Exhibit 10.4


 


EMBRAER-190


 


 


PURCHASE AGREEMENT DCT- 025/2003


 


 


between


 


 


EMBRAER - EMPRESA BRASILEIRA DE AERONÁUTICA
S.A.


 


 


and


 


 


JETBLUE AIRWAYS CORPORATION


 

















 


INDEX


 


	
   

  	
   

  	
  ARTICLE

  
	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  DEFINITIONS

  
	
  2.

  	
   

  	
  SUBJECT

  
	
  3.

  	
   

  	
  PRICE

  
	
  4.

  	
   

  	
  PAYMENT

  
	
  5.

  	
   

  	
  DELIVERY

  
	
  6.

  	
   

  	
  CERTIFICATION

  
	
  7.

  	
   

  	
  ACCEPTANCE AND TRANSFER OF OWNERSHIP

  
	
  8.

  	
   

  	
  STORAGE
  CHARGE

  
	
  9.

  	
   

  	
  DELAYS IN DELIVERY

  
	
  10.

  	
   

  	
  INSPECTION AND QUALITY CONTROL

  
	
  11.

  	
   

  	
  CHANGES

  
	
  12.

  	
   

  	
  WARRANTY

  
	
  13.

  	
   

  	
  PRODUCT SUPPORT PACKAGE

  
	
  14.

  	
   

  	
  ASSIGNMENT

  
	
  15.

  	
   

  	
  RESTRICTIONS AND PATENT INDEMNITY

  
	
  16.

  	
   

  	
  MARKETING PROMOTIONAL RIGHTS

  
	
  17.

  	
   

  	
  TAXES

  
	
  18.

  	
   

  	
  APPLICABLE LAW

  
	
  19.

  	
   

  	
  JURISDICTION

  
	
  20.

  	
   

  	
  TERMINATION

  
	
  21.

  	
   

  	
  OPTION FOR THE PURCHASE OF ADDITIONAL
  AIRCRAFT

  
	
  22.

  	
   

  	
  NOTICES

  
	
  23.

  	
   

  	
  CONFIDENTIALITY

  
	
  24.

  	
   

  	
  PRESS RELEASE AND ANNOUNCEMENTS:

  
	
  25.

  	
   

  	
  SEVERABILITY

  
	
  26.

  	
   

  	
  NON-WAIVER

  
	
  27.

  	
   

  	
  INTEGRATED AGREEMENT

  
	
  28.

  	
   

  	
  NEGOTIATED AGREEMENT

  
	
  29.

  	
   

  	
  COUNTERPARTS

  
	
  30.

  	
   

  	
  ENTIRE AGREEMENT

  
	
  31.

  	
   

  	
  REPRESENTATIONS AND WARRANTIES

  



 

















 


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:


 


1.              DEFINITIONS


 


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:


 


1.1                                 “Actual Delivery Date”: shall mean, with respect to each Aircraft, the
date on which Buyer obtains title to that Aircraft in accordance with Article
7.


 


1.2                                 “AD’s”: shall mean Airworthiness Directives issued by either the CTA or
the Air Authority, in connection with and with respect to the Aircraft.


 


1.3                                 “Agreement” or “Purchase Agreement”: shall mean this purchase agreement
including all attachments, exhibits and amendments.


 


1.4                                 “Air Authority”: shall mean the United States Federal Aviation Administration.


 


1.5                                 “Aircraft Basic Price”: shall mean the Aircraft price, as defined in
Article 3.1.


 


1.6                                 “Aircraft Purchase Price”: shall mean the Aircraft price, effective on
the relevant Aircraft Contractual Delivery Date, resulting from the application
of the Escalation Formula to the Aircraft Basic Price as set forth in Article
3.3.


 


1.7                                 “Aircraft”: shall mean the EMBRAER 190 LR aircraft (certification
designation ERJ 190-100 LR) (the “EMBRAER 190 Aircraft”) manufactured by
Embraer according to the Preliminary Technical Description PTD-190 Rev. 3,
dated 


 


1

















 


November
2002 (which, although not attached hereto, is incorporated herein by reference)
and the Aircraft configuration described in Attachment “A”, for sale to Buyer
pursuant to this Agreement, equipped with two CF34-10E5 engines manufactured by
General Electric Company, and shall include Firm Aircraft and Option Aircraft
unless the context requires otherwise.


 


1.8                                 “Buyer”: shall mean JetBlue Airways Corporation, a company with its
principal place of business at 118-29 Queens Boulevard, Forest Hills, NY 11375.


 


1.9                                 “Business Day(s)”: shall mean a day on which banks are open for business
in São José dos Campos, São Paulo, Rio de Janeiro or New York.


 


1.10                           “Contractual Delivery Date”: shall mean the delivery date referred to in
Article 5.


 


1.11                           “CTA”: shall mean the Aerospace Technical Center of the Brazilian
Ministry of Aeronautics.


 


1.12                           “Day(s)”: shall mean natural calendar day(s).


 


1.13                           “Embraer”: shall mean Embraer - Empresa Brasileira de Aeronáutica S.A.,
a Brazilian corporation with its principal place of business at Av. Brigadeiro
Faria Lima, 2170 - Putim, São José dos Campos, São Paulo, Brazil.


 


1.14                           “Escalation Formula”: shall mean the escalation formula contained in
Attachment “D”.


