31, 2013 (the Effective Date) by and between Azul Trip S.A., having a place of business at Av. Marcos Penteado de Ulhôa Rodrigues, 939, Torre Jatoba, 9th floor, Brazil 06.460-040 (Holding), Azul Linhas Aéreas Brasileiras S.A. (Azul), Trip Linhas Aéreas S.A., having a place of business at Avenida Cambacicas, 1200, Campinas, Brazil 13097-104 (Trip), GE Engine Services, LLC. (GEES) and GE Celma Ltda. (GE Celma), GEES and GE Celma are jointly referred to as GE; Azul and Trip are jointly referred to as Customer; and all the signatories if this Amendment are hereinafter referred to as a Party or collectively, the Parties
RECITALS
WHEREAS, the Parties have entered into a OnPointsm Solutions Agreement, Number 1-1373258434 (Agreement), dated September 25, 2009; and Amendment 1 through 9; and
WHEREAS, the Parties desire to amend the Agreement to add [*****] Aircraft powered with CF34-10E7 Engine and [*****] CF34-10E7 Spare Engines; and
WHEREAS, the Parties desire to amend Section 5.5 of the Agreement to include supplementary [*****] to Customer; and
WHEREAS, the Parties desire to amend Exhibit B of the Agreement in order to update the list of all Engines covered by the Agreement; and
WHEREAS, the Parties desire to amend Exhibit N of the Agreement to adjust its tables in order to reflect the changes on Leased Aircraft delivery schedules; and
WHEREAS, the Parties desire to establish additional terms for the usage of Azuls and Trip [*****] at the Agreement; and
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
Capitalized terms used, and terms otherwise defined, in this Amendment shall have the meaning assigned to them under the Agreement.
1. | For the purposes of this Amendment, the [*****] Aircraft ([*****] Engines) and [*****] Spare Engines to be added to the Agreement shall be classified as follows: |
Group 1: [*****] Aircraft ([*****] Engines) identified in Attachment A.1
Group 2: [*****] Aircraft ([*****] Engines) and [*****] Spare Engines identified in Attachment A.2
Group 3: [*****] Aircraft ([*****] Engines) identified in Attachment A.3
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 2 of 7 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
If Customer decides to [*****] (the [*****] of Customers fleet), such [*****] shall be included in Group 2 above.
2. | The Parties agree to replace Exhibit B of the Agreement by the Attachment B hereto in order to update the detailed list of all Engines Covered by the Agreement until this date. |
3. | Unless otherwise stated in this Amendment, all terms and conditions of the Agreement shall be applicable to these [*****] Engines and [*****] Spare Engines. |
4. | The [*****] added Aircraft ([*****] Engines) and [*****] Spare Engines will be entitled to the Rate Per EFH Pricing set forth below, provided such Aircraft comply with Rate per EFH Operational Parameters set forth in Article 5.2 of the Agreement. Rate Per EFH Services will be performed by GE at the Rate Per EFH as follows. |
Engines | Popular Rate | Restored Rate | ||
Group 1 |
[*****] | [*****] | ||
Group 2 |
[*****] | [*****] | ||
Group 3 |
Price as per Exhibit N of the Agreement |
All rates and prices are in [*****] US Dollars. Pricing will be escalated in accordance with escalation formula set forth on Exhibit C of the Agreement, provided however that it shall not be subject to any escalation cap until the date aircraft is delivered as per Exhibit B of the Agreement, and as from such delivery date shall be subject to a [*****] escalation cap with a Hyper-out of [*****] during the entire Term of the Agreement.
The above [*****] is applicable to all EFH incurred starting on the Effective Date. The above [*****] is applicable to all EFH incurred since new.
5. | For the addition of such [*****] Aircraft ([*****] Engines) and the [*****] Spare Engines, GE shall make available to Customer the [*****] in the amounts and on the dates, as follows: |
Available at | [*****] | $ amount | ||||
April-13 |
to be used towards a [*****] loan of [*****] Thrust plugs from [*****] thrust rating [*****] | $[*****] | ||||
April-13 |
to be used towards a [*****]-year loan of [*****] Thrust plugs from [*****] thrust rating [*****] leased from [*****] ), or towards this OnPoint invoices | $[*****] | ||||
April-13 |
to be used towards this OnPoint invoices | $[*****] | ||||
January-14 |
to be used towards [*****], as long as Customer [*****] units | $[*****] | ||||
January-14 |
to be used towards this OnPoint invoices | $[*****] | ||||
January-14 |
to be used towards an incremental [*****] ([*****]) if Customer decides to purchase the [*****] | $[*****] | ||||
Total amount of [*****] | $[*****] |
All terms and conditions set forth in Section 5.5 of the Agreement shall be applied to these [*****]. These [*****] are all stated in [*****] US Dollars and are not subject to escalation.
6. | The Parties agree that the costs of the Shop Visit that is already on-going for the Engines with [*****] and [*****] will be charged as [*****] as per Article 4 and Exhibits E, F and G of the Agreement. The Parties |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 3 of 7 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
also agree that the next Shop Visit of [*****] Engines will be charged according to the Rate Per EFH Pricing and the [*****] will be retroactive until time since new (TSN) of each Engine.
7. | The Leased Aircraft Delivery Schedule contained on Exhibit N of the Agreement shall be replaced by the table below: |
Leased A/C delivery schedule
[*****] |
[*****] | [*****] | [*****] | [*****] | ||||
[*****] |
[*****] | [*****] | [*****] | November-10 | ||||
[*****] |
[*****] | [*****] | [*****] | November-12 | ||||
[*****] |
[*****] | [*****] | [*****] | To be defined | ||||
[*****] |
[*****] | [*****] | [*****] | To be defined | ||||
[*****] |
[*****] | [*****] | [*****] | To be defined | ||||
[*****] |
[*****] | [*****] | [*****] | To be defined | ||||
[*****] |
[*****] | [*****] | [*****] | To be defined | ||||
[*****] |
[*****] | [*****] | [*****] | To be defined | ||||
[*****] |
[*****] | [*****] | [*****] | To be defined | ||||
[*****] |
[*****] | [*****] | To be defined |
8. | The Parties agree that any [*****] owned by Azul or Trip in relation to: (i) this Agreement and its Amendments; (ii) the General Terms Agreement N. [*****] and its [*****] signed between Azul and General Electric Company; and (iii) the General Terms Agreement N. [*****] and its Letters [*****] signed between Trip and General Electric Company, shall be used either by Azul or Trip [*****] of the Agreement, regardless the [*****]. |
INTENTIONALLY LEFT BLANK
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 4 of 7 |
Execution version
GE Engine Services, Inc.
IN WITNESS WHEREOF, GE and Customer have caused this Amendment No. 10 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
Azul Trip S.A. | Azul Linhas Aereas Brasileiras S.A. | |
BY: /s/ John Peter Rodgerson | BY: /s/ John Peter Rodgerson | |
NAME: John Peter Rodgerson | NAME: John Peter Rodgerson | |
TITLE: Attorney in Fact | TITLE: Attorney in Fact | |
DATE: | DATE: | |
TRIP Linhas Aéreas S.A. | ||
BY: /s/ Evandro Braga de Oliveira | ||
NAME: Evandro Braga de Oliveira | ||
TITLE: Management and Quality Director | ||
DATE: | ||
Alexandre Wagner Malfitani | ||
Attorney in Fact |
GE Engine Services, LLC | GE Celma Ltda. | |||
BY: /s/ Roy Gozum | BY: /s/ Joao Morabad | /s/ Eduardo Soares Wildberger | ||
NAME: Roy Gozum | NAME: Joao Morabad | Eduardo Soares Wildberger | ||
TITLE: GM, Business Operations | TITLE: Finance Director | Operations Director | ||
DATE: June 27, 2013 | DATE: |
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 5 of 7 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
ATTACHMENT A ADDED AIRCRAFT/ ENGINES
[*****]
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 6 of 7 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, Inc.
ATTACHMENT B EXHIBIT B:
ENGINES COVERED
Customer will maintain a spare Engine(s) to installed Engines ratio of not less than [*****], rounded up to the next whole Engine, during the term of this Agreement. However, GE will work with Customer if the ratio falls slightly less than [*****].
[*****] | ||||||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | ||||
[*****] |
[*****] | [*****] |
[*****] |
[*****] |
[*****] | ||
[*****] |
[*****] | |||
[*****] |
[*****] | |||
[*****] |
[*****] | |||
[*****] |
[*****] | |||
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 7 of 7 |
GE Engine Services, LLC.
Amendment Number 11 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, LLC
GE CELMA Ltda.
And
Azul S.A.
Azul Linhas Aéreas Brasileiras S.A.
TRIP Linhas Aéreas S.A.
Agreement Number: 1-1373258434
Dated: June 13, 2013
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 1 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, LLC.
Amendment Number 11 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT Between
GE Engine Services, LLC; GE CELMA Ltda.
And
Azul S.A.; Azul Linhas Aereas Brasileiras S.A.;
Trip Linhas Aéreas S.A.
THIS AMENDMENT Number 11 (Amendment) is made and is effective as of June 13, 2013 (the Effective Date) by and between Azul S.A. (Holding), Trip Linhas Aéreas S.A. (Trip), Azul Linhas Aéreas Brasileiras S.A. (Azul), GE Engine Services, LLC. (GEES) and GE Celma Ltda. (GE Celma), GEES and GE Celma are jointly referred to as GE; Azul and Trip are jointly referred to as Customer; and all the signatories if this Amendment are hereinafter referred to as a Party or collectively, the Parties.
RECITALS
WHEREAS, the Parties have entered into a OnPointsm Solutions Agreement, Number 1-1373258434 (Agreement), dated September 25, 2009; and Amendment 1 through 10; and
WHEREAS, the Parties desire to update the schedules contained in Exhibit B: Engines Covered of the Agreement;
WHEREAS, the Parties desire to include an additional severity table in Exhibit D: Price Adjustment Matrix;
WHEREAS, in accordance to item 5 of Amendment 10 to the Agreement, GE agreed to give to Customer, on [*****], a [*****] in case Customer decides to purchase [*****] incremental [*****];
WHEREAS, Customer has already decided to purchase and take Delivery of such Spare Engine, as per Letter Agreement No. 5 to GTA No. 1-1190636254; and
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
Capitalized terms used, and terms otherwise defined, in this Amendment shall have the meaning assigned to them under the Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 2 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, LLC.
1. | The Parties agree to entirely replace Exhibit B: Engines Covered of the Agreement by the Attachment A hereto. |
2. | The Parties also agree to entirely replace Exhibit D: Price Adjustment Matrix of the Agreement by the Attachment B hereto. |
3. | GE hereby agrees [*****], the [*****] to be used toward the payment of the invoice of the [*****] Spare Engine. |
4. | The Parties also agree that [*****] to be used towards this Agreement and that would be available in April 2013, according to Amendment 10, will be [*****]. |
5. | Regarding item 6 of Amendment 10, the Parties acknowledge that the Shop Visit for the Engine with [*****]; only the Shop Visit for Engines with [*****]. The Parties also restate that the next Shop Visit of these 02 Engines will be charged according to the Rate Per EFH Pricing and the [*****] will be retroactive until time since new (TSN) of each Engine. |
6. | Except as provided in this Amendment 11, all provisions of the Agreement and its Amendments 1 to 10 shall remain in full force and effect. |
IN WITNESS WHEREOF, GE and Customer have caused this Amendment No. 12 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
Azul S.A. | Azul Linhas Aereas Brasileiras S.A. | |
BY: /s/ John Peter Rodgerson |
BY: /s/ John Peter Rodgerson | |
NAME: John Peter Rodgerson |
NAME: John Peter Rodgerson | |
TITLE: Attorney in fact |
TITLE: Attorney in fact | |
DATE: |
DATE: | |
TRIP Linhas Aéreas S.A. | ||
BY: /s/ Evandro Braga de Oliveira /s/ John Peter Rodgerson |
||
NAME: Evandro Braga de Oliveira John Peter Rodgerson |
||
TITLE: Management and Quality Director Attorney in fact |
||
DATE: |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 3 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, LLC.
GE Engine Services, LLC. | GE Celma Ltda. | |
BY: /s/ Nathan Hoening |
BY: /s/ Julio Talon | |
NAME: Nathan Hoening |
NAME: /s/ Julio Talon | |
TITLE: RES Customer Programs Leader |
TITLE: General Manager | |
DATE: |
DATE: |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 4 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, LLC.
ATTACHMENT A
EXHIBIT B: ENGINES COVERED
Customer will maintain a spare Engine(s) to installed Engines ratio of [*****], during the term of this Agreement. However, GE will work with Customer if the ratio [*****]
Aircraft Delivery Schedule
[*****] |
[*****] | [*****] | [*****] | Delivery Date | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Nov-08 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-08 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-08 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-08 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-08 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Feb-09 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Feb-09 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Mar-09 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Apr-09 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | May-09 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jun-09 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jul-09 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Nov-09 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-09 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Mar-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jun-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jul-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jul-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jul-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Aug-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Aug-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Oct-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Oct-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Oct-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-10 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jan-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Feb-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Mar-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Apr-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Apr-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | May-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | May-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | May-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jun-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jun-11 | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 5 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, LLC.
[*****] |
[*****] | [*****] | [*****] | Delivery Date | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jul-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Aug-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Oct-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Oct-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Nov-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Nov-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-11 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Feb-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Mar-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Apr-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Apr-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | May-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | May-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jun-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Nov-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Dec-12 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Mar-13 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Apr-13 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Apr-13 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | May-13 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | May-13 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jun-13 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Oct-13 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Nov-13 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Feb-14 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Mar-14 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Apr-14 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jun-14 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Sep-14 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Oct-14 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jan-15 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Mar-15 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Jun-15 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Sep-15 | [*****] | [*****] | [*****] | |||||||||||||||||||||
[*****] |
[*****] | [*****] | [*****] | Nov-15 | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 6 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, LLC.
[*****] |
[*****] |
[*****] |
[*****] |
Delivery Date | [*****] |
[*****] |
[*****] | |||||||
[*****] |
[*****] | [*****] | [*****] | Feb-16 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] | [*****] | [*****] | Apr-16 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] | [*****] | [*****] | Jun-16 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] | [*****] | [*****] | Jul-16 | [*****] | [*****] | [*****] | |||||||
[*****] |
[*****] | [*****] | [*****] | Sep-16 | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. | Page 7 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, LLC.
Spare Engine Delivery Schedule
[*****] |
[*****] | Delivery Date | [*****] | |||||||
[*****] |
[*****] | Feb-09 | [*****] | |||||||
[*****] |
[*****] | Jun-09 | [*****] | |||||||
[*****] |
[*****] | Nov-09 | [*****] | |||||||
[*****] |
[*****] | Jun-10 | [*****] | |||||||
[*****] |
[*****] | Nov-10 | [*****] | |||||||
[*****] |
[*****] | Jun-11 | [*****] | |||||||
[*****] |
[*****] | Oct-11 | [*****] | |||||||
[*****] |
[*****] | Dec-11 | [*****] | |||||||
[*****] |
[*****] | Apr-12 | [*****] | |||||||
[*****] |
[*****] | Jun-12 | [*****] | |||||||
[*****] |
[*****] | Mar-13 | [*****] | |||||||
[*****] |
[*****] | Jun-13 | [*****] | |||||||
[*****] |
[*****] | Apr-14 | [*****] | |||||||
[*****] |
[*****] | Jun-15 | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. |
Page 8 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
GE Engine Services, LLC.
ATTACHMENT B
EXHIBIT D: PRICE ADJUSTMENT MATRIX
When the actual operating parameters do not precisely equal the values on the tables, severity will be calculated by [*****]. The resultant severity value [*****]. The final severity applied will be [*****].
Should Customers actual operating parameters go beyond the furthest points of the table provided, GE shall adjust the table to cover Customers updated operating parameters. Such adjusted table will be applied retroactively to the time Customers operating parameters moved beyond the points provided and, if applicable, GE shall invoice or provide a credit to Customer for any amounts that would have been applicable if the rates on such table had been in effect at the time the flight hours were incurred.
INTENTIONALLY LEFT BLANK
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE PROPRIETARY INFORMATION-Subject to restrictions on the cover or first page. |
Page 9 of 13 |
CONFIDENTIAL TREATMENT REQUESTED
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
CONFIDENTIAL TREATMENT REQUESTED
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
CONFIDENTIAL TREATMENT REQUESTED
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
CONFIDENTIAL TREATMENT REQUESTED
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
GE Engine Services, LLC.
Amendment Number 12 to
OnPointSM OVERHAUL ENGINE
SERVICES AGREEMENT
Between
GE Engine Services, LLC
GE CELMA Ltda.
And
Azul S.A.
Azul Linhas Aéreas Brasileiras S.A.
TRIP Linhas Aéreas S.A.
Agreement Number: 1-1373258434
Dated: June 13, 2013
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
This Document is Proprietary to GE, Holding and Customer | Page 1 of 6 |
Amendment Number 12 to
OnPointSM OVERHAUL
ENGINE SERVICES AGREEMENT
Between
GE Engine Services, LLC; GE CELMA Ltda.
And
Azul S.A.; Azul Linhas Aereas Brasileiras S.A.;
Trip Linhas Aéreas S.A.
THIS AMENDMENT Number 11 (Amendment) is made and is effective as of June 13, 2013 (the Effective Date) by and between Azul S.A. (Holding), Trip Linhas Aéreas S.A. (Trip), Azul Linhas Aéreas Brasileiras S.A. (Azul), GE Engine Services, LLC. (GEES) and GE Celma Ltda. (GE Celma), GEES and GE Celma are jointly referred to as GE; Azul and Trip are jointly referred to as Customer; and all the signatories if this Amendment are hereinafter referred to as a Party or collectively, the Parties.
RECITALS
WHEREAS, the Parties have entered into an OnPointSM Engine Services Agreement dated 25 September 2009, as amended and supplemented from time to time (the OnPoint Agreement) whereby GE has agreed to provide the Services in exchange for payments to be made by Customer to GE Celma pursuant to the terms of the OnPoint Agreement; and
WHEREAS, pursuant to five Letter Agreements (the Letter Agreements) entered into between GE, the Customer and certain lessors (as identified in each Letter Agreement) who lease or will lease the engines identified in Schedule A hereto (Engines) to the Customer (each a Lessor and collectively the Lessors), the parties thereto have agreed upon certain provisions relating to the OnPoint Agreement to the extent relating to these specific Engines; and
WHEREAS, the Parties desire to regulate certain matters relating to the OnPoint Agreement to the extent relating to the Engines;
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
1) | Terms which are capitalized but not otherwise defined herein, shall have the meaning ascribed to them in the OnPoint Agreement. |
2) | Notwithstanding the provisions of Articles 5 and 6 of the OnPoint Agreement, the Parties agree that, for as long as the Engines remain subject to the Letter |
This Document is Proprietary to GE, Holding and Customer | Page 2 of 6 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
Agreements, Customer will pay to GE Celma [*****] established in the respective Letter Agreement on a [*****] basis (the [*****].
3) | If at any time, GE exercises its rights to terminate a Letter Agreement due to an [*****] (as such term is defined in the relevant Letter Agreement) in accordance with clause 18 of such Letter Agreement, the Parties agree that the following arrangements will apply with respect to all payments made or to be made under the OnPoint Agreement with respect to the relevant Engine affected by such termination: |
(a) | from the date on which the termination of the Letter Agreement takes effect, the Customer [*****]; |
(b) | in order to maintain the affected Engines covered by the OnPoint Agreement, the Parties agree that: [*****]; |
(c) | all [*****] paid by Customer to GE Celma since [*****] will be [*****] by GE according to the following criteria; |
(i) | GE will calculate [*****] the OnPoint Agreement, as if [*****] |
(ii) | GE will calculate the amount [*****] |
(iii) | GE will determine the [*****] according to items (i) and (ii) above; |
(iv) | GE will make this difference available to Customer in a form of a credit to be used by Customer under the OnPoint Agreement. |
4) | Except as provided in this Amendment 11, all provisions of the Agreement and its Amendments 1 to 10 shall remain in full force and effect. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
This Document is Proprietary to GE, Holding and Customer | Page 3 of 6 |
IN WITNESS WHEREOF, the Parties have caused this Amendment 9 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
This Document is Proprietary to GE, Holding and Customer | Page 4 of 6 |
Azul S.A. | Azul Linhas Aereas Brasileiras S.A. | |
BY: /s/ John Peter Rodgerson |
BY: /s/ John Peter Rodgerson | |
NAME: John Peter Rodgerson |
NAME: John Peter Rodgerson | |
TITLE: Attorney in fact |
TITLE: Attorney in fact | |
DATE: |
DATE: | |
TRIP Linhas Aéreas S.A. | ||
BY: /s/ Evandro Braga de Oliveira /s/ John Peter Rodgerson |
||
NAME: Evandro Braga de Oliveira John Peter Rodgerson |
||
TITLE: Management and Quality Attorney in fact |
||
DATE: |
||
GE Engine Services, LLC. | GE Celma Ltda. | |
BY: /s/ Nathan Hoening |
BY: /s/ Julio Talon | |
NAME: Nathan Hoening |
NAME: /s/ Julio Talon | |
TITLE: RES Customer Programs Leader |
TITLE: General Manager | |
DATE: |
DATE: | |
GE Engine Services, LLC. | GE Celma Ltda. | |
BY: |
BY: | |
NAME: |
NAME: | |
TITLE: |
TITLE: | |
DATE: |
DATE: |
This Document is Proprietary to GE, Holding and Customer | Page 5 of 6 |
CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE A
THE ENGINES
Aircraft MSN |
Engine Serial Numbers | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
This Document is Proprietary to GE, Holding and Customer | Page 6 of 6 |
Amendment Number 13 to
OnPointSM OVERHAUL
ENGINE SERVICES AGREEMENT
Between
GE Engine Services, LLC
GE CELMA Ltda.
And
Azul S.A.
Azul Linhas Aereas Brasileiras S.A.
TRIP Linhas Aereas S.A.
Agreement Number: 1-1373258434
Dated: September 17, 2013
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC. (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
This Document is Proprietary to GE, Holding and Customer | Page 1 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
Amendment Number 13 to
OnPointSM OVERHAUL
ENGINE SERVICES AGREEMENT
Between
GE Engine Services, LLC; GE CELMA Ltda.
And
Azul S.A.; Azul Linhas Aereas Brasileiras S.A.;
Trip Linhas Aereas S.A.
THIS AMENDMENT Number 13 (Amendment) is made and is effective as of September 17, 2013 (the Effective Date) by and between Azul S.A. (Holding), Trip Linhas Aereas S.A. (Trip), Azul Linhas Aereas Brasileiras S.A. (Azul), GE Engine Services, LLC. (GEES) and GE Celma Ltda. (GE Celma), GEES and GE Celma are jointly referred to as GE; Azul and Trip are jointly referred to as Customer; and all the signatories if this Amendment are hereinafter referred to as a Party or collectively, the Parties
RECITALS
WHEREAS, the Parties have entered into an OnPointSM Engine Services Agreement dated 25 September 2009, as amended and supplemented from time to time (the OnPoint Agreement) whereby GE has agreed to provide the Services in exchange for payments to be made by Customer to GE Celma pursuant to the terms of the OnPoint Agreement; and
WHEREAS, pursuant to the section 5.5 of the OnPoint Agreement, as amended, GE shall make available to Customer [*****] , according to the amounts and dates outlined in Exhibit L to the Agreement and
WHEREAS, GE Celma provided maintenance, repair and overhaul services to Customer, and Customer desires to apply the [*****] towards such invoices.
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree to the Agreement revision set forth below. This Amendment shall be effective as of the date hereof.
(1) | Terms which are capitalized but not otherwise defined herein, shall have the meaning ascribed to them in the OnPoint Agreement. |
(2) | Customer desires to apply the [*****] towards such invoices and the Parties hereby agree on the utilization of the [*****] in the amount of [*****] towards invoices number [*****] and [*****], issued by GE Celma, totaling [*****] and equivalent to the amount of [*****] determined by using the average sell |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
This Document is Proprietary to GE, Holding and Customer | Page 2 of 3 |
rate as of the date of invoice issuance for the United States Dollar as published by the Central Bank of Brazil through SISBACEN, PTAX-800, option S.
(3) | Except as provided in this Amendment 13, all provisions of the Agreement and its Amendments 1 to 12 shall remain in full force and effect. |
IN WITNESS WHEREOF, the Parties have caused this Amendment 13 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
Azul Trip S.A. |
Azul Linhas Aereas Brasilieras S.A. | |
By: /s/ John Peter Rodgerson |
By: /s/ John Peter Rodgerson | |
Name: John Peter Rodgerson |
Name: John Peter Rodgerson | |
Title: Attorney in Fact |
Title: Attorney in Fact | |
Date: |
Date: | |
TRIP Linhas Aéreas S.A. |
||
By: /s/ John Peter Rodgerson |
||
Name: John Peter Rodgerson |
||
Title: Attorney in Fact |
||
Date: |
||
GE Engine Services, LLC. |
GE Celma Ltda. | |
By: /s/ Russell P. Shehan |
By: /s/ Joao B. G. Morgas / Julio Talon | |
Name: Russell P. Shehan |
Name: Joao B. G. Morgas / Julio Talon | |
Title: MD Sales |
Title: Finance Director / General Manager | |
Date: 18 September 2013 |
Date: |
This Document is Proprietary to GE, Holding and Customer | Page 3 of 3 |
Execution version
AMENDMENT NUMBER 14
TO
OnPointsm Overhaul
RATE PER FLIGHT HOUR
ENGINE SERVICES AGREEMENT
BETWEEN
GE Engine Services, LLC
GE CELMA LTDA.
AND
AZUL LINHAS AÉREAS BRASILEIRAS S.A.
AZUL S.A.
Agreement Number: 1-1373258434-AM14
Dated: December 30, 2014
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC (GE) Proprietary information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
Page 1 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT NUMBER 14
THIS AMENDMENT Number 14 (Amendment) is entered into by and between AZUL S.A. (Holding), Azul Linhas Aéreas Brasileiras S.A. (Azul), GE Engine Services, LLC (GEES) and GE Celma Ltda. (GE Celma), GEES and GE Celma are jointly referred as GE and Azul are jointly referred as Customer, (each a Party and collectively referred to herein as Parties).
RECITALS
WHEREAS, the Parties have entered into an OnPointSM Engine Services Agreement dated 25 September 2009, as amended and supplemented from time to time (Agreement) whereby GE has agreed to provide the Services in exchange for payments to be made by Customer to GE Celma pursuant to the terms of the OnPoint Agreement; and
WHEREAS, Pursuant to Article 10 of the Agreement, Addition of Engines, and [*****] in accordance with the payment schedule outlined in Exhibit A of this Amendment.
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree as follows:
1. | GE will provide [*****] to Customer according to the terms, amounts and dates outlined in Exhibit A of this Amendment and as per Section 5 of the Agreement. |
All other terms and conditions contained in the Agreement, which are not modified by this Amendment Number 14, shall remain in full force and effect.
This Amendment shall be effective as of the date hereof.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Page 2 of 4 |
Execution version
Execution Version
IN WITNESS WHEREOF, GE and Customer have caused this Amendment Number 14 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
GE Celma ltda |
Azul S.A. | |
BY: /s/ João Moragas |
BY: /s/ Amir Nasruddin | |
PRINTED NAME: João Moragas |
PRINTED NAME: Amir Nasruddin | |
TITLE: Finance Director |
TITLE: Attorney in Fact | |
GE Engine Services, LLC |
Azul Linhas Aéreas Brasileiras S.A. | |
BY: /s/ Russell P. Shelton |
BY: /s/ Amir Nasruddin | |
PRINTED NAME: Russell P. Shelton |
PRINTED NAME: Amir Nasruddin | |
TITLE: Director, Customer Marketing |
TITLE: Attorney in Fact |
Page 3 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT A
GE shall make available to Customer the Credits in the amounts and on the dates, as follows:
Date | Amount (USS$) | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] |
These credits are all stated in 2014 US Dollars and are not subject to escalation.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Page 4 of 4 |
Execution version
AMENDMENT NUMBER 15
TO
OnPointsm Overhaul
RATE PER FLIGHT HOUR
ENGINE SERVICES AGREEMENT
BETWEEN
GE Engine Services, LLC
GE CELMA LTDA.
AND
AZUL LINHAS AÉREAS BRASILEIRAS S.A.
AZUL S.A.
Agreement Number: 1-1373258434-AM15
Dated: December 30, 2014
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC (GE) Proprietary information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
Page 1 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
RECITALS
WHEREAS, the Parties have entered into an OnPointSM Engine Services Agreement dated 25 September 2009, as amended and supplemented from time to time (Agreement) whereby GE has agreed to provide the Services in exchange for payments to be made by Customer to GE Celina pursuant to the terms of the OnPoint Agreement; and
WHEREAS, Customer agrees to make additional payments to GE according to the terms and conditions set forth in this Amendment.
WHEREAS, the Parties desire to amend the Agreement to reflect the foregoing.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree as follows:
1. | Customer will make [*****] payments to GE, according to the terms, amounts and dates outlined in Exhibit 1 of this Amendment, and in consideration of section 5 of the Agreement. |
2. | In the event of termination of the Agreement due to any reason, any outstanding payment / obligation due by the Customer as of the time of termination shall be paid by the Customer within [*****] of termination of the Agreement. |
3. | All other terms and conditions contained in the Agreement, which are not modified by this Amendment Number 15, shall remain in full force and effect. |
This Amendment shall be effective as of the date hereof.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Page 2 of 4 |
Execution version
IN WITNESS WHEREOF, GE and Customer have caused this Amendment Number 15 to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
GE Celma ltda | Azul S.A. | |
BY: /s/ João Moragas |
BY: /s/ Amir Nasruddin | |
PRINTED NAME: João Moragas |
PRINTED NAME: Amir Nasruddin | |
TITLE: Finance Director |
TITLE: Attorney in Fact | |
GE Engine Services, LLC | Azul Linhas Aereas Brasileiras S.A. | |
BY: /s/ Russell P. Shelton |
BY: /s/ Amir Nasruddin | |
PRINTED NAME: Russell P. Shelton |
PRINTED NAME: Amir Nasruddin | |
TITLE: Director, Customer Marketing |
TITLE: Attorney in Fact |
Page 3 of 4 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1
Customer shall pay GE the amounts at the dates outlined below.
Date | Amount (US$) | |
[*****] |
[*****] | |
[*****] |
[*****] | |
TOTAL |
[*****] |
These amounts are all stated in 2014 US Dollars and are not subject to escalation or severity adjustment. They will be paid through incremental invoices issued from the Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Page 4 of 4 |
AMENDMENT NUMBER 16
TO
OnPointsm Overhaul
RATE PER FLIGHT HOUR
ENGINE SERVICES AGREEMENT
BETWEEN
GE Engine Services, LLC
GE CELMA LTDA.
AND
AZUL LINHAS AÉREAS BRASILEIRAS S.A.
AZUL S.A.
Agreement Number: 1-1373258434-AM16
Dated: October 22, 2015
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
1/3 |
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT NUMBER 16
THIS AMENDMENT Number 16 (Amendment) is entered into by and between AZUL S.A. (Holding), Azul Linhas Aéreas Brasileiras S.A. (Azul), GE Engine Services, LLC (GEES) and GE Celma Ltda. (GE Celma), GEES and GE Celma are jointly referred as GE, Azul is referred as Customer, (each a Party and collectively referred to herein as Parties).
RECITALS
WHEREAS, the Parties have entered into an OnPointSM Engine Services Agreement dated 25 September 2009, as amended and supplemented from time to time (Agreement) whereby GE has agreed to provide the Services in exchange for payments to be made by Customer to GE Celma pursuant to the terms of the OnPoint Agreement; and
WHEREAS, Parties agree to temporarily apply a [*****] to certain clauses of the Agreement, valid for a period of [*****],
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree as follows:
1. | As a special and temporary condition, [*****] in the Agreement shall be extended from [*****]. Therefore, the payment term to pay an invoice, only for the below listed clauses, shall be [*****]: |
(i) | Article 6 Invoicing and Payment: Section 6.1 Rate Per EFH Payments; Section 6.2 EFH Minimum; Section 6.3 Supplemental Work Payments; |
(ii) | Article 11 Removal of Engines: Section 11.2 Reconciliation |
(iii) | Exhibit J General Terms and Conditions: Article 2.0 Excusable Delay, Section 2.2 Continuing Obligations. |
2. | This special and temporary condition shall remain for a period of [*****], as of the execution of this Amendment, and only if Customer is current in all payments due and is otherwise not in material breach under the Agreement. |
3. | After the period of [*****], the original payment terms of the Agreement shall return to full force and effect. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
2/3 |
All other terms and conditions contained in the Agreement, which are not modified by this Amendment, shall remain in full force and effect.
This Amendment shall be effective as of the date hereof.
IN WITNESS WHEREOF, GE and Customer have caused this Amendment to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
GE Celma ltda | Azul S.A. | |
BY: /s/ Julio Talon |
BY: /s/ John Peter Rodgerson | |
PRINTED NAME: Julio Talon |
PRINTED NAME: John Peter Rodgerson | |
TITLE: General Manager |
TITLE: Attorney in Fact | |
GE Engine Services, LLC | Azul Linhas Aéreas Brasileiras S.A. | |
BY: /s/ Nathan Hoening |
BY: /s/ John Peter Rodgerson | |
PRINTED NAME: Nathan Hoening |
PRINTED NAME: John Peter Rodgerson | |
TITLE: RES Customer Programs Leader |
TITLE: Attorney in Fact |
3/3 |
AMENDMENT NUMBER 17
TO
OnPointsm Overhaul
RATE PER FLIGHT HOUR
ENGINE SERVICES AGREEMENT
BETWEEN
GE Engine Services, LLC
GE CELMA LTDA.
AND
AZUL LINHAS AÉREAS BRASILEIRAS S.A.
AZUL S.A.
TRIP LINHAS AÉREAS S.A.
Agreement Number: 1-1373258434-AM16
Dated: December, 18th 2015
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
1/7 |
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT NUMBER 17
THIS AMENDMENT Number 17 (Amendment) is entered into by and between AZUL S.A. (Holding), Trip Linhas Aéreas S.A. (Trip), Azul Linhas Aéreas Brasileiras S.A. (Azul), GE Engine Services, LLC (GEES) and GE Celma Ltda. (GE Celma), GEES and GE Celma are jointly referred as GE, Azul and Trip are jointly referred as Customer, (each a Party and collectively referred to herein as Parties).
RECITALS
WHEREAS, the Parties have entered into an OnPointSM Engine Services Agreement dated 25 September 2009, as amended and supplemented from time to time (Agreement) whereby GE has agreed to provide the Services in exchange for payments to be made by Customer to GE Celma pursuant to the terms of the OnPoint Agreement; and
WHEREAS, the Parties agree on the removal of certain Engines of the Agreement, without applying the Reconciliation terms of Section 11.2;
WHEREAS, the Parties agree on [*****] for such removed Engines, per the terms of this Amendment;
WHEREAS, the Parties desire to update and change the table reflecting the status and contractual term of the remaining Engines covered by the Agreement.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree as follows:
1. | The Parties agree to remove Engines [*****] and [*****], the Reconciliation terms of Section 11.2 of the Agreement. |
2. | As per Article 4.1 Section F, and Exhibit E: Supplemental Work Pricing, Parties hereby agree, for [*****] on [*****], to the following Workscope and [*****] in Exhibit O attached to this Amendment. Pricing is valid for a [*****] of the signing of this Amendment. |
a. | Engines covered by FFP SVs in Exhibit O will [*****] per Article 11.2.1 and Article 11.2.2 as long as they meet the following conditions: |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
2/7 |
CONFIDENTIAL TREATMENT REQUESTED
i. | Removal from contract must be for lease return, only for the [*****] Engine Serial Numbers listed herein |
ii. | Should FFP SV not be completed on any Engine listed above, all [*****] Engines will be subject to reconciliation per Article 11 |
b. | [*****] |
c. | In all cases GE will [*****] received up to the time of the engine removal from the aircraft. |
d. | For the avoidance of doubt, [*****] as per Article 8 of the Agreement. |
3. | The Parties agree to replace Attachment A Group 1 of Amendment n. 10 by the Attachment A to this Amendment n. 17, in order to reflect the current status and contractual term of the Engines covered by the Agreement. |
a. | Should FFP SV not be completed on any Engine listed above in section 2, this attachment will be void and terms will revert back to the Attachment A Group 1 of Amendment 10. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
3/7 |
All other terms and conditions contained in the Agreement, which are not modified by this Amendment, shall remain in full force and effect.
This Amendment shall be effective as of the date hereof.
IN WITNESS WHEREOF, GE and Customer have caused this Amendment to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
GE Celma ltda | Azul S.A. | |
BY: /s/ Eduardo Soares Wildberger / Marcio A. Perillo |
BY: /s/ Amir Nasruddin | |
PRINTED NAME: Eduardo Soares Wildberger / Marcio A. Perillo |
PRINTED NAME: Amir Nasruddin | |
TITLE: Operations Manager / Finance Manager |
TITLE: Director A/C Programs/Procurement | |
GE Engine Services, LLC | Azul Linhas Aéreas Brasileiras S.A. | |
BY: /s/ Nathan Hoening |
BY: /s/ Amir Nasruddin | |
PRINTED NAME: Nathan Hoening |
PRINTED NAME: Amir Nasruddin | |
TITLE: RES Customer Programs Leader |
TITLE: Director A/C Programs/Procurement | |
Trip Linhas Aéreas S.A. | ||
BY: | ||
PRINTED NAME: | ||
TITLE: |
4/7 |
CONFIDENTIAL TREATMENT REQUESTED
Exhibit O CONDITIONS FOR LEASE RETURN PRICING
1 | Workscope |
1.1 | The FFP price offered to Customer is based on the following specified workscope and is priced per SV by ESN. Pricing, in 2015$, is dependent on all [*****] being completed and is valid for [*****], subject to escalation per Exhibit C. For up to [*****] Engines listed below, if inducted in the shop by December 31st 2015, [*****]. LLP material shall be purchased as required directly from GE and is not included in the pricing below. |
Workscope definitions |
||||
Workscope/Module |
[*****] | [*****] | ||
[*****] |
[*****] | [*****] | ||
Pricing |
||||
ESNs |
[*****] | [*****] | ||
Pricing Structure |
FFP+ | FFP+ | ||
Pricing (2015$) |
[*****] | [*****] |
1.2 | Workscope level definitions |
a | The following are defined as the minimum disassembly specified in the Workscope |
Planning Guide.
i | MIN = Minimum Workscope |
ii | PERF = Performance Workscope |
iii | FULL = Full Overhaul Workscope |
b | NONE = Check Inspection for Overall Condition per [*****] |
c | Engine Disassembly/Reassembly/Test = minimum required for specified modular Workscope |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
5/7 |
CONFIDENTIAL TREATMENT REQUESTED
2 | Pricing conditions and limitations |
2.1 | Shop visit must be caused by meeting lease return conditions, and must not be caused by Major FOD, operator error, or other abnormal cause which results in investigation. |
2.2 | Based on Services performed in accordance with the above specified workscope. Any further disassembly or repairs required or damages found on the Engine beyond the specified workscope will be re-quoted. |
2.3 | SB/AD (Categories 1 through 6) coverage in the FFP price is limited to parts replaced for condition and removed by the workscope specified above. The following SBs are included in the price: [*****]. The following additional SBs are included in the price for [*****]. Additional charges will be applied above the FFP+ price for: |
a [*****]
b [*****]
2.4 | The FFP Price is [*****] are taken into account. Customer shall appoint GE to act as claims administrator and benefits recipient during the Term of this Agreement, and authorizes GE to receive from the OEM in the name of GE all proceeds of such Engine Benefits. Customer warrants to the OEM that all actions undertaken by GE pursuant to this authorization shall be binding on Customer, such that Customer will not seek to receive such Engine Benefits directly from the OEM. |
2.5 | Certain high cost or unpredictable part replacements are excluded from the FFP+ Pricing Guarantee. These are: |
a [*****]
b [*****]
c [*****]
d [*****]
e [*****]
f [*****]
Exclusions |
||||
Part Nomenclature/Type |
Excluded | All ESNs | ||
High $ Parts per Section 2.5.A |
Material | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
6/7 |
CONFIDENTIAL TREATMENT REQUESTED
Attachment A: Added Aircraft/Engines
The following replaces Attachment A Group 1 of Amendment n. 10 in order to reflect the current status and contractual term of the Engines covered by the Agreement.
Group 1:
ACFT | Engine | Ownership Status |
Term END Date | |||||
#1 |
[*****] | [*****] | Op Lease | 1-Dec-15 | ||||
[*****] | ||||||||
#2 |
[*****] | [*****] | Op Lease | 1-Dec-15 | ||||
[*****] | ||||||||
#3 |
[*****] | [*****] | Op Lease | [*****] | ||||
[*****] | ||||||||
#4 |
[*****] | [*****] | Op Lease | [*****] | ||||
[*****] | ||||||||
#5 |
[*****] | [*****] | Op Lease | [*****] | ||||
[*****] | ||||||||
#6 |
[*****] | [*****] | Op Lease | [*****] | ||||
[*****] | ||||||||
#7 |
[*****] | [*****] | Op Lease | [*****] | ||||
[*****] | ||||||||
#8 |
[*****] | [*****] | Op Lease | [*****] | ||||
[*****] | ||||||||
#9 |
[*****] | [*****] | Op Lease | [*****] | ||||
[*****] | ||||||||
#10 |
[*****] | [*****] | Op Lease | [*****] | ||||
[*****] | ||||||||
#11 |
[*****] | [*****] | Owned | [*****] | ||||
[*****] | ||||||||
#12 |
[*****] | [*****] | Owned | [*****] | ||||
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
7/7 |
AMENDMENT NUMBER 18
TO
OnPointsm Overhaul
RATE PER FLIGHT HOUR
ENGINE SERVICES AGREEMENT
BETWEEN
GE Engine Services, LLC
GE CELMA LTDA.
AND
AZUL LINHAS AÉREAS BRASILEIRAS S.A.
AZUL S.A.
Agreement Number: 1-1373258434-AM18
Dated: May, 18 2016
PROPRIETARY INFORMATION NOTICE
The information contained in this document is GE Engine Services, LLC (GE) Proprietary Information and is disclosed in confidence. It is the property of GE and will not be used, disclosed to others or reproduced without the express written consent of GE. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document will appear in any such reproduction. U.S. export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
1/9 |
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT NUMBER 18
THIS AMENDMENT Number 18 (Amendment) is entered into by and between Azul S.A. (Holding), Azul Linhas Aéreas Brasileiras S.A. (Azul), GE Engine Services, LLC (GEES) and GE Celma Ltda. (GE Celma), GEES and GE Celma are jointly referred as GE, Holding, and Azul are jointly referred as Customer, (each a Party and collectively referred to herein as Parties).
RECITALS
WHEREAS, the Parties have entered into an OnPointSM Engine Services Agreement dated 25 September 2009, as amended and supplemented from time to time (Agreement) whereby GE has agreed to provide the Services in exchange for payments to be made by Customer to GE Celma pursuant to the terms of the OnPoint Agreement; and
WHEREAS, the Parties want to include in the Covered Services of Article 3.1 certain SB related services, as per the terms of this Amendment;
WHEREAS, the Parties agree on the sublease of [*****] Engines and [*****] Spare Engines to Portugalia Companhia Portuguesa de Transportes Aéreos, S.A. (PGA) without the application of the provisions of Article 11 of the Agreement;
WHEREAS, the Parties agree to such Engines will continue to be covered by the Agreement and [*****] will pay [*****] to [*****] for its portion of the Services;
WHEREAS, the Parties agree to amend Article 5 of the Agreement to revise section 5.1 Rates per EFH;
WHEREAS, the Parties agree to amend and replace Exhibit D Severity table, effective January 1, 2016;
WHEREAS, the Parties agree to amend Article 6 of the Agreement to revise section 6.2 EFH Minimum, with the purpose of clarifying and aligning with Article 11;
WHEREAS, the Parties agree to amend Article 5.5 of the Agreement to include additional Service credits to be distributed to the Customer;
WHEREAS, the Parties agree to amend Article 11 of the Agreement by adding a new Section 11.4. Capitalized terms used, and terms otherwise defined in this Amendment shall have the meaning assigned to them under the Agreement.
NOW THEREFORE, in consideration of the foregoing premises and of the mutual covenants and conditions contained herein, and other good and valuable consideration, receipt and sufficiency of which are acknowledged and agreed, the Parties hereto agree as follows:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
2/9 |
CONFIDENTIAL TREATMENT REQUESTED
1. | Rates per EFH in Article 5.1 of the Agreement, and its amendments (including, but not limited to amendments 4, 8, 9, and 10), shall be entirely replaced by the table below: |
Fleet | New Rates (Popular /Restored) |
Rate as of 9/1/2018 (Popular /Restored) |
Escalation Cap | |||
Rate-1 (all engines except 10 GECAS ESNs) |
[*****] | [*****] | [*****] | |||
Rate-2... unchanged (GECAS 10 engines as per Amd 9) |
[*****] | [*****] | [*****] |
All rates listed above are in 2016 USD and shall be escalated based on the escalation formula listed in the Agreement, subject to the Escalation Cap shown here.
All covered services remain as defined in the Agreement, and each amendment as applicable.
2. | Item k below shall be added to Article 3.1 (Covered Services) of the Agreement: |
k. Provide, for applicable Engines, all labor, materials and parts necessary to comply with
i. [*****]
ii. [*****]
iii. [*****]
iv. [*****]
v. [*****]
vi. [*****]
vii. [*****]
GE hereby further agrees to work to incorporate future recommended solutions that address [*****] in conjunction with Customer and OEMs.
3. | GE agrees on the sublease by Customer to its affiliated company PGA of [*****] Aircraft, totaling [*****] Engines, covered by the Agreement, as per the list below, along with [*****] spare engines to be defined by Customer within its fleet, (the Subleased Engines) for |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
3/9 |
CONFIDENTIAL TREATMENT REQUESTED
the remaining duration of the Agreement, without applying the provisions of Article 11 of the Agreement. It is further agreed Customer, PGA and GE will enter into an agreement no later than June 30th, 2016 to allow for [*****] payment to [*****] by [*****].
ANAC REGISTRATION |
AIRCRAFT S/N | ENGINE TYPE | ORIGINAL ENGINE S/Ns | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | [*****] | |||
[*****] |
[*****] | [*****] | ||||
[*****] |
[*****] | [*****] | ||||
[*****] |
[*****] | [*****] |
4. | The Parties agree that the Subleased Engines, as listed in Item 3 of this Amendment, can be operated by Customer or by PGA, without any prior authorization to GE, provided that in any case Customer shall continue to be entirely responsible for all obligations and payments related to the Subleased Engines. For the avoidance of doubt, Customer is fully responsible for transportation of Equipment to and from PGA. |
5. | The Parties agree that invoices for Services in connection to Subleased Engines shall be |
i. [*****]; or
ii. [*****]; or
iii. [*****]
In that regard, [*****] will notify [*****] no less than [*****] before invoice date, as per Article 6 of the Agreement, [*****]. If [*****] fails to produce such a notification in time, GE will invoice [*****]. For the avoidance of doubt, Customer will continue to be solely and entirely responsible for all obligations and payments in connection with the Agreement.
6. | The Parties understand and recognize that all Services shall continue to be performed at [*****], as per the terms of the Agreement. |
7. | The Parties agree to replace the Severity Table of Exhibit D of the Agreement by the Severity Table of Attachment A to this Amendment, effective as of January 1, 2016. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
4/9 |
CONFIDENTIAL TREATMENT REQUESTED
8. | The Parties agree to replace section 6.2 in its entirety with the following: |
6.2 EFH Minimum.
The monthly average EFH minimum is [*****].
a. | [*****] GE will compare the actual total EFH reported for each Engine during each calendar quarter with the monthly minimum [*****]. If the reported actual EFH is less than the EFH minimum, GE will render an invoice and Customer will pay GE [*****] Payment will be made within [*****] from the date of the invoice. |
b. | [*****] At the time of an Engines Rate Per EFH Shop Visit, GE will compare the actual total EFH reported for such Engine since new or since the last Rate Per EFH Shop Visit with the required EFH minimum. If the reported actual EFH for such Engine is less than the cumulative EFH minimum accrued during such period, then GE will render an invoice and Customer will pay GE [*****]. Payment will be made within [*****] from the date of the invoice. |
c. | Engine Removal subject to reconciliation per Article 11: In the event of an Engines removal from this Agreement, or upon termination of this Agreement if an Engine has not had a Rate Per EFH Shop Visit, GE will compare the actual total EFH reported for such Engine since new or since the last Rate Per EFH Shop Visit with the required minimum EFH. If the reported actual EFH is less than the EFH minimum, GE will render an invoice and Customer will pay GE [*****] Payment will be made within [*****] from the date of the invoice. |
d. | If [*****] of Customers engine fleet fail to meet EFH minimum during any [*****] calendar months throughout the term of the Agreement, GE will render an invoice for all installed Engines which did not meet such EFH minimum, and Customer will pay GE [*****]. Payment will be made within [*****] from the date of the invoice. Any [*****] paid by the Customer under this clause [*****]. |
e. | For the sake of clarification, a [*****] should not be considered for the EFH minimum calculation, unless it is installed in the Aircraft and, at this moment, the [*****] EFH will account for the installed [*****] that it has replaced. |
9. | The Parties agree to revise Section 5.5 to include the following paragraph: |
GE shall make available to Customer, [*****] of the date of this Amendment, [*****] in the amount equal to the quarterly minimum EFH payments invoiced during
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
5/9 |
CONFIDENTIAL TREATMENT REQUESTED
the period from [*****] in accordance with Article 6.2 (a), which amount is equal to USD [*****].
For the avoidance of doubt, any charges regarding Min EFH beginning from [*****] shall be based on [*****] as per Paragraph 8 above.
10. | The Parties agree to amend Article 11 to include a new Section 11.4 as follows: |
11.4 For the first [*****] installed Engines and [*****] Spare Engines, [*****] that are early removed from this Agreement through [*****], the following conditions shall apply:
(i) | Up to a maximum of [*****] of such early removed Engines may be Engines that [*****]; |
(ii) | Customer shall provide [*****] prior notice of each engine removal to allow GE to work with Customer on a TrueChoice Transition agreement; |
(iii) | Customer shall grant [*****]; |
(iv) | Any Lease Return Shop visit caused by an early removal shall be workscoped per the lease return conditions, charged [*****], and performed by GE per the terms of the Agreement, or in conjunction with a mutually agreed TrueChoice Overhaul agreement; |
(v) | In the case of early removal of Engines introduced under Amendment 9, such Engines will be considered part of the aforementioned [*****] installed Engines but reconciliation will be as per Amendment 9. |
11.4.1 | Reconciliation for such Engines shall apply as follows: |
1. | If a removed Engine has not undergone a shop visit, [*****]; |
2. | If a removed Engine has undergone at least one shop visit, GE will calculate the total cumulative charges for [*****] Charges). GE will then compare such [*****] Charges to any [*****] payments received, if any, from the Customer for such removed Engine. If [*****] Charges are greater than the [*****] payments received from the Customer for the removed Engine, then GE will [*****]. If Supplemental Charges are lower than the [*****] payments received from the Customer for the removed Engine at the time of the Rate Per EFH Shop Visit, then GE will [*****]. [*****] will [*****] the invoice within [*****] of receipt. GE will retain all [*****] payments received up to the time of removal; |
3. | [*****] will reimburse to [*****], on a [*****] basis, all [*****] allocated and paid against such Engine if a TSV invoice has been issued. [*****] will reimburse to [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
6/9 |
CONFIDENTIAL TREATMENT REQUESTED
[*****] allocated and paid against such Engine if a TSV invoice has not been issued;
11. | For the next [*****] owned Engines following the signature of this Amendment, that are inducted to a Rate Per EFH Shop Visit with less than [*****] cycles since new, GE will [*****]. GE will [*****]. |
All other terms and conditions contained in the Agreement, which are not modified by this Amendment, shall remain in full force and effect.
This Amendment shall be effective as of the date hereof.
IN WITNESS WHEREOF, GE and Customer have caused this Amendment to be signed in duplicate by their duly authorized officials as of the date written below. Those officials represent to each other and to the Parties that each is unequivocally authorized to execute this Amendment and serves in the capacity indicated below.
GE Celma ltda | Azul S.A. | |
BY: /s/ Julio Talon |
BY: /s/ Amir Nasruddin | |
/s/ Eduardo Soares Wildberger |
||
PRINTED NAME: Julio Talon |
PRINTED NAME: Amir Nasruddin | |
Eduardo Soares Wildberger |
||
TITLE: General Manager |
TITLE: Attorney in Fact | |
Operations Manager |
||
GE Engine Services, LLC | Azul Linhas Aéreas Brasileiras S.A. | |
BY: /s/ Nathan Hoening |
BY: /s/ Amir Nasruddin | |
PRINTED NAME: Nathan Hoening |
PRINTED NAME: Amir Nasruddin | |
TITLE: RES Customer Programs Leader |
TITLE: Attorney in Fact |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
7/9 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A
UPDATED SEVERITY MATRIX
[*****] Severity Table
Util |
2750 | Temp | 50 | Util | 2750 | Temp | 50 | Util | 2750 | Temp | 50 | |||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
Util |
3000 | Temp | 50 | Util | 3000 | Temp | 60 | Util | 3000 | Temp | 70 | |||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
Util |
3250 | Temp | 50 | Util | 3250 | Temp | 60 | Util | 3250 | Temp | 70 | |||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
Util |
3500 | Temp | 50 | Util | 3500 | Temp | 60 | Util | 3500 | Temp | 70 | |||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
Util |
3750 | Temp | 50 | Util | 3750 | Temp | 60 | Util | 3750 | Temp | 70 | |||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
Util |
4000 | Temp | 50 | Util | 4000 | Temp | 60 | Util | 4000 | Temp | 70 | |||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
Util |
4250 | Temp | 50 | Util | 4250 | Temp | 60 | Util | 4250 | Temp | 70 | |||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
8/9 |
CONFIDENTIAL TREATMENT REQUESTED
[*****] Severity Table
Util |
2750 | Temp | 80 | Util | 2750 | Temp | 90 | |||||||||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
Util |
3000 | Temp | 80 | Util | 3000 | Temp | 90 | |||||||||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
Util |
3250 | Temp | 80 | Util | 3250 | Temp | 90 | |||||||||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||||||||||
0 5 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
Util |
3500 | Temp | 80 | Util | 3500 | Temp | 90 | |||||||||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
Util |
3750 | Temp | 80 | Util | 3750 | Temp | 90 | |||||||||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
Util |
4000 | Temp | 80 | Util | 4000 | Temp | 90 | Util | 4000 | Temp | 85 | 85 | ||||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.5 | 1.6 | 1.8 | 2 | ||||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||
Util |
4250 | Temp | 80 | Util | 4250 | Temp | 90 | |||||||||||||||||||||||||||||
DR/FL |
1.2 | 1.4 | 1.6 | 1.8 | 2 | DR/FL | 1.2 | 1.4 | 1.6 | 1.8 | 2 | |||||||||||||||||||||||||
0.05 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.05 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.1 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.1 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.15 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.15 | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||
0.2 |
[*****] | [*****] | [*****] | [*****] | [*****] | 0.2 | [*****] | [*****] | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
9/9 |
Execution version
![]() |
CONFIDENTIAL TREATMENT REQUESTED |
Exhibit 10.6
CONFIDENTIAL TREATMENT REQUESTED REDACTED COPY
Confidential Treatment has been requested for portions of this Exhibit. Confidential
portions of this Exhibit are designated by [*****]. A complete version of this Exhibit has
been filed separately with the Securities and Exchange Commission.
CONTRACT FOR SALE AND OTHER COVENANTS, ENTERED INTO BETWEEN: |
PETROBRAS DISTRIBUIDORA S.A., HEADQUARTERED AT RUA CORREIA VASQUES, Nº 250 6º ANDAR BAIRRO CIDADE NOVA, IN THE CITY OF RIO DE JANEIRO, STATE OF RIO DE JANEIRO, CEP 20211-14-, ENROLLED WITH THE CORPORATE TAXPAYERS REGISTRY (WPS) UNDER NO. 34.274.233/0001-02, HEREBY REPRESENTED BY ITS DULY AUTHORIZED REPRESENTATIVES, ANTONIO CARLOS ALVES CALDEIRA (CONSUMER MARKET DIRECTOR) AND ÉRICA SAIÃO CAPUTO (AVIATION PRODUCTS EXECUTIVE MANAGER) AND ITS AIRLINE MARKETING MANAGER), HEREINAFTER REFERRED TO AS BR. |
AND AZUL LINHAS AÉREAS BRASILEIRAS S/A, A CORPORATION DULY INCORPORATED UNDER THE LAWS OF BRAZIL, HEADQUARTERED AT AVENIDA MARCOS PENTEADO DE ULHOA RODRIGUES, 939, TORRE JATOBÁ, 9º ANDAR, TAMBORÉ, IN THE CITY OF BARUERI, STATE OF SÃO PAULO, ENROLLED WITH THE CORPORATE TAXPAYERS REGISTRY (CNPJ) UNDER NO. 09.296.295/0001-60, HEREBY REPRESENTED BY ITS ATTORNEY-IN-FACT, DULY ELECTED PURSUANT TO ITS BYLAWS, HEREINAFTER REFERRED TO AS PROMISSEE-PURCHASER. BEFORE THE SAME WITNESSES, THE REPRESENTATIVES OF THE PARTIES HERETO AGREE AS FOLLOWS: |
ARTICLE 1 SUBJECT MATTER
1.1 | BR promises to sell to the PROMISSEE-PURCHASER and the PROMISSEE- PURCHASER promises to purchase from BR, during a period of [*****], the monthly minimum quantities of Aviation Kerosene, at the places and in the volume percentages set forth in Annex I hereto. |
1.1.1 | The Parties represent they are aware of the retroactive effects of rights and obligations arising out of this Agreement as of December 16, 2015. |
1.1.2. | The product set forth in Item 1.1 is intended for the consumption of the PROMISSEE-PURCHASER at the places set forth in Annex I hereto. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
1
Execution version
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CONFIDENTIAL TREATMENT REQUESTED |
1.2. | The term hereof may be renewed for equal and successive periods, upon the execution of an amendment by the Parties. |
ARTICLE 2 PRICE AND CONTRACTUAL ADJUSTMENT
2.1 | The product that is the subject matter hereof will be sold by BR to the PROMISSEE-PURCHASER and invoiced at the price practiced by BR, in effect on the day and place of delivery, according to the price list monthly disclosed by BR to the PROMISSEE-PURCHASER. This price list will be sent by BR to the PROMISSEE-PURCHASER [*****] before the price effective date, in excel format, including all formulas that are used to calculate the price. |
2.2 | In the price formation of Aviation Kerosene in Brazil, the price of the producer must observe the Ordinances (Portarias) issued by the Ministry of Mines and Energy and the Brazilian Agency of Oil, Natural Gas and Biofuels (Agência Nacional do Petróleo, Gas Natural e Biocombustíveis ANP), as well as applicable law. |
2.3 | The price of the producer P-45 (refinery price) will be added by: |
2.3.1 | The portion referred to as fixed differential, whose price in R$/liter (Reais per liter) is set forth in Annex I hereto (which Annex, initialed by the Parties, is an integral part hereof), adjusted annually by the Brazilian Broad Consumer Price Index (Índice de Preços ao Consumidor Amplo IPCA) published by the Brazilian Institute of Geography and Statistics (Instituto Brasileiro de Geografia e Estatística IBGE), corresponding to the index accumulated in the past twelve (12) months, published in December. The base date of adjustment is January 1 of each year. |
2.3.1.1 | At any time, as agreed by the Parties, the amount of the fixed differential portion may be changed, with regards to each airport listed in Annex I hereto and new airports where the PROMISSEE-PURCHASER may fuel with BR, so as to maintain the weighted average differential of the total volume of the bases indicated by the Parties. If required, semi-annual adjustments will be carried out to maintain the weighted average amount of the bases indicated by the Parties. |
2.3.1.2 | The pricing of the fixed differential portion for new airports must be negotiated by the Parties. |
2.3.2 | The variable lease portion charged by the Brazilian Aiport Infrastructure Company (Empresa Brasileira de Infraestrutura Aeroportuária INFRAERO), the Brazilian airport authority, or by the company in charge of the administration of the airport, in the amount set forth by them. |
2.3.3 | The rate of the tax on goods and services (Imposto sobre Circulação de Mercadorias e Serviços ICMS), payable in accordance with the rates of each Brazilian State and any other taxes and fees provided by law. |
2.3.4 | Financial charges corresponding to [*****], relating to the payment term granted to the PROMISSEE-PURCHASER. |
ARTICLE 3 SPECIAL PRICING
3.1 | The special pricing of the Fixed Price is optional and will take into account market conditions for the period in which it will apply, pursuant to the process described in Item 3.2 and Subitems. The PROMISSEE-PURCHASER may freely choose the period of establishment of the fixed price, within [*****], limited to the end of the term hereof. In the event the PROMISSEE-PURCHASER intends to qualify for this pricing option, the PROMISSEE-PURCHASER must request assessment rounds from BR on any business day before [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
2
Execution version
![]() |
CONFIDENTIAL TREATMENT REQUESTED |
3.1.1 | The fixed price category will only be applied to the price of the producer P-45 (refinery price). |
3.2 | The following procedures must be followed in the assessment rounds in order to allow the PROMISSEE-PURCHASER to review the feasibility of the special pricing of the fixed price to be applied, as set forth in Item 3.1: |
3.2.1 | Upon request of offer of a fixed price, the PROMISSEE-PURCHASER must choose to receive the offer of the fixed price that will be in effect in month (n), in U.S. dollars or Reais per liter, net of PIS, COFINS, ICMS and any other included taxes. BR must inform the rates in effect in the relevant month to the PROMISSEE-PURCHASER. |
3.2.2 | U.S. dollar amounts will be converted to Reais per liter using the average selling exchange rate of the U.S. dollar of the period between the [*****], as published by the Central Bank of Brazil. |
3.2.3 | Day D: the PROMISSEE-PURCHASER will request from BR, in writing, the following parameters: monthly volume and period intended, per distribution hub with free allocation by the PROMISSEE-PURCHASER among the airports that are part of each hub; |
3.2.4 | Day D+1: by 12:00 p.m. (Brasília time) of the business day following the day set forth in Item 3.2.3, BR will inform, in writing, the following parameters: price and monthly volume that can be sold at the fixed price, within the requested period, per point of supply, and the PROMISSEE-PURCHASER will confirm, in writing, by 12:20 p.m. (Brasília time) of the same day, its intention to contract per point of supply, at special prices; |
3.2.5 | BR will confirm, in writing, by 4:00 p.m. (Brasília time) of the same day set forth in Item 3.2.4, the monthly volume effectively accepted at the special pricing per point of supply, within the requested period. |
3.2.6 | In case of more than one round in which the PROMISSEE-PURCHASER effectively accepts this pricing, the fixed price in effect for the agreed period will be calculated as the weighted average of prices and monthly volumes agreed in the n-rounds, in accordance with the formula below, including four decimal places. |
[*****] |
[*****] |
3.3 | The monthly volume effectively accepted by the PROMISSEE-PURCHASER at the special fixed price must be primarily and fully collected at each point of supply. In the event such contracted volume is not collected, for any reason, the PROMISSEE-PURCHASER will be responsible for paying a fine to BR, calculated [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
3
Execution version
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CONFIDENTIAL TREATMENT REQUESTED |
3.4 | The volume to be supplied at the fixed price in a certain month cannot exceed [*****] of the volume delivered in the same month of the previous year or [*****] at the distribution hub chosen by the PROMISSEE-PURCHASER, whichever is higher. |
3.4.1 | BR may, at its discretion, suspend the negotiation of the fixed price or restrict the volume to be negotiated. |
ARTICLE 4 PAYMENT
4.1 | The Aviation Kerosene sold by BR will be measured upon delivery and invoiced on behalf of the PROMISSEE-PURCHASER, as follows: |
* | Supply from [*****] will be paid on the [*****]; |
* | Supply from [*****] will be paid on [*****]; |
* | Supply from [*****] will be paid on the [*****]. |
4.2 | The Parties agree that the payment term is set forth due to current market conditions and the financial backing of the PROMISSEE-PURCHASER with BR. The Parties mutually agree to re-examine the payment term in the event current market conditions and/or the financial backing of the PROMISSEE- PURCHASER with BR change. |
4.3 | Payments will be made through bank deposit or bank electronic transfer (TED) to the account held at [*****] located in the city of Rio de Janeiro or at a place expressly indicated by BR for this purpose. |
4.4 | In the event of delay in payment of invoices, the PROMISSEE-PURCHASER will pay to BR amounts due [*****], plus pro rata interest for late payment of [*****] and a fine of [*****]. Interest for late payment will be payable as of the due date of the relevant invoices. |
4.5 | In the event of delay in payment of invoices, BR may demand early payment from the PROMISSEE-PURCHASER. |
4.6 | The Parties agree that BR may request the early payment of amounts payable by the PROMISSEE-PURCHASER hereunder to the financial institution with which the PROMISSEE-PURCHASER entered into an Agreement for the Prepayment of Receivables under Credit Assignment Transactions Confirming. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
4
Execution version
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ARTICLE 5 ELETRONIC FILES
5.1 | During the term hereof, BR will generate electronic files that will be sent daily via FTP to the PROMISSEE-PURCHASER. These files will inform the amount of Aviation Kerosene purchased by the PROMISSEE-PURCHASER for its aircrafts and other data (number of the invoice (Nota Fiscal), date, place of refueling, unit price, total amount of the Nota Fiscal, flight number, aircraft prefix, etc.), which will be used to issue invoices. |
5.2 | In order to protect the confidentiality of the files and facilitate the access of the PROMISSEE-PURCHASER, BR made available the website ftp.br-petrobras.com.br (Website), through which the PROMISSEE-PURCHASER has daily access to the files. |
5.3 | BR agrees that: |
(i) | the PROMISSEE-PURCHASER may copy, use, and store files, even after the termination of the Agreement, for a period provided by applicable law; |
(ii) | the network server of the PROMISSEE-PURCHASER and its appointed employees, through their desktop computers, are authorized to access the Website on a personal basis through individual passwords provided by BR to each of them; |
(iii) | the area intended for storage of information of the PROMISSEE-PURCHASER will not be shared with other institutions, and only the PROMISSEE-PURCHASER and BR may store and/or handle the files; |
(iv) | employees of the PROMISSEE-PURCHASER must obtain the files at the Website of BR within one hundred eighty (180) days from the date of their issuance; |
(v) | any information exchanged between the PROMISSEE-PURCHASER and BR must be encrypted before its transfer to the Website. |
(vi) | the PROMISSEE-PURCHASER and BR will share a password, known only by each of them, in order to decrypt information. |
5.4 | Moreover, BR acknowledges that the PROMISSEE-PURCHASER is not responsible for the availability and management of its FTP servers. |
5.5 | In the event the information made available by BR at the Website is not complete or presents any inconsistency, BR will provide such information subsequently, as soon as possible. |
5.6 | The Parties also agree, even after termination hereof, not to use and/or disclose to third parties the contents of the files, agreement, and their relationship due to the confidentiality of the information involved and made available, under penalty of the applicable sanctions. Any undue disclosure will subject the Infringing Party to the payment or redress regarding all losses confirmedly incurred by the other Party, including pain and suffering or competitive injury, and other losses resulting from administrative or judicial proceedings, and civil and criminal liability, which will be assessed in the due course of the relevant judicial or administrative proceeding. |
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ARTICLE 6 AIRCRAFT FUEL DRAINAGE
6.1 | BR may drain the fuel from aircraft tanks, upon request of the PROMISSEE-PURCHASER at the airports where this type of operation is available, as listed in Annex II hereto. |
6.2 | The request for fuel drainage must be sent to the employee or reseller of BR responsible for the airport where the operation will be conducted. The request must be made in writing, signed by an employee of the PROMISSEE-PURCHASER, or via email including the employees identification. BR will provide and maintain an updated list of contact managers at its bases, included in Annex II hereto. |
6.3 | The request for fuel drainage must be received within the advance period set forth by BR to provide the service, as included in Annex II hereto. |
6.4 | The product that is drained from the aircraft tank must be returned to the same aircraft or to a different aircraft of the PROMISSEE-PURCHASER [*****]. BR will provide to the PROMISSEE-PURCHASER a proof of delivery of the fuel returned to the aircraft tank. |
6.4.1 | In the event of suspected contamination, the product drained from the aircraft tank must be submitted for analysis, storage, and possible disposal, as applicable. |
6.4.2 | The costs regarding the analysis, storage, and disposal will be previously informed to the PROMISSEE-PURCHASER and a review will be conducted on a case-by-case basis to define which Party will bear such costs. |
6.5 | The product that is drained from the aircraft tank will remain stored for maximum periods and at maximum volumes as set forth for each airport, depending on their operating capacity, as specified in Annex II hereto. |
6.6 | In the event the PROMISSEE-PURCHASER fails to fulfill any of the conditions set forth above, BR reserves the right not to conduct the operations of fuel drainage, upon written notice to the PROMISSEE-PURCHASER. |
6.7 | For the fuel drainage operations of the aircrafts of the PROMISSEE- PURCHASER, the Parties agree that a fixed price per fuel drainage operation will be charged, in the amount of [*****], plus a variable amount per liter of fuel drained and returned, corresponding to the fixed differential price practiced at the airport. |
6.7.1. | The conditions set forth in Item 6.7 above will only apply in the event more than [*****] fuel drainage operations per month are conducted in the aircrafts. |
ARTICLE 7 OBLIGATIONS OF BR
The specific obligations of BR are set forth below:
7.1 | BR agrees to provide the Aviation Kerosene required to meet the monthly total consumption contracted by the PROMISSEE-PURCHASER, at the locations set forth in Annex I hereto, at times compatible with the relevant flights in Brazil, included in the HOTRAN (transport time) published by the Brazilian Civil Aviation Agency (Agência Nacional de Aviação Civil), and abroad, pursuant to local rules, as well as all other non-regular flights, charter flights, training flights and repositioning flights of the PROMISSEE-PURCHASER that require fuel. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7.1.1 | BR will reimburse the PROMISSEE-PURCHASER for all direct expenses resulting from delays in flights above [*****], pursuant to ANAC Resolution 141, up to [*****] per event, and pay a fine of [*****] per event, provided that the delays are confirmedly caused by BR and the relevant flights are immediately informed to the local team [*****] hours in advance. |
7.1.2. | BR agrees to pay to the PROMISSEE-PURCHASER the amount of [*****] per flight whose aircraft is not fueled, in addition to [*****], pursuant to ANAC Resolution 141, including, but not limited to [*****], provided that BR is confirmedly responsible for the failure to fuel aircrafts at the locations where BR has fueling facilities. |
7.1.3 | BR is not required to pay [*****]. |
7.2 | BR agrees to maintain the quality and the readiness of its service according to the standards set forth for this type of operation, placing all possible efforts and resources towards the good provision of the services contracted hereunder. |
7.3 | BR agrees to maintain the quality of the Aviation Kerosene within technical specifications, free of water or other contaminants, making periodic test reports available as required to confirm such quality. |
7.3.1. | Respond to quality audits conducted by the PROMISSEE-PURCHASER within the period mutually agreed and comply with the items of the IOSA checklist. |
7.3.2 | The PROMISSEE-PURCHASER may request from BR, at any time, the result of the quality assessments conducted on the fuel used in the aircrafts of the PROMISSEE-PURCHASER, and BR will send it to the PROMISSEE-PURCHASER, within [*****] after the request, or [*****] in case the safety of the flight may be compromised. |
7.3.3 | Item 10.2 below will apply in the event the irregularity mentioned above is found by BR. |
7.4 | BR agrees to comply with, and cause its employees and agents to comply with, all legal and regulated orders concerning its activity as Distributor of Oil Byproducts, especially Resolution, Ordinances (Portarias), and other acts issued by the federal legislative body. |
7.5 | BR will not be held liable for any lack of Aviation Kerosene at the locations and times referred to in Item 7.1.1 in the event this lack of Aviation Kerosene results from governmental acts and any other events of force majeure or Act of God. In these cases, BR will put in its best efforts to maintain the supply to the PROMISSEE-PURCHASER. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7.5.1 | Scheduled strikes of employees of BR or outsourced service providers that may harm the supply of fuel provided hereunder will not be deemed an Act of God. |
7.6 | BR agrees to reimburse, directly or through an insurance company, [*****]. |
7.7 | BR agrees to conduct the fuel drainage operations requested by the PROMISSEE-PURCHASER in accordance with the conditions set forth herein. |
7.8 | At all times the PROMISSEE-PURCHASER obtains benefits under an ICMS Special Regime or extends an existing Special Regime, the PROMISSEE-PURCHASER must immediately submit it to BR, which, after analysis, will proceed with the parameterization of the BR system as soon as possible. The temporary interruption in the supply is recommended in order to avoid issuances based on outdated parameters. |
7.8.1 | With regards to the analysis mentioned above, a representation letter may be requested to be delivered, in the form provided by BR, which must include at least the following information: |
7.8.1.1 | The PROMISSEE-PURCHASER agrees to immediately and primarily notify BR [*****] in the event of any change and/or revocation of the regime or its applicability, especially, but not exclusively, any cause that may result in loss of the tax benefit. |
7.8.1.2 | In the event deficiency notices are issued under tax proceedings, or collection notices are issued under judicial or administrative proceedings, against BR, because the State believes that the Special Regime does not apply or due to a change and/or revocation of the Special Regime or its applicability that is not informed by the PROMISSEE-PURCHASER to BR, the PROMISSEE-PURCHASER agrees to be the main debtor, bearing all resulting burden. |
7.8.1.3 | The PROMISSEE-PURCHASER is hereby informed that the obligation set forth above includes, but is not limited to, the recognition of additional invoices issued to collect the difference between the products full tax amount and reduced tax amount as a result of a tax benefit or special regime, regarding all operations conducted in [*****], due to a judicial decision rendered in a lawsuit relating to diffuse or concentrated control of constitutionality that may declare, in full or in part, the unconstitutionality of rules that support the special regime or tax benefit. |
7.8.1.4 | The PROMISSEE-PURCHASER agrees, through this representation, within the scope of the operation described herein, to [*****]. |
7.8.1.5 | [*****] BR is solely required to [*****] notify the PROMISSEE-PURCHASER about these situations to allow the [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7.8.2 | In the event of error in the formation of the price due to misinterpretation of the legislation/special regime or the parameterization of the system by BR, BR must promptly make the relevant adjustments to its system and request the authorization of tax authorities to reimburse the PROMISSEE-PURCHASER for these amounts upon a discount included in the next invoice to be issued by BR to the PROMISSEE-PURCHASER, provided that the PROMISSEE-PURCHASER identifies the issue upon receipt of the invoice (nota fiscal). |
7.8.3 | At all times required, BR must present the list of invoices (Notas Fiscais) and the price impact relating to the special regime within [*****] from the date the inconsistency is found. |
7.8.4 | Any acquisition of ICMS credits as a result of Special Regimes must be negotiated, and discounts granted to the PROMISSEE-PURCHASER will be negotiated on a case-by-case basis. |
ARTICLE 8 OBLIGATIONS OF THE PROMISSEE-PURCHASER
8.1 | The specific obligations of the PROMISSEE-PURCHASER, and other obligations implicitly or explicitly included herein, are set forth below: |
8.1.1 | The PROMISSEE-PURCHASER will purchase from BR, during the term hereof, the minimum volumes of Aviation Kerosene, at the locations and in the volumes specified in Annex I hereto. |
8.1.2 | The PROMISSEE-PURCHASER will pay the amounts corresponding to the supplies provided by BR, pursuant to Article 2 hereof. |
8.1.3 | The PROMISSEE-PURCHASER will not assign, subrogate, negotiate or in any way transfer this Agreement or any rights or obligations hereunder, under penalty of the sanctions set forth herein. |
8.1.4 | The PROMISSEE-PURCHASER will comply with and cause the compliance with all laws and regulations, ordinances and rules in effect relating to the performance of its activities. The PROMISSEE-PURCHASER is responsible for the payment of any amounts or losses incurred by BR, directly or indirectly, as a result of the non-performance of this obligation. |
8.2 | Considering that the quality of the Aviation Kerosene of BR is appropriate, assuring the quality standard of the supplied product to the PROMISSEE- PURCHASER, the PROMISSEE-PURCHASER agrees to verify the quality control of the product received and the exact compliance herewith, notably in terms of safety, health and environmental rules. |
8.3 | The PROMISSEE-PURCHASER agrees to previously notify BR in the event of any change and/or revocation of the special regime or its applicability, and of any cause that may result in the loss of this tax incentive. |
8.3.1 | In the event deficiency notices are issued under tax proceedings, or collection notices are issued under judicial or administrative proceedings, against BR, due to a change and/or revocation of the Special Regime or its applicability that is not informed by the PROMISSEE-PURCHASER to BR, [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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8.3.2 | The PROMISSEE-PURCHASER is hereby aware that the obligation set forth above includes, but is not limited to, [*****] due to a judicial decision rendered in a lawsuit relating to diffuse or concentrated control of constitutionality that may declare, in full or in part, the unconstitutionality of the application of the tax benefit. |
8.3.3 | The PROMISSEE-PURCHASER agrees to reimburse BR for [*****]. BR is solely required to timely notify the PROMISSEE-PURCHASER about these situations to allow payment arrangements. |
ARTICLE 9 TAXES
9.1 | All taxes (taxes, fees, tax or quasi-fiscal contributions and any emoluments) directly or indirectly resulting from this Agreement or its performance will be exclusively payable by the Party responsible for such taxes, pursuant to applicable tax law, without any right to reimbursement by the other Party, at any title. |
ARTICLE 10 TERMINATION
10.1 | This agreement may be terminated by operation of law, at the discretion of the non-breaching party, irrespective of notice or judicial or extrajudicial notification. The penalty set forth in Item 10.3, subitem 10.3.1 and Article 11 will be imposed on the breaching party in the following events: |
10.1.1 | Judicial or extrajudicial liquidation of any of the Parties; |
10.1.2 | Petition or proposition of judicial or extrajudicial reorganization; filing for, adjudication or confirmation of bankruptcy; conversion from reorganization to bankruptcy or legitimate protest of an issuance or co-obligation instrument of the PROMISSEE-PURCHASER, without cancelation within the legal term. |
10.1.3 | Delay by the PROMISSEE-PURCHASER regarding the payment of the product purchase invoice to BR, after [*****] from the due date. |
10.1.4 | Failure by the breaching party, once notified to cure its noncompliance, to do so within the period set forth in the relevant notice. |
10.1.5 | Failure by the PROMISSEE-PURCHASER to fulfill its obligation to purchase the volume percentages of Aviation Kerosene set forth in Item 1.1 and specified in Annex I hereto. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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10.2 | In the event of non-compliance with any articles or conditions set forth herein, the breaching party will be notified to cure the non-compliance within [*****], under penalty of default, in which case the non-breaching party may terminate this Agreement, without prejudice to the penalty of payment of the fine set forth in Item 10.3.1 by the breaching party to the non-breaching party. |
10.3.1 | The Party that causes the termination of this Agreement or fails to comply with any provision hereof will be subject to the payment of a termination fine corresponding to [*****], as follows: |
[*****] |
ARTICLE 11 ACT OF GOD AND FORCE MAJEURE
11.1 | The enforceability hereof will be suspended due to force majeure or Act of God that prevents its performance by any of the Parties. Performance hereof will be resumed as soon as the event that caused the suspension of its enforceability ceases to exist. |
11.2 | In the event of the abovementioned suspension, the term hereof will be automatically extended for the time required to offset the time of suspension of enforceability. |
11.3 | Once the suspension has ended, this Agreement will be automatically terminated in the event of breach of any of the obligations hereby assumed by the Parties, and the fine set forth in Item 10.3 and subitem 10.3.1 hereof will be applied to the breaching party. |
ARTICLE 12 REGULATORY AGENCY
12.1 | The PROMISSEE-PURCHASER agrees to reimburse BR for any fines that may be imposed on BR due to confirmed non-compliance, exclusively by the PROMISSEE-PURCHASER, of orders and instructions of the Brazilian Oil Agency (Agência Nacional de Petróleo ANP) and/or other agencies that are competent to regulate the sale and distribution of oil by-products, ethanol, and the by-products of other sources of energy. |
12.2 | The supply of Aviation Kerosene included in Item 1.1 is subject to the same usual market conditions of supply and the changes that are imposed by ANP and/or other agencies that are competent to regulate the supply of oil by-products, ethanol, and the by-products of other sources of energy, including in connection with prices, delivery and payment terms. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ARTICLE 13 SUCCESSION
13.1 | The obligations assumed hereunder extend to the assignees and/or successors of the Parties and all persons that may operate the relevant business and/or is sub-rogated in the activity of the PROMISSEE- PURCHASER, at any title. The Parties will only be released from these obligations upon written consent from the other Party. |
ARTICLE 14 SOCIAL FUNCTION OF THE AGREEMENT
14.1 | In all activities related to the performance hereof, BR must not employ child labor, pursuant to Item XXXIII of Article 7 of the Brazilian Federal Constitution, or labor in conditions similar to that of slavery. BR must include a specific provision in this regard in the agreements entered into with its suppliers of inputs and/or service providers, under penalty of fine or termination hereof, without prejudice to other applicable measures. |
14.2 | In recruiting and hiring its work force, the PROMISSEE-PURCHASER must not exercise any kind of discrimination relating to race/ethnicity, color, age, gender, marital status, as well as political opinion, ideology, philosophy and/or religion, or for any other reason, under penalty of termination hereof, irrespective of applicable penalties. |
ARTICLE 15 AMENDMENT TO THE BYLAWS
15.1 | In the event the PROMISSEE-PURCHASER amends its bylaws reflecting a change of its trade name, assignment or change in its control, the PROMISSEE-PURCHASER must notify BR of the fact within [*****], through the Registry of Deeds and Documents. |
ARTICLE 16 VALUE OF THE AGREEMENT
16.1 | The Parties attribute to this Agreement the value of [*****]. |
ARTICLE 17 CONTRACTUAL GOOD FAITH
17.1 | The PROMISSEE-PURCHASER and BR represent, for all legal purposes and effects, that the conditions set forth herein are the result of the negotiation between them. |
ARTICLE 18 CONFIDENTIALITY
18.1 | The Parties agree that the conditions set forth herein cannot be provided or disclosed to third parties and guarantee that only employees that effectively need to know these conditions will have access to them. |
18.2 | The Parties agree to keep the confidentiality of the information referred to in Item 18.1 for up to three (3) years from the date of termination hereof. |
18.3 | Information requested by any governmental body or agency may be provided, as well as information requested pursuant to applicable law. Nonetheless, in any event, the relevant Party must inform the other Party to allow it to oppose the request. Failure to inform the other Party constitutes a breach of contract. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ARTICLE 19 ENVIRONMENTAL LIABILITY
19.1. | The PROMISSEE-PURCHASER undertakes to comply with environmental laws and regulations, as well as to obtain and maintain the validity of all licenses, authorizations, and studies required for the full development of its activities. The PROMISSEE-PURCHASER also agrees to adopt the applicable measures and procedures in order to remove any aggression, danger or risk of damage to the environment that may be caused by its activities, including outsourced activities. |
19.1.1. | For purposes hereof, the term environment or expressions related to environmental liability include all other matters regulated by applicable rules, such as public health, urban planning, historical/cultural heritage, and environmental management. |
19.2. | The PROMISSEE-PURCHASER and its representatives are exclusively subject to the sanctions imposed by environmental rules and liable for any and all damage to the environment exclusively caused by the PROMISSEE-PURCHASER, as a result of its activities or losses of any nature, especially due to defects, usage, packaging, products and equipment it owns or holds under loans, leases or other means, even if transferred to third parties not included herein. |
19.2.1. | The environmental liability of the PROMISSEE-PURCHASER covers all sanctions and requirements provided in Law No. 9.605/98 and other laws or normative acts that currently provide or may provide in the future for environmental matters. |
19.2.2. | The environmental liability of the PROMISSEE-PURCHASER for damages exclusively caused by it, or originated during the term hereof and any term extensions, remains even if the effects of the damages become known or occur after termination hereof. |
19.2.3. | [*****] |
19.2.4. | In the event the PROMISSEE-PURCHASER breaches the environmental rules or fails do take the measures required to avoid environmental damages or losses, BR may, at its discretion, immediately suspend the Agreement until the PROMISSEE- PURCHASER takes the relevant required measures. |
19.2.5. | In the event of any environmental damage exclusively caused by the PROMISSEE-PURCHASER, the PROMISSEE-PURCHASER agrees to immediately inform the competent authorities and take all measures required to remediate and minimize environmental damage and impact. The PROMISSEE-PURCHASER also agrees to immediately and efficiently inform BR of the relevant damage and any notices, process, and infringement notices that it receives, and such fact will not imply the assumption of any liability by BR. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ARTICLE 20 JURISDICTION
20.1 | The Parties choose the jurisdiction of the courts of the city of Rio de Janeiro, State of Rio de Janeiro, excluding any other. In the event of a dispute, the breaching party will bear all judicial and extrajudicial expenses and attorneys fees [*****] of the amount set forth by the court decision. |
20.2 | IN WITNESS WHEREOF, the Parties executed this Agreement in three (3) counterparts of the same content in the presence of two (2) witnesses. |
Rio de Janeiro, May 25, 2016.
/s/ Antonio Carlos Alves Caldeira |
PETROBRAS DISTRIBUIDORA S.A. |
Antonio Carlos Alves Caldeira |
Consumer Market Director |
/s/ Erica Saião Caputo |
PETROBRAS DISTRIBUIDORA S.A. |
Erica Saião Caputo |
Aviation Products Manager |
/s/ John Rodgerson |
AZUL LINHAS AÉREAS BRASILEIRAS S.A. |
Name: John Rodgerson |
Title: Attorney in fact |
WITNESSES:
/s/ Raffael Quintas Alves | /s/ Julio Cesar Abrahão | |||
Name: Raffael Quintas Alves | Name: Julio Cesar Abrahão | |||
ID (RG): 25607886-5 | ID (RG): 1991102971 (CREA RJ) |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ANNEX I
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ANNEX II
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Exhibit 10.7
CONFIDENTIAL TREATMENT REQUESTED REDACTED COPY
Confidential Treatment has been requested for portions of this Exhibit. Confidential portions of this Exhibit are designated by [*****]. A complete version of this Exhibit has been filed separately with the Securities and Exchange Commission.
FIRST AMENDMENT TO THE INVESTMENT AGREEMENT
by, on one side,
TRIP PARTICIPAÇÕES S.A.,
TRIP INVESTIMENTOS LTDA.,
and
RIO NOVO LOCAÇÕES LTDA.
and, on the other side,
AZUL S.A.,
and, as intervening and consenting
parties,
AZUL LINHAS AÉREAS BRASILEIRAS S.A.,
TRIP LINHAS AÉREAS S.A.,
and
DAVID GARY NEELEMAN
DATED AUGUST 15, 2012
FIRST AMENDMENT TO THE INVESTMENT AGREEMENT
By this private instrument, on one side,
(a) | TRIP PARTICIPAÇÕES S.A., a corporation with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 09.229.532/0001-70, herein represented by its undersigned legal representatives (TRIP Participações); |
(b) | TRIP INVESTIMENTOS LTDA., a limited liability company with head office in the City of Campinas, State of São Paulo, at Avenida Cambacicas, 1200, Parque Imperador, Condomínio Flex Buildings, Módulo 2, CEP 13097-104, registered as taxpayer under CNPJ/MF No. 15.300.240/0001-89, herein represented by its undersigned legal representatives (TRIP Investimentos); |
(c) | RIO NOVO LOCAÇÕES LTDA., a limited liability company with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 6.3, Suite 208, CEP 29157-405, registered as taxpayer under CNPJ/MF No. 04.373.710/0001-18, herein represented by its undersigned legal representatives (Rio Novo and, together with TRIP Participações, TRIPs Shareholders); and |
On the other side,
(d) | AZUL S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Alameda Surubiju, Nos. 2010 and 2050, Block A, suite 21, Alphaville Industrial, registered as taxpayer under CNPJ/MF No. 09.305.9994/0001-29, herein represented by its undersigned legal representatives (AZUL Holding and, together with TRIPs Shareholders, the Parties, and each of them, individually, a Party), |
And, in the capacity of intervening and consenting parties (the Intervening and Consenting Parties):
(e) | AZUL LINHAS AÉREAS BRASILEIRAS S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Alameda Surubiju, Nos. 2010 and 2050, Block A, suite 21, Alphaville Industrial, registered as taxpayer under CNPJ/MF No. 09.296.295/0001-60, herein represented by its undersigned legal representatives (AZUL); |
(f) | TRIP LINHAS AÉREAS S.A., a corporation with head office in the City of Campinas, State of São Paulo, at Avenida Cambacicas, 1200, Parque Imperador, CEP 13097-104, registered as taxpayer under CNPJ/MF No. 02.428.624/0001-30, herein represented by its undersigned legal representatives (TRIP); and |
(g) | DAVID GARY NEELEMAN, Brazilian, married, bearer of Identification Card RG No. 53.031.273-6 SSP/SP and registered as taxpayer under CPF/MF No. 744.573.731-68 (Neeleman), herein represented by his undersigned attorneys-in-fact, and being bound to this Agreement exclusively with respect to Sections 2.1, 2.2, 2.3, 3.1, 3.2, 4.4, 4.5, 4.6, 9.1, 9.1.1, and 9.3 hereof. |
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PREAMBLE
WHEREAS, on May 25, 2012, the Parties and the Intervening and Consenting Parties executed the Investment Agreement (Agreement), in order to determine, subject to the terms and conditions set forth in the Agreement, the merger of all TRIPs Shares into AZUL Holding (as provided for in the Agreement), and subsequently delivering newly issued shares of AZUL Holding to TRIPs Shareholders, without causing the winding up of TRIP, pursuant to the provisions of article 252 of Law No. 6,404, dated December 15, 1976,
WHEREAS, the Parties and the Intervening and Consenting Parties wish to amend certain terms and conditions of the Agreement,
NOW, THEREFORE, THE PARTIES, together with the Intervening and Consenting Parties, have resolved to enter into this amendment (Amendment), which shall be governed by the following terms and conditions:
SECTION I
AMENDMENTS
1.1. | The capitalized term Subscription Warrant AGE, specified in Section 1.1. of the Agreement, shall now be defined as Subscription Warrant AGE TRIPs Shareholders and shall hereafter read as follows: |
Subscription Warrant AGE TRIPs Shareholders has the meaning ascribed to it in Section 4.4 hereof.
1.2. | The Parties agree to include, in Section 1.1. of the Agreement, the capitalized term TRIPs Shareholders Subscription Warrant Indemnifications Adjustment, which shall be read as follows: |
TRIPs Shareholders Subscription Warrant Indemnifications Adjustment has the meaning ascribed to it in Section 4.4 hereof.
1.3. | The Parties agree to include, in Section 1.1. of the Agreement, the capitalized term Subscription Warrant Pre-Money Valuation Adjustment, which shall be read as follows: |
Subscription Warrant Pre-Money Valuation Adjustment has the meaning ascribed to it in Section 4.4 hereof.
1.4. | The Parties agree to include, in Section 1.1. of the Agreement, the capitalized term Subscription Warrant AGE Original Shareholders, which shall be read as follows: |
Subscription Warrant AGE Original Shareholders has the meaning ascribed to it in Section 4.4.1 hereof.
1.5. | The capitalized term Subscription Warrants for the Adjustment of Shareholding, specified in Section 1.1. of the Agreement, shall now be defined as Subscription Warrants for the Adjustment of Shareholding TRIPs Shareholders, and shall hereafter read as follows: |
Subscription Warrants for the Adjustment of Shareholding TRIPs Shareholders has the meaning ascribed to it in Section 4.4.
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1.6. | The Parties agree to include, in Section 1.1. of the Agreement, the capitalized term Subscription Warrants for the Adjustment of Shareholding Original Shareholders, which shall be read as follows: |
Subscription Warrants for the Adjustment of Shareholding Original Shareholders has the meaning ascribed to it in Section 4.4.1
1.7. | The Parties agree to amend the capitalized term Deadline, specified in Section 1.1. of the Agreement, which shall hereafter read as follows: |
Deadline has the meaning ascribed to it in Section 6.2.
1.8. | The Parties agree to amend the capitalized term Financial Statements, specified in Section 1.1. of the Agreement, which shall hereafter read as follows: |
Financial Statements means the audited financial statements of TRIP and AZUL Holding dated as of and for the Fiscal Year ended December 31, 2011, and non- audited financial statements, with limited review, of TRIP and of AZUL Holding dated as of and for the fiscal quarter ended March 31, 2012.
1.9. | The Parties agree to include, in Section 1.1. of the Agreement, the capitalized term Code Share, which shall be read as follows: |
Code Share has the meaning ascribed to it in Section 10.15.
1.10. | The Parties agree to include, in Section 1.1. of the Agreement, the capitalized term Code Share Agreement, which shall be read as follows: |
Code Share Agreement has the meaning ascribed to it in Section 10.15.
1.11. | The Parties agree to include, in Section 1.1. of the Agreement, the capitalized term Resources Onlending to TRIP after ANACs Approval, which shall be read as follows: |
Resources On lending to TRIP after ANACs Approval has the meaning ascribed to it in Section 10.16.
1.12. | The Parties agree to amend item (iii) of Section 2.1. of the Agreement, which shall hereafter read as follows: |
(iii) subject to the provision of Section VI, the Parties establish that the number of Class A common shares and Class B preferred shares of AZUL Holding to be issued as a result of the Merger of Shares (respectively, AZUL Holdings New Common Shares and AZUL Holdings New Class B Preferred Shares, and collectively, AZUL Holdings New Shares) shall be equivalent to 30.7% (thirty point seven percent) of the total shares issued by AZUL Holding (the Initial Exchange Ratio) after the Merger of Shares. The types and total number of AZUL Holdings New Shares issued (on a prorated basis) in favor of TRIPs Shareholders, on the Date of Merger, are indicated in Exhibit 2.1(iii).
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CONFIDENTIAL TREATMENT REQUESTED
1.13. | The Parties agree to alter Section 4.4 of the Agreement, which shall hereafter read as follows: |
4.4. Consent of Class B Shareholders. Warrant. AZUL Holding and Neeleman shall endeavor their best efforts to cause all of the Original Shareholders holding AZUL Holdings Class B Preferred Shares (Class B Shareholders) attached hereto as Exhibit A, to vote for the Merger of Shares, as well as agree with the commitment to transfer, proportionally to the shareholding of each Class B Shareholders in AZUL Holding, to TRIPs Shareholders, as many AZUL Holdings Class B Preferred Shares as may be necessary to comply with the provisions of Sections 6 and 8 below. AZUL Holding and Neeleman shall work together with the Class B Shareholders in order to determine whether all Class B Preferred Shareholders may consent in writing to the provisions of Sections 6 and 8 of this Agreement, declaring in such document that (i) they will not transfer certain percentage of their AZUL Holdings Class B Preferred Shares up to the AdjustmentIndemnifications Date (in order to comply with the adjustment obligations set forth in Sections 6 and 8 of this Agreement), and such percentage shall be defined in good faith by all Parties after the conclusion of the Due Diligences Exercises (No Transfer Obligation) and (ii) prepare the annotations of the No Transfer Obligation on AZUL Holdings Share Registry Book (the Consentof Class B Shareholders). If all conditions precedent provided for in Section 5.1 have been satisfied and AZUL Holding and Neeleman have not obtained the consents of the Class B Shareholders, Neeleman and AZUL Holding agree to call an AZUL Holdings AGE for the approval of the issuance of two (2) subscription warrants (bônus de subscrição) by AZUL Holding (the Subscription Warrant AGE TRIPs Shareholders), for a subscription price of R$[*****] Brazilian Reais) each. One of the abovementioned subscription warrants shall be issued by AZUL Holding in favor of TRIPs Shareholders in order to ensure that TRIPs Shareholders receive from AZUL Holding, subject to Section 6, as many Class B preferred shares as necessary to comply with the obligations of adjustment of shareholding provided for in Section 6 of this Agreement, related to determination of the Pre-Money Valuation of AZUL Holding (the Subscription Warrants Pre-Money Valuation Adjustment). The second of the abovementioned subscription warrants shall be issued by AZUL Holding in favor of TRIPs Shareholders in order to ensure that TRIPs Shareholders receive from AZUL Holding, subject to Section 8, as many preferred shares as necessary to comply with the indemnification obligation provided for in Section 8 of this Agreement (the TRIPs Shareholders Subscription Warrants Indemnifications Adjustment, jointly with the Subscription Warrants Pre-Money Valuation Adjustment, the Subscription Warrants for the Adjustment of Shareholding TRIPs Shareholders). AZUL Holding and Neeleman shall endeavor their best efforts to cause the Class B Shareholders to approve the issuance of the Subscription Warrants for the Adjustment of Shareholding Trips Shareholders, waiving their preemptive rights. From the issuance of the Subscription Warrants for the Adjustment of Shareholding Trips Shareholders, all obligations under Sections 6 and 8 of this Agreement will no longer be invoked against the Class B Shareholders, and TRIPs Shareholders shall use the Subscription Warrants for the Adjustment of Shareholding TRIPs Shareholders to consummate the transactions described in Sections 6 and 8 hereof.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
1.14. | The Parties agree to include Section 4.4.1, which shall hereafter read as follows: |
4.4.1 Mutually, AZUL Holding and Neeleman agree to call an AZUL Holdings AGE (Subscription Warrant AGE Original Shareholders), for the approval of the issuance of a subscription warrant by AZUL Holding in favor of each of the Original Shareholders, for a subscription price of R$[*****] Brazilian Reais) to be paid pro rata to the equity participation of each Original Shareholder in the capital stock of AZUL Holding, which will grant to the Original Shareholders the right to subscribe for as many preferred shares issued by AZUL Holding as necessary to comply with the indemnification obligation provided for in Section 8 of this Agreement (Subscription Warrants for the Adjustment of Shareholding Original Shareholders). AZUL Holding and Neeleman shall endeavor their best efforts to cause the Class B Preferred Shareholders to approve the issuance of the Subscription Warrants for the Adjustment of Shareholding Original Shareholders, waiving their preemptive rights.
1.15. | The Parties agree to amend item (x) of Section 5.1. of the Agreement, which shall hereafter read as follows: |
(x) all Class B Preferred Shareholders shall have executed the Class B Preferred Shareholders Consents or, in the absence thereof, the Subscription Warrant AGE TRIPs Shareholders and Subscription Warrant AGE Original Shareholders shall have been held and the Subscription Warrants for the Adjustment of Shareholding TRIPs Shareholders and the Subscription Warrants for the Adjustment of Shareholding Original Shareholders shall have been issued; and
1.16. | The Parties agree to amend Section VI of the Agreement, which shall hereafter read as follows: |
SECTION VI
ADJUSTMENTS TO THE INITIAL EXCHANGE RATIO
6.1. Adjustment in the Exchange Ratio Immediately Prior to the IPO. The Parties agree that the premise of the Transaction is the Merger of Shares, with TRIPs Shareholders receiving, for TRIPs Shares, AZUL Holdings New Shares. After the Date of Merger, AZUL Holdings New Shares shall represent 30.7% (thirty point seven percent) of the total shares issued by AZUL Holding, being 1,231,343 (one million, two hundred and thirty-one thousand, three hundred and forty-three) common shares, representing 33% (thirty-three percent) of all common shares issued up to the Merger of Shares, and 553,627 (five hundred and fifty three thousand, six hundred and twenty-seven) Class B preferred shares, representing 28.2% (twenty eight point two per cent) of all Class B preferred shares then issued. Under the terms and conditions of this Agreement, TRIPs Shareholders equity participation in AZUL Holding may be increased, immediately before the capitalization of the primary portion of the Initial Public Offering of AZUL Holdings Shares the Initial Public Offering (IPO), for a maximum limit of 200.571 (two hundred thousand and five hundred and seventy one) Class B preferred shares, so that TRIPs Shareholders may
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
hold up to 754.198 (seven hundred fifty four thousand and one hundred and ninety eight) Class B preferred shares, representing 34.9% (thirty-four point nine per cent) of all Class B preferred shares of AZUL Holding (considering the shareholders structure on the Date of Merger), depending on the pre-money valuation of AZUL Holding at the time of pricing of its IPO (the Pre-Money Valuation), according to Sections 6.1.1, 6.1.2 and 6.1.3. The Pre-Money Valuation of AZUL Holding shall be calculated based on (i) the price per share specified in the announcement of the beginning of the IPO and (ii) the total number of shares (common and preferred) issued by AZUL Holding immediately before the date of Completion of the IPO (taking into account the difference of the economic value between the different classes of shares), binding the Parties and constituting an instrument sufficient to cause the Parties to comply with and perform their obligations under this Section 6.1. For clarity purposes, the economic value of the common shares issued by AZUL Holding is different from the economic value of its preferred shares. Based on the above, and notwithstanding the effective participation of each Party in AZUL Holdings capital stock, the Parties agree that, on the Date of Merger, AZUL Holdings New Shares shall represent 27% (twenty-seven percent) of AZUL Holdings economic value, provided that such participation may be potentially increased up to 33% (thirty-three percent) of AZUL Holdings economic value, depending on the Pre-Money Valuation on the date of the IPO, as described in Exhibit 6.1(A) hereto. Exhibit 6.1(B) contains details on the mechanism of Adjustments to the Initial Exchange Ratio, showing the number of Class B preferred shares of AZUL Holding to be transferred to TRIPs Shareholders, pursuant to Sections 6.1.1, 6.1.2 and 6.1.3, taking into account the possible scenarios of the Pre-Money Valuation on the date of the IPO.
6.1.1 Should the Pre-Money Valuation of AZUL Holding at the time of pricing of the IPO be equivalent in Brazilian Reais, according to the Conversion Rate, to [*****] or more, TRIPs Shareholders shall not be entitled to receive any other additional shares issued by AZUL Holding, subject to eventual adjustments of equity participation arising from the obligations set forth in Section 8.
6.1.2 Should the Pre-Money Valuation of AZUL Holding at the time of pricing of the IPO be equivalent in Brazilian Reais, according to the Conversion Rate, to [*****] or less, TRIPs Shareholders will have the right to exercise the Subscription Warrants Pre-Money Valuation Adjustment, within 4 (four) days after the publication of the Pre-Money Valuation announcement, in order to receive from AZUL Holding as many Class B preferred shares of AZUL Holding as necessary to guarantee to TRIPs Shareholders the ownership of 34.9% (thirty-four point nine percent) of the Class B preferred shares, subject to eventual adjustments of equity participation arising from the obligations set forth in Section 8.
6.1.3 Should the Pre-Money Valuation of AZUL Holding at the time of pricing of the IPO vary, according to the Conversion Rate, between [*****] the number of Class B preferred shares of AZUL Holding that TRIPs Shareholders shall receive from AZUL Holding, as a result of the exercise of the Subscription Warrants Pre-Money Valuation Adjustment, within 4 (four) days after the publication of the Pre-Money Valuation announcement, shall be defined in a way that the total equity interest of TRIPs Shareholders will vary linearly between 28.2% (twenty-eight point two per cent) and 34.9% (thirty-four point nine percent) of all Class B preferred shares of AZUL Holding, subject to eventual adjustments of equity participation arising from the obligations set forth in Section 8. Exhibit 6.1(B) specifies and provides details on the form by which the agreement described in the immediately preceding sentence shall be enforced.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
7
6.2. No IPO. Notwithstanding the provision of Section 6.1 above, should the IPO of AZUL Holding not happen within 24 (twenty-four) months from the conclusion of the Due Diligence Exercises (Deadline), TRIPs Shareholders shall have the right to exercise, within 4 (four) days as of the Deadline, the Subscription Warrant Pre-Money Valuation Adjustment, in order to receive as many Class B preferred shares issued by AZUL Holding as necessary to ensure to TRIPs Shareholders the ownership of 34.9% (thirty-four point nine percent) of all Class B preferred shares of AZUL Holding.
6.3. Dilution Events. Notwithstanding anything to the contrary set forth herein, in case TRIPs Shareholders or the Original Shareholders do not follow, in whole or in part, any capital increase transaction of AZUL Holding between the Date of Merger and the Completion of the IPO or the Deadline, whichever occurs first, the number of Class B preferred shares of AZUL Holding that TRIPs Shareholders shall potentially receive from the Class B Preferred Shareholders, pursuant to Sections 6.1 and 6.2 above, shall be redefined in accordance with the effective variation of the equity participation of TRIPs Shareholders or the Original Shareholders, as the case may be, keeping the adjustment mechanics in the Initial Exchange Ratio set forth in Sections 6.1 and 6.2 hereof, subject to any additional variation in the equity participation of TRIPs Shareholders as a result of the provisions of Section 8 below.
1.17. | The Parties agree to amend Section 8.1.1. of the Agreement, which shall hereafter read as follows: |
8.1.1. Indemnification Methodologies of TRIPs Shareholders up to the AdjustmentIndemnifications Date. The Parties agree that the obligations to indemnify of TRIPs Shareholders, as provided for in Section 8.1 above, shall follow different mechanisms of payment and/or compensation, which will vary depending on the occurrence of the IPO (the Completion of the IPO) or the Deadline, whichever occurs first (the AdjustmentIndemnifications Date).
(a) Indemnifications up to the AdjustmentIndemnifications Date. Between the Date of Execution and the AdjustmentIndemnifications Date, any obligation to indemnify of TRIPs Shareholders, pursuant to Section 8.1, shall be temporarily suspended and may not be required by any AZUL Holdings Indemnifiable Party, except as set forth below:
(i) Subject to the provisions of Section 8.5, up to the Adjustment Indemnifications Date, the Parties shall determine in good faith the total amount of Losses indemnifiable by TRIPs Shareholders, as provided in Section 8.1 and updated by the CDI, which effectively generated a cash outflow on the part of the AZUL Holdings Indemnifiable Parties within the period between the Date of Execution and the Adjustment Indemnifications Date (the Losses With Cash Outflow of AZUL Holding). Conversely, the Parties shall in good faith determine the total amount of losses indemnifiable by AZUL Holding, as provided in Section 8.2 below and updated by the CDI, which effectively generated a cash outflow on the part of TRIPs Shareholders Indemnifiable Parties within the period between the Date of Execution and the AdjustmentIndemnifications Date (the Losses With Cash Outflow of TRIPs Shareholders). The sum of Losses With Cash Outflow of AZUL Holding and Losses With Cash Outflow of TRIPs Shareholders are referred to as the Total Loss of Parties up to the Date of Adjustment Indemnification. In the event that the Total Losses of Parties up to the AdjustmentIndemnifications Date are positive in favor of AZUL Holdings Indemnifiable Parties (that is, the Losses With Cash Outflow of AZUL Holding overcome the Losses With Cash Outflow of TRIPs Shareholders), then the Original Shareholders shall have the right to exercise, within 4 (four) days after the announcement of the Total Loss of Parties up to the Date of Adjustment Indemnification, the Subscription Warrants for the Adjustment of Shareholding Original Shareholders in order to receive, on a prorated basis and proportionally to their stake in the share capital of AZUL Holding, the number of Class B preferred shares as per the formula set forth below:
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CONFIDENTIAL TREATMENT REQUESTED
ARP = (PPIAH PPIAT) / VPAPI
a. ARP: Total number of Class B preferred shares to be issued, within 4 (four) days after the Deadline, by AZUL Holding as a result of the exercise of the Subscription Warrants for the Adjustment of Shareholding Original Shareholders.
b. PPIAH: Total amount of Losses With Cash Outflow of AZUL Holding as of the AdjustmentIndemnifications Date updated by the CDI, subject to Section 8.1.1(b);
c. PPIAT: Total amount of Losses With Cash Outflow of TRIPs Shareholders as of the AdjustmentIndemnifications Date updated by the CDI; and
d. VPAPI: Individual amount of each preferred share as of the definition of the Pre-Money Valuation or, if the Pre-Money Valuation does not occur, the reference amount of the economic value shall be [*****], being understood that the preferred shares to be issued as a result of the exercise of the Subscription Warrants for the Adjustment of Shareholding Original Shareholders shall be considered for the definition of the individual amount of each preferred share.
(b) Alternative Obligation; Cash Payment. Should TRIPs Shareholders have the obligation to indemnify the Original Shareholders, as provided for in Section 8.1.1(a), TRIPs Shareholders may elect to pay in cash to the Original Shareholders the balance between (i) the Losses With Cash Outflow of TRIPs Shareholders; and (ii) the Losses With Cash Outflow of AZUL Holding. TRIPs Shareholders shall notify AZUL Holding and the Original Shareholders, within 1 (one) day after the determination of the Total Losses of Parties up to the AdjustmentIndemnifications indicating whether they intend to pay indemnities in cash. Should TRIPs Shareholders elect to pay indemnities in cash, subject to the provisions of this Section, it shall pay the indemnities within 1 (one) day after the issuance of the notification set forth in the preceding sentence, it being understood that, upon confirmation of payment, the Subscription Warrants for the Adjustment of Shareholding Original Shareholders shall lose its validity and effectiveness. If such payment is not made within the period specified above, the Original Shareholders shall be free to exercise the Subscription Warrants for the Adjustment of Shareholding Original Shareholders.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
9
(c) Indemnifications After the AdjustmentIndemnifications Date. After the Adjustment Indemnifications Date, the obligations to indemnify of TRIPs Shareholders as provided for in Section 8.1, shall be indemnified exclusively in cash, pursuant to Section 8.3 et seq., it being agreed to by and between the Parties, for the avoidance of doubt, that the indemnification procedures set forth in Sections 8.3, 8.4, 8.5, and 8.6 shall apply to Parties only after the AdjustmentIndemnifications Date.
1.18. | The Parties agree to amend Section 8.2.1. of the Agreement, which shall hereafter read as follows: |
8.2.1. Indemnification Methodologies of AZUL Holding up to the AdjustmentIndemnifications Date. In a consistent and symmetrical manner as per Section 8.1.1 above, the obligations to indemnify of AZUL Holding, as set forth in Section 8.2 above, shall follow different mechanisms of payment and/or compensation, which will vary depending on the occurrence of the AdjustmentIndemnifications Date.
(a) Indemnifications up to the AdjustmentIndemnifications Date. Between the Date of Execution and the Adjustment Indemnifications Date, any obligation to indemnify of AZUL Holding, pursuant to Section 8.1, shall be temporarily suspended and may not be required by any of TRIPs Shareholders Indemnifiable Parties, except as set forth below:
(i) Pursuant to Sections 8.2.1(b) and 8.5, up to the AdjustmentIndemnifications Date, the Parties shall determine in good faith the total amount of Losses with Cash Outflow of TRIPs Shareholders. Conversely, the Parties shall in good faith determine the total amount of Losses with Cash Outflow of AZUL Holding. In the event that the Total Losses of Parties up to the AdjustmentIndemnifications Date are positive in favor of TRIPs Shareholders Indemnifiable Parties (that is, the Losses With Cash Outflow of TRIPs Shareholders overcome the Losses With Cash Outflow of AZUL Holding), then TRIPs Shareholders shall have the right to exercise, within 4 (four) days after the announcement of the Total Loss of Parties up to the Date of Adjustment Indemnification, the TRIPs Shareholders Subscription Warrants Indemnifications Adjustment, in order to receive, on a prorated basis and proportionally to their stake in the share capital of AZUL Holding, the number of Class B preferred shares as per the formula set forth below:
ARP = (PPIAT PPIAH) / VPAPI
a. ARP: Total number of Class B preferred shares to be issued, within 4 (four) days after the Deadline, by AZUL Holding as a result of the exercise of TRIPs Shareholders Subscription Warrants Indemnifications Adjustment.
b. PPIAH: Total amount of Losses With Cash Outflow of AZUL Holding as of the AdjustmentIndemnifications Date updated by the CDI;
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CONFIDENTIAL TREATMENT REQUESTED
c. PPIAT: Total amount of Losses With Cash Outflow of TRIPs Shareholders as of the Adjustment Indemnifications Date updated by the CDI, subject to the provisions of Section 8.1.1(b); and
d. VPAPI: Individual amount of each preferred share as of the definition of the Pre-Money Valuation or, if the Pre-Money Valuation does not occur, the reference amount of the economic value shall be [*****], being understood that the preferred shares to be issued as a result of the exercise of the Subscription Warrants for the Adjustment of Shareholding TRIPs Shareholders shall be considered for the definition of the individual amount of each preferred share.
