UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): June 30, 2003
JETBLUE AIRWAYS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware |
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000-49728 |
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87-0617894 |
(State of other
jurisdiction of
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(Commission
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(I.R.S. Employer
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118-29 Queens Boulevard, Forest Hills, New York 11375 |
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(Address of principal executive offices) (Zip Code) |
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(718) 709-3026 |
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(Registrants telephone number, including area code) |
Item 5. Other Events and Regulation FD Disclosure
On April 23, 2003, we entered into Amendment No. 16 to the A320 Purchase Agreement between AVSA, S.A.R.L. and JetBlue Airways Corporation, and a corresponding Letter Agreement between the parties firmly ordering an additional 65 new Airbus A320 aircraft, with options for a further 50 new aircraft. We also entered into Side Letter No. 13 to the V2500 General Terms of Sale between JetBlue Airways Corporation and IAE International Aero Engines AG firmly ordering new V2527-A5 engines related to the additional A320 aircraft. The above referenced agreements are filed herewith as Exhibits 10.1, 10.2 and 10.3, respectively.
On June 9, 2003, we entered into the EMBRAER 190 Purchase Agreement DCT-025/2003 between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation, and a corresponding Letter Agreement between the parties firmly ordering 100 new EMBRAER 190 aircraft, with options for an additional 100 new EMBRAER 190 aircraft. The above referenced agreements are filed herewith as Exhibits 10.4. and 10.5, respectively.
Item 7. Financial Statements and Exhibits
(c) Exhibits
Exhibit
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Description |
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10.1* |
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Amendment No. 16, dated as of April 23, 2003, to the A320 Purchase Agreement, dated as of April 20, 1999, between AVSA, S.A.R.L. and JetBlue Airways Corporation. |
10.2* |
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Letter Agreement, dated as of April 23, 2003, between AVSA, S.A.R.L. and JetBlue Airways Corporation. |
10.3* |
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Side Letter No. 13 to the V2500 General Terms of Sale, dated April 23, 2003, between IAE International Aero Engines AG and JetBlue Airways Corporation. |
10.4* |
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EMBRAER-190 Purchase Agreement DCT-025/2003, dated June 9, 2003, between Embraer Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation. |
10.5* |
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Letter Agreement DCT-026/2003, dated June 9, 2003, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation. |
* Pursuant to 17 CFR 240.24b-2, confidential information has been omitted and has been filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request filed with the Commission.
2
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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JETBLUE AIRWAYS CORPORATION |
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(Registrant) |
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Date: June 30, 2003 |
By: |
/s/ HOLLY L. NELSON |
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Vice President and Controller
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3
EXHIBIT INDEX
Exhibit
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Description |
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10.1* |
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Amendment No. 16, dated as of April 23, 2003, to the A320 Purchase Agreement, dated as of April 20, 1999, between AVSA, S.A.R.L. and JetBlue Airways Corporation. |
10.2* |
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Letter Agreement, dated as of April 23, 2003, between AVSA, S.A.R.L. and JetBlue Airways Corporation. |
10.3* |
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Side Letter No. 13 to the V2500 General Terms of Sale, dated April 23, 2003, between IAE International Aero Engines AG and JetBlue Airways Corporation. |
10.4* |
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EMBRAER-190 Purchase Agreement DCT-025/2003, dated June 9, 2003, between Embraer Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation. |
10.5* |
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Letter Agreement DCT-026/2003, dated June 9, 2003, between Embraer-Empresa Brasileira de Aeronautica S.A. and JetBlue Airways Corporation. |
* Pursuant to 17 CFR 240.24b-2, confidential information has been omitted and has been filed separately with the Securities and Exchange Commission pursuant to a Confidential Treatment Request filed with Commission.
4
Exhibit 10.1
Amendment No. 16
to the A320
Purchase Agreement
Dated as of April 20, 1999
between
AVSA, S.A.R.L.
and
JetBlue Airways Corporation
This Amendment No. 16 (hereinafter referred to as the Amendment) is entered into as of April 23rd, 2003, between AVSA, S.A.R.L., a société à responsabilité limitée organized and existing under the laws of the Republic of France, having its registered office located at 2, Rond-Point Maurice Bellonte, 31700 Blagnac, France (hereinafter referred to as the Seller), and JetBlue Airways Corporation, a corporation organized and existing under the laws of the State of Delaware, United States of America, having its principal corporate offices located 118-29 Queens Boulevard, 5th Floor, Forest Hills, New York 11375 USA (hereinafter referred to as the Buyer).
WITNESSETH
WHEREAS, the Buyer and the Seller entered into an A320 Purchase Agreement, dated as of April 20, 1999, relating to the sale by the Seller and the purchase by the Buyer of certain Airbus A320-200 aircraft (the Aircraft), including twenty-five option aircraft (the Option Aircraft), which, together with all Exhibits, Appendixes and Letter Agreements attached thereto and as amended by Amendment No. 1, dated as of September 30, 1999, Amendment No. 2, dated as of March 13, 2000, Amendment No. 3, dated as of March 29, 2000, Amendment No. 4, dated as of September 29, 2000, Amendment No. 5 dated as of November 7, 2000, Amendment No. 6 dated as of November 20, 2000, Amendment No. 7 dated as of January 29 2001, Amendment No. 8 dated as of May 3, 2001, Amendment No. 9 dated as of July 18, 2001, Amendment No. 10 dated as of November 16, 2001, Amendment No. 11 dated as of December 31, 2001, Amendment No. 12 dated as of April 19, 2002, Amendment No. 13 dated as of November 22, 2002, Amendment No. 14 dated as of December 18, 2002 and Amendment No. 15 dated as of February 10, 2003 is hereinafter called the Agreement.
1
WHEREAS the Buyer desires to firmly order twenty six (26) Option Aircraft and nineteen (19) Additional Option Aircraft remaining as per §3 of Letter Agreement No. 4 and §2 of Amendment No. 8 to the Agreement (the Amendment No. 16 Converted Aircraft)
WHEREAS the Buyer wishes to order twenty (20) incremental firmly ordered aircraft (the Amendment No.16 Incremental Firm Aircraft) and fifty (50) incremental option aircraft (the Amendment No.16 Options)
WHEREAS the Amendment No. 16 Converted Aircraft and the Amendment No.16 Incremental Firm Aircraft shall be called collectively the Amendment No. 16 Firm Aircraft
WHEREAS the Buyer desires to advance the delivery position of Firmly Ordered Option Aircraft CaC Id 41226 from *** 2004 to *** 2003 and
WHEREAS the Seller is willing to accommodate the Buyer with respect to the foregoing under the terms and conditions set forth herein,
1. DEFINITIONS
1.1 Capitalized terms used herein and not otherwise defined herein will have the meanings assigned to them in the Agreement. The terms herein, hereof and hereunder and words of similar import refer to this Amendment.
2. DELIVERY SCHEDULE
2.1 The Buyer hereby exercises its option under Paragraph 2.1 of Letter Agreement No. 4 to the Agreement to firmly order the Amendment No. 16 Converted Aircraft as follows:
(i) Firmly order all remaining option aircraft existing under the Agreement from rank No. 79 to rank No. 104 and to modify their delivery dates as specified in the schedule below.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
2
(ii) Firmly order all remaining additional option aircraft assigned by the Seller to the Buyer through Letter Agreement No. 4 §3 and through Amendment No. 8 §2 for delivery dates as specified in the schedule in Paragraph 2.6 below.
2.2 The Seller hereby offers for sale and the Buyer hereby orders twenty (20) incremental firm A320 aircraft. The Amendment No. 16 Incremental Aircraft will be subject to the same terms and conditions as the Firm Aircraft, except as otherwise stated in the Amendment and will be delivered as specified in the schedule in Paragraph 2.6 below (Rank Nos 124 through 143).
2.3 In consideration of the Buyers order for sixty-five (65) firmly ordered aircraft, the Seller hereby offers positions for the Amendment No. 16 Options under the terms and conditions of this Amendment. Delivery dates are set forth in Paragraph 2.6 below (Rank No 144 through 193)
2.4 In addition to the above, the Buyer and the Seller agree to ***.
2.5 All Aircraft on firm order prior to the execution of this Amendment No. 16 shall be renamed the Pre-Amendment No. 16 Aircraft.
2.6 As a consequence Paragraphs 2.1, 2.2, 2.3, 2.4 and 2.5 above, the delivery schedule set forth in Clause 9.1.1 of the Agreement is hereby cancelled and replaced by the following quoted provisions:
QUOTE:
CAC Id No. |
|
Rank No. |
|
Aircraft |
|
Delivery |
|
|
|
|
|
|
|
|
|
|
|
41 199 |
|
No. 1 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2000 |
41 200 |
|
No. 2 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2000 |
41 203 |
|
No. 3 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2000 |
41 201 |
|
No. 4 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2000 |
41 202 |
|
No. 5 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2000 |
41 204 |
|
No. 6 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2000 |
41 205 |
|
No. 7 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2001 |
41 206 |
|
No. 8 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2001 |
41 210 |
|
No. 9 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2001 |
41 207 |
|
No. 10 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2001 |
41 208 |
|
No. 11 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2001 |
41 209 |
|
No. 12 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2001 |
41 228 |
|
No. 13 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2001 |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
3
CAC Id No. |
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Rank No. |
|
Aircraft |
|
Delivery |
|
|
|
|
|
|
|
|
|
|
|
41 211 |
|
No. 14 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 212 |
|
No. 15 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 218 |
|
No. 16 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 224 |
|
No. 17 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 227 |
|
No. 18 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 225 |
|
No. 19 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 213 |
|
No. 20 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 214 |
|
No. 21 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 234 |
|
No. 22 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 215 |
|
No. 23 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 216 |
|
No. 24 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 217 |
|
No. 25 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
124 965 |
|
No. 26 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 235 |
|
No. 27 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 220 |
|
No. 28 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
41 219 |
|
No. 29 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2002 |
|
|
|
|
|
|
|
|
|
41 236 |
|
No. 30 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
104 399 |
|
No. 31 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
41 237 |
|
No. 32 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
124 966 |
|
No. 33 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
41 221 |
|
No. 34 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
41 238 |
|
No. 35 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
41 222 |
|
No. 36 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
104 400 |
|
No. 37 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
104 401 |
|
No. 38 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
41 223 |
|
No. 39 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
104 402 |
|
No. 40 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
104 443 |
|
No. 41 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
104 403 |
|
No. 42 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
124 964 |
|
No. 43 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
41 226 |
|
No. 44 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2003 |
|
|
|
|
|
|
|
|
|
111 579 |
|
No. 45 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
41 245 |
|
No. 46 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
41 246 |
|
No. 47 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
41 229 |
|
No. 48 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
41 247 |
|
No. 49 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
41 248 |
|
No. 50 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
104 404 |
|
No. 51 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
104 405 |
|
No. 52 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
41 230 |
|
No. 53 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
104 406 |
|
No. 54 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
124 967 |
|
No. 55 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2004 |
104 407 |
|
No. 56 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
104 408 |
|
No. 57 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2004 |
124 968 |
|
No. 58 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2004 |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
4
CAC Id No. |
|
Rank No. |
|
Aircraft |
|
Delivery |
|
|
|
|
|
|
|
|
|
|
|
104 409 |
|
No. 59 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
41 232 |
|
No. 60 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
124 959 |
|
No. 61 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2005 |
104 410 |
|
No. 62 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
104 411 |
|
No. 63 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
41 233 |
|
No. 64 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
104 412 |
|
No. 65 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
124 960 |
|
No. 66 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2005 |
104 413 |
|
No. 67 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
104 414 |
|
No. 68 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
124 961 |
|
No. 69 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2005 |
104 415 |
|
No. 70- |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
104 416 |
|
No. 71 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
104 417 |
|
No. 72 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
104 418 |
|
No. 73 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2005 |
124 962 |
|
No. 74 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2005 |
|
|
|
|
|
|
|
|
|
124 963 |
|
No. 75 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2006 |
104 419 |
|
No. 76 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2006 |
41 239 |
|
No. 77 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2006 |
41 240 |
|
No. 78 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2006 |
104 420 |
|
No. 79 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2006 |
41 241 |
|
No. 80 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2006 |
104 421 |
|
No. 81 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2006 |
41 242 |
|
No. 82 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2006 |
41 243 |
|
No. 83 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2006 |
104 422 |
|
No. 84 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2006 |
41 244 |
|
No. 85 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2006 |
69 719 |
|
No. 86 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2006 |
104 423 |
|
No. 87 |
|
Pre-Amendment No. 16 Aircraft |
|
*** |
|
2006 |
69 720 |
|
No. 88 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2006 |
69 721 |
|
No. 89 |
|
Amendment No.16 Firm Aircraft |
|
*** |
|
2006 |
|
|
|
|
|
|
|
|
|
104 424 |
|
No. 90 |
|
Pre-Amendment No. 16 Aircraft |
|
Year |
|
2007 |
104 425 |
|
No. 91 |
|
Pre-Amendment No. 16 Aircraft |
|
Year |
|
2007 |
104 426 |
|
No. 92 |
|
Pre-Amendment No. 16 Aircraft |
|
Year |
|
2007 |
104 427 |
|
No. 93 |
|
Pre-Amendment No. 16 Aircraft |
|
Year |
|
2007 |
104 428 |
|
No. 94 |
|
Pre-Amendment No. 16 Aircraft |
|
Year |
|
2007 |
69 722 |
|
No. 95 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2007 |
69 723 |
|
No. 96 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2007 |
69 724 |
|
No. 97 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2007 |
69 725 |
|
No. 98 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2007 |
96 459 |
|
No. 99 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2007 |
104 439 |
|
No. 100 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2007 |
104 440 |
|
No. 101 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2007 |
104 441 |
|
No. 102 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2007 |
104 442 |
|
No. 103 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2007 |
41231 |
|
No. 104 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2007 |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
5
CAC Id No. |
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Rank No. |
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Aircraft |
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Delivery |
|
|
|
|
|
|
|
|
|
|
|
tbd |
|
No. 105 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 106 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 107 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 108 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 109 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 110 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 111 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 112 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 113 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 114 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 115 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 116 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
tbd |
|
No. 117 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2008 |
|
|
|
|
|
|
|
|
|
tbd |
|
No. 118 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2009 |
tbd |
|
No. 119 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2009 |
tbd |
|
No. 120 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2009 |
tbd |
|
No. 121 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2009 |
tbd |
|
No. 122 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2009 |
tbd |
|
No. 123 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2009 |
tbd |
|
No. 124 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2009 |
tbd |
|
No. 125 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2009 |
tbd |
|
No. 126 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2009 |
tbd |
|
No. 127 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2009 |
|
|
|
|
|
|
|
|
|
tbd |
|
No. 128 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2010 |
tbd |
|
No. 129 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2010 |
tbd |
|
No. 130 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2010 |
tbd |
|
No. 131 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2010 |
tbd |
|
No. 132 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2010 |
tbd |
|
No. 133 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2010 |
tbd |
|
No. 134 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2010 |
tbd |
|
No. 135 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2010 |
tbd |
|
No. 136 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2010 |
tbd |
|
No. 137 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2010 |
|
|
|
|
|
|
|
|
|
tbd |
|
No. 138 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2011 |
tbd |
|
No. 139 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2011 |
tbd |
|
No. 140 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2011 |
tbd |
|
No. 141 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2011 |
tbd |
|
No. 142 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2011 |
tbd |
|
No. 143 |
|
Amendment No.16 Firm Aircraft |
|
Year |
|
2011 |
6
CAC Id No. |
|
Rank No. |
|
Aircraft |
|
Delivery |
|
|
|
|
|
|
|
|
|
|
|
tbd |
|
No. 144 |
|
Amendment No.16 Option |
|
*** |
|
2006 |
tbd |
|
No. 145 |
|
Amendment No.16 Option |
|
*** |
|
2006 |
|
|
|
|
|
|
|
|
|
tbd |
|
No. 146 |
|
Amendment No.16 Option |
|
Year |
|
2007 |
tbd |
|
No. 147 |
|
Amendment No.16 Option |
|
Year |
|
2007 |
|
|
|
|
|
|
|
|
|
tbd |
|
No. 148 |
|
Amendment No.16 Option |
|
Year |
|
2008 |
tbd |
|
No. 149 |
|
Amendment No.16 Option |
|
Year |
|
2008 |
tbd |
|
No. 150 |
|
Amendment No.16 Option |
|
Year |
|
2008 |
tbd |
|
No. 151 |
|
Amendment No.16 Option |
|
Year |
|
2008 |
|
|
|
|
|
|
|
|
|
tbd |
|
No. 152 |
|
Amendment No.16 Option |
|
Year |
|
2009 |
tbd |
|
No. 153 |
|
Amendment No.16 Option |
|
Year |
|
2009 |
tbd |
|
No. 154 |
|
Amendment No.16 Option |
|
Year |
|
2009 |
tbd |
|
No. 155 |
|
Amendment No.16 Option |
|
Year |
|
2009 |
tbd |
|
No. 156 |
|
Amendment No.16 Option |
|
Year |
|
2009 |
tbd |
|
No. 157 |
|
Amendment No.16 Option |
|
Year |
|
2009 |
tbd |
|
No. 158 |
|
Amendment No.16 Option |
|
Year |
|
2009 |
tbd |
|
No. 159 |
|
Amendment No.16 Option |
|
Year |
|
2009 |
|
|
|
|
|
|
|
|
|
tbd |
|
No. 160 |
|
Amendment No.16 Option |
|
Year |
|
2010 |
tbd |
|
No. 161 |
|
Amendment No.16 Option |
|
Year |
|
2010 |
tbd |
|
No. 162 |
|
Amendment No.16 Option |
|
Year |
|
2010 |
tbd |
|
No. 163 |
|
Amendment No.16 Option |
|
Year |
|
2010 |
tbd |
|
No. 164 |
|
Amendment No.16 Option |
|
Year |
|
2010 |
tbd |
|
No. 165 |
|
Amendment No.16 Option |
|
Year |
|
2010 |
tbd |
|
No. 166 |
|
Amendment No.16 Option |
|
Year |
|
2010 |
tbd |
|
No. 167 |
|
Amendment No.16 Option |
|
Year |
|
2010 |
|
|
|
|
|
|
|
|
|
tbd |
|
No. 168 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 169 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 170 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 171 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 172 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 173 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 174 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 175 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 176 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 177 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 178 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 179 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
tbd |
|
No. 180 |
|
Amendment No.16 Option |
|
Year |
|
2011 |
|
|
|
|
|
|
|
|
|
tbd |
|
No. 181 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 182 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 183 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 184 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 185 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 186 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 187 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 188 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 189 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 190 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 191 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 192 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
tbd |
|
No. 193 |
|
Amendment No.16 Option |
|
Year |
|
2012 |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
7
UNQUOTE
2.7 ***
3. PRICE
3.1 Amendment No. 16 Firm Aircraft
For Amendment No. 16 Firm Aircraft, the provisions contained in Clause 3.1.1.1(i) of the Agreement are hereby cancelled and replaced by the following quoted provisions:
QUOTE:
3.1.1.1(i) The Base Price of the Airframe, as defined in the Standard Specification (excluding Buyer Furnished Equipment, Propulsion Systems and SCNs), at delivery conditions prevailing in January 2003 is:
***
UNQUOTE
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
8
For Amendment No. 16 Firm Aircraft, the provisions contained in Clause 3.1.1.2 of the Agreement are hereby cancelled and replaced by the following quoted provisions:
QUOTE:
3.1.1.2 The Base Price of the Airframe will be revised to the Delivery Date of each Amendment No. 16 Firm Aircraft in accordance with the Price Revision Formula applicable to the Airframe as set forth in Exhibit A hereto.