 


1.15                           “Firm Aircraft”: shall mean the firm order Aircraft referred to in
Article 2.1


 


1.16                           “Initial Deposit”: shall mean the initial non-refundable deposit
referred to in Article 4.1.1.


 


1.17                           “Major Changes”: shall mean the changes to the design of the Aircraft,
as defined in Article 11.2.2.


 


1.18                           “Mandatory Service Bulletins”: shall mean the service bulletins
applicable to the Aircraft, which are issued by Embraer to implement the AD’s
referred to under Article 11.4.


 


1.19                           “Minor Changes”: shall mean the changes to the design of the Aircraft
defined as per the terms and conditions of Article 11.2.1.


 


1.20                           “Option Aircraft Basic Price”: shall mean the unit price of the Option
Aircraft, as per the terms and conditions of Article 21.2.


 


1.21                           “Option Aircraft Contractual Delivery Date”: shall mean the delivery
schedule of the Option Aircraft referred to in Article 21.


 


1.22                           “Option Aircraft Initial Deposit”: shall mean the initial deposit
referred to under Article 21.3.1.


 


1.23                           “Option Aircraft Purchase Price”: shall mean the escalated price of the
Option Aircraft, as per the terms and conditions of Article 21.2.


 


1.24                           “Option Aircraft”: shall be the additional Aircraft that Buyer shall
have the option to purchase as per the terms of Article 21.


 


1.25                           “Parties”: shall mean Embraer and Buyer.


 


2

















 


1.26                           “Product Support Package”: shall mean the products and Services to be
provided by Embraer as per Article 13.


 


1.27                           “Scheduled Inspection Date”: shall mean the date on which a certain
Aircraft hereunder is available for inspection and acceptance by and subsequent
delivery to Buyer, as per the terms and conditions of Article 7.1.


 


1.28                           “Services”: shall mean the familiarization and on-site support for the
Aircraft, part of the Product Support Package, as specified in Attachment “B”.


 


1.29                           “Technical Publications”: shall mean the technical documentation
pertaining and related to the Aircraft as listed in Exhibit 1 to Attachment
“B”.


 


1.30                           “USD” or “US$”: shall mean the legal currency of the United State of
America.


 


1.31                           “Working Day(s)”: shall mean a day, other than Saturday, Sunday or
holiday, on which Embraer in São José dos Campos, SP, Brazil is open for
business.


 


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.


 


2.              SUBJECT


 


Subject to the terms and conditions of this
Agreement:


 


2.1                                 Embraer shall sell and deliver and Buyer shall purchase and take
delivery of one hundred (100) newly manufactured Aircraft (“Firm Aircraft”);


 


2.2                                 Embraer shall provide to Buyer the Services and the Technical
Publications; and


 


2.3                                 Buyer shall have the option to purchase up to one hundred (100) Option
Aircraft, in accordance with Article 21.


 


3.              PRICE


 


3.1                                 Buyer agrees to pay Embraer, in United States dollars, the per unit
Aircraft Basic Price of USD***.


 


3.2                                 The Services and Technical Publications are to be provided *** to Buyer.
Additional technical publications as well as other services shall be billed to
Buyer in accordance with Embraer’s rates prevailing at the time Buyer places a
purchase order for such additional technical publications or other services.


 


3.3                                 The Aircraft Basic Price shall be escalated according to the Escalation
Formula. Such price as escalated shall be the Aircraft Purchase Price and will
be provided to Buyer *** months prior to each Aircraft Contractual Delivery Date.


 












[***]                   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

















 


4.              PAYMENT


 


4.1                                 To secure the Aircraft delivery positions set forth in Article 5.1 and
to ensure delivery of the Aircraft in accordance with the Delivery Schedule,
Buyer shall pay Embraer for each Aircraft in accordance with the terms and
conditions contained in this Article 4. The Parties acknowledge that each of
the Firm Aircraft and the corresponding delivery positions have been reserved
for purchase by Buyer and such Firm Aircraft have been removed from the market.
The prices specified in Article 3 shall be paid by Buyer by wire transfer in
immediately available United States dollars funds, to a bank account to be
timely informed by Embraer to Buyer, as follows:


 


4.1.1                        A  *** percent (***%) progress
payment of each Firm Aircraft Basic Price is due and payable ***.


 


4.1.2                        A *** percent (***%) progress payment of each Firm Aircraft Basic Price
is due and payable *** prior to each relevant Firm Aircraft Contractual
Delivery Date.


 


4.1.3                        A *** percent (***%) progress payment of each Firm Aircraft Basic Price
is due and payable *** prior to each relevant Firm Aircraft Contractual
Delivery Date.


 


4.1.4                        A *** percent (***%) progress payment of each Firm Aircraft Basic Price
is due and payable *** prior to each relevant Firm Aircraft Contractual
Delivery Date.


 


4.1.5                        The balance of each Firm Aircraft Purchase Price shall become due and
payable upon acceptance of each relevant Firm Aircraft by Buyer.


 


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.


 


4.2                                 Late Payments:


 


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 Embraer’s
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.


 


4.3                                 Termination for failure to make payments:


 


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.


 


4.4                                 Payment Terms:


 


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.