(b) Proportional Losses of TRIPs Shareholders. The Parties agree that a Loss suffered by AZUL Holding and/or its Controlled Entities (except for TRIP) shall result in a Loss suffered by TRIPs Shareholders. In this case, and exclusively if the Loss is paid in cash by AZUL Holding, the indemnity amount payable to TRIPs Shareholders will be equivalent, in the event the Loss is suffered or incurred by AZUL Holding and/or its Controlled Entities (except for TRIP), to the result of the following formula:
I = (PAH * PAT) / (1 PAT)
a. I: Total indemnity amount due to TRIPs Shareholders;
b. PAH: Total loss incurred or suffered by AZUL Holding; and
c. PAT: TRIPs Shareholders Equity Participation based on the economic value of AZUL Holding, to be calculated as per the formula below:
PAT = ((NON) + (NAPNB * 24.1)) / ((TAON) + (TAPN * 24.1))
a. NON: Total number of AZUL Holdings New Common Shares;
b. NAPNB: Total Number of AZUL Holdings New Class B Preferred Shares;
c. TAON: Total number of AZUL Holdings Common Shares; and
d. TAPN: Total number of AZUL Holdings Preferred Shares.
For clarity purposes, the 24.1 factor used in the calculation of the PAT, according to the formula above, reflects the difference of the economic value between the different classes of shares, pursuant to AZUL Holdings Bylaws, in effect on the Date of Execution. Therefore, the Parties undertake, in good faith, to adjust such factor, by approving changes to AZUL Holdings Bylaws that modify the economic value attributed to each class of shares, in order to maintain the economic rationale used in the definition of the PAT.
(c) Alternative Obligation; Cash Payment. Should AZUL Holding have the obligation to indemnify TRIPs Shareholders, as provided for in Section 8.2.1(a), AZUL Holding may elect to pay in cash to TRIPs Shareholders the balance between (i) the Losses With Cash Outflow of AZUL Holding; and (ii) the Losses With Cash Outflow of TRIP. AZUL Holding shall notify TRIP Shareholders, within 1 (one) day after the determination of the Total Losses of Parties up to the AdjustmentIndemnifications indicating whether they intend to pay indemnities in cash. Should AZUL Holding elects to pay indemnities in cash, subject to the provisions of this Section, it shall pay the indemnities within 1 (one) day after the issuance of the notification set forth in the preceding sentence, it being understood that, upon confirmation of payment, the Subscription Warrants for the Adjustment of Shareholding Original Shareholders shall lose its validity and effectiveness. If such payment is not made within the period specified above, the TRIP Shareholders shall be free to exercise the Subscription Warrants for the Adjustment of Shareholding Original Shareholders.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
(d) Indemnifications After the AdjustmentIndemnifications Date. After the AdjustmentIndemnifications Date, the obligations to indemnify of AZUL Holding as provided in Section 8.2, shall be indemnified exclusively in cash, pursuant to Section 8.3 and following, being agreed by and between the Parties, for the avoidance of doubt, that the indemnification procedures set forth in Sections 8.3, 8.4, 8.5, and 8.6 shall apply to Parties only after the AdjustmentIndemnifications Date.
1.19. | The Parties agree to amend items (i) and (ii) of Section 8.3.2. of the Agreement, which shall hereafter read as follows: |
(i) subject to the minimum amount of the Basket (as set forth in Section 8.5 below), should it be verified that the total amount of Losses With Cash Outflow of TRIPs Shareholders is higher than the total amount of Losses With Cash Outflow of AZUL Holdings Shareholders in the fiscal year in question, AZUL Holding shall then make a payment corresponding to the difference between such losses in favor of TRIPs Shareholders, subject to the provision of Section 8.2.1, within [*****] from the end of the fiscal year in question, and
(ii) subject to the minimum amount of the Basket (as set forth in Section 8.5 below), should it be verified that the total amount of Losses With Cash Outflow of TRIPs Shareholders is lower than the total amount of Losses With Cash Outflow of AZUL Holdings Shareholders in the fiscal year in question, TRIPs Shareholders shall then make a payment, severally and in a proportional manner, corresponding to the difference between such losses in favor of AZUL Holdings Indemnified Party or Parties, subject to Section 8.1.1, within [*****] from the end of the fiscal year in question.
1.20. | The Parties agree to amend Section 8.7.3. of the Agreement, which shall hereafter read as follows: |
8.7.3. If the Indemnifying Party declares itself not responsible for the indemnification claimed or disagrees with the amount of Loss presented in the Notice of Direct Claim, the Indemnified Party may refer the matter to the arbitration procedure set forth in Section 10.10 below.
1.21. | The Parties agree to include Section 8.8 of the Agreement, which shall hereafter read as follows: |
8.8. For clarity purposes, the Parties agree that any Loss resulting from acts or omissions of the management of TRIP or AZUL performed after the Date of Merger shall not be deemed an indemnifiable Loss, and, therefore, shall not be indemnified by any of the Parties under this Section VIII, even if such acts or omissions relate to agreements, arrangement or protocols (convênios) (including, without limitation, protocols (covenio) or agreements executed with States or Municipalities relating to tax benefits) existing prior to the Date of Merger.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
12
1.22. The Parties agree to include Section 10.15 of the Agreement, which shall hereafter read as follows:
10.15. Termination of Code Share. Considering that AZUL and TRIP filed with ANAC a request to code share flights among the companies (Code Share), the Parties agree that, if the Transaction is not consummated as a result of ANAC non-approval, the agreement pursuant to which the Code Share was formalized (the Code Share Agreement) shall be automatically terminated without penalty. In this case, all acts seeking to reestablish the financial and economic position of the Parties before the execution of the Code Share Agreement shall be taken by the Parties as if the Code Share Agreement had not been entered, it being agreed that: (i) all revenues that would otherwise be allocated to AZUL and TRIP if the Code Share Agreement had not been entered shall be returned to AZUL or TRIP, as the case may be, within 10 (ten) days as of the termination of the Code Share Agreement, including, without limitation, the revenues relating to fly tickets effectively used or not and those relating to rescheduling and cancelation fees, discounted from the operational expenses and Interline Service Charge (as defined in the Code Share Agreement) incurred by AZUL or TRIP as a result of administrative proceedings associated with the rescheduling or cancelling of flights; (ii) in relation to revenues of flights tickets of performed and non-performed flights, it is agreed that the revenues shall be divided between TRIP and AZUL according to the Code Share Agreement, but it shall also be returned to TRIP or AZUL, as the case may be, within 10 (ten) days as of the termination of the Code Share Agreement, discounted from the operational expenses and Interline Service Charge (as defined in Annex 2 of the Code Share Agreement) incurred by AZUL or TRIP as a result of the sale, rescheduling and cancelation of the flight object of the Code Share Agreement, and (iii) the provisions of this Section 10.15 shall prevail over the provisions of the Code Share Agreement.
1.23. The Parties agree to include Section 10.16 of the Agreement, which shall hereafter read as follows:
10.16. Financial Resources Transfers to TRIP. Considering that, from the date hereof until the issuance of ANACs Approval, AZUL Holding and/or AZUL may transfer the financial resources to TRIP (Resources Onlending to TRIP after ANACs Approval), it is agreed among the Parties and the Intervening Consenting that, to extent that the Transaction is not approved by ANAC, the wholeness of the Resources Onlending to TRIP after ANACs Approval shall be refunded to AZUL Holding or AZUL, after the consummation of the adjustment set forth in Section 10.15, according to which the corresponding net amount is transferred to AZUL Holding or AZUL within ten (10) days as of the date in which the non approval of the Transaction by ANAC is consummated.
13
SECTION II
GENERAL PROVISIONS
2.1. | The provisions of the Agreement shall, save as expressly amended by this Amendment, continue in full force and effect and, as a result of the present Amendment, the Agreement shall, with effect from the date hereof, be read and construed for all purposes as set out in Exhibit I hereto. |
2.2. This Amendment shall be governed by and construed in accordance with the Laws of Brazil.
IN WITNESS THEREOF, the Parties have caused their representatives to sign this Agreement in 8 (eight) counterparts of equal tenor and form, before the 2 (two) undersigned witnesses.
São Paulo, August 15, 2012
(The remainder of this page intentionally left blank)
14
(Signature Page of the First Amendment to the Investment Agreement dated August 15, 2012 among TRIP Participações S.A., TRIP Investimentos S.A., Rio Novo Locações Ltda. and AZUL S.A. and, also, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A. and Neeleman)
TRIP PARTICIPAÇÕES S.A. |
/s/ [illegible] | /s/ [illegible] | |||
Name: | Name: | |||
Title: | Title: |
TRIP INVESTIMENTOS LTDA. |
/s/ [illegible] | /s/ [illegible] | |||
Name: | Name: | |||
Title: | Title: | |||
Nam |
RIO NOVO LOCAÇÕES LTDA. |
/s/ [illegible] | /s/ [illegible] | |||
Name: | Name: | |||
Title: | Title: |
AZUL S.A. |
/s/ David Gary Neeleman |
Name: |
Title: |
AZUL LINHAS AÉREAS BRASILEIRAS S.A. |
/s/ David Gary Neeleman | ||||
Name: | Name: | |||
Title: | Title: |
TRIP LINHAS AÉREAS S.A. |
/s/ [illegible] | /s/ [illegible] | |||
Name: | Name: | |||
Title: | Title: |
15
(Continuation of the Signature Page of the First Amendment to the Investment Agreement dated August 15, 2012 among TRIP Participações S.A., TRIP Investimentos S.A., Rio Novo Locações Ltda. and AZUL S.A. and, also, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A. and Neeleman)
DAVID GARY NEELEMAN |
/s/ David Gary Neeleman |
Witnesses: | ||||||||
Name: | Name: | |||||||
ID: | ID: |
16
EXHIBIT I TO THE INVESTMENT AGREEMENT
INVESTMENT AGREEMENT
This Investment Agreement (the Agreement) is entered into by and among the following parties:
On one side,
(a) | TRIP PARTICIPAÇÕES S.A., a corporation with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 09.229.532/0001-70, herein represented by its undersigned legal representatives (TRIP Participações); |
(b) | TRIP INVESTIMENTOS LTDA., a limited liability company with head office in the City of Campinas, State of São Paulo, at Avenida Cambacicas, 1200, Parque Imperador, Condomínio Flex Buildings, Módulo 2, CEP 13097-104, registered as taxpayer under CNPJ/MF No. 15.300.240/0001-89, herein represented by its undersigned legal representatives (TRIP Investimentos); |
(c) | RIO NOVO LOCAÇÕES LTDA., a limited liability company with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 6.3, Suite 208, CEP 29157-405, registered as taxpayer under CNPJ/MF No. 04.373.710/0001-18, herein represented by its undersigned legal representatives (Rio Novo and, together with TRIP Participações, TRIPs Shareholders or Merged Shareholders); and |
On the other side,
(c) | AZUL S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Alameda Surubiju, Nos. 2010 and 2050, Block A, suite 21, Alphaville Industrial, registered as taxpayer under CNPJ/MF No. 09.305.9994/0001-29, herein represented by its undersigned legal representatives (AZUL Holding and, together with TRIPs Shareholders, the Parties, and each of them, individually, a Party), |
And, in the capacity of intervening and consenting parties (the Intervening and Consenting Parties):
(d) | AZUL LINHAS AÉREAS BRASILEIRAS S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Alameda Surubiju, Nos. 2010 and 2050, Block A, suite 21, Alphaville Industrial, registered as taxpayer under CNPJ/MF No. 09.296.295/0001-60, herein represented by its undersigned legal representatives (AZUL); |
(e) | TRIP LINHAS AÉREAS S.A., a corporation with head office in the City of Campinas, State of São Paulo, at Avenida Cambacicas, 1200, Parque Imperador, CEP 13097-104, registered as taxpayer under CNPJ/MF No. 02.428.624/0001-30, herein represented by its undersigned legal representatives (TRIP); and |
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CONFIDENTIAL TREATMENT REQUESTED
(f) | DAVID GARY NEELEMAN, Brazilian, married, bearer of Identification Card RG No. 53.031.273-6 SSP/SP and registered as taxpayer under CPF/MF No. 744.573.731-68 (Neeleman), herein represented by his undersigned attorneys-in-fact, and being bound to this Agreement exclusively with respect to Sections 2.1, 2.2, 2.3, 3.1, 3.2, 4.4, 4.5, 4.6, 9.1, 9.1.1, and 9.3 hereof. |
PREAMBLE
WHEREAS, on the Date of Execution, the capital stock of AZUL Holding and of TRIP is, respectively, (i) [*****] divided into 4,031,250 (four million, thirty-one thousand, two hundred and fifty) shares, being 2,500,000 (two million, five hundred thousand) class A common shares (AZUL Holdings Common Shares), 125,000 (one hundred twenty-five thousand) class A preferred shares (AZUL Holdings Class A Preferred Shares), and 1,406,250 (one million, four hundred and six thousand, two hundred and twenty-five) class B preferred shares (AZUL Holdings Class B Preferred Shares) (AZUL Holdings Common Shares, AZUL Holdings Class A Preferred Shares, and AZUL Holdings Class B Preferred Shares are collectively referred to as AZUL Holdings Shares); and (ii) [*****] divided into 77,854,166 (seventy-seven million, eight hundred fifty-four thousand, one hundred sixty-six) common shares and 6,312,500 (six million, three hundred and twelve thousand, five hundred) preferred shares (TRIPs Shares);
WHEREAS AZUL Holdings current shareholders (the Original Shareholders) collectively hold, on the Date of Execution, 100% (one hundred percent) of AZUL Holdings Shares, pursuant to the proportion indicated in the table contained in ExhibitA hereof, and Neeleman holds 100% (one hundred percent) of AZUL Holdings Common Shares;
WHEREAS TRIPs Shareholders collectively hold, on the Date of Execution, 100% (one hundred percent) of TRIPs Shares, according to the following proportion: (a) TRIP Participações is the holder of 55,550,000 (fifty-five million, five hundred and fifty thousand) common shares issued by TRIP, (b) TRIP Investimentos holds 15,570,833 (fifteen million, five hundred and seventy thousand, eight hundred and thirty-three) common shares and 6,312,500 (six million, three hundred and twelve thousand, five hundred) preferred shares, all issued by TRIP; and (c) Rio Novo is the holder of 6,733,333 (six million, seven hundred and thirty-three thousand, three hundred thirty-three) common shares issued by TRIP; and
WHEREAS the Shareholders of TRIP and AZUL Holding share a mutual interest in merging all TRIPs Shares into AZUL Holding, and subsequently delivering newly issued shares of AZUL Holding to TRIPs Shareholders, without causing the winding up of TRIP, pursuant to the provisions of article 252 of Law No. 6,404, dated December 15, 1976 (as amended from time to time, the Corporations Law). This transaction aims to submit AZUL and TRIP to the same corporate control, thereby increasing (i) the synergies and operating capacity of the two companies, (ii) the quality standard of air transportation services in the Brazilian civil aviation industry, and (iii) competitiveness before the leading companies of this sector (the Merger of Shares or the Transaction),
NOW, THEREFORE, THE PARTIES, together with the Intervening and Consenting Parties, have resolved to enter into this Agreement, which shall be governed by the following sections and conditions:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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SECTION I
DEFINED TERMS AND INTERPRETATION
1.1. Defined Terms. For the purposes of this Agreement (including the Preamble above and its Exhibits), except as otherwise provided for herein, the capitalized terms used herein shall have the following meanings:
AZUL Holdings Shares has the meaning ascribed to it in the Preamble hereof.
AZUL Holdings Common Shares has the meaning ascribed to it in the Preamble hereof.
AZUL Holdings Class A Preferred Shares has the meaning ascribed to it in the Preamble hereof.
AZUL Holdings Class B Preferred Shares has the meaning ascribed to it in the Preamble hereof.
TRIPs Shares has the meaning ascribed to it in the Preamble hereof.
AZUL Holdings Shareholders Agreement means the Second Amendment to the Shareholders Agreement of AZUL Holding, dated August 28, 2009.
AZUL Holdings Shareholders Agreement After the Merger of Shares has the meaning ascribed to it in Section 3.2(iv).
TRIPs Shareholders has the meaning ascribed to it in the identification of the Parties above.
Original Shareholders has the meaning ascribed to it in the Preamble hereof.
Class B Shareholders has the meaning ascribed to it in Section 4.4.
Affiliate means, (a) in relation to a legal entity, (i) any individual or another legal entity holding, directly or indirectly, the Control of such legal entity, (ii) any legal entity Controlled, directly or indirectly, by such person, or (iii) any legal entity which is directly or indirectly under common Control with such person; and (b) in relation to an individual, any legal entity that, directly or indirectly, is Controlled by the individual in question.
AZUL Holdings AGE has the meaning ascribed to it in Section 3.2(i).
Subscription Warrant AGE TRIPs Shareholders has the meaning ascribed to it in Section 4.4 hereof.
Subscription Warrant AGE Original Shareholders has the meaning ascribed to it in Section 4.4.1 hereof.
TRIPs AGE has the meaning ascribed to it in Section 3.2(ii).
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ANAC means the National Civil Aviation Agency.
Consent of Class B Shareholders has the meaning ascribed to it in Section 4.4.
Preparatory Actions to the Merger of Shares has the meaning ascribed to it in Section 2.1.
Current Officers of TRIP has the meaning ascribed to it in Section 9.4.
Governmental Authority means any and all government, agency, department, secretariat, court or other body of Brazilian or foreign governments, whether at federal, state, or municipal level, directly or indirectly linked to the judicial, legislative or executive branches of government, the arbitration chamber or court, the self-regulatory agencies, the public attorneys office, and other non-governmental authorities.
Authorization means any and all authorizations, consents, approvals, orders, resolutions, licenses, concessions, permits, notices, exemptions, filings, waivers, grants, contracts, agreements, certificates, national and/or international certifications, decrees, judicial decisions, injunctions, registries, notary public legalizations or registries issued by any Governmental Authority.
ANACs Authorization has the meaning ascribed to it in Section 5.1(iii).
Due Diligence Evaluation has the meaning ascribed to it in Section 4.3.
AZUL has the meaning ascribed to it in the identification of the Parties above.
AZUL Holding has the meaning ascribed to it in the identification of the Parties above.
TRIPs Shareholders Subscription Warrants Indemnifications Adjustment has the meaning ascribed to it in Section 4.4.
Subscription Warrant Pre-Money Valuation Adjustment has the meaning ascribed to it in Section 4.4 hereof.
Subscription Warrants for the Adjustment of Shareholding Original Shareholders has the meaning ascribed to it in Section 4.4.1
Subscription Warrants for the Adjustment of Shareholding TRIPs Shareholders has the meaning ascribed to it in Section 4.4.
Brazil means the Federative Republic of Brazil.
CDI means the annual average rate (considering a year with 252 days) relating to transactions with Interbank Deposit Certificates CDI, with a term equal to 1 (one) Business Day (over), calculated and published by CETIP S.A. Balcão Organizado de Ativos e Derivativos, with the daily factor rounded up at the eighth decimal place, or, in case of its extinction, an equivalent rate that replaces it.
Arbitration Center has the meaning ascribed to it in Section 10.10.1.
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Basket has the meaning ascribed to it in Section 8.5.
CNPJ/MF means the National Registry of Legal Entities of the Ministry of Finance.
Civil Procedure Code means Federal Law No. 5,869, dated January 11, 1973, as amended from time to time.
Non-Competition Commitment has the meaning ascribed to it in Section 9.1.
Transition Committee has the meaning ascribed to it in Section 4.2.
Memorandum Account has the meaning ascribed to it in Section 8.4.
Contingencies has the meaning ascribed to it in Section 7.2.11.
Agreement means this Investment Agreement, as amended, modified, renegotiated, supplemented, or replaced, from time to time.
Code Share Agreement has the meaning ascribed to it in Section 10.15.
TRIP Relevant Agreements has the meaning ascribed to it in Section 7.2.8(a).
AZUL Holding Relevant Agreements has the meaning ascribed to it in Section 7.3.7 (a).
Control means, cumulatively, (a) the power to elect the majority of the managers, and (b) the ownership of securities that ensure, on a permanent basis, the majority of the votes at resolutions of the general shareholders meeting or quotaholders meetings of any Person. Any terms deriving from Control, such as Controlled Entity and Controlling Entity, shall have a meaning analogous to Control.
CPF/MF means the National Registry of Individuals of the Ministry of Finance.
Date of Merger has the meaning ascribed to it in Section 3.1.
Date of Execution means the date of signing of this Agreement, that is, May 25, 2012.
Date of Conclusion of Due Diligence Exercises has the meaning ascribed to it in Section 4.3.
Adjustment Indemnifications Date has the meaning ascribed to it in Section 8.1.1.
Deadline has the meaning ascribed to it in Section 6.2
Deadline for the Delivery of Exhibits has the meaning ascribed to it in Section 4.7.
Suspended Representations and Warranties has the meaning ascribed to it in Section 4.7.
Defense has the meaning ascribed to it in Section 8.6.2.
Third Party Claim has the meaning ascribed to it in Section 8.6.
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CONFIDENTIAL TREATMENT REQUESTED
Direct Claim has the meaning ascribed to it in Section 8.7.
Financial Statements means the audited financial statements of TRIP and AZUL Holding dated as of and for the Fiscal Year ended December 31, 2011, and non-audited financial statements, with limited review, of TRIP and of AZUL Holding dated as of and for the fiscal quarter ended March 31, 2012.
Business Day means any day (other than Saturday and Sunday), on which the commercial banks are generally opened for business in the City of São Paulo, State of São Paulo, for ordinary banking transactions.
Replaced Officer has the meaning ascribed to it in Section 9.4.
Dispute means, as the case may be, any demand, action, proceeding, claim, investigation, arbitration, mediation, or other type of action or proceeding, whether of judicial, administrative, or arbitral nature.
Transactions Documents means this Agreement and any other contracts, instruments, documents, and/or corporate acts entered into for the purposes of the implementation of the Transaction.
Due Diligence Exercises has the meaning ascribed to it in Section 4.3.
Call Notices has the meaning ascribed to it in Section 3.1.
Material Adverse Effect means any material adverse change in respect of the businesses, assets, condition (financial or otherwise), forecasts, or operating results of TRIP and AZUL Holding. Notwithstanding the generality of the foregoing, the event or series of events of the same nature that involves or may be expected to involve a Loss (as defined below) or a series of Losses of the same nature, in an amount equal to or higher than [*****] shall necessarily be considered a Material Adverse Effect.
Material Adverse Effect of the Due Diligence Exercises means any fact, circumstance, or event related to TRIP or AZUL Holding, that is materially adverse with respect to the businesses, operations, assets, condition (financial or otherwise), forecasts, or operating results of TRIP or AZUL, identified by the Parties during the Due Diligence Exercises. Notwithstanding the generality of the foregoing, the following events shall be considered a Material Adverse Effect of the Due Diligence Exercises: (i) the event or series of events of the same nature involving or that may be expected to involve a Loss (as defined below), or series of Losses of the same nature, in an amount equal to or higher than [*****]; or (ii) the noncompliance by TRIP, AZUL Holding, or any of their Affiliates, with the parameters, aeronautic and air navigation guidelines, manuals, and technical, operating, and security standards regarding the operation and maintenance of aircraft, engines, spare and other parts.
Excerpt has the meaning ascribed to it in Section 8.4.1.
Encumbrances means, as the case may be, any mortgage, pledge, third party right (including of inheritance and succession nature), demand, security interest, encumbrance, lien, charge, chattel mortgage with or without title retention, attachment, seizure, lease,
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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sublease, licensing, enrollment, usufruct, easement, covenant, condition, adverse possession, voting agreement, equity interest, option, right of first refusal, preemptive right, negotiation or acquisition rights, other constraints or restrictions of any nature, which include Encumbrances constituted as a result of contractual provisions or a Governmental Authority decision;
Officers Indemnification has the meaning ascribed to it in Section 9.4.
Mergers of Shares has the meaning ascribed to it in the Preamble hereof.
Confidential Information means the information exchanged by the Parties in the context of the negotiation of this Agreement and the Transaction contemplated hereby, including any data and/or information, whether written or oral, including discoveries, ideas, secrets, and/or information of business, financial, operational, economic, technical, and legal nature and the exchange of correspondence.
Intervening and Consenting Parties has the meaning ascribed to it in the identification of the Parties above.
TRIPs Evaluation Report has the meaning ascribed to it in Section 2.1(i).
Law means any and all laws, decrees, ordinances, rules, regulations, judgments, administrative, judicial or arbitration decisions, instructions, rulings or orders of any Governmental Authority.
Corporations Law means Federal Law No. 6,404, dated December 15, 1976 (as amended from time to time).
Competing Business has the meaning ascribed to it in Section 9.1.
Neeleman has the meaning ascribed to it in the Preamble hereof.
Notice of Direct Claim has the meaning ascribed to it in Section 8.6.
Notice of Third Party Claim has the meaning ascribed to it in Section 8.4.1.
AZUL Holdings New Shares has the meaning ascribed to it in Section 2.1(iii).
AZUL Holdings New Common Shares has the meaning ascribed to it in Section 2.1(iii).
AZUL Holdings New Class B Preferred Shares has the meaning ascribed to it in Section 2.1(iii).
No Transfer Obligation has the meaning ascribed to it in Section 4.4 hereof.
Transaction means the Merger of Shares, pursuant to the terms and conditions set forth in this Agreement.
Party or Parties has the meaning ascribed to it in the identification of the Parties above.
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Indemnifying Party has the meaning ascribed to it in Section 8.6.1.
AZUL Holdings Indemnifiable Parties has the meaning ascribed to it in Section 8.1.
TRIPs Shareholders Indemnifiable Parties has the meaning ascribed to it in Section 8.2.
Indemnifiable Parties has the meaning ascribed to it in Section 8.2.
Related Parties has the meaning set forth in the CPC Technical Pronouncement No. 5 (R1), approved by the Resolution of the Securities and Exchange Commission No. 642/2010.
Loss means, as the case may be, any and all losses and damages, and/or contingencies (including costs and expenses with actions, demands, arbitrations, or proceedings, amounts paid for evaluations, reports, decisions or settlements, interests and penalties, expenditures, and reasonable fees of attorneys, accountants and other experts and advisors, incurred in the defense against any of these actions, demands, arbitrations, or proceedings, any other costs and expenses directly or indirectly related to a Loss), including as a result of: (a) a Dispute; (b) any and all violation of Law or agreement, including, contractual termination outside the normal course of business; or (c) performance fees and/or any other commissions that have not been disclosed in the Exhibits hereto, except for expenses and commissions relating to the completion of the Transaction;
Losses With Cash Outflow of AZUL Holding has the meaning ascribed to it in Section 8.1.1(a)(i).
Losses With Cash Outflow of TRIPs Shareholders has the meaning ascribed to it in Section 8.1.1(a)(i).
Total Losses of Parties up to the Date of Adjustment Indemnification has the meaning ascribed to it in Section 8.1.1(a)(i).
Lock-up Period has the meaning ascribed to it in Section 9.3.
Person means, as the case may be, an individual or legal entity, including a foundation, de jure company, regardless of its corporate type, association, consortium, co-ownership, or de facto entity, whether or not incorporated.
Benefit Plans has the meaning ascribed to it in Section 7.2.24.
Secured Term of Office has the meaning ascribed to it in Section 9.4.
Pre-Money Valuation has the meaning ascribed to it in Section 6.1.
Guarantee Providers has the meaning ascribed to it in Section 4.8 hereof.
Intellectual Property means any and all patents, trademarks, industrial drawings, software, registered or not, as well as the right to apply for registration of any of the foregoing, copyright and topographies over electronic circuits, trade names, logos, domain names, rights of use relating to any of the foregoing, as well as any rights and forms of protection of similar or analogous nature to any of the foregoing, anywhere in the world, including the right to file judicial lawsuits or administrative proceedings based on the violation of any of the rights mentioned above.
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Protocol of Merger of TRIPs Shares has the meaning ascribed to it in Section 2.1(ii). Completion of the IPO has the meaning ascribed to it in Section 8.1.1.
Regulation has the meaning ascribed to it in Section 10.10.1.
Initial Exchange Ratio has the meaning ascribed to it in Section 2.1(iii).
Resources Onlending to TRIP after ANACs Approval has the meaning ascribed to it in Section 10.16.
Rio Novo has the meaning ascribed to it in the identification of the Parties above.
Cash Outflow on the part of the AZUL Holding Indemnifiable Parties means any disbursement of financial resources performed due to the Losses mentioned in Section 8.1, by the AZUL Holdings Indemnifiable Parties.
Cash Outflow on the part of TRIPs Shareholders Indemnifiable Parties means any disbursement means any disbursement of financial resources performed due to the Losses mentioned in Section 8.2, by TRIPs Shareholders Indemnifiable Parties or by AZUL Holding or by companies that, on the date hereof, are Controlled by AZUL Holding, it being understood and established herein, for the avoidance of doubts, that Losses at the level of TRIP and its Affiliates, on the date hereof, are not covered by this definition.
SBDC means the Brazilian Competition Policy System, which is composed of the following governmental bodies: (i) the Administrative Council for Economic Defense, (ii) the Economic Law Office, and (iii) the Secretariat for Economic Monitoring.
SkyWest has the meaning ascribed to it in Section 2.2.
Conversion Rate means the average purchase and sale rate of Brazilian Reais and United State Dollars, published by the Central Bank of Brazil, through SISBACEN system, PTAX 800 transaction, Option 5, Currency Code 220, on the Business Day immediately prior to payment.
Transfer means any sale, transfer, assignment, or any other disposal of securities, directly or indirectly (including by means of contract, merger, amalgamation, spin-off or otherwise), voluntarily or not (by means of exchange, derivatives transaction or otherwise), with or without payment.
Transfer of SkyWests Shares to TRIP Investimentos has the meaning ascribed to it in Section 2.2.
Arbitration Court has the meaning ascribed to it in Section 10.10.3.
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Taxes means any and all taxes, social contributions, social security contributions, charge, fee, impost, fine, or other tax assessments by any Governmental Authority, including taxes on or relating to income, gross revenues, excise duties, property, sales, gains, use, license, customs duties, unemployment, capital stock, transfer, franchise, payroll, withholding, social security, profits, donations, labor indemnities, value-added, disability, premium, credit, services, leases, employment, stamp, and other taxes, and shall include interests, penalties or accretions attributable thereto or to any failure to comply with any requirement regarding tax returns.
TRIP has the meaning ascribed to it in the identification of the Parties above;
TRIP Participações has the meaning ascribed to it in the identification of the Parties above; and
1.2. Interpretation. For the purposes of this Agreement, unless the context requires otherwise:
(i) | any reference to laws or legal provisions must include all supplemental legislation enacted and sanctioned, from time to time, under the terms of such legal provision, as amended or restated from time to time; |
(ii) | any reference to the singular form must include the plural form and vice- versa; |
(iii) | any reference to the masculine or feminine must include one another; |
(iv) | any references to a company, entity, or corporation must include its board of directors, officers and audit committee, as well as any other body (statutory or not) performing similar duties; |
(v) | the Preamble, the identification of the Parties, and the Exhibits integrate this Agreement and shall be in effect as if they were expressly set forth in the text of this Agreement, it being understood that any reference to this Agreement must include all items of the Preamble, the identification of the Parties, and all Exhibits hereto; |
(vi) | all Exhibits hereto are an integral part of this Agreement and, in case of conflict between the provisions of the Exhibits and of this Agreement, the terms and conditions of this Agreement shall prevail; |
(vii) | references to this Agreement or any other document must be construed as references to this Agreement or to such other document, as amended, modified, renegotiated, supplemented, or replaced, from time to time; |
(viii) | the expression this Section, unless followed by a reference to a specific provision, must be considered as referring to the whole Section (not only the Section, Subsection, paragraph, or other provision) in which the expression appears; |
(ix) | the headings of the Sections, Subsections, Exhibits, parts and paragraphs are for convenience purposes only and shall not affect the construction and interpretation of this Agreement; and |
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(x) | the words include, inclusive, and including must be interpreted as being for illustration or emphasis purposes only, and must not be interpreted, nor applied as a restriction to the generality of any previous words. |
SECTION II
PREPARATORY ACTIONS TO THE MERGER OF SHARES
2.1. Preparatory Actions to the Merger of Shares. Subject to the terms and conditions set forth in this Agreement and provided that all conditions precedent contained in Section 5.1 below have been fully complied with or validly waived by the Parties, TRIPs Shareholders and TRIP, on one side, and AZUL Holding and Neeleman, on the other side, must take all actions within their power to have the Merger of Shares approved by the relevant general shareholders meetings, on the Date of Merger, including and by means of the adoption and/or taking of the following acts and/or actions (the Preparatory Actions to the Merger of Shares):
(i) | TRIPs Shareholders must hire a specialized firm to prepare the evaluation report of the shares issued by TRIP (TRIPs Evaluation Report), as soon as possible, for the purposes of evaluation based on the accounting value of TRIPs Shares to be merged by AZUL Holding, which shall be submitted to approval by the general shareholders meeting of AZUL Holding that shall decide on the capital increase arising from the Merger of Shares; |
(ii) | the management of AZUL Holding and the management of TRIP shall enter into the protocol and justification of the Merger of Shares, according to terms mutually agreed to (the TRIPs Protocol of Merger of Shares); and |
(iii) | subject to the provision of Section VI, the Parties establish that the number of Class A common shares and Class B preferred shares of AZUL Holding to be issued as a result of the Merger of Shares (respectively, AZUL Holdings New Common Shares and AZUL Holdings New Class B Preferred Shares, and collectively, AZUL Holdings New Shares) shall be equivalent to 30.7% (thirty point seven percent) of the total shares issued by AZUL Holding (the Initial Exchange Ratio) after the Merger of Shares. The types and total number of AZUL Holdings New Shares issued (on a prorated basis) in favor of TRIPs Shareholders, on the Date of Merger, are indicated in Exhibit 2.1(iii). |
2.2. Maintenance of Equity Participations. TRIPs Shareholders and Neeleman undertake, between the Date of Execution and the Date of Merger, to refrain from selling, assigning, transferring, waiving, encumbering, creating any lien (directly or indirectly), offering as payment, contributing to capital, exchanging, and/or disposing of, in any manner, any of TRIPs Shares and/or of AZUL Holding Shares, respectively, in favor of third parties, directly or indirectly, except for the transfer of all shares of SkyWest, Inc., a foreign company with head office in the United States of America, in the City of St. George, State of Utah, registered as taxpayer under CNPJ/MF No. 9.944.419/0001-76 (SkyWest) in the capital stock of TRIP, corresponding to 15,570,833 (fifteen million, five hundred and seventy thousand, eight hundred thirty-three) common shares and 6,312,500 (six million, three hundred and twelve thousand, five hundred) preferred shares, all issued by TRIP, according to the share purchase and sale agreement executed on May 23,2012, which effectiveness is contingent upon the approval of such transaction by ANAC (the Transfer of SkyWest Shares to TRIP Investimentos).
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2.3. | Cooperation. The Parties and the Intervening and Consenting Parties shall cooperate with each other and make any additional information available, as may be required, on reasonable basis, by the requesting party, for the perfect completion of the Merger of Shares, as quickly as possible. |
SECTION III
MERGER OF SHARES AND ACTIONS ON THE DATE OF MERGER
3.1. | Merger of Shares. On the 5th (fifth) business day after the date of satisfaction of the conditions precedent contained in Section 5.1, AZUL Holding and Neeleman, on one side, and TRIP and TRIPs Shareholders, on the other side, shall cause the call notices of the AZUL Holdings AGE and of the TRIPs AGE (as defined below) to be published (the Call Notices), in order for the Merger of Shares to occur: (i) in 8 (eight) days after the publication of the Call Notices, if AZUL Holdings AGE and TRIPs AGE are held on first call, or (ii) in 5 (five) days from such date, if they are held on second call, at AZUL Holdings head office, or at another location, as established in writing by the Parties, or further (iii) on the 5th (fifth) Business Day following the date of satisfaction of all conditions precedent set forth in Section 5.1, in case AZUL Holdings AGE and TRIPs AGE may be held with a waiver of the call notice requirement, pursuant to article 124, paragraph 4 of the Corporations Law (the Date of Merger). Notwithstanding the provision of this section, the Parties agree to use their best efforts to cause the Merger of Shares to occur as soon as possible after the Date of Execution. |
3.2. | Actions and Procedures on the Date of Merger. Subject to the terms and conditions of this Agreement, the Parties and Neeleman shall take the following actions on the Date of Merger: |
(i) | the extraordinary shareholders meeting of AZUL Holding shall be held to deliberate on: (a) the confirmation and ratification of the name of the specialized firm to prepare TRIPs Evaluation Report, as referred to in Section 2.1(i) above; and (b) the TRIPs Protocol of Merger of Shares and the consequent capital increase of AZUL Holding by issuance of new shares of AZUL Holding (AZUL Holdings AGE); |
(ii) | the extraordinary shareholders meeting of TRIP shall be held to deliberate on: (a) the confirmation and ratification of the name of the specialized firm to prepare TRIPs Evaluation Report, as referred to in Section 2.1(i) above; and (b) the TRIPs Protocol of Merger of Shares and the Merger of Shares (TRIPs AGE); |
(iii) | on the Date of Merger, after AZUL Holdings AGE and TRIPs AGE, the managements of AZUL Holding and TRIP, as applicable, shall cause all acts, instruments, and/or documents necessary for the consummation of the Merger of Shares, according to the Initial Exchange Ratio established in Section 2.1(iii), to be duly executed; |
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G
(iv) | the execution of an amendment to AZUL Holdings Shareholders Agreement, pursuant to which TRIPs Shareholders shall be granted and receive certain rights granted to the Original Shareholders, pursuant to Exhibit3.2(iv) (AZUL Holdings Shareholders Agreement After the Merger of Shares); and |
(v) | appointment of the new members of the Board of Directors of AZUL Holding, under the terms and conditions of the AZUL Holdings Shareholders Agreement After the Merger of Shares, and the amendment to the Bylaws of AZUL Holding, in order to adjust it to the terms and conditions of the AZUL Holdings Shareholders Agreement After the Merger of Shares. |
3.3. | Concurrent Actions for the Merger of Shares. All acts and obligations indicated in Section 3.2 above shall be considered to happen concurrently. No act and/or obligation shall be considered effectively taken or satisfied until all other acts and/or obligations set forth in Section 3.2 above have been taken or satisfied, except if the Parties agree otherwise, in writing. |
3.4. | Right to Withdraw. TRIP and TRIPs Shareholders shall have the right not to formalize and close the Merger of Shares if the Original Shareholders exercise, in a substantial number, the right to withdraw set forth in Section 252, §1º, of the Corporations Law, it being understood that, under such a scenario, this Agreement might be terminated by either TRIPs Shareholders or TRIP, without any penalty. |
SECTION IV
ACTIONS BETWEEN THE DATE OF EXECUTION AND THE DATE OF MERGER
4.1. | Covenants. Except with respect to the Merger of Shares, from the Date of Execution until the Date of Merger or termination of this Agreement, (i) AZUL Holding, on one side, and (ii) each of TRIPs Shareholders and TRIP, on the other side, undertake to (in relation to themselves and/or their respective Controlled Entities, as applicable), pursuant to Section 4.2 below: (a) conduct their operations in the ordinary course of business without any relevant changes in their activities in relation to past practices; and (b) use their best efforts to preserve, to the extent consistent with past practices, their current relationships with their respective customers, suppliers, and/or other persons with whom they have relevant business relationships. Without prejudice to the provisions of this Section 4.1, from the Date of Execution until the Date of Merger, TRIPs Shareholders, TRIP, and/or AZUL Holding shall not take (nor allow any of their Controlling Entities to take), without the prior written consent of the other Parties, any of the following actions relating to TRIP, AZUL Holding, and/or their respective Controlled Entities (as applicable): |
(i) | any amendment to the articles of association/bylaws that has, or may have, a relevant impact on the business of such a Party and/or its Controlled Entities or that, in any manner, has, or may have, effects on the transactions set forth herein, including the capital increase or decrease, except for amendments implemented in the context of the Merger of Shares or those necessary for the satisfaction of the provisions of Section 2.2; |
(ii) | any corporate reorganization (except for the Merger of Shares), including the merger, spin-off, amalgamation, or merger of shares; |
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CONFIDENTIAL TREATMENT REQUESTED
(iii) | the constitution of mortgage, exchange, encumbrance or, in any other manner, the creation of liens on the assets, outside the normal course of business; |
(iv) | any declaration of dividends, payment of interest on shareholders equity, even if in the ordinary course of business , or any other distributions or payments to shareholders or quotaholders, except for those performed as remuneration for a legitimate director / manager position at TRIP, AZUL Holding and/or any of their respective Subsidiaries; |
(v) | any sale, on any account, of any assets, outside the ordinary course of business; |
(vi) | the transfer, encumbrance or granting of any rights or licenses on Intellectual Property; |
(vii) | the transfer or encumbrance of any concessions, permits, authorizations or rights granted by ANAC or other Governmental Authorities (whether or not connected to the aviation sector); |
(viii) | the decrease in the total number of slots currently allocated by ANAC to AZUL, TRIP, and/or any of their Controlled Entities; |
(ix) | any acquisition, transfer, encumbrance, subscription, and payment of shares or quotas of other companies (except for the Merger of Shares) or any involvement in joint ventures, consortia, companies, or associations of any nature; |
(x) | any contracting, concession, or assumption of loans, financing or advances, in an aggregate amount [*****] per year, and/or granting of any guarantees in favor of third parties (other than to one of their Controlled Entities), as well as any free release in relation to any debts or obligations of third parties (other than to one of their Controlled Entities), except for the contracting of refinancing in the approximate amount of [*****]. |
(xi) | the filing of a petition for bankruptcy or receivership under court supervision or otherwise; |
(xii) | the establishment or undertaking with respect to activities different from those described in the corporate purpose; |
(xiii) | the execution, renewal, and/or amendment of contracts or agreement, written or oral, in an amount [*****], with any Related Parties; |
(xiv) | the execution, renewal, and/or amendment of any leasing, lease, and/or sublease agreements, except for (a) transactions or operations carried out in the normal course of business; (b) the execution of leasing agreements for which a request or order has been issued prior to the Date of Execution; (c) the renewal of the terms set forth in the respective leasing, lease, or sublease agreements; (d) amendments that do not imply a reduction of use or area, change of location, and/or that do not imply an increase higher than 15% (fifteen percent) of the monthly amount of the leasing, lease or sublease agreement; and (e) lease renewal actions; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(xv) | the hiring and/or dismissal of managers and/or employees of TRIP and/or AZUL Holding (except for those involving members of the technical and commercial crew and airport agents of TRIP and/or AZUL), who, in any case, receive a monthly base salary [*****], and/or any change in the current remuneration of managers and other employees, except for possible increases arising from negotiations with unions, or advance of any remuneration to such persons in an amount not [*****]; and |
(xvi) | the entering into any new agreements or transactions with third parties or advances to agreements in effect, which create new obligations outside the normal course of business and which individual or aggregate amount in a series of transactions of the same nature exceeds [*****]. |
4.2. Transition Committee. From the Date of Execution until the Date of Merger, AZUL and TRIP shall form a transition committee, composed of [*****] (the Transition Committee), being the Chairman of the Transition Committee appointed by [*****]. The Transition Committee shall be responsible for implementing all necessary managerial premises and measures (including those requested for the purposes of compliance with the provisions of Sections 9.5 and 9.6 of this Agreement), necessary for AZUL and TRIP to benefit from the synergies arising out of the Transaction, it being agreed that all resolutions shall be passed based on unanimity. During the operation of the Transition Committee, AZUL Holding and TRIP will maintain their operational and managerial independence, and synergies and cost reductions eventually provided by the Transaction shall only occur subject to the unanimous decision of the Transition Committee. The Transition Committee shall be extinct by mutual agreement of the Parties or on the date on which the Airline Approval Certificate of TRIP or AZUL is cancelled.
4.2.1. After the Date of Merger, the Transition Committee shall continue to be comprised of [*****], and shall continue being responsible for implementing all necessary managerial premises and measures (including those requested for the purposes of compliance with the provisions of Sections 9.5 and 9.6 of this Agreement) to integrate the companies and benefit from the synergies and cost reductions provided by the Transaction. After the Date of Merger, the matters related to the Transition Committee shall be discussed and decided by the majority of its members, and in case of a deadlock, the [*****] shall have a casting vote. AZUL Holding, TRIP, and TRIPs Shareholders shall take all actions necessary and sufficient (including, but not limited to, corporate related actions, such as the approval by the general shareholders meeting, and/or the board of directors, as the case may be) for such decisions of the Transition Committee to be implemented as soon as possible.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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4.3. Due Diligence. From the Date of Execution, AZUL Holding and TRIP shall conduct a legal, accounting, financing, technical, and operational due diligence exercise regarding one another and their Affiliates (the Due Diligence Exercises). The Due Diligence Exercises shall be concluded within [*****] from the Date of Execution. Each Party, therefore, undertakes to cooperate with one another to make available, in a timely and organized manner, the requested documentation, as well as to afford broad access to the data and records of operating information relating to the operation, maintenance, security, and management of the fleet of aircraft, engines, spare and other parts (the Date of Completion of the Due Diligence Exercises). Until the Date of Completion of the Due Diligence Exercises, the Parties agree to maintain the virtual data room open, updated and organized with all information requested and necessary for the conclusion of the Due Diligence Exercises. After the Date of Completion of the Due Diligence Exercises, each Party shall, within the following [*****], meet with their respective advisors in order to evaluate and reach the conclusions on the respective final reports of the Due Diligence Exercises, and to define, in a reasonable and justified manner, if a Material Adverse Effect of the Due Diligence Exercises has been identified during the Due Diligence Exercises for the purposes of satisfaction or not of the provisions of Section 5.1(ix) (the Evaluation of the Due Diligence Exercises).
4.4. Consent of Class B Shareholders. Warrant. AZUL Holding and Neeleman shall endeavor their best efforts to cause all of the Original Shareholders holding AZUL Holdings Class B Preferred Shares (Class B Shareholders) attached hereto as Exhibit A, to vote for the Merger of Shares, as well as agree with the commitment to transfer, proportionally to the shareholding of each Class B Shareholders in AZUL Holding, to TRIPs Shareholders, as many AZUL Holdings Class B Preferred Shares as may be necessary to comply with the provisions of Sections 6 and 8 below. AZUL Holding and Neeleman shall work together with the Class B Shareholders in order to determine whether all Class B Preferred Shareholders may consent in writing to the provisions of Sections 6 and 8 of this Agreement, declaring in such document that (i) they will not transfer certain percentage of their AZUL Holdings Class B Preferred Shares up to the AdjustmentIndemnifications Date (in order to comply with the adjustment obligations set forth in Sections 6 and 8 of this Agreement), and such percentage shall be defined in good faith by all Parties after the conclusion of the Due Diligences Exercises (No Transfer Obligation) and (ii) prepare the annotations of the No Transfer Obligation on AZUL Holdings Share Registry Book (the Consent of Class B Shareholders). If all conditions precedent provided for in Section 5.1 have been satisfied and AZUL Holding and Neeleman have not obtained the consents of the Class B Shareholders, Neeleman and AZUL Holding agree to call an AZUL Holdings AGE for the approval of the issuance of two (2) subscription warrants (bônus de subscrição) by AZUL Holding (the Subscription Warrant AGE TRIPs Shareholders), for a subscription price of R$ [*****] Brazilian Reais) each. One of the abovementioned subscription warrants shall be issued by AZUL Holding in favor of TRIPs Shareholders in order to ensure that TRIPs Shareholders receive from AZUL Holding, subject to Section 6, as many Class B preferred shares as necessary to comply with the obligations of adjustment of shareholding provided for in Section 6 of this Agreement, related to determination of the Pre-Money Valuation of AZUL Holding (the Subscription Warrants Pre-Money Valuation Adjustment). The second of the abovementioned subscription warrants shall be issued by AZUL Holding in favor of TRIPs Shareholders in order to ensure that TRIPs Shareholders receive from AZUL Holding, subject to Section 8, as many preferred shares as necessary to comply with the indemnification obligation provided for in Section 8 of this Agreement (the TRIPs Shareholders Subscription Warrants Indemnifications Adjustment, jointly with the Subscription Warrants Pre-Money Valuation Adjustment, the Subscription Warrants for the Adjustment of Shareholding TRIPs Shareholders). AZUL Holding and Neeleman shall endeavor their best efforts to cause the Class B Shareholders to approve the issuance of the Subscription Warrants for the Adjustment of Shareholding Trips Shareholders, waiving their preemptive rights. From the issuance of the Subscription Warrants for the Adjustment of Shareholding Trips Shareholders, all obligations under Sections 6 and 8 of this Agreement will no longer be invoked against the Class B Shareholders, and TRIPs Shareholders shall use the Subscription Warrants for the Adjustment of Shareholding TRIPs Shareholders to consummate the transactions described in Sections 6 and 8 hereof.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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4.4.1 Mutually, AZUL Holding and Neeleman agree to call an AZUL Holdings AGE (Subscription Warrant AGE Original Shareholders), for the approval of the issuance of a subscription warrant by AZUL Holding in favor of each of the Original Shareholders, for a subscription price of R$ [*****] Brazilian Reais) to be paid pro rata to the equity participation of each Original Shareholder in the capital stock of AZUL Holding, which will grant to the Original Shareholders the right to subscribe for as many preferred shares issued by AZUL Holding as necessary to comply with the indemnification obligation provided for in Section 8 of this Agreement (Subscription Warrants for the Adjustment of Shareholding Original Shareholders). AZUL Holding and Neeleman shall endeavor their best efforts to cause the Class B Preferred Shareholders to approve the issuance of the Subscription Warrants for the Adjustment of Shareholding Original Shareholders, waiving their preemptive rights.
4.5. Execution of the Shareholders Agreement After the IPO. Upon Completion of the IPO, Neeleman, on one side, and TRIPs Shareholders, on the other side, with the intervention of AZUL Holding, hereby agree to execute a shareholders agreement, as set forth in Exhibit 4.5.
4.6. Amendment to AZUL Holdings Bylaws. Immediately before the Completion of the IPO, Neeleman undertakes to cause AZUL Holdings Bylaws to be amended in order to record as authority of the Board of Directors of AZUL Holding the matters listed in Section 6.3 of AZUL Holdings Shareholders Agreement After the Merger of Shares, provided that, under the Corporations Law, such matters are not the exclusive authority of AZUL Holdings shareholders meeting. Exhibit 4.6 sets forth the matters which shall be approved by the Board of Directors for the purposes of Section 4.6.
4.7. Delivery of Exhibits; Representations and Warranties. The Parties hereby agree that, on the Date of Execution, the Parties are unable to provide certain Representations and Warranties set forth in Section 7, pursuant exclusively to the need to produce the Exhibits in reference to each of the following Representations and Warranties: 7.2.3(b), 7.2.7, 7.2.8, 7.2.9(b), 7.2.10, 7.2.12, 7.2.13, 7.2.14, 7.2.16(B)7.2.17, 7.2.20, 7.2.24, 7.3.3(b), 7.3.7, 7.3.8(b), 7.3.9, 7.3.11, 7.3.12, 7.3.13, 7.3.15(B), 7.3.16, 7.3.19, and 7.3.23 (the Suspended Representations and Warranties). Notwithstanding the foregoing, on the 15th (fifteenth) Business Day as of the Date of Execution (the Deadline for the Delivery of Exhibits), TRIP and TRIPs Shareholders, on one side, and AZUL Holding, on the other side, shall provide each other the Suspended Representations and Warranties, on which the Parties will be committed to its terms and to the Exhibits delivered. If either Party fails to deliver the Exhibits in reference to the Suspended Representations and Warranties within the term provided for herein, it is hereby agreed, for all contractual purposes, that such Party will have delivered, in the Deadline for the Delivery of Exhibits, all Suspended Representations and Warranties.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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4.8. Guarantees by TRIP Participações and its Affiliates to TRIP. AZUL Holding shall endeavor its best efforts to replace TRIP Participações and its Affiliates in the capacity of guarantee providers in favor of TRIP and its Controlled Entities (the Guarantee Providers). AZUL Holding agrees to, within [*****] from the relevant request in this respect, reimburse TRIP Participações and its Affiliates for any payments made by the Guarantee Providers under the guarantee agreements granted by the Guarantee Providers in favor of TRIP, in the normal course of business. AZUL Holding shall endeavor its best efforts to replace Mr. José Mário Caprioli dos Santos from the capacity of depositary of the aircraft financing agreements. [*****].
SECTION V
CONDITIONS PRECEDENT TO THE MERGER OF SHARES
5.1. Conditions Precedent to the Merger of Shares. The Parties obligation to comply with their obligations in the Merger of Shares is subject to the satisfaction of the following conditions precedent before the Date of Merger (except for those which shall be satisfied on the Date of Merger), which may be waived, in writing, by each of the Parties, at its sole discretion (it being understood that no waiver shall hinder the indemnity right set forth in this Agreement):
(i) | TRIPs Shareholders and TRIP shall have obtained any and all Authorizations in any manner necessary or related to the consummation of the Merger of Shares; |
(ii) | AZUL Holding shall have obtained any and all Authorizations in any manner necessary or related to the consummation of the Merger of Shares; |
(iii) | the approval of ANAC for the carrying out of the Merger of Shares shall have been obtained, pursuant to the terms and conditions set forth in this Agreement (the ANACs Authorization); |
(iv) | the Transfer of SkyWest Shares to TRIP Investimentos shall have occurred; |
(v) | the nonexistence of any order issued by any Governmental Authority or any Law, prohibiting, suspending, altering or limiting, in any manner, the Merger of Shares; |
(vi) | no violation of any of the obligations or relevant representation and warranties of any of the Parties set forth in this Agreement or in any of the Transaction Documents shall have occurred; |
(vii) | no judicial, arbitration, or administrative proceeding aiming to prohibit, restrict or postpone the Merger of Shares, or to challenge the validity or legitimacy of the Merger of Shares shall exist or be in course; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(viii) | the following certificates of TRIP shall have been issued and be valid on the Date of Merger, for the specific purpose of registering the Merger of Shares: (i) Good Standing Certificate in relation to the Unemployment Guarantee Fund, issued by Caixa Econômica Federal; (ii) Clearance Certificate of Debts relating to Social Contributions and to Third Party Contributions; and (iii) Joint Certificate of Debts relating to Federal Taxes and Overdue Federal Liabilities; |
(ix) | no Material Adverse Effect of the Due Diligence Exercises shall have been identified by any of the Parties during the Due Diligence Exercises, as provided for in Section 4.3; |
(x) | all Class B Preferred Shareholders shall have executed the Class B Preferred Shareholders Consents or, in the absence thereof, the Subscription Warrant AGE TRIPs Shareholders and Subscription Warrant AGE Original Shareholders shall have been held and the Subscription Warrants for the Adjustment of Shareholding TRIPs Shareholders and the Subscription Warrants for the Adjustment of Shareholding Original Shareholders shall have been issued; and |
(xi) | the Suspended Representations and Warranties, once declared on the Deadline for the Delivery of Exhibits, pursuant to Section 4.7, do not represent, at AZUL Holding or TRIPs Shareholders sole discretion, as the case may be, a Material Adverse Effect of the Due Diligence Exercises. |
5.2. Penalty; Non-Approval of Merger of Shares. Once the conditions precedent set forth in Section 5.1 above have been complied with, the Parties undertake to take all necessary actions to cause the Merger of Shares to occur on the Date of Merger. Should TRIPs Shareholders not approve the Merger of Shares at TRIPs AGE, TRIP shall pay to AZUL Holding, within [*****] from such event, a noncompensatory penalty in the amount of [*****]. Should the Original Shareholders not approve the Merger of Shares at AZUL Holdings AGE, AZUL Holding shall pay to TRIP, within [*****] from such event, a noncompensatory penalty of [*****] Should both TRIPs Shareholders and AZUL Holdings Shareholders not approve the Merger of Shares, no penalty shall be due from one Party to the other.
SECTION VI
ADJUSTMENTS TO THE INITIAL EXCHANGE RATIO
6.1. Adjustment in the Exchange Ratio Immediately Prior to the IPO. The Parties agree that the premise of the Transaction is the Merger of Shares, with TRIPs Shareholders receiving, for TRIPs Shares, AZUL Holdings New Shares. After the Date of Merger, AZUL Holdings New Shares shall represent 30.7% (thirty point seven percent) of the total shares issued by AZUL Holding, being 1,231,343 (one million, two hundred and thirty-one thousand, three hundred and forty-three) common shares, representing 33% (thirty-three percent) of all common shares issued up to the Merger of Shares, and 553,627 (five hundred and fifty three thousand, six hundred and twenty-seven) Class B preferred shares, representing 28.2% (twenty eight point two per cent) of all Class B preferred shares then issued. Under the terms and conditions of this Agreement, TRIPs Shareholders equity participation in AZUL Holding may be increased, immediately before the capitalization of the primary portion of the Initial Public Offering of AZUL Holdings Shares the Initial
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
Public Offering (IPO), for a maximum limit of 200.571 (two hundred thousand and five hundred and seventy one) Class B preferred shares, so that TRIPs Shareholders may hold up to 754.198 (seven hundred fifty four thousand and one hundred and ninety eight) Class B preferred shares, representing 34.9% (thirty-four point nine per cent) of all Class B preferred shares of AZUL Holding (considering the shareholders structure on the Date of Merger), depending on the pre-money valuation of AZUL Holding at the time of pricing of its IPO (the Pre-Money Valuation), according to Sections 6.1.1, 6.1.2 and 6.1.3. The Pre-Money Valuation of AZUL Holding shall be calculated based on (i) the price per share specified in the announcement of the beginning of the IPO and (ii) the total number of shares (common and preferred) issued by AZUL Holding immediately before the date of Completion of the IPO (taking into account the difference of the economic value between the different classes of shares), binding the Parties and constituting an instrument sufficient to cause the Parties to comply with and perform their obligations under this Section 6.1. For clarity purposes, the economic value of the common shares issued by AZUL Holding is different from the economic value of its preferred shares. Based on the above, and notwithstanding the effective participation of each Party in AZUL Holdings capital stock, the Parties agree that, on the Date of Merger, AZUL Holdings New Shares shall represent 27% (twenty-seven percent) of AZUL Holdings economic value, provided that such participation may be potentially increased up to 33% (thirty-three percent) of AZUL Holdings economic value, depending on the Pre-Money Valuation on the date of the IPO, as described in Exhibit 6.1(A) hereto. Exhibit 6.1(B) contains details on the mechanism of Adjustments to the Initial Exchange Ratio, showing the number of Class B preferred shares of AZUL Holding to be transferred to TRIPs Shareholders, pursuant to Sections 6.1.1, 6.1.2 and 6.1.3, taking into account the possible scenarios of the Pre-Money Valuation on the date of the IPO.
6.1.1 Should the Pre-Money Valuation of AZUL Holding at the time of pricing of the IPO be equivalent in Brazilian Reais, according to the Conversion Rate, to US$ [*****] United States Dollars) [*****] or more, TRIPs Shareholders shall not be entitled to receive any other additional shares issued by AZUL Holding, subject to eventual adjustments of equity participation arising from the obligations set forth in Section 8.
6.1.2 Should the Pre-Money Valuation of AZUL Holding at the time of pricing of the IPO be equivalent in Brazilian Reais, according to the Conversion Rate, to US$ [*****] United States Dollars) [*****] or less, TRIPs Shareholders will have the right to exercise the Subscription Warrants Pre-Money Valuation Adjustment, within 4 (four) days after the publication of the Pre-Money Valuation announcement, in order to receive from AZUL Holding as many Class B preferred shares of AZUL Holding as necessary to guarantee to TRIPs Shareholders the ownership of 34.9% (thirty-four point nine percent) of the Class B preferred shares, subject to eventual adjustments of equity participation arising from the obligations set forth in Section 8.
6.1.3 Should the Pre-Money Valuation of AZUL Holding at the time of pricing of the IPO vary, according to the Conversion Rate, between US$ [*****] United States Dollars) [*****] and US$ [*****] United States Dollars) [*****], the number of Class B preferred shares of AZUL Holding that TRIPs Shareholders shall receive from AZUL Holding, as a result of the exercise of the Subscription Warrants Pre-Money Valuation Adjustment, within 4 (four) days after the publication of the Pre-Money Valuation announcement, shall be defined in a way that the total equity interest of TRIPs Shareholders will vary linearly between 28.2% (twenty-eight point two per cent) and 34.9% (thirty-four point nine percent) of all Class B preferred shares of AZUL Holding, subject to eventual adjustments of equity participation arising from the obligations set forth in Section 8. Exhibit6.1(B) specifies and provides details on the form by which the agreement described in the immediately preceding sentence shall be enforced.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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6.2. No IPO. Notwithstanding the provision of Section 6.1 above, should the IPO of AZUL Holding not happen within 24 (twenty-four) months from the conclusion of the Due Diligence Exercises (Deadline), TRIPs Shareholders shall have the right to exercise, within 4 (four) days as of the Deadline, the Subscription Warrant Pre-Money Valuation Adjustment, in order to receive as many Class B preferred shares issued by AZUL Holding as necessary to ensure to TRIPs Shareholders the ownership of 34.9% (thirty-four point nine percent) of all Class B preferred shares of AZUL Holding.
6.3. Dilution Events. Notwithstanding anything to the contrary set forth herein, in case TRIPs Shareholders or the Original Shareholders do not follow, in whole or in part, any capital increase transaction of AZUL Holding between the Date of Merger and the Completion of the IPO or the Deadline, whichever occurs first, the number of Class B preferred shares of AZUL Holding that TRIPs Shareholders shall potentially receive from the Class B Preferred Shareholders, pursuant to Sections 6.1 and 6.2 above, shall be redefined in accordance with the effective variation of the equity participation of TRIPs Shareholders or the Original Shareholders, as the case may be, keeping the adjustment mechanics in the Initial Exchange Ratio set forth in Sections 6.1 and 6.2 hereof, subject to any additional variation in the equity participation of TRIPs Shareholders as a result of the provisions of Section 8 below.
SECTION VII
REPRESENTATIONS AND WARRANTIES
7.1. Representations and Warranties of TRIPs Shareholders. Subject to the provisions of Section 4.7, as of the Date of Execution of this Agreement and as of the Merger Date, TRIPs Shareholders represent and warrant the following to AZUL Holding, as regard themselves, it being understood that the truthfulness, updating, accuracy and completeness of such representations and warranties are essential conditions to AZUL Holdings entering into this Agreement:
7.1.1. Organization. Each Shareholder of TRIP is a legal entity duly organized and validly existing in accordance with the Laws of Brazil.
7.1.2. Authorization; Valid Agreement. TRIPs Shareholders have full power and authority to enter into this Agreement and perform their respective obligations. This Agreement has been validly entered into by TRIPs Shareholders and no other action or procedure by TRIPs Shareholders is necessary to authorize the execution or performance of this Agreement. This Agreement, the other Transaction Documents and the Exhibits to this Agreement constitute valid and binding obligations of TRIPs Shareholders, enforceable against them in accordance with their terms and conditions.
7.1.3. No Conflict or Violation. Neither the execution and performance of this Agreement by TRIPs Shareholders nor the consummation of the actions provided for in this Agreement and in the Transaction Documents shall (a) require any prior filing with any Governmental Authority or Authorization, to the exception of the ANAC Authorization, (b) require any prior consent from any third parties which has not been already obtained as of the Date of Execution, to the exception of those expressly set forth in Exhibit 7.1.3 to this Agreement, or (c) result in a violation or default of any agreement, Law or organizational documents of TRIPs Shareholders.
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7.1.4. Pending Actions. There is no pending or, to the best knowledge of any of TRIPs Shareholders, threatened Dispute against TRIPs Shareholders before any Governmental Authority which, if adversely decided, may affect the ability of TRIPs Shareholders to perform their obligations arising from this Agreement, from the other Transaction Documents or from the Exhibits to this Agreement.
7.1.5. Full Disclosure. The representations made by TRIPs Shareholders and by TRIP in this Agreement do not contain any untruthfulness or inaccuracy in regard to any relevant act or fact and do not omit the existence of any relevant act or fact whose knowledge would be required to prevent the representations made in this Agreement from being misleading, incorrect or incomplete.
7.2. Representations of TRIPs Shareholders and of TRIP in Regard to TRIP and/or its Controlled Companies. As of the Date of Execution and as of the Date of Merger, TRIPs Shareholders and TRIP represent and warrant the following to AZUL Holding, in regard to TRIP and/or its Controlled Companies, on a joint and several basis, it being understood that the truthfulness, updating, accuracy and completeness of such representations and warranties are essential conditions to AZUL Holdings entering into this Agreement:
7.2.1. Organization. TRIP is a corporation duly organized and validly existing in accordance with the Laws of Brazil.
7.2.2. Authorization; Valid Agreement. TRIP has full power and authority to enter into this Agreement and perform its respective obligations. This Agreement has been validly entered into by TRIP and no other action or procedure by TRIP is necessary to authorize the execution or performance of this Agreement. This Agreement, the other Transaction Documents and the Exhibits to this Agreement are valid and binding obligations of TRIP, enforceable against it in accordance with their terms and conditions.
7.2.3. Consents and Approvals; No Violation. Neither the execution and performance of this Agreement by TRIP nor the consummation of the actions provided for in this Agreement and in the Transaction Documents shall (a) require any prior filing with any Governmental Authority or Authorization, to the exception of the ANACs Authorization, (b) require any prior consent from any third parties which has not been already obtained as of the Date of Execution, to the exception of those expressly set forth in Exhibit 7.2.3 to this Agreement, or (c) result in a violation or default of any agreement, Law or organizational documents of TRIP.
7.2.4. Capital Stock. As of the date hereof, TRIPs capital stock is [*****], divided into 77,854,166 (seventy-seven million, eight hundred fifty-four thousand, one hundred sixty-six) common shares and 6,312,500 (six million, three hundred and twelve thousand, five hundred) preferred shares.
7.2.5. Ownership of TRIPs Shares. (a) TRIPs Shareholders hold legal title, ownership and possession of all TRIPs Shares, which are free and clear of any and all Liens and/or any other defects; (b) except for Rio Novos put option against TRIP Participações, all TRIPs Shares have been duly authorized and legally issued and are fully paid up and there are no other subscription rights or call options granted or other rights to purchase or subscribe for any shares or any other securities issued by TRIP which, if exercised, would confer on their respective holders shares issued by TRIP or that could be converted into or exchanged for shares issued or to be issued in the future by TRIP; and (c) TRIPs Shareholders have not entered into any agreement (except for this Agreement and the other Transaction Documents) or undertaken any commitment with any third party to dispose or have the right to dispose of any shares issued by TRIP. Except by the companies incorporated for the purposes of the acquisition of aircraft, TRIP does not hold any interest in any legal entity of any type whatsoever, including any foundation, incorporated company, regardless of its type of organization, association, consortium, co-ownership or de-facto corporation, either with or without legal personality.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7.2.6. Shareholders Agreement. Except for the shareholders agreements entered into with SkyWest, there are no shareholders agreements, voting agreements, call options or other agreements with respect to governance, the sharing of rights relating to TRIPs Shares and/or to the creation of any rights on TRIPs Shares.
7.2.7. Books and Records. Except for the annotations on TRIPs Share Registry Book and on Share Transfer Book with respect to Transfer of SkyWests Shares to TRIP Participações, the copy of TRIPs corporate books delivered by TRIPs Shareholders to AZUL Holding on the Date of Execution, as well as TRIPs corporate records and practices which are required by Law to be kept, are complete and correct and neither contain nor reflect any material inaccuracy or discrepancy. All requirements, formalities and deadlines required under any Law in regard to the call, opening, holding, discussion and approval of the minutes and records (including, when applicable, filing thereof with the respective state registries of commerce) of meetings of shareholders, directors and officers, as applicable, financial statements and any other corporate actions of (sic) have been complied with and performed. The copy of TRIPs books delivered by TRIPs Shareholders to AZUL Holding on the Date of Execution represents TRIPs official corporate books as of such date and shall prevail over any other version or book that has existed or may exist.
7.2.8. Relevant Agreements.
a. Exhibit 7.2.8 contains a complete list of the following agreements in force to which TRIP and/or its Controlled Companies are parties (together, the TRIP Relevant Agreements):
(i) Any agreement or set of agreements of the same nature (including those entered into with clients, vendors, brokers, consultants, service providers, agents or distributors) which, individually, involve the payment or receipt by TRIP and/or by its Controlled Companies of any amounts in excess of R$1,000,000.00 (one million Brazilian Reais) per annum;
(ii) Any agreement containing any covenant or commitment which restrains TRIPs and/or its Controlled Companies freedom to compete in any market segment or business activity or with any Person in any geographical area, or which, by its own terms, restrains TRIPs and/or its Controlled Companies freedom to operate in any market segment, or which requires TRIP and/or its Controlled Companies to distribute or use any technology, product or service on an exclusive basis;
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(iii) Any agreement providing for the concession to third parties of the right to operate, in whole or in part, the businesses of TRIP and/or its Controlled Companies or establishing the assignment of any portion of the revenues of TRIP and/or its Controlled Companies;
(iv) Any agreement entered into with any manager, officer, collaborator or employee of TRIP and/or its Controlled Companies;
(v) Any leasing, lease, sublease or free lease agreement entered into with any Person to which TRIP and/or its Controlled Companies is bound as a principal, lessor, sublessor, free lessor, lessee, sublessee, free lessee or guarantor;
(vi) Any financial agreements, including any facility, loan, credit, vendor, investment or derivative agreements, which jointly or individually result in an obligation for TRIP and/or its Controlled Companies at an amount in excess of R$1,000,000.00 (one million Brazilian Reais) per annum;
(vii) Any agreement for the creation of any Lien on any property and/or asset of TRIP and/or of its Controlled Companies;
(viii) Any agreement for the purchase, sale or transfer, on any account, of any property and/or asset that is or may be included in TRIPs and/or its Controlled Companies assets;
(ix) Any agreement containing any provision in regard to a right of first refusal on the acquisition of any property or asset owned by a third party or by TRIP and/or its Controlled Companies;
(x) Any joint-venture, consortium or other agreement providing for the creation of a company or any other type of business organization, as well as all joint-venture or other similar agreements involving a sharing of profits or Losses with any other Person;
(xi) Any agreement providing for the payment of any indemnity at an amount in excess of R$100,000.00 (one hundred thousand Brazilian Reais) to be borne by TRIP and/or by its Controlled Companies;
(xii) Any agreement which contains a provision in regard to a change in the control of TRIP and/or of its Controlled Companies, or provides for a request of prior consent from a third party for the consummation of the Transaction set forth this Agreement, or could result in its early termination;
(xiii) Any agreement whose subject matter is the acquisition or disposal of any business (whether through sale, corporate restructuring or otherwise) involving TRIP and/or its Controlled Companies;
(xiv) Any agreement entered into by TRIP and/or by its Controlled Companies with any Governmental Authority, trade union or trade association;
(xv) Any agreement establishing the provision of any guarantee to third parties by TRIP and/or by its Controlled Companies;
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(xvi) Any agreement with Related Parties; and
(xvii) Any relevant license, sublicense and/or authorization agreements, among others, involving the use by TRIP and/or by its Controlled Companies of the Intellectual Property currently used in the conduct of their businesses.
b. Any other agreements that may be relevant to the conduct of TRIPs and/or its Controlled Companies businesses as such businesses are conducted as of the Date of Execution. Each such Relevant Agreement has been entered into (a) in the ordinary course of business, reflecting market conditions for similar transactions, and (b) constitutes a legal, valid and binding obligation of TRIP and/or of its Controlled Companies. TRIP and/or its Controlled Companies did not (a) violate or incur in any default of any Relevant Agreement or (b) waive any right set forth in any Relevant Agreement. The execution of the Transaction Documents do not and will not violate any provision set forth in the Relevant Agreements and do not entitle any counterparty to such Relevant Agreements to acceleration of maturity and/or unilateral termination. TRIPs Shareholders, TRIP and/or its Controlled Companies did not receive any notice of breach, total or partial termination, request of payment of a fine, early termination or indemnification claim in regard to any Relevant Agreement, and there is no renegotiation in progress in regard to any Relevant Agreement.
7.2.9. Litigation.
a. There are no pending Disputes or, to the best knowledge of any of TRIPs Shareholders, of TRIP and/or of its Controlled Companies, threatened Disputes of civil or regulatory nature against TRIP and/or any of its Controlled Companies before any Governmental Authority which (a) seek to challenge, prevent, modify, limit and/or significantly delay the Transaction set forth in this Agreement, (b) challenge or object to the validity of this Agreement or of any action performed or to be performed by TRIPs Shareholders or by TRIP under this Agreement, and/or (c) are class actions, including citizen suits and public-interest civil actions, or shareholder derivative suits.
b. Except as set forth in Exhibit 7.2.9(b), there are no Disputes against TRIP and/or its Affiliates which affect their businesses, operations, financial condition or assets in any court, tribunal or administrative body and which involve claims in excess of R$100,000.00 (one hundred thousand Brazilian Reais) or may cause a Material Adverse Effect.
c. TRIP did not violate any judgment, order, writ, preliminary injunction or ruling of any court, tribunal or administrative body.
7.2.10. Labor Issues. TRIP and/or its Controlled Companies are in compliance with all applicable labor Laws. There is no employment contract with any current or former employee which contains provisions establishing a period of notice or compensatory payments at amounts in excess of those established in the applicable labor Laws. All the employees of TRIP and/or of its Controlled Companies are duly registered in the relevant books and records. TRIP and/or its Controlled Companies are in compliance with all the covenants set forth in their respective collective labor or similar agreements with any trade union or organization applicable to their employees, and there is no new such agreement being negotiated by TRIP and/or its Controlled Companies. There is no strike or work stoppage involving TRIP and/or its Controlled Companies. All labor Disputes involving TRIP and/or its Controlled Companies are listed in Exhibit 7.2.10. No employee of TRIP and/or of its Controlled Companies is entitled to any extraordinary non-habitual payment due by TRIP and/or its Controlled Companies. No employee of TRIP and/or of its Controlled Companies is, in any material respect, in breach of any employment contract, confidentiality agreement or non-competition covenant. TRIP and/or its Controlled Companies are in compliance with all their contractual and statutory obligations in regard to their service providers.
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7.2.11. Financial Statements; No Hidden Liabilities; Books and Records. (a) Exhibit 7.2.11 provides a true, correct and complete copy of each of the Financial Statements. TRIPs Financial Statements have been extracted from TRIPs books and records and correctly and fully reflect TRIPs financial position, operating results and cash flows for the respective dates and periods, in accordance with Brazilian best practices and generally accepted accounting, tax, labor and social-security principles applied consistently over such periods; (b) TRIP has no obligation or liability (either accrued, contingent, unsettled, due or not yet due) (the Contingencies) which has not been duly accounted for and, as the case may be, reflected or accrued in TRIPs balance sheet for the fiscal year ended December 31, 2011, included in the Financial Statements, to the exception of Contingencies appropriately reflected or accrued in such balance sheet. TRIP does not have any off-balance sheet loans or transactions; and (c) TRIPs accounting books and other financial records (i) reflect all revenue and expense items and all assets and liabilities that must be reflected therein, in accordance with Brazilian best practices and generally accepted accounting, tax, labor and social-security principles applied consistently with TRIPs past practices, (ii) are complete and correct and do not contain or reflect any inaccuracy or discrepancy and (iii) have been kept in compliance with good business and accounting practices and with the Law. The assets contained in the Financial Statements reflect their respective liquidation values, are in good state of repair, when applicable, and are freely marketable.
7.2.12. Tax and Social-Security Issues. All tax and social-security obligations of TRIP and/or of its Controlled Companies have been fully performed and paid pursuant to the Law (except for such obligations that are being judicially and/or administratively discussed in good faith). Except as set forth in Exhibit 7.2.12, there is no pending or, to the best knowledge of any of TRIPs Shareholders and of TRIP, threatened Dispute for calculation or collection of any Taxes against TRIP and/or its Controlled Companies. TRIP and/or its Controlled Companies, as the case may be, have timely filed all Tax returns to the relevant Governmental Authorities in accordance with the Law. TRIP and/or its Controlled Companies have not taken and are not parties to any tax incentive program, installment program or program for payment of overdue Taxes in installments, except as listed Exhibit 7.2.12. All provisions for material risks involving the companys Taxes applicable to previous periods have been duly accrued in the Financial Statements in accordance with the Law and with the applicable Brazilian generally accepted accounting principles.
7.2.13. Assets. TRIP and/or its Controlled Companies hold legal title and possession of all assets, goods and real and personal properties listed in Exhibit 7.2.13(i), which are free and clear of any and all Liens. The assets, either owned or from third parties, used by TRIP and/or its Controlled Companies, either owned or from third parties, are in good conditions of use and are used and maintained in accordance with their manufacturers written instructions, and there are no unusable or unused items in the conduct of TRIPs and/or its Controlled Companies activities, except for wear and tear resulting from normal use. Exhibit 7.2.13(i) contains a list of all TRIPs and/or its Controlled Companies assets, goods and real and personal properties, including, without limitation, those in possession of third parties, which are necessary and sufficient for TRIP and/or its Controlled Companies to continue to conduct their activities and businesses in accordance with the past practices reflected in the Audited Financial Statements. The assets listed in Exhibit 7.2.13(ii) are subject to lease-purchase transactions and may continue to be used by TRIP and/or by its Controlled Companies after the consummation of the Transaction without any penalty, hindrance, termination or notice requirement, except as set forth in such Exhibit 7.2.13(ii). TRIPs and/or its Controlled Companies cash is free or invested in financial investments which enable the release of the funds to TRIP and/or to its Controlled Companies no later than thirty (30) days after the respective redemption request.
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7.2.14. Intellectual Property and Know-How. Exhibit 7.2.14 contains a list of all Intellectual Property owned by or licensed to TRIP and/or its Controlled Companies. The use of the Intellectual Property and Know-How by TRIP and/or by its Controlled Companies do violate any rights and are not subject to any judicial or administrative challenge by third parties. Neither TRIP and/or its Parent Companies nor TRIPs Shareholders have granted, assigned or licensed Intellectual Property rights or Know-How to third parties. TRIPs and/or its Controlled Companies business operations do not violate or infringe on third-party Intellectual Property or Know-How rights. TRIP and/or its Controlled Companies hold legal title to TRIPs Intellectual Property and Know-How, which are not subject to any license or limitation on use, are free and clear of any and all Liens and are not subject to any agreement that requires any payment to a third party or obligation to grant a right to a third party.
7.2.15. Insurance. The insurance policies held by TRIP and/or by its Controlled Companies are in compliance with the Law and in force and all premiums payable have been timely paid by TRIP and/or by its Controlled Companies. No circumstances exist and no events have occurred which may prevent or hinder the renewal of such policies by TRIP and/or by its Controlled Companies. The coverage provided under such policies is suitable and reasonable in view of the activities performed by TRIP and/or by its Controlled Companies and of the expected and historical Losses incurred by TRIP and/or by its Controlled Companies and consistent with market practices. TRIP and/or its Controlled Companies did not take or failed to take any measure that could cause a denial of their insurance companies to indemnify TRIP and/or as its Controlled Companies upon the occurrence of any events insured against. There is no material non-performance by TRIP and/or by its Controlled Companies of any provision contained in any such insurance policies.
7.2.16. Concession, contracts and slots. (A) TRIP holds the Airline Approval Certificate (CHETA) No. 9809-002/STE, which is valid and in full force. (B) The contracts in regard to airport areas listed in Exhibit 7.2.16(i) are valid and in full force and TRIP has not received any notice in regard to any termination thereof. The landing and take-off slots listed in Exhibit 7.2.16(ii) and Transportation Times (HOTRANS) allocated to TRIP are in full force and effect, and TRIP has not received any notice in regard to any forfeiture, termination or reassignment thereof. TRIP and its Controlled Companies are in compliance with all operating, technical and safety guidelines, rules, recommendations and standards issued by any Governmental Authority and/or manufacturer of aircraft, engines, parts and components.
7.2.17. Real and personal property leases and loans for use. Exhibit 7.2.17 contains a true and complete list of all real and personal property leases and loans for use to which TRIP is a party. Such real and personal property leases and loans for use are in force. All material amounts or sums, as well as all ancillary obligations (including condominium charges and property Taxes), due under any such agreement have been duly paid and discharged and there are no outstanding debts in connection therewith. TRIP has not breached any of the Relevant Agreements or material conditions of any of the agreements relating to such real and personal property leases or loans for use.
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7.2.18. Restrictive Covenants; Guarantees to the Benefit of Third Parties. Without prejudice and subject to the content of the other representations made in this Section 7.2, TRIP and/or its Controlled Companies are not parties and are not subject to any Law, Authorization or agreement (including guarantees), instrument, document or covenant that may prevent, limit, delay, jeopardize or otherwise affect the continuity of TRIPs and/or its Controlled Companies operations and businesses after the Date of Execution.
7.2.19. Compliance with Applicable Law (a) TRIP and/or its Controlled Companies have all the Authorizations necessary or required under any Law, including those of environmental and regulation nature, for performance of their respective business the way they are currently performed. Such Authorizations are in full force, effect and in good standing, and TRIP and/or it Controlled Companies have timely filed the relevant applications for renewal of such Authorizations whenever and where necessary, and there is no ongoing, pending or to the knowledge of any TRIPs Shareholder and TRIP and/or Controlled Companies threatened Disputes seeking to revoke, repeal, invalidate, annul, suspend, restrict and/or limit any of such Authorizations; (b) there is no ongoing, pending or threatened material Disputes against TRIP and/or its Controlled Companies arising from or otherwise related to any environmental and/or regulation Law; (c) TRIP and/or its Controlled Companies shall not be liable for any event constituting or that may constitute an environmental violation, including any and all (civil, administrative or criminal) environmental liabilities, burden, risks, losses, contamination of any kind either of the soil, underground or surface water, or expenses arising from any burden, risks, losses or environmental damages concerning their respective business and activities.
7.2.20. Business with Related Parties. Except as listed in Exhibit 7.2.20, on the Date of Execution, TRIP and/or its Controlled Companies are not a party to any contract, (written or oral) agreement or other executed instrument and/or do not have obligations, liabilities and/or debts of any kind to any of its officers, managers and/or direct or indirect shareholders of TRIP and/or its Controlled Companies, or relatives of any of the latter, including any contract, agreement or other instrument entered into with TRIP and/or its Controlled Companies, with any of the aforementioned referring to: (a) lease or free lease of any real properties, properties, assets or personal property; (b) licensing or use of any Intellectual Property; (c) obligations to buy or sell any tangible or intangible asset, product or rendering of service; or (d) financial loans, advance of funds, checking accounts, assumption of debts, commissions, sharing of expenses or revenues. TRIP and/or its Controlled Companies have no direct or indirect consulting agreement or any other services agreement with any Related Party.
7.2.21. Client Portfolio; Consumer Protection. The rendering of services to all clients by TRIP and/or its Controlled Companies is, in all its material aspects, in good standing and the Date of Execution and execution of the other Transaction Documents by the Parties shall not prevent maintenance of the regular client portfolio of TRIP. TRIP meets, in all its material aspects, in a proper manner, all requirements under the consumer protection laws as to the relationship with suppliers and consumers, as it does in its relationship with competitors or consumer protection entities. There are no facts, acts, omissions or circumstances that may represent a breach of the consumer protection Laws.
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7.2.22. Conduction of Business. As from December 31, 2011, to the Date of Execution, (a) the business of TRIP and/or its Controlled Companies has been conducted regularly and in accordance with its corporate documents, in compliance with Law, without any relevant change; (b) no change has occurred in the Assets, liabilities, business, operating results or financial situation of TRIP and/or its Controlled Companies, except for those arising from the ordinary course of business; and (c) none of the acts below has been performed: (i) contracting or assumption of any liability or obligation, of any kind, including by means of execution of any agreement or contract, except in the ordinary course of business and provided that they do not jointly or severally cause a Relevant Adverse Effect; (ii) payment of any liability or obligation other than liabilities and obligations that became due and enforceable in the ordinary course of business according to the respective terms and conditions; (iii) declaration, distribution or payment of dividends, interest on equity or other form of distribution or payment concerning shares issued by TRIP and/or its Controlled Companies; (iv) cancellation or waiver of any credits or rights; or (v) any change in any accounting practice or method, except for those required by law.
7.2.23. Severability of the Services and Management Structure. TRIP and/or its Controlled Companies do not supply, use and are not subject or party to any written or verbal agreement with any Person, involving the sharing of (a) services rendered by third parties to TRIP and/or its Controlled Companies or (b) the management structure of TRIP and/or its Controlled Companies.
7.2.24. Benefits Plans. Exhibit 7.2.24 contains a list of the benefits (including the benefits plan) granted by TRIP and/or its Controlled Companies to their respective employees, officers and staff (the Benefits Plan). All contributions (including all the contributions by employer and employee) owed have been paid on the terms of each Benefits Plan. The consummation of the Transaction does not entail or result in the early maturity of such obligations, acquisition of additional rights, or increase in the amount of remuneration owed to any employee or former employee on the terms of each Benefits Plan. There is no unfinanced obligation concerning any Benefits Plans that are not fully reflected in the Financial Statements, pursuant to applicable Law and to the accounting principles generally accepted in Brazil.
7.2.25. Relevant Fact. There are no relevant facts or circumstances concerning the business or activities of TRIP and/or its Controlled Companies which could cause a Relevant Adverse Effect (a) which are not provided for in the Financial Statements, or (b) which have not been informed in the Exhibits to this Agreement.
7.2.26. Certain Practices. Under no circumstance did TRIP and/or its Controlled Companies, including through any employee, officer, manager, agent, consultant or any other Person, offer, pay, undertake to pay or authorize payment in cash or other valuable assets to any person that is an official, agent, employee or representative of any Governmental Authority or to any existing or potential client or supplier or to any political party, any candidate to public office or to political party firms or to any other Person (a) to obtain a favorable treatment in business, (b) to pay for a favorable treatment in business, (c) to obtain special concessions or for special concessions already obtained, in favor of or in relation to TRIPs Shareholders, TRIP and/or to its Controlled Companies, or (d) in violation of any Law.
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CONFIDENTIAL TREATMENT REQUESTED
7.2.27. Full Release. The declarations made by TRIPs Shareholders and by TRIP under this Agreement have no untruthfulness or inaccuracy as to any relevant act or fact, the knowledge of which shall be necessary so all declarations made under this Agreement are not misleading, incorrect or incomplete.
7.2.28. Pending Acts. There is no pending or to the knowledge of TRIP and/or its Controlled Companies threatened Dispute against them before any Governmental Authority that, if held unfavorably may interfere in TRIPs capacity to comply with its obligations arising from this Agreement, other Transaction Documents and also from Exhibits to this Agreement.
7.3. Representations and Warranties of AZUL Holding as regards AZUL Holding and/or its Controlled Companies. On the Date of Execution of this Agreement and on the Date of Merger, AZUL Holding represents and warrants to TRIPs Shareholders, in relation to itself, the following, and the truthfulness, updating, accuracy and completeness of such representations and warranties are essential conditions for TRIPs Shareholders to execute this Agreement:
7.3.1. Organization. AZUL Holding and its respective Controlled Companies are joint- stock corporations duly organized and validly existing according to the Laws of Brazil.
7.3.2. Authorization; Validity of the Agreement. AZUL Holding has full power and authority to execute this Agreement and to comply with its respective obligations. Except as otherwise provided for herein, this Agreement was duly and validly executed by AZUL Holding and no further act or procedure by AZUL Holding is necessary to authorize the execution and compliance with this Agreement. This Agreement, and the other Transaction Documents and Exhibits to this Agreement are valid and binding obligations of AZUL Holding and enforceable against it according to their terms and conditions.
7.3.3. Consents and Approvals; Non-existence of Violations. The execution of and compliance with this Agreement by AZUL Holding, as well as the consummation of acts under this Agreement and the Transaction Documents shall not: (a) require any previous filing with any Governmental Authority or Authorization, except for the Authorization from the National Agency for Civil Aviation (ANAC); (b) require any previous consent from any third parties that has not been obtained yet on the date hereof, with the exception of those expressly set forth in Exhibit 7.3.3 to this Agreement; or (c) result in the violation of or default on any agreement, Law or corporate documents of AZUL Holding.
7.3.4. Capital Stock. The capital stock of AZUL Holding, on the date hereof, is [*****] represented by 4,031,250 (four million, thirty-one thousand, two hundred and fifty) shares, of which 2,500,000 (two million, five hundred thousand) are AZUL Holdings Common Shares, 125,000 (one hundred, twenty-five thousand) are AZUL Holdings Class A Preferred Shares, and 1,406,250 (one million, four hundred and six thousand, two hundred and fifty) are AZUL Holdings Class B Common Shares. The Original Shareholders hold 100% (one hundred per cent) of AZUL Holdings Shares, pursuant to Exhibit A to this Agreement, which are free and clear of any encumbrances, except for AZUL Holdings Shareholders Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7.3.5. Shareholders Agreement. Except for AZUL Holdings Shareholders Agreement, there are no shareholders agreements, voting agreements, stock options or other agreements concerning governance, sharing of rights on AZUL Holdings Shares and/or the creation of any rights on AZUL Holdings Shares.
7.3.6. Books and Records. Copy of the corporate books of AZUL Holding and AZUL provided to TRIP and to TRIPs Shareholders on the Date of Execution, in addition to the records and corporate practices of AZUL Holding and AZUL, whose existence is required by Law, are complete and correct, and do not contain or reflect any inaccuracy or material discrepancy. All requisites, formalities, and terms required by any Law concerning call, convening, holding, resolution and approval of the minutes and records (including, whenever applicable, the register with state commercial registries) of the shareholders meetings, board of directors meetings and board of officers meetings, financial statements and any other corporate acts that have been observed and complied with. Copy of the books of AZUL Holding and AZUL submitted to TRIP and to TRIPs Shareholders on the Date of Execution represents the official corporate books of AZUL Holding as from the aforesaid date and must prevail over any other version or book that ever existed or may exist.
7.3.7. Relevant Agreements.
a. | Exhibit 7.3.7 contains a complete list of the following agreements in effect and to which AZUL Holding and/or its Controlled Companies are a party (jointly referred to as AZUL Holding Relevant Agreements): |
(i) | agreement, or a set of agreements of the same kind (including those executed with clients, suppliers, agents, consultants, service providers, sales agents or distributors), which individually involve payment or receipt by AZUL Holding and/or its Controlled Companies of amounts over R$1,000,000.00 (one million Brazilian Reais) per year; |
(ii) | agreement that contains any covenant or commitment restricting the free prerogative of AZUL Holding and/or its Controlled Companies to compete in any market segment, line of business or with any other Person in any geographic area, or that on its terms restricts the free prerogative of AZUL Holding and/or its Controlled Companies to act in any market segment or, moreover, that requires AZUL Holding and/or its Controlled Companies to distribute or use on an exclusive basis a technology, product or service; |
(iii) | agreement whose subject matter is the granting to third parties of the right to conduct in whole or in part the business of AZUL Holding and/or its Controlled Companies, or that determines the assignment of a portion of the revenues of AZUL Holding and/or its Controlled Companies; |
(iv) | agreement executed with any manager, officer, worker or employee of AZUL Holding and/or its Controlled Companies; |
(v) | leasing, lease, sublease or free lease agreement executed with any Person, by which AZUL Holding and/or its Controlled Companies are bound as a party, lessor, sublessor, free lessor, lessee, sublessee, free lessee or guarantor; |
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(vi) | financial agreements, including financing, loan, credit extension, vendor, investment or derivatives resulting in obligation to AZUL Holding and/or its Controlled Companies, in an amount annually, jointly or severally, over R$1,000,000.00 (one million Brazilian Reais); |
(vii) | agreement setting forth the creation of any Lien on any of the properties and/or assets of AZUL Holding and/or its Controlled Companies; |
(viii) | purchase, sale or transfer agreement, on any account, of any property and/or asset comprising or that may comprise the asset of AZUL Holding and/or its Controlled Companies; |
(ix) | agreement containing provision on the right of first refusal to buy any property or asset of third parties or owned by AZUL Holding and/or its Controlled Companies; |
(x) | joint venture agreement, consortium agreement or other that set forth the organization of a company or any other business association, and all the association agreements or other similar agreements involving a sharing of profits or Losses with any other Person; |
(xi) | agreement setting forth payment of indemnification in an amount over R$100,000.00 (one hundred thousand Brazilian Reais) to be borne by AZUL Holding and/or its Controlled Companies; |
(xii) | agreement containing a provision about the change in the control of AZUL Holding and/or its Controlled Companies or that requires previous consent from a third party for consummation of the Transaction hereunder, or which could result in the early termination hereof; |
(xiii) | agreement whose subject matter is the acquisition or disposal of any business (either by means of purchase and sale, ownership restructure or otherwise) involving AZUL Holding and/or its Controlled Companies; |
(xiv) | agreement executed by AZUL Holding and/or its Controlled Companies with any Governmental Authority, union or class entity; |
(xv) | agreement providing for the posting of any guarantee to third parties by AZUL Holding and/or its Controlled Companies; |
(xvi) | agreements with Related Parties; and |
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(xvii) | relevant license, sublicense and/or authorization agreements, among others, involving the use by AZUL Holding and/or its Controlled Companies of Intellectual Properties used herein for the conduction of its business. |
b. | any other agreements that are relevant for the conduction of the business of AZUL Holding and/or its Controlled Companies, the way such business is conducted on the Date of Execution. Each Relevant Agreement was executed (a) in the ordinary course of business reflecting the market conditions for similar transactions; and (b) is a legal, valid and binding obligation of AZUL Holding and/or its Controlled Companies. AZUL Holding and/or its Controlled Companies did not (a) violate or default on any Relevant Agreement, and (b) waive any right provided for in any Relevant Agreement. Execution of the Transaction Documents does not and shall not breach any provision in the Relevant Agreements, as it shall not result in the right of any counterparty to such Relevant Agreements of demanding the early maturity and/or unilateral termination. AZUL Holding and/or its Controlled Companies have no knowledge of any notification of breach, full or partial termination, or request for fine, early termination or request for indemnity for any Relevant Agreement and no renegotiation in relation to any Relevant Agreement is in course. |
7.3.8. Litigation.
a. | There are no pending and to the knowledge of AZUL Holding and/or its Controlled Companies any existing threatened Disputes of civil or regulation nature against AZUL Holding and/or any of its Controlled Companies with any Governmental Authority that (a) intend to question or hamper, change, limit and/or materially delay the Transaction provided for in this Agreement, (b) question or oppose the validity of this Agreement or any act performed or to be performed by AZUL Holding, on the terms of this Agreement, and/or (c) are of collective nature, including public actions and class actions or actions of corporate nature. |
b. | Except as provided for in Exhibit 7.3.8(b), there are no Disputes against AZUL Holding and/or its Affiliates affecting its business, operations, financial situation or assets, with any court or administrative body, and which involve amounts claimed over R$100,000.00 (one hundred thousand Brazilian Reais) or that may cause a Relevant Adverse Effect. |
c. | AZUL Holding did not breach any court decision, order, court injunction, preliminary injunction or ruling by any court or administrative body. |
7.3.9. Labor Matters. AZUL Holding and/or its Controlled Companies are in compliance with all labor Laws applicable. There is no agreement with the current or former employees containing provisions setting forth a prior notice or indemnities over those provided for in the labor Laws applicable. All employees of AZUL Holding and/or its Controlled Companies are regularly recorded on proper books and registers. AZUL Holding and/or its Controlled Companies are in compliance with all the commitments of their respective collective bargaining agreements or similar agreements with any union or organization applicable to their employees, and no new agreement is being negotiated by AZUL Holding and/or its Controlled Companies. There is no strike or work stoppage involving AZUL Holding and/or its Controlled Companies. All labor Disputes involving AZUL Holding and/or its Controlled Companies are listed in Exhibit 7.3.9. No employee of AZUL Holding and/or its Controlled Companies has the right to any extraordinary and non- habitual payment owed by AZUL Holding and/or its Controlled Companies. No employee of AZUL Holding and/or its Controlled Companies is, in any material aspect, in violation of any employment contract, confidentiality agreement or non-compete agreement. AZUL Holding and/or its Controlled Companies are in compliance with all their contractual and legal obligations in relation to their service providers.
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7.3.10. Financial Statements; No Hidden Liabilities; Books and Records. (a) Exhibit 7.3.10 has a faithful, correct and complete copy of each of the Financial Statements. AZUL Holdings Financial Statements have been taken out from books and records of AZUL Holding and represent correctly and completely the financial position, the operating results and the cash flows of AZUL Holding for all dates and periods to which they refer according to the best accounting, tax, labor and social security practices and generally accepted principles in Brazil, applied consistently during the periods at issue; (b) AZUL Holding has no Contingency that has not been duly considered and, as the case may be, reflected or provisioned for in the balance sheet of AZUL Holding as to the fiscal year ended December 31, 2011, included in the Financial Statements, with the exception of the Contingencies reflected on or provisioned for in the aforementioned balance sheet. AZUL Holding has no off balance sheet financings or operations; and (c) the accounting books and other financial records of AZUL Holding: (i) reflect all items for revenue and expenses and the assets and liabilities that must be reflected thereon, according to the best accounting, tax, labor, and social security practices and generally acceptable principles in Brazil, applied on a basis consistent with the past practices of AZUL Holding; (ii) are complete and correct, and do not contain or reflect any inaccuracy or discrepancy, and (iii) have been kept in accordance with the good business, accounting practices and the Law. The assets indicated in the Financial Statements reflect the respective settlement amounts, are in good standing, whenever applicable, and may be commercialized on a free basis.
7.3.11. Tax and Social Security Matters. All the tax and social security obligations of AZUL Holding and/or its Controlled Companies have been fully complied with and paid as provided for in the Law (except for those under discussion in good faith judicially and/or administratively). Except as provided for in Exhibit 7.3.11, there is no pending or to the knowledge of AZUL Holding threatened Dispute for calculation or collection of any Tax against AZUL Holding and/or its Controlled Companies. AZUL Holding and/or its Controlled Companies, as the case may be, have timely filed all Tax returns with the competent Governmental according to Law. AZUL Holding and/or its Controlled Companies did not take part in and are not a party to any tax incentive plan, payment in installments or program for payment of overdue Tax debts in installments, with the exception of the list included in Exhibit 7.3.11. All the provisions for material risks involving Taxes of the company have been made in accordance with the Law and the accounting principles applicable and generally accepted in Brazil, and all Tax obligations of the company applicable to previous periods have been duly provided for in the Financial Statements, in accordance with the Law and the accounting principles applicable and generally accepted in Brazil.
7.3.12. Assets. AZUL Holding and/or its Controlled Companies are lawful owners and holders of assets, properties, personal assets and real properties identified in Exhibit 7.3.12 (i), which are free and clear of any and all Liens. The assets used by AZUL Holding and/or its Controlled Companies, either their own or those owned by third parties, are in good conditions to be used and are used and kept according to the manufacturers written instructions, and there are no items in no conditions of use or that are not used in the performance of the activities of AZUL Holding and/or its Controlled Companies, except for the wear and tear due to its normal use. Exhibit 7.3.12(i) contains a list of assets, properties, personal assets and real properties owned by AZUL Holding and/or its Controlled Companies, including, but without limitation, those in possession of third parties, necessary and sufficient so that AZUL Holding and/or its Controlled Companies may continue to conduct their activities and business according to the past practices reflected in the Audited Financial Statements. The assets listed in Exhibit 7.3.12(ii) are subject to leasing transactions and may continue to be used by AZUL Holding and/or its Controlled Companies after consummation of the Transaction, without any penalty, hindrance, termination or need for notification, except for the provision in the aforementioned Exhibit 7.3.12(ii). The cash funds of AZUL Holding and/or its Controlled Companies are free or invested in financial funds that enable the release of resources to AZUL Holding and/or its Controlled Companies within the term of thirty (30) days at most as from the respective request for redemption.
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7.3.13. Intellectual Property and Know-How. Exhibit 7.3.13 contains a list of the Intellectual Property held by AZUL Holding and/or its Controlled Companies or licensed thereto. The use of Intellectual Property and Know-How by AZUL Holding and/or its Controlled Companies does not infringe on any rights and is not subject of any judicial or administrative challenge by third parties. AZUL Holding and/or its Controlled Companies did not grant, assign or license Intellectual Property rights and Know-How to third parties. The business transactions of AZUL Holding and/or Controlled Companies do not breach or infringe on third parties Intellectual Property or Know-How rights. The Intellectual Property and Know-How of AZUL Holding are lawfully owned by AZUL Holding and/or its Controlled Companies and are not subject to a license or limitation of use, and they are free and clear of any and all Liens and are not subject to an agreement that requires payment to third parties or to an obligation to grant right to third parties.
7.3.14. Insurance. Insurance policies contracted by AZUL Holding and/or by its Controlled Companies are in accordance with the law and in effect, and all premium owed have been timely paid by AZUL Holding and/or its Controlled Companies. There are no circumstances and no event has occurred that could impede or make unfeasible the renewal of such policies by AZUL Holding and/or its Controlled Companies. Coverage offered under such policies is adequate and reasonable, in view of the activities performed by AZUL Holding and/or by its Controlled Companies, in light of the Losses expected and historically incurred by AZUL Holding and/or its Controlled Companies, and it is compatible with market practices. AZUL Holding and/or its Controlled Companies did not take or fail to take any measure that may cause refusal by their insurance companies to indemnify AZUL Holding and/or its Controlled Companies for the occurrence of insured events. There is no material breach by AZUL Holding and/or by its Controlled Companies related to any provision from any of such insurance policies.
7.3.15. Concession, agreements and slots. (A) AZUL Holding and/or its Controlled Companies hold concession to operate, pursuant to the Concession Agreement published in the Official Gazette of the Federal Executive on November 28, 2008, and they also hold the Airline Approval Certificate CHETA No. 2008-11-0AZU-01-000, dated November 7, 2008, which are valid and in full force. The agreements concerning the airport areas listed in Exhibit 7.3.15(i) are valid and in full force, and AZUL Holding has not been notified about termination thereof. The slots listed in Exhibit 7.3.15(ii) and the Transport Time HOTRANS assigned to AZUL Holding are in full force and effect, and AZUL Holding has not been notified about its revocation, termination or redistribution. AZUL Holding and its Controlled Companies comply with all guidelines, rules, recommendations and operating, technical and safety rules issued by any Governmental Authority and/or aircraft, engine, part and piece manufacturers.
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7.3.16. Charters, free lease and leasing. Exhibit 7.3.16 contains a faithful and complete list of all the charters, free lease and leasing to which AZUL Holding is a party. Such charters, free lease and leasing are currently in effect. All amounts or material values, as well as all other accessory obligations (including condominium fees and Taxes levied on the property) owed under each agreement have been duly paid for and settled, and there are no outstanding debts in relation thereto. AZUL Holding did not breach any of the Relevant Agreements or material conditions of any of the agreements related to such leases, free leases or leasing.
7.3.17. Restrictive Provisions; Guarantees in Favor of Third Parties. Without prejudice and subject to the content and extension of the other representations made in Section 7.3, AZUL Holding and/or its Controlled Companies are not parties and are not subject to any Law, Authorization or agreement (including guarantees), instrument, document or provision that may impede, limit, delay, compromise or in any other way affect continuity of the transactions and business of AZUL Holding and/or its Controlled Companies after the Date of Execution.
7.3.18. Compliance with Applicable Law. (a) AZUL Holding and/or its Controlled Companies have all the Authorizations necessary or required under any Law, including environmental and regulatory, to conduct their respective businesses as they are currently being conducted. Such Authorizations are in full force and effect and are regular, and AZUL Holding and/or its Controlled Companies complied with on a timely basis the requirements pertaining to the renewal of such Authorizations every time and whenever required and there are no Disputes in course, pending or otherwise, to the knowledge of AZUL Holding and/or its Controlled Companies, threatened, which aim at revoking, canceling, invalidating, nullifying, suspending, restricting and/or limiting any such Authorizations; (b) there are no material Disputes in course, pending or threatened, against AZUL Holding and/or its Controlled Companies, arising out of in any way related to any Law of environmental and/or regulatory nature; (c) AZUL Holding and/or its Controlled Companies are not liable for any event which is or may become an environmental violation, including all and any environmental liabilities (civil, administrative or criminal), burden, risks, losses, contamination of any kind, whether in the ground, underground water or superficial contamination, or expenses arising out of any burden, risks, losses or environmental damages related to its respective business and activities.
7.3.19. Business with Related Parties. Except as listed in Exhibit 7.3.19, on the Date of Execution, AZUL Holding and/or its Controlled Companies are not a party to any contract, agreement (written or oral) or any other executed instrument and/or has obligations, liabilities and/or debts of any nature with any of its officers, managers and/or direct or indirect shareholders of AZUL Holding and/or its Controlled Companies, or members of the family of any of the previous ones, including any contract, agreement, or other instrument entered into by and between AZUL Holding and/or it Controlled Companies, to any of the abovementioned regarding: (a) lease or free lease of any real properties, goods, assets or personal property; (b) licensing or use of any Intellectual Property; (c) obligations of purchase or sale of any tangible or intangible asset, product or service provision; or (d) financial loans, advancement of funds, current accounts, assumptions of debts, commissions, apportionment of expenses or revenues. AZUL Holding and/or its Controlled Companies do not have any contract, direct or indirect, for consulting or any other services with any Related Party.
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7.3.20. Portfolio of Clients; Protection to Consumers. The rendering of services to all the clients carried out by AZUL Holding and/or its Controlled Companies is, in all its material aspects, in a good standing and the Date of Execution and the other Transaction Documents by the Parties shall not impede the regular maintenance of AZUL Holding and/or its Controlled Companies clients. AZUL Holding meets, in all its material aspects, in a proper manner, all the requirements of consumer protection law, as regards relationship with suppliers and consumers, as well as in the relationship with competitors or entities for consumer protection. There are no facts, acts, omissions, or circumstances which could represent a violation of the Consumer Protection Laws.
7.3.21. Business Conduct. As from December 31, 2011 to the Date of Execution, (a) the business of AZUL Holding and/or its Controlled Companies has been conducted regularly and pursuant to their organizational documents, in compliance with the Law, without any relevant change; (b) no change has occurred with the Assets, liabilities, business, operating results or financial situation of AZUL Holding and/or its Controlled Companies, except for those arising out of the ordinary course of business; and (c) none of the following acts was performed: (i) hiring or assumption of any liability or obligation, of any nature, including by means of execution of any agreement or contract, except in the ordinary course of business and which does not cause, collectively or separately, a Relevant Adverse Effect; (ii) payment of any liability or obligation which are liabilities and obligations which become due and payable in the ordinary course of business, according to their respective terms and conditions; (iii) declaration, distribution or payment of dividends, interest on equity or other form of distribution or payment regarding the shares issued by AZUL Holding and/or of its Controlled Companies; (iv) cancellation or waiver of any credits or rights; or (v) any change to any accounting practice or method, except for those required by Law.
7.3.22. Independence of Services and Administrative Services. AZUL Holding and/or its Controlled Companies do not supply, use, are subject to or are a party to any agreement, written or oral, with any Person, involving the sharing of (a) services provided by third parties to AZUL Holding and/or its Controlled Companies or (b) the administrative structure of TRIP and/or its Controlled Companies.
7.3.23. Benefits Plan. Exhibit 7.3.23 contains a Benefits Plan granted by AZUL Holding and/or its Controlled Companies to its respective employees, directors and employees. All the contributions (including all the contributions of the employer and of the employee) which are due were paid pursuant to each Benefits Plan. The consummation of the Transaction does not result in or cause the accelerated maturity of such obligations, acquisition of additional rights, or increase of the amount of remuneration due to any employee or former employee pursuant to each Benefits Plan. There are no non-financed obligations regarding any Benefits Plan which are not totally reflected in the Financial Statements, pursuant to applicable Law and the accounting principles generally acceptable in Brazil.
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7.3.24. Relevant Fact. There are no relevant facts or circumstances related to the business or to the activities of AZUL Holding and/or its Controlled Companies which could cause a Relevant Adverse Effect (a) which are not reflected in the Financial Statements or (b) which have not been disclosed in the Exhibits hereto.
7.3.25. Certain Practices. At no moment AZUL Holding and/or its Controlled Companies, including by means of any employee, director, manager, agent, consultant or any Person offered, paid, agreed to pay or authorized the payment in cash or other assets of value to any person which is an officer, agent, employee or representative of any Governmental Authority or any existing or potential client or supplier, or any political party, any candidate to a public office or to political parties offices, or to any other Person (a) to obtain favorable treatment in business, (b) to pay favorable treatment in business, (c) to obtain special grants already obtained, in favor of or in relation to AZUL Holding and/or to its Controlled Companies, or (d) in violation of any Law.
7.3.26. Complete Release. The representations made by AZUL Holding in this Agreement do not contain any untrue fact or inaccuracy about any fact or relevant fact, nor omit the existence of any relevant act or fact, whose knowledge is necessary to cause the representations made herein not misleading, incorrect or incomplete.
7.3.27. Pending Acts. There is no Dispute, pending or, to the knowledge of AZUL Holding and/or its Controlled Companies, threatened against them before any Governmental Authority which, if decided unfavorably, may interfere in the capacity of AZUL Holding to perform its obligations arising out of this Agreement, the other Transaction Documents and also the Exhibits hereto.
7.4. Exhibits. All the information disclosed in Exhibits hereto by TRIPs Shareholders, by AZUL Holding and/or by its respective Controlled Companies is expressly incorporated to this Agreement and shall become an integral part hereof as if they had been fully reproduced. TRIPs Shareholders, TRIP, AZUL Holding and/or its respective Controlled Companies hereby represent that they have prepared and reviewed in good faith the Exhibits contained in their representations and warranties, which faithfully represent the matters under disclosure contained therein.
SECTION VIII
INDEMNIFICATION
8.1. Indemnification Obligation of TRIPs Shareholders. TRIPs Shareholders agree to indemnify, defend and hold harmless AZUL Holding, TRIP, AZUL and/or their respective Affiliates, shareholders, officers, employees, representatives, or any of their successors on any account, as applicable (AZUL Holdings Indemnifiable Parties) with respect to any Losses suffered or incurred by any AZUL Holdings Indemnifiable Party, as a result of:
(i) | any misrepresentation, omission, error, inadequacy or inaccuracy of any representation provided by TRIPs Shareholders or TRIP herein; |
(ii) | any violation of any of TRIPs Shareholders or TRIPs obligations and/or commitments set forth under this Agreement and/or Transaction Documents; and/or |
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(iii) | any acts resulting from facts or omissions related to TRIP and/or its Affiliates, having occurred or generated by a fact occurring up to (and including) the Date of Merger, including in the event that such facts or omissions (i) have been reported to AZUL Holding during the Due Diligence or in this Agreement (including its Exhibits) or any Transaction Document, (ii) have or have not been provisioned in TRIPs Financial Statements, or (iii) come to be known, materialized, ascertained and/or recognized after the Date of Execution, it being understood, in any case, that the representations and warranties made herein do not limit the indemnification obligation set forth hereunder. |
8.1.1. Indemnification Methodologies of TRIPs Shareholders up to the AdjustmentIndemnifications Date. The Parties agree that the obligations to indemnify of TRIPs Shareholders, as provided for in Section 8.1 above, shall follow different mechanisms of payment and/or compensation, which will vary depending on the occurrence of the IPO (the Completion of the IPO) or the Deadline, whichever occurs first (the AdjustmentIndemnifications Date).
