Exhibit 10.1

 

EXECUTION VERSION

 

CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT TO RULE 24B-2 AND ARE SUBJECT TO A CONFIDENTIAL TREATMENT REQUEST. COPIES OF THIS EXHIBIT CONTAINING THE OMITTED INFORMATION HAVE BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. THE OMITTED PORTIONS OF THIS DOCUMENT ARE MARKED WITH A [***].

 

AIRCRAFT PURCHASE AGREEMENT

 

between

 

MITSUBISHI AIRCRAFT CORPORATION

 

and

 

SKYWEST, INC.

 

Relating to MRJ70/MRJ90 Aircraft

 

Agreement Number MRJ90-3-SKW

 

 

TABLE OF CONTENTS

 

ARTICLE 1	DEFINITIONS; INTERPRETATION	1
1.1	Definitions	1
1.2	Interpretation	4
ARTICLE 2	SALE AND PURCHASE OF AIRCRAFT	5
2.1	Sale and Purchase of Aircraft	5
2.2	Conformity with the Detailed Specifications	5
ARTICLE 3	CUSTOMER SUPPORT	5
ARTICLE 4	PRICES	5
4.1	Base Aircraft Price	5
4.2	Additional Aircraft Price	5
4.3	Aircraft Basic Price	5
4.4	Initial Aircraft Basic Price	6
4.5	Aircraft Price	6
ARTICLE 5	ESCALATION ADJUSTMENT OF THE AIRCRAFT PRICE	6
ARTICLE 6	TAXES	6
ARTICLE 7	PAYMENT	6
7.1	Advance Payments	6
7.2	Payment at Delivery	6
7.3	Form of Payment	6
7.4	Suspension of Work in Case of Delinquent Payments	6
7.5	Interest on Delinquent Payments	7
7.6	Monetary and Government Regulations	7
ARTICLE 8	DELIVERY OF AIRCRAFT	7
8.1	[***]	7
8.2	Notices of Delivery Dates	7
8.3	Notice of Delay in Delivery; Adjustment to Schedules	7
8.4	Place of Delivery	7
ARTICLE 9	EXCUSABLE DELAY	7
9.1	Excusable Delay	7
9.2	[***]	8
9.3	Effect of Termination	8
ARTICLE 10	NON-EXCUSABLE DELAY	8

 

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10.1	Non-Excusable Delay	8
10.2	Liquidated Damages for Non-Excusable Delay	8
10.3	[***]	8
10.4	Effect of Termination	8
10.5	Exclusivity of Liquidated Damages; Waivers	8
ARTICLE 11	CUSTOMER INFORMATION	8
11.1	Information to be Provided	8
11.2	Information Statement	8
11.3	Failure to Comply	8
ARTICLE 12	REGULATORY REQUIREMENTS AND CERTIFICATES	9
12.1	Certificates	9
12.2	Special Aircraft Test Requirements	9
12.3	Customer’s Responsibility Regarding Certificates	9
ARTICLE 13	CHANGES TO THE AIRCRAFT	9
13.1	Manufacturer Changes	9
13.2	Development Changes	9
13.3	Customer Changes	9
13.4	Changes to Detailed Specifications	10
ARTICLE 14	ACCEPTANCE AND DELIVERY	10
14.1	Ground Inspection	10
14.2	Acceptance Flights	11
14.3	Representatives of Customer during the Ground Inspection and Acceptance Flights	11
14.4	Acceptance	12
14.5	Delay in Accepting Delivery	12
14.6	Bill of Sale	13
14.7	Aircraft Radio Station License	13
14.8	Ferry Flight	13
ARTICLE 15	RISK ALLOCATION	13
15.1	Transfer of Title / Risk of Loss	13
ARTICLE 16	PRODUCT ASSURANCE	14
ARTICLE 17	INDEMNIFICATION	14
17.1	By Seller	14
17.2	By Customer	14
17.3	Notice and Defense of Claims	15

 

ii

 

ARTICLE 18	ASSIGNMENT, RESALE OR LEASE OF AIRCRAFT	15
18.1	Assignment	15
18.2	Support for Customer’s Financing	16
18.3	Sale by Customer after Delivery	16
18.4	Lease by Customer after Delivery	16
18.5	No Increase in Liability	17
18.6	Assignment of Right to Receive Money	17
ARTICLE 19	TERMINATION	17
19.1	Termination by Either Party	17
19.2	Termination by Seller for Non-Payment	18
19.3	Seller’s Remedies	18
19.4	Customer’s Remedies	18
19.5	Survival	18
ARTICLE 20	INSURANCE	18
20.1	Insurance Requirements	18
20.2	Certificate of Insurance	19
20.3	Noncompliance with Insurance Requirements	19
ARTICLE 21	LIMITATION OF LIABILITY	19
21.1	Limitation of Liability	19
21.2	Exclusion of Consequential and other Damages	21
21.3	Contribution Toward Third Party Claims	21
21.4	No Duplicate Remedies	21
ARTICLE 22	NOTICES	22
22.1	Means of Communication	22
22.2	Addresses of the Parties	22
ARTICLE 23	CONFIDENTIALITY	23
23.1	Confidential Information	23
23.2	Disclosure of Confidential Information	23
23.3	Pre-Agreement Confidential Information	24
ARTICLE 24	GOVERNING LAW AND DISPUTE RESOLUTION	24
24.1	Governing La w	24
24.2	Dispute Resolution	25
ARTICLE 25	MISCELLANEOUS	26
25.1	Government Approval	26

 

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25.2	Subcontractors	26
25.3	Waiver/Severability	26
25.4	Intellectual Property	26
25.5	Further Assurances	26
25.6	No Third Party Beneficiary Rights	27
25.7	Attachments, Exhibits and Appendices	27
25.8	Force Majeure	27
25.9	Entire Agreement	28
25.10	Compliance	28
25.11	Counterparts	28
25.12	Amendment or Modification	29

 

iv

 

ATTACHMENTS, EXHIBITS AND APPENDICES

 

ATTACHMENTS

 

1.		Description of Aircraft; Price
2.		Schedule of Delivery; [***]
3.		[***]
4.		Specifications
5.		Customer Information Statement

 

EXHIBITS

 

A.		Buyer Furnished Equipment Provisions Document
B.		Customer Support Document
C.		Product Assurance Document
D.		Escalation Adjustment Formula

 

APPENDICES

 

I.		Certificate of Acceptance
II.		Bill of Sale

 

v

 

This Aircraft Purchase Agreement No. MRJ90-3-SKW (together with all Attachments, Exhibits, Appendices and any other documents attached hereto, as each may be amended, modified or supplemented from time to time, this “ APA ”) is made and entered as of December 7, 2012, by and between MITSUBISHI AIRCRAFT CORPORATION, a corporation duly organized and existing under and by virtue of the laws of Japan, with its head office located at 2-15, Oye-cho, Minato-ku, Nagoya-shi, Aichi-ken, 455-8555, Japan (“ Seller ”) and SKYWEST, INC., a corporation duly organized and existing under and by virtue of the laws of Utah, with its head office located at 444 South River Road, St. George, Utah 84790 (“ Customer ”).

 

Article 1                                                Definitions; Interpretation.

 

1.1                                Definitions.

 

The following terms used in this APA shall have the meanings described below in this Article 1.

 

“ Acceptance Flight ” shall have the meaning described in Article 14.2.1.

 

“ Acceptance Flight Protocol ” shall have the meaning described in Article 14.2.2.

 

“ Additional Aircraft Price ” shall have the meaning described in Article 4.2.

 

“ Advance Payments ” shall mean partial payments of the Aircraft Price before the delivery of an Aircraft, the amounts and payment schedule of which are as set forth in Attachment 2 .

 

“ Aircraft ” shall mean the aircraft to be sold by Seller and to be purchased by Customer hereunder, the model, type and number of which are as specified in Attachment 1 and the respective “[***]” of which are as specified in Attachment 2 .

 

“ Aircraft Basic Price ” shall have the meaning described in Article 4.3.

 

“ Aircraft Price ” shall have the meaning described in Article 4.5.

 

“ Aircraft Software ” shall mean any computer software used and included in an Aircraft when such Aircraft is first delivered by Seller.

 

“ APA ” shall have the meaning set forth in the preamble.

 

“ APA Main Text ” shall mean the main text of this APA, which shall not include the Attachments, Exhibits, Appendices and any other documents attached hereto.

 

“ Base Aircraft Price ” shall have the meaning described in Article 4.1.

 

“ BFE ” or “ Buyer Furnished Equipment ” shall mean equipment, parts, accessories and other items purchased and provided by Customer and adopted by a Customer Change as parts installed or to be installed in the Aircraft and listed in the “Buyer Furnished Equipment List” set forth in  Part III of Attachment 4 .