 


4.5                                 Payment Date


 


Unless otherwise agreed by the Parties in
writing, payment of the amounts referred in Articles 4.1.2, 4.1.3, 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

















 


5.              DELIVERY


 


5.1                                 Aircraft: Subject to
payment in accordance with Article 4 and the provisions of Articles 7 and 9,
the Aircraft shall be offered by Embraer to Buyer, by means of a written
notice, for inspection, acceptance and subsequent delivery in F.A.F. (Fly Away
Factory) condition, at São José dos Campos, State of São Paulo, Brazil,
according to the following schedule:


 


6

















 


	
  Firm

  Aircraft

  #

  	
   

  	
  Delivery

  Month

  	
   

  	
  Firm

  Aircraft

  #

  	
   

  	
  Delivery

  Month

  	
   

  	
  Firm

  Aircraft

  #

  	
   

  	
  Delivery

  Month

  	
   

  	
  Firm

  Aircraft

  #

  	
   

  	
  Delivery

  Month

  
	
  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

















 


6.              CERTIFICATION


 


6.1                                 By the time of the first Firm
Aircraft Contractual Delivery Date, the EMBRAER 190 model aircraft shall be
type certified by the Brazilian Airworthiness Authority (CTA), and type
validated by the Air Authority (USA FAA), each in accordance with FAA airworthiness
requirement FAR Part 25 amendment 25-1 through 25-98 effective on March 10,
1999, provided that any items that are under Buyer / operator’s regulatory
responsibility pursuant to the FAR’s (i.e., operational requirements) shall be
Buyer’s responsibility.


 


6.2                                 The Aircraft shall be delivered
to Buyer in conformity with the operational requirements contained in FAR 121
subparts J and K and with the requirements set forth herein. Embraer will
provide Buyer with an export certificate of airworthiness issued by the CTA,
which will certify that, as of the date of its issuance, the Aircraft has been
inspected and found to conform in all respects to the CTA / FAA approved type
design and in a condition qualifying the Aircraft for a valid and fully
effective certification of airworthiness from the FAA. The condition of the
Aircraft on delivery date and the related documentation, including the above
mentioned export certificate of airworthiness, shall be sufficient to enable
Buyer to obtain a certificate of airworthiness for the Aircraft with the FAA.
Subject to the above, it shall be Buyer’s responsibility to (i) obtain such FAA
certificate of airworthiness, and (ii) register the Aircraft with the FAA, at
Buyer’s sole expense ***.


 


7.              ACCEPTANCE
AND TRANSFER OF OWNERSHIP


 


7.1                                 Unless Buyer is notified
otherwise, the Aircraft shall be delivered in accordance with the provisions
and schedules specified in Article 5. Embraer shall give Buyer *** Days advance
facsimile notice of the *** of anticipated Aircraft delivery and *** Days
advance facsimile notice of the date on which Embraer considers that each
Aircraft will be ready for delivery. Upon successful completion of ground and
flight tests performed by Embraer, Buyer will receive a written confirmation of
the Scheduled Inspection Date, on which date Buyer shall promptly start
inspecting such Aircraft.


 


7.2                                 Buyer shall be allowed a
reasonable period of time but in no event greater than *** Days to inspect and
conduct an acceptance flight of each Aircraft prior to its delivery. Embraer
will provide the fuel and insurance for the Aircraft’s acceptance flight in
accordance with Embraer’s insurance policy. 
***.


 


7.3                                 If Buyer finds an Aircraft
acceptable, Buyer shall promptly make the payments due according to Article 4
and accept delivery of such Aircraft, whereupon 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.


 


8

















 


 


necessary title and risk transfer documents
shall be executed in order to effect title transfer. Buyer ́s acceptance of an
Aircraft shall be deemed a waiver of any rights to revoke acceptance of the
Aircraft for any reason, including for defects unknown to Buyer at the time of
acceptance.


 


7.4                                 Buyer may decline to accept an
Aircraft which Buyer reasonably believes does not comply with the specification
set forth in this Agreement or is not in an airworthy condition. For the
purposes of this Article 7, an Aircraft shall be deemed not to be materially
compliant when one or more of the Aircraft characteristics identified in
Article 11.2.1 *** are adversely affected by such non-compliance vis-à-vis the
specification set forth in Attachment A.


 


7.5                                 If Buyer declines to accept an
Aircraft, Buyer shall immediately give Embraer written notice of all specific
reasons for such refusal and Embraer shall have *** Days, commencing on the
first Day after receipt of such notice, to take all necessary actions in order
to resubmit the Aircraft to Buyer for re-inspection.


 


7.6                                 Buyer shall be allowed *** Days
to re-inspect the Aircraft, starting immediately upon receipt of notice from
Embraer that all necessary actions were taken. The period required for
inspection as well as the one mentioned in Article 7.5 shall not be considered
as part of the *** Day grace period provided for in Article 9.2.1. In the event
Buyer declines to accept an Aircraft after this re-inspection procedure is
repeated, the Parties shall convene immediately following final refusal to
accept the Aircraft in order to negotiate possible solutions. If within ***
Days counted from the date in which Embraer receives notice of such final
refusal to accept the Aircraft, Embraer and Buyer fail to reach an agreement,
then either Party may terminate this Agreement with respect to the affected
Aircraft without liability to either Party, ***.


 


7.7                                 Should Buyer fail to perform the
acceptance and transfer of title to the Aircraft within the periods provided
for and in accordance with this Article 7 (and subject to Buyer’s right to
terminate pursuant to Articles 7.4 and 7.6), Embraer shall be entitled, at its
reasonable discretion, to either re-negotiate the terms of this Agreement with
Buyer or terminate this Agreement with regard to the affected Aircraft pursuant
to Article 20.3. ***.


