CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT
Exhibit 10.19
LETTER AGREEMENT DCT-007/2003
INDEX
1 -- START-UP TEAM:................................................... 1
2 -- AEROCHAIN........................................................ 2
3 -- **Material Redacted**............................................ 3
4 -- **Material Redacted**............................................ 3
5 -- SPARE PARTS CREDIT............................................... 3
6 -- **Material Redacted**............................................ 3
7 -- AIRCRAFT CONVERSION.............................................. 3
8 -- ESCALATION CAP................................................... 3
9 -- **Material Redacted**............................................ 3
10 -- COMPUTER BASED TRAINING......................................... 3
11 - **Material Redacted**........................................... 3
12 -- APPLICABLE LAW.................................................. 3
13 -- JURISDICTION.................................................... 3
14 -- CONFIDENTIALITY................................................. 4
15 -- SEVERABILITY.................................................... 4
16 -- NON-WAIVER...................................................... 4
17 -- NEGOTIATED AGREEMENT............................................ 4
18 -- COUNTERPARTS.................................................... 4
EXHIBITS:
"1" - SPECIAL INSURANCE CLAUSES
"2" - **Material Redacted**
"3A" - **Material Redacted**
"3B" - **Material Redacted**
This Letter Agreement DCT-007/2003 ("Agreement" or "Letter Agreement") dated May
__, 2003 is an agreement between Regional Aircraft Holdings Ltd. ("Buyer") with
its address c/o Galindo, Arias y Lopez, Avenida Federico Boyd Numero 51 Piso 11,
Panama, Rep of Panama, and EMBRAER - Empresa Brasileira de Aeronautica S.A.
("Embraer" or "Embraer-Brazil"), with its principal place of business at Sao
Jose dos Campos, SP, Brazil (collectively the "Parties"), relating to Purchase
Agreement DCT-006/2003 (the "Purchase Agreement") dated as of May __, 2003.
This Letter Agreement constitutes an amendment, supplement and modification of
the Purchase Agreement as it sets forth additional agreements of the Parties
with respect to the matters set forth therein. All terms defined in the Purchase
Agreement shall have the same meaning when used herein, and in case of any
conflict between this Letter Agreement and the Purchase Agreement, this Letter
Agreement shall prevail.
WHEREAS:
a) The Parties have entered into the Purchase Agreement, pursuant to, and
subject to the terms and conditions of, which Buyer shall buy and Embraer
shall sell ten (10) Firm Aircraft and up to twenty (20) Option Aircraft.
b) The Parties wish to set forth the additional agreements of the Parties
with respect to certain matters related to the purchase of the above
referenced aircraft.
NOW, THEREFORE, for good and valuable consideration, the Parties agree as
follows:
1 -- START-UP TEAM:
Embraer shall provide a start-up team to take place at the initial line
operation of the first Aircraft, composed of the following individuals:
- **Material Redacted** for 30 **Material Redacted** days **Material
Redacted**.
- **Material Redacted** for **Material Redacted** days.
The sole purpose of these specialists is to advise and assist with Buyer's
start-up operations of the Aircraft, making **Material Redacted** familiar
with the operation and maintenance of the Aircraft. Embraer shall at its
sole criteria indicate the individuals that will compose the start-up
team, and Embraer shall be able to replace at any time any of such
individuals **Material Redacted**. The start-up team is in addition to the
pilot and mechanic training, and to the Field Support Representative
specified in Article 2.3.2 of Attachment B to the Purchase Agreement.
Embraer **Material Redacted** shall not be authorized to perform any
direct flight or maintenance services on Buyer's Aircraft.
Without a previous written authorization from Embraer, an Embraer's
**Material Redacted** shall not **Material Redacted**. In case Buyer
obtains such Embraer's previous authorization, Buyer shall include Embraer
as additional insured in the Comprehensive Airline Liability insurance
policies carried by Buyer, without recourse against Embraer for any
failure, act or omission of Embraer's pilots or mechanics while rendering
the services set forth in this Paragraph, in such a manner as to
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cover any and all risks arising from or in any way connected with such
services. Buyer shall also supply Embraer with a copy of the endorsements
to the insurance policies above mentioned, in accordance with the clauses
contained in Exhibit "1" to this Agreement, within **Material Redacted**
prior to the date on **Material Redacted** as indicated above. For the
avoidance of doubt, the indemnity provided in Article 22 of the Purchase
Agreement shall apply to the services set forth in this Section 1.
