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Nothing herein shall prohibit you from devoting your time to civic and community activities or managing personal investments, as long as the foregoing do not interfere with the performance of your duties hereunder. | term of employment | Given the provision, provide with the correct label for the given provision |
The Common Stock is currently quoted on the Nasdaq Capital Market under the trading symbol “IMMY.” The Company has received no notice, either oral or written, with respect to the continued eligibility of the Common Stock for quotation on the Principal Trading Market, and the Company has maintained all requirements on its part for the continuation of such quotation. | capitalization | Given the provision, provide with the correct label for the given provision |
Nothing in this Section 2.12 shall affect or postpone any of the obligations of the Borrower or the right of any Lender provided in Sections 2.10(a) and 4.04 . | change of lending office | Given the provision, provide with the correct label for the given provision |
NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR THE ISSUING LENDER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ANY OTHER LOAN PARTY OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION. | submission to jurisdiction | Given the provision, provide with the correct label for the given provision |
If the Option Shares are issued pursuant to SEC Rule 701 promulgated under the Securities Act, the Option Shares may become freely tradable by non-affiliates (under limited conditions regarding the method of sale) ninety (90) days after the first sale of Option Shares to the general public pursuant to a registration statement filed with and declared effective by the SEC. | compliance with securities laws | Given the provision, provide with the correct label for the given provision |
If on the date of such determination the aggregate Revolving Multicurrency Credit Exposure minus the Multicurrency LC Exposure fully Cash Collateralized on such date exceeds 105% of the aggregate amount of the Multicurrency Commitments as then in effect, the Borrower shall prepay the Syndicated Multicurrency Loans and Swingline Multicurrency Loans (and/or provide Cash Collateral for Multicurrency LC Exposure as specified in Section 2.05(k) ) within 15 Business Days following the Borrower’s receipt of notice from the Administrative Agent pursuant to clause (b)(i) above in such amounts as shall be necessary so that after giving effect thereto the aggregate Revolving Multicurrency Credit Exposure does not exceed the Multicurrency Commitments. | prepayments | Given the provision, provide with the correct label for the given provision |
The parties agree that Executive's employment with the Company is "at-will" employment and may be terminated at any time with or without cause or notice. | at-will employment | Given the provision, provide with the correct label for the given provision |
Accordingly, except with respect to Greenfield Projects and Rejected Sales Contracts, Loop acknowledges that the Loop Parties will not use the Licensed Subject Matter to (i) manufacture or use Licensed Products at any Existing Facility, (ii) retrofit any Existing Facility for such purpose, or (iii) offer for sale, sell, import or distribute Licensed Products made at any such retrofitted Existing Facilities. | exclusivity | Given the provision, provide with the correct label for the given provision |
The Master Servicer may, with the prior consent of the Agents, subcontract with any other Person for servicing, administering or collecting the Pool Receivables, provided that the Master Servicer shall remain liable for the performance of the duties and obligations of the Master Servicer pursuant to the terms hereof and such subservicing arrangement may be terminated at the Administrative Agent’s request, at any time after a Successor Notice has been given. | subcontracts | Given the provision, provide with the correct label for the given provision |
Context:
Execution version
Exhibit 10.3
CONFIDENTIAL TREATMENT REQUESTED - REDACTED COPY Confidential Treatment has been requested for portions of this Exhibit. Confidential portions of this Exhibit are designated by [*****]. A complete version of this Exhibit has been filed separately with the Securities and Exchange Commission.
GLOBAL MAINTENANCE AGREEMENT Contract No. DS/CS-3957/14 issue 7
Between
AZUL LINHAS AÉREAS BRASILEIRAS S/A (as Company)
and
AVIONS DE TRANSPORT REGIONAL, G.I.E. (as Repairer)
March 9th, 2015
AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 1/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONTENTS Clause Page 1. SUBJECT-MATTER OF THE AGREEMENT 6 2. DEFINITIONS AND INTERPRETATION 6 3. DURATION AND RENEWAL 15 4. EXCUSABLE DELAY 15 5. SERVICES, LEASE AND OBLIGATIONS OF THE PARTIES 16 6. DELIVERIES 18 7. WORK ORDERS 20 8. INSURANCES 21 9. WARRANTIES 22 10. PRICES 22 11. RECONCILIATION 22 12. INVOICING AND PAYMENT TERMS 23 13. SECURITY DEPOSIT 26 14. DISCLAIMER 27 15. LIABILITY AND INDEMNITY 27 16. TERMINATION 28 17. CONDITIONS PRECEDENT 31 18. EXPORT CONTROL 31 19. NOTICES 31 20. CONFIDENTIALITY 32 21. TAXES 34 22. ASSIGNMENT 34 23. MISCELLANEOUS 35 24. GOVERNING LAW AND ARBITRATION 37 AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 2/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version EXECUTION PAGE 39 EXHIBIT 1 - LIST OF ATR AIRCRAFT COVERED UNDER THIS AGREEMENT 40 EXHIBIT 2 - LIST OF SERVICES PROVIDED UNDER THIS AGREEMENT 42 EXHIBIT 3 - MAIN ELEMENTS COVERED UNDER THE AGREEMENT 43 EXHIBIT 4 - LIST OF LANDING GEAR ON CONDITION PARTS 44 EXHIBIT 5 - STOCK 45 EXHIBIT 6 - LRUS COVERED BY REPAIR AND STANDARD EXCHANGE SERVICES 61 EXHIBIT 7 - REPAIRER STANDARD WORK ORDER FORMS 70 EXHIBIT 8 - LEASE OF THE STOCK 74 EXHIBIT 9 - SPARE PARTS STANDARD EXCHANGE SERVICE 80 EXHIBIT 10 - LRUS REPAIR SERVICE 84 EXHIBIT 11 - MAIN ELEMENTS SERVICES 86 EXHIBIT 12 - INTENTIONALLY LEFT BLANK 92 EXHIBIT 13 - FORM OF STANDBY LETTER OF CREDIT 93 EXHIBIT 14 - PRICE CONDITIONS 94 EXHIBIT 15 - ADVANCED POOL SERVICE 101 EXHIBIT 16 - ADVANCED POOL STOCK 106 EXHIBIT 17 - INSURANCE CERTIFICATES 108 EXHIBIT 18 - NOTA FISCAL REPORTING 109 AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 3/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version THIS GLOBAL MAINTENANCE AGREEMENT (HEREINAFTER REFERRED TO AS THE "AGREEMENT" OR "GMMA") IS MADE ON March 9th 2015:
BETWEEN:
AZUL LINHAS AÉREAS BRASILEIRAS S/A, a company incorporated under the laws of Brazil, the registered office of which is located at Avenida Marcos Penteado de Ulhôa Rodrigues, 939 - Edif. Castello Branco Office Park - Torre Jatobá - 9° andar - CEP 06460-040 - Alphaville Industrial - Barueri - São Paulo - Brazil, identified under Cadastro Nacional de pessoa Juridica (CNPJ) number 09.296.295/0001-60.
Hereafter referred to as the "Company" or "AZUL",
on the one part,
AND:
AVIONS DE TRANSPORT REGIONAL, G.I.E., a French groupement d'intérêt économique established under articles L.251-1 to L251-23 of the French Commercial Code, whose registered office is at 1 allée Pierre Nadot, 31712 Blagnac, France identified under Corporate and Trade Register of Toulouse number 323 932 236,
Hereafter referred to as the "Repairer"or "ATR",
on the other part.
Hereinafter individually referred to as the "Party" or collectively as the "Parties", as the context requires. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 4/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version RECITALS:
1) WHEREAS AZUL and ATR have entered into a Global Maintenance Agreement ref DS/CC-2612/10 (dated December 24t h, 2010) to support AZUL ATR aircraft fleet for operational support tasks as well as scheduled and unscheduled maintenance, as amended from time to time ("GMA AZUL"); and,
2) WHEREAS TRIP and ATR have entered into a Global Maintenance Agreement ref DS/C- 2883/09 (dated September 10t h, 2010) to support TRIP ATR aircraft fleet for operational support tasks as well as scheduled and unscheduled maintenance, as amended from time to time ("GMA TRIP"); and,
3) WHEREAS pursuant to an investment agreement dated on May 25, 2012, entered into between Trip shareholders and Azul S.A., TRIP became a wholly owned subsidiary of the latter, integrating the Azul Group which already includes AZUL, an operating company, as duly approved in due time by their respective corporate governing bodies and the relevant authorities (National Civil Aviation Agency-"ANAC"-and Brazilian Antitrust Authority-"CADE"); and 4) WHEREAS further to operation as detailed above in 3), AZUL progressively operated an enlarged fleet of Aircraft coming from TRIP;and,
5) WHEREAS, in consideration of the local repair service in Brazil and the Aircraft fleet now solely operated by AZUL, the Parties wish to terminate the GMA TRIP and the GMA AZUL, and to enter into negotiation for a new GMLA between ATR and AZUL, on the terms and conditions set forth herein.
NOW THEREFORE, IT IS HEREBY AGREED AS FOLLOWS: AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 5/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version
1. SUBJECT-MATTER OF THE AGREEMENT
This Agreement describes the terms and conditions according to which the Repairer (i) shall provide, or cause its Subcontractors to provide, Services for the Company's Aircraft fleet; and (ii) agrees to lease the Stock to the Company and the Company agrees to take the Stock on lease, subject to the terms and conditions set forth on Exhibit 8.
2. DEFINITIONS AND INTERPRETATION
2.1 Unless otherwise defined, capitalised terms, singular or plural, used in this Agreement shall have the meaning set out below: "Abnormal Use"
means any usage, maintenance, storage, handling of the Aircraft, or its sub-assemblies, or its systems, or Items fitted on it including LRUs, Main Elements, Spare Main Elements, that does not comply with all applicable technical documentation and any other instructions issued by the manufacturers and which is not attributable to the Repairer or Subcontractors, including: (i) Any failure by the Company to correctly comply with any Repairer and/or OEM instructions or recommendations, technical directives, or any workmanship defect, lack of qualification, non- approved repair and/or maintenance method; or, (ii) Any negligence or failure to exercise reasonable effort(s) made to initiate corrective action(s), or lateness or total or partial failure in undertaking corrective action(s), for Aircraft or LRU(s) or Main Element(s) malfunctions which should have been reasonably identified by the Company; or, (iii) Any Aircraft, LRU(s) or Main Element(s) suffering damage or premature removal arising out of or in connection with any defective storage, inappropriate Packaging or transport by the Company or its forwarder agent, or gross negligence or wilful misconduct of the Company(or its subcontractors or agents); or (iv) Any events or circumstances, including: FOD, abnormal wear, hard contact, material drop or shock, engine fire or submersion, lightning strike, hard landing, hail (including on storage position), partial or total destruction or loss of Aircraft, LRU(s) or, Main Element(s);
"Affiliates" means with respect to any entity, any entity Controlled by, Controlling or under Common Control with, the first entity, and/or their respective lawful successors and/or assigns;
"Agreement" has the meaning set forth in page four (4) here above;
"Aircraft"
means collectively or individually as the context requires the ATR aircraft listed in Exhibit 1 ("List of ATR Aircraft covered under this Agreement"), amended from time to time by way of notice sent to the Company , as relevant, by Repairer in order to cover any further ATR aircraft entering the Company's fleet, including the airframe, engines, propellers and landing gears and parts installed on the Aircraft, when solely operated by the Company ; AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 6/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED "Airworthiness Authority"
means, in respect of any jurisdiction, the Government Entity, which under the laws of such jurisdiction, has control over civil aviation or the registration, airworthiness, operation of aircraft in such jurisdiction, including, in the European Union, the European Aviation Safety Agency (the "EASA") and, in the United States of America, the Federal Aviation Administration (the "FAA");
"Airworthiness Directives" or "AD" means enforceable rules issued by the relevant Airworthiness Authorities that have a mandatory impact on Aircraft operation and/or maintenance;
"Aircraft Maintenance Manual" or "AMM"
means the customized manual, drafted in compliance with the ATA100 specifications, issued by ATR, as Aircraft manufacturer, and which is split into three (3) separate parts, namely: the Description and Operation Manual, the Trouble Shooting Manual and the Job Instruction Cards; the purpose of which is to provide all information required for Aircraft maintenance, while ensuring personnel and flight safety;
"Aircraft On Ground" or "AOG"
means the highest priority designation to process a requirement for an LRU and/or maintenance action; when applied to an Aircraft, such term indicates that such Aircraft is unable to continue or to be returned to revenue service until that appropriate action is taken;
"ANAC" means Agência Nacional de Aviação Civil, the Brazilian Civil Aviation Authority;
"ATA" means Air Transport Association of America Inc.;
"ATA 300"
means documentation issued by ATA (as amended from time to time, or any other ATA's substituted documentation) reviews the design, development and procurement of effective packaging of supplies shipped by either Party to the other Party; it provides packaging instructions for repairable and expendable units and components, included packaging standards for kits, preparation of hazardous materials for shipment and handling of electrostatic discharge sensitive devices.
"BER" or "Beyond Economical Repair"
means the case in which the repair cost of any unserviceable Item is greater than [*****] of the price for a brand new identical LRU and/or Main Element;
"BUR" or "Basic Unscheduled Removal"
means any basic unplanned removal, premature removal of a LRU or a Main Element, due to a sub- component or accessory induced malfunction. Likewise, removal of a LRU and/or a Main Element, component or accessory due to a problem which could have been rectified using troubleshooting and/or corrective line maintenance actions as specified in the applicable AMM is not considered to be a BUR;
"Business Day" means a day, other than a Saturday or a Sunday, on which banks are open for the transaction of domestic and foreign exchange business in Paris (France) and São Paulo (Brazil);
"CMM" or "Component Maintenance Manuals"
means a manual issued either by any relevant OEM and containing instruction concerning the overhaul and/or repair of components together with procedures for restoring such components to a fully serviceable condition. These manuals shall be compliant with ATA100 Specification; [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 7/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version "Confidential Information"
means all and/or any part of any information and/or data disclosed to and/or obtained by either Party from the other Party during the Term relating to or in connection with the performance of this Agreement; such information is conclusively considered as confidential without it being necessary to mention at the moment of its disclosure, and includes: (i) technical information, such as instructional know-how, academic and/or practical maintenance courses and/or aircraft piloting courses, programs, software, manufacturing secrets, processes, prototypes, research work, studies, plans, sketches, formulae, samples, specifications, diagrams, etc., (ii) commercial information, such as list of customers, suppliers, etc., (iii) financial (tariffs, margins, market parts, etc.), (iv) legal information, such as the Agreement, Exhibits, contracts, amendments, appendices, contractual relations, negotiations, partners, etc. and (v) written, electronic or oral information (hard copy, computer, digital, etc.);
Control", "Controlled", "Controlling" and "Common Control"
are to be interpreted as follows: "I. A company is deemed to control another company: (i) When it directly or indirectly holds a fraction of the capital that gives it a majority of the voting rights at that company's general meetings; (ii) When it alone holds a majority of the voting rights in that company by virtue of an agreement entered into with other partners or shareholders and this is not contrary to the company's interests; (iii) When it effectively determines the decisions taken at that company's general meetings through the voting rights it holds; (iv) When it is a partner in, or shareholder of, that company and has the power to appoint or dismiss the majority of the members of that company's administrative, management or supervisory structures. II.—It is presumed to exercise such control when it directly or indirectly holds a fraction of the voting rights above 40% and no other partner or shareholder directly or indirectly holds a fraction larger than its own. III.—For the purposes of the same sections of the present chapter, two or more companies acting jointly are deemed to jointly control another company when they effectively determine the decisions taken at its general meetings".
"Core Unit" means any unserviceable LRU returned by the Company to the Repairer as a counterpart to standard exchange;
"Credit Note" "Credit Note" Means the credit note to be issued by the Repairer in accordance with Clause 11 ("Reconciliation") of this Agreement.
"CSN" means the accrued Cycles Since New;
"CSO" means the accrued Cycles Since Overhaul;
"CY" or "Cycle" means a completed Aircraft takeoff and landing sequence;
"Day" means a calendar day; AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 8/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version "Default" means any failure by either Party to perform or observe any material obligation under this Agreement, including as set forth with Clause 16.1 b) and including Abnormal Use;
"Delivery" means the act of the Repairer putting at the Company's disposal any Item at Delivery Location according to the terms of this Agreement;
"Delivery Location" means the Repairer's facility as defined under Clause 6 ("Deliveries") of this Agreement;
"Early Event"
concerns LRU and/or Main Element and/or Aircraft airframe maintenance subject to Scheduled Event and designates a situation where a Scheduled Event takes place before it is scheduled pursuant to Exhibit 11 Clause 1.2 for the Main Element and/or to the CMM for the LRU when applicable;
"End Date"
means the date on which this Agreement is terminated or expires, and shall be the earlier to occur of the following, as appropriate: (i) the end of the Initial Term as defined in Clause 3.1of this Agreement; or, (ii) the end of the term of each annual renewal of this Agreement as per Clause 3.2 of this Agreement; or, (iii) the date on which all or part of this Agreement is terminated as per Clause 16 ("Termination");
"Euros" or "€" designates the legal currency of the member countries of the European Union who have adhered to the European Monetary Union;
"Excusable Delay" has the meaning set forth in Clause 4.1 of this Agreement;
"Fleet Turnover" means the amount normally invoiced under this Agreement using the Standard Operations and all applicable prices in Exhibit 14 ("Price conditions");
"FH"or "Flight Hour" means airborne flight hour, the unit of measure of each Aircraft flight activity for the time elapsed between Aircraft take-off and Aircraft landing;
"FOD"
stands for Foreign Object Damage and means any damage, whether direct or indirect, to any Item and/or the airframe caused as a result of or related to any foreign object not forming part of any Item and/or the airframe;
"Government Entity" means any national government, political subdivision thereof, or local jurisdiction thereof;
"Incoterms" means the international rules for the interpretation of trade terms published by the International Chamber of Commerce ("ICC"), 2000 edition;
"Initial Term" has the meaning set forth in Clause 3.1 of this Agreement;
"Item"
means, as the case may be, any LRU, Main Element, Spare Main Element, any of their sub- assembly or sub-component, any part of the Stock, or for the sake of clarity any part covered under this Agreement; AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 9/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED "Law" means any applicable law, order, statute, statutory instrument, regulation, decree, directive or instrument of equivalent effect;
"LIBOR"
stands for "London Interbank Offered Rate", which designates the annual rate equal to one month in Eurodollars quoted at 11:00 hours or approximately 11:00 hours (London time), as indicated on "Reuters screen" LIBOR01page, for an amount and period selected by the Repairer, which is available to the subscribers to the Telerate electronic display terminal, [*****] prior to the corresponding period;
"LOC" or "StandBy Letter of Credit"
means an irrevocable letter of credit in the form or substantial form stipulated by Exhibit 13 ("Form of StandBy Letter of Credit"), in accordance with Uniform Customs and Practice ("UCP") for the documentary credit, 2007 revision, ICC publication n°600, issued by a major international bank, confirmed by and domiciliated in NATIXIS, Paris, France, provided by the Company to the Repairer in accordance with Clause 13 ("Security Deposit") of this Agreement;
"Loss"
means any and all losses, costs, charges, expenses, interests (including default interest), fees (including legal fees and value-added tax thereon if applicable), payments, demands, liabilities, claims, actions, proceedings (including stamp, documentary, registration or other duties, taxes or any charges incurred by and/or in connection with proceedings), penalties, damages, adverse judgments, orders or other sanctions;
"Lost Potential" with respect to LRU and/or Main Elements subject to Scheduled Events, designates, in the case of an Early Event, [*****];
"LRU(s)" or "Line Replaceable Unit(s)"
means any equipment that can be replaced on line by the Company's technicians and listed into Exhibit 6 ("LRUs covered by repair and standard exchange Services");
"Main Element"
means a propeller and/or a landing gear and/or an engine as listed in Exhibit 3 ("Main Elements and part numbers covered by this Agreement") and/or in Exhibit 5 ("Stock"), or any of their respective sub-assemblies;
"MMEL" or "Master Minimum Equipment List"
means a document provided by ATR providing operating and maintenance procedures for a categorized list of systems, instruments and equipment on an ATR aircraft that may be inoperative for flight;
"Mean Time Between Unscheduled Removals" or "MTBUR"
means a figure for assessing performance calculated by dividing the total number of FH of the ATR aircraft worldwide fleet during a given period, by the number of unscheduled removals of LRUs recorded during the same period on the same fleet;
[*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 10/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version "MPD" or "Maintenance Planning Document"
means the documents issued by the Aircraft manufacturer, providing periodic maintenance requirements data necessary to plan and conduct the Aircraft maintenance checks and inspections, in force on the Signing Date;
"MRBR"
means the Maintenance Review Board Report, which outlines the initial minimum maintenance requirements to be used in the development of an approved continuous airworthiness maintenance program for the Aircraft, and which is issued by the Maintenance Review Board ("MRB");
"Measured Removal Rate(s)" or "MRR"
designates, for the Aircraft and depending on the Aircraft age, the quantity of LRU removals per one thousand (1,000) FH, established in units and tens, to be measured during each period of three (3) consecutive Months of Aircraft activity during the Term for all LRUs listed into Exhibit 6 ("LRUs covered by repair and standard exchange Services") excluding Main Elements and/or Main Element subassemblies, repair warranty and "Rogue" units;
"Month"
refers to a period starting on one day in a calendar month and ending on the numerically corresponding day in the next calendar month (and references to months shall be construed accordingly) save that, where any such period would otherwise end on a non-Business Day, it shall end on the next Business Day, provided that if a period starts on the last Business Day in a calendar month or if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last Business Day in that later month;
"NFF" or "No Fault Found"
means any event where an Item removed from an Aircraft by the Company and returned to the Repairer for repair is declared serviceable with non-confirmed fault by the latter through strip report or where a serviceable Item removed from the Pool by the Repairer and delivered to the Company under the standard exchange Service set out in Exhibit 9 ("Spare parts standard exchange Service") is returned by the Company to the Repairer unused;
"Notice"
means any notice or communication pertaining to this Agreement which shall be given in writing delivered by hand and/or by courier service with proof of delivery and/or by fax, and: a) if delivered by hand, shall have been deemed received when so delivered; or, b) if delivered by registered mail, shall be deemed to have been received by the addressee on the Day on which it shall have signed as received; or, c) if delivered by fax, shall be deemed to have been received by the addressee on the next Business Day following electronic acknowledgement. In the event a Party chooses to give a Notice by several of the aforesaid means, the earliest of the receipt dates will be considered. In any case, any notice or communication shall be also transmitted by an e-mail with attached copy of such (in format PDF or similar support)n, for courtesy purpose only. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 11/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version "OEM" or "Original Equipment Manufacturer"
means a manufacturer of parts other than ATR manufactured parts including the engine manufacturer, the propeller manufacturer, the landing gear manufacturer or an LRU manufacturer;
"Packaging" or "Packed"
means packaging of any Item or packed Item, as relevant, shipped by either Party to other Party under the Agreement, in compliance with the following: (i) Repairer's and/or its suppliers' and/or its Subcontractors' and/or OEM's recommendations, as relevant; and (ii) ATA 300 specifications for air transport; and/or (iii) International Carriage Of Dangerous Goods By Road ("ADR") regulation for good and reusable condition; and/or, (iv) International Air Transport Association ("IATA") Dangerous Goods Regulations, for any shipment of dangerous Items. "Person" means any state, division of a state, Government Entity, individual or corporate body or any association of any one or more of the foregoing;
"Pool"
designates a stock of serviceable LRUs listed in Exhibit 6 ("LRUs covered by repair and standard exchange Services"), available on a non-exclusive basis to the Company under standard exchange Service as per Exhibit 9 ("Spare parts standard exchange Service"); such Pool may be amended from time to time by the Repairer by way of Notice sent to the Company, in compliance with this Agreement, subject to Company's approval.
"Repair Shop" means any FAA/EASA part 145 or ANAC approved repair shop selected by the Repairer and acting as its Subcontractor;
"Repairer Indemnified Parties"
means the Repairer and/or ATR, as relevant, and/or their Affiliates and/or their respective lawful successors and/or assigns and/or their respective subsidiaries, officers, directors, employees, agents or Subcontractors;
"Reference Removal Rate(s)" or "RRR"
designates the standard reference rate of LRU removals per one thousand (1,000) FH, established in units and tens, during each period of six (6) consecutive Months of Aircraft activity during the Term for all LRUs listed into Exhibit 6 ("LRUs covered by repair and standard exchange Services") excluding Main Elements and/or Main Element sub-assemblies, and indicated in Clause 1.3.1 of the Exhibit 14 ("Price conditions");
"Rogue Units"
designates a LRU for which the same serial number has been removed from an Aircraft on three (3) or more occasions for similar discrepancies (except regarding specific services not covered by the Services and except to the extent caused by Company's Default), or four (4) NFF based on official Repair Shop data within a twelve (12) Month period, with confirmation of approved trouble shooting as per the CMM and/or the AMM; AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 12/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version "Scheduled Event"
with respect to LRUs and/or Main Elements and/or Aircraft airframe that are subject to programmed overhauls and/or inspections, designates such overhaul and/or inspections that shall take place after a specified number of accrued FH and/or Cycles or Months as set out in Exhibit 11 ("Main Elements Services") for the Main Elements and in the CMM for the relevant LRUs;
"Security Deposit"
designates the cash payment and/or the LOC issued, as security for the Company's performance of all of its obligations under this Agreement, in compliance with Clause 13 ("Security Deposit") of this Agreement;
"Service"
means any and all operational support tasks to be carried out by the Repairer and/or its Subcontractors under this Agreement, as defined in Exhibit 2 ("List of Services provided under this Agreement");
"Signing Date" means the date indicated on page four (4) of this Agreement and refers to the date on which this Agreement is signed by both Parties;
"Spare Main Element" means the spare Main Element(s) the Repairer makes available to the Company during Main Element maintenance according to Exhibit 11 ("Main Elements Services");
"Standard Operations" has the meaning set forth in Clause 3.2 of Exhibit 14 ("Price conditions");
"Start Date" means the date occurring thirty (30) Days after the Signing Date, subject to fulfilment of the conditions set out in Clause 17 ("Conditions precedent");
"Stock" means all or part of the Items, as relevant, listed in Exhibit 5 ("Stock");
"Storage Location" means Company's facilities where the Stock is located as defined in Exhibit 8 ("Lease of the Stock");
"Subcontractor" means any Person, including a Repair Shop, engaged by the Repairer to support the Repairer in the performance of its contractual obligations under this Agreement;
"SWIFT" stands for the Society for Worldwide Interbank Financial Telecommunication;
"Taxe(s)"
mean any and all present or future fees (including license, recording, documentation and registration fees), taxes [including income taxes, gross receipts taxes, capital taxes, franchise taxes, net worth taxes, gross profits taxes, sales taxes, rental taxes, use taxes, turnover taxes, value added taxes, ad valorem taxes, property taxes (tangible and intangible), excise taxes, customs or import duty, documentary and stamp taxes], licenses, levies, imposts, duties, charges, assessments or withholdings of any nature whatsoever, whether now existing or hereafter adopted, enacted or amended, howsoever imposed, levied or asserted by any Government Entity or taxing authority together with any and all penalties, fines, additions to tax and interest thereon;
"TBO" stands for Time Between Overhaul and means the FH or CY elapsed between two (2) consecutive overhauls;
"Term" means the period of time starting from the Signing Date and ending on the End Date; AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 13/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version "Time and Material"
means any sale of goods and services, not covered by the scope of this Agreement and charged to the Company, which is subject to the "ATR General Terms and Conditions for the Sale of Goods and Services";
"TNR" or "Technically Non Reparable"
means where an unserviceable Item (i) is not repairable according to ATA 100 and/or (ii) for which no technical repair can be considered;
"TSN" or "Time Since New" means the FH elapsed since new;
"TSO" or "Time Since Overhaul" means the FH elapsed since the last overhaul;
"US Dollar" or "$" designates the legal currency of the United States of America;
"Vendor Warranty Manual"
means the manual giving details of the warranties granted by an OEM with respect to certain parts of Aircraft, provided by the said OEM;
"Week" means a period of seven (7) Days;
"Work Order" means any order issued by the Company to the Repairer for any of the Services and being one of the forms set out in Exhibit 7 ("[Repairer standard Work Order forms"), as applicable.
2.2 In this Agreement, save as otherwise expressly indicated to the contrary, any reference to: 2.2.1 this Agreement or any other agreement or document shall be construed as a reference to this Agreement or such other agreement ordocument as amended, novated or supplemented from time to time; any reference to this Agreement includes its Exhibits; and, 2.2.2 any Clause shall be construed as a reference to a clause of this Agreement and/or of an Exhibit to this Agreement, as relevant; and, 2.2.3 any Exhibit shall be construed as a reference to an Exhibit to this Agreement; and, 2.2.4 Headings: Clauses and Exhibits headings and sub-headings are used in this Agreement only for the ease of reading. They are notintended to affect its meaning and should not be used for the sake of its construction; and, 2.2.5 "including"shall be construed as a reference to "… including, without limitation,…" or "… including but not limited to…"; and, 2.2.6 Singular and plural: wherever the context so requires, the singular shall include the plural and vice versa; and, 2.2.7 a date will be by reference to the Gregorian calendar; and, 2.2.8 "in writing" includes any modes of reproducing words in a legible and non-transitory form but does not include e-mail (but caninclude the copy "PDF" of any document sent AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 14/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED by e-mail); and,
3. DURATION AND RENEWAL
3.1 The Agreement enters into force on the Signing Date; it will have a duration of [*****] as from the Start Date (the "Initial Term"). 3.2 Upon expiry of the Initial Term, this Agreement [*****] unless a Notice of non-renewal is given by either Party to the other Party [*****] prior to the expiry of the Initial Term or the end of a renewal period, if any. 3.3 The Agreement shall end on the End Date without any further action, unless otherwise provided under this Agreement.
4. EXCUSABLE DELAY
4.1 If a Party (the "Affected Party") is prevented, hindered or delayed from or in performing any of its obligations under this Agreement by an event which is unpredictable and unavoidable, including war or civil or foreign armed aggression, riots, fires, floods, explosions, earthquakes or accidents, epidemics or quarantine restrictions, any act of a Government Entity, embargoes, export prohibitions, failure by a subcontractor and/or vendor to furnish supplies or parts or delay the same, strikes or labour troubles causing cessation of work, such event will be referred to as an "Excusable Delay". 4.2 The Affected Party will give Notice to the other Party (the "Non-Affected Party") of such Excusable Delay as soon as reasonably possible after it becomes aware thereof, and the Affected Party will use its reasonable endeavours to mitigate the effects of such Excusable Delay, without being obliged however to incur any unreasonable costs. 4.3 Neither Party shall be held liable, or deemed to be in Default, if it fails to perform its obligations under this Agreement due to an Excusable Delay; without prejudice to Clause 4.5 hereinafter, the time fixed for the performance by the Affected Party of its obligations affected by the Excusable Delay shall be equivalent to the time set out under this Agreement plus a grace period equivalent to the time lost further to the occurrence of and because of the Excusable Delay. 4.4 As soon as reasonably possible after the end of the Excusable Delay, the Affected Party shall give Notice to the Non-Affected Party that the Excusable Delay has ended. 4.5 If the Excusable Delay continues for more than [*****] as from the receipt by the Non-Affected Party of the Notice as per Clause 4.2, each Party shall be entitled to terminate this Agreement according to the terms of Clause 16.4 hereof.
5. SERVICES AND OBLIGATIONS OF THE PARTIES
5.1 Services [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 15/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED The Repairer shall provide the Company with the Services listed in Exhibit 2 ("List of Services provided under this Agreement"). 5.2 General conditions of the Services
5.2.1 The Services shall comply with the applicable AMM, MRBR and MPD issued by ATR, as Aircraft manufacturer, and the relevant CMM in force as of the Signing Date, and with the EASA and/or FAA or ANAC regulations in force at the time of performance of such Services
5.2.2 Should the AMM, MRBR or the MPD be modified in a manner that is likely to modify or impact the performance of the Services, the Parties hereby agree to negotiate in good faith the consequences of such modifications and impacts on this Agreement (including on the prices set out in Exhibit 14 "Price conditions").
5.2.3 Audit of the Repair: Company shall have the right, under EUR OPS or PART M equivalent applicable regulation approval, to audit the management and the performance of the Services provided by the Repairer under this Agreement, subject to giving a [*****] prior Notice to the Repairer. The cost of any such audits by the Company's representative(s) shall be borne by the Company unless if, as a result of that audit, the Repairer is found to be in Default, in which cases the cost of such audit will be borne by the Repairer. 5.2.4 Company's audit: at any time during the Term, the Repairer may: (i) audit the management and the performance of the Company's maintenance activities which are still under Company'sresponsibility; and/or, (ii) arrange for operational visits, in order to check that the Company complies with its obligations under this Agreement; and/or, (iii) investigate in any place, with the assistance of the Company, the causes of any abnormal removal or failure rate of any Itemand/or Abnormal Use.
The Repairer shall give a Notice to the Company no later than [*****] prior to such audit or operational visit.
The Company shall provide at no cost for the Repairer all necessary support to the Repairer's representative(s) and give access to: (i) the Company's facilities or any other place where the Aircraft and/or any data or document related to Aircraft maintenance andoperations that the Repairer may require may be located; and, (ii) the exact number of accumulated FH and Cycles for any Aircraft and Items operating or maintenance records.
Unless otherwise agreed between the Parties, any operational visit shall be conducted during the scheduled operations of the Aircraft and the Repairer or its representative(s) shall use its reasonable endeavors not to disrupt the Company's scheduled operations.
The cost incurred by the Repairer to conduct such audits and visits will be borne by the Repairer unless (i) a Company's Default (as defined in Clause 16 "Termination") has occurred and/or (ii) as a result of that audit or visit, the Company is found to be in Default, in which cases the cost of such audit or operational visit will be borne by the Company .
The Repairer has no duty or obligation to perform any audit or operational visit and shall [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 16/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED not incur any obligation or liability if it does not perform any of its audit or operational visit rights referred to in this Clause 5.2.4.
The Repairer shall notify the Company of the outcome of any such audit or operational visit and of any remedial action that the Company shall perform to comply with its obligations under this Agreement. The Company shall carry out all such remedial actions within a mutually agreed time period , otherwise the Company shall be deemed in Default.
It is acknowledged and agreed that any audit or operational visit by the Repairer will be conducted by the Repairer for its own purposes in connection with this Agreement and the Repairer shall have no responsibility, liability or obligations with respect to the safety compliance with any AD, operation or, except as otherwise provided herein, maintenance of any Aircraft, all of which shall be the sole responsibility, liability and obligation of the Company. 5.3 Obligations of the Parties 5.3.1 Obligations of the Company
5.3.1.1 As a counterpart to the terms and conditions (including pricing conditions) agreed between the Parties under this Agreement [*****]. In the event, the Company fails to do so, the Repairer shall be entitled to revise such terms and conditions in order to take into account such failure. 5.3.1.2 During the Term, the Company shall: (i) operate and maintain the Aircraft in compliance with all applicable technical documentation and any otherinstructions issued by ATR and the OEM; and, (ii) remove and install LRUs and Main Elements from and on Aircraft; and,
(iii) comply with any AD, and order such incorporation or modifications from the Repairer; and consequently manage the update of Aircraft, LRUs and Main Elements mandatory or regulatory technical notices and log books and deliver to the Repairer a copy of such documentation upon each maintenance event or upon Repairer's request; and, (iv) promptly inform the Repairer in case the Company or their insurer intends to attend any LRU or Main Element tear-down at the Repair Shop; and,
(v) provide the Repairer not later than the tenth (10t h) Day of each Month with an activity report relating to each Aircraft and each Main Element serial number, and containing at least FH and Cycles performed during the preceding Month, the TSN, CSN, TSO, CSO, and the removals/installations events during such Month; and, (vi) preserve the Aircraft, any Main Elements and/or any and all sub-assemblies in accordance with the AMM in caseany Aircraft is temporarily unused by the Company for any reason whatsoever. 5.3.2 Obligations of the Repairer
During the Term, the Repairer shall use its reasonable commercial endeavors, in accordance [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 17/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED with this Agreement: (i) to carry out the Services pursuant to the Work Order(s) placed by the Company ; and, (ii) to ensure that the Services provided to Company shall comply with EASA, FAA or ANAC regulations in force, as applicable (iii) in the event of specific or exceptional circumstances affecting the Company or the Repairer, to obtain the assistance of anyone or several third Parties servicers or suppliers of spare parts, subject to the Company s prior approval; and (iv) to administer LRUs and Main Elements warranty claims issued by the Company.