 


7.8                                 Notwithstanding the provisions
of Article 7.7 and in addition to Embraer’s rights pursuant to Article 20.3
should Buyer fail to perform the acceptance and transfer of title to the
Aircraft within the time period specified in Articles 7.2, 7.5 and 7.6, as
applicable, interest will accrue at the rate of *** percent (***%) per month
over the unpaid balance of the relevant Aircraft Purchase Price, prorated from
the date on which Buyer should have completed the inspection or re-


 












[***]                   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

















 


inspection of the Aircraft, as the case may
be, until the date on which transfer of title occurs or until the date Embraer
terminates this Agreement pursuant to Article 7.7, whichever occurs first.
Without prejudice to Embraer’s rights set forth in Article 7.7, interest
accrued will be invoiced by Embraer on a monthly basis, beginning one month
after the date on which the Aircraft acceptance or transfer of title should
have been performed, and payment thereof shall be made by Buyer in accordance
with the instructions contained therein.


 


7.9                                 Embraer agrees to indemnify and
hold harmless Buyer and Buyer’s officers, directors, 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 Buyer and/or Buyer’s
officers, directors, agents, employees and assignees by reason of loss or
damage to property, or injury or death of any person, resulting from or in any
way connected with the tests on the ground or in flight prior to Actual
Delivery of each Aircraft, except to the extent attributable to the gross
negligence or willful misconduct of Buyer, its officers, directors, agents,
employees and assignees.


 


8.              STORAGE CHARGE


 


8.1                                 A storage charge equal to USD *** (*** United States dollars) per
Day shall be charged by Embraer to Buyer commencing on:


 


8.1.1                        Buyer’s failure to perform
inspection or re-inspection of an Aircraft, per the date or time period
specified in writing by Embraer, according to Articles 5 and/or 7, as
applicable.


 


8.1.2                        Buyer’s acceptance of an
Aircraft and failure to fulfill any payment obligation due in taking title to
such Aircraft immediately thereafter.


 


8.1.3                        Buyer’s failure to remove an
Aircraft from Embraer’s facilities *** Days after title transfer has occurred.


 


8.2                                 If however, Buyer notifies
Embraer in writing *** Days in advance of its expected delay in the performance
of its obligations set forth in Articles 8.1.1, 8.1.2 and 8.1.3, the storage
charge shall commence on the *** Day after the occurrence of the events set
forth in Articles 8.1.1, 8.1.2 or 8.1.3, as applicable.


 


8.3                                 In the event that an Aircraft
Contractual Delivery Date must be extended by Embraer from that which is
designated in Article 5, due to Buyer’s failure to perform any action or
provide any information contemplated by this Agreement other than the ones
specified in the Article 8.1, the storage charge shall 


 












[***]                   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

















 


commence on the *** Day after the Contractual
Delivery Date relative to such Aircraft.


 


8.4                                 Buyer shall pay the storage
charge as set forth in Articles 8.1. or 8.3, as applicable, in United States
dollars, per each month of delay or prorated for part thereof, within *** Days
after the presentation of each invoice by Embraer.


 


9.              DELAYS IN DELIVERY


 


***


 


9.1                                 Excusable
Delays:


 


9.1.1                        Embraer shall not be held liable
or be found in default for any delays in the delivery of an Aircraft or in the
performance of any act to be performed by Embraer under this Agreement,
resulting from the following events or occurrences (hereinafter referred to as
“Excusable Delays”): (a) force majeure (including, but not limited to, war or
state of war, civil war, insurrection, fire, accident, explosion, flood, act of
government, requisition, strike, labor disputes causing cessation or
interruption of work, including but not limited to walkouts, sick-outs,
protests or slowdowns), (b) inability despite due and all commercially
reasonable and timely efforts to procure any materials, equipment, accessories,
parts or means of transport, or (c) any delay resulting from any failure by
Buyer to perform any action or provide any information contemplated by this
Agreement or, (d) delays resulting from any other cause to the extent it is
beyond Embraer’s control or does not result from Embraer’s fault or negligence.


 


9.1.2                        As soon as practicable but no
more than *** Days after the occurrence of any of the above mentioned events
which constitute causes of Excusable Delays in delivery of an Aircraft or in
the performance of any act to be performed by Embraer under this Agreement,
Embraer undertakes to send a written notice to Buyer including a description of
details involved and an estimate of the effects expected upon the timing of the
performance of its contractual obligations.


 


9.1.3                        Any such delays shall extend the
time for delivery of an Aircraft by the same number of Days required for the
cause of delay to be remedied, subject to the limit indicated in Article 9.1.4.
Embraer undertakes to use commercially reasonable efforts to avoid or remove
any such cause of 


 












[***]                   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

















 


delay and
to minimize its effect on the Contractual Delivery Date of an Aircraft. ***


 


9.1.4                        If the cause of such Excusable
Delay is such as to last longer than *** Days or to render the performance of
this Agreement impossible, then the Parties shall within *** Days following the
last Day of Excusable Delay as provided for herein, re-negotiate the terms of
this Agreement accordingly; failing which, either Party shall have the right to
terminate this Agreement without liability to either Party, except as provided
for in Article 20.2 with respect to the applicable Aircraft.