 

1

 

“ BFE Software ” shall mean software products developed, selected or provided by Customer as BFE.

 

“ Business Day ” means a day on which commercial banking are open for business in both New York, New York and Tokyo, Japan; provided, to the extent identified in the APA, either New York, New York or Tokyo, Japan may be identified as the relevant city of determination.

 

“ Cancelled Aircraft ” shall mean any Aircraft with respect to which this APA is terminated in accordance with Articles 19.1 or 19.2.

 

“ Certificate of Acceptance ” shall mean a certificate of acceptance of the Aircraft substantially in the form of Appendix I , which shall be issued by Customer in accordance with Article 14.

 

“ Civil Aviation Authority ” shall mean any aviation authority in the country of import or registration.

 

“ Confidential Information ” shall have the meaning described in Article 23.1.

 

“ Countries ” shall have the meaning described in Article 17.1.

 

“ Customer ” shall have the meaning described in the preamble.

 

“ Customer Change ” shall have the meaning described in Article 13.3.

 

“ Customer Party ” shall mean Customer and its successors, assigns and Subsidiaries, and each of their respective directors, officers, employees, agents, contractors and subcontractors.

 

“ Detailed Specifications ” shall mean the MRJ BASIC SPECIFICATIONS set forth in Part I of Attachment 4 , with respect to model MRJ70 or MRJ90 Aircraft, as applicable, which describes the configuration of such Aircraft, as amended by incorporating changes thereto made from time to time in accordance with this APA.

 

“ Development Change ” shall have the meaning described in Article 13.2.

 

“ Disputed Obligation ” shall have the meaning described in Article 24.2.

 

“ Disputing Obligor ” shall have the meaning described in Article 24.2.

 

“ EASA ” shall mean the European Aviation Safety Agency.

 

“ Escalation Adjustment Formula ” shall mean the formula provided in Exhibit D .

 

“ Excusable Cause ” shall have the meaning described in Article 9.1.

 

“ Excusable Delay ” shall have the meaning described in Article 9.1 .

 

“ FAA ” shall mean the United States Federal Aviation Administration.

 

“ Force Majeure Event ” shall have the meaning described in Article 25.8.

 

2

 

[***]

 

“ Ground Inspection ” shall have the meaning described in Article 14.1.1.

 

“ Ground Inspection Protocol ” shall have the meaning described in Article 14.1.2.

 

“ Guaranteed Delivery Month ” shall mean with respect to an Aircraft [***].

 

[***]

 

[***]

 

“ Indemnitee ” shall have the meaning described in Article 17.3.1.

 

“ Indemnitor ” shall have the meaning described in Article 17.3.1.

 

“ Initial Aircraft Basic Price ” shall have the meaning described in Article 4.4.

 

“ JCAB ” shall mean the Japan Civil Aviation Bureau.

 

“ London Business Day ” shall mean a day (other than Saturday or Sunday) on which commercial banks are open for regular banking business in London.

 

“ Manufacturer Change ” shall have the meaning described in Article 13.1.1.

 

“ Minor Non-Conformities ” shall have the meaning described in Article 14.4.1.

 

“ Month ” means a period starting on the eighteenth (18 th ) day in a calendar month and ending on the seventeenth (17 th ) day in the next calendar month.

 

“ Non-Excusable Delay ” shall have the meaning described in Article 10.1.

 

“ Optional Features ” shall mean the optional features listed in the MRJ Optional Features List set forth in Part II of Attachment 4 .

 

[***]

 

“ Propulsion System ” shall mean, collectively, (i) one engine for the Aircraft [***] (ii) one nacelle (including thrust reverser) [***] installed on such engine and (iii) all the components [***] installed on such engine.

 

“ Representative ” shall have the meaning described in Article 23.1.

 

“ Scheduled Delivery Month ” shall mean with respect to an Aircraft [***].

 

“ Scheduled Delivery Date ” shall have the meaning described in Article 8.2.3.

 

[***]

 

“ Seller ” shall have the meaning described in the preamble.

 

3

 

“ Seller Parts ” shall mean any systems, accessories, parts or Aircraft Software with respect to which Seller has exclusive sales rights, and which are specified in the initial provisioning documentation provided by Seller to Customer in accordance with Article 4.2 of Part 4 of Exhibit B .

 

“ Seller Party ” shall mean Seller and its successors, assigns and Subsidiaries, and each of their respective directors, officers, employees, agents, contractors and subcontractors.

 

“ Subsidiary ” shall mean a corporation or other legal entity more than fifty percent (50%) of whose stock or other equity interest of any class or classes having by the terms thereof ordinary voting power to elect a majority of the directors (or equivalent officials) is, at the time of assessment, owned directly or indirectly by the corporation or other entity concerned.

 

“ Supplier ” shall mean a manufacturer of Supplier Parts.

 

“ Supplier Parts ” shall mean any systems, accessories or parts of the Aircraft or Aircraft Software which are not Seller Parts.  “Supplier Parts” shall not include Tools and BFE.

 

“ Taxes ” shall mean any and all taxes, fees, charges, impositions, or duties and any interest, penalties, fines, or other additions to tax, including sales, use, value added, gross receipts, goods and services, stamp, customs duties, property, excise, transfer, withholding and similar taxes imposed by any domestic or foreign taxing authority.

 

“ Tools ” shall mean maintenance tools, hand-tools, special-tools, equipment, instruments and testers for the Aircraft.

 

“ Type Certificate ” shall mean a design approval issued by the FAA, the JCAB or the EASA, as applicable, for each specific type of Aircraft.

 

1.2                                Interpretation.

 

Except as otherwise expressly provided herein, the following rules of construction shall apply to this APA:  (i) any reference to an Article (or sub-Article, paragraph or clause), Attachment, Exhibit or Appendix shall be to an article (or sub-article, paragraph or clause) of, or an attachment, exhibit or appendix to, this APA; (ii) the table of contents, any article, sub-article or paragraph headings contained in this APA are for reference purposes only and shall not affect in any way the meaning or interpretation of this APA; (iii) any reference to a statute or statutory provision shall be construed as a reference to the same as it may have been, or may from time to time be, amended, modified or re-enacted and to any applicable rules or regulations promulgated thereunder; (iv) any reference to any agreement or document (including this APA) shall be construed as a reference to such agreement or document as amended, modified, clarified or supplemented and in effect from time to time and shall include a reference to any document which amends, modifies, clarifies or supplements it, or is entered into, made or given pursuant to or in accordance with its terms; (v) whenever the words “include,” “includes” or “including” are used, they shall be deemed to be followed by the words “without

 

4

 

limitation” or “but not limited to” or words of like meaning; (vi) the words “herein,” “hereof,” “hereunder” and words of like import shall refer to this APA as a whole (including its Attachments, Exhibits and Appendices); (vii) words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine or neuter, as the context indicates is appropriate; and (viii) any reference to any person in any capacity includes a reference to its permitted successors and assigns in such capacity and, in the case of any governmental authority, any person succeeding to its functions and capacities.

 

Article 2                                                Sale and Purchase of Aircraft.

 

2.1                                Sale and Purchase of Aircraft.

 

Seller shall manufacture, sell and deliver, and Customer shall purchase and take delivery of the Aircraft.

 

2.2                                Conformity with the Detailed Specifications.

 

Each Aircraft shall be manufactured to conform to the Detailed Specifications.

 

Article 3                                                Customer Support.

 

Seller shall provide customer support services to Customer pursuant to the provisions of Exhibit B .

 

Article 4                                                Prices.

 

4.1                                Base Aircraft Price.

 

The price for each Aircraft (including two Propulsion Systems) before addition of the Additional Aircraft Price and before escalation pursuant to Article 5 (the “ Base Aircraft Price ”) shall be as set forth in Attachment 1 .

 

4.2                                Additional Aircraft Price.

 

The “ Additional Aircraft Price ” of each Aircraft shall be [***]

 

4.3                                Aircraft Basic Price.

 

The price of each Aircraft before escalation pursuant to Article 5 (the “ Aircraft Basic Price ”) shall be the sum of the Base Aircraft Price and the Additional Aircraft Price of such Aircraft. The Aircraft Basic Price as of the date hereof is set forth in Attachment 1 .

 

5

 

4.4                                Initial Aircraft Basic Price.

 

The “ Initial Aircraft Basic Price ” of each Aircraft shall mean the Aircraft Basic Price of each Aircraft as of the date hereof and before escalation pursuant to Article 5, provided that [***].

 

4.5                                Aircraft Price.

 

The price of each Aircraft (the “ Aircraft Price ”) shall be the Aircraft Basic Price as adjusted in accordance with Article 5.