UNQUOTE
For Amendment No. 16 Firm Aircraft, the provisions contained in Clause 3.1.2 of the Agreement are hereby cancelled and replaced by the following quoted provisions:
QUOTE:
3.1.2 The Base Price of a set of two (2) IAE V2527-A5 Propulsion Systems, at delivery conditions prevailing in January 2003 is:
***
Said Base Price has been calculated from the Reference Price indicated by International Aero Engines of US $*** in accordance with economic conditions prevailing in February 2001.
Said Reference Price is subject to adjustment to the Delivery Date in accordance with the International Aero Engines Price Revision Formula set forth in Exhibit B hereto.
UNQUOTE
3.2 Amendment No. 16 Options
For Amendment No. 16 Options, the provisions contained in Clause 3.1.1.1(i) of the Agreement are hereby cancelled and replaced by the following quoted provisions:
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
9
QUOTE:
3.1.1.1(i) The Base Price of the Airframe, as defined in the Standard Specification (excluding Buyer Furnished Equipment, Propulsion Systems and SCNs but including the nacelles), at delivery conditions prevailing in January 2003 is:
***
UNQUOTE
For Amendment No. 16 Options, the provisions contained in Clause 3.1.1.2 of the Agreement are hereby cancelled and replaced by the following quoted provisions:
QUOTE:
3.1.1.2 The Base Price of the Airframe will be revised to the Delivery Date of each Amendment No. 16 Option in accordance with the Price Revision Formula applicable to the Airframe as set forth in Exhibit A hereto
UNQUOTE
For Amendment No. 16 Options, the provisions contained in Clause 3.1.2 of the Agreement are hereby cancelled and replaced by the following quoted provisions:
QUOTE:
3.1.2 The Base Price of a set of two (2) IAE V2527-A5 Engines, at delivery conditions prevailing in January 2003 is:
***
Said Base Price has been calculated from the Reference Price indicated by International Aero Engines of US $*** in accordance with delivery conditions prevailing in January 2001.
Said Reference Price is subject to adjustment to the Delivery Date in accordance with the International Aero Engines Price Revision Formula set forth in Exhibit C hereto.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
10
UNQUOTE
4. ESCALATION
If, with respect to any Amendment No.16 Firm Aircraft for delivery prior to June 30, 2011, and any credit memoranda applicable thereto, the Price Revision Formula in Exhibit A hereto produces an effective compounded average annual rate of escalation ***.
5. CREDIT MEMORANDA
5.1 Amendment No. 16 Firm Aircraft
The Airframe Credit applicable to the Amendment No. 16 Firm Aircraft given at January 2003 delivery conditions is:
***
The credit shall be escalated to the month of delivery as per the Airframe Price Revision Formula set out in Exhibit A to the Amendment, as qualified by Paragraph 4 above. The credit shall be made available by the Seller to the Buyer upon delivery of each Amendment No. 16 Firm Aircraft and shall be used by the Buyer to reduce the Final Contract Price of such Aircraft.
5.2 Amendment No. 16 Options
The Airframe Credit applicable to the Amendment No. 16 Options given at January 2003 delivery conditions is:
***
The credit shall be escalated to the month of delivery as per the Seller Airframe Price Revision Formula set out in Exhibit A to the Amendment. The credit shall be made available by the Seller to the Buyer upon delivery of each Amendment No. 16 Option and shall be used by the Buyer to reduce the Final Contract Price of such Aircraft.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
11
6. DEPOSIT
Upon ***, the Buyer will pay the Seller a nonrefundable deposit of
(i) US$*** for each of the sixty five (65) Amendment No. 16 Firm Aircraft, and
(ii) US$*** for each of the fifty (50) Amendment No. 16 Option
The Seller confirms that it has received nonrefundable deposits from the Buyer the amount of US$***. Such amount will be applied to the deposits due under this Paragraph 6 with respect to the Amendment No 16 Firm Aircraft. As a result, an amount of US$ *** will be due by the Buyer to the Seller for the Amendment No. 16 Firm Aircraft and an additional $*** will due by the Buyer to the Seller for the fifty (50) Amendment No. 16 Options upon execution of this Amendment.
7. PREDELIVERY PAYMENTS
Upon ***, the Buyer will pay the Seller the Predelivery Payment identified as a 1st Payment under Clause 5.2.3 of the Agreement for the Amendment No. 16 Firm Aircraft bearing Rank No. *** (in the schedule above in Paragraph 2.6). Consequently, an amount of US$*** will be due in cash by the Buyer to the Seller at such time.
***
All remaining Predelivery Payments will be paid in accordance with the Agreement.
8. ***
9. FLEXIBILITY RIGHTS ***
9.1 From and including calendar year *** Amendment No. 16 Firm Aircraft may be converted by the Buyer into a firm order for another Model of Aircraft (A319-100 or A321-200) under the terms and conditions contained in Paragraph 4 of Letter Agreement No. 4.
9.2 ***
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
12
10. ***
11. OTHER MATTERS
11.1 Live TV
The Buyer and the Seller are currently in the process of defining the installation in production on the Buyers Aircraft of provisions in the ceiling for the LiveTV antenna and structural provisions in the bulk cargo hold for the LiveTV equipment rack (together, the LiveTV Provisions).
***
11.2 SPARES
Upon request from the Buyer, the Seller will make available to the Buyer one (1) dedicated Spares representative for *** months. ***.
11.3 TRAINING
It is understood that all pilot training and training allowances to which the Buyer was entitled under the Agreement either have been exhausted by the Buyer or have been converted for value under that certain Simulator Agreement dated February 28, 2003 and that Buyer will receive no additional training or training allowances under this Amendment.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
13
However, on a timetable to be mutually agreed between the Buyer and the Seller, the Seller will provide ***.
11.4 RAISBECK OHSC DOORS
The Seller hereby agrees to investigate the possibility of the Buyers providing to the Seller as BFE Raisbeck OHSC doors for installation in production. Should the Seller be unable to recommend a solution reasonably acceptable to the Buyer, the Seller will provide the Buyer at delivery of each Amendment No. 16 Firm Aircraft which is delivered without Raisbeck OHSC doors a credit memorandum in the amount of $ *** at economic conditions prevailing in January 2003. This credit shall be in addition to any credit the Seller may provide the Buyer for the non-installation of Buyer supplied overhead stowage compartment doors.
11.5 . ***
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
14
12. EFFECT OF THE AMENDMENT
The Agreement will be deemed amended to the extent herein provided, and, except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. This Amendment supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the subject matter of this Amendment.
Both parties agree that this Amendment will constitute an integral, nonseverable part of the Agreement and be governed by its provisions, except that if the Agreement and this Amendment have specific provisions that are inconsistent, the specific provisions contained in this Amendment will govern.
This Amendment will become effective upon execution hereof and upon payment of the amounts due as per Paragraphs 6 and 7 above.
13. CONFIDENTIALITY
This Amendment is subject to the confidentiality provisions set forth in Clause 22.5 of the Agreement.
14. ASSIGNMENT
Notwithstanding any other provision of this Amendment or of the Agreement, this Amendment 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 14 will be void and of no force or effect.
15
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers or agents on the dates written below.
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16
EXHIBIT A
AIRFRAME PRICE REVISION FORMULA
1 Basic Price
The Airframe Basic Price quoted Appendix I of the Amendment 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 Basic Price has been established in accordance with the average economic conditions prevailing in December 2001, January 2002, February 2002 and corresponding to a theoretical delivery in January 2003 as defined by ECIb and ICb index values indicated hereafter.
ECIb and ICb index values indicated herein shall not be subject to any revision.
3 Indexes
Labor Index : Employment Cost Index for Workers in Aerospace manufacturing hereinafter referred to as ECI SIC 3721W, quarterly published by the US Department of Labor, Bureau of Labor Statistics, in NEWS, and found in Table 6, WAGES and SALARIES (not seasonally adjusted): Employment Cost Indexes for Wages and Salaries for private industry workers by industry and occupational group, or such other name that may be from time to time used for the publication title and/or table, (Aircraft manufacturing, standard industrial classification code SIC 3721, base month and year June 1989 = 100).
The quarterly value released for a certain month (March, June, September and December) shall be the one deemed to apply for the two preceding months.
Index code for access on the Web site of the US Bureau of Labor Statistics: ECU28102i.
Material Index : Industrial commodities (hereinafter referred to as IC) as published in Producer Price Indexes (Table 6. Producer price indexes and percent changes for commodity groupings and individual items).
(Base Year 1982 = 100).
Index code for access on the Web site of the US Bureau of Labor Statistics: WPU03THRU15.
17
4 Revision Formula
Pn |
= |
(Pb + F) x [( *** x (ECIn/ECIb)) + (*** x (ICn/ICb))] |
|
|
|
Where |
: |
|
|
|
|
Pn |
: |
Airframe Basic Price as revised as of the Delivery Date of the Aircraft |
|
|
|
Pb |
: |
Airframe Basic Price at economic conditions December 2001, January 2002, February 2002 averaged (January 2003 delivery conditions) |
|
|
|
F |
: |
(*** x N x Pb) |
|
|
where N = the calendar year of delivery of the Aircraft minus 2003 |
|
|
|
ECIn |
: |
the arithmetic average of the latest published values of the ECI SIC 3721W-Index available at the Delivery Date of the Aircraft for the 11 th , 12 th and 13 th month prior to the month of Aircraft Delivery |
|
|
|
ECIb |
: |
ECI SIC 3721W-Index for December 2001, January 2002, February 2002 averaged (=160.4) |
|
|
|
ICn |
: |
the arithmetic average of the latest published values of the IC-Index available at the Delivery Date of the Aircraft for the 11 th , 12 th and 13 th month prior to the month of Aircraft Delivery |
|
|
|
ICb |
: |
IC-Index for December 2001, January 2002, February 2002, averaged (=129.2) |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
18
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 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.
The final factor shall be rounded to the nearest ten-thousandth (4 decimals).
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 utilisation 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 basic prices as revised at delivery of the Aircraft shall be made after Aircraft delivery for any subsequent changes in the published Index values.
19
EXHIBIT B
PROPULSION SYSTEMS PRICE REVISION FORMULA
INTERNATIONAL AERO ENGINES
1 Reference Price of the Propulsion Systems
The Reference Price of a set of two (2) INTERNATIONAL AERO ENGINES Propulsion Systems is *** .
This Reference Price 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 Reference Period
The above Reference Price has been established in accordance with the averaged economic conditions prevailing in February 2001 (delivery conditions June 2001), as defined, according to INTERNATIONAL AERO ENGINES by the ECIb, MMPb and EPb index values indicated in Clause 4 of this Exhibit B.
3 Indexes
Labor Index : Employment Cost Index for Workers in Aerospace manufacturing hereinafter referred to as ECI SIC 3721W, quarterly published by the US Department of Labor, Bureau of Labor Statistics, in NEWS, and found in Table 6, WAGES and SALARIES (not seasonally adjusted): Employment Cost Indexes for Wages and Salaries for private industry workers by industry and occupational group, or such other name that may be from time to time used for the publication title and/or table, (Aircraft manufacturing, standard industrial classification code SIC 3721, base month and year June 1989 = 100).
The quarterly value released for a certain month (March, June, September and December) shall be the one deemed to apply for the two preceding months.
Index code for access on the Web site of the US Bureau of Labor Statistics: ECU28102i.
Material Index : Industrial Commodities (hereinafter referred to as IC) as published in PPI Detailed report (found in Table 6. Producer price indexes and percent changes for commodity groupings and individual items not seasonnally adjusted or such other names that may be from time to time used for the publication title and/or table). (Base Year 1982 = 100).
Index code for access on the Web site of the US Bureau of Labor Statistics: WPU03THRU15.
Energy Index : Fuels and Related Products and Power Code 5 (hereinafter referred to as EP-Index), published monthly by the US Department of Labor, Bureau of Labor Statistics, in PPI Detailed Report (Table 6: Producer Prices indexes and percent changes for commodity groupings and individual items, not seasonally adjusted) (Base year 1982 = 100) or such other names which may be from time to time used for the publication title and/or table.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
20
4 Revision Formula
Pn = Pb x [( *** ECIn)/ECIb + (*** MMPn)/MMPb + (*** Epn)/EPb]
Where |
: |
|
|
|
|
Pn |
: |
revised Reference Price at Aircraft Delivery |
|
|
|
Pb |
: |
Reference Price at averaged economic conditions February 2001 |
|
|
|
ECIn |
: |
ECIsic3721W Index for the fourth month prior to the month of Aircraft Delivery |
|
|
|
ECIb |
: |
HE SIC 3721W for June 2001 (=154.3) |
|
|
|
MMPn |
: |
MMP-Index for the fourth month prior to the month of Aircraft Delivery |
|
|
|
MMPb |
: |
MMP-Index for June 2001 (=126.6) |
|
|
|
EPn |
: |
EP-Index for the fourth month prior to the month of Aircraft Delivery |
|
|
|
EPb |
: |
EP-Index for June 2001(=119.6) |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
21
5. General Provisions
5.1 Roundings
In determining the Revised Reference Price each quotient (( *** ECIn)/ECIb, (*** MMPn)/MMPb, (*** Epn)/Epb will be calculated 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 nearest higher figure.