6. DELIVERIES
The Delivery Location shall be one of the addresses set out in Clauses 6.1 and 6.2 hereafter as the context requires. 6.1 Items delivered by the Repairer to the Company
Unless otherwise set forth in this Agreement, the Repairer shall deliver to the Company: 6.1.1 any Item as relevant in accordance with Exhibits 8 ("Lease of the Stock"), , 11 ("Main Elements Services") and 15 ("Advanced PoolStock"), [*****] and Packed at the following address:
ATR Customer Support C/O DHL Solutions ZA du Pont Yblon 95500 Bonneuil en France
And;
any Item from the List A of the Exhibit 6 ("LRUs covered by repair and standard exchange services"), as relevant in accordance with Exhibit 9 ("Spare parts standard exchange Service") and Exhibit 10 ("LRUs repair Service"), [*****] and Packed at the following address:
ATR Customer Support C/O DHL Solutions ZA du Pont Yblon 95500 Bonneuil en France
And:
any Item from the List B of the Exhibit 6 ("LRUs covered by repair and standard exchange services"), as relevant in accordance with Exhibit 9 ("Spare parts standard exchange Service") and Exhibit 10 ("LRUs repair Service"), [*****] and Packed at the following address:
Helibras - Helicópteros do Brasil - Air Bus Helicopters Rodovia Dom Pedro I - Km 87 - Pista Norte Condomínio Barão de Mauá - Atibaia - São Paulo [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 18/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED or at any other address the Repairer may from time to time notify to the Company. 6.1.2 Intentionally left blank 6.2 Items returned by the Company to the Repairer
The Company shall return to the Repairer: 6.2.1 any Item as relevant, in accordance with Exhibits 8 ("Lease of the Stock"), 11 ("Main Elements Services") and 15 ("Advanced PoolStock"), [*****] and Packed at the following address:
ATR Customer Support C/O DHL Solutions ZA du Pont Yblon 95500 Bonneuil en France
And;
any Item from the List A of the Exhibit 6 ("LRUs covered by repair and standard exchange services") as relevant in accordance with Exhibit 9 ("Spare parts standard exchange Service") and Exhibit 10 ("LRUs repair Service"), [*****] and Packed at the following address:
ATR Customer Support C/O DHL Solutions ZA du Pont Yblon 95500 Bonneuil en France
And:
any Item from the List B of the Exhibit 6 ("LRUs covered by repair and standard exchange services") as relevant in accordance with 9 ("Spare parts standard exchange Service") and 10 ("LRUs repair Service"), [*****] and Packed at the following address:
Helibras - Helicópteros do Brasil - Air Bus Helicopters Rodovia Dom Pedro I - Km 87 - Pista Norte Condomínio Barão de Mauá - Atibaia - São Paulo
or at any other address the Repairer may from time to time notify to the Company. 6.2.2 Intentionally left blank 6.3 Nota fiscal reporting
Regarding the Items flow between the Stock and the Pool and vice et versa, as set forth under Clause 6 hereof, the Parties shall have the following obligations: - From Stock to Pool: the Company shall issue in due time any necessary document or required by the Repairer, including the "NotaFiscal" which shall comprise full, accurate [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 19/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED and complete information (as further detailed here below) and be in a form and substance compliant with applicable laws and regulations.
- From Pool to Stock: subject to receipt from the Company of any necessary document or required by the Repairer as set forth here above, as relevant, the Repairer shall issue or have issued by third party in due time any necessary document or required by the Company in the frame of the Services, including the "Nota Fiscal" which shall comprise full, accurate and complete information (as further detailed here below) and be in a form and substance compliant with applicable laws and regulations. In addition, the Repairer shall provide or have provided by third party, a weekly reporting to the Company regarding the traceability of the Items and promptly answer to any request from the Company related thereto, in a form and substance in accordance with the form attached in Exhibit 18 ("Nota fiscal reporting").
For the avoidance of doubt, each "Nota Fiscal" shall be established in compliance with the relevant CFOP code according to the latest revision of SINIEF (Sistema Nacional Integrado de Informações Econômico-Fiscais), the current version is 07/01, which shall notably comprise the following element: - Seller of the goods: Name, address, contact information, Federal registration number, State Registration number - Acquirer of the goods: Name, address, contact information, Federal registration number, State Registration number - Transaction: type of transaction, nature of the transaction, transaction code, date of the transaction - Product: description, code, quantity, value, serial number of the relevant Item - Taxes : calculation basis, tax rate - Other information: freight, insurance, other costs - Additional information: in case of special taxation"
7. WORK ORDERS
During the Term, the Company shall use the appropriate Work Order form (Exhibit 7 "Repairer Standard Work Order Forms"), depending on the nature of the Service requested, and send the Work Order to the Repairer according to the notice details below or any other contact the Repairer may from time to time notify to the Company. For any Services ATR SPARES DISTRIBUTION DESK requested in standard Tel: (33) 5 62 21 60 80 conditions (including Fax: (33) 5 62 21 62 80 routine and critical): e-mail: spares.orders@atr.fr
For any Services A.O.G. DESK: requested in AOG Tel: (33) 5 62 21 62 00 conditions: Fax: (33) 5 62 21 62 62 e-mail: aog.toulouse@atr.fr 8. INSURANCES
8.1 Without prejudice to any term and condition under this Agreement, the Company shall maintain in force, at all times during the Term and [*****], at its own costs and expenses, with insurers of internationally recognized [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 20/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED reputation reasonably acceptable to the Repairer, insurances in accordance with industry standards with respect to the undertakings of the Company in Clause 15 ("Liability and Indemnity") of this Agreement including: (i) Aircraft Hull and Spares All Risks Insurances (including, to the extent usually available war and allied perils); and,
(ii) Comprehensive General Third Party Legal Liability and Aircraft Passengers and Third Party Legal Liability Insurance in respect of incidents involving Aircraft to the extent usually available, having a Combined Single Limit of not less than [*****] any one occurrence; and, (iii) Employer's liability insurance; and, (iv) Repairer's values to be insured, including: - Lease of Stock (Exhibit 8 Clause 2.2) and Advanced Pool Service (Exhibit 15): the Items of the Stock shall be insured by theCompany under Spares All Risk Insurance for not less than the full replacement value; and,
- Main Elements Service (Exhibit 11): each Spare Main Element to be delivered by the Repairer to the Company shall be insured by the Company, for not less than its full replacement value, under the Hull Insurance when installed on the Aircraft in addition to the agreed value of such Aircraft and under the Spares All Risk Insurance while in Stock prior to attachment or following removal and replacement from the Aircraft, including transportation to and from the Company. 8.2 In respect of Hull and Spares All Risk Insurances, the Repairer shall be named as additional insured and loss payee for their respective rights and interests, to the extent required under Clause 15 ("Liability and Indemnity") of this Agreement. 8.3 In respect of Liability Insurance, the Repairer shall be named as additional insured and loss payee, as relevant, to the extent required under Clause 15 ("Liability and Indemnity"), with severability of interest and confirmation that the Company policy shall be primary without right of contribution. 8.4 In respect of all of the above insurances to contain breach or warranty provisions and confirmation the policies shall not be cancelled or materially changed without [*****] prior written notice [*****] or such lesser period in respect of War and Allied Peril). 8.5 Any applicable deductible shall be borne by the Company with respect to the above insurances. 8.6 At the latest upon the Signing Date, the Company shall provide the Repairer with relevant insurance certificates, in English, evidencing insurance requirements of this Clause 8, in a form reasonably acceptable to the Repairer, to be attached to this Agreement in the Exhibit 17 ("Insurance certificates").
Upon each renewal of the relevant insurance policies, the Company shall on reasonable request provide the Repairer with relevant insurance certificates in order to evidence insurance is maintained in accordance with this Clause 8. The Company also agrees to promptly pay each premium in respect of the aforesaid insurances and in the event of its failure to take out or maintain any such insurance then, without prejudice to any other rights it may have in respect of such failure, the Repairer may do so in its place and recover the cost [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 21/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED of doing so from the Company.
8.7 The Repairer shall at its own expense procure and maintain in force, with insurers of internationally recognized reputation acceptable to the Company an Aviation Liability insurance which should include:
(i) Aviation Products Liability insurance: the Repairer shall maintain or shall cause its Subcontractors to maintain a Products Liability Insurance during the performance of the Services up to an amount not less than [*****] per occurrence and in the annual aggregate; and, (ii) Hangar Keeper Liability insurance: the Repairer shall maintain or shall cause its Subcontractors to maintain during the performance ofthe Services an Hangar Keeper Liability Insurance in an amount of not less than [*****] any one occurrence.
The Repairer shall, at the latest upon the Signing Date, provide the Company with evidence of the insurance maintained in accordance with this Clause 8.7.
9. WARRANTIES
Upon Delivery, and subject to the terms of this Agreement, including the disclaimers and limitations on liability set forth in such warranties and in Clause 14 ("Disclaimer") of this Agreement, the Company shall be entitled to the benefit of the following warranties: i) For new LRUs or Main Elements, the terms and conditions set into the related Vendor Warranty Manual and in ATR72-600 Aircraft inthe relevant clauses of the relevant Aircraft sale and purchase agreement, shall apply.
ii) For used LRUs and Main Elements repaired and overhauled by the Repairer, the warranty period shall start on the date of Delivery and shall end [*****] thereafter, whichever occurs the earliest, and such warranty shall be subject to the exclusions of warranty set forth in Exhibit 10 ("LRUs Repair Service") and in Exhibit 11 ("Main Elements Services").
10. PRICES
The Company shall pay to the Repairer the prices for the Services set out in Exhibit 14 ("Price conditions").
11. RECONCILIATION
11.1 Reconciliation: Every [*****] as from the Start Date and throughout the Term, the Parties will record the actual number of FH and Cycles [*****] of the preceding [*****] period, in order to reconcile (i) the amount effectively due to the Repairer with (ii) the total amount already paid by the Company , as relevant, as per Clause 12.1 (ii) hereafter, with respect of such period, as follows: (i) In case the amount effectively due to the Repairer with respect of the number [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 22/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED of FH and Cycles accumulated during the considered [*****] period is higher than the total amount already paid by the Company for the said period, the Repairer shall then issue an additional invoice in an amount equal to the difference between these amounts, to be paid by the Company as per Clause 12 ("Invoicing and payment terms"); or,
(ii) In case the amount effectively due to the Repairer with respect of the number of FH and Cycles accumulated during the considered [*****] period is lower than the total amount already paid by the Company for said period, the Repairer shall issue a credit in an amount equal to the difference between these amounts; and/or,
(iii) In case MRR is above RRR, the Repairer shall invoice an amount equal to the price set out in Clauses 2.2 and 3 of the Exhibit 14 ("Price conditions"), multiplied by the Aircraft fleet FH accrued during the [*****] reference period, multiplied by the difference between the MRR and the RRR; or,
(iv) In case MRR is less than RRR, the Repairer shall issue a credit in an amount equal to the price set out in Clauses 2.2 and 3 of the Exhibit 14 ("Price conditions"), multiplied by the Aircraft fleet FH accrued during the [*****] reference period, multiplied by the difference between the RRR and the MRR, with a maximum allowed difference of [*****].
Each reconciliation shall be independent and shall have no impact on any subsequent reconciliation and/or invoicing. 11.2 Final reconciliation: within [*****] as from the End Date and without prejudice to Clause 6 of Exhibit 14 ("Price conditions") when applicable, a final reconciliation shall be performed by the Repairer as per this Clause 11 ("Reconciliation").
Any Credit Note resulting from this final reconciliation and due by the Repairer to the Company shall be issued within [*****] as from the effective End Date, subject to Clause 11.3 of this Agreement. 11.3 Each time a Credit Note results from any reconciliation, the Repairer shall issue such Credit Note to the Company, provided that the Company, is not in Default.
12. INVOICING AND PAYMENT TERMS
12.1 The Repairer shall invoice the Company: (i) [*****] (ii) [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 23/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] [*****] [*****] [*****] [*****] [*****] [*****] [*****] [*****] [*****] [*****] [*****] [*****] (iii) [*****] (iv) [*****] (v) [*****] (vi) [*****] (vii) [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 24/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED
(viii) [*****] (ix) [*****] (x) [*****] (xi) [*****] 12.2 Unless otherwise set out herein, the Company shall pay all invoices issued by the Repairer pursuant to this Agreement, as follows: (i) within thirty (30) Days from the date of issuance of the Repairer's invoice; and, (ii) in US Dollars; and, (iii) by SWIFT wire transfer; and, (iv) to the following bank account :
NATIXIS PARIS 30 Avenue Pierre Mendès-France - 75013 PARIS - FRANCE Bank Code: [*****] Branch Code: [*****] Beneficiary: Avions de Transport Régional G.I.E. Bank Account: [*****] Key: [*****] IBAN Code: [*****]
or such other account as the Repairer may from time to time notify to the Company.
For the sake of clarity, the Repairer shall issue any invoice at least ten (10) Days before the first Day of the Month of reference for the Services. 12.3 Payments due to the Repairer herein shall be made in full, without set-off, counterclaim, deduction or withholding of any kind. Consequently, the Company shall procure that the sums received by the Repairer under this Agreement shall be equal to the full amounts expressed to be due to the Repairer herein, without deduction or withholding on account of and free from any and all Taxes (including all applicable sales, use, transfer and value added taxes and any tax required to be deducted or paid under the Laws of the country the Services are provided in respect of amounts paid by the Company to the Repairer), levies, imposts, dues or charges of whatever nature. 12.4 If any payment due to the Repairer (the "Unpaid Amount") remains unpaid after the date on which it is payable (the "Due Date"), without prejudice to any other rights or remedies that it may have at Law and/or under this Agreement, the Repairer shall be entitled to charge interests on such overdue sum from the Due Date until the actual date of payment of such sum at a rate per annum equal to the aggregate of [*****], such interest being calculated on a monthly basis. In any case, such interest rate shall not be lower than the highest of the three (3) following rates: [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 25/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED
(i) [*****] (ii) [*****] (iii) [*****]
In addition to the foregoing, and in compliance with Article L441-6 of the French Commercial Code, the Company shall pay a minimum fixed sum of forty (40) euros for compensation of recovery costs and reimburse all costs and expenses (including legal costs) incurred by the Repairer in the collection of any Unpaid Amount. 12.5 Invoice dispute: any invoice disputed by the Company shall have to be issued by Notice duly documented to the Repairer within [*****] from the date of its issuance. For the sake of clarity, the undisputed portion of such invoice shall be paid pursuant to this Agreement. Any invoice not disputed by the Company within said [*****] period, shall be deemed to be accepted by the Company.
13. SECURITY DEPOSIT
13.1 As per provisions of Clause 17 ("Conditions precedent"), and unless otherwise agreed by the Parties, the Company shall pay the Security Deposit to the Repairer in an amount equal to the aggregate of: (i) [*****], as per Exhibit 14 ("Price conditions"); and, (ii) [*****] of the value of the Stock.
For the sake of clarity, the global amount of Security Deposit payable at the time of the Signing Date shall be [*****]. 13.2 Such Security Deposit shall be constituted either, as follows, at the option of the Company: (i) a cash deposit by SWIFT wire transfer to the bank account indicated in Clause 12.2 (iv); or,
(ii) one (1) LOC with a validity of at least [*****], acceptable to the Repairer acting reasonably. Such LOC shall be renewed and its confirmation extended, at the latest [*****] before the expiry of each previous LOC; all costs incurred as a result of the issuance and confirmation of the LOC shall be borne by the Company.
It is agreed that the Security Deposit must be available for the period ending [*****] after the Term; such Security Deposit shall be the property of the Repairer and shall be non-refundable except as set out in this Agreement.
Provided the Company is not in Default under this Agreement and/or any other agreement entered into between the Parties and subject to the prior written approval of the Repairer, the Company shall be entitled to substitute the LOC by a cash deposit, and vice et versa, subject to the terms of this Clause 13. 13.3 In the event that the LOC is not renewed or extended as per the terms of Clause 13.2 here above, the cash deposit shall become immediately due and payable and the Repairer shall be entitled to draw such LOC, in order for the Repairer to receive an amount equal to the Security Deposit. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 26/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED 13.4 If, during the Term, the Company is in Default under this Agreement or under any other agreement entered into between the Repairer and the Company, and without prejudice to any rights and remedies available at Law and/or under this Agreement, the Repairer shall be entitled to forthwith use, apply or retain all or any portion of the Security Deposit, in order to remedy such Default, including the failure to pay any due sums, the compensation or otherwise reimbursement of any sums which the Repairer may in its discretion advance or expend as a result of said failure.
If the Repairer so uses, applies or retains all or any portion of the Security Deposit, such use, application or retention shall not be deemed a cure or waiver of its rights hereunder and/or at Law as a consequence of any such Default, unless such use, application or retention has discharged in full the relevant sums then due and owed to the Repairer by the Company, and the Company shall voluntarily or promptly upon written demand provide to the Repairer additional security in an amount sufficient to restore the Security Deposit. 13.5 At the maximum at the end of the period of [*****] following the Term, (or such early date as the Company has made all payments due hereunder at the Repairer satisfaction), and provided that the Company is not in Default under this Agreement or any other agreement entered into between the Parties, the Repairer shall pay to the Company an amount equal to the balance of the Security Deposit, if any.
14. DISCLAIMER
TO THE EXTENT PERMITTED BY LAW, THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT SET OUT THE REPAIRER'S ENTIRE LIABILITY WITH RESPECT TO ALL GOODS AND SERVICES SUPPLIED HEREUNDER AND THE COMPANY AGREES THAT ALL OTHER CONDITIONS, WARRANTIES AND TERMS EXPRESSED OR IMPLIED BY LAW, STATUTE OR OTHERWISE, ARE HEREBY EXPRESSLY EXCLUDED.
15. LIABILITY AND INDEMNITY
15.1 SUBJECT TO CLAUSE 15.2 BELOW, THE REPAIRER, SHALL NOT BE LIABLE TO THE COMPANY FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING UNDER OR IN RELATION TO THIS AGREEMENT (WHETHER ARISING FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, MISREPRESENTATION OR OTHERWISE):
[*****]
[*****] 15.2 NOTHING IN THIS AGREEMENT SHALL EXCLUDE OR RESTRICT ANY LIABILITY [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 27/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED OF THE REPAIRER FOR DEATH OR PERSONAL INJURY ARISING OUT OF NEGLIGENCE OR MISCONDUCT,, OR FOR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED BY LAW. 15.3 WITHOUT PREJUDICE TO CLAUSES 15.1 AND 15.2, THE COMPANY SHALL, EXCEPT IN CASE OF GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF THE REPAIRER, BE LIABLE FOR AND SHALL INDEMNIFY AND HOLD HARMLESS THE REPAIRER INDEMNIFIED PARTIES FROM AND AGAINST ALL LIABILITIES, CLAIMS, DAMAGES, LOSSES, SUITS, ACTIONS, PROCEEDINGS, JUDGEMENTS, COSTS AND EXPENSES INCIDENT THERETO (INCLUDING LEGAL EXPENSES AND ATTORNEY FEES INCIDENT THERETO OR INCIDENT TO SUCCESSFULLY ESTABLISHING THE RIGHT TO INDEMNIFICATION), FOR INJURY TO OR DEATH OF ANY PERSON AND/OR FOR LOSS OF OR DAMAGE TO ANY PROPERTY AND/OR FOR LOSS OF USE THEREOF ARISING (INCLUDING THE AIRCRAFT), CAUSED BY OR IN ANY WAY CONNECTED TO THE PERFORMANCE OF THIS AGREEMENT.
16. TERMINATION
16.1 Termination events: without prejudice to any other rights under this Agreement and/or at Law, either Party shall be entitled to terminate all or part of this Agreement by Notice of termination, as per Clauses 16.4 ("Termination procedure") and 16.6 ("Consequences of termination"), in the following events:
a) Insolvency: the other Party becomes insolvent or goes into liquidation or ceases paying its debts as they fall due or makes an assignment for the benefit of creditors or if such Party being a limited Company passes a resolution for its winding up or if a petition for its winding up is presented or it files for protection from its creditors under any applicable Law relating to bankruptcy or insolvency or any analogous event in any jurisdiction shall take place; and/or b) Default: the other Party is in Default and does not remedy the same within [*****], or such extended period granted by the non-defaulting Party, from Notice of default specifying the failure and requiring the remedy of such, from the non-defaulting Party.
For the purpose of this Clause 16.1.b), will be deemed as material obligations under this Agreement, without the following being exhaustive: (i) the compliance by the Company with any of its payment obligations; (ii) the compliance by the Company with the provisions of Clause 17 ("Conditions precedent") of this Agreement; (iii) the operation by the Company of at least one (1) Aircraft;
(iv) the use by the Company of any Item, delivered by the Repairer to the Company pursuant to Exhibits 8 ("Lease of the Stock"), 9 ("Spare parts standard exchange Service"), 10 ("LRU repair Service"), 11 ("Main Elements Services") and 15 ("Advanced Pool Stock") exclusively on Aircraft and to benefit of the Parties; (v) the return by the Company to the Repairer of any unserviceable Item which should be exclusively removed from an Aircraft; (vi) the compliance by the Repairer with its Delivery obligations; (vii) the compliance by the Parties with any of the insurance obligations as per Clause 8 ("Insurances") of this Agreement; (viii) the compliance by either Party with any other of its obligations which by its [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 28/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED nature and/or context is intended to be material. c) Excusable Delay: an Excusable Delay event lasting for more than [*****] in accordance with Clause 4.5 of this Agreement. 16.2 Left intentionally blank 16.3 Suspension procedure: notwithstanding the terms of Clause 16.4 below, in the event of a Company's Default as per Clause 16.1.b), the Repairer shall be entitled to suspend all or part of this Agreement by way of Notice of suspension which shall specify: (i) the Services for which such suspension shall be immediately effective until such Company's Default is corrected; and (ii) that any pending Work Order and/or placed as from the Notice of suspension will be provided upon specific commercial proposalsubject to "Payment In Advance" procedure (and/or any additional conditions to be agreed upon by the Parties, as relevant).
For the sake of clarity, such Notice of suspension shall not be construed as a waiver by the Repairer of its rights regarding (i) the obligation of the Company to perform each and every of its obligations under this Agreement and/or (ii) the right of the Repairer to enforce each and every of such Company's obligations and/or (iii) the right of the Repairer to terminate this Agreement, as per this Clause 16 ("Termination") of this Agreement. 16.4 Termination procedure: to the fullest extent permitted by Law and/or under this Agreement, the termination of all or part of this Agreement, for any reason whatsoever, as per Clauses 3 ("Duration and renewal") and 16 ("Termination"), shall become effective as from the receipt by the relevant Party of a Notice of termination from the other Party, or any other period to be granted by such other Party, without it being necessary to take any further action or to seek any consent from the relevant Party or any court having jurisdiction.
The right of a Party to terminate all or part of this Agreement as per this Clause 16 shall be without prejudice to its other rights and remedies available at Law and/or under this Agreement to seek termination of all or part of this Agreement before any court having jurisdiction, following arbitration proceedings consistent with Clause 24 ("Governing law and arbitration") of this Agreement.
In case of termination of part of this Agreement, the Notice of termination shall specify the Services that shall be terminated on the date of such termination.
Any Work Order placed prior to the termination of all or part of this Agreement shall remain valid, provided that (i) any sum due by the Company to the Repairer under the Agreement and/or any other agreement between (i) the Repairer and (ii) the Company has been paid and (ii) when applicable, the Company having paid in advance the relevant Work Order price.
In the cases set forth within Clause 16.1.b) above, the non-defaulting Party shall be entitled to proceed by appropriate court action or actions, following arbitration proceedings consistent with Clause 24 ("Governing law and arbitration") of this Agreement., to enforce performance of this Agreement, and/or to recover damages, without incurring any liability whatsoever and without prejudice to any other rights it may have at Law and/or under this Agreement, and specifically its right to terminate all or part of this Agreement. 16.5 Early termination fee: subject to not being in breach of any of its obligation under the Agreement, the Company may terminate this Agreement for convenience by way of Notice of termination; the Agreement shall be then terminated following a [*****] period as from [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 29/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED the receipt of such Notice by the Repairer or any other lesser period to be granted by the Repairer.
Notwithstanding this Clause 16 ("Termination"), upon receipt of such Notice of termination and without prejudice to any rights it may have at Law, the Repairer shall invoice to the Company an early termination fee equivalent to [*****], which shall be paid within [*****] as from the issuance date of the said invoice and/or set off against any outstanding or due payment to the Company, at the Repairer's discretion.
16.6 Consequences of termination
16.6.1 Upon the End Date and without prejudice to any right that either Party may have at Law and/or under this Agreement [notably as perClause 13 ("Security Deposit")], the termination and/or expiry of the Agreement shall have the following consequences:
a) Payment and reimbursement: subject to the provision of reasonable documentary evidence, any outstanding and/or due amounts by either Party to the other Party under this Agreement shall be promptly paid, and any and all legal fees and out- of-pocket expenses of the Party which terminates this Agreement for the other Party's Default including stamp, documentary, registration or other like duties, taxes or any charges incurred and/or in connection with enforcing, perfecting, protecting or preserving (or attempting to enforce, perfect, protect or preserve) any of its rights, or in suing for or recovering any sum, under this Agreement shall be forthwith reimbursed; and/or, b) Return of the Items: the Repairer shall be entitled, in accordance with the terms and conditions of this Agreement, includingClause 6 ("Deliveries"), to:
(i) direct the Company to forthwith return the Items (excluding the Stock which, for the sake of clarity, shall be treated as per terms and conditions of Clause 6 ("Return of the Stock") of the Exhibit 8 and Clause 7 ("Purchase or return of the Advanced Pool Stock) of the Exhibit 15 to the address hereafter and/or any other address the Repairer may notify from time to time to the Company: [*****] and/or; (ii) repossess the Items and the Company agrees that the Repairer may enter onto the Company's premises where suchItems may be located; and/or, (iii) carry out any work, repair, re-certification, overhaul or replacement required to put such Items in serviceablecondition.
In any case under this Clause 16.6.1.b) ("Return of the Items"), the Company shall forthwith reimburse and pay any Loss incurred and/or suffered by the Repairer. c) Termination for Default: in addition to the provisions of Clause 16.6.1.a) and b) here above, the defaulting Party shallindemnify and/or pay any Loss the other Party may sustain and/or incur as a result of such Default.
d) In addition to the provisions of Clause 16.6.1.a) and b) and 16.6.1.c) here above, in the event the Repairer terminates the Agreement further to the occurrence of the event set out in Clause 16.1.b) (iii), the Company shall indemnify and/or pay for any Loss the [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 30/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED Repairer may sustain and/or incur as a result of such termination 16.6.2 Mitigation
In case of termination of all or part for any reason whatsoever and/or expiry of this Agreement, either Party shall use reasonable endeavours to mitigate its Loss (to the extent within its control to do so), but it shall not be obliged to consult with the other Party concerning any proposed course of action or to notify such other Party of the taking of any particular action.
17. CONDITIONS PRECEDENT
The Repairer's obligations under this Agreement shall be subject to each of the following conditions precedent having been met (or expressly waived by the Repairer) to the Repairer's satisfaction at the latest the [*****] Day from the Signing Date: (ii) the Security Deposit being available as per Clause 13 ("Security Deposit");and, (iii) a statement signed by a duly authorized officer of AZUL recording the status (serial number, TSN, TSO, CSN, CSO, as applicable) ofeach Main Element as of the Signing Date; and, (iv) a fully executed original of this Agreement; (v) the phase-in as per Clause 5 of the Exhibit 14 ("Price conditions").
18. EXPORT CONTROL
The Company warrants that the Items, the Aircraft and Services shall be used for commercial purposes only, and shall be used and/or re- exported (where relevant) in compliance with all export control laws and regulations (hereinafter referred to as "Export Laws"), including those applicable to parts and components of the Items and the Aircraft. The Company acknowledges that the Repairer's obligations under this Agreement are subject to all such Export Laws, and that the Repairer shall in no event be liable in the event that the performance by the Repairer of any of its obligations under this Agreement is affected or impaired by Export Laws.
19. NOTICES
No Notice shall be deemed to have been duly given by a Party to the other unless addressed as follows or to such other place or Person as the Parties may respectively designate in writing.
The Repairer shall be addressed at:
AVIONS DE TRANSPORT REGIONAL, G.I.E. 1, allée Pierre Nadot 31712 Blagnac CEDEX France
Attention: Mr Cyril DUPUY
E-mail: cyril.dupuy@atr.fr
Fax +00 33 5 62 21 67 40 [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 31/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version The Company shall be addressed at: AZUL
Avenida Marcos Penteado de Ulhoa Rodrigues, 939, Castello Branco Office - Park - Torre Jatobá - 9° andar - CEP 06460-040 - Alphaville Industrial, Barueri, SaoPaulo, Brazil Attention Evandro Braga de Oliveira- : Technical officer E-mail: evandro.oliveira@voeazul.com.br Fax 55 11 4134-9890
20. CONFIDENTIALITY
20.1 Confidentiality obligations
Unless otherwise provided in this Agreement, any Confidential Information released by either of the Parties (the "Disclosing Party") to the other Party (the "Receiving Party") shall not be released in whole or in part to any third party.
In particular, the Receiving Party undertakes: - to keep the Confidential Information strictly confidential, not to deliver, disclose or publish it to any third party including subsidiarycompanies and companies having an interest in its capital, except as otherwise agreed in writing by the Disclosing Party;
- to use the Confidential Information solely for the purpose of this Agreement and except as otherwise expressly agreed in writing by theDisclosing Party, not to use the same or permit its use for any other purpose;
- to disclose the Confidential Information only to those of its direct employees having a need to know such Confidential Information in order to make permitted use thereof, after having beforehand clearly informed such employees of the strictly confidential nature of the Confidential Information and caused them to observe said conditions of confidentiality. The Receiving Party shall be responsible for the correct performance of said obligations of confidentiality by its employees and shall keep up to date the list of its personnel, to whom Confidential Information is communicated, which list shall be made available to the Disclosing Party at its request; - not to duplicate the Confidential Information nor to copy or reproduce the same beyond the purpose of the Agreement;
- not to disclose Confidential Information to any third party, unless such third party is acting at the instruction of the Receiving Party and such disclosure is reasonably necessary to accomplish the purpose of the Agreement, provided however, that prior to any such disclosure both of the following conditions are satisfied:
(i) each of such third parties, shall have signed an acknowledgement to keep such Confidential Information as strictly confidential;and,
(ii) the Receiving Party shall have obtained written prior approval of the Disclosing Party of such proposed disclosure, whichapproval may be not unreasonably withheld or delayed.
- promptly notify the Disclosing Party if a disclosure of Confidential Information is required by a Government Entity or by Law and to useall reasonable effort to assist the Disclosing Party in limiting such disclosure to the extent permitted by Law;
- upon discovery of any disclosure of Confidential Information, regardless of whether such discovery is intentional or inadvertent, the Receiving Party shall promptly notify the Disclosing Party and take all reasonable actions (i) to retrieve the disclosed Confidential Information, (ii) to destroy any unauthorized copies thereof and (iii) to AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 32/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version stop further disclosure. 20.2 Non application of confidentiality obligations
The obligations of Receiving Party with respect to Confidential Information as set forth in this Clause 20.1 above shall not be applicable to information which: (a) upon the Signing Date was part of the public domain or became part of the public domain after the disclosure, other than by a violationof the Agreement or any other non-disclosure agreement or the applicable Law of any jurisdiction; or (b) was already lawfully known by the Receiving Party, as evidenced by written records bearing an unquestionable date, prior the SigningDate by the Disclosing Party and was unrestricted; or (c) was lawfully disclosed to the Receiving Party subsequently to the signature of the Agreement by a third party which had not receivedthe same directly or indirectly from the Disclosing Party and that such disclosure does not violate any non-disclosure agreement. 20.3 Permitted disclosure of Confidential Information
Notwithstanding any provision to the contrary in the Agreement, the Receiving Party shall be entitled to disclose Confidential Information if required to do so: (a) by order of a court or government agency of competent jurisdiction; or (b) by any applicable Law,
provided, however, that prior to making such disclosure, the Receiving Party shall if possible advise the Disclosing Party of the circumstances requiring such disclosure in order to afford the Disclosing Party sufficient advance notice to permit to raise any objections that it may deem appropriate. 20.4 Disclosing Party's proprietary rights
Any Confidential Information shall remain the property of the Disclosing Party. The Agreement shall not be construed as granting or conferring to the Receiving Party, either expressly or by implication, any license or proprietary interest in or to any Confidential Information nor any right of use beyond the purpose of this Agreement.
The Repairer, its Affiliates and/or its Subcontractors as applicable shall remain the exclusive owner of any intellectual property right related to the Services including: design of the LRUs, Main Elements, job cards, task cards, operating manual or industrial process, as relevant. No title to or other ownership interest in the Confidential Information is transferred except as specifically stated in the Agreement, and the Receiving Party hereby expressly disclaims any such rights or interests.
The Receiving Party hereby acknowledges and recognises that Confidential Information is protected by copyright Laws and related international treaty provisions, as the case may be. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 33/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED 20.5 For the sake of clarity, and for the purpose of this Clause 20 and this Agreement, any of the receiving Party's Affiliates and their Subcontractors shall not be considered as third party and shall be entitled to have access to any Confidential Information disclosed by the disclosing Party in connection with this Agreement. 20.6 This Clause 20 shall survive termination or expiry of this Agreement for a period of five (5) years following such End Date.
21. TAXES
The prices set out in this Agreement [*****] and the [*****] shall not be required to pay and the [*****] shall bear, any present or future Taxes in any country of the Delivery [*****] pursuant to the requirements of this Agreement including the following: i) Taxes levied on goods imported into or services to be delivered under this Agreement; and, ii) Taxes levied on materials, equipment, tools and documentation imported temporarily which are required for the performance of thisAgreement; and, iii) Taxes levied in Company's country for goods or services delivered by the Repairer to the Company; and, iv) Value added taxes, sales tax, services tax, or any similar taxes imposed in any country, on goods or services delivered to the Company.
In the event any of the Items above are levied upon the [*****], the [*****] shall promptly issue a Notice to the [*****]. The [*****], within [*****] of receipt of such notification from the [*****] shall either cause the charge to be waived or pay the charges directly. For those Items above that the [*****] is required by Law to pay, the [*****] shall charge the [*****] and the [*****] shall reimburse the [*****] in an amount which leaves the [*****] in the same economic situation as if such payment of charges and reimbursement thereof had not been required.
If the Company is required by Law to make a withholding of taxes on the payments due to the Repairer under this Agreement, the Company shall gross up the payment so that the payment received by the Repairer after such withholding tax shall be the same amount of the prices described herein.
For sake of clarity, the Repairer shall bear income tax assessed on the Repairer's income and net profits in its country.
For Items delivered by the Repairer to the Company, the final customs clearance on flow between any Repairer's Affiliate located abroad and warehouse located in Brazil, as notably set forth in Clause 6, shall be borne by the Company. Customs duties, IPI, ISS, ICMS and other similar taxes shall be paid by the Company.
In addition, the Company shall provide the Repairer with the << import declarations >> pertaining to any import activities performed by the Company.
22. ASSIGNMENT
There are no beneficiaries of this Agreement other than the Parties hereto and their Affiliates and Subcontractors to the extent provided herein. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 34/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version This Agreement shall be binding on the successors and permitted assignees of the Parties hereto.
a) This Agreement has been entered into between the Parties in consideration of and based on characteristics specific to the Parties. Consequently either this Agreement or any of the respective rights or obligations of the Parties hereunder may be assigned or otherwise transferred, in whole or in part, in any form whatsoever (including by way of change of Control), by either Party subject to the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed, and any attempt to do so without such consent shall be null and void. b) Notwithstanding the above:
(i) the Parties may at any time assign or transfer all or part of its rights and obligations under this Agreement to any of its Affiliates provided that such assignment or transfer is previously notified to the other Party. In such event, any reference in this Agreement to the assigning Party shall be deemed to constitute a reference to the assignee with respect to the part of this Agreement that is assigned; and,
(ii) nothing in this Agreement shall in any way restrict any change in shareholding or control of the Parties or its Affiliates or the Repairer's rights to delegate obligations of it hereunder to a Subcontractor. provided that, in such case, the Repairer will remain responsible for the provision of the Services in accordance with the terms of this Agreement.
provided such assignment or transfer, change in shareholding or control has no material adverse effect on any of the Company's rights and obligations under this Agreement.
23. MISCELLANEOUS
23.1 The time stipulated in this Agreement for all payments by the Company to the Repairer under this Agreement shall be of the essence. 23.2 Survival: notwithstanding anything to the contrary stated in this Agreement, no termination or expiry of this Agreement shall affect the following rights or obligations of any Party hereto: (a) with respect to any payment hereunder actually owed by either Party to the other under this Agreement prior to the End Date; and/or,
(b) pursuant to Clauses 2 - "Definitions and interpretation", 4 - "Excusable Delay", 8 - "Insurances", 9 - "Warranties", 14 - "Disclaimer", 15 - "Liability and indemnity", 16 - "Termination", 20 - "Confidentiality", 23.2 - "Survival", 23.5 - "No waiver", 23.8 - "Severability", and 24 - "Governing law and arbitration"; and/or, (c) pursuant to any other provisions of this Agreement that, by their nature and context, are intended to survive termination of thisAgreement. 23.3 Representations: each Party represents to the other Party that: 23.3.1 It is a legal entity duly incorporated and validly existing under the laws of the jurisdiction indicated in this Agreement; AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 35/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED
23.3.2 The entering into and performance by it of its obligations in this Agreement are within its corporate powers and have been duly authorized by all necessary corporate action and are not in violation of any applicable Law or documents, and do not require the consent or approval of, or registration or filing with, any Government Entity other than those already obtained or effected; 23.3.3 The signatory executing this Agreement on such Party's behalf has been vested with the necessary authority and power to enterinto this Agreement on its behalf; 23.3.4 This Agreement constitutes the Parties' legal, valid and binding obligation; 23.3.5 Subject to Clause 20 ("Confidentiality"), it will furnish all information relating to the provisions of the Services hereunder reasonablyrequired by the other Party and/or any Government Entity; 23.4 Left intentionally blank 23.5 No waiver: the failure by either Party to enforce at any time any of the provisions of this Agreement, or to require at any time the performance by the other Party of any of the provisions hereof, shall not be construed to be a waiver of such provisions, nor in any way affect the validity of this Agreement or any part thereof, or the right of such Party thereafter to enforce each and every such provision. 23.6 Independent contractors: neither Party is the representative or agent of the other Party for the purposes of this Agreement and nothing herein shall be construed as authorizing either Party to act as the other Party's representative or agent. Notwithstanding any other provisions of this Agreement, this Agreement shall not be construed as a joint venture, partnership, agency, incorporation or business association. Each Party hereto shall remain an independent contractor. 23.7 Amendments: this Agreement shall only be varied or amended by a written document duly signed by duly authorized representatives of both Parties. Notwithstanding the foregoing, Exhibit 1 ("List of ATR aircraft covered under this Agreement") and the Pool may be amended from time to time by the Repairer by way of Notice sent to the Company, unless, for LRU's reference suppression/replacement, the Company does not agree the same by way of Notice within [*****] as from the receipt date of the said Notice from the Repairer, in compliance with this Agreement and provided that it has no material economic impact to the Company. 23.8 Severability: if any term or provision of this Agreement is determined to be invalid, illegal or incapable of being enforced by any rule of Law or public policy, all other terms and provisions hereof shall remain in full force and effect, and the Parties shall negotiate in good faith in order to modify this Agreement with a provision having substantially the same legal and commercial effect as the severed provision. 23.9 Entire Agreement: this Agreement constitutes the entire agreement between the Parties and supersedes and replaces all prior discussions, representations, understandings or agreements whether verbal or written, between the Parties hereto or their agents with respect to or in connection with the subject matter hereto, save and except for the provisions of any agreements which by their nature or wording are intended to remain in full force and effect (including pre-existing confidentiality or non-disclosure undertakings not otherwise covered herein). No other documents and agreements, including either Party's standard terms and conditions, whether existing or future, will apply between the Parties with respect to the subject matter of this [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 36/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version Agreement, unless where otherwise expressly provided for in this Agreement.