 

Article 5                                                Escalation Adjustment of the Aircraft Price.

 

[***]

 

Article 6                                                Taxes.

 

All prices herein (including the prices set forth in Attachment 1 and Attachment 2 ) and all amounts payable hereunder are exclusive of any and all Taxes. [***]

 

Article 7                                                Payment.

 

7.1                                Advance Payments.

 

Customer shall make Advance Payments to Seller for each Aircraft in accordance with the following payment schedule:

 

[***].

 

7.2                                Payment at Delivery.

 

Customer shall pay any unpaid balance of the Aircraft Price for each Aircraft at the time of its delivery to Customer.

 

7.3                                Form of Payment.

 

Customer shall make all payments to Seller by unconditional wire transfer of immediately available funds in United States dollars to such bank account in Japan as designated by Seller.

 

7.4                                Suspension of Work in Case of Delinquent Payments.

 

7.4.1                                If any payment due to Seller pursuant to this APA is not received by Seller on its due date, then, in addition to any other rights and remedies available to Seller, Seller shall have the right to suspend work on the production of any and all Aircraft if (i) Seller provides [***] calendar days’ prior written notice to Customer of Seller’s intent so to suspend work and (ii) payment is not received by the end of such [***] day period.

 

6

 

7.4.2                                [***].

 

7.5                                Interest on Delinquent Payments.

 

If any payment due to Seller is not received by Seller on its due date, Customer shall pay delinquent interest on the amount of such overdue payment at a per annum rate equal to the lower of (i) [***], and (ii) the maximum rate permitted by applicable law.  The amount of interest due shall be calculated from (and including) the due date of such payment to (but excluding) the date such payment is received by Seller. Seller’s right to receive interest shall be in addition to any other rights and remedies available to Seller.

 

7.6                                Monetary and Government Regulations.

 

Customer shall be responsible for complying with all monetary control regulations and for obtaining necessary governmental authorizations related to payments it makes hereunder.

 

Article 8                                                Delivery of Aircraft.

 

8.1                                [***]

 

8.2                                Notices of Delivery Dates.

 

[***]

 

8.3                                Notice of Delay in Delivery; Adjustment to Schedules.

 

[***]

 

8.4                                Place of Delivery.

 

Unless Seller otherwise agrees in writing, each Aircraft shall be delivered to (i) the Komaki Minami Plant of Mitsubishi Heavy Industries, Ltd. or (ii) any other facility in Japan designated by Seller and notified to Customer in writing at least [***] days prior to the delivery date of such Aircraft.

 

Article 9                                                Excusable Delay.

 

9.1                                Excusable Delay.

 

Seller shall not be liable for any delay in the delivery of an Aircraft resulting from an Excusable Cause (an “ Excusable Delay ”), [***] “ Excusable Cause ” shall have the meaning set forth below:

 

[***]

 

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9.2                                [***].

 

9.3                                Effect of Termination.

 

The termination of this APA under [***] with respect to the affected Aircraft will discharge any and all obligations and liabilities of the parties hereto with respect to such Aircraft and [***].

 

Article 10                                         Non-Excusable Delay.

 

10.1                         Non-Excusable Delay.

 

A “ Non-Excusable Delay ” shall mean [***].

 

10.2                         Liquidated Damages for Non-Excusable Delay.

 

[***]

 

10.3                         [***]

 

10.4                         Effect of Termination.

 

[***]

 

10.5                         Exclusivity of Liquidated Damages; Waivers

 

[***]

 

Article 11                                         Customer Information.

 

11.1                         Information to be Provided.

 

During the manufacture of the Aircraft, Customer shall provide to Seller all information as Seller may reasonably request to manufacture the Aircraft. Seller shall notify Customer of the specific information and the date by which it is required, and Customer shall comply with such notice.

 

11.2                         Information Statement.

 

Without limiting the generality of Article 11.1, Customer shall provide to Seller each item of information listed in Attachment 5 on or before the respective due date therefor specified in Attachment 5 .

 

11.3                         Failure to Comply.

 

[***]

 

8

 

Article 12                                         Regulatory Requirements and Certificates.

 

12.1                         Certificates.

 

12.1.1                         Seller shall obtain Type Certificates for the type of aircraft purchased under this APA from the JCAB, the FAA and the EASA.

 

12.1.2                         Seller shall (i) manufacture each Aircraft to conform to the Type Certificates for the specific type of the Aircraft, (ii) obtain either an Airworthiness Certificate or an Export Certificate of Airworthiness from the JCAB for each Aircraft, and (iii) at the time of delivery of each Aircraft, furnish to Customer (at no additional charge to Customer) such Airworthiness Certificate or an Export Certificate of Airworthiness (as applicable) issued by the JCAB.

 

12.1.3                         [***].

 

12.2                         Special Aircraft Test Requirements.

 

Seller shall, without payment or other liability, and without reduction in the Aircraft Price, but subject to Customer’s consent (which shall not be unreasonably withheld or delayed), be entitled to use the Aircraft before its delivery to Customer to obtain the Type Certificate and an Airworthiness Certificate or an Export Certificate of Airworthiness, and such use shall not prejudice Customer’s obligation to accept delivery of such Aircraft.

 

12.3                         Customer’s Responsibility Regarding Certificates.

 

[***]

 

Article 13                                         Changes to the Aircraft.

 

13.1                         Manufacturer Changes.

 

13.1.1                         A “ Manufacturer Change ” is any change to the Aircraft, data relating to the Aircraft or testing of the Aircraft that, in each case, is (i) required by the JCAB, the FAA or the EASA to obtain the Type Certificates or (ii) required by the JCAB to obtain an Airworthiness Certificate or an Export Certificate of Airworthiness.

 

[***]

 

13.2                         Development Changes.

 

A “ Development Change ” is a change to an Aircraft that [***]

 

13.3                         Customer Changes.

 

13.3.1                         A “ Customer Change ” is any change to the Aircraft or testing of the Aircraft that [***]

 

9

 

13.3.2                         Customer shall notify Seller in writing of its selection of any BFE no later than the applicable time limit for the selection of such BFE described in the Buyer Furnished Equipment List set forth in Part III of Attachment 4 .

 

13.3.3                         Customer shall notify Seller in writing of its selection of any Optional Features no later than the applicable time limit for selection of such Optional Features described in the MRJ Option Features List set forth in Part II of Attachment 4 .

 

13.3.4                         [***]

 

13.3.5                         Each Customer Change shall become effective and binding on the parties hereto when a written agreement regarding such Customer Change is signed by duly authorized representatives of both parties hereto. Upon such Customer Change becoming effective:

 

[***]

 

(iv)                 shall, in each case, be automatically incorporated into the terms of this APA or any other agreements with respect to the relevant Aircraft.

 

13.4                         Changes to Detailed Specifications.

 

The Detailed Specifications for each Aircraft may be amended (i) by Seller to reflect the incorporation of Manufacturer Changes, Development Changes and Customer Changes pursuant to Articles 13.1, 13.2 and 13.3 or (ii) by the written agreement of the parties hereto. After making any such amendment to the Detailed Specifications and incorporating any changes required thereby, Seller shall deliver to Customer a copy of such amendment, which shall set forth in detail, to the extent applicable, the particular changes to be made and any effect thereof on performance, weight, balance, [***], the Aircraft Basic Price, and the Aircraft Price; provided that such amendment need not include any such information that (a) has been previously provided to Customer in connection with such change or (b) is included in another document previously provided to Customer and incorporated by reference in such amendment.

 

Article 14                                         Acceptance and Delivery

 

14.1                         Ground Inspection.

 

14.1.1                         Seller shall conduct a ground inspection of each Aircraft (the “ Ground Inspection ”) in accordance with the Ground Inspection Protocol (defined below).  The Ground Inspection for each Aircraft shall be conducted during normal business hours during a period not exceeding [***] consecutive Business Days (as specified by Seller) falling prior to the delivery of such Aircraft.  Customer may have up to [***] representatives (including the airworthiness inspectors referred to in Article 14.1.4) attend the Ground Inspection.

 

10

 

14.1.2                         Seller shall provide to Customer, at least [***] calendar days prior to the first day of the Scheduled Delivery Month of the first Aircraft, the procedures, subject matter and acceptance criteria for the Ground Inspection (the “ Ground Inspection Protocol ”).

 

14.1.3                         Seller shall notify Customer of the Ground Inspection period for each Aircraft at least [***] calendar days prior to the first day of such period.  Within [***] calendar days after the receipt of such notice, Customer shall notify Seller as to whether or not it will attend such Ground Inspection.