After final computation Pn 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 be the final price and shall not be subject to any further adjustments in the indexes.
If no final index values are available for any of the applicable month, the then published preliminary figures shall be the basis on which the Revised Reference Price shall be computed.
5.3 Interruption of Index Publication
If the US Department of Labor substantially revises the methodology of calculation or discontinues any of the indexes referred to hereabove, the Seller shall reflect the substitute for the revised or discontinued index selected by INTERNATIONAL AERO ENGINES, 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 Formula
Should the above escalation provisions become null and void by action of the US Government, the price shall be adjusted due to increases in the costs of labor and material which have occurred from the period represented by the applicable Reference Price Indexes to the fourth months prior to the scheduled Aircraft Delivery.
5.5 Limitation
Should the revised Reference Price be lower than the Reference Price, the final price shall be computed with the Reference Price.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
22
EXHIBIT C
ENGINES
PRICE REVISION FORMULA
INTERNATIONAL AERO ENGINES
1 Reference Price of the Engines
The Reference Price of a set of two (2) INTERNATIONAL AERO ENGINES Engines is as set forth in the Amendment.
This Reference Price 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 Reference Period
The above Reference Price has been established in accordance with the averaged economic conditions prevailing in June 2000, July 2000, August 2000 (delivery conditions January 2001), as defined, according to INTERNATIONAL AERO ENGINES by the ECIb and ICb index values indicated in Clause 4 of this Exhibit C.
3 Indexes
Labor Index :
Employment Cost Index for Workers in Aerospace manufacturing hereinafter referred to as ECI SIC 3721W, quarterly published by the US Department of Labor, Bureau of Labor Statistics, in NEWS, and found in Table 6, WAGES and SALARIES (not seasonally adjusted): Employment Cost Indexes for Wages and Salaries for private industry workers by industry and occupational group ,or such other name that may be from time to time used for the publication title and/or table, (Aircraft manufacturing, standard industrial classification code SIC 3721, base month and year June 1989 = 100).
The quarterly value released for a certain month (March, June, September and December) shall be the one deemed to apply for the two preceding months.
Index code for access on the Web site of the US Bureau of Labor Statistics: ECU28102i.
Material Index :
Industrial Commodities (hereinafter referred to as IC) as published in PPI Detailed report (found in Table 6. Producer price indexes and percent changes for commodity groupings and individual items not seasonnally adjusted or such other names that may be from time to time used for the publication title and/or table) . (Base Year 1982 = 100).
Index code for access on the Web site of the US Bureau of Labor Statistics: WPU03THRU15.
23
4 Revision Formula
Pn = (Pb+F) x [( *** x (ECIn/ECIb)) + ( *** x (ICn/ICb))]
Where |
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F |
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(*** x N x Pb) |
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where N = the calendar year of Delivery of the Aircraft minus 2001 |
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Pn |
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revised Reference Price at Aircraft Delivery |
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Pb |
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Reference Price at averaged economic conditions June 2000, July 2000, August 2000 |
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ECIn |
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ECIsic3721W Index for the Fifth (5 th ), Sixth (6 th ) and Seventh (7 th ) month averaged prior to the month of Aircraft Delivery |
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ECIb |
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ECIsic3721W Index for June 2000, July 2000, August 2000 averaged (=149.5) |
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ICn |
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IC-Index for the Fifth (5 th ), Sixth (6 th ) and Seventh (7 th ) month averaged prior to the month of Aircraft Delivery |
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ICb |
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IC-Index for June 2000, July 2000, August 2000 (=135.7) |
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[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
24
5. General Provisions
5.1 Roundings
(i) ECIn and ICn shall be calculated to the nearest tenth (1 decimal)
(ii) Each quotient (ECIn/ECIb) and (ICn/ICb) shall be calculated to the nearest ten-thousandth (4 decimals).
(iii) The final factor 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 nearest higher figure.
After final computation Pn 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 be the final price and shall not be subject to any further adjustments in the indexes.
If no final index values are available for any of the applicable month, the then published preliminary figures shall be the basis on which the Revised Reference Price shall be computed.
5.3 Interruption of Index Publication
If the US Department of Labor substantially revises the methodology of calculation or discontinues any of the indexes referred to hereabove, the Seller shall reflect the substitute for the revised or discontinued index selected by INTERNATIONAL AERO ENGINES, 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 Formula
Should the above escalation provisions become null and void by action of the US Government, the price shall be adjusted due to increases in the costs of labor and material which have occurred from the period represented by the applicable Reference Price Indexes to the Fifth (5 th ), Sixth(6 th ) and Seventh (7 th ) months averaged prior to the scheduled Aircraft Delivery.
5.5 Limitation
Should the revised Reference Price be lower than the Reference Price, the final price shall be computed with the Reference Price.
25
Exhibit 10.2
LETTER AGREEMENT
As of April 23, 2003
JetBlue Airways Corporation
RE: ***
Dear Gentlemen:
Reference is made to that certain A320 Purchase Agreement, dated as of April 20, 1999, relating to the sale by the Seller and the purchase by the Buyer of certain Airbus A320-200 aircraft (the Aircraft), including twenty-five option aircraft (the Option Aircraft), which, together with all Exhibits, Appendixes and Letter Agreements attached thereto and as amended by Amendment No. 1, dated as of September 30, 1999, Amendment No. 2, dated as of March 13, 2000, Amendment No. 3, dated as of March 29, 2000, Amendment No. 4, dated as of September 29, 2000, Amendment No. 5 dated as of November 7, 2000, Amendment No. 6 dated as of November 20, 2000, Amendment No. 7 dated as of January 29 2001, Amendment No. 8 dated as of May 3, 2001, Amendment No. 9 dated as of July 18, 2001, Amendment No. 10 dated as of November 16, 2001, Amendment No. 11 dated as of December 31, 2001, Amendment No. 12 dated as of April 19, 2002, Amendment No. 13 dated as of November 22, 2002, Amendment No. 14 dated as of December 18, 2002, Amendment No. 15 dated as of February 10, 2003 and Amendment No. 16 dated as of April 23, 2003 is hereinafter called the Agreement. In connection therewith the Buyer and the Seller have agreed to additional terms and conditions contained in this Letter Agreement, which, when countersigned below, will set forth the understanding of the parties with respect to the matters set forth herein and will, pursuant to section C below, be deemed incorporated into the Agreement.
Capitalized terms used herein and not otherwise defined in this Letter Agreement will have the meanings assigned thereto in the Agreement unless the context otherwise requires.
A. ***
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
This Letter Agreement is subject to the confidentiality provisions set forth in Clause 22.5 of the Agreement.
Upon execution of Amendment No. 16 as of the date herewith, the Agreement will be deemed to be amended as of the date hereof to the extent herein provided, and except as specifically amended hereby, will continue in full force and effect in accordance with its original terms. This Letter Agreement supersedes any previous understandings, commitments, or representations whatsoever, whether oral or written, related to the specific subject matter of this Letter Agreement.
2
If the foregoing sets forth our understanding, please indicate your acceptance by signing in the space provided below.
Agreed and Accepted, |
Agreed and Accepted, |
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JETBLUE AIRWAYS CORPORATION |
AVSA, S.A.R.L. |
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3
Exhibit 10.3
IAE Building
400 Main Street
East Hartford, CT 06108 USA
23 April 2003
JetBlue Airways Corporation
19 Old Kings Highway South, Suite 23
Darien, Connecticut 06820
Attention: Vice President and Treasurer
Subject: Side Letter No. 13 to the V2500 General Terms of Sale Agreement between JetBlue Airways Corporation and IAE International Aero Engines AG dated May 4, 1999
Dear Tom:
IAE is pleased to submit to JetBlue this Side Letter No. 13 to the Agreement (as defined below) in support of JetBlues firm purchase from Airbus of sixty-five (65) incremental A320 Aircraft powered by V2527-A5 Propulsion Systems (the Incremental Firm Aircraft), and its option to purchase fifty (50) A320 Aircraft powered by V2527-A5 Propulsion Systems (the New Option Aircraft, the Incremental Firm Aircraft and the New Option Aircraft are referred to collectively herein as the Incremental Aircraft), all for delivery in accordance with the delivery schedule set forth in Exhibit B-1 hereto.
The Incremental Aircraft shall constitute Aircraft for all purposes under the Agreement, except as otherwise noted herein. All other Firm Aircraft (not including the Firm Incremental Aircraft) that have not been delivered to JetBlue as of the date of this Side Letter shall be referred to herein as the Existing Firm Aircraft. Capitalized terms used herein which are not otherwise defined shall have the same meaning as those given to them in the V2500 General Terms of Sale Agreement between JetBlue Airways Corporation (JetBlue) and IAE International Aero Engines AG (IAE) dated May 4, 1999 (the Agreement).
1. Fleet Introductory Assistance Credit for Incremental Aircraft and Existing Firm Aircraft
1.1 To assist JetBlue with the introduction of the Incremental Aircraft into its fleet and to support delivery of the Existing Firm Aircraft, IAE will issue the following credits to JetBlues account with IAE:
***
The credits in the above table with respect to the Incremental Firm Aircraft shall escalate from a base month of January 2003 in accordance with Escalation Formula I set forth in Exhibit B-2 hereto. The credits in the above table with respect to the New Option Aircraft shall escalate from a base month of January 2003 in accordance with Escalation Formula II set forth in Exhibit B-2 hereto.
1.1.1 For all of the Existing Firm Aircraft yet to be delivered, a credit in the amount of U.S.***. These credits shall escalate from a base month of January 2003 in accordance with Escalation Formula I set forth in Exhibit B-2 hereto.
1.1.2 Each such credit above may be used by JetBlue towards the purchase of V2500 Spare Parts, tooling and services from IAE, but unless JetBlue provides written notice to IAE at least ninety (90) days prior to delivery of each applicable Incremental Aircraft, the total amount of such credit available for such Incremental Aircraft shall be assigned to the Aircraft Manufacturer to be applied toward the payment for the Propulsion Systems for such Incremental Aircraft.
1.1.3 In the event any credit, or portion thereof, under this Clause 1 is assigned to the Aircraft Manufacturer, JetBlue acknowledges that the credit shall not vest in the Aircraft Manufacturer until delivery to and acceptance by JetBlue of the respective Incremental Aircraft or existing Firm Aircraft yet to be delivered.
2. IAE and JetBlue agree that the foregoing Section 1 shall replace in its entirety Section 1 of the existing Agreement.
3. With respect to Propulsion Systems for installation on Incremental Aircraft (Installed Propulsion Systems), which are delivered by IAE under this Side Letter, the escalation per annum for the period of 1 January 2003 through delivery, applicable to the net Propulsion System and Spare Engine prices shall be the escalation per annum amount as determined by the application of the applicable Escalation Formulae I or II, as the case may be, set forth as Exhibit B-2 to this Side Letter No. 13 and, where applicable, the ***.
4. Notwithstanding any other provision of this Side Letter No. 13, the escalation per annum for the period from 1 January 2003 through delivery for all of the credits set forth in Clauses 1 and 4 of this Side Letter No. 13 and the applicable Spare
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
IAE PROPRIETARY INFORMATION
2
Engine credit provided by IAE shall be the escalation per annum amount as determined by the application of the applicable Escalation Formulae I and II, as the case may be, set forth as Exhibit B-2 to the Side Letter No. 13 and, where applicable, the ***.
5. JetBlue hereby places a firm and unconditional order with IAE for the purchase of a minimum of twelve (12) new firm V2527-A5 spare Engines (the New Firm Spare Engines) and eight (8) new option V2527-A5 spare Engines (the New Option Spare Engines) and agrees to otherwise purchase, operate and maintain a minimum ratio of new spare engines to new installed V2500-A5 engines on the Incremental Aircraft of no less than *** with respect to each Engine thrust level per Aircraft model (or such ratio is maintained with respect to all engines at the applicable or higher thrust level for A319-100, A320-200 or A321-200 aircraft), all for delivery according to the schedule set forth in Exhibit B-2 to this side letter. IAE and JetBlue agree that the New Firm Spare Engines and all existing firm spare engines ordered but, as of the date of this side letter, undelivered, shall be escalated from January 2003 in accordance with Escalation Formula I set forth in Exhibit B-2 hereto. IAE and JetBlue further agree that the New Option Spare Engines shall be escalated from January 2003 in accordance with Escalation Formula II set forth in Exhibit B-2 hereto.
6. Exhibits B-1 (Aircraft Delivery Schedule) and B-2 (Spare Engine Delivery Schedule) to the Agreement are removed in their entirety and replaced by the new Exhibit B attached hereto.
7. IAE also confirms that on delivery of every *** Aircraft, starting with the *** delivered aircraft, JetBlue shall be entitled to receive the U.S.*** spare parts credits provided in Side Letter No. 6 to the Agreement with respect to all of the firm and option delivered to JetBlue, including the Incremental Aircraft and delivered New Option Aircraft, which as noted above, constitute Aircraft for all other purposes, including this credit, under the Agreement. In addition, independent of the foregoing credit, IAE shall issue on the delivery of every *** Incremental Aircraft, a U.S.*** spare parts credit. Such credits shall escalate from the base month of January 2003 in accordance with Escalation Formula I set forth in Exhibit B-2 hereto.
8. IAE confirms that all of the Incremental Aircraft when purchased and delivered to JetBlue, shall be covered under the guarantees, including the Maintenance Cost Guarantee provided to JetBlue with respect to all of its other Aircraft, both delivered and firmly ordered.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
3
9. IAE hereby confirms that it will provide a second dedicated Customer Support Representative to JetBlue starting by the 1 st quarter of 2003. Such second representative will be at no charge, for so long as JetBlue operates sixty (60) or more V2500-A5 powered aircraft. JetBlue will provide reasonable office facilities for the second Customer Support Representative and other accommodation and support equivalent to that provided to the existing customer support representative charge.
10. IAE will immediately credit JetBlues spare parts account receivables with IAE prior to January 1, 2002 for the total net amount outstanding of approximately U.S.$ ***, provided that JetBlue agrees to an allocation of all its spare parts credits existing prior to that date against such outstanding account receivable amount.
11. ***
12. Flexibility Rights
12.1 From and including calendar year *** Incremental Aircraft may be converted by JetBlue into a firm order for another model of aircraft (either A319-100 or A321-200 powered by V2500-A5 Propulsion Systems).
12.2
13. Exclusivity
JetBlue agrees that until December 31, 2011 each Aircraft, including any Incremental Aircraft, and any further single aisle aircraft acquired by JetBlue to fill the mission carried out by such Aircraft, shall be powered by new V2500-A5 Propulsion Systems, except that such exclusivity shall automatically terminate upon the occurrence of a Change of Control Event with respect to JetBlue or IAE as defined below. Nothing in this Section 13 or in any other provision of this Side Letter No. 13, or the Agreement it is a part of, shall be construed to prevent JetBlue at any time from either (a) merging with any other airline, (b) acquiring a controlling interest in any other airline, or (c) acquiring all or substantially all the assets of any other airline, regardless of the type of aircraft and engines owned or operated by such other airline at the time of such merger or acquisition. Moreover, in the event of such a merger or acquisition, nothing in this Section 8 or in any other provision of this Side Letter No. 13 shall be construed to prevent JetBlue from honoring any aircraft or engine purchase commitments entered into by such other airline prior to its merger with or acquisition by JetBlue.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
4
A Change of Control Event shall mean any event in which (i) JetBlue, or (ii) a third party other than an existing shareholder of IAE as of the date of this Side Letter No. 13, sells, leases or otherwise disposes of all or substantially all of its assets or JetBlues or IAEs registered shares, as the case may be.
Except as expressly amended by this Side Letter No. 13 all provisions of the Agreement remain in full force and effect.
