<PAGE> 1
Form 10-Q
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
[ X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended June 30, 1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from ___________ to __________
Commission File Number 333-13071
ASA Holdings, Inc.
------------------
(Exact name of registrant as specified in its charter)
Georgia 58-2258221
------- ----------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number )
100 Hartsfield Centre Parkway, Suite 800, Atlanta, Georgia 30354
-------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(404) 766-1400
--------------
(Registrant's telephone number including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days Yes X No
--- ---
As of August 6, 1997 there were 29,809,977 shares of common stock outstanding.
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<PAGE> 2
ASA HOLDINGS, INC.
INDEX
<TABLE>
<CAPTION>
Page No.
<S> <C>
Part I-Financial Information
Item 1. Condensed Consolidated Financial Statements
Balance Sheets- June 30, 1997 and December 31, 1996
Assets 3
Liabilities and Shareholders' Equity 4
Statements of Income- Three months and six months
ended June 30, 1997 and June 30, 1996 5
Statements of Cash Flows- Six months ended
June 30, 1997 and June 30, 1996 6
Notes to Condensed Consolidated Financial Statements 7
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations 8
Part II-Other Information
Item 4. Submission of Matters to a Vote of Security Holders 15
Item 6. Exhibits and Reports on Form 8-K 15
Signatures 17
Exhibits Index 18
Exhibits
10(a) Bombardier Purchase Agreement No. P.A.-0372 and related Letter Agreements
11 Statement Re: Computation of Per Share Earnings
27 Financial Data Schedule (for SEC use only)
</TABLE>
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<PAGE> 3
Part I- Financial Information
Item 1. Condensed Consolidated Financial Statements
ASA HOLDINGS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands of Dollars)
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
-------- --------
(unaudited) (audited)
<S> <C> <C>
Assets
Current Assets
Cash and cash equivalents $110,544 $137,469
Marketable securities 61,304 52,653
Accounts receivable 6,722 6,553
Expendable parts 6,051 8,145
Other current assets 2,464 2,904
-------- --------
187,085 207,724
Property and Equipment
Flight equipment 459,171 456,809
Other property and equipment 15,991 15,515
Advance payments on property and equipment 25,337 137
-------- --------
500,499 472,461
Less accumulated depreciation and amortization 218,096 203,181
-------- --------
282,403 269,280
Other Assets
Long-term investments 16,225 -
Excess of cost over fair value of
tangible assets acquired 2,707 2,760
Other assets 6,501 6,473
-------- --------
25,433 9,233
Total Assets $494,921 $486,237
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
3
<PAGE> 4
ASA HOLDINGS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(In Thousands of Dollars)
<TABLE>
<CAPTION>
June 30, December 31,
1997 1996
-------- --------
(unaudited) (audited)
<S> <C> <C>
Liabilities and Shareholders' Equity
Current Liabilities
Current portion of long-term debt $ 23,053 $ 25,576
Accounts payable 21,603 18,403
Air traffic liability 1,804 4,346
Accrued compensation and related expenses 9,900 7,286
Accrued interest payable 1,166 1,319
Other accrued expenses 3,139 3,075
Income taxes payable 3,550 -
-------- --------
64,215 60,005
Long-Term Debt 83,507 94,618
Other Non-Current Liabilities 1,929 1,763
Deferred Income Taxes 69,690 69,635
Shareholders' Equity
Common stock, $.10 par value; authorized 150,000,000
shares; issued 29,799,977 at 6/30/97 and 29,993,570 at 12/31/96 2,980 2,999
Retained earnings 272,574 257,219
Unrealized holding gain (loss) on investments 26 (2)
-------- --------
275,580 260,216
-------- --------
Total Liabilities and Shareholders' Equity $494,921 $486,237
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
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<PAGE> 5
ASA HOLDINGS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
(In Thousands Except Share and Per Share Amounts)
(Unaudited)
<TABLE>
<CAPTION>
For The Three Months Ended For The Six Months Ended
June 30, June 30,
------------------------ ---------------------------
1997 1996 1997 1996
<S> <C> <C> <C> <C>
Operating Revenues:
Passenger $ 97,899 $ 102,091 $ 185,630 $ 189,307
Other 1,739 2,147 3,623 4,336
---------- ----------- ---------- ----------
Total Operating Revenues 99,638 104,238 189,253 193,643
Operating Expenses:
Flying operations 22,322 20,976 43,846 41,345
Maintenance 16,658 15,219 35,202 30,507
Passenger service 4,397 4,835 8,818 9,709
Aircraft and traffic servicing 10,607 11,524 21,701 22,514
Reservation, commission and other 10,193 11,212 18,710 20,417
General and administrative 6,669 4,745 9,255 9,417
Depreciation, amortization and obsolescence 7,411 6,750 14,394 13,518
Other 147 154 343 330
---------- ----------- ---------- ----------
Total Operating Expenses 78,404 75,415 152,269 147,757
Income from Operations 21,234 28,823 36,984 45,886
Non-Operating (Income) Expense, net:
Interest income (2,880) (2,612) (5,393) (5,269)
Interest expense 1,090 1,486 2,334 3,053
Other (3) (11) (12) (79)
---------- ----------- ---------- ----------
(1,793) (1,137) (3,071) (2,295)
Income before Income Taxes 23,027 29,960 40,055 48,181
Income Taxes
Current 8,232 11,788 14,511 18,694
Deferred 23 (258) 40 (240)
---------- ----------- ---------- ----------
8,255 11,530 14,551 18,454
Net Income $ 14,772 $ 18,430 $ 25,504 $ 29,727
========== =========== ========== ==========
Net Income per Share $ 0.49 $ 0.59 $ 0.85 $ 0.95
Cash Dividends per Share $ 0.10 $ 0.095 $ 0.20 $ 0.19
Weighted Number of Shares Outstanding 30,004,611 31,325,281 30,017,675 31,407,522
</TABLE>
See notes to condensed consolidated financial statements.
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<PAGE> 6
ASA HOLDINGS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
(In Thousands of Dollars)
(Unaudited)
<TABLE>
<CAPTION>
For The Six Months Ended
June 30,
---------------------------------------
1997 1996
<S> <C> <C>
OPERATING ACTIVITIES
Net Income $ 25,504 $ 29,727
Adjustments to Reconcile Net Income to Net
Cash Provided by Operating Activities:
Depreciation 13,623 13,043
Amortization and provision for obsolescence 771 475
Amortization of engine overhauls 3,635 3,231
Deferred income taxes 55 (384)
Other 120 (363)
Changes in Operating Assets and Liabilities:
Accounts Receivable (229) 2,730
Expendable parts 1,642 (1,322)
Other assets 23 1,862
Accounts payable 3,200 1,992
Other liabilities (2,478) (2,687)
Accrued compensation and related liabilities 2,780 3,811
Accrued interest payable (153) (437)
Income taxes payable 3,550 6,606
-------- --------
NET CASH PROVIDED BY OPERATING ACTIVITIES 52,043 58,284
INVESTING ACTIVITIES
Purchase of Marketable Securities (79,733) (176,356)
Proceeds from Sale of Marketable Securities 71,125 131,939
Proceeds from Disposal of Property and Equipment - 4,845
Purchases of Property and Equipment including
Advance Payments (30,382) (9,412)
Increase in Long-Term Investments (16,225) -
Other 80 414
-------- --------
NET CASH USED IN INVESTING ACTIVITIES (55,135) (48,570)
FINANCING ACTIVITIES
Principal Payments on Long-Term Debt, net (13,634) (15,713)
Dividends Paid (5,983) (5,950)
Acquisition of Treasury Stock (4,216) (11,633)
-------- --------
NET CASH USED IN FINANCING ACTIVITIES (23,833) (33,296)
DECREASE IN CASH AND CASH EQUIVALENTS (26,925) (23,582)
CASH AND CASH EQUIVALENTS AT BEGINNING OF PERIOD 137,469 66,403
-------- --------
CASH AND CASH EQUIVALENTS AT END OF PERIOD $110,544 $ 42,821
======== ========
</TABLE>
See notes to condensed consolidated financial statements.
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<PAGE> 7
ASA HOLDINGS, INC.
Notes to Condensed Consolidated Financial Statements
(Unaudited)
1. In the opinion of management, the accompanying unaudited condensed
consolidated financial statements contain all adjustments necessary to
present fairly the financial position as of June 30, 1997 and results of
operations for the six-month periods ended June 30, 1997 and 1996 and cash
flows for the six-month periods ended June 30, 1997 and 1996. The
accounting adjustments contained in the financial statements are of a
normal recurring nature. Certain information and footnote disclosures
normally included in financial statements prepared in accordance with
generally accepted accounting principles have been condensed or omitted
pursuant to the rules and regulations of the Securities and Exchange
Commission (SEC) for Form 10-Q. It is suggested that these unaudited
condensed consolidated financial statements be read in conjunction with the
audited consolidated financial statements and the notes thereto included in
the 1996 Annual Report on Form 10-K filed by the Company with the SEC under
the Securities Exchange Act of 1934 on March 31, 1997.
2. Results of operations for the six-month periods ended June 30, 1997 and
1996 are not necessarily indicative of the results to be expected for the
year.
3. Earnings per share are based on the weighted average number of common and
common equivalent shares outstanding.
4. Marketable securities, which consist of investments with maturity dates
longer than three months, are reported at fair market value.
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<PAGE> 8
Item 2. Management's Discussion and Analysis of Financial Condition
and Results of Operations
This Item 2 should be read in conjunction with the unaudited condensed
consolidated financial statements included in Item 1 hereto.
Reorganization
ASA Holdings, Inc. (ASA Holdings) is a holding company the principal
assets of which are the shares of its wholly owned subsidiaries Atlantic
Southeast Airlines, Inc. (ASA) and ASA Investments, Inc. (ASA Investments). ASA
Holdings became the parent holding company for ASA and ASA Investments pursuant
to a corporate reorganization which became effective after the close of business
on December 31, 1996 (the Reorganization). ASA Holdings considers the airline
business of ASA to be its only industry segment. There was no significant impact
on the consolidated financial statements as a result of the Reorganization. All
references to the Company contained in this section refer collectively to ASA
and its subsidiary, ASA Investments, for the period ending June 30, 1996, and to
ASA Holdings and its subsidiaries, ASA and ASA Investments, for the period
ending June 30, 1997. All significant intercompany transactions have been
eliminated.
Liquidity and Capital Resources
Working capital decreased to $122.9 million with a current ratio of
2.9:1 at June 30, 1997 compared with working capital of $147.7 million and a
current ratio of 3.5:1 at December 31, 1996. At June 30, 1997, the Company had
$16.2 million of long-term investments which were previously invested in
instruments with short-term maturity. During the second quarter, ASA paid $25
million in pre-delivery deposits on certain Canadair Regional Jet aircraft (CRJ)
which it is acquiring from Bombardier, Inc. (Bombardier) as more fully described
below. Without these two factors, working capital would have been $164.1 million
with a current ratio of 3.6:1 at June 30, 1997. Cash, cash equivalents and
investments in marketable securities decreased by $18.3 million primarily due to
a $30.4 million investment in property and equipment ($25 million of which was
CRJ pre-delivery deposits), $16.2 million of long-term investments, a $13.6
decrease in long-term debt, $6.0 of dividends paid and $4.2 million of treasury
stock purchases, offset by $52.0 million in cash provided by operating
activities.
The Company has an unsecured line of credit totaling $8 million with
one of its banks. As of June 30, 1997, $.7 million of this line was committed to
support a letter of credit. The remainder is available for general working
capital purposes on an as needed basis. As of June 30, 1997, there were no
outstanding amounts against the line of credit.
On April 21, 1997, ASA announced that it had executed an acquisition
agreement with Bombardier for 30 aircraft with options for an additional 60
aircraft. The CRJ is a 50-passenger jet with four-abreast seating
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<PAGE> 9
that ASA will use to promote growth in new markets as well as replace some
turboprop equipment on existing routes. The value of the 30 aircraft, including
spare parts and spare engines, will be approximately $600 million. Delivery of
these aircraft is scheduled to begin during the second half of 1997 at an
anticipated rate of one aircraft per month.
The long-term debt to equity ratio was .30:1 at June 30, 1997 compared
with .36:1 at December 31, 1996. Long-term debt decreased to $83.5 million from
$94.6 million at the end of 1996. The current portion of long-term debt
decreased by $2.5 million from December 31, 1996.
Shareholders' equity per share increased to $9.25 at June 30, 1997 from
$8.68 at the end of 1996. Net worth increased $15.4 million primarily due to net
income of $25.5 million in the first six months of 1997 offset by dividends paid
of $6.0 million and common stock repurchases of $4.2 million. In January 1997,
ASA Holdings announced that its Board of Directors authorized it to repurchase
up to $50.0 million of its common stock on the open market during 1997. The
repurchased shares will be held as treasury stock and used for general corporate
purposes or will be canceled. Repurchases are subject to market conditions.
For the second quarter of 1997, the Board of Directors declared a
quarterly cash dividend of 10 cents per share compared with 9.5 cents per share
for the similar period of 1996.
ASA's pilot and flight attendant work force are represented by unions.
In 1995, collective bargaining agreements with both of these unions became
amendable and are currently being renegotiated. The Railway Labor Act, which
governs labor relations for these unions, contains detailed procedures regarding
negotiation, mediation and arbitration that must be exhausted before work
stoppages can occur once a collective bargaining agreement becomes amendable.
Federal mediation between ASA and the pilots and flight attendants has been
ongoing for approximately one and a half years.
The Company expects to finance its new CRJs as well as other
anticipated capital expenditures through a combination of existing cash
reserves, internally generated funds, and lease and debt financing. With respect
to the CRJs, the Company will utilize manufacturer's assistance and government
loans to the extent possible. Based on information currently available to it,
the Company believes that available resources will be sufficient to fund the
acquisition of the CRJs, other capital expenditures and its existing expenditure
commitments (including current maturities of long-term debt and aircraft lease
payments). The Company believes that financing will be available at acceptable
rates. If the Company is unable to obtain sufficient capital or acceptable
financing terms, it could be required to modify its expansion plans.
New Accounting Standards
In February 1997, the Financial Accounting Standards Board issued a new
accounting pronouncement, Statement of Financial Accounting Standards No. 128,
"Earnings per Share," which will change the current method of
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<PAGE> 10
computing earnings per share. The new standard requires presentation of "basic
earnings per share" and "diluted earnings per share" amounts, as defined.
Statement No. 128 will be effective for the Company's quarter and year ending
December 31, 1997, and upon adoption, all prior-period earnings per share data
presented shall be restated to conform with the provisions of the new
pronouncement. Application earlier than the Company's quarter ending December
31, 1997 is not permitted. Pro forma basic and diluted earnings per share for
the quarters and six months ending June 30, 1997 and 1996 calculated under the
provisions of Statement No. 128 are as follows:
<TABLE>
<CAPTION>
Quarter Ended June 30, Six Months Ended June 30,
1997 1996 1997 1996
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Basic earnings per share $ 0.50 $ 0.59 $ 0.85 $ 0.95
Diluted earnings per share $ 0.49 $ 0.59 $ 0.85 $ 0.95
</TABLE>
Results of Operations
For the three months ended June 30, 1997 and 1996
The Company reported net income for the second quarter of $14.8 million
or $.49 per share on 30.0 million weighted average shares outstanding. In
comparison, net income for the second quarter of 1996 was $18.4 million or $.59
per share on 31.3 million weighted average shares outstanding. The decrease in
the average number of shares outstanding was due to the Company's stock
repurchase programs. Net income for the second quarter of 1997 included an
after-tax expense accrual of $1.6 million or $.05 per share related to the
Company's decision to exercise its option for the early return of all BAe-146
aircraft to their lessor during the fourth quarter of 1997 and first quarter of
1998, as well as after-tax expense of $1.9 million or $.07 per share associated
with the cancellation of the Company's outstanding Stock Appreciation Rights
(SARs) and the adoption of a Non-Qualified Stock Option Plan (Option Plan) which
the shareholders approved on May 21, 1997. The Company has canceled all
outstanding SARs and does not intend to incur any additional SARs expense in the
future. The results for the second quarter of 1996 included an after-tax expense
accrual of $.9 million or $.03 per share associated with the Company's SARs
program.
Total revenues in the second quarter of 1997 were $99.6 million
compared with $104.2 million for the similar period 1996. Factors for the second
quarters of 1997 and 1996 which affect passenger revenue are detailed below:
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<PAGE> 11
<TABLE>
<CAPTION>
Quarter Ended June 30,
1997 1996
---- ----
<S> <C> <C>
Revenue Passenger Miles (000,000) 242.3 238.6
Passengers (000) 992.5 985.7
Load Factor 52.4% 52.5%
Average Passenger Yield 40.4(cent) 42.8(cent)
Average Trip Length 244.2 242.1
</TABLE>
Passenger revenue decreased due to a lower yield per revenue passenger
mile which was primarily caused by the re-imposition of the federal ad valorem
ticket tax in March 1997. The Company was not able to completely pass these
charges on to its customers due to price competition in various markets. All
other factors were essentially constant or higher in the second quarter of 1997
compared with the same period of 1996.
Operating expenses increased 4% to $78.4 million for the quarter ended
June 30, 1997. The Company increased capacity (available seat miles "ASM's") by
2%, and experienced a 2% increase in the cost per ASM flown to 17.0 cents in the
second quarter of 1997 compared with 16.6 cents in the second quarter of 1996.
Excluding (1) pre-tax option compensation/SARs expense of $3.1 million and $1.5
million for the second quarters of 1997 and 1996, respectively and (2) the
pre-tax expense accrual of $2.6 million related to the early return of all
BAe-146 aircraft to their lessor, operating cost per ASM would have been
approximately 15.7 cents and 16.3 cents for the second quarters of 1997 and
1996, respectively.
The following table compares components of operating cost per ASM and
operating expense as a percentage of total operating expense for the three month
periods ended June 30, 1997 and 1996:
<TABLE>
<CAPTION>
Cost per ASM % Operating Cost
Quarter Ended Quarter Ended
June 30, June 30,
-------------------------------------------------------
1997 1996 1997 1996
-------------------------------------------------------
<S> <C> <C> <C> <C>
Labor and related 4.7(cent) 4.4(cent) 27% 26%
Fuel 1.7 1.8 10 11
Direct maintenance 2.8 2.5 17 15
Passenger related 2.1 2.3 12 14
Depreciation and aircraft rent 2.5 2.3 15 14
Other 3.2 3.3 19 20
-------------------------------------------------------
Total operating expense 17.0(cent) 16.6(cent) 100% 100%
</TABLE>
Labor and related costs increased to $21.5 million for the second
quarter of 1997 compared with $19.9 million for the same period in 1996. The
average number of employees grew 3% from 2,394 to 2,472 as of June 30, 1997. As
mentioned above, the Company's shareholders approved the Option Plan on May 21,
1997. SARs expense of $3.1 million was booked for the second quarter
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<PAGE> 12
of 1997 based on the closing price of the Company's stock on May 21, which had
increased 19% since March 31, 1997. The Company canceled all SARs outstanding on
May 21 and options with exercise prices equal to the base prices of the SARs
were issued in exchange. The SARs expense of $3.1 million was reversed upon
cancellation of the SARs, but an equivalent amount of compensation expense
related to the new options issued was recorded due to the one-time isssuance of
options with an exercise price less than the market price of the Company's stock
on May 21. The second quarter of 1996 included a $1.5 million charge to expense
for SARs due to a 10% increase in the Company's stock price. Labor and related
costs without the option compensation/SARs adjustments would have been 4.0 cents
per ASM for both quarters, and 24% and 25% of total operating expenses for the
second quarters of 1997 and 1996, respectively. By replacing the SARs program
with the Option Plan, the Company expects to eliminate the past earnings
volatility that was related to the SARs compensation program.
Direct maintenance expense, excluding labor and related costs,
increased 13% to $13.0 million for the quarter ended June 30, 1997. The higher
expense was primarily due to increased maintenance inpections and overhauls of
time controlled components. As with any air carrier, ASA's fleet of aircraft is
aging and requires more frequent maintenance. The leased BAe-146 jet aircraft
are maintenance mature aircraft that are under maintenance plans. Charges for
the BAe 146 are incurred for each hour that the airframe, engines, landing gear,
etc. are flown, and the charges for these maintenance plans are expensed on a
monthly basis. In addition, direct maintenance expense during the second quarter
of 1997 included the one-time expense accrual for complying with maintenance
return conditions related to the Company's decision to exercise its option for
the early return of all BAe-146 aircraft.
Passenger related expenses decreased $.8 million for the quarter ended
June 30, 1997 compared with the same quarter last year. These expenses, which
include travel agency commissions and reservation fees, were 10% of passenger
revenue for the second quarters of both 1997 and 1996.
Depreciation and aircraft rent increased 8% to $11.6 million for the
quarter ended June 30, 1997. The increase was due primarily to the one-time
expense accrual for the write-off of assets and additional rents related to the
return of the BAe-146 aircraft.
Interest expense decreased by 27% to $1.1 million for the quarter ended
June 30, 1997 compared with the same quarter last year. This decrease was due to
lower floating interest rates and less debt outstanding.
The Company's effective tax rate was lower during the second quarter of
1997 due to a refund of prior years' taxes as a result of favorable resolution
of certain prior year state tax matters.
The break-even load factor increased to 40.3% for the three months
ended June 30, 1997 compared with 37.4% for the same period last year. This
increase was primarily the result of lower revenue as well as higher
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<PAGE> 13
operating expenses and the adjustments for SARs/options and BAe-146 return as
discussed above.
For the six months ended June 30, 1997 and 1996
Total revenues for the six months ended June 30, 1997 decreased 2% to
$189.3 million compared with $193.6 million for the same period of 1996.
Passenger revenue decreased 2% to $185.6 million in the first six months of 1997
primarily due to a 3% decrease in the average yield per passenger mile to 41.6
cents from 43.0 cents. The other factors that impact passenger revenue remained
relatively constant or increased compared with the prior year and are detailed
below along with yield information:
<TABLE>
<CAPTION>
Six Months Ended June 30,
1997 1996
---- ----
<S> <C> <C>
Revenue Passenger Miles (000,000) 446.1 440.0
Passengers (000) 1,829.0 1,822.6
Load Factor 49.8% 49.6%
Average Passenger Yield 41.6(cent) 43.0(cent)
Average Trip Length 243.9 241.4
</TABLE>
The Company's net income for the first six months of 1997 decreased 14%
to $25.5 million or $.85 per share on 30.0 million weighted average shares
outstanding. In comparison, net income for the same period of 1996 was $29.7
million or $.95 per share on 31.4 million weighted average shares outstanding.
The decrease in the average number of shares outstanding was due to the
Company's stock repurchase programs. The financial results for 1997 included a
one-time after-tax accrual of $1.6 million or $.05 per share related to the
Company's decision to exercise its option for the early return of all BAe-146
aircraft to their lessor during the fourth quarter of 1997 and first quarter of
1998, as well as after-tax expense of $1.6 million or $.05 per share associated
with the cancellation of the outstanding SARs and the adoption of the Option
Plan during the second quarter of 1997 as described above. The Company has
canceled all outstanding SARs and does not intend to incur any additional SARs
expense in the future. The results for the six months ending June 30, 1996
included an after-tax accrual of $2.2 million or $.07 per share associated with
the Company's SARs program.
Operating expenses increased 3% during the six month period ended June
30, 1997. The Company increased ASM's by 1% and experienced a 2% increase in the
cost per ASM to 17.0 cents from 16.7 cents. Excluding (1) pre-tax option
compensation/SARs expense of $2.6 million and $3.6 million for the six months
ending June 30, 1997 and 1996, respectively, and (2) the pre-tax expense accrual
of $2.6 million in 1997 related to the early return of all BAe-146 aircraft to
their lessor, operating cost per ASM would have been
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<PAGE> 14
approximately 16.4 and 16.3 cents for 1997 and 1996, respectively.