(a) Indemnifications up to the AdjustmentIndemnifications Date. Between the Date of Execution and the AdjustmentIndemnifications Date, any obligation to indemnify of TRIPs Shareholders, pursuant to Section 8.1, shall be temporarily suspended and may not be required by any AZUL Holdings Indemnifiable Party, except as set forth below:
(i) Subject to the provisions of Section 8.5, up to the Adjustment Indemnifications Date, the Parties shall determine in good faith the total amount of Losses indemnifiable by TRIPs Shareholders, as provided in Section 8.1 and updated by the CDI, which effectively generated a cash outflow on the part of the AZUL Holdings Indemnifiable Parties within the period between the Date of Execution and the Adjustment Indemnifications Date (the Losses With Cash Outflow of AZUL Holding). Conversely, the Parties shall in good faith determine the total amount of losses indemnifiable by AZUL Holding, as provided in Section
8.2 below and updated by the CDI, which effectively generated a cash outflow on the part of TRIPs Shareholders Indemnifiable Parties within the period between the Date of Execution and the Adjustment Indemnifications Date (the Losses With Cash Outflow of TRIPs Shareholders). The sum of Losses With Cash Outflow of AZUL Holding and Losses With Cash Outflow of TRIPs Shareholders are referred to as the Total Loss of Parties up to the Date of Adjustment Indemnification. In the event that the Total Losses of Parties up to the AdjustmentIndemnifications Date are positive in favor of AZUL Holdings Indemnifiable Parties (that is, the Losses With Cash Outflow of AZUL Holding overcome the Losses With Cash Outflow of TRIPs Shareholders), then the Original Shareholders shall have the right to exercise, within 4 (four) days after the announcement of the Total Loss of Parties up to the Date of Adjustment Indemnification, the Subscription Warrants for the Adjustment of Shareholding Original Shareholders in order to receive, on a prorated basis and proportionally to their stake in the share capital of AZUL Holding, the number of Class B preferred shares as per the formula set forth below:
ARP = (PPIAH PPIAT) / VPAPI
a. ARP: Total number of Class B preferred shares to be issued, within 4 (four) days after the Deadline, by AZUL Holding as a result of the exercise of the Subscription Warrants for the Adjustment of Shareholding Original Shareholders.
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b. PPIAH: Total amount of Losses With Cash Outflow of AZUL Holding as of the AdjustmentIndemnifications Date updated by the CDI, subject to Section 8.1.1(b);
c. PPIAT: Total amount of Losses With Cash Outflow of TRIPs Shareholders as of the AdjustmentIndemnifications Date updated by the CDI; and
d. VPAPI: Individual amount of each preferred share as of the definition of the Pre- Money Valuation or, if the Pre-Money Valuation does not occur, the reference amount of the economic value shall be [*****], being understood that the preferred shares to be issued as a result of the exercise of the Subscription Warrants for the Adjustment of Shareholding Original Shareholders shall be considered for the definition of the individual amount of each preferred share.
(b) Alternative Obligation; Cash Payment. Should TRIPs Shareholders have the obligation to indemnify the Original Shareholders, as provided for in Section 8.1.1(a), TRIPs Shareholders may elect to pay in cash to the Original Shareholders the balance between (i) the Losses With Cash Outflow of TRIPs Shareholders; and (ii) the Losses With Cash Outflow of AZUL Holding. TRIPs Shareholders shall notify AZUL Holding and the Original Shareholders, within 1 (one) day after the determination of the Total Losses of Parties up to the Adjustment - Indemnifications indicating whether they intend to pay indemnities in cash. Should TRIPs Shareholders elect to pay indemnities in cash, subject to the provisions of this Section, it shall pay the indemnities within 1 (one) day after the issuance of the notification set forth in the preceding sentence, it being understood that, upon confirmation of payment, the Subscription Warrants for the Adjustment of Shareholding Original Shareholders shall lose its validity and effectiveness. If such payment is not made within the period specified above, the Original Shareholders shall be free to exercise the Subscription Warrants for the Adjustment of Shareholding Original Shareholders.
(c) Indemnifications After the AdjustmentIndemnifications Date. After the AdjustmentIndemnifications Date, the obligations to indemnify of TRIPs Shareholders as provided for in Section 8.1, shall be indemnified exclusively in cash, pursuant to Section 8.3 et seq., it being agreed to by and between the Parties, for the avoidance of doubt, that the indemnification procedures set forth in Sections 8.3, 8.4, 8.5, and 8.6 shall apply to Parties only after the AdjustmentIndemnifications Date.
8.1.2 Limitation to Indemnification of TRIPs Shareholders. Notwithstanding anything to the contrary in Section 8.1.1 above, the obligation to indemnify of TRIPs Shareholders for Losses set forth in Section 8.1 above shall remain valid until the [*****] anniversary of this date, extendable for the term of the procedural progress of the Dispute in the event that such Dispute has been initiated within the referred period. For clarity purposes, in the event that a possible Loss, including as a result of Dispute, is either claimed or notified within the period set forth in this Section 8.1.2, TRIPs Shareholders shall remain obligated to indemnify the AZUL Holdings Indemnifiable Parties as set forth in Section 8.1 if such Loss is disbursed by the relevant AZUL Holdings Indemnifiable Party, even if such disbursement occurs after the expiration of the term referred to herein.
8.2. Indemnification Obligation of AZUL Holding. AZUL Holding agrees to indemnify, defend and hold harmless TRIPs Shareholders against any Losses suffered or incurred by any of TRIPs Shareholders (TRIPs Shareholders Indemnifiable Parties, and collectively with the AZUL Holdings Indemnifiable Parties, the Indemnifiable Parties), as a result of:
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(i) | any misrepresentation, omission, error, inadequacy or inaccuracy of any representation provided by AZUL Holding herein; |
(ii) | any violation of any of AZUL Holdings obligations and/or commitments set forth under this Agreement and/or Transaction Documents; |
(iii) | any acts resulting from facts or omissions related to AZUL Holding and/or its Affiliates, having occurred or generated by a fact occurring up to (and including) the Date of Merger, including in the event that such facts or omissions (i) have been reported to TRIPs Shareholders during the Due Diligence or in this Agreement (including its Exhibits) or any Transaction Document, (ii) have or have not been provisioned in AZUL Holdings Financial Statements, or (iii) come to be known, materialized, ascertained and/or recognized after the Date of Execution, it being understood, in any case, that the representations and warranties made herein do not limit the indemnification obligation set forth hereunder. |
8.2.1. Indemnification Methodologies of AZUL Holding up to the AdjustmentIndemnifications Date. In a consistent and symmetrical manner as per Section 8.1.1 above, the obligations to indemnify of AZUL Holding, as set forth in Section 8.2 above, shall follow different mechanisms of payment and/or compensation, which will vary depending on the occurrence of the AdjustmentIndemnifications Date.
(a) Indemnifications up to the AdjustmentIndemnifications Date. Between the Date of Execution and the AdjustmentIndemnifications Date, any obligation to indemnify of AZUL Holding, pursuant to Section 8.1, shall be temporarily suspended and may not be required by any of TRIPs Shareholders Indemnifiable Parties, except as set forth below:
(i) Pursuant to Sections 8.2.1(b) and 8.5, up to the AdjustmentIndemnifications Date, the Parties shall determine in good faith the total amount of Losses with Cash Outflow of TRIPs Shareholders. Conversely, the Parties shall in good faith determine the total amount of Losses with Cash Outflow of AZUL Holding. In the event that the Total Losses of Parties up to the Adjustment Indemnifications Date are positive in favor of TRIPs Shareholders Indemnifiable Parties (that is, the Losses With Cash Outflow of TRIPs Shareholders overcome the Losses With Cash Outflow of AZUL Holding), then TRIPs Shareholders shall have the right to exercise, within 4 (four) days after the announcement of the Total Loss of Parties up to the Date of Adjustment Indemnification, the TRIPs Shareholders Subscription Warrants Indemnifications Adjustment, in order to receive, on a prorated basis and proportionally to their stake in the share capital of AZUL Holding, the number of Class B preferred shares as per the formula set forth below:
ARP = (PPIATPPIAH) / VPAPI
a. ARP: Total number of Class B preferred shares to be issued, within 4 (four) days after the Deadline, by AZUL Holding as a result of the exercise of TRIPs Shareholders Subscription Warrants Indemnifications Adjustment.
b. PPIAH: Total amount of Losses With Cash Outflow of AZUL Holding as of the AdjustmentIndemnifications Date updated by the CDI;
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c. PPIAT: Total amount of Losses With Cash Outflow of TRIPs Shareholders as of the AdjustmentIndemnifications Date updated by the CDI, subject to the provisions of Section 8.1.1(b); and
d. VPAPI: Individual amount of each preferred share as of the definition of the Pre-Money Valuation or, if the Pre-Money Valuation does not occur, the reference amount of the economic value shall be [*****], being understood that the preferred shares to be issued as a result of the exercise of the Subscription Warrants for the Adjustment of Shareholding TRIPs Shareholders shall be considered for the definition of the individual amount of each preferred share.
(b) Proportional Losses of TRIPs Shareholders. The Parties agree that a Loss suffered by AZUL Holding and/or its Controlled Entities (except for TRIP) shall result in a Loss suffered by TRIPs Shareholders. In this case, and exclusively if the Loss is paid in cash by AZUL Holding, the indemnity amount payable to TRIPs Shareholders will be equivalent, in the event the Loss is suffered or incurred by AZUL Holding and/or its Controlled Entities (except for TRIP), to the result of the following formula:
I = (PAH * PAT) / (1 PAT)
d. | I: Total indemnity amount due to TRIPs Shareholders; |
e. | PAH: Total loss incurred or suffered by AZUL Holding; and |
f. | PAT: TRIPs Shareholders Equity Participation based on the economic value of AZUL Holding, to be calculated as per the formula below: |
PAT = ((NON) + (NAPNB * 24.1)) / ((TAON) + (TAPN * 24.1))
e. | NON: Total number of AZUL Holdings New Common Shares; |
f. | NAPNB: Total Number of AZUL Holdings New Class B Preferred Shares; |
g. | TAON: Total number of AZUL Holdings Common Shares; and |
h. | TAPN: Total number of AZUL Holdings Preferred Shares. |
For clarity purposes, the 24.1 factor used in the calculation of the PAT, according to the formula above, reflects the difference of the economic value between the different classes of shares, pursuant to AZUL Holdings Bylaws, in effect on the Date of Execution. Therefore, the Parties undertake, in good faith, to adjust such factor, by approving changes to AZUL Holdings Bylaws that modify the economic value attributed to each class of shares, in order to maintain the economic rationale used in the definition of the PAT.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
(c) Alternative Obligation; Cash Payment. Should AZUL Holding have the obligation to indemnify TRIPs Shareholders, as provided for in Section 8.2.1(a), AZUL Holding may elect to pay in cash to TRIPs Shareholders the balance between (i) the Losses With Cash Outflow of AZUL Holding; and (ii) the Losses With Cash Outflow of TRIP. AZUL Holding shall notify TRIP Shareholders, within 1 (one) day after the determination of the Total Losses of Parties up to the AdjustmentIndemnifications indicating whether they intend to pay indemnities in cash. Should AZUL Holding elects to pay indemnities in cash, subject to the provisions of this Section, it shall pay the indemnities within 1 (one) day after the issuance of the notification set forth in the preceding sentence, it being understood that, upon confirmation of payment, the Subscription Warrants for the Adjustment of Shareholding Original Shareholders shall lose its validity and effectiveness. If such payment is not made within the period specified above, the TRIP Shareholders shall be free to exercise the Subscription Warrants for the Adjustment of Shareholding Original Shareholders.
(d) Indemnifications After the AdjustmentIndemnifications Date. After the AdjustmentIndemnifications Date, the obligations to indemnify of AZUL Holding as provided in Section 8.2, shall be indemnified exclusively in cash, pursuant to Section 8.3 and following, being agreed by and between the Parties, for the avoidance of doubt, that the indemnification procedures set forth in Sections 8.3, 8.4, 8.5, and 8.6 shall apply to Parties only after the AdjustmentIndemnifications Date.
8.2.2 Limitation to Indemnification of AZUL Holding. Notwithstanding anything to the contrary in Section 8.2.1 above, the obligation to indemnify of AZUL Holding for Losses set forth in Section 8.2 above shall remain valid until the [*****] anniversary of this date, extendable for the term of the procedural progress of the Dispute in the event that such Dispute has been initiated within the referred period. For clarity purposes, in the event that a possible Loss, including as a result of Dispute, is either claimed or notified within the period set forth in this Section 8.2.2, AZUL Holding shall remain obligated to indemnify TRIPs Shareholders Indemnifiable Parties as provided for in Section 8.2 if such Loss is disbursed by the relevant AZUL Holdings Indemnifiable Party, even if such disbursement occurs after the expiration of the term referred to herein.
8.3. Indemnification Amount; Survival of Obligation to Indemnify. After the AdjustmentIndemnifications Date, any other indemnification due under this Section VIII shall be paid in cash, net and free of any taxes, so that the Indemnifiable Party is restored to the financial situation immediately prior to the respective Loss.
8.3.1. After the Date of Adjustment Indemnities, within 90 (ninety) days from the end of each fiscal year, the Parties shall define, in good faith, based on information contained in the Excerpt to be furnished by AZUL Holding as set forth in Section 8.4 below, (i) the total amount of Losses With Cash Outflow of TRIPs Shareholders identified in the previous fiscal year, and (ii) the total amount of Losses With Cash Outflow of AZUL Holdings Shareholders identified in the previous fiscal year.
8.3.2. Once the provisions set forth in Section 8.3.1 above have been complied with,
(i) subject to the minimum amount of the Basket (as set forth in Section 8.5 below), should it be verified that the total amount of Losses With Cash Outflow of TRIPs Shareholders is higher than the total amount of Losses With Cash Outflow of AZUL Holdings Shareholders in the fiscal year in question, AZUL Holding shall then make a payment corresponding to the difference between such losses in favor of TRIPs Shareholders, subject to the provision of Section 8.2.1, within [*****] from the end of the fiscal year in question, and
(ii) subject to the minimum amount of the Basket (as set forth in Section 8.5 below), should it be verified that the total amount of Losses With Cash Outflow of TRIPs Shareholders is lower than the total amount of Losses With Cash Outflow of AZUL Holdings Shareholders in the fiscal year in question, TRIPs Shareholders shall then make a payment, severally and in a proportional manner, corresponding to the difference between such losses in favor of AZUL Holdings Indemnified Party or Parties, subject to Section 8.1.1, within [*****] from the end of the fiscal year in question.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
8.4 In order to control, monitor and determine the amount of Losses With Cash Outflow of TRIPs Shareholders and the Losses With Cash Outflow of AZUL Holdings Shareholders occurring throughout the validity term of this Section VIII, AZUL Holding undertakes to, from the Date of Merger, maintain a special memorandum account in the name of TRIPs Shareholders and AZUL Holdings Indemnified Parties (the Memorandum Account).
8.4.1 AZUL Holding undertakes to cause TRIPs Shareholders to receive an excerpt of the Memorandum Account (the Excerpt) (i) on the Date of Adjustment Indemnities, (ii) within 30 (thirty) days from the end of each Fiscal Year, and (iii) within 30 (thirty) days from any date on which any of TRIPs Shareholders requests that an Excerpt be prepared.
8.4.2. The Excerpt shall contain the registration, updated through its date of issuance (or through any other date specified therein), (i) of all Losses With Cash Outflow of TRIPs Shareholders, (ii) of all Losses With Cash Outflow of AZUL Holdings Shareholder, (iii) of all amounts already indemnified by TRIPs Shareholders to AZUL Holdings Indemnified Parties, (iv) of all amounts already indemnified by AZUL Holding to TRIPs Shareholders, and (v) the outstanding balance due to AZUL Holding or TRIPs Shareholders, as the case may be.
8.4.3. AZUL Holding acknowledges that TRIPs Shareholders, by virtue of not necessarily directly participating in the management of AZUL Holding and TRIP, may not be aware of, by themselves, the Losses With Cash Outflow of AZULs Shareholders and the Losses With Cash Outflow of TRIPs Shareholders and, therefore, (i) AZUL Holding agrees to be liable for the correct maintenance of the Memorandum Account and for all information provided in any Excerpt, (ii) AZUL Holding undertakes to provide all information necessary to prove to TRIPs Shareholders the occurrence of all Losses With Cash Outflow of AZULs Shareholders and the Losses With Cash Outflow of TRIPs Shareholders, (iii) TRIPs Shareholders may, whenever deemed necessary, audit the Memorandum Account (by themselves or through an auditing firm retained for such a purpose), in which case AZUL Holding undertakes to cooperate with such audit by providing all explanations necessary and all documents that may be reasonably requested for the carrying out of such audit, and (iv) the indemnity procedures set forth in Sections 8.6 and 8.7 below shall only apply to TRIPs Shareholders in case they are directly (that is, under their own names) involved in any Third Party Claim or Direct Claim.
8.5. Floor; Basket. TRIPs Shareholders and/or AZUL Holdings Shareholders (as applicable) will not be required to indemnify or reimburse the other Party in relation to any isolated Loss that results in indemnity under [*****]. In other words, Losses below such amount shall not be included in the Memorandum Account. Likewise, TRIPs Shareholders and/or AZUL Holdings Shareholders (as applicable) will not be required to pay to the other Party any indemnity amount until the moment when the total amount of indemnity payable by the Indemnifying Party reaches a value equal to or greater than [*****] (the Basket). Once the Basket value is reached, as calculated in accordance with Sections 8.3.2(i) and (ii), the entire value of the Basket shall be indemnified and not just whatever is in excess. On the other hand, if the total value of the Basket is not reached, as calculated in accordance with Sections 8.3.2(i) and (ii), the amount then calculated shall be accrued for purposes of the next calculation to be made pursuant to Section 8.3.2.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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8.6. Indemnification Procedures in Case of Third Party Claims. For purposes of this Section VIII, any and all Dispute presented by third parties, including Governmental Authorities, which may constitute a Loss, shall hereafter be referred to as a Third Party Claim. Third Party Claims in connection to TRIP regarding judicial and administrative proceedings listed in the Exhibits hereof shall be considered as notified on this date to TRIPs Shareholders for payment of any eventual Losses resulting from such, for which the defense shall continue to be conducted as currently conducted by TRIP. Likewise, Third Party Claims in connection to AZUL Holding regarding judicial and administrative proceedings listed in the Exhibits hereof shall continue to be conducted as currently conducted by AZUL Holding.
8.6.1. If a Third Party Claim arises against any Indemnifiable Party, for which either TRIPs Shareholders or AZUL Holding is responsible (the Indemnifying Party), in whole or in part hereunder, any of the Indemnifiable Parties, as the case may be, that becomes aware, by any manner, of such Third Party Claim and/or receive any official letter, notice or subpoena to this effect, shall notify the Indemnifying Party in respect of such Third Party Claim, to the persons and in the form provided in Section 10.1 hereof (Notice of Third Party Claim).
8.6.2. The Notice of Third Party Claim shall be sent before 1/3 (one third) of the period available for the presentation of defense or appropriate relief against such Third Party Claim (Defense) has elapsed.
8.6.3. The Notice of Third Party Claim shall contain, whenever possible, the Indemnifiable Partys estimate of the total amount of Loss pertaining to the Third Party Claim pursuant to terms of this Section 8.6, including fines, interest, fees and other charges necessary for the restoration of the Indemnifiable Party.
8.6.4. The Indemnifying Party shall have the right to assume the Defense of the Third Party Claim, through legal counsel of its choice or through any other person appointed by it, provided it notifies the Indemnifiable Party in writing, as provided in Section 10.1, before half the legal term for the submission of Defense has elapsed. The absence of a written notice from the Indemnifying Party under the terms and periods set forth in this Section 8.6.4 shall be deemed a waiver of its right to assume the Defense.
8.6.5. If the Defense is assumed by the Indemnifying Party:
(i) | the Indemnifying Party may enter into agreements or pay any amount in respect of such Third Party Claim regardless of prior consent in writing of the Indemnifiable Party, provided that such agreement is solely connected to the financial recovery and does not imply recognition of guilt, or adversely affect the reputation of the Indemnifiable Party; |
(ii) | the Indemnifiable Party agrees to promptly provide any and all information and documents relevant and reasonably requested by the Indemnifying Party, and which are within reach of the Indemnifiable Party, including the power of attorney required for the preparation of Defense; and |
(iii) | the Indemnifiable Party shall be entitled to monitor the procedural progress of the Third Party Claim and its respective Defense, and may appoint an attorney in fact to monitor the work being conducted by the Indemnifying Party, the Indemnifiable Party to bear all costs of such monitoring. |
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8.6.6. In the event that the Indemnifiable Party fails to comply with the obligation set forth in Sections 8.6.2 or 8.6.5 (ii), the Indemnifiable Party shall lose the right to be indemnified for its Loss pursuant to terms of this Section VIII, if and only if such noncompliance results in the nonobservance of procedural deadline for the submission of the Defense or otherwise materially harm the Defense.
8.6.7. In the event that the Third Party Claim refers to periods, events or omissions prior to or after the Signing Date, the Defense may only be assumed by the Indemnifying Party if the majority of the obligation object of the Third Party Claim lies under such Partys responsibility, subject to provisions of Sections 8.6.4 and 8.6.5 above. Otherwise, the Defense shall be conducted by the Indemnifiable Party.
8.6.8. Subject to Section 8.6.5 (iii) above, regardless of which Party leads the Defense, the Indemnifying Party shall be responsible for all costs and expenses (to be considered as Indemnifiable Loss under this Section VIII) associated with the Defense of any Third Party Claim that may generate a Loss for which it is responsible, including accountants and experts, administrative and/or judicial fees and administrative and judicial deposits required or necessary to enable the proper conduction and presentation of the Defense, except for reasonable attorneys fees and reasonable related expenses.
8.6.9. The Indemnifying Party shall use its best efforts to hold the Indemnifiable Party, at any time, free from any restrictions and/or lien that may eventually arise from a Third Party Claim, including the obtainment of tax and/or social security and pension certificates by the Indemnifiable Party. In case the Indemnified Party, as a result of a Third Party Claim, is unable to obtain one or more tax and/or social security and pension certificates, the Indemnifying Party shall promptly take all measures within its power, including the filing of applicable lawsuits and/or the provision of full tax credit guarantee, so as to enable the obtainment of such certificates by the Indemnifiable Party. In the event that the Indemnifying Party applies its own resources to guarantee the Third Party Claim, such amount, if released, shall be fully restituted to the Indemnifying Party, adjusted in the same terms of its respective judicial deposit.
8.7. Procedure for Indemnification of Direct Claim. In the case of Losses suffered or incurred by an Indemnifiable Party and which are the responsibility of the Indemnifying Party, pursuant to this Section VIII, for whatever reason which does not constitute a Third Party Claim (Direct Claim), the Indemnified Party shall notify the Indemnifying Party in respect of such Loss suffered or incurred, added, whenever possible, by an estimate of the amount to be indemnified (Notice of Direct Claim).
8.7.1. The Indemnifying Party, within 30 (thirty) calendar days of receipt of the Notice of Direct Claim, shall deliver a written notice to the Indemnified Party stating whether or not it agrees to be liable for the claimed indemnification or whether or not it agrees with the amount of the Indemnifiable Loss presented in such Notice of Direct Claim.
8.7.2. If the Indemnifying Party agrees to be liable for the payment of the referred Loss and agrees with the amount presented in the Notice of Direct Claim, or fails to respond within the period specified above, the Notice of Direct Claim shall then be deemed a notice of Loss for purposes hereof, and the Indemnifying Party shall pay to the Indemnified Party the claimed indemnification pursuant to the terms of this Section VIII.
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CONFIDENTIAL TREATMENT REQUESTED
8.7.3. If the Indemnifying Party declares itself not responsible for the indemnification claimed or disagrees with the amount of Loss presented in the Notice of Direct Claim, the Indemnified Party may refer the matter to the arbitration procedure set forth in Section 10.10 below.
8.8. For clarity purposes, the Parties agree that any Loss resulting from acts or omissions of the management of TRIP or AZUL performed after the Date of Merger shall not be deemed an indemnifiable Loss, and, therefore, shall not be indemnified by any of the Parties under this Section VIII, even if such acts or omissions relate to agreements, arrangement or protocols (convênios) (including, without limitation, protocols (covenio) or agreements executed with States or Municipalities relating to tax benefits) existing prior to the Date of Merger.
SECTION IX
ADDITIONAL OBLIGATIONS
9.1. Non-Competition. [*****].
9.1.1. The obligations of TRIPs Shareholders and Neeleman set forth in Section 9.1 above shall remain valid and effective for a period of [*****] as of the Date of Merger.
9.2. Submission of the Agreement to the Competition Authorities. The Parties shall submit the Operation contemplated hereby for approval by the SBDC, as required by Federal Law No. 8,884/94. The Parties shall coordinate the monitoring of their respective act of concentration before SBDC and shall mutually cooperate throughout the process, including the provision, within the time reasonably required (or at any time, provided that so requested by any of SBDC bodies) of any and all documents and information pertaining to TRIP, AZUL and their industry of operation. The Parties agree to endeavor to meet any requirements or limitations imposed by SBDC bodies for the approval of the legal transactions set forth herein.
9.3. Lock-up. AZUL Holdings New Shares and AZUL Holdings Common Shares held by Neeleman shall not be traded or otherwise Transferred by TRIPs Shareholders and/or Neeleman, as applicable, for a period of [*****], as of the Date of Merger, up to the Completion of the IPO, whichever occurs first (the Lock-Up Period), exclusively in the event of Transfer to competitors of AZUL Holding in the civil aviation sector.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
9.4. TRIPs Employees. After the Date of Merger, the current officers and assistant officers, up to a maximum total of [*****], shall remain employed at TRIP by AZUL Holding (the Current Officers of TRIP). The Current Officers of TRIP shall have the right to retain their positions for up to [*****] from the Date of Merger (the Secured Term of Office). In the event that AZUL Holding replaces any of the Current Officers of TRIP without good cause prior the end of the Secured Term of Office (the Replaced Officer), such Replaced Director shall be entitled to compensation in an amount equivalent to [*****] (the Officers Indemnification). Any severance or indemnification required to be paid in accordance with the Brazilian law, by AZUL Holding to the Replaced Director resulting from the replacement of the latter without good cause, shall be deducted from the Directors Indemnification, so that the total expenditure incurred by AZUL Holding with such replacement does not exceed [*****].
9.4.1. Notwithstanding the provisions of Section 9.4 above, AZUL Holding and TRIP agree to assess, on an ongoing and objective basis, the Current Officers of TRIP, based on technical and objective standards, seeking to define which directors would be able, according to the best understanding of AZUL Holdings management, to remain in their positions after the expiration of the Secured Term of Office.
9.5. Corporate Name and Use of Trademarks. After the Date of Merger, AZUL Holding shall adopt the corporate name AZUL TRIP S.A., provided that, immediately prior to the first filing with CVM in connection with the IPO, the corporate name shall return to AZUL S.A.. Additionally, the Parties agree that, until the completion of the first filing with CVM in connection with the IPO, any (i) use and disclosure of corporate names, trademarks and brandings of AZUL and TRIP to consumers and (ii) definition regarding the marketing policies to be adopted by AZUL and TRIP, in the daily operation of their business, shall be held only if all procedures and guidelines on the subject set forth by the Transition Committee are observed.
9.6. Disclosure of Operation. Any and all disclosure regarding the consummation of the Merger of Shares (i) shall be previously approved in writing by all Parties, and (ii) [*****].
SECTION X
GENERAL PROVISIONS
10.1 Notices. All notices, agreements, waivers and other notices shall be made in writing and delivered personally, by registered mail, courier, or email (in this case, upon confirmation of receipt) to the addresses and phone / fax numbers described in Exhibit 10.1 hereof (or such other address as indicated by a Party to the others).
10.1.1. All notices and other communications to be made with respect hereto shall be deemed delivered on the date of actual receipt or delivery, evidenced by written confirmation of receipt or other proof of actual receipt or delivery to the addresses listed in Exhibit 10.1.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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10.2. Decisions of TRIPs Shareholders. For the purposes of this Agreement and the other Transaction Documents, any and all communications to AZUL Holding, and/or decisions made and notified by TRIP Investimentos shall irrevocably and irreversibly bind all TRIPs Shareholders. Any and all communications to AZUL Holding, and/or decisions made hereunder shall be held jointly by at least a majority of TRIPs Shareholders.
10.3. Expenses. Each Party shall bear its respective expenses, direct or indirect, arising from the negotiation and drafting of this Agreement, as well as the consummation of the Transaction contemplated herein.
10.4. Irrevocability and Irreversibility. This Agreement is entered into by and among the Parties irrevocably and irreversibly.
10.5. Specific Performance. The Parties acknowledge and further agree that indemnities paid in cash may constitute inadequate remedies in the event of breach of any provision hereof. Thus, the fulfillment of any obligations contained herein may be required in specific form by the creditor Party of the obligation, pursuant to terms of Articles 461 et seq. of the Brazilian Civil Procedure Code, and the offending Party shall respond for losses and damages to which it gives rise. This remedy shall not be considered as exclusive remedy for breach hereof, but only as an additional resource to other remedies available.
10.6. Waivers and Amendments. This Agreement may be amended, superseded, canceled, renewed or extended, and its terms may only be waived, by written instrument signed by all Parties hereto or, in case of waiver, by the Party waiving the relevant right. No delay or omission by any Party in the exercise of any right hereunder shall be deemed a waiver of such right or novation, nor prevent the future or subsequent exercise thereof.
10.7. Entire Agreement, Assignment. This Agreement (including its Exhibits) is the sole instrument that governs and regulates the transactions contemplated hereby, and thus, any arrangement, agreement, memorandum, letter or other instrument in connection with this transaction is revoked and void. This Agreement may not be assigned by any of the Parties without the prior consent in writing of the other Parties. This Agreement shall bind and inure to the benefit of the Parties hereto, as well as their respective successors and assignees as may be authorized.
10.8. Confidentiality. The Parties, as well as their counselors, officers, attorneys, employees and consultants, shall keep under confidentiality the existence and content of this Agreement and the Transaction set forth hereunder, as well as the Confidential Information to which they have access as a result of its negotiation.
10.8.1. The confidentiality obligation set forth in Section 10.9 above shall not apply: (a) in connection with that information which is under public knowledge at the time of execution hereof; or (b) when there is a legal obligation of disclosure by law or court decision, in which event the Confidential Information shall be provided only for those persons who, by virtue of such legal or judicial decision, shall receive it; or (c) in relation to the Confidential Information which, although confidential at the date hereof, is made public, by no fault or intent of any of the Parties or third party under confidentiality obligation regarding such Confidential Information.
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CONFIDENTIAL TREATMENT REQUESTED
10.8.2. Any and all disclosure regarding the Transaction shall (i) be approved in advance and in writing by all Parties, and (ii) [*****].
10.8.3. The obligation of confidentiality under this Section 10.9 shall be valid for 2 (two) years as of the Date of Execution hereof.
10.9. Applicable Law. This Agreement shall be governed by and construed in accordance with the Laws of Brazil.
10.10. Conflict Resolution. With the exception of disputes relating to obligations to pay which include judicial enforcement proceedings and that which may require, at the outset, specific execution, all other disputes arising from or connected to this Agreement and its schedules, among others, which pertain to its validity, effectiveness, violation, interpretation, expiration, termination and its consequences, shall be resolved by arbitration, pursuant to Law No. 9.307/96, as amended, upon the conditions that follow.
10.10.1. The dispute shall be submitted to the International Chamber of Commerce (Arbitration Center) in accordance with its regulation (Regulation), effective as of the date of the request for initiation of arbitration. The arbitration shall be conducted in Portuguese.
10.10.2. The place of arbitration shall be the City of São Paulo, State of São Paulo, Brazil, where the arbitral decision shall be rendered, and the arbitrators are not authorized to rule based on equity, except for the settlement of the attorneys fees mentioned in Section
10.11.4 below.
10.10.3. The arbitral tribunal shall comprise three arbitrators, where the applicant(s), on one hand, shall appoint one arbitrator, and the defendant(s), on the other, appoint a second arbitrator, which, by common agreement, shall appoint the third arbitrator who shall act as President of the arbitral tribunal (the Arbitral Tribunal). If either party fails to appoint an arbitrator and/or 2 (two) arbitrators appointed by the Parties fail to appoint the third arbitrator within [*****] from the date set forth for such action, the president of the Arbitration Center shall be responsible for appointing the third arbitrator in the manner set forth in its Regulation.
10.10.4. The Parties agree that the Party upon which the adverse decision is imposed shall pay the fees and expenses incurred with the arbitrators and the Arbitration Center, if otherwise not established in the arbitration decision. The Parties shall bear the costs and fees of their respective attorneys.
10.10.5. Each Party remains entitled to propose in the competent common judgment the legal measures aimed at obtaining precautionary approvals for protection or safeguarding of rights or as preparation prior to the establishment of the Arbitral Tribunal, such action not to be construed as a waiver of arbitration. For the exercise of court protections, the Parties elect the courts sitting in the City of São Paulo, State of São Paulo, as competent jurisdiction, expressly waiving any other, no matter how privileged it may be.
10.10.6. According to article 475-P of the Brazilian Civil Procedure Code, the execution of the judgment shall take place in the judicial district where it was processed (the City of São Paulo, State São Paulo, pursuant to Section 10.11.2 above), the execution creditor being able to legally opt for the location where assets subject to expropriation are located or at the primary residence of the execution debtor. Each Party shall use its best efforts to ensure the expeditious and efficient completion of the arbitration procedures.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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10.10.7 Regardless of the nature of the dispute to be settled through arbitration, all Parties shall participate in it, either as party (when the dispute directly involves it as claimant or counterclaimant), or as interested third party (when it may be, in any way, directly or indirectly affected by decisions to be made in the course or at the end of the procedure). Likewise, the award shall be final and binding on all Parties, regardless of eventual refusal by any Party to participate in the arbitration procedure, either as party or interested third party.
10.11. Waivers. TRIPs Shareholders hereafter, irrevocably and irreversibly, waive (i) the protection provided for in article 264 of the Brazilian Corporations Law with respect to the Merger of Shares; and (ii) the right to withdraw to which they would be entitled in case they dissented from the Merger of Shares, pursuant to articles 252 and 137 of the Brazilian Corporations Law.
10.12 Taxes. Unless otherwise provided for herein, each Party shall be responsible for paying any Tax for which, by law, it is responsible in connection with the Transaction contemplated hereby.
10.13. Severability. Any terms or provisions hereof which are declared invalid or unenforceable shall be deemed ineffective only to the extent of such invalidity or unenforceability, without rendering invalid or unenforceable the remaining terms and provisions of the referred Section and/or this Agreement.
10.14. Joint Liability. Any and all obligations undertaken by TRIPs Shareholders under this Agreement and the Transaction Documents are undertaken by them, in an irrevocable and irreversible manner, with no joint liability, but limited to the percentage that each one holds in the capital stock of AZUL Holding (excluding the equity participation of the other shareholders).
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10.15. Termination of Code Share. Considering that AZUL and TRIP filed with ANAC a request to code share flights among the companies (Code Share), the Parties agree that, if the Transaction is not consummated as a result of ANAC non-approval, the agreement pursuant to which the Code Share was formalized (the Code Share Agreement) shall be automatically terminated without penalty. In this case, all acts seeking to reestablish the financial and economic position of the Parties before the execution of the Code Share Agreement shall be taken by the Parties as if the Code Share Agreement had not been entered, it being agreed that: (i) all revenues that would otherwise be allocated to AZUL and TRIP if the Code Share Agreement had not been entered shall be returned to AZUL or TRIP, as the case may be, within 10 (ten) days as of the termination of the Code Share Agreement, including, without limitation, the revenues relating to fly tickets effectively used or not and those relating to rescheduling and cancelation fees, discounted from the operational expenses and Interline Service Charge (as defined in the Code Share Agreement) incurred by AZUL or TRIP as a result of administrative proceedings associated with the rescheduling or cancelling of flights; (ii) in relation to revenues of flights tickets of performed and non-performed flights, it is agreed that the revenues shall be divided between TRIP and AZUL according to the Code Share Agreement, but it shall also be returned to TRIP or AZUL, as the case may be, within 10 (ten) days as of the termination of the Code Share Agreement, discounted from the operational expenses and Interline Service Charge (as defined in Annex 2 of the Code Share Agreement) incurred by AZUL or TRIP as a result of the sale, rescheduling and cancelation of the flight object of the Code Share Agreement, and (iii) the provisions of this Section 10.15 shall prevail over the provisions of the Code Share Agreement.
10.16. Financial Resources Transfers to TRIP. Considering that, from the date hereof until the issuance of ANACs Approval, AZUL Holding and/or AZUL may transfer the financial resources to TRIP (Resources Onlending to TRIP after ANACs Approval), it is agreed among the Parties and the Intervening Consenting that, to extent that the Transaction is not approved by ANAC, the wholeness of the Resources Onlending to TRIP after ANACs Approval shall be refunded to AZUL Holding or AZUL, after the consummation of the adjustment set forth in Section 10.15, according to which the corresponding net amount is transferred to AZUL Holding or AZUL within ten (10) days as of the date in which the non approval of the Transaction by ANAC is consummated.
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Execution Version
SECOND AMENDMENT TO
INVESTMENT AGREEMENT
between, on one side,
TRIP PARTICIPAÇÕES S.A.,
TRIP INVESTIMENTOS LTDA., and
RIO NOVO LOCAÇÕES LTDA.
and on the other side,
AZUL S.A.
and, as consenting and intervening parties,
AZUL LINHAS AÉREAS BRASILEIRAS S.A.
TRIP LINHAS AÉREAS S.A., and
GARY DAVID NEELEMAN
DATED DECEMBER 27, 2013
SECOND AMENDMENT TO INVESTMENT AGREEMENT
This Second Amendment to Investment Agreement is entered into, on December 27, 2013, by and among the following parties:
On one side,
(a) | TRIP PARTICIPAÇÕES S.A., a corporation with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 09.229.532/0001-70, herein represented by its undersigned legal representatives (TRIP Participações); |
(b) | TRIP INVESTIMENTOS LTDA., a limited liability company with head office in the City of Campinas, State of São Paulo, at Avenida Cambacicas, 1200, Parque Imperador, Condomínio Flex Buildings, Módulo 2, CEP 13097-104, registered as taxpayer under CNPJ/MF No. 15.300.240/0001-89, herein represented by its undersigned legal representatives (TRIP Investimentos); and |
(c) | RIO NOVO LOCAÇÕES LTDA., a limited liability company with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 6.3, Suite 208, CEP 29157-405, registered as taxpayer under CNPJ/MF No. 04.373.710/0001-18, herein represented by its undersigned legal representatives (Rio Novo and, together with TRIP Participações and TRIP Investimentos, TRIPs Shareholders); and |
On the other side,
(d) | AZUL S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, 939, 8th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 09.305.9994/0001-29, herein represented by its undersigned legal representatives (AZUL Holding and, together with TRIPs Shareholders, the Parties, and each of them, individually, a Party), |
And, in the capacity of intervening and consenting parties (the Intervening and Consenting Parties):
(e) | AZUL LINHAS AÉREAS BRASILEIRAS S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, 939, 8th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 09.296.295/0001-60, herein represented by its undersigned legal representatives (AZUL); |
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(f) | TRIP LINHAS AÉREAS S.A., a corporation with head office in the City of Campinas, State of São Paulo, at Avenida Cambacicas, 1200, Parque Imperador, CEP 13097-104, registered as taxpayer under CNPJ/MF No. 02.428.624/0001-30, herein represented by its undersigned legal representatives (TRIP); and |
(g) | DAVID GARY NEELEMAN, Brazilian, married, bearer of Identification Card RG No. 53.031.273-6 SSP/SP and registered as taxpayer under CPF/MF No. 744.573.731-68 (Neeleman), herein represented by his undersigned attorney- in-fact. |
PREAMBLE
A. WHEREAS on May 25, 2012, the Parties and the Intervening and Consenting Parties signed an Investment Agreement (the Original Investment Agreement), whereby it was agreed that, subject to the terms and conditions of the Original Investment Agreement, all TRIPs Shares (as defined in the Original Investment Agreement) would be merged into AZUL Holding, with the subsequent delivery of the new shares issued by AZUL Holding to TRIPs Shareholders, without the winding up of TRIP, according to the provisions of Article 252 of Federal Law No. 6,404, of December 15, 1976;
B. WHEREAS, on August 15, 2012, the Parties and the Intervening and Consenting Parties signed the First Amendment to the Original Investment Agreement, (the First Amendment, such Original Investment Agreement, as amended by the First Amendment, hereafter simply referred to as the Investment Agreement), whereby certain terms and conditions of the Original Investment Agreement were amended. Such Original Investment Agreement was restated and became effective with the wording provided for in Exhibit I to the First Amendment;
C. WHEREAS, pursuant to the Investment Agreement, TRIPs Shareholders received 30.7% (thirty point seven percent) of the total shares of AZUL Holding, that is, 1,231,343 (one million, two hundred and thirty-one thousand, three hundred and forty-three) common shares, corresponding to 33% (thirty-three percent) of the total common shares, and 553,627 (five hundred and fifty-three thousand, six hundred and twenty-seven) Class B preferred shares (subsequently converted into a single class of preferred shares, as explained below), corresponding to 28.2% (twenty-eight point two percent) of the total Class B preferred shares (and such shares are referred to hereinafter as AZUL Holdings New Shares, pursuant to the provisions of the Investment Agreement);
D. WHEREAS Section VI of the Investment Agreement provides for the Adjustment to the Initial Exchange Ratio, whereby the Parties agreed that, on (and from) the Date of Merger, AZUL Holdings New Shares issued to TRIPs Shareholders would represent 27% (twenty-seven percent) of the economic value of AZUL Holding, and such equity interest could potentially be increased to up to 33% (thirty-three percent) of the economic value of AZUL Holding, depending on the Pre-Money Valuation (as defined in the Investment Agreement), on the pricing date of its IPO;
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E. WHEREAS on March 22, 2013, AZUL Holding modified its shareholding structure in order to enable its initial public offering of shares (the Shareholding Restructuring), whereby (1) a split of shares was carried out, and (2) all former Class A and Class B preferred shares issued by AZUL Holding were converted into a single and exclusive class of preferred shares (hereafter simply referred to as AZUL Holdings Preferred Shares Post-Shareholding Restructuring). The equity interest held by the Original Shareholders and TRIPs Shareholders in AZUL Holding remained unchanged, in percentage terms, as well as the economic value attached to such equity interests, as determined in accordance with Exhibit A hereto; and
F. WHEREAS, on December 23, 2013, AZUL Holding carried out a private placement whereby it received a capital contribution from shareholders and other new investors (who, by reason of such contribution, also became shareholders of AZUL Holding) (the Private Placement), which resulted in (1) a change (1.a) of the equity interests held by each of the Original Shareholders and TRIPs Shareholders in AZUL Holding, as well as (1.b_ the economic value attached to such equity interests, all in accordance with the provisions of Exhibit B hereto; (2) the conversion of all AZUL Holdings Preferred Shares Post-Shareholding Restructuring into Class A preferred shares issued by AZUL Holding (the AZUL Holdings Class A Preferred SharesPost-Private Placement); and (3) creation of Class B preferred shares of AZUL Holding (the AZUL Holdings Class B Preferred Shares Post-Private Placement, which, together with the AZUL Holdings Class A Preferred Shares Post-Private Placement, are referred to herein as AZUL Holdings Preferred Shares Post-Private Placement), it being understood that, for the purposes of the investments made in the context of the Private Placement, only the AZUL Holdings Class B Preferred Shares Post-Private Placement have been issued and fully paid in by the shareholders and/or participating investors; and
G. WHEREAS, on the date hereof, the Parties wish to change how the adjustment of the initial exchange ratio shall be made and provide that, on the Date of Adjustment Shareholding (as defined below), TRIPs Shareholders shall be entitled to subscribe for and pay in, through the exercise of a specific subscription warrant for this purpose, 3,838,906 (three million, eight hundred thirty-eight thousand, nine hundred and six) new AZUL Holdings Class A Preferred Shares Post-Private Placement (or any other preferred shares issued by AZUL Holding whose relevant class, at the time of the exercise of the subscription warrant, presents the same rights and privileges currently attributed to the AZUL Holdings Class A Preferred Shares Post-Private Placement) to cause TRIPs Shareholders to hold, jointly and on a prorated basis in relation to their current equity interests in AZUL Holdings share capital, approximately 29.99% (twenty-nine point ninety-nine percent) of the shares representing the total economic value of AZUL Holding (such economic value shall be calculated in accordance with the mechanisms and principles set out in Exhibit 6.1(A) to the Investment Agreement), notwithstanding any further shareholding adjustments resulting from amounts due as indemnification between the Parties, as established in Section VIII of the Investment Agreement,
4
NOW, THEREFORE, THE PARTIES, together with the Intervening and Consenting Parties, have decided to sign this Second Amendment to Investment Agreement (the Second Amendment), which shall be governed by the following provisions:
SECTION I
AMENDMENTS
1.1. The following defined terms referred to in Section 1.1 of the Investment Agreement are hereby modified and shall become effective based on the following new wording:
Deadline means August 6, 2014.
Pre-Money Valuation means the pre-money valuation of AZUL Holding at the time of pricing of its IPO, which shall be calculated as follows: (i) total number of shares issued by AZUL Holding immediately prior to the IPO, multiplied by (ii) the price per shares established in the pricing of the IPO, taking into account, at the time of calculation, the difference of the economic values attributed to the preferred and common shares issued by AZUL Holding, pursuant to the principles and assumptions set out in Exhibit 6.1(A) of the Investment Agreement.
1.2. The following terms are hereby included in the definitions of Section 1.1 of the Investment Agreement and will be in effect pursuant to the wording below:
AZIL Holdings Preferred Shares Post-Private Placement means the AZUL Holdings Class A Preferred Shares Post-Private Placement and the AZUL Holdings Class B Preferred Shares.
AZUL Holdings Preferred Shares Post-Shareholding Restructuring means the single class of preferred shares issued by AZUL Holding which came to exist following the Extraordinary Shareholders Meeting held on March 22, 2013.
AZUL Holdings Class A Preferred Shares Post-Private Placement means the AZUL Holdings Class A preferred shares, as issued immediately following the Private Placement.
AZUL Holdings Class B Preferred Shares Post-Private Placement means the AZUL Holdings Class B preferred shares, as issued immediately following the Private Placement.
AGE for Issuance of New Subscription Warrants has the meaning ascribed to it in Section 6.2.
TRIPs Shareholders Subscription Warrant Shareholding Adjustment has the meaning ascribed to it in Section 6.2.
5
Date of Adjustment Shareholding means December 30, 2013.
IPO means the initial public offering of shares of AZUL Holding Initial Public Offering.
Private Placement means the private placement of shares carried out by AZUL Holding on December 23, 2013.
Shareholding Restructuring means the shareholding restructuring of AZUL Holding, as per the Extraordinary Shareholders Meeting held on March 22, 2013.
1.3. Pursuant to this Second Amendment, and in view of the Shareholding Restructuring and the Private Placement, any and all references, in the Investment Agreement, to (i) AZUL Holdings Class A Preferred Shares, (ii) AZUL Holdings Class B Preferred Shares, (iii) AZUL Holdings New Class B Preferred Shares, (iv) AZUL Holdings New Shares, (v) Class B Preferred Shareholders, and/or, in general, (vii) class B preferred shares, shall mean, according to the context and to the extent applicable, a reference to AZUL Holdings Preferred Shares Post-Private Placement (as defined in the Preamble of this Second Amendment), and/or the holders of AZUL Holdings Preferred Shares Post-Private Placement, as applicable.
1.4. Exhibit 6.1(B) and Sections 6.1.1, 6.1.2, 6.1.3, and 6.2 of the Investment Agreement are hereby excluded therefrom, and will no longer have any effect.
1.5. In light of (i) the exclusions set forth in Section 1.4 above, (ii) the implementation of the Shareholding Restructuring, and (iii) the need to adjust the equity interests held by AZUL Holdings shareholders, the Parties hereby decide to amend Section 6.1 of the Investment Agreement, which shall be in effect pursuant to the following new wording:
6.1. Adjustment to the Exchange Ratio Immediately Prior to the IPO. Following the Date of Merger and subsequent to the implementation of the Shareholding Restructuring and the Private Placement, TRIPs Shareholders shall became holders of 31.88% (thirty-one point eighty-eight percent) of the total shares issued by AZUL Holding, that is, 153,279,210 (one hundred fifty-three million, two hundred seventy-nine thousand, two hundred and ten) common shares, equivalent to 33% (thirty-three percent) of the total shares, and 22,145,080 (twenty-two million, one hundred and forty-five thousand and eighty) AZUL Holdings Class A Preferred Shares Post-Private Placement, equivalent to 26.55% (twenty-six point fifty-five percent) of all AZUL Holdings Class A Preferred Shares Post-Private Placement. According to the terms and conditions of this Agreement, and upon the exercise of the TRIPs Shareholders Subscription Warrants for Shareholding Adjustment (as defined and issued pursuant to Section 6.2 below), the percentage of AZUL Holdings Class A Preferred Shares Post-Private Placement held by TRIPs Shareholders may be increased, so that TRIPs Shareholders may hold, from the date of subscription of
6
CONFIDENTIAL TREATMENT REQUESTED
the new AZUL Holdings Class A Preferred Shares Post-Private Placement (or any other preferred shares issued by AZUL Holding whose respective class, at the time of the exercise of the subscription warrant, presents the same rights and privileges currently attributed to AZUL Holdings Class A Preferred Shares Post-Private Placement), 25,983,986 (twenty-five million, nine hundred eighty-three thousand, nine hundred eighty-six) shares issued by AZUL Holding (including common and preferred shares) which jointly represent approximately 29.99% (twenty-nine point ninety-nine percent) of the total economic value of AZUL Holding. For clarification purposes, the common shares issued by AZUL Holding have an economic value different from that of AZUL Holdings Preferred Shares Post-Private Placement. Based on this assumption, and notwithstanding the effective equity interest held by each Party in AZUL Holdings share capital, the Parties agree that the shares held by TRIPs Shareholders represent 26.99% (twenty-six point ninety-nine percent) of the total economic value of AZUL Holding, and this equity interest may be increase to 29.99% (twenty-nine point ninety-nine percent) of the economic value of AZUL Holding, depending on the exercise by the TRIPs Shareholders of the Subscription Warrants for Shareholding Adjustment (as defined and issued in accordance with Section 6.2 below), it being understood that, for the purposes of such economic value percentage calculation, all mechanisms and principles established in Exhibit 6.1(A) of the Investment Agreement have been observed.
1.6. A new Section 6.2 is hereby inserted in the Investment Agreement, which shall be in force in accordance with the following wording:
6.2. TRIPs Shareholders Subscription Warrant Shareholding Adjustment. The Parties agree to call an Extraordinary Shareholders Meeting of AZUL Holding (the AGE for the Issuance of New Subscription Warrants), whose meeting agenda will contain, among other matters of interest to the shareholders, the approval of the issuance of a subscription warrant by AZUL Holding, for a subscription price of R$ [*****] Brazilian Reais), exercisable by TRIPs Shareholders at any time, until the Date of AdjustmentShareholding. The subscription warrant will be issued by AZUL Holding in favor of TRIPs Shareholders, pursuant to the form attached hereto as Exhibit6.2 (the TRIPs Shareholders Subscription Warrant Shareholding Adjustment, which together with the TRIPs Shareholders Subscription Warrant Indemnification Adjustment, will hereafter be referred to as Subscription Warrants for Shareholding AdjustmentTRIPs Shareholders), in order to ensure that TRIPs Shareholders will receive from AZUL Holding, through the exercise thereof, 3,838,906 (three million, eight hundred thirty-eight thousand, nine hundred and six) AZUL Holdings Class A Preferred Shares Post-Private Placement (or any other preferred shares issued by AZUL Holding whose respective class, at the time of the exercise of the subscription warrant, presents the same rights and privileges currently attributed to AZUL Holdings Class A Preferred Shares Post-Private Placement), in order to fulfill the obligation to increase the TRIPs Shareholders equity interest to 29.99% (twenty-nine point ninety-nine percent) of
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
7
AZUL Holdings economic value, pursuant to Section 6.1 above. The Parties shall issue the Subscription Warrants for Shareholding Adjustment TRIPs Shareholders so that the Original Shareholders and the new shareholders admitted as a result of the Private Placement will waive, on behalf of TRIPs Shareholders, their preemptive right in relation to the aforesaid subscription warrant. From the issuance of the Subscription Warrants for Shareholding Adjustment TRIPs Shareholders, all obligations set forth in Sections VI and VII of this Agreement shall no longer be enforced against the shareholders holding AZUL Holdings Preferred Shares Post-Private Placement, and TRIPs Shareholders shall use the Subscription Warrants for Shareholding Adjustment TRIPs Shareholders to consummate the transactions described in Sections VI and VIII.
1.7. Immediately after the exercise of the new TRIPs Shareholders Subscription Warrant Shareholding Adjustment, as issued pursuant to Sections 6.1 and 6.2 of the Investment Agreement, the equity interest of TRIPs Shareholders in AZUL Holding shall be that set forth in Exhibit C to this Second Amendment.
1.8. Exhibit 6.2 to the Investment Agreement is hereby included and shall contain the form to be used for the Subscription Warrants for Shareholding Adjustment TRIPs Shareholders. The new Exhibit 6.2 to the Investment Agreement is made available in the form attached hereto as Exhibit D to this Second Amendment.
1.9. Section 6.3 of the Investment Agreement is hereby amended and shall come into effect based on the following new wording:
6.3. Dilution Events. Notwithstanding anything to the contrary set forth herein, in case TRIPs Shareholders, the Original Shareholders and the new shareholders admitted as a result of the Private Placement do not follow, in whole or in part, any capital increase transaction of AZUL Holding between the date of issuance of the TRIPs Shareholders Subscription Warrant Shareholding Adjustment and the Date of Adjustment Shareholding, the number of AZUL Holdings Class A Preferred Shares Post-Private Placement (or any other preferred shares issued by AZUL Holding whose respective class, at the time of the exercise of the subscription warrant, presents the same rights and privileges currently attributed to AZUL Holdings Class A Preferred Shares Post-Private Placement), as set forth in Sections 6.1 and 6.2, that TRIPs Shareholders will subscribe for and pay in shall be redefined in accordance with the actual variation in the equity interest of TRIPs Shareholders, the Original Shareholders and/or the new shareholders admitted as a result of the Private Placement, as the case may be, keeping the adjustment mechanics set forth in Section 6.1 hereof, and further subject to any additional variation in the equity interest of TRIPs Shareholders as a result of the provisions of Section VIII.
1.10. Section 8.1.1 of the Investment Agreement is hereby amended and shall be in effect with the following new wording:
8
8.1.1. Indemnification Methodologies of TRIPs Shareholders Prior to the Adjustment Indemnifications Date. The Parties agree that the obligations to indemnify of TRIPs Shareholders, as provided for in Section 8.1 above, shall follow the different mechanisms of payment and/or compensation, which will vary between the period (i) prior to the consummation of the IPO (inclusive) and/or Deadline, whichever occurs first (the AdjustmentIndemnificationsDate); (ii) immediately following the Adjustment Indemnifications Date.
1.11. Item (i) of letter (a) of Section 8.1.1 of the Investment Agreement is hereby modified and shall become effective in accordance with the following new wording:
(i) | Subject to the provisions of Section 8.5, up to the AdjustmentIndemnifications Date, the Parties shall determine in good faith the total amount of Losses indemnifiable by TRIPs Shareholders, as provided in Section 8.1 and updated by the CDI, which effectively generated a cash outflow on the part of the AZUL Holdings Indemnifiable Parties within the period between the Date of Execution and the AdjustmentIndemnifications Date (the Losses With Cash Outflow of AZUL Holding). Conversely, the Parties shall in good faith determine the total amount of losses indemnifiable by AZUL Holding, as provided in Section 8.2 below and updated by the CDI, which effectively generated a cash outflow on the part of TRIPs Shareholders Indemnifiable Parties within the period between the Date of Execution and the AdjustmentIndemnifications Date (the Losses With Cash Outflow of TRIPs Shareholders). The sum of Losses With Cash Outflow of AZUL Holding and Losses With Cash Outflow of TRIPs Shareholders are referred to as the Total Losses of Parties up to the AdjustmentIndemnifications Date. In the event that the Total Losses of Parties up to the Adjustment Indemnifications Date are positive in favor of AZUL Holdings Indemnifiable Parties (that is, the Losses With Cash Outflow of AZUL Holding do not overcome the Losses With Cash Outflow of TRIPs Shareholders), then the Original Shareholders shall have the right to exercise, within 4 (four) days from the determination of the Total Losses of Parties up to the Adjustment Indemnifications Date, the Subscription Warrants for Shareholding Adjustment Original Shareholders, so that they shall receive, on a prorated basis and proportionally to their stake in the share capital of AZUL Holding, a number of AZUL Holdings Class A Preferred Shares Post-Private Placement (or any other preferred shares issued by AZUL Holding whose respective class, at the time of the exercise of the subscription warrant, presents the same rights and privileges currently attributed to AZUL Holdings Class A Preferred Shares Post-Private Placement), determined as per the formula set forth below: |
ARP = (PPIAH PPIAT) / VPAPI
9
CONFIDENTIAL TREATMENT REQUESTED
a. | ARP: Total number of AZUL Holdings Class A Preferred Shares Post-Private Placement (or any other preferred shares bearing rights and privileges that are equivalent to those of the current AZUL Holdings Class A Preferred Shares Post-Private Placement) to be issued within 4 (four) days from the Adjustment Indemnifications Date by AZUL Holding as a result of the exercise of the Subscription Warrants for Shareholding Adjustment Original Shareholders; |
b. | PPIAH: Total amount of Losses With Cash Outflow of AZUL Holding as of the Adjustment Indemnifications Date, updated by the CDI, subject to Section 8.1.1(b); |
c. | PPIAT: Total amount of Losses With Cash Outflow of TRIPs Shareholders as of the Adjustment Indemnifications Date, updated by the CDI; and |
d. | VPAPI: Individual amount of each preferred share, calculated as follows: (I) Pre-Money Valuation amount in Brazilian Reais (as defined in Section 1.1), exclusively attributable to the preferred shares issued by AZUL Holding, according to the Conversion Rate of the pricing day of the IPO, less (II) [*****] corresponding to the capital contribution made in AZUL Holding in view of the settlement of the Private Placement, duly adjusted for inflation based on the CDI, being the product of the subtraction between (I) and (II) divided by the difference between (i) the total number of preferred shares issued by AZUL Holding immediately prior to the IPO, minus (ii) the number of preferred shares issued as a result of the Private Placement until the date of the IPO. Notwithstanding the foregoing, should the IPO not occur until the Deadline (there not being, therefore, the Pre-Money Valuation), the amount corresponding the subtraction of items (I) and (II) above shall be the portion attributable to the preferred shares issued by AZUL Holding of the amount corresponding to US$ [*****]. |
1.12. Item (i) of letter (a) of Section 8.2.1 of the Investment Agreement is hereby modified and shall become effective based on the following new wording:
Subject to Sections 8.2.1(b) and 8.5, up to the Adjustment Indemnifications Date, the Parties shall determine in good faith the total amount of Losses with Cash Outflow of TRIPs Shareholders. Conversely, the Parties shall in good faith determine the total amount of Losses with Cash Outflow of AZUL Holding. In the event that the Total Losses of Parties up to the Adjustment Indemnifications Date are positive in favor of TRIPs Shareholders Indemnifiable Parties (that is, the Losses With Cash Outflow of TRIPs
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
10
CONFIDENTIAL TREATMENT REQUESTED
Shareholders do not overcome the Losses With Cash Outflow of AZUL Holding), then TRIPs Shareholders shall have the right to exercise within 4 (four) days from the determination of the Total Losses of Parties up to the Adjustment Indemnifications Date, the TRIPs Shareholders Subscription Warrant Indemnification Adjustment, so that they shall receive, on a prorated basis and proportionally to their stake in the share capital of AZUL Holding, a number of AZUL Holdings Class A Preferred Shares Post-Private Placement (or any other preferred shares issued by AZUL Holding whose respective class, at the time of the exercise of the subscription warrant, presents the same rights and privileges currently attributed to AZUL Holdings Class A Preferred Shares Post-Private Placement), determined as per the formula set forth below:
ARP = (PPIAT PPIAH) / VPAPI
a. | ARP: Total number of AZUL Holdings Class A Preferred Shares Post-Private Placement (or any other preferred shares whose rights and privileges are equivalent to those of the current AZUL Holdings Class A Preferred Shares Post-Private Placement) to be issued within 4 (four) days from the Adjustment Indemnifications Date, by AZUL Holding, as a result of the exercise of the TRIPs Shareholders Subscription Warrant Indemnification Adjustment. |
b. | PPIAH: Total amount of Losses With Cash Outflow of AZUL Holding as of the Adjustment Indemnifications Date, updated by the CDI; |
c. | PPIAT: Total amount of Losses With Cash Outflow of TRIPs Shareholders as of the Adjustment Indemnifications Date, updated by the CDI, subject to the provisions of Section 8.2.1(c); and |
d. | VPAPI: Individual amount of each preferred share, calculated as follows: (I) Pre-Money Valuation amount in Brazilian Reais (as defined in Section 1.1), exclusively attributable to the preferred shares issued by AZUL Holding, according to the Conversion Rate of the pricing day of the IPO, less (II) [*****] corresponding to the capital contribution made in AZUL Holding in view of the settlement of the Private Placement, duly adjusted for inflation based on the CDI, being the product of the subtraction between (I) and (II) divided by the difference between (i) the total number of preferred shares issued by AZUL Holding immediately prior to the IPO, minus (ii) the number of preferred shares issued as a result of the Private Placement until the date of the IPO. Notwithstanding the foregoing, should the IPO not occur until the Deadline (there not being, therefore, the Pre-Money Valuation), the amount corresponding the subtraction of items (I) and (II) above shall be the portion attributable to the preferred shares issued by AZUL Holding of the amount corresponding to US$ [*****] US Dollars). |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
11
1.13. Due to the adjustments implemented under Sections 1.11 and 1.12 of this Second Amendment, as well as the implementation of Shareholding Restructuring and the Private Placement, the Parties hereby decide to cancel, pursuant to Section 2.1 of this Second Amendment, the TRIPs Shareholders Subscription Warrants Indemnification Adjustment and the Subscription Warrants for Shareholding Adjustment Original Shareholders, as issued on August 15, 2012, by AZUL Holding. However, the Parties hereby decide, in the AGE for the Issuance of the New Subscription Warrants (pursuant to the newly created Section 6.2 of the Investment Agreement as provided for in Section 1.6 of this Second Amendment), to approve again the issuance of such subscription warrants, to the benefit of each of such shareholders, subject to the forms included in Exhibits D and E to this Second Amendment.
1.14. Exhibit 10.1 to the Investment Agreement is hereby amended and shall become effective as per Exhibit G to this Second Amendment.
1.15. Effectiveness of this Second Amendment. For all legal purposes, the new terms and conditions set forth in this Second Amendment shall become effective on the date hereof. The parties undertake to (1) hold the AGE for the Issuance of the New Subscription Warrants (under the newly created Section 6.2 of the Investment Agreement as provided for in Section 1.7 of this Second Amendment), on December 30, 2013; and (2) cause AZUL Holding to issue: (i) TRIPs Shareholders Subscription Warrants Shareholding Adjustment, as per Exhibit D, (ii) the new TRIPs Shareholders Subscription Warrants Indemnification Adjustment, as per Exhibit E, and (iii) the new Subscription Warrants for Shareholding Adjustment Original Shareholders, as per Exhibit F.
SECTION II
FINAL PROVISIONS
2.1. On the date of the AGE for the Issuance of the New Subscription Warrants, and through the issuance of the new subscription warrants set forth in accordance with Exhibits C, D, and E, AZUL Holdings Board of Executive Officers shall sign the Cancelation Instrument of TRIPs Shareholders Subscription Warrants Indemnification Adjustment, as issued on August 15, 2012), the Cancelation Instrument of the Subscription Warrant Pre-Money Valuation Adjustment (as issued on August 15, 2012), and the Cancelation Instrument of the Subscription Warrants for Shareholding Adjustment Original Shareholders (as issued on August 15, 2012), so that such subscription warrants shall no longer be valid or enforceable. AZUL Holding, the Original Shareholders and TRIPs Shareholders undertake (and cause the new shareholders admitted as a result of the Private Placement to undertake) to take all necessary actions and to cause AZUL Holdings management to approve and sign the said subscription warrant cancelation instruments, provided that the new subscription warrants are issued in accordance with the provisions of this Second Amendment.
12
2.2. The Parties undertake and ratify all other provisions of the Investment Agreement that have not been expressly modified by this Second Amendment.
2.3. Irrespective of the terms of the Investment Agreement that have been excluded by this Second Amendment, the terms that were defined in the excluded sections and that are used in other sections shall remain in full force and effect.
2.4. The sections containing references to the sections that have been excluded from the Investment Agreement by this Second Amendment will not lose their effect and validity as a result of these exclusions, and shall be construed in accordance with the closest possible meaning to that which they had prior to these exclusions.
2.5. Unless expressly stated otherwise in this Second Amendment, the capitalized words and expressions shall have the meanings ascribed to them in the Investment Agreement.
2.6. The numbers of the sections and provisions contained in the Investment Agreement are not amended as a result of the exclusions made in this Second Amendment of any provision thereof.
2.7. This Second Amendment shall be governed by and construed in accordance with the laws of the Federative Republic of Brazil.
2.8. Conflict Resolution. With the exception of disputes relating to obligations to pay which include judicial enforcement proceedings and that which may require, at the outset, specific execution, all other disputes arising from or connected to this Agreement and its schedules, among others, which pertain to its validity, effectiveness, violation, interpretation, expiration, termination and its consequences, shall be resolved by arbitration, pursuant to Law No. 9.307/96, as amended, upon the conditions that follow.
2.8.1. The dispute shall be submitted to the International Chamber of Commerce (Arbitration Center) in accordance with its regulation (Regulation), effective as of the date of the request for initiation of arbitration. The arbitration shall be conducted in Portuguese.
2.8.2. The place of arbitration shall be the City São Paulo, State of São Paulo, Brazil, where the arbitral decision shall be rendered, and the arbitrators are not authorized to rule based on equity.
2.8.3. The arbitral tribunal shall comprise three arbitrators registered in the Brazilian Bar Association, where the applicant(s), on one hand, shall appoint one arbitrator, and the defendant(s), on the other, appoint a second arbitrator, which, by common agreement, shall appoint the third arbitrator who shall act as President of the arbitral tribunal (Arbitral Tribunal). If either party fails to appoint an arbitrator and/or 2 (two) arbitrators appointed by the Parties fail to appoint the
13
CONFIDENTIAL TREATMENT REQUESTED
third arbitrator within [*****] from the date set forth for such action, the president of the Arbitration Center shall be responsible for appointing the third arbitrator in the manner set forth in its Regulation.
2.8.4. The Parties agree that the Party upon which the adverse decision is imposed shall pay the fees and expenses incurred with the arbitrators and the Arbitration Center, if otherwise not established in the arbitration decision. The Parties shall bear the costs and fees of their respective attorneys.
2.8.5. Each Party remains entitled to propose in the competent common judgment the legal measures aimed at obtaining precautionary approvals for protection or safeguarding of rights or as preparation prior to the establishment of the Arbitral Tribunal, such action not to be construed as a waiver of arbitration. For the exercise of court protections, the Parties elect the courts sitting in the City of São Paulo, State of São Paulo, as competent jurisdiction, expressly waiving any other, no matter how privileged it may be. After the initiation of the Arbitral Tribunal, such measures shall be directed to the Arbitral Tribunal.
2.8.6. According to art. 475-P of the Brazilian Civil Procedure Code, the execution of the judgment shall take place in the judicial district it was processed (the City of São Paulo, State São Paulo), the execution creditor being able to legally opt for the location where assets subject to expropriation are located or at the primary residence of the execution debtor. Each Party shall use its best efforts to ensure the expeditious and efficient completion of the arbitration proceedings.
2.8.7 Regardless of the nature of the dispute to be settled through arbitration, all Parties shall participate in it, either as party (when the dispute directly involves it as claimant or counterclaimant), or as interested third party (when it may be, in any way, directly or indirectly affected by decisions to be made in the course or at the end of the procedure). Likewise, the award shall be final and binding on all Parties, regardless of eventual refusal by any Party to participate in the arbitration procedure, either as party or interested third party.
IN WITNESS WHEREOF, the Parties have caused this Second Amendment to be signed in eight (8) original counterparts of equal content and form, in the presence of the two (2) undersigned witnesses.
São Paulo, December 27, 2013.
(Remainder of page intentionally left blank)
(Signatures follow on next page)
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
14
(Signature page 1 of 2 of the Second Amendment to Investment Agreement dated December 27, 2013, by and among TRIP Participações S.A., TRIP Investimentos S.A., Rio Novo Locações Ltda., AZUL S.A., and further, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A., and Neeleman)
TRIP PARTICIPAÇÕES S.A. | ||||
[illegible] |
||||
Name: | ||||
Title: | ||||
TRIP INVESTIMENTOS LTDA. | ||||
[illegible] |
||||
Name: | ||||
Title: | ||||
RIO NOVO LOCAÇÕES LTDA. | ||||
[illegible] |
||||
Name: | ||||
Title: | ||||
AZUL S.A. | ||||
/s/ Renato Covelo |
||||
Name: Renato Covelo |
||||
Title: Procurador t | ||||
AZUL LINHAS AÉREAS BRASILEIRAS S.A. | ||||
/s/ Renato Covelo |
||||
Name: Renato Covelo | ||||
Title:Procurador | ||||
TRIP LINHAS AÉREAS S.A. | ||||
/s/ Renato Covelo |
||||
Name: Renato Covelo | ||||
Title: Procurador |
15
(Signature page 1 of 2 of the Second Amendment to Investment Agreement dated December 27, 2013, by and among TRIP Participações S.A., TRIP Investimentos S.A., Rio Novo Locações Ltda., AZUL S.A., and further, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A., and Neeleman)
DAVID NEELEMAN |
/s/ David Neeleman |
WITNESSES: |
/s/ Joanna Camet Portella |
Name: Joanna Camet Portella |
ID Card (RG): 25.026.684-2 |
/s/ Julia Almeida Shimizu |
Name: Julia Almeida Shimizu |
ID Card (RG): 34.994.802-1 |
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CONFIDENTIAL TREATMENT REQUESTED
Execution Version
EXHIBIT A
TO THE SECOND AMENDMENT
SHAREHOLDING STRUCTURE FOLLOWING THE SHAREHOLDING RESTRUCTURING
Shareholders |
Common Shares (ON) |
Preferred Shares (PN) |
TOTAL | ON % | PN% | TOTAL | ON converted into PN |
PN | Total | % of Total |
Total Economic Ownership |
|||||||||||||||||||||||||||||||||
David Neeleman |
311,203,319 | 0 | 311,203,319 | 67.00% | 0,00% | 56.80% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 1 LLCDavid Neeleman |
0 | 4,060,840 | 4,060,840 | 0.00% | 4.87% | 0.74% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 2 LLCGerald Blake Lee |
0 | 320,240 | 320,240 | 0.00% | 0.38% | 0.06% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 3 LLCThomas Eugene Kelly |
0 | 137,360 | 137,360 | 0.00% | 0.16% | 0.03% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 4 LLCTom Anderson |
0 | 29,520 | 29,520 | 0.00% | 0.04% | 0.01% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 5 LLCCarol Elizabeth Archer |
0 | 22,840 | 22,840 | 0.00% | 0.03% | 0.00% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 6 LLCCindy England |
0 | 320,240 | 320,240 | 0.00% | 0.38% | 0.06% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 7 LLCRobert Land |
0 | 29,520 | 29,520 | 0.00% | 0.04% | 0.01% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 8 LLCRobert Milton |
0 | 137,280 | 137,280 | 0.00% | 0.16% | 0.03% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 9 LLCMark Neeleman |
0 | 18,280 | 18,280 | 0.00% | 0.02% | 0.00% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 10 LLCMarlon Yair Ramirez |
0 | 68,600 | 68,600 | 0.00% | 0.08% | 0.01% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 11 LLCJohn Rodgerson |
0 | 160,080 | 160,080 | 0.00% | 0.19% | 0.03% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 12 LLCMaximiliam Urban |
0 | 411,720 | 411,720 | 0.00% | 0.49% | 0.08% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 13 LLCJoel Peterson |
0 | 101,520 | 101,520 | 0.00% | 0.12% | 0.02% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
.Saleb II Founder 14 LLCAmir Nasruddin |
0 | 42,680 | 42,680 | 0.00% | 0.05% | 0.01% | [*****] | [*****] | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
17
CONFIDENTIAL TREATMENT REQUESTED
Saleb II Founder 15 LLCJason Truman Ward |
0 | 27,440 | 27,440 | 0.00% | 0.03% | 0.01% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Saleb II Founder 16 LLCJohn Joseph Daly |
0 | 22,840 | 22,840 | 0.00% | 0.03% | 0.00% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Gianfranco Beting |
0 | 22,080 | 22,080 | 0.00% | 0.03% | 0.00% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Regis da Silva Brito |
0 | 6,400 | 6,400 | 0.00% | 0.01% | 0.00% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Star Sabia LLC |
0 | 7,500,000 | 7,500,000 | 0.00% | 8.99% | 1.37% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
WP-New Air LLC |
0 | 10,883,880 | 10,883,880 | 0.00% | 13.05% | 1.99% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Azul HolCo, LLC |
0 | 4,607,560 | 4,607,560 | 0.00% | 5.52% | 0.84% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Maracatu LLC |
0 | 4,471,600 | 4,471,600 | 0.00% | 5.36% | 0.82% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
GIF Mercury LLC |
0 | 1,500,000 | 1,500,000 | 0.00% | 1.80% | 0.27% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
GIF- II Fundo de Inv. em Part. |
0 | 4,981,440 | 4,981,440 | 0.00% | 5.97% | 0.91% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
ZDBR LLC |
0 | 7,885,880 | 7,885,880 | 0.00% | 9.46% | 1.44% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Kadon Empreendimentos S.A |
0 | 8,010,840 | 8,010,840 | 0.00% | 9.61% | 1.46% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Bozano Holdings Ltd. |
0 | 5,117,640 | 5,117,640 | 0.00% | 6.14% | 0.93% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Carolyn Trabuco |
0 | 40 | 40 | 0.00% | 0.00% | 0.00% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Sergio Eraldo Sales Pinto |
0 | 40 | 40 | 0.00% | 0.00% | 0.00% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
JJL Brazil LLC |
0 | 250,000 | 250,000 | 0.00% | 0.30% | 0.05% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Morris Azul, LLC |
0 | 74,120 | 74,120 | 0.00% | 0.09% | 0.01% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Miguel Dau |
0 | 18,280 | 18,280 | 0.00% | 0.02% | 0.00% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Henrique de Campos Meirelles |
0 | 40 | 40 | 0.00% | 0.00% | 0.00% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
João Carlos Fernandes |
0 | 9,160 | 9,160 | 0.00% | 0.01% | 0.00% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Trip Participações S.A. |
101,164,356 | 14,615,760 | 15,780,116 | 21.78% | 17.53% | 21.13% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Trip Investimentos Ltda. |
39,852,572 | 5,757,720 | 5,610,292 | 8.58% | 6.90% | 8.32% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Rio Novo Locações Ltda. |
12,262,282 | 1,771,600 | 4,033,882 | 2.64% | 2.12% | 2.56% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
Total Trip Shareholder Shares |
153,279,210 | 22,145,080 | 175,424,290 | 33.0% | 26.6% | 32.02% | [*****] | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||
TOTAL |
464,482,529 | 83,395,080 | 547,877,609 | 100% | 100% | 100% | [*****] | [*****] | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
18
CONFIDENTIAL TREATMENT REQUESTED
Execution Version
EXHIBIT B
TO THE SECOND AMENDMENT
SHAREHOLDING STRUCTURE FOLLOWING
THE PRIVATE PLACEMENT
Shareholders |
Common Shares |
PN-A Shares |
PN-B Shares |
TOTAL | ON % | PN- A% |
PN- B% |
TOTAL | ONs converted into PN |
PN-B Converted to PN-A |
PNs | Total Economic Ownership |
||||||||||||||||||||||||||||||||||||
David Neeleman |
311.203.319 | 0 | 0 | 311.203.319 | 67,00% | 0,00% | 0,00% | 56,55% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 1 LLCDavid Neeleman |
0 | 4.060.840 | 0 | 4.060.840 | 0,00% | 4,87% | 0,00% | 0,74% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 2 LLC Gerald Blake Lee |
0 | 320.240 | 0 | 320.240 | 0,00% | 0,38% | 0,00% | 0,06% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 3 LLCThomas Eugene Kelly |
0 | 137.360 | 0 | 137.360 | 0,00% | 0,16% | 0,00% | 0,02% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 4 LLCTom Anderson |
0 | 29.520 | 0 | 29.520 | 0,00% | 0,04% | 0,00% | 0,01% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 5 LLCCarol Elizabeth Archer |
0 | 22.840 | 0 | 22.840 | 0,00% | 0,03% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 6 LLCCindy England |
0 | 320.240 | 0 | 320.240 | 0,00% | 0,38% | 0,00% | 0,06% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 7 LLCRobert Land |
0 | 29.520 | 0 | 29.520 | 0,00% | 0,04% | 0,00% | 0,01% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 8 LLCRobert Milton |
0 | 137.280 | 0 | 137.280 | 0,00% | 0,16% | 0,00% | 0,02% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 9 LLCMark Neeleman |
0 | 18.280 | 0 | 18.280 | 0,00% | 0,02% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 10 LLCMarlon Yair Ramirez |
0 | 68.600 | 0 | 68.600 | 0,00% | 0,08% | 0,00% | 0,01% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 11 LLCJohn Rodgerson |
0 | 160.080 | 0 | 160.080 | 0,00% | 0,19% | 0,00% | 0,03% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 12 LLCMaximiliam Urban |
0 | 411.720 | 0 | 411.720 | 0,00% | 0,49% | 0,00% | 0,07% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 13 LLC Joel Peterson |
0 | 101.520 | 0 | 101.520 | 0,00% | 0,12% | 0,00% | 0,02% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 14 LLCAmir Nasruddin |
0 | 42.680 | 0 | 42.680 | 0,00% | 0,05% | 0,00% | 0,01% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 15 LLCJason Truman Ward |
0 | 27.440 | 0 | 27.440 | 0,00% | 0,03% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 16 LLCJohn Joseph Daly |
0 | 22.840 | 0 | 22.840 | 0,00% | 0,03% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
19
CONFIDENTIAL TREATMENT REQUESTED
Gianfranco Beting |
0 | 22.080 | 0 | 22.080 | 0,00% | 0,03% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Regis da Silva Brito |
0 | 6.400 | 0 | 6.400 | 0,00% | 0,01% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Star Sabia LLC |
0 | 7.500.000 | 0 | 7.500.000 | 0,00% | 8,99% | 0,00% | 1,36% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
WP-New Air LLC |
0 | 10.883.880 | 0 | 10.883.880 | 0,00% | 13,05% | 0,00% | 1,98% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Azul HolCo, LLC |
0 | 4.607.560 | 0 | 4.607.560 | 0,00% | 5,52% | 0,00% | 0,84% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Maracatu LLC (Peterson Partners) GIF Mercury LLC |
|
0 0 |
|
|
4.471.600 1.500.000 |
|
|
468.329 0 |
|
|
4.939.929 1.500.000 |
|
|
0,00% 0,00% |
|
|
5,36% 1,80% |
|
|
19,51% 0,00% |
|
|
0,90% 0,27% |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
| ||||||||||||
GIF- II Fundo de Inv. em Part. ZDBR LLC |
|
0 0 |
|
|
4.981.440 7.885.880 |
|
|
0 0 |
|
|
4.981.440 7.885.880 |
|
|
0,00% 0,00% |
|
|
5,97% 9,46% |
|
|
0,00% 0,00% |
|
|
0,91% 1,43% |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
| ||||||||||||
Kadon Empreendimentos S.A Bozano Holdings Ltd. |
|
0 0 |
|
|
8.010.840 5.117.640 |
|
|
0 0 |
|
|
8.010.840 5.117.640 |
|
|
0,00% 0,00% |
|
|
9,61% 6,14% |
|
|
0,00% 0,00% |
|
|
1,46% 0,93% |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
| ||||||||||||
Carolyn Trabuco |
0 | 40 | 0 | 40 | 0,00% | 0,00% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Sergio Eraldo Sales Pinto |
0 | 40 | 0 | 40 | 0,00% | 0,00% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
JJL Brazil LLC |
0 | 250.000 | 0 | 250.000 | 0,00% | 0,30% | 0,00% | 0,05% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Morris Azul, LLC |
0 | 74.120 | 0 | 74.120 | 0,00% | 0,09% | 0,00% | 0,01% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Miguel Dau |
0 | 18.280 | 0 | 18.280 | 0,00% | 0,02% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Henrique de Campos Meirelles João Carlos Fernandes |
|
0 0 |
|
|
40 9.160 |
|
|
0 0 |
|
|
40 9.160 |
|
|
0,00% 0,00% |
|
|
0,00% 0,01% |
|
|
0,00% 0,00% |
|
|
0,00% 0,00% |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
|
|
[*****] [*****] |
| ||||||||||||
Trip Participações S.A. |
101.164.356 | 14.615.760 | 0 | 115.780.116 | 21,78% | 17,53% | 0,00% | 21,04% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Trip Investimentos Ltda. |
39.852.572 | 5.757.720 | 0 | 45.610.292 | 8,58% | 6,90% | 0,00% | 8,29% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Rio Novo Locações Ltda. |
12.262.282 | 1.771.600 | 0 | 14.033.882 | 2,64% | 2,12% | 0,00% | 2,55% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Total Trip Shareholder Shares |
153.279.210 | 22.145.080 | 0 | 175.424.290 | 33,0% | 26,6% | 00,0% | 31,88% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Fidelity Growth Company Fund |
0 | 0 | 1.017.079 | 1.017.079 | 0,00% | 0,00% | 42,37% | 0,18% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Fidelity Blue Chip Growth Fund |
0 | 0 | 165.571 | 165.571 | 0,00% | 0,00% | 6,90% | 0,03% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Cia. Bozano |
0 | 0 | 749.409 | 749.409 | 0,00% | 0,00% | 31,22% | 0,14% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||||||||||
TOTAL |
464.482.529 | 83.395.080 | 2.400.388 | 550.277.997 | 100% | 100% | 100% | 100% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
20
CONFIDENTIAL TREATMENT REQUESTED
Execution Version
EXHIBIT C
TO THE SECOND AMENDMENT
SHAREHOLDING STRUCTURE FOLLOWING THE EXERCISE OF THE TRIPS SHAREHOLDERS
SUBSCRIPTION WARRANTS SHAREHOLDING ADJUSTMENT
Shareholders |
Common Shares |
PN-A Shares |
PN-B Shares |
TOTAL | ON % | PN-A% | PN-B% | TOTAL | ONs converted into PN |
PN-B Converted to PN-A |
PNs | Total Economic Ownership |
||||||||||||||||||||||||||||||||||||
David Neeleman |
311.203.319 | 0 | 0 | 311.203.319 | 67,00% | 0,00% | 0,00% | 56,16% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 1 LLCDavid Neeleman |
0 | 4.060.840 | 0 | 4.060.840 | 0,00% | 4,66% | 0,00% | 0,73% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 2 LLCGerald Blake Lee |
0 | 320.240 | 0 | 320.240 | 0,00% | 0,37% | 0,00% | 0,06% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 3 LLCThomas Eugene Kelly |
0 | 137.360 | 0 | 137.360 | 0,00% | 0,16% | 0,00% | 0,02% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 4 LLCTom Anderson |
0 | 29.520 | 0 | 29.520 | 0,00% | 0,03% | 0,00% | 0,01% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 5 LLCCarol Elizabeth Archer |
0 | 22.840 | 0 | 22.840 | 0,00% | 0,03% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 6 LLCCindy England |
0 | 320.240 | 0 | 320.240 | 0,00% | 0,37% | 0,00% | 0,06% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 7 LLCRobert Land |
0 | 29.520 | 0 | 29.520 | 0,00% | 0,03% | 0,00% | 0,01% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 8 LLCRobert Milton |
0 | 137.280 | 0 | 137.280 | 0,00% | 0,16% | 0,00% | 0,02% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 9 LLCMark Neeleman |
0 | 18.280 | 0 | 18.280 | 0,00% | 0,02% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 10 LLCMarlon Yair Ramirez |
0 | 68.600 | 0 | 68.600 | 0,00% | 0,08% | 0,00% | 0,01% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 11 LLCJohn Rodgerson |
0 | 160.080 | 0 | 160.080 | 0,00% | 0,18% | 0,00% | 0,03% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 12 LLCMaximiliam Urban |
0 | 411.720 | 0 | 411.720 | 0,00% | 0,47% | 0,00% | 0,07% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 13 LLCJoel Peterson |
0 | 101.520 | 0 | 101.520 | 0,00% | 0,12% | 0,00% | 0,02% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 14 LLCAmir Nasruddin |
0 | 42.680 | 0 | 42.680 | 0,00% | 0,05% | 0,00% | 0,01% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 15 LLCJason Truman Ward |
0 | 27.440 | 0 | 27.440 | 0,00% | 0,03% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Saleb II Founder 16 LLCJohn Joseph Daly |
0 | 22.840 | 0 | 22.840 | 0,00% | 0,03% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Gianfranco Beting |
0 | 22.080 | 0 | 22.080 | 0,00% | 0,03% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Regis da Silva Brito |
0 | 6.400 | 0 | 6.400 | 0,00% | 0,01% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
21
CONFIDENTIAL TREATMENT REQUESTED
Star Sabia LLC |
0 | 7.500.000 | 0 | 7.500.000 | 0,00% | 8,60% | 0,00% | 1,35% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
WP-New Air LLC |
0 | 10.883.880 | 0 | 10.883.880 | 0,00% | 12,48% | 0,00% | 1,96% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Azul HolCo, LLC |
0 | 4.607.560 | 0 | 4.607.560 | 0,00% | 5,28% | 0,00% | 0,83% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Maracatu LLC (Peterson Partners) |
0 | 4.471.600 | 468.329 | 4.939.929 | 0,00% | 5,13% | 19,51% | 0,89% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
GIF Mercury LLC |
0 | 1.500.000 | 0 | 1.500.000 | 0,00% | 1,72% | 0,00% | 0,27% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
GIF- II Fundo de Inv. em Part. |
0 | 4.981.440 | 0 | 4.981.440 | 0,00% | 5,71% | 0,00% | 0,90% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
ZDBR LLC |
0 | 7.885.880 | 0 | 7.885.880 | 0,00% | 9,04% | 0,00% | 1,42% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Kadon Empreendimentos S.A |
0 | 8.010.840 | 0 | 8.010.840 | 0,00% | 9,18% | 0,00% | 1,45% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Bozano Holdings Ltd. |
0 | 5.117.640 | 0 | 5.117.640 | 0,00% | 5,87% | 0,00% | 0,92% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Carolyn Trabuco |
0 | 40 | 0 | 40 | 0,00% | 0,00% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Sergio Eraldo Sales Pinto |
0 | 40 | 0 | 40 | 0,00% | 0,00% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
JJL Brazil LLC |
0 | 250.000 | 0 | 250.000 | 0,00% | 0,29% | 0,00% | 0,05% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Morris Azul, LLC |
0 | 74.120 | 0 | 74.120 | 0,00% | 0,08% | 0,00% | 0,01% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Miguel Dau |
0 | 18.280 | 0 | 18.280 | 0,00% | 0,02% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Henrique de Campos Meirelles |
0 | 40 | 0 | 40 | 0,00% | 0,00% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
João Carlos Fernandes |
0 | 9.160 | 0 | 9.160 | 0,00% | 0,01% | 0,00% | 0,00% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Trip Participações S.A. |
101.164.356 | 17.149.440 | 0 | 118.313.796 | 21,78% | 19,66% | 0,00% | 21,35% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Trip Investimentos Ltda. |
39.852.572 | 6.755.835 | 0 | 46.608.407 | 8,58% | 7,74% | 0,00% | 8,41% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Rio Novo Locações Ltda. |
12.262.282 | 2.078.711 | 0 | 14.340.993 | 2,64% | 2,38% | 0,00% | 2,59% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Total Trip Shareholder Shares |
153.279.210 | 25.983.986 | 0 | 179.263.196 | 33,0% | 29,8% | 0,0% | 32,35% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Fidelity Growth Company Fund |
0 | 0 | 1.017.079 | 1.017.079 | 0,00% | 0,00% | 42,37% | 0,18% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Fidelity Blue Chip Growth Fund |
0 | 0 | 165.571 | 165.571 | 0,00% | 0,00% | 6,90% | 0,03% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
Cia. Bozano |
0 | 0 | 749.409 | 749.409 | 0,00% | 0,00% | 31,22% | 0,14% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
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TOTAL |
464.482.529 | 87.233.986 | 2.400.388 | 554.116.903 | 100% | 100% | 100% | 100% | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
22
EXHIBIT D
TO THE SECOND AMENDMENT
TRIPS SHAREHOLDERS SUBSCRIPTION WARRANT -
SHAREHOLDING ADJUSTMENT
SUBSCRIPTION WARRANT SERIES A
CERTIFICATE NO. 01
ISSUER:
AZUL S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, 939, 8th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 09.305.9994/0001-29, herein represented by in accordance with the provisions of its Bylaws (Company or Issuer),
HOLDERS:
(i) | TRIP PARTICIPAÇÕES S.A., a corporation with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 09.229.532/0001-70, herein represented by its undersigned legal representatives (TRIP Participações); |
(ii) | TRIP INVESTIMENTOS LTDA., a limited liability company with head office in the City of Campinas, State of São Paulo, at Avenida Cambacicas, 1200, Parque Imperador, Condomínio Flex Buildings, Módulo 2, CEP 13097-104, registered as taxpayer under CNPJ/MF No. 15.300.240/0001-89, herein represented by its undersigned legal representatives (TRIP Investimentos); and |
(iii) | RIO NOVO LOCAÇÕES LTDA., a limited liability company with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 6.3, Suite 208, CEP 29157-405, registered as taxpayer under CNPJ/MF No. 04.373.710/0001-18, herein represented by its undersigned legal representatives (Rio Novo and, together with TRIP Participações, the Holders). |
1. | Authorization |
1.1. This subscription warrant of series A (the Subscription Warrant) is issued as a result of a resolution passed by the Extraordinary General Meeting of the Company held on [==], at 10:30 am. This Subscription Warrants gives the Holders the right to subscribe for 3,838,906 (three million, eight hundred thirty-eight thousand, nine hundred and six) registered Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares), with no par value, issued by the Company, and shall be exercised by presentation of this certificate and payment of the Price, as set forth below.
1.2. This Subscription Warrant shall be issued in accordance with Section 6.2 of the Investment Agreement, entered into on May 25, 2012, between the Company and the Holders, and other parties mentioned therein, as amended, in particular the Second Amendment, dated the [==] (the Investment Agreement). This Subscription Warrant is subject to the terms and conditions set forth herein and the provisions of the Investment Agreement.
2. | Share Capital |
2.1. The Companys share capital, fully subscribed for and paid in, is, on the date hereof, R$[==] ([==] Brazilian Reais)], divided into [==] ([==]) shares, being [==] (==]) common shares, [==] ([==]) Class A preferred shares, and [==] ([==]) Class B preferred shares, all registered and with no par value.
(i) each common share entitles its holder the right to one vote at General Meetings of the Company, and the common shares grant their holders the same rights;
(ii) the Class A preferred shares have voting rights in certain matters, and the following preferences and advantages are guaranteed to these shares:
I priority in the return of capital, subject to the priority of the Class B preferred shares;
II the preferred shares are entitled to receive dividends equal to 75 (seventy-five)times the amount paid for each common share;
III tag along right in case of sale of corporate control of the Company, and price per share equivalent to 75 (seventy-five) times the price per share paid to the selling shareholders; and
IV reimbursement right in the proportion of 75:1 (seventy-five per one) in relation to the common shares, in case of liquidation of the Company; and
(iii) the Class B preferred shares do not grant any voting right, and entitle the holders to priority in return of capital over such common and Class A preferred shares, up to the amount of their issue price.
2.2. The Company is authorized to increase its share capital up to [==] ([==]) Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares), by decision of the Board of Directors, regardless of amendment to its bylaws, according to Article 6 of the Companys Bylaws. The current share capital of the Company was established by the General Meeting of the Company held on [==].
24
CONFIDENTIAL TREATMENT REQUESTED
3. | Issue Price; Exercise Date |
3.1. Price: The issue price of this Subscription Warrant is R$ [*****] Brazilian Reais), to be paid on a prorated basis and proportionally to the equity interest held by each Holder in the Companys share capital.
3.2. Period of Exercise of the Subscription Warrant: The Holders may exercise this Subscription Warrant at any time until the Date of Adjustment Shareholding.
4. | Subscription and Payment of Shares |
4.1. Number of Shares to be issued. This Subscription Warrant may be exercised, in whole or in part, on a single occasion, and grants its Holders the right to subscribe for and pay in new Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares), all registered and with no par value, issued by the Company (the Shares).
4.2. Share Issue Price of the Subscription Warrant: The issue price of the Shares will be R$ [*****] Brazilian Reais) for all the Shares issued by the Company as a result of the exercise of this Subscription Warrant, to be paid on a prorated basis and proportionally to the equity interest held by each Holder in the Companys share capital.
4.3. Conditions for the Payment of Shares of this Subscription Warrant. The Shares shall be fully paid in by the Holders upon their subscription, through the payment of the Price, presentation and delivery to the Company of this Subscription Warrant, and signing by the Holders of the respective share subscription bulletins. The number of Shares issued in accordance with Section 4.1 above shall be divided among the Holders proportionally to the shares held by each Holder, on the date hereof, in relation to all shares held by the Holders.
4.4. The Shares confer upon the Holders the same benefits and rights of the Class A preferred shares issued by the Company and existing on the date hereof, including the right to receive dividends declared after the issuance of the Shares.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
25
5. | General Provisions |
5.1. The Holders undertake to refrain from encumbering, selling or transferring, in any manner, the Subscription Warrant or rights arising from it, under penalty of loss of the subscription rights granted by it.
5.2. Re-issue: In case of loss, theft or damage involving this Subscription Warrant, the Holders may present evidence of such loss, theft or damage so that the Company may promptly cancel this Subscription Warrant and issue another, as replacement, under the same terms and conditions in effect.
5.3. Notice: Except as otherwise provided in this Subscription Warrant, any notices or other communications that may be necessary shall be sent to the Company or to the Holders, at the addresses described in Exhibit G to the Investment Agreement.
5.4. The Company shall bear all expenses incurred by reason of the issuance of the Shares, as set forth in this Subscription Warrant, and the consummation of such transaction.
5.5. This Subscription Warrant is binding upon and shall inure to the benefit of all parties and their respective successors, and nothing in this Subscription Warrant, whether express or implicit, shall be construed as, or shall grant to any other person, any rights, benefits or remedies of any nature under or by reason of this Subscription Warrant.
5.6. Applicable Law and Dispute Resolution: The provisions of the Subscription Warrant shall be governed by and construed in accordance with the laws of the Federative Republic of Brazil. Any dispute or controversy arising out of this Subscription Warrant shall be resolved in accordance with the procedures for dispute resolution provided for in Section 10.10 of the Investment Agreement, by arbitration to be conducted and managed by the International Chamber of Commerce. This Subscription Warrant shall serve as an arbitration clause, pursuant to Article 4 of Law No. 9,307/96.
5.7. Authorized Capital: Notwithstanding any other provision of this Subscription Warrant, the Company shall, from the date of this Subscription Warrants, reserve and always make available the maximum amount of capital to be increased as a result of the exercise of the Subscription Warrant, free of any preemptive or other subscription or purchase rights, whether actual or contingent, to any person other than the Holders, within the limits of its authorized and unissued capital, to ensure compliance with any obligation to issue new shares through the exercise of subscription right established by this Subscription Warrant.
26
5.8. Lien: The Company agrees that all new Shares of this Subscription Warrant will be, after payment of the issue price of such shares, fully paid in, free and clear of any preemptive rights, taxes, liens, charges and duties, and shall be entitled to receive rights, dividends, interest on equity, profit sharing and any other remuneration and distribution pari passu with the existing Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares) of the Company.
5.9. Definitions: Except as otherwise defined herein, any capitalized term used herein shall have the same meaning ascribed to it in the Investment Agreement.
São Paulo, [==] [==], [==].
TRIP PARTICIPAÇÕES S.A. | TRIP INVESTIMENTOS LTDA. | |||
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Name: | Name: | |||
Title: | Title: | |||
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Name: | Name: | |||
Title: | Title: | |||
RIO NOVO LOCAÇÕES LTDA. | AZUL S.A. | |||
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Name: | Name: | |||
Title: | Title: | |||
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Name: | ||||
Title: |
27
EXHIBIT E
TO THE SECOND AMENDMENT
TRIPS SHAREHOLDERS SUBSCRIPTION WARRANT -
INDEMNIFICATION ADJUSTMENT
SUBSCRIPTION WARRANT SERIES C
CERTIFICATE No. 01
ISSUER:
AZUL S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, 939, 8th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 09.305.9994/0001-29, herein represented by in accordance with the provisions of its Bylaws (Company or Issuer),
HOLDERS:
(i) | TRIP PARTICIPAÇÕES S.A., a corporation with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 09.229.532/0001-70, herein represented by its undersigned legal representatives (TRIP Participações); |
(ii) | TRIP INVESTIMENTOS LTDA., a limited liability company with head office in the City of Campinas, State of São Paulo, at Avenida Cambacicas, 1200, Parque Imperador, Condomínio Flex Buildings, Módulo 2, CEP 13097-104, registered as taxpayer under CNPJ/MF No. 15.300.240/0001-89, herein represented by its undersigned legal representatives (TRIP Investimentos); and |
(iii) | RIO NOVO LOCAÇÕES LTDA., a limited liability company with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 6.3, Suite 208, CEP 29157-405, registered as taxpayer under CNPJ/MF No. 04.373.710/0001-18, herein represented by its undersigned legal representatives (Rio Novo and, together with TRIP Participações, the Holders). |
1. | Authorization |
1.1. This subscription warrant of series A (the Subscription Warrant) is issued as a result of a resolution passed by the Extraordinary General Meeting of the Company held on [==], at 10:30 am. This Subscription Warrants gives Holders the right to subscribe for registered Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares), with no par value, issued by the Company, and shall be exercised by presentation of this certificate and payment of the Price, as set forth below.
28
1.2. This Subscription Warrant shall be issued in accordance with the provisions of the Investment Agreement, entered into on May 25, 2012, between the Company and the Holders, and other parties mentioned therein, as amended, in particular the Second Amendment, dated the [==] (the Investment Agreement). This Subscription Warrant is subject to the terms and conditions set forth herein and the provisions of the Investment Agreement.
2. | Share Capital |
2.1. The Companys share capital, fully subscribed for and paid in, is, on the date hereof, R$[==] ([==] Brazilian Reais)], divided into [==] ([==]) shares, being [==] ([==]) common shares, [==] ([==]) Class A preferred shares, and [==] ([==]) Class B preferred shares, all registered and with no par value.
(i) each common share entitles its holder the right to one vote at General Meetings of the Company, and the common shares grant their holders the same rights;
(ii) the Class A preferred shares have voting rights in certain matters, and the following preferences and advantages are guaranteed to these shares:
I priority in the return of capital, subject to the priority of the Class B preferred shares;
II the preferred shares are entitled to receive dividends equal to 75 (seventy-five) times the amount paid for each common share];
III tag along right in case of sale of corporate control of the Company, and price per share equivalent to 75 (seventy-five) times the price per share paid to the selling shareholders; and
IV reimbursement right in the proportion of 75:1 (seventy-five per one) in relation to the common shares, in case of liquidation of the Company; and
(iii) the Class B preferred shares do not grant any voting right, and entitle the holders to priority in return of capital over such common and Class A preferred shares, up to the amount of their issue price.
2.2. The Company is authorized to increase its share capital up to [==] ([==]) Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares), by decision of the Board of Directors, regardless of amendment to its bylaws, according to Article 6 of the Companys Bylaws. The current share capital of the Company was established by the General Meeting of the Company held on [==].
29
CONFIDENTIAL TREATMENT REQUESTED
3. | Issue Price; Exercise Date |
3.1. Price: The issue price of the Subscription Warrant is R$ [*****] Brazilian Reais), to be paid on a prorated basis and proportionally to the equity interest held by each Holder in the Companys share capital.
3.2. Period of Exercise of the Subscription Warrant: The Holders may exercise this Subscription Warrant on the Date of Adjustment Indemnification, as defined in the Investment Agreement (the Exercise Period).
4. | Subscription and Payment of Shares |
4.1. This Subscription Warrant may be exercised, in whole or in part, and on a single occasion, and grants its Holders the right to subscribe for and pay in, during the Exercise Period, new Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares), all registered and with no par value, issued by the Company (the Shares).
4.2. Share Issue Price of the Subscription Warrant: The issue price of the Shares will be R$ [*****] Reais) for all the Shares issued by the Company as a result of the exercise of this Subscription Warrant, to be paid on a prorated basis and proportionally to the equity interest held by each Holder in the Companys share capital.
4.3. Number of Shares to be issued. The Company shall issue as many new Shares as necessary to comply with the provisions of Section 4.3.1 of this Subscription Warrant.
4.3.1. On the Adjustment Indemnifications Date, pursuant to Section 8 of the Investment Agreement, the Parties shall determine in good faith the total amount of Losses with Cash Outflow of TRIPs Shareholders, as well as the total amount of Losses with Cash Outflow of AZUL Holding, as defined in Section 8.1.1(a)(i) of the Investment Agreement. In the event that the Losses with Cash Outflow of TRIPs Shareholders exceed the Losses with Cash Outflow of AZUL Holding, through the exercise of this Subscription Warrant, the Company shall issue in favor of the Holders, on a prorated basis and proportionally to their stake in the share capital of the Company held by the Holders, a number of preferred shares as per the formula set forth below:
ARP = (PPIAT PPIAH) / VPAPI
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
30
CONFIDENTIAL TREATMENT REQUESTED
a. | ARP: Total number of AZUL Holdings Class A Preferred Shares Post-Private Placement (or other preferred shares whose rights and privileges are equivalent to those of the current AZUL Holdings Class A Preferred Shares Post-Private placement) to be issued within 4 (four) days from the Adjustment Indemnifications Date, by AZUL Holding, as a result of the exercise of this Subscription Warrant; |
b. | PPIAH: Total amount of Losses With Cash Outflow of AZUL Holding as of the Adjustment Indemnifications Date, updated by the CDI; |
c. | PPIAT: Total amount of Losses With Cash Outflow of TRIPs Shareholders as of the Adjustment Indemnifications Date, updated by the CDI; and |
d. | VPAPI: Individual amount of each preferred share, calculated as follows: (I) Pre-Money Valuation amount in Brazilian Reais (as defined in Section 1.1), exclusively attributable to the preferred shares issued by AZUL Holding, according to the Conversion Rate of the pricing day of the IPO, less (II) [*****] corresponding to the capital contribution made in AZUL Holding in view of the settlement of the Private Placement, duly adjusted for inflation based on the CDI, being the product of the subtraction between (I) and (II) divided by the difference between (i) the total number of preferred shares issued by AZUL Holding immediately prior to the IPO, minus (ii) the number of preferred shares issued as a result of the Private Placement until the date of the IPO. Notwithstanding the foregoing, should the IPO not occur until the Deadline (there not being, therefore, the Pre-Money Valuation), the amount corresponding the subtraction of items (I) and (II) above shall be the portion attributable to the preferred shares issued by AZUL Holding of the amount corresponding to US$ [*****] US Dollars). |
4.3.2. If on the Adjustment Indemnifications Date, the Losses with Cash Outflow of TRIPs Shareholders are equal to or lower than the Losses with Cash Outflow of AZUL Holding, this Subscription Warrant will not be exercisable, and the Holders shall not have the rights guaranteed by this instrument.
4.4. Conditions for the Payment of Shares of this Subscription Warrant. The Shares shall be fully paid in by the Holders upon their subscription, through the payment of the Price, presentation and delivery to the Company of this Subscription Warrant, and signing by the Holders of the respective share subscription bulletins, proportionally to the shares held by each Holder, on the date hereof, in relation to all shares held by the Holders.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
31
4.5. The Shares confer upon the Holders the same benefits and rights of the Class A preferred shares issued by the Company and existing on the date hereof, including the right to receive dividends declared after the issuance of the Shares.
5. | General Provisions |
5.1. The Holders undertake to refrain from encumbering, selling or transferring, in any manner, the Subscription Warrant or rights arising from it, under penalty of loss of the subscription rights granted by it.
5.2. Re-issue: In case of loss, theft or damage involving this Subscription Warrant, the Holders may present evidence of such loss, theft or damage so that the Company may promptly cancel this Subscription Warrant and issue another, as replacement, under the same terms and conditions in effect.
5.3. Notice: Except as otherwise provided in this Subscription Warrant, any notices or other communications that may be necessary shall be sent to the Company or to the Holders, at the addresses described in Exhibit G to the Investment Agreement.
5.4. The Company shall bear all expenses incurred by reason of the issuance of the Shares, as set forth in this Subscription Warrant, and the consummation of such transaction.
5.5. This Subscription Warrant is binding upon and shall inure to the benefit of all parties and their respective successors, and nothing in this Subscription Warrant, whether express or implicit, shall be construed as, or shall grant to any other person, any rights, benefits or remedies of any nature under or by reason of this Subscription Warrant.
5.6. Applicable Law and Dispute Resolution: The provisions of the Subscription Warrant shall be governed by and construed in accordance with the laws of the Federative Republic of Brazil. Any dispute or controversy arising out of this Subscription Warrant shall be resolved in accordance with the procedures for dispute resolution provided for in Section 10.10 of the Investment Agreement, by arbitration to be conducted and managed by the International Chamber of Commerce. This Subscription Warrant shall serve as an arbitration clause, pursuant to Article 4 of Law No. 9,307/96.
5.7. Authorized Capital: Notwithstanding any other provision of this Subscription Warrant, the Company shall, from the date of this Subscription Warrants, reserve and always make available the maximum amount of capital to be increased as a result of the exercise of the Subscription Warrant, free of any preemptive or other subscription or purchase rights, whether actual or contingent, to any person other than the Holders, within the limits of its authorized and unissued capital, to ensure compliance with any obligation to issue new shares through the exercise of subscription right established by this Subscription Warrant.
32
5.8. Lien: The Company agrees that all new Shares of this Subscription Warrant will be, after payment of the issue price of such shares, fully paid in, free and clear of any preemptive rights, taxes, liens, charges and duties, and shall be entitled to receive rights, dividends, interest on equity, profit sharing and any other remuneration and distribution pari passu with the existing Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares) of the Company.
5.9. Definitions: Except as otherwise defined herein, any capitalized term used herein shall have the same meaning ascribed to it in the Investment Agreement.
São Paulo, [==] [==], [==].
TRIP PARTICIPAÇÕES S.A. | TRIP INVESTIMENTOS LTDA. | |||
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Name: | Name: | |||
Title: | Title: | |||
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Name: | Name: | |||
Title: | Title: | |||
RIO NOVO LOCAÇÕES LTDA. | AZUL S.A. | |||
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Name: | Name: | |||
Title: | Title: | |||
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Name: | ||||
Title: |
33
EXHIBIT F
TO THE SECOND AMENDMENT
SUBSCRIPTION WARRANT FOR SHAREHOLDING ADJUSTMENT
ORIGINAL SHAREHOLDERS
SUBSCRIPTION WARRANT SERIES B
CERTIFICATE No. 01
ISSUER:
AZUL S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, 939, 8th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 09.305.9994/0001-29, herein represented by in accordance with the provisions of its Bylaws (Company or Issuer),
HOLDER:
[Original Shareholder] (the Holder).
1. | Authorization |
1.1. This subscription warrant of series B (the Subscription Warrant) is issued as a result of a resolution passed by the Extraordinary General Meeting of the Company held on [==], at 10:30 am. This Subscription Warrants gives the Holder the right to subscribe for registered Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares), with no par value, issued by the Company, and shall be exercised by presentation of this certificate and payment of the Price, as set forth below.
1.2. This Subscription Warrant shall be issued in accordance with the provisions of the Investment Agreement, entered into on May 25, 2012, between the Company and the Holder, and other parties mentioned therein, as amended, in particular the Second Amendment, dated the [==] (the Investment Agreement). This Subscription Warrant is subject to the terms and conditions set forth herein and the provisions of the Investment Agreement.
2. | Share Capital |
2.1. The Companys share capital, fully subscribed for and paid in, is, on the date hereof, R$[==] ([==] Brazilian Reais)], divided into [==] ([==]) shares, being [==] ([==]) common shares, [==] ([==]) Class A preferred shares, and [==] ([==]) Class B preferred shares, all registered and with no par value.
(i) each common share entitles its holder the right to one vote at General Meetings of the Company, and the common shares grant their holders the same rights; and
(ii) the Class A preferred shares have voting rights in certain matters, and the following preferences and advantages are guaranteed to these shares:
I priority in the return of capital, subject to the priority of the Class B preferred shares;
II the preferred shares are entitled to receive dividends equal to 75 (seventy- five)times the amount paid for each common share;
34
CONFIDENTIAL TREATMENT REQUESTED
III tag along right in case of sale of corporate control of the Company, and price per share equivalent to 75 (seventy-five) times the price per share paid to the selling shareholders; and
IV reimbursement right in the proportion of 75:1 (seventy-five per one) in relation to the common shares, in case of liquidation of the Company; and
(iii) the Class B preferred shares do not grant any voting right, and entitle the holders to priority in return of capital over such common and Class A preferred shares, up to the amount of their issue price.
2.2. The Company is authorized to increase its share capital up to [==] ([==]) Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares), by decision of the Board of Directors, regardless of amendment to its bylaws, according to Article 6 of the Companys Bylaws. The current share capital of the Company was established by the General Meeting of the Company held on [==].
3. | Issue Price; Exercise Date |
3.1. Price: The issue price of the Subscription Warrant is R$ [*****] Brazilian Reais), to be paid by the Holder.
3.2. Period of Exercise of the Subscription Warrant: The Holder may exercise this Subscription Warrant on the Date of Adjustment Indemnification, as defined in the Investment Agreement (the Exercise Period).
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
35
CONFIDENTIAL TREATMENT REQUESTED
4. | Subscription and Payment of Shares |
4.1. This Subscription Warrant may be exercised, in whole or in part, and on a single occasion, and grants its Holder the right to subscribe for and pay in, on the Date of Adjustment Shareholding, new Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares), all registered and with no par value, issued by the Company (the Shares).
4.2. Share Issue Price of the Subscription Warrant: The issue price of the Shares will be R$ [*****] Brazilian Reais) for all the shares issued by the Company as a result of the exercise of this Subscription Warrant, to be fully paid by the Holder.
4.3. Number of Shares to be issued. The Company shall issue as many new Shares as necessary to comply with the provisions of Section 4.3.1 of this Subscription Warrant.
4.3.1. On the Adjustment Indemnifications Date, pursuant to Section 8 of the Investment Agreement, the Parties shall determine in good faith the total amount of Losses with Cash Outflow of AZUL Holding, as well as the total amount of Losses with Cash Outflow of TRIPs Shareholders, as defined in Section 8.1.1(a)(i) of the Investment Agreement. In the event that the Losses with Cash Outflow of AZUL Holding exceed the Losses with Cash Outflow of TRIPs Shareholders, through the exercise of this Subscription Warrant, the Company shall issue in favor of the Holder, a number of preferred shares as per the formula set forth below:
ARP = (PPIAH PPIAT) / VPAPI
a. ARP: Total number of AZUL Holdings Class A Preferred Shares Post-Private Placement (or other preferred shares whose rights and privileges are equivalent to those of the current AZUL Holdings Class A Preferred Shares Post-Private placement) to be issued within 4 (four) days from the Adjustment Indemnifications Date by AZUL Holding as a result of the exercise of this Subscription Warrant;
b. PPIAH: Total amount of Losses With Cash Outflow of AZUL Holding as of the Adjustment Indemnifications Date, updated by the CDI;
c. PPIAT: Total amount of Losses With Cash Outflow of TRIPs Shareholders as of the Adjustment Indemnifications Date, updated by the CDI; and
d. VPAPI: Individual amount of each preferred share, calculated as follows: (I) Pre-Money Valuation amount in Brazilian Reais (as defined in Section 1.1), exclusively attributable to the preferred shares issued by AZUL Holding, according to the Conversion Rate of the pricing day of the IPO, less (II) [*****] corresponding to the capital contribution made in AZUL Holding in view of the settlement of the Private Placement, duly adjusted for inflation based on the CDI, being the product of the subtraction between (I) and (II) divided by the difference between (i) the total number of preferred shares issued by AZUL Holding immediately prior to the IPO, minus (ii) the number of preferred shares issued as a result of the Private Placement until the date of the IPO. Notwithstanding the foregoing, should the IPO not occur until the Deadline (there not being, therefore, the Pre-Money Valuation), the amount corresponding the subtraction of items (I) and (II) above shall be the portion attributable to the preferred shares issued by AZUL Holding of the amount corresponding to US$ [*****] US Dollars).