 


9.1.5                        ***


 


9.2                                 Non-Excusable Delays:


 


9.2.1                        If the delivery of an Aircraft
is delayed, without any excusable reason, by more than *** Days after the
Contractual Delivery Date for such Aircraft, Buyer will be entitled to claim
from Embraer liquidated damages the following amounts: ***


 


Such liquidated damages shall apply for each
Day of delay in excess of the above mentioned *** Days, up to the date that the
Aircraft is available for inspection and acceptance by, and subsequent delivery
to Buyer by means of written confirmation of the successful completion of
ground and flight tests performed by Embraer, to be provided as per Article
7.1,  it being understood that such
liquidated damages will not, in any event, exceed *** and that it will only be
due and payable by Embraer to Buyer after Buyer pays to Embraer the total
Aircraft Purchase Price, ***.


 


9.2.2                        Upon the occurrence of any event
that constitutes a Non-Excusable Delay in delivery of an Aircraft, Embraer
shall, as soon as practicable, notify Buyer of all details involved and an
estimate of the effects expected upon the delivery of the Aircraft.  ***


 


9.2.3                        It is agreed between the Parties
that if, with respect to a delayed Aircraft, Embraer does not receive a claim
for liquidated damages as mentioned in Article 9.2.1, from Buyer, within ***
Days after the Contractual Delivery Date of such Aircraft, Buyer shall be
deemed to have fully waived its right to such liquidated damages.


 


9.3                                 Delay Due to Loss or Structural Damage
of the Aircraft:


 












[***]                   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 ***.


 


10.       INSPECTION
AND QUALITY CONTROL


 


10.1                           Embraer shall grant one or more
authorized representatives of Buyer access to Embraer’s facilities, at all
times during normal business hours, in order to assure that the Aircraft was
manufactured in accordance with the procedures specified in this Agreement and
according to all applicable quality control standards.


 


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 Embraer’s facilities and ***. 
Buyer’s representatives shall not interfere with or hinder the
production or manufacture of any Aircraft.


 


10.2                           Buyer shall communicate to
Embraer the names of its authorized representatives who will perform the
activities described in Article 7, by means of written notice, at least thirty
(30) Days prior to each delivery date specified in Article 5.


 


10.3                           The representatives referred to
in Article 10.2 shall be authorized and duly empowered to sign the acceptance
and transfer of title and risk documents and accept delivery of the Aircraft
pursuant to Article 7.


 


10.4                           For the purposes subject of this
Article 10, Embraer shall provide reasonable office space and communication
facilities (telephone, internet connection - high speed, if available, and
facsimile) for Buyer’s authorized representatives, as well as the necessary
tools, measuring devices, test equipment and technical assistance as may be
necessary to perform acceptance tests.


 


10.5                           Buyer’s authorized
representatives shall observe Embraer’s administrative rules and instructions
while at Embraer’s facilities.


 


10.6                           Buyer’s authorized
representatives shall be allowed exclusively in those areas 


 












[***]                   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

















 


related to the subject matter hereof and
Buyer agrees to hold harmless Embraer from and against all and any kind of
liabilities in respect to such representatives, except to the extent
attributable to the gross negligence or willful misconduct of Embraer.


 


11.       CHANGES


 


11.1                           Each Aircraft will comply with
the standards defined in Attachment “A” (as amended from time to time pursuant
to Article 11.6) and shall incorporate all modifications which are classified
as Airworthiness Directives (“AD’s”)issued from time to time by CTA or the Air
Authority as provided in Article 11.4 *** or those agreed upon by Buyer and
Embraer in accordance with this Article.


 


11.2                           The Parties hereby agree that
changes can be made by Embraer in the design of the Aircraft, the definition of
which and its respective classification shall be in compliance to the Aircraft
type specification, as follows:


 


11.2.1                  Minor Changes: defined as those
modifications which shall not adversely affect the Aircraft in any of the
following characteristics: ***


 


11.2.2                  Major Changes: defined as those
modifications which affect at least one of the topics mentioned in Article
11.2.1.


 


11.3                           Embraer shall have the right,
but not the obligation, to incorporate Minor Changes in the Aircraft still in
the production line at its own cost, without the prior consent of Buyer.


 


11.4                           Embraer shall convey those Major
Changes that are classified as AD’s by means of service bulletins approved by
the Air Authority and/or CTA, as appropriate. 
Service bulletins that implement such ADs shall be referred to as Mandatory
Service Bulletins. Embraer shall notify Buyer in writing of all Mandatory
Service Bulletins and shall incorporate Mandatory Service Bulletins as follows:


 


11.4.1                  Compliance required before
Contractual Delivery Date: Embraer shall incorporate Mandatory Service
Bulletins in undelivered Aircraft at Embraer’s expense in a reasonable period
of time if the compliance time for such Mandatory Service Bulletins is before
the Aircraft’s Contractual Delivery Date. Embraer shall not be liable for any
delays resulting from incorporation of Mandatory Service Bulletins when the
Aircraft has already passed the specific production stage affected by the
incorporation of said change.  Embraer
shall use commercially reasonable efforts to incorporate such Mandatory Service
Bulletins as 


 












[***]                   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

















 


promptly as possible.


 


11.4.2                  Compliance required after
Contractual Delivery Date: During a time period of *** months following the
Aircraft actual delivery date, Embraer shall provide parts kits for Mandatory
Service Bulletins that are issued either (i) before the relevant Aircraft’s
Contractual Delivery Date but with a compliance time after such date or (ii)
after the relevant Aircraft’s Contractual Delivery Date. Such kits shall be
provided at *** expense, excluding *** labor charges for installation of such Mandatory
Service Bulletins. Embraer shall not be liable for any down-time of delivered
Aircraft that may be necessary for the incorporation of any changes. When
flight safety is affected, such changes shall be immediately incorporated. If
warranty coverage is not available or applicable pursuant to Attachment “C”,
the provisions of Article 11.5 shall apply.