The following table compares components of operating cost per ASM and
operating expense as a percentage of total operating expense for the six month
periods ended June 30, 1997 and 1996:
<TABLE>
<CAPTION>
Cost per ASM % Operating Cost
Year to Date Year to Date
June 30, June 30,
--------------------------------------------------------
1997 1996 1997 1996
--------------------------------------------------------
<S> <C> <C> <C> <C>
Labor and related 4.4(cent) 4.6(cent) 26% 27%
Fuel 1.8 1.8 11 11
Direct maintenance 3.1 2.6 18 15
Passenger related 2.0 2.1 11 13
Depreciation and aircraft rent 2.5 2.4 15 15
Other 3.2 3.2 19 19
-------------------------------------------------------
Total operating expense 17.0(cent) 16.7(cent) 100% 100%
</TABLE>
Labor and related costs decreased 2% to $39.6 million for the six
months ended June 30, 1997 from $40.3 million for the six months ended June 30,
1996. The average number of employees grew 4% from 2,371 to 2,474 as of June 30,
1997. As mentioned above, the Company's shareholders approved the Option Plan on
May 21, 1997. During the first six months of 1997, SARs expense of $2.6 million
was booked based on the closing price of the Company's stock on May 21, which
had increased 13% since December 31, 1996. The Company canceled all SARs
outstanding on May 21 and options with exercise prices equal to the base prices
of the SARs were issued in exchange. The SARs expense of $2.6 million was
reversed upon cancellation of the SARs but an equivalent amount of compensation
expense related to the new options issued was recorded due to the one-time
issuance of options with an exercise price less than the market price of the
Company's stock on May 21. The six months ending June 30, 1996 included a $3.6
million charge to expense for SARs due to a 31% increase in the Company's stock
price. Labor and related costs without the option/SARs adjustments would have
been the same for the six months ending June 30, 1997 and 1996: 4.1 cents per
ASM and 25% of total operating costs. By replacing the SARs program with the
Option Plan, the Company expects to eliminate the past earnings volatility that
was related to the SARs compensation program.
Direct maintenance cost, excluding labor and related expenses,
increased 20% to $27.5 million for the six months ended June 30, 1997. The
higher expense was primarily due to increased maintenance inpections and
overhauls of time controlled components as described in the above "Results of
Operations for the three months ended June 30, 1997 and 1996". The Company
incurred major periodic inspections on the BAe-146 aircraft during the first
quarter of 1997 that were not required during the same quarter of 1996. In
addition, the second quarter of 1997 included the one-time expense accrual for
complying with maintenance return conditions related to the Company's decision
to exercise its option for the early return of all BAe-146 aircraft.
-14-
<PAGE> 15
Depreciation and aircraft rent increased 5% to $22.6 million for the
six months ended June 30, 1997. This increase was due primarily to the one-time
expense accrual for the write-off of assets and additional rents related to the
return of the BAe-146 aircraft.
Interest expense decreased by 24% to $2.3 million for the six months
ending June 30, 1997 compared with the same period of 1996. This decrease was
due to lower floating interest rates and less debt outstanding.
Part II- Other Information
Item 4. Submission of Matters to a Vote of Security Holders. The Annual
Meeting of Shareholders of ASA Holdings, Inc. was held on
Wednesday, May 21, 1997. The first matter submitted to a vote of
the shareholders at this meeting was the election of directors.
John W. Beiser; Jean A. Mori; Parker H. Petit; George F. Pickett;
Alan M. Voorhees; and Ralph W. Voorhees were elected at the
Annual Meeting by the holders of Common Stock by the following
vote: (a) Mr. Beiser: 26,289,261 votes for and 338,698 votes
withheld or abstained, (b) Mr. Mori: 26,324,028 votes for and
303,931 votes withheld or abstained, (c) Mr. Petit: 26,329,545
votes for and 298,414 votes withheld or abstained, (d) Mr.
Pickett: 26,290,143 votes for and 337,816 votes withheld or
abstained, (e) Mr. Alan Voorhees: 26,293,923 votes for and
334,036 votes withheld or abstained, and (f) Mr. Ralph Voorhees:
26,296,439 votes for and 331,520 votes withheld or abstained.
There are no broker non-votes for purposes of any such votes. The
second matter submitted to a vote was the adoption and approval
of the 1997 Non-Qualified Stock Option Plan. The vote was as
follows: (a) Voting For: 19,798,609 shares, (b) Voting Against:
4,392,245 shares, (c) Abstentions: 250,714 shares, and (d) Broker
Non-Vote: 2,186,391 shares.
Item 6. Exhibits and Reports on Form 8-K
(a) The following exhibits are filed as part of this report. The
exhibit number refers to Item 601 of Regulation S-K.
10(a) Bombardier Purchase Agreement No. P.A.-0372 and related Letter
Agreements
-15-
<PAGE> 16
11 Statement Re: Computation of Per Share Earnings
27 Financial Data Schedule (for SEC use only)
(b) Reports on Form 8-K. A report on Form 8-K was filed on April 28,
1997 in which information was reported in Item 5 regarding a
press release dated April 21, 1997, of ASA Holdings, Inc.
relating to the announcement by Atlantic Southeast Airlines, Inc.
that it had executed a purchase agreement with Bombardier to
acquire aircraft which included a definitive financing commitment
from the Export Development Corporation of Canada.
-16-
<PAGE> 17
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ASA Holdings, Inc.
/s/ Ronald V. Sapp
------------------------
Ronald V. Sapp
Chief Financial Officer
Senior Vice President - Finance
Date: August 14, 1997
-17-
<PAGE> 18
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number and Description
<S> <C>
10(a) Bombardier Purchase Agreement No. P.A.-0372 and related Letter Agreements.
Confidential treatment has been applied for with respect to certain provisions
in these exhibits.
11 Statement Re: Computation of Per Share Earnings
27 Financial Data Schedule (for SEC use only)
</TABLE>
-18-
<PAGE> 1
EXHIBIT 10(a)
PURCHASE AGREEMENT
NO. P.A.-0372
BETWEEN
BOMBARDIER INC.
AND
ATLANTIC SOUTHEAST AIRLINES, INC.
Relating to the Purchase of
Thirty (30) Canadair Regional Jet aircraft
Including related Customer Support Services
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<PAGE> 2
TABLE OF CONTENTS
-----------------
<TABLE>
<CAPTION>
ARTICLE
- - -------
<S> <C> <C>
1 INTERPRETATION
2 SUBJECT MATTER OF SALE
3 CUSTOMER SUPPORT SERVICES AND WARRANTY
4 PRICE
5 PAYMENT
6 DELIVERY PROGRAM
7 BUYER INFORMATION
8 CERTIFICATION FOR EXPORT
9 ACCEPTANCE PROCEDURE
10 TITLE AND RISK
11 CHANGES
12 BUYER'S REPRESENTATIVES AT MANUFACTURE SITE
13 EXCUSABLE DELAY
14 NON-EXCUSABLE DELAY
15 LOSS OR DAMAGE
16 TERMINATION
17 NOTICES
18 INDEMNITY AGAINST PATENT [*]
19 LIMITATION OF LIABILITY
20 ASSIGNMENT
21 SUCCESSORS
22 APPLICABLE LAWS
23 CONFIDENTIAL NATURE OF AGREEMENT
24 AGREEMENT
APPENDIX
- - --------
I ECONOMIC ADJUSTMENT FORMULA
II DELIVERY SCHEDULE
III SPECIFICATION
IV BUYER SELECTED OPTIONAL FEATURES
</TABLE>
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<PAGE> 3
<TABLE>
<CAPTION>
EXHIBIT
- - -------
<S> <C>
I CERTIFICATE OF ACCEPTANCE
II BILL OF SALE
III CERTIFICATE OF RECEIPT OF AIRCRAFT
IV CHANGE ORDER
ANNEX A CUSTOMER SUPPORT SERVICES
ANNEX B WARRANTY AND SERVICE LIFE POLICY
LETTER AGREEMENTS
LA 0372-01
LA 0372-02
LA 0372-03
LA 0372-04
LA 0372-05
LA 0372-06
LA 0372-07
LA 0372-08
LA 0372-09
LA 0372-10
LA 0372-11
LA 0372-12
LA 0372-13
LA 0372-14
LA 0372-15
LA 0372-16
LA 0372-17
LA 0372-18
</TABLE>
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<PAGE> 4
This Agreement is made on the 17th day of April 1997.
BY AND BETWEEN: BOMBARDIER INC., ("Bombardier") a Canadian corporation
through its Bombardier Regional Aircraft Division having an
office at 123 Garratt Boulevard, Downsview, Ontario, Canada.
AND: ATLANTIC SOUTHEAST AIRLINES, INC., ("Buyer") a Georgia
corporation having an office at 100 Hartsfield Centre
Parkway, Suite 800, Atlanta, Georgia, U.S.A.
WHEREAS Bombardier is engaged in the manufacture of the Canadair
Regional Jet aircraft products and provides marketing,
sales and customer support services for the Canadair
Regional Jet aircraft and related products;
WHEREAS Buyer desires to purchase thirty (30) Aircraft (as later
defined) and related data, documents, and services under
this Agreement (as later defined), and Bombardier desires
to arrange for the sale of such Aircraft, data, documents
and services to Buyer,
NOW THEREFORE, in consideration of the mutual covenants herein contained, Buyer
and Bombardier agree as follows:
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ARTICLE 1. INTERPRETATION
1.1 The recitals above have been inserted for convenience only and do not
form part of this Agreement (as defined hereafter).
1.2 The headings in this Agreement are included for convenience only and
shall not be used in the construction and interpretation of this
Agreement.
1.3 In this Agreement, unless otherwise expressly provided or the context
otherwise requires, the singular includes the plural and vice-versa.
1.4 In this Agreement the following expressions shall, unless otherwise
expressly provided, mean:
"Acceptance Period" shall have the meaning attributed to it in Article
9.3;
"Acceptance Date" shall have the meaning attributed to it in Article
9.7 (a);
"Agreement" means this Purchase Agreement P.A.-0372, including all
Exhibits, Annexes, Appendices and Letter Agreements attached hereto
(each of which is incorporated in this Purchase Agreement P.A.-0372 by
this reference), as they may be amended pursuant to the provisions of
this Purchase Agreement P.A.-0372;
"Aircraft" shall have the meaning attributed to it in Article 2.1;
"Aircraft Purchase Price" shall have the meaning attributed to it in
Article 4.2;
"Base Price" shall have the meaning attributed to it in Article 4.1;
"Bill of Sale" shall have the meaning attributed to it in Article 9.7
(c);
"[* ]" shall have the meaning attributed to it in
Article 13.2;
"Buyer Furnished Equipment" or "BFE" shall have the meaning attributed
to it in Article 7.2;
"[* ]" shall have the meaning attributed to it in
Article 8.5;
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<PAGE> 6
"Buyer Selected Optional Features" shall have the meaning attributed
to it in Article 2.1;
"Competitor of Bombardier" shall be any person who, directly, or
indirectly through its affiliates, has substantial operations related
to the design, development, manufacture and marketing of aerospace
products;
"Delivery Date" shall have the meaning attributed to it in Article 9.7
(c);
"Economic Adjustment Formula" shall have the meaning attributed to it
in Article 4.2;
"Excusable Delay" shall have the meaning attributed to it in Article
13.1;
"FAA" shall mean the Federal Aviation Administration of the United
States including any Governmental agency of the United States
succeeding to the authority and jurisdiction of the Federal Aviation
Administration;
"Non-Excusable Delay" shall have the meaning attributed to it in
Article 14.1;
"Notice" shall have the meaning attributed to it in Article 17.1;
"Other Patents" shall have the meaning attributed to it in Article
18.1;
"Original Scheduled Delivery Date" shall mean the earlier of (i) the
last business day of the month containing the applicable Scheduled
Delivery Date of an Aircraft or (ii) the Readiness Date (which shall
be within the month of the applicable Schedule Delivery Date)
established pursuant to Article 9.1 for such Aircraft;
"Permitted Change" shall have the meaning attributed to it in Article
11.2;
"Prime Rate" shall be the U.S. prime rate designated as such and
charged by The Chase Manhattan Bank from time to time;
"Readiness Date" shall have the meaning attributed to it in Article
9.1;
"Regulatory Change" shall have the meaning attributed to it in Article
8.4;
"Scheduled Delivery Dates" shall have the meaning attributed to it in
Article 6.1;
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<PAGE> 7
"Specification" shall have the meaning attributed to it in Article
2.1;
"Successor in Interest" shall mean any entity succeeding in interest
to a party hereto as a result of a merger, stock sale,
recapitalization, reorganization, consolidation, or sale of all or
substantially all of the assets of said party;
"Taxes" shall have the meaning attributed to it in Article 4.3; and
"TC" shall have the meaning attributed to it in Article 8.1.
1.5 All dollar amounts in this Agreement are in United States Dollars.
1.6 All capitalized terms not expressly defined under this Article 1 and
used elsewhere in this Agreement shall have the meanings ascribed to
such capitalized terms elsewhere herein.
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<PAGE> 8
ARTICLE 2 - SUBJECT MATTER OF SALE
2.1 Subject to the provisions of this Agreement, Bombardier will sell and
Buyer will purchase thirty (30) Canadair Regional Jet aircraft model
CL-600-2B19 aircraft manufactured pursuant to specification no.
RAD-601R-145 issue NC dated February 14, 1997, attached hereto as
Appendix III, as that specification may be modified from time to time
in accordance with this Agreement (the "Specification"), reflecting
the incorporation of the Buyer selected optional features ("Buyer
Selected Optional Features") set forth in Appendix IV hereto
(collectively the "Aircraft").
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<PAGE> 9
ARTICLE 3 - CUSTOMER SUPPORT SERVICES AND WARRANTY
3.1 Bombardier shall provide to Buyer the customer support services
pursuant to the provisions of Annex A attached hereto.
3.2 Bombardier shall provide to Buyer the warranty and the service life
policy described in Annex B attached hereto.
3.3 Except as expressly stated in Annex A or Annex B, the services
referred to in 3.1 and 3.2 above are incidental to the sale of the
Aircraft and are included in the Aircraft Purchase Price.
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ARTICLE 4 - PRICE
4.1 (a) The base price for each of the Aircraft (excluding
the Buyer Selected Optional Features) is based on
Bombardier delivering the Aircraft to Buyer at
Bombardier's facilities in Dorval, Quebec and is
[*
]
expressed in [* ] dollars.
(b) The base price of the Buyer Selected Optional
Features is [*
] United States Dollars [* ]
U.S.) expressed in [* ] dollars.
The Aircraft base price shall be the base price for the Aircraft as
stated in paragraph (a), plus the base price of the Buyer Selected
Optional Features as stated in paragraph (b) ("Base Price").
4.2 The price of the Aircraft shall be the Base Price adjusted for changes
made pursuant to Article 11.1, if any, and [* ],
if any, and further adjusted to reflect economic fluctuations during
the period from [* ] to the Delivery Date (or such other date
expressly provided herein) of each Aircraft except to the extent all
or any portion of such adjustment is not applicable as expressly
provided elsewhere herein ("Aircraft Purchase Price"). Such
adjustments shall be calculated in accordance with the economic
adjustment formula attached as Appendix I ("Economic Adjustment
Formula").
4.3 The Aircraft Purchase Price does not include any taxes, fees or duties
including, but not limited to, sales, use, value added (including the
Canadian Goods and Services Tax), personal property, gross receipts,
franchise, excise taxes, assessments or duties ("Taxes") which are or
may be imposed by law upon Bombardier, any affiliate of Bombardier,
Buyer or the Aircraft whether or not there is an obligation for
Bombardier to collect same from Buyer, by any taxing authority or
jurisdiction occasioned by, relating to or as a result of the
execution of this Agreement or the sale, lease, delivery, storage, use
or other consumption of any Aircraft, BFE or any other matter, good or
service provided under or in connection with this Agreement.
4.4 Upon Bombardier's request, Buyer shall execute and deliver to
Bombardier any documents that Bombardier deems necessary or desirable
in connection with any exemption from or
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<PAGE> 11
reduction of or the contestation of or the defense against any
imposition of Taxes, provided that, such execution and delivery of
said documents does not prejudice Buyer's rights. Upon Buyer's
request, Bombardier shall execute and deliver to Buyer any documents
that Buyer deems necessary or desirable in connection with any
exemption from or reduction of or the contestation of or the defense
against any imposition of Taxes, provided that, such execution and
delivery of said documents does not prejudice Bombardier's rights.
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<PAGE> 12
ARTICLE 5 PAYMENT
5.1 Intentionally left blank.
5.2 Buyer shall make payment or cause payment to be made for each Aircraft
as follows:
a. [* ] of the Estimated [* ] Price [*
] upon execution of this Agreement;
b. [* ] of the Estimated [* ] Price [* ] months
prior to its Scheduled Delivery Date;
c. [* ] of the Estimated [* ] Price [* ] months
prior to its Scheduled Delivery Date;
d. [* ] of the Estimated [* ] Price [* ] months
prior to its Scheduled Delivery Date;
e. [* ] of the Estimated [* ] Price [* ] months
prior to its Scheduled Delivery Date; and
f. the balance of the [* ] Price on delivery.
[*
].
Bombardier shall provide Buyer, coincident with the ten (10) day
notice establishing the Readiness Date referred to in Article 9.1
below, written notice of the amount due under Article 5.2f with
respect to each Aircraft which notice shall contain evidence of the
appropriate calculations supporting such amount.
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<PAGE> 13
5.3 Should Buyer fail to make any of the aforementioned payments on or
before the stipulated date and [*
], this Agreement shall
automatically terminate and Bombardier shall have no further
obligation to Buyer with respect to undelivered Aircraft, including
the obligation to proceed further with the manufacture of the Aircraft
on behalf of Buyer or the sale and/or delivery of the Aircraft to
Buyer [*
]. Bombardier shall have the option (but not the
obligation) of waiving such termination should Buyer make arrangements
satisfactory to Bombardier for such payment and all future payments
within ten (10) calendar days of termination.
5.4 Buyer shall pay Bombardier simple daily interest on late payments,
from the date that any payment becomes due up to and including the day
prior to receipt of payment, at a rate of two percent (2 %) per annum
over the Prime Rate, calculated and compounded annually. Bombardier's
right to receive such interest is in addition to any other right or
remedy (other than the right or remedy to be paid interest) Bombardier
has at law as a result of Buyer's failure to make payments when due.
5.5 Buyer shall make all payments due from Buyer to Bombardier under this
Agreement in immediately available funds by deposit on or before the
due date to Bombardier's account in the following manner:
(a) Transfer to: National Bank of Canada
New York, N.Y. 10101 USA
Fed. ABA 026005487
(b) For credit to: National Bank of Canada
UID 014897
600 de la Gauchetiere St. West
Montreal, Quebec, H3B 4L3
Transit No. 1504-1
(c) For further credit to: Bombardier Inc.
Canadair Division
Account No.: [* ]
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<PAGE> 14
5.6 All other amounts due, as agreed to by the parties, with respect to
each Aircraft shall be paid on or prior to the Delivery Date of the
respective Aircraft.
5.7 All payments provided for under this Agreement shall be made so as to
be received in immediately available funds on or before the dates
stipulated herein.
5.8 Bombardier shall remain the exclusive owner of the Aircraft, free and
clear of all rights, liens, charges or encumbrances created by or
through Buyer, until such time as all payments referred to in this
Article 5 have been made.
5.9 Any payment or refund that might be due from Bombardier to Buyer under
this Agreement shall be made in immediately available funds by deposit
on or before the due date to Buyer's account in the following manner:
Bank Name: Wachovia Bank of Georgia
For credit of: Atlantic Southeast Airlines, Inc.
Account No.: [* ]
ABA # 061000010
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ARTICLE 6 - DELIVERY PROGRAM
6.1 The Aircraft shall be offered for inspection and acceptance to Buyer
at Bombardier's facility in Dorval, Quebec during the months set forth
in Appendix II attached hereto as same may be modified from time to
time by Change Order(s) (the "Scheduled Delivery Dates").
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ARTICLE 7 - BUYER INFORMATION
7.1 During the manufacture of the Aircraft, Buyer shall provide to
Bombardier on or before the date reasonably required by Bombardier,
all information as Bombardier may reasonably request to manufacture
the Aircraft including, without limitation, the selection of
furnishings, internal and external colour schemes.
Buyer has provided Bombardier with an external paint scheme and
internal colours agreed on by the parties.
7.2 Buyer shall notify Bombardier in writing of the Buyer Furnished
Equipment ("BFE") (if any) that Buyer wishes to have incorporated into
each Aircraft. Buyer shall also provide details of:
a. weights and dimensions of the BFE;
b. test equipment or special tools required to incorporate the
BFE;
c. any other information Bombardier may reasonably require; and
d. the proper storage, fitment, servicing, maintenance,
operation and availability of test equipment or special tools
needed for the BFE.
Within sixty (60) calendar days thereafter, Bombardier shall advise
Buyer of its acceptance or rejection of the BFE, of the dates by which
each item of BFE is required by Bombardier and of the first succeeding
Aircraft delivery in which the BFE can be incorporated. If required,
the parties hereto shall execute a Change Order in accordance with
this Article to cover those BFE items accepted by Bombardier pursuant
to Article 7.2.
7.3 The BFE accepted by Bombardier pursuant to Article 7.2 shall be
incorporated in the manufacturing process of the Aircraft subject to
the following conditions:
a. The BFE must be received F.O.B. Bombardier's plant or such
other place as Bombardier may designate, no later than the
date agreed upon between Buyer and Bombardier, free and clear
of any taxes, duties, licenses, charges, liens or other
similar claims;
b. The BFE shall meet:
1) the standards of quality of Bombardier, and
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<PAGE> 17
2) the requirements of the applicable airworthiness
certification agency;
c. The BFE shall be delivered to Bombardier in good condition
and ready for immediate incorporation into the Aircraft.
Bombardier shall, upon receipt, inspect the BFE as to quality
and apparent defects and inform Buyer of any discrepancies
and any required corrective actions to be taken;
d. Bombardier shall only be responsible for the fitment and
testing of the BFE in the Aircraft (with the exception of any
BFE that may be installed by Buyer on the Aircraft after
delivery of same to Buyer which shall remain the
responsibility of Buyer) using reasonable care and good
manufacturing practices, in accordance with Buyer's written
detailed description of the dimensions and weight of such
BFE.
7.4 If at any time between receipt of the BFE by Bombardier and the
Delivery Date for any Aircraft in which such BFE is to be
incorporated, it is mutually agreed that an item of BFE supplied does
not meet the standards and requirements of Article 7.3 or its fitment,
integration and testing in the Aircraft or Aircraft systems create
delays in the manufacturing or certification process, then such BFE
shall be removed and replaced by other BFE or by Bombardier's
equipment unless Buyer requests delivery of the Aircraft without
inclusion of such BFE. Any costs associated with the removal,
refitment, replacement, testing and/or certification of the BFE and
the price of the equipment provided in substitution for any BFE by
Bombardier, if applicable, shall be borne by Buyer.
7.5 In the event that delivery of an Aircraft in which BFE is to be
incorporated is delayed due to any delay caused by Buyer's failure to:
a. deliver, or have the applicable BFE delivered by the date
required;
b. ensure satisfactory operation of the applicable BFE;
c. furnish or obtain applicable BFE data;
d. perform any adjusting, calibrating, retesting or updating of
applicable BFE;
e. furnish or obtain any approvals in compliance with the
provisions of this Article; or
f. comply with the conditions of Article 7.1 and/or 7.3;
Bombardier agrees to discuss with Buyer and, where appropriate, agree
with Buyer on the steps to be taken to minimize, cure, eliminate or
work around the delay, but any delay incurred shall be the
responsibility of Buyer and Buyer shall pay to Bombardier any costs
and expenses reasonably incurred by Bombardier due to such delay.
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7.6 Title to the BFE shall remain at all times with Buyer and risk of loss
of the BFE shall remain at all times with Buyer, except for damages to
the BFE caused by Bombardier's negligence or misconduct.
7.7 If this Agreement is terminated in whole or in part in accordance with
the provisions of this Agreement, Bombardier may elect to, by written
notice to Buyer, either:
a. purchase the BFE ordered by Buyer and/or received by
Bombardier at the invoice price paid by Buyer; or
b. return the BFE to Buyer FOB Bombardier's plant, or such other
place to which the BFE was delivered pursuant to Article 7.3
a. above.
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ARTICLE 8 - CERTIFICATION FOR EXPORT
8.1 Bombardier has obtained from Transport Canada ("TC"), a TC Type
Approval (Transport Category) and from the FAA an FAA Type Certificate
for the type of aircraft purchased under this Agreement.
8.2 Bombardier shall provide to Buyer a TC Certificate of Airworthiness
(Transport Category) for export, on or before the Delivery Date of
each Aircraft, which will bear a statement of compliance with the type
certificate which will make such Aircraft immediately eligible for the
issuance of and enable Buyer to obtain an FAA Certificate of
Airworthiness for such Aircraft.