Very truly yours, |
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Agreed to and Accepted on behalf of: |
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IAE International Aero Engines AG |
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JetBlue Airways Corporation |
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5
EXHIBIT B-1
AIRCRAFT DELIVERY SCHEDULES
As of April 2003
Glossary Note:
Delivered Aircraft are indicated by Italics typeface
Existing Firm Aircraft are indicated by normal typeface
Incremental Aircraft, including all Firm Incremental Aircraft and all Option Aircraft are indicated by bold typeface
Rank No. |
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Aircraft |
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Delivery |
No. 1 |
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Firm Aircraft |
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*** 2000 |
No. 2 |
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Firm Aircraft |
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*** 2000 |
No. 3 |
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Firm Aircraft |
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*** 2000 |
No. 4 |
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Firm Aircraft |
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*** 2000 |
No. 5 |
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Firm Aircraft |
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*** 2000 |
No. 6 |
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Firm Aircraft |
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*** 2000 |
No. 7 |
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Firm Aircraft |
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*** 2001 |
No. 8 |
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Firm Aircraft |
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*** 2001 |
No. 9 |
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Firm Aircraft |
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*** 2001 |
No. 10 |
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Firm Aircraft |
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*** 2001 |
No. 11 |
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Firm Aircraft |
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*** 2001 |
No. 12 |
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Firm Aircraft |
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*** 2001 |
No. 13 |
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Firm Aircraft |
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*** 2001 |
No. 14 |
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Firm Aircraft |
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*** 2002 |
No. 15 |
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Firm Aircraft |
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*** 2002 |
No. 16 |
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Firm Aircraft |
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*** 2002 |
No. 17 |
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Firm Aircraft |
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*** 2002 |
No. 18 |
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Firm Aircraft |
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*** 2002 |
No. 19 |
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Firm Aircraft |
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*** 2002 |
No. 20 |
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Firm Aircraft |
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*** 2002 |
No. 21 |
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Firm Aircraft |
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*** 2002 |
No. 22 |
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Firm Aircraft |
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*** 2002 |
No. 23 |
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Firm Aircraft |
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*** 2002 |
No. 24 |
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Firm Aircraft |
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*** 2002 |
No. 25 |
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Firm Aircraft |
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*** 2002 |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
6
No. 26 |
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Firm Aircraft |
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*** 2002 |
No. 27 |
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Firm Aircraft |
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*** 2002 |
No. 28 |
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Firm Aircraft |
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*** 2002 |
No. 29 |
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Firm Aircraft |
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*** 2003 |
No. 30 |
|
Firm Aircraft |
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*** 2003 |
No. 31 |
|
Firm Aircraft |
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*** 2003 |
No. 32 |
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Firm Aircraft |
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*** 2003 |
No. 33 |
|
Firm Aircraft |
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*** 2003 |
No. 34 |
|
Firm Aircraft |
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*** 2003 |
No. 35 |
|
Firm Aircraft |
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*** 2003 |
No. 36 |
|
Firm Aircraft |
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*** 2003 |
No. 37 |
|
Firm Aircraft |
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*** 2003 |
No. 38 |
|
Firm Aircraft |
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*** 2003 |
No. 39 |
|
Firm Aircraft |
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*** 2003 |
No. 40 |
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Firm Aircraft |
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*** 2003 |
No. 41 |
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Firm Aircraft |
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*** 2003 |
No. 42 |
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Firm Aircraft |
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*** 2003 |
No. 43 |
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Firm Aircraft |
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*** 2003 |
No. 44 |
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Firm Aircraft |
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*** 2003 |
No. 45 |
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Firm Aircraft |
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*** 2004 |
No. 46 |
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Firm Aircraft |
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*** 2004 |
No. 47 |
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Firm Aircraft |
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*** 2004 |
No. 48 |
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Firm Aircraft |
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*** 2004 |
No. 49 |
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Firm Aircraft |
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*** 2004 |
No. 50 |
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Firm Aircraft |
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*** 2004 |
No. 51 |
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Firm Aircraft |
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*** 2004 |
No. 52 |
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Firm Aircraft |
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*** 2004 |
No. 53 |
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Firm Aircraft |
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*** 2004 |
No. 54 |
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Firm Aircraft |
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*** 2004 |
No. 55 |
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Firm Aircraft |
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*** 2004 |
No. 56 |
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Firm Aircraft |
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*** 2004 |
No. 57 |
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Firm Aircraft |
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*** 2004 |
No. 58 |
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Firm Aircraft |
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*** 2004 |
No. 59 |
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Firm Aircraft |
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*** 2005 |
No. 60 |
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Firm Aircraft |
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*** 2005 |
No. 61 |
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Firm Aircraft |
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*** 2005 |
No. 62 |
|
Firm Aircraft |
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*** 2005 |
No. 63 |
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Firm Aircraft |
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*** 2005 |
No. 64 |
|
Firm Aircraft |
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*** 2005 |
No. 65 |
|
Firm Aircraft |
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*** 2005 |
No. 66 |
|
Firm Aircraft |
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*** 2005 |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
7
No. 67 |
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Firm Aircraft |
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*** 2005 |
No. 68 |
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Firm Aircraft |
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*** 2005 |
No. 69 |
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Firm Aircraft |
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*** 2005 |
No. 70 |
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Firm Aircraft |
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*** 2005 |
No. 71 |
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Firm Aircraft |
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*** 2005 |
No. 72 |
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Firm Aircraft |
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*** 2005 |
No. 73 |
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Firm Aircraft |
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*** 2005 |
No. 74 |
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Firm Aircraft |
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*** 2005 |
No. 75 |
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Firm Aircraft |
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*** 2006 |
No. 76 |
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Firm Aircraft |
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*** 2006 |
No. 77 |
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Firm Aircraft |
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*** 2006 |
No. 78 |
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Firm Aircraft |
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*** 2006 |
No. 79 |
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Firm Aircraft |
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*** 2006 |
No. 80 |
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Firm Aircraft |
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*** 2006 |
No. 81 |
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Firm Aircraft |
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*** 2006 |
No. 82 |
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Firm Aircraft |
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*** 2006 |
No. 83 |
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Firm Aircraft |
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*** 2006 |
No. 84 |
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Firm Aircraft |
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*** 2006 |
No. 85 |
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Firm Aircraft |
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*** 2006 |
No. 86 |
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Firm Aircraft |
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*** 2006 |
No. 87 |
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Firm Aircraft |
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*** 2006 |
No. 88 |
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Firm Aircraft |
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*** 2006 |
No. 89 |
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Firm Aircraft |
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*** 2006 |
No. 90 |
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Firm Aircraft |
|
Year 2007 |
No. 91 |
|
Firm Aircraft |
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Year 2007 |
No. 92 |
|
Firm Aircraft |
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Year 2007 |
No. 93 |
|
Firm Aircraft |
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Year 2007 |
No. 94 |
|
Firm Aircraft |
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Year 2007 |
No. 95 |
|
Firm Aircraft |
|
Year 2007 |
No. 96 |
|
Firm Aircraft |
|
Year 2007 |
No. 97 |
|
Firm Aircraft |
|
Year 2007 |
No. 98 |
|
Firm Aircraft |
|
Year 2007 |
No. 99 |
|
Firm Aircraft |
|
Year 2007 |
No. 100 |
|
Firm Aircraft |
|
Year 2007 |
No. 101 |
|
Firm Aircraft |
|
Year 2007 |
No. 102 |
|
Firm Aircraft |
|
Year 2007 |
No. 103 |
|
Firm Aircraft |
|
Year 2007 |
No. 104 |
|
Firm Aircraft |
|
Year 2007 |
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No. 105 |
|
Firm Aircraft |
|
Year 2008 |
No. 106 |
|
Firm Aircraft |
|
Year 2008 |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
8
No. 107 |
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Firm Aircraft |
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Year 2008 |
No. 108 |
|
Firm Aircraft |
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Year 2008 |
No. 109 |
|
Firm Aircraft |
|
Year 2008 |
No. 110 |
|
Firm Aircraft |
|
Year 2008 |
No. 111 |
|
Firm Aircraft |
|
Year 2008 |
No. 112 |
|
Firm Aircraft |
|
Year 2008 |
No. 113 |
|
Firm Aircraft |
|
Year 2008 |
No. 114 |
|
Firm Aircraft |
|
Year 2008 |
No. 115 |
|
Firm Aircraft |
|
Year 2008 |
No. 116 |
|
Firm Aircraft |
|
Year 2008 |
No. 117 |
|
Firm Aircraft |
|
Year 2008 |
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No. 118 |
|
Firm Aircraft |
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Year 2009 |
No. 119 |
|
Firm Aircraft |
|
Year 2009 |
No. 120 |
|
Firm Aircraft |
|
Year 2009 |
No. 121 |
|
Firm Aircraft |
|
Year 2009 |
No. 122 |
|
Firm Aircraft |
|
Year 2009 |
No. 123 |
|
Firm Aircraft |
|
Year 2009 |
No. 124 |
|
Firm Aircraft |
|
Year 2009 |
No. 125 |
|
Firm Aircraft |
|
Year 2009 |
No. 126 |
|
Firm Aircraft |
|
Year 2009 |
No. 127 |
|
Firm Aircraft |
|
Year 2009 |
|
|
|
|
|
No. 128 |
|
Firm Aircraft |
|
Year 2010 |
No. 129 |
|
Firm Aircraft |
|
Year 2010 |
No. 130 |
|
Firm Aircraft |
|
Year 2010 |
No. 131 |
|
Firm Aircraft |
|
Year 2010 |
No. 132 |
|
Firm Aircraft |
|
Year 2010 |
No. 133 |
|
Firm Aircraft |
|
Year 2010 |
No. 134 |
|
Firm Aircraft |
|
Year 2010 |
No. 135 |
|
Firm Aircraft |
|
Year 2010 |
No. 136 |
|
Firm Aircraft |
|
Year 2010 |
No. 137 |
|
Firm Aircraft |
|
Year 2010 |
|
|
|
|
|
No. 138 |
|
Firm Aircraft |
|
Year 2011 |
No. 139 |
|
Firm Aircraft |
|
Year 2011 |
No. 140 |
|
Firm Aircraft |
|
Year 2011 |
No. 141 |
|
Firm Aircraft |
|
Year 2011 |
No. 142 |
|
Firm Aircraft |
|
Year 2011 |
No. 143 |
|
Firm Aircraft |
|
Year 2011 |
9
New Option Aircraft |
|
|
|
|
No. 144 |
|
Option Aircraft |
|
*** 2006 |
No. 145 |
|
Option Aircraft |
|
*** 2006 |
No. 146 |
|
Option Aircraft |
|
Year 2007 |
No. 147 |
|
Option Aircraft |
|
Year 2007 |
|
|
|
|
|
No. 148 |
|
Option Aircraft |
|
Year 2008 |
No. 149 |
|
Option Aircraft |
|
Year 2008 |
No. 150 |
|
Option Aircraft |
|
Year 2008 |
No. 151 |
|
Option Aircraft |
|
Year 2008 |
|
|
|
|
|
No. 152 |
|
Option Aircraft |
|
Year 2009 |
No. 153 |
|
Option Aircraft |
|
Year 2009 |
No. 154 |
|
Option Aircraft |
|
Year 2009 |
No. 155 |
|
Option Aircraft |
|
Year 2009 |
No. 156 |
|
Option Aircraft |
|
Year 2009 |
No. 157 |
|
Option Aircraft |
|
Year 2009 |
No. 158 |
|
Option Aircraft |
|
Year 2009 |
No. 159 |
|
Option Aircraft |
|
Year 2009 |
No. 160 |
|
Option Aircraft |
|
Year 2010 |
No. 161 |
|
Option Aircraft |
|
Year 2010 |
No. 162 |
|
Option Aircraft |
|
Year 2010 |
No. 163 |
|
Option Aircraft |
|
Year 2010 |
No. 164 |
|
Option Aircraft |
|
Year 2010 |
No. 165 |
|
Option Aircraft |
|
Year 2010 |
No. 166 |
|
Option Aircraft |
|
Year 2010 |
No. 167 |
|
Option Aircraft |
|
Year 2010 |
|
|
|
|
|
No. 168 |
|
Option Aircraft |
|
Year 2011 |
No. 169 |
|
Option Aircraft |
|
Year 2011 |
No. 170 |
|
Option Aircraft |
|
Year 2011 |
No. 171 |
|
Option Aircraft |
|
Year 2011 |
No. 172 |
|
Option Aircraft |
|
Year 2011 |
No. 173 |
|
Option Aircraft |
|
Year 2011 |
No. 174 |
|
Option Aircraft |
|
Year 2011 |
No. 175 |
|
Option Aircraft |
|
Year 2011 |
No. 176 |
|
Option Aircraft |
|
Year 2011 |
No. 177 |
|
Option Aircraft |
|
Year 2011 |
No. 178 |
|
Option Aircraft |
|
Year 2011 |
No. 179 |
|
Option Aircraft |
|
Year 2011 |
No. 180 |
|
Option Aircraft |
|
Year 2011 |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
10
No. 181 |
|
Option Aircraft |
|
Year 2012 |
No. 182 |
|
Option Aircraft |
|
Year 2012 |
No. 183 |
|
Option Aircraft |
|
Year 2012 |
No. 184 |
|
Option Aircraft |
|
Year 2012 |
No. 185 |
|
Option Aircraft |
|
Year 2012 |
No. 186 |
|
Option Aircraft |
|
Year 2012 |
No. 187 |
|
Option Aircraft |
|
Year 2012 |
No. 188 |
|
Option Aircraft |
|
Year 2012 |
No. 189 |
|
Option Aircraft |
|
Year 2012 |
No. 190 |
|
Option Aircraft |
|
Year 2012 |
No. 191 |
|
Option Aircraft |
|
Year 2012 |
No. 192 |
|
Option Aircraft |
|
Year 2012 |
No. 193 |
|
Option Aircraft |
|
Year 2012 |
Leased Aircraft
Year |
|
Number |
|
Delivery Dates |
1999 |
|
1 |
|
(1) *** |
2000 |
|
3 |
|
(1) ***, (1) ***, (1) *** |
2001 |
|
4 |
|
(1) ***, (2) ***, (1) *** |
2003 |
|
1 |
|
(1) *** |
2004 |
|
1 |
|
(1) *** |
|
|
|
|
|
|
|
|
|
|
TOTAL |
|
10 |
|
All but the last lease aircraft have been delivered |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
11
EXHIBIT B-2
PURCHASED ITEMS, PRICE,
ESCALATION FORMULA AND DELIVERY
As of April 2003
Rank
|
|
Purchased Item |
|
Basic Contract
|
|
Qty. |
|
Delivery Date |
1 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/99 |
2 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/00 |
3 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/01 |
4 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/02 |
5 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/02 |
6 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/03 |
7 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/04 |
8 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/05 |
9 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/06 |
10 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/07 |
11 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/08 |
12 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/06 |
13 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/07 |
14 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/08 |
15 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/08 |
16 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/09 |
17 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/09 |
18 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/10 |
19 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/10 |
20 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/11 |
21 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/11 |
22 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/12 |
23 |
|
V2527-A5 spare Engine: |
|
*** |
|
1 |
|
***/12 |
|
|
|
|
|
|
|
|
|
Total |
|
|
|
|
|
23 |
|
|
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
12
Option Spare Engines |
|
|
V2524-A5 Spare Engine: |
|
$*** |
V2527-A5 Spare Engine: |
|
$*** |
V2533-A5 Spare Engine: |
|
$*** |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
13
EXHIBIT B-2
ESCALATION FORMULA I
1. Any unit base price or other sum expressed to be subject to escalation from a base month to a month of delivery or other date of determination in accordance with the IAE Escalation Formula will be subject to escalation in accordance with the following formula:
P = Pb (*** |
L + *** |
M + *** |
E ) |
|
Lo |
Mo |
Eo |
Where:
P = the invoiced purchase price or escalated sum rounded to the nearest U.S. Dollar.
Pb = unit base price or other sum.
Lo = the Average Hourly Earnings of Aircraft Engine and Engine Parts Production Workers SIC Code 3724 published by the Bureau of Labor Statistics in the U.S. Department of Labor for the month preceding the base month by four months.
L = the Average Hourly Earnings of Aircraft Engine and Engine Parts Production Workers SIC Code 3724 for the month preceding the month of delivery or other date of determination by four months.