Each Party acknowledges that, in entering into this Agreement, it has not relied on, and shall have no right or remedy (other than for breach of contract) in respect of any statement, representation, insurance or warranty (whether made negligently or innocently) other than as expressly set out in this Agreement.
Nothing in this Clause shall limit or exclude any liability of either Party arising out of its pre-contract fraudulent misrepresentation or fraudulent concealment. 23.10Language: the Parties declare that they have requested and hereby confirm their express wish that this Agreement and any and all related documents be drawn up in the English language (or, if not in English, with a certified English translation). 23.11Costs and expenses: except where this Agreement provides otherwise, each Party shall pay its own costs relating to the negotiation, preparation, execution and implementation of this Agreement and of any document related hereto. 23.12Counterparts: this Agreement shall be signed in several counterparts, each of such counterparts so signed shall constitute an original, and all counterparts together shall constitute a single instrument. Any executed version delivered via facsimile transmission or electronic mail ("PDF" format) shall be binding to the same extent as an original. Any Party who delivers such an executed version agrees to subsequently deliver an original counterpart to any Party that requests it. 23.13Publicity and public announcements: the Parties shall not make public announcements, press releases and/or advertise on the signature and/or the existence of this Agreement (but not its contents) without the prior written consent of the other Party.
The Repairer is entitled to use the Company's name and associated logos as a business reference for its marketing activities in relation with the Services, provided such use (i) has no adverse impact on, such as but not limited to, Company's reputation and image and (ii) complies with graphic design policy of the Company. 23.14Company's audited financial statements: during the Term of this Agreement, the Company undertakes to provide promptly the Repairer with (i) its audited financial statements and (ii) any other financial information it shall request, acting reasonably, for each relevant financial year. It is hereby agreed that any such information shall be prepared in accordance with the applicable accounting policies. 23.15For the sake of clarity and transparency, the Services to be provided under this Agreement by the Repairer will not involve the transfer of know-how to the Company by no means whatsoever. The Services shall be performed without the presence of any Company's technician and no technical report shall be delivered by the Repairer in connection therewith (except if expressly required by the Company, as foreseen on Clause 23.3.5).
24. GOVERNING LAW AND ARBITRATION
24.1 Governing law: Pursuant to and in accordance with Section 5-1401 of the New York General Obligations Law, the Parties hereto agree that this Agreement in all respects, and any claim or cause of action based upon or arising out of this Agreement, or any dealing between the Parties AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 37/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED relating to the subject matter of this Agreement or the transactions contemplated hereby or the Company/Repairer relationship being established, shall be governed by, and construed in accordance with, the laws of the State of New York, U.S.A. as applied to contracts to be performed wholly within the State of New York (Exclusive of Section 7-101 of the New York General Obligations Law which is inapplicable to this Agreement). 24.2 Arbitration: in the event of a dispute arising out of or relating to this Agreement, including without limitation disputes regarding the existence, validity or termination of this Agreement (a "Dispute"), either Party may notify such Dispute to the other through service of a written notice (the "Notice of Dispute"). The Parties shall make their reasonable endeavours to settle the Dispute amicably by a committee composed of one (1) management representative of each Party (the "Representatives"). Such committee shall be created by the Parties within [*****] from the date of receipt of the Notice of Dispute.
24.2.1 Subject to sub-Clause 24.2.5 below and in the event the Representatives (i) fail to create such committee or (ii) do not agree on an amicable settlement within [*****] from the date the committee referred to in this sub-Clause 24.2 has been created or such longer period as may be agreed upon in writing by the Representatives (the "Amicable Settlement Period"), the Dispute shall be exclusively and finally settled under the Rules and Conciliation of Arbitration of the International Chamber of Commerce (the "ICC") by an arbitral tribunal composed of three (3) arbitrators; each Party shall then appoint one (1) arbitrator within [*****] from the last day of the Amicable Settlement Period and the third arbitrator, who will act as President, will be appointed by the other two (2) arbitrators. In case the two (2) arbitrators appointed by the Parties do not agree on this choice with [*****] from the date the last arbitrator is appointed, the third arbitrator will be appointed by the ICC Court.
24.2.2 The arbitration, and any proceedings, and meetings incidental to or related to the arbitration process, shall take place in New York, U.S.A, and the language to be used in the arbitral proceedings shall be English; arbitral award shall be final and binding upon the Parties.
24.2.3 The arbitration shall be kept confidential and the existence of the proceeding and any element of it shall not be disclosed to any third party. Any information relating to and/or documents generated for the purpose of or produced in the arbitration, including any awards, shall remain confidential between the Parties, the arbitrators and any other Person involved in the arbitration proceedings, except to the extent that disclosure may be required pursuant to any order of court or other competent authority or tribunal, or to protect or pursue a legal rights or to enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority. 24.2.4 During any period of negotiation or arbitration, the Parties shall continue to meet their respective obligations in accordance with theprovisions of the Agreement. 24.2.5 Notwithstanding any provision of this Clause 24.2 the Parties may, at any time, seek and decide to settle a Dispute either throughdirect negotiations or in accordance with the ICC rules in respect of the alternative dispute resolution. 24.3 Judgment upon any award may be entered in any court having jurisdiction or application may be made to the court for a judicial recognition of the award or an order of enforcement, as the case may be. 24.4 Recourse to jurisdictions is expressly excluded except as provided for in the ICC Rules of Conciliation and Arbitration concerning Conservatory and Interim measures. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 38/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 39/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version EXECUTION PAGE
This Agreement has been executed in two (2) original copies in the English language on the Signing Date. On behalf of: On behalf of: AZUL LINHAS AÉREAS BRASILEIRAS AVIONS DE TRANSPORT REGIONAL (Company) (Repairer) Signed by: /s/ Amir Nasruddin Signed by: /s/ Massimo Castorina Function: Attorney in fact Function: Vice-President Commercial Product Support & Services AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 40/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 1 - LIST OF ATR AIRCRAFT COVERED UNDER THIS AGREEMENT
[*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 41/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****]
This list may be amended from time to time by way of Notice sent to the Company by Repairer in order to cover any further ATR aircraft entering the Company's fleet, including the airframe, engines, propellers and landing gears and parts installed on the Aircraft, when solely operated by the Company.
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 42/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 2 - LIST OF SERVICES PROVIDED UNDER THIS AGREEMENT
The Repairer shall provide the Company with the following Services:
[*****]
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 43/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 3 - MAIN ELEMENTS COVERED UNDER THE AGREEMENT
[*****]
Part number of each assembly and subcomponent to be provided by the Company.
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 44/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 4 - LIST OF LANDING GEAR ON CONDITION PARTS
[*****]
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 45/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 5 - STOCK
The following Exhibit is composed of sixteen (16) pages, into which are listed [*****] part numbers. [*****] DESCRIPTION [*****] [*****] EXCHANGER-HEAT,DUAL [*****] [*****] CONDENSER [*****] [*****] COOLING UNIT [*****] [*****] VALVE-TURBINE INLET CONTROL [*****] [*****] FLIGHT DATA ACQUISITION UNIT [*****] [*****] FLIGHT GUIDANCE CONTROL PANEL [*****] [*****] AUTO PILOT SERVO-ACTUATOR [*****] [*****] AUTO PILOT CAPSTAN [*****] [*****] CVR-SOLID STATE [*****] [*****] CONTROL UNIT-CVR [*****] [*****] AUDIO CONTROL PANEL [*****] [*****] AMPLIFIER-PASSENGER ADDRESS [*****] [*****] STARTER GENERATOR-DC [*****] [*****] CONTROL UNIT-GENERATOR,AC [*****] [*****] CONTROL UNIT-BUS POWER,AC [*****] [*****] CONTACTOR-ACW [*****] [*****] ATTENDANT PANEL [*****] [*****] ATTENDANT PANEL [*****] [*****] ATTENDANT PANEL USB KEY [*****] [*****] HANDLE-ENG1 FIRE [*****] [*****] ROD-DYNAMOMETRIC,ROLL [*****] [*****] SWITCH UNIT-FLAP CONTROL [*****] [*****] ACTUATOR-ELEVATOR [*****] [*****] ACTUATOR-TRIM [*****] [*****] VALVE BLOCK-FLAP [*****] [*****] RESTRICTOR-FLAP VLV BLOCK FLOW, EXTN LINE [*****] [*****] ACTUATOR-STICK PUSHER [*****] [*****] VALVE BLOCK-SPOILER [*****] [*****] SHAKER-STICK [*****] [*****] ACTUATOR-SPOILER [*****] [*****] CABLE-TENSION REGULATOR [*****] [*****] COUPLING-REFUEL/DEFUEL [*****] [*****] CONTROLLER-HORN ANTI ICING [*****] [*****] RESISTOR-HORN ANTI ICING,LH ELEVATOR [*****] [*****] RESISTOR-HORN ANTI-ICING,RH ELEVATOR [*****] [*****] RESISTOR-HORN ANTI-ICING,RUDDER [*****] [*****] RESISTOR-HORN ANTI ICING,LH AILERON [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 46/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] RESISTOR-HORN ANTI ICING,RH AILERON [*****] [*****] VALVE-DE ICING DUAL DISTRIBUTOR [*****] [*****] PROBE-CCAS ALPHA [*****] [*****] ACCELEROMETER-THREE AXIS [*****] [*****] TRANSMITTER-POSITION SYNCHRO [*****] [*****] RESERVOIR-BRAKE [*****] [*****] CYLINDER-MASTER [*****] [*****] VALVE-SELECTOR,LG [*****] [*****] ACCUMULATOR-PARKING [*****] [*****] ABSORBER-SHOCK [*****] [*****] VALVE-PARKING [*****] [*****] VALVE-BRAKE [*****] [*****] VALVE-RELIEF,LOW PRESSURE [*****] [*****] VALVE-BRAKE [*****] [*****] VALVE-DIFFERENTIAL CONTROL [*****] [*****] SELECTOR [*****] BOX-UPLOCK [*****] [*****] FLUX VALVE [*****] [*****] VALVE-FEED STOP [*****] [*****] PUMP-PROPELLER FEATHERING [*****] [*****] PUSH-PULL CABLE-PROP CONDITION [*****] [*****] PUMP GOVERNOR-PROPELLER [*****] OVERSPEED [*****] [*****] EXCITER—IGNITION I.C. [*****] [*****] EJECTOR, FUEL WASTE [*****] [*****] SERVO VALVE [*****] [*****] FUEL PUMP [*****] [*****] PUSH-PULL CABLE-PROPELLER POWER [*****] [*****] ACTUATOR-OIL COOLER FLAP [*****] [*****] COOLER-OIL [*****] [*****] REFERENCE UNIT-ATTITUDE AND HEADING [*****] [*****] GROUND COOLING FAN [*****] [*****] SMOKE DETECTOR [*****] [*****] TOTAL [*****] [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 47/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] CONTROLLER-DIGITAL [*****] [*****] COOLING UNIT [*****] [*****] FAN-AIR EXTRACTION [*****] [*****] VALVE-ELECTROPNEUMATIC OUTFLOW [*****] [*****] VALVE-PACK FLOW CONTROL [*****] [*****] VALVE-PNEUMATIC OUTFLOW [*****] [*****] VALVE-SHUTOFF TURBOFAN [*****] [*****] VALVE-TRIM AIR [*****] [*****] VALVE-TURBINE INLET CONTROL [*****] [*****] COUPLER HF ANTENNA [*****] [*****] ECU-3000 [*****] [*****] HANDSET-CABIN ATTENDANT [*****] [*****] MANAGEMENT UNIT-ACARS [*****] [*****] TRANSCEIVER-HF [*****] [*****] VHF/COMM TRANSCEIVER [*****] [*****] VHF-4000-8,33 KHZ [*****] [*****] CONTROL UNIT-BUS POWER,DC [*****] [*****] CONTROL UNIT-GENERATOR,DC [*****] [*****] GENERATOR-AC [*****] [*****] SENSOR-HALL EFFECT [*****] [*****] STATIC INVERTER [*****] [*****] TRANSFORMER RECTIFIER UNIT [*****] [*****] TRANSMITTER-EMERGENCY LOCATOR [*****] [*****] DETECTOR UNIT [*****] [*****] HANDLE-ENG2 FIRE [*****] [*****] ACTUATOR-FLAP [*****] [*****] DAMPER-RUDDER [*****] [*****] REFUEL CONTROL PANEL [*****] [*****] INDICATOR LEVEL SWITCH [*****] [*****] PUMP-ELECTRIC,AC [*****] [*****] DETECTOR-ICE [*****] [*****] VALVE-ANTI ICING PRESS REG AND [*****] SHUTOFF [*****] [*****] VALVE-ANTI ICING SHUTOFF [*****] [*****] VALVE-DE ICING DUAL DISTRIBUTOR [*****] [*****] CLOCK [*****] [*****] DIGITAL FLIGHT DATA RECORDER [*****] [*****] EFIS CONTROL PANEL LH SIDE [*****] [*****] EFIS CONTROL PANEL RH SIDE [*****] [*****] INDEX CONTROL PANEL [*****] [*****] INTEGRATED AVIONICS DISPLAY [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 48/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] MPC-ED36 [*****] [*****] MULTIFUNCTION COMPUTER [*****] [*****] MULTI-FUNCTION CONTROL PANEL [*****] [*****] MULTIPURPOSE CONTROL & DISPLAY UNIT [*****] [*****] SENSOR-WHEEL SPEED [*****] [*****] VALVE-DIFFERENTIAL CONTROL SELECTOR [*****] [*****] VALVE-SELECTOR,SWIVEL [*****] [*****] EMERGENCY LIGHTING POWER SUPPLY MODULE [*****] [*****] LIGHT-ANTICOLLISION,WHITE [*****] [*****] LIGHT-ANTI COLLISION,RED [*****] [*****] LIGHT-LANDING [*****] [*****] LIGHT-STROBE [*****] [*****] POWER SUPPLY-UNIT ANTI COLLISION LIGHT [*****] [*****] POWER SUPPLY-UNIT ANTI COLLISION LIGHT [*****] [*****] AIR DATA COMPUTER [*****] [*****] ATC TRANSPONDER [*****] [*****] ATTITUDE HEADING REF UNIT [*****] [*****] FLUX VALVE [*****] [*****] INTEGRATED ELEC STAND-BY EQUIP [*****] [*****] INTERROGATOR-DME [*****] [*****] NAVIGATOR PROCESSOR UNIT (GPS RECEIVER) [*****] [*****] PROBE-AIR TEMPERATURE [*****] [*****] PROBE-PITOT [*****] [*****] RADIO-ALTIMETER TRANSCEIVER [*****] [*****] RECEIVER-VOR/ILS/MKR [*****] [*****] T2CAS COMPUTER [*****] [*****] TRANSCEIVER-WEATHER RADAR [*****] [*****] VOR/ILS/MKR RECEIVER [*****] [*****] WX RADAR CONTROL PANEL [*****] [*****] TRANSMITTER/REGULATOR—OXYGEN PRESS [*****] [*****] DUCT-DISCHARGE DOWNSTREAM VALVE [*****] [*****] VALVE ASSY-SHUTOFF [*****] [*****] VALVE-XFEED,AIR BLEED [*****] [*****] CAC SWM [*****] [*****] CORE AVIONICS CABINET I/P O/P MODULE AP [*****] [*****] CORE AVIONICS CABINET I/P O/P MODULE-S [*****] [*****] CORE AVIONICS CABINET I/P O/P MODULE- DC [*****] [*****] INTEGRATED CORE PROCESSING [*****] MODULE [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 49/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] PROPELLER BLADES [*****] [*****] PROPELLER ASSEMBLY [*****] [*****] BRUSH BLOCK ASSY [*****] [*****] CONTROL ELECTRONIC-PROPELLER [*****] [*****] GOVERNOR-PROPELLER OVERSPEED [*****] [*****] MODULE VALVE PROPELLER [*****] [*****] SWITCH-PRESSURE,HYDRAULIC [*****] [*****] PIPE-EXHAUST [*****] [*****] TRANSMITTER-FUEL FLOW [*****] [*****] ENGINE ELECTRONIC CONTROL [*****] [*****] SENSOR TORQUE METER [*****] [*****] VALVE ASSY,INTERCOMPRESS BLEED [*****] [*****] VALVE INTERCOMPRESSOR BLEED [*****] MFC [*****] [*****] CONTROL,AUTOFEATHER [*****] [*****] COOLER - OIL [*****] [*****] FLOW DIVIDER & DUMP VALVE [*****] [*****] FUEL HEATER [*****] [*****] TOTAL [*****] [*****] [*****] DESCRIPTION [*****] [*****] COOLING UNIT [*****] [*****] EXCHANGER-HEAT,DUAL [*****] [*****] VALVE-PACK FLOW CONTROL [*****] [*****] VALVE-PNEUMATIC OUTFLOW [*****] [*****] VALVE-TRIM AIR [*****] [*****] VALVE-TURBINE INLET CONTROL [*****] [*****] AMPLIFIER-PASSENGER ADDRESS [*****] [*****] AUDIO CONTROL PANEL [*****] [*****] COUPLER HF ANTENNA [*****] [*****] CVR-SOLID STATE [*****] [*****] REMOTE CONTROL AUDIO UNIT [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 50/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] TRANSCEIVER-HF [*****] [*****] CONTROL UNIT-BUS POWER,AC [*****] [*****] CONTROL UNIT-BUS POWER,DC [*****] [*****] CONTROL UNIT-GENERATOR,AC [*****] [*****] CONTROL UNIT-GENERATOR,DC [*****] [*****] GENERATOR-AC [*****] [*****] INVERTER-STATIC [*****] [*****] SENSOR-HALL EFFECT [*****] [*****] STARTER GENERATOR-DC [*****] [*****] TRANSMITTER-EMERGENCY LOCATOR [*****] [*****] DETECTOR-SMOKE [*****] [*****] ACTUATOR-TRIM [*****] [*****] VALVE BLOCK-FLAP [*****] [*****] VALVE BLOCK-SPOILER [*****] [*****] PUMP-FUEL ELECTRIC [*****] [*****] PUMP-ELECTRIC,AUXILIARY,DC [*****] [*****] DETECTOR-ICE [*****] [*****] VALVE-DE ICING DUAL DISTRIBUTOR [*****] [*****] MULTIFUNCTION COMPUTER [*****] [*****] PROBE-CCAS ALPHA [*****] [*****] BOX-UPLOCK [*****] [*****] CONTROL UNIT-ANTISKID SYSTEM [*****] [*****] SENSOR-WHEEL SPEED [*****] [*****] VALVE-SELECTOR,SWIVEL [*****] [*****] EMERGENCY LIGHTING POWER SUPPLY MODULE [*****] [*****] LIGHT-ANTICOLLISION,WHITE [*****] [*****] LIGHT-LANDING [*****] [*****] LIGHT-STROBE [*****] [*****] POWER SUPPLY UNIT-STROBE LIGHT [*****] [*****] PROBE-PITOT [*****] [*****] TRANSMITTER/REGULATOR - OXYGEN PRESS [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 51/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] DUCT-DISCHARGE DOWNSTREAM VALVE [*****] [*****] VALVE ASSY-SHUTOFF [*****] [*****] VALVE-HP AIR BLEED [*****] [*****] VALVE-HP AIR BLEED [*****] [*****] VALVE-XFEED,AIR BLEED [*****] [*****] PUMP-PROPELLER FEATHERING [*****] [*****] SWITCH-PRESSURE,HYDRAULIC [*****] [*****] PIPE-EXHAUST [*****] [*****] TRANSMITTER-FUEL FLOW [*****] [*****] PUSH-PULL CABLE-PROPELLER POWER [*****] [*****] ACTUATOR-OIL COOLER FLAP [*****] [*****] COOLER-OIL [*****] [*****] BRAKE, PROPELLER [*****] [*****] EXCITER—IGNITION I.C. [*****] [*****] EJECTOR, FUEL WASTE [*****] [*****] COOLER - OIL [*****] [*****] SERVO VALVE [*****] [*****] VALVE INTERCOMPRESSOR BLEED [*****] [*****] FUEL HEATER [*****] [*****] FUEL PUMP [*****] [*****] TOTAL [*****] [*****] [*****] DESCRIPTION [*****] [*****] PROPELLER ASSY [*****] [*****] PROPELLER ASSY [*****] [*****] MULTIFONCTION COMPUTER [*****] [*****] PROPELLER ASSY [*****] [*****] MFC [*****] [*****] MFC [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 52/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] BRAKE, PROPELLER [*****] [*****] BRAKE, PROPELLER [*****] [*****] AIR DATA COMPUTER [*****] [*****] STARTER GENERATOR-DC [*****] [*****] BLADE PROPELLER [*****] [*****] TRANSCEIVER-TCAS [*****] [*****] BRAKE, PROPELLER [*****] [*****] BRAKE, PROPELLER [*****] [*****] MODULE VALVE PROPELLER [*****] [*****] MODULE VALVE PROPELLER [*****] [*****] ACTUATOR-NOSE [*****] [*****] FCU-HYDRO MECHANICAL [*****] [*****] ELECTRONIC ENGINE CONTROL UNIT [*****] [*****] COMPUTER-AFCS [*****] [*****] REMOTE CONTROL AUDIO UNIT [*****] [*****] REMOTE CONTROL AUDIO UNIT [*****] [*****] TRANSCEIVER-RADIO ALTIMETER [*****] [*****] GROUND PROXIMITY WARNING [*****] COMPUTER [*****] [*****] VALVE-HP AIR BLEED [*****] [*****] INDICATOR-VERTICAL SPEED [*****] [*****] GENERATOR-AC [*****] [*****] COOLER-OIL [*****] [*****] REMOTE CONTROL AUDIO UNIT [*****] [*****] VALVE-DIFFERENTIAL CONTROL [*****] SELECTOR [*****] [*****] VALVE INTERCOMPRESSOR BLEED [*****] [*****] FLIGHT DATA ACQUISITION UNIT [*****] [*****] FLIGHT DATA ACQUISITION UNIT [*****] [*****] FLIGHT DATA ACQUISITION UNIT [*****] [*****] ACTUATOR-MAIN [*****] [*****] ACTUATOR-MAIN RH [*****] [*****] ADVISORY DISPLAY UNIT-AFCS [*****] [*****] VALVE ASSY-P2.5,P3 AIR PRESS.VALVE [*****] [*****] CONDENSER [*****] [*****] TRANSFORMER RECTIFIER UNIT [*****] [*****] CONTROL,AUTOFEATHER [*****] [*****] VALVE BLOCK-FLAP [*****] [*****] VALVE BLOCK-FLAP [*****] [*****] FUEL HEATER [*****] [*****] ACTUATOR-MAIN [*****] [*****] PROBE-CCAS ALPHA [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 53/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] PROBE-CCAS ALPHA [*****] [*****] COUPLER-HF ANTENNA [*****] [*****] GOVERNOR-PROPELLER OVSP [*****] [*****] DUCT-DISCHARGE DOWNSTREAM VALVE [*****] [*****] CONTROLLER-DIGITAL [*****] [*****] RECEIVER-VOR/ILS/MKR [*****] [*****] FUEL PUMP [*****] [*****] VALVE-ELECTROPNEUMATIC OUTFLOW [*****] [*****] MOUNT ANTENNA-WEATHER RADAR [*****] [*****] PUMP, HYDRAULIC, OVSP GOV [*****] [*****] CONTROL ELECTRONIC-PROPELLER [*****] [*****] BOBBIN [*****] [*****] DATA COLLECTION UNIT [*****] [*****] PUMP-ELECTRIC,AC [*****] [*****] TRANSCEIVER-HF [*****] [*****] RESISTOR-HORN ANTI ICING,LH [*****] ELEVATOR [*****] [*****] RESISTOR-HORN ANTI-ICING,RH [*****] ELEVATOR [*****] [*****] ACTUATOR-CARGO DOOR [*****] [*****] INTERROGATOR-DME [*****] [*****] INDICATOR-CAB PRESS [*****] [*****] VALVE-ANTI ICING PRESS REGULATOR AND SHUTOFF [*****] [*****] VALVE-SELECTOR,SWIVEL [*****] [*****] SOLID STATE FLIGHT DATA RECORDER [*****] [*****] ANTENNA-TCAS [*****] [*****] CONTROL PANEL-AFCS [*****] [*****] PUMP-ELECTRIC,AUXILIARY,DC [*****] [*****] TRANSCEIVER-VHF [*****] [*****] ASSISTER-FREE FALL,MLG [*****] [*****] CONTROLLER-INSTRUMENT REMOTE [*****] [*****] COUPLER HF ANTENNA [*****] [*****] SEAT-DISABLED PASSENGER,RH [*****] [*****] SEAT-DISABLED PASSENGER,LH [*****] [*****] CONTROLLER-INSTRUMENT REMOTE [*****] [*****] DAMPER-RUDDER [*****] [*****] BAR ASSY-TORQUE [*****] [*****] HANDLE-ENG1 FIRE [*****] [*****] HANDLE-ENG2 FIRE [*****] [*****] INDICATOR-TAS/TEMP [*****] [*****] CONTROL PANEL-EFIS [*****] [*****] PROBE-AIR TEMPERATURE [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 54/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] SENSOR-HALL EFFECT [*****] [*****] HANDSET-CABIN ATTENDANT [*****] [*****] JOINT [*****] [*****] INDICATOR-FUEL FLOW/FUEL USED,KG [*****] [*****] CLOCK [*****] [*****] VALVE-SELECTOR,LG [*****] [*****] HOCKMOUNT-AFT LATERAL,RH [*****] [*****] EXCITER-IGNITION I.C. [*****] [*****] SENSOR TORQUE METER [*****] [*****] SENSOR TORQUE METER [*****] [*****] INDICATOR-FUEL QUANTITY,KG [*****] [*****] INDICATOR-FUEL QUANTITY,KG [*****] [*****] VALVE-DE ICING DUAL DISTRIBUTOR [*****] [*****] MASK ASSY-REGULATOR,OXYGEN [*****] [*****] CONTROL BOX-WEATHER RADAR [*****] [*****] DETECTOR UNIT [*****] [*****] TRANSCEIVER-VHF [*****] [*****] VALVE-DE ICING DUAL DISTRIBUTOR [*****] [*****] BATTERY-MAIN [*****] [*****] ACCELEROMETER-THREE AXIS [*****] [*****] PUMP-PROPELLER FEATHERING [*****] [*****] MOTOR-WIPER,F/O [*****] [*****] MOTOR-WIPER,CAPTAIN [*****] [*****] INDICATOR-PRESSURE,TRIPLE [*****] [*****] ACTUATOR-UNLOCKING,MLG [*****] [*****] PANEL-ATTENDANT [*****] [*****] SENSOR, TORQUE MONITOR [*****] [*****] INDICATOR-ITT [*****] [*****] CONTROL UNIT-TCAS [*****] [*****] SWITCH-PROXIMITY [*****] [*****] SERVO VALVE [*****] [*****] SWITCH-PROXIMITY [*****] [*****] VALVE-REFUEL/DEFUEL [*****] [*****] SWITCH-OVERTEMPERATURE [*****] [*****] CYLINDER-MASTER [*****] [*****] INDICATOR-AIRSPEED,STANDBY [*****] [*****] COMPENSATOR-COLD JUNCTION [*****] [*****] COMPENSATOR-COLD JUNCTION [*****] [*****] TRANSMITTER-FUEL FLOW [*****] [*****] COMPENSATOR-COLD JUNCTION [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 55/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] TANK-FUEL DRAIN AND EJECTOR PUMP [*****] [*****] EJECTOR, FUEL WASTE [*****] [*****] SENSOR-WHEEL SPEED [*****] [*****] CONTROL UNIT-DUAL ATC [*****] [*****] LEVER-CONTROL,L/G [*****] [*****] CONTROL UNIT-OVEN [*****] [*****] INDICATOR-ITT [*****] [*****] CLOCK [*****] [*****] CLOCK [*****] [*****] CONTROL UNIT-VHF [*****] [*****] VALVE-FLUX [*****] [*****] LIGHT-STROBE [*****] [*****] CONTROL UNIT-VOR/ILS/DME [*****] [*****] CONTROL UNIT-ADF [*****] [*****] SWITCH-PRESSURE [*****] [*****] MASK ASSY-REGULATOR,OXYGEN [*****] [*****] FLOW DIVIDER & DUMP VALVE [*****] [*****] TRANSMITTER-EMERGENCY LOCATOR [*****] [*****] INDICATOR-OIL TEMP/PRESS [*****] [*****] VALVE-TWO WAY AND WATER DRAIN [*****] [*****] SWITCH-PROXIMITY [*****] [*****] CONTACTOR-ACW [*****] [*****] SWITCH-PROXIMITY [*****] [*****] ACTUATOR-OIL COOLER FLAP [*****] [*****] LIGHT-LANDING [*****] [*****] EMERGENCY LIGHTING POWER SUPPLY MODULE [*****] [*****] SWITCH-OVERTEMPERATURE [*****] [*****] SWITCH-PRESSURE,HYDRAULIC [*****] [*****] VALVE-CHECK [*****] [*****] PROBE-PITOT [*****] [*****] INDICATOR-FUEL TEMPERATURE [*****] [*****] ANTENNA-RADIO-ALTIMETER RECEPTION [*****] [*****] CONTROL UNIT-ATC [*****] [*****] CONTROL UNIT-VHF [*****] [*****] STATIC INVERTER [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 56/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] EXCHANGER-HEAT,DUAL [*****] [*****] TRANSCEIVER-TCAS [*****] [*****] PLAYER-CASSETTE [*****] [*****] CONTROLLER-WINDSHIELD TEMPERATURE [*****] [*****] FAN-GROUND COOLING [*****] [*****] FAN-RECIRCULATION [*****] [*****] TOTAL [*****] [*****] [*****] DESCRIPTION [*****] [*****] AUTO PILOT CAPSTAN [*****] [*****] AUTO PILOT SERVO-ACTUATOR [*****] [*****] FLIGHT GUIDANCE CONTROL PANEL [*****] [*****] VHF/COMM TRANSCEIVER [*****] [*****] POWER TRIM BOX [*****] [*****] CLOCK [*****] [*****] DIGITAL FLIGHT DATA RECORDER [*****] [*****] EFIS CONTROL PANEL LH SIDE [*****] [*****] EFIS CONTROL PANEL RH SIDE [*****] [*****] INDEX CONTROL PANEL [*****] [*****] INTEGRATED AVIONICS DISPLAY [*****] [*****] MPC-ED36 [*****] [*****] MULTI-FUNCTION CONTROL PANEL [*****] [*****] MULTIPURPOSE CONTROL & DISPLAY UNIT [*****] [*****] AIR DATA COMPUTER [*****] [*****] ATC TRANSPONDER [*****] [*****] ATTITUDE HEADING REF UNIT [*****] [*****] FLUX VALVE [*****] [*****] INTEGRATED ELEC.STAND-BY EQUIP [*****] [*****] INTERROGATOR-DME [*****] [*****] NAVIGATOR PROCESSOR UNIT (GPS RECEIVER) [*****] [*****] RADIO-ALTIMETER TRANSCEIVER [*****] [*****] RECEIVER-VOR/ILS/MKR [*****] [*****] T2CAS COMPUTER [*****] [*****] WX RADAR CONTROL PANEL [*****] [*****] CAC SWM [*****] [*****] CORE AVIONICS CABINET INPUT OUPUT MODULE AUTO PILOT [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 57/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] CORE AVIONICS CABINET INPUT OUPUT MODULE-DC [*****] [*****] CORE AVIONICS CABINET INPUT OUTPUT MODULE-S [*****] [*****] INTEGRATED CORE PROCESSING MODULE [*****] [*****] PRINTER [*****] [*****] ICP 110VM [*****] [*****] ICP 111VM [*****] [*****] ICP 111VM [*****] [*****] ICP 112VM [*****] [*****] ICP 114VM [*****] [*****] ICP 131VM [*****] [*****] ICP 131VM [*****] [*****] ICP 132VM [*****] [*****] ICP 400VM [*****] [*****] ICP 401VM [*****] [*****] ICP 402VM [*****] [*****] ICP 404VM [*****] [*****] ICP 6VM [*****] [*****] ICP 811VM [*****] [*****] CENTRAL MAIN INSTRUMENT [*****] [*****] PANEL LIGHT [*****] [*****] LIGHT MANAGEMENT UNIT [*****] [*****] TCAS DIRECTIONAL ANTENNA [*****] [*****] TOTAL [*****] [*****] [*****] DESCRIPTION [*****] [*****] T2CAS Computer [*****] [*****] T2CAS Computer [*****] [*****] TOTAL [*****] [*****] [*****] DESCRIPTION [*****] [*****] PROBE-PITOT [*****] [*****] EJECTION DUCT [*****] [*****] BUS POWER CONTROL UNIT [*****] [*****] BATTERY-EMERGENCY [*****] [*****] AFTER ROLLER BLIND [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 58/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] OXYGEN CYLINDER ASSY [*****] [*****] DIGITAL FLT DATA RECORDER [*****] [*****] ATTITUDE HEADING REF UNIT [*****] [*****] PCMCIA [*****] [*****] POWER SUPPLY UNIT [*****] [*****] FUSELAGE GROUND LIGHT [*****] [*****] EMERGENCY POWER SUPPLY [*****] [*****] INTERCOMPRESSOR BLEED VALVE [*****] [*****] BATTERY-MAIN [*****] [*****] MOTOR AND PUMP ASSEMBLY [*****] [*****] FIRE EXTINGUISHER [*****] [*****] TRIM INDICATOR [*****] [*****] AISLE MARKING EMERGENCY [*****] [*****] INTERTURBINE TEMP.INDICATOR [*****] [*****] INTERTURBINE TEMP.INDICATOR [*****] [*****] PROPELLER SPEED INDICATOR [*****] [*****] VHF/COMM TRANSCEIVER [*****] [*****] STANDBY ALTIMETER [*****] [*****] AIR DATA COMPUTER [*****] [*****] AIRSPEED INDICATOR [*****] [*****] REFUEL CONTROL PANEL [*****] [*****] ELECTRONIC ENGINE [*****] CONTROL [*****] [*****] VHF/COMM CONTROL PANEL [*****] [*****] T2CAS COMPUTER [*****] [*****] FWD SIDE LH ISOLATOR [*****] [*****] EFIS CONTROL PANEL RH [*****] [*****] EFIS CONTROL PANEL LH [*****] [*****] INDEX CONTROL PANEL [*****] [*****] INTEGRATED CORE PROCESSING MOD [*****] [*****] PROPELLER VALVE MODULE [*****] [*****] REMOTE CONTROL AUDIO UNIT [*****] [*****] REMOTE CONTROL AUDIO UNIT [*****] [*****] LP CHECK VALVE [*****] [*****] MPC [*****] [*****] EMERGENCY LOCATOR BEACON [*****] [*****] EMERGENCY POWER SUPPLY [*****] [*****] PRESSURE REG & S/O VALVE [*****] [*****] PRESSURE REG & S/O VALVE [*****] [*****] HALL EFFECT CURRENT [*****] [*****] TOTAL [*****] [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 59/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] TRIM ACTUATOR [*****] [*****] T.I.C. VALVE [*****] [*****] AIR CYCLE UNIT [*****] [*****] LP CHECK VALVE [*****] [*****] DUAL DISTRIBUTOR VALVE [*****] [*****] HALL EFFECT CURRENT [*****] [*****] DESCRIPTION [*****] [*****] AUTO PILOT SERVO-ACTUATOR [*****] [*****] EXCHANGER [*****] [*****] CHECK VALVE [*****] [*****] PRESSURE REG AND S/O VALVE [*****] [*****] PRESSURE REG AND S/O VALVE [*****] [*****] INTEGRATED CORE PROCESSING MOD [*****] [*****] TOTAL [*****] [*****] [*****] DESCRIPTION [*****] [*****] VALVE BLOCK-FLAP [*****] [*****] DUCT-DISCHARGE DOWNSTREAM VALVE [*****] [*****] DUCT-DISCHARGE DOWNSTREAM VALVE [*****] [*****] VALVE-SELECTOR,SWIVEL [*****] [*****] VALVE-SELECTOR,SWIVEL [*****] [*****] JOINT [*****] [*****] LIGHT-LANDING [*****] [*****] ICP 112VM [*****] [*****] ICP 114VM [*****] [*****] TCAS DIRECTIONAL ANTENNA [*****] [*****] TCAS DIRECTIONAL ANTENNA [*****] [*****] SERVO VALVE [*****] [*****] TOTAL [*****] [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 60/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] PROBE-PITOT [*****]
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 61/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 6 - LRUs COVERED BY REPAIR AND STANDARD EXCHANGE SERVICES
The following Exhibit is composed of eight (8) pages, into which are listed [*****] part numbers. 1. List A