8.3 Bombardier shall not be obligated to obtain any certificates or
approvals as part of this Agreement other than those specified in 8.1
and 8.2 above or in any other provision of this Agreement expressly
providing that Bombardier provide a certificate or approval. The
obtaining of any import license or authority required to import or
operate the Aircraft into any country outside of Canada shall be the
responsibility of Buyer. Bombardier shall, to the extent permitted by
law, and with Buyer's assistance, seek the issuance of a Canadian
export license to enable Buyer to export the Aircraft from Canada
subject to prevailing export control regulations in effect on the
Delivery Date.
8.4 If any addition to, or change to, or modification to, or testing of,
an Aircraft is required or will be required by the passage of time by
any change in law or governmental regulation or requirement (including
without limitation an airworthiness directive) or interpretation
thereof by any governmental agency having jurisdiction, including,
without limitation, the FAA, in order to meet the requirements of
Article 8.2 and occurring before, on or after the date hereof but
prior to delivery of an Aircraft (a "Regulatory Change"), unless
otherwise provided by this Agreement, [* ]
to the affected Aircraft on or prior to the deadline for accomplishing
such Regulatory Change provided that in discharging its obligations
hereunder [*
].
8.5 A Regulatory Change shall be made by Bombardier [* ]
unless such Regulatory Change is a [* ].
As used herein, a [* ] shall mean any [* ]
which either (a) is imposed by the [* ] or any
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<PAGE> 20
governmental division [* ]
and applicable to all aircraft in general or to all aircraft of the
same category as the Aircraft or (b) is imposed by the [* ]or any
governmental division of the [* ] and is particular [*
]. [* ] shall be responsible for Bombardier's
reasonable price for making such [* ] to an Aircraft.
8.6 Bombardier shall issue a Change Order (as hereinafter defined),
reflecting any Regulatory Change required to be made under this
Article 8, which shall set forth in detail the particular changes to
be made and the effect, if any, of such changes on design,
performance, weight, balance, time of delivery, and, for
[* ], on the [* ] and [* ]. Any
Change Orders issued pursuant to this Article shall be effective
and binding from the date of Bombardier's transmittal of such Change
Order. Although Buyer's consent to said Change Order is not required,
Bombardier agrees to consult with Buyer regarding the change proposed
by Bombardier to implement such Regulatory Change.
8.7 If the use of any of the certificates identified in this Article 8 are
discontinued during the performance of this Agreement, reference to
such discontinued certificate shall be deemed a reference to any other
certificate or instrument which corresponds to such certificate or, if
there should not be any such other certificate or instrument, then
Bombardier shall be deemed to have obtained such discontinued
certificate(s) upon demonstrating that the Aircraft complies with the
Specification.
8.8 Reference to a regulatory authority shall include any succeeding
department or agency then responsible for the duties of said
regulatory authority.
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ARTICLE 9 - ACCEPTANCE PROCEDURE
9.1 Bombardier shall give Buyer at least sixty (60) days advance notice of
the projected two weeks during which each Aircraft may be ready for
inspection and delivery.
Bombardier shall give Buyer at least thirty (30) days advance notice
of the projected date of readiness of each Aircraft for inspection and
delivery.
Bombardier shall give Buyer at least ten (10) working days advance
notice of the date on which an Aircraft will be ready for Buyer's
inspection, flight test and acceptance (the "Readiness Date").
9.2 Within two (2) days following receipt by Buyer of the notice of
Readiness Date, Buyer shall:
(a) provide notice to Bombardier as to the source and method
of payment of the balance of the [* ];
(b) identify to Bombardier the names of Buyer's representatives
who will participate in the inspection, flight test and
acceptance; and
(c) provide evidence of the authority of the designated
persons to execute the Certificate of Acceptance and other
delivery documents on behalf of Buyer.
9.3 Buyer shall have three (3) consecutive working days commencing on the
Readiness Date in which to complete the inspection and flight test
(such three (3) working day period being the "Acceptance Period").
9.4 Up to four (4) representatives of Buyer may participate in Buyer's
ground inspection of the Aircraft and two (2) representatives of Buyer
may participate in the flight tests, provided that, at least one of
such representatives, duly and properly endorsed, shall be entitled to
sit in the cockpit of the Aircraft during such flight test. Bombardier
shall, if requested by Buyer, perform an acceptance flight of not less
than one (1) and not more than three (3) hours duration. Ground
inspection and flight tests shall be conducted in accordance with
those acceptance procedures to be mutually agreed upon by the parties
and, except for Buyer's representatives travel and living expenses, at
Bombardier's expense. Such acceptance procedures to be agreed upon no
later than 30 days prior to the Scheduled Delivery Date of the first
Aircraft. At all times during ground inspection and flight test,
Bombardier shall retain control over the Aircraft. The agreed
acceptance testing procedures shall be sufficient to
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reasonably demonstrate the Aircraft's compliance with the
Specifications and, subject to the following sentence, the
[* ]. Buyer shall be
entitled to require on ten (10) days prior written notice to
Bombardier, [* ] on (a) [*
] Aircraft delivered hereunder, (b) [* ] delivered
hereunder, and (c) on any Aircraft to be delivered hereunder [*
]. Bombardier shall, in connection with and for
purposes of Buyer's participation in such ground inspection and flight
test, cause [*
].
9.5 If no Aircraft defect or discrepancy is revealed during the ground
inspection or flight test, Buyer shall accept the Aircraft on or
before the last day of the Acceptance Period in accordance with the
provisions of Article 9.7.
9.6 If any material defect or discrepancy in the Aircraft is revealed by
Buyer's ground inspection or flight test, the defect or discrepancy
will promptly be corrected by Bombardier, at no cost to Buyer, which
correction may occur during or after the Acceptance Period depending
on the nature of the defect or discrepancy and of the time required
for correction provided, that, Bombardier will use its good faith
efforts to correct any such defect or discrepancy on or before
expiration of the Acceptance Period and allowing sufficient time
before such expiration to permit the conduct of additional test
flights. To the extent necessary to verify such correction, Bombardier
shall perform one (1) or more further acceptance flights. Should such
correction cause the delivery of the Aircraft to be postponed to the
succeeding month, the [*
].
9.7 Upon completion of the ground inspection and acceptance flight of the
Aircraft and correction of any defects or discrepancies:
(a) Buyer will sign a Certificate of Acceptance (in the form of
Exhibit I hereto) for the Aircraft. Execution of the
Certificate of Acceptance by or on behalf of Buyer shall be
evidence of Buyer having examined the Aircraft and found it
in accordance with the provisions of this Agreement. The date
of signature of the Certificate of Acceptance shall be the
"Acceptance Date";
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(b) Bombardier will supply a TC Certificate of Airworthiness for
Export and all other documentation or other evidence required
under Article 8.2 of this Agreement;
(c) Buyer shall pay Bombardier the balance of the [* ]
and any other amounts agreed by the parties that are due, at
which time Bombardier shall issue an FAA bill of sale and a
full warranty bill of sale (in the form of Exhibit II hereto)
passing to Buyer good title to the Aircraft free and clear of
all liens, claims, charges and encumbrances except for those
liens, charges or encumbrances created by or claimed through
Buyer (collectively the "Bill of Sale"). The date on which
Bombardier delivers the Bill of Sale and Buyer takes delivery
of the Aircraft shall be the "Delivery Date"; and
(d) Unless waived by Buyer, Bombardier shall supply a legal
opinion opining on due authorization, execution and delivery
of the Warranty Bill of Sale and that the Warranty Bill of
Sale is legal, valid and a binding obligation of Bombardier,
in accordance with its terms. The legal opinion shall be in a
form to be mutually satisfactory and agreed upon by the
parties within ten (10) days after the execution and delivery
of this Agreement and may be provided in whole or in part by,
or in reliance on an opinion issued by a duly admitted lawyer
employed by the legal department of Bombardier.
Delivery of the Aircraft shall be evidenced by the execution and
delivery of the Bill of Sale and of the Certificate of Receipt of
Aircraft (in the form of Exhibit III hereto).
9.8 Provided that Bombardier has met all of its obligations under this
Article 9, should Buyer not accept, pay for and take delivery of any
of the Aircraft within [* ] calendar days after the end of the
Acceptance Period of such Aircraft, Buyer shall be deemed to be in
default of the terms of this Agreement.
9.9 Provided that Bombardier has met all of its obligations under this
Article 9, should Buyer not accept, pay for and/or take delivery of
any one of the Aircraft within [* ] calendar days following
the end of the Acceptance Period, the present Agreement shall
automatically terminate or, at Bombardier's option; terminate solely
with respect to such Aircraft. Bombardier shall however, have the
option (but not the obligation) of waiving such termination should
Buyer, within ten (10) calendar days following such termination, make
arrangements satisfactory to Bombardier to accept delivery and provide
payment for all amounts owing or to become due pursuant to this
Agreement.
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9.10 Each Aircraft subject to delivery hereunder shall be full of fuel and
oil at the time of such delivery and shall have no more (unless
otherwise mutually agreed) than [* ] of operational time on the
Aircraft or any component thereof, unless necessary to comply with a
Regulatory Change or any other change requested by Buyer. Bombardier
will not demonstrate an Aircraft allocated to Buyer without Buyer's
prior written consent.
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ARTICLE 10 - TITLE AND RISK
10.1 Title to the Aircraft and risk of loss of or damage to the Aircraft
passes to Buyer upon Buyer's execution of the Certificate of Receipt
for the Aircraft and when Bombardier delivers the Bill of Sale to
Buyer on the Delivery Date.
10.2 If, after transfer of title on the Delivery Date, the Aircraft remains
in or is returned to the care, custody or control of Bombardier, Buyer
shall retain risk of loss of, or damage to the Aircraft and for itself
and on behalf of its insurer(s) hereby waives and renounces to, and
releases Bombardier and any of Bombardier's affiliates from any claim,
whether direct, indirect or by way of subrogation, for damages to or
loss of the Aircraft arising out of, or related to, or by reason of
such care, custody or control provided, that [*
].
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ARTICLE 11 - CHANGES
11.1 Except for a Permitted Change as described in Article 11.2 or a
Regulatory Change as described in Article 8.4, which Regulatory Change
requires the issuance of a Change Order that need not be mutually
agreed by the parties, any change to this Agreement (including without
limitation the Specification) or any features or BFE, if any, changing
the Aircraft from that described in the Specification attached hereto,
requested by Buyer, and as may be mutually agreed upon by the parties
hereto, shall be made using a change order ("Change Order")
substantially in the format of Exhibit IV hereto. Should Buyer request
a change, Bombardier shall advise Buyer, to the extent reasonably
practical prior to issuance to Buyer of any Change Order covering such
requested change, of the effect, if any, of such change request on:
(a) the Scheduled Delivery Date;
(b) the price and payment terms applicable to such Change Order;
and
(c) any other material provisions of this Agreement which will be
affected by such Change Order.
Such Change Order shall become effective and binding on the parties
hereto when signed by a duly authorized representative of each party.
11.2 Bombardier, prior to the Delivery Date and without a Change Order or
Buyer's consent, may:
(a) substitute the kind, type or source of any material, part,
accessory or equipment with any other material, part,
accessory or equipment of like, equivalent or better kind or
type; or
(b) make such change or modification to the Specification as it
deems appropriate to:
1) improve the Aircraft, its maintainability or
appearance, or
2) to prevent delays in manufacture or delivery, or
3) to meet the requirements of Articles 2 and 8, other
than for a Regulatory Change to which other
provisions of this Agreement apply,
provided that such substitution, change or modification shall not
affect the Aircraft Purchase Price or materially affect the
[* ], the Scheduled Delivery Date,
interchangeability or replaceability of Spare Parts (as defined in
Annex A hereto) or performance characteristics of the Aircraft. Any
change made in accordance with
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the provisions of this Article 11.2 shall be deemed to be a
"Permitted Change" and the cost thereof shall be borne by
Bombardier, Bombardier shall provide notice to Buyer of any
Permitted Change if the same is determined by Bombardier in
its reasonable judgment to be material in nature.
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ARTICLE 12 - BUYER'S REPRESENTATIVES AT MANUFACTURE SITE
12.1 From time to time, commencing with the date of this Agreement and
ending with the Delivery Date of the last Aircraft purchased
hereunder, Bombardier shall furnish, without charge, office space at
Bombardier's facility for one (1) representative of Buyer. Buyer shall
be responsible for all expenses of its representative and shall notify
Bombardier by facsimile at least fifteen (15) calendar days prior to
the first scheduled visit of such representative and three (3) days
for each subsequent visit.
12.2 Bombardier's and Bombardier's affiliates facilities shall be
accessible to Buyer's representative during normal working hours.
Buyer's representative shall have the right to periodically observe
the work at Bombardier's or Bombardier's affiliates' facilities where
the work is being carried out provided there shall be no disruption in
the performance of the work.
12.3 Bombardier shall advise Buyer's representative of Bombardier's or
Bombardier's affiliates' rules and regulations applicable at the
facilities being visited and Buyer's representative shall conform to
such rules and regulations.
12.4 At any time prior to delivery of the Aircraft, Buyer's representative
may request, in writing, correction of parts or materials which they
reasonably believe are not in accordance with the Specification.
Bombardier shall provide a written response to any such request.
Communication between Buyer's representative and Bombardier shall be
solely through Bombardier's Contract Department or its designee.
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<PAGE> 29
ARTICLE 13 - EXCUSABLE DELAY
13.1 Notwithstanding any other provision to the contrary contained herein,
in the event of a delay on the part of Bombardier in the performance
of its obligations or responsibilities under the provisions of this
Agreement due directly or indirectly to an Excusable Delay (as
hereinafter defined), Bombardier shall not be liable for, nor be
deemed to be in default under this Agreement on account of such delay
in the delivery of the Aircraft or the performance of other
obligations or responsibilities hereunder and the time fixed or
required for the performance by either party of any obligation or
responsibility in this Agreement shall be extended for a period equal
to the period during which said Excusable Delay or the effect thereof
persists. For purposes of this Agreement "Excusable Delay" shall mean
an event or occurrence which is not within the commercially reasonable
control of Bombardier or not caused by the negligent acts or omissions
of Bombardier and impedes Bombardier's ability to timely perform its
obligations or responsibilities under this Agreement (taking into
account other commercially reasonable and practicable suppliers or
resources available to Bombardier). Excusable Delay shall include, but
not be limited to: an act of God, war, state of war, civil war,
warlike operations, act of the enemy, armed aggression, insurrection,
civil commotion, riot, embargo, epidemic, quarantine, flood,
earthquake, lightning, windstorm or other condition or action of
nature, fire, explosion or other catastrophic or serious accident,
strikes, lock-out, walk-out, or other labour troubles causing
cessation, slow-down or interruption of work, lack or shortage or
delay in delivery of supplies, materials, accessories, equipment,
tools or parts, provided another reasonable and practicable source or
measure to avoid such were not available to Bombardier, delay or
failures of carriers, subcontractors or suppliers provided the same
are ordered in a timely manner, an act of government, legislation,
act, order, directive or regulation of duly constituted authority
having jurisdiction or a Regulatory Change (unless issued solely as a
result of a defect in the Aircraft), or delay in obtaining any
airworthiness approval or certificate by reason of any agreed change
made by Bombardier which cannot, after application of each party's
commercially reasonable efforts, be complied with within the time
performance envisaged under this Agreement. Promptly upon Bombardier's
awareness of the occurrence of any event which, in Bombardier's
reasonable estimation will or is likely to cause an Excusable Delay,
Bombardier shall notify Buyer of same and the expected delay duration
if known. The occurrence of an event constituting an Excusable Delay
shall continue as such only for so long as the cause or the effects
thereof persist and Bombardier shall promptly recommence the
performance of its affected obligations upon cessation of the cause
and effects giving rise to Excusable Delay. Bombardier shall at all
times during the existence of an Excusable Delay, dedicate its
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<PAGE> 30
commercially reasonable efforts to mitigate the impact of same upon
Bombardier's obligations or responsibilities.
13.2 [*
].
13.3(a) If Bombardier concludes, based on its appraisal of the facts and
normal scheduling procedures, that due to Excusable Delay delivery of
any Aircraft will be delayed for more than [* ] after the Scheduled
Delivery Date or any revised date agreed to in writing by the parties,
Bombardier shall promptly notify Buyer in writing [*
].
(b) If, due to Excusable Delay, delivery of any Aircraft is delayed for
more than [* ] after the Scheduled Delivery Date, [*
].
(c) If Buyer concludes, based on its appraisal of the facts that a [*
] will delay delivery of any Aircraft for more than
[* ] after its Scheduled Delivery Date, Buyer shall
promptly notify Bombardier in writing. [*
].
(d) [*
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<PAGE> 31
]. In the event of a mutually
agreed amendment to the Delivery Schedule contained in Appendix
II hereto, the parties agree to review the [*
] mentioned above.
In the event that [*
] agrees to dedicate its
commercially reasonable efforts to mitigate the impact of the
Excusable Delay giving rise to [* ]
with the objective of either recommencing delivery of the
Aircraft affected by such Excusable Delay to Buyer or [*
] provided, that as a condition to [*
], this Agreement
shall be amended in such manner as is mutually acceptable to [*
].
(e) In the event of an Excusable Delay or [* ], unless
otherwise agreed, Buyer shall not be obligated to take delivery of more
than two (2) Aircraft in any month.
13.4 [* ] shall discharge all obligations and
liabilities of Buyer and Bombardier hereunder with respect to [*
], except that Bombardier shall on or before
five (5) business days after [* ] for such terminated
Aircraft [*
].
13.5 [*
].
13.6 If, as a result of an Excusable Delay or [* ], delivery
of an Aircraft will be delayed to a date beyond the Scheduled Delivery
Date or any revised date previously agreed to in writing by the
parties, [* ] shall be
adjusted accordingly. Upon expiration of such
[* ] shall be made while delivery is delayed for
Excusable Delay or [* ].
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ARTICLE 14 - NON-EXCUSABLE DELAY
14.1 [*
].
14.2 Buyer will not have the right to refuse to take delivery of any
Aircraft because of a Non-Excusable Delay unless and until the [*
]. If Bombardier has not offered an
Aircraft for inspection and acceptance [* ]. Buyer
agrees to deliver a written notice to Bombardier at least fifteen
(15) days prior to the [* ]; which notice
may be delivered prior to the expiration of the [* ]
in which case such notice shall not become effective earlier than
the [* ]. If, Bombardier
offers such Aircraft for inspection and acceptance prior to the
effective date of such notice, Buyer may not refuse to take delivery
of such Aircraft because of [* ].
14.3 If as a result of a Non-Excusable Delay, Bombardier shall fail [*
], then in the event Bombardier shall additionally
fail, as a result of a Non-Excusable Delay, to [*
].
14.4 If as a result of a Non-Excusable Delay, delivery of the Aircraft is
delayed to a date, beyond the Original Scheduled Delivery Date, [*
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<PAGE> 33
] as of the Original Scheduled
Delivery Date.
14.5 In the event of a Non-Excusable Delay, unless otherwise agreed, Buyer
shall not be obligated to take delivery of more than two (2) Aircraft
in any month.
14.6 [*
].
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<PAGE> 34
ARTICLE 15 - LOSS OR DAMAGE
15.1 In the event that prior to the Original Scheduled Delivery Date for
any Aircraft, such Aircraft (the "Destroyed Aircraft") is lost,
destroyed, or damaged beyond repair due to any cause or reason (the
"Destruction Event"), Bombardier shall promptly notify Buyer in
writing (a "Destruction Notice") of such Destruction Event.
15.2 This Agreement shall automatically terminate as to such Destroyed
Aircraft unless Buyer gives Bombardier written notice (the "Buyer's
Replacement Notice"), within forty-five (45) days of Buyer's receipt
of the Destruction Notice that Buyer desires a replacement for such
Destroyed Aircraft. If Buyer gives Bombardier a Buyer's Replacement
Notice, Bombardier shall use commercially reasonable efforts to
provide Buyer with the next available aircraft as a replacement
hereunder, subject to Bombardier's other written commitments and
production lead times. If Buyer gives Buyer's Replacement Notice to
Bombardier and Buyer and Bombardier agree on a Scheduled Delivery Date
for the replacement aircraft, [*
], except the parties
shall execute a Change Order to this Agreement which shall set forth
the Scheduled Delivery Date for such replacement aircraft. Nothing
contained herein shall obligate Bombardier to manufacture and deliver
such replacement aircraft if it would require the reactivation or
acceleration of its production line for the model of aircraft
purchased hereunder. [*
].
15.3 If the Destruction Event would be treated as an Excusable Delay event
under Article 13.1, then the Change Order with regard to the
replacement aircraft shall provide that the [*
]
shall be adjusted accordingly. Upon expiration of such [*
], if the replacement aircraft shall not have been delivered
during such period, [*
] shall be made pending the delivery
of the replacement aircraft.
15.4 If the Destruction Event would not be treated as an Excusable Delay
event under Article 13.1, then the Change Order with regard to the
replacement aircraft shall provide that [*
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<PAGE> 35
].
15.5 If the Destruction Event would be treated as an Excusable Delay event
under Article 13.1, then upon termination of this Agreement with
respect to the Destroyed Aircraft in accordance with Article 15.2 all
obligations and liabilities of Buyer and Bombardier hereunder with
respect to the Destroyed Aircraft and all related undelivered items
and services shall be discharged, [*
].
15.6 If the Destruction Event would not be treated as an Excusable Delay
event under Article 13.1, then upon termination of this Agreement with
respect to the Destroyed Aircraft in accordance with Article 15.2, [*
].
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<PAGE> 36
ARTICLE 16 - TERMINATION
16.1 This Agreement may be terminated, in whole or in part, with respect to
any or all of the Aircraft before the Delivery Date by Bombardier or
Buyer by written notice of termination to the other party upon the
occurrence of any of the following events:
(a) such other party makes an assignment for the benefit of
creditors or admits in writing its inability to pay its debts
or that it generally does not pay its debts as they become
due; or
(b) a receiver or trustee is appointed for a party or for
substantially all of such party's assets and, if appointed
without such party's consent, such appointment is not
discharged or stayed within sixty (60) calendar days
thereafter; or
(c) proceedings or action under any law relating to bankruptcy,
insolvency or the reorganization or relief of debtors are
instituted by or against a party, and, if contested by such
party, are not dismissed or stayed within sixty (60) calendar
days thereafter; or
(d) any material writ of attachment and execution or any similar
process is issued or levied against a party or any
significant part of its property and is not released, stayed,
bonded or vacated within sixty (60) calendar days after its
issue or levy.
16.2 In addition, this Agreement may be terminated, in whole or in part,
before the Delivery Date with respect to any or all undelivered
Aircraft
(a) as otherwise provided in this Agreement, or
(b) by Bombardier, if Buyer is in default or breach of any
material term or condition of this Agreement and Buyer does
not cure such default or breach within forty-five (45)
calendar days after receipt of notice from Bombardier
specifying such default or breach, or
(c) by Buyer, if Bombardier is in default or breach of any
material term or condition of this Agreement and such breach
remains uncured for a period of forty-five (45) calendar days
following receipt of a notice from Buyer specifying the
nature of default or breach.
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<PAGE> 37
16.3 In case of termination of this Agreement by [*
]:
(a) all rights (including property rights), if any, which Buyer
or its permitted assign may have or may have had in or to
this Agreement with respect to and in any or all of the
applicable undelivered Aircraft shall become null and void
with immediate effect; and
(b) Bombardier may sell, lease or otherwise dispose of such
Aircraft to another party free of any claim by Buyer.
16.4 In addition in the case of a termination by [*
]:
(a) [*
].
(b) [*
]. Bombardier acknowledges and
agrees that should Bombardier fail to perform those
obligations required of Bombardier under this Article,
irreparable loss and damage will be suffered by Buyer for
which no adequate
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<PAGE> 38
remedy at law may exist and as a result, Buyer shall be
entitled to pursue any and all equitable or other remedies
necessary or appropriate to enforce and ensure Bombardier's
performance of its obligations hereunder such equitable
remedies to specifically include, without limitation, seeking
any temporary or permanent injunction or other court order
requiring specific performance of or fulfillment by,
Bombardier of its obligations under this Article. In the
event Buyer institutes any such equitable or other legal
proceeding requiring Bombardier to perform its obligations
under this Article, Bombardier hereby unconditionally and
irrevocably waives (i) any requirement that Buyer submit
proof of the economic value of any interest sought to be
protected under such proceeding, (ii) any requirement that
the Buyer post any bond or other security in connection with
such proceeding, or (iii) any defense or objection or
assertion that such proceeding may not be properly maintained
(but preserving to Bombardier all other rights and defenses).