Mo = the Producer Price Index, Code 10, for Metals and Metal Products published by the Bureau of Labor Statistics in the U.S. Department of Labor for the month preceding the base month by four months.
M = the Producer Price Index, Code 10, for Metals and Metal Products for the month preceding the month of delivery or other date of determination by four months.
Eo = the Producer Price Index, Code 5, for Fuel and Related Products and Power published by the Bureau of Labor Statistics in the U.S. Department of Labor for the month preceding the base month by four months.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
14
E = the Producer Price Index, Code 5, for Fuel and Related Products and Power for the month preceding the month of delivery or other date of determination by four months.
2. |
The values of the factors *** |
L and *** |
M and *** |
E |
|
|
Lo |
Mo |
Eo |
respectively, shall be determined to the nearest fourth decimal place. If the fifth decimal is five or more, the fourth decimal place shall be raised to the next higher number.
3. If the U.S. Department of Labor ceases to publish the above statistics or modifies the basis of their calculation, then IAE may substitute any officially recognized and substantially equivalent statistics.
4. The Basic Contract Prices contained in this Exhibit B are subject to escalation from a Base Month of January 1999 to the month of delivery using Lo, Mo and Eo values for September 1998.
5. If the application of the formula contained in this Exhibit B results in a Purchase Price which is lower than the Basic Contract Price, the Basic Contract Price will be deemed to be the Purchase Price for such Supplies.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
15
ESCALATION FORMULA II
1. Any unit base price or other sum expressed to be subject to escalation from a base month to a month of delivery or other date of determination in accordance with the IAE Escalation Formula will be subject to escalation in accordance with the following formula:
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
16
The Material Ratio is the Producer Price Indexes, Industrial Commodities as published at the time of scheduled engine delivery by the Bureau of Labor Statistics, U.S. Department of Labor, for the arithmetic average of the fifth, sixth and seventh months (rounded to the nearest tenth) preceding the month of scheduled delivery for each engine/equipment; divided by the value for Industrial Commodities for the arithmetic average of the fifth, sixth and seventh months (rounded to the nearest tenth) preceding the base month |
||||
|
|
|
|
|
For a given month, the escalation shall be computed by using the applicable Index value, which the Bureau has published as the time of delivery or other date of determination. |
2. If the U.S. Department of Labor changes the base year for determination of the Index values as defined above, such re-based values will be incorporated in the escalation calculation.
3. If the U.S. Department of Labor revises the methodology used for the determination of the values to be used to determine the CPI or, for any reason, has not released values needed to determine the CPI, IAE, in its sole discretion, shall select a substitute for such values from data published by the Bureau of Labor Statistics or otherwise make revisions to the escalation formula such that the escalation will as closely as possible approximate the result that would have been attained by continuing the use of the original escalation formula and values as they may have fluctuated during the applicable time period.
4. The invoiced purchase price, which in no event shall be less than the unit base price, shall be the final price. If the calculated sum of L + M is less than 1.0000, then the value of the sum is adjusted to 1.0000.
17
Exhibit 10.4
EMBRAER-190
PURCHASE AGREEMENT DCT- 025/2003
between
EMBRAER - EMPRESA BRASILEIRA DE AERONÁUTICA S.A.
and
JETBLUE AIRWAYS CORPORATION
INDEX
|
|
ARTICLE |
|
|
|
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
||
|
ATTACHMENTS
A AIRCRAFT CONFIGURATION, FINISHING AND REGISTRATION MARKS
B FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
C WARRANTY CERTIFICATE - MATERIAL AND WORKMANSHIP
D PRICE ESCALATION FORMULA
E ***
F ***
G ***
H PERFORMANCE GUARANTEE
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
PURCHASE AGREEMENT DCT- 025/2003
THIS AGREEMENT IS ENTERED INTO THIS 9TH DAY OF JUNE, 2003, BY AND BETWEEN EMBRAER - EMPRESA BRASILEIRA DE AERONÁUTICA S.A. AND JETBLUE AIRWAYS CORPORATION, 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, AND IN THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE, 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 JETBLUE AIRWAYS CORPORATION AND EXECUTED BY TWO AUTHORIZED OFFICERS OF EMBRAER - EMPRESA BRASILEIRA DE AERONÁUTICA S.A.
NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL AGREEMENTS AND COVENANTS HEREINAFTER SET FORTH AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND ADEQUACY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES HERETO, INTENDING TO BE LEGALLY BOUND, HEREBY AGREE AS FOLLOWS:
For the purpose of this Agreement, the Parties hereby adopt the following definitions and, unless otherwise expressly provided, the singular includes the plural, the masculine includes the feminine and neutral genders:
1
References to Articles or Attachments in the main body of this Purchase Agreement shall be deemed to be references to Articles of or Attachments to this Agreement, respectively, except as the context requires otherwise.
Subject to the terms and conditions of this Agreement:
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
Any progress payment that would otherwise be due *** shall be due ***.
Except as otherwise specified in this Agreement, the progress payments referred to in Article 4.1.1 through 4.1.4 are non refundable.
Interest will accrue at the rate of *** percent (***%) per month or pro rated on any part thereof on any amount not paid to Embraer as set forth in Articles 4.1.1 through 4.1.4, from the date on which such payments should have been made
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
4
as therein set forth, until the actual receipt by Embraer of such amounts. For the payments referred to under Article 4.1.5, interest shall accrue 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 payment should have been made, and payment thereof shall be made by Buyer in accordance with the instructions contained therein.
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, Embraer shall have the right, at its sole discretion, to either (i) postpone, at its sole discretion, the relevant Aircraft Contractual Delivery Date; or (ii) terminate this Agreement in relation to the affected Aircraft in accordance with Article 20.3, if such failure shall not have been cured within *** Days after the date on which Buyer has received a written notice from Embraer of such failure.
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 setoff. 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.
Unless otherwise agreed by the Parties in writing, payment of the amounts referred in Articles 4.1.2, 4.1.3, and 4.1.4 shall be made by Buyer on the *** Day of the month on which each of such payments is due; provided however, that if such date falls on a non-Business Day then such payment shall be due on the following Business Day.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
5
6
Firm
|
|
Delivery
|
|
Firm
|
|
Delivery
|
|
Firm
|
|
Delivery
|
|
Firm
|
|
Delivery
|
1 |
|
***-05 |
|
26 |
|
***-07 |
|
51 |
|
***-08 |
|
76 |
|
***-09 |
2 |
|
***-05 |
|
27 |
|
***-07 |
|
52 |
|
***-08 |
|
77 |
|
***-09 |
3 |
|
***-05 |
|
28 |
|
***-07 |
|
53 |
|
***-08 |
|
78 |
|
***-09 |
4 |
|
***-05 |
|
29 |
|
***-07 |
|
54 |
|
***-08 |
|
79 |
|
***-09 |
5 |
|
***-05 |
|
30 |
|
***-07 |
|
55 |
|
***-08 |
|
80 |
|
***-10 |
6 |
|
***-05 |
|
31 |
|
***-07 |
|
56 |
|
***-08 |
|
81 |
|
***-10 |
7 |
|
***-05 |
|
32 |
|
***-07 |
|
57 |
|
***-08 |
|
82 |
|
***-10 |
8 |
|
***-06 |
|
33 |
|
***-07 |
|
58 |
|
***-08 |
|
83 |
|
***-10 |
9 |
|
***-06 |
|
34 |
|
***-07 |
|
59 |
|
***-08 |
|
84 |
|
***-10 |
10 |
|
***-06 |
|
35 |
|
***-07 |
|
60 |
|
***-08 |
|
85 |
|
***-10 |
11 |
|
***-06 |
|
36 |
|
***-07 |
|
61 |
|
***-08 |
|
86 |
|
***-10 |
12 |
|
***-06 |
|
37 |
|
***-07 |
|
62 |
|
***-09 |
|
87 |
|
***-10 |
13 |
|
***-06 |
|
38 |
|
***-07 |
|
63 |
|
***-09 |
|
88 |
|
***-10 |
14 |
|
***-06 |
|
39 |
|
***-07 |
|
64 |
|
***-09 |
|
89 |
|
***-10 |
15 |
|
***-06 |
|
40 |
|
***-07 |
|
65 |
|
***-09 |
|
90 |
|
***-10 |
16 |
|
***-06 |
|
41 |
|
***-07 |
|
66 |
|
***-09 |
|
91 |
|
***-10 |
17 |
|
***-06 |
|
42 |
|
***-07 |
|
67 |
|
***-09 |
|
92 |
|
***-10 |
18 |
|
***-06 |
|
43 |
|
***-07 |
|
68 |
|
***-09 |
|
93 |
|
***-10 |
19 |
|
***-06 |
|
44 |
|
***-08 |
|
69 |
|
***-09 |
|
94 |
|
***-10 |
20 |
|
***-06 |
|
45 |
|
***-08 |
|
70 |
|
***-09 |
|
95 |
|
***-10 |
21 |
|
***-06 |
|
46 |
|
***-08 |
|
71 |
|
***-09 |
|
96 |
|
***-10 |
22 |
|
***-06 |
|
47 |
|
***-08 |
|
72 |
|
***-09 |
|
97 |
|
***-10 |
23 |
|
***-06 |
|
48 |
|
***-08 |
|
73 |
|
***-09 |
|
98 |
|
***-11 |
24 |
|
***-06 |
|
49 |
|
***-08 |
|
74 |
|
***-09 |
|
99 |
|
***-11 |
25 |
|
***-06 |
|
50 |
|
***-08 |
|
75 |
|
***-09 |
|
100 |
|
***-11 |
5.2 ***
5.3 ***
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
7
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
8
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
9
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
10
***
9.1 Excusable Delays:
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
11
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
12
Should any Aircraft be destroyed or damaged before acceptance to the extent that it becomes commercially useless, Embraer shall notify Buyer of such event as soon as practicable, and Buyer may, ***, either take a replacement Aircraft at a later Contractual Delivery Date to be agreed by the Parties, or terminate this Agreement with respect to such Aircraft by notice to Embraer given in accordance with Article 22, without any liability to either Party. If this Agreement is terminated by Buyer, such termination shall discharge the Parties from all obligations and liabilities hereunder with respect to such Aircraft and Services ***.
Up to two (2) representatives of Buyer shall also be allowed to observe ***, provided that, Buyer notifies Embraer of the name of each of such authorized representative at least fifteen (15) days prior to the intended arrival at Embraers facilities and ***. Buyers representatives shall not interfere with or hinder the production or manufacture of any Aircraft.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
14
The materials and workmanship relative to the Aircraft subject to this Agreement will be warranted in accordance with the terms and conditions specified in Attachment C. Embraer hereby guarantees to Buyer *** performance of and with respect to the Aircraft in
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
15
accordance with the terms and conditions specified in Attachments *** and H. If Buyer intends to place the Aircraft on lease to another party or to assign the rights and obligations as specified in Article 14, it is Buyers responsibility to obtain Embraers prior written consent not to be unreasonably withheld as well as to provide Embraer written notice within five (5) Days of any changes as to Buyers designated lessee or assignee, provided however, that *** shall not be assignable.
Embraer shall supply to Buyer the Product Support Package described in Article 2 of Attachment B, which includes Embraers spare parts policy, the Technical Publications and the Services.
Except as provided in Article 12 above, neither party may assign or transfer its rights and obligations hereunder without the prior written consent of the other Party.
Notwithstanding the foregoing, Buyer may assign any or all of its rights with respect to an Aircraft pursuant to *** to (a) a wholly-owned subsidiary of Buyer or (b) to any lender or other financing party (or any trustee for any of the foregoing) in connection with any sale-leaseback transaction or similar Aircraft financing arrangement on behalf of Buyer (resulting in Buyers operation of the relevant Aircraft).
This sale does not include the transfer of designs, copyrights, patents, and other similar rights to Buyer. Subject to Buyers duty to promptly advise Embraer of any alleged infringement of which Buyer becomes aware, Embraer shall indemnify and hold Buyer and its affiliates, successors, directors, officers, employees and agents harmless from and against all claims, suits, losses, liabilities and reasonable expenses (including without limitation reasonable attorneys fees and legal expenses) arising out of any actual or alleged infringement of any copyright, patent, trademark, trade secret or other intellectual property right in connection with the Aircraft or any part thereof.
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
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
16
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.
Embraer shall pay all taxes ***, that may be imposed under Brazilian laws. All other taxes, ***, as may be imposed on the sale and services subject of this Agreement, shall be borne by Buyer.
This Agreement, and the rights and obligations of the Parties hereunder, shall in all respects be governed by and construed and interpreted in accordance with the law of the State of New York, USA.
All disputes arising in connection with this Agreement shall be finally settled in the courts of the United States District Court for the Southern District of New York located in the county of New York, provided that if such court lacks jurisdiction, disputes shall be resolved in the state courts for the state of New York sitting in the Borough of Manhattan, City of New York. The Parties hereby waive any other court of Jurisdiction that may be competent for settlement of disputes arising from this Agreement.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
18
Buyer shall have the option to purchase up to one hundred (100) additional Option Aircraft, to be delivered in accordance with the following Option Aircraft contractual delivery dates:
19
Firm
|
|
Delivery
|
|
Firm
|
|
Delivery
|
|
Firm
|
|
Delivery
|
|
Firm
|
|
Delivery
|
1 |
|
***-11 |
|
26 |
|
***-12 |
|
51 |
|
***-13 |
|
76 |
|
***-15 |
2 |
|
***-11 |
|
27 |
|
***-12 |
|
52 |
|
***-14 |
|
77 |
|
***-15 |
3 |
|
***-11 |
|
28 |
|
***-12 |
|
53 |
|
***-14 |
|
78 |
|
***-15 |
4 |
|
***-11 |
|
29 |
|
***-12 |
|
54 |
|
***-14 |
|
79 |
|
***-15 |
5 |
|
***-11 |
|
30 |
|
***-12 |
|
55 |
|
***-14 |
|
80 |
|
***-15 |
6 |
|
***-11 |
|
31 |
|
***-12 |
|
56 |
|
***-14 |
|
81 |
|
***-15 |
7 |
|
***-11 |
|
32 |
|
***-12 |
|
57 |
|
***-14 |
|
82 |
|
***-15 |
8 |
|
***-11 |
|
33 |
|
***-12 |
|
58 |
|
***-14 |
|
83 |
|
***-15 |
9 |
|
***-11 |
|
34 |
|
***-13 |
|
59 |
|
***-14 |
|
84 |
|
***-15 |
10 |
|
***-11 |
|
35 |
|
***-13 |
|
60 |
|
***-14 |
|
85 |
|
***-15 |
11 |
|
***-11 |
|
36 |
|
***-13 |
|
61 |
|
***-14 |
|
86 |
|
***-15 |
12 |
|
***-11 |
|
37 |
|
***-13 |
|
62 |
|
***-14 |
|
87 |
|
***-15 |
13 |
|
***-11 |
|
38 |
|
***-13 |
|
63 |
|
***-14 |
|
88 |
|
***-16 |
14 |
|
***-11 |
|
39 |
|
***-13 |
|
64 |
|
***-14 |
|
89 |
|
***-16 |
15 |
|
***-11 |
|
40 |
|
***-13 |
|
65 |
|
***-14 |
|
90 |
|
***-16 |
16 |
|
***-12 |
|
41 |
|
***-13 |
|
66 |
|
***-14 |
|
91 |
|
***-16 |
17 |
|
***-12 |
|
42 |
|
***-13 |
|
67 |
|
***-14 |
|
92 |
|
***-16 |
18 |
|
***-12 |
|
43 |
|
***-13 |
|
68 |
|
***-14 |
|
93 |
|
***-16 |
19 |
|
***-12 |
|
44 |
|
***-13 |
|
69 |
|
***-14 |
|
94 |
|
***-16 |
20 |
|
***-12 |
|
45 |
|
***-13 |
|
70 |
|
***-15 |
|
95 |
|
***-16 |
21 |
|
***-12 |
|
46 |
|
***-13 |
|
71 |
|
***-15 |
|
96 |
|
***-16 |
22 |
|
***-12 |
|
47 |
|
***-13 |
|
72 |
|
***-15 |
|
97 |
|
***-16 |
23 |
|
***-12 |
|
48 |
|
***-13 |
|
73 |
|
***-15 |
|
98 |
|
***-16 |
24 |
|
***-12 |
|
49 |
|
***-13 |
|
74 |
|
***-15 |
|
99 |
|
***-16 |
25 |
|
***-12 |
|
50 |
|
***-13 |
|
75 |
|
***-15 |
|
100 |
|
***-16 |
The Option Aircraft will be supplied in accordance with the following terms and conditions:
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
20
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
21
All notices permitted or required hereunder shall be in writing in the English language and sent, by registered mail, telex or facsimile, to the attention of the Director of Contracts as to Embraer and of the Vice President, Technical Operations and Aircraft and the General Counsel as to Buyer, to the addresses indicated below or to such other address as either Party may, by written notice, designate to the other.