The following list of LRUs contains [*****] part numbers. [*****] Description [*****] WATER EXTRACTOR [*****] AIR CYCLE UNIT [*****] DIGITAL CONTROLLER [*****] CONDITIONED AIR CHECK VALVE [*****] REGULATOR-PRESSURE [*****] PRESSURE REG AND S/O VALVE [*****] BUTTERFLY MODULATING VALVE [*****] CHECK VALVE [*****] CHECK VALVE [*****] PRESSURIZATION INDICATOR [*****] DUAL TEMPERATURE INDICATOR [*****] CONTROLLER-TEMP [*****] OVERTEMP. SWITCH [*****] VLV-U/FLOOR ISOL/VEN [*****] CONDENSER [*****] CONTROLLER-MANUAL [*****] VLV-SHUTOFF TURBOFAN [*****] TEMPERATURE CONTROL VALVE [*****] RECIRCULATION FAN ASSY [*****] GROUND COOLING FAN [*****] E/E COOLING FAN [*****] AMBIANT PRESSURE UNIT [*****] UNDER FLOOR VALVE [*****] GND OUTFLOW VALVE [*****] ROD-DYNAMOMETRIC ELE [*****] ROD-DYNAMOMTRC RUDDR [*****] FORCE DETECTOR ROD [*****] ROD-DYNAMOMETRIC ELE [*****] AP.SERVO ACTUATOR [*****] ADVISORY DISPLAY [*****] AUTOPILOT COMPUTER [*****] AUTOPILOT COMPUTER [*****] AP/FD CONTROL PANEL [*****] FLIGHT GUIDANCE CONTROL PANEL [*****] FLIGHT GUIDANCE CONTROL PANEL [*****] FLIGHT GUIDANCE CONTROL PANEL [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 62/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] Description [*****] AUTO PILOT SERVO-ACTUATOR [*****] CAPSTAN [*****] DIGITAL PLAYER [*****] MONITOR [*****] COCKPIT VOICE RECORDER [*****] VHF/COMM TRANSCEIVER [*****] DUAL SYSTEM ADAPTER [*****] HF/COMM TRANSCEIVER [*****] AUTOMATIC ANTENNA COUPLER [*****] HF/COMM CONTROL PANEL [*****] AUTOMATIC ANTENNA COUPLER [*****] HF/COMM TRANSCEIVER [*****] VHF/COMM TRANSCEIVER [*****] VHF/COMM TRANSCEIVER [*****] VHF COMM TRANSCEIVER [*****] VHF-4000-8,33 KHZ [*****] VHF 4000 [*****] MANAGEMNT UNIT-ACARS [*****] VHF/COMM CONTROL PANEL [*****] VHF/COMM CONTROL PANEL [*****] ATTENDANT HANDSET [*****] ATTENDANT HANDSET [*****] ATTENDANT HANDSET [*****] SELECTION PNL-SELCAL [*****] REMOTE CONTROL AUDIO UNIT [*****] REMOTE CONTROL AUDIO UNIT [*****] REMOTE CONTROL AUDIO UNIT [*****] PASSENGER ADDRESS AMPLIFIER [*****] SELCAL DECODER [*****] STATIC INVERTER [*****] TRANSFORMER RECTIFIER UNIT [*****] GENERATOR CONTROL UNIT [*****] HALL EFFECT CURRENT [*****] CURRENT TRANSFORMER [*****] BATTERY CH/DISCH.AMMETER [*****] GENERATOR CONTROL UNIT [*****] ELEC.POWER MESURING ASSY [*****] BUS POWER CONTROL UNIT [*****] AC.CONTACTOR [*****] TRANSFORMER RECTIFIER UNIT [*****] DC CONTACTOR [*****] EMERGENCY LOCATOR BEACON [*****] TOILET-PSU [*****] EMERGENCY LOCATOR BEACON [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 63/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] Description [*****] LF.FIRE-SHUT-OFF CTL.PANEL [*****] RH.FIRE-SHUT-OFF CTL.PANEL [*****] FIRE DETECTION CONTROL UNIT [*****] FAN SMOKE DETECTION [*****] SMOKE DETECTOR [*****] DETECTION BOX [*****] CONTROL BOX [*****] SMOKE DETECTOR [*****] SMOKE DETECTOR [*****] POSITION TRANSMITTER [*****] RELEASABLE CENTRING UNIT [*****] CABLE TENSION REGULATOR [*****] FLAPS POSITION INDICATOR [*****] FLAPS POSITION INDICATOR [*****] TRIM INDICATOR [*****] TRIM INDICATOR [*****] SHAFT-FLEXIBLE [*****] FLAP CONTROL SWITCH UNIT [*****] ELECTROMECHANICAL ACTUATOR [*****] STICK PUSHER [*****] FLAP VALVE BLOCK [*****] SPOILER VALVE BLOCK [*****] ALPHA PROBE [*****] POWER TRIM BOX [*****] RUDDER DAMPER [*****] RESTRICTOR UNIT [*****] RESTRICTOR UNIT [*****] RUDDER DAMPER [*****] FLAP ACTUATOR [*****] FLAP ACTUATOR [*****] STICK SHAKER [*****] AILERON GUST-LOCK ACTUATOR [*****] SPOILER ACTUATOR [*****] FIRE SHUT-OFF VALVE [*****] CROSSFEED VALVE [*****] MOTIVE FLOW VALVE [*****] ACTUATOR-FUEL LP VLV [*****] ACTUATOR-FUEL CROSSF [*****] GRAVITY FILLER CAP [*****] FUEL TANK TEMP.INDICATOR [*****] FUEL CONTROL UNIT [*****] REFUEL CONTROL PANEL [*****] FUEL QUANTITY REPEATER [*****] FUEL QUANTITY INDICATOR [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 64/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] Description [*****] FUEL QUANTITY INDICATOR [*****] FUEL PROBE(N1) [*****] FUEL QUANTITY PRESELECTOR [*****] FUEL QUANTITY PRESELECTOR [*****] CLINOMETER-ROLL ATT [*****] FUEL ELECTROPUMP [*****] FUEL ELECTROPUMP [*****] JET PUMP [*****] ENGINE FEED JET PUMP [*****] FUEL PUMP CANISTER [*****] REFUEL/DEFUEL COUPLING [*****] REFUELLING ASSEMBLY [*****] REFUELLING ASSEMBLY [*****] RESERVOIR [*****] LINE ACCUMULATOR [*****] PRESSURE MODULE [*****] LOW LEVEL SWITCH [*****] AC MOTOR DRIVEN PUMP [*****] DC HYDRAULIC PUMP [*****] TRIPLE INDIC [*****] ICE DETECTOR [*****] WIPER MOTOR CONVERTER [*****] WIPER MOTOR CONVERTER [*****] MAIN WINDSHIELD CONTROLLER [*****] STBY DE ICING CTL UNIT [*****] DUAL DISTRIBUTOR VALVE [*****] REGULATOR/SHUTOFF VALVE [*****] SHUT OFF VALVE [*****] ANTI-ICING CONTROLLER [*****] LEFT ELEVATOR HORN [*****] RIGHT ELEVATOR HORN [*****] RUDDER HORN [*****] LEFT AILERON HORN [*****] RIGHT AILERON HORN [*****] LEFT AILERON HORN [*****] RIGHT AILERON HORN [*****] ATTENDANT PANEL [*****] QUICK ACCESS RECORDER [*****] APIU [*****] DIGITAL FLT DATA RECORDER [*****] DIGITAL FLT DATA RECORDER [*****] LINEAR ACCELEROMETER [*****] MPC-ED36 [*****] ATTENDANT PANEL [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 65/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] Description [*****] ATTENDANT PANEL [*****] ROD-DYNAMOMETRIC,ROL [*****] CREW ALERTING PANEL [*****] ENTRY PANEL-FLT DATA [*****] CLOCK [*****] EFIS CONTROL PANEL RH SIDE [*****] EFIS CONTROL PANEL RH SIDE [*****] EFIS CONTROL PANEL LH SIDE [*****] EFIS CONTROL PANEL LH SIDE [*****] INDEX CONTROL PANEL [*****] INDEX CONTROL PANEL [*****] MULTI-FUNCTION CONTROL PANEL [*****] MULTI-FUNCTION CONTROL PANEL [*****] INTEGRATED AVIONICS DISPLAY [*****] FDAU [*****] FDAU [*****] MPC [*****] CLOCK [*****] MULTIPURPOSE CONTROL & DISPLAY UNIT [*****] MULTIFUNCTION COMPUTER [*****] CLOCK [*****] PARKING VALVE [*****] BRAKING RESERVOIR [*****] MASTER CYLINDER [*****] LANDING GEAR CONTROL VALVE [*****] PARKING ACCUMULATOR [*****] HYDRAULIC DUMPER [*****] NORMAL METERING VALVE [*****] WHEEL SPEED TRANSD ASSY [*****] PARKING VALVE [*****] NORMAL METERING VALVE [*****] MODULE-ANTISKIP [*****] ANTISKID VALVE MANIFOLD [*****] ANTISKID CONTROL UNIT [*****] ANTISKID CONTROL UNIT [*****] VLV-RELIEF LOW PRESS [*****] RESTRICTOR VALVE [*****] SOLENOID VALVE NLG [*****] SWIVEL SELECTOR VALVE [*****] DIFF CONTROL SELECT VALVE [*****] UP LOCK BOX [*****] LANDING GEAR SELECTOR [*****] ANTICOLL.LTG POWER SPLY UNIT [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 66/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] Description [*****] TRANSFORMER-115V/5V- [*****] LIGHT-LOGO [*****] WING-ENG SCAN LIGHT LH [*****] WING-ENG SCAN LIGHT LH [*****] WING-ENG SCAN LIGHT RH [*****] WING-ENG SCAN LIGHT LH [*****] LANDING LIGHT [*****] ANTICOLL.LTG POWER SPLY UNIT [*****] ANTICOLL. LIGHT [*****] TOTAL AIR TEMP SENSOR [*****] FLUX VALVE COMPENSATOR [*****] FLUX VALVE [*****] ATTITUDE HEADING REF UNIT [*****] VSI/TCAS INDICATOR [*****] ALTIMETER [*****] VSI/TCAS INDICATOR [*****] PROBE-PITOT [*****] RADIOMAGNETIC INDICATOR [*****] ADF.RECEIVER [*****] VOR/ILS/MKR.RECEIVER [*****] DME RECEIVER [*****] ATC CONTROL PANEL [*****] DME INDICATOR [*****] ADAPTER [*****] ATC TRANSPONDER [*****] ATC TRANSPONDER [*****] ATC TRANSPONDER [*****] IND-AIRSPEED STDBY [*****] STANDBY ALTIMETER [*****] AIR DATA COMPUTER [*****] INDICATOR-TAS/TEMP [*****] AIRSPEED INDICATOR [*****] ATTITUDE HEADING REF UNIT [*****] EFIS SYMBOL GENERATOR [*****] EFIS.CONTROL PANEL [*****] CRS/HDG.REMOTE CONTROLLER [*****] CRS/ALT.REMOTE CONTROLLER [*****] WX.RADAR CONTROL PANEL [*****] WX.RADAR CONTROL PANEL [*****] WX.RADAR CONTROL PANEL [*****] RADAR RECEIVER TRANSCEIVER [*****] ATC TRANSPONDER [*****] MULTI. CONTROL & DISPLAY UNIT [*****] TRANSCEIVER RECEIVER TCAS [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 67/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] Description [*****] VOR/ILS/MKR.RECEIVER [*****] DME TRANSCEIVER [*****] VOR/ILS/MKR.RECEIVER [*****] ATC CONTROL PANEL [*****] VOR/ILS/DME.CONTROL PANEL [*****] ADF.CONTROL PANEL [*****] TCAS CONTROL PANEL [*****] NAVIGATOR PROCESSOR UNIT [*****] NAVIGATOR PROCESSOR UNIT [*****] T2CAS COMPUTER [*****] RADIO-ALTIMETER TRANSCEIVER [*****] RADIO-ALTIMETER TRANSCEIVER [*****] EGPWS MK8 COMPUTER [*****] GPWS MK2 COMPUTER [*****] INTEGRATED ELEC.STAND-BY EQUIP [*****] AIR DATA COMPUTER [*****] GPS RECEIVER [*****] GPS RECEIVER [*****] STANDBY HORIZON [*****] RADAR RECEIVER TRANSCEIVER [*****] OXYGEN SOLENOID VALVE [*****] OXYGEN REGULATOR MASK ASSY [*****] OXYGEN REGULATOR MASK ASSY [*****] OXYGEN PRESS.XMTR/REG [*****] DUCT DISCHARGE DOWNSTREAM VALV [*****] CHECK VALVE [*****] PRESSURE REG & S/O VALVE [*****] BLEED AIR SHUTOFF VALVE [*****] ISOLATION VALVE [*****] INTEGRATED CORE PROCESSING MOD [*****] IOM - S [*****] CAC SWM [*****] IOM - DATA CONCENTRATOR [*****] CORE AVIONICS CABINET RACK [*****] IOM - AUTO PILOT [*****] CARGO DOOR ACTUATOR [*****] COCKPIT DOOR CONTROL UNIT [*****] HYDRAULIC PRESSURE SWITCH [*****] MOTOR AND PUMP ASSEMBLY [*****] PROPELLER COND.PUSH-PULL [*****] PROPELLER SPEED INDICATOR [*****] OVERSPEED GOVERNOR [*****] OIL PUMP [*****] ELECTRONIC PROPELLER CONTROL [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 68/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] Description [*****] PROPELLER VALVE MODULE [*****] ELECTROVALVE [*****] PROPELLER BLADE [*****] EJECTION DUCT [*****] EJECTION DUCT [*****] IND-FUEL TEMP [*****] FUEL FLOW INDICATOR [*****] FUEL FLOW TRANSMITTER [*****] ENGINE POWER PUSH-PULL [*****] HP SPEED INDICATOR [*****] TORQUE INDICATOR [*****] INTERTURBINE TEMP.INDICATOR [*****] PROPELLER TORQUE INDICATOR [*****] OIL COOLER FLAP ACTUATOR [*****] THERMOSTATIC VALVE [*****] OIL COOLER [*****] OIL TEMP/PRESS.INDICATOR [*****] OIL PRESSURE SENSOR [*****] CONTROL ENGINE ELECTRONIC [*****] EXCITER-IGNITION [*****] EJECTOR-FUEL WASTE [*****] VALVE ASSY-INTERCOMPRESSOR BLEED [*****] VALVE ASSY-INTERCOMPRESSOR BLEED [*****] AUTOFEATHER CONTROL [*****] FUEL CONTROL-MECHANICAL [*****] COOLER-OIL, FUEL COOLED [*****] FLOW DIVIDER AND DUMP VALVE [*****] VALVE ASSY-SERVO [*****] PUMP-FUEL [*****] BRAKE HYDROMECHANICAL ASSY [*****] EFIS.CATHODE RAY TUBE [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 69/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED
2. List B
The following list of LRUs contains [*****] part numbers. [*****] Description [*****] T.I.C. VALVE [*****] EXCHANGER [*****] AUDIO CONTROL PANEL [*****] BUS POWER CONTROL UNIT [*****] AC GENERATOR [*****] DC STARTER GENERATOR [*****] TRIM ACTUATOR [*****] DUAL DISTRIBUTOR VALVE [*****] ANTICOLL. LIGHT [*****] STROBE LIGHTS [*****] POWER SUPPLY UNIT [*****] EMERGENCY POWER SUPPLY [*****] HEATER-OIL TO FUEL
For sake of clarity, the above lists may be amended from time to time by way of Notice sent to the Company by the Repairer.
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 70/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version EXHIBIT 7 - REPAIRER STANDARD WORK ORDER FORMS
7-1 Standard exchange order:
AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 71/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version 7-2 Repair order:
Agreement ref.: code client-GMA-01 SHIPPING DATE: PAGE: 1 / 1
REPAIR ORDER
(THIS FORM MUST BE ENCLOSED INSIDE THE BOX WITH THE UNIT) FROM: TO (Shipping address): COMPANY NAME Sender:
Tel: Fax:
ATR CUSTOMER SUPPORT c/o DHL Solutions ZA du Pont Yblon 95 500 Bonneuil en France FRANCE
REPAIR ORDER NUMBER : DATA RELATED TO REMOVED UNIT A/C DATA TYPE: MSN: FH: REGISTRATION: CY:
UNIT DATA
PART NUMBER: TSN: AMENDMENT: CSN: SERIAL NBR: TSO: DESIGNATION:PAGE: CSO: WARRANTY COVERAGE INSTALLATION DATE: VENDOR (O.E.M.): YES NO REMOVAL DATE: A.C.S. REPAIR: YES NO REASON FOR REMOVAL REQUESTED WORK REPAIR OVERHAUL BENCH TEST CALIBRATION
MODIFICATION
(Please indicate the requested SB and final PN)
OTHER WORKS TO INCORPORATE / REMARKS ATR—Global Maintenance Agreement ATR form ref. 7-2 AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 72/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version 7-3 Standard exchange Core Unit returned to ATR Pool:
Agreement ref.: code client-GMA-01 SHIPPING DATE: PAGE: 1 / 1
STANDARD EXCHANGE CORE UNIT RETURNED TO ATR POOL
(THIS FORM MUST BE ENCLOSED INSIDE THE BOX WITH THE UNIT) FROM: TO (Shipping address): COMPANY NAME
Sender: Tel: Fax:
ATR CUSTOMER SUPPORT c/o DHL Solutions ZA du Pont Yblon 95 500 Bonneuil en France FRANCE
EXCHANGE ORDER REFERENCE: UNIT DELIVERED BY ACS: PART NUMBER: SERIAL NBR: DATA RELATED TO REMOVED UNIT A/C DATA TYPE: MSN: FH: REGISTRATION: CY:
CORE UNIT DATA
PART NUMBER: TSN: AMENDMENT: CSN: SERIAL NBR: TSO: DESIGNATION: CSO: WARRANTY COVERAGE INSTALLATION DATE: VENDOR (O.E.M.): YES NO REMOVAL DATE: A.C.S. REPAIR: YES NO REASON FOR REMOVAL REMARKS ATR - Global Maintenance Agreement ATR form ref. 7-3 AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 73/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version
Agreement ref.: code client-GMA-01 DATE: PAGE: 1 / 1
LOAN ORDER
FOR MAIN ELEMENT AVAILABILTY UNDER GMA FROM: TO: COMPANY NAME:
Sender: Tel: Fax:
A.C.S.-ATR CUSTOMER SUPPORT Attn: Tel for routine orders: (33) 5 62 21 60 80 Tel for AOG orders: (33) 5 62 21 62 00 Fax for routine orders: (33) 5 62 21 62 80 Fax for AOG orders: (33) 5 62 21 62 62
REQUEST FOR A/C TYPE: RGSTN: MSN: LOAN ORDER NUMBER DELIVERY LEAD TIME: A.O.G. CRITICAL REQUESTED PART NUMBER DESCRIPTION REASON
DATA RELATED TO PART NUMBER REMOVED FROM AIRCRAFT
PART NUMBER S / N Removal date
COMMENTS SHIPPING ADDRESS IF SPECIFIC (Different from standard shipping address) REMARKS ATR - Global Maintenance Agreement ATR form ref. 7-4 AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 74/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 8 - LEASE OF THE STOCK
1. Lease of the Stock
The Repairer agrees to lease the Stock to the Company and the Company agree to take the Stock on lease, subject to the terms and conditions of this Agreement.
2. Content and value of the Stock
2.1 Content: the Stock listed in Exhibit 5 ("Stock") contains serviceable Items, either brand new or used, depending on availability of such Items by the Repairer at the time of their respective Delivery. 2.2 Value: the Stock total value for brand new Items, under economic conditions prevailing in two thousand fourteen (2014), shall be:
For the initial AZUL stock delivered under economic conditions 2010, [*****]
For the stock delivered under the AZUL amendment 3 under economic conditions 2011, [*****]
For the stock delivered under the AZUL amendment 4 under economic conditions 2011, [*****]
For the first batch, stock delivered under the GMA TRIP under economic conditions 2011 [*****]
For the second batch limited to the parts not recommended by the repairer, stock delivered under the GMA TRIP under economic conditions 2011 [*****]
For the sake of clarity, parts of the Stock contained into the second batch that are recommended by Repairer, are provided [*****] delivered under the GMA TRIP under economic conditions 2011 [*****]
For the batch related to the Amendment 5, stock delivered under economic conditions 2013 [*****]
For the batch related to the Amendment 6, stock delivered under economic conditions 2014 [*****]
For the batch related to the Amendment 7, stock delivered under economic conditions 2014 [*****]
For the batch related to the 2014 OSS replenishment, stock delivered under economic conditions 2014 [*****]
For the batch related to the Pitot exchange, stock delivered under economic conditions 2014 [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 75/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****]
For the sake of clarity,
The total Stock value of Exhibit 5 list shall be:
[*****]
And the lease fee payable in Exhibit 14 ("Price conditions")shall be based on the value of [*****] corresponding to parts of the Stock contained into the TRIP second batch that are recommended by Repairer, i.e. [*****]
In the event the Repairer delivers used Items to the Company, the value of each such used Item shall be quoted at [*****] of the brand new value indicated in Exhibit 5 ("Stock") and the total value of the Stock shall be adjusted accordingly by way of Notice sent by the Repairer to the Company. 2.3 Modification of the Stock: on the first anniversary date of the Start Date, the Parties may review the content of the Stock and shall, in case of a variation in the contents of the Stock, amend the Agreement accordingly by way of Notice sent by the Repairer to the Company. Following such amendment, the Company shall return to the Repairer any Item of the Stock, or request the Repairer to replace any Item within the Stock subject to the following conditions: a) the Item returned by the Company (i) has never been used by the Company since the Start Date, (ii) is in serviceable condition, (iii) isdelivered in its original Packaging and with all appropriate airworthiness documents; and,
b) the Item shall be returned as per Clause 6.2 of this Agreement; and,
c) if an Item is returned to the Repairer, the value of the Stock shall be modified by deduction of the initial value of the relevant Itemapplicable at the time of its Delivery; and, d) if an Item is added to the Stock, the value of the Stock shall be increased according to the ATR spare parts catalogue price for the addedItem at the economic conditions corresponding to the time when the Stock is modified.
The Company shall be responsible for and pay any costs incurred by and/or in connection with the return to the Repairer and/or replacement of such Items of the Stock, including transportation costs, customs duties, formalities and commissions, re-certification fees if documents are missing or damages are found or the conditions of this Clause 2.3 are otherwise not complied with by the Company. 2.4 Inventory of the Stock: the Repairer or any representative it designates shall have the right to inspect the Stock and to audit any records relating thereto at any reasonable time upon giving prior Notice to the Company, which shall provide full access to such Stock to enable the Repairer to conduct periodic inventory inspections and/or any audit of the Stock.
Should any Item of the Stock be missing, partially or totally damaged, or not have its appropriate airworthiness documentation at the time the Repairer or its representative carries out its inspection and/or audit, and if the Company cannot justify such Item as being under repair, the Company shall have [*****] to remedy the situation to the satisfaction of the Repairer, failing which, the Repairer shall invoice the Company the price for any such lost or damaged Item at the ATR spare parts catalogue price applicable on the date of such invoice for a new part initially delivered by the Repairer. In the event the Repairer initially delivered used Items to the Company, each such used lost Item shall be invoiced at [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 76/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] of the brand new value at the ATR spare parts catalogue price applicable on the date of such invoice.
3. Stock Delivery 3.1 Provided the Company has met each of the conditions precedent as per Clause 17 ("Conditions precedent") of the Agreement, the Stock shall be delivered to the Company by the Repairer with the relevant airworthiness documents (certificate of conformity, ANAC SEGVOO 003 or EASA Form 1 or FAA Form 8130-3), [*****] to the Repairer stores located at the address set forth in Clause 6.1 of this Agreement, or such other location as the Repairer may from time to time notify to the Company . 3.2 The Repairer shall use its reasonable endeavours to deliver [*****] in quantity of the Stock within [*****] as from the Start Date. 3.3 As from the Delivery of the Stock, the Company is appointed as the custodian of the Stock and, all risks relating to or arising in connection with the Stock shall be transferred to, vested in and borne by the Company, which shall promptly notify the Repairer of any loss or damage to the Stock. 3.4 Within [*****] as from the date of Delivery of any Item of the Stock, the Company shall be responsible for obtaining and shall provide the Repairer with evidence in respect of (i) custom clearance, including payment fees, customs duties, and (ii) customs declarations, with respect to the relevant Stock Item.
4. Storage Location of the Stock (i) The Storage Location shall be:
Rodovia Santos Dumont, Km 66, Jardim Itatinga, Campinas - São Paulo, Brazil CEP 13052-970.
And
Av Portugal, 5139, Itapoa - Belo Horizonte, Minas Genais, Brazil
or any other address notified from time to time by the Company to the Repairer, or by default the address of the Company as indicated in page four (4) of this Agreement.
(ii) The Stock shall be kept with its corresponding documentation in secured warehouse facilities at the Storage Location, which shall be separated from any area used to store any other equipment, and each Item shall be clearly identified as belonging to the Repairer and/or the Stock owner with the inscription "ATR PROPERTY".
(iii) The Company shall notify to the Repairer the name and address of the owner or landlord of the Storage Location, if relevant, and each time such owner or landlord changes; the Company shall notify the said new owner or landlord, if relevant, of the Repairer's property of the Stock and copy the Repairer of such notification. (iv) The Company shall be liable for maintaining the Stock by applying the best methods for storage and maintenance as required byapplicable EASA or [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 77/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED ANAC regulations at its own costs, particularly for parts subject to limited shelf life or cure date. 5. Use and repair of the Stock
(i) Each Item listed in Exhibit 3 ("Main Elements covered under this Agreement") and Exhibit 6 ("LRUs covered by repair and standardexchange Services") withdrawn from the Stock and used by the Company shall be exclusively repaired by the Repairer.
(ii) The Company shall be entitled to withdraw and use Items from the Stock in accordance with its operational needs, to remedy to any corresponding unserviceable Item fitted on the Aircraft covered under this Agreement (Exhibit 1 "List of ATR Aircraft covered under this Agreement"). (iii) In such case, the Company shall return to the Repairer such unserviceable Item removed from the Aircraft with a Work Order for repairin the form set out in Exhibit 7-2 within [*****] from the withdrawal of the corresponding Item from the Stock.
The Repairer shall then repair, as relevant, such unserviceable Item in accordance with the provisions of Exhibits 10 and/or 11 and re- deliver to the Company a serviceable Item with the relevant associated airworthiness documentation (i.e. a certificate of conformity, ANAC SEGVOO 003 and EASA Form 1 or FAA Form 8130-3,and when applicable the log book duly filled with any technical information).
The Company shall then place such serviceable Item into the Stock.
(iv) In the event that the unserviceable Item removed from the Aircraft is declared BER or TNR (copy of the Repair Shop report will be given to the Company ), and is not covered by Services as defined in Exhibit 10 and/or Exhibit 11, the Repairer will invoice such unserviceable Item to the Company , except if the Company replaces such unserviceable Item with an equivalent serviceable Item which shall be placed into the Stock.
(v) Should the Company place a standard exchange Work Order, as per Exhibit 9 to replace any Item withdrawn from the Stock to replace an equivalent unserviceable Item removed from any Aircraft, then after repair and/or overhaul of such unserviceable Item, the Repairer will place such repaired and/or overhauled Item into the Pool and will not deliver it to the Company . (vi) [*****].
In the event the Company purchases any Item of the Stock, the Parties agrees to modify accordingly the price indicated in Clause 1.1 of the Exhibit 14 ("Price conditions"), to take into account monthly lease rental only for the remaining Items of the Stock. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 78/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED
6. Return of the Stock 6.1 Within [*****] as from the End Date, the Company shall notify the Repairer of its decision to either: (a) [*****] and/or, (b) return the Stock to the Repairer as per Clause 6.2 of the Agreement in accordance with the following terms and conditions; such returnshall have to be performed within [*****] following such Notice.
If the Company fails to notify the Repairer as provided here above, the Repairer shall either (i) invoice as per (a) here above and/or (ii) direct the Company to return the Stock within [*****] following the term of the aforesaid [*****] period and/or (iii) repossess the Stock, at its discretion. 6.2 If the Company fails to return the Stock as provided here above, the Company shall be charged interest at a rate equal to [*****] of the value of the non-returned Items, per Day as from the end of the aforesaid [*****] period, until the non-returned Items are duly received or repossessed by the Repairer.
The Repairer shall be entitled to set off such late return interests with the Security Deposit pursuant to Clause 13 ("Security Deposit"). 6.3 In the event any Item of the Stock is not returned to or repossessed by the Repairer within [*****] period as from the End Date, the Repairer may consider, at its discretion, such Item as lost and shall then invoice such Item to the Company at the ATR spare parts catalogue price in force at the time of such invoice.
The Repairer shall be entitled, at its sole discretion, to set off the corresponding amount(s) with the Security Deposit as specified in Clause 13 ("Security Deposit"). 6.4 In the event that (i) any Item is returned to the Repairer without the appropriate airworthiness documentation, or (ii) whenever the Items are returned without the original documents supplied by the Repairer, or (iii) if the Repairer has to test, to replace or to repair such returned Item(s) due to damage or deterioration as a result of incorrect storage, inappropriate Packaging and/or transport, or (iv) for any other reason whatsoever, the Company shall bear any associated re-certification, repair, overhaul, and/or replacement costs for such Items at the ATR spare parts catalogue prices applicable on the date of return of such Item to the Repairer. 6.5 Conditions for the return of the Main Elements: when returned or repossessed, if the TSO of the Main Element is different from the TSO at the time of its Delivery, the Repairer shall invoice to the Company the Lost Potential as per the conditions of this Agreement.
In case the maintenance of the Main Elements is not covered by this Agreement, the Company shall return any Main Element with the same TSO as the one at the time of its Delivery. If such TSO is higher, the Repairer shall invoice to the Company the works necessary to restore such TSO based on Time and Material conditions. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 79/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version 7. Payment and transfer of the property title 7.1 Save as otherwise set out in this Agreement, the purchase price for any Item of the Stock shall be paid in accordance with the provisions of Clause 12 ("Invoicing and payment terms"). 7.2 Notwithstanding the provisions of Clause 5 above, title to the Stock shall remain with Stock owner at all times until the Stock has been purchased by the Company as per Clause 6 above and provided that any amount of the corresponding invoice has been fully received by the Repairer in accordance with Clause 12 ("Invoicing and payment terms").
The Company specifically agrees that it shall not acquire any interest, equity or share of the Stock, or pledge or create any lien of any sort whatsoever prior to the transfer of title to the Stock to it in accordance with this Agreement and shall fully indemnify the Stock Owner and/or the Repairer with respect to any consequence of a non-compliance with its obligations under this Clause 7.2. 7.3 The Company may not, under any circumstances, perform or permit any action to be taken that may be detrimental to the Repairer's and/or Stock owner's property title to the Stock, including: i) The Company must not transfer, sell, charge, pawn, mortgage, negotiate, dispose of, or intend to negotiate or dispose of the Stock; and,
ii) The Company shall take the necessary measures in order to prevent the Stock from being seized or taken away, or to check the Stock in the event of a seizure by distress or any other similar legal process. However, if the Stock is seized or taken away, the Company must immediately notify the Repairer and indemnify the Repairer and/or the Stock owner for any Loss incurred by the Repairer and/or the Stock owner as a result of the above-mentioned events, and shall mitigate any such Loss by using its reasonable endeavours to re- possess the Stock or to re-acquire the Stock. 7.4 Case of use of the Stock as per Clause 5 of the Exhibit 8 ("Lease of the Stock"): the title to the Item withdrawn from the Stock shall pass to the Company upon installation of such Item on the Aircraft, subject to (i) full and complete payment of any and all sums due by the Company in connection with this Agreement and (ii) the completion of all of its obligations under Clause 5 of the Exhibit 8 ("Lease of the Stock").
The title to the Item removed from the Aircraft and sent to the Repairer for repair as per Clause 5 hereof shall pass to the Repairer and/or the Stock owner, as relevant, upon such removal. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 80/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 9 - SPARE PARTS STANDARD EXCHANGE SERVICE
The Company shall granted access to the Pool on a standard exchange basis where the Company may order any LRU listed in Exhibit 6 and provide the Repairer in return with an equivalent (same part number or same standard interchangeable) unserviceable LRU removed from the Aircraft. This right of access to the Pool is not exclusive to the Company. 1. Pool content
The Pool is a set of serviceable LRUs listed in Exhibit 6 ("LRUs covered by repair and standard exchange Services") available upon the Start Date, provided the Company has complied with its obligations pursuant to Clause 17 ("Conditions precedent").
In the event of any Aircraft technical modification and upon the Company 's written request, the Repairer may update the list set forth in Exhibit 6 ("LRUs covered by repair and standard exchange Services"), in which case, the price set out in Clause 1.2 of the Exhibit 14 ("Price conditions") shall be adjusted accordingly. 2. Access to the Pool
To access the Pool and take Delivery of the requested LRU, the Company must place a written standard exchange Work Order (by filling the form ref 7-1 in Exhibit 7) with the Repairer. 3. Repairer's obligations 3.1 Pool management
The Repairer shall be responsible for managing and maintaining the Pool at his own expense and in compliance with the relevant OEM recommendations.
Any LRU from the Pool delivered to the Company by the Repairer or any Repair Shop shall comply with the applicable Aircraft technical specifications. 3.2 Dispatching the Items
(i) Any LRU from the Pool shall be delivered to the Company pursuant to Clause 6.1 of the Agreement within [*****] for routine orders, within [*****] for critical orders or within [*****] for AOG orders (limited to classified "no-go and go if" LRUs according to MMEL) as the case may be, starting from the Day of receipt by the Repairer of a standard exchange Work Order. (ii) The dispatch lead times set forth in Clause 3.2 (i) above remain subject to: (a) reception by the Repairer of written standard exchange Work Order 7.1 duly filled in by the Company; and, [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 81/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED
(b) the availability in the Company 's facilities of a stock of critical Items at least at the level of Repairer's recommendations for theAircraft fleet; and, (c) the number of AOG standard exchange Work Orders being less than [*****] of the total number of standard exchange WorkOrders placed by the Company over the last [*****]; and, (d) The Company not being in breach of any of its obligations under this Agreement, including Clause 4.1 (i) of this Exhibit 9.
(iii) Provided the conditions set out in Clause 3.2 (ii) of this Exhibit 9 are met and the Company placed an A.O.G. standard exchange Work Order with the Provider, should the Company be obligated, after Provider's approval, to lease similar LRU from a third Party servicer due to the unavailability of the requested LRU in the Pool, then the Provider will reimburse to the Company, for [*****] until the date of delivery of the requested unit by the Provider to the Company. The Provider shall not under any circumstances have any liability whatsoever (including liability of any consequential loss or damage) in respect of any late delivery of any part other than the liability set forth in this Clause 3.2(iii) . (iv) Any LRU of the Pool will be provided at its latest standard or fully interchangeable standard with the relevant certificate of conformity and, ANAC SEGVOO 003 and EASA form 1/FAA form 8130-3 dual release. (v) LRUs delivered from the Pool are covered by the provisions of Clause 9 ("Warranties"). (vi) Any LRU of the Pool subject to TBO event shall be delivered to the Company with no less than [*****] of life remaining to the nextscheduled overhaul. 4. Core Unit return 4.1 Return lead time
(i) The Company shall return to the Repairer's facilities indicated in Clause 6 ("Deliveries") any Core Unit with the Work Order form ref 7-3 duly filled-in, as standard exchange counterparts, within a maximum [*****] as from the Delivery Date of the LRU from the Pool for any Items from the list A of the Exhibit 6 ("LRUs covered by repair and standard exchange services") and within a maximum of [*****] as from the Delivery Date of the LRU from the Pool for any Items from the list B of the Exhibit 6 ("LRUs covered by repair and standard exchange services").
For sake of clarity, in the event a Core Unit is not returned by the Company to the right Delivery Location as specified in the Clause 6 ("Deliveries"), the Repairer shall be entitled to charge the Company transportation costs, associated taxes and Customs duties due to the re-exportation of such Core Unit to the right Delivery Location. (ii) Prior to dispatching any Core Unit, the Company will also send by fax or by email all the data related to the dispatch (including the dateof dispatch and the carrier's name).
(iii) Notwithstanding the above provision in sub-clause 4.1 (i), in the event a Core Unit is not received by the Repairer within [*****] after Delivery date of the LRU for by the Repairer to the Company for any Items from the list A of the Exhibit 6 ("LRUs covered by repair and standard [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 82/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED exchange services") and within a maximum [*****] as from the Delivery Date of the LRU from the Pool for any Items from the list B of the Exhibit 6 ("LRUs covered by repair and standard exchange services"), the Repairer shall be entitled to charge the Company , as the case may be, late fee equivalent to [*****] of the value of the part per Day starting the [*****] up to maximum the [*****] for any Items from the list A of the Exhibit 6 ("LRUs covered by repair and standard exchange services") and starting the [*****] up to maximum the [*****] for any Items from the list B of the Exhibit 6 ("LRUs covered by repair and standard exchange services") after the Company's standard exchange Work Order date, as the case may be. In the event the Core Unit is not returned by the [*****] for any Items from the list A of the Exhibit 6 ("LRUs covered by repair and standard exchange services") or by the [*****] for any Items from the list B of the Exhibit 6 ("LRUs covered by repair and standard exchange services") after the Company's standard exchange Work Order date, as the case may be, the Repairer will declare the Core Unit as lost in exchange as lost and shall be entitled to invoice to the Company , as the case may be, the amount corresponding to the value of the serviceable LRU primarily delivered by the Repairer according to spare parts catalogue price in force on the date of its Delivery. Title to such serviceable LRU shall pass to the Company, as the case may be, upon full payment of the Repairer's invoice. The Repairer shall be entitled to withdraw without delay the related amount from the Security Deposit as per Clause 13 ("Security Deposit"). (iv) In case of accumulated not returned Core Units pursuant to sub-clause 4.1 (iii) above, the Repairer shall be entitled, subject to a [*****]prior Notice, to suspend the Company's Pool access. 4.2 Any Core Unit shall be repaired in accordance with Exhibit 10 ("LRUs repair Service"). 5. Specific services not covered by standard exchange Service
The following services and their related costs (labor and parts) are not eligible to the standard exchange Service, and shall be managed on Time and Material conditions:
(i) services performed for LRU(s) fitted on Aircraft to comply with Aircraft redelivery conditions or delivery conditions of a third party. For sake of clarity, Aircraft redelivery conditions or delivery conditions of a third party will have to be declared by the Company to the Repairer in anticipation [*****] before the stop of the Aircraft; (ii) services performed for any part of the Company's own inventory if any, to be replaced, or maintained, re-certified, tested, checked, forinventory management and/or maintenance reasons (shelf life, cure dates…). 6. Transfer of title and risks 6.1 Title to the Items featured in the Pool, or in the Stock in the event of Clause 5 (v) of the Exhibit 8 ("Lease of the Stock"), or the Advanced Pool Stock of Clause 7 of the Exhibit 15 ("Advanced Pool Service"), remains at all times with the Repairer until: (a) receipt by the Repairer of the corresponding Core Unit in compliance with Clause 4.1 of this Exhibit 9 and of a confirmation from theRepair Shop that such Core Unit is repairable; and, (b) full and complete discharge of any and all sums due by the Company under or in connection with this Agreement.