(c) [* ] which exceeds the
finally adjudicated or mutually agreed damages [* ]
be returned [*
].
(d) Nothing in this Article 16.4 shall affect [* ],
in accordance with the applicable provisions of this
Agreement to retain and apply advance payments made by Buyer
relating to any Aircraft [*
].
16.5 In the case of a termination by [*
] with respect to undelivered
Aircraft as to which the termination is applicable shall be [*
] of the effective date of termination.
16.6 Notwithstanding termination of this Agreement for any reason
whatsoever [*
].
16.7 Notwithstanding termination of this Agreement and except as otherwise
specifically and expressly provided to the contrary under this
Agreement, [*
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<PAGE> 39
].
16.8 Except as expressly provided [* ],
upon termination of this Agreement, Bombardier shall, within
[* ] after such termination,
[*
].
16.9 In the event this Agreement is terminated for any reason, the Letter
Agreements attached hereto shall become null and void unless otherwise
expressly provided in any said respective Letter Agreement.
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ARTICLE 17 - NOTICES
17.1 Any notice, request, approval, permission, consent or other
communication ("Notice"), to be given or required under this Agreement
shall be provided in writing, by registered mail, facsimile, courier,
or other electronic communication, subject to Article 17.2 and 17.3
below and provided that no notice shall be sent by mail if disruption
of postal service exists or is threatened either in the country of
origin or of destination, by the party giving the Notice and shall be
addressed as follows:
(a) Notice to Bombardier shall be addressed to:
Bombardier Inc.
Bombardier Regional Aircraft Division
123 Garratt Boulevard
Downsview, Ontario
Canada
M3K 1Y5
Attention: Director Contracts
Facsimile: (416) 375-4533
(b) Notice to Buyer shall be addressed to:
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia
U.S.A., 30354-1356
Attention: Mr. George Pickett
Facsimile: 404-209-1829
17.2 Subject to Article 17.3, Notice given in accordance with Article 17.1
shall be deemed sufficiently given to and received by the addressees:
(a) if delivered by hand, on the day when the same shall have
been so delivered; or
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<PAGE> 41
(b) if mailed or sent by courier on the day indicated on the
corresponding acknowledgment of receipt; or
(c) if sent by facsimile and an acknowledgment of receipt is
provided by the addressee, either by dating and initialing
the respective facsimile transmission and returning same to
the originator, or otherwise. An acknowledgment of receipt
shall not constitute the agreement of the addressee as to the
content of the Notice but rather shall be conclusive only as
to the receipt thereof.
17.3 Notwithstanding the foregoing, any Notice which communicates an
alleged breach or default hereunder by any party hereto or exercises
or waives any right of termination hereunder shall only be given by
personal delivery, registered mail or courier.
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<PAGE> 42
ARTICLE 18 - INDEMNITY AGAINST PATENT [*
]
18.1 In the case of any actual or alleged infringement of any Canadian or
United States patent or, subject to the conditions and exceptions set
forth below, any patent issued under the laws of any other country in
which Buyer from time to time may lawfully operate the Aircraft
("Other Patents"), by the Aircraft, or by any system, accessory,
equipment or part installed in such Aircraft at the time title to such
Aircraft passes to Buyer, Bombardier shall indemnify, protect and hold
harmless Buyer from and against all claims, suits, actions,
liabilities, damages and costs resulting from the infringement,
excluding any incidental or consequential damages (which include
without limitation loss of revenue or loss of profit) and Bombardier
shall, at its option and expense:
(a) procure for Buyer the right under such patent to use such
system, accessory, equipment or part; or
(b) replace such system, accessory, equipment or part with one of
the similar nature and quality that is non-infringing; or
(c) modify such system, accessory, equipment or part to make same
non-infringing in a manner such as to keep it otherwise in
compliance with the requirements of this Agreement.
Bombardier's obligation hereunder shall extend to Other Patents only
if from the time of design of the Aircraft, system, accessory,
equipment or part until the alleged infringement claims are resolved:
(a) such other country and the country in which the Aircraft is
permanently registered have ratified and adhered to and are
at the time of the actual or alleged infringement contracting
parties to the Chicago Convention on International Civil
Aviation of December 7, 1944 and are fully entitled to all
benefits of Article 27 thereof; and
(b) such other country and the country of registration shall each
have been a party to the International Convention for the
Protection of Industrial Property (Paris Convention) or have
enacted patent laws which recognize and give adequate
protection to inventions made by the nationals of other
countries which have
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<PAGE> 43
ratified, adhered to and are contracting parties to either of
the forgoing conventions.
18.2 [*
]:
(a) [*
]
(b) [*
]
(c) [*
].
18.3 The foregoing indemnities in 18.1 and 18.2 do not apply (i) to BFE, or
to avionics, engines or any system, accessory, equipment or part that
was not manufactured to Bombardier's detailed design or to any system,
accessory, equipment or part manufactured by a third party to
Bombardier's detailed design without Bombardier's authorization, [*
].
18.4 Buyer's remedies and Bombardier's obligations and liabilities under
this Article are conditional upon (i) Buyer giving Bombardier written
Notice within ten (10) days after Buyer receives notice of a suit or
action against Buyer alleging infringement or within twenty (20) days
after Buyer receives any other written claim of infringement (ii)
Buyer uses reasonable efforts in cooperation with Bombardier to reduce
or mitigate any such expenses, damages, costs or royalties involved
any costs or expenses incurred by Buyer in so doing being subject to
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<PAGE> 44
indemnification by Bombardier hereunder, and (iii) Buyer furnishes promptly to
Bombardier all data, papers and records in its possession or control necessary
or useful to resist and defend against such claim or suit. Bombardier may at
its option conduct negotiations with any party claiming infringement and may
intervene in any suit or action. Bombardier shall be entitled at any stage of
the proceedings to assume or control the defense provided, that Bombardier
shall not in the course of such defense undertake any action or omission which
prejudices Buyer's rights or interest without Buyer's prior written consent
which consent shall not be unreasonably withheld. Solely in the event that
Bombardier assumes control of any defense hereunder, Buyer's remedy and
Bombardier's obligation and liability are further conditional upon Bombardier's
prior approval of Buyer's payment or assumption of any liabilities, expenses,
damages, royalties or costs for which Bombardier may be held liable or
responsible.
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ARTICLE 19 - LIMITATION OF LIABILITY AND INDEMNIFICATION
19.1 [*
].
19.2 [*
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].
19.3 [*
].
19.4 [*
].
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19.5 [*
].
19.6 [*
].
19.7 [*
47
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].
19.8 [*
].
19.9 [*
48
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].
19.10 [*
49
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].
19.11 [*
50
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].
19.12 [*
51
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].
[*
52
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].
19.13 [*
53
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].
19.14 [*
].
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ARTICLE 20 - ASSIGNMENT
20.1 Either party may assign, sell, transfer or dispose of (in whole or in
part) any of its rights and obligations hereunder to a wholly owned
subsidiary or affiliate or to a Successor in Interest provided (i)
that there is no increase to the liability and/or responsibility of
the non-assigning party and (ii) that the assigning party remains
jointly and severally liable with any assignee for the performance of
its obligation under this Agreement and (iii) in the case of a
Successor in Interest that such Successor in Interest shall have
shareholders' equity at least equal to that of the assignor on the
date of execution of this Agreement after giving effect to any such
succession (provided that there shall be no shareholder's equity
requirement imposed after delivery of the last Aircraft and provided
further, that the application of such minimum shareholders' equity
requirement to the Incremental Aircraft (as defined in Letter
Agreement No. 0372-01) shall be reviewed at the time of exercise of
the right to purchase same.
20.2 Except as provided in Article 20.1 or 20.5, neither Buyer nor
Bombardier shall assign, sell, transfer or dispose of (in whole or in
part) any of its rights or obligations hereunder without the other
parties prior written consent, such consent not to be unreasonably
withheld. In the event of such assignment, sale, transfer or
disposition Buyer or Bombardier as applicable shall remain jointly and
severally liable with any assignee for the performance of all and any
of the assigning party's obligations under this Agreement. In the
event of an assignment by Buyer, Bombardier reserves the right as a
condition of its consent to amend one or more of the terms and
conditions of this Agreement.
20.3 Notwithstanding Article 20.2 above, Buyer may assign, after transfer
of title to any one or more of the Aircraft, its rights under this
Agreement to a third party purchaser of any one or more of the
Aircraft, provided said third party acknowledges in writing to be
bound by the applicable terms and conditions of this Agreement,
including but not limited to the provisions and limitations as
detailed Annex A, Customer Support Services, Annex B, Warranty and
Service Life Policy and of the provisions and limitations in
Limitation of Liability as defined in Article 19 hereof and Indemnity
Against Patent [* ] as defined in Article 18 hereof and
any other on-going obligations of Buyer, which shall apply to it to
the same extent as if said third party was Buyer hereunder, provided
however, that there is no increase to the liability and/or
responsibility of Bombardier.
20.4 Subject to Buyer's rights, defenses and claims herein, Bombardier may
only assign its rights to receive money hereunder without the prior
consent of Buyer provided that such third-party
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assignee shall acknowledge in writing that it shall be bound by the
applicable terms and conditions of this Agreement.
20.5 Notwithstanding the other provisions of this Article 20, Bombardier
shall, at Buyer's cost and expense, if so requested in writing by
Buyer, take any action reasonably required for the purpose of causing
any of the Aircraft to be subjected (i) to, upon or after the Delivery
Date, an equipment trust, conditional sale or lien, or (ii) to another
arrangement for the financing of the Aircraft by Buyer, providing,
however, there shall be no increase to the liability and/or
responsibility of Bombardier arising through such financing.
Bombardier hereby agrees that should Buyer's requested action be
limited to the consent to assignment of all or part of this Agreement
in accordance with the provisions of this Article 20, Bombardier shall
do so, if appropriate, at its own cost and expense.
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ARTICLE 21 - SUCCESSORS
21.1 This Agreement shall inure to the benefit of and be binding upon each
of Bombardier and Buyer and their respective successors and permitted
assigns [*
].
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ARTICLE 22 - APPLICABLE LAWS
22.1 THIS AGREEMENT SHALL BE SUBJECT TO AND CONSTRUED IN ACCORDANCE WITH
AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, UNITED STATES OF AMERICA INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE
OF NEW YORK, AND SPECIFICALLY EXCLUDING, TO THE FULLEST EXTENT
PERMITTED BY LAW, CHOICE OF LAW RULES TO THE EXTENT THAT SUCH RULES
WOULD RESULT IN THE APPLICATION OF LAWS OF ANY JURISDICTION OTHER THAN
THE STATE OF NEW YORK, AND THE PARTIES HAVE AGREED THAT THE
APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE
INTERNATIONAL SALE OF GOODS IS HEREBY EXCLUDED.
22.2 Each of Buyer and Bombardier agrees that any legal action or
proceeding with respect to this Agreement shall be brought exclusively
in the Federal Courts of the United States of America for the Southern
District Courts of New York or in the Supreme Court of the State of
New York in the County of New York and by the execution and delivery
of this Agreement irrevocably consents and submits to the jurisdiction
of each of the aforesaid court in personam with respect to any such
action or proceeding and irrevocably waive any objection either party
may have as to venue of any such suit, action or procedure brought in
such court or that such court is an inconvenient forum.
Notwithstanding the foregoing, nothing in this paragraph shall affect
the right of any party hereto or their successors or assigns to bring
any action or proceeding against the other party hereto or their
property in the courts of other jurisdictions as may be permitted by
applicable law (a) in order to enforce any final nonappealable
judgment obtained in any such New York court or (b) if both such New
York federal and state courts refuse to accept jurisdiction over such
legal action or proceeding. Both parties agree that service of any and
all legal process, summons, notices and other documents out of any
such courts may be made by delivering a copy thereof to such party in
the manner specified in Article 17.3 and to the address specified in
Article 17.1.
22.3 Bombardier's obligations under this Agreement shall be subject to and
apply only to the extent permitted by applicable laws, regulations,
directives or orders regarding export controls.
22.4 Buyer's obligations under this Agreement shall be subject to and apply
only to the extent permitted by applicable laws, regulations,
directives or orders regarding import controls.
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ARTICLE 23 - CONFIDENTIAL NATURE OF AGREEMENT
23.1 This Agreement and all information furnished or obtained pursuant to
this Agreement is confidential (provided that any such information so
furnished or obtained in written form is conspicuously designated or
marked as confidential). Each party hereto agrees to keep confidential
this Agreement and all information so furnished to or so obtained by
it pursuant to this Agreement and not to disclose the same, in whole
or in part, to third parties; provided, however, that a party (the
"Disclosing Party") may disclose this Agreement, its contents and any
such information:
(a) as has become public (other than as a result of disclosure by or on
behalf of the Disclosing Party) or has become known to such Disclosing
Party other than pursuant to this Agreement and without any breach of
any confidentiality obligation being known to such Disclosing Party;
and
(b) to the independent auditors and attorneys of the Disclosing Party (who
shall be advised of the confidential nature of this Agreement and such
information); and
(c) in response to any summons or subpoena or in connection with any
litigation, provided that, if practicable and not in violation of any
applicable law, rule, regulation or order, notice of such disclosure
shall be given to the other party hereto, and (if applicable and not
so in violation) in advance of such disclosure, and such other party
shall be permitted to resist such disclosure by the appropriate legal
proceedings, provided such resistance does not materially adversely
affect the Disclosing Party; and
(d) to the extent that such Disclosing Party reasonably believes it is
required in order to comply with any law, rule, regulation or order
(including, without limitation, applicable securities laws and
regulations) applicable to such party, provided that, if practicable
and not in violation of any such applicable law, rule, regulation or
order, notice of such disclosure shall be given to the other party,
and (if practicable and not so in violation) in advance of such
disclosure, and such other party shall be permitted (if practicable
and not so in violation) to resist or seek confidential treatment of
such disclosure and the Disclosing Party shall use all reasonable
efforts to cooperate with and assist the other party in resisting or
seeking confidential treatment of such disclosure, including
undertaking the appropriate proceedings or making the appropriate
applications or requests (at the cost of the other party) for such
purpose where such other party is not entitled to do so on its own
behalf; and
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(e) to a prospective assignee who Buyer reasonably believes
is an eligible assignee under Article 20 hereof and which
prospective assignee has agreed to be bound by the provisions
of this paragraph in connection with any contemplated
assignment, provided, however, that no such disclosure shall
be made pursuant to this clause (e) to any potential assignee
which is a Competitor of Bombardier; and
(f) as may be reasonably necessary for either party to carry out
its obligations or enforce or protect its right under this
Agreement or other agreements related to this Agreement to
which it is a party; and
(g) as may be required by financial institutions or arrangers
involved with the financing of the Aircraft, which financial
institutions or arranger agree in writing to be bound by the
provisions of this section; and
(h) as may be reasonably required by Bombardier for purposes of
analytical or technical product support or improvement or
enhancement of customer support services or otherwise in the
ordinary course of its aircraft manufacturing, marketing or
service business and operations.
23.2 Either party may announce the signing of this Agreement by means of a
notice to the press provided that the content and date of the notice
has been agreed to by the other party.
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ARTICLE 24 - AGREEMENT
24.1 This Agreement and the matters referred to herein constitute the
entire Agreement between Bombardier and Buyer and supersede and cancel
all prior representations, brochures, alleged warranties, statements,
negotiations, undertakings, letters, memoranda of agreement,
proposals, acceptances, agreements, understandings, contracts and
communications, whether oral or written, between Bombardier and Buyer
or their respective agents, with respect to or in connection with the
subject matter of this Agreement and no agreement or understanding
varying the terms and conditions hereof shall be binding on either
Bombardier or Buyer hereto unless an amendment to this Agreement is
issued and duly signed by their respective authorized representatives
pursuant to the provisions of this Article hereof. In the event of any
inconsistencies between this Agreement and Letter Agreements the
provisions of the Letter Agreements shall prevail.
24.2 If any of the provisions of this Agreement are for any reason declared
by judgment of a court of competent jurisdiction to be unenforceable
or ineffective, those provisions shall be deemed severable from the
other provisions of this Agreement and the remainder of this Agreement
shall remain in full force and effect.
24.3 Bombardier and Buyer confirm to each other they have each obtained the
required authorizations and fulfilled any conditions applicable to
enable each of them to enter into this Agreement.
24.4 Buyer and Bombardier agree that this Agreement has been the subject of
discussion and negotiation and is fully understood by the parties
hereto and that the price of the Aircraft and the other mutual
agreements of the parties set forth herein were arrived at in
consideration of the provisions contained in Article 19.
24.5 This Agreement may be executed in counterparts each of which will
constitute one and the same document.
24.6 The parties agree that time is of the essence in all matters
concerning this Agreement.
24.7 The failure of either party to enforce at any time any of the
provisions of this Agreement of or require at any time performance of
any of the provisions hereof, shall in no way be construed to be a
waiver of such provisions, nor in any way affect the validity of this
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Agreement or any part hereof or the right of any such party thereafter
to enforce each and every provision of this Agreement.
24.8 Buyer and Bombardier shall supply the other party within ten (10) days
of execution of this Agreement a legal opinion in a form reasonably
acceptable to the other party, prepared by external counsel, as to the
due authorization, execution and delivery of the Agreement by such
party and that it is a legally valid, binding obligation of Bombardier
and enforceable in accordance with its terms, save and except for
general laws affecting creditors and their availability of equitable
remedies.
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In witness whereof this Agreement was signed on the date written hereof:
For and on behalf of For an on behalf of
Atlantic Southeast Airlines, Inc.: Bombardier Inc.:
By:\s\ Ronald V. Sapp By:\s\ Robert E. Brown
------------------------------- ------------------------------------
Name: Ronald V. Sapp Name: Robert E. Brown
Title: Vice President-Finance Title: President,
Bombardier Aerospace Group
By:\s\ Pierre Lortie
------------------------------------
Name: Pierre Lortie
Title: President,
Bombardier Regional Aircraft
Division
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APPENDIX I
----------
REGIONAL JET AIRCRAFT
---------------------
ECONOMIC ADJUSTMENT FORMULA
---------------------------
Pursuant to the provision of Article 4 of this Agreement, economic adjustment
will be calculated using the following Economic Adjustment Formula:
PP = [* ]
Where:
PP = [* ]
PO = [* ]
LD = [*
]
LO = [*
]
ED = [*
]
EO = [*
]
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CD = [*
]
CO = [*
]
MD = [*
]
MO = [*
]
FD = [* ]
FO = [*
]
For the purpose of the Economic Adjustment Formula and the calculation of the
economic adjustment:
(a) [*
]
(b) [*
]
(c) [*
65
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]
(d) [*
]
(e) [*
]
(f) [*
]
(g) [*
]
1) [*
]
2) [*
]
3) [*
]
66
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[*
]
(a) [*
]
(b) [*
]
(c) [*
]
67
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APPENDIX II
-----------
DELIVERY SCHEDULE
-----------------
<TABLE>
<S> <C> <C>
First Aircraft AUGUST 1997
SECOND AIRCRAFT SEPTEMBER 1997
THIRD AIRCRAFT OCTOBER 1997
FOURTH AIRCRAFT NOVEMBER 1997
FIFTH AIRCRAFT DECEMBER 1997
SIXTH AIRCRAFT JANUARY 1998
SEVENTH AIRCRAFT FEBRUARY 1998
EIGHTH AIRCRAFT MARCH 1998
NINTH AIRCRAFT APRIL 1998
TENTH AIRCRAFT MAY 1998
ELEVENTH AIRCRAFT JUNE 1998
TWELFTH AIRCRAFT JULY 1998
THIRTEENTH AIRCRAFT AUGUST 1998
FOURTEENTH AIRCRAFT SEPTEMBER 1998
FIFTEENTH AIRCRAFT OCTOBER 1998
SIXTEENTH AIRCRAFT NOVEMBER 1998
SEVENTEENTH AIRCRAFT DECEMBER 1998
EIGHTEENTH AIRCRAFT JANUARY 1999
NINETEENTH AIRCRAFT FEBRUARY 1999
TWENTIETH AIRCRAFT MARCH 1999
TWENTY-FIRST AIRCRAFT APRIL 1999
TWENTY-SECOND AIRCRAFT MAY 1999
TWENTY-THIRD AIRCRAFT JUNE 1999
TWENTY-FOURTH AIRCRAFT JULY 1999
TWENTY-FIFTH AIRCRAFT AUGUST 1999
TWENTY-SIXTH AIRCRAFT SEPTEMBER 1999
TWENTY-SEVENTH AIRCRAFT OCTOBER 1999
TWENTY-EIGHTH AIRCRAFT NOVEMBER 1999
TWENTY-NINTH AIRCRAFT DECEMBER 1999
THIRTIETH AIRCRAFT JANUARY 2000
</TABLE>
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APPENDIX III
SPECIFICATION
TYPE SPECIFICATION
NUMBER RAD-601R-145 ISSUE NC
FEBRUARY 14, 1997
[125 PAGES OF SPECIFICATIONS HAVE BEEN OMITTED AND FILED
SEPARATELY WITH THE SEC]
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APPENDIX IV
-----------
BUYER SELECTED OPTIONAL FEATURES
--------------------------------
<TABLE>
<CAPTION>
CR No. Description U.S. DOLLARS
[* ]
<S> <C> <C>
00-008 Extended Range (51,000 LBS mtow) [* ]
00-009 Centre Wing Fuel Tank [* ]
00-012 Additional Flap Setting [* ]
00-013 FAA Collins Strapping [* ]
21-009 Air Conditioning from Ground Cart [* ]
23-012 Third VHF Full Provision [* ]
24-003 Alternate Power for Maintenance, Cargo and Boarding Lights [* ]
25-065 Customized Exterior Paint - ASA [* ]
25-099 Seat Recline [* ]
25-100 Automatic Temperature Control for Baggage Compartment [* ]
25-306 Customized Universal Interior - ASA [* ]
27-005 Reduction in VREF and V2 Airspeeds [* ]
30-001 Red Anti-Ice Warning Light (FAA) [* ]
33-002 Logo Lights [* ]
33-003 Red Beacon Light [* ]
33-004 Cargo Door Light [* ]
34-013 Provision for Collins FMS [* ]
34-024 Optional Color VOR Antenna [* ]
34-026 GPWS Audio Call-out - Altitude Menu Selection [* ]
34-027 Altimeter Baro Setting [* ]
34-035 Single Collins FMS 4200 [* ]
34-037 *Single Collins GPS 4000 [* ]
35-004 EROS Magic Mask Installation [* ]
72-002 CRJ-200 (CF34-3B1 Engines) Basic Performance [* ]
TOTAL BUYER SELECTED OPTIONAL FEATURES [* ]
* [* ]
</TABLE>
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EXHIBIT I
CERTIFICATE OF ACCEPTANCE
The undersigned hereby acknowledges on behalf of Buyer acceptance of the
Aircraft bearing manufacturer's serial number ____________________ fitted with
two (2) General Electric CF34-3B1 turbofan engines bearing serial numbers
_____________________ and __________________ as being in accordance with the
terms and conditions of this Agreement signed on the day of ___________, 1997
between Bombardier Inc. and Buyer.
Place: Date:
------------------------------ ----------------------------
SIGNED FOR AND ON BEHALF OF
ATLANTIC SOUTHEAST AIRLINES, INC.
By:
---------------------------------
Title:
------------------------------
71
Purchase Agreement P.A.-0372
Atlantic Southeast Airlines, Inc.
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EXHIBIT II
WARRANTY BILL OF SALE
1. For valuable consideration, Bombardier Inc., as owner of the full legal
and beneficial title of the Aircraft described as follows:
One Canadair Regional Jet Model CL-600-2B19 Aircraft Bearing:
Manufacturer's serial number: _________________________,
With:
Two (2) CF34-3B1 engines serial numbers: _________________________
together with all avionics, appliances, instruments, appurtenances,
accessories, furnishings and/or other equipment or property
incorporated in or installed on or attached to said Aircraft and
engines (hereinafter referred to as the "Aircraft") does this
day of 19 hereby convey, sell, grant, transfer, bargain and
deliver and set over to Atlantic Southeast Airlines, Inc. (hereinafter
referred to as "Buyer"), and unto its successors and assigns forever
all of Bombardier Inc.'s right, title and interest in and to such
Aircraft.