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
36
4.3.2. If on the Adjustment Indemnifications Date, the Losses with Cash Outflow of AZUL Holding are equal to or lower than the Losses with Cash Outflow of TRIPs Shareholders, this Subscription Warrant will not be exercisable, and the Holder shall not have the rights guaranteed by this instrument.
4.4. Conditions for the Payment of Shares of this Subscription Warrant. The Shares shall be fully paid in by the Holder upon their subscription, through the payment of the Price, presentation and delivery to the Company of this Subscription Warrant, and signing by the Holder of the respective share subscription bulletins.
4.5. The Shares confer upon the Holder the same benefits and rights of the Class A preferred shares issued by the Company and existing on the date hereof, including the right to receive dividends declared after the issuance of the Shares.
5. | General Provisions |
5.1. The Holder undertakes to refrain from encumbering, selling or transferring, in any manner, the Subscription Warrant or rights arising from it, under penalty of loss of the subscription rights granted by it.
5.2. Re-issue: In case of loss, theft or damage involving this Subscription Warrant, the Holder may present evidence of such loss, theft or damage so that the Company may promptly cancel this Subscription Warrant and issue another, as replacement, under the same terms and conditions in effect.
5.3. Notice: Except as otherwise provided in this Subscription Warrant, any notices or other communications that may be necessary shall be sent to the Company or to the Holder, at the addresses described in Exhibit G to the Investment Agreement.
5.4. The Company shall bear all expenses incurred by reason of the issuance of the Shares, as set forth in this Subscription Warrant, and the consummation of such transaction.
5.5. This Subscription Warrant is binding upon and shall inure to the benefit of all parties and their respective successors, and nothing in this Subscription Warrant, whether express or implicit, shall be construed as, or shall grant to any other person, any rights, benefits or remedies of any nature under or by reason of this Subscription Warrant.
5.6. Applicable Law and Dispute Resolution: The provisions of the Subscription Warrant shall be governed by and construed in accordance with the laws of the Federative Republic of Brazil. Any dispute or controversy arising out of this Subscription Warrant shall be resolved in accordance with the procedures for dispute resolution provided for in Section 10.10 of the Investment Agreement, by arbitration to be conducted and managed by the International Chamber of Commerce. This Subscription Warrant shall serve as an arbitration clause, pursuant to Article 4 of Law No. 9,307/96.
5.7. Authorized Capital: Notwithstanding any other provision of this Subscription Warrant, the Company shall, from the date of this Subscription Warrants, reserve and always make available the maximum amount of capital to be increased as a result of the exercise of the Subscription Warrant, free of any preemptive or other subscription or purchase rights, whether actual or contingent, to any person other than the Holder, within the limits of its authorized and unissued capital, to ensure compliance with any obligation to issue new shares through the exercise of subscription right established by this Subscription Warrant.
37
5.8. Lien: The Company agrees that all new Shares of this Subscription Warrant will be, after payment of the issue price of such shares, fully paid in, free and clear of any preemptive rights, taxes, liens, charges and duties, and shall be entitled to receive rights, dividends, interest on equity, profit sharing and any other remuneration and distribution pari passu with the existing Class A preferred shares (or any other preferred shares issued by the Company whose relevant class, at the time of the exercise of this Subscription Warrant, presents the same rights and privileges as those currently attributed to the Class A preferred shares) of the Company.
5.9. Definitions: Except as otherwise defined herein, any capitalized term used herein shall have the same meaning ascribed to it in the Investment Agreement.
São Paulo, [==] [==], [==].
[Original Shareholder]
AZUL S.A.
Name:
Title:
38
EXHIBIT G
TO THE SECOND AMENDMENT
NEW EXHIBIT 10.1
EXHIBIT 10.1
ADDRESS AND CONTACT INFORMATION FOR NOTICES AND COMMUNICATIONS
If to Trip Participações S.A.:
Address: Rodovia BR 262, Km 5, Campo Grande, Cariacica/ES
Email: ricardov@aguiabranca.com.br
Fax:
Attn. to: Ricardo Vaze
It to Trip Investimentos Ltda.:
Address: Rodovia BR 262, Km 5, Campo Grande, Cariacica / ES
Email: ricardov@aguiabranca.com.br
Fax:
Attn. to: Ricardo Vaze
It to Rio Novo Locações Ltda.:
Address: Rodovia BR 262, Km 6.3, sala 208, Campo Grande, Cariacica/ES
Email: ricardov@aguiabranca.com.br
Fax:
Attn. to: Ricardo Vaze
It to Trip Linhas Aéreas Ltda.:
Address: Av. Cambacicas, 1200, Condomínio Flex Buildings, módulo 2
Email 1: josemario@voetrip.com.br
Fax: (19) 2139-5358
Attn. to: José Mario Caprioli dos Santos
It to AZUL Holding, AZUL or David Gary Neeleman:
Address: Av. Marcos Penteado de Ulhôa Rodrigues, 939, 8th floor, Ed. Jatobá, Tamboré
Email 1: john.rodgerson@voeazul.com.br
Fax: (11) 4134-9800
Attn. to: John Rodgerson
39
THIRD AMENDMENT TO THE INVESTMENT AGREEMENT
by, on one side,
TRIP PARTICIPAÇÕES S.A.,
TRIP INVESTIMENTOS LTDA., and
RIO NOVO LOCAÇÕES LTDA.
and, on the other side
AZUL S.A.,
and, as intervening and consenting
parties,
AZUL LINHAS AÉREAS BRASILEIRAS S.A.
TRIP SERVIÇOS DE SUPORTE AÉREO S.A.; and
DAVID GARY NEELEMAN
DATED OCTOBER 22, 2014.
THIRD AMENDMENT TO THE INVESTMENT AGREEMENT
By this private instrument, on one side,
(a) | TRIP PARTICIPAÇÕES S.A., a corporation with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 09.229.532/0001-70, herein represented by its undersigned legal representatives (TRIP Participações); |
(b) | TRIP INVESTIMENTOS LTDA., a limited liability company with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 15.300.240/0001-89, herein represented by its undersigned legal representatives (TRIP Investimentos); and |
(c) | RIO NOVO LOCAÇÕES LTDA., a limited liability company with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 6.3, Suite 208, CEP 29157-405, registered as taxpayer under CNPJ/MF No.04.373.710/0001-18, herein represented by its undersigned legal representatives (Rio Novo and, together with TRIP Participações and TRIP Investimentos, TRIP s Shareholders); and |
On the other side,
(d) | AZUL S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, No. 939, 8th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 09.305.9994/0001-29, herein represented by its undersigned legal representatives (AZUL Holding and, together with TRIPs Shareholders, the Parties, and each of them, individually, a Party); |
And, in the capacity of intervening and consenting parties (the Intervening and Consenting Parties):
(e) | AZUL LINHAS AÉREAS BRASILEIRAS S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, No. 939, 9th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 09.296.295/0001-60, herein represented by its undersigned legal representatives (AZUL); |
(f) | TRIP SERVIÇOS DE SUPORTE AÉREO S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, No. 939, 10th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 02.428.624/0001-30, formerly named TRIP LINHAS AÉREAS S.A., herein represented by its undersigned legal representatives (TRIP); and |
(g) | DAVID GARY NEELEMAN, Brazilian, married, bearer of Identification Card RG No. 53.031.273-6 SSP/SP and registered as taxpayer under CPF/MF No. 744.573.731-68 (Neeleman), herein represented by his undersigned attorneys-in-fact. |
Page 2 of 15
CONFIDENTIAL TREATMENT REQUESTED
PREAMBLE
A. WHEREAS, on May 25, 2012, the Parties and the Intervening and Consenting Parties executed the Investment Agreement (Original Investment Agreement), pursuant to which the merger of all TRIPs Shares (as provided for in the Original Investment Agreement) into AZUL Holding was agreed, subsequently delivering newly issued shares of AZUL Holding to TRIPs Shareholders, without causing the winding up of TRIP, pursuant to the provisions of article 252 of Law No. 6,404, dated December 15, 1976;
B. WHEREAS, on August 15, 2012, the Parties and the Intervening and Consenting Parties executed the First Amendment to the Agreement (First Amendment), which amended certain terms and conditions of the Original Investment Agreement;
C. WHEREAS, on December 27, 2013, the Parties executed the Second Amendment to the Agreement (Second Amendment, and the Original Investment Agreement, as amended in accordance with the terms of the First Amendment and Second Amendment, hereinafter simply referred to as Investment Agreement), which amended the criteria applicable to adjust their shareholdings (New Criteria) in AZUL Holding, to be made as a result of the obligation to indemnify as provided for in Sections 8.1.1(a)(i) and 8.2.1(a)(i) of the Investment Agreement (Adjustments of Shareholding Indemnifications);
D. WHEREAS, in order to (i) implement the New Criteria and (ii) set forth a method to allow TRIPs Shareholders and/or Original Shareholders, as applicable, to make the Adjustments of Shareholding Indemnifications, without assistance of the indemnifying parties, TRIPs Shareholders Subscription Warrants Indemnifications Adjustment and Subscription Warrants for the Adjustment of Shareholding Original Shareholders (collectively, hereinafter referred to as Subscription Warrants for the Adjustment of Shareholding Indemnifications) were issued to TRIPs Shareholders and Original Shareholders, respectively, allowing each group of shareholders to subscribe for and pay up as many new Azul Holding PN-A Shares Post Private Placement as needed, to complete the Adjustments of Shareholding Indemnifications, according to the calculation of Total Losses of Parties up to the Adjustment Indemnifications Date (as defined in the Investment Agreement);
E. WHEREAS, pursuant to the provisions of Sections 8.1.1(a)(i), 8.2.1(a)(i), 8.3, and 8.4 of the Investment Agreement, TRIPs Shareholders and each Original Shareholders agreed on the figure that best reflects Total Losses of Parties up to the Adjustment Indemnifications Date (as defined in the Investment Agreement), which figure corresponds to [*****], in favor of the Original Shareholders (Indemnification Amount for the Adjustment of Shareholding Indemnification), as described in Exhibit A hereto (Indemnifications and Adjustments Calculation Spreadsheet);
F. WHEREAS, pursuant to Section 8.1.1(b) of the Investment Agreement, on October 21, 2014, TRIPs Shareholders had the opportunity to pay the Indemnification Amount for the Adjustment of Shareholding Indemnification in cash. However, they chose not to do so and therefore agreed to pay the amount due as indemnification to the Original Shareholders through the issuance of new AZUL Holding PN-A Shares, to be subscribed for and paid up by the Original Shareholders, pursuant to the terms of the respective Subscription Warrants for the Adjustment of Shareholding Original Shareholders;
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Page 3 of 15
G. WHEREAS, on the date hereof, the Parties agree that the formulas set forth in Sections 8.1.1(a)(i) and 8.2.1(a)(i) of the Investment Agreement (which formulas were also included in the Subscription Warrants for the Adjustment of Shareholding Indemnifications) (Formulas) need to be adjusted and fixed in order to obtain the correct number of shares that the Original Shareholders are entitled to subscribe for and pay up to dilute the shareholding of TRIPs Shareholders in AZUL Holding, proportionally to the Indemnification Amount for the Adjustment of Shareholding Indemnification (New Share Issuance Agreement Indemnification); and
H. WHEREAS, as a result of the New Share Issuance Agreement Indemnification, the Parties agree that (i) AZUL Holding shall make as many capital increases as necessary to allow Original Shareholders to subscribe for and pay up the number of shares indicated in the Indemnifications and Adjustments Calculation Spreadsheet, in order to document, in favor of the relevant shareholders, the Adjustments of Shareholding Indemnifications based on the Indemnification Amount for the Adjustment of Shareholding Indemnification; (ii) as a result of the inconsistencies identified in the Formulas, the Original Shareholders shall no longer exercise the Subscription Warrants for the Adjustment of Shareholding Original Shareholders, and accordingly agree that such securities shall be returned to AZUL Holding and permanently cancelled, and the Adjustments of Shareholding Indemnifications shall be exclusively made through the capital increases mentioned in Item (i) above; and (iii) because the Adjustments of Shareholding Indemnifications were favorable to the Original Shareholders and, consequently, the condition for exercise provided for TRIPs Shareholders Subscription Warrants Indemnification Adjustments did not occur, TRIPs Shareholders shall return the relevant securities to AZUL Holding to be permanently cancelled,
NOW, THEREFORE, THE PARTIES, together with the Intervening and Consenting Parties, have resolved to enter into this Third Amendment to the Investment Agreement (Third Amendment), which shall be governed by the following terms and conditions:
SECTION I
AMENDMENTS AND ADDITIONAL PROVISIONS
1.1. Based on procedures and documentation in connection with Adjustments of Shareholding Indemnifications, the Parties agree that, on the date hereof, Total Losses of Parties up to the Adjustment Indemnifications Date correspond to the Indemnification Amount for the Adjustment of Shareholding Indemnification (as provided in Item E above), pursuant to the conditions set forth in the Indemnifications and Adjustments Calculation Spreadsheet.
1.2. Taking into account that the Formulas need to be adjusted and fixed, the Parties agree to amend them, pursuant to Sections 1.3 and 1.4 below, in order to calculate the correct number of shares to be subscribed for by the Original Shareholders to decrease the shareholding of TRIPs Shareholders in a total real amount equivalent to the Indemnification Amount for the Adjustment of Shareholding Indemnification.
page 4 of 15
1.3. Taking into account the foregoing amendments, the Parties agree to amend Section 8.1.1(a)(i) of the Investment Agreement, which shall hereafter read as follows:
(i) Subject to the provisions of Section 8.5, up to the Adjustment Indemnifications Date, the Parties shall determine in good faith the total amount of Losses indemnifiable by TRIPs Shareholders, as provided in Section 8.1 and updated by the CDI, from the date of disbursement of the respective Losses to the Adjustment Indemnifications Date, which effectively generated a Cash Outflow on the part of AZUL Holdings Indemnifiable Parties within the period between the Date of Execution and the Adjustment Indemnifications Date (Losses With Cash Outflow of AZUL Holding). Conversely, the Parties shall in good faith determine the total amount of Losses indemnifiable by AZUL Holding, as provided in Section 8.2 below and updated by the CDI, from the date of disbursement of the respective Losses to the Adjustment Indemnifications Date, which effectively generated a Cash Outflow on the part of TRIPs Shareholders Indemnifiable Parties within the period between the Date of Execution and the Adjustment Indemnifications Date (Losses With Cash Outflow of TRIPs Shareholders). The sum of Losses With Cash Outflow of AZUL Holding and Losses With Cash Outflow of TRIPs Shareholders is referred to as Total Losses of Parties up to the Adjustment Indemnifications Date. In the event that the Total Losses of Parties up to the Adjustment Indemnifications Date are positive in favor of AZUL Holdings Indemnifiable Parties (that is, the Losses With Cash Outflow of AZUL Holding exceed the Losses With Cash Outflow of TRIPs Shareholders), then the Original Shareholders shall have the right to subscribe for and pay up, through successive capital increases, on a prorated basis to their stake in the share capital of AZUL Holding, the number of AZUL Holding PN-A Shares Post Private Placement (or any other preferred shares issued by AZUL Holding whose respective Class, at the moment of exercise of the subscription warrant, entitles their holders to the same rights and privileges currently attributed to Azul Holding PN-A Shares Post Private Placement) so as to allow a dilution in the shareholding of TRIPs Shareholders in AZUL Holding, proportionally to the balance of Total Losses of Parties up to the Adjustment Indemnifications Date in favor of Original Shareholders, as per the formula set forth below:
ARP = {(PPIAHPPIAT) / VPAPI} / PRT
where:
PRT = NAT / NAZ + ARP
a. ARP: Number of AZUL Holding PN-A Shares Post Private Placement (or other preferred shares entitling their holders to the same rights and privileges currently attributed to AZUL Holding PN-A Shares Post Private Placement) to be issued in favor of the Original Shareholders, by AZUL Holding;
b. PPIAT: Total amount of Losses With Cash Outflow of TRIPs Shareholders as of the Adjustment Indemnifications Date updated by the CDI;
Page 5 of 15
CONFIDENTIAL TREATMENT REQUESTED
c. PPIAH: Total amount of Losses With Cash Outflow of AZUL Holding as of the Adjustment Indemnifications Date updated by the CDI;
d. VPAPI: Individual amount of each preferred share, calculated as follows: (I) amount in Reais of the Pre-Money Valuation (as defined in Section 1.1) exclusively attributed to Class A common and preferred shares issued by AZUL Holding, according to the Conversion Rate of the day of pricing of the IPO, less (II) [*****] corresponding to the capital contribution made in AZUL Holding due to settlement of the Private Placement, duly updated by the CDI; the difference between (I) and (II) shall be divided by the difference between (i) the total number of shares issued by AZUL Holding immediately prior to the IPO (assuming the conversion of all common shares into AZUL Holding PN-A Shares Post Private Placement at a ratio of 75:1), less (ii) the number of preferred shares issued as a result of the Private Placement until the date of the IPO. Notwithstanding the foregoing, in case the IPO does not occur until the Deadline (therefore, with no Pre-Money Valuation), the amount corresponding to the difference between Items (I) and (II) above shall be [*****].
e. PRT: Resulting Shareholding of Trips Shareholders after the issuance of AZUL Holding PN-A Shares Post Private Placement, pursuant to the terms hereof, without taking into account the number of preferred shares issued as a result of the Private Placement;
f. NAT = Total number of shares issued by AZUL Holding held by Trips Shareholders (assuming the conversion of all common shares into AZUL Holding PN-A Shares Post Private Placement at a ratio of 75:1); and
g. NAZ = Total number of shares issued by AZUL Holding (assuming the conversion of all common shares into AZUL Holding PN-A Shares Post Private Placement at a ratio of 75:1) immediately before the issuance of the AZUL Holding PN-A Shares Post Private Placement, pursuant to the terms hereof, without taking into account the number of preferred shares issued as a result of the Private Placement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Page 6 of 15
1.4. As a result of the foregoing amendments, the Parties agree to amend Section 8.2.1(a)(i) of the Investment Agreement, which shall hereafter read as follows:
(i) Subject to the provisions of Sections 8.2.1(b) and 8.5, up to the Adjustment Indemnifications Date, the Parties shall determine in good faith the total amount of Losses with Cash Outflow of Trips Shareholders. Conversely, the Parties shall in good faith determine the total amount of Losses with Cash Outflow of AZUL Holdings Shareholders. In the event that the Total Losses of Parties up to the Adjustment Indemnifications Date are positive in favor of TRIPs Shareholders Indemnifiable Parties (that is, the Losses With Cash Outflow of TRIPs Shareholders exceed the Losses With Cash Outflow of AZUL Holding), then TRIPs Shareholders shall have the right to subscribe for and pay up, upon successive capital increases, on a prorated basis and proportionally to their stake in the share capital of AZUL Holding, the number of AZUL Holding PN-A Shares Post Private Placement (or any other preferred shares issued by AZUL Holding whose respective Class, at the moment of exercise of the subscription warrant, entitles their holders to the same rights and privileges currently attributed to AZUL Holding PN-A Shares Post Private Placement) so as to allow a dilution in the shareholding of the Original Shareholders in AZUL Holding, proportionally to the balance of Total Losses of Parties up to the Adjustment Indemnifications Date in favor of Trips Shareholders Indemnifiable Parties, as per the formula set forth below:
ARP = {(PPIATPPIAH) / VPAPI} / PRO
where:
PRO = NAT / NAZ + ARP
a. ARP: Number of AZUL Holding PN-A Shares Post Private Placement (or other preferred shares entitling their holders to the same rights and privileges currently attributed to AZUL Holding PN-A Shares Post Private Placement) to be issued in favor of Trips Shareholders by AZUL Holding;
b. PPIAT: Total amount of Losses With Cash Outflow of TRIPs Shareholders as of the Adjustment Indemnifications Date updated by the CDI;
c. PPIAH: Total amount of Losses With Cash Outflow of AZUL Holding as of the Adjustment Indemnifications Date updated by the CDI;
Page 7 of 15
CONFIDENTIAL TREATMENT REQUESTED
d. VPAPI: Individual amount of each preferred share, calculated as follows: (I) amount in Reais of the Pre-Money Valuation (as defined in Section 1.1) exclusively attributed to Class A common and preferred shares issued by AZUL Holding, according to the Conversion Rate of the day of pricing of the IPO, less (II) [*****] corresponding to the capital contribution made in AZUL Holding due to settlement of the Private Placement, duly updated by the CDI; the difference between (I) and (II) shall be divided by the difference between (i) the total number of shares issued by AZUL Holding immediately prior to the IPO (assuming the conversion of all common shares into AZUL Holding PN-A Shares Post Private Placement at a ratio of 75:1), less (ii) the number of preferred shares issued as a result of the Private Placement until the date of the IPO. Notwithstanding the foregoing, in case the IPO does not occur until the Deadline (therefore, with no Pre-Money Valuation), the amount corresponding to the difference between Items (I) and (II) above shall be [*****];
e. PRO: Resulting Shareholding of the Original Shareholders after the issuance of AZUL Holding PN-A Shares Post Private Placement, pursuant to the terms hereof, without taking into account the number of preferred shares issued as a result of the Private Placement;
f. NAT = Total number of shares issued by AZUL Holding held by the Original Shareholders (assuming the conversion of all common shares into AZUL Holding PN-A Shares Post Private Placement at a ratio of 75:1); and
g. NAZ = Total number of shares issued by AZUL Holding (assuming the conversion of all common shares into AZUL Holding PN-A Shares Post Private Placement at a ratio of 75:1) immediately before the issuance of the AZUL Holding PN-A Shares Post Private Placement, pursuant to the terms hereof, without taking into account the number of preferred shares issued as a result of the Private Placement.
1.5. As a result of the Adjustments of Shareholding Indemnifications made in accordance with the new formulas set forth in Sections 1.3 and 1.4 above, the Parties acknowledge and agree that the Original Shareholders shall have the right to subscribe for and pay up, jointly and proportionally to their stake in the share capital of AZUL Holding, upon one or more capital increases, to be documented and made on the date hereof, the total amount of 3,008,801 (three million, eight thousand, eight hundred and one) AZUL Holding PN-A Shares Post Private Placement (Adjustment Shares), for a total price of [*****], diluting, at the same proportion, the shareholding of Trips Shareholders and making total shares held by them correspond to an amount equal to the difference between (i) the price of the shares held by them until the date hereof, and (ii) the Indemnification Amount for the Adjustment of Shareholding Indemnifications. The total loss of the economic value of the shares of Trips Shareholders therefore equals to, on the date hereof, the Indemnification Amount for the Adjustment of Shareholding Indemnifications. For purposes hereof, the economic value of AZUL Holding was set at [*****].
1.5.1. TRIPs Shareholders hereby agree to waive their respective preemptive rights in capital increases to be made in AZUL Holding on the date hereof, in order to ensure that the Original Shareholders may, solely and exclusively, subscribe for and pay up, in accordance with the proportion and the issue prices set forth in the Indemnifications and Adjustments Calculation Spreadsheet, all Adjustment Shares.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Page 8 of 15
1.6. Due to the inconsistencies identified in the Formulas and capital increases to be made on the date hereof in order to document the Adjustments of Shareholding Indemnifications, pursuant to Sections 1.5 and 1.5.1 above, the Original Shareholders agree to no longer exercise the Subscription Warrants for the Adjustments of Shareholding Original Shareholders, for which reason they return such securities to AZUL Holding to be permanently cancelled on the date hereof. Upon the issuance, subscription and payment of the Adjustment Shares on the date hereof, the Original Shareholders (i) acknowledge that, on the Adjustment Indemnifications Date, Total Losses of Parties until the Adjustment Indemnifications Date were positive in favor of the Indemnifiable Parties of AZUL Holding in an amount equal to the Indemnification Amount for the Adjustment of Shareholding Indemnifications; (ii) give full and unrestricted release of Trips Shareholders obligation to indemnify pursuant to the Investment Agreement until the Adjustment Indemnifications Date, in accordance with the new wording hereby provided for to Section 8.1.1(a)(i) of the Investment Agreement, acknowledging they have nothing further to request, seek, or claim as a result of the abovementioned provision.
1.7. Because the Adjustments of Shareholding Indemnifications were favorable to the Original Shareholders and, consequently, the condition for exercise provided for Trips Shareholders Subscription Warrants Indemnifications Adjustment did not occur, Trips Shareholders shall not exercise such securities, for which reason they return them to AZUL Holding to be permanently cancelled on the date hereof. Upon the issuance, subscription, and payment, on the date hereof, of the Adjustment Shares by the Original Shareholders, TRIPs Shareholders give full and unrestricted release of the Original Shareholders obligation to indemnify, in accordance with the new wording hereby provided for to Section 8.2.1(a)(i) of the Investment Agreement, acknowledging they have nothing further to request, seek, or claim as a result of the abovementioned provision.
1.8. In addition to Sections 1.6 and 1.7 above, upon the issuance, subscription, and payment of the Adjustment Shares on the date hereof, the Parties mutually give full and unrestricted release of all obligations to indemnify incurred under discussion between the Parties in the assessment of the indemnification basket until the Adjustment Indemnifications Date. It is hereby noted that: (i) the Adjustments of Shareholding Indemnifications also fully include the amounts that were already settled and any installments payable in connection with the option for REFIS, by Trip Serviços de Suporte Aéreo S.A., in August 2014; and (ii) the negative balance (tax loss) used by Trip Serviços de Suporte Aéreo S.A. to amortize the REFIS installment program does not fit the definition of Loss (as defined in the Investment Agreement).
1.9. The Parties agree to set the Adjustment Indemnifications Date, for all purposes of the Investment Agreement (including as amended hereby), as August 30, 2014. The Parties agree that the Adjustment of Shareholding Indemnifications reflect the positive balance in favor of the Indemnifiable Parties of AZUL Holding until the Adjustment Indemnifications Date, and that, for all purposes, the indemnification method included in Sections 8.3 and following of the Investment Agreement shall be applicable as of the day following the Adjustment Indemnifications Date, as provided for in the Investment Agreement.
Page 9 of 15
SECTION II
GENERAL PROVISIONS
2.1. For all purposes of the law, the new terms and conditions set forth herein take effect as of the date hereof.
2.2. The Parties undertake and ratify all other provisions of the Investment Agreement that were not hereby expressly amended, including, without limitation, the other indemnification duties of the Parties provided for in Section 8 of the Investment Agreement.
2.3. Except if expressly otherwise defined herein, capitalized words and expressions shall have the meaning ascribed to them in the Investment Agreement.
2.4. This Third Amendment shall be governed and construed in accordance with the Laws of Brazil.
2.5. All disputes arising out of or in connection herewith and exhibits hereto shall be resolved by arbitration, pursuant to Law No. 9.307/96, as amended, upon the conditions set forth in the Investment Agreement.
IN WITNESS THEREOF, the Parties have caused this Third Amendment to be signed in 8 (eight) counterparts of equal tenor and form, before the 2 (two) undersigned witnesses.
São Paulo, October 22, 2014.
(The remainder of this page is intentionally left blank)
(Signatures on the following pages)
Page 10 of 15
(Signature page 1 of 4 of the Third Amendment to the Investment Agreement, dated October 22, 2014, among TRIP Participações S.A., TRIP Investimentos S.A., Rio Novo Locações Ltda., AZUL S.A. and, also, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A., and David Gary Neeleman)
TRIP PARTICIPAÇÕES S.A. | ||
/s/ José Mario Caprioli |
/s/ Renan Chieppe | |
Name: José Mario Caprioli | Name: Renan Chieppe | |
Title: Diretor | Title: Diretor | |
TRIP INVESTIMENTOS LTDA. | ||
/s/ José Mario Caprioli |
/s/ Renan Chieppe | |
Name: José Mario Caprioli | Name: Renan Chieppe | |
Title: Diretor | Title: Diretor | |
RIO NOVO LOCAÇÕES LTDA. | ||
/s/ Decio Luiz Chieppe |
/s/ Luiz Wagner Chieppe | |
Name: Decio Luiz Chieppe | Name: Luiz Wagner Chieppe | |
Title: | Title: | |
TRIP SERVIÇOS DE SUPORTE AÉREO S.A. | ||
/s/ John Rodgerson |
| |
Name: John Rodgerson | Name: | |
Title: Procurador | Title: |
Page 11 of 15
(Signature page 2 of 4 of the Third Amendment to the Investment Agreement, dated October 22, 2014, among TRIP Participações S.A., TRIP Investimentos S.A., Rio Novo Locações Ltda., AZUL S.A. and, also, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A., and David Gary Neeleman)
AZUL S.A. | ||
/s/ John Peter Rodgerson |
||
Name: John Peter Rodgerson | ||
Title: Procurador | ||
AZUL LINHAS AÉREAS BRASILEIRAS S.A. | ||
/s/ John Peter Rodgerson |
||
Name: John Peter Rodgerson | ||
Title: Procurador |
Page 12 of 15
(Signature page 3 of 4 of the Third Amendment to the Investment Agreement, dated October 22, 2014, among TRIP Participações S.A., TRIP Investimentos S.A., Rio Novo Locações Ltda., AZUL S.A. and, also, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A., and David Gary Neeleman)
DAVID GARY NEELEMAN | ||
/s/ David Gary Neeleman |
||
Page 13 of 15
(Signature page 4 of 4 of the Third Amendment to the Investment Agreement, dated October 22, 2014, among TRIP Participações S.A., TRIP Investimentos S.A., Rio Novo Locações Ltda., AZUL S.A. and, also, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A., and David Gary Neeleman)
WITNESSES: | ||
/s/ Julia Almeida Shimizy |
||
Name: Julia Almeida Shimizy | ||
ID (RG): 34.994.802-1 | ||
/s/ Jayane Raissa de Menezes |
||
Name: Jayane Raissa de Menezes | ||
ID (RG): 41.039.497-X |
Page 14 of 15
EXHIBIT A
INDEMNIFICATIONS AND ADJUSTMENTS CALCULATION SPREADSHEET
Shareholder Structure (Pre-Private)
Azul S.A. Shareholder Structure | ||||||||||||||||||||||||||||
Common | % Common | Preferred | % PNs | Total Economic Shares (Common Converted to PN) |
% Equity | |||||||||||||||||||||||
David Neeleman |
311,203,319 | 67.0 | % | 4,247,648 | 4.7 | % | 8,397,026 | 8.7 | % | TRIP | ||||||||||||||||||
|
|
|||||||||||||||||||||||||||
Trip Participações S.A. |
101,164,356 | 21.8 | % | 17,149,440 | 19.0 | % | 18,498,298 | 19.2 | % | 29.1 | % | |||||||||||||||||
Trip Investimentos Ltda. |
39,852,572 | 8.6 | % | 6,755,835 | 7.5 | % | 7,287,203 | 7.6 | % | |||||||||||||||||||
Rio Novo Locações Ltda.. |
12,262,282 | 2.6 | % | 2,078,711 | 2.3 | % | 2,242,208 | 2.3 | % | |||||||||||||||||||
Grupo Bozano |
| 0.0 | % | 13,732,420 | 15.2 | % | 13,732,420 | 14.2 | % | |||||||||||||||||||
Weston Presidio |
| 0.0 | % | 11,384,563 | 12.6 | % | 11,384,563 | 11.8 | % | |||||||||||||||||||
Zweig DiMenna |
| 0.0 | % | 8,248,648 | 9.1 | % | 8,248,648 | 8.6 | % | |||||||||||||||||||
TPG Growth (Star Sabia LLC) |
| 0.0 | % | 7,845,017 | 8.7 | % | 7,845,017 | 8.1 | % | |||||||||||||||||||
Gávea Investimentos |
| 0.0 | % | 6,779,600 | 7.5 | % | 6,779,600 | 7.0 | % | |||||||||||||||||||
Azul Holdco, LLC |
| 0.0 | % | 4,819,518 | 5.3 | % | 4,819,518 | 5.0 | % | |||||||||||||||||||
Peterson Partners (Maracatu LLC) |
| 0.0 | % | 4,677,591 | 5.2 | % | 4,677,591 | 4.9 | % | |||||||||||||||||||
Minority shareholders |
| 0.0 | % | 2,523,796 | 2.8 | % | 2,523,796 | 2.6 | % | |||||||||||||||||||
Total |
464,482,529 | 100.0 | % | 90,242,787 | 100.0 | % | 96,435,887 | 100.0 | % | |||||||||||||||||||
Note: Totals may include differences due to rounding |
|
Investment (R$MM) | PN-B Shares | Preffered Conversion | ||||||||||
Fidelity |
118 | 1,182,650 | 1,182,650 | |||||||||
Growth Co |
102 | 1,017,079 | 1,017,079 | |||||||||
Blue Chip |
17 | 165,571 | 165,571 | |||||||||
Cia. Bozano |
75 | 749,409 | 749,409 | |||||||||
Peterson Partners |
47 | 468,329 | 468,329 | |||||||||
Note: Assuming a 2.33 BRL/USD exchange rate |
|
Shareholder Structure (Post Private Placement and Pre-Conversion) | ||||||||||||||||||||||||||||
Azul S.A. Shareholder Structure | ||||||||||||||||||||||||||||
Common | % Common | Preferred | % PNs | Total Economic Shares (Common Converted to PN) |
% Equity | |||||||||||||||||||||||
David Neeleman |
311,203,319 | 67.0 | % | 4,247,648 | 4.6 | % | 8,397,026 | 8.7 | % | TRIP | ||||||||||||||||||
|
|
|||||||||||||||||||||||||||
Trip Participações S.A. |
101,164,356 | 21.8 | % | 17,149,440 | 18.5 | % | 18,498,298 | 19.2 | % | 29.1 | % | |||||||||||||||||
Trip Investimentos Ltda. |
39,852,572 | 8.6 | % | 6,755,835 | 7.3 | % | 7,287,203 | 7.6 | % | |||||||||||||||||||
Rio Novo Locações Ltda.. |
12,262,282 | 2.6 | % | 2,078,711 | 2.2 | % | 2,242,208 | 2.3 | % | |||||||||||||||||||
Grupo Bozano |
| 0.0 | % | 13,732,420 | 14.8 | % | 13,732,420 | 14.2 | % | |||||||||||||||||||
Weston Presidio |
| 0.0 | % | 11,384,563 | 12.3 | % | 11,384,563 | 11.8 | % | |||||||||||||||||||
Zweig DiMenna |
| 0.0 | % | 8,248,648 | 8.9 | % | 8,248,648 | 8.6 | % | |||||||||||||||||||
TPG Growth (Star Sabia LLC) |
| 0.0 | % | 7,845,017 | 8.5 | % | 7,845,017 | 8.1 | % | |||||||||||||||||||
Gávea Investimentos |
| 0.0 | % | 6,779,600 | 7.3 | % | 6,779,600 | 7.0 | % | |||||||||||||||||||
Azul Holdco, LLC |
| 0.0 | % | 4,819,518 | 5.2 | % | 4,819,518 | 5.0 | % | |||||||||||||||||||
Peterson Partners (Maracatu LLC) |
| 0.0 | % | 4,677,591 | 5.0 | % | 4,677,591 | 4.8 | % | |||||||||||||||||||
Minority shareholders |
| 0.0 | % | 2,523,796 | 2.7 | % | 2,523,796 | 2.6 | % | |||||||||||||||||||
Private Placement Investors |
| 0.0 | % | 2,400,388 | 2.6 | % | 32,005 | 0.0 | % | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Fidelity |
| 0.0 | % | 1,182,650 | 1.3 | % | 15,769 | 0.0 | % | |||||||||||||||||||
Cia. Bozano |
| 0.0 | % | 749,409 | 0.8 | % | 9,992 | 0.0 | % | |||||||||||||||||||
Peterson Partners |
| 0.0 | % | 468,329 | 0.5 | % | 6,244 | 0.0 | % | |||||||||||||||||||
|
|
|
|
|
|
|
|
|
|
|
|
|||||||||||||||||
Total |
464,482,529 | 100.0 | % | 92,643,175 | 100.0 | % | 96,467,893 | 100.0 | % |
CONFIDENTIAL TREATMENT REQUESTED
Azul Capital Structure - Sep. 30, 2014 October 2014 (post adjustment)
|
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||
Shareholders |
Common | PN-A | PN-B | TOTAL | PN-A issued for the Indemnification Adjustment |
Price per Share |
ON % | PN-A% | PN-B% | TOTAL | ONs converted into PN-A |
PN-B Converted into PN-A |
Fully Converted PNs |
Total Economic Interest |
||||||||||||||||||||||||||||||||||||||||||
David Neeleman |
311,203,319.00 | 190,881 | | 311,394,200.0 | 190,881 | R$[*****] | 67.00 | % | 0.21 | % | | 55.89 | % | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||||||||
Saleb II Founder 1 LLC - David Neeleman |
| 4,247,648 | | 4,247,648 | 186,808 | R$[*****] | | 4.71 | % | | 0.76 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 2 LLC - Gerald Blake Lee |
| 334,972 | | 334,972 | 14,732 | R$[*****] | | 0.37 | % | | 0.06 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 3 LLC - Thomas Eugene Kelly |
| 143,679 | | 143,679 | 6,319 | R$[*****] | | 0.16 | % | | 0.03 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 4 LLC - Tom Anderson |
| 30,878 | | 30,878 | 1,358 | R$[*****] | | 0.03 | % | | 0.01 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 5 LLC - Carol Elizabeth Archer |
| 23,891 | | 23,891 | 1,051 | R$[*****] | | 0.03 | % | | 0.00 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 6 LLC - Cindy England |
| 334,972 | | 334,972.00 | 14,732 | R$[*****] | | 0.37 | % | | 0.06 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 7 LLC - Robert Land |
| 30,878 | | 30,878 | 1,358 | R$[*****] | | 0.03 | % | | 0.01 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 8 LLC - Robert Milton |
| 143,595 | | 143,595 | 6,315 | R$[*****] | | 0.16 | % | | 0.03 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 9 LLC - Mark Neeleman |
| 19,121 | | 19,121 | 841 | R$[*****] | | 0.02 | % | | 0.00 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 10 LLC - Marlon Yair Ramirez |
| 71,756 | | 71,756 | 3,156 | R$[*****] | | 0.08 | % | | 0.01 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 11 LLC - John Rodgerson |
| 167,444 | | 167,444 | 7,364 | R$[*****] | | 0.19 | % | | 0.03 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 12 LLC - Maximiliam Urban |
| 430,660 | | 430,660 | 18,940 | R$[*****] | | 0.48 | % | | 0.08 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 13 LLC - Joel Peterson |
| 106,190 | | 106,190 | 4,670 | R$[*****] | | 0.12 | % | | 0.02 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 14 LLC - Amir Nasruddin |
| 44,643 | | 44,643 | 1,963 | R$[*****] | | 0.05 | % | | 0.01 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 15 LLC - Jason Truman Ward |
| 28,702 | | 28,702 | 1,262 | R$[*****] | | 0.03 | % | | 0.01 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Saleb II Founder 16 LLC - John Joseph Daly |
| 23,891 | | 23,891 | 1,051 | R$[*****] | | 0.03 | % | | 0.00 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Gianfranco Beting |
| 23,096 | | 23,096 | 1,016 | R$[*****] | | 0.03 | % | | 0.00 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Regis da Silva Brito |
| 6,694 | | 6,694 | 294 | R$[*****] | | 0.01 | % | | 0.00 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Star Sabia LLC |
| 7,845,017 | | 7,845,017 | 345,017 | R$[*****] | | 8.69 | % | | 1.41 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
WP-New Air LLC |
| 11,384,563 | | 11,384,563 | 500,683 | R$[*****] | | 12.62 | % | | 2.04 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Azul HolCo, LLC |
| 4,819,518 | | 4,819,518 | 211,958 | R$[*****] | | 5.34 | % | | 0.87 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Maracatu LLC (Peterson Partners) |
| 4,677,591 | 468,329.00 | 5,145,920 | 205,991 | R$[*****] | | 5.18 | % | 19.51 | % | 0.92 | % | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||||||||
GIF Mercury LLC |
| 1,569,003 | | 1,569,003 | 69,003 | R$[*****] | | 1.74 | % | | 0.28 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
GIF- II Fundo de Inv. em Part. |
| 5,210,597 | | 5,210,597 | 229,157 | R$[*****] | | 5.77 | % | | 0.94 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
ZDBR LLC |
| 8,248,648 | | 8,248,648 | 362,768 | R$[*****] | | 9.14 | % | | 1.48 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Kadon Empreendimentos S.A |
| 8,379,357 | | 8,379,357 | 368,517 | R$[*****] | | 9.29 | % | | 1.50 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Bozano Holdings Ltd. |
| 5,353,063 | | 5,353,063 | 235,423 | R$[*****] | | 5.93 | % | | 0.96 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Carolyn Trabuco |
| 40 | | 40 | 0 | | 0.00 | % | | 0.00 | % | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||||||||||
Sergio Eraldo Sales Pinto |
| 40 | | 40 | 0 | | 0.00 | % | | 0.00 | % | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||||||||||
JJL Brazil LLC |
| 261,501 | | 261,501 | 11,501 | R$[*****] | | 0.29 | % | | 0.05 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Morris Azul, LLC |
| 77,530 | | 77,530 | 3,410 | R$[*****] | | 0.09 | % | | 0.01 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Miguel Dau |
| 19,121 | | 19,121 | 841 | R$[*****] | | 0.02 | % | | 0.00 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Henrique de Campos Meirelles |
| 40 | | 40 | 0 | | 0.00 | % | | 0.00 | % | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||||||||||
João Carlos Fernandes |
| 9,581 | | 9,581 | 421 | R$[*****] | | 0.01 | % | | 0.00 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||
Trip Participações S.A. |
101,164,356 | 17,149,440 | | 118,313,796 | 21.78 | % | 19.00 | % | | 21.24 | % | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||||||||||
Trip Investimentos Ltda. |
39,852,572 | 6,755,835 | | 46,608,407 | 8.58 | % | 7.49 | % | | 8.37 | % | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||||||||||
Rio Novo Locações Ltda. |
12,262,282 | 2,078,711 | | 14,340,993 | 2.64 | % | 2.30 | % | | 2.57 | % | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||||||||||
Total Trip Shareholder Shares |
153,279,210 | 25,983,986 | | 179,263,196 | 33.00 | % | 28.79 | % | | 32.18 | % | [*****] | [*****] | [*****] | [*****] | |||||||||||||||||||||||||||||||||||||||||
Fidelity Growth Company Fund |
| | 1,017,079.00 | 1,017,079 | | | 42.37 | % | 0.18 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||||
Fidelity Blue Chip Growth Fund |
| | 165,571.00 | 165,571 | | | 6.90 | % | 0.03 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||||
Cia. Bozano |
| | 749,409.00 | 749,409 | | | 31.22 | % | 0.13 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||||||
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TOTAL |
464,482,529 | 90,242,787 | 2,400,388.00 | 557,125,704.00 | 3,008,801 | R$[*****] | 100.00 | % | 100.00 | % | 100.00 | % | 100.00 | % | [*****] | [*****] | [*****] | [*****] | ||||||||||||||||||||||||||||||||||||||
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Preferred shares | | |||||||||||||||||||||||||||||||||||||||||||||||||||||||
Common shares |
Ordinary shares | 464,482,529 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||
Preferred shares |
Pro-forma preferred | 6,193,100 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Execution version
FOURTH AMENDMENT TO THE INVESTMENT AGREEMENT
by and among
TRIP PARTICIPAÇÕES S.A.,
TRIP INVESTIMENTOS LTDA.,
RIO NOVO LOCAÇÕES LTDA.,
AZUL S.A.,
CALFINCO, INC.
and
and, as intervening and consenting parties,
AZUL LINHAS AÉREAS BRASILEIRAS S.A.
TRIP LINHAS AÉREAS S.A.;
and
DAVID GARY NEELEMAN
DATED JUNE 26, 2015
Execution version
FOURTH AMENDMENT TO THE INVESTMENT AGREEMENT
By this private instrument, by and among,
(a) | TRIP PARTICIPAÇÕES S.A., a corporation with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 09.229.532/0001-70, herein represented by its undersigned legal representatives (TRIP Participações); |
(b) | TRIP INVESTIMENTOS LTDA., a limited liability company with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 15.300.240/0001-89, herein represented by its undersigned legal representatives (TRIP Investimentos); |
(c) | RIO NOVO LOCAÇÕES LTDA., a limited liability company with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 6.3, Suite 208, CEP 29157-405, registered as taxpayer under CNPJ/MF No.04.373.710/0001-18, herein represented by its undersigned legal representatives (Rio Novo and, together with TRIP Participações and TRIP Investimentos, TRIPs Shareholders); |
(d) | AZUL S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, No. 939, 8th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 09.305.9994/0001-29, herein represented by its undersigned legal representatives (AZUL Holding); and |
(e) | CALFINCO, INC., a company incorporated under the laws of Delaware, United States of America, and a wholly owned subsidiary of United Airlines, Inc., having its principal place of business at 233 S. Wacker Dr., Chicago, Illinois 60606, United States of America, enrolled with the CNPJ/MF under No. 22.699.769/0001-82 (Calfinco). |
And, in the capacity of intervening and consenting parties (the Intervening and Consenting Parties):
(f) | AZUL LINHAS AÉREAS BRASILEIRAS S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, No. 939, 9th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 09.296.295/0001-60, herein represented by its undersigned legal representatives; |
(g) | TRIP LINHAS AÉREAS S.A., a corporation with head office in the City of Campinas, State of São Paulo, at Avenida Cambacicas, 1200, Parque Imperador, CEP 13097-104, registered as taxpayer under CNPJ/MF No. 02.428.624/0001-30, herein represented by its undersigned legal representatives (TRIP); and |
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(h) | DAVID GARY NEELEMAN, Brazilian, married, bearer of Identification Card RG No. 53.031.273-6 SSP/SP and registered as taxpayer under CPF/MF No. 744.573.731-68 (Neeleman), herein represented by his undersigned attorneys-in-fact. |
PREAMBLE
A. WHEREAS, on May 25, 2012, TRIPs Shareholders and AZUL Holding and the Intervening and Consenting Parties executed the Investment Agreement (Original Investment Agreement), in order to determine, subject to the terms and conditions set forth in the Original Investment Agreement, the merger of all TRIPs Shares into AZUL Holding (as provided for in the Original Investment Agreement), and subsequently delivered newly issued shares of AZUL Holding to TRIPs Shareholders, without causing the winding up of TRIP, pursuant to the provisions of article 252 of Law No. 6,404, dated December 15, 1976;
B. WHEREAS, on August 15, 2012, TRIPs Shareholders and AZUL Holding and the Intervening and Consenting Parties executed the First Amendment to the Agreement (First Amendment), which amended certain terms and conditions of the Original Investment Agreement;
C. WHEREAS, on December 27, 2013, TRIPs Shareholders and AZUL Holding executed the Second Amendment to the Original Investment Agreement (Second Amendment), which further amended certain terms and conditions of the Original Investment Agreement;
D. WHEREAS, on October 22, 2014, TRIPs Shareholders and AZUL Holding executed the Third Amendment to the Original Investment Agreement (Third Amendment, and the Original Investment Agreement, as amended in accordance with the terms of the First Amendment, Second Amendment and Third Amendment, hereinafter simply referred to as Investment Agreement), which further amended certain terms and conditions of the Original Investment Agreement;
E. WHEREAS, attached as an exhibit to the Investment Agreement is a form of Shareholders Agreement to be entered into by and among TRIPs Shareholders, Neeleman and AZUL Holding, as intervening and consenting party, upon an initial public offering of AZUL Holdings shares (the Form of Post-IPO Shareholders Agreement);
F. WHEREAS, simultaneously with the execution of this Fourth Amendment (as defined below), AZUL Holding, United Airlines, Inc. a corporation organized under the laws of the State of Delaware, United States of America, having its principal place of business at 233 South Wacker Dr, Chicago, IL 60606 (United) and Calfinco Inc. a company incorporated under the laws of Delaware, United States of America, having its principal place of business at 233 S. Wacker Dr., Chicago, Illinois 60606, a wholly owned subsidiary of United (Calfinco), are entering into an Investment Agreement pursuant to which AZUL Holding has agreed to issue and Calfinco has agreed to subscribe for Class C Preferred Shares (as defined in the Investment Agreement);
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G. WHEREAS, the Parties wish to amend the Investment Agreement in order to reflect Calfinco and its rights as a shareholder of AZUL Holding in the Form of Post-IPO Shareholders Agreement, as set forth in this Amendment.
NOW, THEREFORE, THE PARTIES, together with the Intervening and Consenting Parties, in consideration of the foregoing and the mutual agreements contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, have resolved to enter into this Fourth Amendment to the Investment Agreement (Fourth Amendment), which shall be governed by the following terms and conditions:
SECTION I
AMENDMENT
1.1. The Parties agree that the Investment Agreement shall be, and hereby is, amended by amending and restating the Post-IPO Shareholders Agreement in its entirety in the form attached hereto as Exhibit A.
SECTION II
GENERAL PROVISIONS
2.1. The Parties undertake and ratify all other provisions of the Investment Agreement that were not hereby expressly amended.
2.2. Regardless of the provisions of the Investment Agreement hereby excluded, terms defined in excluded sections and used in other sections remain in effect.
2.3. Sections including references to sections that were hereby excluded from the Investment Agreement shall not lose their validity and effectiveness due to such exclusions, and shall be construed based on a meaning as close as possible to the meaning ascribed to them before such exclusions.
2.4. Except if expressly otherwise defined herein, capitalized words and expressions shall have the meaning ascribed to them in the Investment Agreement. For purposes of clarification, the defined term Parties shall not include Calfinco, whose rights and obligations under the Investment Agreement, as amended by this Fourth Amendment are limited to Section 2.7 and Section 2.8 hereof and the form of the Post-IPO Shareholders Agreement.
2.5. The numbering of the sections and the provisions of the Investment Agreement shall not be altered as a result of the exclusion of any section hereunder.
2.6. This Fourth Amendment shall be governed and construed in accordance with the Laws of Brazil.
4
CONFIDENTIAL TREATMENT REQUESTED
Execution version
2.7. The Parties agree that (i) the form of the Post-IPO Shareholders Agreement attached hereto as Exhibit A may not be in any way be amended by any of the Parties without the prior and express written consent of Calfinco; and (ii) no other amendment to any provision of the Investment Agreement as amended from time to time shall require Calfincos prior approval, provided that any such amendment is not inconsistent with this Section 2.7.
2.8. Conflict Resolution. With the exception of disputes relating to obligations to pay and the rights of Calfinco to be a party to the Post-IPO Shareholders Agreement and to enforce the provisions of Section 2.7, which include judicial enforcement proceedings and that may require, at the outset, specific execution, all other disputes arising out of or in connection with this Agreement and exhibits hereto in terms of validity, effectiveness, violation, interpretation, expiration, termination and respective consequences, among others, shall be resolved by arbitration, pursuant to Law No. 9.307/96, as amended, upon the conditions that follow.
2.8.1. The dispute shall be submitted to the International Chamber of Commerce (Arbitration Center) in accordance with its regulation (Regulation), effective as of the date of the request for initiation of arbitration. The arbitration shall be conducted in Portuguese.
2.8.2. The place of arbitration shall be the City of São Paulo, State of São Paulo, Brazil, where the arbitral decision shall be rendered, and the arbitrators are not authorized to rule based on equity.
2.8.3. The arbitral tribunal shall comprise three arbitrators, where the applicant(s), on one hand, shall appoint one arbitrator, and the defendant(s), on the other, appoint a second arbitrator, which, by common agreement, shall appoint the third arbitrator who shall act as President of the arbitral tribunal (the Arbitral Tribunal). If either party fails to appoint an arbitrator and/or 2 (two) arbitrators appointed by the Parties fail to appoint the third arbitrator within [*****] from the date set forth for such action, the president of the Arbitration Center shall be responsible for appointing the third arbitrator in the manner set forth in its Regulation.
2.8.4. The Parties agree that the Party upon which the adverse decision is imposed shall pay the fees and expenses incurred with the arbitrators and the Arbitration Center, if otherwise not established in the arbitration award. The Parties shall bear the cost and fees of their respective attorneys.
2.8.5. Each Party remains entitled to propose in the competent common court the legal measures aimed at obtaining provisional measures for protection or safeguarding of rights or as preparation prior to the establishment of the Arbitral Tribunal, such action not to be construed as a waiver of arbitration. For the exercise of such remedies, the Parties elect the courts sitting in the City of São Paulo, State of São Paulo, as competent jurisdiction, expressly waiving any other, no matter how privileged it may be.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
5
Execution version
2.8.6. According to article 475-P of the Brazilian Civil Procedure Code, the execution of the award shall take place in the judicial district where the arbitration was processed (the City of São Paulo, State of São Paulo), the execution creditor being able to legally opt for the location where assets subject to expropriation are located or the current residence of the execution debtor. Each Party shall use its best efforts to ensure the expeditious and efficient completion of the arbitration procedures.
2.8.7. Regardless of the nature of the dispute to be settled through arbitration, all Parties shall participate in it, either as party (when the dispute directly involves it as claimant or counterclaimant), or as interested third party (when it may be, in any way, directly or indirectly affected by decisions to be made in the course or at the end of the arbitration procedure). Likewise, the award shall be final and binding on all Parties, regardless of any refusal by any Party to participate in the arbitration procedure, either as party or interested third party.
IN WITNESS THEREOF, the Parties have caused their representatives to sign this Fourth Amendment in 8 (eight) counterparts of equal tenor and form, before the 2 (two) undersigned witnesses.
São Paulo, June 26, 2015.
(The remainder of this page intentionally left blank)
(Signatures on the following pages)
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Execution version
(Signature page 1 of 5 of the Fourth Amendment to the Investment Agreement, dated June 26, 2015, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., Calfinco, Inc., and, also, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A., and Neeleman)
TRIP PARTICIPAÇÕES S.A. | ||
/s/ Renan Chieppe |
/s/ Jose Mario Caprioli dos Santos | |
Name: Renan Chieppe | Name: Jose Mario Caprioli dos Santos | |
Title: | Title: | |
TRIP INVESTIMENTOS LTDA. | ||
/s/ Renan Chieppe |
/s/ Jose Mario Caprioli dos Santos | |
Name: Renan Chieppe | Name: Jose Mario Caprioli dos Santos | |
Title: | Title: | |
RIO NOVO LOCAÇÕES LTDA. | ||
/s/ Decio Luiz Chieppe |
/s/ Luiz Wagner Chieppe | |
Name: Decio Luiz Chieppe | Name: Luiz Wagner Chieppe | |
Title: | Title: | |
TRIP LINHAS AÉREAS S.A. | ||
/s/ David Gary Neeleman |
||
Name: David Gary Neeleman | ||
Title: President |
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Execution version
(Signature page 1 of 5 of the Fourth Amendment to the Investment Agreement, dated June 26, 2015, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., Calfinco, Inc., and, also, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A., and Neeleman)
AZUL S.A. | ||
/s/ David Gary Neeleman |
||
Name: David Gary Neeleman | ||
Title: President |
AZUL LINHAS AÉREAS BRASILEIRAS S.A. | ||
/s/ Antonoaldo Neves |
||
Name: Antonoaldo Neves | ||
Title: President |
CALFINCO, INC. | ||
/s/ John D. Rainey |
||
Name: John D. Rainey | ||
Title: President |
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Execution version
(Signature page 1 of 5 of the Fourth Amendment to the Investment Agreement, dated June 26, 2015, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., Calfinco, Inc., and, also, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A., and Neeleman)
DAVID NEELEMAN | ||
/s/ David Neeleman |
||
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Execution version
(Signature page 1 of 5 of the Fourth Amendment to the Investment Agreement, dated June 26, 2015, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., Calfinco, Inc., and, also, as intervening and consenting parties, AZUL Linhas Aéreas S.A., TRIP Linhas Aéreas S.A., and Neeleman)
WITNESSES: | ||
/s/ Ellen Blanco |
||
Name: Ellen Blanco | ||
ID (RG): |
/s/ Aurora de Fatima Garcia Vezzelli |
||
Name: Aurora de Fatima Garcia Vezzelli | ||
ID (RG): |
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Execution version
Exhibit A
[See Attached.]
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Execution version
FORM OF SHAREHOLDERS AGREEMENT
by and among
TRIP PARTICIPAÇÕES S.A.,
TRIP INVESTIMENTOS LTDA.,
RIO NOVO LOCAÇÕES LTDA.,
DAVID GARY NEELEMAN
and
CALFINCO INC.
and as intervening and consenting party,
AZUL S.A.
DATED []
Execution version
SHAREHOLDERS AGREEMENT
This Shareholders Agreement (Agreement) is entered into by and among the following parties:
By and among,
(a) TRIP PARTICIPAÇÕES S.A., a corporation, with head office in the City of Cariacica, State of Espirito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29.145-901, registered as taxpayer under CNPJ/MF No. 09.229.532/0001-70, herein represented by its undersigned legal representatives (TRIP Participações);
(b) TRIP INVESTIMENTOS LTDA., a limited liability company, with head office in the City of Campinas, State of São Paulo, at Avenida Cambacicas, nº 1200, Parque Imperador, Condomínio Flex Buildings, Módulo 2, CEP 13097-104, registered as taxpayer under CNPJ/MF No. 15.300.240/0001-89, herein represented by its undersigned legal representatives (TRIP Investimentos);
(c) RIO NOVO LOCAÇÕES LTDA., a limited liability company with head office in the City of Cariacica, State of Espirito Santo, at Rodovia BR 262, Km 6,3, Sala 208,, CEP 29.157-405, registered as taxpayer under CNPJ/MF No. 04.373.710/0001-18, herein represented by its undersigned legal representatives (Rio Novo and, together with TRIP Participações and TRIP Investimentos, the TRIPs Shareholders);
(d) CALFINCO INC. (Calfinco), a corporation organized under the laws of the State of Delaware, United States of America, having its principal place of business at 233 South Wacker Dr, Chicago, IL 60606; and
(e) DAVID GARY NEELEMAN, Brazilian, married, bearer of RG no. 53.031.273-6 SSP/SP, registered in the CPF/MF under no. 744573731-68, undersigned (Neeleman and, together with TRIPs Shareholders and Calfinco, Shareholders or Parties and each individually a Shareholder or Party as appropriate); and
And in the capacity of intervening and consenting party,
(f) AZUL S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Alameda Surubiju, Nos. 2010 and 2050, Block A, suite 21, Alphaville Industrial, registered as taxpayer under CNPJ/MF No. 09.305.9994/0001-29, herein represented by its undersigned legal representatives (the Company),
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Execution version
PREAMBLE
WHEREAS on May 25 2012, the TRIPs Shareholders and Neeleman, among other parties, entered into an Investment Agreement (Investment Agreement) through which they have established the general process of incorporation of the totality of shares issued by TRIP Linhas Aéreas S.A. (TRIP) into the Company, with the subsequent subscription of new shares issued by the Company by the Shareholders of TRIP, with no extinction of TRIP, pursuant to terms of Article 252 of Federal Law No. 6,404 dated December 15, 1976 (as amended from time to time, Corporations Law) (Merger of Shares).
WHEREAS Calfinco and the Company entered into an Investment Agreement, dated as of June 26, 2015 (the Calfinco Investment Agreement), pursuant to which the Company agreed to issue and Calfinco agreed to subscribe for Class C Preferred Shares which were subsequently mandatorily converted into Class A Preferred Shares in connection with the IPO (as defined below) of the Company.
WHEREAS the Merger of Shares was effectually executed and formalized as of [-] 2012, and after several adjustment operations in the exchange ratio of shares of the Company, pursuant to the terms of the Investment Agreement, as well as the conversion of several classes of preferred and common shares previously intended for a single class of common and preferred shares, to those currently existing, the Shareholders have become, on this date, holders of the following proportion of Shares of the Company:
Percentage of Common Shares (%) |
Preferred Shares |
Percentage of Preferred Shares (%) | ||||||
Shareholder |
Common Shares |
|||||||
Neeleman |
[] | [] | [] | [] | ||||
TRIP Participações |
[] | [] | [] | [] | ||||
TRIP Investimentos |
[] | [] | [] | [] | ||||
Rio Novo |
[] | [] | [] | [] | ||||
Calfinco |
[] | [] | [] | [] | ||||
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TOTAL |
[] | 100% | [] | [] | ||||
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WHEREAS the Company held on [-] its Initial Public Offering of Shares (IPO), and pursuant to section 4.5 of the Investment Agreement, the Parties have assumed the reciprocal obligation to enter into this Agreement for the purpose of assigning each of TRIPs Shareholders and Calfinco certain and specific rights, to take effect only after the completion of the IPO,
NOW, THEREFORE, the Shareholders, pursuant to and for the purposes and effects of Article 118 of the Corporations Law, agree to enter into this Agreement, which shall bind the Company, and shall be governed by the following clauses and conditions:
SECTION I
DEFINED TERMS AND INTERPRETATION
1.1 For the purposes of this Agreement:
(a) headings and titles shall not limit or affect in any way the interpretation of the text, serving only for convenience and reference;
(b) the terms include, including and similar shall be interpreted as if they were accompanied by the phrase without limitation;
(c) capitalized terms shall be interpreted and shall have the meaning set forth throughout this Agreement, and shall equally apply to the singular and plural, masculine and feminine;
(d) references to any documents or instruments include all of its addendums, restatements, consolidations and amendments, except as otherwise expressly provided;
(e) references to legal provisions shall be interpreted as references to such provisions as altered, extended, consolidated or restated, or as their application is changed from time to time by other norms, and shall include any provisions from which they originate (with or without amendments) and any decisions, regulations, instruments or other legal norms subordinated thereto;
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Execution version
(f) except as otherwise provided, references to Chapters, Sections, Subsections, Items and Exhibits refer to chapters, sections, subsections, items and exhibits attached to this Agreement.
For the purposes of this Agreement:
(a) Bylaws means the bylaws of the Company;
(b) Class A Preferred Shares means the Class A preferred shares issued by the Company prior to or in connection with an initial public offering;
(c) Class B Preferred Shares means the Class B preferred shares issued by the Company and converted into Class A Preferred Shares pursuant to the Bylaws;
(d) Class C Preferred Shares means the Class C preferred shares issued by the Company and converted into Class A Preferred Shares pursuant to the Bylaws;
(e) Common Shares means the common shares issued by the Company;
(f) Preferred Shares means the preferred shares issued by the Company;
(h) Affiliate shall mean, (a) in connection to a legal entity, (i) any individual or other entity holding, directly or indirectly, control of such entity, (ii) any entity Controlled, directly or indirectly, by such person, or (iii) any entity directly or indirectly under common Control of such person; and (b) in connection to an individual, (i) his direct descendent provided he/she is Brazilian, (ii) any entity that, directly or indirectly, is Controlled by the referred individual, the individuals spouse, ascendants, descendants or direct relatives up to the second degree.
(i) Independent Director shall mean the Director that (a) has no connection to the Company and its Affiliates; (b) is not a controlling shareholder, a minority shareholder, spouse or relative up to the second degree of the director, and is not, nor has been, for the 3 (three) preceding years, an employee of any company or entity related to the controlling shareholder or to the minority shareholder (except for those persons connected to public schools and/or research institutions); (c) has not been, for the last 3 (three) years, an employee or officer of the Company and its Affiliates, or an employee or officer of the controlling shareholder, the minority shareholder or any entity Controlled by the Company; (d) is not a supplier or buyer, directly or indirectly, of the Companys services and/or products, to the extent that such may undermine the foregoings independence; (e) is not an employee, officer or director of any company or entity that offers or demands services and/or products from/to the Company; (f) is not the spouse or relative up to the second degree of any officer or director of the Company; and (g) does not receive any remuneration from the Company, other than that connected to the position of director (except for income resulting from interest rights in the share capital).
(j) Subsidiary means, in connection to the Company, the companies in which the Company exercises Control;
(k) Control means, subject to the legal definition of control set forth under Article 116 of the Corporations Law: (i) the power to elect a majority of officers and to determine and carry out the policies and management of the entity in question, alone or together with other individuals involved in a shareholders agreement or similar voting agreement or under common control, or (ii) the direct or indirect ownership of at least 50% (fifty percent) plus 1 (one) share / quota of total voting capital of the entity in question. Terms derived from Control, such as Controlled, Controller and under common Control shall have a meaning analogous to Control.
SECTION II
BOUND SHARES AND EXERCISE OF VOTING RIGHTS
2.1 All Common Shares Held by Shareholders (Bound Common Shares) and all Preferred Shares held by Shareholders Shall be Bound to this Agreement.
2.2 The Shareholders are bound to exercise their voting right pertaining to the Shares at the General Meetings of the Company in order to comply with terms and conditions hereof.
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Execution version
SECTION III
BYLAWS
3.1 In case of conflict or inconsistency between this Agreement and the Bylaws of the Company, this Agreement shall supersede, and the Shareholders shall, at the first General Meeting of the Company to be held after the identification of the conflict, which shall be called and conducted within 30 (thirty) days following the identification of the referred conflict, alter the wording of the Bylaws in order to eliminate the identified conflict. In the event that such occurs, any Shareholder may call a General Meeting for such purpose.
SECTION IV
CORPORATE GOVERNANCE
4.1 Composition of the Board of Directors. The Company shall be managed by the Board of Directors and by the Management. The Board of Directors of the Company shall consist of 11 (eleven) members and their respective alternates, at least two of them qualified as Independent Directors, with a unified term of 2 (two) years, elected by the General Meeting of the Company, reelection to be allowed. The Directors shall hold office until the election and investiture of their alternates, except in case of resignation during the term of office.
4.2 Appointment of Directors by TRIPs Shareholders. (a) As long as TRIPs Shareholders hold, together, at least 20% (twenty percent) of the Bound Common Shares, TRIPs Shareholders shall have the prerogative to: (i) appoint 3 (three) members of the Board of Directors of the Company and their respective alternates; (ii) appoint any successors of the members appointed in subparagraph (i) above; and (iii) remove from the Board of Directors of the Company any member that TRIPs Shareholders have appointed in accordance with subparagraphs (i) and (ii) above. (b) If TRIPs Shareholders hold together at least 10% (ten percent) of the Bound Common Shares, but less than 20% (twenty percent), TRIPs Shareholders shall have the prerogative to: (i) appoint 2 (two) members of the Board of Directors of the Company and their respective alternates; (ii) appoint any successors of the members appointed in subparagraph (i) above; and (iii) remove from the Board of Directors of the Company any member that TRIPs Shareholders have appointed in accordance with subparagraphs (i) and (ii) above. (c) If TRIPs Shareholders hold together at least 5% (five percent) of the Bound Common Shares, but less than 10% (ten percent), TRIPs Shareholders shall have the prerogative to: (i) appoint one (1) member of the Board of Directors of the Company and its respective alternate; (ii) appoint any successors of the member appointed in subparagraph (i) above; and (iii) remove from the Board of Directors of the Company any member that TRIPs Shareholders have appointed in accordance with subparagraphs (i) and (ii) above.
4.2.1 The persons appointed by TRIPs Shareholders to hold office on the Board of Directors of the Company, pursuant to the terms of Section 4.2 above, will not necessarily need, as a condition of their office, to qualify as Independent Directors.
4.2.2 Neeleman may remove the members of the Board of Directors appointed by TRIPs Shareholders, if, after being nominated, these directors present conflict of interest with the Company and upon notice submitted by Neeleman to TRIPs Shareholders. TRIPs Shareholders shall upon the receipt of such notification, appoint a new director. Nevertheless, Neeleman shall not exercise this prerogative while the three directors appointed by TRIPs Shareholders are Mr. Décio Luiz Chieppe, Renan Chieppe or José Mário Caprioli dos Santos.
4.3 Appointment of Director by Calfinco. As long as Calfinco holds at least 50% (fifty percent) of the equivalent number of Preferred Shares into which the Class C Preferred Shares were converted as of June [], 2015 (or), Calfinco shall have the prerogative to (i) appoint one (1) member to the Board of Directors, (ii) appoint any successors of the member appointed in subparagraph (i) above; and (iii) remove from the Board of Directors of the Company any member appointed in accordance with subparagraphs (i) and (ii) above.
4.4 Appointment of Directors by Neeleman. Subject to section 4.3.2, while TRIP Shareholders still have the right to appoint one or more directors according to Section 4.2 above, Neeleman has the prerogative to (i) appoint the remaining members of the Board of Directors of the Company and their respective alternates; (ii) appoint any successors of the members appointed in subparagraph (i) above; and (iii) remove from the Board of Directors of the Company any members appointed in accordance with subparagraphs (i) and (ii) above
4.4.1 In the event that the other holders of Common Shares or Preferred Shares exercise their right pursuant to Article 141 of the Corporations Law, it is agreed that the number of directors elected by such shareholders shall be deducted from the number of directors to which Neeleman has the right to appoint pursuant to Section 4.3 above.
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4.4.2 Among the members of the Board of Directors appointed by Neeleman, pursuant to terms of Section 4.3 above, (i) at least
2 (two) shall qualify as Independent Directors; and (ii) at least one shall be appointed to Neelamn by the shareholder holding the largest number of Preferred Shares (Largest Shareholder of Preferred Shares). In the event the Largest Shareholder of Preferred Shares, for any reason, does not appoint a member to the Board of Directors of the Company in accordance with Section 4.3.2, Neelamn shall request that the shareholder holding the second largest number of Preferred Shares (Second Largest Shareholder of Preferred Shares) appoints a member o the Board of Directors of the Company. In the event, the Second Largest Shareholder of Preferred Shares fails to appoint for any reason a member o the Board of Directors of the Company, Neeleman shall request that the shareholder holding the third largest number of Preferred Shares appoints a member of the Board of Directors of the Company, consecutively, until a holder of Preferred Shares (excluding Neeleman) appoint a member of the Board of Directors.
4.5 Resolutions of the General Meeting. Except for matters for which the holders of Preferred Shares hold the right to vote, in accordance with the Bylaws, all other decisions of General Meetings of the Company shall be made by the affirmative vote of holders of at least the majority of Common Shares.
4.5.1 Notwithstanding the provisions of Clause 4.4 above, as long as TRIPs Shareholders hold, together, at least 5% (five percent) of the Common Shares, any changes to the Bylaws of the Company that, by amending the items listed below, may materially affect the rights of TRIPs Shareholders, shall necessarily be approved by a majority of TRIPs Shareholders:
(i) the quorum required for decisions of the Board of Directors;
(ii) the powers of the Board of Directors of the Company; or
(iii) the rules for calling, installing or reducing powers and other provisions regarding the meetings of the Board of Directors.
4.5.2 Notwithstanding Section 4.4 above, as long as TRIPs Shareholders hold at least 5% (five percent) of the Bound Common Shares, any changes to the Bylaws of the Company that change the total number of directors of the Companys Board of Directors, which must remain composed often (10) members, must necessarily be approved by a majority of TRIPs Shareholders.
4.5.2.1 The section above shall not apply in the case of an increase in the number of directors of the Company where TRIPs Shareholders representation on the Board is maintained in the same proportion.
4.6 Shareholders are obligated to vote with their Shares in order to elect the members that are to join the Board of Directors, in accordance with the provisions of Clauses 4.2 and 4.3 above.
4.7 No individual bound (including as an investor, manager, officer, employee, consultant or representative) to any competitor of the Company and/or its subsidiaries may be elected to join the Board of Directors of the Company, except for the case of an individual bound (including as an investor, manager, officer, employee, consultant or representative) to a Shareholder or any of its Affiliates.
SECTION V
TRANSFER OF SHARES
5.1 TRIPs Shareholders Tag-Along Right. In the event that Neeleman intends to transfer a portion of the Bound Shares, he shall notify TRIPs Shareholders. When TRIPs Shareholders receive a notification sent by Neeleman stating his intention to transfer a portion of their Bound Common Shares (Transfer of Neelemans Shares) to a third party, the Notified TRIPs Shareholders (Notified TRIPs Shareholders) shall have the right to require that the Transfer of Neelemans Shares, object of the notice, also comprises a percentage of Bound Common Shares of their ownership equivalent to the result of the division of (i) the number of Bound Common Shares to be transferred by Neeleman; by (ii) the total number of Bound Common Shares held by Neeleman at the moment immediately prior to the referred transaction, under the same conditions under which Neeleman intends to transfer his Bound Common Shares (the TRIPs Shareholders Tag-Along Right).
5.2 Neelemans Tag-Along Right. In the event that TRIPs Shareholders intend to transfer a portion of the Bound Shares, they shall notify Neeleman. When Neeleman receives a notice sent by any of the TRIPs Shareholders of their intent to transfer a portion of the Bound Common Shares held by any of TRIPs Shareholders (Transfer of TRIPs Shareholders Shares) to a third party (Notified Neeleman), Notified Neeleman shall have the right to require that the transfer of the TRIPs Shareholders Shares, object of the notification, also comprises a percentage of Bound Common Shares of his ownership equivalent to the result of the division of (i) the number of Bound Common Shares to be Transferred by any of the TRIPs Shareholders; by (ii) the total number of Bound Common Shares held by TRIPs Shareholders at the moment immediately prior to the referred transaction, under the same conditions under which any of TRIPs Shareholder intend to transfer their Bound Common Shares (the Neelemans Tag-Along Right).
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5.3 Transfer of Shares. If either Neeleman or TRIPs Shareholders (the Offered Shareholder), as the case may be, have chosen to exercise their Tag-Along Right, the other shareholder (the Offering Shareholder) may not validly complete any transfer unless the third party buyer acquires from the Offered Shareholder, concurrently, the Bound Common Shares pursuant to the exercise of the referred right, under the same terms and conditions under which the buyer has agreed to acquire the Offered Shares, pursuant to Sections above. In the event that the Offered Shareholder fails to agree to enter into the definitive agreements under the same terms and conditions of the definitive agreements negotiated by the Offering Shareholder, the Offering Shareholder shall be free to complete the Transfer.
5.4 Term for Closing. Whether or not the Tag-Along Right has been exercised by the Offered Shareholder according to the terms above, the Offering Shareholder shall proceed with the transfer of the Offered Shares, and such transfer must be completed, preferably, within a period of 120 (one hundred twenty) days from the receipt of the notices set forth in Sections 5.1 and 5.2. After such period, if the transfer of the Offered Shares to the third party has not been completed and the Offering Shareholder still intends to Transfer Shares, the Offering Shareholder shall again follow the procedure set forth in Sections 4.1 and 4.2 above.
5.5 TRIPs Shareholders Right of First Offer. In the event that Neeleman intends to dispose of his Bound Common Shares in such manner that, after such disposal or transfer, the Common Shares held by Neeleman come to represent less than 50% (fifty percent) plus one Common Shares issued by Azul Holding, in each subsequent disposal or transfer of Common Shares (the Neelemans Offered Shares) Neeleman shall, primarily, before making any offer to any third party, inform and notify TRIPs Shareholders in writing of such intention, specifying the terms and conditions under which he intends to transfer the Offered Shares, including the number of Offered Shares, the respective price per share, the payment terms and other relevant conditions of the desired transfer (the Neelemans Transfer Notice).
5.6 TRIPs Shareholders shall have a right of first offer to acquire the Offered Shares on terms equal or superior to those specified by Neeleman and contained in the Neelemans Transfer Notice (the TRIPs Shareholders Right of First Offer), whereby TRIPs Shareholders shall send a written notice to Neeleman (the TRIPs Shareholders Response Notice) within 60 (sixty) days of receipt of the Neelemans Transfer Notice, informing whether they will exercise their TRIPs Shareholders Right of First Offer; the absence of such response to be interpreted as lack of interest in exercising such right.
5.7 The TRIPs Shareholders Response Notice shall be firm, irrevocable and irreversible. During the period of 60 (sixty) days of receipt by Neeleman of the TRIPs Shareholders Response Notice, TRIPs Shareholders shall buy and Neeleman shall sell the Neelemans Offered Shares, which shall be free and clear of any liens, encumbrances or options, under the terms offered, binding the parties, as of now, to perform all acts and execute all documents necessary to formalize the referred transaction (the Closing of TRIPs Shareholders Right of First Offer).
5.8 If (a) TRIPs Shareholders waive their TRIPs Shareholders Right of First Offer, (b) fail to deliver a TRIPs Shareholders Response Notice in accordance with the terms set forth in Section 5.6 above, or (c) the Closing of the TRIPs Shareholders Right of First Offer fails to comply with the terms of Section 5.7 above, Neeleman shall be free to transfer the Neelemans Offered Shares to third parties, provided that at a price per share superior to that specified and under conditions equal to or better than those contained in the TRIPs Shareholders Notice of First Offer, and compliant with the TRIPs Shareholders Tag-Along Right. The consummation of the acts necessary to implement the purchase and sale of the Offered Shares and their transfer to the referred third party shall be conducted within 120 (one hundred twenty) days from the expiration of the period of 60 (sixty) days set forth in Section 5.2 above. After such period, if Neeleman still intends to transfer Common Shares, he shall again observe the procedure set forth in this Chapter V.
5.9 Neelemans Right of First Offer. In the event that TRIPs Shareholders intend to dispose of any of their Bound Common Shares (the TRIPs Shareholders Offered Shares) TRIPs Shareholders shall, primarily, before making any offer to any third party, inform and notify Neeleman in writing of such intention, specifying the terms and conditions under which they intend to transfer the Offered Shares, including the number of Offered Shares, the respective price per share, the payment terms and other relevant conditions of the desired transfer (the TRIPs Shareholders Transfer Notice).
5.10 Neeleman shall have a right of first offer to acquire the TRIPs Shareholders Offered Shares on terms equal or superior to those specified by TRIPs Shareholders and contained in the TRIPs Shareholders Transfer Notice (the Neelemans Right of First Offer), whereby Neeleman shall send a written notice to TRIPs Shareholders (the Neelemans Response Notice) within 60 (sixty) days of receipt of the TRIPs Shareholders Transfer Notice, informing whether he will exercise his Neelemans Right of First Offer; the absence of such response to be interpreted as lack of interest in exercising such right.
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5.11 The Neelemans Response Notice shall be firm, irrevocable and irreversible. During the period of sixty (60) days of receipt by TRIPs Shareholders of the Neelemans Response Notice, Neeleman shall buy and TRIPs Shareholders shall sell the TRIPs Shareholders Offered Shares, which shall be free and clear of any liens, encumbrances or options, under the terms offered, binding the parties, as of now, to perform all acts and execute all documents necessary to formalize the referred transaction (the Closing of Neelemans Right of First Offer).
5.12 If (a) Neeleman waives his Neelemans Right of First Offer, (b) fails to deliver a Neelemans Response Notice in accordance with the terms set forth in Section 5.6 above, or (c) the Closing of Neelemans Right of First Offer fails to comply with the terms of Section 5.7 above, TRIPs Shareholders shall be free to transfer the TRIPs Shareholders Offered Shares to third parties, provided that at a price per share superior to that specified and under conditions equal to or better than those contained in the Neelemans Notice of First Offer, and compliant with the Neelemans Tag-Along Right. The consummation of the acts necessary to implement the purchase and sale of the Offered Shares and their transfer to the referred third party shall be conducted within 120 (one hundred twenty) days from the expiration of the period of 60 (sixty) days set forth in Section 5.2 above. After such period, if TRIPs Shareholders still intend to transfer Common Shares, they shall again observe the procedure set forth in this Chapter V.
5.13 Permitted Transfers; ANAC. The exercise of the Tag-Along Right, the TRIPs Shareholders Right of First Offer and the Neelemans Right of First Offer shall not apply when the Transfer of the Bound Common Shares held by Neeleman or TRIPs Shareholders, as applicable, is made to any of their Affiliates. Neeleman and TRIPs Shareholders shall observe, in any event, the need to submit any request for transfer of Shares to ANAC for prior approval.
SECTION VI
SPECIFIC PERFORMANCE
6.1 Subject to the provisions of this Section VI, the Parties recognize that the attribution of losses and damages, although due and calculated in accordance with applicable law, shall not constitute sufficient remedy for the breach of obligations hereunder, and any Shareholder may judicially require specific compliance with the defaulted obligation through court appointment, according to Article 118 of the Corporations Law, as well as Articles 461, 461-A, 466-A to 466-C, 632 et seq., 642 et seq. and 646 et seq. of the Brazilian Civil Procedure Code. This Agreement, signed by 2 (two) witnesses, constitutes an extrajudicial instrument on the basis of which execution proceedings may be started for all purposes and effects of Article 585, paragraph II of the Brazilian Civil Procedure Code.
SECTION VII
GOVERNING LAW AND ARBITRATION
7.1 Governing Law. This Agreement shall be interpreted and governed in accordance with the laws of the Federative Republic of Brazil.
7.2 Conflict Resolution. With the exception of disputes relating to obligations to pay which include judicial enforcement proceedings and that which may require, at the outset, specific execution, all other disputes arising from or connected to this Agreement and its schedules, among others, which pertain to its validity, effectiveness, violation, interpretation, expiration, termination and its consequences, shall be resolved by arbitration, pursuant to Law No. 9.307/96, as amended, upon the conditions that follow.
7.2.1 The dispute shall be submitted to the International Chamber of Commerce (Arbitration Center) in accordance with its regulation (Regulation), effective as of the date of the request for initiation of arbitration. The arbitration shall be conducted in Portuguese; provided that if Calfinco is party to the dispute, the arbitration shall be conducted in English.
7.2.2 The arbitration shall be based in the City of São Paulo, State of São Paulo, where the arbitral decision shall be granted, and the arbitrators are not authorized to rule based on equity, except for the settlement of the attorneys fees mentioned in Section 10.11.4 below.
7.2.3 The arbitration court (Arbitration Court) shall be comprised three arbitrators registered in the Brazilian Bar Association, where the applicant(s), on one hand, shall appoint one arbitrator, and the defendant, on the other, appoint a second arbitrator, which, by common agreement, appoint the third arbitrator who shall act as President of the Arbitration Court. If either party fails to appoint an arbitrator and/or two (2) arbitrators appointed by the Parties fail to appoint the third arbitrator within thirty (30) days from the date set forth for such action, the President of the Arbitration Center shall be responsible for appointing the third arbitrator in the manner set forth in its Regulation.
7.2.4 The Parties agree that the Party upon which the adverse decision is imposed shall pay the fees and expenses incurred with the arbitrators and the Arbitration Center, if otherwise not established in the arbitration decision. The Parties shall bear the costs and fees of their respective attorneys.
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7.2.5 Each Party remains entitled to propose in the competent common judgment the legal measures aimed at obtaining precautionary approvals for protection or safeguarding of rights or as preparation prior to the establishment of the Arbitration Court, such action not to be construed as a waiver of arbitration. For the exercise of court protections, the Parties elect the jurisdiction of the City of São Paulo, State of São Paulo, judicial district of the capital, expressly waiving any other, as privileged as it may be. After the initiation of the Arbitration Court, such measures shall be directed to the Arbitration Court.
7.2.6 The decisions of the arbitration shall be final and binding, not requiring court approval nor admitting any appeal against the same, except for requests for correction and clarification before the Arbitration Court, pursuant to art. 30 of Law No. 9,307/96 and possible annulment action pursuant to art. 32 of Law No. 9,307/96. According to article 475-P of the Brazilian Civil Procedure Code, the execution of the judgment shall take place in the judicial district it was processed (the City of São Paulo, State of São Paulo, pursuant to Section 7.2.2 above), the execution creditor being able to legally opt for the location where assets subject to expropriation are located or at the primary residence of the execution debtor. Each Party shall use its best efforts to ensure the expeditious and efficient completion of the arbitration procedures.
7.2.7 Regardless of the nature of the dispute to be settled through arbitration, all Parties shall participate in it, either as party (when the dispute directly involves it as claimant or counterclaimant), or as interested third party (when it may be, in any way, directly or indirectly affected by decisions to be made in the course or at the end of the procedure). Likewise, the award shall be final and binding on all Parties, regardless of eventual refusal by any Party to participate in the arbitration procedure, either as party or interested third party.
7.2.8 The arbitration shall be completed within the term of six (6) months, which may be extended upon justification by the Arbitration Court.
7.2.9 The arbitration shall be confidential.
SECTION VIII
GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement represents the entire understanding of the Parties regarding the subject matter and supersedes all prior agreements, discussions and understandings with respect to the provisions hereof, subject to the terms of the Investment Agreement.
8.2 Irrevocability and Irreversibility. The obligations herein are assumed by the Parties irrevocably and irreversibly.
8.3 Successors. This Agreement binds not only the Parties but also their successors and permitted assigns, in any capacity, including, without limitation, in cases of merger and incorporation (including of shares) or spin-off of the Shareholders and the Company.
8.4 Assignment. This Agreement and/or all rights, remedies, obligations or liabilities hereunder, by reason hereof, shall not be subject to assignment, transfer or subrogation, in whole or in part, by any of the Shareholders, without the prior consent in writing by the other Shareholder.
8.5 Severability. In the event that any Chapter, Section, Subsection, Item, Exhibit, term or provision hereof is declared invalid or unenforceable pursuant to law, such invalidity or unenforceability shall not affect any other Chapters, Sections, Subsections, Items, Exhibits, terms or provisions hereof, all of which shall remain in full force and effect. Upon determining which term or provision hereof is void or unenforceable, the Parties shall negotiate in good faith to amend this Agreement so as to cause it to reflect, as much as possible, the real intention of the Parties, in a mutually acceptable form, so that the transaction contemplated herein is consummated as originally set forth, to the greatest possible extent.
8.6 Waiver. No omission or delay by either Party in the exercise of its rights, powers or privileges specified herein shall be deemed a waiver, nor shall any single or partial exercise specified herein prevent other or future exercises set forth herein, nor the exercise of other rights, powers or privileges. The rights and remedies specified herein shall be cumulative and non exclusive of any right or remedy provided by law.
8.7 Novation. Any concession or tolerance of any Shareholder regarding (i) non-compliance or partial compliance by the other Party, with any obligation pertaining hereto, (ii) absence of requirement of compliance with a specific obligation, or, yet, (iii) the admission of compliance with an obligation in a different manner from that provided herein, shall be considered mere liberality and shall not constitute, tacitly or implicitly, novation, enforceable precedent, tacit amendment of its terms, waiver of rights, redemption of obligations or right acquired by the other Shareholder.
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8.8 Amendments. Any provision hereof may be amended or waived provided that such amendment or waiver is made in writing and signed by all Parties.
8.9 Terms. All terms set forth herein shall be measured as provided in Article 184 of the Code of Civil Procedure, i.e., excluding the day of beginning and including the maturity date. All terms set forth herein that expire on Saturdays, Sundays or holidays in the city of São Paulo, state of São Paulo, and the city of Vitória, state of São Paulo, shall be automatically extended to the following business day.
8.10 Filing in the Headquarters of the Company. This Agreement shall be filed at the Companys headquarters, and the obligations and encumbrances resulting herefrom shall be recorded in accordance with Section 7.11 below, at the corresponding records, including, among others, in the Registered Shares Register of the Company (or before the financial institution responsible for the bookkeeping of Shares, including the declaration of equity ownership), in accordance with and for the purposes of Article 118, heading, and paragraph 1 of the Corporations Law.
8.11 Annotation. The Company shall ensure that a label with the text below is annotated on the relevant pages of its Registered Shares Register (or at the financial institution responsible for the bookkeeping of Shares, including the declaration of equity ownership) and on any other records or certificates representing Shares under this Agreement:
THE TOTALITY OF SHARES HELD BY TRIP PARTICIPAÇÕES S.A., TRIP INVESTIMENTOS S.A., [RIO NOVO LOCAÇÕES] AND DAVID GARY NEELEMAN ARE SUBJECT TO THE NORMS AND RESTRICTIONS SET FORTH IN THE SHAREHOLDERS AGREEMENT DATED NOVEMBER 20, 2012, THE COPY OF WHICH IS AVAILABLE AT THE HEAD OFFICE OF THE COMPANY.
8.12 Notices. Except as otherwise expressly provided herein, all notices or communications to be sent by any Party to the other Parties shall be in writing and shall be considered validly received when delivered personally, by certified mail, with return receipt, or by courier service; or by means of registry offices or courts; upon their receipt at the addresses listed below, or at other addresses (including email addresses) or facsimile numbers as the Parties may provide each other through a notice in accordance with this Agreement:
(a) to the Company:
Address: Alameda Surubiju 2010, bloco A, sala 21
E-mail: john.rodgerson@voeazul.com.br
Fax: (11) 4134-9800
To: John Rodgerson
(b) to Trip Participações S.A.:
Address: Rod. BR 262 km. 5, Campo Grande, Cariacica/ES
E-mail: renanc@aguiabranca.com.br
Fax: (27) 2125-6301
To: Renan Chieppe
(c) to Trip Investimentos S.A.:
Address: Av. Cambacicas, no. 1200, Condomínio Flex Buildings, modulo 2
E-mail: josemario@voetrip.com.br
Fax: (19) 2139-5358
To: José Mário Caprioli dos Santos
(d) to Rio Novo Locações Ltda.:
Address: Rod. BR 262, km. 6.3, sala 208, Campo Grande, Cariacica/ES
E-mail: decio@aguiabranca.com.br
Fax: (27) 2125-6304
To: Décio Luiz Chieppe
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(e) to CALFINCO Inc.
Address: 233 S. Wacker Dr., Chicago, Illinois 60606, U.S.A.
E-mail: gerry.laderman@united.com
Fax: +1 (872) 825-3321
To: Gerald Laderman
with a copy to (which shall not constitute notice):
Address: 233 S. Wacker Dr., Chicago, Illinois 60606, U.S.A.
E-mail: thomas.bolling@united.com
Fax: +1 (872) 825-0309
To: Thomas N. Bolling
(f) to David Gary Neeleman:
Address: Alameda Surubiju, 2010, bloco A, sala 21
E-mail: john.rodgerson@voeazul.com.br
Fax: (11) 4134-9800
To: John Rodgerson
8.12.1 The Parties undertake to maintain, throughout the term of this Agreement, the data referred to in this Section 7.12 correct, sufficient, accurate and updated. Any alteration must be preceded by prior notice in writing to the other Parties, pursuant to terms hereof.
8.13 Validity. This Agreement shall enter into force on the date of signature and shall remain valid and in force (i) for a period of 20 (twenty) years; or (ii) until the date when TRIPs Shareholders hold less than 5% of Common Shares, whichever occurs first.
In witness thereof, the Parties sign this Agreement in 04 (four) counterparts of equal form and content, before 02 (two) witnesses.
São Paulo, [].
(The remainder of this page intentionally left blank)
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(Signature page of the Shareholders Agreement)
TRIP PARTICIPAÇÕES S.A. | ||
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TRIP INVESTIMENTOS LTDA. | ||
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RIO NOVO LOCAÇÕES LTDA. | ||
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CALFINCO Inc. | ||
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Name: | Name: | |
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DAVID GARY NEELEMAN | ||
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AZUL S.A. | ||
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Page 2 of 2
FIFTH AMENDMENT TO THE INVESTMENT AGREEMENT
by and among
TRIP PARTICIPAÇÕES S.A.,
TRIP INVESTIMENTOS LTDA.,
RIO NOVO LOCAÇÕES LTDA.,
AZUL S.A.,
CALFINCO, INC.
HAINAN AIRLINES CO., LTD.
and
as intervening and consenting parties,
AZUL LINHAS AÉREAS BRASILEIRAS S.A.
and
DAVID GARY NEELEMAN
DATED AUGUST 3, 2016
FIFTH AMENDMENT TO THE INVESTMENT AGREEMENT
By this private instrument, by and among,
(a) | TRIP PARTICIPAÇÕES S.A., a corporation with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 09.229.532/0001-70, herein represented by its undersigned legal representatives (TRIP Participações); |
(b) | TRIP INVESTIMENTOS LTDA., a limited liability company with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 15.300.240/0001-89, herein represented by its undersigned legal representatives (TRIP Investimentos); |
(c) | RIO NOVO LOCAÇÕES LTDA., a limited liability company with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 6.3, Suite 208, CEP 29157-405, registered as taxpayer under CNPJ/MF No.04.373.710/0001-18, herein represented by its undersigned legal representatives (Rio Novo and, together with TRIP Participações and TRIP Investimentos, TRIPs Shareholders); |
(d) | AZUL S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, No. 939, 8th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 09.305.9994/0001-29, herein represented by its undersigned legal representatives (AZUL Holding); |
(e) | CALFINCO, Inc., a company incorporated under the laws of Delaware, United States of America, having its principal place of business at 233 S. Wacker Dr., Chicago, Illinois 60606, United States of America, enrolled with the CNPJ/MF under No. 22.699.769/0001-82 (Calfinco); and |
(f) | HAINAN AIRLINES CO., LTD., a limited company organized and existing under the laws of the Peoples Republic of China, with its headquarters in Haikou City, Hainan Province, at HNA Plaza, No. 7 Guoxing Road, with the Chinese Company Registration No. 460000400002151, herein represented by its undersigned legal representatives (HNA). |
And, in the capacity of intervening and consenting parties (the Intervening and Consenting Parties):
(g) | AZUL LINHAS AÉREAS BRASILEIRAS S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhôa Rodrigues, No. 939, 9th floor, Ed. Jatobá, Tamboré, registered as taxpayer under CNPJ/MF No. 09.296.295/0001-60, herein represented by its undersigned legal representatives; and |
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(h) | DAVID GARY NEELEMAN, Brazilian, married, bearer of Identification Card RG No. 53.031.273-6 SSP/SP and registered as taxpayer under CPF/MF No. 744.573.731-68 (Neeleman), herein represented by his undersigned attorneys-in-fact. |
PREAMBLE
A. WHEREAS, on May 25, 2012, TRIPs Shareholders and AZUL Holding and the Intervening and Consenting Parties executed the Investment Agreement (Original Investment Agreement), in order to determine, subject to the terms and conditions set forth in the Original Investment Agreement, the merger of all TRIPs Shares into AZUL Holding (as provided for in the Original Investment Agreement), and subsequently delivered newly issued shares of AZUL Holding to TRIPs Shareholders, without causing the winding up of TRIP, pursuant to the provisions of article 252 of Law No. 6,404, dated December 15, 1976;
B. WHEREAS, on August 15, 2012, TRIPs Shareholders and AZUL Holding and the Intervening and Consenting Parties executed the First Amendment to the Agreement (First Amendment), which amended certain terms and conditions of the Original Investment Agreement;
C. WHEREAS, on December 27, 2013, TRIPs Shareholders and AZUL Holding executed the Second Amendment to the Original Investment Agreement (Second Amendment), which further amended certain terms and conditions of the Original Investment Agreement;
D. WHEREAS, on October 22, 2014, TRIPs Shareholders and AZUL Holding executed the Third Amendment to the Original Investment Agreement (Third Amendment), which further amended certain terms and conditions of the Original Investment Agreement;
E. WHEREAS, on June 26, 2015, TRIPs Shareholders, AZUL Holding and Calfinco executed the Fourth Amendment to the Original Investment Agreement (Fourth Amendment, and the Original Investment Agreement, as amended in accordance with the terms of the First Amendment, Second Amendment, Third Amendment and Fourth Amendment, hereinafter simply referred to as Investment Agreement), which further amended certain terms and conditions of the Original Investment Agreement;
F. WHEREAS, attached as an exhibit to the Investment Agreement is a form of Shareholders Agreement to be entered into by and among TRIPs Shareholders, Neeleman, Calfinco and AZUL Holding, as intervening and consenting party, upon an initial public offering of AZUL Holdings shares (the Form of Post-IPO Shareholders Agreement);
G. WHEREAS, simultaneously with the execution of this Fifth Amendment (as defined below), AZUL Holding and HNA, are entering into an investment agreement pursuant to which AZUL Holding has agreed to issue and HNA has agreed to subscribe for Class D Preferred Shares (as defined in such investment agreement);
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H. WHEREAS, the Parties wish to amend the Investment Agreement in order to reflect HNA and its rights as a shareholder of AZUL Holding in the Form of Post-IPO Shareholders Agreement, as set forth in this Amendment.
NOW, THEREFORE, THE PARTIES, together with the Intervening and Consenting Parties, in consideration of the foregoing and the mutual agreements contained herein, and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, have resolved to enter into this Fifth Amendment to the Investment Agreement (Fifth Amendment), which shall be governed by the following terms and conditions:
SECTION I
AMENDMENT
1.1. The Parties agree that the Investment Agreement shall be, and hereby is, amended by amending and restating the Post-IPO Shareholders Agreement in its entirety in the form attached hereto as Exhibit A.
SECTION II
GENERAL PROVISIONS
2.1. The Parties undertake and ratify all other provisions of the Investment Agreement that were not hereby expressly amended.
2.2. Regardless of the provisions of the Investment Agreement hereby excluded, terms defined in excluded sections and used in other sections remain in effect.
2.3. Sections including references to sections that were hereby excluded from the Investment Agreement shall not lose their validity and effectiveness due to such exclusions, and shall be construed based on a meaning as close as possible to the meaning ascribed to them before such exclusions.
2.4. Except if expressly otherwise defined herein, capitalized words and expressions shall have the meaning ascribed to them in the Investment Agreement. For purposes of clarification, the defined term Parties shall not include Calfinco or HNA, whose rights and obligations under the Investment Agreement, as amended by this Fifth Amendment, are limited to Section 2.7 and Section 2.8 hereof and the form of the Post-IPO Shareholders Agreement.
2.5. The numbering of the sections and the provisions of the Investment Agreement shall not be altered as a result of the exclusion of any section hereunder.
2.6. This Fifth Amendment shall be governed and construed in accordance with the Laws of Brazil.
2.7. The Parties agree that (i) the form of the Post-IPO Shareholders Agreement attached hereto as Exhibit A may not be in any way be amended by any of the Parties without the prior and express written consent of Calfinco and HNA; and (ii) no other amendment to any provision of the Investment Agreement as amended from time to time shall require Calfincos or HNAs prior approval, provided that any such amendment is not inconsistent with this Section 2.7.
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CONFIDENTIAL TREATMENT REQUESTED
2.8. Conflict Resolution. With the exception of disputes relating to obligations to pay and the rights of Calfinco and HNA to be a party to the Post-IPO Shareholders Agreement and to enforce the provisions of Section 2.7, which include judicial enforcement proceedings and that may require, at the outset, specific execution, all other disputes arising out of or in connection with this Agreement and exhibits hereto in terms of validity, effectiveness, violation, interpretation, expiration, termination and respective consequences, among others, shall be resolved by arbitration, pursuant to Law No. 9.307/96, as amended, upon the conditions that follow.
2.8.1. The dispute shall be submitted to the International Chamber of Commerce (Arbitration Center) in accordance with its regulation (Regulation), effective as of the date of the request for initiation of arbitration. The arbitration shall be conducted in Portuguese.
2.8.2. The place of arbitration shall be the City of São Paulo, State of São Paulo, Brazil, where the arbitral decision shall be rendered, and the arbitrators are not authorized to rule based on equity.
2.8.3. The arbitral tribunal shall comprise three arbitrators, where the applicant(s), on one hand, shall appoint one arbitrator, and the defendant(s), on the other, appoint a second arbitrator, which, by common agreement, shall appoint the third arbitrator who shall act as President of the arbitral tribunal (the Arbitral Tribunal). If either party fails to appoint an arbitrator and/or 2 (two) arbitrators appointed by the Parties fail to appoint the third arbitrator within [*****] from the date set forth for such action, the president of the Arbitration Center shall be responsible for appointing the third arbitrator in the manner set forth in its Regulation.
2.8.4. The Parties agree that the Party upon which the adverse decision is imposed shall pay the fees and expenses incurred with the arbitrators and the Arbitration Center, if otherwise not established in the arbitration award. The Parties shall bear the cost and fees of their respective attorneys.
2.8.5. Each Party remains entitled to propose in the competent common court the legal measures aimed at obtaining provisional measures for protection or safeguarding of rights or as preparation prior to the establishment of the Arbitral Tribunal, such action not to be construed as a waiver of arbitration. For the exercise of such remedies, the Parties elect the courts sitting in the City of São Paulo, State of São Paulo, as competent jurisdiction, expressly waiving any other, no matter how privileged it may be.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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2.8.6. According to article 475-P of the Brazilian Civil Procedure Code, the execution of the award shall take place in the judicial district where the arbitration was processed (the City of São Paulo, State of São Paulo), the execution creditor being able to legally opt for the location where assets subject to expropriation are located or the current residence of the execution debtor. Each Party shall use its best efforts to ensure the expeditious and efficient completion of the arbitration procedures.
2.8.7. Regardless of the nature of the dispute to be settled through arbitration, all Parties shall participate in it, either as party (when the dispute directly involves it as claimant or counterclaimant), or as interested third party (when it may be, in any way, directly or indirectly affected by decisions to be made in the course or at the end of the arbitration procedure). Likewise, the award shall be final and binding on all Parties, regardless of any refusal by any Party to participate in the arbitration procedure, either as party or interested third party.
IN WITNESS THEREOF, the Parties have caused their representatives to sign this Fifth Amendment in 8 (eight) counterparts of equal tenor and form, before the 2 (two) undersigned witnesses.
São Paulo, August 3, 2016.
(The remainder of this page intentionally left blank)
(Signatures on the following pages)
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(Signature page of the Fifth Amendment to the Investment Agreement, dated August 3, 2016, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., CALFINCO, Inc., Hainan Airlines Co., Ltd., and, also, as intervening and consenting parties, AZUL Linhas Aéreas Brasileiras S.A. and Neeleman)
AZUL S.A. | ||
/s/ John Peter Rodgerson |
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Name: John Peter Rodgerson | ||
Title: Attorney in Fact |
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(Signature page of the Fifth Amendment to the Investment Agreement, dated August 3, 2016, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., CALFINCO, Inc., Hainan Airlines Co., Ltd., and, also, as intervening and consenting parties, AZUL Linhas Aéreas Brasileiras S.A. and Neeleman)
HAINAN AIRLINES CO., LTD. | ||
/s/ Hin Di |
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Name: Hin Di | ||
Title: Chairman |
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(Signature page of the Fifth Amendment to the Investment Agreement, dated August 3, 2016, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., CALFINCO, Inc., Hainan Airlines Co., Ltd., and, also, as intervening and consenting parties, AZUL Linhas Aéreas Brasileiras S.A. and Neeleman)
AZUL LINHAS AÉREAS BRASILEIRAS S.A. | ||
/s/ Antonoardo Neves |
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Name: Antonoardo Neves | ||
Title: President |
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(Signature page of the Fifth Amendment to the Investment Agreement, dated August 3, 2016, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., CALFINCO, Inc., Hainan Airlines Co., Ltd., and, also, as intervening and consenting parties, AZUL Linhas Aéreas Brasileiras S.A. and Neeleman)
CALFINCO, INC. | ||
/s/ Gerald Laderman |
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Name: Gerald Laderman | ||
Title: Treasurer |
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(Signature page of the Fifth Amendment to the Investment Agreement, dated August 3, 2016, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., CALFINCO, Inc., Hainan Airlines Co., Ltd., and, also, as intervening and consenting parties, AZUL Linhas Aéreas Brasileiras S.A. and Neeleman)
DAVID NEELEMAN | ||
/s/ David Neeleman |
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(Signature page of the Fifth Amendment to the Investment Agreement, dated August 3, 2016, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., CALFINCO, Inc., Hainan Airlines Co., Ltd., and, also, as intervening and consenting parties, AZUL Linhas Aéreas Brasileiras S.A. and Neeleman)
TRIP INVESTIMENTOS LTDA. | ||
/s/ Renan Chieppe |
/s/ José Mario Caprioli dos Santos | |
Name: Renan Chieppe | Name: José Mario Caprioli dos Santos | |
Title: | Title: |
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(Signature page of the Fifth Amendment to the Investment Agreement, dated August 3, 2016, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., CALFINCO, Inc., Hainan Airlines Co., Ltd., and, also, as intervening and consenting parties, AZUL Linhas Aéreas Brasileiras S.A. and Neeleman)
TRIP PARTICIPAÇÕES S.A. | ||
/s/ Renan Chieppe |
/s/ Decio Luiz Chieppe | |
Name: Renan Chieppe | Name: Decio Luiz Chieppe | |
Title: | Title: |
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(Signature page of the Fifth Amendment to the Investment Agreement, dated August 3, 2016, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., CALFINCO, Inc., Hainan Airlines Co., Ltd., and, also, as intervening and consenting parties, AZUL Linhas Aéreas Brasileiras S.A. and Neeleman)
RIO NOVO LOCAÇÕES LTDA. | ||
/s/ Decio Luiz Chieppe |
/s/ Luis Wagner Chieppe | |
Name: Decio Luiz Chieppe | Name: Luis Wagner Chieppe | |
Title: | Title: |
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(Signature page of the Fifth Amendment to the Investment Agreement, dated August 3, 2016, among TRIP Participações S.A., TRIP Investimentos Ltda., Rio Novo Locações Ltda., AZUL S.A., CALFINCO, Inc., Hainan Airlines Co., Ltd., and, also, as intervening and consenting parties, AZUL Linhas Aéreas Brasileiras S.A. and Neeleman)
WITNESSES: | ||
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Name: | ||
ID (RG): |
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Name: | ||
ID (RG): |
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Exhibit A
[See Attached.]
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FORM OF SHAREHOLDERS AGREEMENT
by and among
TRIP PARTICIPAÇÕES S.A.,
TRIP INVESTIMENTOS LTDA.,
RIO NOVO LOCAÇÕES LTDA.,
CALFINCO INC.
HAINAN AIRLINES CO., LTD.
and
DAVID GARY NEELEMAN
and as intervening and consenting party,
AZUL S.A.
DATED [], 2016
Execution version
SHAREHOLDERS AGREEMENT
This Shareholders Agreement (Agreement) is entered into by and among the following parties:
By and among,
(a) TRIP PARTICIPAÇÕES S.A., a corporation, with head office in the City of Cariacica, State of Espirito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29.145-901, registered as taxpayer under CNPJ/MF No. 09.229.532/0001-70, herein represented by its undersigned legal representatives (TRIP Participações);
(b) TRIP INVESTIMENTOS LTDA., a limited liability company, with head office in the City of Cariacica, State of Espírito Santo, at Rodovia BR 262, Km 05, Campo Grande, CEP 29145-901, registered as taxpayer under CNPJ/MF No. 15.300.240/0001-89, herein represented by its undersigned legal representatives (TRIP Investimentos);
(c) RIO NOVO LOCAÇÕES LTDA., a limited liability company with head office in the City of Cariacica, State of Espirito Santo, at Rodovia BR 262, Km 6,3, Sala 208,, CEP 29.157-405, registered as taxpayer under CNPJ/MF No. 04.373.710/0001-18, herein represented by its undersigned legal representatives (Rio Novo and, together with TRIP Participações and TRIP Investimentos, the TRIPs Shareholders);
(d) CALFINCO, INC. (Calfinco), a corporation organized under the laws of the State of Delaware, United States of America, having its principal place of business at 233 South Wacker Dr, Chicago, IL 60606;
(e) HAINAN AIRLINES CO., LTD., a limited company organized and existing under the laws of the Peoples Republic of China, with its headquarters in the Haikou City, Hainan Province, at HNA Plaza, No. 7 Guoxing Road, with the Chinese Company Registration No. 460000400002151, herein represented by its undersigned legal representatives (HNA); and
(f) DAVID GARY NEELEMAN, Brazilian, married, bearer of RG no. 53.031.273-6 SSP/SP, registered in the CPF/MF under no. 744573731-68, undersigned (Neeleman and, together with TRIPs Shareholders, Calfinco and HNA, Shareholders or Parties and each individually a Shareholder or Party as appropriate); and
And in the capacity of intervening and consenting party,
(f) AZUL S.A., a corporation with head office in the City of Barueri, State of São Paulo, at Av. Marcos Penteado de Ulhoa Rodrigues, 939, 8th floor, Condominio Castelo Branco Office Park, Tamboré, Barueri, São Paulo, 06460-060, registered as taxpayer under CNPJ/MF No. 09.305.9994/0001-29, herein represented by its undersigned legal representatives (the Company),
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PREAMBLE
WHEREAS on May 25 2012, the TRIPs Shareholders and Neeleman, among other parties, entered into an Investment Agreement (Investment Agreement) through which they have established the general process of incorporation of the totality of shares issued by TRIP Linhas Aéreas S.A. (TRIP) into the Company, with the subsequent subscription of new shares issued by the Company by the Shareholders of TRIP, with no extinction of TRIP, pursuant to terms of Article 252 of Federal Law No. 6,404 dated December 15, 1976 (as amended from time to time, Corporations Law) (Merger of Shares).
WHEREAS Calfinco and the Company entered into an Investment Agreement, dated as of June 26, 2015 (the Calfinco Investment Agreement), pursuant to which the Company agreed to issue and Calfinco agreed to subscribe for Class C Preferred Shares which were subsequently mandatorily converted into Class A Preferred Shares in connection with the IPO (as defined below) of the Company.
WHEREAS HNA and the Company entered into an Investment Agreement, dated as of [-], 2016 (the HNA Investment Agreement), pursuant to which the Company agreed to issue and HNA agreed to subscribe for Class D Preferred Shares which were subsequently converted into Class A Preferred Shares.
WHEREAS the Merger of Shares was effectually executed and formalized as of [-] 2012, and after several adjustment operations in the exchange ratio of shares of the Company, pursuant to the terms of the Investment Agreement, as well as the conversion of several classes of preferred and common shares previously intended for a single class of common and preferred shares, to those currently existing, the Shareholders have become, on this date, holders of the following proportion of Shares of the Company:
Shareholder |
Common Shares |
Percentage of Common Shares (%) |
Preferred Shares |
Percentage of Preferred Shares (%) |
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Neeleman |
[] | [] | [] | [] | ||||||||||
TRIP Participações |
[] | [] | [] | [] | ||||||||||
TRIP Investimentos |
[] | [] | [] | [] | ||||||||||
Rio Novo |
[] | [] | [] | [] | ||||||||||
Calfinco |
[] | [] | [] | [] | ||||||||||
HNA |
[] | [] | [] | [] | ||||||||||
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TOTAL |
[] | 100% | [] | [] | ||||||||||
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WHEREAS the Company held on [-] its Initial Public Offering of Shares (IPO), and pursuant to section 4.5 of the Investment Agreement, the Parties have assumed the reciprocal obligation to enter into this Agreement for the purpose of assigning each of TRIPs Shareholders, Calfinco and HNA certain and specific rights, to take effect only after the completion of the IPO,
NOW, THEREFORE, the Shareholders, pursuant to and for the purposes and effects of Article 118 of the Corporations Law, agree to enter into this Agreement, which shall bind the Company, and shall be governed by the following clauses and conditions:
SECTION I
DEFINED TERMS AND INTERPRETATION
1.1 | For the purposes of this Agreement: |
(a) headings and titles shall not limit or affect in any way the interpretation of the text, serving only for convenience and reference;
(b) the terms include, including and similar shall be interpreted as if they were accompanied by the phrase without limitation;
(c) capitalized terms shall be interpreted and shall have the meaning set forth throughout this Agreement, and shall equally apply to the singular and plural, masculine and feminine;
(d) references to any documents or instruments include all of its addendums, restatements, consolidations and amendments, except as otherwise expressly provided;
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(e) references to legal provisions shall be interpreted as references to such provisions as altered, extended, consolidated or restated, or as their application is changed from time to time by other norms, and shall include any provisions from which they originate (with or without amendments) and any decisions, regulations, instruments or other legal norms subordinated thereto;
(f) except as otherwise provided, references to Chapters, Sections, Subsections, Items and Exhibits refer to chapters, sections, subsections, items and exhibits attached to this Agreement.
For the purposes of this Agreement:
(a) Affiliate shall mean, (a) in connection to a legal entity, (i) any individual or other entity holding, directly or indirectly, control of such entity, (ii) any entity Controlled, directly or indirectly, by such person, or (iii) any entity directly or indirectly under common Control of such person; and (b) in connection to an individual, (i) his direct descendent provided he/she is Brazilian, (ii) any entity that, directly or indirectly, is Controlled by the referred individual, the individuals spouse, ascendants, descendants or direct relatives up to the second degree.