Title to the corresponding Core Unit shall pass to the Repairer and/or the Stock owner free from any lien, security or other encumbrance upon removal of such Core Unit from the Aircraft. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 83/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version For the sake of clarity, in the event of Clause 5 (v) of the Exhibit 8 ("Lease of the Stock") and Clause 7 of the Exhibit 15 ("Advanced Pool Service"), the Repairer and/or the Stock Owner shall remain the owner of the serviceable LRU sent from the Pool to the Stock and to the Advanced Pool Stock, as replacement. 6.2 Notwithstanding the above, in the event the Core Unit is invoiced to the Company as per Clause 4.2 above, the transfer of title to the serviceable LRU primarily delivered from the Pool shall take place upon receipt by the Repairer of the full payment for the invoice relating to such serviceable LRU. 6.3 The Company hereby represents and warrants that (i) it is the lawful owner of the Core Unit and/or (ii) it is duly entitled to transfer the title to such Core Unit in accordance with Clause 6.1 above. 6.4 In any event, all risks whatsoever and howsoever relating to or arising in connection with any serviceable LRU of the Pool shall be transferred to, vested in and borne by the Company , as from Delivery thereof pursuant to Clause 6 ("Deliveries"). 7. THIS EXHIBIT IS PART OF THE AGREEMENT AND ALL APPLICABLE PROVISIONS THEREOF ARE APPLICABLE HERETO. WITHOUT LIMITING THE FOREGOING, ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT AND TO THE DISCLAIMERS AND LIMITATIONS ON WARRANTIES AND DAMAGES, INCLUDING CONSEQUENTIAL DAMAGES, SET FORTH THEREIN. 8. FURTHER ASSURANCES
The Repairer retains title to any serviceable LRU until payment therefor as provided above. As a precautionary measure however, the Company agrees that the Repairer shall have all rights and remedies afforded to a secured party upon the default of a debtor as provided in the UCC and grants a security interest to the Repairer in all of the Company's right, title and interest in each serviceable LRU and the proceeds thereof and all general (including payment) intangibles related thereto or arising therefrom to secure the prompt and punctual payment and performance when due of all obligations of the Company under this Agreement, including this Exhibit.
The Company shall do all acts and things necessary or advisable, including execute and deliver all documents, to ensure that the Repairer's right, title and interest in and to the serviceable LRUs is perfected in all applicable jurisdictions and otherwise protected against the current or future claims of any third-party, including the Company's creditors, mortgagees, lessors, financing parties, trade creditors, any owner of an aircraft and other Persons. Such acts and things shall include obtaining such consents and approvals from, and execution, delivery, registration, recordation and filing of such UCC financing statements (including continuation statements and amendments), FAA mortgages and other documents with, such registries, governmental authorities and third parties as the Repairer may reasonably request. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 84/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 10 - LRUs REPAIR SERVICE 1. Definition of repair
Any unserviceable LRU, not declared BER or TNR, shall be repaired or overhauled by the Repairer in compliance with the relevant CMM and according to ANAC or EASA/FAA part 145 regulations.
If the Company receives from the Repairer a LRU repaired or overhauled under ANAC regulation only with associated ANAC SEGVOO 003 release, the Company may have the right in case of Aircraft redelivery for replacement of such part by another one with relevant certificate of conformity EASA form 1/FAA form 8130-3 dual release. The Repairer shall make its best efforts to provide to the Company the Services in compliance with EASA and FAA for all LRU repaired or overhauled by the local repair shops by end of December of 2015;
[*****].
If the Repairer receives from the Company an excessive number of unserviceable LRUs compared to the MTBUR for such LRU, the Repairer may assist the Company in investigating the causes of such situation, and each Party shall take all necessary corrective actions to the satisfaction of the other Party acting reasonably. 2. Information concerning unserviceable LRUs returned to the Repairer
The Company shall send to the Repairer any unserviceable LRU, as relevant, with a Work Order in the form set out in Exhibit 7-2 (for any single repair) or in the form attached as Exhibit 7-3 (for the repair of any Core Unit). 3. Documents provided with the repaired or overhauled LRU
The following documents shall be provided by the Repairer to the Company with any repaired or overhauled LRU under this Agreement: (i) EASA form 1 certificate or FAA form 8130-3 or, if applicable, ANAC SEGVOO 003, (ii) Strip report issued by the Repair Shop, and (iii) An invoice, if such repair service is not covered by the scope of this Agreement. 4. Specific services not covered by LRU repair Service
The following repairs and their related costs (labor and parts) are not covered by the prices set out in Clause 1.3.1 of the Exhibit 14 ("Price conditions") and shall be managed on Time and Material conditions: (i) all costs of technical modifications that may be incurred due to the embodiment on LRUs of Airworthiness Directives, service bulletins,optional or recommended modifications. (ii) the repair of an unserviceable LRU or additional costs resulting from Items received in damaged conditions due to Abnormal Use,mishandling, corrosion, abrasion, FOD and/or missing Items, [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 85/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED
(iii) any additional costs in repairing or overhauling any unserviceable LRU due to Company's failure to produce data as requiredhereunder,,
(iv) any cost and expense, direct and/or indirect, that may arise out of or connected with any additional technical expertise and/or counter expertise to be performed on any LRU, at the Company's request, in the event the Company challenges the Repairer's primary expertise, or repair cost estimation, or repair solution, (v) replacement or repair of LRUs' sub-components unapproved by the OEM, (vi) the maintenance costs relating to any failure of the Company to observe or comply with its obligations under this Agreement, (vii) all battery repairs or replacements, (viii) propeller brake disk replacements, (ix) CVR and DFDR memory and/or tape analysis and/or read outs. 5. Discarding the LRUs
The Parties acknowledge that under normal operating conditions any unserviceable LRU may be BER or TNR.
The Repairer shall notify the Company in case of BER or TNR status of any unserviceable LRU, and shall request the Company's approval to discard such unserviceable LRU.
If the Company denies such approval, the unserviceable LRU shall be delivered back to it at the [*****] costs and risks.
The Company's failure to respond to such Repairer's request within [*****] following the Repairer's notification of BER or TNR shall constitute an approval for the Repairer to discard the relevant unserviceable LRU.
If the discarded unserviceable LRU has been replaced with a serviceable LRU of the Pool or of the Stock pursuant to the provisions of Exhibits 8 ("Lease of the Stock") or 9 ("Spare parts standard exchange Service"), the Repairer shall invoice and the Company shall pay for the price of such serviceable LRU of the Pool or of the Stock, based on the ATR spare parts catalogue sales price applicable at the date of such invoice for brand new or used LRU, as the case may be.
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 86/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 11 - MAIN ELEMENTS SERVICES
1. Field of application
1.1 The Repairer shall provide the Company with a Main Elements' maintenance (as per Clause 2 of this Exhibit 11) and availability (as per Clause 3 of this Exhibit 11) Service.
This Service is applicable to: a) Main Elements listed in Exhibit 3 ("Main Elements and parts numbers covered by the Agreement") when installed on an Aircraft, and b) any Main Elements in the Stock as relevant, and c) any Spare Main Element.
The Services provided to the Company by the Repairer in accordance with this Exhibit 11 cover off-Aircraft tasks and works performed by the Repairer. For the sake of clarity and unless otherwise agreed between the Parties, standard exchange Service shall not be available for Main Elements under this Agreement, except for propeller blades and slip ring as per Clause 3 of this Exhibit 11. 1.2 Main Elements' maintenance program (Scheduled Events)
At the date of entry into force of this Agreement, the Parties acknowledge and agree that applicable intervals for inspections / overhauls on Main Elements are: i) for propellers:
[*****]. ii) for landing gears:
[*****].
The Repairer reserves its rights to require the Company to modify the above Main Elements maintenance program in accordance with the Aircraft manufacturer MRBR and/or MPD, to optimize the Company 's Aircraft dispatch reliability, provided the Company's Airworthiness Authorities enable so.
2. Main Elements' maintenance Service description
2.1 Any off-Aircraft maintenance task and work to be performed on Main Elements and Spare Main Elements shall be carried out in accordance with the relevant CMM for each Main Element. Such maintenance tasks with respect to each Aircraft comprise the following services [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 87/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED on which are based the prices set out in Clause 1.3.2 of the Exhibit 14 ("Price conditions"):
[*****] 2.2 Maintenance for Scheduled Events
The Repairer shall provide the maintenance Service for Scheduled Events, in accordance with the applicable maintenance program of each Main Element described at Clause 1.2 of Exhibit 11.
In the event that the Main Element's maintenance program set out in Clause 1.2 of this Exhibit 11 shall be changed, the Parties hereby agree that the Repairer may modify the price conditions set out in Clause 1.3.2 of the Exhibit 14 ("Price conditions"), as relevant. 2.3 Basic Unscheduled Removals
The repair of Main Elements due to BUR shall be performed by the Repairer according to the relevant CMMV and provided that: - The Company has fulfilled its obligations as per Clause 5 of this Exhibit; and, - the maintenance tasks are related to normal Aircraft operation in accordance with all technical documentation and any otherinstructions issued by ATR or the OEM; and, - the maintenance tasks are not related to specific conditions as per Clause 6 of this Exhibit.
3. Spare Main Elements availability Service description
3.1 With respect to each Aircraft, prices set out in Clause 1.3 of the Exhibit 14 ("Price conditions") comprise the availability of Spare Main Element for Scheduled Events and BUR according to the provisions of sub-clause 3.2 hereof.
For the sake of clarity, propeller blades and slip rings may be available through the standard exchange Service, as per the Exhibit 9 ("Spare parts standard exchange Service").
. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 88/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED
3.2 Availability of Spare Main Element(s) for Scheduled Events and BUR: 3.2.1. Such Service includes, at any time and for the entire fleet, - [*****] propellers, - [*****] landing gear,
In the event the Company requires any additional Spare Main Element, the Repairer will make a proposal on Time and Material conditions. 3.2.2 Subject to the Company having complied with its obligations as per Clause 5 of this Exhibit 11, the Repairer shall make available suchSpare Main Element(s) during the period necessary for the maintenance for Scheduled Events and BUR of Aircraft Main Element(s). 3.3 The Repairer will make Spare Main Element(s) available to the Company during maintenance for BUR of Main Elements within [*****] from the date of receipt by the Repairer of the Company's Work Order in the form set out in Exhibit 7-4.
4. Return to the Repairer of the Main Element or Spare Main Element
At the time the Repairer delivers to the Company a Spare Main Element or returns any repaired or overhauled Main Element to the Company , for fitment on the Company 's Aircraft, the Company will deliver back to the Repairer the Main Element removed for repair or overhaul or the Spare Main Element previously obtained from the Repairer, with required technical documentation on a date (the "Due Date") within a time period of [*****] starting from the Delivery date of the Spare Main Element or the repaired or overhauled Main Element. When the Main Element removed for repair or overhaul is replaced by a Spare Main Element of the Stock or a spare of the Company 's property, the Company shall return to the Repairer or the designated Repair Shop such removed Main Element, with required technical documentation within a time period of [*****], starting from the removal date of the Spare Main Element.
For returning the Main Elements and Spare Main Elements to the Repairer, the Company shall use adapted container or when applicable the containers received from the Repairer. Any container received by the Repairer or its approved Repair Shop in incomplete or damaged condition from the Company shall be subject to refurbishment or replacement at Company's cost and expense in addition to the prices specified in the Exhibit 14 ("Price conditions").
Should the Company fail to deliver the Main Element removed for repair or overhaul or the Spare Main Element(s) back to the Repairer or the Repair Shop on the above Due Date and without prejudice to other rights the Repairer may have at Law and/or under this Agreement, the Repairer may charge late return fees to the Company in an aggregate amount of: - [*****] - [*****]
per [*****] of delay, as from the Due Date until the Spare Main Element or the Main Element is duly received by the Repairer or the Repair Shop. The Repairer shall be entitled to withdraw such late return fees from the Security Deposit pursuant to Clause 13 ("Security Deposit").
5. Company's obligations
In order to allow the Repairer to perform the maintenance tasks defined in Clause 2.1 of this Exhibit 11 in compliance with the relevant OEM's technical specifications, the Company [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 89/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED agrees: to provide the Repairer every [*****] with a detailed status of the Main Elements showing the Scheduled Events for the next [*****]; to send to the Repairer a Work Order for the Services at the latest [*****] before the event, either for maintenance Service and/or foravailability Service; to send to the Repairer the log book, log card and back to birth certificate of the landing gears removed for repair or overhaul or sparelanding gear; that, to be eligible for availability Service, no Main Element within the Stock pursuant to Exhibit 8 ("Lease of the Stock") and/or theCompany 's own on-site stock shall be available in the Company s premises, as per the Repairer's initial provisioning recommendation.
Moreover, the Company shall: 5.1 In respect of the propellers: (i) perform line checks (not limited to lubricant levels, blade balancing, blade anti-erosion film replacements, etc...) and the requiredconsumable spare parts replacements during the Aircraft's entire service life; (ii) procure all the tools necessary for the line maintenance of the propellers including the propeller balancing tool; and (iii) initiate and pursue an efficient staggering program to ensure a smooth schedule removal plan for shop maintenance. 5.2 In respect of the landing gears: (i) perform the line checks (including Messier best practices service letter 631-32-218) and the required consumable spare partsreplacements during the Aircraft's entire service life, on landing gears, wheels and tires; and (ii) procure all the tools necessary for the line maintenance of the landing gear including the appropriate tooling used for wheelsreplacement. If required, the Repairer will have to assist the Company in procuring these tools (buying, hiring, etc.); and (iii) initiate and pursue an efficient staggering program to ensure a smooth schedule removal plan for shop maintenance. 5.3 Left intentionally blank 5.4 On-Aircraft tasks
All scheduled and unscheduled on-Aircraft maintenance activities, tasks and works and line maintenance, including the following, are under and at the Company's responsibility, risks, costs and expenses: (i) line maintenance tasks associated with engines, propellers, landing gears, wheels, brakes and tires, (ii) Main Elements removals and installations for BUR and Scheduled Events, (iii) Main Elements accessories removals and installations, (iv) Main Elements conditioning for storage, (v) grease and lubricant refilling, seals, gaskets, hardware and consumable parts replacement, (vi) propellers balancing, blades removals and installations, (vii) ensure that log books are reflecting the updated maintenance status of each Main Element. (viii) engine fuel nozzles removals and installations, (ix) engine control trend monitoring performance and analysis, [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 90/110
Source: AZUL SA, F-1/A, 3/3/2017
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED
(x) regular cleaning of the engines, (xi) inspection of internal parts (boroscopic inspection).
6. Specific services not covered by Main Elements' Service
The following services and their related costs (labor and parts) are not covered by the prices set out in Clause 1.3.2 of the Exhibit 14 ("Price conditions") and shall be managed on Time and Material conditions: (i) all costs of technical modifications that may be incurred due to the embodiment on Main Elements of Airworthiness Directives, servicebulletins, optional or recommended modifications, (ii) replacement or repair of Main Elements' sub-Items costs relating to any failure of the Company to comply with its obligations under thisAgreement, (iii) the replacement cost of a Main Element and/or its sub-assemblies that is declared BER or TNR, (iv) any additional costs in connection with the repair or overhaul of any Main Element serial number due to Company's failure to producedata as required hereunder,
(v) Items and/or any sub-Items received in damaged conditions due to Abnormal Use, mishandling, incorrect storage, lightning strike, FOD, corrosion, abrasion or erosion, dropped or water immersion, over-torque condition or over-speed in excess of transient or over- temperature
(vi) Services performed on Main Element(s) fitted on Aircraft to comply with Aircraft redelivery conditions or delivery conditions to a third party, . For sake of clarity, Aircraft redelivery conditions or delivery conditions of a third party will have to be declared by the Company to the Repairer in anticipation [*****] before the stop of the Aircraft, (vii) the replacement of missing parts and parts unapproved by the OEM, (viii) the repair of damages or replacements resulting from previous repair and/or overhaul not performed pursuant to this Agreement,
(ix) for the landing gears, the replacement of life limited parts, repair and/or replacement of On Condition Parts listed in Exhibit 4, replacement of any part (including expendables) which vendor price exceeds [*****] with the exception of parts listed in Exhibit 11 Clause 2.1 (ii), (x) for the propellers, replacement of dome, repair of armbore, replacement of de-icer and replacement of nickel sheath.
7. Discarding the Main Elements
The Parties acknowledge that under normal operating conditions any Main Element may be declared BER or TNR.
The Repairer shall notify the Company in case of BER or TNR status of any Main Element, and shall request the Companys approval to discard such Main Element.
If the Company denies such approval, the Main Element shall be delivered back to the Company at its costs and risks.
The Parties agree that the absence of a response by the Company to such Repairer's request within [*****] from the sending of the Repairer's notification of BER or TNR constitutes an approval for the Repairer to discard the relevant Main Element. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 91/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version In the event the Repairer shall discard any unserviceable Main Element, the Company shall pay the applicable price for test and/or scrap, as the case may be.
In case of the discarded Main Element is an unserviceable propeller blade that has been replaced with a serviceable propeller blade of the Pool or of the Stock pursuant to the provisions of Exhibits 8 ("Lease of the Stock") or 9 ("Spare parts standard exchange Service"), the Repairer shall invoice and the Company shall pay for the price of such serviceable propeller blade of the Pool or of the Stock, based on the ATR spare parts catalogue sales price applicable at the date of such invoice for brand new or used, as the case may be. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 92/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version EXHIBIT 12 - INTENTIONALLY LEFT BLANK AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 93/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version EXHIBIT 13 - FORM OF STANDBY LETTER OF CREDIT
By swift message to our addressee BANK NATIXIS (SWIFT Code: CCBPFRPP)
Issuing Bank: (NAME AND ADDRESS) Issuing Bank SWIFT Code: Confirming Bank: Applicant: Beneficiary: ATR
StandBy Letter of Credit reference:
By order of [AZUL NAME], located at [AZUL ADDRESS], we hereby issue our irrevocable and confirmed StandBy Letter of Credit in favour of Avions de Transport Régional, located 1 allée Pierre Nadot 31712 Blagnac, France ("ATR"), for the aggregate amount of USD XXXX (XXX USD) available for the period ending twelve (12) Months after the Term of the GMA (as defined below);
Available by payment at sight by NATIXIS against your written demand bearing the Clause drawn under irrevocable StandBy Letter of credit (letter of credit reference) issued by (issuing bank name and address) accompanied by the following document: - Beneficiary's signed certificate specifying the amount drawn and stating: (1) that the amount claimed is due and payable by [AZUL NAME] in connection with the Global Maintenance Agreement between ATR asthe Repairer and [AZUL NAME] as the Company executed on (date) for the XXX [Services] (the "GMA"); and, (2) that the Beneficiary has requested payment of the amount claimed from [AZUL NAME] who is in default.
Partial drawings are permitted.
The Beneficiary shall not be entitled to assign or transfer any right, title or interest in this StandBy Letter of Credit to any other party.
All banking charges and commissions are for the account of the Applicant.
This StandBy Letter of Credit is subject to the 2007 revision of the Uniform Customs and Practices for Documentary Credits of the International Chamber of Commerce Publication 600.
This StandBy Letter of Credit will take effect on the (date). AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 94/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 14 - PRICE CONDITIONS
1. Prices
The price payable for the Services shall be the sum of the prices set out in this Agreement and established in accordance with the economic conditions prevailing in two thousand and fifteen (2015). 1.1 The lease fee payable for the lease of the Stock (based on the Stock technical contents defined in Exhibits 5 ["Stock"] and 8 ["Lease of the Stock"]), as from the Start Date is [*****]: (i) an amount of [*****] corresponding to [*****] of the Stock value which is set in Exhibit 8 ("Lease of the Stock"), Clause 2.2 ; or
(ii) in the event the Repairer delivers used Items to the Company as per Clause 2.2 of the Exhibit 8 ("Lease of the Stock"), the [*****] set forth in 1.1 (i) here above shall be payable from the Start Date until the date on which the last Item of the Stock is delivered. On such latter mentioned date, the Repairer will notify to the Company the exact and definitive Stock value, and the accordingly revised monthly lease payment based upon [*****] of such exact and definitive Stock value. Upon Delivery of the last Item of the Stock, the Repairer shall issue a credit equal to the difference between: a. the total amount of lease payments actually paid by the Company since the Start Date according to Clause 1.1 (i) here above,and b. the price the Company should have paid for the used Items delivered by the Repairer according to Clause 1.1 (ii) here above. 1.2 The price payable [*****] per Aircraft by the Company to the Repairer for the standard exchange Service set out in Exhibit 9 ("Spare parts standard exchange Service") is as follows (with unlimited POOL access): [*****] [*****] [*****] [*****] [*****] 1.3 The prices per airborne FH per Aircraft payable by the Company to the Repairer for the repairs and overhauls of the LRUs and the Main Elements set out in this Agreement are:
1.3.1 For LRU repair and overhaul: [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 95/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] [*****] [*****] [*****] [*****] [*****] 1.3.2 For the Main Element Services as per Exhibit 11 ("Main Elements Services"): i) propellers [*****] per Aircraft): (a) For maintenance - [*****] - [*****]
The above propellers maintenance provisions and availability prices are defined as a result of the following repartition related to the maintenance of the following propeller hub, actuator, transfer tube and blades composing each propeller assembly:
Blades Hub Actuator Transfer Tube Adjusting Nut [*****]
[*****] [*****] [*****] [*****] [*****] [*****] [*****]
[*****] [*****] [*****] [*****] &bbsp; [*****] [*****] [*****] (b) For availability [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 96/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED
ii) left intentionally blank iii) landing gears (per shipset):
For 42-500, 72-500, 72-600 landing gears: (a) For maintenance: [*****] [*****]
plus (b) For availability [*****] [*****]
The above landing gear maintenance provisions and availability prices are defined as a result of the following repartition related to the maintenance of the following sub-assemblies composing each landing gear assembly [*****] [*****] NLG [*****] [*****] Drag Brace [*****] [*****] MGL [*****] [*****] Side Brace [*****] [*****]
Life limited parts repair or replacement will be subject to a case by case quotation. 1.3.3 Additional flat rates:
Additional flat rates here under shall be applied for the following operations, as applicable: a) for [*****], a flat rate of :
For [*****]: [*****] b) for [*****], a flat rate of :
For [*****]: [*****] 2. Reconciliation conditions
2.1 Left intentionally blank 2.2 Price adjustment for LRUs removal rate reconciliation [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 97/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED Any difference, to be measured in units and tens, between the RRR and the MRR pursuant to the conditions set out in Clause 11.1 (iii) and (iv) of the Agreement, shall be invoiced or credited, provided the Company is not in Default of any of its obligations pursuant to this Agreement, per airborne FH on the basis of:
for [*****]
[*****] [*****]
for [*****]
[*****] [*****]
for [*****] [*****]
[*****] [*****]
In addition, at each reconciliation based on the actual flown flight hours, the Repairer shall credit back:
[*****] 2.3 Early Events
The Parties agree that the prices for each Service subject to Scheduled Events are based on the achievement of the applicable maintenance program(s), expressed in [*****].
In case of deviation of the Scheduled Event maintenance program parameters by a number of [*****] shall be considered an Early Event.
For any Early Event, whichever the context, the Repairer shall invoice the Company an amount equal to the Lost Potential multiplied by the applicable price mentioned in Clause 1.3 of this Exhibit. 2.4 Calendar Limits
For propellers and landing gears, the prices given in Clause 1.3.2 of this Exhibit 14 are subject to the achievement of the applicable [*****] specified in Clause 1.2 of Exhibit 11 ("Main Elements Services") hereto. In case a maintenance event is necessary to comply with a calendar limit, the Company shall settle the applicable prices in Clauses 1.3.2 and 3 of this Exhibit 14 at the time of the event, multiplied by the full interval specified in Clause 1.2 of Exhibit 11 ("Main Elements Services") hereto less the amount already paid by the Company to the Repairer for the number of [*****] accrued since the last overhaul.
3. Prices adjustment
For the sake of clarity, the adjustment conditions set out in Clauses 3.1 and 3.2 below [*****]. 3.1 Commercial conditions for price adjustment 3.1.1 For Lease of the Stock, standard exchange Service and LRUs repair Service
The prices set out in this Agreement will be increased, if applicable, [*****] in accordance with the following adjustment formula:
[*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 98/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED where:
[*****] is the [*****] for the year N+1, and [*****],
[*****]: is the [*****] as determined by economic conditions of year N (current year),
[*****]: is the [*****] in the year N,
[*****]: is the corresponding [*****] of the year N-1,
[*****]: is the [*****] in the year N,
[*****]: is the corresponding [*****] of the year N-1.
Escalation is subject to a [*****] for Stock, Clause 1.1 of the Exhibit 14, and Standard Exchange services, Clause 1.2 of the Exhibit 14.
Escalation is subject to a [*****] for LRU repair service, Clause 1.3 and Clause 2.2 of the Exhibit 14.
Escalation is subject to a [*****]. 3.1.2 For Main Elements Services
The prices set out in this Agreement relative to the Main Elements will be [*****].
Escalation is subject to a [*****] for Main Elements repair service [*****] In any case the final result of the applicable annual adjustment rate [*****] Clause 1.3 of the exhibit 14. 3.2 Technical conditions for prices adjustment
The prices set out in this Exhibit 14 shall be modified [*****] at the occasion of the invoicing reconciliation pursuant to Clause 11 ("Reconciliation") if the Standard Operations of the Aircraft, analyzed at the time of the adjustment (all calculations are made with figures corresponding to [*****]), change by more or less [*****] with respect to the estimated values of the same parameters, considered at the time of commencement of the Term.
As from the date this Agreement enters into force, the Parties agree to take into account the following basic operating parameters (the "Standard Operations") as a reference for the above calculation: (i) [*****] - [*****] - [*****] - [*****] (ii) [*****] - [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 99/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED - [*****] - [*****]
4. Specific conditions
4.1 Company's Aircraft fleet change(s)
[*****]. 4.2 Unused Aircraft
During the Term, should any Aircraft remain temporarily unused for less than [*****] by the Company for whatever reason, the Company shall not request or obtain from the Provider a change in prices or terms and conditions set out in this Agreement in Clause 12 ("Invoicing and Payment terms").
5. Phase-in:
As a condition precedent to the entry into force of this Agreement, as reflected in Clause 17 ("Conditions Precedent"), the Company shall pay to the Repairer an amount corresponding for each Main Element and/or any sub-assembly thereof, to the number of FH or CY accrued since the last overhaul or since new as applicable, at the date of entry into force of the Agreement, multiplied by the applicable rate defined in Clauses 1.3 and 3 of this Exhibit 14 and applicable at the date of the first event.
6. Phase-out: Refundable maintenance provisions
6.1 Upon termination of this Agreement with respect to one or more Aircraft and/or Services in accordance with the terms of this Agreement (except as a result of a Company Default) (the "Termination Date"), the Repairer shall reimburse the Company Maintenance Provisions related to landing gears maintenance services and/or their sub-component for ATR 72-600 only based on [*****] of the amount set out in Clause 1.3.2 of the Exhibit 14 ("Price Conditions")for maintenance services (the "Refund Amount"), taking into account the price applicable [*****] as per Clauses 3 of the Exhibit 14 ("Price Conditions") and when applicable adjusted every [*****] as per Clause 10 and 11, for [*****] for Main Elements: between the re-installation on such Aircraft after the last shop repair or overhaul or exchange occurred under this Agreement, as evidenced in the relevant EASA, FAA, TC, or ANAC release form and ending on the Termination Date.
For sake of clarity, since the Company will pay such service based on, [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 100/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED
- for ATR 42-500, ATR 72-500 and ATR 72-600, [*****] of the price by the hours and [*****] - for ATR 72-600, [*****] of the price by the hours and [*****], - for ATR 42-500 and ATR 72-500 [*****] of the price by the hours and [*****],
[*****]. In addition, it is agreed by the parties that [*****] out of [*****] of the maintenance provision paid for the maintenance of the landing gears [*****].
Should any Aircraft be an ATR and/or ATR Affiliate's property, then Refund Amount shall be reimbursed to the owner.
The Repairer will reimburse the Refund Rate provided that: (i) the Company has returned to the Repairer all Spare(s), Main Element(s), Items of the Stock, Core Units and unserviceable LRUs theRepairer may have delivered or to be returned to the Repairer according to the terms of this Agreement, and (ii) The Company has paid to the Repairer all amounts due under this Agreement , and (iii) The Company is not in Default of any of its obligations under this Agreement. 6.2 It is also understood that [*****] to be taken into account for such a refund process are only those accrued for the original Main Element(s) of Aircraft when fitted on Company's Aircraft or alternatively spare(s) main elements of Company property. [*****] accrued on Spare Main Element(s) provided by the Repairer to the Company under this Agreement and/or any Main Element(s) different from those installed on Aircraft on the date they were originally delivered to the Company or not owned by the Company shall not be taken into account in the calculation of the Refund Rate phase-out set out in this Clause 6. 6.3 Such phase out shall occur simultaneously with the final reconciliation as per Clause 11.2 of this Agreement. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 101/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 15 - ADVANCED POOL SERVICE
1. Advanced Pool Stock Availability
With the scope of further facilitating the maintenance operations of the Company, Repairer agrees to make available the Advanced Pool Stock to the Company and Company agrees to store the Advanced Pool Stock in a restricted area at the Storage Location. The provision, holding, use and disposal of the Advanced Pool Stock and its review shall be subject to the terms and conditions of this Agreement.
2. Provision and value of the Advanced Pool Stock
2.1 The Advanced Pool Stock is composed of items defined in Exhibit 16 ("Advanced Pool Stock"), which may be either brand new items or Used Serviceable Items depending on availability of each item of the Advanced Pool Stock into Repairer's inventory at the time of their respective delivery. 2.2 The Advanced Pool Stock is governed by this Agreement until it is (i) either returned to the Repairer at the Expiry Date, (ii) purchased by Company in accordance with Clause 6 hereunder, or (iii) upon redelivery of the Advanced Pool Stock to Repairer after the termination of this Agreement pursuant to Clause 16 of this Agreement. 2.3 The Advanced Pool Stock shall be provided to Company by Repairer for the duration of the Term provided Company has met each of the Conditions Precedent set out in Clause 17 of the Agreement to the satisfaction of the Repairer before the Start Date. 2.4 The Advanced Pool Stock total value, under economic conditions 2010, shall be:
[*****]
For the sake of clarity, the total Stock value of Exhibit 16 ("Advanced Pool Stock") list shall be: [*****].
In the event the Repairer delivers Used Serviceable Items to the Company, the value of each such Used Serviceable Items shall be quoted at [*****] of the brand new value indicated in Exhibit 16 ("Advanced Pool Stock") and the total value of the Advanced Pool Stock shall be adjusted accordingly.
3. Delivery
3.1 The items of the Advanced Pool Stock will be delivered by Repairer to Company, with the relevant airworthiness documents (certificate of conformity, ANAC SEGVOO 003, EASA Form 1 or FAA Form 8130-3), [*****] ATR stores located at the address set forth in Clause 6.1 of this Agreement, or such other location as Repairer may from time to time notify to Company. 3.2 Delivery of the Advanced Pool Stock shall take place gradually. Repairer shall use its reasonable efforts to deliver [*****] of the items of the Advanced Pool Stock (in quantity) at the Start Date. Delivery of the Advanced Pool Stock shall be subject to the Stock delivery. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 102/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED 3.3 Notwithstanding the fact that the Repairer is the owner of the Advanced Pool Stock, all risks whatsoever and howsoever relating to or arising in connection with the Advanced Pool Stock and any item of the Advanced Pool Stock, shall be transferred to, vested in and borne by the Company as from the delivery of each item of the Advanced Pool Stock by Repairer to Company. 3.4 Company shall be responsible for and proceed to custom clearance of any item of the Advanced Pool Stock. Within a maximum [*****] lead time from the date any item of the Advanced Pool Stock is delivered, Company shall provide Repairer with evidence that any fees, customs duties, and customs declarations has been paid and made, failing which Repairer may consider such failure as a Company Default pursuant Clause 16 of this Agreement.
4. Management and Handling Procedures
4.1 Location
i. Company shall keep the Advanced Pool Stock in secured warehouse facilities at the Storage Location, the use of which is reserved for storing and protecting the Advanced Pool Stock owned by Repairer. These facilities shall be separated from any areas used to store any other equipment and the Storage Location shall be clearly marked with the inscription "ATR PROPERTY". All the items of the Advanced Pool Stock will be stored with their corresponding documentation.
ii. Company agrees to maintain the Advanced Pool Stock by applying the best standard methods for storage and maintenance as requiredby applicable EASA regulations at its own maintenance and storage costs, particularly for parts subject to limited shelf life or cure date.
iii. Company shall promptly notify the Repairer any loss or damage to the Advanced Pool Stock whilst under its management.
iv. Prior to the Delivery Date and upon each renewal of any policy, the Company shall supply the Repairer with certificates of insurancecompliant with the terms and conditions set out in Clause 8 of this Agreement.
v. If at any time during the term, the Storage Location is not owned by the Company and is leased from a third party, the Company shall advise the Repairer of the name and address of the owner or landlord of such facilities or if any change of the owner or landlord occurs. It shall be the responsibility of the Company to notify said owner or landlord of the Repairer's right of ownership in and to the Advanced Pool Stock and copy the Repairer of such notification.
vi. The Company agrees to assume liability for and to indemnify and keep harmless Repairer against any loss, cost, expense (including the fees of professional advisers and out of pocket expense), financial liability, taxes, damage or monetary loss of any kind which Repairer may suffer or incur as a consequence of the loss or damage to any item of the Advanced Pool Stock.
4.2 Use
The Company shall be entitled to, provided no Company Default has occurred and is continuing, withdraw and use any of the items of the Advanced Pool Stock pursuant standard [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 103/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED exchange service conditions defined in Exhibit 9 and in accordance with its operational needs, solely for the remedy of parts associated defects on the Aircraft covered under this Agreement.
4.3 Inventory
The Repairer or its agent shall have the right to inspect the Advanced Pool Stock and to audit any records relating thereto at any reasonable time upon giving prior written notice to the Company. The Company shall provide full access to enable the Repairer to conduct periodic inventory inspection of the Advanced Pool Stock.
Should any part of the Advanced Pool Stock be missing, partially or totally damaged, or has not its appropriate airworthiness documentation at the time the Repairer or its agent carries out its inspection/audit, and if the Company cannot justify the part being under repair, the Company shall have a period of [*****] to remedy the situation to the satisfaction of the Repairer, failing which, the Repairer shall invoice the Company the price for any such lost or damaged item at the ATR spare parts catalogue price applicable at the date of such invoice.
5. Purchase Option
[*****]
6. Modifying the Composition of the Advanced Pool Stock
Upon either party's request, the parties agree to review the content of the Advanced Pool Stock at the first anniversary date of the Start Date. Shall the parties agree to modify the content of the Advanced Pool Stock, the following conditions shall apply:
i. item returned by the Company that has never been used by the Company since the Start Date, is received by the Repairer in serviceablecondition, in its original packaging and with all appropriate airworthiness documents;
ii. the item shall be returned in accordance with the provisions of Clause 6.2 of this Agreement; and
iii. if an item is returned to the Repairer from the Advanced Pool Stock, the value of the Advanced Pool Stock shall be modified bysubtraction of the initial value of the concerned item; and
iv. if an item is added to the Advanced Pool Stock, the value of the Advanced Pool Stock shall be increased pursuant to the ATR SparesCatalogue price for the added item at the economical condition of the moment the Advanced Pool Stock is modified.
The Company shall be responsible for and pay any costs incurred by the return to Repairer and/or replacement of such items of the Advanced Pool Stock, including but not limited to transportation costs, customs duties, formalities and commissions, re-certification fees if documents are missing or damages are found.
7. Purchase or Return of the Advanced Pool Stock
7.1 Promptly on the Expiry Date, and subject to Clause 5 of this Exhibit 15, the Company shall [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 104/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED have the option to:
i. [*****]
ii. re-deliver the items of the Advanced Pool Stock to the Repairer in accordance with Clause 6.2 of this Agreement or to any other addressindicated from time to time by Repairer to the Company, in accordance with the following terms and conditions. 7.2 In the event that any items are delivered back to the Repairer without the appropriate airworthiness documentation, or whenever the parts are returned without the original documents supplied by the Repairer, or if the Repairer has to test, to replace or to repair such returned item(s) of the Advanced Pool Stock due to damage or deterioration as a result of incorrect storage, inappropriate packaging and/or transport, or for any other reason whatsoever, the Company is liable for any associated re-certification, repair, overhaul, or replacement costs for such items at the ATR catalogue prices applicable on the date of delivery of such item to the Company. 7.3 If the Company fails to deliver the Advanced Pool Stock or any part(s) of the Advanced Pool Stock within [*****] of the Expire Date, the Company shall pay late return fees equal to [*****] of the value of the non returned part(s), per Day since the Expire Date, until: a) the missing part(s) are duly received by the Repairer, or b) a maximum [*****] from the Expire Date. The Repairer will be entitled to withdraw such late return fees from the Security Deposit pursuant to Clause 13. 7.4 The Company acknowledges and agrees that in the event any item of the Advanced Pool Stock, or the entire Advanced Pool Stock, is not re- delivered to the Repairer within [*****] of the Expire Date, this item or the Advanced Pool Stock shall be deemed lost, and the Repairer will invoice this item of the Advanced Pool Stock to the Company at the ATR spare parts Catalogue price in force at the date of delivery of any such item of the Advanced Pool Stock. Should the Company fail to pay such invoice, Repairer will be entitled, at its sole discretion, to withdraw the corresponding amount(s) from the Security Deposit.