2. Bombardier Inc. represents and warrants to Buyer:
(i) that Bombardier Inc. has good and marketable title to the
Aircraft and the good and lawful right to the Aircraft and the
good and lawful right to sell the same to Buyer; and
(ii) the good and marketable title to the Aircraft is hereby duly
vested in Buyer free and clear of all claims, liens,
encumbrances and rights of others of any nature. Bombardier
Inc. hereby covenants and agrees to defend such title forever
against all claims and demands whatsoever.
This full Warranty Bill of Sale is governed by the internal laws of the State of
New York, United States of America.
IN WITNESS WHEREOF, Bombardier Inc. has caused this instrument to be executed
and delivered by its duly authorized personnel.
BOMBARDIER INC.:
Per:
---------------------
Title:
-------------------
72
<PAGE> 73
EXHIBIT II CONT'D
F.A.A. BILL OF SALE
United States of America FORM APPROVED
U.S. Department of Transportation OMB NO. 2120-0042
Federal Aviation Administration
AIRCRAFT BILL OF SALE
FOR AND IN CONSIDERATION OF $ THE UNDERSIGNED
OWNER(S) OF THE FULL LEGAL AND BENEFICIAL TITLE OF THE
AIRCRAFT DESCRIBED AS FOLLOWS:
UNITED STATES
REGISTRATION NUMBER N
AIRCRAFT MANUFACTURER & MODEL
AIRCRAFT SERIAL NO.
DOES THIS DAY OF 19
HEREBY SELL, GRANT, TRANSFER AND DELIVER ALL
RIGHTS, TITLE, AND INTERESTS IN AND TO SUCH
AIRCRAFT UNTO: Do Not Write In This Block
FOR FAA USE ONLY
PURCHASER
NAME AND ADDRESS
(IF INDIVIDUAL(S), GIVE LAST NAME, FIRST NAME, AND MIDDLE INITIAL)
DEALER CERTIFICATE NUMBER
AND TO EXECUTORS, ADMINISTRATORS, AND ASSIGNS TO HAVE AND TO HOLD SINGULARLY
THE SAID AIRCRAFT FOREVER, AND WARRANTS THE TITLE THEREOF.
IN TESTIMONY WHEREOF HAVE SET HAND AND SEAL THIS DAY OF 19
SELLER
NAME(S) OF SELLER SIGNATURE(S) TITLE
(TYPED OR PRINTED) IN INK) (IF EXECUTED (TYPED OR PRINTED)
FOR CO-OWNERSHIP, ALL MUST
SIGN)
ACKNOWLEDGMENT (NOT REQUIRED FOR PURPOSES OF FAA RECORDING: HOWEVER, MAY BE
REQUIRED BY LOCAL LAW FOR VALIDITY OF THE INSTRUMENT.)
ORIGINAL: TO FAA
AC Form 8050-2 (9/92) (NSN 0052-00-629-0003) Supersedes Previous Edition
Purchase Agreement P.A.-0372
Atlantic Southeast Airlines, Inc.
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EXHIBIT III
CERTIFICATE OF RECEIPT OF AIRCRAFT
THE UNDERSIGNED HEREBY ACKNOWLEDGES TO HAVE RECEIVED FROM BOMBARDIER
INC., IN DORVAL, PROVINCE OF QUEBEC, CANADA, ON THE _____________ DAY OF
______________, AT THE HOUR OF _____________ O'CLOCK, ONE (1) CANADAIR REGIONAL
JET AIRCRAFT MODEL CL-600-2B19 INCLUDING WITH THE AIRCRAFT TWO (2) CF34-3B1
TURBOFAN ENGINES BEARING MANUFACTURER'S SERIAL NUMBERS _____________ &
__________________.
Signed for and on behalf of
Atlantic Southeast Airlines, Inc.
By:
--------------------------------
Title:
-----------------------------
74
<PAGE> 75
EXHIBIT IV
CHANGE ORDER
(PRO FORMA)
<PAGE> 76
CONTRACT CHANGE ORDER
PURCHASER:
PURCHASE AGREEMENT NO.: AIRCRAFT TYPE:
C.C.O. NO.: DATED:
PAGE __ of __
PAGES AFFECTED:
________________________________________________________________________________
1.0 REASON FOR CHANGE
[DESCRIBE IF BUYER REQUESTED, AGREED CHANGE, REGULATORY CHANGE AND REASON
FOR CHANGE]
2.0 DESCRIPTION OF CHANGE
3.0 PRICE
[DESCRIBE THE IMPACT ON AIRCRAFT PURCHASE PRICE AND [* ]
4.0 PAYMENT
[DESCRIBE METHOD AND TIME OF PAYMENT OF CHANGE]
5.0 CUSTOMER SERVICES
[DESCRIBE IMPACT ON TRAINING, WARRANTY, SERVICE LIFE POLICY, TECHNICAL DATA
AND GUARANTEES]
6.0 TECHNICAL MATTERS
[DESCRIBE IMPACT ON PERFORMANCE GUARANTEE, SPECIFICATION, WEIGHT AND
INTERCHANGEABILITY]
7.0 OTHER
[DESCRIBE EFFECTIVITY OF CHANGE, RETROFIT PLANS IF APPLICABLE AND IMPACT ON
DELIVERY DATE]
ALL OTHER TERMS AND CONDITIONS OF THE AGREEMENT WILL REMAIN UNCHANGED
FOR ADMINISTRATIVE PURPOSES ONLY, A CONSOLIDATION OF THE AMENDMENTS CONTAINED IN
THIS CCO IS ATTACHED. IN THE EVENT OF INCONSISTENCIES BETWEEN THE CONSOLIDATION
AND THIS CCO, THIS CCO SHALL PREVAIL.
FOR AND ON BEHALF OF: FOR AND ON BEHALF OF:
Bombardier Inc. ______________________________
Signed: Signed:
----------------------- ---------------------
Date: Date:
------------------------- -----------------------
76
<PAGE> 77
ANNEX "A"
CUSTOMER SUPPORT SERVICES
TECHNICAL SUPPORT, SPARE PARTS, TRAINING AND TECHNICAL DATA
The following Customer Support Services are those services to which reference is
made in Article 3 of this Agreement.
ARTICLE 1 - TECHNICAL SUPPORT
1.1 FACTORY SERVICE
Bombardier agrees to maintain or cause to be maintained the capability
to respond to Buyer's technical inquiries, to conduct investigations
concerning repetitive maintenance problems and to issue findings and
recommend action thereon. [*
].
Bombardier Customer Services Action Center maintains coverage
twenty-four (24) hours a day, three hundred and sixty-five (365) days a
year to receive and respond to operator technical and operational
queries. Specialists accessible through the Action Center include
airframe, interiors, avionics, electrical, propulsion and
hydro-mechanical systems. Interface can also be provided with vendor
and technical publications personnel.
1.2 FIELD SERVICE REPRESENTATIVE
1.2.1 SERVICES
Bombardier shall assign [* ] Field Service Representative
("FSR") to Buyer's main base of operation or other location as
may be mutually agreed.
1.2.2 TERM
Such assignment shall be for [* ], and shall commence
approximately one (1) month prior to the Delivery Date of the
first Aircraft. The FSR assignment may be extended on terms
and conditions to be mutually agreed.
A-1
Purchase Agreement P.A.-0372
Atlantic Southeast Airlines, Inc.
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<PAGE> 78
1.2.3 RESPONSIBILITY
The FSR's responsibility shall be to provide technical advice
to Buyer for the line maintenance and operation of the
Aircraft systems and troubleshooting during scheduled and
unscheduled maintenance by Buyer's designated personnel ("FSR
Services").
1.2.4 TRAVEL
If requested by Buyer, the FSR may, at Buyer's expense, travel
to another location to provide technical advice to Buyer.
1.2.5 OFFICE FACILITIES
Buyer shall furnish the FSR, at no charge to Bombardier,
suitable and private office facilities and related equipment
including desk, file cabinet, access to two telephone lines,
facsimile and photocopy equipment conveniently located at
Buyer's main base of operation or other location as may be
mutually agreed.
1.2.6 ADDITIONAL EXPENSES
Buyer shall reimburse Bombardier (net of any additional taxes
on such reimbursement) the amount of any and all taxes (except
taxes assessed on the income of the FSR by Canada, or any
province thereof and succeeding to the territory thereto or
any governmental authority having jurisdiction over Bombardier
or any successor agency to the Canadian taxing authorities)
and fees of whatever nature, including any customs duties,
withholding taxes or fees together with any penalties or
interest thereon, paid or incurred by Bombardier or the FSR or
other Bombardier employee as a result of or in connection with
the rendering of the services. Taxes subject to reimbursement
by Buyer hereunder shall be net of all credits issued by any
Canadian or other taxing authority having jurisdiction to levy
such taxes.
1.2.7 RIGHT TO STOP WORK
Bombardier shall not be required to commence or continue the
FSR Services when:
a.) there is a labour dispute or work stoppage in
progress at Buyer's facilities;
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b.) there exist war, risk of war or warlike operations,
riots or insurrections;
c.) there exist conditions that are dangerous to the
safety or health of the FSR or other Bombardier
employee; or
d.) the Government of the country where Buyer's
facilities are located or where Buyer desires the FSR
to travel refuses the Bombardier employee permission
to enter said country or Buyer's base of operations.
1.2.8 WORK PERMITS AND CLEARANCES
Buyer shall agree to cooperate with Bombardier in obtaining
and arranging for all necessary work permits and airport
security clearances required for the FSR or other Bombardier
employees to permit timely accomplishment of the FSR services.
1.3 MAINTENANCE PLANNING SUPPORT
1.3.1 SCHEDULED MAINTENANCE TASK CARDS
As described in Annex A Attachment A, Bombardier shall provide
Buyer Bombardier's standard format scheduled maintenance task
cards that shall conform to the Aircraft at the Delivery Date.
At Buyer's request Bombardier shall provide a proposal for
task cards produced to Buyer's format.
1.3.2 IN-SERVICE MAINTENANCE DATA
Buyer agrees to provide to Bombardier in-service maintenance
data in order to provide updates to Bombardier's recommended
maintenance program. Buyer and Bombardier shall agree on
standards and frequency for communication of such data.
Bombardier agrees not to disclose Buyer's identity on any of
Buyer's maintenance data that Bombardier may provide to any
third parties.
1.4 ADDITIONAL SERVICES
At Buyer's request Bombardier shall provide a proposal to
provide such additional support services as the parties may
agree upon, which may include special investigations,
maintenance and repair of the Aircraft.
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ARTICLE 2 - SPARE PARTS, GSE, TOOLS AND TEST EQUIPMENT
2.1.1 DEFINITIONS
a. "BRAD PARTS":
any spare parts, ground support equipment, tools and test
equipment which bear an in-house Cage Code number in the BRAD
Provisioning Files (as that expression is defined in ATA
Specification 2000).
b. "POWER PLANT PARTS":
any power plant or power plant part or assembly carrying the
power plant manufacturer's part number or any part furnished
by the power plant manufacturer for incorporation on the
Aircraft.
c. "VENDOR PARTS":
any spare parts, ground support equipment, tools and test
equipment for the Aircraft which are not BRAD Parts or Power
Plant Parts for stock items;
d. "SPARE PARTS":
all materials, spare parts, assemblies, special tools and
items of equipment, including ground support equipment,
ordered for the Aircraft by Buyer from Bombardier. The term
Spare Parts includes BRAD Parts, Power Plant Part and Vendor
Parts.
e. "ORDER":
any order for Spare Parts issued by Buyer to Bombardier; and
f. "TECHNICAL DATA":
shall have the meaning attributed to it in Annex A Article
4.1.
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2.1 TERM AND APPLICABILITY
The term of this Annex A Article 2 shall become effective on
the date hereof and shall remain in full force and effect with
respect to the purchase and sale of Spare Parts for each
Aircraft [*
]. The provisions of Annex A Articles
2.2, 2.6.5, and Articles 19 to this Agreement shall survive
expiration or termination of this Agreement.
2.2 ORDER TERMS
Terms and conditions hereof shall apply to all Orders placed
by Buyer with Bombardier in lieu of any terms and conditions
in Buyer's purchase orders.
2.3 PURCHASE AND SALE OF SPARE PARTS
2.3.1 AGREEMENT TO MANUFACTURE AND SELL
Bombardier shall manufacture, or procure, and make
available for sale to Buyer suitable Spare Parts in
quantities sufficient to meet the reasonably
anticipated needs of Buyer for normal maintenance and
normal spares inventory replacement for each
Aircraft. During the term specified in Annex A
Article 2.1 above, Bombardier shall also maintain a
shelf stock of certain BRAD Parts selected by
Bombardier to ensure reasonable re-order lead times
and emergency support. Bombardier shall maintain a
reasonable quantity of Bombardier insurance parts.
Insurance parts as used herein shall include, but not
be limited to, dispatch-essential parts such as major
flight control surfaces.
2.4 AGREEMENT TO PURCHASE BRAD PARTS
2.4.1 PURCHASE OF BRAD PARTS
[*
].
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2.4.2 BUYER'S RIGHT TO REDESIGN OR MANUFACTURE
Buyer's right to redesign or to have redesigned or manufacture
or to have manufactured BRAD Parts under the following
conditions:
a) When less than [* ] of the type purchased
hereunder are operated in scheduled commercial air
transport service;
b) Any time BRAD Parts are needed to effect emergency
repairs on the Aircraft, provided that such redesign
or manufacture allows Buyer to obtain BRAD Parts in
less time than Bombardier requires to furnish them;
or
c) If Buyer has notified Bombardier in writing that any
BRAD Parts are defective or unsatisfactory in use and
if within a reasonable period thereafter Bombardier
has not provided a satisfactory resolution or made
redesigned BRAD Parts available.
Buyer's right to redesign or to have redesigned or manufacture
or to have manufactured BRAD Parts hereunder, shall not be
construed as a granting of a license by Bombardier and shall
not obligate Bombardier to disclose to anyone Technical Data
or other information nor to the payment of any license fee or
royalty or create any obligation whatsoever to Bombardier and
Bombardier shall be relieved of any obligation or liability
with respect to patent infringement in connection with any
such redesigned part. Buyer shall be responsible for obtaining
all regulatory authority approvals required by Buyer to repair
the Aircraft using redesigned or manufactured BRAD Parts as
described in this preceding Article. Any such redesigned part
shall be identified with Buyer's part number only.
2.4.3 NOTICE TO BOMBARDIER OF REDESIGNED PARTS
Bombardier reserves the right to negotiate with Buyer the
access to redesigned parts, drawings and the exclusive
manufacturing rights of the redesigned part, if Buyer
redesigns or has had any BRAD Parts redesigned.
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2.5 PURCHASE OF VENDOR PARTS & POWER PLANT PARTS
Bombardier shall not be obligated to maintain a stock of Power
Plant Parts. Bombardier shall maintain a spares stock of
selected Vendor Parts at its own discretion to support
provisioning and replenishment sales. Bombardier agrees to use
reasonable efforts to require its vendors to comply with the
terms and conditions of this Annex A Article 2 as they apply
to Vendor Parts. Vendor Parts shall be delivered in accordance
with the vendor's quoted lead time plus Bombardier's internal
processing time.
2.6 SPARE PARTS PRICING
2.6.1 SPARE PARTS PRICE CATALOGUE
Prices for commonly used BRAD Parts stocked by
Bombardier shall be published in the spare parts
price catalogue ("Spare Parts Price Catalogue").
[*
]
2.6.2 BOMBARDIER PRICES FOR VENDOR PARTS
If Buyer orders Vendor Parts from Bombardier, the
price shall be as published in the Spare Parts Price
Catalogue.
2.6.3 QUOTATIONS
Price and delivery quotations for items not included
in the Spare Parts Price Catalogue shall be provided
at Buyer's request by Bombardier. Price quotations
will be held firm for a period of ninety (90)
calendar days or as otherwise specified by
Bombardier. Responses to quotation requests will be
provided within ten (10) calendar days.
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2.6.4 PRICE APPLICABILITY
The purchase price of BRAD Parts shall be the
applicable price set forth in the Spare Parts Price
Catalogue at time of receipt by Bombardier of Buyer's
Order or as quoted by Bombardier to Buyer upon
request. If Buyer requests accelerated delivery or
special handling for BRAD Parts not included in the
Spare Parts Price Catalogue, Bombardier may increase
the price from the original quotation to cover any
additional costs to Bombardier.
2.6.5 CURRENCY AND TAXES
All Spare Parts Price Catalogue and quotation prices
shall be in U.S. dollars and exclusive of
transportation, taxes, duties and licenses.
Buyer shall pay to Bombardier upon demand the amount
of any sales, use, value-added, excise or similar
taxes imposed by any federal, provincial or local
taxing authority within Canada, and the amount of all
taxes imposed by any taxing authority outside Canada,
required to be paid by Bombardier as a result of any
sale, use, delivery, storage or transfer of any Spare
Parts to or on behalf of Buyer. If Bombardier has
reason to believe that any such tax is applicable,
Bombardier shall separately state the amount of such
tax in its invoice. If a claim is made against
Bombardier for any such tax, Bombardier shall
promptly notify Buyer.
In addition, Buyer shall pay to Bombardier on demand
the amount of any customs duties required to be paid
by Bombardier with respect to the importation by
Buyer of any Spare Parts.
2.6.6 VENDOR PRICING
Bombardier shall use reasonable efforts to require
its major vendors to [*
] with a ninety (90) calendar day notice period
prior to changing a published price.
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2.7 PROVISIONING
2.7.1 PRE-PROVISIONING/PROVISIONING CONFERENCE
Pre-provisioning and provisioning conferences shall be
convened on dates to be mutually agreed between Buyer and
Bombardier in order to:
(i) discuss the operational parameters to be provided by
Buyer to Bombardier which Bombardier considers
necessary for preparing its quantity recommendations
for initial provisioning of Spare Parts to be
purchased from Bombardier or vendors ("Provisioning
Items");
(ii) review Buyer's ground support equipment and special
tool requirements for the Aircraft;
(iii) discuss the format of the provisioning documentation
to be provided to Buyer from Bombardier for the
selection of Provisioning Items; and
(iv) arrive at a schedule of events for the initial
provisioning process, including the establishment of
a date for the initial provisioning conference
("Initial Provisioning Conference") which shall be
scheduled as mutually agreed and as early as
practicable.
The time and location of the pre-provisioning conference shall
be mutually agreed upon between the parties; however,
Bombardier and Buyer shall use their best efforts to convene
such meeting within thirty (30) days after execution of this
Agreement.
2.8 INITIAL PROVISIONING DOCUMENTATION
Initial provisioning documentation for BRAD Parts and Vendor Parts
shall be provided by Bombardier as follows:
a) Bombardier shall provide, as applicable to Buyer, promptly
after completion of the Initial Provisioning Conference, or as
may be mutually agreed, the initial issue of provisioning
files as required by ATA Specification 2000, Chapter 1 (as may
be amended by Bombardier);
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Revisions to this provisioning data shall be issued by
Bombardier every ninety (90) calendar days until ninety (90)
calendar days following the Delivery Date of the last Aircraft
or as may be mutually agreed;
b) Bombardier shall provide, as required by Buyer, all data files
defined in Chapter 1 of ATA Specification 2000; and
c) the Illustrated Parts Catalogue designed to support
provisioning shall be issued concurrently with provisioning
data files and revised at ninety (90) calendar day intervals.
2.8.1 [* ]
[*
].
2.8.2 [* ]
[*
].
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2.8.3 [* ]
2.8.3.1 [*
]
2.8.3.2 [*
]
2.8.3.3 [* ] above and if requested
by Buyer, Bombardier agrees to consider but
is not obligated to repurchase used BRAD
Parts at reasonable prices at the time of
said request.
2.8.4 EXCEPTIONS
[*
]
2.8.5 NOTIFICATION AND FORMAT
[*
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]. Buyer's
notification shall include a detailed summary, in
part number sequence, of the Provisioning Items
[* ]. Such summary shall be in
the form of listings as may be mutually agreed
between Bombardier and Buyer, and shall include part
number, nomenclature, purchase order number, purchase
order date and quantity [* ].
Within five (5) business days after receipt of
Buyer's notification Bombardier shall advise Buyer,
in writing, when Bombardier's review of such summary
from Buyer will be completed.
2.8.6 REVIEW AND ACCEPTANCE BY BOMBARDIER
Upon completion of Bombardier's review of any
detailed summary submitted by Buyer pursuant to Annex
A Article 2.8.5., Bombardier shall issue [*
]
2.8.7 PRICE AND PAYMENT
2.8.7.1 [*
]
2.8.7.2 [*
]
2.8.7.3 [*
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]
2.8.8 [* ]
[*
]
2.8.9 [* ]- TITLE AND RISK OF
LOSS
[*
]
[*
]
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2.9 PROCEDURE FOR ORDERING SPARE PARTS
Orders for Spare Parts may be placed by Buyer to Bombardier by any
method of order placement (including but not limited to SITA, ARINC,
telecopier, letter, telex, facsimile, telephone or hard copy purchase
order).
2.9.1 REQUIREMENTS
Orders shall include at a minimum order number, part number,
nomenclature, quantity, delivery schedule requested, shipping
instructions and Bombardier's price, if available. Buyer
agrees that orders placed with Bombardier shall conform to the
requirements and procedures contained in ATA Specification
2000, as applicable to Buyer.
2.9.2 PROCESSING OF ORDERS
Upon acceptance of any Order, unless otherwise directed by
Buyer, Bombardier shall, if the Spare Parts are in stock,
proceed immediately to prepare the Spare Parts for shipment to
Buyer. If Bombardier does not have the Spare Parts in stock,
Bombardier shall proceed immediately to acquire or manufacture
the Spare Parts. Purchase order status and actions related to
the shipment of Spare Parts shall be generally consistent with
the provisions of the World Airline Suppliers Guide and the
applicable portions of ATA Specification 2000, as applicable
to Buyer.
2.9.3 CHANGES
Bombardier reserves the right, without Buyer's consent, to
make any necessary corrections or changes in the design, part
number and nomenclature of Spare Parts covered by an Order, to
substitute Spare Parts and to adjust prices accordingly,
provided that interchangeability is not affected and the unit
price is not increased by more than 10% or $50.00, whichever
is less. Bombardier shall promptly give Buyer written notice
of corrections, changes, substitutions and consequent price
adjustments. Corrections, changes, substitutions and price
adjustments which affect interchangeability or exceed the
price limitations set forth above may be made only with
Buyer's consent, which consent shall conclusively be deemed to
have been given unless Buyer gives Bombardier written notice
of objection within fifteen (15) business days after receipt
of Bombardier's notice. In case of any objection, the affected
Spare Part will be deemed to be deleted from Buyer's Order.
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2.9.4 ELECTRONIC DATA INTERCHANGE
Should Bombardier implement an Electronic Data Interchange
("EDI") process for the order of spare parts for the Aircraft
or other products of Bombardier, Buyer and Bombardier hereby
agree to implement mutually acceptable procedures to safeguard
the security of the process and the validity of the EDI
orders.
2.10 PACKING
All Spare Parts ordered shall receive standard commercial packing
suitable for export shipment via air freight. Such standard packing
will generally be to ATA 300 standards as amended from time to time.
All AOG orders will be handled, processed, packed and shipped
separately.
2.11 PACKING LIST
Bombardier shall insert in each shipment a packing list/release note
itemized to show:
(i) the contents of the shipment,
(ii) the approved signature of Bombardier's TC authority attesting
to the airworthiness of the Spare Parts which is the
equivalent to the FAA authorized Release Certificate 8130.
(iii) value of the shipment for customs clearance if required.
2.12 CONTAINER MARKS
Upon Buyer's request each container shall be marked with shipping marks
as specified on the Order. In addition Bombardier shall, upon request,
include in the markings: gross weight and cubic measurements.
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2.13 DELIVERY, TITLE AND RISK OF LOSS
2.13.1 DELIVERY POINT
Spare Parts shall be delivered to Buyer in one of the
following manners at Bombardier's sole option:
(i) at Bombardier's plant in either Ontario or Quebec,
Canada; or
(ii) at other Bombardier depots or shipping points; or
(iii) at vendor's or subcontractor's plant.
In all cases ready for export with all costs of freight,
carriage or insurance to be borne by Buyer.
2.13.2 DELIVERY TIME
Bombardier shall use reasonable efforts so that shipment of
BRAD Parts to Buyer be as follows:
a) AOG ORDERS
Ship AOG Orders within four (4) hours of receipt of Order.