(b) Bylaws means the bylaws of the Company;
(c) Class A Preferred Shares means the Class A preferred shares issued by the Company prior to or in connection with an initial public offering;
(d) Class B Preferred Shares means the Class B preferred shares issued by the Company and converted into Class A Preferred Shares pursuant to the Bylaws;
(e) Class C Preferred Shares means the Class C preferred shares issued by the Company and converted into Class A Preferred Shares pursuant to the Bylaws;
(f) Class D Preferred Shares means the Class D preferred shares issued by the Company and converted into Class A Preferred Shares pursuant to the Bylaws;
(g) Common Shares means the common shares issued by the Company;
(h) Control means, subject to the legal definition of control set forth under Article 116 of the Corporations Law: (a) the power to elect a majority of officers and to determine and carry out the policies and management of the entity in question, alone or together with other individuals involved in a shareholders agreement or similar voting agreement or under common control, or (b) the direct or indirect ownership of at least fifty percent (50%) plus one (1) share / quota of total voting capital of the entity in question. Terms derived from Control, such as Controlled, Controller and under common Control shall have a meaning analogous to Control.
(i) Independent Director shall mean the Director that (a) has no connection to the Company and its Affiliates; (b) is not a controlling shareholder, a minority shareholder, spouse or relative up to the second degree of the director, and is not, nor has been, for the three (3) preceding years, an employee of any company or entity related to the controlling shareholder or to the minority shareholder (except for those persons connected to public schools and/or research institutions); (c) has not been, for the last three (3) years, an employee or officer of the Company and its Affiliates, or an employee or officer of the controlling shareholder, the minority shareholder or any entity Controlled by the Company; (d) is not a supplier or buyer, directly or indirectly, of the Companys services and/or products, to the extent that such may undermine the foregoings independence; (e) is not an employee, officer or director of any company or entity that offers or demands services and/or products from/to the Company; (f) is not the spouse or relative up to the second degree of any officer or director of the Company; and (g) does not receive any remuneration from the Company, other than that connected to the position of director (except for income resulting from interest rights in the share capital).
(j) Preferred Shares means the preferred shares issued by the Company;
(k) Subsidiary means, in connection to the Company, the companies in which the Company exercises Control;
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SECTION II
BOUND SHARES AND EXERCISE OF VOTING RIGHTS
2.1 All Common Shares held by Shareholders (Bound Common Shares) and all Preferred Shares held by Shareholders shall be bound to this Agreement.
2.2 The Shareholders are bound to exercise their voting right pertaining to the Shares at the General Meetings of the Company in order to comply with terms and conditions hereof.
SECTION III
BYLAWS
3.1 In case of conflict or inconsistency between this Agreement and the Bylaws of the Company, this Agreement shall supersede, and the Shareholders shall, at the first General Meeting of the Company to be held after the identification of the conflict, which shall be called and conducted within thirty (30) days following the identification of the referred conflict, alter the wording of the Bylaws in order to eliminate the identified conflict. In the event that such occurs, any Shareholder may call a General Meeting for such purpose.
SECTION IV
CORPORATE GOVERNANCE
4.1 Composition of the Board of Directors. The Company shall be managed by the Board of Directors and by the Management. The Board of Directors of the Company shall consist of a maximum of fourteen (14) members and their respective alternates, at least three of them qualified as Independent Directors, with a unified term of two (2) years, elected by the General Meeting of the Company, reelection to be allowed. The Directors shall hold office until the election and investiture of their alternates, except in case of resignation during the term of office.
4.2 Appointment of Directors by TRIPs Shareholders.
(a) As long as TRIPs Shareholders hold, together, at least twenty percent (20%) of the Bound Common Shares, TRIPs Shareholders shall have the prerogative to: (i) appoint three (3) members of the Board of Directors of the Company and their respective alternates; (ii) appoint any successors of the members appointed in subparagraph (i) above; and (iii) remove from the Board of Directors of the Company any member that TRIPs Shareholders have appointed in accordance with subparagraphs (i) and (ii) above.
(b) If TRIPs Shareholders hold, together, at least ten percent (10%) of the Bound Common Shares, but less than twenty percent (20%), TRIPs Shareholders shall have the prerogative to: (i) appoint two (2) members of the Board of Directors of the Company and their respective alternates; (ii) appoint any successors of the members appointed in subparagraph (i) above; and (iii) remove from the Board of Directors of the Company any member that TRIPs Shareholders have appointed in accordance with subparagraphs (i) and (ii) above.
(c) If TRIPs Shareholders hold, together, at least five percent (5%) of the Bound Common Shares, but less than ten percent (10%), TRIPs Shareholders shall have the prerogative to: (i) appoint one (1) member of the Board of Directors of the Company and its respective alternate; (ii) appoint any successors of the member appointed in subparagraph (i) above; and (iii) remove from the Board of Directors of the Company any member that TRIPs Shareholders have appointed in accordance with subparagraphs (i) and (ii) above.
4.2.1 The persons appointed by TRIPs Shareholders to hold office on the Board of Directors of the Company, pursuant to the terms of Section 4.2 above, will not necessarily need, as a condition of their office, to qualify as Independent Directors.
4.2.2 Neeleman may remove the members of the Board of Directors appointed by TRIPs Shareholders, if, after being nominated, these directors present a conflict of interest with the Company and upon notice submitted by Neeleman to TRIPs Shareholders. TRIPs Shareholders shall upon the receipt of such notification, appoint a new director. Nevertheless, Neeleman shall not exercise this prerogative while the three directors appointed by TRIPs Shareholders are Mr. Décio Luiz Chieppe, Renan Chieppe or José Mário Caprioli dos Santos.
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4.3 Appointment of Director by Calfinco. As long as Calfinco holds at least fifty percent (50%) of the equivalent number of Preferred Shares into which the Class C Preferred Shares were converted as of June [], 2015, Calfinco shall have the prerogative to (a) appoint one (1) member to the Board of Directors, (b) appoint any successors of the member appointed in subparagraph (a) above; and (c) remove from the Board of Directors of the Company any member appointed in accordance with subparagraphs (a) and (b) above.
4.4 Appointment of Directors by HNA.
(a) As long as HNA holds at least a twenty percent (20%) economic interest in the Company and HNA owns the largest percentage economic interest in the Company, taking into account TRIPs Shareholders as a single shareholding block, HNA shall have the prerogative to: (i) appoint three (3) members of the Board of Directors of the Company and their respective alternates; (ii) appoint any successors of the members appointed in subparagraph (i) above; and (iii) remove from the Board of Directors of the Company any member that HNA has appointed in accordance with subparagraphs (i) and (ii) above.
(b) If HNA holds at least a ten percent (10%) economic interest in the Company, but less than a twenty percent (20%) economic interest in the Company, HNA shall have the prerogative to: (i) appoint two (2) members of the Board of Directors of the Company and their respective alternates; (ii) appoint any successors of the members appointed in subparagraph (i) above; and (iii) remove from the Board of Directors of the Company any member that HNA has appointed in accordance with subparagraphs (i) and (ii) above.
(c) If HNA holds at least a five percent (5%) economic interest in the Company, but less than a ten percent (10%) economic interest in the Company, HNA shall have the prerogative to: (i) appoint one (1) member of the Board of Directors of the Company and its respective alternate; (ii) appoint any successors of the member appointed in subparagraph (i) above; and (iii) remove from the Board of Directors of the Company any member that HNA has appointed in accordance with subparagraphs (i) and (ii) above. In any case, no director appointed by HNA may be a U.S. citizen or resident.
4.5 Appointment of Directors by Neeleman. Subject to Sections 4.3, 4.4 and 4.5.2, while TRIPs Shareholders still have the right to appoint one or more directors according to Section 4.2 above, Neeleman has the prerogative to (a) appoint the remaining members of the Board of Directors of the Company and their respective alternates; (b) appoint any successors of the members appointed in subparagraph (a) above; and (c) remove from the Board of Directors of the Company any members appointed in accordance with subparagraphs (a) and (b) above
4.5.1 In the event that the other holders of Common Shares or Preferred Shares exercise their right pursuant to Article 141 of the Corporations Law, it is agreed that the number of directors elected by such shareholders shall be deducted from the number of directors to which Neeleman has the right to appoint pursuant to Section 4.5 above.
4.5.2 Among the members of the Board of Directors appointed by Neeleman, pursuant to terms of Section 4.5 above, (a) at least two (2) shall qualify as Independent Directors; and (b) at least one shall be appointed to Neeleman by the shareholder holding the largest number of Preferred Shares (Largest Shareholder of Preferred Shares). In the event the Largest Shareholder of Preferred Shares, for any reason, does not appoint a member to the Board of Directors of the Company in accordance with this Section 4.5.2, Neeleman shall request that the shareholder holding the second largest number of Preferred Shares (Second Largest Shareholder of Preferred Shares) appoints a member to the Board of Directors of the Company. In the event, the Second Largest Shareholder of Preferred Shares fails to appoint for any reason a member to the Board of Directors of the Company, Neeleman shall request that the shareholder holding the third largest number of Preferred Shares appoint a member of the Board of Directors of the Company, consecutively, until a holder of Preferred Shares (excluding Neeleman) appoints a member of the Board of Directors.
4.6 Resolutions of the General Meeting. Except for matters for which the holders of Preferred Shares hold the right to vote, in accordance with the Bylaws, all other decisions of General Meetings of the Company shall be made by the affirmative vote of holders of at least the majority of Common Shares.
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4.6.1 Notwithstanding the provisions of Section 4.5 above, as long as TRIPs Shareholders hold, together, at least five percent (5%) of the Common Shares, any changes to the Bylaws of the Company that, by amending the items listed below, may materially affect the rights of TRIPs Shareholders, shall necessarily be approved by a majority of TRIPs Shareholders:
(a) the quorum required for decisions of the Board of Directors;
(b) the powers of the Board of Directors of the Company; or
(c) the rules for calling, installing or reducing powers and other provisions regarding the meetings of the Board of Directors.
4.6.2 Notwithstanding Section 4.5 above, as long as TRIPs Shareholders hold at least five percent (5%) of the Bound Common Shares, any changes to the Bylaws of the Company that change the total number of directors of the Companys Board of Directors, which must remain composed of fourteen (14) members, must necessarily be approved by a majority of TRIPs Shareholders.
4.6.2.1 The Section above shall not apply in the case of an increase in the number of directors of the Company where TRIPs Shareholders representation on the Board is maintained in the same proportion.
4.7 Shareholders are obligated to vote with their Shares in order to elect the members that are to join the Board of Directors, in accordance with the provisions of Sections 4.2, 4.3, 4.4 and 4.5 above.
4.8 No individual bound (including as an investor, manager, officer, employee, consultant or representative) to any competitor of the Company and/or its subsidiaries may be elected to join the Board of Directors of the Company, except for the case of an individual bound (including as an investor, manager, officer, employee, consultant or representative) to a Shareholder or any of its Affiliates.
4.9 Conversion of TAP Bonds. David Neeleman, any of his Permitted Transferees or any company controlled by David Neeleman shall abstain from voting in any resolution and from taking part in any decision related to the conversion of the TAP Bonds into TAP equity securities.
SECTION V
TRANSFER OF SHARES
5.1 TRIPs Shareholders Tag-Along Right. In the event that Neeleman intends to transfer a portion of the Bound Shares, he shall notify TRIPs Shareholders. When TRIPs Shareholders receive a notification sent by Neeleman stating his intention to transfer a portion of his Bound Common Shares (Transfer of Neelemans Shares) to a third party, the Notified TRIPs Shareholders (Notified TRIPs Shareholders) shall have the right to require that the Transfer of Neelemans Shares, object of the notice, also comprises a percentage of Bound Common Shares of their ownership equivalent to the result of the division of (a) the number of Bound Common Shares to be transferred by Neeleman; by (b) the total number of Bound Common Shares held by Neeleman at the moment immediately prior to the referred transaction, under the same conditions under which Neeleman intends to transfer his Bound Common Shares (the TRIPs Shareholders Tag-Along Right).
5.2 Neelemans Tag-Along Right. In the event that TRIPs Shareholders intend to transfer a portion of the Bound Shares, they shall notify Neeleman. When Neeleman receives a notice sent by any of the TRIPs Shareholders of their intent to transfer a portion of the Bound Common Shares held by any of TRIPs Shareholders (Transfer of TRIPs Shareholders Shares) to a third party (Notified Neeleman), Notified Neeleman shall have the right to require that the transfer of the TRIPs Shareholders Shares, object of the notification, also comprises a percentage of Bound Common Shares of his ownership equivalent to the result of the division of (a) the number of Bound Common Shares to be Transferred by any of the TRIPs Shareholders; by (b) the total number of Bound Common Shares held by TRIPs Shareholders at the moment immediately prior to the referred transaction, under the same conditions under which any of TRIPs Shareholder intend to transfer their Bound Common Shares (the Neelemans Tag-Along Right).
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5.3 Transfer of Shares. If either Neeleman or TRIPs Shareholders (the Offered Shareholder), as the case may be, have chosen to exercise their Tag-Along Right, the other shareholder (the Offering Shareholder) may not validly complete any transfer unless the third party buyer acquires from the Offered Shareholder, concurrently, the Bound Common Shares pursuant to the exercise of the referred right, under the same terms and conditions under which the buyer has agreed to acquire the Offered Shares, pursuant to Sections 5.1 and 5.2 above. In the event that the Offered Shareholder fails to agree to enter into the definitive agreements under the same terms and conditions of the definitive agreements negotiated by the Offering Shareholder, the Offering Shareholder shall be free to complete the Transfer.
5.4 Term for Closing. Whether or not the Tag-Along Right has been exercised by the Offered Shareholder according to the terms above, the Offering Shareholder shall proceed with the transfer of the Offered Shares, and such transfer must be completed, preferably, within a period of one hundred twenty (120) days from the receipt of the notices set forth in Sections 5.1 and 5.2. After such period, if the transfer of the Offered Shares to the third party has not been completed and the Offering Shareholder still intends to Transfer Shares, the Offering Shareholder shall again follow the procedure set forth in Sections 5.1 and 5.2 above.
5.5 TRIPs Shareholders Right of First Offer. In the event that Neeleman intends to dispose of his Bound Common Shares in such manner that, after such disposal or transfer, the Common Shares held by Neeleman come to represent less than fifty percent (50%) plus one (1) Common Shares issued by Azul Holding, in each subsequent disposal or transfer of Common Shares (the Neelemans Offered Shares) Neeleman shall, primarily, before making any offer to any third party, inform and notify TRIPs Shareholders in writing of such intention, specifying the terms and conditions under which he intends to transfer the Neelemans Offered Shares, including the number of the Neelemans Offered Shares, the respective price per share, the payment terms and other relevant conditions of the desired transfer (the Neelemans Transfer Notice).
5.6 TRIPs Shareholders shall have a right of first offer to acquire the Offered Shares on terms equal or superior to those specified by Neeleman and contained in the Neelemans Transfer Notice (the TRIPs Shareholders Right of First Offer), whereby TRIPs Shareholders shall send a written notice to Neeleman (the TRIPs Shareholders Response Notice) within sixty (60) days of receipt of the Neelemans Transfer Notice, informing whether they will exercise their TRIPs Shareholders Right of First Offer; the absence of such response to be interpreted as lack of interest in exercising such right.
5.7 The TRIPs Shareholders Response Notice shall be firm, irrevocable and irreversible. During the period of sixty (60) days of receipt by Neeleman of the TRIPs Shareholders Response Notice, TRIPs Shareholders shall buy and Neeleman shall sell the Neelemans Offered Shares, which shall be free and clear of any liens, encumbrances or options, under the terms offered, binding the parties, as of now, to perform all acts and execute all documents necessary to formalize the referred transaction (the Closing of TRIPs Shareholders Right of First Offer).
5.8 If (a) TRIPs Shareholders waive their TRIPs Shareholders Right of First Offer, (b) TRIPs Shareholders fail to deliver a TRIPs Shareholders Response Notice in accordance with the terms set forth in Section 5.6 above, or (c) the Closing of the TRIPs Shareholders Right of First Offer fails to comply with the terms of Section 5.7 above, Neeleman shall be free to transfer the Neelemans Offered Shares to third parties, provided that at a price per share superior to that specified and under conditions equal to or better than those contained in the TRIPs Shareholders Response Notice, and compliant with the TRIPs Shareholders Tag-Along Right. The consummation of the acts necessary to implement the purchase and sale of the Neelemans Offered Shares and their transfer to the referred third party shall be conducted within one hundred twenty (120) days from the expiration of the period of sixty (60) days set forth in Section 5.6 above. After such period, if Neeleman still intends to transfer Common Shares, he shall again observe the procedure set forth in this Section V.
5.9 Neelemans Right of First Offer. In the event that TRIPs Shareholders intend to dispose of any of their Bound Common Shares (the TRIPs Shareholders Offered Shares) TRIPs Shareholders shall, primarily, before making any offer to any third party, inform and notify Neeleman in writing of such intention, specifying the terms and conditions under which they intend to transfer the TRIPs Shareholders Offered Shares, including the number of Offered Shares, the respective price per share, the payment terms and other relevant conditions of the desired transfer (the TRIPs Shareholders Transfer Notice).
5.10 Neeleman shall have a right of first offer to acquire the TRIPs Shareholders Offered Shares on terms equal or superior to those specified by TRIPs Shareholders and contained in the TRIPs Shareholders Transfer Notice (the Neelemans Right of First Offer), whereby Neeleman shall send a written notice to TRIPs Shareholders (the Neelemans Response Notice) within sixty (60) days of receipt of the TRIPs Shareholders Transfer Notice, informing whether he will exercise his Neelemans Right of First Offer; the absence of such response to be interpreted as lack of interest in exercising such right.
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5.11 The Neelemans Response Notice shall be firm, irrevocable and irreversible. During the period of sixty (60) days of receipt by TRIPs Shareholders of the Neelemans Response Notice, Neeleman shall buy and TRIPs Shareholders shall sell the TRIPs Shareholders Offered Shares, which shall be free and clear of any liens, encumbrances or options, under the terms offered, binding the parties, as of now, to perform all acts and execute all documents necessary to formalize the referred transaction (the Closing of Neelemans Right of First Offer).
5.12 If (a) Neeleman waives his Neelemans Right of First Offer, (b) Neeleman fails to deliver a Neelemans Response Notice in accordance with the terms set forth in Section 5.10 above, or (c) the Closing of Neelemans Right of First Offer fails to comply with the terms of Section 5.11 above, TRIPs Shareholders shall be free to transfer the TRIPs Shareholders Offered Shares to third parties, provided that at a price per share superior to that specified and under conditions equal to or better than those contained in the Neelemans Response Notice, and compliant with the Neelemans Tag-Along Right. The consummation of the acts necessary to implement the purchase and sale of the TRIPs Shareholders Offered Shares and their transfer to the referred third party shall be conducted within one hundred twenty (120) days from the expiration of the period of sixty (60) days set forth in Section 5.10 above. After such period, if TRIPs Shareholders still intend to transfer Common Shares, they shall again observe the procedure set forth in this Section V.
5.13 Permitted Transfers; ANAC. The exercise of the Tag-Along Right, the TRIPs Shareholders Right of First Offer and the Neelemans Right of First Offer shall not apply when the Transfer of the Bound Common Shares held by Neeleman or TRIPs Shareholders, as applicable, is made to any of their Affiliates. Neeleman and TRIPs Shareholders shall observe, in any event, the need to submit any request for transfer of Shares to ANAC for prior approval.
SECTION VI
SPECIFIC PERFORMANCE
6.1 Subject to the provisions of this Section VI, the Parties recognize that the attribution of losses and damages, although due and calculated in accordance with applicable law, shall not constitute sufficient remedy for the breach of obligations hereunder, and any Shareholder may judicially require specific compliance with the defaulted obligation through court appointment, according to Article 118 of the Corporations Law, as well as Articles 461, 461-A, 466-A to 466-C, 632 et seq., 642 et seq. and 646 et seq. of the Brazilian Civil Procedure Code. This Agreement, signed by two (2) witnesses, constitutes an extrajudicial instrument on the basis of which execution proceedings may be started for all purposes and effects of Article 585, paragraph II of the Brazilian Civil Procedure Code.
SECTION VII
GOVERNING LAW AND ARBITRATION
7.1 Governing Law. This Agreement shall be interpreted and governed in accordance with the laws of the Federative Republic of Brazil.
7.2 Conflict Resolution. With the exception of disputes relating to obligations to pay which include judicial enforcement proceedings and that which may require, at the outset, specific execution, all other disputes arising from or connected to this Agreement and its schedules, among others, which pertain to its validity, effectiveness, violation, interpretation, expiration, termination and its consequences, shall be resolved by arbitration, pursuant to Law No. 9,307/96, as amended, upon the conditions that follow.
7.2.1 The dispute shall be submitted to the International Chamber of Commerce (Arbitration Center) in accordance with its regulation (Regulation), effective as of the date of the request for initiation of arbitration. The arbitration shall be conducted in Portuguese; provided, however, that if Calfinco or HNA are parties to the dispute, the arbitration shall be conducted in English.
7.2.2 The arbitration shall be based in the City of São Paulo, State of São Paulo, where the arbitral decision shall be granted, and the arbitrators are not authorized to rule based on equity, except for the settlement of the attorneys fees mentioned in Section 7.2.4 below.
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7.2.3 The arbitration court (Arbitration Court) shall comprise three arbitrators registered in the Brazilian Bar Association, where the applicant(s), on one hand, shall appoint one arbitrator, and the defendant, on the other, appoint a second arbitrator, which, by common agreement, appoint the third arbitrator who shall act as President of the Arbitration Court. If either party fails to appoint an arbitrator and/or two (2) arbitrators appointed by the Parties fail to appoint the third arbitrator within thirty (30) days from the date set forth for such action, the President of the Arbitration Center shall be responsible for appointing the third arbitrator in the manner set forth in its Regulation.
7.2.4 The Parties agree that the Party upon which the adverse decision is imposed shall pay the fees and expenses incurred with the arbitrators and the Arbitration Center, if otherwise not established in the arbitration decision. The Parties shall bear the costs and fees of their respective attorneys.
7.2.5 Each Party remains entitled to propose in the competent common judgment the legal measures aimed at obtaining precautionary approvals for protection or safeguarding of rights or as preparation prior to the establishment of the Arbitration Court, such action not to be construed as a waiver of arbitration. For the exercise of court protections, the Parties elect the jurisdiction of the City of São Paulo, State of São Paulo, judicial district of the capital, expressly waiving any other, as privileged as it may be. After the initiation of the Arbitration Court, such measures shall be directed to the Arbitration Court.
7.2.6 The decisions of the arbitration shall be final and binding, not requiring court approval nor admitting any appeal against the same, except for requests for correction and clarification before the Arbitration Court, pursuant to art. 30 of Law No. 9,307/96 and possible annulment action pursuant to art. 32 of Law No. 9,307/96. According to article 475-P of the Brazilian Civil Procedure Code, the execution of the judgment shall take place in the judicial district it was processed (the City of São Paulo, State of São Paulo, pursuant to Section 7.2.2 above), the execution creditor being able to legally opt for the location where assets subject to expropriation are located or at the primary residence of the execution debtor. Each Party shall use its best efforts to ensure the expeditious and efficient completion of the arbitration procedures.
7.2.7 Regardless of the nature of the dispute to be settled through arbitration, all Parties shall participate in it, either as a party (when the dispute directly involves it as claimant or counterclaimant), or as an interested third party (when it may be, in any way, directly or indirectly affected by decisions to be made in the course or at the end of the procedure). Likewise, the award shall be final and binding on all Parties, regardless of eventual refusal by any Party to participate in the arbitration procedure, either as a party or an interested third party.
7.2.8 The arbitration shall be completed within the term of six (6) months, which may be extended upon justification by the Arbitration Court.
7.2.9 The arbitration shall be confidential.
SECTION VIII
GENERAL PROVISIONS
8.1 Entire Agreement. This Agreement represents the entire understanding of the Parties regarding the subject matter and supersedes all prior agreements, discussions and understandings with respect to the provisions hereof, subject to the terms of the Investment Agreement.
8.2 Irrevocability and Irreversibility. The obligations herein are assumed by the Parties irrevocably and irreversibly.
8.3 Successors. This Agreement binds not only the Parties but also their successors and permitted assigns, in any capacity, including, without limitation, in cases of merger and incorporation (including of shares) or spin-off of the Shareholders and the Company.
8.4 Assignment. This Agreement and/or all rights, remedies, obligations or liabilities hereunder, by reason hereof, shall not be subject to assignment, transfer or subrogation, in whole or in part, by any of the Shareholders, without the prior consent in writing by the other Shareholder.
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8.5 Severability. In the event that any Chapter, Section, Subsection, Item, Exhibit, term or provision hereof is declared invalid or unenforceable pursuant to law, such invalidity or unenforceability shall not affect any other Chapters, Sections, Subsections, Items, Exhibits, terms or provisions hereof, all of which shall remain in full force and effect. Upon determining which term or provision hereof is void or unenforceable, the Parties shall negotiate in good faith to amend this Agreement so as to cause it to reflect, as much as possible, the real intention of the Parties, in a mutually acceptable form, so that the transaction contemplated herein is consummated as originally set forth, to the greatest possible extent.
8.6 Waiver. No omission or delay by either Party in the exercise of its rights, powers or privileges specified herein shall be deemed a waiver, nor shall any single or partial exercise specified herein prevent other or future exercises set forth herein, nor the exercise of other rights, powers or privileges. The rights and remedies specified herein shall be cumulative and non exclusive of any right or remedy provided by law.
8.7 Novation. Any concession or tolerance of any Shareholder regarding (a) non-compliance or partial compliance by the other Party, with any obligation pertaining hereto, (b) absence of requirement of compliance with a specific obligation, or, (c) the admission of compliance with an obligation in a different manner from that provided herein, shall be considered mere liberality and shall not constitute, tacitly or implicitly, novation, enforceable precedent, tacit amendment of its terms, waiver of rights, redemption of obligations or right acquired by the other Shareholder.
8.8 Amendments. Any provision hereof may be amended or waived provided that such amendment or waiver is made in writing and signed by all Parties.
8.9 Terms. All terms set forth herein shall be measured as provided in Article 184 of the Code of Civil Procedure, i.e., excluding the day of beginning and including the maturity date. All terms set forth herein that expire on Saturdays, Sundays or holidays in the city of São Paulo, state of São Paulo, and the city of Vitória, state of Espírito Santo, shall be automatically extended to the following business day.
8.10 Filing in the Headquarters of the Company. This Agreement shall be filed at the Companys headquarters, and the obligations and encumbrances resulting herefrom shall be recorded in accordance with Section 8.11 below, at the corresponding records, including, among others, in the Registered Shares Register of the Company (or before the financial institution responsible for the bookkeeping of Shares, including the declaration of equity ownership), in accordance with and for the purposes of Article 118, heading, and paragraph 1 of the Corporations Law.
8.11 Annotation. The Company shall ensure that a label with the text below is annotated on the relevant pages of its Registered Shares Register (or at the financial institution responsible for the bookkeeping of Shares, including the declaration of equity ownership) and on any other records or certificates representing Shares under this Agreement:
THE TOTALITY OF SHARES HELD BY TRIP PARTICIPAÇÕES S.A., TRIP INVESTIMENTOS LTDA., RIO NOVO LOCAÇÕES LTDA. AND DAVID GARY NEELEMAN ARE SUBJECT TO THE NORMS AND RESTRICTIONS SET FORTH IN THE SHAREHOLDERS AGREEMENT DATED [-], THE COPY OF WHICH IS AVAILABLE AT THE HEAD OFFICE OF THE COMPANY.
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8.12 Notices. Except as otherwise expressly provided herein, all notices or communications to be sent by any Party to the other Parties shall be in writing and shall be considered validly received when delivered personally, by certified mail, with return receipt, or by courier service; or by means of registry offices or courts; upon their receipt at the addresses listed below, or at other addresses (including email addresses) or facsimile numbers as the Parties may provide each other through a notice in accordance with this Agreement:
(a) to the Company:
Address: Av. Marcos Penteado de Ulhoa Rodrigues, 939, 8th floor, Condominio Castelo Branco Office Park, Tamboré, Barueri, 06460-060
E-mail: john.rodgerson@voeazul.com.br
Fax: (11) 4134-9800
To: John Rodgerson
(b) to Trip Participações S.A.:
Address: Rod. BR 262, km. 5, Campo Grande, Cariacica/ES
E-mail: renanc@aguiabranca.com.br
Fax: (27) 2125-6301
To: Renan Chieppe
(c) to Trip Investimentos Ltda.:
Address: Rod. BR 262, km. 5, Campo Grande, Cariacica/ES
E-mail: josemario@voeazul.com.br
Fax: (27) 2125-6301
To: José Mário Caprioli dos Santos
(d) to Rio Novo Locações Ltda.:
Address: Rod. BR 262, km. 6.3, sala 208, Campo Grande, Cariacica/ES
E-mail: decio@aguiabranca.com.br
Fax: (27) 2125-6304
To: Décio Luiz Chieppe
(e) to CALFINCO Inc.
Address: 233 S. Wacker Dr., Chicago, Illinois 60606, U.S.A.
E-mail: gerry.laderman@united.com
Fax: +1 (872) 825-3321
To: Gerald Laderman
with a copy to (which shall not constitute notice):
Address: 233 S. Wacker Dr., Chicago, Illinois 60606, U.S.A.
E-mail: thomas.bolling@united.com
Fax: +1 (872) 825-0309
To: Thomas N. Bolling
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(f) to Hainan Airlines Co., Ltd.
Address: HNA Plaza, No. 7 Guoxing Road, Haikou City, Hainan Province, China
E-mail: ke-zhao3@hnair.com
Fax: +86 (898) 68875300
To: Zhao Ke
with a copy to (which shall not constitute notice):
Address: One South Dearborn Chicago, IL 60603
E-mail: pjha@sidley.com
Fax: +1 (312) 853-4161
To: Pran Jha
(g) to David Gary Neeleman:
Address: Av. Marcos Penteado de Ulhoa Rodrigues, 939, 8th floor, Condominio Castelo Branco Office Park, Tamboré, Barueri, 06460-060
E-mail: john.rodgerson@voeazul.com.br
Fax: (11) 4134-9800
To: John Rodgerson
8.12.1 The Parties undertake to maintain, throughout the term of this Agreement, the data referred to in this Section 8.12 correct, sufficient, accurate and updated. Any alteration must be preceded by prior notice in writing to the other Parties, pursuant to terms hereof.
8.13 Validity. This Agreement shall enter into force on the date of signature and shall remain valid and in force (a) for a period of twenty (20) years; or (b) until the date when TRIPs Shareholders hold less than five percent (5%) of Common Shares, whichever occurs first.
In witness whereof, the Parties sign this Agreement in five (5) counterparts of equal form and content, before two (2) witnesses.
São Paulo, [].
(The remainder of this page intentionally left blank)
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(Signature page of the Shareholders Agreement)
TRIP PARTICIPAÇÕES S.A. | ||||
Name: | Name: | |||
Position: | Position: |
TRIP INVESTIMENTOS LTDA. | ||||
Name: | Name: | |||
Position: | Position: |
RIO NOVO LOCAÇÕES LTDA. | ||||
Name: | Name: | |||
Position: | Position: |
CALFINCO, INC. | ||||
Name: | Name: | |||
Position: | Position: |
HAINAN AIRLINES CO., LTD. | ||||
Name: | Name: | |||
Position: | Position: |
DAVID GARY NEELEMAN |
AZUL S.A.
|
Name: |
Position: |
Page 1 of 2
Witnesses: | ||||
Name: | Name: | |||
RG | RG |
Page 2 of 2
Exhibit 10.8
Execution version
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL TREATMENT REQUESTED REDACTED COPY Confidential
Treatment has been requested for portions of this Exhibit. Confidential portions of this
Exhibit are designated by [*****]. A complete version of this Exhibit has
been filed separately with the Securities and Exchange Commission.
General Terms Agreement
No. CFM-1-4207092154
Between
CFM International Inc.
And
Azul Linhas Aéreas Brasileiras S.A.
PROPRIETARY INFORMATION NOTICE The information contained in this document is CFM Proprietary Information and is disclosed in confidence. It is the property of CFM and shall not be used, disclosed to others, or reproduced without the express written consent of CFM. If consent is given for reproduction in whole or in part, this notice and the notice set forth on each page of this document shall appear on any such reproduction. Export control laws may also control the information contained in this document. Unauthorized export or re-export is prohibited.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Execution version
GENERAL TERMS AGREEMENT NO. CFM-1-4207092154
Table of Contents
SECTION I DEFINITIONS |
2 | |
SECTION II TERMS AND CONDITIONS |
5 | |
ARTICLE 1 PRODUCTS |
5 | |
ARTICLE 2 - PRODUCT PRICES |
5 | |
ARTICLE 3 - PRODUCT ORDER PLACEMENT |
6 | |
ARTICLE 4 - DELIVERY, TITLE, TRANSPORTATION, RISK OF LOSS, & PACKAGING OF PRODUCTS |
7 | |
ARTICLE 5 - PAYMENT FOR PRODUCTS |
8 | |
ARTICLE 6 - TAXES AND DUTIES |
8 | |
ARTICLE 7 - WARRANTY AND PRODUCT SUPPORT PLAN |
8 | |
ARTICLE 8 - EXCUSABLE DELAY |
9 | |
ARTICLE 9 PATENTS |
9 | |
ARTICLE 10 DATA |
10 | |
ARTICLE 11 - TERMINATION FOR INSOLVENCY |
12 | |
ARTICLE 12 - LIMITATION OF LIABILITY |
12 | |
ARTICLE 13 - GOVERNMENT AUTHORIZATION, EXPORT SHIPMENT |
13 | |
ARTICLE 14 PERSONAL DATA PROTECTION |
14 | |
ARTICLE 15 NOTICES |
14 | |
ARTICLE 16 MISCELLANEOUS |
15 | |
EXHIBIT A |
18 | |
EXHIBIT A: ENGINE WARRANTY PLAN |
18 | |
SECTION I WARRANTIES |
18 | |
A. New Engine Warranty |
18 | |
B. New Parts Warranty |
18 | |
C. Ultimate Life Warranty |
18 | |
D. Campaign Change Warranty |
19 | |
E. Warranty Pass-On |
19 | |
F. Supplier Warranty Back-Up |
20 | |
G. Supplier Interface Warranty |
20 | |
SECTION II - GENERAL CONDITIONS |
20 | |
EXHIBIT B: ENGINE PRODUCT SUPPORT PLAN |
1 | |
SECTION I - SPARE PARTS PROVISIONING |
1 | |
A. Provisioning Data |
1 | |
B. Return Of Parts |
1 | |
C. Parts Buy-Back |
1 | |
D. Parts of Modified Design |
1 | |
E. Spare Parts Availability |
2 | |
SECTION II - TECHNICAL PUBLICATIONS AND DATA |
2 | |
SECTION III - TECHNICAL TRAINING |
2 |
CFM PROPRIETARY INFORMATION
(subject to restrictions on cover page)
Execution version
GENERAL TERMS AGREEMENT NO. CFM-1-4207092154
A. Introduction |
2 | |||
B. Scope |
3 | |||
C. Training Location |
3 | |||
D. Customer Responsibility |
3 | |||
SECTION IV - CUSTOMER SUPPORT AND SERVICE |
3 | |||
A. Customer Support Manager |
3 | |||
B. Field Support |
4 | |||
C. Fees for Customer Support Manager & Field Services Representative |
4 | |||
SECTION V - ENGINEERING SUPPORT |
4 | |||
SECTION VI - PERFORMANCE TREND MONITORING |
4 | |||
SECTION VII - GENERAL CONDITIONS - PRODUCT SUPPORT PLAN |
4 | |||
EXHIBIT C: PAYMENT TERMS |
6 | |||
EXHIBIT D: CONDITIONS OF ACCESS AND USE OF THE CFM CUSTOMER WEB CENTER |
1 | |||
EXHIBIT E: STANDARD DIAGNOSTICS SERVICES |
1 | |||
1. DIAGNOSTICS SERVICE ELEMENTS |
1 | |||
2. CUSTOMERS RESPONSIBILITY UNDER THE DIAGNOSTICS PROGRAM |
1 | |||
3. WARRANTY |
2 | |||
4. ASSIGNMENT |
3 |
CFM PROPRIETARY INFORMATION
(subject to restrictions on cover page)
Execution version
GENERAL TERMS AGREEMENT NO. CFM-1-4207092154
THIS GENERAL TERMS AGREEMENT NO. 1-4207092154 (hereinafter referred to as this Agreement), dated as of the 13th of January, 2016, by and between CFM International, Inc. (hereinafter referred to as CFM), a corporation organized under the law of the State of the Delaware, and jointly owned by the General Electric Company, a New York corporation (hereinafter referred to as GE) and SNECMA, a French company (hereinafter referred to as SNECMA) and Azul Linhas Aéreas Brasileiras S.A. a corporation organized under the law of São Paulo, Brazil (hereinafter referred to as Customer). CFM and Customer are also referred to in this Agreement as the Parties or individually as a Party.
WITNESSETH
WHEREAS, Customer has acquired, or is in the process of acquiring and operate a certain number of aircraft equipped with installed Engines (Aircraft), and
WHEREAS, the Parties desire to enter into this Agreement to establish the terms and conditions governing the sale by CFM and the purchase by Customer of Spare Engines (as defined below), related equipment and spare Parts therefor and the product services to be supplied by CFM in support of such installed and Spare Engines for use by Customer with respect to its commercial passenger service purposes (Activities), and
NOW, THEREFORE, in consideration of the mutual covenants herein contained, the respective Parties hereto agree as follows to the respective Sections of this Agreement. Capitalized terms used herein that are otherwise undefined shall have the meanings ascribed to them in Section I (Definitions), unless the context requires otherwise.
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GENERAL TERMS AGREEMENT NO. CFM-1-4207092154
SECTION I - DEFINITIONS
These definitions shall apply for all purposes of this Agreement unless the context otherwise requires.
Agreement means this General Terms Agreement, together with all exhibits, and specific transaction agreements (Letter Agreements) and attachments, between CFM and Customer.
Airworthiness Authorities or AAA means the Federal Aviation Administration of the United States Department of Transportation (FAA), the European Aviation Safety Agency (EASA), (superseding the JAA and/or the responsible National Airworthiness Authorities of the European Union (NAAs), as applicable),and National Civil Aviation Agency of Brazil (ANAC) or, as identified by Customer and agreed in writing by GE, such other equivalent foreign aviation authority having jurisdiction over the performance of Service provided hereunder, which are also individually and separately referred to in this Agreement as the Airworthiness Authority or AAA.
Airworthiness Directive means a requirement for the Inspection, repair or modification of the Engine or any portion thereof as issued by Airworthiness Authorities.
ATA means the Air Transport Association of America.
CFM Controls and Accessories means controls and accessories on installed or Spare Engines and sold by CFM on a direct purchase.
Critical Part is an engine rotor or major static structural part with an Airworthiness Limitation approved by the Airworthiness Authority.
Critical Influencing Part is a part that experience has shown can directly or indirectly influence the boundary conditions of the lifing system used to determine the LLP airworthiness limitations.
Customer Response Center or CRC means AOC Aviation Operations Center, or CSC Customer Support Center which provides 24 hours, 7 day a week support for customers technical and business inquiries.
CWC means CFM Customer Web Center
Data means all information and data of any type, form or nature (including, but not limited to, designs, drawings, blueprints, tracings, plans, models, layouts, software, specifications, technical publications, electronic transmittals, customer website data and memoranda) which may be furnished or made available to Customer, directly or indirectly, as the result of this Agreement.
Departure Records means the disposition decisions and all departures from CFM shop manuals regarding CFM Parts and component repairs and the CFM approvals thereof.
Engine means the FAA/EASA certified CFM LEAP-1A Engine(s) installed on the Aircraft owned by Customer, as may be further described, from time to time, in the applicable Letter Agreement(s) to this Agreement.
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Expendable Parts means those Parts which must routinely be replaced during Inspection, repair, or maintenance, whether or not such Parts have been damaged, and other Parts which are customarily replaced at each such Inspection and maintenance period such as filter inserts and other short-lived items which are not dependent on wear out but replaced at predetermined intervals.
Failed Parts means those Parts and Expendable Parts suffering a Failure, and including Parts suffering Resultant Damage.
Failure means the breakage of a Part, failure to function of a Part, or damage to a Part, rendering it not Serviceable and such breakage, failure or damage has been determined to be due to causes within CFMs control including, but not limited to, a defect in design. Failure shall also include any defect in material or workmanship.
Flight Cycle means the complete running of an Engine from start through any condition of flight and ending at Engine shutdown. A touch and go landing used during pilot training shall be considered as a Flight Cycle.
Flight Hours means the cumulative number of airborne hours in operation of each Engine computed from the time an aircraft leaves the ground until it touches the ground at the end of a flight.
Foreign Object Damage means any damage to the Engine caused by objects that are not part of the Engine and Engine optional equipment.
Inspection means the observation of an Engine or Parts thereof, through disassembly or other means, for the purpose of determining serviceability.
Labor Allowance means a CFM credit calculated by [*****]. If a Labor Allowance is granted for a repair, it shall not exceed the credit that would have been quoted if the Part had not been repairable. The established labor rate means either (a) [*****], or (b) [*****].
Life-Limited Part or LLP is an engine rotor or major static structural part with an Airworthiness Limitation approved by the Airworthiness Authority.
Module means a major sub-assembly of any of the Engines described in the applicable letter agreements.
Part means only those FAA/EASA certified Engine and Engine Module Parts which have been sold originally to Customer by CFM for commercial use. The term excludes parts that were furnished on new Engines and Modules but are procured directly from vendors. Such parts are covered by the vendor warranty and the CFM Vendor Warranty Back Up. Also excluded are Expendable Parts and customary short-lived items such as igniters and filter inserts.
Parts Credit Allowance means the credit granted by CFM to Customer, in connection with either a CFM-declared campaign change or the Failure of a Part under warranty, based on [*****]. This credit may take the form of [*****].
Part Cycles means the total number of Flight Cycles accumulated by a Part.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Parts Repair means the CFM recommended rework or restoration of Failed Parts to a Serviceable condition.
Part Time means the total number of Flight Hours accumulated by a Part.
Product(s) means Spare Engines, Modules, Parts, related optional equipment, shipping stand in support of a Spare Engine, Engine thrust upgrade, technical data and other products offered for sale by CFM from time to time.
Resultant Damage means the damage suffered by a Part in warranty because of a Failure of another Part or Expendable Part within the same engine, provided the Part or Expendable Part causing the damage was in warranty.
Scrapped Parts means those Parts determined by CFM to be un-Serviceable and not repairable by virtue of reliability, performance or repair costs. Such Parts shall be considered as scrapped if they bear a scrap tag duly countersigned by a CFM representative. Such Parts shall be destroyed and disposed of by Customer unless requested by CFM for engineering analysis, in which event any handling and shipping shall be at CFMs expense.
Serviceable when used to describe an Engine or Part, means in an airworthy condition within the limits defined in the applicable Engine manuals, specification and/or publications by the type certificate holder.
Spare Engine means an Engine acquired in support of Customers fleet of Aircraft for use as a spare Engine when another Engine in such fleet is unavailable due to damage or is otherwise being repaired or serviced.
Supplier means any supplier of the LEAP Supplier Controls and Accessories specified in Attachment III to Exhibit A, Table 3 which may be amended or supplemented from time to time via notification to Customer.
Supplier Controls and Accessories means controls and accessories listed in Attachment III to Exhibit A,
Table 3 on installed or Spare Engines and sold only by Suppliers on a direct purchase basis.
Ultimate Life of a rotating Part means the approved limitation on use of a rotating Part, in cumulative Flight Hours or Flight Cycles, which the Airworthiness Authority establishes as the maximum period of allowed operational time for such rotating Parts in Customer service, with periodic repair and restoration.
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SECTION II TERMS AND CONDITIONS
ARTICLE 1 - PRODUCTS
A. | Customer may purchase under the terms and subject to the conditions hereinafter set forth, Product(s) in quantities and in configurations reasonably required to support Customers Activities and the Aircraft applications operated by Customer in connection therewith. |
B. | In order to assure that an adequate supply of CFM Spare Engines are available to support the worldwide operating fleet of CFM powered aircraft, CFM reserves the option, for a limited period of time following the sale of Spare Engines to Customer, to repurchase Spare Engines which Customer proposes to utilize for other than its own operating purposes. |
Accordingly, if prior to the accumulation of [*****] on any Spare Engine sold hereunder, Customer elects to a) offer such Spare Engine for resale or b) undertake action to cause components or parts of such Spare Engine to be made available for sale, Customer shall give CFM prompt advanced written notice of such determination (Customers Notice).
Promptly upon receipt of such notice, CFM shall have the option to repurchase the Spare Engine from Customer (the CFM Repurchase Option) at the lower of (i) [*****]; or (ii) [*****].
If requested by CFM, an independent expert, jointly designated by CFM and Customer, shall verify such offer while maintaining in confidence the identity of such third party.
CFM shall give Customer notice of its decision to decline or to exercise such CFM Repurchase Option within [*****] of its receipt of Customers Notice. Fulfillment by CFM of the CFM Repurchase Option shall be conditional upon technical Inspection, review and acceptance of the Spare Engine and its records by CFM and the execution of a mutually acceptable purchase agreement.
For the avoidance of doubt, such CFM Repurchase Option shall not apply to any sale of a Spare Engine intended to [*****].
ARTICLE 2 - PRODUCT PRICES
A. | In General,. The selling price of Products will be the respective prices which are quoted in the CFM Spare Parts Price Catalog, as revised from time to time (the Spare Parts Catalog or Catalog) or in CFMs written quotation or proposal from time to time and confirmed in a Letter Agreement for the purchase of Spare Engines or in a purchase order placed by Customer and accepted by CFM. CFM shall quote such prices in U.S. Dollars and Customer shall pay for Products in U.S. Dollars. All Product prices include [*****], but exclude, in the case of Spare Engines, [*****] unless as otherwise stated in Letter Agreements to this Agreement. Transportation costs and costs resulting from special Inspection, packaging, testing or other special requirements, requested by Customer, will be paid for by Customer. CFM will advise Customer in writing [*****] in advance of any changes in prices affecting a significant portion of the prices in the Catalog. During such [*****] period, CFM shall not be obligated to accept Customer purchase orders for quantities of spare Parts in excess of up to [*****] of Customers normal usage beyond the effective date of the announced price change. |
When Customer requests Delivery of Product that is less than the lead time quoted in Spare Parts Catalog, expedite fees may apply, except for emergency cases, which include AOG, if such emergency cannot reasonably be forecasted by Customer.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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B. | Spare Engines. Spare Engine prices will be quoted as base prices, subject to escalation using the appropriate CFM Engine escalation provisions then in effect. The appropriate CFM escalation provisions will be set forth in each applicable Letter Agreement to this Agreement. No change to such escalation provisions, such as changes described in the VALUES TO BE UTILIZED IN THE EVENT OF UNAVAILABILITY paragraph of the escalation attachment to the applicable Letter Agreement, will apply to Customer until CFM provides Customer at least [*****] prior written notice. |
ARTICLE 3 - PRODUCT ORDER PLACEMENT
A. | The terms and conditions set forth herein are in lieu of all printed terms and conditions appearing on Customers purchase orders. |
B. | For each purchase order placed by Customer via Spec2200, CFM shall respond by confirming, modifying or rejecting it [*****], on condition that order is placed correctly within current electronic ordering systems. For all other order placement methods CFM shall respond within [*****]. |
C. | For all Products, except Spare Engines, Customer may place purchase orders, in preference, through the CWC, or EDI network (Spec2200), or any other electronic mean, or as prescribed in said Catalog or CFMs quotation, facsimile transmission, or telephone with written confirmation. |
D. | For Spare Engines only, Customer will place a purchase order in a mutually agreed upon format and shall include the information listed below in sub-section E in this Article 3. An original version shall be sent to CFM International Inc., Att: Sales Administration, Evendale MD G7, Cincinnati, Ohio 45215 USA; and a copy to the Customers assigned CSM email address. Purchase orders shall include the following information: |
1) | Customer IATA Code; |
2) | GTA Number; |
3) | Customer headquarter address; |
4) | Invoicing address; |
5) | V.A.T. Number; |
6) | Description of Product; |
7) | Price; |
8) | Quantity; |
9) | Delivery date request; |
10) | Shipping instructions; |
11) | Freight forwarder address including contact name, phone, fax email and address; |
12) | Address for logbook; |
13) | Bill of Sale address including name, phone, fax, email and address; |
14) | Spare Engine delivery address. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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E. | CFM shall provide to Customer recommended initial spare parts provisioning requirements as provided in Exhibit B, a minimum of [*****] prior to Customers first aircraft entry into service. CFM will deliver initial spares in accordance with catalog lead times, and will make best commercial efforts to comply with Customer´s defined initial spare parts provisioning delivery schedule |
ARTICLE 4 - DELIVERY, TITLE, TRANSPORTATION, RISK OF LOSS, & PACKAGING OF PRODUCTS
A. | CFM shall deliver Products under each purchase order placed by Customer and accepted by CFM, on a mutually agreed upon schedule consistent with CFM s lead times and set forth in each purchase order. Delivery dates are subject to (1) timely receipt by CFM of all information necessary to permit CFM to proceed with work immediately and without interruption, and (2) Customers compliance with the payment terms set forth herein. |
B. | Shipment of Products shall be from [*****] or [*****] or [*****], or [*****]. |
C. | Delivery of all Products shall be [*****]. Title to Products as well as risk of loss thereof or damage thereto shall pass to Customer upon delivery. |
Customer shall be responsible for arranging transportation in compliance with all relevant standards specific to Products, all risk and expense in obtaining any required licenses and carrying out all customs formalities for the exportation and importation of goods in accordance with the Article titled Government Authorization of this Agreement.
Upon Customers written request, CFM may assist Customer by designating an appropriate freight forwarder, or by assisting export shipment of Products, at Customers sole responsibility and expense, and CFM shall bear no liability for the same.
D. | Unless otherwise instructed by Customer, CFM shall deliver each Product, except for spare Parts, in accordance with CFMs normal standards for domestic shipment or export shipment, as applicable. [*****]. In the event any such CFM-owned items are not returned by Customer to [*****] in re-usable condition within [*****] after shipment, Customer will pay CFM the price of such items upon receipt of CFMs invoice. |
E. | If any Product is delayed by Customer, CFM may make Delivery by [*****]. In such event, all reasonable and substantiated expenses incurred by CFM for activities such as, but not limited to, [*****] shall be paid by [*****]. |
F. | Shipping documents, invoices and packaging (including markings) will be in accordance with ATA specifications, if applicable. |
G. | All Products will be delivered with an authorized release certificate attesting CFMs quality control representative final acceptance of the Product and the Products comply with the applicable specifications, quality and airworthiness requirements. |
H. | All Products shall at the time of delivery, (i) conform to a Type Certificate issued by FAA and EASA, (ii) conform to the applicable regulations issued by the FAA prior to delivery of Product to Customer. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ARTICLE 5 - PAYMENT FOR PRODUCTS
Customer shall pay CFM with respect to Products purchased hereunder as set forth in the attached Exhibit C.
ARTICLE 6 - TAXES AND DUTIES
Unless otherwise specified in this Agreement, [*****] shall be responsible for and pay directly all corporate and individual taxes measured by net income or profit imposed by any governmental authority on [*****] its employees or subcontractors in any way connected with this Agreement ([*****] taxes). [*****] shall be responsible for and pay directly when due and payable all taxes, duties, fees, or other charges of any nature (including, but not limited to, ad valorem, consumption, excise, franchise, gross receipts, import, license, property, sales, stamp, storage, transfer, turnover, use, or value-added taxes, and any and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto), other than [*****] taxes, imposed by any governmental authority on [*****] or its employees or subcontractors in any way connected with this Agreement ([*****] taxes).
All payments due and payable to [*****] by [*****] under this Agreement shall be made without deduction or withholding for [*****] taxes, except that if [*****] shall be required by law to deduct or withhold any [*****] taxes from or in respect of any amount payable by it to [*****] hereunder, the amount payable by [*****] shall be increased by such amount as may be necessary so that after making all required deductions or withholdings (including deductions or withholdings with respect to any additional amounts payable pursuant to this sentence), [*****] receives the same amount that it would have received if no such deduction or withholding had been made. [*****] shall cooperate and use reasonable efforts to lawfully mitigate and/or eliminate the imposition of any taxes on [*****]. [*****] shall provide to [*****] on a timely basis, accurate official receipts for deducted or withheld taxes.
If a claim is made against CFM for any Customer taxes, CFM shall not pay except under protest, and shall promptly notify Customer of such claim. If such a payment is made, at Customers request, CFM shall use all reasonable efforts to obtain a refund thereof and shall keep Customer reasonably apprised of the status of such efforts. If all or any part of any such Customer taxes be refunded, CFM shall repay to Customer such part thereof as Customer shall have paid. Customer shall pay to CFM, upon demand, all expenses (including penalties and interest) incurred by CFM in protesting payment and in endeavoring to obtain such refund. If CFM is nevertheless required to pay Customer taxes, Customer shall, promptly upon presentation of CFMs invoice for the Customer taxes, pay to CFM, or furnish to CFM evidence of exemption therefrom, any Customer taxes legally assessed or levied by any governmental authority against CFM in connection with this Agreement.
All rights to drawback of customs duties paid by [*****] to the customs authorities of the country of manufacture of any products shall belong to [*****]. [*****] agrees to cooperate with [*****] to obtain a drawback.
ARTICLE 7 - WARRANTY AND PRODUCT SUPPORT PLAN
Applicable warranties are set forth in Exhibit A or in the applicable Letter Agreements to this Agreement relating to all new Engines or Parts, including Expendable Parts, either purchased by Customer directly from CFM or installed on Customers Aircraft as original equipment. Product support activities are set forth in Exhibit B or in the applicable Letter Agreements to this Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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To the extent Customer has leased an Aircraft or acquired a used Aircraft, Customer shall acquire the Engine Warranties rights to Engines installed on such Aircraft leased/acquired by Customer only through [*****]. Engine Warranties rights so acquired by Customer shall be limited to [*****]. Upon Customers acceptance of [*****], Customer further hereby agrees that, with respect to such [*****] warranties and the Products warranted thereby, it shall, in any event, be bound by and comply with all of the terms and conditions, including the limitations, set forth in this Agreement.
ARTICLE 8 - EXCUSABLE DELAY
CFM shall not be liable or in breach of its obligations under this Agreement to the extent performance of such obligations is delayed or prevented, directly or indirectly, by causes beyond its reasonable control, and provided CFM uses commercially reasonable efforts to mitigate the delay or prevention , including acts of God, fire, terrorism, war (declared or undeclared), severe weather conditions, earthquakes, epidemics, material shortages, insurrection, acts or omissions of Customer or Customers suppliers or agents impacting CFMs ability to perform, any act or omission by any governmental authority, strikes, labor disputes, acts or threats of vandalism or terrorism (including disruption of technology resources), delay in transportation, or vendors failure to perform for reasons that are attributable only to events outlined above (each an Excusable Delay). After CFM has exercised due diligence and commercial and industrial reasonable efforts to mitigate the Excusable Delay, the delivery or performance date shall be extended for a period equal to the time lost by reason of delay, including time to overcome the effect of the delay. CFM shall use reasonable efforts to continue performance whenever such causes are removed. If CFM is delayed by any acts or omissions of Customer or Customers other contractors or suppliers, CFM shall be entitled to an equitable adjustment in price and time for performance. In the event an Excusable Delay continues for a period of [*****] or more beyond the scheduled delivery or performance date, Customer or CFM may, upon [*****] written notice to the other, cancel the part of this Agreement so delayed, CFM shall return to Customer all payments relative to the canceled part of this Agreement, and Customer shall pay CFM its reasonable cancellation charges in the event Customer elects to cancel the affected part of this Agreement or if the delay is due to Customer faults or negligence.
ARTICLE 9 PATENTS
A. | CFM shall handle all claims and defend any suit or proceeding brought against Customer insofar as based on a claim that any Engine and/or Product furnished under this Agreement, without any alteration or further combination, constitutes an infringement of any patent of the United States or France, or of any patent of any other country that is signatory to Article 27 of the Convention on International Civil Aviation signed by the United States and France at Chicago on December 7, 1944, in which Customer is authorized to operate or in which another Customer pursuant to lawful interchange, lease or similar arrangement, operates aircraft of Customer. |
B. | CFMs liability hereunder is expressly conditioned upon Customer promptly notifying CFM in writing and giving CFM authority, information and assistance (at [*****] expense) for the handling, defense or settlement of any claim, suit or proceeding. In case such Engine and/or Product is held in such suit or proceeding to constitute infringement and the use of said Engine and/or Product is enjoined, CFM shall, at [*****] expense and at [*****] option, either (1) procure for Customer the right to continue using such Engine and/or Product; (2) replace same with satisfactory and non-infringing Engine and/or Product; or |
(3) modify same so it becomes satisfactory and non-infringing Engine and/or Product. CFM shall not be
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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responsible to Customer or to any third party, for incidental or consequential damage, including, but not limited to, costs, expenses, liabilities or loss of profits resulting from loss of use.
C. | The remedies described in Paragraphs (A) and (B) above do not apply to any Engine and/or Product (1) not purchased by Customer from CFM (except for Engine and/or Product installed as Original Equipment on aircraft owned, leased or operated by Customer); (2) that was changed, modified, or otherwise altered, or not used for its intended purpose; or (3) that was manufactured by CFM to Customers unique specifications or directions. In such cases, and provided (i) Engine and/or Product would be non-infringing but for Customers changes, modifications or alterations, and (ii) the alleged patent infringement is entirely attributable to Customer s changes, modifications or alterations of Engine or Product, CFM assumes no liability whatsoever for patent or copyright infringement and Customer shall indemnify, defend and hold CFM harmless from and against any claim or liability, including costs and expense in defending any such claim or liability in respect thereto. If a suit is brought against CFM, Customers liability hereunder is expressly conditioned upon CFM promptly notifying Customer in writing and giving Customer authority, information and assistance (at Customers expense) for the handling, defense or settlement of any claim, suit or proceeding. Customer shall not be responsible to CFM or to any third party, for incidental or consequential damage, including, but not limited to, costs, expenses, liabilities or loss of profits resulting from loss of use. |
THE FOREGOING SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER AND THE SOLE LIABILITY OF CFM FOR PATENT OR COPYRIGHT INFRINGEMENT BY ANY MATERIAL OR PROCESS AND IS SUBJECT TO THE LIMITATION OF LIABILITY SET FORTH IN ARTICLE 12 LIMITATION OF LIABILITY THE PATENT WARRANTY OBLIGATIONS RECITED ABOVE ARE IN LIEU OF ALL OTHER PATENT WARRANTIES WHATSOEVER, WHETHER ORAL, WRITTEN, EXPRESSED, IMPLIED OR STATUTORY (INCLUDING ANY WARRANTY OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE).
ARTICLE 10 - DATA
A. | All CFM provided and/or generated Data is proprietary to and shall remain the property of CFM, GE or SNECMA, as the case may be. All Data is provided to or disclosed to Customer in confidence, and subject to applicable airworthiness regulations, and shall neither (1) be used by Customer or be furnished by Customer to any other person, firm or corporation for the design or manufacture or repair of any products, articles, compositions of matter, or processes, or be used to train third parties nor (2) be permitted out of Customers possession, or divulged to any other person, firm or corporation, nor (3) be used in the creation, manufacture, development, or derivation of any repairs, modifications, spare parts, designs or configuration changes, or to obtain Airworthiness Authority or any other government or regulatory approval of any of the foregoing, nor (4) give Customer a license under any patents or rights owned or controlled by CFM, GE or SNECMA, as the case may be. Data shall not be used for the maintenance, repair, or assessment of continued airworthiness of any products not supplied or covered under this Agreement. If CFMs written consent is given for reproduction in whole or in part, any existing notice or legend shall appear in any such reproduction. Nothing in this Agreement shall preclude Customer from using such Data for the modification, overhaul, or maintenance work performed by Customer on CFM Products purchased by Customer. |
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B. | Customer shall establish, maintain and follow a CFM approved Data control plan (Data Control Plan) for ensuring that CFM proprietary technical Data is used solely for purposes authorized by this Agreement. CFM designated third parties and CFM technical support persons shall have the right to inspect and audit during company business hours which will not unreasonably disrupt Customers business. Customers Data Control Plan as well as the right to audit Customers facilities for compliance with the Data Control Plan. CFM shall have the right to reject or require correction of any work or procedures or facilities, which do not comply with the Data Control Plan. All living, salary and travel expenses of CFMs personnel for visits under this Article shall be borne by [*****]. |
C. | CFM warrants that it either owns or will secure the right for Customer to use, as set forth in this Paragraph, software delivered as part of an Engine by CFM to Customer under this Agreement. CFM agrees to provide to Customer, as part of the delivered Engines, a copy of all software, in machine readable (object code) format, necessary solely for the operation of Engines provided under this Agreement. CFM will provide to Customer and Customer agrees to accept and execute all necessary license agreements, if any, that are required to memorialize such rights to use such software. Customer agrees that it shall have no rights to sublicense, decompile or modify any software provided by CFM without the prior express written consent of the owner of such software. Customer shall be solely responsible for negotiating any licenses necessary to secure for Customer any additional rights in any software. |
D. | To the extent Airline is not restricted by contract or regulation, Airline shall provide CFM with access to [*****] or CEOD) on a [*****] basis. CFM agrees to protect CEOD from unauthorized use or unauthorized or accidental disclosure by the exercise of the same degree of care as it employs to protect its own information of a like nature. Subject to the foregoing, any CEOD may be used by CFM, its parent companies and affiliates for internal purposes including: [*****]. |
[*****]. For the avoidance of doubt, this is any calculations or manipulations performed on the data extracted from Customer systems ([*****], or other similar device).
E. | The existence and the content of the Agreement are confidential shall not be disclosed by Customer or CFM to any third person, firm or corporation, without the prior written consent of the other Parties, which consent shall not be unreasonably withheld; except (i) that Customers consent shall not be required for disclosure by CFM of this Agreement and related data given by Customer to CFM, to an Engine program participant, joint venture participant, engineering service provider or consultant to CFM so as to enable CFM to perform its obligations under this Agreement or to build the Engine or to provide informational data; (ii) to the extent required by Government agencies, by law, or to enforce this Agreement; and (iii) to the extent necessary for disclosure to the Parties respective insurers, accountants or other professional advisors who must likewise agree to be bound by confidentiality obligations at least as strict as ones contained in the present Article. In the event (i) or (iii) occur, suitable restrictive legends limiting further disclosure shall be applied. In the event the Agreement, or other CFM Data is required to be disclosed or filed by government agencies by law, or by court order, Customer shall notify CFM at least [*****] in advance of such disclosure or filing, shall cooperate fully with CFM in seeking confidential treatment of sensitive terms of the Agreement or such Data, and shall restrict such disclosure to the strictly necessary. |
F. | Except otherwise agreed between the Parties, nothing contained in this Agreement will convey to Customer the right to use CFM trademarks. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ARTICLE 11 - TERMINATION FOR INSOLVENCY
A. | Upon the commencement of any bankruptcy or reorganization proceeding by or against either Party hereto (the Defaulting Party), the other Party hereto may, upon written notice to the Defaulting Party, cease to perform any and all of its obligations under this Agreement and the purchase orders hereunder (including, without limitation, continuing work in progress and making deliveries or progress payments or down payments), unless the Defaulting Party shall provide adequate assurance, in the opinion of the other Party hereto, that the Defaulting Party will continue to perform all of its obligations under this Agreement and the purchase orders hereunder in accordance with the terms hereof, and will promptly compensate the other Party hereto for any actual pecuniary loss resulting from the Defaulting Party being unable to perform in full its obligations hereunder and under the purchase orders. If the Defaulting Party or the trustee thereof shall fail to provide prompt adequate assurance, upon notice to the Defaulting Party, this Agreement and all purchase orders hereunder may be terminated. |
B. | Either Party at its option may terminate this Agreement or any purchase order hereunder with respect to any or all of the Products to be furnished hereunder which are undelivered or not furnished on the effective date of such termination by giving the other Party written notice, as hereinafter provided, at any time after a receiver of the others assets is appointed on account of insolvency, or the other makes a general assignment for the benefit of its creditors and such appointment of a receiver shall remain in force un-dismissed, un-vacated or un-stayed for a period of [*****] thereafter. Such notice of termination shall be given [*****] prior to the effective date of termination, except that, in the case of a voluntary general assignment for the benefit of creditors, such notice [*****] the effective date of termination. |
ARTICLE 12 - LIMITATION OF LIABILITY
The liability of CFM to Customer arising out of, connected with, or resulting from the manufacture, design, sale, possession, use or handling of any Product and/or Engines installed on Customers owned or leased aircraft as original equipment and engines obtained, acquired, leased or operated before or after the execution of the Agreement, and/or furnishing of services, whether in contract, tort (including, without limitation, negligence, but excluding willful misconduct or gross negligence) or otherwise, shall be as set forth in this Agreement or in Exhibit A or B or in the applicable Letter Agreements to the Agreement and [*****]. The foregoing shall constitute the sole remedy of Customer and the sole liability of CFM.
In no event shall CFM be liable for incidental, punitive, special, indirect or consequential damages, including but not limited to, damage to, or loss of use, revenue or profit with respect to any aircraft, engine, or part thereof.
THE LIABILITIES, WARRANTIES AND GUARANTEES SET FORTH IN THIS AGREEMENT OR IN EXHIBIT A OR B AND ANY APPLICABLE LETTER AGREEMENTS ARE EXCLUSIVE AND IN LIEU OF ALL OTHER LIABILITIES, WARRANTIES AND GUARANTEES WHETHER WRITTEN, STATUTORY, ORAL, OR IMPLIED (INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE).
For the purpose of this Article, the term CFM shall be deemed to include CFM, GE, SNECMA, and CFMs subsidiaries and/or affiliates, assigns, subcontractors, suppliers, and the respective directors, officers, employees, and agents of each.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ARTICLE 13 - GOVERNMENT AUTHORIZATION, EXPORT SHIPMENT
A. | Customer shall comply with all applicable laws and regulations, including (but not limited to) export laws and regulations of the United States (U.S.) and the European Union (E.U.). Customer will not, without the appropriate governmental authority, in any form export or re-export, sell or resell, ship or reship, or divert, through direct or indirect means, any item or technical data or direct or indirect products sold or otherwise furnished to any person within any territory for which the relevant government, or any agency thereof, at the time of such action requires an export license or other governmental approval. |
B. | Customer understands that certain items or technical data are subject to export controls laws and regulations (including, but not limited to, U.S. and E.U.) and agrees to not supply the Products, installed Engines and/or any parts or components or technical data thereof (a) for any end-use or end-user that is prohibited under the applicable export controls laws and regulations, nor (b) to any party that is designated by the U.S. government as a Specially Designated National or Blocked Person (SDN), to any party owned or controlled by an SDN, or to any other party subject to restrictions under US trade sanctions administered by the U.S. Office of Foreign Assets Control. Notwithstanding the above, Products and technologies and Data supplied under this Agreement will not be used for military purposes or for proliferation of nuclear, biological, and/or chemical weaponry. |
C. | Customer shall be responsible for obtaining any required authorization such as export license, import license, exchange permit or any other required governmental authorization and shall be responsible for complying with all U.S., E.U., and other foreign government licensing, marking and reporting requirements. CFM shall not be liable if any authorization is delayed, denied, revoked, restricted or not renewed and Customer shall not be relieved of its obligation to pay CFM. |
D. | Customer undertakes to implement all necessary security measures to prevent the transfer, by any means whatsoever, of information provided by the CFM and identified as being subject to applicable laws and regulations on export control to any person not authorized to access such information, by dispensation or by an export license granted by the competent government authorities. |
E. | Notwithstanding any other provision, the Parties agree that any violation of the present article shall constitute a material breach of this Agreement that would entitle CFM to immediately suspend or terminate the Agreement (and the related purchase order) without any indemnity and/or liability whatsoever. |
F. | Moreover, for the avoidance of doubt, if any delivery under this Agreement is intended to be exported out of the United States, the Customer agrees that the relevant export(s) shall be treated as a routed transaction pursuant to 15 CFR 748.3(b) and |
15 CFR 30.3(e).
(i) | Export License Determination. Customer agrees that all provisions of the US EAR, including the end-use and end-user controls found in part 744 of the EAR, and the General Prohibitions found in part 736 of the EAR, apply to this routed export transaction. The Customer (or Customers designated agent) shall be the exporter and must determine licensing authority (License, License Exception, or NLR), and obtain the appropriate license or other authorization. Customer shall be responsible for obtaining any required licenses or any other required governmental authorization and shall be responsible for complying with all US and foreign government licensing requirements. Customer shall restrict disclosure of all information and Data furnished in connection with such authorization and shall ship the subject matter of the authorization to only those destinations that are authorized by the US Government. |
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(ii) | Export Reporting. Pursuant to 15 CFR 30.3(e), Customer hereby authorizes CFM, upon request of CFM, (or CFMs designated agent) to file all required Electronic Export Information (EEI) reports via the U.S. Automated Export System (i.e. AES records) prior to export from the US. CFM (or CFMs designated agent) shall retain documentation to support the EEI filed and provide documentation to Customer upon request. |
All rights to drawback on customs duties paid by CFM with respect to Products and installed Engines (and/or material or components thereof), belong to and shall remain in CFM. If Customer arranges for export shipment, Customer agrees to furnish without charge evidence of exportation or other evidence of tax or duty exemption acceptable to the taxing or customs authorities when requested by CFM.
ARTICLE 14 PERSONAL DATA PROTECTION
A. | Personal Data is any information relating to an identified or identifiable natural person or to any legal entity if such legal entity is subject to data protection legislation in their country of incorporation (Data Subject). |
B. | Customer and CFM each agree that any Personal Data obtained from the other Party will be deemed Data of the other Party as defined in this Agreement whether or not the Personal Data is publicly available, and such Personal Data shall not be used for any other purpose than the performance of the Agreement. However, subject to the preceding, Customer authorizes CFM to share such Personal Data with its affiliates and parent companies. |
C. | Customer and CFM each represent that in providing Personal Data to one another they will comply with all applicable laws and regulations, including but not limited to providing notices to or obtaining consents from the Data Subjects when required. |
D. | Steps shall be taken to implement and maintain physical, technical and organizational measures to ensure the security and confidentiality of Personal Data in order to prevent accidental, unauthorized or unlawful access, use, modification, disclosure, loss or destruction of Personal Data. The security measures taken shall be in compliance with applicable data protection laws and shall be adapted to the risks represented by the processing and the nature of the personal data to be collected and/or stored. |
ARTICLE 15 - NOTICES
Any notices under this Agreement shall become effective upon receipt and shall be in writing and be delivered or sent by mail, courier service, personal service or fax to the respective Parties at the following addresses, which may be changed by written notice:
Azul Linhas Aéreas Brasileiras S.A. Avenida Marcos Penteado de Ulhôa Rodrigues, 939 Edif. Castello Branco Office Park - Torre Jatobá - 9° andar CEP 06460-040 - Alphaville Industrial Barueri SP Brazil |
CFM International, Inc. One Neumann Way, M.D. Cincinnati, Ohio 45215-1988 USA |
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Attn: | Contracts Manager | Attn: | Customer Support Manager | |||
Facsimile Number: | Facsimile Number: | |||||
Telephone Number: | Telephone Number: |
Notice sent by mail, postage prepaid, shall be deemed received within seven (7) days after deposit.
ARTICLE 16 - MISCELLANEOUS
A. | Assignment of Agreement. This Agreement, any related purchase order or any rights or obligations hereunder may not be assigned without the prior written consent of the other Party, except that Customers consent will not be required for an assignment by CFM to one of CFMs affiliates, whose obligations are fully and unconditionally guaranteed by CFM. In the event of any such substitution, Customer will be so advised in writing. Any assignment in contradiction of this clause will be considered null and void. Notwithstanding, CFM may assign any of its accounts receivable under this Agreement to any party without Customers consent. |
B. | Exclusivity of Agreement. Except as otherwise expressly provided to the contrary, the rights herein granted and this Agreement are for the benefit of the Parties hereto and are not for the benefit of any third person, firm or corporation, except as expressly provided herein with respect to GE and SNECMA, and nothing herein contained shall be construed to create any rights in any third parties under, as the result of, or in connection with this Agreement. |
C. | Governing Law and Waiver of Immunity. The Agreement will be interpreted and applied in accordance with the substantive laws of the State of New York, U.S.A. without giving effect to its choice of law or conflict of law provisions, rules or procedures (except to the extent that the validity, perfection or creation of any lien or security interest hereunder and the exercise of rights or remedies with respect of such lien or security for particular items of equipment are governed by the laws of jurisdiction other than New York) and excluding the UN Convention on Contracts for the International Sale of Goods. To the extent that Customer or any of its property is or becomes entitled at any time to any immunity on the grounds of sovereignty or otherwise from any legal action, suit or proceeding, from set-off or counterclaim, from the jurisdiction of any competent court, from service of process, from attachment prior to judgment, from attachment in aid of execution, or from execution prior to judgment, or other legal process in any jurisdiction, Customer for itself and its property does hereby regularly, irrevocably and unconditionally waives the application of such immunity and particularly, the U.S. Foreign Sovereign Immunities Act, 28 U.S.C. 1602, et. seq., and agrees not to plead or claim, any such immunity with respect to its obligations, liabilities or any other matter under or arising out of or in connection with this Agreement or the subject matter hereof. Such agreement shall be irrevocable and not subject to withdrawal in any and all jurisdictions. |
D. | Entire Agreement; Modification. This Agreement contains the entire and only agreement between the Parties, and it supersedes all pre-existing agreements between such Parties, respecting the subject matter hereof; and any representation, promise or condition in connection therewith not incorporated herein shall not be binding upon either Party. No modification or termination of this Agreement or any of the provisions herein contained shall be binding upon the Party against whom enforcement of such modification or termination is sought, unless it is made in writing and signed on behalf of CFM and Customer by duly authorized executives. |
E. | Duration of Agreement. This Agreement shall remain in full force and effect until (i) Customer no longer owns at least [*****] Aircraft powered by Engines, or (ii) less than [*****] aircraft powered by such engine type are in commercial service worldwide, or (iii) the occurrence of a material breach of the obligations set |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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forth in this Agreement that remains uncured after a period of [*****] following the receipt by the faulting Party of the termination notice; (iv) this Agreement is terminated in accordance with the terms and conditions of this Agreement, or (iv) mutual consent of the Parties to terminate this Agreement, whichever occurs first. Nothing herein shall affect the rights and obligations and limitations set forth in this Agreement as to Products ordered for delivery and work performed prior to termination of this Agreement. |
F. | Survival Of Certain Clauses. The rights and obligations of the Parties under the following Articles and related Exhibits shall survive the expiration, termination, completion or cancellation of this Agreement: |
Payment for Products
Taxes and Duties
Patents
Data
Limitation of Liability
Governmental Authorization, Export Shipment
Miscellaneous
G. | Language. This Agreement, orders, Data, notices, shipping invoices, correspondence and other writings furnished hereunder shall be in the English language. |
H. | Severability. The invalidity or un-enforceability of any part of this Agreement, or the invalidity of its application to a specific situation or circumstance, shall not affect the validity of the remainder of this Agreement, or its application to other situations or circumstances. In addition, if a part of this Agreement becomes invalid, the Parties will endeavor in good faith to reach agreement on a replacement provision that will reflect, as nearly as possible, the intent of the original provision. |
I. | Waiver. The waiver by any Party of any provision, condition, or requirement of this Agreement, shall not constitute a waiver of any subsequent obligation to comply with such provision, condition, or requirement. |
J. | Dispute Resolution. All disputes arising out of or in connection with the present Agreement shall be fully and finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules. The Emergency Arbitrator Provisions shall not apply. The place and seat of arbitration and hearings shall be New York, USA. The arbitration shall be in English and the opinion shall be rendered in English. The arbitration award shall be final and binding by any Party in any court of competent jurisdiction, and shall waive any claim appeal whatsoever against it. The arbitrators will have no authority to award punitive damages or any other damages not measured by the prevailing Partys actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the Agreement. All statements made or materials produced in connection with this dispute resolution process and arbitration are confidential and will not be disclosed to any third party except as required by law or subpoena. The Parties intend that the dispute resolution process set forth in this Article will be their exclusive remedy for any dispute arising under or relating to this Agreement or its subject matter. Without inconsistency with this Article, either Party may at any time seeks from a court of competent jurisdiction any equitable, interim or provisional relief to avoid irreparable damage. |
K. | Electronic Transactions. |
(i) CFM may grant Customer access to and use of the [*****]. Customer agrees that such access and use shall be governed by the applicable [*****] Terms and Conditions, provided, however, that in the event of a
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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conflict with the provisions of this Agreement, this Agreement shall govern. The access to the [*****] is subject to Customer undertaking to strictly respect the terms and conditions of the Exhibit D. Moreover, Customer acknowledges that the access to the [*****] of its designated users will be subject to the acceptance by each of them of these terms and conditions.
(ii) CFM may permit Customer to [*****]. The Parties agree that such [*****] a) constitute legally valid, binding agreements; b) have the same force and effect as [*****]; and c) are subject to the terms and conditions hereof.
(iii) CFM may permit Customer to access [*****] under the terms and conditions of this Agreement. Customer shall be responsible for contacting its Airworthiness Authority representative or the relevant local airworthiness authority for guidelines on the use of [*****].
(iv) Customer represents and warrants that any employee or representative who [*****] is authorized by Customer to do so and has obtained [*****]. CFM shall be entitled to rely on the validity of [*****] unless notified otherwise in writing by Customer.
L. | Counterparts. This Agreement may be signed by the Parties in separate counterparts, and any single counterpart or set of counterparts, when signed and delivered to the other Parties shall together constitute one and the same document and be an original Agreement for all purposes. |
M. | General Rules of Agreement Interpretation. Article and paragraph headings contained in this Agreement are inserted for convenience of reference only and do not limit, affect or restrict in any way the meaning and the interpretation of this Agreement. Words used in the singular shall have a comparable meaning when used in the plural and vice versa, unless the contrary intention appears. Words such as hereunder, hereof and herein and other words beginning with here refer to the whole of this Agreement, including amendments. References to Articles, Sections, Paragraphs or Exhibits will refer to the specified Article, Section, Paragraph or Exhibit of this Agreement unless otherwise specified. |
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and the year first above written.
AZUL Linhas Aéreas Brasileiras S.A. |
CFM INTERNATIONAL, INC. | |
Signature /s/ Amir Nasruddin |
Signature /s/ J. Tonich | |
Printed Name Amir Nasruddin |
Printed Name J. Tonich | |
Title Attorney in Fact |
Title General Manager Commercial Operations | |
Date January 26, 2016 |
Date February 9th, 2016 |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT A
EXHIBIT A: ENGINE WARRANTY PLAN
SECTION I - WARRANTIES
A. New Engine Warranty
1. CFM warrants each new Engine and Module against Failure for the initial [*****] Engine Flight Hours (EFH) as follows:
a. Parts Credit Allowance will be granted for any Failed Parts.
b. Labor Allowance for [*****] of any new Engine part will be granted for [*****].
c. Such Parts Credit Allowance and Labor Allowance will be: [*****]
2. As an alternative to the above allowances, CFM shall upon request of Customer:
a. Arrange to have Failed Engines and Modules [*****].
B. New Parts Warranty
In addition to the warranty granted for new Engines and Modules, CFM warrants Parts as follows:
1. [*****] Parts Credit Allowance or Labor Allowance for repair labor for Failed Parts.
2. CFM will grant [*****] Parts Credit Allowance for Scrapped Parts [*****] at the applicable hours designated in the applicable Engine Parts Table 1 set forth in Attachment I to this Exhibit A2.
3. CFM provides a warranty on CFM Controls and Accessories set forth in the applicable Table 2 set forth in Attachment II to Exhibit A2. CFM will grant [*****] Parts Credit Allowance for repair or replacement cost [*****].
C. Ultimate Life Warranty
1. CFM warrants Ultimate Life limits on the following Critical Parts:
| [*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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| [*****] |
| [*****] |
| [*****] |
| [*****] |
| [*****] |
| [*****] |
2. CFM will grant [*****] Parts Credit Allowance [*****] Engine Flight Cycles (EFC), [*****]. Credit will be granted only when [*****] imposed Ultimate Life Limitation of [*****]. Credit will not be granted under this Ultimate Life Warranty for [*****].
D. Campaign Change Warranty
1. A campaign change will be declared by CFM when a new Part design introduction, Part modification, Part Inspection, or premature replacement of a Part, Engine or Module is required by a time compliance CFM Service Bulletin implementing or preventing the issuance of an Airworthiness Directive. CFM will grant the following Parts Credit Allowances:
[*****][*****]
[*****][*****]
2. Labor Allowance - CFM will grant [*****] Labor Allowance for [*****] of CFM-supplied Engines, Modules or Parts therefor when such action is required to comply with a mandatory time compliance CFM Service Bulletin implementing or preventing the issuance of an Airworthiness Directive. A Labor Allowance will be granted by CFM for other CFM issued Service Bulletins if so specified in such Service Bulletins.
3. Life controlled rotating Parts which are set forth in the Ultimate Life Warranty and which are retired by Ultimate Life limits including Airworthiness Directive, are [*****] Campaign Change Warranty.
E. Warranty Pass-On
If requested by Customer and consented to by CFM in writing, which consent will not be unreasonably withheld, CFM will permit assignment of the warranty support for Engines sold or leased by Customer to commercial Customer operators, or to other lessor leasing to commercial Customer operators. Such warranty support will be limited to Engines or Parts which were purchased under this Agreement or to initially installed Engines purchased by Customer from the Aircraft manufacturer and apply to the unexpired portion of the New Engine Warranty, New Parts Warranty, Ultimate Life Warranty, and Campaign Change Warranty (collectively, the Engine Warranties), and will require such operator(s) to agree in writing to be bound by and comply with all the terms and conditions, including the limitations, applicable to the Engine Warranties as set forth in this Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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F. Supplier Warranty Back-Up
A. | Supplier Controls and Accessories provide a warranty on their products used on CFM Engines. This warranty applies to controls and accessories per Table 3 set forth in Attachment 3 to Exhibit A sold to CFM for delivery on installed or Spare Engines and controls and accessories sold by the Customer suppliers on a direct purchase basis. In the event the Supplier Controls and Accessories suffer a Failure during the Suppliers warranty period, Customer will submit a claim directly to the Supplier in accordance with the terms and conditions of the Suppliers warranty. |
B. | For Controls and Accessories, in the event a Supplier fails to provide a warranty at least as favorable as the CFM Engine Warranty, or if provided, rejects a proper claim from Customer, CFM will intercede on behalf of Customer to resolve the claim with the supplier. In the event CFM is unable to resolve a proper claim with the supplier, CFM will honor a claim from Customer under the provisions and limitations of the CFM new Engine or new Part warranty. Settlements under Supplier Back-Up Warranty will exclude credits for Resultant Damage to or from controls and accessories procured directly by Customer from suppliers. |
G. Supplier Interface Warranty
Should any CFM control or accessory, for which CFM is responsible, develop a problem due to its environment or interface with other controls and accessories or with the Engine, Module or equipment supplied by the Aircraft manufacturer, CFM will be responsible for initiating corrective action. Whenever reasonably practicable, CFM will also approve and implement the required corrective action. If the supplier disclaims warranty responsibility for Parts requiring replacement, CFM will apply the provisions of its New Parts Warranty to such Part whether it was purchased originally from CFM or directly from the supplier.
THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, STATUTORY, ORAL, OR IMPLIED (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE).
SECTION II - GENERAL CONDITIONS
A. | Customer will maintain adequate operational and maintenance records and make these available for CFM Inspection. |
B. | CFM will deny a claim under any of the Warranty provisions, and the Warranty provisions will not apply if it has been reasonably determined by CFM that such claim resulted from the subject Engine, Module or any Parts thereof: |
| [*****] |
| [*****] |
| [*****] |
| [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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| [*****] |
| [*****] |
| [*****] |
| [*****] |
| [*****] |
C. | The express provisions herein set forth the maximum liability of CFM with respect to claims of any kind under this Exhibit A2, including, without limitation, negligence arising out of the manufacture, sale, servicing, possession, use or handling of the Products or Parts thereof or therefor, and in no case shall CFMs liability to Customer exceed the purchase price (or in the absence of a purchase price, the fair market value) of the installed Engine, Product or service giving rise to Customers claim. In no event shall CFM be liable for incidental, special, punitive or consequential damages. For the purpose of this Section II, the term CFM shall be deemed to include CFM, GE, SNECMA, and CFMs subsidiaries, assigns, subcontractors, suppliers, Product co-producers, and the respective directors, officers, employees, and agents of each. If Customers uses non- CFM Parts or non- CFM published repairs and such parts or repairs cause personal injury, death or property damage to third parties, Customer shall indemnify and hold harmless CFM from all claims and liabilities connected therewith. This indemnification shall survive termination of this Agreement. |
D. | Customer shall advise CFM of any Failure within [*****] after the discovery of such Failure. Any Part for which a Parts Credit Allowance is requested by Customer shall be returned to CFM upon specific request by CFM and must be accompanied by sufficient information to identify the Part and the reason for its return. In such event, upon return to CFM, such Part shall become the property of CFM unless CFM directs otherwise. Transportation expenses shall be borne by [*****]. |
E. | The warranty applicable to a replacement Part provided under the terms of the New Engine Warranty or New Parts Warranty shall be the same as the warranty on the original Part. The unexpired portion of the applicable warranty will apply to Parts repaired under the terms of such warranty. |
F. | Customer will cooperate with CFM in the development of Engine operating practices, repair procedures, and the like with the objective of improving Engine operating costs. |
G. | If compensation becomes available to Customer under more than one warranty or other Engine program consideration, Customer will [*****]. |
H. | Any repair which is performed without the prior authorization of CFM will not be covered by the applicable warranty. |
I. | Transportation to and from repair facilities shall be paid by [*****], unless the warranty claim is not the sole cause of the shipment. |
J. | Except as provided in the Warranty Pass-On provisions in sub-section A, of Section II hereof, the provisions of Exhibit B apply only to the original owner of the Engines, whether such Engines are procured from CFM as a new Spare Engine or supplied by the Aircraft manufacturer installed on a new Aircraft. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ATTACHMENT I to Exhibit A
TABLE 1 - LEAP-1A/WARRANTY PARTS LIST*
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****]
* | Warranty Parts List may change as Engine program evolves |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ATTACHMENT II to Exhibit A
TABLE 2 - LEAP-1A CFM Controls and Accessories*
[*****]
* | Parts list may change as Engine program evolves |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ATTACHMENT III to Exhibit A
TABLE 3 - LEAP-1A Supplier Controls and Accessories*
[*****]
* | Parts list may change as Engine program evolves |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT B
EXHIBIT B: ENGINE PRODUCT SUPPORT PLAN
SECTION I - SPARE PARTS PROVISIONING
A. | Provisioning Data |
In connection with Customers initial provisioning of spare Parts, CFM shall furnish Customer with data in accordance with ATA Specification 2200 using a revision mutually agreed to in writing by CFM and Customer.
B. | Return Of Parts |
Customer shall have the right to return to CFM, at [*****] expense, any new or unused Part which has been shipped in excess of the quantity ordered (except as adjusted per standard CFM unit pack quantity) or which is not the part number ordered or which is in a discrepant condition except for damage in transit.
If Customer orders a part not applicable to Customer Engine configuration, the Parties will work in good faith to rectify the issue.
C. | Parts Buy-Back |
Within the [*****] after delivery of the [*****] aircraft to Customer, CFM will agree (i) to repurchase at the invoiced price, any initially provisioned spare Parts purchased from CFM that CFM recommended that Customer purchase, in the event Customer finds such Parts to be surplus or, subject to conditions below, obsolete to Customers needs; or (ii) to exchange with Customer the equivalent value thereof in Spare Parts credits. Such Parts must be new and unused, in original CFM packaging, and shall meet CFM Inspection requirements. Parts that become surplus or obsolete to Customers needs by reason of Customers decision to upgrade (not implementing a corrective action) or dispose of Products are excluded from this provision. Customer will deliver such Parts [*****], to [*****], and [*****] for the returned Parts.
D. | Parts of Modified Design |
1. | CFM shall have the right to make modifications to design or changes in the spare Parts sold to Customer hereunder. |
2. | CFM will from time to time inform Customer in accordance with the means set forth in ATA Specification 2200, when such spare Parts of modified design become available for shipment hereunder. |
3. | Spare Parts of the modified design will be supplied unless Customer advises CFM in writing of its contrary desire within [*****] of the issuance of the Service Bulletin specifying the change to the modified Parts. In such event, Customer may negotiate for the continued supply of spare Parts of the pre-modified design at a rate of delivery and price to be agreed upon. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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E. | Spare Parts Availability |
1. | CFM will maintain a stock of spare Parts to cover Customers emergency needs. For purposes of this Paragraph, emergency is understood by CFM and Customer to mean the occurrence of any one of the following conditions: |
[*****]
2. | Customer will order spare Parts according to lead-time but should Customers spare Parts requirements arise as a result of an emergency, Customer can draw such spare Parts from CFMs stock. Additional expedite fees may apply if CFM demonstrates clear and continued misuse of inside-of-lead time shipping by Customer. A 24-hour Customer Response Center is available to Customer for this purpose. If an emergency does exist, CFM will use its best efforts to ship required spare Part(s) within the time period set forth below following receipt of an acceptable purchase order from Customer: |
[*****]
3. | Customer shall provide CFM with spare Parts provisioning forecasts, updated at least [*****], specifying projected requirements to cover at least the following [*****] period. Customer agrees to promptly notify CFM in the event the Customer will not achieve such projected requirements. If Customer does not supply such forecast provisioning, then CFM may modify the spare Part lead-time currently defined in the Spare Parts Catalog. |
SECTION II - TECHNICAL PUBLICATIONS AND DATA
If Customer purchases used Aircraft/leases Aircraft, and upon Customers written request, CFM shall provide Customer with a quotation for the electronic technical manuals, including revisions thereof, as applicable for Engine model. Notwithstanding the preceding sentence, CFM agrees to advance [*****] to Azul any technical publications and revisions to the delivery of the [*****] Leased Aircraft covered in the letter agreement).
If Customer purchases new Aircraft equipped with Engines, CFM will furnish to Customer, [*****], technical manuals, including revisions thereof, to Customer in quantities as mutually agreed. Technical manuals shall be furnished by CFM to Customer in mutually agreed upon quantities. All technical manuals provided by CFM shall be in the English language and in accordance with mutually agreed upon provisions of the ATA 2200 Specification.
SECTION III - TECHNICAL TRAINING
A. Introduction
CFM shall make technical training available to Customer, at [*****]. Details on scope, quantity, materials, and planning shall be as mutually agreed.
If Customer has acquired used Aircraft or has leased Aircraft, and upon Customers written request, CFM will provide a quotation for [*****] training.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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B. Scope
If Customer purchases new Aircraft equipped with Engines, the training furnished under this Agreement shall be as follows:
| [*****]. |
| [*****] |
| [*****] |
[*****]
The Customer Support Manager, in conjunction with appropriate CFM Training representatives, will be available to conduct a review session with Customer to schedule required training. To assure training availability, such review shall be conducted [*****] prior to the delivery date of the [*****] Aircraft.
C. Training Location
Unless arranged otherwise with CFM concurrence, training shall be provided by CFM in English at one or more of the [*****].
If an alternate site is desired, CFM will furnish a quotation with following minimum conditions that must be met in order to deliver equivalent training at the alternate site.
1. | [*****] |
2. | [*****] |
3. | [*****] |
D. Customer Responsibility
During [*****] training at any of the [*****], [*****] shall be responsible for [*****] typical expenses such as:
| [*****] |
| [*****] |
| [*****] |
| [*****] |
| [*****] |
Customer will be responsible for [*****] costs of [*****].
SECTION IV - CUSTOMER SUPPORT AND SERVICE
A. | Customer Support Manager |
CFM shall make available to Customer, a [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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B. | Field Support |
CFM shall make available to Customer on an [*****] basis, [*****] CFM will provide the level of representation required to ensure that CFM is able to expeditiously and accurately deliver Data that is required to resolve technical issues.
CFM will also assist [*****]. Throughout the operation of these Engines, the Customer Support Center (CSC) and the Customer Web Center (CWC) will augment support at [*****] to Customer.
C. | Fees for Customer Support Manager & Field Services Representative |
For Customers who purchase new Aircraft, Customer Support and Field Service [*****].
SECTION V - ENGINEERING SUPPORT
A. | CFM shall make Product engineering support available on a [*****] basis to Customer, for typical power plant issues: |
i. | Engine(s) Shop Manual Clarifications via the CSC |
ii. | Technical Inquiry Support via the CSC, |
iii. | Special Engineering Investigation with mutual workscope agreement |
B. | For Customers who purchase new Aircraft, [*****]. |
SECTION VI - PERFORMANCE TREND MONITORING
CFM will also provide the standard diagnostics services set forth in Exhibit E.
SECTION VII - GENERAL CONDITIONS - PRODUCT SUPPORT PLAN
A. | All support provided by CFM above, is provided to Customer exclusively for the line maintenance and aircraft operations (at the exclusion of any maintenance other than line maintenance) by Customer of Customers Products provided that such Products are operated in the original Engine configuration, or in an Engine configuration that has been modified in accordance with CFM Engine shop manual. The support and Data provided herein may not be utilized for any other purpose, or assigned or otherwise transferred to any third party, without the written consent of CFM, which consent may be exercised by CFM in its sole discretion. Technical Data and associated support may be provided to Customer for the maintenance and overhaul of Customers Engines and Products through a separate license agreement. |
B. | Customer will maintain adequate operational and maintenance records and make these available for CFM inspection. |
C. | This Product Support Plan is subject to the provisions the Article titled Limitation of Liability of the Agreement to which this Exhibit B is attached. |
D. | Customer will cooperate with CFM in the development of Engine operating practices, repair procedures, and the like with the objective of improving Engine operating costs. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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E. | Except as provided in the Warranty Pass-On provisions in Paragraph E of Exhibit A of the Agreement to which this Exhibit B is attached, this Product Support Plan applies only to the original purchaser of the Engine except that installed Engines supplied to Customer through the aircraft manufacturer shall be considered as original Customer purchases covered by this Product Support Plan. |
G. | Customer hereby acknowledges that new Engines purchased by Customer or installed in Aircraft purchased by Customer shall be enrolled in CFMs TRUEngine program, [*****]. |
iv. | The TRUEngine designation identifies maintained in accordance with CFM recommendations. New Engines meet the criteria to qualify for TRUEngine designation. |
v. | The TRUEngine designation is granted on an individual engine basis (ESN). The TRUEngine designation remains in effect until the next shop visit. In order to continue engine designation, engine records must be provided to CFM to verify engine content and ensure overhaul practices follow CFM-issued recommendations. Contact your CFM representative for more details |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT C
EXHIBIT C: PAYMENT TERMS
A. | Customer shall make payment in United States Dollars and in immediately available funds. Payment will be effective upon receipt thereof. |
| For Spare Engines, Shipping Stand and Modules: |
| [*****]. |
| [*****]. |
| Solely for administrative purposes (including shipping, export and taxation requirements), Customer shall have the right to place, and CFM shall have the right to require, a purchase order reflecting the Customer commitment to purchase a Spare Engine or Module as contained in the applicable Letter Agreement. For avoidance of doubt, placement of such purchase order shall not affect the payment obligation of Customer specified above, or the shipment obligation of CFM as set forth in the applicable Letter Agreement. |
| For special tools and test equipment, following receipt of invoice from CFM, payment of the selling price shall be made [*****]. |
| For spare Parts including Expendable Parts, following receipt of invoice from CFM, payment shall be made [*****]. |
| For Engine Thrust Upgrade, payment shall be made [*****]. |
B. | All invoicing and payments (including payment details) hereunder shall be transmitted electronically to CFMs bank account as notified by CFM on its invoices. |
C. | If delivery hereunder is delayed by Customer, payment shall be made [*****]. |
D. | Following discussion and Customer notification in writing, CFM may establish different payment terms in the event Customer consistently fails to make payment according to the terms set forth above. CFM may establish different payment terms based upon such matters as the value of the order, delivery requirements, availability of foreign exchange, financial environment, Customer then existing financial situation according to the terms here above set forth. In such event, CFM will establish payment terms to meet these requirements. |
E. | In the event that the Customer has a bona fide dispute regarding any part or amount contained within an invoice, Customer shall within [*****] of receipt of the invoice give written notice to CFM of that portion of the invoice in dispute, with their substantiated reasons, together with any supporting documentation. CFM and Customer shall use their respective best endeavors and allocate sufficient resources to settle any part of an invoice disputed by Customer within [*****] or as soon as possible thereafter. Should the Parties fail to reach resolution of any disputed invoice within such period, the disputed invoice shall be resolved by designating senior managers to resolve the dispute in accordance with Article 16, Paragraph J. On resolution of the dispute, CFM shall credit Customer or Customer shall pay to CFM, as applicable, the disputed portion of the invoice within [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Customer shall be required to pay the undisputed portion of any invoice in accordance with the payment terms set forth above. Provided that Customer complies with these requirements, no late payment charges, as set forth in paragraph F below, shall be levied on the disputed amount, for the time that such amount is disputed by the Parties.
F. | If Customer fails to make any of the foregoing payments when due following receipt of invoice from CFM, Customer will also pay to CFM, without prejudice to any other rights available to CFM under this Agreement, interest on any late payment, calculated from the payment due date to the date of actual remittance. Interest will be computed at [*****], but in no event will the rate of interest be greater than the highest rate then permitted under applicable law. Interest will cover the whole period of delayed payment. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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GENERAL TERMS AGREEMENT NO. CFM-1-4207092154
EXHIBIT D
EXHIBIT D: CONDITIONS OF ACCESS AND USE OF THE CFM CUSTOMER WEB CENTER
In consideration for being given a limited access to the CFM CWC, Customer hereby accepts to comply and respect the following terms and conditions of access and use of the CFM CWC:
1. | The access and use rights of the CWC, hereby provided to the Customer, are limited to the rights granted, by CFM to the Customer, under the Agreement and are exclusively applicable for the CFM configurations. However, at the expiration date of the Agreement, the Customer undertakes not to use the CWC and its Information (hereafter defined) any more. |
2. | The Customer hereby acknowledges an obligation to comply with the restrictions on access, use and transmittal of information, data, patent and software (which includes, but is not limited to, information, data, patent and software which is proprietary to CFM), set forth herein and/or in the Agreement between CFM and the Customer. As used herein, Information includes information, data, inventions and software which reside on the CWC. |
3. | The Customer acknowledges an obligation to comply with all laws and regulations relating to the export of technical data which may apply to the Information on the CWC. The Customer further acknowledges that failure to comply with the laws and regulations applicable to the Information may trigger civil and criminal claims and proceedings. |
4. | The Customer shall designate in writing one of its employees who will become administrator of the access and use of the CWC for the Customer. Once CFM consent obtained, such administrator shall be responsible to manage, administrate and control the access and use rights to the CWC of the Customers users. The Customer remains shall ensure that all information and privacy data provided by its administrator and users shall be correct and complete. |
When a Customers CWC administrator ceases to be an employee of the Customer or ceases to assume the function of CWC administrator for the Customer, the Customer shall immediately inform CFM by writing in order to revoke the rights of such administrator.
In case of any change concerning the users, the administrator shall immediately inform in writing CFM. In particular, the administrator shall immediately inform and request CFM to revoke the access rights for each user who ceases to be employees of the Customer.
CFM reserves the right, at its own discretion, to terminate or suspend at any moment each administrator or users access and/or to restrict at any moment the access conditions of each administrator or user.
The Customer shall ensure that, its administrator and users proceeds with a high level of care, confidentiality and protection.
Furthermore, the Customer hereby agrees and acknowledges that it would remain responsible for its administrator, users and employees, for the CWC access and use.
5. | The Customer acknowledges and accepts that CFM may audit, at any moment the Customers administrator action and the Customer users access. The Customer undertakes to cooperate with CFM during such audits, and to obtain the same from its employees. Moreover, the Customer undertakes that its administrator shall promptly provide the name and position of Customers administrator and users upon CFM first request. |
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6. | The Information of the CWC, whether or not marked as proprietary, to which the Customer and/or its employees will be given access, including third party proprietary information and Information which the Customer may generate, is Information which CFM maintains in confidence and therefore is proprietary to CFM. |
In this regard, it is the Customers obligation to (a) access only to the CWCs files authorized to her in accordance with the Agreement and use the CWC Information only to perform its obligations, (b) not use, publish, or otherwise disclose, either during or subsequent to the Customers authorized access, any Information belonging to CFM, including any Proprietary Information or any Information of others which CFM is obligated to maintain in confidence, (c) upon completion of such assignment, promptly deliver to CFM all computer software and media provided by CFM or obtained from CFMs CWC, (d) refrain from circumventing or attempting to circumvent CWC security or any CFM computer security, (e) not use, publish, or otherwise disclose any information regarding the structure, formal, contents or use of the CWC.
7. | Finally, notwithstanding any other rights and recourses available to CFM, the Customer acknowledges that any failure from itself and/or its employees to comply with any and/or all of its obligations under the present agreement may result in the revocation of any and/or all its access and use rights of the CWC at CFMs convenience. |
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EXHIBIT E
EXHIBIT E: STANDARD DIAGNOSTICS SERVICES
1. | DIAGNOSTICS SERVICE ELEMENTS |
Diagnostics Services. CFM shall provide the following services (hereinafter SD Services) to Customer in support of the Engines with [*****] to the Customer:
1. | Base SD Services Elements. |
a) | [*****] |
b) | [*****] |
c) | [*****] |
d) | [*****] |
2. | CFM will identify an SD Service integration team leader to provide [*****] necessary to assist the Customer in meeting Customer obligations specified in Article 2. |
3. | As a part of the above SD Services, CFM shall review only the data and messages delivered by Customer in accordance with Section 2 needed to perform the SD Services. |
4. | CFM and Customer agree that any information provided to Customer by CFM for use in trending, performance analysis, troubleshooting, and managing operations are advisory only. |
It is a fundamental principle of the SD Services that CFM is not responsible for line or other maintenance actions resulting from such advice. CFM will use commercially reasonable efforts to identify and notify Customer of Engine and Aircraft fault data. It remains the responsibility of Customer to conclusively identify and resolve any Aircraft or Engine faults or adverse trends, and make all maintenance decisions affecting Customer Aircraft.
2. | CUSTOMERS RESPONSIBILITY UNDER THE DIAGNOSTICS PROGRAM |
A) Customer (or Customers operator by delegation of this responsibility) shall:
1. | Provide CFM all information and records requested by CFM that are reasonably necessary for CFM to establish and provide the SD Service (including, but not limited to, avionics specifications, aircraft/engine maintenance history, engine configuration information, etc.). To the extent that such information and records are not owned by Customer, Customer represents and warrants that it has full authorization to disclose such information and records to CFM and that CFM has the right to use such information and records for all of the purposes that they are provided to CFM by Customer, including fulfilling CFMs obligations under this SD Service Agreement. |
2. | Make available to CFM data used in the monitoring and diagnostics of Engines eligible for coverage. Customer will authorize Customers air-to-ground service provider to forward the data directly to the CFM SITA/ARINC address ILNGE7X or PARJBXH. If air-to-ground equipment is not available, CFM will work with the Customer to establish means such that the data is provided with minimal manual intervention. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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3. | Access the SD Service via the CWC. A web browser, an internet service provider and a user id/password (supplied by CFM) is required. Such access shall be subject to the then-current CFM Extranet Terms and Condition as provided on the CFM Extranet site. |
4. | Identify and resolve any aircraft or Spare/installed Engine faults or adverse trends, whether or not such faults or adverse trends were communicated to the Customer by CFM. |
5. | Make all decisions in regard to maintaining aircraft and Engines and carry out any required remediation to such aircraft or Engines. |
6. | It remains the sole responsibility of Customer to conclusively identify and resolve aircraft and Engine faults or adverse trends and make all maintenance decisions affecting Customer aircraft. Notwithstanding any other provision, regarding the SD Services only, the Customer waives all rights of recourse against CFM and agrees to indemnify, defend and hold harmless CFM including contractors, sub-contractors, employees, agents and anyone acting on their behalf (hereinafter referred to collectively as the Indemnitees and individually as the Indemnitee) from and against any and all liabilities, claims, damages, losses (including costs and attorneys fees), and judgments (whether in contract, tort, negligence of any kind, including strict liability, or otherwise) which may be suffered by, accrued against, be charged to, or recoverable from the Indemnitees or any Indemnitee by reason of loss or damage to or loss of use of any property (including intellectual property and proprietary information) of the Customer and/or any third party, and/or by reason of the use and/or provision of the SD Services, except to the extent that such loss, damage, bodily injury or death is due to the gross negligence or willful misconduct of CFM. |
B) | Customer acknowledges that the SD Services performed hereunder may be conducted by CFM affiliates and that there is no prohibition on CFMs export of Customer data for such purposes. |
3. | WARRANTY |
A) | CFM warrants to Customer that technical information and/or data furnished pursuant to the SD Services shall conform, as of the time and date of delivery, to the information provided by Customer and used by CFM. If any technical information and/or data furnished by CFM hereunder does not meet this requirement and Customer so notifies CFM within the time of performance hereunder, CFM shall correct the discrepancy, at its cost, by providing corrected data. The above limited warranty does not extend to data received but not reviewed by CFM. |
B) | It is understood that any information provided to Customer by CFM for use in trending, performance analysis, troubleshooting, and managing operations is advisory only. Information contained in or generated by the SD Service represents an estimate based upon generally available fleet data or variable data furnished by Customer. |
THE FOREGOING SD SERVICES DIAGNOSTICS SERVICE WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESSED, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE).
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4. | ASSIGNMENT |
Customer shall be permitted with CFMs consent (not to be unreasonably withheld) to authorize a third party service provider to have access to CFMs SD Diagnostics Service application on CWC for the sole purpose of managing the use of the diagnostics system with regard to Customers Engines on behalf of Customer, provided that, Customer and the third party service provider execute a Notice of Authorization and Agreement in a form to be provided by CFM upon Customers request, providing (1) written notice to CFM of such authorization, and (2) the third party service providers agreement in writing to accept the terms and conditions of this Agreement as if the third party service provider was the Customer hereunder. System access by a third party service provider pursuant to such authorization shall be limited to the features of entering new flight data, entering engine changes, and creating trend plots of performance parameters. Furthermore, data available for plotting shall be limited to the typical engine health monitoring parameters (exhaust gas temperature, fuel flow, core speed, fan and core vibrations and oil temperature and pressure). In no event shall such third parties have access to other features of the system, including without limitation, real-time viewing, root-cause analysis, customized reporting or alarm configurations. In no event shall any such authorization by Customer and agreement by the third party service provider increase, duplicate or expand CFMs obligations, liability or any available remedies hereunder.
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Exhibit 10.9
CONFIDENTIAL TREATMENT REQUESTED REDACTED COPY Confidential Treatment has been requested for portions of this Exhibit. Confidential portions of this Exhibit are designated by [*****]. A complete version of this Exhibit has
been filed separately with the Securities and Exchange Commission.
A320 NEO
PURCHASE AGREEMENT
BETWEEN
AIRBUS S.A.S.
as Seller
AND
AZUL FINANCE LLC
as Buyer
Date: October 2014
Reference: CT1307022
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CONTENTS
CLAUSES | TITLES | |
0 | DEFINITIONS AND INTERPRETATION | |
1 | SALE AND PURCHASE | |
2 | SPECIFICATION | |
3 | PRICES | |
4 | PRICE REVISION | |
5 | PAYMENTS | |
6 | MANUFACTURE PROCEDUREINSPECTION | |
7 | CERTIFICATION | |
8 | TECHNICAL ACCEPTANCE | |
9 | DELIVERY | |
10 | EXCUSABLE DELAY | |
11 | NON-EXCUSABLE DELAY | |
12 | WARRANTIES AND SERVICE LIFE POLICY | |
13 | PATENT AND COPYRIGHT INDEMNITY | |
14 | TECHNICAL DATA AND SOFTWARE SERVICES | |
15 | SELLER REPRESENTATIVES SERVICES | |
16 | TRAINING SUPPORT AND SERVICES | |
17 | EQUIPMENT SUPPLIER PRODUCT SUPPORT | |
18 | BUYER FURNISHED EQUIPMENT | |
19 | INDEMNIFICATION AND INSURANCE | |
20 | TERMINATION | |
21 | ASSIGNMENTS AND TRANSFERS | |
22 | MISCELLANEOUS PROVISIONS |
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CONTENTS
EXHIBITS | TITLES | |
Exhibit A | SPECIFICATION | |
Exhibit B | B-1: FORM OF A SPECIFICATION CHANGE NOTICE B-2: FORM OF A MANUFACTURERS SPECIFICATION CHANGE NOTICE | |
Exhibit C | PART 1 AIRFRAME PRICE REVISION FORMULA PART 2 PROPULSION SYSTEMS PRICE REVISION FORMULA | |
Exhibit D | FORM OF CERTIFICATE OF ACCEPTANCE | |
Exhibit E | FORM OF BILL OF SALE | |
Exhibit F | SERVICE LIFE POLICY LIST OF ITEMS | |
Exhibit G | TECHNICAL DATA INDEX | |
Exhibit H | MATERIAL SUPPLY AND SERVICES | |
Exhibit I | LICENSES AND ON LINE SERVICES |
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A320 NEO PURCHASE AGREEMENT
This A320 NEO Purchase Agreement (the Agreement) is made on October 24, 2014
BETWEEN:
AIRBUS S.A.S., a société par actions simplifiée, created and existing under French law having its registered office at 1 Rond-Point Maurice Bellonte, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (the Seller),
and
AZUL FINANCE LLC, a company created and existing under the laws of the State of Delaware, having its registered office in Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, USA (the Buyer);
WHEREAS subject to the terms and conditions of this Agreement, the Seller desires to sell the Aircraft to the Buyer and the Buyer desires to purchase the Aircraft from the Seller,
NOW THEREFORE IT IS AGREED AS FOLLOWS:
0 | DEFINITIONS AND INTERPRETATION |
0.1 | In addition to words and terms elsewhere defined in this Agreement, the initially capitalized words and terms used in this Agreement shall have the meaning set out below. |
Affiliate means with respect to any person or entity, any other person or entity directly or indirectly controlling, controlled by or under common control with such person or entity.
AirbusWorld corresponds to the Sellers customer portal as further defined in Part 2 of Exhibit I.
Aircraft means individually or collectively an Airbus A320 NEO Aircraft or A321 NEO Aircraft delivered or to be delivered under this Agreement, including the Airframe, the Propulsion Systems, and any part, component, furnishing or equipment installed on the Aircraft on Delivery.
Aircraft Training Services means any flight support services including but not limited to any and all training courses, flight training, flight assistance, line training, line assistance and more generally all flights of any kind performed by the Seller, its agents, employees or subcontractors, and maintenance support, maintenance training (including Practical Training), training support of any kind performed on aircraft and provided to the Buyer or Azul Linhas pursuant to this Agreement.
Airframe means the Aircraft excluding the Propulsion Systems.
Airframe Base Price has the meaning set out in Clause 3.1.
Airframe Price Revision Formula is set out in Part 1 of Exhibit C.
Aviation Authority means when used in respect of any jurisdiction the government entity, which under the laws of such jurisdiction has control over civil aviation or the registration, airworthiness or operation of aircraft in such jurisdiction.
Azul Linhas, means Azul Linhas Aéreas Brasileiras S.A., a company created and existing under the laws of Brazil, having its main place of business in Avenida Marcos Penteado Ulhôa Rodrigues, N°939, Edificio Jatobá, Castelo Branco Office Park, Barueri, São-Paulo-SP, CEP 06460-040, Brazil
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CONFIDENTIAL TREATMENT REQUESTED
A320 NEO Aircraft or A320 NEO means an A320-200N type Aircraft delivered or to be delivered under this Agreement.
A320 NEO Standard Specification means the A320-200N standard specification document [*****], a copy of which has been annexed hereto as Exhibit A, with the following design weights:
MTOW [*****]
MLW [*****]
MZFW [*****]
A321 CEO Standard Specification means the A321-200 standard specification document [*****] a copy of which has been annexed hereto as Exhibit A.
A321 NEO Aircraft or A321 NEO means an A321-200 type Aircraft incorporating the New Engine Option and delivered under this Agreement.
A321 NEO Standard Specification has the meaning set out in Clause 2.1.2.2.
Balance of Final Price has the meaning set out in Clause 5.4.1.