8. Payment and Transfer of the Title to Property
8.1 Save as otherwise set out in this Agreement, the purchase price for any item of the Advanced Pool Stock shall be paid in accordance with the provisions of Clause 12. 8.2 Notwithstanding the provisions of Clause 6 of Exhibit 9, title to the Advanced Pool Stock or any item thereof shall remain with the Repairer at all times until such Advanced Pool Stock or part thereof has been purchased by the Company and provided that the amount of the corresponding invoice has been fully received by the Repairer in accordance with Clauses 10 and 12 of this Agreement. The Company specifically agrees that it shall not acquire any interest, equity or share of the Advanced Pool Stock, or pledge or create any lien of any sort whatsoever prior to the transfer of title to the Advanced Pool Stock to the Company in accordance with this Agreement. It is hereby acknowledged and agreed that the Company is appointed as the custodian of the Advanced Pool Stock, which appointment the Company hereby accepts until such time as the Repairer has received the Company's payment in full for the Advanced Pool Stock or any item if the Advanced Pool Stock in case such Advanced Pool Stock or item is either missing, damaged, without airworthiness documentation, purchased by the Company or not returned by the Company to the Repairer in accordance with the provisions of this Agreement.
8.3 The Company may not, under any circumstances, perform or permit any action to be taken that [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 105/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version may be detrimental to the Repairer's title to and property in the Advanced Pool Stock, including without limitation:
i. the Company must not transfer, sell, charge, pawn, mortgage, negotiate, dispose of, or intend to negotiate or dispose of the AdvancedPool Stock or any item of the Advanced Pool Stock ; and
ii. the Company shall take the necessary measures in order to prevent the Advanced Pool Stock or part of the Advanced Pool Stock from being seized or taken away, or to check the Advanced Pool Stock in the event of a seizure by distress or any other similar legal process. However, if the Advanced Pool Stock or part of the Advanced Pool Stock is seized or taken away, the Company must immediately inform the Repairer in writing and indemnify the Repairer for any losses, costs or expenses incurred by the Repairer as a result of the above-mentioned events, and shall mitigate any such Losses, costs or expenses by using its best efforts to re-possess the Advanced Pool Stock or to re-acquire the Advanced Pool Stock or any item of the Advanced Pool Stock. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 106/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED EXHIBIT 16 - ADVANCED POOL STOCK
The following Exhibit is composed of two (2) pages, into which are listed [*****] part numbers.
First List for [*****] specific fleet contains [*****] part numbers [*****] DESCRIPTION [*****] [*****] CONDENSER [*****] [*****] COOLING UNIT [*****] [*****] VALVE-TURBINE INLET CONTROL [*****] [*****] AUDIO CONTROL PANEL [*****] [*****] CONTROL UNIT-HF [*****] [*****] REMOTE CONTROL AUDIO UNIT [*****] [*****] CONTROL UNIT-BUS POWER,DC [*****] [*****] CONTROL UNIT-GENERATOR,AC [*****] [*****] STARTER GENERATOR-DC [*****] [*****] PROBE-CCAS ALPHA [*****] [*****] PROBE-PITOT [*****] [*****] VALVE-HP AIR BLEED [*****] [*****] EXCITER - IGNITION I.C. [*****] [*****] SERVO VALVE [*****] [*****] FUEL PUMP [*****] TOTAL
Second List for [*****] specific fleet contains [*****] part numbers [*****] DESCRIPTION [*****] [*****] REMOTE CONTROL AUDIO UNIT [*****] [*****] REMOTE CONTROL AUDIO UNIT [*****] [*****] CONTROL UNIT-BUS POWER,DC [*****] [*****] FCU-HYDRO MECHANICAL [*****] [*****] FCU-HYDRO MECHANICAL [*****] [*****] AUDIO CONTROL PANEL [*****] [*****] EXCITER - IGNITION I.C. [*****] [*****] EXCITER - IGNITION I.C. [*****] [*****] PROBE-CCAS ALPHA [*****] [*****] PROBE-CCAS ALPHA [*****] [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 107/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version CONFIDENTIAL TREATMENT REQUESTED [*****] DESCRIPTION [*****] [*****] CONTROL UNIT-GENERATOR,DC [*****] [*****] SERVO VALVE [*****] [*****] CONTROL UNIT-VHF [*****] [*****] CONDITIONER,TORQUE SIGNAL [*****] [*****] ALTIMETER-STANDBY,MILLIBARS [*****] [*****] CONTROL UNIT-VHF [*****] [*****] ELECTRONIC SYSTEM UNIT [*****] [*****] INDICATOR-STANDBY HORIZON [*****] [*****] CONTROL,AUTOFEATHER [*****] [*****] CONTROL,AUTOFEATHER [*****] [*****] GOVERNOR-PROPELLER OVSP [*****] [*****] PUMP-PROPELLER FEATHERING [*****] [*****] PUMP-PROPELLER FEATHERING [*****] [*****] SWITCH-PROXIMITY [*****] TOTAL [*****] [*****] [*****] DESCRIPTION [*****] [*****] PROBE PITOT [*****]
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT. [*****] Confidential material redacted and filed separately with the Securities and Exchange Commission. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 108/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version EXHIBIT 17 - INSURANCE CERTIFICATES
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 109/110
Source: AZUL SA, F-1/A, 3/3/2017
Execution version EXHIBIT 18 - NOTA FISCAL REPORTING
Reporting 1:
Dedicated to the pool import + 1st standard exchange loop
Shall be submitted once (after all serviceable parts from the pool sent to Azul)
Part number Serial number
Nota Fiscal CFOP 5949 number Flow Azul -> Helibras
Nota Fiscal CFOP 5949 number Flow Helibras -> Azul Fiscal value Table with XXX lines (XXX = number of parts to be imported) ...
Reporting 2:
Dedicated to subsequent standard exchanges
Shall be submitted on a monthly basis
Part number Serial number
Nota Fiscal CFOP 5949 number Flow Azul -> Helibras
Nota Fiscal CFOP 5949 number Flow Helibras -> Azul Fiscal value ...
ALL ITEMS, PARTS, COMPONENTS, SERVICES, WARRANTIES AND GUARANTEES PROVIDED HEREUNDER ARE PROVIDED SUBJECT TO CLAUSE 14 OF THE AGREEMENT. AZUL-ATR Global Maintenance Master Agreement DS/CS-3957/14/Issue 7 Page 110/110
Source: AZUL SA, F-1/A, 3/3/2017
Question:
Highlight the parts (if any) of this contract related to "Audit Rights" that should be reviewed by a lawyer. Details: Does a party have the right to audit the books, records, or physical locations of the counterparty to ensure compliance with the contract? | Inventory of the Stock: the Repairer or any representative it designates shall have the right to inspect the Stock and to audit any records relating thereto at any reasonable time upon giving prior Notice to the Company, which shall provide full access to such Stock to enable the Repairer to conduct periodic inventory inspections and/or any audit of the Stock. | Given the context, answer the question that follows |
Subject to Section 8.4, upon issuance of Restricted Stock, the Holder shall have, unless otherwise provided by the Administrator, all the rights of a stockholder with respect to said Shares, subject to the restrictions in the Plan, any applicable Program and/or the applicable Award Agreement, including the right to receive all dividends and other distributions paid or made with respect to the Shares to the extent such dividends and other distributions have a record date that is on or after the date on which the Holder to whom such Restricted Stock is granted becomes the record holder of such Restricted Stock; provided , however , that, in the sole discretion of the Administrator, any extraordinary distributions with respect to the Shares may be subject to the restrictions set forth in Section 8.3. | rights as stockholders | Given the provision, provide with the correct label for the given provision |
If the construction of the Tenant Improvements shall require that additional services or facilities (including, but not limited to, hoisting, cleanup or other cleaning services, trash removal, field supervision, or ordering of materials) be provided by Landlord, then Tenant shall pay Landlord for such items at Landlord's cost or at a reasonable charge if the item involves time of Landlord's personnel only. | additional services | Given the provision, provide with the correct label for the given provision |
If at any time any payment of any of the Total Obligations is rescinded or must be restored or returned upon the insolvency, bankruptcy or reorganization of any Credit Party or otherwise, the obligations of Credit Parties, Administrative Agent, each Lender Party and each Secured Swap Counterparty under this Agreement, with respect to that payment, shall be reinstated as though the payment had been due but not made at that time. | reinstatements | Given the provision, provide with the correct label for the given provision |
Create, incur, assume or suffer to exist any Debt except (i) Debt that is expressly or effectively pari passu with or expressly subordinated to the Debt of the Borrower hereunder, (ii) Nonrecourse Debt or (iii) other Debt incurred in the ordinary course of the Borrower’s business up to an aggregate amount of $100,000,000. | debts | Given the provision, provide with the correct label for the given provision |
The Annual Discretionary Bonus will be paid in accordance with the Company’s normal bonus payment procedures, and may be paid in the form of equity incentive awards. | annual discretionary bonus | Given the provision, provide with the correct label for the given provision |
For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register. | participant register | Given the provision, provide with the correct label for the given provision |
In connection with such collaboration, each Investor shall promptly provide any information reasonably requested by the SEC relating to such Investor and such Investor shall act reasonably and as promptly as practicable but in any event such Investor shall provide any comments on Filings and shall respond to any requests for information as soon as practicable and in any event within two (2) Business Days of being provided with the Filings or requests for additional information. | exchange of information | Given the provision, provide with the correct label for the given provision |
Effective January 1, 2018, your salary will be six hundred thousand dollars ($600,000.00) per year, payable in accordance with the Company’s standard payroll schedule and subject to adjustment pursuant to the Company’s employee compensation policies in effect from time to time. | base salary | Given the provision, provide with the correct label for the given provision |
Subject to Employee’s execution and fulfillment of Employee’s obligations, promises and covenants contained in this Agreement (as well as the Employment Agreement as referenced herein), Employer will pay Employee an additional six (6) months’ salary, less applicable taxes and withholdings (“Severance Payment”) to be paid following the end of the Revocation Period set forth in Section 2.18 of this Agreement, in accordance with Employer’s customary payroll practices. | severance payments | Given the provision, provide with the correct label for the given provision |
Any such bonus will be payable to Executive within 30 days of receipt by the Compensation Committee of the Board of Directors of the Company’s final year-end financial statements. | compensation | Given the provision, provide with the correct label for the given provision |
If an election is made to change a Measurement Fund, it shall become effective and apply thereafter in accordance with the rules of the Committee for all subsequent periods in which the Participant participates in the Plan, unless changed in accordance with the previous provisions. | election of measurement funds | Given the provision, provide with the correct label for the given provision |
Except, in each case, to the extent that the failure to do so would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, (a) comply, and take all commercially reasonable actions to cause any lessees and other Persons operating or occupying its properties to comply, with all applicable Environmental Laws and environmental permits (including any investigation, notification, cleanup, removal or remedial obligations with respect to or arising out of any Hazardous Materials Activity), (b) obtain and renew all environmental permits required to conduct its operations or in connection with its properties and (c) respond timely to any Environmental Claim against the Lead Borrower or any of its Restricted Subsidiaries and discharge or duly contest any obligations it may have to any Person thereunder. | compliance with environmental laws | Given the provision, provide with the correct label for the given provision |
Each designation will revoke all prior designations by the same Participant, must be in a form reasonably prescribed by the Committee and will be effective only when filed by the Participant in writing with the Company during the Participant’s lifetime. | beneficiary designations | Given the provision, provide with the correct label for the given provision |
If, as of any date, the Guaranteed Amount is less than $100,000,000, the Borrower shall ensure that the cash balance of the Account (as defined in the Cash Collateral Agreement) is no less than the amount of the Commitment Fees for the period from (and including) such date to (but excluding) the earlier of the date falling one year after such date and the Scheduled Maturity Date. | cash collateral | Given the provision, provide with the correct label for the given provision |
The rights of each Lender under this Section are in addition to other rights and remedies (including other rights of setoff) which such Lender may have. | right of setoff | Given the provision, provide with the correct label for the given provision |
Except with respect to Mortgage Loans intended for purchase by GNMA, the Mortgage contains an enforceable provision for the acceleration of the payment of the unpaid principal balance of the Mortgage Loan in the event that the Mortgaged Property is sold or transferred without the prior written consent of the mortgagee thereunder. | due-on-sale | Given the provision, provide with the correct label for the given provision |
The Performance Period for this Award shall begin on January 1, 2019 and end on December 31, 2021. | performance periods | Given the provision, provide with the correct label for the given provision |
§ 1.409A-1(b)(9)(iii). | separation pay | Given the provision, provide with the correct label for the given provision |
Without limiting the rights of a Holder to receive Warrant Shares on a “cashless exercise,” and to receive the cash payments contemplated pursuant to Sections 3.3.2, 3.3.5, 3.4 and 4.5, in no event will the Company be required to pay to the Holder any cash or other consideration or otherwise net cash settle a Warrant exercise. | disputes | Given the provision, provide with the correct label for the given provision |
Notwithstanding any of the foregoing to the contrary, the provisions of this ARTICLE 12 shall not be construed so as to provide for the indemnification of any Indemnified Person for any liability to the extent (but only to the extent) that such indemnification would be in violation of Applicable Law or to the extent such liability may not be waived, modified or limited under Applicable Law, but shall be construed so as to effectuate the provisions of this ARTICLE 12 to the fullest extent permitted by Applicable Law; provided that, if and to the extent that the Company's indemnification obligation under this ARTICLE 12 is unenforceable for any reason, then the Company hereby agrees to make the maximum contribution permissible under Applicable Law to the payment and satisfaction of the losses of the Indemnified Person, except to the extent such losses are found in a final, non‑appealable judgment by a court of competent jurisdiction to have resulted from the Indemnified Person's gross negligence or willful misconduct or bad faith. | contributions | Given the provision, provide with the correct label for the given provision |
No Third Party (except Novvi LLC Indemnitees and Amyris Indemnitees with regard to their rights, benefits and remedies Article 7 and Total with regard to Section 4.1) shall have any rights whatsoever to enforce any obligation contained this License Agreement, seek a benefit or remedy for any breach, or take any other action relating to this License Agreement under any legal or equitable theory. | no third party beneficiaries | Given the provision, provide with the correct label for the given provision |
As consideration for servicing the HELOCs, the Purchaser shall (a) pay the Servicer the applicable Servicing Fee and Other Fees the Servicer is entitled to each month, and (b) permit the Servicer to retain additional servicing compensation in the form of Ancillary Income, each in accordance with Schedule 1 hereto. | servicing compensation | Given the provision, provide with the correct label for the given provision |
The taking of the Leased Property, any Capital Additions and/or any part(s) thereof, shall constitute a taking by Condemnation only when the use and occupancy by the taking authority has continued for longer than one hundred eighty (180) consecutive days. | temporary taking | Given the provision, provide with the correct label for the given provision |
Any such attempt at assignment, transfer, pledge or other disposition will be without effect, except that the Company may treat such act as an election to withdraw funds from an Offering Period in accordance with Section 10 hereof. | transferability | Given the provision, provide with the correct label for the given provision |
The provisions of this Agreement shall not impose on the Senior Representatives, the Senior Secured Parties, the Second Priority Representatives, the Second Priority Debt Parties or any agent or trustee therefor any obligations in respect of the disposition of Proceeds of any Shared Collateral which would conflict with prior perfected claims therein in favor of any other Person or any order or decree of any court or governmental authority or any applicable Requirements of Law. | perfection of liens | Given the provision, provide with the correct label for the given provision |
The Participa nt has only the status of a general unsecured creditor hereunder, and this Agreement constitutes only a promise by the Company to pay the value of the Account on the payment date. | source of payments | Given the provision, provide with the correct label for the given provision |
Commencing with the Test Period ending November 24, 2017, Holdings will not permit the Secured Leverage Ratio to exceed 3.50 to 1.00 as of the last day of any Test Period. | financial covenants | Given the provision, provide with the correct label for the given provision |
All references to the “ Escrow Agent ,” as that term is used herein, shall refer to the Escrow Agent solely in its capacity as such, and not in any other capacity whatsoever, whether as individual, agent, fiduciary, trustee or otherwise. | agents | Given the provision, provide with the correct label for the given provision |
Notwithstanding the foregoing, the Company shall not be required or permitted to issue, and the Buyer shall not be required to purchase, any shares of Common Stock under this Agreement if such issuance would breach the Company’s obligations under the rules or regulations of the Principal Market. | compliance with principal market rules | Given the provision, provide with the correct label for the given provision |
Modifications to this Agreement can be made only in an express written contract executed by a duly authorized officer of the Company. | modifications to the agreement | Given the provision, provide with the correct label for the given provision |
No Guarantor shall exercise any right of subrogation, contribution, indemnity, reimbursement or similar rights with respect to any payments it makes under this Guaranty until all of the Obligations and any amounts payable under this Guaranty have been indefeasibly paid and performed in full and the Commitments and the Facilities are terminated. | subrogation | Given the provision, provide with the correct label for the given provision |
This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. | counterparts | Given the provision, provide with the correct label for the given provision |
The Option, if an Incentive Stock Option, may not be transferred in any manner other than by will or by the laws of descent and distribution and may be exercised during the lifetime of the Grantee only by the Grantee. | transferability of options | Given the provision, provide with the correct label for the given provision |
The Company shall disburse to the Grantee all regular cash dividends with respect to the Shares and Additional Securities (whether vested or not), less any applicable withholding obligations. | distributions | Given the provision, provide with the correct label for the given provision |
Any cash or Common Stock dividends paid on shares of Common Stock underlying a Unit prior to the Settlement Date for such Unit shall be credited to a dividend book entry account on your behalf (any such credited amount, a “Dividend Equivalent”). | dividend equivalents | Given the provision, provide with the correct label for the given provision |
In addition, notwithstanding any provision of this Agreement to the contrary, no [2018] LTIP Units (PB) will become vested or be issued at a time that such vesting or issuance would result in a violation of any such laws. | compliance with securities laws | Given the provision, provide with the correct label for the given provision |
Any such determination by the Committee shall be made on or before the first anniversary of the Grant Date. | forfeiture of performance stock units | Given the provision, provide with the correct label for the given provision |
A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with paragraphs (f) and (h) of Section 2.16 as though it were a Lender and in the case of a Participant claiming exemption for portfolio interest under Section 871(h) or 881(c) of the Code, the applicable Lender shall provide the Borrower with satisfactory evidence that the participation is in registered form and shall permit the Borrower to review such register as reasonably needed for the Borrower to comply with its obligations under applicable laws and regulations. | limitations on rights of participants | Given the provision, provide with the correct label for the given provision |
Neither the Company nor the Executive may make any assignment of this Agreement or any interest herein, by operation of law or otherwise, without the prior written consent of the other; provided, however, that the Company may assign its rights and obligations under this Agreement without the consent of the Executive to one of its Affiliates or in the event that the Company shall hereafter effect a reorganization with, consolidate with, or merge into, an Affiliate or any Person or transfer all or substantially all of its properties, stock, or assets to an Affiliate or any Person. | assignments | Given the provision, provide with the correct label for the given provision |
Notwithstanding the foregoing, the parties acknowledge that (i) the Class B Member is an express third party beneficiary under this Agreement, entitled to enforce this Agreement on Partnership’s behalf and (ii) UnSub Agent is an express third party beneficiary in respect of the Cure Right. | no third-party beneficiaries | Given the provision, provide with the correct label for the given provision |
If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any Law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto. | severability | Given the provision, provide with the correct label for the given provision |
The Borrower shall fail to comply with the reporting requirements of the 1934 Act and/or the Borrower shall cease to be subject to the reporting requirements of the 1934 Act. | failure to comply with the 1934 act | Given the provision, provide with the correct label for the given provision |
Notwithstanding the foregoing, the Committee may, in its sole discretion, provide for accelerated vesting of the Restricted Stock at any time and for any reason. | accelerated vesting | Given the provision, provide with the correct label for the given provision |
Subject to the provisions of Section 16.13 , time is of the essence of each and every provision of this Agreement. | time of the essence | Given the provision, provide with the correct label for the given provision |
Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Loan Party or other Subsidiary other than the Company, the Company shall be obligated to reimburse the applicable L/C Issuer hereunder for any and all drawings under such Letter of Credit. | subsidiaries | Given the provision, provide with the correct label for the given provision |
Except as otherwise provided herein, 1/3 of the Restricted Stock Units will vest on each of the first three anniversaries of October 30, 2017 (each, a “ Vesting Date ”), in each case subject to Participant’s continuous Service on the applicable Vesting Date. | generally | Given the provision, provide with the correct label for the given provision |
The Restricted Stock is subject to all of the terms and conditions set forth in this Agreement and the Plan. | grant of restricted stock | Given the provision, provide with the correct label for the given provision |
All notices hereunder shall be deemed effective when received as set forth above. | notices | Given the provision, provide with the correct label for the given provision |
If Tenant does not timely deliver the First Offer Exercise Notice within such ten (10) business day period, then Landlord shall be free to lease the space described in the First Offer Notice to anyone to whom Landlord desires on any terms Landlord desires; provided, however, Landlord shall not lease such First Offer Space to a third party on Key Economic Terms less than ninety-five percent (95%) as favorable to Landlord as the Key Economic Terms offered in such First Offer Notice to Tenant, without first providing Tenant with a new First Offer Notice (the “ Additional Notice ”) on such reduced Key Economic Terms in accordance with the terms, provisions and procedures set forth in this Section 5.2 .; provided, however, in connection with the foregoing analysis, the Key Economic Terms shall collectively be determined on a net effective basis (e.g., an “apples” to “apples” basis). | procedure for acceptance | Given the provision, provide with the correct label for the given provision |
Each Borrower and its Subsidiaries and their respective officers and directors, and to the knowledge of each Borrower and its Subsidiaries, its Affiliates, employees and agents, have conducted their businesses in compliance, in all material respects, with any applicable Laws relating to anti-bribery or anti-corruption, including but not limited to the United States Foreign Corrupt Practices Act of 1977, as amended (“ Anti-Corruption Laws ”), and will maintain policies and procedures designed to promote and achieve compliance, in all material respects, with such laws and with the representation and warranty contained herein. | anti-corruption laws | Given the provision, provide with the correct label for the given provision |
Context:
STRATEGIC ALLIANCE AGREEMENT
This agreement ("Agreement"), is entered into as of the date on which the Registration Statement is declared effective by the SEC (the "Effective Date"), by and among PHL VARIABLE INSURANCE COMPANY ("PHLVIC"), PHOENIX LIFE INSURANCE COMPANY, ("PLIC" and, together with PHLVIC, "PHL Variable"), PHOENIX EQUITY PLANNING CORPORATION ("PEPCO" and, together with PHLVIC and PLIC, the "PHL Parties"), and INVESTORS CAPITAL CORPORATION ("ICC"). Except as otherwise defined, capitalized terms used herein shall have the meanings given to them in Section 1 Definitions, below.
RECITALS
A. PHL Variable will offer to issue the GIE to ICC Customers.
B. ICC is a broker dealer that is registered under the 1934 Act and with FINRA and an investment adviser that is registered with the SEC under the Advisers Act and doing business as an investment adviser as Investors Capital Advisory Services ("ICAS").
C. ICAS has established certain asset allocation Models that are eligible for use with the GIE, and in the future may establish other Models that become eligible for use with the GIE.
D. ICC and the Phoenix Parties have previously entered into a Selling Agreement, effective as of December 1, 2002 and the addition of GIE to the Selling Agreement effective as of the Effective Date, pursuant to which ICC will solicit sales of the GIE to ICC Customers.
E. The Parties desire to set forth herein certain of their respective duties and obligations in connection with the GIE, all upon the terms and subject to the conditions more fully set forth below.
NOW, THEREFORE, in consideration of the foregoing recitals, the mutual covenants and obligations hereinafter set forth, and for other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto, intending to be legally bound, agree as follows:
SECTION 1 DEFINITIONS
- 1 -
1.01 1933 Act. The Securities Act of 1933, as amended. 1.02 1934 Act. The Securities Exchange Act of 1934, as amended.
1.03 Advisers Act. The Investment Advisers Act of 1940, as amended.
1.04 Affiliate. With respect to a person, any other person controlling, controlled by, or under common control with, such person.
- 2 -
1.05 Agreement. The term shall have the meaning set forth in the introductory paragraph of this Agreement.
1.06 Application. The application, enrollment form, or similar form approved for use by PHL Variable by which an ICC Customer applies for a GIE.
1.07 Books and Records. All books and records maintained or required by applicable Law to be maintained by each of the Parties hereto in connection with the Transaction Documents and the GIE, including to the extent any of the following exist: (i) hard copy and microfiche records; (ii) all paper files; (iii) all electronic images; (iv) all computer data files; and (v) any and all records in other forms.
1.08 Business Day. A day when the New York Stock Exchange is open for business.
1.09 Certificate. The certificate of insurance issued by PHL Variable to an ICC Customer pursuant to the Master Group Annuity Contract.
1.10 Certificate Owner. The person or entity that is the owner of a Certificate.
1.11 Change of Control. The term shall have the meaning set forth in Section 16.01.2.
1.12 Confidential Information. The term shall have the meaning set forth in Section 11.03.1
1.13 Customer Complaint. The term shall have the meaning set forth in Section 11.04.
1.14 Determination. The term shall have the meaning set forth in Section 12.02.1.6.
1.15 ICC. The term shall have the meaning set forth in the introductory paragraph of this Agreement.
1.16 Effective Date. The date set forth in the introductory paragraph of this Agreement.
1.17 Fee Increase Notice Date. The term shall have the meaning set forth in Section 8.08.1.
1.18 Governmental Entity. Any domestic, federal or State, court, governmental or regulatory authority or agency, including State insurance and State securities regulators.
1.19 GIE. The Master Group Annuity Contracts and each Certificate issued by PHL Variable and registered on Form S-1 under the 1933 Act with the SEC under File No. 333-XXXXXX as in effect on the Effective Date, including any riders, endorsements or amendments to the Master Group Annuity Contracts or the Certificates, and each Application.
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1.20 GIE Fees. The fees due to either PHLVIC or PLIC, as applicable, by a Certificate Owner under a Certificate for coverage under such Certificate.
1.21 Investment Company Act. The Investment Company Act of 1940, as amended.
1.22 IRC. The Internal Revenue Code of 1986, as amended.
1.23 Law. Any law, rule, regulation, order or written interpretation of any governmental body or self regulatory organization, and any writ, judgment, injunction or court decree.
1.24 ICAS. A business unit of ICC which is an investment adviser that is registered with the SEC under the Advisers Act
1.25 ICC GIE Persons. The term shall have the meaning set forth in Section 8.07.1.
1.26 Investors Capital Indemnitees. The term shall have the meaning set forth in Section 12.01.
1.27 ICC. The term shall have the meaning set forth in the introductory paragraph of this Agreement.
1.28 ICC Licensed Marks. The term shall have the meaning set forth in Section 9.02.2.
1.29 Investors Capital Services. The term shall have the meaning set forth in Section 8.02.1.
1.30 License. The term shall have the meaning set forth in Section 9.02.2.
1.31 Licensee. The term shall have the meaning set forth in Section 9.02.4.
1.32 Licensor. The term shall have the meaning set forth in Section 9.02.4.
1.33 ICC Account. An account established by an ICC Customer that is invested in accordance with a Model managed by ICAS and eligible for coverage under a GIE.
1.34 ICC Customer. A customer or client of ICC who has established an ICC Account.
1.35 Master Group Annuity Contracts. The Master Group Annuity Contracts entered into by and between PHLVIC and ICC or an Affiliate, and by and between PLIC and ICC or an Affiliate
1.36 Memorandum of Understanding. The confidential Memorandum of Understanding, dated as of the Effective Date, entered into by and among PHLVIC, PLIC and ICC.
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1.37 Models. The confidential and proprietary asset allocation models managed by ICAS more fully described in the Memorandum of Understanding.
1.38 Nonpublic Personal Information. The term shall have the meaning set forth in Section 11.03.1
1.39 Parties. The term "Parties" refers to PHLVIC, PLIC, PEPCO, and ICC collectively and the term "Party" refers to each of them individually.
1.40 PEPCO. The term shall have the meaning set forth in the introductory paragraph of this Agreement.
1.41 PHL GIE Persons. This term shall have the meaning set forth in Section 8.07.1
1.42 PHL Parties. The term shall have the meaning set forth in the introductory paragraph of this Agreement.
1.43 PHL Licensed Marks. This term shall have the meaning set forth in Section 9.02.3.
1.44 PHL Services. The term shall have the meaning set forth in Section 7.03.1.
1.45 PHL Variable. The term shall have the meaning set forth in the introductory paragraph of this Agreement.
1.46 PHLVIC. The term shall have the meaning set forth in the introductory paragraph of this Agreement.
1.47 PLIC. The term shall have the meaning set forth in the introductory paragraph of this Agreement.
1.48 Prospectus. The prospectus included within a Registration Statement, including supplements thereto filed under Rule 424 under the 1933 Act, prepared by PHL Variable, from and after the date on which each shall have been filed.
1.49 Registration Statement. At any time that this Agreement is in effect, each currently effective registration statement and each currently effective post-effective amendment thereto filed with the SEC under the 1933 Act on Form S-1 or otherwise relating to the GIE including the Prospectus and financial statements included in, and all exhibits to, such registration statement or post- effective amendment prepared by PHL Variable.
1.50 SEC. The United States Securities and Exchange Commission.
1.51 Selling Agreement. The Selling Agreement effective as of December 1, 2002 and the addition of GIE to the Selling Agreement effective as of the Effective Date, by and among the Parties, as amended from time to time, pursuant to which ICC will solicit sales of the GIE from ICC Customers.
SECTION 2 TERM
SECTION 3 REPRESENTATIONS AND WARRANTIES OF ICC ICC hereby represents and warrants to the PHL Parties as follows:
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1.52 State. Any state of the United States and the District of Columbia.
1.53 Term. The term shall have the meaning set forth in Section 2.
1.54 Territory. The Territory shall initially consist of all States, as may be changed from time to time by the written agreement of the Parties.
1.55 Trademark Consent. The term shall have the meaning set forth in Section 10.02.1.
1.56 Trademark License Terms. The term shall have the meaning set forth in Section 10.02.2.
1.57 Transaction Documents. The term shall mean this Agreement, the Memorandum of Understanding, and the GIE.
2.01 This Agreement shall commence on the Effective Date and shall continue until it is terminated in accordance with the provisions of Section 15 of this Agreement ("Term").
3.01 Organization. ICC is a corporation duly incorporated and validly existing under the laws of the State of Massachusetts.
3.02 Power and Authority. ICC has the requisite power and authority under its articles of incorporation and by-laws to enter into and perform its duties and obligations under the Transaction Documents to which it is a party.
3.03 Corporate Action. All requisite actions have been taken to authorize ICC to enter into and perform its duties and obligations set forth in the Transaction Documents to which it is a party and to execute and deliver the Transaction Documents to which it is a party and, when so executed and delivered, the Transaction Documents to which it is a party shall constitute the valid and binding obligations of ICC enforceable against it in accordance with its terms.
3.04 Non-Contravention. ICC has duly executed and delivered this Agreement and neither such execution and delivery nor the performance by ICC of any of its obligations under the Transaction Documents to which it is a party will (i) violate any provision of its articles of incorporation or by-laws (ii) result in a violation or breach of, or constitute a default or an event of default under, any indenture, mortgage, bond or other contract, license, agreement, permit, instrument or other commitment or obligation to which it is a party or by which it is bound or (iii) materially violate any Law applicable to it or its business.
SECTION 4 REPRESENTATIONS AND WARRANTIES OF PHLVIC PHLVIC hereby represents and warrants to the ICC as follows:
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3.05 Licenses and Permits. As of the Effective Date, ICC on its behalf and on behalf of ICAS has, and during the term of this Agreement shall use reasonable efforts to maintain, all material licenses, permits, registrations, authorizations, orders, consents, and other approvals by each Government Entity necessary or advisable for the performance of its obligations under the Transaction Documents to which it is a party.
3.06 Compliance with Law. As of the Effective Date, ICC shall use reasonable efforts to conduct and will continue to conduct business operations in connection with performance of its duties and obligations under the Transaction Documents to which it is a party in compliance in all material respects with applicable Law.
3.07 Equipment, Facilities and Staff. ICC has the equipment, facilities, systems, staff and other assets necessary to perform its duties and obligations under the Transaction Documents to which it is a party.
3.08 Pending Litigation and Actions. ICC is not subject to any current or pending litigation or any pending regulatory actions that would materially impair its ability to carry out its duties and obligations under the Transaction Documents to which it is a party.
3.09 Registration Statement and Prospectus. All information about ICC and ICAS that ICC has provided to PHL Variable for use in the Registration Statement did not, on the effective date of the Registration Statement, contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made. ICC shall promptly notify PHLVIC in the event ICC believes the representations and warranties in this Section 3.09 are no longer true in any material respect (it being understood that no representation is made with respect to information about the PHL Parties or the GIE).
3.10 Master Group Annuity Contracts. ICC shall cause itself or an Affiliate to enter into the Master Group Annuity Contracts by and between PHLVIC and ICC or an Affiliate, and by and between PLIC and ICC or an Affiliate
3.11 Form ADV, Part II, Sch. H. Schedule H of Part II of ICAS' Form ADV relating to the Models is in compliance with Rule 204-3(f) under the Advisers Act and the requirements of Schedule H of Part II of Form ADV. ICC shall promptly notify each of the PHL Parties if there are any material changes to the Form ADV, Part II, Schedule H relating to the Models.
4.01 Organization. PHLVIC is a corporation duly incorporated and validly existing under the laws of the State of Connecticut.
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4.02 Power and Authority. PHLVIC has the requisite power and authority under its articles of incorporation and by-laws to enter into and perform its duties and obligations under the Transaction Documents to which it is a party.
4.03 Corporate Action. All requisite actions have been taken to authorize PHLVIC to enter into and perform its duties and obligations set forth in the Transaction Documents to which it is a party and to execute and deliver the Transaction Documents to which it is a party and, when so executed and delivered, the Transaction Documents to which it is a party shall constitute the valid and binding obligation of PHLVIC enforceable against it in accordance with its terms.
4.04 Non-Contravention. PHLVIC has duly executed and delivered this Agreement and neither such execution and delivery nor the performance by PHLVIC of any of its obligations under the Transaction Documents to which it is a party will (i) violate any provision of its articles of incorporation or by-laws (ii) result in a violation or breach of, or constitute a default or an event of default under, any indenture, mortgage, bond or other contract, license, agreement, permit, instrument or other commitment or obligation to which it is a party or by which it is bound or (iii) materially violate any Law applicable to it or its business.
4.05 Licenses and Permits. As of the Effective Date, PHLVIC has, and during the term of this Agreement shall use reasonable efforts to maintain all material licenses, permits, registrations, authorizations, orders, consents, and other approvals by each Government Entity necessary or advisable for the performance of its obligations under the Transaction Documents to which it is a party.
4.06 Compliance with Law. As of the Effective Date, PHLVIC shall use reasonable efforts to conduct and will continue to conduct business operations in connection with performance of its duties and obligations under the Transaction Documents to which it is a party in compliance in all material respects with applicable Law.
4.07 Equipment, Facilities and Staff. PHLVIC has the equipment, facilities, systems, staff and assets necessary to perform its duties and obligations under the Transaction Documents to which it is a party.
4.08 Pending Litigation and Actions. PHLVIC is not subject to any current or pending litigation or regulatory actions that would materially impair its ability to carry out its duties and obligations under the Transaction Documents to which it is a party.
4.09 Registration Statement and Prospectus. The Registration Statement, on the date of which it was declared effective, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made (it being understood that no representation is made with respect to information about ICAS or ICC provided by ICAS or ICC in writing to PHL Variable). All statements in the Registration Statement, on the date of which it was declared
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effective, relating to taxation and tax effects are true in all material respects. The Prospectus or other information contained in the Registration Statement, when disseminated or used after the effective date of the Registration Statement, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made (it being understood that no representation is made with respect to information about ICAS or ICC provided by ICAS or ICC in writing to PHL Variable). PHLVIC shall immediately notify ICC in the event PHLVIC believes or has reason to believe that the representations and warranties in this paragraph are no longer true or completely accurate.
4.10 Tax Matters. It is more likely than not that: (1) PHLVIC will not be treated as the owner of the assets in an ICC Account for federal income tax purposes; (2) the GIE, including each Certificate, will be treated as an annuity contract for federal income tax purposes; however, if the value of an ICC Account happens to be greater than zero when an Owner's life expectancy is less than one year (which will only occur at extremely advanced ages), it is possible that the Policy could be treated as no longer constituting an annuity contract for Federal tax purposes from that point on; (3) for all Certificate Holders on the date of GIE issuance and during the entire period during which the GIE and each Certificate is in effect, losses with respect to the ICC Account will be deductible under Section 165(a) of the IRC notwithstanding the existence of the GIE' conditional guarantee of annual lifetime income payments in the event that the value of the assets in an ICC Account decreases to zero; (4) for all Certificate Owners on the date of GIE issuance and during the entire period during which the GIE and each Certificate is in effect, dividends on stock held in an ICC Account otherwise meeting the requirements of Section 1(h)(11) of the IRC will constitute qualified dividend income notwithstanding the existence of a GIE and its conditional guarantee of annual lifetime income payments in the event the value of the assets in the ICC Account decreases to zero; and (5) for each Certificate Owner on the date of Certificate issuance and during the entire period during which the GIE and each Certificate is in effect, the Certificate and assets in the ICC Account subject thereto will not be treated as a straddle under Section 1092 of the IRC.