Buyer's affected Aircraft factory production number shall be
required on AOG Orders;
b) CRITICAL ORDERS (A1)
Ship critical Orders within twenty-four (24) hours of order
receipt;
c) EXPEDITE ORDERS (A2)
Ship expedite Orders within seven (7) calendar days of order
receipt; for stock items.
d) INITIAL PROVISIONING ORDERS
Prior to the Delivery Date of the first Aircraft or as may be
mutually agreed; and
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e) OTHER ORDERS
Shipment of stock items shall be approximately within thirty
(30) calendar days or sooner after Bombardier's receipt of
Buyer's Order. Shipment of non-stock items shall be in
accordance with quoted lead times or lead times published in
the current Spare Parts Price Catalogue, procurement data, or
provisioning data.
2.14 COLLECT SHIPMENTS
Where collect shipments are not deemed practicable by Bombardier,
charges for shipment, insurance, prepaid freight charges and all other
costs paid by Bombardier shall be paid by Buyer promptly upon
presentation to Buyer of invoices covering the same.
2.15 FREIGHT FORWARDER
If Buyer elects to use the services of a freight forwarder for the
onward movement of Spare Parts, Buyer agrees to release Bombardier from
and indemnify it for any liability for any fines or seizures of Spare
Parts imposed under any governmental Goods in Transit regulations. Any
such fines levied against Bombardier will be invoiced to Buyer and any
Spare Parts seized under such regulations will be deemed to be
received, inspected, and accepted by Buyer at the time of seizure.
2.16 REIMBURSEMENT OF EXPENSES
If Bombardier gives Buyer written notice that an Order is ready for
shipment and shipment is delayed more than thirty (30) days at Buyer's
request or without Bombardier's fault or responsibility, Buyer shall
promptly reimburse Bombardier upon demand for all costs and expenses,
including but not limited to reasonable amounts for storage, handling,
insurance and taxes, incurred by Bombardier as a result of such delay.
2.17 TITLE AND RISK OF LOSS
Title and risk of loss of the Spare Parts will pass to the Buyer upon
delivery by Bombardier. With respect to Spare Parts rejected by Buyer
pursuant to Annex A Article 2.19, risk of loss shall remain with Buyer
until such Spare Parts are re-delivered to Bombardier .
Bombardier agrees to notify Buyer when material is shipped and shall
provide carrier's reference information (i.e., waybill number).
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2.18 INSPECTION AND ACCEPTANCE
All Spare Parts shall be subject to inspection by Buyer at destination.
Use of Spare Parts or failure of Buyer to give notice of rejection,
within thirty (30) days after receipt or with respect to latent defects
only within thirty (30) days after discovery of such latent defect,
shall constitute acceptance. Acceptance shall be final and Buyer waives
the right to revoke acceptance for any reason, whether or not known to
Buyer at the time of acceptance. Buyer's remedies for defects
discovered before acceptance are exclusively provided for in Annex A
Article 2.19 herein.
2.19 REJECTION
Any notice of rejection referred to in Annex A Article 2.18 shall
specify the reasons for rejection. If Bombardier concurs with a
rejection, Bombardier shall, at its option, correct, repair or replace
the rejected Spare Parts. Buyer shall, upon receipt of Bombardier's
written instructions and Material Return Authorization ("MRA") number,
return the rejected Spare Parts to Bombardier at its specified plant,
or other destination as may be mutually agreeable. The return of the
rejected Spare Parts to Bombardier and the return or delivery of a
corrected or repaired rejected Spare Part or any replacement for any
such Spare Part to Buyer shall be at Bombardier's expense. Any
corrected, repaired or replacement Spare Parts shall be subject to the
provisions of this Agreement.
2.20 PAYMENT
Except as provided in Annex A Article 2.22 below, payment terms shall
be net thirty (30) calendar days of invoice date for established open
accounts [*
] Any
overdue amount shall bear interest from the due date until actual
payment is received by Bombardier at an annual rate of interest equal
to the U.S. prime interest rate as established from time to time by The
Chase Manhattan Bank, plus two percent (2%) calculated and compounded
annually. In the event Buyer is not current on its account for the
purchase of spare parts and services under Annex A, Buyer shall at the
request of Bombardier provide Bombardier with such security as is
reasonably requested to secure payment of such account hereunder.
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2.21 PAYMENT FOR PROVISIONING ITEMS
Payment for Provisioning Items shall be made by Buyer as follows:
a) [* ] of the total price of the Provisioning Items as
selected by Buyer, upon signature of the spares provisioning
document; and
b) the balance of the total price of Provisioning Items upon
their delivery.
2.22 MODIFIED TERMS OF PAYMENT
Bombardier reserves the right to alter the terms of payment without
prior notice if Buyer fails to pay when due an amount Buyer owes under
any agreement with Bombardier.
2.23 REGULATIONS
Buyer shall comply with all applicable monetary and exchange control
regulations and shall obtain any necessary authority from the
governmental agencies administering such regulations to enable Buyer to
make payments at the time and place and in the manner specified herein.
2.24 INTENTIONALLY DELETED
2.25 CANCELLATION OF ORDERS
Except as otherwise may apply to initial provisioning, if Buyer cancels
an Order, Bombardier, at its option, shall be entitled to recover
actual damages, but not less than the following cancellation charges or
more than the purchase price of the Spare Parts covered by the Order:
a) if work accomplished on the Order has been limited to
Bombardier Spares Department, or the part has been identified
as "shelf stock" in the Spare Parts Price Catalogue, no
cancellation charges shall be made;
b) if production planning has been completed on the Order and
shop orders have been written, but no shop time or material
charges have been made against the Order, the cancellation
charge shall be 10% of the price but not to exceed $100 per
unit;
c) if shop time or material charges have been made against the
Order, the cancellation charge shall be based on the direct
and indirect cost of such time and materials attributable to
such canceled order; and
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d) if the Spare Parts covered by the Order can be absorbed into
Bombardier's inventory without increasing Bombardier's normal
maximum stock level, no cancellation charges shall be made.
2.26 LEASE
Bombardier shall select and make available certain parts for lease,
subject to availability Buyer has the option to negotiate a lease
agreement with Bombardier separate from this Agreement.
2.27 ADDITIONAL TERMS AND CONDITIONS
Bombardier's conditions of sale are deemed to incorporate the terms and
conditions stated herein. Additional terms and conditions applicable at
time of receipt of each order from Buyer will be mutually agreed upon
and may be added providing such terms and conditions do not conflict
with the terms and conditions provided herein. Such additional terms
and conditions shall be provided to Buyer at least ninety (90) calendar
days prior to their effective date.
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ARTICLE 3 - TRAINING
3.1 GENERAL TERMS
3.1.1 The objective of the training programs (the "Programs"), as
described herein, shall be to familiarize and assist Buyer's
personnel in the introduction, operation, and maintenance of
the Aircraft.
Bombardier shall offer to the Buyer the Programs in the
English language at a Bombardier designated facility or such
other location as may be mutually agreed; the Programs shall
be completed prior to the Delivery Date of the last Aircraft
purchased herein. In the event training takes place at Buyer's
designated facility, Buyer shall be responsible for all travel
and living expenses of Bombardier's instructor personnel.
3.1.2 Buyer shall be responsible for all travel and living expenses,
including local transportation, of Buyer's personnel incurred
in connection with the Programs.
3.1.3 The Programs shall be designed to reflect the model and/or
configuration of the Aircraft and may include differences
training to identify such configuration or model. Manuals
which are provided during the Programs exclude revision
service.
3.1.4 A training conference shall be held where possible not later
than thirty (30) days after execution of this Agreement or as
may be otherwise agreed, to establish the Programs' content
and schedule.
3.2 FLIGHT CREW TRAINING
3.2.1.1 FLIGHT CREW GROUND TRAINING
At no additional charge, Bombardier will provide for
each delivered Aircraft at such dates as are mutually
agreed, FAA approved transition training, approval
for which has been obtained by Buyer with
Bombardier's assistance, for [* ] Buyer's crews
[* ] who meet the minimum entry
requirement provided in the applicable training
manual. Each course shall consist of up to [* ]
of classroom instruction which may include part task
trainer, Computer Based Training (CBT), and/or Flight
Training Device (FTD). Bombardier shall furnish each
of Buyer's licensed pilots attending the course one
copy of the Flight Crew Operating Manual.
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3.2.1.2 PILOT SIMULATOR TRAINING
Bombardier shall provide access to an FAA approved
flight simulator for each crew trained under Annex A
Article 3.2.1.1 and 3.2. 2. Bombardier shall provide
a simulator instructor for [* ] for each crew
trained on Bombardier's designated simulator in
Montreal; each mission shall consist of [* ]
in the simulator and required briefing/debriefing
sessions.
3.2.2 PILOT TRAINING
In addition to Article 3.2.1.1 and 3.2.1.2 above,
Bombardier will provide ground and simulator training
for an additional [* ] prior to delivery
of the first Aircraft.
3.2.3 FLIGHT ATTENDANT COURSE
[* ] familiarization course for up to [* ] of
Buyer's flight attendant personnel shall be
conducted. Each course shall be for a maximum of [*
] duration. This course shall present
general information on the Aircraft and detailed
information on the operation of the passenger safety
equipment and emergency equipment. Bombardier shall
furnish for each participant in this course one (1)
copy of the Flight Attendant Training Guide which
shall not be revised. Buyer shall assist Bombardier
in the development of the Flight Attendant Training
Guide to incorporate Buyer's specific equipment and
procedures.
3.2.4 FLIGHT DISPATCHER COURSE
[* ] for up to [* ] Buyer's flight dispatch
personnel shall be conducted. Each course shall be
for a maximum of [* ] duration. The course
shall consist of classroom instruction covering
general Aircraft familiarization, coverage of
performance, flight planning, weight and balance and
the Minimum Equipment List. Bombardier shall furnish
for each participant in this course one (1) copy of
the Flight Crew Operating Manual which shall not be
revised.
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3.2.5 RECURRENT PILOT TRAINING
Bombardier shall, upon Buyer's request, provide a proposal for
an FAA approved course for type rated pilots, approval for
which will be sought by Buyer with Bombardier's assistance,
customized in content to meet the recurrent training of
Buyer's pilots.
3.2.6 COURSE TRAINING MATERIAL
Bombardier shall provide to Buyer [*
] of the then current training materials used to conduct
Bombardier's standard training as detailed herein:
i) 35 mm slides;
ii) Instructional Narrative and/or Instruction Guides;
iii) Overhead Projection Transparencies;
iv) Motion picture and/or Video tapes; and
v) Audio cassettes tapes.
vi) Airframe/Engine Maintenance Training Manual; and
vii) Avionics/Electrical Maintenance Training Manual.
Flight Crew Ground Training Materials
Bombardier shall provide to the Buyer, [*
] the then current manuals used to conduct the Flight
Crew Ground Training course, as follows:
i) Aircraft flight manual vol 1 & 2
ii) Flight crew operating manual vol 1& 2
iii) Quick reference handbook vol 1 & 2
iv) Flight planning and cruise control manual
v) Flight crew training manual
vi) Flight training control manual
vii) Pilot checklist and expanded checklist
viii) Study workbook and questions
ix) Training handout
x) All lessons plans including classroom, FTD, FFS and
paper copy of CBT lesson plans.
xi) All currently used overhead slides.
xii) Flight dispatcher lesson plans
xiii) Flight attendant operating manual & course material.
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3.3 MAINTENANCE TRAINING
3.3.0 Buyer shall have the option to take the training offered in
Article 3.3.1 and 3.3.2 below in any combination such that the
total number of mechanics trained per Aircraft does not exceed
[* ].
3.3.1 AIRFRAME AND POWERPLANT SYSTEMS MAINTENANCE COURSE
Subject to Article 3.3.0 of this Annex A, Bombardier shall, at
no additional charge, train up to [* ] of Buyer's qualified
personnel per Aircraft. This course shall emphasize detailed
systems description, operation, and routine line maintenance
practices. The course material shall be principally mechanical
with electrical and avionics information for overall systems
comprehension. The course duration shall be for a maximum of
[* ].
In the event a portion of the above training takes place by
mutual agreement at Buyer's designed facility, Buyer shall be
responsible for all travel and living expenses of Bombardier's
instructor personnel.
3.3.2 ELECTRICAL AND AVIONICS SYSTEMS MAINTENANCE COURSE
Subject to Article 3.3.0 of this Annex A, Bombardier shall, at
no additional charge, train up to six (6) of Buyer's qualified
personnel per Aircraft. The course shall emphasis detailed
systems description, operation and routine line maintenance
practices. The course material shall be principally electrical
and avionics but shall include mechanical information for
overall systems comprehension. The course duration shall be
for a maximum of twenty-five (25) working days.
In the event a portion of the above training takes place by
mutual agreement at Buyer's designed facility, Buyer shall be
responsible for all travel and living expenses of Bombardier's
instructor personnel.
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3.3.3 GROUND HANDLING COURSE
Bombardier shall, at no additional charge, provide [* ]
Ground Handling Course to train up to [* ] of Buyer's
qualified personnel. This course shall provide ramp service
personnel with training to be able to tow and park Aircraft
and perform routine ramp servicing tasks. Such training shall
be conducted in class with a practical demonstration on
Buyer's Aircraft after acceptance. The course duration shall
be a maximum of [* ] and the practical demonstration
shall not exceed [* ].
3.3.4 GENERAL FAMILIARIZATION COURSE
Bombardier shall, at no additional charge, provide [* ]
General Familiarization Course to train up to [* ].
The course shall generally describe the Aircraft, the systems
and the maintenance and support requirements. This course is
primarily designed for Buyer's facilities planning, parts
provisioning and aircraft management personnel. The course
duration is for a maximum of [* ].
3.3.5 ENGINE RUN-UP COURSE
Bombardier shall provide [* ] Engine Run-up course, at no
additional charge, for up to [* ] of Buyer's qualified
personnel. This course enables Buyer's personnel to gain
proficiency in engine and APU runs, cockpit management
procedures, malfunctions and exceedences. A prerequisite for
this course is satisfactory completion of the Airframe and
Powerplant Systems Maintenance course. The course duration
shall be for a maximum of [* ].
3.3.6 SPECIALIST COURSES
At Buyer's request, Bombardier shall make a proposal for
specialist courses which will be derived from Bombardier's
standard courses detailed herein.
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3.3.7 RECURRENT TRAINING
At Buyer's request, Bombardier shall make a proposal for an
FAA approved training plan for maintenance recurrent training.
3.3.8 VENDOR TRAINING
At Buyer's request, Bombardier shall assist Buyer in obtaining
vendor maintenance training at Buyer's cost.
3.3.9 COURSE TRAINING MATERIAL
Bombardier shall provide to Buyer [* ] sets of the then
current training materials used to conduct Bombardier's
standard training as detailed herein:
i) 35 mm slides;
ii) Lesson Guides;
iii) Overhead Projection Transparencies;
iv) Motion picture and/or Video tapes; and
v) Audio cassettes tapes.
vi) Airframe/Engine Maintenance Training Manual; and
vii) Avionics/Electrical Maintenance Training Manual.
3.4 INSURANCE
3.4.1 Buyer shall at all times during flight training in Buyer's
Aircraft secure and maintain in effect, at its own expense,
insurance policies covering the Aircraft including without
limitation:
a) liability insurance covering public liability,
passenger, crew, property and cargo damage in amounts
not less than [*
] for any single occurrence;
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b) all risk aircraft hull insurance for an amount which
is not less than its then fair market value.
3.4.2 The liability policy shall name Bombardier (and its
affiliates) as additional insured. The hull policy
shall contain a waiver of subrogation in favour of
Bombardier (and its affiliates). All insurance
policies shall provide for payments despite any
misrepresentations or breach of warranty by any
person (other than the assured receiving payments)
and shall not be subject to any offset by any other
insurance carried by Bombardier except that Buyer
shall not be required to provide insurance with
respect to the manufacturing, repair and maintenance
activities of Bombardier (and of its affiliates) and
the related potential liability (product or
otherwise) arising therefrom.
3.5 START-UP TEAM
To assist Buyer in the introduction of the Aircraft into revenue
service, Bombardier will assemble a [* ] "start-up team" for a
period of up to [* ], for a total of [* ]. The base of
operation and composition of this [* ] start-up team shall
be subject to discussion and could include operational, technical
and/or maintenance support personnel as well as instructor pilots.
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ARTICLE 4 - TECHNICAL DATA
4.1 TECHNICAL DATA PROVIDED
Bombardier shall furnish to Buyer the Technical Data described in
Attachment A hereto (the "Technical Data"). The Technical Data shall be
in the English language and shall provide information on items
manufactured according to Bombardier's detailed design and in those
units of measures used in the Specification or as may otherwise be
required to reflect Aircraft instrumentation as may be mutually agreed.
4.2 SHIPMENT
All Technical Data provided hereunder shall be delivered to Buyer ready
for export with all costs of freight, carriage or insurance to be borne
by Buyer Bombardier's designated facilities and at the time indicated
in Attachment A.
4.3 PROPRIETARY TECHNICAL DATA
It is understood and Buyer acknowledges that the Technical Data
provided herein is proprietary to Bombardier and all rights to
copyright belong to Bombardier and the Technical Data shall be kept
confidential by Buyer. Buyer agrees to use the Technical Data solely to
maintain, operate, overhaul or repair the Aircraft or to make
installation or alteration thereto allowed by Bombardier.
Technical Data shall not be disclosed to third parties or used by Buyer
or furnished by Buyer for the design or manufacture of any aircraft or
Spare Parts including BRAD Parts or items of equipment, except when
manufacture or redesign is permitted under the provisions of Annex A
Article 2.4.2 and 2.4.3 hereof and then only to the extent and for the
purposes expressly permitted therein, and provided further the
recipient shall provide a non-disclosure undertaking acceptable to
Bombardier.
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<PAGE> 105
ATTACHMENT A
LIST OF TECHNICAL DATA
COLUMN HEADING EXPLANATION OF CODES
ITEM
1 DOC DOCUMENT
Title of Technical Data provided.
2 CONFIG CONFIGURATION
G = Contains data common to all aircraft of the same
type (Generic).
C = Contains data unique to Buyer's Aircraft
(Customized).
3 MEDIUM Buyer selects one of the following media specified
in the table:
1 = Print two sides
2 = Microfilm
3 = Print one side
4 = Laminated Cardboard
4 REVISION Y = Periodic revision service applies
N = Revision service not applicable
S = Revised as required by Bombardier
5 QUANTITY
(Number) = Quantity per the Agreement
(Number) PER = Quantity per Aircraft
6 DELIVERY
ATD = At time of the Delivery Date of the first
Aircraft.
PTD = Prior to the Delivery Date of each or the
first Aircraft
(as applicable).
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7 ATA Y = Document is per ATA Specification 100
Revision 26.
N = Document is to Bombardier's existing
commercial practices.
Bombardier will provide to Buyer at no additional charge technical manuals as
listed below
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<PAGE> 107
TECHNICAL DATA
REGIONAL JET
<TABLE>
<CAPTION>
- - ---------------------------------------------------------------------------------------------------------------------------
ITEM DOC CONF MEDIUM QTY REV DEL ATA REMARKS
===========================================================================================================================
<S> <C> <C> <C> <C> <C> <C> <C> <C>
1. AIRCRAFT MAINTENANCE MANUAL (AMM) G 1,2 7 Y PTD Y
===========================================================================================================================
2. ILLUSTRATED PARTS MANUAL/CATALOG (IPC) G 1,2 8 Y PTD Y
===========================================================================================================================
3. STRUCTURAL REPAIR MANUAL (SRM) G 1,2 8 Y PTD Y
===========================================================================================================================
4. COMPONENT MAINTENANCE MANUAL (CMM) G 1,2 3 Y PTD Y
===========================================================================================================================
5. POWER PLANT BUILD-UP MANUAL G 1,2 8 Y PTD Y
===========================================================================================================================
6. WIRING DIAGRAM MANUAL C 1,2 8 Y PTD Y
===========================================================================================================================
7. ILLUSTRATED TOOL & EQUIPMENT MANUAL (ITEM) G 1,2 6 Y PTD Y
===========================================================================================================================
8. SERVICE BULLETINS G 1 6 S PTD Y SEE NOTE 2
===========================================================================================================================
9. NON DESTRUCTIVE TEST MANUAL (NDT) G 1 6 Y PTD Y
===========================================================================================================================
10. MAINTENANCE PROGRAM DOCUMENT (MPD) G 1 4 S PTD Y SEE NOTE 3
===========================================================================================================================
11. FAA OR DOT AIRPLANE FLIGHT MANUAL (AFM) C 1 4 S ATD N
===========================================================================================================================
12 WEIGHT & BALANCE MANUAL G 1 4 Y ATD Y
===========================================================================================================================
13 MASTER MINIMUM EQUIPMENT LIST (MMEL) G 1 0 S ASAP N
===========================================================================================================================
14 QUICK REFERENCE HANDBOOK C 1 3 S ATD N
===========================================================================================================================
15. FLIGHT CREW OPERATING MANUAL (FCOM) C 1 5 S ATD N SEE NOTE 1
===========================================================================================================================
16. MAINTENANCE TASK CARDS C 3 2 S PTD N
===========================================================================================================================
17. ACCESS PANELS AND DOORS/COMPONENT LOCATION MANUAL G 1 9 N PTD N
===========================================================================================================================
18. FLIGHT PLANNING & CRUISE CONTROL MANUAL G 1 3 S ASAP N
===========================================================================================================================
19. AIRCRAFT CHARACTERISTICS FOR AIRPORT PLANNING G 1 3 N ASAP N SEE NOTE 4
===========================================================================================================================
20. ON-BOARD WIRING DIAGRAM BOOK C 3 8 N ATD N SEE NOTE 5
===========================================================================================================================
21. MAINTENANCE FACILITIES & EQUIPMENT PLANNING MANUAL G 1 2 S ASAP N
===========================================================================================================================
22. SYSTEM SCHEMATIC MANUAL (SSM) G 1,2 8 Y ATD Y SEE NOTE 1
===========================================================================================================================
23. PASSENGER INFORMATION SHEET G 3 1 S ATD N SEE NOTE 6
===========================================================================================================================
24. PILOT CHECKLIST C 4 1 S ATD N
===========================================================================================================================
25. CRASH CREW CHART G 4 4 S ATD N
===========================================================================================================================
26. DISPATCH DEVIATION GUIDE G 1 5 S PTD N
- - ---------------------------------------------------------------------------------------------------------------------------
</TABLE>
NOTE 1: REVISION SERVICE
A. Revision services shall only be available [* ] following the Delivery
Date of Buyer's first Aircraft. Subsequent revision service shall be
provided free of charge dependent upon incorporation of Bombardier
issued Service Bulletins.
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B. Revisions to the Technical Data to reflect the Aircraft at Delivery
Date shall be provided to Buyer within six (6) months following the
Delivery Date of each of the Aircraft, respectively.
C. Provided the revision service is being supplied under the terms of this
Agreement or by subsequent purchase order, Bombardier shall incorporate
in the applicable documents all applicable Bombardier originated
Service Bulletins in a regular revision following formal notification
by Buyer that such Service Bulletins shall be accomplished on the
Buyer's Aircraft. The manuals shall then contain both original and
revised configuration until Buyer advises Bombardier in writing that
one configuration is no longer required.
NOTE 2: SERVICE BULLETINS
Aperture cards of the service drawing(s) will be provided in
lieu of drawings when practical.
NOTE 3: MAINTENANCE PROGRAM DOCUMENT
This manual provides the basis for Buyer's initial maintenance
program.
NOTE 4: AIRCRAFT CHARACTERISTICS FOR AIRPORT PLANNING
This manual contains data on Aircraft ground maneuver and
handling.
NOTE 5: ON-BOARD WIRING DIAGRAM BOOK
This book contains wiring diagrams for interim reference until
the Wiring Diagram Manual is revised to reflect the Aircraft
at the Delivery Date.
NOTE 6: PASSENGER INFORMATION CARDS
Bombardier will provide one (1) reproducible master for the
preparation of passenger information cards. For an additional
cost, subject to negotiation, Bombardier will provide full
colour laminated passenger information cards in quantities
required.
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<PAGE> 109
ANNEX "B"
WARRANTY AND SERVICE LIFE POLICY
ARTICLE 1 - WARRANTY
The following warranty and service life policy is that to which reference is
made in Article 3 of this Agreement.