EMBRAER - Empresa Brasileira de Aeronáutica S.A.
Av. Brigadeiro Faria Lima, 2170
12.227-901 São José dos Campos - SP - Brasil
Telephone: (+55-12) 3927-1410
Facsimile: (+55-12) 3927-1257
Tom Anderson
Vice President, Technical Operations and Aircraft
JetBlue Airways Corporation
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
22
118-29 Queens Boulevard, Forest Hills, NY 11375
Telephone: (718) 709-3350
Fax: (718) 709-3620
James Hnat, Esq.
General Counsel
JetBlue Airways Corporation
118-29 Queens Boulevard, Forest Hills, NY 11375
Telephone: (718) 709-3030
Fax: (718) 709-3630
The Parties do not have the right to disclose the terms of this Agreement except as required by applicable law, regulation or court order. Subject to such legal or governmental disclosure requirements, each Party agrees not to disclose any portion of this Agreement or its Attachments, amendments or any other supplement, to any third party without the others written consent, which consent shall not be unreasonably withheld. Subject to such legal or governmental disclosure requirements, Embraer and Buyer shall cooperate before making any disclosure permitted by this Agreement. Without limiting the foregoing, in the event Buyer is required to disclose the terms of this Agreement, it shall promptly notify Embraer, shall use its reasonable efforts to limit disclosure of the confidential information contained in the Articles and conditions of this Agreement and shall reasonably cooperate with Embraer with respect thereto. The obligations of the Parties pursuant to this Article shall survive termination of this Agreement. Notwithstanding the foregoing, the Parties are not prohibited from disclosing the terms of this Agreement to their respective legal counsel, accountants and auditors, or the institutions which provide financing for the Aircraft to the Buyer; provided that disclosure to such institutions shall be limited to assignable provisions. Without limiting Buyers obligations hereunder, if Buyer is required to file an amendment to this Agreement with the U.S. Securities and Exchange Commission, Buyer shall notify Embraer as soon as practicable (but no less than five (5) Days) prior to such filling), and Buyer shall reasonably cooperate with Embraer in preparing a redacted version of this Agreement and any amendment.
Neither Party shall issue or cause to be issued any press release or other public announcement relating to the subject matter of this Agreement or the transactions contemplated hereunder without prior approval of the other Party, except as required by applicable law or applicable rules of any stock exchange or securities association; provided that, in such case, the other Party shall be provided with a copy of such press release or the contents of any public announcement as soon as practicable before such press release or announcement is made.
23
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, invalid or unenforceable, such 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.
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.
All Attachments referred to in this Agreement and/or attached hereto are, by such reference or attachment, incorporated in this Agreement.
Buyer and Embraer agree that this Agreement, including but not limited to 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.
This Agreement may be signed by the Parties in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
This Agreement constitutes the entire agreement of the Parties with respect to the sale described as its subject and supersedes all previous and connected negotiations, representations and agreements between the Parties. This Agreement may not be altered, amended or supplemented except by a written instrument executed by the Parties.
Each Party represents and warrants to the other that:
31.1. it is a corporation 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;
31.2. 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
24
31.3. 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.
[Signature page follows.]
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers and to be effective as of the day and year first above written.
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Buyer- JetBlue Airways Corporation |
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ATTACHMENT A AIRCRAFT CONFIGURATION
1. STANDARD AIRCRAFT CONFIGURATION
The Aircraft shall be manufactured in accordance with Embraers Preliminary Technical Description PTD 190 Rev. 3 dated November 2002.
2. OPTIONAL EQUIPMENT:
2.1 AIRCRAFT MODEL AND ENGINES
a. EMBRAER 190 LR with GE CF34-10E5 Engines
2.2 OPTIONS BY ATA CHAPTER
***
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[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
26
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2.3 LiveTV ENTERTAINMENT SYSTEM BIE (Buyer Installed Equipment): Embraer shall deliver the Aircraft to Buyer with structural and electrical power provisions for installation of the LiveTV system in the Aircraft, provided that such provisions have been previously approved by Buyer. All LiveTV equipment, their related components (such as trays, connectors, special harness, etc) and antennas shall be provided and installed by Buyer at Buyers facility and at Buyers own cost.
Embraer shall cooperate with Buyer with regards to providing necessary information about the Aircraft interfaces with the LiveTV system to allow Buyer to obtain a STC (Supplemental Type Certificate) for the LiveTV system in the Aircraft. Embraer shall not be responsible to provide any warranty related to the information and Buyer shall waive any such rights.
The Parties shall use commercially reasonable efforts to have the LiveTV system certified in the EMBRAER 190 aircraft by the time of the ***.
Provisions for installation of shall means provision for future installation of a certain system, assembly or equipment, meaning that all elements directly related to the main structure needed to accommodate such items (such as holes and non-detachable supports) shall be installed during production. Detachable supports, clamps, feeding lines, connectors, etc are not included. Space and weight have been considered for design as well as main structure has been stressed taking into account the subject equipment.
Except as expressly provided above, Buyer shall be solely responsible for all costs and expenses associated with LiveTV systems and obtaining any supplemental type certificates relating to it. LiveTV systems shall not be covered by any warranty or guarantee under the Purchase Agreement or its attachments and Buyer hereby waives and shall make no claims relating to such systems and Embraer shall not be responsible for their effects on the performance of the Aircraft or for any delay in delivery of the Aircraft relating to LiveTV. THE TERMS OF SECTION 7 OF ATTACHMENT C TO THE PURCHASE AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE WITH RESPECT TO LIVETV SYSTEMS.
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 LiveTV systems.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
27
2.4 INTERIOR CONFIGURATION
a. Aircraft Single Class 100 Elite seats at 32 pitch
***
3. AIRCRAFT FINISHING
3.1 EXTERIOR FINISHING: The fuselage of the Aircraft shall be painted in accordance with a paint scheme to be defined by Buyer and presented to Embraer on or before *** months prior to the first Firm Aircraft Contractual Delivery month. The wings and the horizontal stabilizer shall be supplied in the standard colors, i.e., gray BAC707. Buyer shall have the right to ***, by notifying Embraer of the ***.
3.2 INTERIOR FINISHING: Buyer shall inform Embraer on or before *** months prior to the first Firm Aircraft Contractual Delivery month 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 normally offered by and available at Embraer.
In case Buyer opts to use different materials and or patterns, Buyer shall inform Embraer on or before *** months prior to the first day of the Aircraft Scheduled Delivery Month of its choice of materials and colors for all items of interior finishing, and Embraer shall inform Buyer the additional costs associated with such special interior finishing, if any.
3.3 BUYER FURNISHED AND BUYER INSTALLED EQUIPMENT (BFE and 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 such 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 installing such BFE, in which case Buyer *** of the Aircraft. All BFE equipment shall be delivered to
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
28
Embraer in DDP Embraer facilities in São José dos Campos, SP, Brazil (Incoterms 2000) conditions.
The Aircraft galleys have 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.
For avoidance of any doubt, BFE and BIE items are not subject to the warranty terms and conditions contained in Attachment C to this Agreement.
4. REGISTRATION MARKS AND TRANSPONDER CODE
The Aircraft shall be delivered to Buyer with the registration marks painted on them. The registration marks and the transponder code shall be supplied to Embraer by Buyer no later than ninety (90) Days before each relevant Aircraft Contractual Delivery Date.
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 REFERRED TO IN ARTICLE 1, THE TERMS OF THIS ATTACHMENT A SHALL PREVAIL.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
29
ATTACHMENT B - FERRY EQUIPMENT AND PRODUCT SUPPORT PACKAGE
1. FERRY EQUIPMENT AND ASSISTANCE
1.1 If it is necessary for any ferry equipment to be installed by Embraer for the ferry flight between Brazil and United States of America, Embraer will make available a standard ferry equipment kit to Buyer (hereinafter the Kit), at ***, except as set forth below. In this case, Buyer shall immediately upon the Aircrafts arrival at Embraer Marketing Aircraft Corporation (EMAC) facilities in Fort Lauderdale Fl, remove the Kit from the Aircraft and EMAC shall return the Kit to Embraer in Brazil at ***, including the necessary insurance.
If Embraer provides the Kit to Buyer and if the Kit is either utilized, whether totally or not, or if the Kit is not returned by Buyer, in Embraers reasonable discretion, in complete and in the same condition as it was delivered to Buyer, Buyer shall pay Embraer the ***.
In such case, the original Kit shall become the property of Buyer, and Buyer shall make the above-mentioned payment to Embraer upon presentation of a sight draft by Embraer.
1.2 Embraer shall make a representative available on board of the Aircraft during the ferry flight in order to support Buyers personnel in assisting the flight crew with Air Traffic Control (ATC) communications while over flying Brazilian airspace, and communication with Brazilian custom clearances and Aircraft refueling individuals. Such representative shall remain on board of the Aircraft until the last stop in Brazilian territory. Any other arrangement shall be requested by Buyer no less than *** Business Days prior to the relevant Aircraft Contractual Delivery Date and shall be contingent upon the concurrence of Embraer at its sole criteria, such concurrence not to be unreasonably withheld.
2. PRODUCT SUPPORT PACKAGE
2.1 MATERIAL SUPPORT
2.1.1 Spares Parts General 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 for a period of *** years after production of the last aircraft of the same type ***. 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 the purchase order. The Spares may be supplied either by Embraer in Brazil or through its subsidiaries or distribution centers located abroad.
2.1.2 Recommended Spare Parts List (RSPL): Upon Buyers request, Embraer shall present to Buyer a recommended RSPL, which objective 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
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
1
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.
Buyer may elect to acquire all the items contained in the RSPL or to combine a partial acquisition of the RSPL items with a participation in the special spare parts support programs, available from Embraer.
Buyer may acquire the items contained in the RSPL directly from Embraer or directly from Embraers vendors. For the items contained in the RSPL that Buyer elects to purchase directly from Embraer (the IP Spares), Buyer must place a purchase order with Embraer on or before *** Days prior to the first Firm Aircraft Contractual Delivery Date in order to have the IP Spares available in stock by the time of the first Firm Aircraft Contractual Delivery Date, at a fill rate of approximately ***%. For purchase orders placed by Buyer out of the schedule set forth above, the IP Spares shall be provided to Buyer in accordance with the quoted lead times. Embraer will deliver the IP Spares in *** condition, at port of clearance indicated by Embraer within the US.
If requested by Buyer, Embraer will update the data of the RSPL incorporating engineering and price changes. Embraer will maintain a master copy of the RSPL updated until ***.
2.1.3 CREDIT FOR SURPLUS IP SPARES: Embraer offers to Buyer a program for certain surplus IP Spares manufactured by Embraer and which were recommended in writing by Embraer limited to the quantities, part numbers and serial numbers (if applicable) identified in the relevant invoices. Such program will provide terms no less favorable than the following:
a. Credit Program: During the period commencing *** years after delivery of the first Firm Aircraft under the Purchase Agreement of which this is an Attachment and ending *** years after such delivery, Embraer will, upon receipt of a written request and subject to the exceptions and conditions in paragraphs a.1; a.2; a.3 and a.4 of this section, offer a credit for new and unused IP Spares manufactured by Embraer (i) which have been supplied by Embraer as IP Spares for the Aircraft subject of this Agreement and (ii) which are surplus to Buyers needs. Such credit may be used toward the purchase of Spares manufactured by Embraer, Technical Publications or Services (excluding training) offered by Embraer.
a.1 EXECEPTIONS: Embraer will not issue credits for IP Spares which were purchased by Buyer in excess to or differently from the Spares recommended in writing by Embraer to Buyer by the RSPL as initial
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
2
provisioning for the Aircraft and for IP Spares which have become obsolete or have been superseded by another part as a result of (i) Buyers modification of an Aircraft for which the IP Spares were purchased; (ii) Embraer design improvements (except for IP Spares which have become obsolete because of a defect in design); (iii) IP Spares which are shelf-life limited; (iv) damaged IP Spares; or (v) IP Spares that were not properly stored.
a.2 CREDIT VALUES: The credit for each IP Spare to be issued by Embraer will be: *** an amount equal to ***.
a.3 DELIVERY OF SURPLUS IP SPARES: IP Spares for which a credit has been requested shall be delivered by Buyer, freight and insurance prepaid, to Embraers plant in São José dos Campos, SP, Brazil, or any other destination as Embraer may reasonably designate. All returned IP Spares are subject to Embraers quality control inspection and acceptance. All IP Spares which are rejected by Embraers quality control and/or are included in the exceptions set forth in paragraph a.1 hereinabove, will be returned to Buyer at Buyers expense, no credit being due in this case.
a.4 CREDIT ISSUE: After Embraers acceptance of those IP Spares suitable for the credit program, under the terms of this Agreement, Embraer will notify the available credit amount to Buyer and provide all relevant information as to credit utilization.
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 TOLL FREE numbers (phone and fax), e-mail ***. Embraer will also maintain the regular direct lines (phone and fax), in case of failures. The information concerning TOLL FREE, regular lines and e-mail address can be obtained through the Customer Account Manager designated to Buyer by Embraer or through Embraers Customer Service offices. Embraer will deliver parts under AOG from Buyer nearest location, provided that the part is available at this location at the moment of the request, in FCA condition - Embraers facility, respecting 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). ***
Routine and/or Critical Spares: Embraer will deliver routine and/or critical Spares (other than AOG Spares) in ***, depending on where the purchase order was placed with or otherwise agreed between Embraer and Buyer. Routine and/or
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
3
critical Spares shall be delivered according to their lead times, depending upon the purchase order priority and with the respective authorized release certificate or any similar document issued by a duly authorized person.
2.2 Upon receipt of an order from Buyer, according to the above referred terms, Embraer shall send to Buyer the shipping information (airwaybill number and flight date and number) after receipt of such information from the freight forwarder indicated by Buyer in the shipping instructions provided to Embraer by Buyer in the relevant order AIRCRAFT TECHNICAL PUBLICATIONS:
2.2.1 AIRCRAFT PUBLICATIONS: Embraer shall supply, at *** complete sets of operational and maintenance publications, plus one (1) operational set on board of each Aircraft to be delivered to Buyer, in the English language. The list of manuals is specified in Exhibit 1 to this Attachment B. Such publications are issued under the applicable specification and will be provided by Embraer to Buyer ***. The revision service for these publications is provided, ***, including mailing services and the software license fee for the digital publications, ***.
2.2.2. VENDOR ITEMS PUBLICATIONS: With respect to vendor items installed in the Aircraft which have their own publications, Buyer will receive them in their original content and printed form, directly from the suppliers, which are also responsible to keep them continuously updated through a direct communication system with Buyer.
2.2.3 The Parties further understand and agree that in the event Buyer elects not to take all or any one of the publications above mentioned, or revisions thereof, no refund or other financial adjustment of the Aircraft Basic Price will be made since such publications are offered at no charge to Buyer.