 

14.1.4                         Customer may have airworthiness inspectors of the Civil Aviation Authority of the country of import or registration attend such ground inspections as Customer designees. Such airworthiness inspectors shall be deemed as representatives of Customer for the purpose of Articles 14.1.1 and 14.3.

 

14.2                         Acceptance Flights.

 

14.2.1                         Prior to the delivery of each Aircraft, Seller shall fly such Aircraft (the “ Acceptance Flight ”) up to a maximum of [***] unless additional hours are necessary to demonstrate to Customer the performance of the Aircraft and its equipment in accordance with the Acceptance Flight Protocol (defined below). Up to [***] representatives of Customer (including the airworthiness inspectors referred to in Article 14.2.4) may attend the Acceptance Flight as observers.

 

14.2.2                         Seller shall provide to Customer, at least [***] calendar days prior to the first day of the Scheduled Delivery Month of the first Aircraft, the procedures, subject matter and acceptance criteria for the Acceptance Flight (the “ Acceptance Flight Protocol ”).

 

14.2.3                         Customer may designate a properly licensed employee of Customer to co-pilot an Aircraft during its Acceptance Flight; provided that (i) Customer’s designated co-pilot has successfully completed the Seller pilot training program for the applicable Aircraft and (ii) Seller’s employee pilots the Aircraft.

 

14.2.4                         Customer may have airworthiness inspectors of the Civil Aviation Authority of the country of import or registration attend the Acceptance Flight for each Aircraft. Such airworthiness inspectors shall be deemed as representatives of Customer for the purpose of Articles 14.2.1 and 14.3.

 

14.3                         Representatives of Customer during the Ground Inspection and Acceptance Flights.

 

14.3.1                         During the period from the commencement of the Ground Inspection period described in Article 14.1 through the completion of the Acceptance Flight, Seller shall furnish, at its own expense, suitable office space and equipment for up to [***] representatives of Customer, to facilitate their attendance at the Ground Inspection or the Acceptance Flight or both, in or

 

11

 

near the facility at which the Aircraft are being assembled. Such office space may be used by such representatives during normal working hours. If Seller provides telecommunications facilities (e.g., telephone line, facsimile, Internet) to such representatives, Customer shall bear the costs for the use thereof by such representatives.

 

14.3.2                         [***].

 

14.4                         Acceptance.

 

14.4.1                         If the Ground Inspection and Acceptance Flight of an Aircraft (i) demonstrate that such Aircraft satisfies each acceptance criterion specified in the Ground Inspection Protocol and the Acceptance Flight Protocol, as applicable, and (ii) do not reveal any non-conformity with the applicable Type Certificate or Detailed Specifications for such Aircraft [***], then Customer shall (a) sign and deliver to Seller a Certificate of Acceptance and pay the remaining balance of the Aircraft Price in respect of such Aircraft on or before the Scheduled Delivery Date notified by Seller in accordance with Article 8.2.3 and (b) accept and take delivery of such Aircraft on the Scheduled Delivery Date. [***].

 

14.4.2                         If the Ground Inspection and Acceptance Flight of an Aircraft (i) demonstrates that such Aircraft fails to satisfy any of the acceptance criteria specified in the Ground Inspection Protocol and the Acceptance Flight Protocol, as applicable, or (ii) reveal any non-conformity with the applicable Type Certificate or Detailed Specifications for such Aircraft (other than [***], then Customer may refuse to accept delivery of such Aircraft, provided that Customer notifies Seller in writing of such refusal promptly after the completion of such Ground Inspection or Acceptance Flight (but in no event later than the Scheduled Delivery Date notified by Seller in accordance with Article 8.2.3 hereof) and provides in such notice a reasonably detailed description of its reasons for refusing acceptance. Seller shall promptly rectify, at its sole cost and expense, any and all of the items specified by Customer in such notice (other than [***] to Seller.  Customer may refuse acceptance of the delivery of such Aircraft until each such reason has been corrected by Seller.

 

14.4.3                         [***].

 

14.5                         Delay in Accepting Delivery.

 

If Customer fails or refuses to sign and deliver the Certificate of Acceptance and to accept delivery of the Aircraft after all conditions to such delivery have been met (including the cases [***]), (i) the Aircraft shall be deemed delivered (even if Customer does not take possession) and (ii) Customer shall (a) be deemed to have signed and delivered the Certificate of Acceptance and to have accepted delivery of the Aircraft, and (b) immediately pay the balance of the Aircraft Price and reimburse Seller on demand for all costs incurred by Seller as a result of such delay (including costs to store and maintain the Aircraft).

 

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14.6                         Bill of Sale.

 

At the time of delivery, Seller shall provide Customer (or its assignee) with a bill of sale conveying title to each Aircraft, free of any and all encumbrances, substantially in the form of Appendix II , in exchange for the payment of the remaining balance of the Aircraft Price and delivery of the Certificate of Acceptance of such delivered Aircraft, subject to Article 20.2 below.

 

14.7                         Aircraft Radio Station License.

 

At the time of delivery, Customer shall provide Seller with a copy of its Aircraft radio station license to be placed on board the Aircraft following the delivery.

 

14.8                         Ferry Flight.

 

Customer shall be responsible for, and shall bear all costs and expenses incurred in connection with, the ferry flight from the country where the Aircraft is delivered and any subsequent flights.  Such responsibilities of Customer shall include (i) compliance with all requisite governmental procedures (such as export custom clearances and operational permission) and (ii) directly making arrangements for the supply of fuel and oil, food, beverage, plates, cups, towels, toilet tissue and other consumables, required for such flights.

 

Article 15                                         Risk Allocation.

 

15.1                         Transfer of Title / Risk of Loss.

 

15.1.1                         Subject to Article 20.2, upon delivery by Seller of each Aircraft, title to such Aircraft shall transfer to Customer free and clear of all encumbrances provided that Customer has (i) paid the Aircraft Price in full and (ii) delivered a signed Certificate of Acceptance for the delivered Aircraft.

 

15.1.2                         Subject to Article 15.1.3, the risk of loss or damage with respect to each Aircraft shall transfer to Customer upon delivery of such Aircraft.

 

15.1.3                         If Customer does not pay the balance of the Aircraft Price due in accordance with Article 7.2 for any Aircraft, then, in addition to the other rights and remedies available to Seller, (i) Seller may withhold the delivery of the Aircraft and retain title to the Aircraft until the receipt of the unpaid balance in full, (ii) the risk of loss or damage shall transfer to Customer immediately and (iii) Customer shall indemnify Seller against any and all costs resulting from such delinquent payment (including costs for storing and maintaining the Aircraft until the unpaid balance is paid in full).

 

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Article 16                                         Product Assurance.

 

Exhibit C sets forth the warranties and other product assurance obligations of Seller with respect to Seller Parts, Technical Information, Service Life Components (as defined in Part 1 of Exhibit C ) and Supplier Parts.

 

Article 17                                         Indemnification.

 

17.1                         By Seller.

 

17.1.1                         Seller shall indemnify, defend and hold harmless each Customer Party from and against all claims, suits, actions, liabilities, damages and costs (including court costs and reasonable attorneys’ fees) arising out of third party claims of actual or alleged infringement, by any Aircraft or any system, accessory, equipment or part (item) installed thereon at the time of Aircraft delivery, of any patent issued under the laws of any country in which Customer lawfully operates the Aircraft (the “ Countries ”), subject to the following conditions and limitations:

 

[***].

 

17.1.2                         Seller shall indemnify, defend and hold harmless each Customer Party from and against all claims, suits, actions, liabilities, damages and costs (including court costs and reasonable attorneys’ fees) [***]:

 

[***]

 

(iii)               Seller may, at its option, replace any infringing or allegedly infringing items with a non-infringing equivalent.

 

17.1.3                         Seller shall indemnify, defend and hold harmless each Customer Party from and against any and all claims, suits, actions, liabilities, losses, damages and costs (including court costs and reasonable attorneys’ fees) arising out of, relating to or resulting from [***].

 

17.2                         By Customer.

 

17.2.1                         Customer shall be solely liable for and will indemnify, defend and hold harmless each Seller Party from and against claims, suits, actions, liabilities, damages and costs, including court costs and reasonable attorneys’ fees (including costs and expenses of enforcing this indemnity, when arising from third party claims for personal injury or death or for property damage or otherwise), whether in contract or in tort or otherwise, caused by [***]

 

17.2.2                         Customer shall indemnify, defend and hold harmless Seller for [***]

 

17.2.3                         Customer shall indemnify, defend and hold harmless each Seller Party from and against any and all claims, suits, actions, liabilities, losses, damages and costs (including court costs and reasonable attorneys’ fees)

 

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arising out of, relating to or resulting from bodily injury to or the death of any of Customer’s employees that occur from any [***].