 


11.5                           Except for the Major Changes
referred to in Article 11.4, any other Major changes, such as (i)  any change developed by Embraer as product
improvement, (ii)  any change requested
by Buyer in relation to the Aircraft configuration, or (iii) any change
required by the Air Authority as a consequence of alterations, amendments
and/or innovations of its present applicable regulations, shall be considered
as optional and, pursuant to Buyer’s request, Embraer shall submit to Buyer a
proposal of major change (“PMC”), which shall describe all possible impacts on
the provisions contained in this Agreement, including but not limited to
Aircraft pricing, weight, etc. Should Buyer not approve such PMC, the change
shall not be incorporated in the Aircraft.


 


11.6                           Any Major Change to the
Aircraft, made in accordance with the foregoing paragraphs which affect the
provisions of Attachment “A”, shall be incorporated in said Attachment by means
of an amendment which shall be executed by the Parties as soon as practicable
before delivery.


 


11.7                           Except as far as it relates to
AD’s mandatory by CTA or the Air Authority and Minor Changes, the Aircraft
shall, on its Scheduled Inspection Date, comply with all of the terms and
conditions of Attachment “A” as from time to time amended pursuant to Article
11.6. Determination of such compliance shall be made by Buyer pursuant to
Article 7.


 


12.       WARRANTY


 


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 Buyer’s responsibility to obtain
Embraer’s 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
Buyer’s designated lessee or assignee, provided however, that *** shall not be
assignable.


 


13.       PRODUCT
SUPPORT PACKAGE


 


Embraer shall supply to Buyer the Product Support Package described in
Article 2 of Attachment “B”, which includes Embraer’s spare parts policy, the
Technical Publications and the Services.


 


14.       ASSIGNMENT


 


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 Buyer’s operation of the relevant Aircraft).


 


15.       RESTRICTIONS
AND PATENT INDEMNITY


 


This sale does not include the transfer of designs, copyrights,
patents, and other similar rights to Buyer. Subject to Buyer’s 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.


 


16.       MARKETING
PROMOTIONAL RIGHTS


 


Embraer shall have the right to show for marketing purposes, free of
any charge, the image of Buyer’s Aircraft, painted with Buyer’s 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.


 


17.       TAXES


 


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.


 


18.       APPLICABLE LAW


 


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.


 


19.       JURISDICTION


 


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.


 


20.       TERMINATION


 


20.1                           Should either Party fail to
comply partially or completely with its obligations hereunder, the other Party
shall be entitled to give notice of such failure and to require that such
failure be remedied within the period specified in that notice, which period
shall not be less than *** Days. Should such failure not be remedied within the
period so specified, then the Party who gave notice of such failure shall be
entitled to terminate this Agreement. Should termination occur in accordance
with the foregoing, the defaulting Party shall pay to the non-defaulting Party,
as damages, in an amount ***. The foregoing provision shall 


 












[***]                   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.


 


17

















 


not apply in any circumstance where a
specific right of termination is made available hereunder or will be made
available hereunder upon the expiration of a specific period of time. Neither
Party shall be liable to the other Party in any circumstance hereunder for any
consequential or punitive damages which may arise out of, or be connected to,
any breach or default under of any term, condition, covenant, warranty, or
provision of this Agreement.


 


20.2                           Either Party shall have the
right to terminate this Agreement in respect to the relevant Aircraft, upon the
occurrence of any Excusable Delay of *** Days or longer, unless
otherwise agreed in writing by the Parties, and either Party shall have the right
to terminate this Agreement in respect to the relevant Aircraft upon the
occurrence of any non-Excusable Delay of *** Days or longer after such Aircraft
Contractual Delivery Date, such rights to be exercisable by written notice from
one Party to the other to such effect no earlier than the *** or *** Day as
applicable. Upon receipt of such notice of termination by Buyer or Embraer, as
the case may be, Embraer shall


 


(i)             in case of Excusable Delay:
***,  it being hereby agreed by the
Parties that, in this case, no other indemnity shall be due by Embraer to
Buyer.


 


(ii)          in case of Non-Excusable Delay: ***, it being hereby agreed
by the Parties that, in this case, no other indemnity shall be due by Embraer
to Buyer.


 


20.3                           If Buyer terminates this
Agreement before an Aircraft Actual Delivery Date (except as permitted
hereunder) or, if Embraer terminates this Agreement in relation to an Aircraft,
pursuant to Articles 4.3 or 7.7, Buyer shall pay to Embraer damages in an
amount equal to ***. In addition to such damages, Buyer shall pay to Embraer,
***.  For these purposes Embraer may, in
its sole discretion, retain all amounts previously paid by Buyer, to apply as
part of the payments of damages resulting from such default on the part of
Buyer. It is hereby agreed by the Parties that upon the receipt by Embraer of
the amounts set forth above, no other indemnity shall be due by Buyer to
Embraer.


 


20.4                           If Buyer terminates this
Agreement in respect to an Aircraft pursuant to Article 7.6, Embraer, upon
Buyer’s request, shall ***, no penalty or indemnity being due by Embraer to
Buyer in this case.