Embraer reserves the right to halt the services mentioned in this Section
1, should any of the following situations occur at Buyer's base: a) there
is a labor dispute or work stoppage in progress; b) war or war like
operations, riots or insurrections; c) any conditions which is dangerous
to the safety or health of Embraer's employee; or d) the government of
Buyer's country refuses permission to Embraer's employee to enter the
country.
At no charge to Embraer, Buyer shall provide the start-up team members
with communication facilities (telephone, facsimile) as well as office
space and facilities at Buyer's main base, and Buyer shall also (a)
arrange all necessary work permits and airport security clearances
required for Embraer's team members, to permit the accomplishment of the
services mentioned in this Article 1, in due time; and (b) obtain all
necessary custom clearances both to enter and depart from Buyer's country
for Embraer's team members and their personal belongings and professional
tools.
The start-up team members shall be allowed exclusively in those areas
related to the subject matter hereof and Embraer agrees to hold harmless
Buyer from and against all and any kind of liabilities in respect of such
team members to the extent permitted by law, **Material Redacted**. Buyer
shall bear all **Material Redacted**.
At no charge to Embraer, Buyer shall provide **Material Redacted**.
2 -- AEROCHAIN
Aerochain (www.aerochain.com) is an electronic marketplace that provides
value-added after-sales services and extended supply chain collaboration,
focused on the aerospace community. Aerochain site is composed of
following sections:
- Community: A set of tools to promote interactivity among users,
through services as Alerts and Newsletters.
- Trading: Buy & Sell solution for suppliers and customers to realize
reduction in maintenance, material and operation cost. Embraer
operators can access the Material Support Back Office System, and
get information regarding sales of spare parts.
- Supply Chain: Collaborative planning function to provide means to
quickly and interactively develop inventory plans based on
information shared by trading partners.
- Maintenance & Operations: Tools for maintenance management and fleet
configuration tracking to simplify the administration of either a
large or small fleet.
- Technical Services: Here is available the Embraer customer service
support
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previously found at CIS (Customer Integration System). Embraer
Operators will find useful information on airworthiness and flight
safety, technical support, operations, reliability, maintenance
cost, maintenance planning and training. A Technical Publications
Library is also available to search, view and download, conditioned
to Buyer having a Technical Publications Revision Service contracted
with Embraer. The use of publications obtained from this site is
subject to prior approval of the relevant airworthiness authorities.
Access to these features is conditioned to the execution of a User
Agreement. If the User Agreement is not signed by Buyer and Aerochain by
the date **Material Redacted** prior to the first Firm Aircraft
Contractual Delivery Date **Material Redacted**, Embraer will cause
Aerochain to provide Buyer **Material Redacted** access to the Technical
Service module (previously named CIS) for the **Material Redacted**
following**Material Redacted**, provided that **Material Redacted**.
3 -- **MATERIAL REDACTED**
4 -- **MATERIAL REDACTED**
5 -- SPARE PARTS CREDIT
Embraer will provide Buyer a spare parts credit of USD**Material
Redacted** per each of the Firm Aircraft **Material Redacted** effectively
delivered to Buyer. The Spare parts credit shall be used by Buyer for the
purchase of Embraer-made spare parts and ground support equipment from the
Embraer - Brazil spare parts facility (except for engines, engine related
parts and APU), on a mutually agreed delivery schedule. **Material
Redacted** To be eligible to utilize such credit, Buyer shall not be in
default in respect of any payment that has become due and payable by Buyer
to Embraer or an affiliate of Embraer (as per the terms of the relevant
agreement or invoice). Spare parts credits made available to Buyer will
expire, if not used, **Material Redacted** year from **Material
Redacted**.
6 -- **MATERIAL REDACTED**
7 -- **MATERIAL REDACTED**
8 -- **MATERIAL REDACTED**
9 -- **MATERIAL REDACTED**
10 -- **MATERIAL REDACTED**
11 -- **MATERIAL REDACTED**
12 -- APPLICABLE LAW
This Agreement shall be construed in accordance with and its performance
shall be governed by the laws of the State of New York, USA without regard
to any conflict of law rules other than General Obligations Law 5-1401 and
5-1402.
13 -- JURISDICTION
All disputes arising in connection with this Agreement shall be finally
settled in the courts of the United States District Court for the Southern
District of New York
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located in the county of New York, provided that if such court lacks
jurisdiction, disputes shall be resolved in the state courts for the state
of New York. The Parties hereby waive any other court of Jurisdiction that
may be competent for settlement of disputes arising from this Agreement.