 

17.3                         Notice and Defense of Claims.

 

17.3.1                         If any claim (including any legal claim made in a lawsuit or an arbitration) is made or brought against a party hereto or person entitled to indemnification under this APA (“ Indemnitee ”) for damages for which liability has been assumed by the other party hereto under this APA (“ Indemnitor ”), the Indemnitee shall give notice to the Indemnitor within [***] calendar days after Indemnitee receives notice of such claim.  The Indemnitor shall assume and conduct the defense or settlement of such claim as the Indemnitor deems prudent; provided that with respect to [***]. Notice of such claim shall be accompanied by all such information pertinent to the matter as is reasonably available to the Indemnitee, and the Indemnitee shall provide such cooperation (including contest, defense or settlement of the claim in the name of the Indemnitee but at the direction and cost of the Indemnitor) as the Indemnitor or its counsel may reasonably request at the expense of the Indemnitor. The failure of an Indemnitee to provide notice to the Indemnitor within such [***] day period shall not affect the obligation of the Indemnitor to indemnify unless the contest, defense, settlement or prosecution of an applicable claim is materially and adversely affected by such delay of notice to the Indemnitor.

 

17.3.2                         In the event that the Indemnitor does not agree in writing to assume the defense of any claim notified to it under Article 17.3.1 above within [***] calendar days after receipt of such notice, the Indemnitee shall have the right to (i) proceed with the defense or settlement of such claim as it deems prudent and (ii) make a claim against the Indemnitor for any judgments, settlements, costs or expenses, including reasonable attorneys’ fees. Furthermore, in this event, the Indemnitor shall be deemed to have waived any objection or defense to the Indemnitee’s claim based on the lack of reasonableness of any settlement.

 

Article 18                                         Assignment, Resale or Lease of Aircraft.

 

18.1                         Assignment.

 

This APA is for the benefit of each of the parties hereto only. No rights or duties of either party hereto may be assigned, delegated or novated, and neither party shall enter into an agreement to assign, delegate or novate its rights or duties hereunder, except that either party hereto may assign its rights and obligations hereunder to a corporation or other legal entity, such as a limited liability company, that (i) results from any merger or reorganization of such party or (ii) acquires substantially all the assets of such party; provided that such corporation or other legal entity executes a written agreement with the other party to this APA to comply with all applicable terms and conditions of this APA. In addition, (a) all of the rights and obligations of either party under this APA with respect to all or specific Aircraft may be assigned

 

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by such party to a third party designated by such party, subject to a written consent from the non-assigning party, such consent not to be unreasonably withheld or delayed, and subject to the assigning party remaining jointly and severally liable together with the assignee party for all obligations delegated to such assignee party, and (b) all of the rights and obligations of either party under this APA with respect to all or specific Aircraft may be assigned by such party to a Subsidiary of such party with prior written notice to but without the consent of the other party, provided that such assigning party shall remain jointly and severally liable together with such Subsidiary for all obligations delegated to such Subsidiary. In the event of any assignment pursuant to clause (b) of this Article 18.1, the rights so assigned may be further assigned as provided in this Article 18; provided that the original assigning party and the assigning Subsidiary shall remain jointly and severally liable for all obligations delegated to such Subsidiary by the original assigning party.  Any attempted assignment by Customer or Seller in violation of the foregoing shall be null and void.

 

18.2                         Support for Customer’s Financing.

 

Subject to the conditions set forth in Articles 18.3 and 18.4, Seller shall, at Customer’s expense, take any action reasonably required by Customer for the purpose of causing an Aircraft, at time of its delivery, to be subject to an equipment trust, conditional sale, security interest, lease, or other arrangement for the financing by Customer of such Aircraft. However, no such action shall (i) require Seller to divest itself of title to or possession of the Aircraft until delivery of and completion of payment for the Aircraft or (ii) cause any other disadvantages to Seller.

 

18.3                         Sale by Customer after Delivery.

 

Notwithstanding Article 18.1, if Customer sells an Aircraft (including any sale and lease-back for financing purposes) to a third party purchaser of such Aircraft either contemporaneously with or after the delivery to, and acceptance by, Customer of such Aircraft, then all of Customer’s rights with respect to such Aircraft under this APA may be assigned to such third party purchaser of such Aircraft, provided that (i) such third party purchaser (other than a Subsidiary of Customer) agrees in writing to be bound by and to comply with all applicable terms and conditions of this APA and to assume any outstanding obligations of Customer under this APA with respect to such Aircraft or ancillary to the rights assigned to such third party purchaser, including those terms, conditions and obligations set forth in Articles 6, 17.2, 17.3, 18, 20, 21, 22, 23, 24 and 25, Exhibit B and Exhibit C, (ii) Customer notifies Seller in writing prior to such sale and (iii) Customer agrees in writing to be held jointly and severally liable with such third party purchaser (including a Subsidiary of Customer) with respect to the compliance with the terms and conditions of this APA.

 

18.4        Lease by Customer after Delivery.

 

Notwithstanding the lease of an Aircraft by Customer after (or contemporaneously with) the delivery to, and acceptance by, Customer of such Aircraft, the rights and obligations of Customer under this APA shall remain with Customer unless

 

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Customer assigns such rights or obligations to the third party lessee with Seller’s prior written consent, which shall not be unreasonably withheld.

 

18.5        No Increase in Liability.

 

No action taken by Customer or Seller relating to the resale or lease of any Aircraft or the assignment of Customer’s rights under th is APA shall subject Seller to any liability beyond that which is set forth in th is APA or modify in any way Seller’s obligations under th is APA .

 

18.6                   Assignment of Right to Receive Money.

 

Notwithstanding Article 18.1, Seller may assign any of its rights to receive payments hereunder without the prior consent of Customer.

 

Article 19                                         Termination.

 

19.1                         Termination by Either Party.

 

Either party hereto may immediately terminate this APA with respect to any or all of the Aircraft before delivery by providing written notice to the other party hereto setting forth the reason for such termination if the other party hereto:

 

19.1.1                         fails to perform or comply in any material respect with any material agreement or covenant contained herein, unless within [***] calendar days following written notice of such failure such other party cures such failure or submits a bona fide notice of dispute regarding such failure pursuant to Article 24.2.1;

 

19.1.2                         ceases doing business as a going concern;

 

19.1.3                         suspends all or substantially all of its business operations and the same are not re-commenced within [***] calendar days;

 

19.1.4                         makes an assignment for the benefit of creditors;

 

19.1.5                         becomes insolvent, generally does not pay its debts as they become due, or admits in writing its inability to pay its debts;

 

19.1.6                         (i) petitions for or acquiesces to the appointment of any receiver, trustee or similar officer to liquidate or conserve its business or any substantial part of its assets, (ii) commences any legal proceeding such as bankruptcy, reorganization, readjustment of debt, dissolution, or liquidation available for the relief of financially distressed debtors or (iii) becomes the object of any such proceeding unless the proceeding is dismissed or stayed within a reasonable period, not to exceed [***] calendar days; or

 

19.1.7                         is issued or has levied against it or any significant part of its property a writ of attachment (or is subject to an execution or any similar process, including procedures for collection of tax delinquency), which is not

 

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released, stayed, bonded or vacated within [***] calendar days after such issue or levy,

 

[***].

 

19.2                         Termination by Seller for Non-Payment.

 

In addition to its right to terminate under Article 19.1 (and, accordingly, without being subject to the [***] calendar day cure period under Article 19.1.1), Seller may immediately terminate this APA with respect to any or all of the Aircraft, by delivery of written notice to Customer, if Customer defaults in the payment of any portion of an Aircraft Price for any Aircraft (including, for the avoidance of doubt, any Advance Payment) as and when due and payable under this APA.

 

19.3                         Seller’s Remedies.

 

19.3.1                         In the event that Seller terminates this APA with respect to an Aircraft for any of the reasons stated in Article 19.1 or 19.2:

 

[***]

 

19.3.2                         Seller’s rights and remedies under this Article 19.3 constitute Seller’s exclusive rights and remedies with respect to termination of this APA by Seller for the reasons stated in Articles 19.1 and 19.2.

 

19.4                         Customer’s Remedies.

 

19.4.1                         [***].

 

19.4.2                         Customer’s rights and remedies stated in this Article 19 constitute Customer’s sole and exclusive rights and remedies with respect to termination by Customer of this APA for the reasons stated under Article 19.1.