2.3 OTHER CUSTOMER SUPPORT SERVICES
Embraer shall provide familiarization programs and *** support for the Aircraft (the Services) in accordance with the terms and conditions described below:
2.3.1 Familiarization Programs:
a. Familiarization program specified below is being offered at ***, except for the ***, etc, which are used in flight training to be performed in the Aircraft, if any, as well as, travel and board & lodging expenses of Buyers trainees. The familiarization programs shall be conducted in accordance with Buyers training program and with all applicable regulations and requirements of the FAA.
b. Notwithstanding the eventual use of the term training in this Article 2.3.1, the intent of this program is solely to familiarize Buyers pilots, mechanics, employees or representatives, duly qualified per the governing body in the country of Buyers operation, with the operation and maintenance of the
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
4
Aircraft. It is not the intent of Embraer to provide basic training (ab-initio) to any representatives of Buyer.
c. The familiarization program, as applicable, shall occur prior to the *** Aircraft Actual Delivery Date as it shall be previously agreed upon by Buyer and Embraer. Buyer must give written notification to Embraer *** Days in advance of Buyers expected training schedule, including the full name and identification of each attendee. Substitutions will not be accepted for training within this period. Should Buyer not take all or any portion of the familiarization program for an Aircraft on or before *** months following the Actual Delivery Date of such Aircraft, Buyer shall be deemed to have fully waived its rights to such service specifically for that particular Aircraft, no refund or indemnity being due by Embraer to Buyer in this case.
d. All familiarization programs shall be provided by Embraer or its qualified designated representative in United States, or at such other location as Embraer shall reasonably designate.
e. The familiarization program referred to above covers:
e.1 One (1) Pilot Familiarization Program for up to *** including (i) ground familiarization as regards Aircraft systems, weight and balance, performance and normal/emergency procedures and, (ii) flight simulator training in a *** simulator in accordance with the local airworthiness authoritys approved Flight Operations Training Program.
e.2 One (1) Maintenance Familiarization Course for up to ***. This course shall consist of classroom familiarization with Aircraft systems and structures and shall be in accordance with ATA specification 104, level III.
e.3 Embraer shall provide training programs for the following Buyer individuals to be trained to the instructor level:
***
e.4 Embraer shall provide one (1) general familiarization course with the systems of the EMBRAER 190 aircraft for up to *** of Buyers representatives. Such training will have a duration of ***, and it can be provided to maintenance and operations personnel as well as management staff.
f. If requested, Embraer through its field support representative referred to in Article 2.3.2 below, may demonstrate the procedures described in the classroom, subject to Buyers Aircraft availability.
g. Buyer shall be solely responsible for submitting its training programs to the local airworthiness authority for approval.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
5
h. 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.
Any other service will be subject to a specific agreement to be negotiated by the Parties and will be charged by Embraer accordingly.
2.3.2 *** support:
a. Embraer shall indicate at its sole discretion, and provide *** to Buyer, the services of certain field support representatives (FSR) *** as follows:
***
b. FSR shall provide troubleshooting assistance, hands-on training for mechanics and shall assist and advise Buyer on the Aircraft maintenance during its initial operation and act as liaison between Buyer and Embraer.
c. At no charge to Embraer, Buyer shall provide such FSR with communication services (telephone, facsimile) as well as office space and facilities at Buyers main maintenance base, and Buyer shall also (a) arrange all necessary work permits and airport security clearances required for Embraer employees, to permit the accomplishment of the services mentioned in this item 2.3.2, in due time; and (b) obtain all necessary custom clearances both to enter and depart from Buyers country for Embraers employees and their personal belongings and professional tools.
d. During the ***, Buyer shall permit access to the maintenance and operation facilities as well as to the data and files of Buyers Aircraft fleet. It is hereby agreed and understood that Buyer shall make available *** of the FSR, one (1) set of updated Technical Publications as referred to in Article 2.2 above, it being Buyers responsibility to perform the revision services in order to maintain such publications updated within the period of the ***.
e. Buyer shall bear all expenses related to ***. These expenses shall be borne by Embraer ***.
f. Without a previous written authorization from Embraer, FSR shall not participate in test flights or flight demonstrations. In case Buyer obtains such previous authorization, Buyer shall include the FSR in Buyers insurance policy. Embraer reserves the right to halt the services mentioned in this item 2.3.2, should any of the following situations occur at Buyers base: a) there is a labor dispute or work stoppage in progress; b) war or war like operations, riots or insurrections; c) any conditions which is
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
6
dangerous to the safety or health of Embraers employee; or d) the government of Buyers country refuses permission to Embraers employee to enter the country.
g. The Parties further understand and agree that in the event Buyer elects not to take all or any portion of the *** support provided for herein, ***. Any other additional *** support shall depend on mutual agreement between the Parties and shall be charged by Embraer accordingly.
h. The presence of FSR 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 FSR to the extent permitted by law.
i. 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, ***.
2.4 PRODUCT SUPPORT PACKAGE FOR THE OPTION AIRCRAFT
The product support package for the Option Aircraft shall be limited to ***.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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The quantity of technical publications covering Aircraft operation and maintenance shall be delivered to Buyer in accordance with the following list:
OPERATIONAL SET
Title
1. |
Airplane Flight Manual (AFM)(*) |
2. |
Weight & Balance Manual (WB)(*) |
3. |
Airplane Operations Manual (AOM)(*) |
4. |
Quick Reference Handbook (QRH)(*) |
5. |
Dispatch Deviation Procedures Manual (DDPM)(*) |
6. |
Supplementary Performance Manual (SPM)(*) |
7. |
Operational Bulletins Set (OB) |
8. |
Standard Operating Procedures Manual (SOPM) |
9. |
Flight Attendant Manual (FAM) |
MAINTENANCE SET
10. |
Aircraft Maintenance Manual (AMM) (***) |
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11. |
Aircraft Illustrated Parts Catalog (AIPC) (***) |
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12. |
Fault Isolation Manual (FIM) (***) |
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13. |
Nondestructive Testing Manual (NDT) (***) 14.Maintenance Planning Document (MPD) |
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15. |
Wiring Manual (WM) (***) |
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16. |
Structural Repair Manual (SRM) (***) |
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17. |
Service and Information Bulletins Set (SB/IB) |
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18. |
Service Newsletters (SNL) |
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19. |
Parts Information Letter (PIL) |
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20. |
System Schematic Manual (SSM) (***) |
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21. |
Instructions for Ground Fire Extinguishing and Rescue (IGFER) |
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22. |
Airport Planning Manual (APM) |
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23. |
Illustrated Tool & Equipment Manual (ITEM) |
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24. |
Task Card System CD-ROM (TCS) (***) |
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25. |
Ramp Maintenance Manual (RMM) (***) |
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26. |
Power plant Build-up Manual (PPBM) (**) |
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27. |
Corrosion Prevention Manual (CPM) (***) |
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28. |
Component Maintenance Manual (CMM) (**) |
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29. |
Airplane Recovery Manual (ARM) |
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30. |
Maintenance Facility and Equipment Planning (MFEP) |
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31. |
Standard Wiring Practices Manual (SWPM) |
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32. |
Standard Manual (SM) |
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33. |
Consumable Products Catalog (CPC) |
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34. |
Maintenance Review Board Report (MRB) |
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(*) |
One extra copy on board each Aircraft |
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(**) |
To be delivered by the suppliers directly to Buyer. |
1
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[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
2
ATTACHMENT C - AIRCRAFT LIMITED WARRANTY CERTIFICATE
1) Embraer, subject to the conditions and limitations hereby expressed, warrants the Aircraft subject of the Purchase Agreement to which this will be an Attachment, as follows:
a. For a period of *** months 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 *** months from the date of delivery to Buyer, the Aircraft will be free from:
Defects in operation of vendor (Embraers supplier) manufactured parts, not including the Engines, Auxiliary Power Unit (APU) and their accessories (Vendor Parts), as well as failures of mentioned parts due to incorrect installation or installation not complying with the instructions issued or approved by their respective manufacturers.
Defects due to non-conformity of Vendor Parts to the technical specification referred to in the Purchase Agreement of the Aircraft.
Once the above-mentioned periods have expired, Embraer will transfer to Buyer the original Warranty issued by the vendors, if it still exists.
2) Embraer, subject to the conditions and limitations hereby expressed, warrants that:
a. All spare parts or ground support equipment, not including Engines, APU and their accessories, which have been manufactured by Embraer or by its subcontractors holding an Embraer part number, which will permit their particular identification and which have been sold by Embraer or its representatives will, for a period of *** months from the date of the invoice, be free from defects of material, workmanship, manufacturing processes and defects inherent to the design of the above mentioned parts or ground support equipment.
b. All spare parts or ground support equipment, which have been designed and manufactured by vendors, not including Engines, APU and their related accessories, and stamped with a serial number which will permit their particular identification and which have been sold by Embraer or its representatives will, for a period of *** months from the date of the invoice, be free from malfunction, defect of material and manufacture.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
3
3) The obligations of Embraer as expressed in this Warranty are limited to, in Embraers own judgment, either replacement or repair of defective parts. The defective parts shall be returned to Embraer or its representatives within a period of *** Days 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 such *** Day 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 *** Days 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.
4) Embraer will accept no warranty claims under any of the circumstances listed below, unless Buyer can ***:
a. When the Aircraft has been used in an attempt to break records, or subjected to experimental flights without Embraers prior written consent, 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 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;
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
4
f. In cases of deterioration, wear, breakage, damage or any other defect resulting from the use of inadequate packing methods when returning items to Embraer or its representatives.
5) This Warranty does not apply to defects presented by expendable items, whose service life or maintenance cycle is lower than the warranty period, or to materials or parts subjected to deterioration.
6) The Warranty hereby expressed is established between Embraer and Buyer, and it cannot be transferred or assigned to others, unless by written consent of Embraer, according to Articles 12 and 14 of the Purchase Agreement.
7) THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND REMEDIES OF BUYER SET FORTH IN THIS WARRANTY CERTIFICATE ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF EMBRAER AND ANY ASSIGNEE OF EMBRAER AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF BUYER AGAINST EMBRAER OR ANY ASSIGNEE OF EMBRAER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NON-CONFORMANCE OR DEFECT OR FAILURE OR ANY OTHER REASON IN ANY AIRCRAFT OR OTHER THING DELIVERED UNDER THE PURCHASE AGREEMENT OF WHICH THIS IS AN ATTACHMENT, INCLUDING DATA, DOCUMENT, INFORMATION OR SERVICE, INCLUDING BUT NOT LIMITED TO:
a. ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS;
b. ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;
c. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE OR OTHER RELATED CAUSES OF EMBRAER OR ANY ASSIGNEE OF EMBRAER, WHETHER ACTIVE, PASSIVE OR IMPUTED; AND
d. ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT, FOR LOSS OF USE, REVENUE OR PROFIT WITH RESPECT TO ANY AIRCRAFT OR FOR ANY OTHER DIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
8) No representative or employee of Embraer is authorized to establish any other warranty than the one hereby expressed, nor to assume any additional obligation, relative to the matter, in the name of Embraer and therefore any such statements eventually made by, or in the name of Embraer, shall be void and without effect.
5
ATTACHMENT D ESCALATION FORMULA
***.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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ATTACHMENT E - ***
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[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
1
ATTACHMENT F
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[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
2
ATTACHMENT G - ***
***
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
3
ATTACHMENT H - PERFORMANCE AND WEIGHT GUARANTEE
1. GUARANTEES
Embraer, subject to the conditions and limitations hereby expressed, and considering the Aircraft equipped with Embraer furnished General Electric CF34-10E5 engines, guarantees that each Aircraft on the relevant Actual Delivery Date shall comply with the following performance:
1.1 TAKE-OFF
The FAA approved take-off field length at a gross weight at the start of the ground roll of *** lb, on a standard day (ISA), at a sea level altitude, zero wind, no obstacles, dry runway, shall not be more than the guarantee value:
Guarantee: *** ft
The Aircraft will meet FAA approved minimum climb gradient for one engine inoperative climb, after takeoff at sea level, at a temperature of *** and with takeoff weight not less than the guarantee value:
Guarantee: *** lb
1.2 LANDING
The FAA approved landing field length at a gross weight of *** lb and at a sea level altitude, on a standard day (ISA), no obstacles, shall not be more than the guarantee value:
Guarantee: *** ft
1.3 CRUISE SPECIFIC AIR RANGE
The nautical miles per Kilogram of fuel at Aircraft gross weights below at the pressure altitudes below in ISA conditions at a true Mach number below shall be:
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1.4 SPEED
The level flight speed at a gross weight of *** lb, in a standard day (ISA), at an altitude of *** ft and using not more than maximum cruise thrust, shall not be less than the guarantee value:
Nominal: *** KTAS
Guarantee: *** KTAS
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
4
1.5 WEIGHT GUARANTEES
a. Maximum Take-Off Weight (MTOW): The Aircraft MTOW shall not be less than *** lb.
b. Maximum Landing Weight (MLW): The Aircraft MLW shall not be less than *** lb.
c. Maximum Zero Fuel Weight (MZFW): The Aircraft MZFW shall not be less than *** lb.
d. The Aircraft Equipped Empty Weight (EEW), for Buyer configuration, is guaranteed to be no greater than:
Nominal: *** lb
Tolerance: *** lb
Guarantee: *** lb
EMBRAER 190 LR - E5 Engines - 100 pax |
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[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
5
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1.7 RANGE GUARANTEE
The Aircraft shall be capable of carrying a fixed payload of *** lb (equal to *** passengers at a weight of *** lb each plus *** lb additional cargo), when operated under the conditions defined hereafter, over a still air distance of not less than:
Guarantee: *** nautical miles
a) A fixed Basic Operating Weight (BOW) of *** lb, as defined in item 1.5.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
6
b) ISA temperature conditions
c) The departure airport conditions are such as to allow the required Take-Off Weight to be used without restrictions
d) The destination airport conditions are such as to allow the required Landing Weight to be used without restrictions
e) A fixed allowance of *** lb of fuel is considered for engine start up and taxi-out at the departure airport
f) A fixed allowance of *** lb of fuel is considered for take-off and climb to *** ft above sea level with acceleration to initial climb speed
g) Climb from *** ft above the departure airport up to cruise altitude using maximum climb thrust and cruise at a fixed Mach number of *** at optimum flight level and descend to *** ft above the destination airport are conducted in ISA conditions. Climb is made at a speed schedule of *** KCAS below *** ft, then *** KCAS or Mach ***, whichever is slower. At the optimum flight level the aircraft accelerates to ***. Descent is made at a speed schedule of *** KCAS
h) Fixed allowance of *** lb of fuel and *** minutes of time from *** ft above sea level at ISA are considered for approach and landing at the destination airport
i) A fixed allowance of *** lb of fuel is considered for taxi-in at the destination airport.
j) Trip fuel is defined as the cumulative fuel used for take-off, climb, cruise, descent, approach and landing as described in Subparagraphs (f), (g) and (h) above. Stage distance is defined as the sum of the distances covered during climb, cruise, descent, approach and landing as described in Subparagraph (g) and (h) above.
k) At the end of approach and landing at the destination airport a fixed quantity of *** lb of usable fuel remains in the tanks. This represents the cumulative fuel required for FAA reserves for:
*** minutes of continued cruise at cruise altitude at long range cruise speed
diversion to an alternate airport over a still air distance of *** nm.
1.8 ***
2. AIRCRAFT CONFIGURATION
2.1 The guarantees stated above are based on the Aircraft configuration as defined in the Technical Description PTD-190/195-Rev.3, dated November 2002, plus specific Buyer configuration options as defined at Attachment A to the Purchase Agreement, (hereinafter referred to as the Detail Specification). If necessary, appropriate adjustment to this
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
7
Aircraft Performance Guarantees shall be made for changes in such Detail Specification (including but not limited to Buyer requests for changes, Proposal of Major Changes or any other changes mutually agreed upon between the Buyer and Embraer) approved in writing by the Buyer and Embraer. Such adjustments shall be accounted for by Embraer in its evidence of compliance with the guarantees.
In the event a change is made to any law, governmental regulation or requirement, or in the interpretation of any such law, governmental regulation or requirement that affects the certification basis for the Aircraft, and as a result thereof, a change is made to the configuration and/or the performance of the Aircraft in order to obtain certification, the guarantees set forth in this Aircraft Performance Guarantee shall be appropriately modified to reflect any such change.
2.2 The performance guarantees of Article 1 of this Attachment shall be adjusted by Embraer for the following in its evidence of compliance with such guarantees:
a. Changes to the Detail Specification including Major Changes or any other changes mutually agreed upon between the Buyer and Embraer.
b. The difference between the weight allowances of optional items listed in the Detail Specification and the actual weights.
2.3 The performance guarantees of Article 1 of this Attachment do not take into account any Aircraft drag penalty associated to the installation of IFE (LiveTV) equipment, such as antennas, connectors, etc. In the event that such equipment are installed prior to the Aircraft delivery, appropriate Aircraft drag adjustments shall be accounted for by Embraer in its evidence of compliance with the guarantees.