4.11 Ownership of GIE; No Claims Relating to GIE. Except as set forth in Section 10.01, PHLVIC and its Affiliates, as applicable, are the exclusive legal and beneficial owner of and have good and marketable title in and to the GIE and all intellectual property rights therein, free and clear of all pledges, claims, liens, charges, encumbrances and security interests of any kind or character, including any claims for infringement of intellectual property rights. For the purposes of this Section, intellectual property includes GIE forms, specimen forms, the features of the GIE, materials filed by any of the PHL Parties with State insurance regulators, and any other forms prepared by any of the PHL Parties or any of their Affiliates in connection with the GIE. There are no claims, actions, suits, investigations or proceedings (arbitration or otherwise) pending against, or to the knowledge of PHLVIC, threatened against or affecting, all or any part of the GIE
SECTION 5 REPRESENTATIONS AND WARRANTIES OF PLIC PLIC hereby represents and warrants to the ICC as follows:
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or to the transactions contemplated by any of the Transaction Documents. To the knowledge of PHLVIC, there are no facts that could reasonably serve as a basis for such claim, action, suit, investigation or proceeding. The use and issuance of the GIE does not and will not infringe, misappropriate, violate or dilute any intellectual property rights of any person.
5.01 Organization. PLIC is a corporation duly incorporated and validly existing under the laws of the State of New York.
5.02 Power and Authority. PLIC has the requisite power and authority under its articles of incorporation and by-laws to enter into and perform its duties and obligations under the Transaction Documents to which it is a party.
5.03 Corporate Action. All requisite actions have been taken to authorize PLIC to enter into and perform its duties and obligations set forth in the Transaction Documents to which it is a party and to execute and deliver the Transaction Documents to which it is a party and, when so executed and delivered, the Transaction Documents to which it is a party shall constitute the valid and binding obligation of PLIC enforceable against it in accordance with its terms.
5.04 Non-Contravention. PLIC has duly executed and delivered this Agreement and neither such execution and delivery nor the performance by PLIC of any of its obligations under the Transaction Documents to which it is a party will (i) violate any provision of its articles of incorporation or by-laws (ii) result in a violation or breach of, or constitute a default or an event of default under, any indenture, mortgage, bond or other contract, license, agreement, permit, instrument or other commitment or obligation to which it is a party or by which it is bound or (iii) materially violate any Law applicable to it or its business.
5.05 Licenses and Permits. As of the Effective Date, PLIC has, and during the term of this Agreement shall use reasonable efforts to maintain all material licenses, permits, registrations, authorizations, orders, consents, and other approvals by each Government Entity necessary or advisable for the performance of its obligations under the Transaction Documents to which it is a party.
5.06 Compliance with Law. As of the Effective Date, PLIC shall use reasonable efforts to conduct and will continue to conduct business operations in connection with performance of its duties and obligations under the Transaction Documents to which it is a party in compliance in all material respects with applicable Law.
5.07 Equipment, Facilities and Staff. PLIC has the equipment, facilities, systems, staff and assets necessary to perform its duties and obligations under the Transaction Documents to which it is a party.
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5.08 Pending Litigation and Actions. PLIC is not subject to any current or pending litigation or regulatory actions that would materially impair its ability to carry out its duties and obligations under the Transaction Documents to which it is a party.
5.09 Registration Statement and Prospectus. The Registration Statement, on the date of which it was declared effective, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made (it being understood that no representation is made with respect to information about ICAS or ICC provided by ICAS in writing to PHL Variable). All statements in the Registration Statement, on the date of which it was declared effective, relating to taxation and tax effects are true in all material respects. The Prospectus or other information contained in the Registration Statement, when disseminated or used after the effective date of the Registration Statement, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made (it being understood that no representation is made with respect to information about ICAS or ICC provided by ICAS or ICC in writing to PHL Variable). PLIC shall immediately notify ICC in the event PLIC believes or has reason to believe that the representations and warranties in this paragraph are no longer true or completely accurate.
5.10 Tax Matters. It is more likely than not that: (1) PLIC will not be treated as the owner of the assets in an ICC Account for federal income tax purposes; (2) the GIE, including each Certificate, will be treated as an annuity contract for federal income tax purposes; (3) for all Certificate Holders on the date of GIE issuance and during the entire period during which the GIE and each Certificate is in effect, losses with respect to the ICC Account will be deductible under Section 165(a) of the IRC notwithstanding the existence of the GIE' conditional guarantee of annual lifetime income payments in the event that the value of the assets in an ICC Account decreases to zero; (4) for all Certificate Owners on the date of GIE issuance and during the entire period during which the GIE and each Certificate is in effect, dividends on stock held in an ICC Account otherwise meeting the requirements of Section 1(h)(11) of the IRC will constitute qualified dividend income notwithstanding the existence of a GIE and its conditional guarantee of annual lifetime income payments in the event the value of the assets in the ICC Account decreases to zero; and (5) for each Certificate Owners on the date of Certificate issuance and during the entire period during which the GIE and each Certificate is in effect, the Certificate and assets in the ICC Account subject thereto will not be treated as a straddle under Section 1092 of the IRC.
5.11 Ownership of GIE; No Claims Relating to GIE. Except as set forth in Section 11.01, PLIC and its Affiliates, as applicable, are the exclusive legal and beneficial owner of and have good and marketable title in and to the GIE and all intellectual property rights therein, free and clear of all pledges, claims, liens, charges, encumbrances and security interests of any kind or character, including any claims for infringement of intellectual property rights. For the purposes of this
SECTION 6 REPRESENTATIONS AND WARRANTIES OF PEPCO PEPCO hereby represents and warrants to the ICC as follows:
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Section, intellectual property includes GIE forms, specimen forms, the features of the GIE, materials filed by any of the PHL Parties with State insurance regulators, and any other forms prepared by any of the PHL Parties or any of their Affiliates in connection with the GIE. There are no claims, actions, suits, investigations or proceedings (arbitration or otherwise) pending against, or to the knowledge of PLIC, threatened against or affecting, all or any part of the GIE or to the transactions contemplated by any of the Transaction Documents. To the knowledge of PLIC, there are no facts that could reasonably serve as a basis for such claim, action, suit, investigation or proceeding. The use and issuance of the GIE does not and will not infringe, misappropriate, violate or dilute any intellectual property rights of any person.
6.01 Organization. PEPCO is a corporation duly incorporated and validly existing under the laws of the State of Delaware.
6.02 Power and Authority. PEPCO has the requisite power and authority under its articles of incorporation and by-laws to enter into and perform its duties and obligations under the Transaction Documents to which it is a party.
6.03 Corporate Action. All requisite actions have been taken to authorize PEPCO to enter into and perform its duties and obligations set forth in the Transaction Documents to which it is a party and to execute and deliver the Transaction Documents to which it is a party and, when so executed and delivered, the Transaction Documents to which it is a party shall constitute the valid and binding obligations of PEPCO enforceable against it in accordance with its terms.
6.04 Non-Contravention. PEPCO has duly executed and delivered this Agreement and neither such execution and delivery nor the performance by PEPCO of any of its obligations under the Transaction Documents to which it is a party will (i) violate any provision of its articles of incorporation or by-laws (ii) result in a violation or breach of, or constitute a default or an event of default under, any indenture, mortgage, bond or other contract, license, agreement, permit, instrument or other commitment or obligation to which it is a party or by which it is bound or (iii) materially violate any Law applicable to it or its business.
6.05 Licenses and Permits. As of the Effective Date, PEPCO has, and during the term of this Agreement shall use reasonable efforts to maintain all material licenses, permits, registrations, authorizations, orders, consents, and other approvals by each Government Entity necessary or advisable for the performance of its obligations under the Transaction Documents to which it is a party.
6.06 Compliance with Law. As of the Effective Date, PEPCO shall use reasonable efforts to conduct and will continue to conduct business operations in connection with performance of its duties and obligations under the Transaction Documents to which it is a party in compliance in all material respects with applicable Law.
SECTION 7 OBLIGATIONS OF THE PHL PARTIES
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6.07 Equipment, Facilities and Staff. PEPCO has the equipment, facilities, systems, staff and assets necessary to perform its duties and obligations under the Transaction Documents to which it is a party.
6.08 Pending Litigation and Actions. PEPCO is not subject to any current or pending litigation or regulatory actions that would materially impair its ability to carry out its duties and obligations under the Transaction Documents to which it is a party.
6.09 Registration Statement and Prospectus. The Registration Statement, on the date of which it was declared effective, did not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made (it being understood that no representation is made with respect to information about ICAS or ICC provided by ICAS or ICC in writing to PHL Variable). All statements in the Registration Statement, on the date of which it was declared effective, relating to taxation and tax effects are true in all material respects. The Prospectus or other information contained in the Registration Statement, when disseminated or used after the effective date of the Registration Statement, shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made (it being understood that no representation is made with respect to information about ICAS or ICC provided by ICAS or ICC in writing to PHL Variable). PEPCO shall immediately notify ICC in the event PEPCO believes or has reason to believe that the representations and warranties in this paragraph are no longer true or completely accurate.
7.01 Adequate Resources. Each of the PHL Parties shall devote commercially reasonable resources to ensure each of them and their Affiliates, as applicable, can perform their respective duties and obligations under the Transaction Documents.
7.02 GIE Filing and Approval. PHL Variable shall take all commercially reasonable efforts to (1) qualify the offer and sale of the GIE in each jurisdiction within the Territory, and (2) obtain any approvals that are or may be required by any Governmental Entity to permit or facilitate the offer and sale of the GIE in each such jurisdiction; provided however that neither PHL Variable nor any other PHL Party shall be required to seek to qualify the offer and sale of the GIE or obtain any approvals to permit or facilitate the offer or sale of the GIE in the State of New York or the State of Maine. Such actions shall include, as applicable, filing the Registration Statement and using commercially reasonable efforts to maintain the effectiveness of the Registration Statement, filing forms of the Master Group Annuity Contracts, Certificates, and Applications with Governmental Entities,
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including State insurance departments, and filing or submitting such notices, requests, and other documents in furtherance of the foregoing. One or more of the PHL Parties will immediately notify ICC if any Governmental Entity withdraws or modifies a previously issued approval of the GIE. 7.03 Administrative Services.
7.03.1 PHL Services. During the Term, each of the PHL Parties, as applicable, shall use commercially reasonable efforts to provide those administrative services set forth on Exhibit A (the "PHL Services").
7.03.2 Standards for Services. In performing the PHL Services, each of the PHL Parties shall at all times (1) act in good faith and with the care, skill, and diligence of a person experienced in providing services similar to the PHL Services; (2) perform such services consistent with applicable Law, and (3) perform such services in a manner the Parties may agree in writing from time to time.
7.03.3 Subcontracting with Affiliates. The PHL Parties may subcontract with one or more of their Affiliates for the performance of some or all of the PHL Services; provided, however, that no subcontract shall relieve any of the PHL Parties from any of their respective duties, obligations or liabilities under this Agreement and each of the PHL Parties shall remain responsible for all such duties, obligations and liabilities, whether or not performed in whole or in part by a subcontractor.
7.04 Continuing Duties and Obligations. Nothing contained in the Transaction Documents shall relieve any of the PHL Parties from their respective duties and obligations under any of the other Transaction Documents.
7.05 Registrations and Licenses. Each of the PHL Parties shall maintain, and cause each of the directors, officers, employees, agents and representatives of each of the PHL Parties or any Affiliate thereof to maintain all material registrations, licenses, memberships, approvals, and consents necessary or desirable to carry out their respective obligations under any of the Transaction Documents during the terms of the Transaction Documents, as applicable. PHL Variable shall promptly notify ICC in writing upon the lapse, termination, non-renewal, suspension, revocation, or cancellation (without replacement) of any such registration, license, membership, approval, order or consent.
7.05.1 Books and Records. Each of PHLVIC and PLIC shall maintain their respective Books and Records as required by applicable Law.
7.06 Non-Solicitation. During the term hereof and for a period of two years following termination, none of the PHL Parties, any of their Affiliates, or any of their respective officers, directors, employees, agents, or representatives, shall, without the prior written approval of ICC, knowingly and intentionally market any
SECTION 8 OBLIGATIONS OF ICC
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products or services to an ICC Client or Certificate Owner other than the GIE, if such ICC Client or Certificate Owner is identified from information any of the PHL Parties, any of their Affiliates, or any of their respective officers, directors, employees, agents, or representatives, obtain pursuant to any of the Transaction Documents or any transaction contemplated thereunder. PHLVIC and PLIC may communicate with Certificate Owners as is necessary to administer the Certificates or as required by applicable Law.
8.01 Adequate Resources. ICC shall devote commercially reasonable resources to ensure it can perform its duties and obligations under the Transaction Documents.
8.02 Administrative Services.
8.02.1 Investors Capital Services. During the Term, ICC shall use commercially reasonable efforts to provide those administrative services set forth on Exhibit B (the "Investors Capital Services").
8.02.2 Standards for Services. In performing the Investors Capital, ICC shall at all times (1) act in good faith and with the care, skill, and diligence of a person experienced in providing services similar to the Investors Capital; (2) perform such services consistent with applicable Law, and (3) perform such services in a manner the Parties may agree in writing from time to time.
8.02.3 Subcontracting with Affiliates. ICC may subcontract with one or more of their Affiliates for the performance of some or all of the Investors Capital; provided, however, that no subcontract shall relieve e ICC from any of its duties, obligations or liabilities under this Agreement and ICC shall remain responsible for all such duties, obligations and liabilities, whether or not performed in whole or in part by a subcontractor.
8.03 Continuing Duties and Obligations. Nothing contained in the Transaction Documents shall relieve ICC from its respective duties and obligations under any of the other Transaction Documents.
8.04 Information to be Provided to the PHL Parties. ICC shall provide to the PHL Parties such information reasonably necessary to describe ICAS and ICC in the Registration Statement and Prospectus. Such information shall not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements provided not misleading in light of the circumstances under which they were made (it being understood that no representation is made with respect to information about the PHL Parties or the GIE).
8.05 Registrations and Licenses. ICC shall maintain, and cause each of the directors, officers, employees, agents and representatives of ICC or any Affiliate thereof to maintain all material registrations, licenses, memberships, approvals, and consents
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necessary or desirable to carry out their respective obligations under this Agreement or the Master Group Annuity Contracts during the terms of such agreements, as applicable. ICC shall promptly notify each of the PHL Parties in writing upon the lapse, termination, non-renewal, suspension, revocation or cancellation (without replacement) of any such registration, license, membership, approval, order or consent. 8.06 Books and Records. ICC shall maintain its Books and Records as required by applicable Law.
8.07 Proprietary Interests of the PHL Parties.
8.07.1 Interference with Contracts. During the term hereof and for a period of two years following termination, ICC, any of their Affiliates, or any of their respective officers, directors, employees, agents, or representatives will:
8.07.1.1 knowingly and intentionally interfere in any way with the contractual relationships existing between or among any of the PHL Parties or their Affiliates (as the case may be), on the one hand, and any officer, director, employee, agent, or other representative of any of the PHL Parties or their Affiliates assigned to assist the Parties or their Affiliates in connection with the negotiation and implementation of the GIE and any Transaction Document, or the sales and marketing of the GIE ("PHL GIE Persons"), on the other;
8.07.1.2 knowingly and intentionally induce, solicit, or encourage PHL GIE Persons to terminate their respective contracts, or otherwise change their relationship, with any of the PHL Parties or their Affiliates; or
8.07.1.3 without the prior written consent of the PHL Parties, employ or otherwise contract with any PHL GIE Persons.
8.08 ICAS Advisory Fees.
8.08.1 Existing ICC Accounts. During the Term, ICAS may increase the investment advisory fee ICAS charges ICC Customers in connection with any ICC Account that exists on the date ICC provides notice to PHL Variable of the proposed fee increase (such date, the "Fee Increase Notice Date") only upon receipt of the written consent of PHL Variable, which consent shall not be unreasonably withheld. If PHL Variable does not disapprove the proposed fee increase within 10 days from the Fee Increase Notice Date, then such increase shall be deemed approved.
8.08.2 New ICC Accounts. During the Term, ICAS may increase the investment advisory fee ICAS charges ICC Customers in connection with
SECTION 9 INTELLECTUAL PROPERTY RIGHTS.
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any ICC Account established after the Fee Increase Notice Date so long as the fee increase will not take effect for at least 30 days from the Fee Increase Notice Date.
9.01 Ownership of GIE. Notwithstanding anything to the contrary contained in any of the Transaction Documents, none of the PHL Parties or any of their Affiliates shall own (1) any information about ICC or any of their Affiliates, whether contained or referenced in the GIE, Prospectus, Registration Statement, or otherwise, (2) any of the Books or Records of any of ICC or any of their Affiliates, or (3) any data or other information relating to an ICC Account or ICC Client.
9.02 Names, Logos, Trademarks, and Service Marks.
9.02.1 Prohibition. No Party shall use any of the names, trade names, trademarks, service marks and logos of another Party without the prior written consent of such Party (the "Trademark Consent"). The provisions of Section 10.02 shall apply in the event a Trademark Consent is given.
9.02.2 ICC Licensed Marks. ICC or one of its Affiliates, as applicable, is the owner of all rights, title and interests in and to the names, trade names, trademarks, service marks and logos specified in and attached to the Trademark Consent of such Party or Affiliate (collectively, the "ICC Licensed Marks"). Except as may be otherwise specified in its Trademark Consent, during the Term and subject to Section 9.02.5, the terms and conditions of the Trademark Consent, and the additional trademark terms and conditions set forth on Exhibit C ("Trademark License Terms"), ICC or its Affiliates, as applicable, shall grant to the PHL Parties and their Affiliates, as applicable, a non-exclusive limited license (a "License") to use the ICC Licensed Marks solely in connection with the performance of the duties and obligations of each of the PHL Parties and their Affiliates, as applicable, under the Transaction Documents. Each of the PHL Parties, on behalf of itself and any of its Affiliates, acknowledges that this Section 9.02.2, together with the Trademark Consent and Trademark License Terms, constitute a complete grant of the rights within this Section 9.02.2.
9.02.3 PHL Variable Licensed Marks. Each of the PHL Parties or each of their Affiliates, as applicable, is the owner of all rights, title and interests in and to the names, trade names, trademarks, service marks and logos specified in and attached to the Trademark Consent of such Party or Affiliate (collectively, the "PHL Licensed Marks"). Except as may be otherwise specified in its Trademark Consent, during the Term and subject to Section 9.02.5, the terms and conditions of the Trademark Consent and the Trademark License Terms, each of the PHL Parties or its Affiliates, as applicable, shall grant to ICC and their Affiliates, as applicable, a non-exclusive
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limited license (a "License") to use the PHL Licensed Marks solely in connection with the performance of the duties and obligations of ICC and its Affiliates, as applicable, under the Transaction Documents. ICC, on behalf of itself and any of its Affiliates, acknowledges that this Section 9.02.3 together with the Trademark Consent and Trademark License Terms constitute a complete grant of the rights within this Section 9.02.3.
9.02.4 Definitions. Each Party granting a License is sometimes referred to as a "Licensor" and each recipient of the grant is sometimes referred to as a "Licensee." 9.02.5 Terms and Conditions
9.02.5.1 Termination. Subject to the restrictions set forth in this Section, each License shall terminate as follows:
9.02.5.1.1 In the event of a complete termination of this Agreement under Sections 15.01 and 15.02 as to all Certificates, the grant of all Licenses shall automatically terminate as of the effective date of termination. In the event of such termination, ICC and its Affiliates shall cease using the PHL Licensed Marks and each of the PHL Parties and their Affiliates shall cease using the Investors Capital Licensed Marks.
9.02.5.1.2 In the event of termination under Section 15.02.1 as to new business and during such time as any Certificate remains in force and benefit payments thereunder have not commenced, the grant of all Licenses shall continue only as necessary for the Parties to carry out their respective duties and obligations under the Transaction Documents as applicable. For the purposes of clarity, each Party acknowledges that the Licenses shall not extend to sales and distribution of the GIE after the effective date of termination pursuant to Section 15.02.1, and upon such termination, ICC and its Affiliates shall cease using the PHL Licensed Marks and each PHL Party and their Affiliates shall cease using the Investors Capital Licensed Marks in connection with the sales and distribution of the GIE.
9.02.5.1.3 In the event of termination under Section 15.02.1 as to new business and during such time as the only Certificates remaining in force are those with respect to which benefit payments have commenced, the grant of the License to the PHL Parties and their Affiliates shall
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continue only as necessary to make benefit payments under such Certificates and only until payment of the last benefit due is made under the last Certificate in force. In the event of such termination, (1) the License granted to ICC and its Affiliates shall terminate on the date on which the only remaining Certificates in force are those under which benefit payments have commenced and thereafter ICC and its Affiliates shall cease using all PHL Licensed Marks, and (2) the License granted to the PHL Parties and their Affiliates, restricted as noted in this subsection, shall terminate on the date on which the last benefit payment is made under the last Certificate in force and thereafter the PHL Parties and their Affiliates shall cease using all Investors Capital Licensed Marks.
9.02.5.1.4 In the event of suspension under Section 15.02.2, the grant of all Licenses shall continue only as necessary for the Parties to carry out their respective duties and obligations under the Transaction Documents, as applicable.
9.02.5.2 Pre-Use Approval of Trademark-Bearing Materials, Names and Logos. A Licensee shall obtain the prior written consent of the Licensor for the use or public release by such Licensee of any materials bearing the Licensor's licensed marks. With respect to the use of names or logos, none of the PHL Parties or their Affiliates, as applicable, shall use in advertising or publicity the names of any of ICC or its Affiliates, as applicable, or any symbol, abbreviation, contraction or simulation thereof or relating to ICC or an ICC Account, without the prior written consent of ICC, as applicable. With respect to the use of names or logos, ICC or its Affiliates, as applicable, shall not use in advertising or publicity the names of any of the PHL Parties or their Affiliates, or any symbol, abbreviation, contraction or simulation thereof, without the prior written consent of the PHL Parties, as applicable.
9.02.5.3 Recall. A Licensor may revoke a Trademark Consent or the prior written consent provided pursuant to Section 9.02.5(b) only in the event of a material change in circumstances or in the event of a breach by a Licensee of Section 9.02, the Trademark Consent, and/or the Trademark License Terms. If the Trademark Consent or such other consents are properly revoked, then Licensee shall cease using all licensed marks affected by the revoked consent.
SECTION 10 COMPENSATION AND EXPENSES
SECTION 11 ADDITIONAL COVENANTS
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9.02.5.4 Acknowledgment of Ownership. Each Licensee:
9.02.5.4.1 acknowledges and stipulates that the Licensor's licensed marks are valid and enforceable trademarks and/or service marks; and that such Licensee does not own the Licensor's licensed marks and claims no rights therein other than as a Licensee under this Agreement; and
9.02.5.4.2 shall not alter the Licensor's licensed marks in any respect but shall use them only in the manner in which they are depicted in the Trademark Consent, as may be amended from time to time by Licensor.
10.01 Compensation. ICC and its Affiliates shall not be entitled to payment or other compensation of any kind or character from any of the PHL Parties or their Affiliates, and none of the PHL Parties or their Affiliates shall be entitled to payment or other compensation of any kind or character from ICC or its Affiliates, for performing their respective duties and obligations under any of the Transaction Documents. ICC acknowledges that (1) ICC and its Affiliates may benefit from sale of the GIE, and (2) such benefits constitute good and valuable consideration under this Agreement. The Parties acknowledge that the grant of Licenses pursuant to Section 9.02 also constitutes good and valuable consideration.
10.02 Expenses. Each Party shall be obligated to pay all costs and expenses it incurs in connection with developing and implementing the GIE and incident to preparing for, entering into and carrying out this each of the Transaction Documents, as applicable, and the transactions contemplated therein.
11.01 Compliance with Applicable Law.
11.01.1 Each Party shall perform, and shall cause each of its respective Affiliates, as applicable, to perform, their respective duties and obligations under the Transaction Documents in compliance in all material respects with applicable Law.
11.02 Confidentiality. 11.02.1 Definition.
11.02.1.1 "Confidential Information" means information obtained from a Party (i) in connection with the development of or performance of any of the Transaction Documents; (ii) concerning customers of the Parties or customers of their Affiliates, including their identities, addresses, and telephone numbers; (iii) as to a Party's or its Affiliate's business methods, operations, or affairs, or the
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processes and systems used in the operation of its or its Affiliate's business; (iv) concerning the Parties and their Affiliates that is identified as confidential by a Party; or (v) required to be treated as confidential under applicable Law.
11.02.1.2 "Confidential Information" does not include (i) information now available in the public domain or that in the future enters the public domain through no fault of the receiving Party; (ii) information disclosed to the receiving Party by a third party without violation by such third party of an independent obligation of confidentiality; (iii) information that is independently developed by or for a Party or its Affiliate in the ordinary course of business outside of any of the Transaction Documents; or (iv) information whose disclosure by the receiving Party is consented to in writing by the disclosing Party.
11.02.2 Obligation to Keep Confidential. The receiving Party shall:
11.02.2.1 hold, and ensure that its Affiliates and the respective officers, directors, employees, agents, and representatives of the receiving Party and its Affiliates hold, the Confidential Information in strict confidence according to standards the receiving Party utilizes for confidential information of a similar nature;
11.02.2.2 not copy, reproduce, sell, assign, license, market, transfer, or otherwise dispose of, give, or disclose such Confidential Information to unaffiliated third persons or to the respective officers, directors, employees, agents, and representatives of the receiving Party and its Affiliates who have not agreed in writing to be bound by such obligations except as required by Law;
11.02.2.3 not use the Confidential Information for any purposes whatsoever other than the performance of the duties and obligations of the receiving Party or its Affiliates, as applicable, under the Transaction Documents; and
11.02.2.4 notify its Affiliates and the respective officers, directors, employees, agents, and representatives of the receiving Party and its Affiliates who may be exposed to such Confidential Information of their obligations to keep such information confidential and not to disclose or use such information except as expressly provided herein.
11.02.3 Notice of Disclosure. In the event the receiving Party is requested to disclose all or any part of the Confidential Information under the terms of a valid subpoena or order issued by a court of competent jurisdiction or
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other Governmental Entity, the receiving Party shall promptly notify the disclosing Party promptly of such request and shall provide the disclosing Party with reasonable opportunity to obtain and reasonable assistance in obtaining a protective order or similar remedy, provided that no such notice shall be required if such notice is prohibited by Law or if the Governmental Entity requesting such information has requested that the request not be disclosed.
11.02.4 Internal Controls, Policies and Procedures. The Parties shall establish and maintain appropriate policies, procedures and internal controls to comply with this Section 11.
11.03 Nonpublic Personal Information.
11.03.1 Confidentiality of Nonpublic Personal Information. The Parties each acknowledge they may come into possession of nonpublic personal information regarding "customers" or "consumers" of the other Party, as those terms are defined in Regulation S-P as enacted by the SEC and in other applicable Laws relating to privacy of nonpublic personal information (collectively, "Nonpublic Personal Information."). No Party shall (1) share any Nonpublic Personal Information with any person except as permitted by the privacy notices such Party has provided to its consumers and customers in accordance with applicable Laws; (2) share any Nonpublic Personal Information with any unaffiliated third person regardless of whether such sharing is permitted by such Party's privacy notices; and (3) share any Nonpublic Personal Information with any Affiliate unless such sharing is necessary for performance of that Party's duties and obligations under this Agreement, the Sales and General Agency Agreement, or the Memorandum of Understanding.
11.03.2 Internal Controls, Policies and Procedures. Each Party shall establish and maintain written policies, procedures and internal controls that establish adequate administrative, technical, and physical safeguards for the protection of customer records and information as required by Rule 30 under Regulation S-P or applicable Law. Each Party represents and warrants that its respective policies, procedures and internal controls are reasonably designed to (1) ensure the security and confidentiality of Nonpublic Personal Information, (2) protect against anticipated threats or hazards to the security and integrity of Nonpublic Personal Information, and (3) protect against unauthorized access to or use of Nonpublic Personal Information.
11.04 Duty to Notify; Cooperation. Each Party shall promptly notify the others of the following of which any of them has received notice or has otherwise become aware: (1) any violation of Law by the personnel of such Party that would materially impact on the ability of that Party or its Affiliates, as applicable, to perform their respective duties and obligations under any of the Transaction
SECTION 12 INDEMNIFICATION
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Documents, as applicable, (2) any violation of Law that relates in any way to the GIE; (3) any complaint or allegation by a GIE Certificate Owner relating in any way to the GIE (each, a "Customer Complaint"); and (4) any examination, investigation, allegation, proceeding, or action by a Governmental Entity, including a court, federal or State securities regulators, State insurance regulators, and State attorney general, related to any of the Transaction Documents provided that no such notice shall be required if such notice is prohibited by Law or if the Governmental Entity requesting such information has requested that the request not be disclosed.
11.04.1 Customer Complaints. The Parties shall cooperate with each other in resolving each Customer Complaint. Any proposed response by a Party to a Customer Complaint shall be sent to the other Parties not less than five (5) Business Days prior to the response being sent to any person, including the Certificate Owner or any Governmental Entity, provided, however, that if a more prompt response is required, the Parties shall send to the other Parties the proposed response as soon as practicable under the circumstances but in no event shall any Party submit such response to another person without providing the other Party with prior written notice of and a copy of the response.
11.04.2 Examinations, Investigations and Proceedings. The Parties shall cooperate with each other in connection with any matter described under Section 11.04 as set forth above.
12.01 Indemnification by the PHL Parties.
12.01.1 Indemnification. Each of the PHL Parties shall, jointly and severally, indemnify and hold harmless ICC, its Affiliates, and each of their respective officers, directors, employees, representatives, successors and permitted assigns (collectively, the "Investors Capital Indemnitees"), from and against any and all losses, claims, damages, liabilities, judgments, costs and expenses, including reasonable attorney fees and costs of investigation (collectively, "Loss" or "Losses"), to which any Investor Capital Indemnitee may become subject, relating to or arising from any of the following:
12.01.1.1 a material breach by any of the PHL Parties, any of their Affiliates, or any their respective officers, directors, employees, agents, representatives, successors or permitted assigns of any provision of any of the Transaction Documents to which they are a party;
12.01.1.2 a material violation of applicable Law by any of the PHL Parties, any of their Affiliates, or any their respective officers,
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directors, employees, agents, representatives, successors or permitted assigns relating to or arising from any of the Transaction Documents to which they are a party; provided, however, that none of the PHL Parties shall owe indemnification for Losses related to a material violation of Law arising out of or based upon reliance by any of the PHL Parties or any of its Affiliates upon information about ICC or any Affiliate thereof provided by ICC in writing to a PHL Party; 12.01.1.3 the GIE, including its issuance and administration and any benefit payments due under the GIE;
12.01.1.4 any and all documents relating to or arising from the GIE that are drafted by, or are reviewed and approved by, any of the PHL Parties or any Affiliate thereof, including the Registration Statement, correspondence with Certificate Owners, and filings with Governmental Entities; or
12.01.1.5 any claim for infringement of intellectual property rights by an unaffiliated third party in connection with any product that is similar to or resembles all or any part of the GIE.
12.01.2 Limitation. Indemnification pursuant to this Section 12.01 shall be in addition to any liability that any of the PHL Parties may otherwise have. Notwithstanding anything to the contrary set forth in this Section, no Investor Capital Indemnitee shall be entitled to indemnification pursuant to this Section to the extent that (a) Losses are attributable to acts, omissions or conduct of any Investor Capital Indemnitee that constitute willful misconduct, gross negligence, bad faith, or recklessness (other than any of the PHL Parties, any of their Affiliates, or any their respective officers, directors, employees, agents, representatives, successors or permitted assigns acting as an agent or representative of any of the Investors Capital Indemnitees), unless such acts, omissions or conduct were committed at the written direction of any of the PHL Parties Authorized Persons, or (b) such Loss is also a Loss for which the PHL Indemnitees are indemnified pursuant to Section 12.02 of this Agreement. Each Investors Capital Party acknowledges that none of the PHL Parties or their Affiliates shall be deemed to have guaranteed the profitability of the GIE or any volume of sales, and no indemnification shall arise based on an assertion of such a guarantee of profitability of the GIE or volume of sales.
12.02 Indemnification by the ICC.
12.02.1 Indemnification. ICC shall indemnify and hold harmless each of the PHL Parties, their Affiliates, and each of their respective officers, directors, employees, representatives, successors and permitted assigns
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(collectively, the "PHL Indemnitees"), from and against any and all Losses to which any PHL Indemnitee may become subject, relating to or arising from any of the following:
12.02.1.1 a material breach by ICC, any of their Affiliates, or any their respective or any of their officers, directors, employees, agents, representatives, successors or permitted assigns, of any provision of the Transaction Documents to which they are a party;
12.02.1.2 a material violation of applicable Law by ICC , any of its Affiliates, or any their respective or any of its officers, directors, employees, agents, representatives, successors or permitted assigns, relating to or arising from the Transaction Documents to which they are a party or ICC; provided, however, that ICC shall not owe indemnification for Losses related to a material violation of Law arising out of or based upon reliance by ICC or any of its Affiliates upon information about any of the PHL Parties or any Affiliate thereof provided by any of the PHL Parties in writing to ICC;
12.02.1.3 the administration and management of ICC Accounts;
12.02.1.4 any claim by any person or entity related in any way to the development of all or any part of ICC, but excluding claims relating in any way to the development of all or any part of the GIE or Registration Statement;
12.02.1.5 any claim for infringement of intellectual property rights by an unaffiliated third party in connection with any product that is similar to or resembles all or any part of ICC, but excluding any claim relating in any way to the development of all or any part of the GIE or Registration Statement and any claim described in Sections 12.01.1(e) and (f) of this Agreement; or
12.02.1.6 a termination of a Certificate by either PHLVIC or PLIC as a result of a breach of the Memorandum of Understanding by ICAS that is not cured on or before the 5th consecutive Business Day following the date on which either PHLVIC or PLIC delivers notice under the Memorandum of Understanding that PHLVIC or PLIC, as applicable, has determined it cannot hedge changes proposed by ICAS either (i) without incurring material additional risk or additional hedging costs that are material in light of the pricing of the GIE, or (ii) because Phoenix is unable to obtain an appropriate hedge (a determination as to either (i) or (ii), a "Determination"); except a breach shall not be deemed to have occurred if the ICC demonstrates, through binding arbitration pursuant to Section 14.02 of this Agreement, that a Determination was unreasonable, erroneous or not made in good faith.
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12.02.2 Limitation. Indemnification pursuant to this Section 12.02 shall be in addition to any liability that the ICC may otherwise have. Notwithstanding anything to the contrary set forth in this Section, no PHL Indemnitee shall be entitled to indemnification pursuant to this Section to the extent that (a) Losses are attributable to acts, omissions or conduct of any PHL Indemnitee that constitute willful misconduct, gross negligence, bad faith, or recklessness (other than any of ICC, any of their Affiliates, or any their respective officers, directors, employees, agents, representatives, successors or permitted assigns acting as an agent or representative of any of the PHL Indemnitees), unless such acts, omissions or conduct were committed at the written direction of ICC Authorized Persons, or (b) such Loss is also a Loss for which the Investor Capital Indemnitees are indemnified pursuant to Section 12.01 of this Agreement. Each PHL Party acknowledges that neither ICAS nor any of its Affiliates shall be deemed to have guaranteed the profitability of the GIE or any volume of sales, and no indemnification shall arise in connection with profitability of the GIE or volume of sales.
12.03 Inter-Party Claims. Any Party seeking indemnification pursuant to this Section 12 (the "Indemnified Party") shall notify the other Party or Parties from whom such indemnification is sought (the "Indemnifying Party") of the Indemnified Party's assertion of such claim for indemnification, specifying the basis of such claim. The Indemnified Party shall thereupon give the Indemnifying Party reasonable access to the documents that evidence or support such claim or the act, omission or occurrence giving rise to such claim.
12.04 Third Party Claims.
12.04.1 Each Indemnified Party shall promptly notify the Indemnifying Party of the assertion by any third party of any claim with respect to which the indemnification set forth in this Article 12 relates (which shall also constitute the notice required by Section 16.03). The Indemnifying Party shall have the right, upon notice to the Indemnified Party within ten business days after the receipt of any such notice, to undertake the defense of or, with the consent of the Indemnified Party, (which consent shall not unreasonably be withheld), to settle or compromise such claim. The failure of the Indemnifying Party to give such notice and to undertake the defense of or to settle or compromise such a claim shall constitute a waiver of the Indemnifying Party's rights under this Section 12.04.1 and shall preclude the Indemnifying Party from disputing the manner in which the Indemnified Party may conduct the defense of such claim or the reasonableness of any amount paid by the Indemnified Party in satisfaction of such claim.
SECTION 13 STATUS OF PARTIES
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12.04.2 The election by the Indemnifying Party, pursuant to Section 13.03.1, to undertake the defense of a third-party claim shall not preclude the Party against which such claim has been made also from participating or continuing to participate in such defense, so long as such Party bears its own legal fees and expenses for so doing.
13.01 Independent Contractors. Each of the PHL Parties and their Affiliates, on the one hand, and ICC and its Affiliates, on the other, shall be deemed to be an independent contractor as to the others for all purposes. None of the Transaction Documents shall be construed (1) to create the relationship of employer and employee among the Parties hereto or between any Party and any of the officers, directors, employees, or representatives of any other Party, (2) to create a partnership or joint venture among the Parties hereto, or (3) to authorize any Party to act as a general or special agent of any other, except as may be specifically set forth herein. Except as otherwise expressly set for in this Agreement, no Party shall in any manner be prevented or bound to refrain from engaging in any business or businesses of any kind or nature, or owning or dealing in securities of any entity or making any investments of any kind, or performing services for any other person, firm, or entity.