 

19.5                         Survival.

 

Articles 1, 4, 5, 6, 7.1, 7.3, 7.5, 7.6, 9.3, 10.4, 15.1.3, 17, 18.1, 18.5, 19.3, 19.3.2, 19.4.2 and 20 through 25 shall survive termination of this APA for whatever reason with respect to the Cancelled Aircraft. For the avoidance of doubt, all terms and conditions of this APA with respect to any Aircraft other than the Cancelled Aircraft will continue to remain in full force and effect.

 

Article 20                                         Insurance.

 

20.1                         Insurance Requirements.

 

As long as the Aircraft is operated by Customer, a Subsidiary of Customer or a lessee of Customer, Customer shall (or shall cause such Subsidiary of Customer or such lessee of Customer, as applicable, that operates the Aircraft to) purchase and maintain aviation insurance reasonably acceptable to Seller in accordance with

 

18

 

prevailing US aviation industry standards for comparable aircraft in commercial operation in the United States covering at least (a) hull all risks, (b) hull war and allied perils and (c) airline liabilities. Such coverage shall have a combined single limit of no less [***] for bodily injury and property damage, per occurrence per each Aircraft. [***]

 

20.2                         Certificate of Insurance.

 

20.2.1                         At least [***] calendar days prior to the delivery date of each Aircraft, Customer shall provide to Seller certificates of insurance with respect to insurance coverage of such Aircraft, substantially in a form approved by Seller as sufficient to confirm Customer’s compliance with the preceding Article 20.1, from a licensed insurance broker or insurer experienced in the field of aviation insurance.

 

20.2.2                         If Customer fails to provide to Seller such certificate of insurance, Seller may withhold delivery of such Aircraft until the receipt of such certificate of insurance, provided that notwithstanding anything to the contrary in this APA (i) the Aircraft shall be deemed delivered on the delivery date despite the fact that possession (as well as delivery of the bill of sale) is withheld until the delivery of certificate of insurance and (ii) Customer shall (a) be deemed to have signed and delivered the Certificate of Acceptance and to have accepted delivery of the Aircraft, and (b) immediately pay the balance of the Aircraft Price and reimburse Seller upon demand for all costs incurred by Seller as a result of such delay (e.g., costs of storing and maintaining of the Aircraft).

 

20.2.3                         Upon request of Seller, annual renewal certificates with respect to all insurance required hereunder shall be submitted to Seller before the expiration of the policy periods. The failure of Seller to demand compliance with this Article 20.2 in any year shall not in any way relieve Customer of its obligations hereunder nor constitute a waiver by Seller of these obligations.

 

20.3                         Noncompliance with Insurance Requirements.

 

Customer assumes liability for hull all risks, hull war and allied perils and airline liabilities for which insurance is required under Article 20.1 notwithstanding any failure by Customer to comply with any of the insurance requirements set forth therein [***].

 

Article 21                                         Limitation of Liability.

 

21.1                         Limitation of Liability.

 

21.1.1                         EXCEPT IN THE CASE OF FRAUD OR INTENTIONAL MISREPRESENTATION BY A SELLER PARTY, THIS APA SETS FORTH THE EXCLUSIVE WARRANTIES, LIABILITIES AND OBLIGATIONS OF SELLER AND THE EXCLUSIVE REMEDIES

 

19

 

AVAILABLE TO CUSTOMER IN SUBSTITUTION FOR ALL OTHER REMEDIES OR RIGHTS TO WHICH CUSTOMER MAY OTHERWISE BE ENTITLED, AND CUSTOMER  (ON BEHALF OF ITSELF AND EACH OTHER CUSTOMER PARTY) HEREBY WAIVES, RELEASES AND RENOUNCES, (I) ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER PARTIES AND (II) ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF EACH CUSTOMER PARTY (KNOWN OR UNKNOWN) AGAINST EACH SELLER PARTY, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE, WITH RESPECT TO ANY MATTERS ARISING OUT OF OR IN CONNECTION WITH THIS APA.

 

21.1.2                         WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND EXCEPT IN THE CASE OF FRAUD OR INTENTIONAL MISREPRESENTATION BY A SELLER PARTY, THIS APA SETS FORTH THE EXCLUSIVE WARRANTIES, LIABILITIES AND OBLIGATIONS OF SELLER AND THE EXCLUSIVE REMEDIES AVAILABLE TO CUSTOMER, IN SUBSTITUTION FOR ALL OTHER REMEDIES OR RIGHTS TO WHICH CUSTOMER MAY OTHERWISE BE ENTITLED, WITH RESPECT TO ANY MATTERS ARISING OUT OF OR IN CONNECTION WITH ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE DELIVERED OR PROVIDED UNDER THIS APA, AND CUSTOMER (ON BEHALF OF ITSELF AND EACH OTHER CUSTOMER PARTY) HEREBY WAIVES, RELEASES AND RENOUNCES, (I) ALL OTHER WARRANTIES, OBLIGATIONS, GUARANTEES AND LIABILITIES OF THE SELLER PARTIES AND (II) ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF EACH CUSTOMER PARTY (KNOWN OR UNKNOWN) AGAINST EACH SELLER PARTY, WITH RESPECT TO ANY MATTERS ARISING OUT OF OR IN CONNECTION WITH ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE DELIVERED OR PROVIDED UNDER THIS APA, WHETHER EXPRESS OR IMPLIED BY CONTRACT, TORT, OR STATUTORY LAW OR OTHERWISE, INCLUDING ANY:

 

(i)                        IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY GENERAL OR PARTICULAR PURPOSE, OR OF NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS;

 

(ii)                     IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE;

 

(iii)                  RIGHT, CLAIM OR REMEDY FOR BREACH OF CONTRACT;

 

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(iv)                 RIGHT, CLAIM OR REMEDY FOR TORT, UNDER ANY THEORY OF LIABILITY, HOWEVER ALLEGED, INCLUDING ACTIONS OR CLAIMS FOR NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), IMPLIED WARRANTY, STRICT LIABILITY OR FAILURE TO WARN; AND

 

(v)                    RIGHT, CLAIM OR REMEDY FOR LOSS OF, OR DAMAGE OF ANY KIND, TO ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY OR PART.

 

21.1.3                         CUSTOMER ACKNOWLEDGES AND AGREES THAT, SUBJECT TO THE INTRODUCTORY EXCEPTION IN ARTICLE 21.1.1 AND ARTICLE 21.1.2, THE RIGHTS, WARRANTIES AND REMEDIES PROVIDED FOR IN THIS APA ARE ADEQUATE AND SUFFICIENT TO PROTECT CUSTOMER FROM ANY DEFECT OR NONCONFORMITY OR PROBLEM OF ANY KIND IN ANY AIRCRAFT, COMPONENT, EQUIPMENT, ACCESSORY, PART OR SERVICE UNDER THIS APA.

 

21.1.4                         [***]

 

21.2                         Exclusion of Consequential and other Damages.

 

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS APA, SELLER SHALL HAVE NO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY OR INDEMNITY), TORT (INCLUDING ACTIVE, PASSIVE OR IMPUTED NEGLIGENCE OR PRODUCT LIABILITY), OR OTHERWISE, FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, OR FOR ANY LOSS OF USE, REVENUE OR PROFIT, ARISING OUT OF OR IN CONNECTION WITH THIS APA, INCLUDING ANY AIRCRAFT, GOODS OR SERVICES CONTEMPLATED OR PROVIDED HEREUNDER.

 

21.3                         Contribution Toward Third Party Claims.

 

CLAIMS BY CUSTOMER AGAINST SELLER FOR CONTRIBUTION TOWARD THIRD PARTY BODILY INJURY OR PROPERTY DAMAGE CLAIMS ARE LIMITED TO THE EXTENT OF SELLER’S PERCENTAGE OF FAULT AS DETERMINED BY THE TRIER OF FACT, INCLUDING AN ARBITRATOR, AND LIMITED TO SUCH PERCENTAGE OF FAULT IRRESPECTIVE OF PRINCIPLES OF JOINT AND SEVERAL LIABILITY, CO-TORTFEASOR LIABILITY, AND JUDGMENT CO-TORTFEASOR LIABILITY.

 

21.4                         No Duplicate Remedies.

 

Seller shall not be obligated to provide to Customer any remedy in duplicate for matters covered by any other remedy which has been provided to Customer (i) by

 

21

 

Seller under any contracts between the parties hereto, or (ii) by any Supplier, vendor, contractors or subcontractors of Seller.

 

Article 22                                         Notices.

 

22.1                         Means of Communication.

 

22.1.1                         Any communication between Seller and Customer under this APA shall be made in the English language, which shall be the official text of this APA.

 

22.1.2                         In any case where any notice or other communication is required or permitted to be given under this APA, such notice or communication shall be made in writing and shall be:

 

(i)                        personally delivered with an immediate confirmation of the receipt thereof;

 

(ii)                     sent by registered airmail;

 

(iii)                  sent by overnight courier; or

 

(iv)                 transmitted by facsimile, or the equivalent thereof.