3. GUARANTEE CONDITIONS
3.1 All guaranteed performance data are based on the ICAO International Standard Atmosphere (ISA) unless otherwise specified. Altitudes are pressure altitudes. The FAA regulations referred to in this Attachment are, unless otherwise specified, the Certification Basis regulations specified in the Aircraft Type Certificate Data Sheet.
3.2 The takeoff and landing guarantees are based on hard surface, level and dry runways with no wind or obstacles, no clearway or stopway, and with automatic anti-skid operative unless otherwise specified. The takeoff performance is based on no engine bleed for air conditioning or thermal anti-icing and the Auxiliary Power Unit (APU) turned off unless otherwise specified. The improved climb performance procedure will be used for takeoff as required. The landing data is based on the use of automatic spoilers.
3.3 The cruise specific air range, speed and the climb, cruise and descent portions of the mission guarantees include allowances for normal
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electrical power extraction and normal operation of the air conditioning system. Normal power extraction shall be defined as not less than a 41 kW total electrical and hydraulic loads. Normal operation of the air conditioning system shall be defined as operation in the automatic mode, with the temperature control set to maintain a nominal cabin temperature of 70 ° F, and all air conditioning systems operating normally. This operation nominally allows a maximum cabin pressure differential of *** lb per square inch, with a nominal Aircraft cabin ventilation rate of *** cu.ft per min at *** ft including passenger cabin recirculation (nominal recirculation is *** %). The APU is turned off unless otherwise specified.
3.5 The cruise specific air range, speed and the climb, cruise, and descent portions of the mission guarantees are based on an Aircraft center of gravity location of ***% of the mean aerodynamic chord.
3.6 Performance, where applicable, is based on a fuel Lower Heating Value (LHV) of 18,580 BTU per pound and a fuel density of 6.7 lb per U.S. gallon.
4. PARTIES OBLIGATIONS ACCORDING TO THIS GUARANTEE
4.1 During the Aircraft acceptance to be performed by Buyer in accordance with Article 7 of the Purchase Agreement, Buyer shall check the Aircraft performance specified in Article 1 of this Attachment, ***.
4.2 Embraers obligations in respect to the guarantees stated in Article 1 of this Attachment are limited to Buyers right to ***, should it be reasonably verified that such Aircraft, during the acceptance procedure specified in Article 7 of the Purchase Agreement, cannot comply with the performances guaranteed hereunder, after Embraer has had a reasonable opportunity to cure such deficiencies in accordance with Article 7 of the Purchase Agreement.
4.3 In case, during the above mentioned acceptance procedure, it is proven that the Aircraft performance does not comply with the performances specified in Article 1 of this Attachment ***.
4.4 Upon acceptance of the Aircraft by Buyer, all obligations of Embraer regarding the Aircraft performance guarantees shall cease.
5. GUARANTEE COMPLIANCE
5.1 Compliance with the guarantees of Article 1 of this Attachment shall be based on the conditions specified in that article, the Aircraft configuration contained in Attachment A to the Purchase Agreement and the guarantee conditions of Article 3 above.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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5.2 Compliance with the takeoff and landing performance guarantees shall be based on the FAA approved Airplane Flight Manual for the Aircraft.
5.3 Compliance with the cruise specific air range, speed, and the climb, cruise and descent portions of the mission guarantees shall be established by calculations based on the comparison mentioned in Section 4.1 above.
5.4 The data derived from tests shall be adjusted as required by conventional methods of correction, interpolation or extrapolation in accordance with established engineering practices to show compliance with the performance guarantee.
5.5 Compliance with the Equipped Empty Weight guarantee shall be based on information in the appropriate approved weight and balance manual, and associated document or report.
6. EXCLUSIVE GUARANTEES
6.1 The only performance guarantees applicable to the Aircraft are those set forth in this document. The performance guarantees set forth herein are established between Buyer and Embraer and may not be transferred or assigned to others, unless by previous written consent of Embraer.
6.2 THE GUARANTEES, OBLIGATIONS AND LIABILITIES OF EMBRAER, AND REMEDIES OF BUYER SET FORTH IN THIS PERFORMANCE GUARANTEE ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND BUYER HEREBY WAIVES, RELEASES AND RENOUNCES, ALL OTHER RIGHTS, CLAIMS, DAMAGES AND REMEDIES OF BUYER AGAINST EMBRAER OR ANY ASSIGNED OF EMBRAER, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ACHIEVED PERFORMANCE.
6.3 The terms and conditions of this performance guarantee do not alter, modify or impair, in any way, the terms and conditions of Attachment C (Aircraft Warranty Certificate) to the Purchase Agreement.
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Exhibit 10.5
EMBRAER LETTER AGREEMENT DCT-026/2003
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SPECIAL INSURANCE CLAUSES |
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
LETTER AGREEMENT DCT-026/2003
This Letter Agreement DCT-026/2003 (Agreement or Letter Agreement) dated June 9, 2003 is an agreement between JetBlue Airways Corporation (Buyer) with its principal place of business at 118-29 Queens Boulevard, 5th floor - Forest Hills, NY 11375, and EMBRAER - Empresa Brasileira de Aeronáutica S.A. (Embraer or Embraer-Brazil), with its principal place of business at São José dos Campos, SP, Brazil (collectively the Parties), relating to Purchase Agreement DCT-025/2003 (the Purchase Agreement) dated as of June 9, 2003.
This Letter Agreement constitutes an amendment, supplement and modification of the Purchase Agreement as it sets forth additional agreements of the Parties with respect to the matters set forth therein. All terms defined in the Purchase Agreement shall have the same meaning when used herein, and in case of any conflict between this Letter Agreement and the Purchase Agreement, this Letter Agreement shall prevail.
WHEREAS:
a) The Parties have entered into the Purchase Agreement, pursuant to, and subject to the terms and conditions of, which Buyer shall buy and Embraer shall sell one hundred (100) Firm Aircraft and up to one hundred (100) Option Aircraft.
b) The Parties wish to set forth the 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, the Parties agree as follows:
With respect to the Firm Aircraft, Embraer shall provide a start-up team to take place at the initial line operation of the first Aircraft, composed of the following individuals:
*** for *** days ***.
*** for *** days.
*** for *** days
*** for *** days
*** for *** days.
The sole purpose of these specialists is to advise and assist with Buyers certification proving runs and start-up operations of the Aircraft, making Buyers pilots and mechanics familiar with the operation and maintenance of the Aircraft.
Embraer shall at its sole criteria indicate the individuals that will compose the start-up team, and Embraer shall be able to replace at any time any of such individuals, provided that such individuals shall stay at Buyers facilities for a time period of at least *** days. The start-up team is in addition to the pilot and mechanic training, and to the FSR specified in Article 2.3.2 of Attachment B to the Purchase Agreement.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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Embraer personnel shall not be authorized to perform any direct flight or maintenance services on Buyers Aircraft. Without a previous written authorization from Embraer, an Embraers mechanic shall not perform any maintenance or handling activity on the Aircraft, or an Embraers pilot shall not perform any supervising training of Buyers pilots during regular flight operations of the Aircraft. In case Buyer obtains such previous authorization, 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 Embraers pilots or mechanics while rendering the services set forth in this Paragraph, in such a manner as to cover any and all risks arising from or in any way connected with such services. Buyer shall also supply Embraer with a copy of the endorsements to the insurance policies above mentioned, in accordance with the clauses contained in Exhibit 1 to this Agreement, within twenty-four (24) hours prior to the date on which Pilots or Mechanics Assistance Service are to begin as indicated above. For the avoidance of doubt, the indemnity provided in Article 22 of the Purchase Agreement shall apply to the services set forth in this Section 1.
Embraer reserves the right to halt the services mentioned in this Section 1, should any of the following situations occur at Buyers base: a) there is a labor dispute or work stoppage in progress; b) war or war like operations, riots or insurrections; c) any conditions which is dangerous to the safety or health of Embraers employee; or d) the government of Buyers country refuses permission to Embraers employee to enter the country. Embraer shall resume the services mentioned in this Section 1 promptly after the above-described situation ceases.
At no charge to Embraer, Buyer shall provide the start-up team members with communication facilities (telephone, facsimile) as well as office space and facilities at Buyers main base, and Buyer shall also (a) arrange all necessary work permits and airport security clearances required for Embraers team members, to permit the accomplishment of the services mentioned in this Article 1, in due time; and (b) obtain all necessary custom clearances both to enter and depart from Buyers country for Embraers team members and their personal belongings and professional tools.
The start-up team members shall be allowed solely 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 team members to the extent permitted by law, except as provided to the contrary in Article 2.3.2.i of Attachment B to the Purchase Agreement.
Buyer shall bear all incremental expenses related to the transportation, board & lodging of the Embraer personnel in the event such personnel is required to render the services provided for herein in any place other than Buyers main maintenance base, otherwise all costs of travel and accommodation for such personnel shall be borne by Embraer.
At no charge to Embraer, Buyer shall provide Embraer pilots 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.
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3 . ***
4 . ***
Embraer will provide Buyer a spare parts credit of USD *** United States Dollars) per each of the Firm Aircraft effectively delivered to Buyer. Embraer shall issue such spare parts credits in Sao Jose dos Campos, SP, Brazil, ***. *** shall be made available to Buyer *** prior to the Contractual Delivery Date of the *** Firm Aircraft. Each of *** shall be made available to Buyer ***. The spare parts credit shall be used by Buyer for the purchase of Embraer-made spare parts and ground support equipment from the Embraer - Brazil spare parts facility (except for engines, engine related parts and APU), on a mutually agreed delivery schedule.
To be eligible to utilize such credit, Buyer shall not be in default in respect of any payment that has become due and payable by Buyer to Embraer or an affiliate of Embraer (as per the terms of the relevant agreement or invoice).
These credits shall not be escalated and expire if not used within *** after being issued.
In the event that the Purchase Agreement is terminated with respect to any Firm Aircraft for any reason (and notwithstanding any provision of the Purchase Agreement to the contrary), Buyer shall ***.
a. Computer Basic Training (CBT): Embraer shall provide *** to Buyer one (1) EMBRAER 190 CBT courseware for *** transition training. Such courseware shall be licensed to Buyer as long as such courseware is used by Buyer for training its own personnel and is subject to Embraer and Buyer entering into a CBT license agreement within 2 months after execution of the Purchase Agreement. Revision service will be provided *** to Buyer for as long as Buyer ***. Buyer may use such license for internal training without any limitation of number of stations, but Buyer shall not be authorized to supply training to third parties.
All related training materials, such as *** training manual based on a standard aircraft configuration, shall also be provided to Buyer. Such material shall be similar to those received by the trainees in the classroom.
In case Buyer does not ***, Buyer shall be deemed to have ***.
The CBT Courseware is copyright-protected and any and all author rights, intellectual, commercial or industrial proprietary rights of whatever nature in the CBT Courseware are and shall at all times remain with Embraer. Buyer may not sub-license nor sell the complete CBT Courseware or parts thereof to third parties.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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b. EMBRAER 190 Simulator Data Package: Embraer shall provide *** to Buyer one (1) EMBRAER 190 simulator data package (the Sim Data Package) ***, subject to the Parties entering into a Sim Data Package license agreement. Such Simulator Data Package shall be delivered by Embraer to Buyer within *** days following the Actual Delivery Date of Firm Aircraft ***. Such data shall be sufficient to enable Buyer to obtain FAA qualification of the simulator at level D, except for the items that are under Buyers/operators regulatory responsibility. Subject to the above, it shall be Buyers responsibility to obtain such qualification, at Buyers sole expense.
In the event that the Purchase Agreement is terminated with respect to any Firm Aircraft for any reason (and notwithstanding any provision of the Purchase Agreement to the contrary), Buyer shall ***.
It is understood that the Sim Data Package shall be used exclusively by Buyer to build its own EMBRAER 190 simulator, for its training purposes, and it shall not be sold, transferred, leased or assigned to any other party. In case Buyer does not ***, Buyer shall be deemed to have ***.
c. Embraer-made parts for simulator: Embraer shall provide *** to Buyer *** of Embraers manufactured parts required to manufacturer an EMBRAER 190 simulator (Sim Parts) ***. Such Sim Parts shall be delivered by Embraer to Buyer within *** days following the Actual Delivery Date of Firm Aircraft ***. It is understood by the Parties that the Sim Parts shall be used exclusively by Buyer to build its own EMBRAER 190 simulator, for its training purposes, and it shall not be sold, transferred, leased or delivered to any other party. In case Buyer does not ***, Buyer shall be deemed to have ***.
In the event that the Purchase Agreement is terminated with respect to any Firm Aircraft for any reason (and notwithstanding any provision of the Purchase Agreement to the contrary), ***.
d. Avionics Instruments Mock-Up Trainer: Embraer shall provide *** to Buyer and as soon as reasonably possible but no later than *** months after the first Aircraft Actual Delivery Date, *** EMBRAER 190 Mock-Ups Trainer to support pilot training.
The Mock-Up Trainer will represent the aircraft cockpit configuration in a 1:1 scale including the side consoles representation.
e. EMBRAER 190 Cabin Trainer for Flight Attendants: Embraer shall provide *** to Buyer and as soon as reasonably possible but no later than *** months after the *** Aircraft Actual Delivery Date, a EMBRAER 190 full scale cabin trainer (Cabin Trainer), composed of one fuselage section, including interior components, one or more doors (including overwing door, if it exists), if different types of doors exist, and galley, but excluding any fixtures and equipment which are classified as BFE for the actual Aircraft. The certification by FAA will be Buyers responsibility,
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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but Embraer shall manufacture the mock up in such a manner and shall provide Buyer with documentation support, as to enable Buyer to obtain such certification. In case Buyer does not *** Buyer shall be deemed to have ***.
f. On-site Training: Embraer shall provide *** to Buyer, a maintenance training course at Buyers main maintenance base to up to *** of Buyer selected personnel. These trainees shall be trained *** by Embraer or its designated training provider. The Training will be conducted according to a standard training syllabus which will be provided by Embraer or its designated training provider and any additional training request shall be discussed and agreed by Embraer and Buyer.
g. Engineering Services: Embraer shall provide remote technical and engineering support services, 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 and 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. This service shall be provided *** Buyer within such scope and shall be available to Buyer until ***. 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 is provided *** Buyer, up to ***.
h. Account Manager: Embraer shall assign an Account Manager to support Buyer shortly after execution of the Purchase Agreement. 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 the Technical Representative, one regional spare parts representative and a regional field engineer shall support the assigned Account Manager.
i. ***.
7 ***
8 ***
Terms and conditions of certain additional assistance and support are provided in Exhibits 2 and 3.
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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Embraer agrees to cooperate in good faith with Buyer in Buyers efforts to *** provided that this obligation shall not increase Embraers *** and shall be subject at all times to Embraers other obligations hereunder ***.
The provisions of Articles 18 (Applicable Law), 19 (Jurisdiction), 22 (Notices), 23 (Confidentiality), 25 (Severability), 26 (Non-Waiver), 28 (Negotiated Agreement), and 29 (Counterparts) of the Purchase Agreement are hereby incorporated by reference.
[Signature page follows.]
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed and delivered by their proper and duly authorized officers and to be effective as of the day and year first above written.
EMBRAER -
EMPRESA BRASILEIRA DE
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EXHIBIT 1
TO LETTER AGREEMENT DCT-026/2003
INSURANCE SPECIAL CLAUSES
Buyer shall include the following endorsements in its Hull and Comprehensive Airline Liability insurance policies:
1. 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 Embraer - Empresa 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.
2. Comprehensive Airline Liability Policy, based on the AVN53 - Additional Insured Endorsement
It is hereby understood and agreed that Embraer - Empresa 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 Insureds 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.
3. Notwithstanding anything to the contrary as specified in the Policy or any endorsement thereof, the coverages stated in paragraphs 1 and 2 above, shall not be cancelled or modified by the Insurer, without 48 hours 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 .
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EXHIBIT 2
TO LETTER AGREEMENT DCT-026/2003
ADDITIONAL ASSISTANCE
***
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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EXHIBIT 3
TO LETTER AGREEMENT DCT-026/2003
SUPPORT
***
[***] Represents material which has been redacted and filed separately with the Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
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