**Material Redacted**
14 -- CONFIDENTIALITY
Notwithstanding anything to the contrary in the Purchase Agreement,
neither Buyer nor Embraer shall disclose the terms of this Agreement
except as needed to its officers, employees, auditors, insurers (brokers)
and legal advisors and except (a) as required by law or legal process or
(b) to a prospective financing party in connection with the financing of
Aircraft (limited to assignable provisions), or (c) with the prior written
consent of the other party. In addition, Buyer and Embraer may disclose
the terms of this Agreement to shareholders who hold more than ten percent
(10%) of their respective common shares, provided that (i) such
shareholders are not, in the case of Buyer, competitors or affiliates of
competitors of Embraer in the business of manufacturing aircraft, or in
the case of Embraer, competitors or affiliates of or affiliates of
competitors of Compania Panamena de Aviacion, S.A. in the business of a
scheduled airline, and (ii) such shareholders, to the extent not officers
of a Party shall have executed a confidentiality agreement with the other
Party. Without limiting the foregoing, in the event either Party is
legally required to disclose the terms of this Agreement, each Party
agrees to exert its best efforts to request confidential treatment of the
Articles and conditions of this Agreement relevantly designated by the
other as confidential.
15 -- SEVERABILITY
If any provision or part of a provision of this Letter Agreement or any of
the Attachments shall be, or be found by any authority or court of
competent jurisdiction to be, illegal, invalid or unenforceable, such
illegality, invalidity or unenforceability shall not affect the other
provisions or parts of such provisions of this Letter Agreement, all of
which shall remain in full force and effect.
16 -- NON-WAIVER
Except as otherwise specifically provided to the contrary in this
Agreement, any Party's refrain from exercising any claim or remedy
provided for herein shall not be deemed a waiver of such claim or remedy,
and shall not relieve the other Party from the performance of such
obligation at any subsequent time or from the performance of any of its
other obligations hereunder.
17 -- NEGOTIATED AGREEMENT
Buyer and Embraer agree that this Agreement has been the subject of
discussion and negotiation and is fully understood by the Parties, and
that the rights, obligations and other mutual agreements of the Parties
contained in this Agreement are the result of such complete discussion and
negotiation between the Parties.
18 -- COUNTERPARTS
This Agreement may be signed by the Parties in any number of separate
counterparts with the same effect as if the signatures thereto and hereto
were upon
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the same instrument and all of which when taken together shall constitute
one and the same instrument.
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EXHIBIT "1" TO LETTER AGREEMENT DCT-0072003
SPECIAL INSURANCE CLAUSES
Buyer shall include the following endorsements in its Hull and Comprehensive
Airline Liability insurance policies:
1. Hull All Risks Policy, including War, Hi-jacking and Other Perils.
"It is hereby understood and agreed that Insurers agree to waive rights of
subrogation against Embraer with regard to the insured Aircraft.
This endorsement shall not operate to prejudice Insurer's rights of
recourse against Embraer - Empresa Brasileira de Aeronautica S.A. as
manufacturer, repairer, supplier or servicing agent where such right of
recourse would have existed had this endorsement not been effected under
this Policy."
2. Comprehensive Airline Liability Policy, based on the AVN53 - Additional
Insured Endorsement
"It is hereby understood and agreed that Embraer - Empresa Brasileira de
Aeronautica S.A. including any business entity owned by or subsidiaries to
Embraer, and all partners, executive officers, employees and stock
holders, are added as Additional Insureds only with respect to the
operation of the Aircraft by the Named Insured.
This endorsement does not provide coverage for any Additional Insured with
respect to claims arising out of its legal liability as manufacturer,
repairer, supplier or servicing agent where such right of recourse would
have existed had this endorsement not been effected under this Policy."
3. Notwithstanding anything to the contrary as specified in the Policy or any
endorsement thereof, the coverages stated in paragraphs 1 and 2 above,
shall not be cancelled or modified by the Insurer, without 48 hours
advance written notice to Embraer to such effect.
This Endorsement attaches to and forms part of Policy No. ______________, and is
effective from the ____ day of ______, 200_."
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EXHIBIT "2" - EMBRAER 170, EMBRAER 175, AND EMBRAER 195 SPECIFIC
CONFIGURATION, FINISHING AND REGISTRATION MARKS
**Material Redacted**
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