 


20.5                           Notwithstanding anything to the
contrary in this Agreement, Embraer may at its sole option apply any amounts to
be returned to Buyer under this Agreement to amounts due and payable by Buyer
under this Agreement.


 


20.6                           In the event this Agreement is
terminated, whether in whole or in part, the Parties’ obligations (including
without limitation any warranty or product 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.


 


18

















 


with regard to Aircraft already delivered
will continue in full force and effect in accordance with this Agreement.


 


21.       OPTION FOR
THE PURCHASE OF ADDITIONAL AIRCRAFT


 


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

  Aircraft

  #

  	
   

  	
  Delivery

  Month

  	
   

  	
  Firm

  Aircraft

  #

  	
   

  	
  Delivery

  Month

  	
   

  	
  Firm

  Aircraft

  #

  	
   

  	
  Delivery

  Month

  	
   

  	
  Firm

  Aircraft

  #

  	
   

  	
  Delivery

  Month

  
	
  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:


 


21.1                           The unit basic price of the Option Aircraft (the “Option
Aircraft Basic 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.


 


20

















 


shall be equal to the unit Aircraft Base
Price, provided that the Option Aircraft is in the configuration described in
Attachment “A”, otherwise adjustments shall be done for any additions and/or
deletions of equipment and/or provisioning as may be agreed to by Buyer and
Embraer from time to time.


 


21.2                           The unit basic price of each
relevant Option Aircraft above mentioned shall be escalated according to the
escalation formula subject of Attachment “D”, determining the Option Aircraft
Purchase Price.


 


21.3                           The payment of the Option
Aircraft Purchase Price shall be made according to the following:


 


21.3.1                  A non-refundable progress
payment of *** percent (***%) of the unit exercised Option Aircraft Basic Price
is due and payable by Buyer to Embraer *** prior to each relevant Option
Aircraft contractual delivery month.


 


21.3.2                  A non-refundable progress
payment of *** percent (***%) of the unit exercised Option Aircraft Basic Price
is due and payable *** prior to each relevant Option Aircraft contractual
delivery month.


 


21.3.3                  A non-refundable progress
payment of *** percent (***%) of the unit exercised Option Aircraft Basic Price
is due and payable *** prior to each relevant Option Aircraft contractual
delivery month.


 


21.3.4                  A non-refundable progress
payment of *** percent (***%) of the unit exercised Option Aircraft Basic Price
is due and payable *** prior to each relevant Option Aircraft contractual
delivery month.


 


21.3.5                  The balance of each relevant
exercised Option Aircraft Purchase Price is due and payable upon acceptance of
each relevant Option Aircraft by Buyer.


 


21.3.6                  The provisions of Article 4.2
through 4.5 shall apply mutatis-mutandis, to the payments to be made by Buyer
towards the exercised Option Aircraft.


 


21.4                           Option Aircraft Exercise: The
option to purchase the Option Aircraft shall be exercised in *** no later than
*** months prior to the delivery of the first Option Aircraft *** (the “Exercise
Date”). Buyer shall have the right to partially exercise the ***.


 


Exercise of the option to purchase the Option
Aircraft shall be accomplished by means of a written notice from Buyer
delivered to Embraer by mail, express delivery or facsimile, return receipt
requested.


 












[***]                   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

















 


In the event an *** is not entirely exercised
by its Exercise Date as specified in the preceding paragraph, Buyer shall ***.


 


In the event *** are not exercised, even
partially, by their option exercise date, Buyer shall also ***.


 


Buyer shall confirm its option by means of a
written notice to Embraer, return receipt requested, on or before *** months
prior to the first Option Aircraft of each *** as specified above.


 


21.5                           If the options are confirmed by
Buyer as specified above, an amendment to this Agreement shall be executed by
and between the Parties within thirty (30) Days following the relevant Exercise
Date, setting forth the terms and conditions, if any, applicable exclusively to
the Option Aircraft.


 


21.6                           For the avoidance of any doubt,
the terms and conditions contained in this Agreement shall also apply to any
exercised Option Aircraft, with the exception that the product support package
to be applied to the exercised Option Aircraft shall be as described in Article
2 of Attachment “B”.


 


22.       NOTICES


 


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.


 


22.1                           EMBRAER:


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


 


22.2                           BUYER:


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


 


23.       CONFIDENTIALITY


 


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 other’s
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 Buyer’s
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.


 


24.       PRESS
RELEASE AND ANNOUNCEMENTS:


 


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

















 


25.       SEVERABILITY


 


If any provision or part of a provision of this Agreement or any of the
Attachments shall be, or be found by any authority or court of competent
jurisdiction to be, 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.


 


26.       NON-WAIVER


 


Except as otherwise specifically provided to the contrary in this
Agreement, any Party’s 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.


 


27.       INTEGRATED
AGREEMENT


 


All Attachments referred to in this Agreement and/or attached hereto
are, by such reference or attachment, incorporated in this Agreement.


 


28.       NEGOTIATED
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.


 


29.       COUNTERPARTS


 


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.


 


30.       ENTIRE AGREEMENT


 


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.


 


31.       REPRESENTATIONS
AND WARRANTIES


 


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.]