Base Price means the sum of the Airframe Base Price and the Propulsion Systems Base Price.
Bill of Sale has the meaning set out in Clause 9.2.2.
Business Day means a day, other than a Saturday or Sunday, on which business of the kind contemplated by this Agreement is carried on in France, in Germany, in Sao Paulo, Brazil and in the Buyers country or, where used in relation to a payment, which is a day on which banks are open for business in France, in Germany, in the Buyers country, in Sao Paulo, Brazil and in New York, as appropriate.
Buyer Furnished Equipment or BFE has the meaning set out in Clause 18.1.1.
Certificate of Acceptance has the meaning set out in Clause 8.3.
Contractual Definition Freeze or CDF has the meaning set out in Clause 2.4.2.
Customization Milestones Chart has the meaning set out in Clause 2.4.1.
Declaration of Design and Performance or DDP means the documentation provided by an equipment manufacturer guaranteeing that the corresponding equipment meets the requirements of the Specification, the interface documentation as well as all the relevant certification requirements.
Delivery means the transfer of title to the Aircraft from the Seller to the Buyer in accordance with Clause 9.
Delivery Date means the date on which Delivery shall occur.
Delivery Location means the facilities of the Seller at the location of final assembly of the Aircraft.
Excusable Delay has the meaning set out in Clause 10.1.
Export Airworthiness Certificate and/or Statement of Conformity means an export certificate of airworthiness and/or a statement of conformity issued by the Aviation Authority of the Delivery Location, as applicable.
Final Price has the meaning set out in Clause 3.3
General Terms and Conditions or GTC means the General Terms and Conditions of Access to and Use of AirbusWorld set out in Part 2 to Exhibit I.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
Goods and Services means any goods and services that may be purchased by the Buyer from the Seller, excluding Aircraft.
Ground Training Services means all training courses performed in classrooms (classical or Airbus CBT courses), full flight simulator sessions, fixed base simulator sessions, field trips and any other services provided to the Buyer (or Azul Linhas) on the ground pursuant to this Agreement and which are not Aircraft Training Services.
[*****]
Guarantee [*****]
Irrevocable SCNs means the list of SCNs, which are irrevocably part of the A321 NEO Specification, as expressly set out in Appendix 2 and 3 to Exhibit A
Manufacture Facilities means the various manufacture facilities of the Seller, its Affiliates or any sub-contractor, where the Airframe or its parts are manufactured or assembled.
Manufacturer Specification Change Notice or MSCN has the meaning set out in Clause 2.2.2.1.
Material has the meaning set out in Clause 1.2 of Exhibit H.
NEO Aircraft means individually or collectively an A320 NEO Aircraft or an A321 NEO Aircraft
NEO Standard Specification means individually or collectively the A320 NEO Standard Specification or the A321 NEO Standard Specification, as applicable.
New Engine Option has the meaning set out in Clause 2.1.2 hereof.
Non-Excusable Delay has the meaning set out in Clause 11.1.
Other Agreement means any agreement (including, without limitation, any guarantee) relating to the sale, purchase, financing or leasing of aircraft between, at the relevant time, (a) the Seller or any of its Affiliates and (b) the Buyer or any of its Affiliates.
Predelivery Payment means the payment(s) determined in accordance with Clause 5.3.
Propulsion Systems has the meaning set out in Clause 2.3.
Propulsion Systems Base Price means the price of a set of Propulsion Systems as set out in Clause 3.2.
Propulsion Systems Reference Price means the reference price of a set of Propulsion Systems as set out in Part 2 of Exhibit C.
Propulsion Systems Manufacturer means the manufacturer of the Propulsion Systems as set out in Clause 2.3.
Propulsion Systems Price Revision Formula is set out in Part 2 of Exhibit C.
Ready for Delivery means the time when the Technical Acceptance Process has been completed in accordance with Clause 8 and all technical conditions required for the issuance of the Export Airworthiness Certificate and/or the Statement of Conformity (as applicable) have been satisfied.
Scheduled Delivery Month has the meaning set out in Clause 9.1.
Seller Furnished Equipment or SFE corresponds to items of equipment that are identified in the Specification as being furnished by the Seller.
Seller Representatives means the representatives of the Seller referred to in Clause 15.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Seller Representatives Services means the services provided by the Seller to the Buyer and from the Buyer to the Seller pursuant to Clause 15.
Seller Service Life Policy has the meaning set out in Clause 12.2.
Sharklets means [*****].
Spare Parts means the items of equipment and material that may be provided pursuant to Exhibit H.
Specification Change Notice or SCN means an agreement in writing between the parties to amend the Specification pursuant to Clause 2.
Specification means either (a) the applicable Standard Specification if no SCNs are applicable or (b) if SCNs are issued, the applicable Standard Specification as amended by all applicable SCNs.
Standard Specification means, individually or collectively, as the context may require, the A321 CEO Standard Specification(s) or the NEO Standard Specification(s).
Supplier has the meaning set out in Clause 12.3.1.1.
Supplier Part has the meaning set out in Clause 12.3.1.2.
Supplier Product Support Agreement has the meaning set out in Clause 12.3.1.3.
SPSA Application means the application on AirbusWorld, which provides the Buyer with access to the Supplier Product Support Agreements.
Technical Acceptance Process has the meaning set out in Clause 8.1.1.
Technical Data has the meaning set out in Clause 14.1.
Total Loss has the meaning set out in Clause 10.4.
Type Certificate has the meaning set out in Clause 7.1.
Warranted Part has the meaning set out in Clause 12.1.1.
0.2 | Clause headings and the Index are inserted for convenience of reference only and shall be ignored in the interpretation of this Agreement. |
0.3 | In this Agreement unless the context otherwise requires: |
(a) | references to Clauses, Appendices, Schedules and Exhibits are to be construed as references to the Clauses of, and Appendices, and Exhibits to this Agreement and references to this Agreement include its Schedules, Exhibits and Appendices; |
(b) | words importing the plural shall include the singular and vice versa; and |
(c) | references to a person shall be construed as including, without limitation, references to an individual, firm, company, corporation, unincorporated body of persons and any state or agency of a state. |
1 | SALE AND PURCHASE |
The Seller shall sell and deliver and the Buyer shall buy and take delivery of [*****] NEO Aircraft [*****] on the applicable Delivery Date at the Delivery Location upon the terms and conditions contained in this Agreement and Azul Linhas shall be the operator of the Aircraft at the time of Delivery.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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2 | SPECIFICATION |
2.1 | Aircraft Specification |
2.1.1 | A320 NEO Aircraft Specification |
The A320 NEO Aircraft shall be manufactured in accordance with the A320 NEO Standard Specification, as may already have been modified or varied at the date of this Agreement by the Specification Change Notices listed in Appendix 1 to Exhibit A as amended from time to time in accordance with the terms of this Clause 2.
2.1.2 | A321 NEO Aircraft Specification |
2.1.2.1 | New Engine Option |
[*****]
2.1.2.2 | [*****] |
2.1.2.3 | A321 NEO Weights |
The New Engine Option shall modify the design weights of the CEO Standard Specification as follows:
A321-200 | A321-200 (long haul configuration) |
|||||||
MTOW |
[*****] | [*****] | ||||||
MLW |
[*****] | [*****] | ||||||
MZFW |
[*****] | [*****] |
The estimated basic Manufacturers Weight Empty (MWE) of the [*****] shall be modified as follows:
Propulsion Systems as per Clause 2.3 |
A321-200 | |||
CFM |
[*****] |
It is agreed and understood that the above weights may be updated in the A321 NEO Standard Specification.
2.2 | Specification Amendment |
The parties understand and agree that the Specification may be further amended following signature of this Agreement in accordance with the terms of this Clause 2.
2.2.1 | Specification Change Notice |
The Specification may be amended by written agreement between the parties in a Specification Change Notice (SCN). Each SCN shall be substantially in the form set out in Exhibit B1 and shall set out the SCNs Aircraft embodiment rank and shall also set forth, in detail, the particular change to be made to the Specification [*****]. An SCN may result in an adjustment of the Aircraft Base Price, which adjustment, if any, shall be specified in the SCN.
2.2.2 | Development Changes |
The Specification may also be amended to incorporate changes deemed necessary by the Seller to improve the Aircraft, prevent delay or ensure compliance with this Agreement (Development Changes), as set forth in this Clause 2. Development Changes will be made by an MSCN.
2.2.2.1 | Manufacturer Specification Changes Notices |
2.2.2.1.1 | The Specification may be amended by the Seller through a Manufacturer Specification Change Notice (MSCN), which shall be substantially in the form set out in Exhibit B2 hereto and shall set |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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out the MSCNs Aircraft embodiment rank as well as, in detail, the particular change to be made to the Specification [*****]. |
2.2.2.1.2 | [*****]. |
2.2.2.2 | In the event of the Seller revising the Specification to incorporate Development Changes which have no adverse effect on any of the elements as set forth in 2.2.2.1 above, such revision shall be performed by the Seller without the Buyers consent. In such cases, the Buyer shall have access to the details of such changes through the relevant application in AirbusWorld. |
2.3 | Propulsion Systems |
2.3.1 | The Buyer has selected CFM as Propulsion Systems Manufacturer and accordingly, the Airframe shall be equipped with a set of [*****] CFM LEAP engines referred to as the Propulsion Systems. |
A320-200 NEO |
LEAP-[*****] | |||
A321-200 NEO |
LEAP-[*****] |
[*****]
2.4 | Milestones |
2.4.1 | Customization Milestones Chart |
No later than [*****] following signature of this Agreement, the Seller shall provide the Buyer with a preliminary draft customization milestones chart, setting out how far in advance of the Scheduled Delivery Month of the Aircraft an SCN must be executed in order to integrate into the Specification any items requested by the Buyer from the Sellers catalogues of Specification change options (the Option Catalogues).
The final customization milestone chart (the Customization Milestone Chart), shall be provided to the Buyer no later than [*****] prior to the Scheduled Delivery Month of the first Aircraft.
2.4.2 | Contractual Definition Freeze |
The Customization Milestone Chart shall in particular define the date(s) by which the contractual definition of the Aircraft must be finalized and all SCNs need to have been executed by the Buyer (the Contractual Definition Freeze or CDF) in order to enable their incorporation into the manufacturing of the Aircraft and Delivery of the Aircraft in the Scheduled Delivery Month. Each such date shall be referred to as a CDF Date.
3 | PRICES |
3.1 | Airframe Base Price |
3.1.1 | The Airframe Base Price of an A320 NEO Aircraft is the sum of: |
(i) | the base price of the Airframe as defined in the A320 NEO Standard Specification [*****] which is: |
USD [*****]
(US Dollars [*****])
(ii) | a [*****] amount for SCNs which is: |
USD [*****]
(US Dollars [*****])
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(iii) | the base price [*****] if a CFM LEAP- [*****] Propulsion System is selected, which is: |
USD [*****]
(US Dollars [*****] )
3.1.2 | The Airframe Base Price of an A321 NEO Aircraft is the sum of: |
(i) | the base price of the Airframe as defined in the A321 CEO Standard Specification [*****] which is: |
USD [*****] (US Dollars [*****].
or
USD [*****] (US Dollars [*****].
(ii) | the base price of the New Engine Option [*****], which is: |
USD [*****]
(US Dollars [*****])
(iii) | the base price of the Sharklets, which is: |
USD [*****]
(US Dollars [*****])
(iv) | a [*****] SCNs which is: |
USD [*****] (US Dollars [*****].
or
USD [*****] (US Dollars [*****].
(v) | the base price [*****] if a CFM LEAP- [*****] Propulsion System is selected, which is: |
USD [*****]
(US Dollars [*****])
3.1.3 | The above Airframe Base Price(s) have been established in accordance with the average economic conditions prevailing in [*****] and corresponding to a theoretical delivery in [*****] (the Base Period). |
3.1.4 | [*****] |
3.2 | Propulsion Systems Base Price |
3.2.1 | The base price of a [*****] CFM LEAP- [*****] Propulsion Systems for the NEO Aircraft (CFM LEAP- [*****] NEO Propulsion Systems Base Price) is |
USD [*****]
(US Dollars [*****])
The CFM LEAP- [*****] NEO Propulsion Systems Base Price has been established in accordance with the delivery conditions prevailing in [*****] and has been calculated from the Propulsion Systems Reference Price, as set forth in [*****] of Exhibit C to the Agreement.
3.2.2 | The base price of a [*****] CFM LEAP- [*****] Propulsion Systems for the NEO Aircraft (CFM LEAP- [*****] NEO Propulsion Systems Base Price) is |
USD [*****]
(US Dollars [*****])
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The CFM LEAP- [*****] NEO Propulsion Systems Base Price has been established in accordance with the delivery conditions prevailing in [*****] and has been calculated from the Propulsion Systems Reference Price, as set forth in [*****] of Exhibit C to the Agreement.
3.3 | Final Price |
The Final Price of each Aircraft shall be the sum of:
(i) | the relevant Airframe Base Price as revised as of the Delivery Date in accordance with Clause 4.1; plus |
(ii) | the aggregate of all increases or decreases to the Airframe Base Price as agreed in any Specification Change Notice or part thereof applicable to the Airframe subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.1; plus |
(iii) | the relevant Propulsion Systems Reference Price as revised as of the Delivery Date in accordance with Clause 4.2; plus |
(iv) | the aggregate of all increases or decreases to the applicable Propulsion Systems Reference Price as agreed in any Specification Change Notice or part thereof applicable to the relevant Propulsion Systems subsequent to the date of this Agreement as revised as of the Delivery Date in accordance with Clause 4.2; plus |
(v) | any other amount due by the Buyer to the Seller pursuant to this Agreement and/or any other written agreement between the Buyer and the Seller with respect to the Aircraft. |
4 | PRICE REVISION |
4.1 | Revision of Airframe Base Price |
The Airframe Base Price is subject to revision in accordance with the Airframe Price Revision Formula up to and including the Delivery Date as set forth in [*****] of Exhibit C.
4.2 | Revision of Propulsion Systems Reference Price |
4.2.1 | The Propulsion Systems Reference Price is subject to revision in accordance with the Propulsion Systems Price Revision Formula up to and including the Delivery Date, as set forth in [*****] of Exhibit C. |
4.2.2 | Modification of Propulsion Systems Reference Price, Propulsion Systems Price Revision Formula and Propulsion Systems Designations |
The Propulsion Systems Reference Price, the prices of the related equipment, the Propulsion Systems designation(s) and the Propulsion Systems Price Revision Formula are based on information received from the Propulsions Systems Manufacturer and are subject to amendment by the Propulsion Systems Manufacturer at any time prior to the Delivery Date. If the Propulsion Systems Manufacturer makes any such amendment, the amendment shall be automatically incorporated into this Agreement and the Propulsion Systems Reference Price, the prices of the related equipment, the Propulsion Systems designation(s) and/or the Propulsion Systems Price Revision Formula shall be adjusted accordingly. The Seller agrees to notify the Buyer as soon as it receives notice of any such amendment from the Propulsion Systems Manufacturer.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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5 | PAYMENTS |
5.1 | Sellers Account |
The Buyer shall pay the Predelivery Payments, the Balance of Final Price and/or any other amount due by the Buyer to the Seller, to the Sellers account:
Beneficiary Name: AIRBUS
account identification: [*****]
with:
[*****]
or to such other account as may be designated by the Seller.
5.2 | Intentionally left blank |
5.3 | Predelivery Payments |
5.3.1 | The Buyer shall pay Predelivery Payments to the Seller calculated on the predelivery payment reference price of each Aircraft. The predelivery payment reference price is determined by the following formula: |
[*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
5.3.2 | Such Predelivery Payments shall be made in accordance with the following schedule: |
DUE DATE OF PAYMENTS
[*****] PREDELIVERY PAYMENT | ||
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
||
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
[*****] | |
[*****] |
||
[*****] |
[*****] |
In the event of the above schedule resulting in any Predelivery Payment falling due prior to the date of signature of the Agreement, such Predelivery Payments shall be made upon signature of this Agreement.
5.3.3 | [*****] |
5.3.4 | [*****] |
5.3.5 | [*****] |
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(i) | [*****] |
(ii) | [*****] |
[*****]
(iii) | [*****] |
5.4 | Balance of Final Price |
5.4.1 | The Balance of Final Price payable by the Buyer to the Seller on the Delivery Date shall be the Final Price less the amount of Predelivery Payments received by the Seller on or before the Delivery Date. |
5.4.2 | Upon receipt of the Sellers invoice, and immediately prior to Delivery, the Buyer shall pay to the Seller the Balance of Final Price. |
5.5 | Other Charges |
Unless expressly stipulated otherwise, any other charges due under this Agreement other than those set out in Clauses 5.3 and 5.4 shall be paid by the Buyer at the same time as payment of the Balance of Final Price or, if invoiced after the Delivery Date, within [*****] after the invoice date.
5.6 | Method of Payment |
5.6.1 | All payments provided for in this Agreement shall be made in United States Dollars (USD) in immediately available funds. |
5.6.2 | All payments due to the Seller hereunder shall be made in full, without set-off, counterclaim, deduction or withholding of any kind. Consequently, the Buyer shall procure that the sums received by the Seller under this Agreement shall be equal to the full amounts expressed to be due to the Seller hereunder, without deduction or withholding on account of and free from any and all taxes, levies, imposts, dues or charges of whatever nature. If the Buyer is compelled by law to make any such deduction or withholding the Buyer shall pay such additional amounts as may be necessary in order that the net amount received by the Seller after such deduction or withholding shall be equal to the amounts which would have been received in the absence of such deduction or withholding and pay to the relevant taxation or other authorities within the period for payment permitted by applicable law, the full amount of the deduction or withholding. |
5.7 | Overdue Payments |
If any payment due to the Seller under this Agreement including but not limited to any Predelivery Payment, commitment fee, option fee for the Aircraft as well as any payment due to the Seller for any spare parts, data, documents, training and services, is not received on the due date, without prejudice to the Sellers other rights under this Agreement and at law, the Seller shall [*****].
5.8 | Taxes |
5.8.1 | The amounts stated in this Agreement to be payable [*****]. |
5.8.2 | [*****] shall pay all other taxes, duties or similar charges of any nature [*****]. |
5.8.3 | [*****] shall bear the costs of and pay any and all taxes, duties or similar charges of any nature [*****]. |
5.9 | Proprietary Interest |
The Buyer shall not, by virtue of anything contained in this Agreement (including, without limitation, any Predelivery Payments hereunder, or any designation or identification by the Seller of a particular aircraft as an Aircraft to which any of the provisions of this Agreement refers) acquire any proprietary, insurable or other interest whatsoever in any Aircraft before Delivery of and payment for such Aircraft, as provided in this Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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5.10 | Set-Off |
The Seller may set-off any matured obligation owed by the Buyer to the Seller [*****].
5.11 | [*****] |
5.11.1 | [*****] |
(i) | [*****]. |
(ii) | [*****]. |
[*****].
5.11.2 | [*****]. |
6 | MANUFACTURE PROCEDURE INSPECTION |
6.1 | Manufacture Procedure |
The Airframe shall be manufactured in accordance with the relevant requirements of the laws of the jurisdiction of incorporation of the Seller or of its relevant Affiliate as enforced by the Aviation Authority of such jurisdiction.
6.2 | Inspection |
6.2.1 | Subject to providing the Seller with certificates evidencing compliance with the insurance requirements set forth in Clause 19, the Buyer or its duly authorised representatives (the Buyers Inspector(s)) shall be entitled to inspect the manufacture of the Airframe and all materials and parts obtained by the Seller for the manufacture of the Airframe on the following terms and conditions; |
(i) | any inspection shall be made according to a procedure to be agreed upon with the Buyer but shall be conducted pursuant to the Sellers own system of inspection as developed under the supervision of the relevant Aviation Authority; |
(ii) | the Buyers Inspector(s) shall have access to such relevant technical data as is reasonably necessary for the purpose of the inspection; |
(iii) | any inspection and any related discussions with the Seller and other relevant personnel by the Buyers Inspector(s) shall be at reasonable times during business hours and shall take place in the presence of relevant inspection department personnel of the Seller; |
(iv) | the inspections shall be performed in a manner not to unduly delay or hinder the manufacture or assembly of the Aircraft or the performance of this Agreement by the Seller or any other work in progress at the Manufacture Facilities. |
6.2.2 | Location of Inspections |
The Buyers Inspector(s) shall be entitled to conduct any such inspection at the relevant Manufacture Facility of the Seller or the Affiliates and where possible at the Manufacture Facilities of the sub-contractors provided that if access to any part of the Manufacture Facilities where the Airframe manufacture is in progress or materials or parts are stored are restricted for security or confidentiality reasons, the Seller shall be allowed reasonable time to make the relevant items available elsewhere.
6.3 | Sellers Service for Buyers Inspector(s) |
For the purpose of the inspections, and commencing with the date of this Agreement until the Delivery Date, the Seller shall [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7 | CERTIFICATION |
7.1 | Type Certification |
The Aircraft has been type certificated under European Aviation Safety Agency (EASA) procedures for certification in the transport category. The Seller has obtained the relevant type certificate (the Type Certificate) to allow the issuance of the Export Airworthiness Certificate and/or the Statement of Conformity, as applicable.
7.2 | Export Airworthiness Certificate and/or Statement of Conformity |
7.2.1 | The Aircraft shall be delivered to the Buyer with an Export Airworthiness Certificate and/or with a Statement of Conformity, as applicable. |
7.2.2 | If, any time before the date on which the Aircraft is Ready for Delivery, any law or regulation is enacted, promulgated, becomes effective and/or an interpretation of any law or regulation is issued which requires any change to the Specification for the purposes of obtaining the Export Airworthiness Certificate or issuing the Statement of Conformity, as applicable, (a Change in Law), the Seller shall make the required variation or modification and the parties hereto shall sign a Specification Change Notice which specifies the effects, if any, upon the guaranteed performances, weights, interchangeability, time of Delivery, price of the Aircraft and text of the Specification. |
7.2.3 | The Seller shall as far as practicable (but at its sole discretion and without prejudice to Clause 7.3.1 (ii) take into account the information available to it concerning any proposed law, regulation or interpretation which could become a Change in Law in order to minimise the costs of changes to the Specification as a result of such proposed law, regulation or interpretation becoming effective prior to the Aircraft being Ready for Delivery. |
7.3 | Costs of SCNs for Certification |
7.3.1 | The costs of implementing the variation or modification referred to in Clause 7.2.2 above shall be |
(i) | [*****] if the Change in Law became effective prior to the date of this Agreement; |
(ii) | [*****] if the Change in Law became effective after the date of this Agreement. |
7.3.2 | Notwithstanding the provisions of sub-Clauses 7.3.1 (i) and (ii), if the Change in Law relates to the Propulsion Systems, the costs shall be borne in accordance with such arrangements as may be made separately between the Buyer and the Propulsion Systems Manufacturer. |
7.4 | Validation of Export Airworthiness Certificate or Statement of Conformity |
7.4.1 | The Seller shall endeavour to obtain the validation of the Export Airworthiness Certificate or the Statement of Conformity, as applicable, by the Buyers Aviation Authority. |
7.4.2 | Where the Buyers Aviation Authority requires a modification to comply with additional import aviation requirements and/or supply of additional data prior to the issuance of the Export Airworthiness Certificate or the Statement of Conformity, as applicable, the Seller shall incorporate such modification and/or provide such data [*****]. |
8 | TECHNICAL ACCEPTANCE |
8.1 | Technical Acceptance Process |
8.1.1 | Prior to Delivery the Aircraft shall undergo a technical acceptance process, proposed by the Seller (the Technical Acceptance Process). Completion of the Technical Acceptance Process shall demonstrate the satisfactory functioning of the Aircraft and shall be deemed to demonstrate compliance with the Specification. Should it be established that the Aircraft does not comply with the Technical Acceptance Process requirements, the Seller shall without hindrance from the Buyer |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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be entitled to carry out any necessary changes and, as soon as practicable thereafter, resubmit the Aircraft to such further Technical Acceptance Process as is necessary to demonstrate the elimination of the non-compliance. |
8.1.2 | The Technical Acceptance Process shall: |
(i) | commence on a date notified by the Seller to the Buyer by no less than [*****] notice; |
(ii) | take place at the Delivery Location; |
(iii) | be carried out by the personnel of the Seller; |
(iv) | include a technical acceptance flight which [*****]. |
8.2 | Buyers Attendance |
8.2.1 | The Buyer shall be entitled to attend the Technical Acceptance Process and notification of the start of such Technical Acceptance Process shall be done in accordance with Clause 9.1.2. |
8.2.2 | If the Buyer elects to attend the Technical Acceptance Process, the Buyer: |
(i) | shall co-operate in complying with the reasonable requirements of the Seller with the intention of completing the Technical Acceptance Process within [*****]; |
(ii) | may have a [*****] of the Buyers representatives (with no more than [*****] such representatives having access to the cockpit at any one time) accompany the Sellers representatives on a technical acceptance flight and during such flight the Buyers representatives shall comply with the instructions of the Sellers representatives. |
8.2.3 | If the Buyer does not attend or fails to co-operate in the Technical Acceptance Process, the Seller shall be entitled to complete the Technical Acceptance Process and the Buyer shall be deemed to have accepted the Technical Acceptance Process as satisfactory in all respects. |
8.3 | Certificate of Acceptance |
Following completion of the Technical Acceptance Process, the Buyer shall sign and deliver to the Seller, in accordance with Clause 9.2.1, a certificate of acceptance in respect of the Aircraft in the form of Exhibit D (the Certificate of Acceptance).
8.4 | Aircraft Utilisation |
The Seller shall, without payment or other liability, be entitled to use the Aircraft prior to Delivery as may be necessary to obtain the certificates required under Clause 7, and such use shall not prejudice the Buyers obligation to accept Delivery of the Aircraft hereunder.
[*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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9 | DELIVERY |
9.1 | Delivery Schedule |
9.1.1 | Subject to Clauses 2, 7, 8, 10 and 18, the Seller shall have the Aircraft Ready for Delivery at the Delivery Location within the following months: |
NEO Aircraft Rank N° |
Scheduled Delivery Month |
NEO Aircraft type | ||
N°1 |
[*****] | [*****] | ||
N°2 |
[*****] | [*****] | ||
N°3 |
[*****] | [*****] | ||
N°4 |
[*****] | [*****] | ||
N°5 |
[*****] | [*****] | ||
N°6 |
[*****] | [*****] | ||
N°7 |
[*****] | [*****] | ||
N°8 |
[*****] | [*****] | ||
N°9 |
[*****] | [*****] | ||
N°10 |
[*****] | [*****] | ||
N°11 |
[*****] | [*****] | ||
N°12 |
[*****] | [*****] | ||
N°13 |
[*****] | [*****] | ||
N°14 |
[*****] | [*****] | ||
N°15 |
[*****] | [*****] | ||
N°16 |
[*****] | [*****] | ||
N°17 |
[*****] | [*****] | ||
N°18 |
[*****] | [*****] | ||
N°19 |
[*****] | [*****] | ||
N°20 |
[*****] | [*****] | ||
N°21 |
[*****] | [*****] | ||
N°22 |
[*****] | [*****] | ||
N°23 |
[*****] | [*****] | ||
N°24 |
[*****] | [*****] | ||
N°25 |
[*****] | [*****] | ||
N°26 |
[*****] | [*****] | ||
N°27 |
[*****] | [*****] | ||
N°28 |
[*****] | [*****] | ||
N°29 |
[*****] | [*****] | ||
N°30 |
[*****] | [*****] | ||
N°31 |
[*****] | [*****] | ||
N°32 |
[*****] | [*****] | ||
N°33 |
[*****] | [*****] | ||
N°34 |
[*****] | [*****] | ||
N°35 |
[*****] | [*****] |
[*****]
Each of such months shall be, with respect to the corresponding Aircraft, the Scheduled Delivery Month.
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9.1.2 | The Seller shall give the Buyer at least: |
[*****]
9.2 | Delivery |
9.2.1 | The Buyer shall, within [*****] after the date on which the Aircraft is Ready for Delivery, sign the Certificate of Acceptance, pay the Balance of the Final Price and send its representatives to the Delivery Location to take Delivery of, and collect, the Aircraft. |
9.2.2 | The Seller shall deliver and transfer title to the Aircraft free and clear of all encumbrances to the Buyer provided that the Balance of the Final Price has been paid by the Buyer pursuant to Clause 5.4 and that the Certificate of Acceptance has been signed and delivered to the Seller pursuant to Clause 8.3. The Seller shall provide the Buyer with a bill of sale in the form of Exhibit E (the Bill of Sale) and/or such other documentation confirming transfer of title and receipt of the Final Price as may reasonably be requested by the Buyer. Title to, property in and risk of loss of or damage to the Aircraft shall be transferred to the Buyer on Delivery. |
9.2.3.1 | Should the Buyer fail, within the period specified in Clause 9.2.1, to: |
(i) | deliver the signed Certificate of Acceptance to the Seller ; or |
(ii) | pay the Balance of the Final Price for the Aircraft to the Seller and take Delivery of the Aircraft; |
then the Buyer shall be deemed to have rejected delivery of the Aircraft without warrant when duly tendered to it hereunder. Without prejudice to Clause 5.7 and the Sellers other rights under this Agreement or at law (a) the Seller shall retain title to the Aircraft and (b) the Buyer shall bear all risk of loss of or damage to the Aircraft and shall indemnify and hold the Seller harmless against any and all costs (including but not limited to any parking, storage, and insurance costs) and consequences resulting from such failure, it being understood that the Seller shall be under no duty towards the Buyer to store, park, insure, or otherwise protect the Aircraft.
9.2.3.2 | Should the Buyer fail to collect the Aircraft as mentioned in Clause 9.2.1 above and without prejudice to the Sellers other rights under this Agreement or at law, the provisions of Clause 9.2.3.1 (b) shall apply. |
9.3 | Fly Away |
9.3.1 | The Buyer and the Seller shall co-operate to obtain any licenses, which may be required by the Aviation Authority of the Delivery Location for the purpose of exporting the Aircraft. |
9.3.2 | All expenses of, or connected with, flying the Aircraft from the Delivery Location after Delivery shall be borne by [*****]. [*****] shall make direct arrangements with the supplying companies for the fuel and oil required for all post- Delivery flights. |
10 | EXCUSABLE DELAY |
10.1 | The Buyer acknowledges that the Aircraft are to be manufactured by Seller in performance of this Agreement and that the Scheduled Delivery Months are based on the assumption that there shall be no delay due to causes beyond the control of the Seller. Accordingly, Seller shall not be responsible for any delay in the Delivery of the Aircraft or delay or interruption in the performance of the other obligations of the Seller hereunder due to causes beyond its control, and not occasioned by its fault or negligence including (but without limitation) acts of God or the public enemy, war, civil war, warlike operations, terrorism, insurrections or riots, fires, explosions, natural disasters, compliance with any applicable foreign or domestic governmental regulation or order, labour disputes causing cessation, slowdown or interruption of work, inability after due and timely diligence to procure materials, equipment or parts, general hindrance in transportation or failure of a sub-contractor or |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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supplier to furnish materials, equipment or parts. Any delay or interruption resulting from any of the foregoing causes is referred to as an Excusable Delay. |
10.2 | If an Excusable Delay occurs: |
(i) | the Seller shall notify the Buyer of such Excusable Delay as soon as practicable after becoming aware of the same; |
(ii) | the Seller shall not be responsible for any damages arising from or in connection with such Excusable Delay suffered or incurred by the Buyer; |
(iii) | the Seller shall not be deemed to be in default in the performance of its obligations hereunder as a result of such Excusable Delay; and |
(iv) | the Seller shall as soon as practicable after the removal of the cause of the delay resume performance of its obligations under this Agreement and in particular shall notify to the Buyer the revised Scheduled Delivery Month. |
10.3 | Termination on Excusable Delay |
10.3.1 | If the Delivery of any Aircraft is delayed as a result of an Excusable Delay for a period of [*****] then either party may terminate this Agreement with respect to the Aircraft so affected by giving written notice to the other party within [*****] period provided that the Buyer shall not be entitled to terminate this Agreement pursuant to this Clause if the Excusable Delay results from a cause within its control. |
10.3.2 | If the Seller concludes that the Delivery of any Aircraft shall be delayed for [*****] due to an Excusable Delay and as a result thereof reschedules Delivery of such Aircraft to a date or month reflecting such delay then the Seller shall promptly notify the Buyer in writing to this effect and shall include in such notification the new Scheduled Delivery Month. Either party may thereupon terminate this Agreement with respect to such Aircraft by giving written notice to the other party within [*****] after receipt by the Buyer of the notice of anticipated delay. |
10.3.3 | If this Agreement shall not have been terminated with respect to the delayed Aircraft during the [*****] period referred to in either Clause 10.3.1 or 10.3.2 above, then [*****]. |
10.4 | Total Loss, Destruction or Damage |
If prior to Delivery, any Aircraft is lost, destroyed or in the reasonable opinion of the Seller is damaged beyond repair (Total Loss), the Seller shall notify the Buyer to this effect within [*****] of such occurrence. The Seller shall include in said notification (or as soon after the issue of the notice as such information becomes available to the Seller) the earliest date consistent with the Sellers other commitments and production capabilities that an aircraft to replace the Aircraft may be delivered to the Buyer and the Scheduled Delivery Month shall be extended as specified in the Sellers notice to accommodate the delivery of the replacement aircraft; provided, however, that in the event the specified extension of the Scheduled Delivery Month to a month is [*****] after the last day of the original Scheduled Delivery Month then [*****]:
(i) | the Buyer notifies the Seller within [*****] of the date of receipt of the Sellers notice that it desires the Seller to provide a replacement aircraft during the month quoted in the Sellers notice; and |
(ii) | the parties execute an amendment to this Agreement recording the variation in the Scheduled Delivery Month; |
provided, however, that nothing herein shall require the Seller to manufacture and deliver a replacement aircraft if such manufacture would require the reactivation of its production line for the model or series of aircraft which includes the Aircraft purchased hereunder.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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10.5 | [*****] |
[*****]
11 | NON-EXCUSABLE DELAY |
11.1 | [*****] |
Should any of the Aircraft not be Ready for Delivery to the Buyer within [*****] (the Delivery Period) and such delay is not as a result of an Excusable Delay or Total Loss (a Non-Excusable Delay), then the Buyer shall have the right to claim, and the Seller shall pay by way of [*****]:
US Dollars [*****] (USD [*****]) if the Seller notifies the Buyer of such Non- Excusable Delay prior to [*****] prior to the Scheduled Delivery Month of the affected Aircraft; the amount of such [*****] shall in no event exceed the total of US Dollars [*****] (USD [*****]) in respect of any one Aircraft.
US Dollars [*****] (USD [*****]) if the Seller notifies the Buyer of such Non- Excusable Delay after [*****].
US Dollars [*****] (USD [*****]) if the Seller notifies the Buyer of such Non- Excusable Delay after [*****].
US Dollars [*****] (USD [*****]) if the Seller notifies the Buyer of such Non- Excusable Delay after [*****].
The Buyers right [*****] in respect of the Aircraft is conditional upon the Buyer submitting a claim in respect of such [*****] in writing to the Seller [*****] after the last day of the Scheduled Delivery Month.
11.2 | Re-negotiation |
If, as a result of Non-Excusable Delay, Delivery does not occur in the period falling [*****] after the Delivery Period, the Buyer shall have the right exercisable by written notice to the Seller given not less than [*****] nor more than [*****] after the expiration of the [*****] falling after the Delivery Period to require from the Seller a re-negotiation of the Scheduled Delivery Month for the affected Aircraft. Unless otherwise agreed between the Seller and the Buyer during such re-negotiation, the said re-negotiation shall not prejudice the Buyers right to receive [*****] in accordance with Clause 11.1 during the period of Non-Excusable Delay.
11.3 | Termination |
If, as a result of Non-Excusable Delay, Delivery does not occur in the period falling [*****] and the parties have not renegotiated the Scheduled Delivery Month pursuant to Clause 11.2, either party shall have the right exercisable by written notice to the other party, given not less than [*****] nor more than [*****] after expiration of [*****] to terminate this Agreement in respect of the affected Aircraft [*****].
11.4 | [*****] |
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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12 | WARRANTIES AND SERVICE LIFE POLICY |
This Clause covers the terms and conditions of the warranty and service life policy.
12.1 | Standard Warranty |
12.1.1 | Nature of Warranty |
For the purpose of this Agreement the term Warranted Part shall mean any Seller proprietary component, equipment, accessory or part, which is installed on an Aircraft at Delivery thereof and
(a) | which is manufactured to the detailed design of the Seller or a subcontractor of the Seller and |
(b) | which bears a part number of the Seller at the time of such Delivery. |
Subject to the conditions and limitations as hereinafter provided for and except as provided for in Clause 12.1.2, the Seller warrants to the Buyer that each Aircraft and each Warranted Part shall at Delivery to the Buyer be free from defects:
(i) | in material; |
(ii) | in workmanship, including without limitation processes of manufacture; |
(iii) | in design (including without limitation the selection of materials) having regard to the state of the art at the date of such design; and |
(iv) | arising from failure to conform to the Specification, except to those portions of the Specification relating to performance or where it is expressly stated that they are estimates, approximations or design aims. |
12.1.2 | Exclusions |
The warranties set forth in Clause 12.1.1 shall not apply to Buyer Furnished Equipment, nor to the Propulsion Systems, nor to any component, equipment, accessory or part installed on the Aircraft at Delivery that is not a Warranted Part except that:
(i) | any defect in the Sellers workmanship in respect of the installation of such items in the Aircraft, including any failure by the Seller to conform to the installation instructions of the manufacturers of such items, that invalidates any applicable warranty from such manufacturers, shall constitute a defect in workmanship for the purpose of this Clause 12.1 and be covered by the warranty set forth in Clause 12.1.1 (ii); and |
(ii) | any defect inherent in the Sellers design of the installation, in consideration of the state of the art at the date of such design, which impairs the use of such items, shall constitute a defect in design for the purpose of this Clause 12.1 and be covered by the warranty set forth in Clause 12.1.1 (iii). |
12.1.3 | Warranty Period |
The warranties set forth in Clauses 12.1.1 and 12.1.2 shall be limited to those defects that become apparent within [*****] (the Warranty Period).
12.1.4 | Buyers Remedy and Sellers Obligation |
12.1.4.1 | The Buyers remedy and the Sellers obligation and liability under Clauses 12.1.1 and 12.1.2 are limited to, at the Sellers expense and option, the repair, replacement or correction of any Warranted Part which is defective (or to the supply of modification kits rectifying the defect), together with a credit to the Buyers account with the Seller of an amount equal to the mutually agreed direct labor costs expended in performing the removal and the reinstallation thereof on the Aircraft at the labor rate defined in Clause 12.1.7.5. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The Seller may alternatively furnish to the Buyers account with the Seller a credit equal to the price at which the Buyer is entitled to purchase a replacement for the defective Warranted Part.
12.1.4.2 | In the event of a defect covered by Clauses 12.1.1 (iii), 12.1.1 (iv) and 12.1.2 (ii) becoming apparent within the Warranty Period, the Seller shall also, if so requested by the Buyer in writing, correct such defect in any Aircraft which has not yet been delivered to the Buyer, provided, however, |
(i) | that the Seller shall not be responsible, nor deemed to be in default on account of any delay in Delivery of any Aircraft or otherwise in respect of the performance of this Agreement, due to the Sellers undertaking to make such correction and provided further |
(ii) | that, rather than accept a delay in the Delivery of any such Aircraft, the Buyer and the Seller may mutually agree to deliver such Aircraft with subsequent correction of the defect by the Buyer at the Sellers expense, or the Buyer may elect to accept Delivery and thereafter file a Warranty Claim as though the defect had become apparent immediately after Delivery of such Aircraft. |
12.1.4.3 | Cost of inspection |
In addition to the remedies set forth in Clauses 12.1.4.1 and 12.1.4.2, the [*****] in performing inspections of the Aircraft to determine whether or not a defect exists in any Warranted Part within the Warranty Period subject to the following conditions:
(i) | such inspections are recommended by a Seller Service Bulletin to be performed within the Warranty Period; |
(ii) | the [*****] for any inspections performed [*****]. |
(iii) | the [*****] shall be the [*****] defined in Clause 12.1.7.5, and |
(iv) | [*****]. |
12.1.5 | Warranty Claim Requirements |
The Buyers remedy and the Sellers obligation and liability under this Clause 12.1, with respect to any warranty claim submitted by the Buyer (each a Warranty Claim) are subject to the following conditions:
(i) | the defect having become apparent within the Warranty Period; |
(ii) | the Buyer having filed a warranty claim within [*****]; |
(iii) | the Buyer having submitted to the Seller evidence reasonably satisfactory to the Seller that the claimed defect is due to a matter embraced within this Clause 12.1 and that such defect has not resulted from any act or omission of the Buyer, including but not limited to, any failure to operate and maintain the affected Aircraft or part thereof in accordance with the standards set forth in Clause 12.1.10 or from any act or omission of any third party; |
(iv) | the Seller having received a Warranty Claim complying with the provisions of Clause 12.1.6 below. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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12.1.6 | Warranty Administration |
The warranties set forth in Clause 12.1 shall be administered as hereinafter provided for:
12.1.6.1 | Claim Determination |
Determination as to whether any claimed defect in any Warranted Part is a valid Warranty Claim shall be made by the Seller acting reasonably and shall be based upon the claim details, reports from the Sellers Representatives, historical data logs, inspections, tests, findings during repair, defect analysis and other relevant documents.
12.1.6.2 | Transportation Costs |
The cost of transporting a Warranted Part claimed to be defective to the facilities designated by the Seller and for the return therefrom of a repaired or replaced Warranted Part shall be borne by the Buyer.
12.1.6.3 | Return of an Aircraft |
If the Buyer and the Seller mutually agree, prior to such return, that it is necessary to return an Aircraft to the Seller for consideration of a Warranty Claim, [*****].
12.1.6.4 | On Aircraft Work by the Seller |
If the Seller determines that a defect subject to this Clause 12.1 justifies the dispatch by the Seller of a working team to repair or correct such defect through the embodiment of one or several Sellers Service Bulletins at the Buyers facilities, or if the Seller accepts the return of an Aircraft to perform or have performed such repair or correction, then the labor costs [*****].
The condition which has to be fulfilled for on-Aircraft work by the Seller is that, in the opinion of the Seller, the work necessitates the technical expertise of the Seller as manufacturer of the Aircraft.
If said condition is fulfilled and if the Seller is requested to perform the work, the Seller and the Buyer shall agree on a schedule and place for the work to be performed.
12.1.6.5 | Warranty Claim Substantiation |
Each Warranty Claim filed by the Buyer under this Clause 12.1 shall contain at least the following data:
(a) | description of defect and action taken, if any, |
(b) | date of incident and/or removal date, |
(c) | description of Warranted Part claimed to be defective, |
(d) | part number, |
(e) | serial number (if applicable), |
(f) | position on Aircraft, |
(g) | total flying hours or calendar time, as applicable, at the date of defect appearance, |
(h) | time since last shop visit at the date of defect appearance, |
(i) | Manufacturer Serial Number of the Aircraft and/or its registration, |
(j) | Aircraft total flying hours and/or number of landings at the date of defect appearance, |
(k) | Warranty Claim number, |
(l) | date of Warranty Claim, |
(m) | Delivery Date of Aircraft or Warranted Part to the Buyer, |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Warranty Claims are to be addressed as follows:
AIRBUS
CUSTOMER SERVICES DIRECTORATE
WARRANTY ADMINISTRATION
Rond Point Maurice Bellonte
B.P. 33
F 31707 BLAGNAC CEDEX
FRANCE
12.1.6.6 | Replacements |
Title to and risk of loss of any Aircraft, component, accessory, equipment or part returned by the Buyer to the Seller shall at all times remain with the Buyer, except that:
(i) | risk of loss (limited to cost of replacement and excluding in particular loss of use) shall be with the Seller for as long as such Aircraft, component, accessory, equipment or part shall be under the care, custody and control of the Seller and; |
(ii) | title to and risk of loss of a returned component, accessory, equipment or part shall pass to the Seller upon shipment by the Seller to the Buyer of any item furnished by the Seller to the Buyer as a replacement therefor. |
Upon the Sellers shipment to the Buyer of any replacement component, accessory, equipment or part provided by the Seller pursuant to this Clause 12.1, title to and risk of loss of such replacement component, accessory, equipment or part shall pass to the Buyer.
12.1.6.7 | Rejection |
The Seller shall provide reasonable written substantiation in case of rejection of a Warranty Claim.
12.1.6.8 | Inspection |
The Seller shall have the right to inspect the affected Aircraft, documents and other records relating thereto in the event of any Warranty Claim under this Clause 12.1.
12.1.7 | Inhouse Warranty |
12.1.7.1 | Sellers Authorization |
The Seller hereby authorizes the Buyer to repair Warranted Parts (Inhouse Warranty) subject to the terms of this Clause 12.1.7.
12.1.7.2 | Conditions for Sellers Authorization |
The Buyer shall be entitled to repair such Warranted Parts:
- | provided the Buyer notifies the Seller Representative of its intention to perform Inhouse Warranty repairs before any such repairs are started where the estimated cost of such repair is in excess of US Dollars [*****] (US$[*****]). The Buyers notification shall include sufficient detail regarding the defect, estimated labor hours and material to allow the Seller to ascertain the reasonableness of the estimate. The Seller agrees to use all reasonable efforts to ensure a prompt response and shall not unreasonably withhold authorization; |
- | provided adequate facilities and qualified personnel are available to the Buyer; |
- | provided repairs are performed in accordance with the Sellers Technical Data or written instructions; and |
- | only to the extent specified by the Seller, or, in the absence of such specification, to the extent reasonably necessary to correct the defect, in accordance with the standards set forth in Clause 12.1.10. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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12.1.7.3 | Sellers Rights |
The Seller shall have the right to require the return of any Warranted Part, or any part removed therefrom, which is claimed to be defective if, in the judgment of the Seller, the nature of the claimed defect requires technical investigation. Such return shall be subject to the provisions of Clause 12.1.6.2. Furthermore, the Seller shall have the right to have a Seller Representative present during the disassembly, inspection and testing of any Warranted Part claimed to be defective, subject to such presence being practical and not unduly delaying the repair.
12.1.7.4 | Inhouse Warranty Claim Substantiation |
Claims for Inhouse Warranty credit shall be filed within the time period set forth in 12.1.5 (ii) and shall contain the same information as that required for Warranty Claims under Clause 12.1.6.5 and in addition shall include:
(a) | a report of technical findings with respect to the defect, |
(b) | for parts required to remedy the defect: |
- | part numbers, |
- | serial numbers (if applicable), |
- | parts description, |
- | quantity of parts, |
- | unit price of parts, |
- | related Sellers or third partys invoices (if applicable), |
- | total price of parts, |
(c) | detailed number of labor hours, |
(d) | Inhouse Warranty Labor Rate, |
(e) | total claim value. |
12.1.7.5 | Credit |
The Buyers sole remedy and the Sellers sole obligation and liability with respect to Inhouse Warranty Claims shall be the credit to the Buyers account of an amount [*****];
(a) | [*****] |
(b) | [*****] |
(c) | [*****] |
12.1.7.6 | Limitation |
The Buyer shall in no event be credited for repair costs (including labor and material) for any Warranted Part in excess of [*****] of the Sellers current catalogue price for a replacement of such defective Warranted Part.
12.1.7.7 | Scrapped Material |
The Buyer shall retain any defective Warranted Part beyond economic repair and any defective part removed from a Warranted Part during repair for a period of either [*****] after submission of a claim for Inhouse Warranty credit relating thereto, whichever is longer. Such parts shall be returned to the Seller [*****] of receipt of the Sellers request to that effect subject to the provisions of Clause 12.1.6.2.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Notwithstanding the foregoing, the Buyer may scrap any such defective parts, which are beyond economic repair and not required for technical evaluation locally, with the agreement of the Seller Representative(s).
Scrapped Warranted Parts shall be evidenced by a record of scrapped material certified by an authorized representative of the Buyer and shall be kept in the Buyers file for a least the duration of the applicable Warranty Period.
12.1.8 | Standard Warranty in case of Leasing Arrangements |
Without prejudice to Clause 21.1, the warranties provided for in this Clause 12.1 for any Warranted Part shall [*****], in accordance with the terms and subject to the limitations and exclusions of the foregoing warranties and to the extent permitted by any applicable law or regulations.
12.1.9 | Warranty for Corrected, Replaced or Repaired Warranted Parts |
Whenever any Warranted Part, which contains a defect for which the Seller is liable under Clause 12.1, has been corrected, replaced or repaired pursuant to the terms of this Clause 12.1, the period of the Sellers warranty with respect to such corrected, repaired or replacement Warranted Part, whichever the case may be, [*****].
If a defect is attributable to a defective repair or replacement by the Buyer, a Warranty Claim with respect to such defect shall be rejected, notwithstanding any subsequent correction or repair, and shall immediately terminate the remaining warranties under this Clause 12.1 in respect of the affected Warranted Part.
12.1.10 | Accepted Industry Standard Practices Normal Wear and Tear |
The Buyers rights under this Clause 12.1 are subject to the Aircraft and each component, equipment, accessory and part thereof being maintained, overhauled, repaired and operated in accordance with accepted aeronautics industry standard practices, all Technical Data and any other instructions issued by the Seller, the Suppliers and the Propulsion Systems Manufacturer and all applicable rules, regulations and directives of the relevant Aviation Authorities.
The Sellers liability under this Clause 12.1 shall not extend to normal wear and tear nor to:
(i) | any Aircraft or component, equipment, accessory or part thereof, which has been repaired, altered or modified after Delivery, except by the Seller or in a manner approved by the Seller; |
(ii) | any Aircraft or component, equipment, accessory or part thereof, which has been operated in a damaged state; |
(iii) | any component, equipment, accessory and part from which the trademark, name, part or serial number or other identification marks have been removed. |
12.1.11 | Limitation of liability |
THE SELLER SHALL NOT BE LIABLE FOR, AND THE BUYER SHALL INDEMNIFY THE SELLER AGAINST, ANY CLAIMS FROM ANY THIRD PARTIES FOR LOSSES DUE TO ANY DEFECT OR NON-CONFORMITY OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH ANY REPAIR OF ANY WARRANTED PART UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE 12.1 OR ANY OTHER ACTIONS UNDERTAKEN BY THE BUYER UNDER THIS CLAUSE 12, WHETHER SUCH CLAIM IS ASSERTED IN CONTRACT OR IN TORT, OR IS PREMISED ON ALLEGED, ACTUAL, IMPUTED, ORDINARY OR INTENTIONAL ACTS OR OMISSIONS OF THE BUYER.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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12.2 | Seller Service Life Policy |
12.2.1 | In addition to the warranties set forth in Clause 12.1, the Seller further agrees that should a Failure occur in any Item (as these terms are defined herebelow) that has not suffered from an extrinsic force, then, subject to the general conditions and limitations set forth in Clause 12.2.4, the provisions of this Clause 12.2 shall apply. |
For the purposes of this Clause 12.2:
(i) | Item means any item listed in Exhibit F; |
(ii) | Failure means a breakage or defect that can reasonably be expected to occur on a sufficiently representative panel of operators and which materially impairs the utility of the Item. |
12.2.2 | Periods and Sellers Undertakings |
The Seller agrees that if a Failure occurs in an Item before the Aircraft in which such Item was originally installed has completed [*****] flying hours [*****] flight cycles or within [*****] after the Delivery of said Aircraft, whichever shall first occur, the Seller shall, at its discretion and as promptly as practicable and with the Sellers financial participation as hereinafter provided, either :
- | design and furnish to the Buyer a correction for such Item with a Failure and provide any parts required for such correction (including Seller designed standard parts but excluding industry standard parts), or |
- | replace such Item. |
12.2.3 | Sellers Participation in the Costs |
[*****]
12.2.4 | General Conditions and Limitations |
12.2.4.1 | The undertakings set forth in this Clause 12.2 shall be valid after the period of the Sellers warranty applicable to an Item under Clause 12.1. |
12.2.4.2 | The Buyers remedies and the Sellers obligations and liabilities under this Service Life Policy are subject to the prior compliance by the Buyer with the following conditions: |
(i) | the Buyer shall maintain log books and other historical records with respect to each Item, adequate to enable the Seller to determine whether the alleged Failure is covered by this Service Life Policy and, if so, to define the portion of the costs to be borne by the Seller in accordance with Clause 12.2.3; |
(ii) | the Buyer shall keep the Seller informed of any significant incidents relating to an Aircraft, howsoever occurring or recorded; |
(iii) | the Buyer shall comply with the conditions of Clause 12.1.10; |
(iv) | the Buyer shall implement specific structural inspection programs for monitoring purposes as may be established from time to time by the Seller. Such programs shall be as compatible as possible with the Buyers operational requirements and shall be carried out at the Buyers expense. Reports relating thereto shall be regularly furnished to the Seller; |
(v) | the Buyer shall report any breakage or defect in a Item in writing to the Seller within [*****] after such breakage or defect becomes apparent, whether or not said breakage or defect can reasonably be expected to occur in any other aircraft, and the Buyer shall have provided to the Seller sufficient detail on the breakage or defect to enable the Seller to determine whether said breakage or defect is subject to this Service Life Policy. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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12.2.4.3 | Except as otherwise provided for in this Clause 12.2, any claim under this Service Life Policy shall be administered as provided for in, and shall be subject to the terms and conditions of, Clause 12.1.6. |
12.2.4.4 | In the event of the Seller having issued a modification applicable to an Aircraft, the purpose of which is to avoid a Failure, the Seller may elect to supply the necessary modification kit [*****]. If such a kit is so offered to the Buyer, then, to the extent of such Failure and any Failures that could ensue therefrom, the validity of the Sellers commitment under this Clause 12.2 shall be subject to the Buyer incorporating such modification in the relevant Aircraft, as promulgated by the Seller and in accordance with the Sellers instructions, within a reasonable time. |
12.2.4.5 | This Service Life Policy is neither a warranty, performance guarantee, nor an agreement to modify any Aircraft or Airframe components to conform to new developments occurring in the state of airframe design and manufacturing art after the Delivery Date. |
The Sellers obligation hereunder is to furnish only those corrections to the Items or provide replacements therefor as provided for in this Clause 12.2.
The Buyers sole remedy and relief for the non-performance of any obligation or liability of the Seller arising under or by virtue of this Service Life Policy shall be in the form of a credit, limited to the amount the Buyer reasonably expends in procuring a correction or replacement for any Item that is the subject of a Failure covered by this Service Life Policy and to which such non-performance is related.
The Buyer hereby waives, releases and renounces all claims to any further damages, direct, incidental or consequential, including loss of profits and all other rights, claims and remedies, arising under or by virtue of this Service Life Policy.
12.3 | Supplier Warranties and Service Life Policies |
Prior to/at Delivery of the first Aircraft, the Seller shall provide the Buyer, in accordance with the provisions of Clause 17, with the enforceable warranties and, where applicable, service life policies that the Seller has obtained for Supplier Parts pursuant to the Supplier Product Support Agreements.
12.3.1 | Definitions |
12.3.1.1 | Supplier means any supplier of Supplier Parts. |
12.3.1.2 | Supplier Part means any component, equipment, accessory or part installed in an Aircraft at the time of Delivery thereof and for which there exists a Supplier Product Support Agreement. For the sake of clarity, Propulsion Systems and Buyer Furnished Equipment and other equipment selected by the Buyer to be supplied by suppliers with whom the Seller has no existing enforceable warranty agreements are not Supplier Parts. |
12.3.1.3 | Supplier Product Support Agreements means agreements between the Seller and Suppliers, as described in Clause 17.1.2, containing enforceable and transferable warranties and, in the case of landing gear suppliers, service life policies for selected structural landing gear elements. |
12.3.2 | Suppliers Default |
12.3.2.1 | In the event of any Supplier, under any standard warranty obtained by the Seller pursuant to Clause 12.3.1, defaulting in the performance of any material obligation with respect [*****]. |
12.3.2.2 | In the event of any Supplier, under any Supplier Service Life Policy obtained by the Seller pursuant to Clause 12.3.1, defaulting in the performance of any material obligation with respect [*****]. |
12.3.2.3 | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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12.4 | Interface Commitment |
12.4.1 | Interface Problem |
If the Buyer experiences any technical problem in the operation of an Aircraft or its systems due to a malfunction, the cause of which, after due and reasonable investigation, is not readily identifiable by the Buyer but which the Buyer reasonably believes to be attributable to the design characteristics of one or more components of the Aircraft (Interface Problem), the Seller shall, if so requested by the Buyer, and without additional charge to the Buyer except for transportation of the Sellers personnel to the Buyers facilities, promptly conduct or have conducted an investigation and analysis of such problem to determine, if possible, the cause or causes of the problem and to recommend such corrective action as may be feasible. The Buyer shall furnish to the Seller all data and information in the Buyers possession relevant to the Interface Problem and shall cooperate with the Seller in the conduct of the Sellers investigations and such tests as may be required.
At the conclusion of such investigation, the Seller shall promptly advise the Buyer in writing of the Sellers opinion as to the cause or causes of the Interface Problem and the Sellers recommendations as to corrective action.
12.4.2 | Sellers Responsibility |
If the Seller determines that the Interface Problem is primarily attributable to the design of a Warranted Part, the Seller shall, if so requested by the Buyer and pursuant to the terms and conditions of Clause 12.1, correct the design of such Warranted Part to the extent of the Sellers obligation as defined in Clause 12.1.
12.4.3 | Suppliers Responsibility |
If the Seller determines that the Interface Problem is primarily attributable to the design of any Supplier Part, the Seller shall, if so requested by the Buyer, reasonably assist the Buyer in processing any warranty claim the Buyer may have against the Supplier.
12.4.4 | Joint Responsibility |
If the Seller determines that the Interface Problem is attributable partially to the design of a Warranted Part and partially to the design of any Supplier Part, the Seller shall, if so requested by the Buyer, seek a solution to the Interface Problem through cooperative efforts of the Seller and any Supplier involved.
The Seller shall promptly advise the Buyer of such corrective action as may be proposed by the Seller and any such Supplier. Such proposal shall be consistent with any then existing obligations of the Seller hereunder and of any such Supplier towards the Buyer. Such corrective action, when accepted by the Buyer, shall constitute full satisfaction of any claim the Buyer may have against either the Seller or any such Supplier with respect to such Interface Problem.
12.4.5 | General |
12.4.5.1 | All requests under this Clause 12.4 shall be directed to both the Seller and the Supplier. |
12.4.5.2 | Except as specifically set forth in this Clause 12.4, this Clause shall not be deemed to impose on the Seller any obligations not expressly set forth elsewhere in this Clause 12. |
12.4.5.3 | All reports, recommendations, data and other documents furnished by the Seller to the Buyer pursuant to this Clause 12.4 shall be deemed to be delivered under this Agreement and shall be subject to the terms, covenants and conditions set forth in this Clause 12. |
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12.5 | Waiver, Release and Renunciation |
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER (AS DEFINED BELOW FOR THE PURPOSES OF THIS CLAUSE) AND REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 12 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY LAW, CONTRACT OR OTHERWISE, WITH RESPECT TO ANY NON CONFORMITY OR DEFECT OF ANY KIND, IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR SERVICES DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:
A. | ANY WARRANTY AGAINST HIDDEN DEFECTS; |
B. | ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; |
C. | ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE; |
D. | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER IN CONTRACT OR IN TORT, WHETHER OR NOT ARISING FROM THE SELLERS NEGLIGENCE, ACTUAL OR IMPUTED; AND |
E. | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA, OR SERVICES DELIVERED UNDER THIS AGREEMENT, FOR LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, |
PROVIDED THAT IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE THE REMAINDER OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.
FOR THE PURPOSES OF THIS CLAUSE 12.5, THE SELLER SHALL BE UNDERSTOOD TO INCLUDE THE SELLER, ANY OF ITS SUPPLIERS AND SUBCONTRACTORS AND ITS AFFILIATES.
12.6 | Duplicate Remedies |
The Seller shall not be obliged to provide any remedy that duplicates any other remedy available to the Buyer in respect of the same defect under Clauses 12.1 and 12.2 as such Clauses may be amended, complemented or supplemented by other contractual agreements or by other Clauses of this Agreement.
12.7 | Negotiated Agreement |
The Buyer specifically recognizes that:
(i) | the Specification has been agreed upon after careful consideration by the Buyer using its judgment as a professional operator of aircraft; |
(ii) | this Agreement, and in particular this Clause 12, has been the subject of discussion and negotiation and is fully understood by the Buyer; and |
(iii) | the price of the Aircraft and the other mutual agreements of the Buyer set forth in this Agreement were arrived at in consideration of, inter alia, the provisions of this Clause 12, specifically including the waiver, release and renunciation by the Buyer set forth in Clause 12.5. |
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12.8 | Disclosure to Third Party Entity |
In the event of the Buyer intending to designate a third party entity (a Third Party Entity) to administrate this Clause 12, the Buyer shall notify the Seller of such intention prior to any disclosure of this Clause to the selected Third Party Entity and shall cause such Third Party Entity to enter into a confidentiality agreement and or any other relevant documentation with the Seller solely for the purpose of administrating this Clause 12.
12.9 | Transferability |
Without prejudice to Clause 21.1, the Buyers rights under this Clause 12 may not be assigned, sold, transferred, novated or otherwise alienated by operation of law or otherwise, without the Sellers prior written consent, which shall not be unreasonably withheld.
Any transfer in violation of this Clause 12.9 shall, as to the particular Aircraft involved, void the rights and warranties of the Buyer under this Clause 12 and any and all other warranties that might arise under or be implied in law.
13 | PATENT AND COPYRIGHT INDEMNITY |
13.1 | Indemnity |
13.1.1 | Subject to the provisions of Clause 13.2.3, [*****] shall indemnify [*****] from and against [*****] resulting from any infringement or claim of infringement by the [*****] of: |
(i) any [*****] patent;
and
(ii) any patent [*****]
(1) | [*****] |
or in the alternative,
(2) | [*****] |
and
(iii) | [*****] any copyright, [*****] |
13.1.2 | Clause 13.1.1 shall not apply to: |
[*****] [*****]
[*****] [*****]
[*****] [*****]
13.1.3 | [*****] |
[*****] [*****]
[*****] [*****]
13.2 | Administration of Patent and Copyright Indemnity Claims |
13.2.1 | If the Buyer receives a written claim or a suit is threatened or commenced against the Buyer for infringement of a patent or copyright referred to in Clause 13.1, the Buyer shall: |
(i) | forthwith notify the Seller giving particulars thereof; |
(ii) | furnish to the Seller all data, papers and records within the Buyers control or possession relating to such patent or claim; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(iii) | refrain from admitting any liability or making any payment or assuming any expenses, damages, costs or royalties or otherwise acting in a manner prejudicial to the defense or denial of such suit or claim provided always that nothing in this sub-Clause (iii) shall prevent the Buyer from paying such sums as may be required in order to obtain the release of the Aircraft, provided such payment is accompanied by a denial of liability and is made without prejudice; |
(iv) | fully co-operate with, and at the reasonable cost and expense of the Seller render all such assistance to, the Seller as may be pertinent to the defense or denial of the suit or claim; |
(v) | at the reasonable cost and expense of the Seller, act in such a way as to mitigate damages and / or to reduce the amount of royalties which may be payable as well as to minimise costs and expenses. |
13.2.2 | The Seller shall be entitled either in its own name or on behalf of the Buyer to conduct negotiations with the party or parties alleging infringement and may assume and conduct the defense or settlement of any suit or claim in the manner which, in the Sellers reasonable opinion, it deems proper. |
13.2.3 | The Sellers liability hereunder shall be conditional upon the compliance by the Buyer with the terms of this Clause and is in lieu of any other liability to the Buyer express or implied which the Seller might incur at law as a result of any infringement or claim of infringement of any patent or copyright. |
14 | TECHNICAL DATA AND SOFTWARE SERVICES |
14.1 | Scope |
This Clause 14 covers the terms and conditions for the supply of technical data (hereinafter Technical Data) and software services described hereunder (hereinafter Software Services) to support the Aircraft operation.
14.1.1 | The Technical Data shall be supplied in the English language using the aeronautical terminology in common use. |
14.1.2 | Range, type, format and delivery schedule of the Technical Data to be provided under this Agreement are outlined in Exhibit G hereto. |
14.2 | Aircraft Identification for Technical Data |
14.2.1 | For those Technical Data that are customized to the Aircraft, the Buyer agrees to the allocation of fleet serial numbers (Fleet Serial Numbers) in the form of block of numbers selected in the range from 001 to 999. |
14.2.2 | The sequence shall not be interrupted unless two (2) different Propulsion Systems or two (2) different Aircraft models are selected. |
14.2.3 | The Buyer shall indicate to the Seller the Fleet Serial Number allocated to each Aircraft corresponding to the delivery schedule set forth in Clause 9.1.1 [*****] before the Scheduled Delivery Month of the first Aircraft. Neither the designation of such Fleet Serial Numbers nor the subsequent allocation of the Fleet Serial Numbers to Manufacturer Serial Numbers for the purpose of producing certain customized Technical Data shall constitute any property, insurable or other interest of the Buyer in any Aircraft prior to the Delivery of such Aircraft as provided for in this Agreement. |
The customized Technical Data that are affected thereby are the following:
- | Aircraft Maintenance Manual, |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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- | Illustrated Parts Catalog, |
- | Trouble Shooting Manual, |
- | Aircraft Wiring Manual, |
- | Aircraft Schematics Manual, |
- | Aircraft Wiring Lists. |
14.3 | Integration of Equipment Data |
14.3.1 | Supplier Equipment |
Information, including revisions, relating to Supplier equipment that is installed on the Aircraft at Delivery or through Airbus Service Bulletins thereafter shall be introduced into the customized Technical Data to the extent necessary for the comprehension of the affected systems, [*****].
14.3.2 | Buyer Furnished Equipment |
14.3.2.1 | The Seller shall introduce Buyer Furnished Equipment data for Buyer Furnished Equipment that is installed on the Aircraft by the Seller (hereinafter BFE Data) into the customized Technical Data, [*****] solely for the initial issue of the Technical Data provided at or before Delivery of the first Aircraft, provided such BFE Data is provided in accordance with the conditions set forth in Clauses 14.3.2.2 through 14.3.2.5. |
14.3.2.2 | The Buyer shall supply, or shall cause the BFE Supplier(s) to supply on its behalf, BFE Data to the Seller [*****] prior to the Scheduled Delivery Month of the first Aircraft. |
14.3.2.3 | The BFE Data shall be supplied in English and shall be established in compliance with the then applicable revision of ATA iSpecification 2200 (iSpec 2200), Information Standards for Aviation Maintenance. |
14.3.2.4 | The BFE Data shall be delivered in digital format and/or in Portable Document Format (PDF), as agreed between the Buyer and the Seller. |
14.3.2.5 | All costs related to the delivery to the Seller of the applicable BFE Data shall be borne by the Buyer. |
14.4 | Supply |
14.4.1 | Technical Data shall be supplied on-line and/or off-line, as set forth in Exhibit G hereto. |
14.4.2 | The Buyer shall not receive any credit or compensation for any unused or only partially used Technical Data supplied pursuant to this Clause 14. |
14.4.3 | Delivery |
14.4.3.1 | For Technical Data provided off-line, such Technical Data and corresponding revisions shall be sent to [*****] as indicated by the Buyer. |
14.4.3.2 | Technical Data provided off-line shall be delivered by the Seller at the Buyers named place of destination under [*****] conditions. The term [*****] is defined in the Incoterms 2010 publication issued by the International Chamber of Commerce. |
14.4.3.3 | The Technical Data shall be delivered according to a mutually agreed schedule to correspond with the Deliveries of Aircraft. The Buyer shall provide [*****] notice when requesting a change to such delivery schedule. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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14.4.4 | It shall be the responsibility of the Buyer to coordinate and satisfy local Aviation Authorities requirements with respect to Technical Data. Reasonable quantities of such Technical Data shall be supplied by the Seller [*****] to the Buyer at the Buyers named place of destination. |
Notwithstanding the foregoing, and in agreement with the relevant Aviation Authorities, preference shall be given to the on-line access to such Buyers Technical Data through the Airbus customer portal AirbusWorld.
14.5 | Revision Service |
For each firmly ordered Aircraft covered under this Agreement, revision service for the Technical Data shall be provided on a [*****] for a period [*****] after Delivery of such Aircraft (each a Revision Service Period).
Thereafter revision service shall be provided in accordance with the terms and conditions set forth in the Sellers then current Customer Services Catalog.
14.6 | Service Bulletins (SB) Incorporation |
During any Revision Service Period and upon the Buyers request, Seller Service Bulletin information shall be incorporated into the Technical Data, provided that the Buyer notifies the Seller through the relevant AirbusWorld on-line Service Bulletin Reporting application that it intends to accomplish such Service Bulletin, after which post Service Bulletin status shall be shown.
14.7 | Technical Data Familiarization |
Upon request by the Buyer, the Seller shall provide up to [*****] of Technical Data familiarization training at the Sellers or the Buyers facilities. The basic familiarization course is tailored for maintenance and engineering personnel.
14.8 | Customer Originated Changes (COC) |
In the event of the Buyer wishing to introduce Buyer originated data, including BFE Data after the initial issue of the Technical Data, (hereinafter COC Data) into any of the customized Technical Data that are identified as eligible for such incorporation in the Sellers then current Customer Services Catalog, the Buyer shall notify the Seller of such intention.
The incorporation of any COC Data shall be performed under the methods and tools for achieving such introduction and the conditions specified in the Sellers then current Customer Services Catalog.
14.9 | AirN@v Family products |
14.9.1 | The Technical Data listed herebelow are provided on DVD and include integrated software (hereinafter together referred to as AirN@v Family). |
14.9.2 | The AirN@v Family covers several Technical Data domains, reflected by the following AirN@v Family products: |
- | AirN@v / Maintenance, |
- | AirN@v / Planning, |
- | AirN@v / Repair, |
- | AirN@v / Workshop, |
- | AirN@v / Associated Data, |
- | AirN@v / Engineering. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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14.9.3 | The licensing conditions for the use of AirN@v Family integrated software shall be as set forth in Part 1 of Exhibit I to the Agreement, End-User License Agreement for Airbus Software. |
14.9.4 | The revision service and the license to use AirN@v Family products shall be granted [*****] for the duration of the corresponding Revision Service Period. At the end of such Revision Service Period, the yearly revision service for AirN@v Family products and the associated license fee [*****]. |
14.10 | On-Line Technical Data |
14.10.1 | The Technical Data provided on-line shall be made available to the Buyer through the Airbus customer portal AirbusWorld (AirbusWorld). |
14.10.2 | Access to AirbusWorld shall be subject to the General Terms and Conditions of Access to and Use of AirbusWorld (hereinafter the GTC), as set forth in Part 2 of Exhibit I to this Agreement. |
14.10.3 | The list of the Technical Data provided on-line may be extended from time to time. |
For any Technical Data which is or becomes available on-line, the Seller reserves the right to suppress other formats for the concerned Technical Data.
14.10.4 | Access to AirbusWorld shall be granted [*****] (including [*****]) for the Technical Data related to the Aircraft which shall be operated by the Buyer. |
14.10.5 | For the sake of clarification, it is hereby specified that Technical Data accessed through AirbusWorld shall remain subject to the conditions of this Clause 14. |
In addition, should AirbusWorld provide access to Technical Data in software format, the use of such software shall be further subject to the conditions of Part 1 of Exhibit I to the Agreement.
14.11 | Waiver, Release and Renunciation |
The Seller warrants [*****].
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER (AS DEFINED BELOW FOR THE PURPOSES OF THIS CLAUSE) AND REMEDIES OF THE BUYER SET FORTH IN THIS CLAUSE 14 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY LAW, CONTRACT OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT OF ANY KIND, IN ANY TECHNICAL DATA OR SERVICES DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:
A. | ANY WARRANTY AGAINST HIDDEN DEFECTS; |
B. | ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; |
C. | ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE; |
D. | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER IN CONTRACT OR IN TORT, WHETHER OR NOT ARISING FROM THE SELLERS NEGLIGENCE, ACTUAL OR IMPUTED; AND |
E. | [*****] |
PROVIDED THAT, IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE, THE REMAINDER OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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FOR THE PURPOSES OF THIS CLAUSE 14, THE SELLER SHALL BE UNDERSTOOD TO INCLUDE THE SELLER, ANY OF ITS SUPPLIERS AND SUBCONTRACTORS AND ITS AFFILIATES.
14.12 | Proprietary Rights |
14.12.1 | All proprietary rights, including but not limited to patent, design and copyrights, relating to Technical Data shall remain with the Seller and/or its Affiliates as the case may be. |
These proprietary rights shall also apply to any translation into a language or languages or media that may have been performed or caused to be performed by the Buyer.
14.12.2 | Whenever this Agreement and/or any Technical Data provides for manufacturing by the Buyer, the consent given by the Seller shall not be construed as express or implicit approval howsoever neither of the Buyer nor of the manufactured products. The supply of the Technical Data shall not be construed as any further right for the Buyer to design or manufacture any aircraft or part thereof or spare part. |
14.13 | Performance Engineers Program |
14.13.1 | In addition to the Technical Data provided under Clause 14, the Seller shall provide to the Buyer Software Services, which shall consist of the Performance Engineers Programs (PEP) for the Aircraft type covered under this Agreement. Such PEP is composed of software components and databases and its use is subject to the license conditions set forth in Part 1 of Exhibit I to the Agreement End-User License Agreement for Airbus Software. |
14.13.2 | Use of the PEP shall be limited to [*****] to be used on the Buyers computers for the purpose of computing performance engineering data. The PEP is intended for use on ground only and shall not be embarked on board the Aircraft. |
14.13.3 | The license to use the PEP and the revision service shall be provided [*****] for the duration of the corresponding Revision Service Period as set forth in Clause 14.5. |
14.13.4 | At the end of such PEP Revision Service Period, the PEP shall be provided to the Buyer [*****] set forth in the Sellers then current Customer Services Catalog. |
14.14 | Future Developments |
The Seller continuously monitors technological developments and applies them to Technical Data, document and information systems functionalities, production and methods of transmission.
The Seller shall implement and the Buyer shall accept such new developments, it being understood that the Buyer shall be informed in due time by the Seller of such new developments and their application and of the date by which the same shall be implemented by the Seller.
14.15 | Confidentiality |
14.15.1 | This Clause, the Technical Data, the Software Services and their content are designated as confidential. All such Technical Data and Software Services are provided to the Buyer for the sole use of the Buyer who undertakes not to disclose the contents thereof to any third party without the prior written consent of the Seller save as permitted therein or pursuant to any government or legal requirement imposed upon the Buyer. |
14.15.2 | In the event of the Seller authorizing the disclosure of this Clause or any Technical Data or Software Services to third parties either under this Agreement or by an express prior written authorization and specifically, in the event of the Buyer intending to designate a maintenance and repair organization or a third party to perform the maintenance of the Aircraft or to perform data processing on its behalf (each a Third Party), the Buyer shall notify the Seller of such intention prior to any disclosure of this Clause and/or the Technical Data and/or the Software Services to such Third Party. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The Buyer hereby undertakes to cause such Third Party to agree to be bound by the conditions and restrictions set forth in this Clause 14 with respect to the disclosed Clause, Technical Data or Software Services and shall in particular cause such Third Party to enter into a confidentiality agreement with the Seller and appropriate licensing conditions, and to commit to use the Technical Data solely for the purpose of maintaining the Buyers Aircraft and the Software Services exclusively for processing the Buyers data.
14.16 | Transferability |
Without prejudice to Clause 21.1, the Buyers rights under this Clause 14 may not be assigned, sold, transferred, novated or otherwise alienated by operation of law or otherwise, without the Sellers prior written consent.
Any transfer in violation of this Clause 14.16 shall, as to the particular Aircraft involved, void the rights and warranties of the Buyer under this Clause 14 and any and all other warranties that might arise under or be implied in law.
15 | SELLER REPRESENTATIVE SERVICES |
15.1 | The Seller shall provide [*****] to the Buyer the non-exclusive services of Seller customer support representative(s) (each a Seller Representative), at or within reach of the Buyers main base, starting from the first Aircraft Delivery until [*****] after the last Aircraft Delivery. |
Within a reasonable time prior to entry into service, the Seller shall provide to the Buyer a list of contacts of such Seller Representatives.
15.2 | In providing the services as described hereabove, any Seller Representatives, or any Seller employee(s) providing services to the Buyer hereunder, are deemed to be acting in an advisory capacity only and at no time shall they be deemed to be acting as Buyers employees or agents, either directly or indirectly. |
15.3 | In the event of a need for Aircraft On Ground (AOG) technical assistance during and after the end of the period referred to in Clause 15.1 above, the Buyer shall continue to have [*****]: |
(a) | [*****] |
(b) | [*****] |
15.4 | Should the Buyer request Seller Representative services exceeding the duration specified in Clause 15.1, the Seller may provide such additional services subject to terms and conditions to be mutually agreed. |
15.5 | The Seller shall cause similar services to be provided by representatives of the Propulsion Systems Manufacturer and Suppliers, when necessary and applicable. |
15.6 | Buyers Support |
Notwithstanding Clause 15.1, the parties may agree that the non-exclusive Seller Representatives may be based at the Buyers facilities for all or part of the duration set forth in Clause 15.1. In such event, the parties agree that the following conditions shall apply:
15.6.1 | From the date of arrival of the first Seller Representative and for the duration of the services, the Buyer shall provide [*****] a suitable lockable office, conveniently located with respect to the Buyers maintenance facilities, with complete office furniture and equipment including telephone, internet, email and facsimile connections for the sole use of the Seller Representative(s). [*****]. |
15.6.2 | The Buyer shall assist the Seller in obtaining from the civil authorities of the Buyers country those documents that are necessary to permit the Seller Representative to live and work in the Buyers country. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Should the Seller fail to obtain the necessary documents, the Seller shall be relieved of any obligation to the Buyer it may have incurred pursuant to this Clause 15.6 and the services of Seller Representatives shall be provided to the Buyer from another location as set forth in Clause 15.1.
15.7 | Should the Buyer request any Seller Representative to travel to a city other than his usual place of assignment or the Buyers main base, the Buyer shall be responsible for all related transportation costs and expenses. Any such travel shall be subject to the Sellers prior consent. The Buyer shall further in such case provide such Seller Representative(s) with hotel accommodation and/or transportation at standards acceptable to the Seller. |
15.8 | Withdrawal of the Seller Representative(s) |
The Seller shall, following consultation with Buyer, have the right to withdraw its Seller Representative(s) as it sees fit if conditions arise, which are in the Sellers opinion dangerous to their safety or health or prevent them from fulfilling their contractual tasks.
15.9 | Indemnities |
INDEMNIFICATION PROVISIONS APPLICABLE TO THIS CLAUSE 15 ARE SET FORTH IN CLAUSE 19.
16 | TRAINING SUPPORT AND SERVICES |
16.1 | General |
16.1.1 | This Clause 16 sets forth the terms and conditions for the supply of training support and services for the Buyers personnel to support the Aircraft operation. |
16.1.2 | The range, quantity and validity of training to be provided [*****] under this Agreement are covered in Appendix A to this Clause 16. |
16.1.3 | Scheduling of training courses covered in Appendix A shall be mutually agreed during a training conference (the Training Conference) that shall be held [*****]. |
16.2 | Training Location |
16.2.1 | The Seller shall provide training at its training center in [*****], and/or in [*****] or shall designate an affiliated training center in [*****], or [*****] (individually a Sellers Training Center and collectively the Sellers Training Centers). |
16.2.2 | If the unavailability of facilities or scheduling difficulties make training by the Seller at any Sellers Training Center impractical, the Seller shall ensure that the Buyer is provided with such training at another location designated by the Seller. |
16.2.3.1 | Upon the Buyers request, the Seller may also provide certain training at a location other than the Sellers Training Centers, including one of the Buyers bases, if and when practicable for the Seller, under terms and conditions to be mutually agreed upon. In such event, all additional charges listed in Clauses 16.5.2 and 16.5.3 [*****]. |
16.2.3.2 | If the Buyer requests training at a location as indicated in Clause 16.2.3.1 and requires such training to be an Airbus approved course, the Buyer undertakes that the training facilities shall be approved prior to the performance of such training. The Buyer shall, as necessary and in due time prior to the performance of such training, provide access to the training facilities set forth in Clause 16.2.3.1 to the Sellers and the competent Aviation Authoritys representatives for approval of such facilities. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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16.3 | Training Courses |
16.3.1 | Training courses shall be as described in the Sellers customer services catalog (the Sellers Customer Services Catalog). The Sellers Customer Services Catalog also sets forth the minimum and maximum number of trainees per course. |
All training requests or training course changes made outside of the frame of the Training Conference shall be submitted by the Buyer with a minimum of [*****] prior notice.
16.3.2 | The following terms and conditions shall apply to training performed by the Seller: |
(i) | Training courses shall be the Sellers standard courses as described in the Sellers Customer Services Catalog valid at the time of execution of the course. The Seller shall be responsible for all training course syllabi, training aids and training equipment necessary for the organization of the training courses; for the avoidance of doubt, for the purpose of performing training, such training equipment does not include aircraft. |
(ii) | The training equipment and the training curricula used for the training of flight, cabin and maintenance personnel shall not be fully customized but shall be configured in order to obtain the relevant Aviation Authoritys approval and to support the Sellers training programs. |
(iii) | Training data and documentation for trainees receiving the training at the Sellers Training Centers [*****]. Training data and documentation shall be marked FOR TRAINING ONLY and as such are supplied for the sole and express purpose of training; training data and documentation shall not be revised. |
16.3.3 | When the Sellers training courses are provided by the Sellers instructors (individually an Instructor and collectively Instructors) the Seller shall deliver a Certificate of Recognition or a Certificate of Course Completion (each a Certificate) or an attestation (an Attestation), as applicable, at the end of any such training course. Any such Certificate or Attestation shall not represent authority or qualification by any Aviation Authority but may be presented to such Aviation Authority in order to obtain relevant formal qualification. |
In the event of training courses being provided by a training provider selected by the Seller as set forth in Clause 16.2.2, the Seller shall cause such training provider to deliver a Certificate or Attestation, which shall not represent authority or qualification by any Aviation Authority, but may be presented to such Aviation Authority in order to obtain relevant formal qualification.
16.3.4.1 | Should the Buyer wish to exchange any of the training courses provided under Appendix A hereto, the Buyer shall place a request for exchange to this effect with the Seller. The Buyer may exchange, subject to the Sellers confirmation, the training allowances granted under Appendix A of the present Agreement as follows: |
(i) | flight operations training courses as listed under Article 1 of Appendix A against any flight operations training courses described in the Sellers Customer Services Catalog current at the time of the Buyers request; |
(ii) | maintenance training courses as listed under Article 3 of Appendix A against any maintenance training courses described in the Sellers Customer Services Catalog current at the time of the Buyers request; |
(iii) | should any one of the allowances granted thereunder (flight operations or maintenance) have been fully drawn upon, [*****]. |
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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It is understood that the above shall apply to the extent that training allowances granted under Appendix A remain in credit to the full extent necessary to perform the exchange.
All requests to exchange training courses shall be submitted by the Buyer with a minimum of [*****]. The requested training shall be subject to the Sellers then existing planning constraints.
16.3.4.2 | [*****] |
16.3.5.1 | Should the Buyer decide to cancel or reschedule, fully or partially, and irrespective of the location of the training, a training course, a minimum advance notification of [*****] prior to the relevant training course start date is required. |
16.3.5.2 | If the notification occurs [*****] prior to such training, a cancellation fee corresponding to [*****] of such training shall be, as applicable, either deducted from the training allowance defined in Appendix A or invoiced at the Sellers then applicable price. |
16.3.5.3 | If the notification occurs [*****] prior to such training, [*****] of such training shall be, as applicable, either deducted from the training allowance defined in Appendix A or invoiced at the Sellers then applicable price. |
16.3.5.4 | All courses exchanged under Clause 16.3.4.1 shall remain subject to the provisions of this Clause 16.3.5. |
16.4 | Prerequisites and Conditions |
16.4.1 | Training shall be conducted in English and all training aids used during such training shall be written in English using common aeronautical terminology. |
16.4.2 | The Buyer hereby acknowledges that all training courses conducted pursuant to this Clause 16 are Standard Transition Training Courses and not Ab Initio Training Courses. |
16.4.3 | Trainees shall have the prerequisite knowledge and experience specified for each course in the Sellers Customer Services Catalog. |
16.4.4.1 | The Buyer shall be responsible for the selection of the trainees and for any liability with respect to the entry knowledge level of the trainees. |
16.4.4.2 | The Seller reserves the right to verify the trainees proficiency and previous professional experience. |
16.4.4.3 | The Seller shall provide to the Buyer during the Training Conference an Airbus Pre-Training Survey for completion by the Buyer for each trainee. |
The Buyer shall provide the Seller with an attendance list of the trainees for each course, with the validated qualification of each trainee, at the time of reservation of the training course and in no event any [*****] of the training course. The Buyer shall return concurrently thereto the completed Airbus Pre-Training Survey, detailing the trainees associated background. If the Seller determines through the Airbus Pre-Training Survey that a trainee does not match the prerequisites set forth in the Sellers Customer Services Catalog, following consultation with the Buyer, such trainee shall be withdrawn from the program or directed through a relevant entry level training (ELT) program, [*****].
16.4.4.4 | If the Seller determines at any time during the training that a trainee lacks the required level, following consultation with the Buyer, such trainee shall be withdrawn from the program or, upon the Buyers request, the Seller may be consulted to direct the above mentioned trainee(s), if possible, through any other required additional training, which shall be at [*****]. |
16.4.5 | The Seller shall in no case warrant or otherwise be held liable for any trainees performance as a result of any training provided. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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16.5 | Logistics |
16.5.1 | Trainees |
16.5.1.1 | Living and travel expenses for the Buyers trainees [*****]. |
16.5.1.2 | It shall be the responsibility of the Buyer to make all necessary arrangements relative to authorizations, permits and/or visas necessary for the Buyers trainees to attend the training courses to be provided hereunder. Rescheduling or cancellation of courses due to the Buyers failure to obtain any such authorizations, permits and/or visas shall be subject to the provisions of Clauses 16.3.5.1 thru 16.3.5.3. |
16.5.2 | Training at External Location - Sellers Instructors |
16.5.2.1.1 | In the event of training being provided at the Sellers request at any location other than the Sellers Training Centers, as provided for in Clause 16.2.2, the expenses of the Sellers Instructors [*****]. |
16.5.2.1.2 | In the event of training being provided by the Sellers Instructor(s) at any location other than the Sellers Training Centers at the Buyers request, the Buyer shall reimburse the Seller for all the expenses related to the assignment of such Seller Instructors and the performance of their duties as aforesaid. |
16.5.2.2 | Living Expenses |
Except as provided for in Clause 16.5.2.1.1 above, the Buyer shall reimburse the Seller the living expenses for each Seller Instructor and/or other Sellers personnel providing support under this Clause 16, covering the entire period from his day of departure from his main base to day of return to such base at the per diem rate set forth in the Sellers Customer Services Catalog current at the time of the corresponding training or support.
Such per diem shall include, but shall not be limited to, lodging, food and local transportation to and from the place of lodging and the training course location.
16.5.2.3 | Air Travel |
Except as provided for in Clause 16.5.2.1.1 above, the Buyer shall reimburse the Seller the airfares for each Seller Instructor and/or other Sellers personnel providing support under this Clause 16, in confirmed business class to and from the Buyers designated training site and the Sellers Training Centers, as such airfares are set forth in the Sellers Customer Services Catalog current at the time of the corresponding training or support.
16.5.2.4 | No Liability |
Except in case of [*****] wilful misconduct of the Seller, the Seller shall not be held liable to the Buyer for any delay or cancellation in the performance of any training outside of the Sellers Training Centers associated with any transportation described in this Clause 16.5.2.
16.5.3 | Training Material and Equipment Availability - Training at External Location |
Training material and equipment necessary for course performance at any location other than the Sellers Training Centers or the facilities of a training provider selected by the Seller shall be provided by the Buyer at its own cost in accordance with the Sellers specifications.
Notwithstanding the foregoing, should the Buyer request the performance of a course at another location as per Clause 16.2.3.1, the Seller may, upon the Buyers request, provide the training material and equipment necessary for such courses performance [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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16.6 | Flight Operations Training |
The Seller shall provide training for the Buyers flight operations personnel as further detailed in Appendix A to this Clause 16, including the courses described in this Clause 16.6.
16.6.1 | Flight Crew Training Course |
The Seller shall perform a flight crew training course program for the Buyers flight crews, each of which shall consist of [*****] crew members, [*****].
16.6.2 | Base Flight Training |
16.6.2.1 | The Buyer shall provide at its own cost its delivered Aircraft, or any other aircraft it operates, for any base flight training, which shall consist of [*****], performed in accordance with the related Airbus training course definition (the Base Flight Training). |
16.6.2.2 | Should it be necessary to ferry the Buyers delivered Aircraft to the location where the Base Flight Training shall take place, the additional flight time required for the ferry flight to and/or from the Base Flight Training field shall not be deducted from the Base Flight Training time. |
16.6.2.3 | If the Base Flight Training is performed outside of the zone where the Seller usually performs such training, the ferry flight to the location where the Base Flight Training shall take place shall be performed by a crew composed of the Sellers and/or the Buyers qualified pilots, in accordance with the relevant Aviation Authoritys regulations related to the place of performance of the Base Flight Training. |
16.6.3 | Flight Crew Line Initial Operating Experience |
In order to assist the Buyer with initial operating experience after Delivery of the first Aircraft, the Seller shall provide to the Buyer pilot Instructor(s) as set forth in Appendix A to this Clause 16.
Should the Buyer request, subject to the Sellers consent, such Seller pilot Instructors to perform any other flight support during the flight crew line initial operating period, such as but not limited to line assistance, demonstration flight(s), ferry flight(s) or any flight(s) required by the Buyer during the period of entry into service of the Aircraft, it is understood that such flight(s) shall be deducted from the flight crew line initial operating experience allowance set forth in Appendix A hereto.
It is hereby understood by the Parties that the Sellers pilot Instructors shall only perform the above flight support services to the extent they bear the relevant qualifications to do so.
16.6.4 | Type Specific Cabin Crew Training Course |
The Seller shall provide type specific training for cabin crews, at one of the locations defined in Clause 16.2.1.
If the Buyers Aircraft is to incorporate special features, the type specific cabin crew training course shall be performed [*****] the scheduled Delivery Date of the Buyers first Aircraft.
16.6.5 | Training on Aircraft |
During any and all flights performed in accordance with this Clause 16.6, the Buyer shall bear full responsibility for the aircraft upon which the flight is performed, including but not limited to any required maintenance, all expenses such as fuel, oil or landing fees and the provision of insurance in line with Clause 16.13.
The Buyer shall assist the Seller, if necessary, in obtaining the validation of the licenses of the Sellers pilots performing Base Flight Training or initial operating experience by the Aviation Authority of the place of registration of the Aircraft.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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16.7 | Performance / Operations Courses |
The Seller shall provide performance/operations training for the Buyers personnel as defined in Appendix A to this Clause 16.
The available courses shall be listed in the Sellers Customer Services Catalog current at the time of the course.
16.8 | Maintenance Training |
16.8.1 | The Seller shall provide maintenance training for the Buyers ground personnel as further set forth in Appendix A to this Clause 16. |
The available courses shall be as listed in the Sellers Customer Services Catalog current at the time of the course.
The practical training provided in the frame of maintenance training shall be performed on the training devices in use in the Sellers Training Centers.
16.8.2 | Practical Training on Aircraft |
Notwithstanding Clause 16.8.1 above, upon the Buyers request, the Seller may provide Instructors for the performance of practical training on aircraft (Practical Training).
Irrespective of the location at which the training takes place, the Buyer shall provide at its own cost an aircraft for the performance of the Practical Training.
Should the Buyer require the Sellers Instructors to provide Practical Training at facilities selected by the Buyer, such training shall be subject to prior approval of the facilities by the Seller. All costs related to such Practical Training, including but not limited to the Sellers approval of the facilities, shall be borne by the Buyer.
The provision of a Seller Instructor for the Practical Training shall be deducted from the trainee days allowance defined in Appendix A to this Clause 16, subject to the conditions detailed in Paragraph 4.4 thereof.
16.9 | Supplier and Propulsion Systems Manufacturer Training |
Upon the Buyers request, the Seller shall provide to the Buyer the list of the maintenance and overhaul training courses provided by major Suppliers and the applicable Propulsion Systems Manufacturer on their respective products.
16.10 | Proprietary Rights |
All proprietary rights, including but not limited to patent, design and copyrights, relating to the Sellers training data and documentation shall remain with the Seller and/or its Affiliates and/or its Suppliers, as the case may be.
These proprietary rights shall also apply to any translation into a language or languages or media that may have been performed or caused to be performed by the Buyer.
16.11 | Confidentiality |
The Sellers training data and documentation are designated as confidential and as such are provided to the Buyer for the sole use of the Buyer, for training of its own personnel, who undertakes not to disclose the content thereof in whole or in part, to any third party without the prior written consent of the Seller, save as permitted herein or otherwise pursuant to any government or legal requirement imposed upon the Buyer.
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In the event of the Seller having authorized the disclosure of any training data and documentation to third parties either under this Agreement or by an express prior written authorization, the Buyer shall cause such third party to agree to be bound by the same conditions and restrictions as the Buyer with respect to the disclosed training data and documentation and to use such training data and documentation solely for the purpose for which they are provided.
16.12 | Transferability |
Without prejudice to Clause 21.1, the Buyers rights under this Clause 16 may not be assigned, sold, transferred, novated or otherwise alienated by operation of law or otherwise, without the Sellers prior written consent.
16.13 | Indemnities and Insurance |
INDEMNIFICATION PROVISIONS AND INSURANCE REQUIREMENTS APPLICABLE TO THIS CLAUSE 16 ARE AS SET FORTH IN CLAUSE 19.
THE BUYER SHALL PROVIDE THE SELLER WITH AN ADEQUATE INSURANCE CERTIFICATE PRIOR TO ANY TRAINING ON AIRCRAFT.
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APPENDIX A TO CLAUSE 16
TRAINING ALLOWANCE
For the avoidance of doubt, all quantities indicated below are the total quantities granted [*****] Aircraft firmly ordered, unless otherwise specified.
The contractual training courses defined in this Appendix A shall be provided [*****] under this Agreement.
Notwithstanding the above, flight operations training courses granted [*****] in this Appendix A shall be provided by the Seller within a period [*****] said Aircraft Delivery.
Any deviation to said training delivery schedule shall be mutually agreed between the Buyer and the Seller.
1 | FLIGHT OPERATIONS TRAINING |
1.1 | Flight Crew Training (standard transition course) |
The Seller shall provide flight crew training (standard transition course) [*****] Buyers flight crews [*****].
1.2 | Low Visibility Operations Training |
The Seller shall provide [*****] Low Visibility Operations Training for [*****] flight crews [*****].
1.3 | Flight Crew Line Initial Operating Experience |
The Seller shall provide to the Buyer pilot Instructor(s) [*****] for a period of [*****] Instructor months.
Unless otherwise agreed during the Training Conference, in order to follow the Aircraft Delivery schedule, the maximum number of pilot Instructors present at any one time shall be limited to [*****] pilot Instructors.
1.4 | Type Specific Cabin Crew Training Course |
The Seller shall provide to the Buyer [*****] type specific training for cabin crews for [*****] of the Buyers cabin crew instructors, pursers or cabin attendants.
1.5 | Airbus Pilot Instructor Course (APIC) |
The Seller shall provide to the Buyer transition Airbus Pilot Instructor Course(s) (APIC), for flight and synthetic instruction, [*****] for [*****] of the Buyers flight instructors. APIC courses shall be performed in groups [*****].
2 | PERFORMANCE / OPERATIONS COURSE(S) |
The Seller shall provide to the Buyer [*****] trainee days of performance / operations training [*****] for the Buyers personnel.
3 | MAINTENANCE TRAINING |
3.1 | The Seller shall provide to the Buyer [*****] trainee days of maintenance training [*****] for the Buyers personnel. |
3.2 | The Seller shall provide to the Buyer [*****] Engine Run-up courses. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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4 | TRAINEE DAYS ACCOUNTING |
Trainee days are counted as follows:
4.1 | For instruction at the Sellers Training Centers: [*****]. The number of trainees originally registered at the beginning of the course shall be counted as the number of trainees to have taken the course. |
4.2 | For instruction outside of the Sellers Training Centers: [*****] the actual number of trainees attending the course or [*****], except for structure maintenance training course(s). |
4.3 | For structure maintenance training courses outside the Sellers Training Center(s), [*****] the actual number of trainees attending the course or the minimum number of trainees as indicated in the Sellers Customer Services Catalog. |
4.4 | For practical training, whether on training devices or on aircraft, [*****] the actual number of trainees attending the course or a [*****] trainee days. |
17 | EQUIPMENT SUPPLIER PRODUCT SUPPORT |
17.1 | Equipment Supplier Product Support Agreements |
17.1.1 | The Seller has obtained enforceable and transferable product support agreements from Suppliers of Supplier Parts, the benefit of which is hereby accepted by the Buyer. Said agreements become enforceable as soon as and for as long as an operator is identified as an Airbus aircraft operator. |
17.1.2 | These agreements are based on the World Airlines Suppliers Guide, are made available to the Buyer through the SPSA Application, and include Supplier commitments contained in the Supplier Product Support Agreements, as defined in Clause 12.3.1.3, which include the following provisions: |
17.1.2.1 | Technical data and manuals required to operate, maintain, service and overhaul the Supplier Parts. Such technical data and manuals shall be prepared in accordance with the applicable provisions of ATA Specification including revision service and be published in the English language. The Seller shall recommend that a software user guide, where applicable, be supplied in the form of an appendix to the Component Maintenance Manual, such data shall be provided in compliance with the applicable ATA Specification; |
17.1.2.2 | Warranties and guarantees, including standard warranties. In addition, landing gear Suppliers shall provide service life policies for selected structural landing gear elements; |
17.1.2.3 | Training to ensure efficient operation, maintenance and overhaul of the Supplier Parts for the Buyers instructors, shop and line service personnel; |
17.1.2.4 | Spares data in compliance with ATA iSpecification 2200, initial provisioning recommendations, spare parts and logistics service including routine and expedite deliveries; |
17.1.2.5 | Technical service to assist the Buyer with maintenance, overhaul, repair, operation and inspection of Supplier Parts as well as required tooling and spares provisioning. |
17.2 | Supplier Compliance |
The Seller shall monitor Suppliers compliance with support commitments defined in the Supplier Product Support Agreements and shall, if necessary, jointly take remedial action with the Buyer.
17.3 | Nothing in this Clause 17 shall be construed to prevent or limit the Buyer from entering into direct negotiations with a Supplier with respect to different or additional terms and conditions applicable to Suppliers Parts selected by the Buyer to be installed on the Aircraft. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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17.4 | Familiarization Training |
Upon the Buyers request, the Seller shall provide the Buyer with Supplier Product Support Agreements familiarization training at the Sellers facilities in [*****]. An on-line training module shall be further available through Airbus World, access to which shall be subject to the General Terms and Conditions of Access to and Use of AirbusWorld (hereinafter the GTC), as set forth in Part 2 of Exhibit I to this Agreement.
18 | BUYER FURNISHED EQUIPMENT |
18.1 | Administration |
18.1.1.1 | In accordance with the Specification, the Seller shall install those items of equipment that are identified in the Specification as being furnished by the Buyer (Buyer Furnished Equipment or BFE), provided that the BFE and the supplier of such BFE (the BFE Supplier) are referred to in the Airbus BFE Product Catalog valid at the time the BFE Supplier is selected. |
18.1.1.2 | Notwithstanding the foregoing and without prejudice to Clause 2.4, if the Buyer wishes to install BFE manufactured by a supplier who is not referred to in the Airbus BFE Product Catalog, the Buyer shall so inform the Seller and the Seller shall conduct a feasibility study of the Buyers request, in order to consider approving such supplier, provided that such request is compatible with the Sellers industrial planning and the associated Scheduled Delivery Month for the Buyers Aircraft. Any approval of a supplier by the Seller shall be performed at the Buyers expense. However, in the event that a BFE item supplied by a BFE manufacturer which becomes approved by the Seller pursuant to this paragraph thereafter becomes offerable in the Sellers BFE Product Catalog, [*****]. |
In addition, it is a prerequisite to such approval that the considered BFE supplier be qualified by the Sellers Aviation Authorities to produce equipment for installation on civil aircraft. The Buyer shall use reasonable endeavours to cause any BFE supplier approved under this Clause 18.1.1.2 (each an Approved BFE Supplier) to comply with the conditions set forth in this Clause 18 and specifically Clause 18.2. Except for the specific purposes of this Clause 18.1.1.2, the term BFE Supplier shall be deemed to include Approved BFE Suppliers.
18.1.2.1 | The Seller shall advise the Buyer of the dates by which, in the planned release of engineering for the Aircraft, the Seller requires a written detailed engineering definition, encompassing a Declaration of Design and Performance (the BFE Engineering Definition). The Seller shall provide to the Buyer and/or the BFE Supplier(s), within an appropriate timeframe, the necessary interface documentation to enable the development of the BFE Engineering Definition. |
The BFE Engineering Definition shall include the description of the dimensions and weight of BFE, the information related to its certification and the information necessary for the installation and operation thereof, including when applicable 3D models compatible with the Sellers systems. The Buyer shall furnish, or cause the BFE Suppliers to furnish, the BFE Engineering Definition by the dates specified.
Thereafter, the BFE Engineering Definition shall not be revised, except through an SCN executed in accordance with Clause 2.
18.1.2.2 | The Seller shall also provide in due time to the Buyer a schedule of dates and the shipping addresses for delivery of the BFE and, where requested by the Seller, additional spare BFE to permit installation in the Aircraft and Delivery of the Aircraft in accordance with the Aircraft delivery schedule. The BFE shall be provided by such dates in a serviceable condition, in order to allow performance of any assembly, installation, test or acceptance process in accordance with the Sellers industrial schedule. In order to facilitate the follow-up of the timely receipt of BFE, the Buyer shall, upon the Sellers request, provide to the Seller dates and references of all BFE purchase orders placed by the Buyer. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The Buyer shall also provide, when requested by the Seller, at [*****] and/or at [*****] adequate field service including support from BFE Suppliers to act in a technical advisory capacity to the Seller in the installation, calibration and possible repair of any BFE.
18.1.3 | Without prejudice to the Buyers obligations hereunder, in order to facilitate the development of the BFE Engineering Definition, the Seller shall organize meetings between the Buyer and BFE Suppliers. The Buyer hereby agrees to participate in such meetings and to provide adequate technical and engineering expertise to reach decisions within the defined timeframe. |
In addition, throughout the development phase and up to Delivery of the Aircraft to the Buyer, the Buyer agrees:
| to monitor the BFE Suppliers and ensure that they shall enable the Buyer to fulfil its obligations, including but not limited to those set forth in the Customization Milestone Chart; |
| that, should a timeframe, quality or other type of risk be identified at a given BFE Supplier, the Buyer shall allocate resources to such BFE Supplier so as not to jeopardize the industrial production schedule of the Aircraft; |
| for major BFE, including, but not being limited to, seats, galleys and IFE (Major BFE) to participate on a mandatory basis in the specific meetings that take place between BFE Supplier selection and BFE delivery, namely: |
¡ | Preliminary Design Review (PDR), |
¡ | Critical Design Review (CDR); |
| to attend the First Article Inspection (FAI) for the first shipset of all Major BFE. Should the Buyer not attend such FAI, the Buyer shall delegate the FAI to the BFE Supplier and confirmation thereof shall be supplied to the Seller in writing; |
| to attend the Source Inspection (SI) that takes place at the BFE Suppliers premises prior to shipping, for each shipset of all Major BFE. Should the Buyer not attend such SI, the Buyer shall delegate the SI to the BFE Supplier and confirmation thereof shall be brought to the Seller in writing. Should the Buyer not attend the SI, the Buyer shall be deemed to have accepted the conclusions of the BFE Supplier with respect to such SI. |
The Seller shall be entitled to attend the PDR, the CDR and the FAI. In doing so, the Sellers employees shall be acting in an advisory capacity only and at no time shall they be deemed to be acting as Buyers employees or agents, either directly or indirectly.
18.1.4 | The BFE shall be imported into [*****] or into [*****] by the Buyer under a suspensive customs system [*****] without application of any [*****] or [*****] tax or customs duty, and shall be [*****], to the following shipping addresses: |
AIRBUS OPERATIONS S.A.S.
[*****]
or
[*****]
or such other location as may be specified by the Seller.
18.2 | Applicable Requirements |
The Buyer is responsible for ensuring, at its expense, that the BFE shall:
| be manufactured by a qualified BFE Supplier, and |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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| meet the requirements of the applicable Specification of the Aircraft, and |
| be delivered with the relevant certification documentation, including but not limited to the DDP, and |
| comply with the BFE Engineering Definition, and |
| comply with applicable requirements incorporated by reference to the Type Certificate and listed in the Type Certificate Data Sheet, and |
| be approved by the Aviation Authority issuing the Export Airworthiness Certificate and, to the extent required, by the Buyers Aviation Authority for installation and use on the Aircraft at the time of Delivery of the Aircraft, and. |
| not infringe any patent, copyright or other intellectual property right of the Seller or any third party, and |
| not be subject to any legal obligation or other encumbrance that may prevent, hinder or delay the installation of the BFE in the Aircraft and/or the Delivery of the Aircraft. |
The Seller shall be entitled to refuse any item of BFE that it considers incompatible with the Specification, the BFE Engineering Definition or the certification requirements.
18.3 | Buyers Obligation and Sellers Remedies |
18.3.1 | Any delay or failure by the Buyer or the BFE Suppliers in: |
| delivering BFE that meets the requirements of clause 18.2 or in providing the BFE Engineering Definition or field service mentioned in Clause 18.1.2.2, or |
| furnishing the BFE in a serviceable condition at the requested delivery date, or |
| obtaining any required approval for such BFE equipment under the above mentioned Aviation Authorities regulations, |
may delay the performance of any act to be performed by the Seller, including delaying Delivery of the affected Aircraft (provided that the Seller shall first have used reasonable efforts to avoid or reduce any such delay). The Seller shall not be responsible for such delay which shall cause the Final Price of the Aircraft to be adjusted in accordance with the updated delivery schedule and to include in particular the amount of the Sellers additional costs attributable to such delay or failure by the Buyer or the BFE Suppliers, such as storage, taxes, insurance and costs of out-of-sequence installation.
18.3.2 | In addition, in the event of any delay or failure mentioned in 18.3.1 above, the Seller may: |
(i) | select, purchase and install equipment similar to the BFE at issue, in which event the Final Price of the affected Aircraft shall also be increased by the purchase price of such equipment plus reasonable costs and expenses incurred by the Seller for handling charges, transportation, insurance, packaging and, if so required and not already provided for in the Final Price of the Aircraft, for adjustment and calibration; or |
(ii) | if the BFE is delayed by more than [*****] beyond, or is not approved [*****], the dates specified in Clause 18.1.2.2: deliver the Aircraft without the installation of such BFE, notwithstanding applicable terms of Clause 7, if any, and the Seller shall thereupon be relieved of all obligations to install such equipment. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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18.4 | Title and Risk of Loss |
Title to and risk of loss of any BFE shall at all times remain with the Buyer except that risk of loss (limited to cost of replacement of said BFE) shall be with the Seller for as long as such BFE is under the care, custody and control of the Seller.
18.5 | Disposition of BFE Following Termination |
18.5.1 | If a termination of this Agreement pursuant to the provisions of Clause 20 occurs with respect to an Aircraft in which all or any part of the BFE has been installed prior to the date of such termination, the Seller shall be entitled, but not required, to remove all items of BFE that can be removed without damage to the Aircraft and to undertake commercially reasonable efforts to facilitate the sale of such items of BFE to other customers, retaining and applying the proceeds of such sales to reduce the Sellers damages resulting from the termination. |
18.5.2 | The Buyer shall cooperate with the Seller in facilitating the sale of BFE pursuant to Clause 18.5.1 and shall be responsible for all costs reasonably incurred by the Seller in removing and facilitating the sale of such BFE. The Buyer shall reimburse the Seller for all such costs within [*****] of receiving documentation of such costs from the Seller. |
18.5.3 | The Seller shall notify the Buyer as to those items of BFE not sold by the Seller pursuant to Clause 18.5.1 above and, at the Sellers request, the Buyer shall undertake to remove such items from the Seller facility within [*****] of the date of such notice. Except in the case of [*****], the Buyer shall have no claim against the Seller for damage, loss or destruction of any item of BFE removed from the Aircraft and not removed from Sellers facility within such period. |
18.5.4 | The Buyer shall have no claim against the Seller for damage to or destruction of any item of BFE damaged or destroyed in the process of being removed from the Aircraft, provided that the Seller shall use reasonable care in such removal. |
18.5.5 | The Buyer shall grant the Seller title to any BFE items that cannot be removed from the Aircraft without causing damage to the Aircraft or rendering any system in the Aircraft unusable. |
19 | INDEMNIFICATION AND INSURANCE |
19.1 | Indemnities Relating to Inspection, Technical Acceptance Process and Ground Training |
19.1.1 | The Seller shall, except in case of [*****], its Affiliates and their respective directors, officers, agents or employees, be solely liable for and shall indemnify and hold harmless the Buyer, its Affiliates and each of their respective directors, officers, agents, and employees from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) in respect of: |
(i) | loss of, or damage to, the Sellers property; |
(ii) | injury to, or death of, the directors, officers, agents or employees of the Seller; |
(iii) | any damage caused by the Seller to third parties arising out of, or in any way connected with, any ground check, check or controls under Clause 6 or Clause 8 of this Agreement and/or Ground Training Services; and |
(iv) | any damage caused by the Buyer and/or the Seller to third parties arising out of, or in any way connected with, technical acceptance flights under Clause 8 of this Agreement. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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19.1.2 | The Buyer shall, except in case of [*****], its Affiliates and their respective directors, officers, agents or employees, be solely liable for and shall indemnify and hold harmless the Seller, its Affiliates and each of their respective directors, officers, agents, employees and sub-contractors from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) in respect of: |
(i) | loss of, or damage to, the Buyers property; |
(ii) | injury to, or death of, the directors, officers, agents or employees of the Buyer; and |
(iii) | any damage caused by the Buyer to third parties arising out of, or in any way connected with, any ground check, check or controls under Clause 6 or Clause 8 of this Agreement and/or Ground Training Services. |
19.2 | Indemnities Relating to Training on Aircraft after Delivery |
19.2.1 | The Buyer shall, except in the case of [*****], its Affiliates and their respective directors, officers, agents, employees and sub-contractors , be solely liable for and shall indemnify and hold harmless the Seller, its Affiliates and each of their respective directors, officers, agents, employees and sub-contractors from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) incident thereto or incident to successfully establishing the right to indemnification in respect of: |
(i) | injury to, or death of, any person (including any of the Buyers directors, officers, agents and employees, but not directors, officers, agents and employees of the Seller); and |
(ii) | loss of, or damage to, any property and for loss of use thereof, arising out of, or in any way connected with, the performance of any Aircraft Training Services. |
19.2.2 | The foregoing indemnity shall not apply with respect to the Sellers legal liability towards any person other than the Buyer, its directors, officers, agents or employees arising out of an accident caused solely by a product defect in the Aircraft delivered to and accepted by the Buyer hereunder. |
19.3 | Indemnities relating to Seller Representatives Services |
19.3.1 | The Buyer shall, except in case of [*****], its Affiliates and their respective directors, officers, agents, sub-contractors or employees, be solely liable for and shall indemnify and hold harmless the Seller, its Affiliates and each of their respective directors, officers, agents, employees and sub-contractors from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) in respect of: |
(i) | injury to, or death of, any person (except Sellers Representatives); and |
(ii) | loss of, or damage to, any property and for loss of use thereof; |
arising out of, or in any way connected with the Sellers Representatives Services.