1.1 WARRANTY
1.1.1 Subject to Annex B Articles 1.9, 1.10, and 2, Bombardier
warrants that, at the date of delivery of the Aircraft or BRAD
Part, as applicable :
a) the Aircraft shall conform to the Specification,
except that any matter stated in the Specification as
type characteristics, estimates or approximations is
excluded from this Warranty;
b) the Aircraft shall be free from defects caused by the
failure of Bombardier to install a Vendor Part or
Powerplant Part in accordance with reasonable
instructions of the vendor;
c) the [* ] which shall
be governed by Article 2 hereof, shall be free from
defects in material or workmanship [* ];
and
d) the [* ] shall be free from defects in design
including [* ], having regard to the state of
the art as of the date of such design.
1.1.2 The Warranty set forth in Annex B Article 1.1.1 (c) and (d)
above shall also be applicable to BRAD Parts purchased as
Spare Parts.
1.1.3 Bombardier further warrants that, at the time of delivery, the
Technical Data shall be free from error.
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1.2 WARRANTY PERIOD
1.2.1 The Warranty set forth in Annex B Article 1.1 shall remain in
effect for any defect covered by the Warranty (a "Defect")
becoming apparent during the following periods (individually,
the "Warranty Period"):
a) for failure to conform to the Specification and the
installation referred to in Annex B Article 1.1.1 (a) and
1.1.1 (b), [* ] months from the Delivery Date;
b) for those Defects in material or workmanship referred to in
Annex B Article 1.1.1 (c) and 1.1.2, [* ] months from
the date of delivery of the Aircraft or BRAD Part as
applicable;
c) for those Defects in design referred to in Annex B Article
1.1.1 (d) or 1.1.2, [* ] months from the date of
delivery of the Aircraft or BRAD Parts as applicable; and
d) for errors in the Technical Data referred to in Annex B
Article 1.1.3, [* ] months from the date of delivery of
the applicable Technical Data.
1.3 REPAIR, REPLACEMENT OR REWORK
As to each matter covered by this Warranty Bombardier's sole obligation
and liability under this Warranty is expressly limited to, at
Bombardier's election, correction by the repair, replacement or rework
of the defective part or item of Technical Data. The repaired, replaced
or reworked part or item of Technical Data which is the subject of the
Warranty claim shall then be warranted under the same terms and
conditions for the then unexpired portion of the Warranty Period.
In the case of a Defect relating to non-conformance with the
Specification, Bombardier shall correct that Defect in the equipment
item or part in which the Defect appears, except that Bombardier will
not be obligated to correct any Defect which has no material adverse
effect on the maintenance, use, performance [*
] or operation of the Aircraft.
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1.4 CLAIMS INFORMATION
Bombardier's obligations hereunder are subject to a Warranty claim to
be submitted in writing to Bombardier's warranty administrator, which
claim shall include but not be limited to the following information:
a) the identity of the part or item involved, including the part
number, serial number, if applicable, nomenclature and the
quantity claimed to be defective;
b) the manufacturer's serial number of the Aircraft from which
the part was removed;
c) the date the claimed Defect became apparent to Buyer;
d) the total flight hours (and cycles if applicable) accrued on
the part at the time the claimed Defect became apparent to
Buyer; and
e) a description of the claimed Defect and the circumstances
pertaining thereto.
1.5 INTENTIONALLY DELETED.
1.6 TIMELY CORRECTIONS
Bombardier shall, at its expense, make the repair, replacement or
rework, following receipt of the defective part or item, with
reasonable care and dispatch.
1.7 LABOUR REIMBURSEMENT
For correction of Defects, Bombardier shall establish a reasonable
estimate for the labour hours required for the repair, replacement or
rework of the defective item and, if the repair, replacement or rework
is performed by Buyer, Bombardier shall reimburse Buyer for Bombardier
estimated hours or for Buyer's actual labour hours, whichever is less,
for the repair, replacement or rework of the defective item (but
excluding any work necessary to otherwise conduct maintenance work on
the Aircraft containing such item). For purposes
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hereof, Buyer's labour rate for any labour hours expended shall be [*
] of Buyer's average direct hourly labour
rate. For this purpose, Buyer's "average direct hourly labour rate"
means the average hourly rate (excluding all fringe benefits, premium
time allowances, social charges, business taxes and the like) paid to
Buyer's employees whose jobs are directly related to the performance of
the repair or modification. Prior to or concurrent with submittal of
Buyer's first claim for labour reimbursement hereunder, Buyer shall
notify Bombardier of Buyer's then current average direct hourly labour
rate, and thereafter Buyer shall promptly notify Bombardier of any
significant change in such rate. If requested, Buyer shall furnish to
Bombardier such data as may be reasonably required to substantiate such
rate. The labour cost to be reimbursed by Bombardier as aforesaid shall
account for disassembly, repair, reassembly, final inspection and test
specific to the repair of the BRAD Part. Buyer shall retain all
defective items for a period of ninety (90) days after the date of
completion of repair. At Bombardier's request, such items are to be
returned to Bombardier's designated facilities, within fifteen (15)
days from receipt of such request, with all costs thereof being borne
by Bombardier.
1.8 APPROVAL, AUDIT, TRANSPORTATION AND WAIVER
All Warranty claims shall be subject to audit and approval by
Bombardier. Bombardier will use reasonable efforts to advise in writing
the disposition of Buyer's Warranty claim within thirty (30) days
following the receipt of the claim and (if requested) return of the
defective BRAD Part to Bombardier's designated facility. Bombardier
shall notify Buyer of Bombardier's disposition of each claim provided
that Buyer shall not be prevented from disputing same.
Buyer shall pay all costs of transportation of the defective part from
Buyer to Bombardier's U.S. distribution centre and Bombardier shall pay
all costs of transportation of the repaired, corrected or replacement
parts back to Buyer.
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1.9 LIMITATIONS
1.9.1 Bombardier shall be relieved of and shall have no obligation
or liability under this Warranty if:
a) the Aircraft was operated with any products or parts
not specifically approved by Bombardier, unless such
products or parts were not a cause of the Defect,
provided that, if requested by Bombardier, Buyer
furnishes reasonable evidence to that effect; or
b) the Aircraft was not operated or maintained in
accordance with the Technical Data listed in
Attachment A of Annex A as may be revised and the
manufacturer's documentation furnished to Buyer
(including Service Bulletins and airworthiness
directives) unless such operation or maintenance was
not cause of the Defect, provided that, if requested
by Bombardier, Buyer furnishes reasonable evidence to
that effect; or
c) the Aircraft was not operated under normal airline
use, unless such operation was not a cause of the
Defect, provided that, if requested by Bombardier,
Buyer furnishes reasonable evidence to that effect;
or
d) Buyer does not
1) report the Defect in writing to Bombardier's
Warranty administrator within forty-five
(45) calendar days following such Defect
becoming actually known to Buyer, and
2) retain the BRAD Part claimed to be defective
until advised by Bombardier to return such
BRAD Part to Bombardier's designated
facility in order for Bombardier to finalize
its evaluation of the Warranty claim or to
otherwise dispose of such BRAD Part; or
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e) if Bombardier rejects any claims submitted by Buyer
hereunder, Bombardier shall notify Buyer of such
rejection and Buyer shall submit reasonable proof to
Bombardier within thirty (30) calendar days
thereafter that the rejected claim is covered within
this Warranty; or
f) Buyer does not allow Bombardier reasonable
opportunity (taking into account Buyer's wish to
return the Aircraft to service) to be present during
the disassembly and inspection of the BRAD Part
claimed to be defective.
1.9.2 The warranties contained in this Annex B do not apply to Buyer
Furnished Equipment.
1.10 NORMAL USAGE
Normal wear and tear and the need for regular maintenance and overhaul
shall not constitute a Defect or failure under this Warranty.
1.11 OVERHAUL OF WARRANTY PARTS
Bombardier's liability for a BRAD Part which has a Defect and is
overhauled by Buyer within the Warranty Period shall be limited only to
that portion of the labour and material replacement related to the
Defect.
1.12 NO FAULT FOUND
In the event that Buyer submits BRAD Parts for repair, correction or
replacement under a warranty claim and such BRAD Parts are determined
by Bombardier to be serviceable (such submissions being hereinafter
referred to as a "No Fault Claim") Bombardier shall have the right
should Buyer's number of No Fault Claims be determined by Bombardier to
be excessive taking into account the length of Buyer's experience with
maintaining the Aircraft and other operators experience with a given
BRAD Part, to charge and recover from Buyer, and Buyer shall pay
Bombardier's reasonable costs incurred by Bombardier in connection with
Buyer's No Fault Claims. Providing, however, in the event that
repetitive in service
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failure occurs on the particular BRAD Part which is subsequently
identified by Bombardier on a repeated basis to be "no fault found",
then Bombardier and Buyer shall discuss and mutually agree a course of
further action to help identify the problem. In the event the fault is
ultimately confirmed to be a legitimate Warranty claim then the above
mentioned costs incurred by Bombardier and charged to Buyer shall be
waived [* ].
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<PAGE> 116
ARTICLE 2 - VENDOR WARRANTIES
2.1 WARRANTIES FROM VENDORS
The Warranty provisions of this Annex B do not apply to Vendor Parts or
Power Plant Parts. However, Bombardier has made or shall make
reasonable efforts to obtain favourable warranties from vendors, with
respect to Vendor Parts and Power Plant Parts. Except as specifically
provided under this Annex B Article 2, Bombardier shall have no
liability or responsibility for any such Vendor Parts and Power Plant
Parts and the warranties for those Vendor Parts and Power Plant Parts
shall be the responsibility of the vendor and a matter as between Buyer
and vendor; provided that if reasonably required in connection with
Buyer's enforcement of such warranties Bombardier shall execute a
mutually acceptable assignment of such warranty rights.
2.2 VENDOR WARRANTY BACKSTOP
For those Vendor Parts installed on the Aircraft at the Delivery Date
or subsequently purchased through Bombardier, excluding the Power Plant
Parts, in the event the parties agree that a vendor is in default in
the performance of any material obligation under any applicable
warranty obtained by Bombardier from such vendor pursuant to Annex B
Article 2.1 above, the warranties and all other terms and conditions of
Annex B Article 1 shall become applicable as if the Vendor Parts had
been a BRAD Part, except that the warranty period shall be the Warranty
Period as set forth herein or by the vendor's warranty, whichever is
shorter.
2.3 BOMBARDIER'S INTERFACE COMMITMENT
In the event of a dispute in the application of a Vendor Part warranty,
at Buyer's request addressed to Bombardier's warranty administrator,
Bombardier shall, without charge, conduct an investigation and analysis
of any such dispute resulting from a technical interface problem to
determine, if possible, the cause of the interface problem and then
recommend feasible corrective action. Buyer shall furnish to Bombardier
all data and information in Buyer's possession relevant to the
interface problem and shall cooperate with Bombardier in the
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conduct of its investigation and such tests as may be required.
Bombardier, at the conclusion of its investigation, shall advise Buyer
in writing of Bombardier's opinion as to the cause of the problem and
Bombardier's recommended corrective action.
2.4 BOMBARDIER' ASSISTANCE IN ADMINISTRATION OF VENDOR WARRANTIES
Buyer will be responsible for submitting warranty claims directly to
Vendors; however, if Buyer experiences problems enforcing any Vendor
warranty obtained by Bombardier for Buyer, Bombardier will conduct an
investigation of such problems and assist Buyer in the resolution of
such claims.
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ARTICLE 3 - SERVICE LIFE POLICY
3.1 APPLICABILITY
[*
].
3.2 TERM
Should such failures occur in any Covered Component within [*
] following delivery of the Aircraft
containing such Covered Component, Bombardier shall, as promptly as
practicable and at its option;
a) design and/or furnish a correction for such failed Covered Component;
or
b) furnish a replacement Covered Component (exclusive of standard parts
such as bearings, bushings, nuts, bolts, consumables and similar low
value items).
3.3 PRICE
Any Covered Component which Bombardier is required to furnish under
this SLP shall be provided for at a price calculated in accordance with
the following formula:
P = [*
]
Where:
P = [* ]
C = [* ]
T = [*
]
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3.4 CONDITIONS AND LIMITATIONS
3.4.1 The following general conditions and limitations
shall apply to the SLP:
a) [*
];
b) if Bombardier rejects any claim under the SLP submitted by
Buyer hereunder, Bombardier shall notify Buyer of such
rejection and Buyer must submit reasonable proof to
Bombardier within [* ] that the
rejected claim is covered within this SLP;
c) Buyer shall report any failure of a Covered Component in
writing to Bombardier's Warranty administrator within two
(2) months after such failure becomes actually known to
Buyer. [*
]
d) the provisions of Annex B Article 1.9 of the Warranty
(except for subparagraphs (d) and (e) thereof) are
incorporated by this reference and shall condition
Bombardier's obligations under this SLP with respect to
any Covered Component;
e) Bombardier's obligations under this SLP shall not apply to
any Aircraft which has not been correctly modified in
accordance with the specifications or instructions
contained in the relevant Service Bulletins which are
furnished to Buyer prior to receipt by Bombardier from
Buyer of any notice of an occurrence which constitutes a
failure in a Covered Component subject to [*
]. The provisions of this subparagraph
shall not apply in the
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event that Buyer furnishes reasonable evidence acceptable
to Bombardier that such failure was not caused by Buyer's
failure to so modify the Aircraft;
f) this SLP shall not apply to a Covered Component where the
failure results from an accident, abuse, misuse,
degradation, except for normal wear and tear, negligence
or wrongful act or omission, unauthorized repair or
modification adversely affecting a Covered Component,
impact or foreign object damage, to any Covered Component.
3.5 COVERAGE
This SLP is neither a warranty, performance guarantee nor an agreement
to modify the Aircraft to conform to new developments in design and
manufacturing art. Bombardier's obligation is only to provide
correction instructions to correct a Covered Component or furnish
replacement at a reduced price as provided in this SLP.
3.6 COVERED COMPONENT
Only those items or part thereof listed in Attachment A to this Annex B
shall be deemed to be a Covered Component, and subject to the
provisions of this SLP.
ARTICLE 4 - GENERAL
4.1 It is agreed that Bombardier shall not be obligated to provide to Buyer
any remedy which is a duplicate of any other remedy which has been
provided to Buyer under any other part of this Annex B.
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ANNEX B - ATTACHMENT A
COVERED COMPONENTS
1. WING
a. [* ]
b. [* ]
c. [* ]
d. [* ]
e. [* ]
f. [* ]
g. [* ]
h. [* ]
i. [* ]
j. [* ]
2. FUSELAGE
a. [
].
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b. [*
]
c. [*
]
d. [*
]
e. [* ]
3. VERTICAL STABILIZER
a. [* ]
b. [* ]
c. [* ]
d. [* ]
e. [*
]
4. HORIZONTAL STABILIZER
a. [* ]
b. [* ]
c. [* ]
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April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A
Gentlemen,
Re: Letter Agreement No. 0372-01
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
In consideration of Buyer having entered into the above referenced Agreement,
Bombardier agrees to provide Buyer with purchase rights for additional Aircraft
under the following general conditions:
1.0 Bombardier hereby offers to Buyer purchase rights for up to sixty
(60) incremental Aircraft. The incremental Aircraft are hereinafter
called the "Incremental Aircraft".
2.0 The Incremental Aircraft will be offered in blocks of five (5)
aircraft. The Incremental Aircraft will be offered for acceptance to
Buyer at Bombardier's offices or premises in Montreal, Province of
Quebec, Canada, for immediate export, and otherwise in accordance with
the acceptance and delivery procedures provided for in the Agreement.
3.0 [*
]:
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Page 2
[*
]
4.0 The delivery dates of [* ] of Incremental Aircraft shall be
mutually agreed upon by Bombardier and Buyer and are subject to
availability of the desired delivery positions prior to Buyer reserving
said positions. Delivery dates of [* ] shall be between [*
]. Delivery shall be at a rate not to exceed two Incremental
Aircraft per month.
5.0 Delivery positions for [* ] of Incremental Aircraft may be
reserved by Buyer, subject to availability, by giving Bombardier a
written notice, [* ] prior to the delivery date of the
first Incremental Aircraft in the applicable block, of its intention
to purchase a block of Incremental Aircraft. Bombardier shall within
fifteen (15) days of Buyer's notice, advise Buyer of the availability
of the delivery dates for the relevant blocks of Incremental Aircraft.
At such time as Bombardier and Buyer agree on the delivery dates of
the block of Incremental Aircraft, Buyer shall within ten (10) days of
such agreement provide a non-refundable deposit for the Incremental
Aircraft of [* ] per Incremental Aircraft in that block
whereupon Bombardier will reserve the incremental aircraft for Buyer.
6.0 Buyer shall confirm its exercise of its right to purchase a block of
Incremental Aircraft [* ] by definite written notice
to Bombardier [* ] prior to the delivery date of the
first Incremental Aircraft in said block. At that time (i) the
payment terms contained in Article 5.2 of the Agreement shall apply to
that block of Incremental Aircraft provided, that for purposes of
Article 5.2(a) the payment required thereunder shall be made at the
time the Agreement is amended pursuant to Article 7.0 of this Letter
Agreement with Buyer receiving credit for the deposits referred to in
Article 5.0 of this Letter Agreement with respect to such
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Page 3
Incremental Aircraft at such time and (ii) Article 2.0 (including Annex
A) of Letter Agreement 0372-02 shall be amended to include the
Incremental Aircraft.
7.0 The price of the Incremental Aircraft shall be the price stated in
Article 4.0 of the Agreement, subject to escalation in accordance with
the Agreement and provisions of Appendix I of the Agreement. The terms
and conditions of the Agreement shall be applicable mutatis mutandis to
the purchase of the Incremental Aircraft, except that the following
provisions thereof shall not be applicable:
Annex A, Article 3.2 and Article 3.3 (except as provided in this
Letter Agreement )
LA No. 0372-03
LA No. 0372-04, Article 3 and Article 5
LA No. 0372-09
LA No. 0372-11
LA No. 0372-12
LA No. 0372-14
LA No. 0372-15
Upon exercise of the option to purchase the Incremental Aircraft, the
Agreement shall be amended accordingly.
8.0 The basic configuration on the Aircraft as described in Article 2
and Appendix III of the Agreement maybe changed from time to time,
leading to adjustments in the price of the basic Aircraft over the
anticipated delivery schedule. In the event of changes to the basic
Aircraft configuration, Bombardier and Buyer will discuss and agree as
to whether these changes are to be incorporated in the Incremental
Aircraft configuration for Buyer, and if so on a mutually acceptable
adjustment to the Incremental Aircraft price.
9.0 [*
].
10.0 If Buyer exercises its purchase rights for the Incremental Aircraft,
Bombardier shall provide additional airframe, powerplant, avionics and
electrical training for [* ] of Buyer's maintenance and avionics
technicians per Incremental Aircraft purchased.
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Page 4
11.0 Except as provided for in Article 20.1 of the Agreement, the
provisions of this Letter Agreement are personal to Buyer and shall not
be assigned or otherwise disposed of by Buyer without the prior written
consent of Bombardier.
12.0 This Letter Agreement constitutes an integral part of the
Agreement and is subject to the terms and conditions contained therein.
To the extent of any inconsistency or conflict between this Letter
Agreement and the Agreement, this Letter Agreement shall prevail.
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Page 5
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - ------------------------------------- -------------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Division Bombardier Regional Aircraft Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
----------------------------------
Ronald V. Sapp
Vice President-Finance
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April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A
Gentlemen,
Re: Letter Agreement No. 0372-02
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
1.0 [*
].
2.0 As the [* ] cannot be established at the time of this Agreement,
for Buyer's information and payment purposes pursuant to Article 5 of the
Agreement only, the estimated [* ]
at time of delivery for each Aircraft is outlined in Annex A of this Letter
Agreement. The [* ] is based on presently known indices and
for the aforesaid payment purposes are not to be adjusted provided however
that the [* ] shall be established in accordance with
Appendix I to the Agreement.
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Page 2
3.0 Except as provided for in Article 20.1 of the Agreement, the
provisions of this Letter Agreement are personal to Buyer and shall not
be assigned or otherwise disposed of by Buyer without the prior written
consent of Bombardier.
4.0 This Letter Agreement constitutes an integral part of the Agreement
and is subject to the terms and conditions contained therein.
If the foregoing correctly sets forth your understanding of our
agreement with respect to the above matters, please indicate your
acceptance and agreement below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
--------------------------------- ------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-02
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ANNEX A
ESTIMATED PURCHASE PRICE
[*
]
NOTE: SUBJECT TO ADJUSTMENT FOR VARIATION IN INDICES.
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April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A.
Gentlemen,
Re: Letter Agreement No. 0372-03
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. represented by its Bombardier Regional Aircraft Division
("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer") for the sale of
thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
1.0 [*
].
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page 2
2.0 [*
]
3.0 [*
].
4.0 [*
].
5.0 Except as provided for in article 20.1 of the agreement, the
provisions of this letter agreement are personal to buyer and
shall not be assigned or otherwise disposed by buyer without
the prior written consent of bombardier.
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Page 3
6.0 This Letter Agreement constitutes and integral part of the
agreement and is subject to the terms and conditions contained therein.
to the extent of any inconsistency or conflict between this letter
agreement and the agreement, this letter agreement shall prevail.
7.0 In the event of termination of the Agreement this Letter Agreement
shall survive termination until the advance payments have been disposed
of in accordance with the Agreement.
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours Truly,
Bombardier Inc. Bombardier Inc.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - ------------------------------------- --------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
- - -------------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-03
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Page 4
[*
]
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Page 5
[*
]
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Page 6
[*
]
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Page 7
[*
]
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April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A
Gentlemen,
Re: Letter Agreement No. 0372-04
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
In consideration of Buyer having entered into the above referenced Agreement,
Bombardier agrees to provide Buyer with the following benefits under the general
conditions outlined below:
1.0 Maintenance Planning Support
1.1 Maintenance System
The Maintenance Programs for the Canadair Regional Jet
is developed and maintained using the MSG-3 philosophy.
1.2 Development of Maintenance System
The Maintenance System is reviewed and amended
regularly by the Maintenance Review Board. The Board meets on
a regular basis, nominally twelve (12) months for new designs
and eighteen (18) months for a mature aircraft type to
continuously improve the program. Buyer will be extended the
opportunity to participate in the Maintenance Review Board.
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Page 2
1.3 [*
]
1.4 Maintenance Cost Control
The Maintenance Cost Control department within Bombardier
monitors the direct maintenance costs of the Canadair Regional
jet at both a complete aircraft and component level. The
resulting normalized data is compared to target levels and those
exceeding expectations are analyzed to determine the required
action to bring the cost within target.
2.0 [* ]
2.1 [*
]:
a) [*
];
b) [*
];
c) [* ], [* ]
d) [* ].
2.2 [*
]:
a) [*
];
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Page 3
b) [*
];
c) [* ]
d) [*
]
2.3 [*
].
3.0 [* ]
3.1 [*
].
3.2 [*
] .
3.3 [*
].
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Page 4
3.4 [*
].
3.5 [*
].
4.0 [*
].
5.0 [* ]
[*
]
6.0 In the event of the termination of the Agreement Articles 3
and 5 of the Letter Agreement shall become automatically null
and void except that with respect to Article 3 if it has been
already implemented it shall survive termination of the
Agreement and shall terminate in accordance with the terms of
the consigment agreement governing same. In the event of the
termination of the Agreement, all Articles other than 3 and 5
shall stay in effect with respect to all delivered Aircraft
under the Agreement.
7.0 Except as provided for in Article 20.1 of the Agreement, the
provisions of this Letter Agreement are personal to Buyer and
shall not be assigned or otherwise disposed of by Buyer
without the prior written consent of Bombardier.
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Page 5
8.0 This Letter Agreement constitutes an integral part of the Agreement
and is subject to the terms and conditions contained therein. To the
extent of any inconsistency or conflict between this Letter Agreement
and the Agreement, this Letter Agreement shall prevail.
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - ------------------------------------- -------------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Division Bombardier Regional Aircraft Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
----------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-04
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<PAGE> 143
April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A
Gentlemen,
Re: Letter Agreement No. 0372-05
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement")
between Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines,
Inc. ("Buyer") for the sale of thirty (30) Canadair Regional Jet
aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously
with execution of the Agreement, will become part of the Agreement and
will evidence our further agreement with respect to the matters set
forth below.
All terms herein and in the Agreement and not defined herein shall have
the same meanings as in the Agreement.