 

22.2                         Addresses of the Parties.

 

22.2.1                         All notices between the parties hereto shall be addressed as follows:

 

Customer:		SKYWEST, INC.
		444 South River Road, St. George, Utah 84790
		Attention: CFO and Treasurer
		Telephone: (435) 634-3212
		Facsimile: (435) 634-3305
Seller:		MITSUBISHI AIRCRAFT CORPORATION
		2-15, Oye-cho, Minato-ku, Nagoya-shi, Aichi-ken, 455-8555, Japan
		Attention: Senior Vice President, Sales and Marketing
		Telephone: 81-52-611-3165

 

 

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Facsimile: 81-52-611-2217

 

22.2.2                         If there is any change in the address of a party hereto where notices shall be sent, such party shall immediately notify the other party hereto of the change in accordance with this Article 22. The new address so notified shall become effective only upon receipt of the notice by the other party hereto.

 

Article 23                                         Confidentiality.

 

23.1                         Confidential Information.

 

The parties hereto shall maintain the terms and conditions of this APA and any confidential materials and information disclosed hereunder (including by Seller providing Customer or any of its Representatives (as defined below) access to Seller’s or its designees’ facilities) (“ Confidential Information ”) strictly confidential and shall not use such Confidential Information for any purpose other than in connection with the performance of this APA. Notwithstanding the foregoing, each party hereto may disclose Confidential Information of the other party hereto to its directors, officers, employees, advisors, consultants and other representatives, and its parent company and subsidiaries (if any) and their respective directors, officers, employees, advisors, consultants, suppliers, subcontractors and other representatives (all of the foregoing, collectively, “ Representatives ”), in each case, who need to know such Confidential Information in connection with the performance of this APA, provided that such Representatives are bound by confidentially obligations and restrictions on use no less stringent than those provided herein. In addition, Customer may disclose Confidential Information to any assignee in the context of an applicable assignment; provided that Seller and such assignee shall first have entered into an agreement including confidentially obligations and restrictions on use no less stringent than those provided herein prior to Customer’s disclosure of Confidential Information to such assignee. Each party hereto shall be liable hereunder for breaches of the confidentiality obligations and restrictions on use by any of its Representatives as if such Representatives were parties to this APA. The confidentiality obligations under this Article 23 shall survive any termination of this APA.

 

23.2                         Disclosure of Confidential Information.

 

Notwithstanding the foregoing, either party hereto may disclose the contents of this APA to the extent legally required under applicable laws and regulations (e.g., timely disclosure requirements under the securities exchange laws, and governmental filing for requisite approvals to implement this APA), subject to the following conditions:

 

23.2.1                         the party hereto who makes such disclosure shall use commercially reasonable efforts to limit the disclosure of the contents of this APA and

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shall make applications necessary or advisable to implement the foregoing;

 

23.2.2                         with respect to any public disclosure or filing, the party hereto who makes such disclosure agrees to (i) submit to the other party hereto a copy of the proposed document to be filed or disclosed, (ii) give the other party hereto a reasonable period of time to review and comment upon such document and (iii) consider in good faith such comments made by the non-disclosing party; and the parties hereto shall use commercially reasonable efforts to provide written notice to each other before the making of any public disclosure or filing, permitted hereunder, of any material, competitively sensitive portions of this APA (including any provisions related to any deviations from the Base Aircraft Price), provided that any required notice hereunder that is not given prior to the making of the public disclosure or filing shall be given as soon as reasonably practical thereafter and such notice shall satisfy the requirements of this Article 23.2 with respect to such public disclosure or filing.  Notwithstanding Article 22, any notice required hereunder may be given by email to the respective addressee set forth in Article 22.2.1 (such email address to be provided), which may be updated or changed by the parties in accordance with Article 22.2.2.

 

23.3                         Pre-Agreement Confidential Information.

 

Information disclosed between the parties prior to the execution of this APA that would constitute Confidential Information hereunder if it were disclosed after the execution of this APA (the “ Pre-Agreement Confidential Information ”) shall be deemed as Confidential Information and protected under this Article 23.  Information other than the Pre-Agreement Confidential Information disclosed under any undertakings of confidentiality given by either of the parties hereto prior to the date of this APA shall continue to be protected under such undertakings in accordance with their respective terms, and the above provisions of this Article 23 shall not in any way modify such undertakings.

 

Article 24                                         Governing Law and Dispute Resolution.

 

24.1                         Governing La w .

 

This APA and its performance shall be governed by and interpreted in accordance with the internal laws of the state of New York, USA (as permitted by Section 5-1401 of the New York General Obligations Law (or any similar successor provision)), without giving effect to any choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the state of New York to the rights and duties of the parties hereto. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

 

24

 

24.2                         Dispute Resolution.

 

24.2.1                        To the extent that any dispute, controversy or difference between the parties hereto arising out of, relating to, or in connection with this APA cannot be solved amicably, either party hereto may provide a notice of dispute to the other party.

 

24.2.2                         Upon receipt of the notice referenced in Article 24.2.1, the parties hereto shall attempt to resolve such dispute, controversy or difference amicably through good faith discussions.

 

24.2.3                         In the event that any such dispute, controversy or difference by the parties hereto cannot be resolved amicably within [***] days after receipt of the notice referenced in Article 24.2.1, either party may submit such dispute, controversy or difference to be finally settled by arbitration. The arbitration shall take place in New York, New York, USA, in accordance with the then-current Commercial Arbitration Rules of International Chamber of Commerce. Any arbitration award shall be final and binding upon the parties hereto, and judgment upon the arbitration award may be entered in any court having jurisdiction over any party hereto.

 

24.2.4                         The arbitration panel shall have the authority to award any remedy or relief that would be available from a court of law, including specific performance (including as to the provisions of this Article 24.2), injunctive relief and other equitable remedies. Notwithstanding the foregoing, the parties hereto shall have the right to seek in a court of proper jurisdiction provisional relief, including a temporary restraining order or a preliminary injunction, pending resolution of the arbitration.

 

24.2.5                         The prevailing party in any arbitration or other legal proceeding (including to enforce any arbitration decision) between the parties hereto in connection with this APA or any other agreements entered into concurrently herewith shall be entitled to reasonable, actual attorneys’ fees paid or incurred by such prevailing party in connection therewith.

 

24.2.6                         All arbitration shall be conducted in the English language. The number of arbitrators shall be three (3).

 

24.2.7                         If there exists a bona fide dispute over a certain obligation under this APA or any other agreements related or supplemental to this APA (a “ Disputed Obligation ”), the obligor of such Disputed Obligation (the “ Disputing Obligor ”) may withhold performance of such Disputed Obligation until the dispute is finally settled by the arbitration or settlement between the parties hereto (the “ Withholding Period ”). [***]

 

25

 

Article 25                                         Miscellaneous.

 

25.1                         Government Approval.

 

The parties hereto shall assist each other in obtaining any governmental consents or approvals required to effect the sale and delivery of the Aircraft under this APA.

 

25.2                         Subcontractors.

 

Seller may use one or more subcontractors in the performance of its obligations under this APA or any other agreements in connection with the Aircraft.

 

25.3                         Waiver/Severability.

 

25.3.1                         No failure of either party hereto at any time in requiring the performance by the other party hereto of any provision hereof shall prejudice the right to require full performance of the same provision at any time thereafter. No waiver by either party hereto of a breach of any provision hereof shall constitute a waiver of any succeeding breach of the same or any other provision or constitute a waiver of the provision itself.

 

25.3.2                         If any provision of this APA is held unlawful or otherwise ineffective by a court of competent jurisdiction or an arbitration panel, (i) such provision will be fully severable, (ii) this APA will be construed and enforced as if such illegal, invalid or unenforceable provision has never comprised a part thereof, (iii) the remaining provisions of this APA will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance herefrom, and (iv) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this APA, a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible (e.g., if any liquidated damages provision in this APA is deemed to be unenforceable for any reason, such provision shall be reformed as a provision limiting the amount of the liabilities to the amount stated as the amount of liquidated damage therein and added automatically to this APA).

 

25.4                         Intellectual Property.

 

The parties hereto agree that any intellectual property provided by one party to the other party in connection with this APA or the transactions contemplated under this APA shall, as between the parties hereto, remain the sole and exclusive property of the party providing such intellectual property and may be used only for the purpose of implementing transactions under this APA and that no other use rights or licenses are granted, whether by implication, estoppel or otherwise.