19.3.2 | The Seller shall, except in case of [*****], its Affiliates and their respective directors, officers, agents or employees, be solely liable for and shall indemnify and hold harmless the Buyer, its Affiliates and each of their respective directors, officers, agents, and employees from and against all liabilities, claims, damages, costs and expenses (including legal expenses and attorney fees) in respect of all injuries to, or death of, the Sellers Representatives arising out of, or in any way connected with the Sellers Representatives Services. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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19.4 | Insurances |
To the extent of the Buyers undertaking set forth in Clause 19.2.1, for all training periods on aircraft, the Buyer shall:
(i) | cause the Seller, its directors, officers, agents, employees, Affiliates and sub-contractors, to be named as additional insureds under the Buyers Comprehensive Aviation Legal Liability insurance policies; and |
(ii) | with respect to the Buyers Hull All Risks and Hull War Risks insurances and Allied Perils (save to the extent such cover is provided by way of a Government indemnity) cause the insurers of the Buyers hull insurance policies to waive all rights of subrogation against the Seller, its directors, officers, agents, employees, Affiliates and sub-contractors, and their respective insurers. |
Any applicable deductible shall be borne by the Buyer.
With respect to the above policies, the Buyer shall furnish to the Seller, [*****] prior to the start of any such training period, certificates of insurance and brokers letters of undertaking from the Buyers insurance broker(s), in English, evidencing the limit of liability cover and period of insurance in a form reasonably acceptable to the Seller certifying that such policies have been endorsed as follows:
(i) | under the Comprehensive Aviation Legal Liability Insurances, the Buyers policies are primary and non-contributory to any insurance maintained by the Seller; |
(ii) | such insurance can only be cancelled or materially altered by the giving of not [*****] may be customarily available in respect of War Risks and Allied Perils) prior written notice thereof to the Seller; and |
(iii) | under any such cover, all rights of subrogation against the Seller, its directors, officers, agents, employees, Affiliates and sub-contractors, and their respective insurers, have been waived to the extent of the Buyers undertaking and specifically referring to Clause 19.2.1 and to this Clause 19.4. |
19.5 | Notice of Claims |
If any claim is made or suit is brought against either party (or its respective directors, officers, agents, employees, Affiliates and sub-contractors) for damages for which liability has been assumed by the other party in accordance with the provisions of this Agreement, the party against which a claim is so made or suit is so brought shall promptly give notice to the other party, and the latter shall (unless otherwise requested by the party against which a claim is so made or suit is so brought, in which case the other party nevertheless shall have the right to) assume and conduct the defence thereof, or effect any settlement which it, in its opinion, deems proper.
20 | TERMINATION |
20.1 | Termination for Insolvency |
In the event that either the Seller or the Buyer:
(a) | makes a general assignment for the benefit of creditors or becomes insolvent; |
(b) | files a voluntary petition in bankruptcy; |
(c) | 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; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(d) | commences under the laws of any competent jurisdiction any proceeding involving its insolvency, bankruptcy, readjustment of debt, liquidation or any other similar proceeding for the relief of financially distressed debtors; |
(e) | becomes the object of any proceeding or action of the type described in (c) or (d) above and such proceeding or action remains undismissed or unstayed for a period of at least [*****]; or |
(f) | is divested of a substantial part of its assets for a period of at least [*****], |
then the other party may, to the full extent permitted by law, by written notice, terminate all or part of this Agreement.
20.2 | Termination for Non-Payment of Predelivery Payments |
If for any Aircraft the Buyer fails to make any Predelivery Payments at the time, in the manner and in the amount specified in Clause 5.3 the Seller may, by written notice, terminate all or part of this Agreement with respect to undelivered Aircraft.
20.3 | Termination for Failure to Take Delivery |
If the Buyer fails to comply with its obligations as set forth under Clause 8 and/or Clause 9, or fails to pay the Final Price of the Aircraft, the Seller shall have the right to put the Buyer on notice to do [*****].
If the Buyer has not cured such default [*****], the Seller may, by written notice, terminate all or part of this Agreement with respect to undelivered Aircraft.
All costs referred to in Clause 9.2.3 and relating to the period between the notified date of delivery (as referred to in Clause 9.2.1) and the date of termination of all or part of this Agreement shall be borne by the Buyer.
20.4 | Termination for Default under other Agreements |
If the Buyer or any of its Affiliates fails to perform or comply with any material obligation expressed to be assumed by it in any other agreement between the Buyer or any of its Affiliates and the Seller or any of its Affiliates and such failure is not remedied [*****], then the Seller may, by written notice, terminate all or part of this Agreement.
20.5 | General |
20.5.1 | To the full extent permitted by law, the termination of all or part of this Agreement pursuant to Clauses 20.1, 20.2, 20.3 and 20.4 shall become effective immediately upon receipt by the relevant party of the notice of termination sent by the other party without it being necessary for either party to take any further action or to seek any consent from the other party or any court having jurisdiction. |
20.5.2 | The right for either party under Clause 20.1 and for the Seller under Clauses 20.2, 20.3, and 20.4 to terminate all or part of this Agreement shall be without prejudice to any other rights and remedies available to such party to seek termination of all or part of this Agreement before any court having jurisdiction pursuant to any failure by the other party to perform its obligations under this Agreement. |
20.5.3 | If the party taking the initiative of terminating this Agreement decides to terminate part of it only, the notice sent to the other party shall specify those provisions of this Agreement which shall be terminated. |
20.5.4 | In the event of termination of this Agreement [*****], the Seller [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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21 | ASSIGNMENTS AND TRANSFERS |
21.1 | Assignments by Buyer |
Except as hereinafter provided, the Buyer may not sell, assign, novate or transfer its rights and obligations under this Agreement to any person without the prior written consent of the Seller.
21.1.1 | Assignments for Predelivery Financing |
The Buyer shall be entitled to assign its rights under this Agreement at any time in order to provide security for the financing of any Predelivery Payments subject to such assignment being in form and substance acceptable to the Seller.
21.1.2 | Assignments for Delivery Financing |
The Buyer shall be entitled to assign its rights under this Agreement at any time in connection with the financing of its obligation to pay the Final Price subject to such assignment being in form and substance acceptable to the Seller.
21.2 | Assignments by Seller |
The Seller may at any time sell, assign, novate or transfer its rights and obligations under this Agreement to any person, provided such sale, assignment or transfer be notified to Buyer and shall not have a material adverse effect on any of Buyers rights and obligations under this Agreement.
21.2.1 | Transfer of Rights and Obligations upon Restructuring |
In the event that the Seller is subject to a corporate restructuring having as its object the transfer of, or succession by operation of law in, all or a substantial part of its assets and liabilities, rights and obligations, including those existing under this Agreement, to a person (the Successor) under the control of the ultimate controlling shareholders of the Seller at the time of that restructuring, for the purpose of the Successor carrying on the business carried on by the Seller at the time of the restructuring, such restructuring shall be completed without consent of the Buyer following notification by the Seller to the Buyer in writing. The Buyer recognises that succession of the Successor to the Agreement by operation of law, which is valid under the law pursuant to which that succession occurs, shall be binding upon the Buyer.
22 | MISCELLANEOUS PROVISIONS |
22.1 | Data Retrieval |
On the Sellers reasonable request, the Buyer shall provide the Seller with all the necessary data, as customarily compiled by the Buyer and pertaining to the operation of the Aircraft, to assist the Seller in making an efficient and coordinated survey of all reliability, maintenance, operational and cost data with a view to monitoring the efficient and cost effective operations of the Airbus fleet worldwide. [*****]
22.2 | Notices |
All notices and requests required or authorized hereunder shall be given in writing either by personal delivery to an authorized representative of the party to whom the same is given or by registered mail (return receipt requested), express mail (tracking receipt requested) or by facsimile to be confirmed by subsequent registered mail and the date upon which any such notice or request is so personally delivered or if such notice or request is given by registered mail, the date upon which it is received by the addressee or, if given by facsimile, the date upon which it is sent with a correct confirmation printout, provided that if such date of receipt is not a Business Day notice shall be deemed to have been received on the first following Business Day, shall be deemed to be the effective date of such notice or request.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Sellers address for notices is:
AIRBUS
Attn. To V. P. Contracts
1 Rond-Point Maurice Bellonte
31707 Blagnac Cedex
France
Buyers address for notices is:
AZUL FINANCE LLC
c/o AZUL LINHAS AÉREAS BRASILEIRAS S.A.
Avenida Marcos Penteado de Ulhôa Rodrigues, 939
Castello Branco Office Park
9th Floor, Barueri
São Paulo 06460-040
Brazil
Attention:
Aircraft Programs Manager
aircraftprograms@voeazul.com.br
or such other address or such other person as the party receiving the notice or request may reasonably designate from time to time.
22.3 | Waiver |
The failure of either party to enforce at any time any of the provisions of this Agreement, or to exercise any right herein provided, or to require at any time performance by the other party of any of the provisions hereof, shall in no way be construed to be a present or future waiver of such provisions nor in any way to affect the validity of this Agreement or any part thereof or the right of the other party thereafter to enforce each and every such provision. The express waiver (whether made one (1) or several times) by either party of any provision, condition or requirement of this Agreement shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
22.4 | Law and Jurisdiction |
22.4.1 | This Agreement shall be governed by and construed in accordance with the laws of England. |
22.4.2 | Any dispute arising out of or in connection with this Agreement, including but not limited to its existence, validity, interpretation, implementation, breach, termination and/or enforcement, shall be within the exclusive jurisdiction of the Courts of England. |
22.5 | Contracts (Rights of Third Parties) Act 1999 |
The parties do not intend that any term of this Agreement shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Agreement.
22.6 | International Supply Contract |
The Buyer and the Seller recognise that this Agreement is an international supply contract which has been the subject of discussion and negotiation, that all its terms and conditions are fully understood by the parties, and that the Specification and price of the Aircraft and the other mutual agreements of the parties set forth herein were arrived at in consideration of, inter alia, all the provisions hereof specifically including all waivers, releases and renunciations by the Buyer set out herein.
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The Buyer and the Seller hereby also agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this transaction.
22.7 | Severability |
In the event that any provision of this Agreement should for any reason be held ineffective, the remainder of this Agreement shall remain in full force and effect. To the extent permitted by applicable law, each party hereto hereby waives any provision of law, which renders any provision of this Agreement prohibited or unenforceable in any respect.
22.8 | Alterations to Contract |
This Agreement (including the annexes, schedules, appendices and Letter Agreements related hereto) contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any previous understandings, commitments or representations whatsoever oral or written in respect thereto. This Agreement shall not be varied except by an instrument in writing of date even herewith or subsequent hereto executed by both parties or by their duly authorised representatives.
22.9 | Language |
All correspondence, documents and any other written matters in connection with this Agreement shall be in English.
22.10 | Counterparts |
This Agreement has been executed in two (2) original copies.
Notwithstanding the above, this Agreement may be executed by the parties in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute one and the same Agreement.
22.11 | Inconsistencies |
In the event of any inconsistency between the terms of this Agreement and the terms contained in either (i) the Specification, or (ii) any other Exhibit, in each such case the terms of this Agreement shall prevail over the terms of the Specification or any other Exhibit. For the purpose of this Clause 22.11, the term Agreement shall not include the Specification or any other Exhibit hereto.
22.12 | Confidentiality |
This Agreement including any Exhibits, other documents or data exchanged between the Buyer and the Seller for the fulfilment of their respective obligations under the Agreement shall be treated by both parties as confidential and shall not be released in whole or in part to any third party except as may be required by law, or to professional advisors for the purpose of implementation hereof.
In particular, both parties agree:
- | not to make any press release concerning the whole or any part of the contents and/or subject matter hereof or of any future addendum hereto without the prior written consent of the other party hereto. |
- | that any and all terms and conditions of the transaction contemplated in this Agreement are strictly [*****] pricing (the Personal Information). The Buyer therefore agrees to enter into consultations with the Seller reasonably in advance of any required disclosure of Personal Information to financial institutions, including operating lessors, investment banks and their agents or other relevant institutions for aircraft sale and leaseback or any other Aircraft or Predelivery Payment financing purposes (the Receiving Party). |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Without prejudice to the foregoing, any disclosure of Personal Information to a Receiving Party shall be subject to written agreement between the Buyer and the Seller, including in particular, but not limited to:
(i) | the contact details of the Receiving Party, |
(ii) | the extent of the Personal Information subject to disclosure, |
(iii) | the Aircraft pricing to be provided to the Receiving Party. |
Furthermore, the Buyer shall use all [*****] efforts to limit the disclosure of the contents of this Agreement to the extent legally permissible in any filing required to be made by the Buyer with any governmental or regulatory agency. The Buyer agrees that prior to any such disclosure or filing, the Seller and the Buyer shall jointly review and agree on the terms and conditions of the document to be filed or disclosed.
The provisions of this Clause 22.12 shall survive any termination of this Agreement for a period of [*****].
22.13 | Representation |
The Buyer represents and warrants in favour of the Seller that since its formation it has not engaged in any business activity or incurred any indebtedness except in respect of (i) activities incidental to its formation and (ii) the transactions contemplated by this Agreement.
22.14 | Covenants |
The Buyer covenants and agrees that it:
(a) shall not create or consent to the creation of any Encumbrance [*****] on any of its assets or properties without the prior written consent of the Seller other than [*****] The Buyer shall promptly take such actions as may be necessary to duly discharge any Encumbrances at any time arising which are not permitted by this Clause 22.14(a );
(b) shall (i) preserve and maintain its existence as a separate legal entity under and in compliance with all applicable laws, (ii) conduct its business in all material respects in accordance with all applicable laws binding on it and (iii) promptly provide the Seller with such financial and other information concerning its affairs as the Seller may from time to time [*****] require in connection with the transactions contemplated by this Agreement;
(c) shall not enter into any business or other activity or voluntarily incur any indebtedness or enter into any contract or agreement with any person other than (i) the business of purchasing the Aircraft and the exercise of rights under, and the performance of obligations to be performed by it pursuant to, this Agreement, (ii) as expressly permitted by this Agreement, (iii) [*****] and (iv) activities incidental to the foregoing;
(d) shall not (i) commence any case, proceeding or other action under any existing or future law of any jurisdiction, within or outside the State of Delaware, relating to bankruptcy, insolvency, reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition or other relief with respect to it or its debts, or (ii) seek appointment of a receiver, trustee, administrator or other similar official for it or for all or any substantial part of its assets, or make a general assignment for the benefit of its creditors; and not take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in, any of the acts set forth above;
(e) shall not, to the extent it may lawfully so agree, consolidate with or merge into any other person or convey, transfer or lease all or any part of its assets to any person, whether in a single transaction or a series of transactions; and
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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(f) shall not amend any provision of its organizational documents without the prior written consent of the Seller.
The Buyer confirms that it has, or will have at the time that the relevant obligations arise, sufficient funding arrangements in place [*****] in order to meet its financial obligations under this Agreement.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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IN WITNESS WHEREOF this Agreement was entered into the day and year first above written.
Agreed and Accepted
For and on behalf of
AZUL FINANCE LLC
/s/ John Rodgerson
By: John Rodgerson
Its: President |
Agreed and Accepted
For and on behalf of
AIRBUS S.A.S.
/s/ John J. Leahy
By: John J. Leahy
Its: Chief Operating Officer, Customers |
Date: October 24, 2014
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EXHIBIT A
EXHIBIT A
SPECIFICATION
The Standard Specifications are contained in a separate folder.
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EXHIBIT A
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT A
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT A
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT A
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT A
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT A
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT A
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT A
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT A
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT B
E X H I B I T B
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EXHIBIT B-1
SPECIFICATION CHANGE NOTICE
(SCN) |
For
SCN Number Issue Dated Page
| |
Title:
Description:
Effect on weight:
Manufacturers Weight Empty change:
Operational Weight Empty change:
Allowable Payload change:
Remarks / References
Specification changed by this SCN
This SCN requires prior or concurrent acceptance of the following SCN (s):
| ||
Price per aircraft
US DOLLARS: AT DELIVERY CONDITIONS:
This change will be effective on AIRCRAFT N° and subsequent.
Provided approval is received by
|
Buyer approval | Seller approval | |||
By:
Date:
|
By:
Date:
|
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EXHIBIT B-1
SPECIFICATION CHANGE NOTICE
(SCN) |
For
SCN Number Issue Dated Page
| |
Specification repercussion:
After contractual agreement with respect to weight, performance, delivery, etc, the indicated part of the specification wording will read as follows:
|
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EXHIBIT B-1
SPECIFICATION CHANGE NOTICE
(SCN)
|
For
SCN Number Issue Dated Page
| |
Scope of change (FOR INFORMATION ONLY)
|
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EXHIBIT B-2
MANUFACTURERS SPECIFICATION CHANGE NOTICE
(MSCN)
|
For
MSCN Number Issue Dated Page | |
Title:
Description:
Effect on weight:
Manufacturers Weight Empty change:
Operational Weight Empty change:
Allowable Payload change:
Remarks / References
Specification changed by this MSCN
|
||
Price per aircraft
US DOLLARS: AT DELIVERY CONDITIONS:
This change will be effective on AIRCRAFT N° and subsequent.
Provided MSCN is not rejected by |
Buyer approval | Seller approval | |||
By:
Date: |
By:
Date: |
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EXHIBIT B-2
MANUFACTURERS SPECIFICATION CHANGE NOTICE
(MSCN)
|
For
MSCN Number Issue Dated Page | |
Specification repercussion:
After contractual agreement with respect to weight, performance, delivery, etc, the indicated part of the specification wording will read as follows:
|
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EXHIBIT B-2
MANUFACTURERS SPECIFICATION CHANGE NOTICE
(MSCN)
|
For
MSCN Number Issue Dated Page | |
Scope of change (FOR INFORMATION ONLY)
|
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EXHIBIT C
PART 1 | AIRFRAME PRICE REVISION FORMULA |
1 | BASE PRICE |
The Airframe Base Price quoted in Clause 3.1 of the Agreement is subject to adjustment for changes in economic conditions as measured by data obtained from the US Department of Labor, Bureau of Labor Statistics, and in accordance with the provisions hereof.
2 | BASE PERIOD |
The Airframe Base Price has been established in accordance with the average economic conditions prevailing in [*****] as defined by [*****] index values indicated hereafter.
3 | INDEXES |
Labor Index: [*****]
The quarterly value released for a certain [*****].
Index code for access on the Web site of the US Bureau of Labor Statistics: [*****].
[*****]
Index code for access on the Web site of the US Bureau of Labor Statistics: [*****].
4 | REVISION FORMULA |
[*****] | [*****] |
[*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
5 | GENERAL PROVISIONS |
5.1 | Roundings |
The Labor Index average and the Material Index average shall be computed to the first decimal. If the next succeeding place is five (5) or more, the preceding decimal place shall be raised to the next higher figure.
Each quotient [*****] and [*****] shall be rounded to the nearest ten-thousandth (4 decimals). If the next succeeding place is five (5) or more, the preceding decimal place shall be raised to the next higher figure.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT C
[*****]
The final price shall be rounded to the nearest whole number (0.5 or more rounded to 1).
5.2 | Substitution of Indexes for Airframe Price Revision Formula |
If:
(i) | the United States Department of Labor substantially revises the methodology of calculation of the Labor Index or the Material Index as used in the Airframe Price Revision Formula, or |
(ii) | the United States Department of Labor discontinues, either temporarily or permanently, such Labor Index or such Material Index, or |
(iii) | the data samples used to calculate such Labor Index or such Material Index are substantially changed; |
the Seller shall select a substitute index for inclusion in the Airframe Price Revision Formula (the Substitute Index).
The Substitute Index shall reflect as closely as possible the actual variance of the Labor Costs or of the material costs used in the calculation of the original Labor Index or Material Index as the case may be.
As a result of the selection of the Substitute Index, the Seller shall make an appropriate adjustment to the Airframe Price Revision Formula to combine the successive utilization of the original Labor Index or Material Index (as the case may be) and of the Substitute Index.
5.3 | Final Index Values |
The Index values as defined in Clause 4 above shall be considered final and no further adjustment to the base prices as revised at Delivery of the Aircraft shall be made after Aircraft Delivery for any subsequent changes in the published Index values.
5.4 | Limitation |
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT C
PART 2 | PROPULSION SYSTEMS PRICE REVISION FORMULA |
CFM INTERNATIONAL
1. | REFERENCE PRICE OF THE PROPULSION SYSTEMS |
The Reference Price for a set of [*****] CFM INTERNATIONAL LEAP-[*****] Propulsion Systems is
USD [*****]
(US Dollars [*****])
The Reference Price for a set of [*****] CFM INTERNATIONAL LEAP-[*****] Propulsion Systems is
USD [*****]
(US Dollars [*****])
The above Reference Prices are subject to adjustment for changes in economic conditions as measured by data obtained from the US Department of Labor, Bureau of Labor Statistics and in accordance with the provisions of Clauses 4 and 5 hereof.
2. | REFERENCE PERIOD |
The Reference Price has been established in accordance with the economic conditions prevailing for a theoretical delivery in [*****] as defined by CFM INTERNATIONAL by the [*****].
3. | INDEXES |
Labor Index: [*****].
The quarterly value released for a certain [*****].
Index code for access on the Web site of the US Bureau of Labor Statistics: [*****].
[*****]
Index code for access on the Web site of the US Bureau of Labor Statistics: [*****].
4. | REVISION FORMULA |
[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] [*****]
[*****] [*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT C
[*****] [*****]
[*****] [*****]
5. | GENERAL PROVISIONS |
5.1 | Roundings |
(i) | The Material index average [*****] shall be rounded to the nearest second decimal place and the labor index average [*****] shall be rounded to the nearest first decimal place. |
(ii) | [*****] shall be rounded to the nearest second decimal place. |
(iii) | The final factor [*****] shall be rounded to the nearest third decimal place. |
If the next succeeding place is five (5) or more, the preceding decimal place shall be raised to the next higher figure. After final computation [*****] shall be rounded to the nearest whole number (0.5 rounds to 1).
5.2 | Final Index Values |
The revised Reference Price at the date of Aircraft Delivery shall not be subject to any further adjustments in the indexes.
5.3 | Interruption of Index Publication |
If the US Department of Labor substantially revises the methodology of calculation or discontinues any of these indexes referred to hereabove, the Seller shall reflect the substitute for the revised or discontinued index selected by CFM INTERNATIONAL, such substitute index to lead in application to the same adjustment result, insofar as possible, as would have been achieved by continuing the use of the original index as it may have fluctuated had it not been revised or discontinued.
Appropriate revision of the formula shall be made to accomplish this result.
5.4 | Annulment of the Formula |
Should the above [*****] provisions become null and void by action of the US Government, the Reference Price shall be adjusted due to increases in the costs of labor and materiel which have occurred from the period represented by the applicable Reference [*****] to the [*****] prior to the month of Aircraft Delivery.
5.5 | Limitation |
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT D
CERTIFICATE OF ACCEPTANCE
In accordance with the terms of [clause [●]] of the purchase agreement dated [day] [month] [year] and made between Azul Finance LLC (the Customer) and Airbus S.A.S. as amended and supplemented from time to time (the Purchase Agreement), the technical acceptance tests relating to one Airbus A3[●]-[●] aircraft, bearing manufacturers serial number [●], and registration mark [●](the Aircraft) have taken place in [Blagnac/Hamburg].
In view of said tests having been carried out with satisfactory results, the Customer, [as agent of [insert the name of the lessor/SPC] (the Owner) pursuant to the [purchase agreement assignment] dated [day] [month] [year], between the Customer and the Owner] hereby approves the Aircraft as being in conformity with the provisions of the Purchase Agreement and accepts the Aircraft for delivery in accordance with the provisions of the Purchase Agreement.
Such acceptance shall not impair the rights that may be derived from the warranties relating to the Aircraft set forth in the Purchase Agreement.
Any right at law or otherwise to revoke this acceptance of the Aircraft is hereby irrevocably waived.
IN WITNESS WHEREOF, the Customer, [as agent of the Owner] has caused this instrument to be executed by its duly authorised representative this day of [month], [year] in [Blagnac/Hamburg].
CUSTOMER [as agent of OWNER]
Name:
Title:
Signature:
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EXHIBIT E
BILL OF SALE
Know all men by these presents that Airbus S.A.S., a Société par Actions Simplifiée existing under French law and having its principal office at 1 rond-point Maurice Bellonte, 31707 Blagnac Cedex, FRANCE (the Seller), is this [day] [month] [year] the owner of the title to the following airframe (the Airframe), the [engines/propulsion systems] as specified (the [Engines/Propulsion Systems]) and [all appliances, components, parts, instruments, accessories, furnishings, modules and other equipment of any nature], [excluding buyer furnished equipment (BFE),] incorporated therein, installed thereon or attached thereto on the date hereof (the Parts):
AIRFRAME: | [ENGINES/PROPULSION SYSTEMS]: | |
AIRBUS Model A3[●]-[●] | [Insert name of engine or propulsion system manufacturer] Model [●] | |
MANUFACTURERS | ENGINE SERIAL NUMBERS: | |
SERIAL NUMBER: [●] | LH: [●] | |
RH: [●] | ||
REGISTRATION MARK: [●] |
[and has] such title to the BFE as was acquired by it from [insert name of vendor of the BFE] pursuant to a bill of sale dated [month] [year] (the BFE Bill of Sale)].
The Airframe, [Engines/Propulsion Systems] and Parts are hereafter together referred to as the Aircraft.
The Seller does this day of [month] [year], sell, transfer and deliver all of its above described rights, title and interest in and to the Aircraft [and the BFE] to the following entity and to its successors and assigns forever, said Aircraft [and the BFE] to be the property thereof:
[Insert Name/Address of Buyer]
(the Buyer)
The Seller hereby warrants to the Buyer, its successors and assigns that it has [(i)] good and lawful right to sell, deliver and transfer title to the Aircraft to the Buyer and that there is conveyed to the Buyer good, legal and valid title to the Aircraft, free and clear of all liens, claims, charges, encumbrances and rights of others and that the Seller will warrant and defend such title forever against all claims and demands whatsoever [and (ii) such title to the BFE as Seller has acquired from [insert name of vendor of the BFE] pursuant to the BFE Bill of Sale].
This Bill of Sale shall be governed by and construed in accordance with the laws of England.
IN WITNESS WHEREOF, the undersigned has caused this instrument to be executed by its duly authorized representative this day of [month], [year] in [Blagnac/Hamburg].
AIRBUS S.A.S.
Name:
Title:
Signature:
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EXHIBIT F
SERVICE LIFE POLICY
LIST OF ITEMS
SELLER SERVICE LIFE POLICY
1 | The Items covered by the Service Life Policy pursuant to Clause 12.2 are those Seller Items of primary and auxiliary structure described hereunder. |
2 | WINGS - CENTER AND OUTER WING BOX (LEFT AND RIGHT) |
2.1 | Wing Structure |
2.1.1 | [*****] |
2.1.2 | [*****] |
2.1.3 | [*****] |
2.2 | Fittings |
2.2.1 | [*****] |
2.2.2 | [*****] |
2.2.3 | [*****] |
2.2.4 | [*****] |
2.3 | Auxiliary Support Structure |
2.3.1 | [*****] |
2.3.1.1 | [*****] |
2.3.1.2 | [*****] |
2.3.2 | [*****] |
2.3.2.1 | [*****] |
2.3.2.2 | [*****] |
2.3.3 | [*****] |
2.3.3.1 | [*****] |
2.3.3.2 | [*****] |
2.4 | [*****] |
2.4.1 | [*****] |
2.4.1.1 | [*****] |
2.4.1.2 | [*****] |
2.4.1.3 | [*****] |
2.4.1.4 | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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3 | FUSELAGE |
3.1 | [*****] |
3.1.1 | [*****] |
3.1.2 | [*****] |
3.1.3 | [*****] |
3.1.4 | [*****] |
3.1.5 | [*****] |
3.1.6 | [*****] |
3.1.7 | [*****] |
3.1.8 | [*****] |
3.2 | [*****] |
3.2.1 | [*****] |
3.2.2 | [*****] |
3.2.3 | [*****] |
4 | STABILIZERS |
4.1 | Horizontal Stabilizer Main Structural Box |
4.1.1 | [*****] |
4.1.2 | [*****] |
4.1.3 | [*****] |
4.1.4 | [*****] |
4.1.5 | [*****] |
4.1.5.1 | [*****] |
4.1.5.2 | [*****] |
4.2 | Vertical Stabilizer Main Structural Box |
4.2.1 | [*****] |
4.2.2 | [*****] |
4.2.3 | [*****] |
4.2.4 | [*****] |
4.2.5 | [*****] |
4.2.5.1 | [*****] |
4.2.5.2 | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT F
5 | EXCLUSIONS |
Bearing and roller assemblies, bearing surfaces, bushings, fittings other than those listed above, access and inspection doors, including manhole doors, latching mechanisms, all system components, commercial interior parts, insulation and related installation and connecting devices are excluded from this Seller Service Life Policy.
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EXHIBIT G
TECHNICAL DATA & SOFTWARE
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EXHIBIT G
TECHNICAL DATA & SOFTWARE
Where applicable, data shall be established in general compliance with the ATA 100 Information Standards for Aviation Maintenance and the applicable provisions for digital standard of ATA Specification 2200 (iSpec2200).
The Seller shall provide the Buyer with the following Technical Data (or such other equivalent Technical Data as may be applicable at the time of their provision to the Buyer).
1- | Airbus Flight Operations Data Package |
The Airbus Flight Operations Data Package encompasses the following customised operational manuals required to operate the Aircraft:
| Flight Manual (FM), |
| Flight Crew Operating Manual (FCOM), |
| Flight Crew Training Manual (FCTM), |
| Quick Reference Handbook (QRH), |
| Cabin Crew Operating Manual (CCOM), |
| Master Minimum Equipment List (MMEL), |
| Weight and Balance Manual (WBM). |
1.1- | Format of Data |
The Flight Operations Data Package shall be available on-line through the Sellers customer portal AirbusWorld in eXtensible Mark-up Language (XML), for downloading and further data processing and customization, and/or in Portable Document Format (PDF), as applicable.
In addition, the Seller shall make available [*****] QRH sets per Aircraft in paper format.
Upon the Buyers request, a back-up copy of the manuals of the Flight Operations Data Package may be provided off-line on CD or DVD.
1.2- | Availability Schedule |
The Airbus Flight Operations Data Package, reflecting the Buyers Aircraft configuration, shall be available to the Buyer [*****] of the first Aircraft.
A preliminary customized MMEL shall be available [*****] Aircraft.
The final issue of WBM and FM shall be made available [*****] Aircraft Delivery.
2- | Airbus Maintenance Technical Data Package |
The Airbus Maintenance Technical Data Package encompasses the following customised maintenance data required for on-aircraft maintenance to ensure the continued airworthiness of the Aircraft:
| Aircraft Maintenance Manual (AMM), |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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| Aircraft Wiring Manual (AWM), |
| Aircraft Schematics Manual (ASM), |
| Aircraft Wiring Lists (AWL), |
| Illustrated Part Catalog (IPC), |
| Trouble Shooting Manual (TSM). |
2.1- | Format of Data |
The Airbus Maintenance Technical Data Package shall be available in the Airn@v/Maintenance module of the AirN@v software and shall be accessible on-line through the Sellers customer portal AirbusWorld.
In addition, if so requested by the Buyer, the corresponding raw data in Standard Generalized Mark-up Language (SGML) format shall also be made available for download from the Sellers customer portal AirbusWorld.
Upon the Buyers request, a back-up copy of the data of the Airbus Maintenance Technical Data Package may be provided off-line on CD or DVD.
2.2- | Availability Schedule |
The Airbus Maintenance Technical Data Package, reflecting the Buyers Aircraft configuration, shall be available to the Buyer [*****] Aircraft.
Upon the Buyers request, where applicable, preliminary customized maintenance data may be available [*****] Aircraft.
3- | Non-customized Technical Data |
Non-customised Technical Data, provided as part of the Maintenance Technical Data Package, shall be made available to the Buyer either in the corresponding Airn@v software module, as detailed in Clause 14.9 of the Agreement, or in PDF format, as applicable.
The Technical Data belonging to each AirN@v module and/or available in PDF format shall be as listed in the Sellers Customer Services Catalog current at the time of the delivery of the Technical Data.
Non-customised Technical Data shall be made available to the Buyer in accordance with a schedule to be mutually agreed between the Buyer and Seller [*****] Aircraft.
4- | Additional Technical Data |
4.1 | In addition to the Flight Operations Data Package and the Maintenance Technical Data Package, the Seller shall provide, at Delivery of each Aircraft, on-line access to the Aircraft mechanical drawings that cover installation of structure and systems fitted on the Buyers Aircraft at Delivery. |
4.2 | Within [*****] after the Delivery of each Aircraft, the Seller shall provide: |
| the weighing report, for integration into the WBM by the Buyer, |
| the Electrical Load Analysis (ELA), in a format allowing further updating by the Buyer. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Exhibit H
E X H I B I T H
M A T E R I A L S U P P L Y AND S E R V I C E S
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EXHIBIT H
1. | GENERAL |
1.1 | Scope |
1.1.1 | This Exhibit H defines the terms and conditions for the support and services that may be offered by the Seller to the Buyer in the area of Material, as such term in defined in Article 1.2.1 hereafter. |
1.1.2 | References made to Articles shall refer to articles of this Exhibit H unless otherwise specified. |
1.1.3 | Notwithstanding the definition set forth in Clause 12.3.1 of the Agreement and for the exclusive purpose of this Exhibit H, the term Supplier shall mean any supplier providing any of the Material listed in Article 1.2.1 hereunder (each a Supplier Part). |
1.1.4 | The term SPEC 2000 as used throughout this Exhibit H means the E-Business Specification for Materiels Management document published by the Air Transport Association of America. |
1.2 | Material Categories |
1.2.1 | Material covered by this Exhibit H is classified according to the following categories (hereinafter individually and collectively referred to as Material): |
(i) | Seller Parts (corresponding to Sellers proprietary Material bearing a part number of the Seller or Material for which the Seller has the exclusive sales rights); |
(ii) | Supplier Parts classified as Repairable Line Maintenance Parts (as defined in SPEC 2000); |
(iii) | Supplier Parts classified as Expendable Line Maintenance Parts (as defined in SPEC 2000); |
(iv) | Seller and/or Supplier ground support equipment and specific-to-type tools. |
1.2.2 | Propulsion Systems, engine exchange kits, their accessories and parts, including associated parts, are not covered under this Exhibit H and shall be subject to direct agreements between the Buyer and the relevant Propulsion System Manufacturer. |
1.3 | Term |
During a period commencing on the date hereof and continuing as long as [*****] aircraft of the model of the Aircraft are operated in commercial air transport service, of which [*****] (the Term), the Seller shall maintain, or cause to be maintained, a reasonable stock of [*****].
The Seller shall use its reasonable efforts to obtain a similar service from all Suppliers of Supplier Parts as set forth under Articles 1.2.1 (ii) and (iii) and which were originally installed on the Aircraft at Delivery.
1.4 | Airbus Material Center |
1.4.1 | The Seller has established its material headquarters in Hamburg, Germany (the Airbus Material Center) and shall, during the Term, maintain, or have maintained on its behalf, a central store of Seller Parts. |
1.4.2 | The Airbus Material Center is operated twenty-four (24) hours per day, seven (7) days per week. |
1.4.3 | For efficient and prompt deliveries, the Seller and its Affiliates operate a global network of regional satellite stores (Regional Satellite Stores). |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT H
The Seller reserves the right to effect deliveries from the Airbus Material Center, from any of the Regional Satellite Stores or from any other production or Suppliers facilities.
1.4.4 | The Buyer may also purchase, subject to the signature of specific terms and conditions, spare parts from the Sellers designee, Airbus Americas Customer Services, in Ashburn, United States of America. |
1.5 | Customer Order Desk |
The Seller operates a Customer Order Desk, the main functions of which are:
(i) | Management of order entries for all priorities, including Aircraft On Ground (AOG); |
(ii) | Management of order changes and cancellations; |
(iii) | Administration of Buyers routing instructions; |
(iv) | Management of Material returns; |
(v) | Clarification of delivery discrepancies; |
(vi) | Issuance of credit and debit notes. |
The Buyer hereby agrees to communicate its orders for Material to the Customer Order Desk either in electronic format (SPEC 2000) or via the Internet.
1.6 | Material and Logistics Support Representative |
The Seller shall assign one (1) material and logistics support representative based at the Airbus Material Center to assist with, and coordinate, material support matters between the Seller and the Buyer during the Term.
1.7 | Agreements of the Buyer |
1.7.1 | During the Term, the Buyer agrees to purchase from the Seller or its licensee(s) the Seller Parts required for the Buyers own needs. |
1.7.2 | Notwithstanding the foregoing, the Buyer may resort to the stocks of Seller Parts of other operators of the same aircraft type or model or purchase Seller Parts from said operators or from distributors, provided said Seller Parts were originally designed by the Seller and manufactured by the Seller or its licensees. |
1.7.3 | [*****] |
(i) | [*****] |
(ii) | [*****] |
(iii) | [*****] |
1.7.4.1 | [*****] |
1.7.4.2 | [*****] |
1.7.4.3 | [*****] |
1.7.4.4 | [*****] |
2. | INITIAL PROVISIONING |
2.1 | Period |
The initial provisioning period commences with the Pre-Provisioning Meeting, as defined in Article 2.2.1 below, and expires on the [*****] after Delivery of the last Aircraft firmly ordered under the Agreement (Initial Provisioning Period).
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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2.2 | Pre-Provisioning Meeting |
2.2.1 | The Seller shall organize a pre-provisioning meeting (the Pre-Provisioning Meeting) at the Airbus Material Center, or any other location as may be mutually agreed upon, for the purpose of defining an acceptable schedule and working procedure for the preparation of the initial issue of the Provisioning Data and the Initial Provisioning Conference referred to in Articles 2.3 and 2.4 below. |
During the Pre-Provisioning Meeting, the Seller shall familiarize the Buyer with the provisioning processes, methods and formulae of calculation and documentation.
2.2.2 | The Pre-Provisioning Meeting shall take place no later than [*****] prior to Scheduled Delivery Month of the first Aircraft. The date of the meeting shall be mutually agreed upon, allowing a minimum preparation time of [*****] for the Initial Provisioning Conference. |
2.3 | Initial Provisioning Conference |
The Seller shall organize an initial provisioning conference at the Airbus Material Center (the Initial Provisioning Conference), the purpose of which shall be to define the agreed material scope and working procedures to accomplish the initial provisioning of Material (hereinafter Initial Provisioning).
Such Initial Provisioning Conference shall take place at the earliest [*****] after Aircraft Manufacturer Serial Number allocation or Contractual Definition Freeze, whichever occurs last and latest [*****] before the Scheduled Delivery Month of the first Aircraft.
2.4 | Provisioning Data |
2.4.1 | Provisioning data generally in accordance with SPEC 2000, Chapter 1, for Material defined in Articles 1.2.1 (i) through 1.2.1 (iii) (Provisioning Data) shall be supplied by the Seller to the Buyer in English language, in a format and timeframe to be mutually agreed upon during the Pre-Provisioning Meeting. |
2.4.1.1 | Unless a longer revision cycle has been mutually agreed upon, the Provisioning Data shall be revised every [*****] up to the end of the Initial Provisioning Period. |
2.4.1.2 | The Seller shall ensure that Provisioning Data is provided to the Buyer in due time to give the Buyer sufficient time to perform any necessary evaluation and allow the on-time delivery of any ordered Material. |
2.4.1.3 | Provisioning Data generated by the Seller and supplied to the Buyer shall comply with the configuration of the Aircraft as documented [*****] before the date of issue. |
This provision shall not cover:
(i) | Buyer modifications not known to the Seller, |
(ii) | other modifications not approved by the Sellers Aviation Authorities. |
2.4.2 | Supplier-Supplied Data |
Provisioning Data corresponding to Supplier Parts (both initial issue and revisions) shall be transmitted to the Buyer either through the Seller and/or the corresponding Supplier; it is however agreed and
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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understood by the Buyer that the Seller shall not be responsible for the substance, accuracy and/or quality of such data. Such Provisioning Data shall be provided in either SPEC 2000 format or any other mutually agreed format. The Buyer shall specify in writing to the Seller the requested Provisioning Data format at the time of the Initial Provisioning Conference.
2.4.3 | Supplementary Data |
The Seller shall provide the Buyer with data supplementary to the Provisioning Data. This shall include local manufacture tables, ground support equipment, specific-to-type tools and a pool item candidate list.
2.5 | Commercial Offer |
Upon the Buyers request, the Seller shall submit a commercial offer for Material mutually agreed as being Initial Provisioning Material.
2.6 | Delivery of Initial Provisioning Material |
2.6.1 | During the Initial Provisioning Period, Initial Provisioning Material shall conform to the latest known configuration standard of the Aircraft for which such Material is intended and to the Provisioning Data transmitted by the Seller. |
2.6.2 | The delivery of Initial Provisioning Material shall take place according to the conditions specified in the commercial offer mentioned in Article 2.5 above. Such commercial offer shall include a reasonable lead time. |
2.7 | Buy-Back Period and Buy-Back of Initial Provisioning Surplus Material |
a) | The Buy-Back Period is defined as the period starting [*****]. |
b) | At any time during the Buy-Back Period, the Buyer [*****]. |
c) | [*****] shall be eligible for Buy-Back provided: |
i) | [*****] |
ii) | [*****] |
iii) | [*****] |
iv) | [*****] |
v) | [*****] |
vi) | [*****] |
vii) | [*****] |
d) | If [*****] is accepted for Buy-Back, the Seller shall [*****]: |
| [*****] |
| [*****] |
e) | [*****] |
f) | [*****] |
g) | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT H
3. | OTHER MATERIAL SUPPORT |
3.1 | Replenishment and Delivery |
3.1.1 | General |
For the purpose of clarification, it is expressly stated that the provisions of Article 3.1.2 do not apply to Initial Provisioning Material and Provisioning Data as described in Article 2.
3.1.2 | Lead times |
In general, lead times shall be in accordance with the provisions of the latest edition of the World Airlines and Suppliers Guide.
3.1.2.1 | Seller Parts as per Article 1.2.1 (i) shall be dispatched within the lead times published by the Seller. |
Lead times for Seller Parts as per Article 1.2.1 (i), which are not published by the Seller, shall be quoted upon request.
3.1.2.2 | Material defined in Articles 1.2.1 (ii) through 1.2.1 (iv) can be dispatched within the Suppliers lead time augmented by the Sellers own order and delivery administration time. |
3.1.3 | Expedite Service |
The Seller shall provide a twenty-four (24) hours a day / seven (7) days a week expedite service to provide for the supply of critically required parts (the Expedite Service).
3.1.3.1 | The Expedite Service is operated in accordance with the World Airlines and Suppliers Guide and the Seller shall notify the Buyer of the action taken to satisfy an expedite order received from the Buyer within: |
(i) | [*****] after receipt of an AOG order; the Seller will make all reasonable effort to ship within four (4) hours; |
(ii) | [*****] after receipt of a critical order (imminent AOG or work stoppage); |
(iii) | [*****] after receipt of an expedite order (urgent stock replenishment). |
3.1.3.2 | In exceptional AOG circumstances, should the Buyer be unable to send a written order for reasons beyond his control, the Seller may deliver the Material after a telephone call, provided a purchase order is sent to the Seller by [*****]. Should the Buyer fail to send such purchase order, the Seller reserves the right to refuse any subsequent purchase orders without receipt of a firm written purchase order. |
3.1.4 | Shortages, Overshipments, Non-Conformity in Orders |
3.1.4.1 | The Buyer shall, within [*****] after delivery of Material pursuant to a purchase order, advise the Seller: |
(i) | of any alleged shortages or overshipments; |
(ii) | of any non-conformities of delivered Material. |
In the event of the Buyer not having advised the Seller of any such alleged shortages, overshipments or non-conformities within the above-defined period, the Buyer shall be deemed to have accepted the delivery.
3.1.4.2 | In the event of the Buyer reporting an overshipment or non-conformity to the order within the period defined in Article 3.1.4.1 the Seller shall, if the Seller recognizes such overshipment or non-conformity, |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT H
either replace the concerned Material or credit the Buyer for the returned Material, if the Buyer chooses to return the Material subject of an overshipment or non-conformity. In such case, [*****]. |
3.1.5 | Delivery Terms |
Material shall be delivered to the Buyer as follows:
(i) | Free Carrier (FCA) Airbus Material Center; |
(ii) | Free Carrier (FCA) Sellers Regional Satellite Stores; |
(iii) | Free Carrier (FCA) Sellers or Suppliers facility for deliveries from any other Seller or Supplier facilities. |
The term Free Carrier (FCA) is as defined in the Incoterms 2010 publication issued by the International Chamber of Commerce.
3.1.6 | Packaging |
All Material shall be packaged in accordance with ATA 300 Specification.
3.1.7 | Cessation of Deliveries |
The Seller reserves the right to restrict, stop or otherwise suspend deliveries if the Buyer fails to meet its obligations defined in Articles 5.2 through 5.3.
3.2 | Seller Parts Leasing |
The Seller offers the Buyer the option to lease certain Seller Parts as listed in the Customer Services Catalog. The terms and conditions applicable to such service shall be as set forth in the then current Customer Services Catalog.
3.3 | Tools and Ground Support Equipment |
The Seller offers for sale and/or loan a range of ground support equipment and specific-to-type tools, as defined in 1.2.1 (iv).
The terms and conditions applicable to such service shall be as set forth in the then current Customer Services Catalog.
3.4 | Seller Parts Repair |
The Seller may offer the Buyer a service whereby the Seller would manage the repair of Seller Parts as defined in Article 1.2.1 (i).
The terms and conditions applicable to such service shall be as set forth in the then current Customer Services Catalog.
4 | WARRANTIES |
4.1 | Seller Parts |
Subject to the limitations and conditions as hereinafter provided, the Seller warrants to the Buyer that all Seller Parts as per Article 1.2.1 (i) shall at delivery to the Buyer:
(i) | be free from defects in material. |
(ii) | be free from defects in workmanship, including without limitation processes of manufacture. |
(iii) | be free from defects arising from failure to conform to the applicable specification for such part. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT H
4.1.1 | Warranty Period |
4.1.1.1 | The warranty period for Seller Parts is [*****] for new Seller Parts and [*****] for used Seller Parts from delivery of such parts to the Buyer. |
4.1.1.2 | Whenever any Seller Part, which contains a defect for which the Seller is liable under Clause 4.1, has been corrected, replaced or repaired pursuant to the terms of this Clause 4.1, the period of the Sellers warranty with respect to such corrected, repaired or replacement Seller Part, whichever the case may be, shall be the remaining portion of the original warranty period or [*****], whichever is longer. |
4.1.2 | Buyers Remedy and Sellers Obligation |
The Buyers remedy and Sellers obligation and liability under this Article 4.1 are limited to the repair, replacement or correction, [*****], of any Seller Part that is defective.
The Seller may alternatively furnish to the Buyers account with the Seller [*****].
The provisions of Clauses 12.1.5 through 12.1.11 of the Agreement shall apply to this Article 4.1 of this Exhibit H.
4.2 | Supplier Parts |
With respect to Supplier Parts to be delivered to the Buyer under this Exhibit H, the Seller agrees to transfer to the Buyer the benefit of any warranties, which the Seller may have obtained from the corresponding Suppliers and the Buyer hereby agrees that it shall accept the same.
4.3 | Waiver, Release and Renunciation |
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER (AS DEFINED HEREIN FOR THE PURPOSES OF THIS EXHIBIT H) AND REMEDIES OF THE BUYER SET FORTH IN THIS ARTICLE 4 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE BUYER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE SELLER AND RIGHTS, CLAIMS AND REMEDIES OF THE BUYER AGAINST THE SELLER, EXPRESS OR IMPLIED, ARISING BY LAW, CONTRACT OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT OF ANY KIND, IN ANY MATERIAL, LEASED PART AND/OR SERVICES DELIVERED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO:
A. | ANY WARRANTY AGAINST HIDDEN DEFECTS; |
B. | ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; |
C. | ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OR TRADE; |
D. | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER IN CONTRACT OR IN TORT, WHETHER OR NOT ARISING FROM THE SELLERS NEGLIGENCE, ACTUAL OR IMPUTED; AND |
E. | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, MATERIAL, LEASED PART, SOFTWARE, DATA OR SERVICES DELIVERED UNDER THIS AGREEMENT, FOR LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT H
PROVIDED THAT IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE THE REMAINDER OF THIS AGREEMENT SHALL REMAIN IN FULL FORCE AND EFFECT.
FOR THE PURPOSES OF THIS ARTICLE 4.3, THE SELLER SHALL BE UNDERSTOOD TO INCLUDE THE SELLER, ANY OF ITS SUPPLIERS AND SUBCONTRACTORS AND ITS AFFILIATES.
5. | COMMERCIAL CONDITIONS |
5.1 | Price |
5.1.1 | All Material prices shall be quoted in accordance with the delivery terms set forth under Article 3.1.5. |
5.1.2 | Notwithstanding the provisions of Article 2.5, all prices shall be the Sellers sales prices valid on the date of receipt of the order (subject to reasonable quantities and delivery time) and shall be expressed in US Dollars. |
5.1.3 | The prices of Seller Parts shall be as set forth in the then current Sellers Spare Parts Price Catalog and shall be firm for each calendar year. The Seller however reserves the right to revise the prices of said Seller Parts during the course of the calendar year in case of any of the following: |
(i) | significant revision in the manufacturing costs and purchase price of materials; |
5.1.4 | The Sellers prices for all other Material shall be the prices published by the Seller on the date of receipt of the order. |
Prices that are not published by the Seller shall be quoted upon request.
The Seller however reserves the right to revise the prices for all other Material in case of any significant error in the estimation or expression of any price.
5.2 | Payment Procedures and Conditions |
All payment under this Exhibit H shall be made in accordance with the terms and conditions set forth in the then current Customer Services Catalog.
5.3 | Title |
With the exception of Material to be supplied under Article 3.2 above, title to any Material purchased under this Exhibit H shall remain with the Seller until full payment of the invoices and interest thereon, if any, has been received by the Seller.
The Buyer hereby undertakes that Material, title to which has not passed to the Buyer, shall be kept free from any debenture or mortgage or any similar charge or claim in favour of any third party.
6. | EXCUSABLE DELAY |
Clauses 10.1 and 10.2 of the Agreement shall apply, mutatis mutandis, to all Material support and services provided under this Exhibit H.
7. | TERMINATION OF MATERIAL PROCUREMENT COMMITMENTS |
7.1 | In the event of the Agreement being terminated with respect to any Aircraft due to causes provided for in Clauses 10, 11 or 20 of the Agreement, such termination may also affect the terms of this Exhibit H to the extent set forth in Article 7.2 below. |
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7.2 | Any termination under Clauses 10, 11 or 20 of the Agreement shall discharge the parties of all obligations and liabilities hereunder with respect to undelivered spare parts, services, data or other items to be purchased hereunder and which are applicable to those Aircraft for which the Agreement has been terminated. Unused Material in excess of the Buyers requirements due to such Aircraft cancellation may be repurchased by the Seller, at the Sellers option, as provided for in Article 2.7. |
8. | INCONSISTENCY |
In the event of any inconsistency between this Exhibit H and the Customer Services Catalog or any order placed by the Buyer, this Exhibit H shall prevail to the extent of such inconsistency.
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EXHIBIT I
EXHIBIT I
LICENSES AND ON LINE SERVICES
Part 1 | END-USER LICENSE AGREEMENT FOR AIRBUS SOFTWARE |
Part 2 | GENERAL TERMS AND CONDITIONS OF ACCESS TO AND USE OF AIRBUSWORLD |
Part 3 | END-USER SUBLICENSE AGREEMENTS FOR SUPPLIER SOFTWARE |
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EXHIBIT I
PART 1
END-USER LICENSE AGREEMENT FOR AIRBUS SOFTWARE
1 | DEFINITIONS |
For the purposes of this end-user license agreement for Airbus software (the Software License) the following definitions shall apply:
Agreement means the Purchase Agreement of even date herewith entered into between the Licensee and the Licensor covering the purchase and sale of the Aircraft subject thereof.
Airbus Software means each of the Licensors proprietary products including Composite Work, configurations, processes, rules (together with any related documentation), as well as any modifications, enhancements or extensions thereto as may be provided by the Licensor from time to time. The Airbus Software shall be supplied in machine-readable code form only, for use in connection with the Aircraft or operations related to the Aircraft. The Airbus Software shall be either On Board Certified Software or Software Products. For the avoidance of doubt, this Software License does not apply to (i) open source software contained in the Airbus Software, if any, and it is hereby acknowledged and agreed by both parties hereto that such open source software is independently distributed on an as is basis under the respective license terms therefor, and that the Licensor disclaims any liability in relation to such open source software, or (ii) any proprietary third party software that the Licensor purchases or licenses from any third party and delivers to the Licensee, either as a sublicense or as a direct license from such third party.
Aircraft means, individually or collectively, the Aircraft subject of the Agreement.
Composite Work means the package composed of various elements, such as
database(s), software or data, and which necessitates the use of the Airbus Software.
Licensee means the Buyer under the Agreement.
Licensor means the Seller under the Agreement.
On Board Certified Software means those Airbus Part 125 and/or FAR 125 certified software that are installed on board the Aircraft and bear a part number of the Licensor, excluding any software embedded in any component, furnishing or equipment installed on the Aircraft and itself bearing a part number.
Permitted Purpose means use of the Airbus Software by the Licensee for its own internal business needs, solely in conjunction with the Aircraft and in particular pertaining to (i) operation of the Aircraft; (ii) on ground operational support of the Aircraft; or (iii) related authorized customization of software.
Software Product(s) means either those Airbus Software intended to be used on ground at the Licensees facilities or Airbus Software that are installed on board the Aircraft and that are not Part 125 and/or FAR 125 certified - whether or not bearing a part number of the Licensor - excluding any software embedded in any component, furnishing or equipment installed on the Aircraft and itself bearing a part number.
Update(s) means any update(s) or replacement(s) to the Airbus Software licensed hereunder, which the Licensor, at its discretion, makes generally available to the Licensee.
User Guide means the documentation, which may be in electronic format, designed to assist the Licensee in using the Airbus Software.
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Capitalized terms used herein and not otherwise defined in this Software License shall have the meaning assigned thereto in the Agreement.
2 | LICENSE |
In consideration of the purchase by the Licensee of the Aircraft, the Licensee is hereby granted a worldwide and non-exclusive right to use the Airbus Software, for a Permitted Purpose. The Licensor shall remain the owner of all intellectual property rights in the Airbus Software. There shall be one license encompassing all Airbus Software granted in respect of each Aircraft purchased by the Licensee.
Notwithstanding the foregoing, license rights regarding the use of Software Products may be subject to specific commercial conditions and to the payment of specific fees relating to such Software Products.
The Licensee hereby acknowledges that it is aware that certain Airbus Software subject of this Software License may incorporate some third party software or open source software components. The Licensee hereby agrees to be bound by the licensing terms and conditions applicable to such third party software and made available by the Licensor through AirbusWorld.
3 | ASSIGNMENT AND DELEGATION |
3.1 | Assignment |
3.1.1 | On Board Certified Software |
The Licensee may [*****] assign or otherwise transfer all or part of its rights pertaining to any On Board Certified Software under this Software License only as part of, and to the extent of, a sale, transfer or lease of each Aircraft on which such On Board Certified Software is installed. The Licensee shall assign as many Software Licenses as [*****] and shall retain all other Software Licenses attached to any Aircraft that the Licensee continues to operate.
In the event of any such assignment or transfer, the Licensee shall transfer the copies of the Airbus Software attached to the sold, transferred or leased Aircraft (including all component parts, media, any upgrades or backup copies and, if applicable, certificate(s) of authenticity), except as otherwise instructed by the Licensor.
3.1.2 | Software Products |
Save as otherwise set forth in the Agreement, the right to use any Software Product is personal to the Licensee, for its own internal use, and is non-transferable, except with the Licensors prior written consent, in which case the Licensee shall cause the assignee or sub-licensee to agree to the terms of this Software License.
3.2 | Delegation |
Without prejudice to Article 6 (a) hereof, in the event of the Licensee intending to designate a maintenance and repair organization or a third party to perform the maintenance of the Aircraft or to perform data processing on its behalf (each a Third Party), the Licensee shall notify the Licensor of such intention prior to any disclosure of this Software License and/or the Airbus Software Services to such Third Party.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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The Licensee hereby undertakes [*****] to cause such Third Party to agree to be bound by the conditions and restrictions set forth in this Software License with respect to the Airbus Software and shall in particular cause such Third Party to enter into a appropriate licensing conditions and to commit to use the Airbus Software solely for the purpose of maintaining the Licensees Aircraft and/or for processing the Licensees data.
4 | COPIES |
Use of the Airbus Software is limited to the number of copies delivered by the Licensor to the Licensee and to the medium on which the Airbus Software is delivered. No reproduction shall be made without the prior written consent of the Licensor, except that the Licensee is authorized to copy the Airbus Software for back-up and archiving purposes. Any copy the Licensor authorizes the Licensee to make shall be performed under the sole responsibility of the Licensee. The Licensee agrees to reproduce the copyright and other notices as they appear on or within the original media on any copies that the Licensee makes of the Airbus Software.
5 | TERM |
5.1 | On Board Certified Software |
Subject to the Licensee having complied with the terms of this Software License, the rights under this Software License shall be granted from [*****] in which case the license rights pertaining to such Aircraft shall be deemed terminated on the date [*****], this Software License or any part thereof being terminated for any reason whatsoever, in which case the Licensee shall immediately cease to use the On Board Certified Software.
5.2 | Software Products |
Save as otherwise specified in any applicable commercial conditions relating to any Software Product as set forth in the Agreement and subject to the Licensee having complied with the terms of this Software License, the rights under this Software License shall be granted from [*****] until the [*****], in which case the Licensee shall immediately cease to use the Software Products.
6 | CONDITIONS OF USE |
The Airbus Software shall only be used for the Permitted Purpose.
The Licensee shall be solely responsible for, and agrees to be careful in the use of, all outputs and results derived from the operation of the Airbus Software and all consequences, direct and indirect, relating to the use of such output and results. The Licensee agrees to use such outputs and results only once it has verified such outputs and results and has checked the relevance and correctness thereof, in the light of its particular needs.
The Licensee expressly acknowledges that it shall take all appropriate precautions for the use of the Airbus Software, including without limitation measures required for its compliance with the User Guide or any information or directive regarding the use of the Supplier Software.
Under the present Software License, the Licensee shall:
a) | not permit any parent, subsidiary, affiliate, agent or third party to use the Airbus Software in any manner, including, but not limited to, any outsourcing, loan, commercialization of the Airbus Software or commercialization by merging the Airbus Software into another software or adapting the Airbus Software, without the prior written consent from the Licensor; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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b) | [*****] maintain the Airbus Software and the relating documentation in good working condition, in order to ensure the correct operation thereof; |
c) | use the Airbus Software in accordance with such documentation and the User Guide, and ensure that the personnel using the Airbus Software has received appropriate training; |
d) | use the Airbus Software exclusively in the technical environment defined in the applicable User Guide, except as otherwise agreed in writing between the parties; |
e) | except as permitted by Section 50C Copyright, Designs and Patents Act 1988, not alter, reverse engineer, modify, correct, translate, disassemble, decompile or adapt the Airbus Software, nor integrate all or part of the Airbus Software in any manner whatsoever into another software product, nor create a software product derived from the Airbus Software save with the Licensors prior written approval. |
f) | should the Licensor have elected to provide the source code to the Licensee, have the right to study and test the Airbus Software, under conditions to be expressly specified by the Licensor, but in no event shall the Licensee have the right to correct, modify or translate the Airbus Software; |
g) | except with respect to Software Products intended to be used on ground, use the Airbus Software exclusively on the referenced machines and the declared sites; |
h) | not attempt to discover or re-write the Airbus Software source codes in any manner whatsoever; |
i) | not delete any identification or declaration relative to the intellectual property rights, trademarks or any other information related to ownership or intellectual property rights in the Airbus Software; |
j) | not pledge, sell, distribute, grant, sublicense, lease, lend, whether on a free-of-charge basis or against payment, or permit access on a time-sharing basis or any other utilization of the Airbus Software, whether in whole or in part, for the benefit of a third party. |
With respect to Software Products intended for use on ground, the Licensor shall be entitled, subject to providing reasonable prior written notice thereof to the Licensee, to [*****].
7 | TRAINING |
In addition to the User Guide provided with the Airbus Software, training and other assistance may be provided upon the Licensees request, subject to the conditions set forth in the Agreement. Such assistance or training shall not operate to relieve the Licensee of its sole responsibility with respect to the use of the Airbus Software under this Software License.
8 | PROPRIETARY RIGHTS - RIGHT TO CORRECT AND MODIFY |
8.1 | The Airbus Software is proprietary to the Licensor or the Licensor has acquired the intellectual property rights necessary to grant this Software License. The copyright and all other proprietary rights in the Airbus Software are and shall remain the property of the Licensor. |
8.2 | The Licensor reserves the right to correct and modify any Airbus Software at its sole discretion and the Licensee shall not undertake any correction or modification of the Airbus Software without the Licensors prior written approval. The Licensee shall install any Updates provided by the Licensor, at its own cost, in accordance with the time schedule notified with the provision of such Update(s). In the event of the Licensee failing to install any such Update(s), the Licensor shall be relieved of any warranty or liability of any kind with respect to the conformity or operation of the Airbus Software. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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9 | COPYRIGHT INDEMNITY |
9.1 | Indemnity |
9.1.1 | Subject to the provisions of Article 9.2.3, [*****] shall defend and indemnify [*****] from and against [*****] resulting from any infringement, or claim of infringement, [*****] of any copyright, provided that [*****]. |
9.1.2 | In the event that [*****] |
(i) | [*****] |
(ii) | [*****] |
9.2 | Administration of Copyright Indemnity Claims |
9.2.1 | If the Licensee receives a written claim or a suit is threatened or commenced against the Licensee for infringement of a copyright referred to in Article 9.1 as a result of the use of the Airbus Software, the Licensee shall: |
(i) | forthwith notify the Licensor giving particulars thereof; |
(ii) | furnish to the Licensor all data, papers and records within the Licensees control or possession relating to such claim or suit; |
(iii) | refrain from admitting any liability or making any payment or assuming any expenses, damages, costs or royalties or otherwise acting in a manner prejudicial to the defense or denial of such suit or claim provided always that nothing in this sub-Article (iii) shall prevent the Licensee from paying such sums as may be required in order to obtain the release of the Aircraft, provided such payment is accompanied by a denial of liability and is made without prejudice; |
(iv) | fully co-operate with, and render all such assistance to the Licensor as be may be pertinent to the defense or denial of the suit or claim; |
(v) | act in such way as to mitigate damages and/or reduce the amount of royalties that may be payable as well as to minimize costs and expenses. |
9.2.2 | The Licensor shall be entitled, either in its own name or on behalf of the Licensee, to conduct negotiations with the party or parties alleging infringement and may assume and conduct the defense or settlement of any suit or claim in the manner, which it deems proper. |
9.2.3 | The Licensors obligations and the Licensees remedies hereunder shall be conditional upon the strict and timely compliance by the Licensee with the terms of this Clause 9 and of Clauses 6(e), 6(h), 6(i) and 8.2 and are exclusive and in substitution for, and the Licensee hereby waives, releases and renounces all other obligations and liabilities of the Licensor and rights, claims and remedies of the Licensee against the Licensor, express or implied, arising by law or otherwise with respect to any infringement or claim of infringement of any copyright. |
10 | CONFIDENTIALITY |
The Airbus Software, this Software License and their contents are designated as confidential. The Licensee undertakes not to disclose the Software License, the Airbus Software or any parts thereof to any third party without the prior written consent of the Licensor, except to the lessee in case of lease of an Aircraft or to the buyer in case of resale of an Aircraft, without prejudice to any provisions set forth in the Agreement. In so far as it is necessary to disclose aspects of the Airbus Software to the
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Licensees employees, such disclosure is permitted solely for the purpose for which the Airbus Software is supplied and only to those employees who need to know the same, save as permitted herein or where otherwise required pursuant to an enforceable court order or any governmental decision or regulatory provision imposed on the Licensee, provided that reasonable prior notice of the intended disclosure is provided to the Licensor.
The obligations of the Licensee to maintain confidentiality shall survive the termination of this Software License for a period of [*****].
11 | ACCEPTANCE |
On Board Certified Software shall be deemed accepted as part of the Technical Acceptance Process set out in Clause 8 of the Agreement.
Software Products shall be deemed accepted upon delivery thereof unless otherwise specifically provided for in the Agreement.
12 | WARRANTY |
12.1 | On Board Certified Software |
Any On Board Certified Software installed on board an Aircraft at Delivery thereof shall be deemed a Warranted Part for the purposes of Clause 12.1 of the Agreement and the relevant provisions of such Clause 12.1 shall be fully applicable to such On Board Certified Software.
12.2 | Software Products |
The Licensor warrants that Software Products are prepared in accordance with the state of art at the date of their conception and shall perform substantially in accordance with their functional and technical specifications current at the time of their initial delivery. Should the Software Products be found not to conform to their documentation, the Licensee shall notify the Licensor promptly thereof and the sole and exclusive liability of the Licensor under this Software License shall be [*****].
[*****]
For the avoidance of doubt, this Article 12.2 shall not be applicable to Software Product Updates, modifications, enhancements and extensions.
12.3 | The Licensor shall be relieved of any obligations under Articles 12.1 and 12.2 in case of: |
(i) | Airbus Software defects or non-conformities caused by alterations or modifications to the Airbus Software carried out without the prior approval of the Licensor; |
(ii) | Airbus Software defects or non-conformities caused by negligence of the Licensee or other causes beyond the Licensors reasonable control; |
(iii) | Failure of the Licensee to install any Update in accordance with Article 8 hereof; |
(iv) | Airbus Software defects or non-conformities caused by errors in or modifications of or Updates to operating systems, databases or other software or hardware with which the Airbus Software interfaces, where such elements have not been provided by the Licensor. |
The Licensee shall be responsible for the cost and expense of any correction services provided by the Licensor as a result of any of the foregoing exclusions. Such correction services shall be subject to the then applicable commercial conditions.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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12.4 | Waiver, release and renunciation |
THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LICENSOR (AS DEFINED BELOW FOR THE PURPOSES OF THIS CLAUSE) AND REMEDIES OF THE LICENSEE SET FORTH IN THIS ARTICLE 12 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND THE LICENSEE HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF THE LICENSOR AND RIGHTS, CLAIMS AND REMEDIES OF THE LICENSEE AGAINST THE LICENSOR, EXPRESS OR IMPLIED, ARISING BY LAW, CONTRACT OR OTHERWISE WITH RESPECT TO ANY NON-CONFORMITY OR DEFECT OF ANY KIND IN ANY AIRBUS SOFTWARE AND SERVICES DELIVERED UNDER THE AGREEMENT AND/OR THIS SOFTWARE LICENSE, INCLUDING BUT NOT LIMITED TO:
(A) | ANY WARRANTY AGAINST HIDDEN DEFECTS; |
(B) | ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; |
(C) | ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; |
(D) | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY, WHETHER IN CONTRACT OR IN TORT AND WHETHER OR NOT ARISING FROM THE LICENSORS NEGLIGENCE, ACTUAL OR IMPUTED; AND |
(E) | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OR DAMAGE TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART, SOFTWARE, DATA OR SERVICES DELIVERED UNDER THE AGREEMENT, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES. |
PROVIDED THAT, IN THE EVENT THAT ANY OF THE AFORESAID PROVISIONS SHOULD FOR ANY REASON BE HELD UNLAWFUL OR OTHERWISE INEFFECTIVE, THE REMAINDER OF THIS SOFTWARE LICENSE SHALL REMAIN IN FULL FORCE AND EFFECT.
FOR THE PURPOSES OF THIS ARTICLE 12, THE LICENSOR SHALL BE UNDERSTOOD TO INCLUDE THE LICENSOR, ANY OF ITS SUPPLIERS, SUBCONTRACTORS AND AFFILIATES AND ANY OF THEIR RESPECTIVE INSURERS.
The Licensor shall have no liability for data that is entered into the Airbus Software by the Licensee and/or used for computation purposes.
13 | [*****] |
[*****]
14 | EXCUSABLE DELAYS |
14.1 | The Licensor shall not be responsible nor be deemed to be in default on account of delays in delivery of any Airbus Software or Update due to causes reasonably beyond the Licensors or its subcontractors control including but not limited to: natural disasters, fires, floods, explosions or earthquakes, epidemics or quarantine restrictions, serious accidents, total or constructive total loss, any act of the government of the country of the Licensee or the governments of the countries of Licensor or its |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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subcontractors, war, insurrections or riots, failure of transportation, communications or services, strikes or labor troubles causing cessation, slow down or interruption of services, inability after due and timely diligence to procure materials, accessories, equipment or parts, failure of a subcontractor or supplier to furnish materials, accessories, equipment or parts due to causes reasonably beyond such subcontractors or suppliers control or failure of the Licensee to comply with its obligations arising out of the present Software License. |
14.2 | The Licensor shall, as soon as practicable after becoming aware of any delay falling within the provisions of this Article, notify the Licensee of such delay and of the probable extent thereof and shall, subject to the conditions as hereinafter provided and as soon as practicable after the removal of the cause or causes for delay, resume delivery of the delayed Airbus Software or Update. |
15 | TERMINATION |
In the event of breach of an obligation set forth in this Software License by either the Licensor or the Licensee or failure to comply with the commercial conditions applicable to Airbus Software as set forth in the Agreement, [*****], the non-breaching party shall be entitled to terminate this Software License.
In the event of termination for any cause, the Licensee shall no longer have any right to use the Airbus Software and shall return to the Licensor all copies of the Airbus Software and any relating documentation together with an affidavit to that effect. In case of breach by the Licensee, the Licensor shall be entitled [*****].
16 | GENERAL PROVISIONS |
16.1 | This Software License is an Exhibit to the Agreement and integrally forms part thereof. As a result, any non-conflicting terms of the Agreement are deemed incorporated herein to the extent they are relevant in the context of this Software License. |
16.2 | Notwithstanding the terms of Clause 22.11 of the Agreement, in the event of any inconsistency or discrepancy between any term of this Software License and any term of the Agreement (including any other Exhibit or Appendices thereto), the terms of this Software License shall take precedence over the conflicting terms of the Agreement to the extent necessary to resolve such inconsistency or discrepancy. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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EXHIBIT I
PART 2
GENERAL TERMS AND CONDITIONS
OF
ACCESS TO
AND
USE OF
AIRBUSWORLD
This document and all information contained herein is the sole property of AIRBUS S.A.S. No intellectual property rights are granted by the delivery of this document or the disclosure of its content. This document shall not be reproduced or disclosed to a third party without the express written consent of AIRBUS S.A.S. This document and its content shall not be used for any purpose other than that for which it is supplied.
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EXHIBIT I
Preamble
For the sole purposes of the General Terms and Conditions of Access to and Use of AirbusWorld (the GTC), the Buyer and the Seller hereby agree that in such GTC:
The Seller shall be referred to as AIRBUS S.A.S.,
The Buyer shall be referred to as the Company,
The Agreement shall have the meaning assigned thereto in the GTC.
For the sake of clarification, it is understood that the term Agreement as defined in the Clause 00B shall be referred to within the GTC with the meaning assigned thereto under the definition of Contracts
GENERAL TERMS AND CONDITIONS OF ACCESS TO AND USE OF AIRBUSWORLD
ARTICLE 1: DEFINITIONS
Administrator(s): |
Companys employee(s) appointed by the Company, entitled to represent the Company for and in the management of the Agreement and responsible for the compliance by the Designated Users and the Companys employees with the Agreement. |
Agreement |
The agreement between the Parties shall be understood as including, in the following order of precedence, (i) Specific Terms and Conditions applicable to specific Services if any and to that extent only, (ii) these General Terms and Conditions, and any other relating functional or technical document agreed between the Parties, it being understood that, in the event of any inconsistency the former ranking document shall prevail over the following one(s) to the extent of such inconsistency. |
AIRBUS S.A.S. |
AIRBUS S.A.S, a French Société par Actions Simplifiée, with a share capital of Euros 2 704 375, registered with the Trade and Companies Registry of Toulouse (France) under n° 383 474 814 and whose registered office is located 1 Rond Point Maurice Bellonte, 31700 Blagnac, France |
AIRBUS |
Collectively AIRBUS S.A.S and the legal entities controlled by AIRBUS S.A.S, the term control meaning the direct or indirect ownership of at least fifty percent (50%) of the voting stocks in such legal entities. |
AIRBUS Data |
Any and all data, information and material made accessible and available by AIRBUS to the Company through AW. |
AW |
AirbusWorld, access to which may be given by AIRBUS S.A.S. to Designated Users of the Company. |
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Company |
The company entering into these General Terms and Conditions as identified on the execution page of this document. |
Company Data |
Any and all data, information and other material made accessible and available by the Company to AIRBUS through AW. |
CONTRACTS |
Any and all present and future contracts, agreements or letters, the terms of which imply a commitment of the Company and/or AIRBUS other than related to the present Agreement, namely but without limitation: confidentiality agreements, exchanges in the course of a call for tender, contracts for the supply of services, procurement/sale agreements, aircraft purchase agreements, co-operation agreements, research contracts, maintenance contracts. |
Data |
Collectively the AIRBUS Data and the Company Data. |
Databases |
Any and all collections of independent works, data or other materials arranged in a systematic or methodical way and individually accessible by electronic or other means by the Company through AW. |
Designated Users |
Employees of the Company authorized by a Company Administrator to access and use AW. |
[*****] |
[*****] |
Identification Codes |
Confidential and personal identification codes attached to each Designated User and which formally identify each Designated User accessing and using AW. |
Party or Parties |
Individually or collectively AIRBUS S.A.S. and/or the Company. |
Personal Data |
Personal data as defined in the Data Protection Act 1998, including personal data files or personal data automated processing systems. |
Services |
Any and all on line services made available to the Company through AW under the terms and conditions of the Agreement. |
Specific Terms and Conditions |
Terms and conditions under which AIRBUS S.A.S. grants access to specific Services to the Company. |
System |
Equipment (hardware, software, connections, etc) set up by AIRBUS S.A.S. and enabling AIRBUS S.A.S. to provide the Services on AW through the internet. |
User Documentation |
Documentation intended for the Administrators and Designated Users of AW describing the technical means enabling connection to the System and access to AW and providing information related to the use of AW and/or the Services. User Documentation may be modified from time to time by AIRBUS S.A.S and is available on AW. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ARTICLE 2: PURPOSE / CONTRACTUAL DOCUMENTS
2.1 | The purpose of these General Terms and Conditions is to define the terms and conditions under which AIRBUS S.A.S. authorizes the Company to access and use AW and to benefit from some of the Services offered through the latter. |
2.2 | Access to and use of certain Services may be subject to acceptance by the Company of Specific Terms and Conditions. |
2.3 | AW may be used by the Company for the purpose of exchanging information with AIRBUS and specifically for the performance of the Contracts. The Agreement shall not be construed as interfering with the terms and conditions of any such Contracts. The terms and conditions of the Contracts shall in any case prevail over the terms of the Agreement. |
2.4 | The Company and AIRBUS shall not exchange Data through AW that are not necessary for professional or business purposes as mentioned in Article 2.3. Activities directly or indirectly related to spamming are prohibited on AW. |
2.5 | Should there be a need for the Company to use AW in its quality of subcontractor of a supplier, a customer, or a co-contractor of AIRBUS (hereafter individually and collectively an AIRBUS Co-contractor), then the Company hereby guarantees that it is duly authorised by such AIRBUS Co-contractor to request from AIRBUS S.A.S. an access to AW and the use of the Services. The Agreement between AIRBUS S.A.S. and the Company is entered into for the sole purpose of the use of AW and shall in no event be construed as a change to the contracts entered into by AIRBUS and the AIRBUS Co- contractor and/or establish a direct contractual relationship between AIRBUS and the Company other than the Agreement. |
ARTICLE 3: EXTENT OF ACCESS TO AND USE OF AW
3.1 | AIRBUS S.A.S. grants to the Company, a worldwide, personal, non-exclusive and non-transferable right to access and use AW and the Services, pursuant to the terms and conditions of and for the duration of the Agreement. The Company shall not fully or partially assign, sublicense nor subcontract any of its rights and/or obligations under the Agreement, without the express prior written authorization of AIRBUS S.A.S. |
3.2 | No right other than that provided in Article 3.1 above is granted by AIRBUS S.A.S. to the Company under these General Terms and Conditions, and the Company shall not, directly or indirectly, without limitation, extract, reproduce, represent, adapt, modify and/or translate, all or part of AW, the System and/or the Databases, nor create any derivative work therefrom, nor use any and/or all of the aforesaid elements for any purposes other than those agreed upon between the Parties. |
3.3 | AW, the System, the Databases and the AIRBUS Data shall remain the sole ownership of AIRBUS and/or its licensors. |
ARTICLE 4: ADMINISTRATORS AND DESIGNATED USERS
4.1 | AIRBUS S.A.S. shall propose on-line standard training for the Administrator on AW at AIRBUS S.A.S expense and AIRBUS S.A.S. shall make available appropriate documentation to the Designated Users. |
4.2 | The Company shall be solely responsible for the enforcement of the Agreement by its employees, including the Administrator(s) and the Designated Users. The Company shall ensure, at its own expense, that the Administrator(s) and the Designated Users are qualified and properly trained for the purpose of the performance of the Agreement. |
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4.3 | The Company shall designate one Administrator. AIRBUS S.A.S. may, at its sole discretion and upon the Companys request, authorise in writing the Company to designate additional Administrator(s), provided the Company defines non-overlapping areas and/or timeframes for each of the Administrators, e.g. for different branches or sites of the Company. It is understood that the Company shall be solely responsible in the event of inconsistent instructions received from the Administrators. |
4.4 | The Administrator(s) shall have the capacity to represent the Company with respect to the execution and performance of any contractual document related to the access, use and operation of AW. |
4.5 | The Administrator(s) shall appoint Designated Users among the employees of the Company. Each Designated User shall be provided with a personal and confidential Identification Code, at AIRBUS S.A.S. discretion, [*****]. |
4.6 | Each and every access, use and operation of AW with an Identification Code shall be deemed to have been made by the corresponding Designated User. |
4.7 | The Company shall ensure that: |
(I) | each Identification Code is used by the corresponding Designated User only and is personal to such Designated User; |
(II) | each personal Identification Code shall not be communicated to any person other than the corresponding Designated User; |
(III) | each Designated User accesses and uses AW in accordance with the specific rights he/she has been granted under the Agreement; |
(IV) | no third party can access the Identification Codes or AW. |
4.8 | Should the Company become aware of any potential risk that Identification Code(s) could be or could have been disclosed to anyone other than the corresponding Designated User, then the Administrator(s) shall, without any delay, cancel the access to AW in respect of such Identification Code(s) and notify AIRBUS S.A.S. of such potential risk and of such cancellation of the Identification Code(s), notwithstanding AIRBUS S.A.S. rights to cancel such access. |
4.9 | The Company shall inform AIRBUS S.A.S., without any delay, of (i) any modification in the professional situation of the Administrator(s) and/or Designated Users, including without limitation leave or resignation from the Company, (ii) the termination/expiration of any or all of the Contracts (iii) the termination/expiration of any contract of the Company with an AIRBUS Co-contractor as referred to in Article 2.5 above. In any of such cases, the Company shall without delay cancel the access to AW for the corresponding Designated Users, notwithstanding AIRBUS S.A.S. rights to cancel such access. |
4.10 | Should any one of Designated Users and/or Administrators not comply with any provision of the Agreement and/or any applicable laws and regulations, or should AIRBUS S.A.S. fear that his/her access may possibly result in a breach of the Agreement, including but not limited to confidentiality and/or security provisions and/or result in an illegal situation, AIRBUS S.A.S. shall be entitled, at any time, without prejudice to its other rights and without prior notice, [*****]. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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ARTICLE 5: ACCESS REQUIREMENTS
5.1 | The Company shall, at its own costs and under its sole responsibility and liability, procure, install and maintain the information technology equipment necessary to access the System and AW. The Company shall use all care and means available in the state of the art necessary to prevent intrusion of any third party and/or malicious codes into the System and/or AW. |
5.2 | The Company shall be responsible for obtaining and maintaining any relevant authorisations and/or accomplishing any and all relevant formalities necessary to have access to and benefit from AW as well as for performing its own obligations under the Agreement and/or any applicable laws and regulations. |
5.3 | AIRBUS S.A.S. shall be entitled, without limitation for security purposes, to at any time modify or have the Company modify, the Identification Codes. Any modification of such Identification Codes shall be notified by the modifying Party to the other Party. |
ARTICLE 6: CHARACTERISTICS AND AVAILABILITY OF AW
6.1 | AIRBUS S.A.S. shall make its reasonable efforts to provide the necessary means in order to make AW accessible seven (7) days a week and twenty-four (24) hours a day. Should the access to or use of AW be disturbed, AIRBUS S.A.S. shall take all reasonable and proper steps to restore the access to or use of AW. |
6.2 | In this respect and without limitation, AIRBUS S.A.S. shall be entitled, at any time and without notification, to suspend, temporarily or permanently, access to all or part of AW: |
(i) | in order to proceed with any maintenance of the System and/or updating of AW, the Databases and/or the Data; |
(ii) | for security reasons; |
(iii) | in order to comply with any regulatory constraints and/or court injunction or decision. |
6.3 | Should AIRBUS S.A.S. foresee that the unavailability of AW, in whole or in part, will exceed [*****], AIRBUS S.A.S. shall make reasonable efforts to inform as promptly as possible the Company, by whatever means, of such unavailability. |
6.4 | Without prejudice to any other provision of the Agreement, should the Company be unable for any reason to access AW for [*****] the Company shall inform AIRBUS S.A.S. and [*****]. |
ARTICLE 7: CONFIDENTIALITY
7.1 | Unless otherwise agreed upon in the Agreement and/or the Contracts, and unless the same information may be accessed in the freely accessible public area of AW, all information made available by the Company and AIRBUS to each other through AW shall be deemed confidential information and shall not be disclosed by the receiving party to any third party and shall not be used for any purpose other than those agreed upon by the Company and AIRBUS, even if that purpose is for the receiving partys internal needs. The following shall not be deemed to be confidential information for the purposes of this Agreement: (i) information which is in the public domain other than as a result of a breach of this Agreement or a Contract; (ii) information which the receiving party can demonstrate was received, free of any obligation of confidence, from a third party which itself was not under any obligation of confidence in relation to that information; and (iii) information which was developed or created independently by or on behalf of the receiving party. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7.2 | The Company hereby authorises AIRBUS to disclose such information within AIRBUS, provided the AIRBUS legal entities exchanging such information have entered with each other into a confidentiality agreement. |
ARTICLE 8: EXCHANGE OF DATA
8.1 | As part of the Services, AW enables the Company and AIRBUS to exchange or have access to the Data, for the purpose of collaboration between the Company and AIRBUS and/or performance of the Contracts. |
8.2 | The Company shall have the right to access to and use the AIRBUS Data, and AIRBUS shall have the right to access to and use the Company Data, solely to the extent defined in the Agreement and/or the Contracts. |
8.3 | Except as otherwise agreed in the Agreement and/or the Contracts, the Company and AIRBUS may, during the term of the Agreement, for internal use only, adapt, translate, make hard copies and/or numeric reproductions of the Data received from the disclosing party, for the sole purpose of the Agreement and of, as the case may be, the performance of the Contract(s) or the collaboration of the Company and AIRBUS. The Data received from the disclosing party, their hard copies and numeric reproductions, may be processed by and circulated worldwide only to the employees of the receiving party having a need to know the same for the purpose of the Agreement and of, as the case may be, the performance of the Contract(s) or the collaboration of the Company and AIRBUS. |
8.4 | The Company and AIRBUS shall ensure that all proprietary rights and confidentiality mentions stated on any original document are replicated on any reproduction made thereof. Any translation and/or adaptation shall expressly state that it is a derivative from the original document. The Company and AIRBUS shall refrain from removing and/or altering any of these mentions. |
8.5 | The Company shall take care and use all means available in the state of the art at any time of the Agreement in order to prevent the Company Data from creating permanent or temporary disturbance of the operation and/or the use of the System, AW and/or the Database. |
8.6 | The Company shall immediately notify AIRBUS S.A.S. of the occurrence or possible occurrence of any of the events referred to in Article 8.3 above. Should AIRBUS S.A.S. be aware of any of such aforesaid events, it shall be entitled, without notice and without prejudice to its other rights, to delete the implicated Company Data from the System. |
8.7 | Taking into account the electronic nature of the Data exchanged through AW, the Company and AIRBUS agree to give to such electronic exchanges the same probatory value as exchanges made by registered mail. |
8.8 | Should any creation or development be made by the Company when accessing and using AW and/or exchanging Data with AIRBUS, then the rights of each party on such creation or development shall be determined pursuant to the corresponding Contract or Specific Terms and Conditions, if any. |
ARTICLE 9: PRIVACY
9.1 | Each party shall comply at all times with its obligations under all local data protection laws and regulations in relation to all Personal Data provided to it by the other party in connection with this Agreement or a Contract and shall inform the other party of any information system evolution which could affect such obligations. |
9.2 | The Company is hereby notified that AIRBUS may request Personal Data directly from the Administrator(s) and the Designated Users for accessing and using AW. The Company shall inform the Administrator(s) and |
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the Designated Users (i) in accordance with applicable data protection laws, (ii) of the provisions of this Article 9 and their related rights. |
9.3 | The Company undertakes to comply with the Data Protection Act 1998 and to inform the Administrator(s) and the Designated Users that: |
(i) | failure to provide such Personal Data may prevent access to AW; |
(ii) | such Personal Data shall be used by AIRBUS for the sole purpose of (a) security, operation and maintenance of AW and (b) the Services and/or communication with and the provision of information to the Administrator(s) and the Designated Users in respect of AW and the Services; |
(iii) | such Personal Data may be transferred to AIRBUS service providers or other AIRBUS entities throughout the world in compliance with the Data Protection Act 1998; and |
(iv) | they benefit from a right of access to and rectification of, their Personal Data archived by AIRBUS. |
9.4 | AW uses cookies (small data files transferred to computer hard drives for the sole purpose of recording computer connections to AW such as date, time, consulted pages, etc.). AIRBUS S.A.S. may access and record this information during Designated Users visits. The use of cookies is a prerequisite to the operation of AW and the Company recognizes that any Designated User exercising his/her right to disable cookies shall not have access to AW. |
9.5 | Personal Data may be accessed by the Company, Administrators and/or Designated Users and, as the case may be, rectified upon written request to AIRBUS S.A.S, 1 Rond-Point Maurice Bellonte, 31707 Blagnac Cedex, France. |
9.6 | As the performance of the Agreement may imply cross-border transfer of Personal Data, the Company hereby declares that it is aware of (i) the Council of Europe Convention for the Protection of Individuals with regards to Automatic Processing of Personal Data, (ii) the European Directive n° 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data and (iii) the Data Protection Act 1998, and the Company shall ensure that it remains aware of any further modification of the applicable laws in force and undertakes to comply with the same. |
ARTICLE 10: WARRANTY / LIABILITY
10.1 | To the extent permitted by law, the Company acknowledges that AW, including any and all of its supporting elements and contents, i.e. without limitation the System, the Databases and, unless otherwise stated in the Contracts, AIRBUS Data, are provided as is and as available. |
10.2 | To the extent permitted by law, AIRBUS S.A.S. excludes that (i) all warranties and representations that AW, the System, the Services and/or the User Documentation shall meet the Companys requirements and expectations, or shall be uninterrupted, timely, secure or error-free, (ii) all warranties and representations that the results that may be displayed through AW, the Data, Databases and/or any material obtained through AW shall be accurate, reliable or error free; and (iii) any warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise (including but not limited to implied undertakings of satisfactory quality, conformity with description and reasonable fitness for purpose). |
10.3 | Access to and use of AW are therefore performed at the Companys sole risk and the Company shall be solely responsible for such access or use and AIRBUS S.A.S. shall not be liable for any loss, damages, costs or expenses, howsoever arising (whether in contract, tort or otherwise and including any infringement of a third partys rights or otherwise), arising out of or in connection with the Companys access, and use of AW, the AIRBUS Data and the Databases, computer intrusion, security failure, or unavailability of the Services, the AW and/or the materials contained therein or accessed through AW. |
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In no event, shall AIRBUS or its successive successors and assignees be liable for any damage, whether direct or indirect, such as but without limitation loss of data or of programs, loss of use, financial loss, any deterioration or infection by malicious codes of the Companys information technology equipment (including but not limited to software, hardware, connections and/or any system or network). |
Notwithstanding the preceding provisions, AIRBUS S.A.S. agrees to [*****], provided the Company [*****].
10.4 | Should any provision of the Agreement become prohibited or unlawful or unenforceable under any applicable law actually applied by any court of competent jurisdiction, such provision shall, to the extent required by such law, be severed from the Agreement and rendered ineffective insofar as possible without modifying the remaining provisions. Where, however, the provisions of any such applicable law may be waived, the Parties hereby agree that they shall waive such provisions to the fullest extent permitted by such law, with the result that the provisions of the Agreement shall be valid, binding and enforceable. The Parties agree to replace, as far as practicable, any provision which is prohibited, unlawful or unenforceable with another provision having substantially the same effect (in its legal and commercial content) as the replaced provision, but which is not prohibited, unlawful or unenforceable. The invalidity in whole or in part of any provision(s) of the Agreement shall not void or affect the validity of any other provision. |
ARTICLE 11: DURATION / TERMINATION
11.1 | These General Terms and Conditions shall enter into force on the date of their execution by both Parties. The entry into force or termination of these General Terms and Conditions shall not interfere in any way with the term of any Contracts in force. |
The duration of any other contractual document entered into by the Parties as part of the Agreement shall be provided in the corresponding document. Should these General Terms and Conditions be terminated, all such documents shall, automatically and notwithstanding any other provision in the Agreement, be terminated concurrently therewith.
In the event of the Company being in breach any of its obligations under the Agreement, AIRBUS S.A.S. shall be entitled, without prejudice to any of its other rights and without prior notice, to immediately and automatically suspend access to AW or terminate all or part of the Agreement.
11.2 | Upon termination, for whatever reason, of all or part of the Agreement, the Company shall immediately, at AIRBUS S.A.S. discretion, (i) cease to access AW and/or the corresponding Service(s) and (ii) return or destroy, except in the event that a dispute arises or is raised between the Company and AIRBUS under the Agreement or the Contracts, the Identification Codes as well as all AIRBUS Data the Company may have held in relation to the terminated part of the Agreement. |
11.3 | Should either party [*****] then either Party may terminate the Agreement upon written notice to the other Party. |
ARTICLE 12: MISCELLANEOUS
AIRBUS S.A.S. is entitled to assign all or part of its rights and/or obligations under the Agreement to any legal entity controlled by AIRBUS S.A.S.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Airbus S.A.S. is entitled to subcontract any of its obligations under the Agreement.
The Agreement shall not be modified except through a written amendment signed by the duly authorized representatives of both Parties.
This Agreement constitutes the entire agreement between the parties in relation to the use of AW, the System, the Data and the Databases. Each party acknowledges that in entering into this Agreement it has not relied upon, and shall have no rights or remedies (whether in tort, under statute or otherwise) in respect of any statements, collateral or other warranties, assurances, undertakings or representations (whether innocently or negligently made) by the other party to this Agreement.
ARTICLE 13: LAW JURISDICTION
THE AGREEMENT IS GOVERNED BY THE LAWS OF ENGLAND AND THE EXCLUSIVE JURISDICTION FOR ANY DISPUTE ARISING OUT OR IN CONNECTION WITH ITS EXISTENCE, VALIDITY, INTERPRETATION OR EXECUTION SHALL BE GIVEN TO THE COURTS OF ENGLAND, WITH AIRBUS RESERVING THE RIGHT TO PETITION ANY OTHER COMPETENT COURT.
PART 3
END-USER SUBLICENSE AGREEMENT FOR SUPPLIER SOFTWARE
1 | DEFINITIONS |
For the purposes of this end-user sublicense agreement for Supplier Software (the Software Sublicense) the following definitions shall apply:
Agreement means the Purchase Agreement of even date herewith covering the purchase and sale of the Aircraft subject thereof.
Aircraft means, individually or collectively, the Aircraft subject of the Agreement.
Composite Work means the package composed of various elements, such as database(s), software or data, and which necessitates the use of the Supplier Software.
Permitted Purpose means use of the Supplier Software by the Sublicensee for its own internal business needs, solely in conjunction with the Aircraft and in particular pertaining to (i) operation of the Aircraft; (ii) on ground operational support of the Aircraft; or (iii) related authorized customization of software.
Sublicensee means the Buyer under the Agreement.
Sublicensor means the Seller under the Agreement as authorized by the Supplier to sublicense the Supplier Software to the operators of Airbus aircraft.
Supplier means each of the Sublicensors suppliers owning the intellectual property rights in the corresponding Supplier Software (or holding the right to authorize the Sublicensor to sublicense such Supplier Software) and having granted to the Sublicensor the right to sublicense such Supplier Software.
Supplier Product Support Agreement shall have the meaning set forth in Clause 12.3.1.3 of the Agreement.
Supplier Software means each of the Suppliers proprietary products including Composite Work, configurations, processes, rules (together with any related documentation) as well as any modifications,
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enhancements or extensions thereto, as may be provided by the Supplier or the Sublicensor from time to time and the supply of which to the Sublicensee is governed by a Supplier Product Support Agreement. The Supplier Software shall be supplied in machine-readable code form only, for use in connection with the Aircraft or operations related to the Aircraft. For the avoidance of doubt, this Software Sublicense does not apply to (i) any software embedded in any component, furnishing or equipment installed on the Aircraft and itself bearing a partnumber (ii) third party software not provided under a Supplier Product Support Agreement, including but not limited to any standard, off the shelf software (Components Off The Shelf/COTS) and (iii) open source software contained in the Supplier Software, if any, and it is hereby acknowledged and agreed by both parties hereto that such open source software is independently distributed on an as is basis under the respective license terms therefor, and that the Sublicensor disclaims any liability in relation to such open source software.
Update(s) means any update(s) or replacement(s) to the Supplier Software licensed hereunder, which the Sublicensor or the Supplier, at their discretion, make generally available to the Sublicensee.
User Guide means the documentation, which may be in electronic format, designed to assist the Sublicensee in using the Supplier Software.
Capitalized terms used herein and not otherwise defined in this Software Sublicense shall have the meaning assigned thereto in the Agreement.
2 | LICENSE |
In consideration of the purchase by the Sublicensee of the Aircraft, the Sublicensee is hereby granted a [*****], worldwide and non-exclusive right to use the Supplier Software, for a Permitted Purpose. Each Supplier shall remain the owner of all intellectual property rights in the Supplier Software. There shall be one Software Sublicense granted in respect of each Aircraft purchased by the Sublicensee.
The Sublicensee hereby acknowledges that it is aware that certain Supplier Software subject of this Software Sublicense may incorporate some third party software or open source software components. The Sublicensee hereby agrees to be bound by the licensing terms and conditions applicable to such third party software and made available by the Sublicensor through AirbusWorld.
3 | ASSIGNMENT AND DELEGATION |
3.1 | Assignment |
The Sublicensee may, at any time, assign or otherwise transfer all or part of its rights under this Software Sublicense only as part of, and to the extent of, a sale, transfer or lease of any or all of the Aircraft to which the Supplier Software are related provided that the Sublicensee causes the assignee to agree to the terms of this Software Sublicense.
The Sublicensee shall assign a Software Sublicense for all Supplier Software installed on the sold, transferred or leased Aircraft and shall retain all other Software Sublicenses attached to any Aircraft that the Sublicensee continues to operate.
In the event of any such assignment or transfer, the Sublicensee shall transfer the copies of the Supplier Software attached to the sold, transferred or leased Aircraft (including all component parts, media, any upgrades or backup copies, this Software Sublicense, and if applicable, certificate(s) of authenticity), except as otherwise instructed by the Sublicensor.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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3.2 | Delegation |
Without prejudice to Article 10 hereof, in the event of the Sublicensee intending to designate a maintenance and repair organization or a third party to perform the maintenance of the Aircraft or to perform data processing on its behalf (each a Third Party), the Sublicensee shall notify the Sublicensor of such intention prior to any disclosure of this Software Sublicense and/or the Supplier Software to such Third Party.
The Sublicensee hereby undertakes to cause such Third Party to enter into appropriate licensing conditions with the corresponding Supplier and to commit to use the Supplier Software solely for the purpose of maintaining the Sublicensees Aircraft and/or processing the Sublicensees data.
4 | COPIES |
Use of the Supplier Software is limited to the number of copies delivered by the Sublicensor to the Sublicensee and to the medium on which the Supplier Software is delivered. No reproduction shall be made without the written consent of the Sublicensor, except that the Sublicensee is authorized to copy the Supplier Software for back-up and archiving purposes. Any copy the Sublicensor authorizes the Sublicensee to make shall be performed under the sole responsibility of the Sublicensee. The Sublicensee agrees to reproduce the copyright and other notices as they appear on or within the original media on any copies that the Sublicensee makes of the Supplier Software.
5 | TERM |
Subject to the Sublicensee having complied with the terms of this Software Sublicense, the rights under this Software Sublicense shall be [*****], in which case the license rights pertaining to such Aircraft shall be deemed terminated for such Aircraft on the date of the last operation thereof by the Sublicensee or any of its assignees, or (ii) the Agreement, this Software Sublicense or any part thereof, being terminated for any reason whatsoever, in which case the Sublicensee shall immediately cease to use the affected Supplier Software upon the effective termination date.
6 | CONDITIONS OF USE |
The Supplier Software shall only be used for the Permitted Purpose.
The Sublicensee shall be solely responsible for, and agrees to be be careful in the use of, all outputs and results derived from the operation of the Supplier Software and all consequences, direct and indirect, relating to the use of such output and results. The Sublicensee agrees to use such outputs and results only once it has verified such outputs and results and has checked the relevance and correctness thereof, in the light of its particular needs.
The Sublicensee expressly acknowledges that it will take all appropriate precautions for the use of the Supplier Software, including without limitation measures required for its compliance with the User Guide or any information or directive regarding the use of the Supplier Software.
Under the present Software Sublicense, the Sublicensee shall:
a) | not permit any parent, subsidiary, affiliate, agent or other third party to use the Supplier Software in any manner, including, but not limited to, any outsourcing, loan, commercialization of the Supplier Software or commercialization by merging the Supplier Software into another software or adapting the Supplier Software, without the prior written consent from the Supplier; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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b) | do its utmost to maintain the Supplier Software and the relating documentation in good working condition, in order to ensure the correct operation thereof; |
c) | use the Supplier Software in accordance with such documentation and the User Guide, and ensure that the personnel using the Supplier Software has received appropriate training; |
d) | use the Supplier Software exclusively in the technical environment defined in the applicable User Guide, except as otherwise agreed in writing between the parties; |
e) | except as permitted by Section 50C Copyright, Designs and Patents Act 1988, not alter, reverse engineer, modify, correct, translate, disassemble, decompile or adapt the Supplier Software, nor integrate all or part of the Supplier Software in any manner whatsoever into another software product; nor create a software product derived from the Supplier Software save with the Suppliers prior written approval; |
f) | should the Sublicensor or the Supplier have elected to provide the source code to the Sublicensee, have the right to study and test the Supplier Software, under conditions to be expressly specified by the Sublicensor, but in no event shall the Sublicensee have the right to correct, modify or translate the Supplier Software; |
g) | not attempt to discover or re-write the Supplier Software source codes in any manner whatsoever; |
h) | not delete any identification or declaration relative to the intellectual property rights, trademarks or any other information related to ownership or intellectual property rights in the Supplier Software; |
i) | not pledge, sell, distribute, grant, sublicense, lease, lend, whether on a free-of-charge basis or against payment, or permit access on a time-sharing basis or any other utilization of the Supplier Software, whether in whole or in part, for the benefit of a third party; |
7 | TRAINING |
In addition to the User Guide provided with the Supplier Software, training and other assistance shall be provided upon the Sublicensees request, subject to conditions set forth in the Agreement. Such assistance or training shall not operate to relieve the Sublicensee of its sole responsibility with respect to the use of the Supplier Software under this Software Sublicense.
8 | PROPRIETARY RIGHTS - RIGHT TO CORRECT AND MODIFY |
8.1 | The Supplier Software is proprietary to the Supplier and the Sublicensor represents and warrants that it has been granted the intellectual property rights necessary to grant this Software Sublicense. The copyright and all other proprietary rights in the Supplier Software are and shall remain the property of the Supplier. |
8.2 | The Supplier may correct or modify its Supplier Software from time to time at its sole discretion and the Sublicensee shall not undertake any correction or modification of the Supplier Software without the Sublicensors prior written approval. The Sublicensee shall install any Updates provided either by the Supplier or the Sublicensor in accordance with the time schedule notified with the provision of such Update(s). In the event of the Sublicensee failing to install any such Update(s), both the Sublicensor and the Supplier shall be relieved of any warranty or liability of any kind with respect to the conformity or operation of the Supplier Software. |
AZU A320 NEO PA Reference CT1307022 Exhibit I
Page 120/120
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT I
9 | COPYRIGHT INDEMNITY |
The Sublicensee hereby accepts the transfer to its benefit of all transferable and enforceable copyright indemnity conditions related to the corresponding Supplier Software and contained in the applicable Supplier Product Support Agreement.
10 | CONFIDENTIALITY |
The Supplier Software, this Software Sub-license and their contents are designated as confidential. The Sublicensee undertakes not to disclose the Software Sub-license, the Supplier Software or any parts thereof to any third party without the prior written consent of the Sublicensor, except to the lessee in case of lease of an Aircraft or to the buyer in case of resale of the Aircraft, without prejudice to any provisions set forth in the Agreement. In so far as it is necessary to disclose aspects of the Supplier Software to the Sublicensees employees, such disclosure is permitted solely for the purpose for which the Supplier Software is supplied and only to those employees who need to know the same, save as permitted herein or where otherwise required pursuant to an enforceable court order or any governmental decision or regulatory provision imposed on the Sublicensee, provided that reasonable prior notice of the intended disclosure is provided to the Sublicensor.
The obligations of the Sublicensee to maintain confidentiality shall survive the termination of this Software Sublicense for a period of [*****].
11 | ACCEPTANCE |
Supplier Software shall be deemed accepted as part of the Technical Acceptance Process set out in Clause 8 of the Agreement.
12 | WARRANTY |
The Sublicensee hereby accepts the transfer to its benefit of all transferable and enforceable warranties related to the corresponding Supplier Software and contained in the applicable Supplier Product Support Agreement.
As a result, THE SUBLICENSEE acknowledges that the transferable and enforceable warranties, OBLIGATIONS and LIABILITIES contained in the Supplier Product Support Agreement shall constitute the sole and exclusive remedy available in the event of any defect or non-conformity of the Supplier Software.
Neither the Supplier nor the Sublicensor shall have any liability for data that is entered into the Supplier Software by the Sublicensee and/or used for computation purposes.
13 | [*****] |
[*****]
14 | EXCUSABLE DELAYS |
14.1 | Neither the Sublicensor nor the Supplier(s) shall be responsible nor be deemed to be in default on account of delays in delivery of any Supplier Software or Updates due to causes reasonably beyond Sublicensors or its suppliers or subcontractors (including the Supplier) control including but not limited to: natural disasters, |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZU A320 NEO PA Reference CT1307022 Exhibit I
Page 121/120
Execution version
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT I
fires, floods, explosions or earthquakes, epidemics or quarantine restrictions, serious accidents, total or constructive total loss, any act of the government of the country of the Sublicensee or the governments of the countries of Sublicensor or its subcontractors or its suppliers (including the Supplier), war, insurrections or riots, failure of transportation, communications or services, strikes or labor troubles causing cessation, slow down or interruption of services, inability after due and timely diligence to procure materials, accessories, equipment or parts, failure of a subcontractor or supplier (including the Supplier) to furnish materials, accessories, equipment or parts due to causes reasonably beyond such subcontractors or suppliers (including the Supplier) control or failure of the Sublicensee or the Supplier to comply with its obligations arising out of the present Software Sublicense. |
14.2 | The Sublicensor shall, and/or shall cause the Supplier to, as soon as practicable after becoming aware of any delay falling within the provisions of this Article, notify the Sublicensee of such delay and of the probable extent thereof and shall, subject to the conditions as hereinafter provided and as soon as practicable after the removal of the cause or causes for delay, resume delivery of the delayed Supplier Software or Update. |
15 | TERMINATION |
In the event of breach of an obligation set forth in this Software Sublicense by either the Sublicensor or the Sublicensee, [*****], the non-breaching party shall be entitled to terminate this Software Sublicense.
In the event of termination for any cause, the Sublicensee shall no longer have any right to use the Supplier Software and shall return to the Supplier all copies of the Supplier Software and any relating documentation together with an affidavit to that effect.
16 | GENERAL PROVISIONS |
16.1 | This Software Sublicense is an Exhibit to the Agreement and integrally forms part thereof. As a result, any non-conflicting terms of the Agreement are deemed incorporated herein to the extent they are relevant in the context of this Software Sublicense. |
16.2 | Notwithstanding the terms of Clause 22.11 of the Agreement, in the event of any inconsistency or discrepancy between any term of this Software Sublicense and any term of the Agreement (including any Appendix or other Exhibits thereto), the terms of this Software Sublicense shall take precedence over the conflicting terms of the Agreement to the extent necessary to resolve such inconsistency or discrepancy. |
16.3 | The Sublicensee acknowledges that the Supplier Software covered under the present Sub-license Agreement is also subject to the conditions relative to each Supplier Software set forth in the corresponding Supplier Product Support Agreement. In the event of any inconsistency between the terms of this Sub-license Agreement and the terms contained in the corresponding Supplier Product Support Agreement, the latter shall prevail to the extent of such inconsistency. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
AZU A320 NEO PA Reference CT1307022 Exhibit I
Page 122/120
Execution version
AMENDMENT N° 1
TO THE
A320 NEO PURCHASE AGREEMENT
DATED AS OF OCTOBER 24, 2014
BETWEEN
AIRBUS S.A.S.
as Seller
A N D
AZUL FINANCE LLC
as Buyer
Proprietary & Confidential AZUL A320 Neo
PA - AMDT 1 Ref. CT1307022- December 2015
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 1 TO THE A320
NEO PURCHASE AGREEMENT
This Amendment No.1 (hereinafter referred to as the Amendment No.1) is entered into as of the 21st day of December 2015.
BETWEEN:
AIRBUS S.A.S., a société par actions simplifiée, created and existing under French law having its registered office at 1 Rond-Point Maurice Bellonte, 31707 Blagnac-Cedex, France and registered with the Toulouse Registre du Commerce under number RCS Toulouse 383 474 814 (the Seller),
and
AZUL FINANCE LLC, a company created and existing under the laws of the State of Delaware having its registered office in Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801 (the Buyer).
Together the Parties and each a Party
WHEREAS :
A. | The Buyer and the Seller entered into an A320 NEO Purchase Agreement dated October 24, 2014 for the sale by the Seller and the purchase by the Buyer of [*****] A320 NEO Aircraft (hereinafter together with its Exhibits, Appendices and Letter Agreements and as amended and supplemented from time to time, the Agreement); |
B. | Pursuant to the Agreement, Predelivery Payments totaling [*****] were due and payable on [*****] and as of the date hereof remain unpaid (the Overdue PdP); |
C. | In light of the continuing economic difficulties in South America adversely impacting the aviation industry, the Buyer has requested to reschedule payment of the Overdue PDP and to defer the payment date of other Predelivery Payments; |
D. | Subject to the terms and conditions set forth herein, the Seller agrees to reschedule the payment date of the Overdue PDP and to reschedule the payment date of certain other Predelivery Payments as set forth herein and, in consideration thereof, the Parties agree to amend certain other terms and conditions of the Agreement; and |
E. | Capitalized terms used herein and not otherwise defined will have the meaning assigned to them in the Agreement. The terms herein, hereof and hereunder and words of similar import refer to this Amendment No. 1. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Proprietary & Confidential AZUL A320 Neo
PA - AMDT 1 Ref. CT1307022- December 2015
Execution version
CONFIDENTIAL TREATMENT REQUESTED
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. | PREDELIVERY PAYMENTS |
1.1 | The Predelivery Payment schedule set forth in clause 5.3.2 of the Agreement as amended by Paragraph 1 of Letter Agreement 3 to the Agreement shall be deleted in its entirety and replaced by the following: |
QUOTE
5.3.2 | Such Predelivery Payments shall be made in accordance with the following schedule: |
PDP Number | Due Date of Payment | Amount | ||
[*****] | [*****] | [*****] |
Where PDPRP means [*****].
In the event of the above schedule resulting in any Predelivery Payment falling due prior to the date of signature of the Agreement, such Predelivery Payments shall be made upon signature of this Agreement.
UNQUOTE
1.2 | As of the date of this Amendment No. 1, the Seller acknowledges receipt from the Buyer of [*****] in the PDP schedule set forth in Clause 5.3.2 of the Agreement as amended by Clause 1.1 above. |
2. | [*****] |
2.1 | In consideration of the modification to the Predelivery Payment schedule granted by the Seller to the Buyer in Paragraph 1 above, the Parties agree that Paragraph 1.1 of Letter Agreement No. 4 to the Agreement is hereby deleted in its entirety and replaced by the following: |
QUOTE
1. | [*****] |
[*****]
UNQUOTE
2.2 | [*****] |
3. | MISCELLANEOUS PROVISIONS |
3.1 | Effect of the Amendment |
The Parties hereby agree that this Amendment No. 1 shall enter into full force and effect from the date first mentioned above.
The Agreement will be deemed amended to the extent herein provided and all its provisions, and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. This Amendment No. 1 supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter of this Amendment No. 1.
Both parties agree that this Amendment No. 1 will constitute an integral, non-severable part of the Agreement and shall be governed by its provisions, except that if the Agreement and this Amendment No. 1 have specific provisions that are inconsistent, the specific provisions contained in this Amendment No. 1 shall govern.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Proprietary & Confidential AZUL A320 Neo
PA - AMDT 1 Ref. CT1307022- December 2015
Execution version
In the event of any inconsistency between the terms and conditions of the Agreement, its Exhibits and letter agreements and the present Amendment No. 1, the latter shall prevail to the extent of such inconsistency, whereas the part not concerned by such inconsistency shall remain in full force.
3.2 | Confidentiality |
This Amendment No. 1 is subject to the confidentiality provisions set forth in Clause 22.12 of the Agreement.
3.3 | Law and Jurisdiction |
This Amendment No. 1 shall be governed by and construed in accordance with the laws of England.
Any dispute arising out of or in connection with this Agreement, including but not limited to its existence, validity, interpretation, implementation, breach, termination and/or enforcement, shall be within the exclusive jurisdiction of the Courts of England.
3.4 | Contracts (Rights of Third Parties) Act 1999 |
The parties do not intend that any term of this Amendment No. 1 shall be enforceable solely by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to this Amendment No. 1.
3.5 | Severability |
In the event that any provision of this Amendment No. 1 should for any reason be held ineffective, the remainder of this Amendment No. 1 shall remain in full force and effect. To the extent permitted by applicable law, each party hereto hereby waives any provision of law, which renders any provision of this Amendment No. 1 prohibited or unenforceable in any respect.
This Amendment No. 1 shall not be varied or modified except by an instrument in writing executed by both parties or by their duly authorised representatives.
3.6 | Counterparts |
This Amendment No. 1 may be executed by the Parties in separate counterparts, each of which when so signed and delivered will be an original, but all such counterparts will together constitute one and the same instrument.
3.7 | Assignment |
Notwithstanding any other provision of this Amendment, this Amendment and the rights and obligations of the Buyer hereunder will not be assigned or transferred in any manner without the prior written consent of the Seller, and any attempted assignment or transfer in contravention of the provisions of this Paragraph will be void and of no force and effect.
Proprietary & Confidential AZUL A320 Neo
PA - AMDT 1 Ref. CT1307022- December 2015
Execution version
IN WITNESS WHEREOF this Amendment No. 1 was entered into the day and year first above written.
Agreed and accepted |
Agreed and accepted | |
For and on behalf of |
For and on behalf of | |
AZUL FINANCE LLC |
AIRBUS S.A.S. | |
/s/ John Peter Rodgerson |
/s/ Christophe Mourey | |
Name: John Peter Rodgerson |
Name: Christophe Mourey | |
Its: President |
its: Senior Vice President Contracts |
Azul Linhas hereby consents to the amendments to the Agreement contained herein and acknowledges that the Guarantee remains in full force and effect notwithstanding such amendments.