13.02 Authority to Act. Except as otherwise expressly set forth in this Agreement or the Sales and General Agency Agreement, none of the PHL Parties or their Affiliates, on the one hand, and ICC or its Affiliates, on the other, shall have or be deemed to have authority to act on behalf of the others.
13.03 No Third-Party Beneficiaries. This Agreement, the Selling Agreement, and the Memorandum of Understanding are solely among the Parties hereto, as applicable, and are not intended to create any right or legal relationship, express or implied, among the Parties or any of their respective Affiliates, officers, directors, employees, agents, representatives, successors or permitted assigns, on the one hand, and any third party, including any Certificate Owner or other person covered under a GIE, on the other hand; provided, however, that the Investors Capital Indemnitees and the PHL Indemnitees are expressly intended to be third-party beneficiaries under this Agreement.
13.04 ICC Not Underwriter, Insurer or Producer. Notwithstanding anything to the contrary in any Transaction Document, none of the ICC, its Affiliates, or any of their respective directors, officers, employees, agents, or other representatives are or shall be deemed to be (1) underwriters of any security, including the GIE; (2) insurers, guarantors, or underwriters of any obligation of either PHLVIC and PLIC under the GIE, including the obligation of either of PHLVIC or PLIC to pay claims and benefits arising under the GIE, or (3) insurance agents, brokers or producers, except in the case of ICC and certain of its officers, employees, agents, or other representatives, who are licensed as insurance producers as required under applicable State insurance Laws.
SECTION 14 DISPUTE RESOLUTION
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13.05 PHL Parties not Investment Adviser. Notwithstanding anything to the contrary in any Transaction Document, none of the PHL Parties or any of their respective directors, officers, employees, agents, or other representatives are investment advisers under the Advisers Act or similar State Laws.
14.01 Disputes Regarding PHL Services or Investors Capital Services.
14.01.1 Notice; Authorized Persons. During the Term, if any of the PHL Parties, on the one hand, or ICC, on the other, encounters a problem that it believes constitutes a material breach of the other's duty to provide either the PHL Services or the Investor Capital Services, as applicable, the non-breaching Parties shall promptly notify the other Parties in writing, and such breaching Party or Parties shall promptly respond. If the problem is not promptly resolved among the Parties, a PHL Parties Authorized Person and an ICC Authorized Person shall, before the end of the first full Business Day following the date on which initial notice is provided by the non-breaching Parties, consult with each other in good faith concerning the existence, cause and remediation of the possible breach.
14.01.1.1 If such Authorized Persons mutually determine that the problem constitutes a material breach, the breaching Party or Parties shall promptly take such actions and make any modifications and/or changes as are required to correct the breach, without charge to the non-breaching Parties.
14.01.1.2 If such Authorized Persons cannot mutually determine whether the problem is the result of a material breach, then the dispute shall be resolved in accordance with Section 15.02 below.
14.01.2 Indemnification. The non-breaching Party or Parties may seek indemnification for any damages resulting from a breach under this Section pursuant to Section 12 (Indemnification).
14.02 Arbitration. All controversies, claims or disputes among the Parties arising out of or relating to this Agreement, either of the Master Group Annuity Contracts, or breach of any of them, including matters relating to formation, shall be settled by binding arbitration by the American Arbitration Association in accordance with its Commercial Arbitration Rules and Title 9 of the U.S. Code. The place of arbitration shall be Hartford, Connecticut.
14.02.1 The arbitrators shall be disinterested. The number of arbitrators shall be three, one of whom shall be appointed by the PHL Parties and one of whom shall be appointed by ICC, and the third of whom shall be selected by mutual agreement of the first two arbitrators, or by the administering authority if the first two arbitrators do not arrive at a mutual agreement within thirty (30) days of the selection of the second arbitrator.
SECTION 15 DURATION AND TERMINATION
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14.02.2 A decision of a majority of the arbitrators shall be final and binding and there shall be no appeal therefrom, unless (i) the decision was procured by corruption, fraud or other undue means; (ii) there was evident partiality by the arbitrator appointed as a neutral or corruption in any of the arbitrators or misconduct prejudicing the rights of any Party; or (iii) the arbitrators exceeded their powers. The arbitrators shall issue a written opinion in support of the arbitration award.
14.02.3 The arbitrators shall have no authority to award punitive damages or any other damages not measured by the prevailing Party's actual damages, and may not, in any event, make any ruling, finding or award that does not conform to the terms and conditions of the applicable agreement.
14.02.4 Each Party shall be responsible for the costs and expenses incurred by such Party, including attorneys, although the cost of arbitration, including the fees of the arbitrators, shall be borne equally by the PHL Parties, on the one hand, and the ICC, on the other; provided, however, that the panel of arbitrators may determine to award fees and costs, including attorney fees, to the prevailing Party.
14.02.5 Any Party may seek injunctive relief from the arbitrators to maintain the status quo until such time as the arbitration award is rendered or the controversy is otherwise resolved.
14.02.6 Judgment upon the award rendered by the arbitrators may be entered in the courts specified in Section 16.04 below.
15.01 Duration. Except as to termination of new business pursuant to Section 16.02 of this Agreement, this Agreement shall remain in effect for so long as any Certificate remains in force with respect to which benefit payments thereunder have not commenced; provided, however, that the Parties shall be obligated to fulfill their obligations under the Transaction Documents to which they are a party with respect to any Certificate that remains in force.
15.02 Termination and Suspension as to New Business.
15.02.1 Termination. This Agreement may be terminated by either the PHL Parties, on the one hand, or ICC, on the other, with respect to Certificates that have not been issued as of the effective date of termination in the following manner:
15.02.1.1 By any of the PHL Parties, on the one hand, or ICC, on the other, providing one hundred and twenty (120) days prior written notice to the other Parties.
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15.02.1.2 By ICC, if any of the PHL Parties or their Affiliates, as applicable, materially breaches any of the Transaction Documents and does not cure such breach within sixty (60) days of being provided written notice of such breach by ICC.
15.02.1.3 By any of the ICC, immediately, if:
15.02.1.3.1 Any of the PHL Parties is placed in receivership or conservatorship or other proceedings pursuant to which it is substantially prevented from continuing to engage in the lines of business relevant to the subject matter hereof.
15.02.1.3.2 Any of the PHL Parties becomes a debtor in bankruptcy, whether voluntary or involuntary, is the subject of an insolvency, rehabilitation, or delinquency proceeding, or is determined to be in hazardous financial condition.
15.02.1.3.3 Any of the PHL Parties becomes the subject of a criminal indictment or information or similar proceedings.
15.02.1.3.4 Any of the PHL Parties assigns or transfers this Agreement in a manner that does not comply with the provisions of this Agreement.
15.02.1.4 By any of the PHL Parties, if any of the ICC or its Affiliate, as applicable, materially breaches any of the Transaction Documents to which they are a party and does not cure such breach within sixty (60) days of being provided written notice of such breach by a PHL Party.
15.02.1.5 By any of the PHL Parties, immediately, if:
15.02.1.5.1 ICC is placed in receivership or conservatorship or other proceedings pursuant to which it is substantially prevented from continuing to engage in the lines of business relevant to the subject matter hereof.
15.02.1.5.2 ICC becomes a debtor in bankruptcy, whether voluntary or involuntary, is the subject of an insolvency, rehabilitation, or delinquency proceeding, or is determined to be in hazardous financial condition.
15.02.1.5.3 ICC becomes the subject of a criminal indictment or information or similar proceedings.
15.02.1.5.4 ICC assigns or transfers this Agreement in a manner that does not comply with the provisions of this Agreement.
SECTION 16 MISCELLANEOUS
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15.02.2 Suspension. Any of the PHL Parties, on the one hand, and ICC, on the other, upon 30 days written notice, may suspend issuance of (1) new Certificates entirely or (2) new Certificates guaranteeing ICC Accounts that invest in one or more Models with certain style attributes or investment vehicles, as may be expressly provided in such written notice, provided, however that the PHL Parties may suspend the issuance of new Certificates affected by a change in any of the Models after the 5 consecutive Business Day following the date on which either PHLVIC or PLIC deliver notice under the Memorandum of Understanding concerning its reasonable determination that it cannot hedge proposed changes without incurring material additional risk and/or material additional hedging costs, or because Phoenix is unable to obtain a reasonably appropriate hedge, if ICAS has made the proposed changes and not cured such changes within such five-day period.
16.01 Assignment or Change of Control.
16.01.1 Assignment. This Agreement shall be binding on and shall inure to the benefit of the respective successors and assigns of the Parties except as otherwise provided in this Agreement. No Party shall assign this Agreement or any rights or obligations hereunder or, except as expressly set forth in the Agreement with respect to the PHL Services and Investors Capital Services, delegate any of their respective duties and obligations hereunder, without the prior written consent of the other Parties, which, in view of the unique and specialized nature of each Party's obligations hereunder, may be declined by any Investors Capital Party on the one hand or any PHL Party, on the other hand, as the case may be, for any reason. Any attempted assignment or delegation in violation of this Section shall be void. A Change of Control, as defined below, shall be considered an assignment under this Section 16.01 and Sections 16.02.1(c) (4) and 16.02.1(e)(4).
16.01.2 Change of Control. A "Change of Control" means:
(a) the acquisition by any person, entity or group, including a "group" required to file a Schedule 13D or Schedule 14D-1 under the 1934 Act (excluding, for this purpose, a Party, its Affiliates and any employee benefit plan of a Party or its Affiliates that acquires ownership of voting securities of an Affiliate of that Party) of beneficial ownership (within the meaning of Rule 13d-3 under the 1934 Act) of 50% or more of either the (1) then outstanding ordinary shares of a Party, of a person or entity controlling such Party, or of a person or entity controlling such person or entity, up to and including the ultimate controlling person (such Party and persons or entities collectively, the "Control Group"), or (2) the
th
in each case excluding a reorganization, merger, consolidation, sale, transfer, lease or other disposition when the transaction is among Parties that are under common control both before and after such transaction.
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combined voting power of the Control Group's then outstanding voting securities entitled to vote generally in the election of directors, in each case excluding an acquisition when the transaction is among Parties that are under common control both before and after such transaction;
(b) the election or appointment to the board of directors of any member of the Control Group, or resignation of or removal from such board of directors with the result that the individuals who as of the date hereof constituted the board of directors (the "Incumbent Board") of each member of the Control Group no longer constitute at least a majority of such board of directors, provided that any person who becomes a director subsequent to the date hereof whose appointment, election, or nomination for election by the shareholders of each member of the Control Group, was approved by a vote of at least a majority of the Incumbent Board (other than an appointment, election or nomination of an individual whose initial assumption of office is in connection with an actual or threatened election contest relating to the election of the directors of a member of the Control Group) shall be, for purposes of this Agreement, considered as though such person were a member of the Incumbent Board; or
(c) the approval by the shareholders of any member of the Control Group of:
(1) a reorganization, merger or consolidation by reason of which the persons who were the shareholders of such member of the Control Group immediately prior to such reorganization, merger or consolidation do not, immediately thereafter, own more than 50% of the combined voting power of the reorganized, merged or consolidated company's then outstanding voting securities entitled to vote generally in the election of directors, or
(2) a liquidation or dissolution of such member of the Control Group or the sale, transfer, lease or other disposition of all or substantially all of the assets of such person (whether such assets are held directly or indirectly),
16.02 Rights, Remedies, Etc. are Cumulative. The rights, remedies, and obligations contained in this Agreement are cumulative and are in addition to any and all rights, remedies, and obligations, at law or in equity, which the Parties may be entitled to under State and federal laws.
If to the PHL Parties Kathleen A. McGah Vice President Life and Annuity Counsel Phoenix Life Insurance Company One American Row PO Box 5056 Hartford, CT 06102-5056 With a simultaneous copy that shall not constitute notice under this section to: General Counsel Phoenix Life Insurance Company One American Row PO Box 5056 Hartford, CT 06102-5056 If to ICC: General Counsel Investors Capital Corporation 230 Broadway East Lynnfield, MA 01940
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16.03 Notices. Except as set for in this paragraph, all notices hereunder shall be made in writing and shall be effective upon delivery, which shall be made (1) by hand delivery, (2) by registered or certified United States mail, postage prepaid with return receipt requested, (3) by a nationally-recognized overnight courier service, to the addresses set forth below, or to such other address as any Party may request by giving written notice to the other Parties. A Party may also provide notice by electronic means (such as email or facsimile) or telephone in cases when immediate notice is required so long as the Party giving notice delivers separate written notice to be with 24 hours pursuant to Sections 16.03(1) or 16.03 (3).
16.04 Governing Law. This Agreement shall be construed and its provisions interpreted under and in accordance with the internal Laws of the State of Connecticut, without giving effect to principles of conflict or choice of laws of that or any other jurisdiction. Each of the Parties hereto shall submit to the jurisdiction of the courts of the State of Connecticut and the federal courts in Connecticut.
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16.05 Amendments. No change may be made to the terms or provisions of this Agreement except by written agreement signed by the Parties.
16.06 Severability. If any provision of this Agreement is held invalid, illegal, unenforceable, or in conflict with the Law of any jurisdiction, such provision shall be enforced to the extent permitted under applicable Law, and the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
16.07 Waiver. The failure by any Party to insist upon strict compliance with any condition of this Agreement shall not be construed as a waiver of such condition. Waiver by one Party to this Agreement of any obligation of another Party to this Agreement does not constitute a waiver of any further or other obligation of such Party.
16.08 Interpretation. This Agreement shall be governed by the following rules of interpretation: (a) when a reference is made in this Agreement to an Article, Section, or Exhibit, such reference shall be to an Article of, a Section of, or Exhibit to, this Agreement unless otherwise indicated; (b) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (c) whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation;" (d) whenever the singular is used herein, the same shall include the plural, and whenever the plural is used herein, the same shall include the singular, where appropriate; and (e) references to currency or amounts due shall mean United States dollars.
16.09 Construction. The Parties hereto have participated, directly or indirectly, in the negotiations and preparation of this Agreement. In no event shall this Agreement be construed more or less stringently against any Party by reason of another Party being construed as the principal drafting Party hereto.
16.10 Survival. The following Sections shall survive termination of this Agreement: Sections7.05, 7.06, 8.06, 8.07, 9 (including Exhibit C), 10, 11.02, 11.03, 12, 13, 14.02, 16.
16.11 Entire Agreement. This Agreement, the other Transaction Documents and the Indemnification Agreement between the Parties, effective as of the Effective Date (the "Indemnification Agreement"), constitute the entire agreement between the Parties hereto with respect to the subject matter hereof and thereof, and supersede any and all prior oral or written understandings, agreements or negotiations, between or among the Parties with respect to the subject matter hereof and thereof. No prior writings by or among the Parties with respect to the subject matter hereof and thereof may be used by any Party in connection with the interpretation of any provision of this Agreement, the Indemnification Agreement, or the other Transaction Documents.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed and delivered by their duly authorized partners and officers, all as of the Effective Date.
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16.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which taken together shall constitute one and the same instrument.
PHL VARIABLE INSURANCE COMPANY PHOENIX EQUITY PLANNING CORPORATION
BY: /S/ KATHLEEN A. MCGAH BY: /S/ KATHLEEN A. MCGAH NAME: KATHLEEN A. MCGAH NAME: KATHLEEN A. MCGAH TITLE: VICE PRESIDENT TITLE: VICE PRESIDENT
PHOENIX LIFE INSURANCE COMPANY INVESTORS CAPITAL CORPORATION
BY: /S/ JOHN V. LAGRASSE BY: /S/ THEODORE E. CHARLES NAME: JOHN V. LAGRASSE NAME: THEODORE E. CHARLES TITLE: EXECUTIVE VICE PRESIDENT TITLE: DIRECTOR
EXHIBIT A TO THE STRATEGIC ALLIANCE AGREEMENT
PHL VARIABLE SERVICES
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A. PHL Variable shall, or shall cause one or more of its Affiliates to, provide all services necessary or desirable to fully administer the GIE, including, but not limited to:
1. Notifying ICC of any change to the GIE Fee rate at least ten calendar days prior to the effective date of the fee change via E-mail;
2. Calculating the GIE Fee for each Certificate and send the inception and quarterly fee information to ICC;
3. Calculating the Retirement Income Base for each Certificate;
4. Calculating the Retirement Income Amount for each Certificate;
5. Calculating the Required Minimum Distribution for each IRA account, as applicable, but not including tax reporting to the IRS;
6. Providing telephone support to ICC to enable ICC to answer Certificate Owners' questions about their GIE benefit, including Retirement Income Base; Retirement Income Amount, and the GIE Fee on Business Days during the regular business hours of PHL Variable;
7. Drafting and sending the following documents/correspondence to Certificate Owners:
a. Welcome Letter and Certificate;
b. GIE Retirement Income Base /Retirement Income Amount Adjustment Notice or similar notice, due to a withdrawal, contribution or reaching retirement income date;
c. GIE Fee Deduction Notice or similar notice, sent quarterly to confirm the GIE Fee deduction;
d. January 1 Letter, with the new Retirement Income Amount for the year; e. GIE Termination Notice or similar notice; and
8. Correspondence after the account value reaches zero;
9. Sending ICC a report showing any investments in an ICC Account that are not invested in accordance with the ICC models, as necessary;
10. Providing ICC with a quarterly data file containing Certificate Owner data, if requested in writing by ICC in order for ICAS to reconcile data maintained by PHL Variable vs. ICAS. ICC shall notify PHL Variable of any discrepancies identified;
11. Notifying ICAS, thirty [30] calendar days in advance of the anniversary date for each Certificate, of fee information relating to the Annual Optional Increase; Correcting Certificate Owner file data upon notification of an incorrect Certificate termination by ICC using current account values; and
12. Working with ICC on manual corrections.
B. All information provided shall be in form and content mutually acceptable to the Parties
st
EXHIBIT B TO THE STRATEGIC ALLIANCE AGREEMENT
INVESTORS CAPITAL SERVICES
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A. ICCS shall, or shall cause one or more of its Affiliates, to:
1. Notify PHL Variable if a Certificate Owner has changed to a non-GIE eligible investment model and has thereby terminated the GIE;
2. Notify PHL Variable of the amount of non-cash assets transferred into an ICC Account that are in non-conformance to the model asset allocation in the daily transmission;
3. Notify PHL Variable of or errors and corrections relating to a Certificate Owner's additional contributions and withdrawals; 4. For new Certificates, send ICC Account assets and values electronically to PHL Variable on the certificate effective date;
5. If ICAS becomes aware of any material pricing errors, notify PHL Variable of such errors;
6. On each Business Day, send PHL Variable ICC Account assets, values, and selected transactions electronically;
7. ICAS shall provide PHL Variable with a quarterly data file containing Certificate Owner data, if requested in writing by PHL Variable in order for PHL Variable to reconcile data maintained by PHL Variable. PHL Variable shall notify ICAS of any discrepancies identified;
8. Work with PHL Variable on manual corrections; and
9. Debit the GIE Fee at inception and quarterly, in advance, and remit the fee to PHL Variable.
10. Notify PHL Variable if a Certificate Owner has terminated the GIE;
11. Notify PHL Variable of the divorce of Certificate Owners promptly after such notification is received by ICC or ICAS;
12. Send PHL Variable a copy of Certificate Owners' divorce decrees promptly after such decrees are received by ICC or ICAS; 13. Notify PHL Variable of the death of a Certificate Owner promptly after such notification is received by ICC or ICAS;
14. Send PHL Variable a copy of the deceased Certificate Owner's death certificate promptly after the death certificate is received by ICC or ICAS;
15. Verify that each Application is completed;
16. Send the completed Application to PHL Variable; and
17. Notify PHL Variable if ICC becomes aware of an erroneous termination of a GIE.
B. All information provided shall be in form and content mutually acceptable to the Parties
EXHIBIT C
TRADEMARK LICENSE TERMS
The following terms and conditions apply to each License of Trademarks pursuant to Section 9.02 of the Agreement.
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1. LIMITED LICENSE: Nothing in the Agreement or this Exhibit shall be construed to grant Licensee any rights or license to any trademark, trade name, certification mark, service mark, domain name, product name, logo, patent, technical information, or copyright of Licensor other than as specified herein. All rights not specifically granted to Licensee are reserved to Licensor.
a) Use: Licensor reserves the right as owner of the Trademarks to specify all aspects of use of the Trademarks, including but not limited to, the manner, place, type, form, layout, design, channels of trade, channels of distribution, and media of or for such use, on or in connection with, all displays, advertising, labels, literature, Internet sites, sales promotion materials, and all other forms of use of the Trademarks. All use of the licensed Trademarks shall inure to the benefit of Licensor. Licensee shall comply with any specific trademark use rules as may be referenced in any of the Exhibits, or provided to Licensee, which may be amended or revised by Licensor from time to time, upon written notice.
b) Acknowledgment: Licensee hereby acknowledges the validity of Licensor's Trademarks and Licensor's exclusive right, title and interest in and to the Trademarks. As requested by Licensor, Licensee shall employ identifying symbols and/or words in connection with its use of the Trademarks. Licensee shall cooperate with Licensor in taking all appropriate measures for the protection of the Trademarks, and shall faithfully observe and execute the requirements, procedures, and directions of Licensor with respect to the use and protection of the Trademarks. Licensee shall not, during the term of this Agreement, or thereafter:
(1) do or permit to be done any act or thing which prejudices, infringes or impairs the rights of Licensor with respect to the Trademarks;
(2) represent that it has any right, title, or interest in or to the Trademarks, other than the limited license granted hereunder, or in any registration therefore;
(3) use, register or attempt to register any trademarks, trade names, logos, domain names, metatags, meta descriptors, or electronic mail (e-mail) addresses, server names, search-engine markers, that are identical to, or confusingly similar to the Trademarks or any other trademarks, trade names or domain names of Licensor or any of its subsidiaries or affiliated companies;
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(4) do anything or produce any goods in connection with the Trademarks that damages or reflects adversely upon Licensor, its subsidiaries or affiliated companies or any of their trademarks, trade names or domain names; and
(5) continue any use or action in relation to or in connection with the Trademarks or this Agreement if objected to by Licensor.
c) Goodwill: Licensee recognizes the value of the reputation and goodwill associated with the Trademarks, acknowledges that the Trademarks have acquired secondary meaning, and that all related rights and goodwill belong exclusively to Licensor.
d) Art Work: All art and design or lay-out work that contains, is derived from or used with the Trademarks, shall be solely owned by Licensor. Licensee shall not obtain, attempt to obtain or claim any copyright or trademark rights therein, and upon request, Licensee shall assign same to Licensor.
e) Infringement Action: Licensor shall have the sole right to determine the appropriate action to be taken against any infringement, imitation, or unauthorized use of the Trademarks including having the sole discretion to settle any claims or any controversy arising out of any such claims. Licensee shall provide Licensor with such reasonable assistance as Licensor may require in obtaining any protection of Licensor's rights to the Trademarks at no expense to Licensor. Licensee shall not have any rights or claim against Licensor for damages or otherwise arising from any determination by Licensor to act or not to act with respect to any alleged infringement, imitation or unauthorized use by others, and any such determination by Licensor shall not affect the validity or enforceability of this Agreement. Any and all damages and settlements recovered arising from any action or proceeding shall belong solely and exclusively to Licensor.
f) Assignment to LICENSOR: Upon request, Licensee shall transfer to Licensor any rights which accrue to Licensee arising from its use of the Trademarks or this Agreement.
2. QUALITY STANDARDS, INSPECTION, AND TESTING: So that the value of the goodwill and reputation associated with the Trademarks will not be diminished, Licensee shall have an obligation to ensure that all materials on which the Trademarks are used shall be of at least the same uniform high quality (i) as may be approved by Licensor hereunder; or (ii) as specified in quality standards provided by Licensor hereunder, as the case may be. To monitor for Licensee's adherence to such obligations, Licensor shall have the right to inspect such materials from time to time through duly authorized representatives. Materials not meeting the quality or other requirements set forth in this Agreement shall not be in any way promoted in connection with the Trademarks, and all references to the Trademarks on labels, product literature, promotional material, etc., shall be removed at Licensee's expense.
" ® is a registered Trademark of [Licensor] and is used under license to [Licensee]."
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3. LICENSING NOTICE: Licensee shall include a notice on all labeling, advertising, literature, Internet sites, and sales promotional materials that the Trademarks are licensed from Licensor. The notice shall be as follows or as otherwise specified by Licensor:
4. NO CONSEQUENTIAL DAMAGES, ETC.: IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, OR ANY SIMILAR DAMAGES WHETHER OR NOT CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF SUCH PARTY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN RELATION TO, ARISING OUT OF OR IN CONNECTION WITH THIS EXHIBIT OR THE TRADEMARKS.
5. SUPPLEMENTAL PROVISIONS: If any supplemental provisions are made a part of the Agreement or this Exhibit, they are set forth in Annex A to this Exhibit.
6. SURVIVAL: Notwithstanding termination of the Agreement, Sections 1(a)-1(f) and 4-6 of this Exhibit shall survive termination of the Agreement.
Question:
Highlight the parts (if any) of this contract related to "No-Solicit Of Customers" that should be reviewed by a lawyer. Details: Is a party restricted from contracting or soliciting customers or partners of the counterparty, whether during the contract or after the contract ends (or both)? | During the term hereof and for a period of two years following termination, none of the PHL Parties, any of their Affiliates, or any of their respective officers, directors, employees, agents, or representatives, shall, without the prior written approval of ICC, knowingly and intentionally market any | Given the context, answer the question that follows |
The words “execute,” “execution,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including without limitation Assignment and Assumptions, amendments or other modifications, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Agent pursuant to procedures approved by it; provided further without limiting the foregoing, upon the request of the Agent, any electronic signature shall be promptly followed by such manually executed counterpart. | electronic execution of assignments | Given the provision, provide with the correct label for the given provision |
The Borrower shall repay the outstanding principal amount of the Loan, together with accrued but unpaid interest thereon and any fees and other amounts owing to any Creditor on the Final Payment Date. | maturity | Given the provision, provide with the correct label for the given provision |
The Company agrees not to make, verify or otherwise support any public or official statement, written or verbal, in any forum or media, or take any action in disparagement of me, including but not limited to negative references to me or my levels of competency or aptitudes. | non-disparagement | Given the provision, provide with the correct label for the given provision |
Each committee shall determine its own time and manner of conducting its meetings; the presence of a majority of the members of the committee shall constitute a quorum; and the vote of a majority of the members of a committee present at a meeting at which a quorum is present shall be the act of the committee. | committee procedures | Given the provision, provide with the correct label for the given provision |
All of the issued and outstanding capital stock of the Company was duly authorized, validly issued and is fully paid and nonassessable. | capitalization | Given the provision, provide with the correct label for the given provision |
The Company has no Knowledge of any organizational effort presently being made or threatened by or on behalf of any labor union with respect to the employees of the Company or its subsidiaries. | employees | Given the provision, provide with the correct label for the given provision |
In the event of payment under this Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who, at the request and expense of the Company, shall execute all papers required and shall do everything that may be reasonably necessary to secure such rights, including the execution of such documents necessary to enable the Company effectively to bring suit to enforce such rights. | subrogation | Given the provision, provide with the correct label for the given provision |
Any payment not made within ten (10) business days after it is due in accordance with this Agreement shall thereafter bear interest, compounded annually, at the prime rate in effect from time to time at Citibank, N.A., or any successor thereto. | default in payment | Given the provision, provide with the correct label for the given provision |
Upon the occurrence of the Minimum Financial Milestone Event (as defined below), the Executive shall be paid an annual salary in the amount of $240,000, which shall be payable in accordance with the then-current payroll schedule of the Company (the “ Base Salary ”), less all applicable taxes and withholdings; provided, however, that the Executive shall be paid minimum wage in accordance with applicable state law until such time as the Minimum Financial Milestone Event has occurred. | base salary | Given the provision, provide with the correct label for the given provision |
Any payments not made when due will bear interest at the lower of (a) the *** or (b) the maximum rate permitted by law. | interests | Given the provision, provide with the correct label for the given provision |
In addition, the Loan Parties, Administrative Agent, the Lenders and the L/C Issuers shall treat each Person whose name is recorded in the Register as a Lender or L/C Issuer, as applicable, for all purposes of this Agreement. | prima facie evidence | Given the provision, provide with the correct label for the given provision |
Any Conversions made following a judgment or arbitration award shall be made pursuant to the following formula: the amount of the judgment or arbitration award being converted divided by 80% of the lowest Closing Bid Price in the ten (10) Trading Days immediately preceding the date of Conversion. | remedies | Given the provision, provide with the correct label for the given provision |
Other than any interest earned on the investment of such deposits, which investments shall be made at the option and sole discretion of the Administrative Agent and at the Borrower’s risk and expense, such deposits shall not bear interest. | cash collateralization | Given the provision, provide with the correct label for the given provision |
Tenant shall indemnify and hold Landlord harmless from and against any claim or claims for brokerage or other commissions relating to this Amendment asserted by any broker, agent or finder engaged by Tenant or with whom Tenant has dealt. | brokerage | Given the provision, provide with the correct label for the given provision |
Without the prior consent of Lender, no Advance may be used, in whole or in part, for Capital Expenditures in excess of $100,000 per annum. | use of proceeds | Given the provision, provide with the correct label for the given provision |
The Company and the Holder, by accepting this Note, irrevocably waive any and all rights that each may have to a trial by jury in any action, proceeding or claim of any nature relating to this Note, any documents executed in connection with this Note or any transaction contemplated in any of such documents. | waiver of jury trials | Given the provision, provide with the correct label for the given provision |
AstraZeneca shall conduct all Development activities in accordance with the Development Plans, Applicable Law and GCP. | responsibility | Given the provision, provide with the correct label for the given provision |
No such assignment shall be made (A) to the Parent Borrower or any of the Parent Borrower's Affiliates, (B) [ reserved ] or (C) to a natural person. | no assignment to certain persons | Given the provision, provide with the correct label for the given provision |
Accordingly, each of the Buyer and each Seller agree (i) to perform all of its obligations in respect of each Transaction hereunder, and that a default in the performance of any such obligations shall constitute a default by it in respect of all Transactions hereunder, (ii) that each of them shall be entitled to set off claims and apply property held by them in respect of any Transaction against obligations owing to them in respect of any other Transaction hereunder; (iii) that payments, deliveries, and other transfers made by either of them in respect of any Transaction shall be deemed to have been made in consideration of payments, deliveries, and other transfers in respect of any other Transactions hereunder, and the obligations to make any such payments, deliveries, and other transfers may be applied against each other and netted and (iv) to promptly provide notice to the other after any such set off or application. | single agreement | Given the provision, provide with the correct label for the given provision |
Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. | notices | Given the provision, provide with the correct label for the given provision |
If the Company gives notice to Executive pursuant to Section 1.1 that the Term will not be renewed, any termination of Executive’s employment by the Company (except if for Cause) or by Executive occurring on or after expiration of the Term shall be treated as a Retirement. | retirements | Given the provision, provide with the correct label for the given provision |
The conversion price per share of Pubco Common Stock shall be $0.665 or such other amount that on conversion upon the Pubco Merger will yield approximately 3.43% of the then outstanding Pubco Common Stock to the Holder. | mandatory conversions | Given the provision, provide with the correct label for the given provision |
Each undersigned lender other than the lender listed on Schedule I hereto (such lender, the “ Non-Extending Lender ” and each other lender party hereto, an “ Extending Lender ” and together, the “ Extending Lenders ”) hereby agrees to amend the Credit Agreement to extend, effective on the Amendment Effective Date, the Termination Date under the Credit Agreement in respect of such Extending Lender’s Commitment for one year to December 7, 2023 and by their acceptance hereof the Borrowers hereby confirm that the conditions set forth in Section 2.19(b)(i) and (ii) of the Credit Agreement are satisfied as to such extension. | extensions | Given the provision, provide with the correct label for the given provision |
On the Separation Date, the vesting and exercisability of all of Executive’s outstanding options to purchase the Company’s common stock issued pursuant to any equity incentive plan of the Company will be accelerated such that the options will be fully vested as of the Separation Date, and shall remain exercisable pursuant to the terms thereof until either (i) the twenty-four (24) month anniversary of the Separation Date, or (ii) the stated expiration date of the applicable option, whichever is earlier in time, at which time all of Executive’s unexercised options will expire and terminate. | stock options | Given the provision, provide with the correct label for the given provision |
Under no circumstances shall the interest rate and other charges hereunder exceed the highest rate permissible under any law which a court of competent jurisdiction shall, in a final determination, deem applicable hereto. | maximum interest rates | Given the provision, provide with the correct label for the given provision |
On each Closing Date, (a) the Company and the Placement Agent shall instruct the Escrow Agent to deliver, in immediately available funds, the Escrow Amount constituting the applicable Purchase Price as follows: (1) to the Placement Agent, the fees and reimbursable expenses payable to the Placement Agent (which fees and expenses shall be set forth in such instructions), and (2) the balance of the applicable Purchase Price to the Company, (b) the Company shall irrevocably instruct the Transfer Agent to issue to each Purchaser the Shares in book entry form in such name as such Purchaser may designate in an amount equal to the number of Common Shares and Preferred Shares such Purchaser is purchasing in such Closing, as identified to it by the Company in writing, which (i) for the Initial Closing, shall be calculated based on such Purchaser’s pro rata portion of the Initial Closing Amount, and (ii) for the Second Closing, shall be calculated based on such Purchaser’s pro rata portion of the Second Closing Amount, within three (3) Trading Days after the applicable Closing, and (c) the Company shall deliver to each Purchaser one or more Warrants, free and clear of all restrictive and other legends (except as expressly provided in Section 4.1(b) hereof), evidencing the number of Warrants such Purchaser is entitled to purchase in such Closing, as identified to it by the Company in writing, which (i) for the Initial Closing, shall be calculated based on such Purchaser’s pro rata portion of the Initial Closing Amount, and (ii) for the Second Closing, shall be calculated based on such Purchaser’s pro rata portion of the Second Closing Amount, within three (3) Trading Days after the applicable Closing. | form of payments | Given the provision, provide with the correct label for the given provision |
The entries in each Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. | participations | Given the provision, provide with the correct label for the given provision |
Any notice to a party to this Agreement shall be in writing and sent to the respective addresses set forth in the introductory paragraph of this Agreement (or such other address as a party shall designate in writing) by certified mail, return receipt requested, or by nationally recognized overnight courier. | notices | Given the provision, provide with the correct label for the given provision |
Investor’s principal place of business is correctly set forth in Section 11.7 hereof. | principal place of business | Given the provision, provide with the correct label for the given provision |
Descriptive headings of the several sections of this Amendment are inserted for convenience only and shall not control or affect the meaning or construction of any of the provisions of this Amendment. | descriptive headings | Given the provision, provide with the correct label for the given provision |
No such rescission or annulment shall affect any subsequent Event of Default or impair any right consequent thereon. | remedies upon event of default | Given the provision, provide with the correct label for the given provision |
Neither the Administrative Agent nor any Lender undertakes any responsibility to Borrower to review or inform Borrower of any matter in connection with any phase of Borrower’s business or operations. | nonliability of lenders | Given the provision, provide with the correct label for the given provision |
In the event that the Executive becomes an employee of the Company on any date other than February 4, 2015, then the actual date of employment shall be considered the Employment Date hereunder. | employment | Given the provision, provide with the correct label for the given provision |
The Borrower shall notify the Administrative Agent and each Lender, as soon as possible and in any event within five (5) Business Days, after the Borrower receives notice or obtains knowledge thereof, of any settlement of, judgment (including a judgment with respect to the liability phase of a bifurcated trial) in or commencement of any labor controversy, litigation, action, suit or proceeding before any court or governmental department, commission, board, bureau, agency or instrumentality, domestic or foreign, affecting the Collateral, the Transaction Documents, the Collateral Agent’s security interest in the Collateral, or the Borrower. | notice of proceedings | Given the provision, provide with the correct label for the given provision |
Anything herein to the contrary notwithstanding, none of the Syndication Agents, the Documentation Agents or Arrangers listed on the cover page hereof or the Managing Agents or any additional titled agents which may be added thereto from time to time shall have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder. | no other duties | Given the provision, provide with the correct label for the given provision |
Executive shall have the right to terminate her employment hereunder by providing the Company with a notice of termination at least thirty (30) days prior to such termination. | resignation by executive | Given the provision, provide with the correct label for the given provision |
The Servicer covenants and agrees, in servicing the RRB Property, to comply in all material respects with all laws applicable to, and binding upon, the Servicer and relating to such RRB Property the noncompliance with which would have a material adverse effect on the value of the RRB Property; provided , however , that the foregoing is not intended to, and shall not, impose any liability on the Servicer for noncompliance with any law that the Servicer is contesting in good faith in accordance with its customary standards and procedures. | compliance with applicable laws | Given the provision, provide with the correct label for the given provision |
Effective as of the Execution Date, executed copies of this Agreement and the Binding LOI, the Existing Note and the Exchange Note, with irrevocable transfer agent instructions, executed by the Company shall be delivered to Austin Legal Group, APC (the “ Escrow Agent ”) for possession pursuant to the Binding LOI, and upon successful completion of the conditions contained in the Binding LOI, the Escrow Agent shall promptly release the Exchange Note to Investor, and the Parties shall agree that the Existing Note is replaced by the Exchange Note and the Existing Note shall be cancelled and of no further force or effect. | escrows | Given the provision, provide with the correct label for the given provision |
Subject to the following, Borrower and Leasehold Pledgor shall promptly discharge any Lien or charge against any of the Collateral or Individual Properties which is not a Permitted Encumbrance nor a Permitted Encumbrance (Mortgage Loan) nor otherwise expressly permitted hereunder. | liens | Given the provision, provide with the correct label for the given provision |