 


25

















 


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

  	
  Buyer- JetBlue Airways Corporation

  
	
  de Aeronáutica S.A.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
  By: 

  	
   

  	
   

  
	
  Name:

  	
  Name:

  
	
  Title:

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
  By: 

  	
   

  	
   

  
	
  Name:

  	
  Name:

  
	
  Title:

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  Date:

  
	
  Place:

  	
  Place:

  
	
   

  	
   

  
	
  Witnesses:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Name:

  
	
  ID:

  	
  ID:

  
								



 

















 


ATTACHMENT “A” – AIRCRAFT CONFIGURATION


 


1.              STANDARD AIRCRAFT
CONFIGURATION


 


The Aircraft shall be
manufactured in accordance with Embraer’s 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


 


***


 


	
   

  	
   

  
	
   

  	
   

  



 












[***]                   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

















 


	
   

  	
   

  
	
   

  	
   

  



 


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 Buyer’s facility and at
Buyer’s 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 Embraer’s 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 Embraer’s 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 Aircraft’s 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 Embraer’s 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 Buyer’s 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
Buyer’s 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 Embraer’s 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 Buyer’s 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) Buyer’s
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 Embraer’s plant in São José dos Campos, SP, Brazil, or
any other destination as Embraer may reasonably designate. All returned IP
Spares are subject to Embraer’s quality control inspection and acceptance. All
IP Spares which are rejected by Embraer’s quality control and/or are included
in the exceptions set forth in paragraph a.1 hereinabove, will be returned to
Buyer at Buyer’s expense, no credit being due in this case.


 


a.4              CREDIT
ISSUE: After Embraer’s 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 Embraer’s 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 - Embraer’s facility,
respecting Buyer’s 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 Buyer’s trainees. The familiarization programs
shall be conducted in accordance with Buyer’s 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 Buyer’s pilots, mechanics, employees or representatives, duly
qualified per the governing body in the country of Buyer’s 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 Buyer’s 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 authority’s 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 Buyer’s 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 Buyer’s
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 Buyer’s 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 Buyer’s 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 Buyer’s country for Embraer’s
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
Buyer’s 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 Buyer’s 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 Buyer’s 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 Buyer’s 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 Embraer’s employee; or d) the
government of Buyer’s country refuses permission to Embraer’s 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 Embraer’s 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 Embraer’s
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.


 


7

















 


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) (***)

  
	
  11.

  	
  Aircraft
  Illustrated Parts Catalog (AIPC) (***)

  
	
  12.

  	
  Fault
  Isolation Manual (FIM) (***)

  
	
  13.

  	
  Nondestructive
  Testing Manual (NDT) (***) 
  14.Maintenance Planning Document (MPD)

  
	
  15.

  	
  Wiring
  Manual (WM) (***)

  
	
  16.

  	
  Structural
  Repair Manual (SRM) (***)

  
	
  17.

  	
  Service and
  Information Bulletins Set (SB/IB)

  
	
  18.

  	
  Service
  Newsletters (SNL)

  
	
  19.

  	
  Parts
  Information Letter (PIL)

  
	
  20.

  	
  System
  Schematic Manual (SSM) (***)

  
	
  21.

  	
  Instructions
  for Ground Fire Extinguishing and Rescue (IGFER)

  
	
  22.

  	
  Airport
  Planning Manual (APM)

  
	
  23.

  	
  Illustrated
  Tool & Equipment Manual (ITEM)

  
	
  24.

  	
  Task Card
  System CD-ROM (TCS) (***)

  
	
  25.

  	
  Ramp
  Maintenance Manual (RMM) (***)

  
	
  26.

  	
  Power plant
  Build-up Manual (PPBM) (**)

  
	
  27.

  	
  Corrosion
  Prevention Manual (CPM) (***)

  
	
  28.

  	
  Component
  Maintenance Manual (CMM) (**)

  
	
  29.

  	
  Airplane
  Recovery Manual (ARM)

  
	
  30.

  	
  Maintenance
  Facility and Equipment Planning (MFEP)

  
	
  31.

  	
  Standard
  Wiring Practices Manual (SWPM)

  
	
  32.

  	
  Standard
  Manual (SM)

  
	
  33.

  	
  Consumable
  Products Catalog (CPC)

  
	
  34.

  	
  Maintenance
  Review Board Report (MRB)

  
	
   

  	
  (*)

  	
  One extra
  copy on board each Aircraft

  
	
   

  	
  (**)

  	
  To be
  delivered by the suppliers directly to Buyer.

  



 


1

















 


	
   

  	
  (***)

  	
  ***

  



 












[***]                   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 (Embraer’s 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 Embraer’s 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 Buyer’s 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 Buyer’s 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
Embraer’s 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 manufacturer’s 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.


 


6

















 


ATTACHMENT “E” - ***


 


***


 


 












[***]                   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”


***


 


***


 


 












[***]                   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:


 


	
  Weight

  	
   

  	
  Altitude

  	
   

  	
  Mach
  Number

  	
   

  	
  Guarantee

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *** lb

  	
   

  	
  *** ft

  	
   

  	
  ***

  	
   

  	
  *** NAM/lb

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  *** lb

  	
   

  	
  *** ft

  	
   

  	
  ***

  	
   

  	
  *** NAM/lb

  	
   

  



 


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

  	
   

  	
  Weight (Kg)

  	
   

  	
  Weight (lb)

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ***

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ***

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
  ***

  	
   

  	
  ***

  	
   

  	
  ***

  	
   

  
	
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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


 


8

















 


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                                 Embraer’s obligations
in respect to the guarantees stated in Article 1 of this Attachment are limited
to Buyer’s 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.


 


9

















 


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.


 


10