For and on behalf of |
AZUL LINHAS AÉREAS BRASILEIRAS S.A. |
/s/ John Peter Rodgerson |
Name: John Peter Rodgerson |
Its: Attorney in Fact |
Proprietary & Confidential AZUL A320 Neo
PA - AMDT 1 Ref. CT1307022- December 2015
Exhibit 10.10
CONFIDENTIAL TREATMENT REQUESTED REDACTED COPY
Confidential Treatment has been requested for portions of this Exhibit. Confidential
portions of this Exhibit are designated by [*****]. A complete version of this Exhibit has
been filed separately with the Securities and Exchange Commission.
PURCHASE AGREEMENT COM0384-14
Between
EMBRAER S.A.
And
Azul Finance 2 LLC
INDEX
ARTICLE |
PAGE | |||||
1. | INTERPRETATION |
4 | ||||
2. | SUBJECT |
6 | ||||
3. | PRICE |
6 | ||||
4. | PAYMENT |
7 | ||||
5. | DELIVERY |
8 | ||||
6. | CERTIFICATION |
8 | ||||
7. | ACCEPTANCE AND TRANSFER OF OWNERSHIP |
9 | ||||
8. | STORAGE CHARGE |
11 | ||||
9. | DELAYS IN DELIVERY |
11 | ||||
10. | DELIVERY INSPECTION |
15 | ||||
11. | CHANGES |
16 | ||||
12. | WARRANTY AND GUARANTEES |
18 | ||||
13. | PRODUCT SUPPORT PACKAGE |
18 | ||||
14. | ASSIGNMENT |
18 | ||||
15. | RESTRICTIONS AND PATENT INDEMNITY |
19 | ||||
16. | MARKETING PROMOTIONAL RIGHTS |
21 | ||||
17. | TAXES |
21 | ||||
18. | APPLICABLE LAW |
22 | ||||
19. | JURISDICTION |
22 | ||||
20. | TERMINATION |
22 | ||||
21. | PURCHASE RIGHT AIRCRAFT |
24 | ||||
22. | INDEMNITY |
26 | ||||
23. | NOTICES |
26 | ||||
24. | CONFIDENTIALITY |
27 | ||||
25. | COMPLIANCE WITH LAWS |
27 | ||||
26. | SEVERABILITY |
27 | ||||
27. | NON-WAIVER |
28 | ||||
28. | INTEGRATED AGREEMENT |
28 | ||||
29. | NEGOTIATED AGREEMENT |
28 | ||||
30. | COUNTERPARTS |
28 | ||||
31. | ENTIRE AGREEMENT |
28 | ||||
32. | REPRESENTATIONS AND WARRANTIES |
28 |
Purchase Agreement COM0384-14 Execution Version | Page 2 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENTS
A | | [*****] AIRCRAFT CONFIGURATION | ||||
A1 | | [*****] AIRCRAFT CONFIGURATION | ||||
B | | FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE | ||||
| Exhibit 1 to Attachment B (LIST OF TECHNICAL PUBLICATIONS) | |||||
Exhibit 2 to Attachment B (SPECIAL INSURANCE CLAUSES) | ||||||
C | | WARRANTY CERTIFICATE MATERIAL AND WORKMANSHIP | ||||
D | | PRICE ESCALATION FORMULA | ||||
E | | AIRCRAFT DELIVERY SCHEDULE | ||||
F | | SERVICE LIFE GUARANTEE | ||||
G | | [*****] | ||||
H | | DISPATCH RELIABILITY GUARANTEE | ||||
I | | PERFORMANCE GUARANTEE |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0384-14 Execution Version | Page 3 of 30 |
PURCHASE AGREEMENT COM0384-14
THIS AGREEMENT IS ENTERED INTO THIS TUESDAY OF 30 DECEMBER, 2014 BY AND BETWEEN EMBRAER S.A. AND AZUL FINANCE 2 LLC, FOR THE PURCHASE AND SALE OF CERTAIN EMBRAER AIRCRAFT (AS DEFINED BELOW).
THE SALE COVERED BY THIS AGREEMENT SHALL BE GOVERNED SOLELY BY THE TERMS AND CONDITIONS HEREIN SET FORTH, AS WELL AS BY THE PROVISIONS SET FORTH IN THE ATTACHMENTS HERETO.
1. | INTERPRETATION |
1.1. Definitions
For the purpose of this Agreement, the following definitions are hereby adopted by the Parties:
1.1.1. Actual Delivery Date: shall mean, with respect to each Aircraft, the date on which Buyer obtains title to that Aircraft in accordance with Article 7.
1.1.2. ADs: shall mean effective airworthiness directives issued by either the ANAC or the Airworthiness Authority, in connection with and with respect to the Aircraft.
1.1.3. Agreement or Purchase Agreement: shall mean this purchase agreement.
1.1.4. Aircraft: shall mean the, Embraer 195-E2 (certification designation ERJ 190-400) aircraft manufactured by Embraer according to Attachment A, for sale to Buyer pursuant to this Agreement, equipped with two engines identified therein (or, where there is more than one of such aircraft, each of such aircraft).
1.1.5. Aircraft Basic Price: shall mean the Aircraft price, as defined in Article 3.1.
1.1.6. Aircraft Purchase Price: shall mean the Aircraft price, effective on the relevant Aircrafts Contractual Delivery Date, resulting from the application of the Escalation Formula to the Aircraft Basic Price as set forth in Article 3.3.
1.1.7. Airworthiness Authority: shall mean the Brazilian Civil Aviation Authority Agência Nacional de Aviação (the ANAC), or such other entity in Brazil from time to time charged with the administration of civil aviation.
1.1.8. Business Day(s): shall mean a day on which banks are open for business in São José dos Campos and São Paulo in Brazil, and New York in the United States.
1.1.9. Buyer: shall mean Azul Finance 2 LLC, a company organized and existing under the laws of Delaware with its principal place of business at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware 19801, USA.
1.1.10. Contractual Delivery Date: unless as otherwise provided for herein, the Contractual Delivery Date shall mean the last Business Day of each month for each Aircraft as provided for in Attachment E hereto and as referred to in Article 5.
1.1.11. Day(s): shall mean calendar days.
Purchase Agreement COM0384-14 Execution Version | Page 4 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
1.1.12. Embraer: shall mean Embraer S.A., a Brazilian corporation organized and existing under the laws of Brazil with its principal place of business at Av. Brigadeiro Faria Lima, 2170, São José dos Campos, SP, Brazil.
1.1.13. Escalation Formula: shall mean the escalation formula contained in Attachment D.
1.1.14. FAF: shall mean delivery of an Aircraft in fly-away-factory condition (equivalent to Ex-Works condition Incoterms 2010 flying from the place designated in Article 5 and with a certificate of airworthiness or equivalent at the time issued by ANAC or its successors and provided by Embraer).
1.1.15. [*****]: shall mean the [*****] referred to in Article 4.1.1.
1.1.16. LIBOR: for purposes of calculating any rate under this Agreement for any period for which the same is to be established, shall mean a rate per annum equal to the US$ Six-Month LIBOR published or reported by the Telerate Channel (equal to the US$ interest rate for a period of six-months displayed on page LIBOR 01 of the Reuters screen or any successor or substitute page of such screen, providing rate quotations comparable to those currently provided on such page of such screen) at 11:00 a.m. London time, in the London interbank market on the first day of such period (or if such date is not a London business day, the immediately preceding London business day) and in an amount comparable to the amount for which such rate is to be established. For purposes of this definition, London business day means any day excluding Saturday, Sunday and any day on which commercial banks in London, England are authorized or required by law to remain closed.
1.1.17. Major Changes: shall mean the changes to the design of the Aircraft, as defined in Article 11.2.2.
1.1.18. Mandatory Service Bulletins: shall mean the mandatory service bulletins applicable to the Aircraft, which are issued by Embraer to implement the ADs referred to in Article 11.4.
1.1.19. Minor Changes: shall mean the changes to the design of the Aircraft defined as per the terms and conditions of Article 11.2.1.
1.1.20. [*****].
1.1.21. Parties: shall mean Embraer and Buyer.
1.1.22. Product Support Package: shall mean the products and Services to be provided by Embraer as per Article 13.
1.1.23. Purchase Right Aircraft: shall have the meaning set out in Article 21.
1.1.24. Scheduled Inspection Date: shall mean the date on which a certain Aircraft is available for inspection, acceptance and subsequent delivery to Buyer, as per the terms and conditions of Article 7.1.
1.1.25. Services: shall mean the services, as defined in Article 2.3 of Attachment B.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0384-14 Execution Version | Page 5 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
1.1.26. Technical Publications: shall mean the technical documentation pertaining and related to the Aircraft, as identified in Article 2.2 and Exhibit 1 of Attachment B.
1.1.27. Specification: shall mean the Aircraft configuration described in Attachment A, as such may be amended overtime pursuant to Article 11, together with the Technical Description incorporated by reference therein.
1.1.28. USD or US$: shall mean the legal currency of the United States of America.
1.1.29. Vendor: shall mean third party suppliers of equipment, parts, tools, ground support and test equipment to Embraer to use on or in connection with the Aircraft.
1.1.30. Working Day(s): shall mean a day, other than Saturday, Sunday or holiday, on which Embraer in São José dos Campos, SP, Brazil is open for business.
1.2 Construction
In this Agreement unless otherwise expressly provided:
1.2.1 Words importing the plural shall include the singular and vice versa,
1.2.2 A reference to an Article, Attachment or Exhibit is a reference to an Article, Attachment or Exhibit to this Agreement, and
1.2.3 The headings in this Agreement are to be ignored in construing this Agreement.
2. | SUBJECT |
Subject to the terms and conditions of this Agreement:
2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of [*****] Aircraft;
2.2 Embraer shall provide to Buyer the Services and the Technical Publications as described in Attachment B to this Agreement; and
2.3 Buyer shall have the option to purchase up to [*****] Purchase Right Aircraft, in accordance with Article 21.
3. | PRICE |
3.1 The Aircraft Basic Price of each Aircraft is [*****].
3.2 The Services and Technical Publications are to be provided [*****] in accordance with Attachment B. Additional technical publications as well as other services shall be billed to Buyer in accordance with Embraers rates prevailing at the time Buyer places a purchase order for such additional technical publications or other services.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0384-14 Execution Version | Page 6 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
3.3 The Aircraft Basic Price, as may be amended pursuant to the provisions of this Agreement, shall be escalated according to the Escalation Formula. Such price as escalated until the Contractual Delivery Date shall be the Aircraft Purchase Price and it will be provided by Embraer to Buyer [*****] prior to each Aircrafts Contractual Delivery Date.
4. | PAYMENT |
4.1 To secure the Aircraft delivery positions set forth in Article 5 and to ensure delivery of Aircraft in accordance with the delivery schedule set forth in Article 5, Buyer shall pay Embraer for each Aircraft the amounts set forth in Article 3 in accordance with the terms and conditions contained in this Article 4. The Parties acknowledge that each of the Aircraft and the corresponding delivery positions have been reserved for purchase by Buyer and such Aircraft have been removed from the market. The amounts specified in Article 3 shall be paid by Buyer by wire transfer in immediately available USD funds, to a bank account to be timely informed by Embraer.
The Aircraft Purchase Price for each Aircraft shall be paid by Buyer, as follows:
4.1.1 Buyer has already paid to Embraer an [*****] in the amount of [*****] per each Aircraft, [*****]. The aggregate amount of such [*****] shall be applied by Embraer towards payment for each Aircraft.
4.1.2 A [*****] payment of each Aircraft Basic Price, less the relevant [*****], is due and payable within [*****] following the execution of this Agreement.
4.1.3 A [*****] payment of each Aircraft Basic Price is due and payable [*****] to each relevant Aircrafts Contractual Delivery Date.
4.1.4 A [*****] payment of each Aircraft Basic Price is due and payable [*****] to each relevant Aircrafts Contractual Delivery Date.
4.1.5 A [*****] payment of each Aircraft Basic Price is due and payable [*****] to each relevant Aircrafts Contractual Delivery Date.
4.1.6 The balance of each Aircraft Purchase Price shall become due and payable [*****] of each relevant Aircraft by Buyer, as defined in Article 7.3.
4.2 In the event Buyer fails to pay any amount payable as set forth in Articles 4.1.2 through 4.1.5 hereunder on the relevant due date, Buyer shall pay to Embraer immediately upon demand made from time to time interest on such amount, or any part thereof, not paid from the date on which the same was due and payable until the date on which the same is paid in full at the [*****] per annum prorated on any part thereof. For the payments referred to under Article 4.1.6, interest shall be calculated as per Article 7.8. Without prejudice to Embraers rights set forth in Article 4.3, interest accrued will be invoiced by Embraer [*****], beginning [*****] after the date on which payments should have been made, and payment thereof shall be made by Buyer in accordance with the instructions contained therein.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0384-14 Execution Version | Page 7 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
4.3 Without prejudice to the payment of interest on late payments set forth above, should Buyer fail to make any payment under Article 4.1 above on or before the due date and if such failure shall not have been cured within [*****] following the date on which the amount was due and payable, Embraer shall have the right to [*****]. Notwithstanding the foregoing, Embraer shall have the right to terminate this Agreement in relation to the affected Aircraft in accordance with Article 20.3 if such failure shall not have been cured within [*****] following the date on which the amount was due and payable.
4.4 Net payments: all payments to be made by Buyer under this Agreement shall be made without any set off or withholding whatsoever, except for any taxes, fees, imposts, duties or charges, that are the responsibility of Embraer pursuant to Article
17 . If Buyer is obliged by law to make any deduction or withholding from any such payment, the amount due from Buyer in respect of such payment shall be increased to the extent necessary to ensure that, after the making of any such deduction or withholding, Embraer receives a net amount equal to the amount Embraer would have received had no such deduction or withholding been required to be made.
4.5 Payment Date: unless otherwise agreed by the Parties in writing, payment of the amounts referred in Articles 4.1.2, 4.1.3, 4.1.4 and 4.1.5, shall be made by Buyer on or before [*****] on which each of such payments is due.
4.6 [*****]: except as expressly determined otherwise in this Agreement, or as required by law, all payments made by Buyer to Embraer hereunder shall be [*****].
5. | DELIVERY |
5.1 Subject to payment in accordance with Article 4 and the provisions of Articles 7 and 9, Embraer shall offer the Aircraft to Buyer for inspection, acceptance and subsequent delivery in FAF condition, at [*****] within the relevant month that is identified as a Contractual Delivery Date contained in Attachment E to this Agreement.
6. | CERTIFICATION |
6.1 The Embraer 195-E2 [*****] shall be certified [*****] by the ANAC airworthiness authority pursuant to the RBAC 25 certification requirements.
6.2 The Aircraft shall be manufactured by Embraer in compliance with ANAC certification and the operational requirements of the Airworthiness Authority, except for the items that are under Buyers regulatory responsibility pursuant to the operational requirements of the Airworthiness Authority and are not otherwise required to be provided by Embraer under this Agreement. Buyer shall be solely responsible for determining which operational requirements of the Airworthiness Authority are to be incorporated into the Aircraft configuration and for informing Embraer thereof. All such requirements, to the extent not included in Attachment A at the time of execution of this Agreement, shall be treated in accordance with the terms and conditions of Article 11.5.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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6.3 The Aircraft shall be delivered to Buyer with a certificate of airworthiness or equivalent issued by the ANAC. Embraer [*****] that the condition of the Aircraft at delivery and the documentation delivered with the Aircraft, including the above mentioned certificate of airworthiness shall be sufficient for Buyer to obtain a certificate of airworthiness from the Airworthiness Authority. Subject to the above, it shall be Buyers responsibility to obtain such certificate of airworthiness and to register the Aircraft, at Buyers sole expense.
7. | ACCEPTANCE AND TRANSFER OF OWNERSHIP |
7.1 Unless Buyer is notified otherwise, the Aircraft shall be delivered in accordance with the provisions and schedules specified in Article 5. Embraer shall initially give Buyer [*****] notice of the week of anticipated Aircraft delivery, such date to be no later than the Contractual Delivery Date according to Article 23 (Notices). Embraer shall then give Buyer [*****] notice according to Article 23 (Notices) of each of the weeks on which Embraer considers that each Aircraft will be ready for inspection, acceptance and subsequent delivery to the Buyer (the last Day of such notified delivery week to be no later than the Contractual Delivery Date and [*****]. The final notification shall be issued by Embraer to Buyer no less than [*****] prior to the actual date that the Aircraft will be made available for Buyers inspection, which date shall be defined as the Scheduled Inspection Date, on which date Buyer shall promptly start inspecting such Aircraft.
7.2 Buyer shall be allowed a reasonable period of time but in no event greater than [*****] to inspect and conduct an acceptance flight of each Aircraft prior to its delivery. Embraer will provide the fuel and insurance for the Aircrafts acceptance flight in accordance with the insurance policy of Embraer. After such acceptance flight, each Aircraft will be delivered by Embraer to Buyer [*****].
7.3 If Buyer finds that the Aircraft is in compliance with the Specification and the Aircraft is in FAF condition, Buyer shall promptly execute and deliver a certificate of acceptance of such Aircraft and pay any and all amounts then due and payable pursuant to this Agreement, including but not limited to all amounts referred to in Articles 4.1, 4.2, 7.8 and 8 as applicable and accept delivery of such Aircraft, whereupon the necessary title and risk transfer documents shall be executed in order to effect title transfer. Buyers acceptance of an Aircraft shall be deemed a waiver of any rights to revoke acceptance of the Aircraft for any reason, including for defects unknown to Buyer at the time of acceptance.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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7.4 Buyer may decline to accept an Aircraft which Buyer reasonably believes does not materially comply with the Specification or is not in an airworthy condition.
7.5 If Buyer declines to accept an Aircraft, Buyer shall immediately give to Embraer written notice of all specific reasons for such refusal and Embraer shall have [*****], commencing on [*****] after receipt of such notice, to take all necessary actions in order to resubmit the Aircraft to Buyer for re-inspection.
7.6 Buyer shall be allowed [*****] to re-inspect the Aircraft, starting [*****] upon receipt of notice from Embraer that all necessary actions were taken. In the event Buyer declines to accept an Aircraft after this procedure is carried out twice, the Parties shall convene immediately following final refusal to accept the Aircraft in order to negotiate possible solutions. If within [*****] counted from the date in which Embraer receives notice of such final refusal to accept the Aircraft, Embraer and Buyer fail to reach an agreement in writing, [*****].
7.7 Provided Embraer tenders the Aircraft for inspection in compliance with the Specification and in FAF condition pursuant to this Article 7, should Buyer fail to perform the acceptance and transfer of title to the Aircraft or fail to give Embraer written notice of specific reasons for refusal, within the periods provided for and in accordance with this Article 7, Embraer shall be entitled, at its discretion, and after written notice provided to Buyer, to either re-negotiate the terms of this Agreement with Buyer or terminate this Agreement with regard to the affected Aircraft pursuant to Article 20.3. Embraer rights to re-negotiate or terminate this Agreement shall only become effective if such default of Buyer has not been cured within [*****] counted from the Scheduled Inspection Date.
7.8 Notwithstanding the provisions of Article 7.7 and in addition to Embraers rights pursuant to Article 20.3, provided Embraer tenders the Aircraft for inspection in compliance with the Specification and in FAF condition pursuant to this Article 7, should Buyer fail to perform the acceptance and transfer of title to the Aircraft within the time period specified in Articles 7.2, 7.3, 7.5 and 7.6, as applicable, interest will accrue [*****] calculated over the unpaid balance of the relevant Aircraft Purchase Price, prorated from the date on which Buyer should have completed the inspection or re-inspection of the Aircraft, as the case may be, until the date in which transfer of title occurs or until the date Embraer terminates this Agreement pursuant to Article 7.7, whichever occurs first. Without prejudice to Embraers rights set forth in Article 7.7, interest accrued will be invoiced by Embraer [*****], beginning [*****] after the date on which the Aircraft acceptance or transfer of title should have been performed, and payment thereof shall be made by Buyer in accordance with the instructions contained therein.
7.9 Embraer agrees to indemnify and hold harmless each of Buyer and Buyers officers, agents, employees and assignees (collectively, the Buyer Indemnitees) from and against all liabilities, damages, losses judgments, claims and suits, including costs and expenses incident thereto (Claims), which may be suffered by, accrued against, be charged to or recoverable from such Buyer Indemnitees by reason of loss or damage to property or by reason of injury or death of any person resulting from or in any way connected with the tests on the ground or in-flight prior to the Actual Delivery Date of the relevant Aircraft, but for those Claims which are caused by the gross negligence or willful misconduct of Buyer Indemnitees.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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8. | STORAGE CHARGE |
8.1 A storage charge equal to [*****] per Day shall be charged by Embraer to Buyer commencing on:
8.1.1 Buyers failure to perform inspection or re-inspection (as applicable) of the Aircraft, per the date or time period specified in writing by Embraer, according to Article 7; or
8.1.2 Buyers acceptance of an Aircraft when Buyer defaults in the fulfillment of any payment due and in taking title to such Aircraft immediately thereafter; or
8.1.3 Buyers failure to remove an Aircraft from [*****] after title transfer has occurred.
8.2 If however, Buyer notifies Embraer in writing [*****] in advance of its expected delay in the performance of its obligations set forth in Articles 8.1.1, 8.1.2 and 8.1.3 above, the storage charge shall commence on [*****] after the occurrence of the events set forth in Articles 8.1.1, 8.1.2 or 8.1.3 above, as applicable.
8.3 In the event that the Aircrafts Contractual Delivery Date or [*****] must be extended by Embraer due to Buyers failure to perform any action or provide any information contemplated by this Agreement, the storage charge shall commence on [*****] after the original Contractual Delivery Date relative to such Aircraft.
8.4 Buyer shall pay the storage charge as set forth in Articles 8.1. or 8.3., as applicable, in USD, per each month of delay or prorated for any part thereof, within [*****] after the presentation of each invoice by Embraer.
9. | DELAYS IN DELIVERY |
Except as provided in Articles 9.1 and 9.3, Embraer warrants that there shall be no delays in deliveries of Aircraft. The sole remedies for delays in delivery of any Aircraft are those provided in this Article 9 and Article 20.2.
9.1 Excusable Delays:
9.1.1 Embraer shall not be held liable or be found in default for any delays in the delivery of an Aircraft beyond [*****], resulting from the following events or occurrences (hereinafter referred to as Excusable Delays): (a) force majeure, (including, but not limited to acts of God, war or state of war, civil war, insurrection, fire, accident, explosion, flood, act of government, requisition, strike, labor disputes causing cessation or interruption of work, including but not limited to walkouts, sick-outs, protests or slowdowns), (b) inability despite all due and commercially reasonable efforts to procure any Aircraft related materials, equipment, accessories or parts, [*****], or (c) any delay in the delivery of the Aircraft resulting from any failure by Buyer to perform any material action or provide any material information contemplated by this Agreement (d) delays resulting from any other cause to the extent it is beyond Embraers control and does not result from Embraers fault or negligence, or (e) [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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[*****].
9.1.2 As soon as practicable, but no more than [*****] after the occurrence of any of the above mentioned events which constitute causes of Excusable Delays in the delivery of an Aircraft beyond the Contractual Delivery Date or in the performance of any act or obligation to be performed by Embraer under this Agreement, Embraer undertakes to send a written notice to Buyer, including a description of the details involved and an estimate of the effects expected upon the timing of the performance of its contractual obligations.
9.1.3 Any such delays shall extend the time for delivery of an Aircraft or the Product Support Package or the Services, by the same number of Days required for the cause of delay to be remedied, subject to the limit indicated in Article 9.1.4. Embraer undertakes to use commercially reasonable efforts to avoid or remove any such cause of delay and to minimize its effect on the Contractual Delivery Date of an Aircraft. [*****]. For the avoidance of doubt, Embraer shall have no obligations under this Article 9.1.3 and Buyer shall have no rights under this Article 9.1.3 with respect to delays occurring pursuant to item 9.1.1(c).
9.1.4 If the cause of such Excusable Delay is such as to last longer than [*****] or to render the performance of this Agreement impossible, as a whole or with respect of one or more specific undelivered Aircraft, then the Parties shall attempt to renegotiate the terms of this Agreement accordingly, within [*****] following the last Day of Excusable Delay as provided for herein. In the event that the Parties fail to agree on such terms, either Party shall have the right to terminate this Agreement following the last Day of such [*****] period, with respect of one or more specific undelivered Aircraft, as applicable, without liability to either Party, except as provided for in Article 20.2(i).
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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9.1.5 If, however, the cause of such Excusable Delay is attributable to Buyer in accordance with Article 9.1.1.(c), Buyer shall not be entitled to terminate this Agreement in accordance with Article 9.1.4 and upon a termination by Embraer the provisions of Article 20.3 shall apply. [*****].
9.2 Non-Excusable Delays:
9.2.1 If the delivery of an Aircraft is delayed, and such delay does not constitute an Excusable Delay (hereinafter referred to as Non-Excusable Delays), by more than [*****] after [*****] for such Aircraft, Buyer will be entitled to claim from Embraer liquidated damages in the following amounts:
[*****] [*****]
[*****] [*****]
Such liquidated damages shall apply for each Day of delay in excess of the above mentioned [*****] up to the date that the Aircraft is available for inspection and acceptance by, and subsequent delivery to Buyer by means of written confirmation of the successful completion of ground and flight tests performed by Embraer, to be provided as per Article 7.1, it being understood that such liquidated damages will not, in any event, exceed [*****] of the Aircraft Basic Price of the delayed Aircraft and that it will only be due and payable by Embraer to Buyer within [*****] after Buyer pays to Embraer the total Aircraft Purchase Price or within [*****] after this Agreement is terminated pursuant to this Article 9.2, in respect of the affected Aircraft. The Parties acknowledge and agree that such liquidated damages are not a penalty, but are a fair and reasonable estimate of Buyers potential damages.
9.2.2 Upon the occurrence of any event which constitutes a Non-Excusable Delay in the delivery of an Aircraft, Embraer shall, as soon as practicable, send a written notice to Buyer, within a reasonable period of time, including a description of the delays and an estimate of the effects expected upon the delivery of the Aircraft. [*****].
9.2.3 If the cause of such Non-Excusable Delay is such as to last longer than [*****] or to render the performance of this Agreement impossible, as a whole or with respect of one or more specific undelivered Aircraft, then the Parties shall attempt to renegotiate the terms of this Agreement accordingly, within [*****] as provided for herein. In the event that the Parties fail to agree on such terms, [*****] to terminate this Agreement following the [*****] with respect of one or more specific undelivered Aircraft, as applicable, without liability to either Party, [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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Notwithstanding the provisions in the paragraph immediately above, if the Non-Excusable Delay results from a delay described in [*****], without liability to either Party, except as provided for in Article 20.2(ii).
9.2.4 It is agreed between the Parties that if, with respect to a delayed Aircraft, Embraer does not receive a claim for liquidated damages pursuant to Article 9.2.1, from Buyer, within [*****] the Contractual Delivery Date of such Aircraft, Buyer shall be deemed to have fully waived its right to such liquidated damages.
9.3 Delay Due to Loss or Structural Damage of the Aircraft
If, before acceptance of an Aircraft it is lost, destroyed or, in the reasonable opinion of Embraer, is damaged beyond economic repair (Total Loss), then Embraer will notify Buyer to this effect as soon as reasonably possible. Embraer will specify in its notice, or as soon after the notice as possible, the earliest date that an aircraft to replace the Aircraft may be delivered to Buyer and such date shall be the revised Contractual Delivery Date for the replacement aircraft. However, in the event the specified revised Contractual Delivery Date [*****] after the original Contractual Delivery Date, [*****] and: (i) Buyer notifies Embraer of such acceptance within [*****] of the date of receipt of the notice from Embraer, and (ii) the Parties execute an amendment to this Agreement recording the variation in the Contractual Delivery Date, provided however that in case the Total Loss is caused [*****] and (ii) in addition to the provisions of Attachment D.
If this Agreement terminates in relation to an Aircraft in accordance with this Article 9.3, such termination shall discharge the Parties from all obligations and liabilities hereunder with respect to such Aircraft and related Services, except that Embraer shall [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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10. | DELIVERY INSPECTION |
10.1 Buyer may elect to observe the manufacturing of the Aircraft in order to verify that the Aircraft is manufactured in accordance with the procedures specified in this Agreement and to all applicable quality standards. [*****] before the Contractual Delivery Date of the first Aircraft, Embraer shall provide Buyer with a description of the relevant milestones of the manufacturing process which Buyer may observe. Upon receipt of such description Buyer shall promptly inform Embraer which milestones it elects to observe. Embraer will then notify Buyer the approximate dates of such milestones and Buyer shall promptly inform the names of no more than two (02) of its representatives that will act as observers (the Observers).The Observers shall be given access to the relevant technical data as reasonably necessary. Observers will, at all times, be supported by the quality assurance personnel of Embraer and shall address any of their observations, comments, doubts or requests to such personnel, provided however that Embraer shall not be deemed to have received any request that may affect the performance of this Agreement unless and until such request is made by Buyer in accordance with Article 23. Observers shall not interfere, disturb, delay or in any other way hinder the manufacture or assembly of the Aircraft, any other aircraft or any other activities carried out by Embraer.
10.2 In order to perform the delivery inspection and acceptance of each Aircraft in accordance with Article 7, Buyer shall send [*****] authorized representatives (the Authorized Representatives) to the facilities of Embraer. Buyer shall communicate to Embraer the names of its Authorized Representatives, by means of written notice, at least [*****] prior to each relevant Aircrafts [*****] specified in Article 5.
10.3 Such Authorized Representatives, or other representatives indicated by Buyer, shall be authorized and duly empowered to sign the acceptance and transfer of title and risk documents and accept delivery of the Aircraft pursuant to Article 7.
10.4 For the purposes subject hereof, Embraer shall provide [*****] communication facilities (telephone, facsimile and high speed internet connection) for Buyers Observers and Authorized Representatives, as well as the necessary tools, measuring devices, test equipment and technical assistance as may be necessary to perform acceptance tests. Embraer shall also make available to Observers and Authorized Representatives (i) [*****] local transportation between Embraer facilities and hotel in Sao Jose dos Campos during normal working hours on the relevant Working Days, and (ii) [*****] lunch at the canteen at Embraer facilities on Working Days.
10.5 Buyers Observers and Authorized Representatives shall observe Embraers administrative rules and instructions while at Embraers facilities.
10.6 Buyers Observers and Authorized Representatives shall be allowed exclusively in those areas related to the subject matter hereof. Buyer agrees to hold harmless Embraer from and against all and any kind of liabilities in respect to such representatives, for whom Buyer is solely and fully responsible under all circumstances and in any instance, except to the extent they arise from the gross negligence or the willful misconduct of Embraer, its officers, employees and agents.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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11. | CHANGES |
11.1 Each Aircraft will comply with the Specification and shall incorporate all modifications which are classified as ADs mandatory by ANAC or the Airworthiness Authority as provided in Article 11.4, or those agreed upon by Buyer and Embraer in accordance with this Article.
11.2 The Parties hereby agree that changes can be made by Embraer in the design of the Aircraft, the definition of which and its respective classification shall be in compliance to the Aircraft type specification, as follows:
11.2.1 Minor Changes: defined as those modifications which shall not adversely affect the Aircraft in any of the following characteristics:
(i) | Performance, weight or balance; |
(ii) | Structural strength, flight qualities, operation; |
(iii) | Interchangeability of parts defined by Embraer as interchangeable; |
(iv) | Operational safety; |
(v) | Ease of maintenance; |
(vi) | Noise and environmental control; |
(vii) | Aircraft delivery and price. |
11.2.2 Major Changes: defined as those modifications which affect at least one of the topics mentioned in Article 11.2.1.
11.3 Embraer shall have the right, but not the obligation, to incorporate Minor Changes in the Aircraft still in the production line at its own cost, without the prior consent of Buyer.
11.4 Embraer shall convey those Major Changes that are classified as ADs by means of service bulletins approved by the Airworthiness Authority and/or ANAC, as appropriate. Service bulletins that implement such ADs shall be referred to as Mandatory Service Bulletins. Embraer shall incorporate Mandatory Service Bulletins as follows:
11.4.1 Compliance required before Actual Delivery Date: Embraer shall incorporate Mandatory Service Bulletins in undelivered Aircraft [*****] in a reasonable period of time if the compliance time for such Mandatory Service Bulletins is before Actual Delivery Date of an Aircraft. Embraer shall not be liable for any delays resulting from incorporation of Mandatory Service Bulletins when the Aircraft has already passed the specific production stage affected by the incorporation of said change but Embraer shall use its commercially reasonable efforts to incorporate such changes prior the Actual Delivery Date and to minimize any delays in delivery.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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11.4.2 Compliance required after Contractual Delivery Date: During a time period of [*****] following the Aircraft Actual Delivery Date the applicable Aircraft warranty coverage periods specified in the Aircraft Warranty Certificate as provided in Attachment C, Embraer shall provide parts kits for Mandatory Service Bulletins that are issued either (i) before the relevant Aircrafts Actual Delivery Date but with a compliance time after such date or (ii) after the relevant Aircrafts Actual Delivery Date. Such kits shall be provided [*****]. [*****] Embraer shall not be liable for any down-time of delivered Aircraft that may be necessary for the incorporation of any changes. When flight safety is affected, such changes shall be immediately incorporated. If warranty coverage is not available or applicable pursuant to the terms of Attachment C, the provisions of Article 11.5 shall apply. [*****].
11.5 Except for the Major Changes referred to in Article 11.4, any other Major Changes as defined in Article 11.2.2 and/or Major Changes such as (i) any change developed by Embraer as product improvement, (ii) any change required by Buyer in relation to the Aircraft configuration, (iii) any change in the certification regulations presented in the Technical Description, which are required by the Airworthiness Authority as a consequence of alterations, amendments and/or innovations of these applicable regulations [*****], or (iv) any change due to alterations, amendments and/or innovations of legal requirements by other authorities (including without limitation environmental authorities) that have the effect of rendering Aircraft parts obsolete or non-compliant, shall be considered as optional and Embraer shall submit to Buyer a Proposal of Major Change (PMC) describing the impacts of such change. Should Buyer not approve such PMC in writing, the change shall not be incorporated in the Aircraft.
11.6 Any Major Change to the Aircraft, made in accordance with the foregoing paragraphs, which affect the provisions of Attachment A hereto and amend the Specification accordingly, shall be incorporated in said Attachment by means of an amendment to this Agreement at a frequency to be mutually agreed.
11.7 Except as set forth herein, , the Aircraft shall, on the Scheduled Inspection Date, comply with the Specification as from time to time amended pursuant to Article 11.6. Determination of such compliance shall be made by Buyer pursuant to Article 7.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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12. | WARRANTY AND GUARANTEES |
12.1. Warranty: the materials and workmanship relative to the Aircraft subject of this Agreement will be warranted exclusively in accordance with the terms and conditions specified in Attachment C.
12.2 Guarantees: Embraer hereby guarantees to Buyer (i) service life, (ii) [*****], (iii) dispatch reliability, (iv) the performance, of and with respect to the Aircraft in exclusively accordance with the terms and conditions specified in Attachments F, G, H and I.
13. | PRODUCT SUPPORT PACKAGE |
Embraer shall supply to Buyer the Product Support Package described in Article 2 of Attachment B hereto, which includes Embraers spare parts policy, the Technical Publications and the Services.
14. | ASSIGNMENT |
14.1 Assignment of rights and obligations: Except as otherwise provided in this Article 14, Buyer may not assign, novate or transfer any of its rights or obligations hereunder without the prior written consent of Embraer, which shall not be unreasonably withheld or delayed.
14.2, Buyer may assign all or part of its rights and obligations hereunder with regards to any Aircraft to a bank or other financial institution as part of a purchase money financing arrangement for the purchase of the Aircraft or to a leasing company under a sale-lease-back arrangement where Azul Linhas Aéreas S.A. shall operate the Aircraft as a lessee promptly after its delivery to the assignee/leasing company. Furthermore, upon [*****] prior written notice to Embraer, and subject to the prior written consent of Embraer which shall not be unreasonably withheld or delayed, Buyer may assign the warranties identified in Attachment C hereto to Azul Linhas Aéreas S.A. for the purpose of operating such Aircraft. [*****].
14.3 In any of the above cases, Buyer shall: (i) furnish Embraer with a copy of the written assignment or transfer document at least [*****] prior to the effective date of the assignment or transfer and (ii) only be discharged from its obligations under the Purchase Agreement with respect to such Aircraft to the extent that the assignee or transferee fully performs such obligations and (iii) remain liable to perform those obligations the assignee fails to perform (whether under this Agreement or under a guarantee or other support document granted by Buyer to Embraer in form and substance acceptable to Embraer (acting reasonably)) and (iv) cause assignee or transferee to execute a compliance with laws and export control clauses similar to those set forth herein and (v) hold Embraer harmless from any and all claims arising out or in connection with any governmental, corporate or compliance requirements that the assignee, transferee and/or Buyer failed to comply with regards to the assignment of the Aircraft and/or the transfer of this Agreement and (vi) provide all corporate know your customer information with respect to the assignee or transferee, as reasonably requested by Embraer.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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14.4 Notwithstanding the above, this Agreement, [*****] any person or entity which Embraer may be legally restricted to enter in to an agreement, to a debarred person or entity, or in case such assignment would infringe US export control regulations or any other applicable law.
14.5 Buyer will represent to the benefit of Embraer at the time of the assignment that such assignment contemplated at the time and permitted under this Article 14 shall not cause any adverse change to the interests, rights or obligations of Embraer under this Agreement.
15. | RESTRICTIONS AND PATENT INDEMNITY |
15.1 Claims against Buyer. Subject to the limitations and conditions set forth herein, including, without limitation Article 15.2, Embraer shall indemnify and hold Buyer its subsidiaries and affiliates, and their officers, directors, agents and employees (collectively, for purposes of this Article 15, Buyer) harmless from and against all claims, lawsuits, and liabilities based upon or arising from any suit, action, proceeding, or allegation that:
(a) Any product or service purchased from or supplied by Embraer hereunder or any portion thereof (collectively, for the purposes of this Article 15, Item) and/or the use or operation thereof constitutes an alleged or actual infringement of any granted or registered United States or foreign patent (Patent Claim), provided that from the time of design of such Item and until such Patent Claim is resolved, each of the country in which the relevant patent is held and the flag country of the Aircraft is a party to (1) the Paris Convention for the Protection of Industrial Property as amended and (2) Article 27 of the Chicago Convention on International Civil Aviation of December 7, 1944, or
(b) Aircraft software and accompanying documentation and manuals (collectively, for purposes of this Article 15, Software), or any part of such Aircraft Software furnished by Embraer, constitutes an alleged or actual infringement of any United States or foreign copyright rights or misappropriates any third party trade secret right under U.S. law or other foreign law (Copyright Claim), provided that from the time of design of such Software and until such Copyright Claim is resolved, each of the country in which the infringement claim is made and the flag country of the Aircraft is a member of the Berne Convention for the Protection of Literary and Artistic Works as amended and both countries recognize Software as a work under the Berne Convention.
15.1.1 Embraers indemnification provided in this Article 15 shall not apply to Buyer furnished or installed equipment, Items or Software not installed, used or maintained in accordance with all instructions and procedures of Embraer (as may be modified by Embraer from time-to-time), any Buyer-furnished or requested designs or any Buyer modification of any Item or Software (collectively, Buyer Modifications). [*****].
15.2 Limitations and Conditions. Buyer shall give prompt written notice to Embraer of the receipt of a notice of a suit or action against Buyer alleging a Patent Claim or Copyright Claim covered by this Article 15 or of a written notice alleging a Patent Claim or Copyright Claim covered by this Article 15, whichever occurs earlier. Failure to notify Embraer as provided herein shall relieve Embraer of liability that it may have to Buyer to the extent that the defense of any such Patent Claim or Copyright Claim is prejudiced thereby.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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At all times, Embraer shall have the right, at its option and expense, to negotiate with any party alleging a Patent Claim or Copyright Claim, assume or control the defense to any allegation of a Patent Claim or Copyright Claim, including without limitation, the right to bring a declaratory judgment or similar action, intervene in any action involving a Patent Claim or Copyright Claim, and/or attempt to resolve a Patent Claim or Copyright Claim by replacing or modifying an Item or Software.
Buyer shall promptly furnish to Embraer all information, documents, records, and assistance within Buyers possession, custody or control as requested by Embraer that Embraer considers potentially relevant or material to any allegation covered by this Article 15. Buyer shall co-operate with Embraer and shall, upon Embraers reasonable request and [*****], arrange for the attendance of representatives of Buyer at depositions, hearings, trials, and the like, and assist in effecting settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any suits or actions covered by this Article 15.
Buyer shall obtain Embraers written approval [*****] prior to paying, agreeing to pay, assuming any obligation or making any material concession relative to any Patent Claim or Copyright Claim.
Embraer shall assume and pay any and all judgments and all costs assessed against Buyer in a final non-appealable judgment of any suit or action, and Embraer will make all payments in settlement imposed upon or incurred by Buyer with Embraers prior approval, and [*****].
15.3 Continuing Use. In the event any Item purchased or supplied hereunder, or any portion thereof, becomes the subject of any Patent Claim or Copyright Claim, or if Embraer in its reasonable judgment at any time decides that the item purchased or supplied hereunder, or any portion thereof, shall become the subject of such a Claim or Copyright Claim, Embraer shall as soon as practical, at its own expense and option either: (i) obtain for Buyer the right to use the infringing Item, or portion thereof; or (ii) replace, modify, substitute, or update the infringing article, or portion thereof, so that it becomes non-infringing.
In the event that any such suit or action results in an order, decree or judgment enjoining or otherwise prohibiting Buyer from effectively using any Item for its intended purposes, or any settlement made or approved by Embraer has such result, Embraer agrees at its option and expense to promptly either: (i) procure for Buyer the right to continue using said Item; or (ii) modify said Item so that it becomes non-infringing and otherwise complies with the provisions of this Agreement; or (iii) replace said item with a non-infringing Item suitable for Buyers requirements and in a condition equivalent to that of the Item removed. The foregoing provisions hereof shall apply in case of any such order, decree, judgment or settlement-prohibiting Buyer from effectively using any component or part of the Item.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
If the party or parties making a Claim or Copyright Claim for which Embraer has agreed to indemnify Buyer hereunder obtains an injunction restraining Buyers use of the Item and a bond or other security will be necessary and efficacious to void same, Embraer shall reimburse Buyer the amount of premium for any bond or the costs of any other security given by Buyer to release or void such injunction (or if reasonably not feasible, negotiate in good faith to reimburse Buyer), or alternatively at Embraers election shall furnish such bond or other security on Buyers behalf.
EMBRAER SHALL HAVE NO OBLIGATION OR LIABILITY UNDER THIS ARTICLE 15 FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE OBLIGATIONS AND REMEDIES OF BUYER SET FORTH IN THIS ARTICLE 15 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER INDEMNITIES, OBLIGATIONS AND LIABILITES OF EMBRAER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST EMBRAER, EITHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT BY ANY PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT.
16. | MARKETING PROMOTIONAL RIGHTS |
Embraer shall have the right to show for marketing purposes, free of any charge, the image of Buyers Aircraft, painted with Buyers colors and emblems, affixed in photographs, drawings, films, slides, audiovisual works, models or any other medium of expression (pictorial, graphic, digital, electronic and sculptural works), through all mass communications media including but not limited to billboards, magazines, newspaper, television, movie, theaters, as well as in posters, catalogues, models and all other kinds of promotional material. In the event such Aircraft is sold to or operated by or for another company or person, Embraer shall be entitled to disclose such fact, as well as to continue to show the image of the Aircraft, free of any charge, for marketing purposes, either with the original or the new colors and emblems, unless otherwise notified, provided that such notification shall be subject to the reasonable satisfaction and agreement of Embraer. If accepted, said prohibition, however, shall in no way apply to the promotional materials or pictorial, graphic, digital, electronic or sculptural works already existing or to any contract for the display of such materials or works already binding Embraer at the time of receipt of the notification. The provisions of this Article shall be included in all future sales or lease agreements concerning the Aircraft.
17. | TAXES |
Embraer shall pay all [*****], shall be borne by Buyer.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
18. | APPLICABLE LAW |
This Agreement shall in all respects be governed by the laws of the State of New York, including all matters of construction, validity and performance, without giving effect to principles of conflicts of laws other than sections 5-1401 and 5-1402 of the New York General Obligations law.
19. | JURISDICTION |
Each Party hereto hereby irrevocably agrees, accepts and submits to, for itself and in respect of any of its property, generally and unconditionally, the exclusive jurisdiction of the courts of the State of New York in the City and County of New York and of the United States for the Southern District of New York, in connection with any legal action, suit or proceeding with respect to any matter relating to or arising out of or in connection with this Agreement or any other operative agreement and fully waives any objection to the venue of such courts. Furthermore to the fullest extent permitted by applicable law, each Party hereby waives, and agrees not to assert, by way of motion, as a defense, or otherwise, in any such suit action or proceeding any claim that it is not personally subject to the jurisdiction of the above named courts, that the suit, action or proceeding is brought in an inconvenient forum, or that the venue of the suit, action or proceeding is improper.
EACH PARTY HERETO HEREBY EXPRESSLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY.
20. | TERMINATION |
20.1 Should either Party fail to comply partially or completely with its obligations hereunder, the other Party shall be entitled to give notice of such failure and to require that such failure be remedied within the period specified in that notice, which period shall not be less than [*****]. Should such failure not be remedied within the period so specified, then the Party who gave notice of such failure shall be entitled [*****]. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN ANY CIRCUMSTANCE HEREUNDER FOR ANY CONSEQUENTIAL DAMAGES, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE AND INCREASED COSTS OR PUNITIVE DAMAGES OR INDIRECT OR INCIDENTAL DAMAGES WHICH MAY ARISE OUT OF, OR BE CONNECTED TO, ANY BREACH OR DEFAULT UNDER OF ANY TERM, CONDITION, COVENANT, WARRANTY, OR PROVISION OF THIS AGREEMENT, AND WHICH EITHER PARTY WOULD OTHERWISE BE ENTITLED TO UNDER ANY APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO ANY CLAIMS SOUNDING IN CONTRACT, TORT, EQUITY OR STATUTE.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
20.2 Buyer and Embraer shall have the right to terminate this Agreement in respect to the relevant Aircraft, upon the occurrence of any Excusable Delay of [*****] or longer, unless otherwise agreed in writing by the Parties, and [*****] in respect to the relevant Aircraft upon: (A) [*****] of [*****] or longer after [*****] of such Aircraft or (B) the occurrence of any Non-Excusable Delay for reasons [*****], such rights to be exercisable by written notice from one Party to the other to such effect no earlier than the [*****] or [*****] or [*****] as applicable, after, in each case, [*****] of such Aircraft. Upon receipt of such notice of termination by Buyer or Embraer, as the case may be, Embraer shall:
(i) | in case of Excusable Delay: return to Buyer an amount equal to [*****]. |
(ii) | in case of Non-Excusable Delay: return to Buyer an amount equal to [*****]. |
20.3 If Buyer breaches this Agreement and terminates this Agreement before the Actual Delivery Date of an Aircraft [*****] or, if Embraer terminates this Agreement in relation to an Aircraft, pursuant to Articles 4.3, 7.7 or 9.1.5 hereof, Buyer shall pay to Embraer an amount equal to (i) [*****] of the Aircraft Basic Price per terminated Aircraft, if the termination occurs [*****] to the relevant
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
Aircraft Contractual Delivery Date or; (ii) [*****] of the Aircraft Basic Price per terminated Aircraft, if the termination occurs [*****] to the relevant Aircraft Contractual Delivery Date. For these purposes Embraer may, in its sole discretion, and unless prohibited by law, retain amounts previously paid by Buyer, to apply as part of the payments of damages resulting from such default on the part of Buyer [*****]. It is hereby agreed by the Parties that upon the receipt by Embraer of the amounts set forth above, no other damages, liability or indemnity shall be due by Buyer to Embraer.
20.4 If either Party terminates this Agreement in respect to an Aircraft pursuant to Article 7.6 hereof, [*****].
20.5 In the event this Agreement is [*****].
21. | PURCHASE RIGHT AIRCRAFT |
21.1 Embraer shall grant Buyer the right to purchase up to [*****] additional Embraer E195-E2 aircraft (the Purchase Right Aircraft) configured as per Attachment A, as may be amended from time to time, and available to Buyer at the [*****] that are applicable to the Aircraft (the Purchase Right Basic Price), [*****].
21.2 Subject to no material default on the part of the Buyer having occurred and continuing on the date of exercise, the right to purchase each of the Purchase Right Aircraft shall be initiated by means of a written notice from Buyer to Embraer stipulating a desired delivery month and year as well as the Aircraft type to be purchased (the Buyers Notice), and such right is subject to the existence of enough production capacity at Embraer to comply with Buyers desirable delivery schedule.
21.3 In case Embraer has not received the Buyer´s Notice for all Purchase Right Aircraft on or before [*****], Buyer shall be deemed to have relinquished its right to acquire any unexercised Purchase Right Aircraft. The contractual delivery date for any Purchase Right Aircraft (Purchase Right Aircrafts Contractual Delivery Date) shall be no later than [*****].
21.4 Following receipt by Embraer of the Buyer´s Notice, Embraer shall within [*****] inform Buyer if the desired Purchase Right Aircrafts Contractual Delivery Date requested by Buyer is acceptable; otherwise, Embraer shall inform Buyer the closest non-committed delivery position available for sale (the Confirmation Notice).
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
21.5 Upon Buyer and Embraer agreeing to the new Purchase Right Aircrafts Contractual Delivery Date and in order to secure the Purchase Right Aircraft delivery positions, Buyer shall within [*****] for each exercised Purchase Right Aircraft [*****]. The Purchase Right Aircraft payment schedule shall be in accordance with the following:
21.5.1 A [*****] of each Aircraft Basic Price, [*****], is due and payable within [*****] following the execution of the Amendment mentioned in Article 21.7 below.
21.5.2 A [*****] of each Aircraft Basic Price is due and payable [*****] to each relevant Purchase Right Aircrafts Contractual Delivery Date.
21.5.3 A [*****] of each Aircraft Basic Price is due and payable [*****] to each relevant Aircrafts Contractual Delivery Date.
21.5.4 A [*****] of each Aircraft Basic Price is due and payable [*****] to each relevant Purchase Right Aircrafts Contractual Delivery Date.
21.5.5 The balance of each Aircraft Purchase Price shall become due and payable [*****] of each relevant Purchase Right Aircraft by Buyer.
21.5.6 All other payment terms and conditions not detailed above shall be in accordance with Article 4 of this Agreement, mutatis mutandis.
21.6 The product support package to be applied to the exercised Purchase Right Aircraft shall be in accordance with the terms and conditions contained in Article 2.4 of Attachment B.
21.7 If the purchase rights are exercised by Buyer as specified above and the relevant delivery dates are agreed, and the [*****] is paid by Buyer as specified above, an amendment to this Agreement shall be executed by and between the Parties within [*****] following the Confirmation Notice, setting forth the specific terms and conditions such as, delivery schedule, product support package, performance guarantees, and others if the case may be, applicable exclusively to the Purchase Right Aircraft. Upon execution of the Amendment, the exercise of the Purchase Right shall be irrevocably firm and binding [*****].
21.8 If the Parties for any reason fail to execute the amendment referred to above, then the purchase right with respect to such aircraft shall be deemed relinquished, [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
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CONFIDENTIAL TREATMENT REQUESTED
22. | INDEMNITY |
22.1 Buyer agrees to indemnify and hold harmless each of Embraer and Embraers officers, agents, employees and assignees (collectively, the Embraer Indemnitees) from and against all liabilities, damages, losses, judgments, claims and suits, including necessary costs and expenses incident thereto (collectively, Claims), which may be suffered by, accrued against, be charged to or recoverable from such Embraer Indemnitees by reason of loss or damage to property or by reason of injury or death of any person resulting from or in any way connected with the performance of services by employees, representatives or agents of Embraer for or on behalf of Buyer related to Aircraft after its transfer of title to Buyer, including, but not limited to, technical operations, maintenance, and training services and assistance performed while on the premises of Embraer or Buyer, while in flight on Buyer-owned Aircraft or while performing any other service, at any place, in conjunction with the Aircraft operations of Buyer but for those Claims which are caused by the gross negligence or willful misconduct of Embraer Indemnitees.
23. | NOTICES |
All notices permitted or required hereunder shall be in writing in the English language and sent, by registered mail and e-mail or by international courier service and e-mail, to the attention of the Vice President, Contracts Commercial Aviation as to Embraer and of the President of the Company as to Buyer, to the addresses indicated below or to such other address as either Party may, by written notice, designate to the other.
23.1 EMBRAER:
EMBRAER S.A.
Attn: Vice President, ContractsCommercial Aviation
Av. Brigadeiro Faria Lima, 2170
CEP 12227-901 São José dos CamposSP
Brazil
Telephone: (+55 12) 3927-1410
Facsimile: (+55 12) 3927-1257
23.2 BUYER:
AZUL FINANCE 2 LLC
Attn: President of the Company
Avenida Marcos Penteado de Ulhôa Rodrigues, 939
Edif. Castello Branco Office ParkTorre Jatobá9° andar
CEP 06460-040Alphaville IndustrialBarueriSP
Brazil
Telephone: (+55 11) 4134-
Facsimile: (+55 11) 4134-9890
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Purchase Agreement COM0384-14 Execution Version | Page 26 of 30 |
24. | CONFIDENTIALITY |
Neither Party has the right to disclose the terms of this Agreement except as required by law. Each of Buyer and Embraer agrees not to disclose any portion of this Agreement or its Attachments, amendments or any other supplement, to any third party without the previous written consent of the other Party. Without limiting the foregoing, in the event either Party is legally required to disclose the terms of this Agreement, that Party shall notify the other Party (where permitted by law) reasonably in advance of such disclosure and exert its best efforts to request and obtain confidential treatment of the articles, terms and conditions of this Agreement relevantly designated by the other Party as confidential. In the event this Agreement is terminated, whether in whole or in part, this Article 24 shall survive such termination.
25. | COMPLIANCE WITH LAWS |
25.1 Each Party hereby represents to the other Parties that in connection with the negotiation, execution and performance under this Agreement it: (i) has acted in good faith and with business integrity towards the other Party and any third parties, (ii) complies with anti-corruption and anti-money laundering laws applicable to such Party to the extent that they apply to such Partys obligations and activities stipulated in this Agreement, and (iii) in all matters relating hereto, it has acted, and will continue to act in strict compliance with the applicable ethical and business integrity standards. The foregoing representations are made on a continuing basis and shall hold true until termination or expiration of this Agreement.
25.2 Each Party represents to the other Party that:
(a) such Party has not and will not offer, promise or give to any employee, officer, agent or representative of the other Party any amount of money, personal services, credit or other thing of value, save where not in violation of any of the following: (i) Brazilian laws which apply or may apply to this Agreement or to such Party generally, or (ii) reasonably accepted standards of conduct and practices; and
(b) such Party has not and will not offer, promise or give to, or request or demand from, the other Party any payment or thing of value which can potentially impact a business decision of the other Party in the context of this Agreement or the subject matter hereof.
26. | SEVERABILITY |
If any provision or part of a provision of this Agreement or any of the Attachments shall be, or be found by any authority or court of competent jurisdiction to be, illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall not affect the other provisions or parts of such provisions of this Agreement, all of which shall remain in full force and effect.
Purchase Agreement COM0384-14 Execution Version | Page 27 of 30 |
27. | NON-WAIVER |
Except as otherwise specifically provided to the contrary in this Agreement, any Partys refrain from exercising any claim or remedy provided for herein shall not be deemed a waiver of such claim or remedy, and shall not relieve the other Party from the performance of such obligation at any subsequent time or from the performance of any of its other obligations hereunder.
28. | INTEGRATED AGREEMENT |
All Attachments referred to in this Agreement and/or attached hereto are, by such reference or attachment, incorporated in this Agreement.
29. | NEGOTIATED AGREEMENT |
Buyer and Embraer agree that this Agreement, including all of its Attachments, has been the subject of discussion and negotiation and is fully understood by the Parties, and that the rights, obligations and other mutual agreements of the Parties contained in this Agreement are the result of such complete discussion and negotiation between the Parties.
30. | COUNTERPARTS |
This Agreement may be executed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument. This Agreement may be signed by pdf format exchanged between the parties by electronic mail with originals to follow by an internationally recognized courier.
31. | ENTIRE AGREEMENT |
This Agreement constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof and supersedes all previous and connected negotiations, representations and agreements between the Parties. This Agreement may not be altered, amended or supplemented except by a written instrument executed by the Parties.
32. | REPRESENTATIONS AND WARRANTIES |
Each Party represents and warrants to the other that:
32.1 It is a company duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation and has all necessary corporate power and authority to conduct the business in which it is currently engaged and to enter into and perform its obligations under this Agreement;
32.2 It has taken, or caused to be taken, all necessary corporate action to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder; and
Purchase Agreement COM0384-14 Execution Version | Page 28 of 30 |
32.3 The execution and delivery by it of this Agreement, its performance of its obligations hereunder and its consummation of the transactions contemplated hereby, do not and will not violate or conflict with any provision of its constitutional documents, violate or conflict with any law, rule, or regulation applicable to or binding on it or violate or constitute any breach or default (other than a breach or default that would not result in a material adverse change to it or adversely affect its ability to perform any of its obligations hereunder) under any agreement, instrument or document to which it is a party or by which it or any of its properties is or may be bound or affected.
INTENTIONALLY LEFT BLANKSIGNATURE PAGE FOLLOWS
Purchase Agreement COM0384-14 Execution Version | Page 29 of 30 |
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers and to be effective as of the day and year first above written.
EMBRAER S.A | Azul Finance 2 LLC | |||||
By: | /s/ Paulo Cesar de Souza e Silva |
By: | /s/ Amir Nasruddin | |||
Name: | Paulo Cesar de Souza e Silva | Name: | Amir Nasruddin | |||
Title: | President Commercial Aviatio | Title: | Treasurer | |||
By: | /s/ Adriana Sarlo |
|||||
Name: | Adriana Sarlo | |||||
Title: | Vice President Contracts | |||||
Commercial Aviation |
||||||
Place: | Place: |
Witnesses:
|
||||||||
/s/Alexandre Ayres Netto |
/s/ Rafael Peres Olmedo | |||||||
Name: | Alexandre Ayres Netto | Name: | Rafael Peres Olmedo | |||||
ID: | RG 3246599 | ID: | RG: 49.755.863-4 |
Purchase Agreement COM0384-14 Execution Version | Page 30 of 30 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A
[*****] AIRCRAFT CONFIGURATION
1. | STANDARD AIRCRAFT |
The [*****] Aircraft shall be manufactured according to (i) the standard configuration specified in the [*****], which although not attached hereto, is incorporated herein by reference, and (ii) the characteristics described in the items below.
[*****].
2. | OPTIONAL EQUIPMENT |
The Aircraft will also be fitted with the following options selected by Buyer:
ITEM |
EQUIPMENT | |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A to COM0385-14 Execution Version | Page 1 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A
[*****] AIRCRAFT CONFIGURATION
[*****]
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A to COM0385-14 Execution Version | Page 2 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A
[*****] AIRCRAFT CONFIGURATION
[*****]
[*****]
3. | EXTERIOR FINISHING |
The fuselage of the Aircraft shall be painted according to Buyers color and paint scheme, which shall be supplied to Embraer by Buyer on or before [*****] prior to the first Aircraft Contractual Delivery Date. The wings and the horizontal stabilizer shall be supplied in the standard colors, i.e., grey BAC707.
Once defined, the choices of colour and paint scheme made by Buyer shall apply to all Aircraft. If Buyer requires a colour and paint scheme for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant and substantiated Aircraft Contractual Delivery Date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer, [*****]. Should Buyer not approve the quotation, the relevant Aircraft shall be painted in according to the original paint and colour scheme.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A to COM0385-14 Execution Version | Page 3 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A
[*****] AIRCRAFT CONFIGURATION
Notwithstanding the above mentioned, such additional paint scheme request shall be previously assessed between Embraer and Azul [*****] tentatively to evaluate new paint scheme requirements, cost and time frame impacts, taking into consideration the painting raw material type, painting process, design complexity, as well as, engineering hours required to generate drawings, manuals and affected documentation.
4. | INTERIOR DETAILING |
Buyer shall inform Embraer up to the customer check list definition (CCL), to be held no later than [*****] prior to the first Aircraft Contractual Delivery Date, of its choice of trim and finishing, emergency equipment and galley inserts from the choices offered by and available at Embraer. In case Buyer opts to use different part numbers of equipment, inserts, materials and/or patterns, Embraer will submit to Buyer a PMC describing the impacts of such option, if any. Should Buyer not approve such PMC, the interior shall be built according to the choices offered by and available at Embraer. Once defined, the choices of trim and finishing, emergency equipment and galley inserts made by Buyer shall apply to all Aircraft. If Buyer requires trim and finishing, emergency equipment or galley inserts for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft Contractual Delivery Date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the interior of relevant Aircraft shall be built according to the original choice of Buyer.
5. | BUYER FURNISHED EQUIPMENT(BFE) AND BUYER INSTALLED EQUIPMENT (BIE) |
[*****]
The trolleys, standard units and the equipment classified as operational requirements shall be BIE items.
Medical kits, defibrillators and wheelchairs, as well as any other equipment classified as medical or pharmaceutical product, shall be acquired by Buyer and installed on the Aircraft by Buyer after delivery thereof.
6. | EMBRAER RIGHT TO PERFORM FOR BUYER |
If Buyer fails to choose or define the exterior, interior finishing, emergency equipment and/or galley inserts of any Aircraft or fails to promptly inform Embraer of its choice or definition within the time schedules defined in this Attachment, or as may be otherwise agreed between the Parties after the date hereof, Embraer shall promptly inform or remind the Buyer in writing of such failure. Should Buyer not take remedial action to cure the failure described above [*****] of Embraers written notice, then, Embraer shall have the right to tender the Aircraft for delivery, as the case may be, with a white overall fuselage colour, fitted with an interior finishing selected by Embraer, and/or with provisions/installation for emergency equipment and galley inserts from the choices available at Embraer, at its reasonable discretion.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A to COM0385-14 Execution Version | Page 4 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A
[*****] AIRCRAFT CONFIGURATION
In any such cases, no compensation to Buyer or reduction shall be applied in the relevant Aircraft Basic Price. Buyer agrees hereby that any action taken by Embraer pursuant to this Article shall not constitute a waiver or release of any obligation of Buyer under the Purchase Agreement, nor a waiver of any event of default which may arise out of Buyers non-performance of such obligation, nor an election or waiver by Embraer of any remedy or right available to Embraer under the Purchase Agreement. Further, Embraer shall be entitled to charge Buyer for reasonable expenses incurred by Embraer in connection with the performance of or compliance with such agreement, as the case may be, payable by Buyer [*****] from the presentation of the respective invoice by Embraer to Buyer.
7. | REGISTRATION MARKS, TRANSPONDER AND ELT CODES: |
The Aircraft shall be delivered to Buyer with the registration marks painted on them. The registration marks, the transponder code and ELT protocol coding shall be supplied to Embraer by Buyer no later than [*****] before each relevant Aircraft Contractual Delivery Date. Embraer shall be entitled to tender the Aircraft for delivery to Buyer without registration marks, with an inoperative transponder and without setting the ELT protocol coding in case Buyer fails to supply such information to Embraer in due time.
8. | EXPORT CONTROL ITEMS |
The Aircraft contain certain equipment subject to export control under the United States of America law, which may require specific export control license (such as the ones equipped in the current generation of E-Jets, the [*****] and [*****]).
Transfer or re-export of such items (whether or not incorporated into the Aircraft), as well as their related technology and software may require prior authorization from the US Government.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT A AND THE TERMS OF THE TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT A SHALL PREVAIL.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A to COM0385-14 Execution Version | Page 5 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A1
[*****] AIRCRAFT CONFIGURATION
1. | STANDARD AIRCRAFT |
The [*****] Aircraft shall be manufactured according to (i) the standard configuration specified in the [*****], which although not attached hereto, is incorporated herein by reference, and (ii) the characteristics described in the items below.
[*****]
2. | OPTIONAL EQUIPMENT |
The Aircraft will also be fitted with the following options selected by Buyer:
ITEM |
EQUIPMENT | |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to COM0385-14 Execution Version | Page 1 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A1
[*****] AIRCRAFT CONFIGURATION
[*****]
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to COM0385-14 Execution Version | Page 2 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A1
[*****] AIRCRAFT CONFIGURATION
[*****].
[*****]
3. | EXTERIOR FINISHING |
The fuselage of the Aircraft shall be painted according to Buyers color and paint scheme, which shall be supplied to Embraer by Buyer on or before [*****] prior to the first Aircraft Contractual Delivery Date. The wings and the horizontal stabilizer shall be supplied in the standard colors, i.e., grey BAC707.
Once defined, the choices of colour and paint scheme made by Buyer shall apply to all Aircraft. If Buyer requires a colour and paint scheme for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant and substantiated Aircraft Contractual Delivery Date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer, [*****]. Should Buyer not approve the quotation, the relevant Aircraft shall be painted in according to the original paint and colour scheme.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to COM0385-14 Execution Version | Page 3 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A1
[*****] AIRCRAFT CONFIGURATION
Notwithstanding the above mentioned, such additional paint scheme request shall be previously assessed between Embraer and Azul [*****], tentatively to evaluate new paint scheme requirements, cost and time frame impacts, taking into consideration the painting raw material type, painting process, design complexity, as well as, engineering hours required to generate drawings, manuals and affected documentation.
4. | INTERIOR DETAILING |
Buyer shall inform Embraer up to the customer check list definition (CCL), to be held no later than [*****] prior to the first Aircraft Contractual Delivery Date, of its choice of trim and finishing, emergency equipment and galley inserts from the choices offered by and available at Embraer. In case Buyer opts to use different part numbers of equipment, inserts, materials and/or patterns, Embraer will submit to Buyer a PMC describing the impacts of such option, if any. Should Buyer not approve such PMC, the interior shall be built according to the choices offered by and available at Embraer. Once defined, the choices of trim and finishing, emergency equipment and galley inserts made by Buyer shall apply to all Aircraft. If Buyer requires trim and finishing, emergency equipment or galley inserts for any Aircraft that is different from the original one informed to Embraer, Buyer shall present a written request to Embraer not less than [*****] prior to the relevant Aircraft Contractual Delivery Date and Embraer will submit the relevant quotation to the approval of Buyer within [*****] from the date such request is received by Embraer. Should Buyer not approve the quotation, the interior of relevant Aircraft shall be built according to the original choice of Buyer.
5. | BUYER FURNISHED EQUIPMENT (BFE) AND BUYER INSTALLED EQUIPMENT (BIE) |
[*****]
The trolleys, standard units and the equipment classified as operational requirements shall be BIE items.
Medical kits, defibrillators and wheelchairs, as well as any other equipment classified as medical or pharmaceutical product, shall be acquired by Buyer and installed on the Aircraft by Buyer after delivery thereof.
6. | EMBRAER RIGHT TO PERFORM FOR BUYER |
If Buyer fails to choose or define the exterior, interior finishing, emergency equipment and/or galley inserts of any Aircraft or fails to promptly inform
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to COM0385-14 Execution Version | Page 4 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT A1
[*****] AIRCRAFT CONFIGURATION
Embraer of its choice or definition within the time schedules defined in this Attachment, or as may be otherwise agreed between the Parties after the date hereof, Embraer shall promptly inform or remind the Buyer in writing of such failure. Should Buyer not take remedial action to cure the failure described above within [*****] of Embraers written notice, then, Embraer shall have the right to tender the Aircraft for delivery, as the case may be, with a white overall fuselage colour, fitted with an interior finishing selected by Embraer, and/or with provisions/installation for emergency equipment and galley inserts from the choices available at Embraer, at its reasonable discretion.
In any such cases, no compensation to Buyer or reduction shall be applied in the relevant Aircraft Basic Price. Buyer agrees hereby that any action taken by Embraer pursuant to this Article shall not constitute a waiver or release of any obligation of Buyer under the Purchase Agreement, nor a waiver of any event of default which may arise out of Buyers non-performance of such obligation, nor an election or waiver by Embraer of any remedy or right available to Embraer under the Purchase Agreement. Further, Embraer shall be entitled to charge Buyer for reasonable expenses incurred by Embraer in connection with the performance of or compliance with such agreement, as the case may be, payable by Buyer within [*****] from the presentation of the respective invoice by Embraer to Buyer.
7. | REGISTRATION MARKS, TRANSPONDER AND ELT CODES: |
The Aircraft shall be delivered to Buyer with the registration marks painted on them. The registration marks, the transponder code and ELT protocol coding shall be supplied to Embraer by Buyer no later than [*****] before each relevant Aircraft Contractual Delivery Date. Embraer shall be entitled to tender the Aircraft for delivery to Buyer without registration marks, with an inoperative transponder and without setting the ELT protocol coding in case Buyer fails to supply such information to Embraer in due time.
8. | EXPORT CONTROL ITEMS |
The Aircraft contain certain equipment subject to export control under the United States of America law, which may require specific export control license (such as the ones equipped in the current generation of E-Jets, the [*****] and the [*****]).
Transfer or re-export of such items (whether or not incorporated into the Aircraft), as well as their related technology and software may require prior authorization from the US Government.
IT IS HEREBY AGREED AND UNDERSTOOD BY THE PARTIES THAT IF THERE IS ANY CONFLICT BETWEEN THE TERMS OF THIS ATTACHMENT A1 AND THE TERMS OF THE TECHNICAL DESCRIPTION ABOVE REFERRED, THE TERMS OF THIS ATTACHMENT A1 SHALL PREVAIL.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment A1 to COM0385-14 Execution Version | Page 5 of 5 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
1. | FERRY FLIGHT ASSISTANCE |
1.1 | If requested by Buyer, Embraer will make available at the Actual Delivery Date of each Aircraft to Buyer, the services of a third party representative at the airport in which the Aircraft will make the last stop in the Brazilian territory, to support Buyers crew in the interface with Brazilian customs clearances. Such services do not include handling services as refueling, ground equipment and communications and Buyer shall hire such services from a handling service company. Further, if so requested, Embraer may assist Buyer in contracting such handling services. Buyer shall also be responsible for the flight documents (including but not limited to IFR templates & charts) and overflight permits required for the ferry flight, except for the overflight permits for the Brazilian territory which, if necessary will be provided by Embraer. |
If it is necessary that any ferry equipment be installed by Embraer in the Aircraft for the ferry flight between Brazil and the country where Buyer intends to fly the Aircraft (if any), Embraer will make available, upon Buyers written request, a standard and serviceable ferry equipment to Buyer (hereinafter the Kit) [*****], except as set forth below. In this case, Buyer shall immediately upon the Aircraft arrival at its final destination, remove the Kit from the Aircraft and return it to a freight forwarder agent as determined by Embraer, at Buyer own expense, including the necessary insurance in FCA (Free Carrier - Incoterms 2010) condition.
In case Embraer provides the Kit to Buyer and irrespective of whether (i) the Kit is utilized, whether totally or not, such decision to be taken in Embraers reasonable discretion, or (ii) the Kit is not used and is not returned to Embraer freight forwarder agent complete and in the same condition as it was delivered to Buyer within five (5) Days after Aircraft arrival in final destination, Buyer shall pay Embraer the value of a new Kit upon presentation of an invoice by Embraer and then the original Kit shall become the property of Buyer. In addition, the availability of another Kit for the next occurring Aircraft ferry flight after such period shall not be an Embraer obligation.
2. | PRODUCT SUPPORT PACKAGE |
2.1 | MATERIAL SUPPORT |
2.1.1. | SPARES POLICY |
Embraer guarantees the supply of spare parts, ground support equipment and tooling, except engines and their accessories, hereinafter referred to as Spare(s), for the Aircraft [*****]. Such Spares shall be supplied according to the prevailing availability, sale conditions, delivery schedule and effective price on the date of acceptance by Embraer of a purchase order placed by Buyer for any of such items. The Spares may be supplied either by Embraer in Brazil or through its subsidiaries or distribution centers located abroad.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 1 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
The sale and export of Spares to Buyer may be subject to export controls and other export documentation requirements of the United States and other countries. Buyer agrees that neither Embraer nor any of its subsidiaries, affiliates or Vendors shall be liable for failure to provide Spares and/or services, including without limitation the Services, under this Agreement or otherwise as a result of any ruling, decision, order, license, regulation, or policy of the competent authorities prohibiting the sale, export, re-export, transfer, or release of a Spare or its related technology. Buyer shall comply with any conditions and requirements imposed by the competent authorities and, upon Embraers request, shall execute and deliver to Embraer any relevant end-user certificates.
Export of (i) [*****] manufactured by [*****] with an embedded [*****] used for emergency backup and flight safety information and (ii) [*****] manufactured by [*****] incorporated into this Aircraft are subject to export control under United States law. Transfer or re-export of such items (whether or not incorporated into the Aircraft), as well as their related technology and software, may require prior authorization from the U.S. Government.
2.1.2. | RSPL |
Upon Buyers request, Embraer shall present to Buyer a recommended Spare provisioning list (the RSPL). The objective of the RSPL is to provide Buyer with a detailed list of Spares that will be necessary to support the initial operation and maintenance of the Aircraft by Buyer. Such recommendation will be based on the experience of Embraer and on the operational parameters established by Buyer.
Embraer will provide a qualified team to attend pre-provisioning conferences as necessary to discuss Buyer requirements and the RSPL as well as any available spare parts support programs offered by Embraer. Such meeting shall be held at a mutually agreed upon place and time, but in no event less than [*****] prior to the Contractual Delivery Date of the first Aircraft.
Buyer may acquire the Spares contained in the RSPL directly from Embraer or directly from Vendors. Spares contained in the RSPL for which Buyer places a purchase order with Embraer (the IP Spares) will be delivered by Embraer to Buyer within [*****], in FCA (Free CarrierIncoterms 2010) condition, at the port of clearance indicated by Embraer.
In order to ensure the availability of IP Spares in accordance with the foregoing at the time of entry into service of the first Aircraft, Buyer commits to place a purchase order with Embraer for those IP Spares Buyer has decided to acquire from Embraer, as soon as practical and in any event not less than [*****] prior to the Contractual Delivery Date of the first Aircraft. At the reasonable request of Embraer, Buyer shall demonstrate that it has provided for the acquisition of those IP Spares Buyer has decided to acquire from sources other than Embraer, in order to complement the RSPL in a timely manner.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 2 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
[*****]
[*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 3 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
[*****]
[*****] [*****]
2.1.4. | OTHER SPARES SERVICES |
AOG services: Embraer will maintain a call center for the AOG services, twenty four (24) hours a day, seven (7) days a week. All the contacts with the call center can be made through regular direct lines in Brazil (phone and fax), e-mail and also through the FlyEmbraer e-commerce in case Buyer subscribes to this service. The information concerning regular direct lines and e-mail address shall be obtained through the Customer Account Manager designated to Buyer by Embraer or through Embraers Customer Service offices.
Embraer will, subject to availability, deliver Spares pursuant to an AOG order from the location which is nearer to Buyer premises in FCA (Free Carrier Incoterms 2010) condition, at the Embraers facility nearest to the Buyers premises informed in Buyers shipping instructions.
Buyer has availability of eSales at the Flyembraer portal, for faster Requests for Quotations or Order placing.
Other than AOG orders, Buyer may expedite spare parts orders as spare parts critical orders (imminent AOG or work stoppage situation) or as spare parts routine expedite orders (urgent stock replenishment USR). Embraer will give response advice, within the following times:
[*****] |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 4 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
Routine and/or critical Spares: Embraer will deliver routine and/or critical Spares (other than AOG Spares) in FCA condition, Embraers facility, from the location were such Spares are available. Routine and/or critical Spares shall be delivered according to their lead times, depending upon the purchase order priority. All Spares will be delivered with the respective authorized release certificate or any similar document issued by a duly authorized person.
[*****]
[*****]
[*****] |
[*****] [*****]
[*****] |
2.2 | AIRCRAFT TECHNICAL PUBLICATIONS: |
2.2.1. | EMBRAER PUBLICATIONS AND PERFORMANCE SOFTWARE |
Embraer shall provide, [*****] for a number of users that can support the operational and fleet management of the Aircraft (such number to be mutually agreed by the Parties) to access all available operational and maintenance publications presented in Exhibit 1 to this Attachment as applicable thereto, through the web-based FlyEmbraer portal or any successor portal (FlyEmbraer). Such operational and maintenance publications will be issued under the applicable specification, in the English language (the Technical Publications).
Embraer shall provide, [*****] to download the following software through FlyEmbraer (the Software) running on Microsoft Windows operational system:
(i) | an in-flight performance software and |
(ii) | a software for take-off and landing calculations, to be chosen by Buyer from the standard version (runway analysis software) or the version adapted to IATA interface (SCAP module). Buyer shall inform Embraer in writing of its decision on or before six months prior to the Contractual Delivery Date of the first Aircraft. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 5 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
[*****] of either Software allows its installation and use by Buyer in up to [*****], provided however that Buyer acknowledges that such Software is the property of Embraer and guarantees to Embraer that it will not modify, sell, transfer or in any other way convey to any third party without the prior written consent of Embraer.
Such access to the Technical Publications and to download the Software (and any revision and/or update thereof) is conditioned upon Buyers full acceptance of the FlyEmbraer on-line terms and conditions, by a person legally qualified to do so, as appointed in writing by Buyer.
The revision service for the Technical Publications and Software shall be provided, [*****]. Such revision shall be provided solely through the access to FlyEmbraer. Access to such publications and Software after the initial period set forth above shall be available at the then prevailing Embraers list price. The use of Technical Publications obtained from FlyEmbraer is subject to prior approval of the relevant airworthiness authorities.
One extra hardcopy of mandatory operational publications will be supplied on board of each Aircraft solely for the purpose of supporting the delivery flight and this copy will not be revised by Embraer at any time.
[*****]
2.2.2. | VENDOR PUBLICATIONS |
The technical publications regarding parts, systems or equipment supplied by Vendors and installed by Embraer in the Aircraft during the manufacturing process, will be supplied to Buyer directly by such Vendors, in their original content and available format/media and/or on-line access, as the case may be. Vendors are also responsible to keep publications updated through a direct communication system with Buyer. Embraer shall use commercially reasonable efforts to cause Vendors to supply their respective technical publications in a prompt and timely manner.
2.2.3. | The Parties further understand and agree that in the event Buyer elects not to take all or any one of the Technical Publications above mentioned, or revisions thereof, no refund or other financial adjustment of the Aircraft Basic Price will be made. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 6 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
2.3 | SERVICES |
[*****], except as set forth below, Embraer shall provide the Services described in this Article 2.3, in accordance with the terms and conditions below:
2.3.1 | Familiarization Programs: |
a. | The familiarization programs specified below are offered at [*****] with regards to the Aircraft, [*****]. |
b. | The familiarization programs shall, at Embraers criteria, be conducted by Embraer, Flight Safety International or other Embraer designated training provider, in accordance with the scope, syllabi and duration of the training program developed by Embraer, Flight Safety International or other Embraer-designated training provider. Such familiarization programs shall be in accordance with all applicable regulations and requirements of and approved by the Airworthiness Authority. Buyer may choose to use the training programs as is or to develop its own training programs. In any case Buyer shall be solely responsible for preparing and submitting its training programs to the Airworthiness Authority for approval. |
c. | All familiarization programs shall be provided at the training centers of Embraer, Flight Safety International or other Embraer designated training provider at its respective training center or in such other location as Embraer, Flight Safety International or other Embraer designated training provider may reasonably indicate. Buyer shall be responsible for all costs and expenses related to the training services (including but not limited to instructor travel tickets, local transportation, lodging, per diem and non-productive days), in the event Buyer requires that any training services be carried outside such indicated training facilities. |
d. | Notwithstanding the eventual use of the term training in this paragraph 2.3.1, the intent of this program is solely to familiarize Buyers pilots, mechanics, employees or representatives with the operation and maintenance of the Aircraft. It is not the intent of Embraer to provide basic training (ab-initio) to any representatives of Buyer. |
e. | Any trainee appointed by Buyer for participation in any of the familiarization programs shall be duly qualified per the governing body in the country of Buyers operation and fluent in the English language as all training will be conducted in, and all training material will be presented in, such language. Pilots and mechanics shall also have previous experience in the operation and maintenance, as applicable, of jet aircraft or, as a minimum, of twin-engine turboprop aircraft. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 7 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
Neither Embraer, Flight Safety International nor other Embraer designated training provider make any representation or give any guarantee regarding the successful completion of any training program by Buyers trainees, for which Buyer is solely responsible.
f. | The familiarization programs shall be carried out prior to the Contractual Delivery Date of the last Aircraft, in accordance with a schedule to be agreed upon by Buyer and Embraer not less than [*****] prior to the intended beginning of such training schedule. Buyer shall give [*****] advance notice to Embraer of the full name and professional identification data of each trainee. Substitutions of appointed trainees will not be accepted during this period. |
g. | Training entitlements regarding each Aircraft that remain unused up to [*****] following the Actual Delivery Date of such Aircraft shall expire and Buyer shall be deemed to have [*****] its rights to such service, no refund or compensation being due by Embraer to Buyer in this case. |
h. | The familiarization programs referred to above covers: |
h.1 [*****] pilot familiarization program for up to (i) [*****] ground familiarization as regards Aircraft systems, weight and balance, performance and normal/emergency procedures. and, (ii) [*****] simulator sessions [*****], which shall be performed in groups of [*****] Buyers pilot per session. Simulator training includes the services of an instructor and will be carried out on a level D simulator. Buyer shall be solely responsible for selecting experienced training pilots that are fluent in English and duly qualified in multi-engine aircraft operations, navigation and communication.
h.2 [*****] qualified mechanics (total for this Agreement) each entitled to [*****] of the following modules to be chosen by Buyer:
- Line ad Base Mechanics [*****]
- Line and Base Electrical and Avionics [*****]
- Line and Base Mechanics, Electrical and Avionics [*****]
This program shall consist of classroom familiarization with Aircraft systems and structures and shall be in accordance with ATA specification 104, level III.
h.3 [*****] qualified flight attendants (total for this Agreement). This program shall consist of classroom familiarization [*****], including a general description of Aircraft safety procedures and flight attendant control panels.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 8 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
h4. [*****] engineers and/or maintenance personnel (total for the entire Agreement). This program is conducted on Buyers site and shall consist of [*****] classroom to enable Buyers engineers and maintenance personnel [*****].
i. | The presence of Buyers authorized trainees shall be allowed exclusively in those areas related to the training hereof and Buyer agrees to hold harmless Embraer from and against all and any kind of liabilities in respect of such trainees to the extent permitted by law, [*****]. |
2.3.2 | [*****]: |
a. | Embraer shall provide [*****] the following [*****] services: |
a.1 [*****]
a.2 [*****]
| [*****] |
| [*****] |
| [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 9 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
[*****]
| [*****] |
| [*****] |
[*****]
b. | [*****], Buyer shall provide such [*****] (hereinafter defined as Embraer Rep) with communication services (international telephone line, facsimile, internet service and photocopy equipment) as well as suitable secure and private office facilities and related equipment including desk, table, chairs and file cabinet, located at [*****] or other location as may be mutually agreed by the Parties. Buyer shall also (a) arrange all necessary work permits such as support for visa issuance, local pilots license validation and airport security clearances required for Embraer Rep, to permit the accomplishment of the Services mentioned in this item 2.3.2, in due time; and (b) obtain all necessary custom clearances both to enter and depart from Buyers country for Embraers Rep and their personal belongings and professional tools. |
c. | During the stay of the Embraer Rep at [*****], Buyer shall permit access to the maintenance and operation facilities as well as to the data and files of Buyers Aircraft fleet. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 10 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
d. | Embraer shall bear all expenses of the Embraer Rep, including without limitation transportation, board and lodging, while the Embraer Rep is rendering such [*****] at [*****]. Buyer shall bear all expenses related to the transportation, board & lodging of the Embraer Rep in the event any Embraer Rep is required to render the Services provided for herein in any place other than [*****]. [*****], Buyer shall provide to the Embraers pilots transportation from/to [*****] or airport where such pilots will render the Services, so that the pilots can report to Buyers operation facilities or leave the airport in a timely manner according to the schedule of the flights they are engaged in. |
e. | The Embraer Rep shall not participate in test flights or flight demonstrations without the previous written authorization from Embraer. |
f. | Buyer shall include Embraer as additional insured in its Hull and Comprehensive Airline Liability insurance policies in accordance with the clauses contained in Exhibit 2 to this Attachment. Buyer shall supply Embraer with a copy of such endorsements to the insurance policies within [*****] prior to the date of which the Services are to begin (and prior to each renewal of Buyer Hull and Comprehensive Airline Liability insurance). |
g. | The Parties further understand and agree that in the event Buyer elects not to take all or any portion of the [*****] provided for herein, [*****]. Any other additional [*****] shall depend on mutual agreement between the Parties and shall be charged by Embraer accordingly. |
h. | The presence of Embraer Rep shall be allowed exclusively in those areas related to the subject matter hereof and Embraer agrees to hold harmless Buyer from and against all and any kind of liabilities in respect of such Embraer Rep to the extent permitted and required by law. |
i. | Embraer may, at its own cost and without previous notice to Buyer, substitute at its sole discretion the Embraer Reps rendering the Services at any time during the period in which Services are being rendered. |
j. | The rendering of the Services by Embraers Rep shall, at all times, be carried out in compliance with the applicable labor legislation. |
k. | During the rendering of the Services, while on the premises of Buyer, Embraer Reps shall strictly follow the administrative routines and proceedings of Buyer, which shall have been expressly and clearly informed to Embraer Reps upon their arrival at said premises. |
l. | There shall be no legal bond of whatever nature between Buyer and Embraer Reps pursuant to labor and welfare issues. Hence, Embraer shall bear all labor and welfare burdens stipulated by law in relation to the Embraer Reps. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 11 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
m. | Embraer shall have the right to interrupt the rendering of the Services (i) should any situation occur which, at the sole discretion of Embraer, could represent a risk to the safety or health of Embraer Reps or (ii) upon the occurrence of any of the following events: strike, insurrection, labor disruptions or disputes, riots, or military conflicts. Upon the occurrence of such an interruption, Embraer shall resume the rendering of the Services for the remainder period immediately after having been informed by Buyer, in writing, of the cessation thereof. No such interruption in the rendering of the Services shall give reason for the extension of the Services beyond the periods identified above. |
n. | Buyer agrees to indemnify and hold harmless Embraer and Embraers officers, agents, employees and assignees from and against all liabilities, damages, losses, judgments, claims and suits, including costs and expenses incident thereto, which may be suffered by, accrued against, be charged to or recoverable from Embraer and/or Embraers officers, agents, employees and assignees by reason of loss or damage to property or by reason of injury or death of any person resulting from or in any way connected with the performance of services by employees, representatives or agents of Embraer for or on behalf of Buyer related to Aircraft delivered by Embraer to Buyer, including, but not limited to, the Services and any other services such as technical operations, maintenance, and training services and assistance performed while on the premises of Embraer or Buyer, while in flight on Buyer-owned Aircraft or while performing such activities, at any place, in conjunction with the Aircraft operations of Buyer, except to the extent attributable to the gross negligence or willful misconduct of Embraer, its officers, agents employees and assignees. |
2.3.3 | Account Manager: |
Embraer shall assign [*****] non-dedicated Account Manager to support Buyer shortly after execution of the Purchase Agreement and to support the operations of all Aircraft in Buyers fleet in revenue service for passenger transportation. The Account Manager will be responsible for coordinating all product support related actions of Embraer to assure a smooth introduction of the Aircraft into service and, thereafter, for concentrating and addressing all issues concerning the operation of the Aircraft by Buyer. A team composed of regional technical representatives, regional spare parts representatives and regional field engineers, as necessary and applicable, shall support the Account Manager for as long as Buyer operates a fleet of [*****] Aircraft in a revenue services.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 12 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
2.3.4 | Technical and Engineering Support |
Embraer shall provide remote technical, engineering and flight operations support services three hundred sixty five days a year, twenty four (24) hours a day and seven (7) days a week, for airframe and systems. This service may be accessed by phone, fax and e-mail at the main facilities of Embraer. The technical and engineering support service is designed to support daily operations of the Aircraft by Buyer by assisting Buyer with the identification and investigation of the causes of in-services issues and during AOG situations, as required. The flight operations support service is designed to support Buyer in the use of flight operations publications and [*****]. This service is offered [*****] within such scope and is available for as long as Buyer continues to operate the Aircraft type in regular passenger revenue service. Embraer and Buyer shall agree service standards applicable to technical and engineering support during the negotiation of the Purchase Agreement.
Technical and engineering support is also available to assist Buyer in performing minor structural repairs on the Aircraft, such as dents, abrasions, scrapes and similar damages during normal operations, or caused by ground handling personnel and vehicles while servicing the Aircraft on ground. Such assistance consists of the analysis of damage reports submitted by Buyer, preparation of instructions for repair in accordance with structural repair standard of Embraer. This support shall be provided [*****].
2.4 | PRODUCT SUPPORT PACKAGE FOR THE PURCHASE RIGHT AIRCRAFT |
The product support package for the Purchase Right Aircraft shall be limited to [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 13 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT B
FERRY FLIGHT ASSISTANCE AND PRODUCT SUPPORT PACKAGE
2.5 | DISCLOSURE OF MAINTENANCE INFORMATION FROM SUPPLIERS |
Buyer shall not object that Aircraft suppliers and/or maintenance, repair and overhaul providers release to Embraer the available data related to Buyers product maintenance cost data available including, but not limited to, cost per hour programs, repairs (time and material), spare parts and services purchases, special programs, exchanges, lease fees, maintenance inspections (time and material) and modifications.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment B to COM0384-14 Execution Version | Page 14 of 14 |
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1LIST OF TECHNICAL PUBLICATIONS
The technical publications covering Aircraft operation and maintenance shall be available for access to Buyer in accordance with the following list:
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Exhibit 1 to Attachment B to COM0384 14 | Page 1 of 1 |
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 2 SPECIAL INSURANCE CLAUSES
Buyer shall include the following clauses in its Hull and Comprehensive Airline Liability insurance policies:
a) | Hull All Risks Policy, including War, Hi-jacking and Other Perils. |
It is hereby understood and agreed that Insurers agree to waive rights of subrogation against Embraer S.A. (Embraer) including any business entity owned by or subsidiaries to Embraer, and all partners, executive officers, employees and stock holders with regard to the insured Aircraft.
This endorsement shall not operate to prejudice Insurers rights of recourse against Embraer as manufacturer, where such right of recourse might exist because of gross negligence or willful misconduct of Embraer as manufacturer of the Aircraft and had this endorsement not been effected under this Policy.
b) | Comprehensive Airline Liability Policy of not less than [*****] each occurrence, each Aircraft and in the aggregate. |
It is hereby understood and agreed that Embraer S.A. (Embraer) including any business entity owned by or subsidiaries to Embraer, and all partners, executive officers, employees and stock holders, are added as an Additional Insured with respect to the services or Services to be provided pursuant to this Agreement or its Attachments.
This endorsement does not provide coverage for Embraer with respect to claims arising out of its legal liability as manufacturer and shall not operate to prejudice Insurers right of recourse against Embraer in the event of gross negligence or willful misconduct of Embraer in the performance of the services or Services to be provided pursuant to this Agreement or its Attachments.
c) | Notwithstanding anything to the contrary as specified in the Policy or any endorsement thereof, the coverage stated in paragraphs a) and b) above, shall not be cancelled or modified by the Insurer, without [*****] advance written notice to Embraer to such effect. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Exhibit 2 to Attachment B to COM0384 14 | Page 1 of 1 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT C
[*****] E195-E2 WARRANTYMATERIAL AND
WORKMANSHIP
1) | Embraer, subject to the conditions and limitations hereby expressed, warrants the Aircraft subject of the Purchase Agreement, as follows: |
a. | For a period of [*****] from the Actual Delivery Date of the Aircraft, the Aircraft will be free from: |
| Defects in materials, workmanship and manufacturing processes in relation to parts manufactured by Embraer or by its subcontractors holding an Embraer part number (collectively Embraer Parts); |
| Defects inherent to the design of the Aircraft and Embraer Parts. |
| [*****]. |
| [*****]. |
b. | For a period of [*****] from the Actual Delivery Date of the Aircraft date of delivery to Buyer, the Aircraft will be free from: |
| Defects in materials, workmanship and manufacturing processes in relation to parts manufactured by Vendors, excluding the Engines, Auxiliary Power Unit (APU) and their accessories (Vendor Parts), as well as failures of Vendor Parts due to incorrect installation or installation not complying with the instructions issued or approved by their respective Vendors. For the purpose of this warranty, Engine shall mean the complete power plant system which comprises the engine, the nacelle including thrust reverser, the engine mounting structure provided by the Engine manufacturer, all systems inside the nacelle and their integration with the Aircraft, and the Full Authority Digital Engine Control (FADEC) unit. |
| Defects due to non-conformity of Vendor Parts to the technical specification referred to in the Purchase Agreement. |
| Once the above mentioned periods have expired, Embraer will transfer to Buyer the original Warranty issued by the Vendors, if it still exists. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment C to COM0384-14 Execution Version | Page 1 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT C
[*****] E195-E2 WARRANTYMATERIAL AND
WORKMANSHIP
c. | [*****]. |
| [*****]. |
2) | The obligations of Embraer as expressed in this Warranty are limited to replacing or repairing defective Embraer Parts and Vendor Parts, or supplying modification kits rectifying the defect, or providing equivalent material credits to the Buyer s account, depending solely upon its own judgment. The defective Embraer Parts and Vendor Parts shall be returned [*****] occurrence of the defect, at Buyers own expense (including but not limited to, freight, insurance, customs duties), adequately packed, provided that such components are actually defective and that the defect has occurred within the periods stipulated in this certificate. Should the defective Embraer Part and Vendor Parts not be returned to Embraer within [*****] period, Embraer may have the right, at its sole discretion, to deny the warranty claim. |
NOTE: Notification of any defect claimed under this item 2 must be given to Embraer within [*****] after such defect is found.
Freight, insurance, taxes and other costs incurred by Embraer or its representative [*****].
Embraer Parts and Vendor Parts supplied to Buyer as replacement for defective Embraer Parts and Vendor Parts are warranted for the balance of the warranty period still available from the original warranty of the exchanged parts.
3) | Embraer will accept no warranty claims under any of the circumstances listed below: |
a. | When the Aircraft has been used in an attempt to break records, or subjected to experimental flights, or in any other way not in conformity with the flight manual or the airworthiness certificate, or subjected to any manner of use in contravention of the applicable aerial navigation or other regulations and rules, issued or recommended by government authorities of whatever country in which the Aircraft is operated, when accepted and recommended by I.C.A.O.; |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment C to COM0384-14 Execution Version | Page 2 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT C
[*****] E195-E2 WARRANTYMATERIAL AND
WORKMANSHIP
b. | When the Aircraft or any of its parts have been altered or modified by Buyer, without prior approval from Embraer or from the relevant Vendor through a service bulletin; |
c. | Whenever the Aircraft or any of its parts have been involved in an accident, or when parts either defective or not complying to manufacturers design or specification have been used; |
d. | Whenever Embraer Parts and Vendor Parts have had their identification marks, designation, seal or serial number altered or removed; |
e. | In the event of negligence, misuse or maintenance services done on the Aircraft, or any of its parts not in accordance with the respective maintenance manual; |
f. | In cases of deterioration, wear, breakage, damage or any other defect resulting from the use of inadequate packing methods when returning items to Embraer or its representatives. |
4) | This Warranty does not apply to (a) Buyer-furnished equipment (BFE) or Buyer- installed equipment (BIE), (b) expendable items (as defined in the WATOG World Airlines Technical Operations Glossary), and (c) materials or parts subjected to deterioration. |
5) | The Warranty hereby expressed is established between Embraer and Buyer, and it cannot be transferred, assigned or novated to any third party, except as provided otherwise pursuant to Article 14 (Assignment) of the Purchase Agreement. |
[*****]
[*****]
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment C to COM0384-14 Execution Version | Page 3 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT C
[*****] E195-E2 WARRANTYMATERIAL AND
WORKMANSHIP
[*****]
[*****]
[*****]
7) | TO THE EXTENT PERMITTED BY LAW, THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND REMEDIES OF BUYER SET FORTH IN THIS WARRANTY CERTIFICATE ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND ANY ASSIGNEE OF EMBRAER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST EMBRAER OR ANY ASSIGNEE OF EMBRAER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMANCE OR DEFECT OR FAILURE OR ANY OTHER REASON IN ANY AIRCRAFT OR OTHER THING DELIVERED UNDER THE PURCHASE AGREEMENT OF WHICH THIS IS AN ATTACHMENT, INCLUDING DATA, DOCUMENT, INFORMATION OR SERVICE, INCLUDING BUT NOT LIMITED TO: |
a. | ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS; |
b. | ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; |
c. | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OR OTHER RELATED CAUSES OF EMBRAER OR ANY ASSIGNEE OF EMBRAER, WHETHER ACTIVE, PASSIVE OR IMPUTED; AND |
d. | ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT, FOR LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO ANY AIRCRAFT OR FOR ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES. |
8) | No representative or employee of Embraer is authorized to establish any other warranty than the one hereby expressed, nor to assume any additional obligation, relative to the matter, in the name of Embraer and therefore any such statements eventually made by, or in the name of Embraer, shall be void and without effect. |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment C to COM0384-14 Execution Version | Page 4 of 4 |
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO ATTACHMENT C
[*****]
[*****]
[*****][*****]
[*****][*****]
[*****][*****]
[*****]
[*****][*****]
[*****]
[*****][*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Exhibit 1 to Attachment C to COM0384-14 Execution Version | Page 1 of 2 |
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 1 TO ATTACHMENT C
[*****]
[*****][*****]
[*****][*****]
[*****][*****]
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Exhibit 1 to Attachment C to COM0384-14 Execution Version | Page 2 of 2 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT D
ESCALATION FORMULA
[*****]
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[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D to COM0384-14 Execution Version | Page 1 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT D
ESCALATION FORMULA
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D to COM0384-14 Execution Version | Page 2 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT D
ESCALATION FORMULA
[*****] |
[*****] |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment D to COM0384-14 Execution Version | Page 3 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT E
AIRCRAFT DELIVERY SCHEDULE
Aircraft Delivery Schedule (ref. Purchase Agreement Article 5)
Aircraft |
Contractual Delivery Date |
Aircraft | Contractual Delivery Date | |||
[*****] | [*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment E to COM0384-14 Execution Version | Page 1 of 1 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT F
[*****] E190-E2SERVICE LIFE GUARANTEE
This attachment specifies the terms and conditions of the Service Life Guarantee (SLG) [*****].
[*****] |
[*****] |
[*****] |
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[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment F to COM0384-14 Execution Version | Page 1 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT F
E195-E2 [*****] SERVICE LIFE GUARANTEE
[*****] |
[*****] |
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[*****] | [*****] |
[*****] | [*****] |
[*****] | [*****] |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment F to COM0384-14 Execution Version | Page 2 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT F
E195-E2 [*****] SERVICE LIFE GUARANTEE
[*****] |
[*****] |
[*****] |
[*****] |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment F to COM0384-14 Execution Version | Page 3 of 3 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to COM0384-14 Execution Version | Page 1 of 10 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to COM0384-14 Execution Version | Page 2 of 10 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to COM0384-14 Execution Version | Page 3 of 10 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to COM0384-14 Execution Version | Page 4 of 10 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to COM0384-14 Execution Version | Page 5 of 10 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to COM0384-14 Execution Version | Page 6 of 10 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to COM0384-14 Execution Version | Page 7 of 10 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to COM0384-14 Execution Version | Page8 of 10 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to COM0384-14 Execution Version | Page 9 of 10 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT G
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment G to COM0384-14 Execution Version | Page 10 of 10 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT H
DISPATCH RELIABILITY GUARANTEE
This attachment specifies the terms and conditions of the Dispatch Reliability Guarantee (DRG) [*****].
[*****]
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[*****]
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[*****]
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[*****]
[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment H to COM0384-14 Execution Version | Page 1 of 9 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT H
DISPATCH RELIABILITY GUARANTEE
[*****]
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[*****]
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[*****]
[*****]
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment H to COM0384-14 Execution Version | Page 2 of 9 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT H
DISPATCH RELIABILITY GUARANTEE
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment H to COM0384-14 Execution Version | Page 3 of 9 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT H
DISPATCH RELIABILITY GUARANTEE
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment H to COM0384-14 Execution Version | Page 4 of 9 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT H
DISPATCH RELIABILITY GUARANTEE
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment H to COM0384-14 Execution Version | Page 5 of 9 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT H
DISPATCH RELIABILITY GUARANTEE
[*****]
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment H to COM0384-14 Execution Version | Page 6 of 9 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT H
DISPATCH RELIABILITY GUARANTEE
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment H to COM0384-14 Execution Version | Page 7 of 9 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT H
DISPATCH RELIABILITY GUARANTEE
[*****] |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment H to COM0384-14 Execution Version | Page 8 of 9 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT H
DISPATCH RELIABILITY GUARANTEE
[*****]
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment H to COM0384-14 Execution Version | Page 9 of 9 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [*****] PERFORMANCE AND WEIGHT GUARANTEE |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 1 of 12 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [*****] PERFORMANCE AND WEIGHT GUARANTEE |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 2 of 12 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [*****] PERFORMANCE AND WEIGHT GUARANTEE |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 3 of 12 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [*****] PERFORMANCE AND WEIGHT GUARANTEE |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 4 of12 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [*****] PERFORMANCE AND WEIGHT GUARANTEE |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 5 of 12 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [*****] PERFORMANCE AND WEIGHT GUARANTEE |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 6 of 12 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [*****] PERFORMANCE AND WEIGHT GUARANTEE |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 7 of 12 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [*****] PERFORMANCE AND WEIGHT GUARANTEE |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 8 of 12 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [******] PERFORMANCE AND WEIGHT GUARANTEE |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 9 of 12 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [*****] PERFORMANCE AND WEIGHT GUARANTEE |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 10 of 12 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [*****] PERFORMANCE AND WEIGHT GUARANTEE |
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[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 11 of 12 |
CONFIDENTIAL TREATMENT REQUESTED
ATTACHMENT I [*****] PERFORMANCE AND WEIGHT GUARANTEE |
[*****] |
[*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
Attachment I to COM0384-14 Execution Version | Page 12 of 12 |
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 1 TO PURCHASE AGREEMENT COM0384-14
This Amendment No.1 (the Amendment No.1) dated as of September 4, 2015 is between Embraer S.A. (Embraer) and Azul Finance 2 LLC (Buyer), collectively referred to herein as the Parties, and constitutes an amendment and modification to Purchase Agreement COM0384-14 dated December 30, 2014, as amended from time to time (the Purchase Agreement).
All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.1 and the Purchase Agreement, this Amendment No.1 shall control.
WHEREAS, Buyer has requested and Embraer has agreed to modify the Article 4.1.2 of the Purchase Agreement.
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | PAYMENT |
The Article 4.1.2 is hereby deleted and replaced in its entirety by the following:
4.1.2. A [*****] payment of each Aircraft Basic Price, less the relevant [*****], is due and payable as follows:
4.1.2.1 [*****] shall be paid by Buyer on or before [*****].
4.1.2.2 [*****] shall be paid by Buyer on or before [*****].
4.1.2.3 [*****] shall be paid by Buyer on or before [*****].
4.1.2.4 [*****] shall be paid by Buyer on or before [*****].
2. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referenced Purchase Agreement, as well as its related Attachments, which are not specifically modified by this Amendment No.1 shall remain in full force and effect without any change.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
COM0493-15 Amendment No.1 to PA COM0384-14 |
Page 1 of 3 |
AMENDMENT No. 1 TO PURCHASE AGREEMENT COM0384-14
3. | COUNTERPARTS |
This Amendment No. 1 may be signed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
This Amendment No. 1 may be signed by facsimile with originals duly signed to follow by an internationally recognized courier.
[INTENTIONALLY LEFT BLANK SIGNATURE PAGE FOLLOWS]
COM0493-15 Amendment No.1 to PA COM0384-14 |
Page 2 of 3 |
AMENDMENT No. 1 TO PURCHASE AGREEMENT COM0384-14
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 1 to be effective as of the date first written above.
EMBRAER S.A. | AZUL FINANCE 2 LLC | |||||||
By: | /s/ Paulo Cesar de Souza e Silva | By: | /s/ John Peter Rodgerson | |||||
Name: | Paulo Cesar de Souza e Silva | Name: | John Peter Rodgerson | |||||
Title: | President Commercial Aviation | Title: | President | |||||
By: | /s/ Adriana Sarlo | By: |
| |||||
Name: | Adriana Sarlo | Name: | ||||||
Title: | Vice President Contracts | Title: | ||||||
Commercial Aviaton | ||||||||
Place: | S. J. CamposSPBrazil | Place: | Barueri, SP, Brazil |
COM0493-15 Amendment No.1 to PA COM0384-14 |
Page 3 of 3 |
Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 2 TO PURCHASE AGREEMENT COM0384-14
This Amendment No.2 (the Amendment No.2) dated as of March 2, 2016 is between Embraer S.A. (Embraer) and Azul Finance 2 LLC (Buyer), collectively referred to herein as the Parties, and constitutes an amendment and modification to Purchase Agreement COM0384-14 dated December 30, 2014, as amended from time to time (the Purchase Agreement).
All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.2 and the Purchase Agreement, this Amendment No.2 shall control.
WHEREAS, Buyer has paid Embraer the amount of [*****] according to articles 4.1.1, 4.1.2.1 and 4.1.2.2 of the Purchase Agreement.
WHEREAS, Buyer has requested Embraer a [*****] and Embraer has agreed, as a special concession, to change article 4.1.2 of the Purchase Agreement [*****].
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | PAYMENT |
The Article 4.1.2 is hereby deleted and replaced in its entirety by the following:
4.1.2 A [*****] payment of [*****] Aircraft Basic Price, less the relevant [*****], is due and payable as follows:
4.1.2.1 [*****] already paid by Buyer on [*****].
4.1.2.2 [*****] shall be paid by Buyer on or before [*****].
4.1.2.3 [*****] shall be paid by Buyer on or before [*****].
4.1.2.4 [*****] shall be paid by Buyer on or before [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
COM0109-16 Amendment No.2 to PA COM0384-14 |
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Execution version
AMENDMENT No. 2 TO PURCHASE AGREEMENT COM0384-14
2. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referenced Purchase Agreement, as well as its related Attachments, which are not specifically modified by this Amendment No.2 shall remain in full force and effect without any change.
3. | COUNTERPARTS |
This Amendment No. 2 may be signed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
This Amendment No. 2 may be signed by facsimile with originals duly signed to follow by an internationally recognized courier.
[INTENTIONALLY LEFT BLANK SIGNATURE PAGE FOLLOWS]
COM0109-16 Amendment No.2 to PA COM0384-14 |
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Execution version
AMENDMENT No. 2 TO PURCHASE AGREEMENT COM0384-14
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 2 to be effective as of the date first written above.
EMBRAER S.A. | AZUL FINANCE 2 LLC | |||||||
By: | /s/ Paulo Cesar de Souza e Silva | By: | /s/ John Peter Rodgerson | |||||
Name: | Paulo Cesar de Souza e Silva | Name: | John Peter Rodgerson | |||||
Title: | President Commercial Aviation | Title: | President | |||||
By: | /s/ Adriana Sarlo | By: |
| |||||
Name: | Adriana Sarlo | Name: | ||||||
Title: | Vice President Contracts | Title: | ||||||
Commercial Aviaton | ||||||||
Place: | São José dos Campos | Place: |
|
COM0109-16 Amendment No.2 to PA COM0384-14 |
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 3 TO PURCHASE AGREEMENT COM0384-14
This Amendment No.3 (the Amendment No.3) dated as of March 31, 2016 is between Embraer S.A. (Embraer) and Azul Finance 2 LLC (Buyer), collectively referred to herein as the Parties, and constitutes an amendment and modification to Purchase Agreement COM0384-14 dated December 30, 2014, as amended from time to time (the Purchase Agreement).
All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No.3 and the Purchase Agreement, this Amendment No.3 shall control.
WHEREAS, Buyer has requested and Embraer has agreed to provide Buyer [*****] and Buyer has decided to confirm [*****].
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Embraer and Buyer agree as follows:
1. | SUBJECT |
Article 2 of the Purchase Agreement are hereby deleted and replaced as follows:
2. | SUBJECT |
Subject to the terms and conditions of this Agreement:
2.1 Embraer shall sell and deliver and Buyer shall purchase and take delivery of [*****];
2.2 Embraer shall provide to Buyer the Services and the Technical Publications as described in the Attachment B to this Agreement; and
2.3 Buyer shall have the option to purchase [*****], in accordance with Article 21.
2. | PAYMENT |
The Article 4.1.1 and 4.1.2 is hereby deleted and replaced in its entirety by the following:
4.1.1 An [*****] in the amount of [*****] per each Aircraft is due and payable by Buyer, as follows:
4.1.1.1 [*****] was already paid by Buyer on [*****].
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
COM0160-16 Amendment No.3 to PA COM0384-14 |
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
AMENDMENT No. 3 TO PURCHASE AGREEMENT COM0384-14
4.1.1.2 [*****] is due and payable within [*****] following the execution of this Amendment No.3.
4.1.2 A [*****] payment of [*****] Aircraft Basic Price, less the relevant [*****], is due and payable as follows:
4.1.2.1 [*****] was already paid by Buyer on [*****].
4.1.2.3 [*****] shall be paid by Buyer on or before [*****].
4.1.2.4 [*****] shall be paid by Buyer on or before [*****].
4.1.2.5 [*****] shall be paid by Buyer on or before [*****].
3. | DELIVERY |
The Attachment E to the Purchase Agreement is hereby deleted and replaced in its entirety by the
Attachment E to this Amendment No. 3.
4. | PURCHASE RIGHT AIRCRAFT |
Article 21.1 of the Purchase Agreement is hereby deleted and replaced in its entirety by the following:
21.1 Embraer shall grant Buyer the right to purchase [*****] additional [*****] (the Purchase Right Aircraft) configured as per Attachment A, as may be amended from time to time, and available to Buyer [*****] that are applicable to the Aircraft (the Purchase Right Basic Price), [*****].
5. | REINSTATEMENT OF PURCHASE AGREEMENT |
All other provisions and conditions of the referenced Purchase Agreement, as well as its related Attachments, which are not specifically modified by this Amendment No.3 shall remain in full force and effect without any change.
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
COM0160-16 Amendment No.3 to PA COM0384-14 |
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Execution version
AMENDMENT No. 3 TO PURCHASE AGREEMENT COM0384-14
6. | COUNTERPARTS |
This Amendment No. 3 may be signed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
This Amendment No. 3 may be signed by facsimile with originals duly signed to follow by an internationally recognized courier.
[INTENTIONALLY LEFT BLANKSIGNATURE PAGE FOLLOWS]
COM0160-16 Amendment No.3 to PA COM0384-14 |
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Execution version
AMENDMENT No. 3 TO PURCHASE AGREEMENT COM0384-14
IN WITNESS WHEREOF, Embraer and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 3 to be effective as of the date first written above.
EMBRAER S.A. | AZUL FINANCE 2 LLC | |||||||
By: | By: | /s/ Renato Covelo | ||||||
Name: | Name: | Renato Covelo | ||||||
Title: | Title: | Procurador | ||||||
By: | /s/ Adriana Sarlo | By: |
| |||||
Name: | Adriana Sarlo | Name: | ||||||
Title: | Vice President Contracts | Title: | ||||||
Commercial Aviation | ||||||||
Place: | São José dos Campos SP, Brazil | Place: | Barueri SP |
COM0160-16 Amendment No.3 to PA COM0384-14 |
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Execution version
CONFIDENTIAL TREATMENT REQUESTED
Amendment No. 3 to Purchase Agreement COM0384-14
ATTACHMENT E
AIRCRAFT DELIVERY SCHEDULE
Aircraft Delivery Schedule (ref. Purchase Agreement Article 5)
Aircraft |
Contractual Delivery Date |
Aircraft |
Contractual Delivery Date | |||
[*****] |
[*****] | [*****] | [*****] |
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission.
COM0160-16 Amendment No.3 to PA COM0384-14 |
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