 

25.5                         Further Assurances.

 

Solely for the purposes of enabling both parties hereto to comply with their obligations in this APA, each party hereto agrees to (i) execute and deliver such

 

26

 

other documents, and (ii) do such other acts and things as the other party may reasonably request, for the purpose of carrying out the intent of this APA and the transactions contemplated thereby, provided that neither party shall be required to make any additional representations or warranties or to incur any material expense or potential exposure to legal liability. For clarification purposes, “such other documents” and “such other acts” may include the execution of forms and certificates as may be required to obtain the Type Certificate.

 

25.6                         No Third Party Beneficiary Rights.

 

25.6.1                         Each party acknowledges and agrees that it shall have no rights as a third party beneficiary or similar rights in connection with any agreement or relationship between the other party and any third party, except as may be expressly provided therein.

 

25.6.2                         It is the intention of the parties that no term of this APA may be enforced by any person who is not a party to this APA (a “third party”) notwithstanding in the event that any term of this APA may purport to confer, or may be construed as conferring, any benefit on such third party and irrespective of whether such third party is identified in this APA.  The foregoing shall not limit any rights of any assignee as contemplated in Article 18.

 

25.7                         Attachments, Exhibits and Appendices.

 

All Attachments, Exhibits and Appendices attached hereto constitute integral parts of this APA and shall be binding on both parties hereto.

 

25.8                         Force Majeure. Neither party hereto shall be responsible to the other party hereto for non-performance, delay (other than delay in delivery, which shall be covered under Article 9.1) or deficiency in the performance of its respective obligations as a result of any cause beyond such party’s reasonable control, including but not limited to (i) acts of God; (ii) fire, earthquake, lightning, flood, typhoon, cyclone, hurricane, windstorm, natural disasters, explosions, epidemics, animal to human or other abnormal transmissions of an infectious disease (including bird flu/influenza and swine flu/influenza), or quarantine restrictions; (iii) total or constructive loss of the Aircraft (which, for the avoidance of any doubt, means the actual destruction of the affected Aircraft or such damage or destruction to a material portion of the affected Aircraft such that the affected Aircraft cannot be repaired by commercially reasonable efforts); (iv) changes in laws affecting allocation of materials or facilities necessary for the completion of the Aircraft; (v) war, civil war or warlike operations, acts of terrorism, riots, or any other armed hostility; (vi)  [***] (vii)  [***] (viii)  [***] or (ix)  [***] (each, a “ Force Majeure Event ”), provided that (a) the forgoing shall not relieve either party hereto from performing its obligations under this APA to the extent the same can be performed using reasonable diligent efforts notwithstanding the effects of the above-cited events or circumstances and (b) under no circumstance is either party hereto relieved by any of the above-cited events or occurrences from its obligations to make any payment due under this APA.  If there occurs any Force Majeure Event, the party affected by such Force Majeure Event shall inform the other party hereto of the occurrence and details of

 

27

 

such Force Majeure Event as soon as practicable, and after the cessation of such Force Majeure Event, the affected party shall promptly resume the performance of its obligations under this APA.

 

25.9                         Entire Agreement.

 

Subject to Article 23.3, this APA and any other agreements entered into between the parties hereto on the date hereof constitutes the entire agreement between the parties hereto with respect to the subject matter of this APA and supersedes all communications, negotiations and agreements (whether written or oral) of the parties with respect thereto made prior to the date of the APA.  Neither party hereto makes any representations or provides any covenants, warranties, guarantees or undertakings, whether express or implied, other than those expressly set forth herein. Any such covenants, warranties, guarantees or undertakings not expressly set forth herein which might be imposed on or implied into this APA under governing law referred to in Article 24.1 are hereby expressly excluded; provided only that nothing in this Article 25.9 shall operate so as to excuse Seller or Customer from liability for any fraudulent conduct.

 

25.10                  Compliance.

 

25.10.1                  Each party hereto shall comply, and shall ensure compliance by its employees, subcontractors and agents, with any and all applicable laws, regulations and lawful orders, including applicable export/re-export control laws, guidelines and regulations of United States, issued by competent authorities, relating to the manufacture, sale or delivery of the Aircraft (including any systems, accessories, parts or Aircraft Software materials contained therein) in the country of manufacture of the Aircraft and in the country of intermediate and/or final delivery of the Aircraft or provision of services.

 

25.10.2                  Upon request from Seller, Customer shall, at least [***] Months prior to the delivery of the first Aircraft, provide an end use certification providing the name and location of the first registered user of the Aircraft and certifying that it will comply with all applicable U.S. Government export laws, export regulations, and any export and other foreign trade controls of the Government of the United States, including those applicable to re-export.

 

25.11                  Counterparts.

 

This APA may be executed in any number of counterparts, each of which when executed and delivered shall be an original, but which counterparts together shall constitute one and the same instrument. The delivery of an executed signature page by facsimile or other electronic means shall be deemed to have the same effect as the delivery of an executed original counterpart thereof.

 

28

 

25.12                  Amendment or Modification.

 

This APA shall not be modified, amended, supplemented or nullified by any means except by a written instrument executed by the duly authorized representatives of the parties hereto.

 

[ The remainder of this page is intentionally left blank. ]

 

29

 

IN WITNESS WHEREOF, each of the parties hereto has caused its duly authorized representative to execute this APA as of the date first written above.

 

 

SKYWEST, INC.			MITSUBISHI AIRCRAFT CORPORATION
By:			By:
	Name: Bradford R. Rich			Name: Hideo Egawa
	Title: President			Title: President
By:
	Name: Michael J. Kraupp
	Title: Chief Financial Officer and Treasurer

 

Signature Page to APA

 

 

EXECUTION VERSION

 

ATTACHMENT 1

 

DESCRIPTION OF AIRCRAFT; PRICE

 

MRJ90

 

Aircraft Model/MTOW		: MRJ90STD
Detailed Specifications		: MRJ BASIC SPECIFICATIONS [***]
Quantity		: one hundred (100) aircraft
Engine Model		[***]
Base Aircraft Price (in January 2011 dollars)		[***]
Additional Aircraft Price as of the execution of the APA
aggregate price of Selected Optional Features as of the execution of the APA (listed in Schedule 1 to this Annex 1)		[***]
aggregate price of storage and installation of all BFE as of the execution of the APA		[***]
aggregate price of all other changes to the aircraft for which Customer is required to pay pursuant to Article 13 of the APA as of the execution of the APA		[***]
Sub-Total of Additional Aircraft Price as of the execution of the APA		[***]
Aircraft Basic Price		[***]
Initial Aircraft Basic Price		[***]
Base Month for Escalation Adjustment		[***]

 

Att1-1

 

MRJ70

 

Aircraft Model/MTOW		: MRJ70STD
Detailed Specifications		: MRJ BASIC SPECIFICATIONS [***]
Quantity		: zero (0) aircraft
Engine Model		[***]
Base Aircraft Price (in January 2011 dollars)		[***]
Additional Aircraft Price as of the execution of the APA
aggregate price of Selected Optional Features as of the execution of the APA (listed in Schedule 1 to this Annex 1)		[***]
aggregate price of storage and installation of all BFE as of the execution of the APA		[***]
aggregate price of all other changes to the aircraft for which Customer is required to pay pursuant to Article 13 of the APA as of the execution of the APA		[***]
Sub-Total of Additional Aircraft Price as of the execution of the APA		[***]
Aircraft Basic Price		[***]
Initial Aircraft Basic Price		[***]
Base Month for Escalation Adjustment		[***]

 

Att1-2

 

EXECUTION VERSION

 

ATTACHMENT 2

 

SCHEDULE OF DELIVERY; ADVANCE PAYMENTS

 

Aircraft Model and

Initial Aircraft Basic Price per one (1) aircraft

Advance Payment Per Aircraft (U.S.$) (Amts. Due/Mos. Prior to Delivery): (*1)

No

Version

[***]

[***]

[***]

[***]

[***]

[***]

1

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

2

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

3

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

4

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

5

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

6

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

7

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

8

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

9

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

10

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

11

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

12

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

13

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

14

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

15

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

16

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

17

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

 

Att2-1

---

 

Aircraft Model and

Initial Aircraft Basic Price per one (1) aircraft

Advance Payment Per Aircraft (U.S.$) (Amts. Due/Mos. Prior to Delivery): (*1)

No

Version

[***]

[***]

[***]

[***]

[***]

[***]

18

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

19

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

20

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

21

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

22

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

23

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

24

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

25

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

26

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

27

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

28

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

29

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

30

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

31

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

32

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

33

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

34

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

35

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

36

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

37

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

38

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

39

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

40

MRJ90

[***]

[***]

[***]

[***]

[***]

[***]

 

Att2-2

---