In consideration of Buyer having entered into the above referenced
Agreement, Bombardier agrees to provide Buyer with the following
[* ]:
1.0 Intent
[*
].
2.0 Definition
[*
].
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Page 2
3.0 [* ]
3.1 [*
]
3.2 [*
]
3.3 [*
]
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Page 3
4.0 Term [* ]
The term of this [* ] shall commence on [*
] and shall expire after [*
].
5.0 Formula
[*
]
6.0 Assumptions
[*
].
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Page 4
7.0 Conditions and Limitations
7.1 [*
]:
a) [*
];
b) [*
];
c) [*
];
d) [*
];
e) [*
];
f) [*
];
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Page 5
g) [*
];
7.2 Reporting
Buyer shall provide to Bombardier not later than [* ]
after the last day of each month all reports submitted to the
FAA [* ]. Buyer shall also provide a
report to Bombardier of the [*
], and the information on [*
] accomplished during each month. Buyer shall also provide
Bombardier such other information and data as Bombardier may
reasonably request for the purpose of analyzing [* ].
Bombardier shall respond to the data in a timely manner and
shall provide Buyer with [*
].
7.3 [*__________________________]
[* ] will be maintained by
Bombardier based upon information provided by Buyer's
[* ] as requested herein.
Bombardier shall format the data into Bombardier's format.
8.0 Corrective Action
8.1 In the event the [*
], Bombardier and Buyer will jointly review
the [* ] to identify improvement changes required.
Bombardier shall also provide, at no charge, if requested by
Buyer:
a) [*
];
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Page 6
b) [*
];
c) [*
]; and
d) Bombardier shall use its reasonable efforts to
require its suppliers to provide corrective action
at no charge to Buyer to the extent required when [*
] as
a direct result of failure of equipment designed by
such suppliers.
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Page 7
8.2 Bombardier's liability to investigate and provide corrective
action under the terms [*
] pursuant to Article 7.2 hereof;
provided, that in the event Buyer shall fail to provide
Bombardier with any information required under Article 7.2
hereof, Bombardier shall provide notice of such failure to
Buyer and Buyer shall have fifteen (15) days after such notice
to provide the requested information to Bombardier hereunder
[*
].
9.0 Implementation of Changes
Buyer may, at its option, decline to implement any
change proposed by Bombardier under Article 8.0 above. If
Buyer so declines, Bombardier [*
] based on reasonable
substantiation to Buyer and on other operator experience, if
any, as if such change has been incorporated. Bombardier shall
not make adjustments when Buyer has demonstrated to
Bombardier's reasonable satisfaction that such change is not
cost effective to Buyer.
10.0 Duplicate Remedies
It is agreed that Bombardier shall not be obligated to
provide to Buyer any remedy which is a duplicate of any
other remedy which has been provided to Buyer elsewhere under
the Agreement.
11.0 In the event of termination of the Agreement, subject to
the provisions of Article 3.0 above, this Letter Agreement
shall survive termination with respect to all delivered
Aircraft under the Agreement.
12.0 This Letter Agreement constitutes an integral part of the
Agreement and is subject to the terms and conditions contained
therein. To the extent of any inconsistency or conflict
between this Letter Agreement and the Agreement, this Letter
Agreement shall prevail. Without limiting the foregoing, the
parties agree that Article 19 of the Agreement is fully
applicable to this Letter Agreement.
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Page 8
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - ------------------------------------- -------------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Division Bombardier Regional Aircraft Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
----------------------------------
Ronald V. Sapp
Vice President-Finance
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April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A
Gentlemen,
Re: Letter Agreement No. 0372-06
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
In consideration of Buyer having entered into the above referenced Agreement,
Bombardier agrees to provide Buyer with the following [* ]:
1.0 Intent
1.1 [*
].
1.2 [*
].
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Page 2
2.0 [* ]
2.1 [*
]:
2.1.1 The term of this Letter Agreement shall
commence on the first day of the month
following delivery of the [*
]; and
2.1.2 [*
]
a) [*
]
b) [*
]
c) [*
]
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Page 3
d) [*
]
e) [*
]
3.0 [* ]
3.1 [*__________________________]
[*
]
3.2 [*__________________________ ]
[*
]
3.3 [*__________________________]
[*
].
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Page 4
3.4 [*________________________________]
[*
]
4.0 [* ]
4.1 [*
].
4.2 [*
]
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Page 5
4.3 [*
]
5.0 [* ]
5.1 [*
]
5.2 [*
].
5.3 [*
].
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Page 6
6.0 Audit
Upon ten (10) business days prior written notification by Bombardier to
Buyer and at Bombardier's expense, Bombardier shall have the right
during normal business hours to audit all charges reported under this
Letter Agreement, [*
], where normally and [*
]. Such audit shall not interfere with the conduct of business
by Buyer nor shall Buyer be required to undertake or incur additional
liability or obligations with respect to the audit. Bombardier shall
take reasonable efforts to keep confidential the financial information
and practices and procedural information obtained from Buyer.
7.0 Reporting
7.1 Bombardier shall provide a quarterly report to Buyer [*
] based on data submitted by Buyer and approved
by Bombardier. Failure of Buyer to provide the required
data, in spite of Bombardier's notice and within thirty (30)
days thereof, shall [* ]
provided, that Bombardier shall notify Buyer of any such
failure and Buyer shall have thirty (30) days after its
receipt of such notice to cure such failure [*
].
7.2 [* ] was based upon the assumption outline in the
Appendix to this Letter Agreement. Any deviation from the
assumptions outlined in the Appendix shall cause a
modification in the [* ] to be performed by
Bombardier with the consent of Buyer such consent not to be
unreasonably withheld.
8.0 Subject to 9.0 hereof, upon termination of the Agreement,
this Letter Agreement shall survive termination with respect
to all delivered Aircraft under the Agreement.
9.0 In the event there is a change to the delivery schedule as
originally contemplated in Appendix II or if [*
].
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Page 7
10.0 Except as provided for in Article 20.1 of the Agreement, the
provisions of this Letter Agreement are personal to Buyer and shall not
be assigned or otherwise disposed of by Buyer without the prior written
consent of Bombardier.
11.0 This Letter Agreement constitutes an integral part of the
Agreement and is subject to the terms and conditions contained therein.
To the extent of any inconsistency or conflict between this Letter
Agreement and the Agreement, this Letter Agreement shall prevail.
Without limiting the foregoing, the parties agree that Article 19 of
the Agreement is fully applicable to this Letter Agreement.
If the foregoing correctly sets forth your understanding of our
agreement with respect to the above matters, please indicate your
acceptance and agreement below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - ------------------------------------- -------------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Division Bombardier Regional Aircraft Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
----------------------------------
Ronald V. Sapp
Vice President-Finance
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Page 8
APPENDIX A
[*
]
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Page 9
[*
]
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April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia
U.S.A., 30354-1356
Gentlemen,
Re: Letter Agreement No. 0372-07
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc.
("Buyer") for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will
evidence our further agreement with respect to the matters set forth
below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
1.0 Aircraft Configuration
[*
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Page 2
].
2.0 [*____________________________]
2.1 [*____________________________]
[*
].
2.2 [*_____________________________]
[*
].
2.3 [*_______________________]
[*
].
2.4 [*________________________]
[*
].
2.5 [*_________________________]
[*
].
The mission is flown at ISA conditions throughout.
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Page 3
[*
].
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Page 4
[*
]
3.0 [*___________________]
3.1 [*_______________]
[
].
3.2 [*_____________]
[*
].
3.3 [* ]
[*
].
4.0 [*______________________]
4.1 [*
].
4.2 [*
].
.
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Page 5
4.3 [*
].
4.4 [*
].
4.5 [*
].
4.6 [*
].
.
4.7 [* ].
5.0 [*_________________________________]
5.1 [*
].
5.2 [*
].
5.3 [*
].
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Page 6
6.0 Remedies
6.1 In the event of a [* ] contained in this
Letter Agreement, Bombardier shall endeavor and shall use its
reasonable efforts to develop corrective measures. Such
measures shall be developed within a period of [*
] from the delivery of the first Aircraft under
the Agreement (or such other longer period as is required in
view of the corrective measures involved).
7.0 In the event of the termination of the Agreement, this Letter
Agreement shall survive termination with respect to all
delivered Aircraft under the Agreement.
8.0 Except as provided for in Article 20.1 of the Agreement, the
provisions of this Letter Agreement are personal to Buyer and
shall not be assigned or otherwise disposed of by Buyer without the
prior written consent of Bombardier.
9.0 This Letter Agreement constitutes an integral part of the
Agreement and is subject to the terms and conditions contained
therein. To the extent of any inconsistency or conflict between this
Letter Agreement and the Agreement, this Letter Agreement shall
prevail. Without limiting the foregoing the parties agree that Article
19 of the Agreement is fully applicable to this Letter Agreement.
If the foregoing correctly sets forth your understanding of our
agreement with respect to the above matters, please indicate your
acceptance and agreement below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - ---------------------------- ------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
-----------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-07
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<PAGE> 166
April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A.
Gentlemen,
Re: Letter Agreement No. 0372-08
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and int he Agreement and not defined herein shall have the same
meangs as in the Agreement.
1.0 In consideration of Buyer having entered into the above referenced
Agreement,
].
2.0 In the event of the termination of the Agreement, this Letter
Agreement shall survive termination with respect to all delivered
Aircraft under the Agreement.
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Page 2
3.0 Except as provided for in Article 20.1 and 20.5 of the Agreement, the
provisions of this Letter Agreement are personal to Buyer and shall not
be assigned or otherwise disposed of by Buyer without the prior written
consent of Bombardier.
4.0 This Letter Agreement constitutes an integral part of the Agreement
and is subject to the terms and conditions contained therein. To the
extent of any inconsistency or conflict between this Letter Agreement
and the Agreement, this Letter Agreement shall prevail.
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - --------------------------------- -------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
- - ---------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-08
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<PAGE> 168
April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A.
Gentlemen,
Re: Letter Agreement No. 0372-09
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
1.0 [*
].
2.0 In the event of the termination of the Agreement, this Letter
Agreement shall survive termination with respect to all delivered
Aircraft under the Agreement. In the event of termination of the
Agreement, Buyer will be responsible to reimburse Bombardier for any
credits used but not yet earned.
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Page 2
3.0 Except as provided for in Article 20.1 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be
assigned or otherwise disposed of by Buyer without the prior written
consent of Bombardier.
4.0 This Letter Agreement constitutes an integral part of the Agreement
and is subject to the terms and conditions contained therein. To the
extent of any inconsistency or conflict between this Letter Agreement
and the Agreement, this Letter Agreement shall prevail.
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - --------------------------------- -------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-09
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<PAGE> 170
April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A.
Gentlemen,
Re: Letter Agreement No. 0372-10
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
1.0 In consideration of Buyer having entered into the above referenced
Agreement, Bombardier and Buyer agree,
[* ]
respect to the Aircraft and subject to the exceptions provided in
subclauses (x) and (y) below, that [*
].
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Page 2
2.0 [*
].
3.0 In addition, the parties agree to provide one another with
notice as to the imposition or suspected imposition [*
] or the payment by either party [* ].
Bombardier will have the right to defend or challenge any
actual [* ], provide such actions
are not prejudicial as to Buyer's rights.
4.0 [*
].
5.0 In the event of the termination of the Agreement, this Letter
Agreement shall survive termination with respect to all
delivered Aircraft under the Agreement.
6.0 Except as provided for in Article 20.1 of the Agreement, the
provisions of this Letter Agreement are personal to Buyer and
shall not be assigned or otherwise disposed of by Buyer
without the prior written consent of Bombardier.
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<PAGE> 172
Page 3
7.0 This Letter Agreement constitutes an integral part of the Agreement
and is subject to the terms and conditions contained therein. To the
extent of any inconsistency or conflict between this Letter Agreement
and the Agreement, this Letter Agreement shall prevail.
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - --------------------------------- -------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-10
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<PAGE> 173
April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A.
Gentlemen,
Re: Letter Agreement No. 0372-11
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
In consideration of Buyer having entered into the above referenced Agreement
Bombardier agrees to provide Buyer with purchase rights for, but no obligations
to purchase, the CRJ-700 Aircraft under the following general conditions:
1.0 Bombardier hereby offers to Buyer purchase rights upon terms and
conditions to be agreed upon and in accordance with the provisions of
this Letter Agreement for up to [* ] CRJ-700 Aircraft. It is understood
that as far as applicable to a development program and to the
provisions of this Letter Agreement, the purchase agreement for the
CRJ-700 Incremental Aircraft shall be substantially based upon the
terms and conditions of this Agreement. The CRJ-700 Aircraft shall
hereinafter called the "CRJ-700 Incremental Aircraft".
2.0 The CRJ-700 Incremental Aircraft will be offered in blocks of five
(5) aircraft. The CRJ-700 Incremental Aircraft will be offered for
acceptance to Buyer at Bombardier's offices or premises in Montreal,
Province of Quebec, Canada, for immediate export and otherwise in
accordance with the acceptance and delivery provisions of the
Agreement.
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Page 2
3.0 The delivery dates of the CRJ-700 Incremental Aircraft shall be
mutually agreed upon by Bombardier and Buyer and are subject to the
availability of the desired delivery positions and to the prior sale,
commitment or other disposition of the desired delivery position prior
to Buyer reserving said positions. [*
].
4.0 Delivery positions for the CRJ-700 Incremental Aircraft may be
reserved by Buyer, subject to availability, by giving Bombardier a
written notice, [* ] prior to the delivery date of the first
CRJ-700 Incremental Aircraft in the applicable block, of its
intention to purchase a block of CRJ-700 Incremental Aircraft.
Bombardier shall within fifteen (15) days of Buyer's notice, advise
Buyer of the availability of the delivery dates for the relevant
block of Incremental Aircraft. At such time as Bombardier and Buyer
agreed on the delivery dates of the block of CRJ-700 Incremental
Aircraft, Buyer shall within ten (10) days of such agreement provide
a non-refundable deposit for the CRJ-700 Incremental Aircraft
[* ] per CRJ-700 Incremental Aircraft in that block
whereupon Bombardier will reserve the CRJ-700 Incremental Aircraft
for Buyer.
5.0 Aircraft Price
5.1 Base Price
5.1.1 The base price for each of CRJ-700 Incremental Aircraft
(excluding any available optional features)
[*
] dollars.
5.1.2 The base price of the selected optional features listed in
Annex A are [*
] dollars.
5.1.3 The CRJ-700 Incremental Aircraft base price shall be the base
price as stated in Article 5.1.1 plus the base price of the
selected optional features as stated in Article 5.1.2 ("Base
Price").
5.2 CRJ-700 Incremental Aircraft Purchase Price
The price of the CRJ-700 Incremental Aircraft (the "CRJ-700
Incremental Aircraft Purchase Price") shall be the CRJ-700
Incremental Aircraft Base Price stated in Article 5.1 adjusted
to the date of delivery to reflect economic fluctuations
during the period from [* ] to the respective delivery
date of the CRJ-700 Incremental Aircraft. Such adjustments
shall be based on a formula that will be provided on or before
July 21, 1997 (the "CRJ-700 Economic Adjustment Formula").
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<PAGE> 175
Page 3
6.0 [* ]
6.1 [
].
6.2 [*
]
7.0 In any event if Buyer has not exercised Buyer's rights
to purchase [* ] CRJ-700 by [* ] then this Letter
Agreement shall become automatically null and void.
8.0 Except as provided for in Article 20.1 of the
Agreement, the provisions of this Letter Agreement are
personal to Buyer and shall not be assigned or
otherwise disposed of by Buyer without the prior
written consent of Bombardier.
9.0 This Letter Agreement constitutes an integral part of
the Agreement and is subject to the terms and
conditions contained therein. To the extent of any
inconsistency or conflict between this Letter
Agreement and the Agreement, this Letter Agreement
shall prevail.
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<PAGE> 176
Page 4
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - --------------------------------- ------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
------------------------------
Ronald V. Sapp
Vice President-Finance
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<PAGE> 177
Page 5
ANNEX A
SELECTED OPTIONAL FEATURES
<TABLE>
<CAPTION>
Price
CRJ-700
CR No. Description
<S> <C> <C>
00-201 Intermediate Design Weights (74,950 lbs MTOW) - ER [*
00-203 FAA Certification
00-009 Centre Wing Fuel Tank
00-012 Additional Flap Setting
21-209 Ground Air Conditioning Connection
23-212 Third VHF - provisions only
23-223 Collins ACARS
24-003 Alternate Power for Maintenance, Cargo and Boarding Lights
25-100 Class C Baggage Compartment with temperature control
TBD 007 G1 Basic Galley (Shell)
TBD 090 Reclining Seats
27-005 Reduced V2 VREF Speed
30-001 Red Anti-ice Warning Light (FAA)
33-202/4 Logo and Cargo Lights
33-203 Red Strobe Lights
34-213 Dual Collins FMS - Provisions only
34-226 GPWS Audio Call-Out
34-227 Altimeter Reset Auto Flash
34-231 Single Collins FMS 4200
TBD 084 Single GPS
35-204 EROS Mask - Provisions Only
TOTAL FEATURES ]
</TABLE>
All prices listed above are expressed [* ] US dollars, and are subject to
economic adjustment to the date of CRJ-700 Incremental Aircraft delivery.
[* ]
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<PAGE> 178
April , 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A
Gentlemen,
Re: Letter Agreement No. 0372-12
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement")
between Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines,
Inc. ("Buyer") for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will
evidence our further agreement with respect to the matters set forth below.
All terms used herein which are defined in the Agreement and not defined
herein shall have the same meanings as in the Agreement.
This Letter Agreement provides for the terms and conditions on which
Bombardier shall provide [* ] with respect to the Aircraft.
1. [*
].
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<PAGE> 179
Page 2
(b) [*
]:
(i) [*
].
(ii) [*
].
2. [*
].
(b) [*
].
(c) [*
].
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<PAGE> 180
Page 3
3. [*
]:
(a) [*
].
(b) [*
].
(c) [*
].
(d) [*
].
(e) [*
].
(f) [*
].
4. [*
].
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Page 4
[*
]
5. [*
].
6. [*
].
7. [*
].
8. Confidentiality. The Buyer and Bombardier shall keep this
letter Agreement (including all exhibits hereto)
confidential and shall not disclose, or cause to be
disclosed, the same to any Person except as permitted by
Article 23 of the Agreement, provided however that the terms
of Exhibit E hereto shall be subject to the provisions of
section 10 of said Exhibit E.
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Page 5
9.0 Legal Opinion. Unless waived by Buyer, contemporaneously with
Bombardier's execution and delivery of any document attached hereto as
Exhibit "A", "D" or "E" [*
], Bombardier shall supply a legal opinion opining on due
authorization, execution and delivery of [* ] so executed and
delivered and that [* ] are legal, valid and binding
obligations of Bombardier, in accordance with their respective terms.
The legal opinion shall be in a form to be mutually satisfactory and
agreed upon by the parties within ten (10) days after the execution and
delivery of the Agreement and may be provided in whole or in part by,
or in reliance on an opinion issued by a duly admitted lawyer employed
by the legal department of Bombardier.
In the event of termination of the Agreement, this Letter Agreement shall
survive termination with respect to all delivered Aircraft under the Agreement.
Except as provided for in Article 20.1 of the Agreement, the provisions of this
Letter Agreement are personal to Buyer and shall not be assigned or otherwise
disposed of by Buyer without the prior written consent of Bombardier.
This Letter Agreement constitutes an integral part of the Agreement and is
subject to the terms and conditions contained therein. To the extent of any
inconsistency or conflict between this Letter Agreement and the Agreement, this
Letter Agreement shall prevail.
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - --------------------------------- ------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-12
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<PAGE> 183
April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A
Gentlemen,
Re: Letter Agreement No. 0372-13
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement")
between Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines,
Inc. ("Buyer") for the sale of thirty (30) Canadair Regional Jet
aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously
with execution of the Agreement, will become part of the Agreement and
will evidence our further agreement with respect to the matters set
forth below.
All terms herein and in the Agreement and not defined herein shall have
the same meanings as in the Agreement.
1.0 Buyer acknowledges that the [*
]. For those Aircraft on which the [* ] was not
installed at time of delivery to Buyer, Bombardier will, at no
additional cost to Buyer (i) create a service bulletin to effect the
retrofit installation of same and (ii) supply the requisite retrofit
kits free of charge in a manner similar to that provided for in Annex B
(Warranty) to the Agreement. Bombardier agrees to reimburse Buyer's
reasonable labour costs directly associated with the retrofit
installation of the kits. Buyer shall provide proof of its costs in a
form as requested by Bombardier (including invoices if the retrofit is
sub-contracted).
2.0 Bombardier has identified a change in the design of the Aircraft to
introduce [*
]. For those Aircraft on which the
[* ] was not installed at time of
delivery to Buyer, Bombardier will, at no additional cost to Buyer (i)
create a service bulletin to effect the retrofit installation of same
and (ii) supply the requisite retrofit kits free of charge in a manner
similar to that provided for in Annex B (Warranty) to the Agreement.
Bombardier agrees to reimburse Buyer's reasonable labour costs directly
associated with the retrofit installation of the kits. Buyer shall
provide proof of its costs in a form as requested by Bombardier
(including invoices if the retrofit is sub-contracted).
3.0 In the event of the termination of the Agreement, this Letter Agreement
shall survive with respect to all delivered Aircraft under the
Agreement.
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<PAGE> 184
Page 2
4.0 Except as provided for in Article 20.1 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be
assigned or otherwise disposed of by Buyer without the prior written
consent of Bombardier.
5.0 This Letter Agreement constitutes an integral part of the Agreement
and is subject to the terms and conditions contained therein. To the
extent of any inconsistency or conflict between this Letter Agreement
and the Agreement, this Letter Agreement shall prevail. Without
limiting the foregoing, the parties agree that Article 19 of the
Agreement is fully applicable to this Letter Agreement.
If the foregoing correctly sets forth your understanding of our
agreement with respect to the above matters, please indicate your
acceptance and agreement below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
--------------------------------- --------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-13
Initials
Buyer RVS Bombardier SS
<PAGE> 185
April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A.
Gentlemen,
Re: Letter Agreement No. 0372-14
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
1.0 [*
].
LA 0372-14
Initials
Buyer RVS Bombardier SS
<PAGE> 186
Page 2
[*
].
2.0 [*
].
[*
].
[*
].
LA 0372-14
Initials
Buyer RVS Bombardier SS
<PAGE> 187
Page 3
3.0 [*
].
4.0 [*
].
5.0 In the event of the termination of the Agreement pursuant to the
provisions of this Letter Agreement the rights and remedies provided
for under this Letter Agreement shall constitute the sole obligation
and liability of Bombardier and the sole and exclusive remedy of Buyer.
6.0 Except as provided for in Article 20.1 of the Agreement, the provisions
of this Letter Agreement are personal to Buyer and shall not be
assigned or otherwise disposed of by Buyer without the prior written
consent of Bombardier.
7.0 This Letter Agreement constitutes an integral part of the Agreement and
is subject to the terms and conditions contained therein. To the extent
of any inconsistency or conflict between this Letter Agreement and the
Agreement, this Letter Agreement shall prevail.
LA 0372-14
Initials
Buyer RVS Bombardier SS
<PAGE> 188
Page 4
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - --------------------------------- -----------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-14
Initials
Buyer RVS Bombardier SS
<PAGE> 189
April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A
Gentlemen,
Re: Letter Agreement No. 0372-15
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
1.0 As used in this Letter Agreement [* ] shall mean [* ]. In
consideration of Buyer having entered into the Agreement, subject to
the exclusions contained in paragraph 2 below, Bombardier hereby
agrees to, during the applicable term of the [* ]
for all costs incurred [* ] in relation to [* ] to
the extent such costs [* ] of each such respective
[* ] had been the [* ], up to a [*
].
2.0 Notwithstanding the foregoing, this Letter Agreement shall not apply
to [*
].
3.0 [* ] shall [* ] for such [*
], following submission of a detailed [* ].
Such reimbursement shall be [*
].
LA 0372-15
Initials
Buyer RVS
Bombardier SS
<PAGE> 190
Page 2
4.0 Bombardier hereby warrants and represents that [*
].
5.0 In the event of the termination of the Agreement, this Letter Agreement
shall survive termination with respect to all delivered Aircraft under
the Agreement.
6.0 Except as provided for in Article 20.1 of the Agreement, the
provisions of this Letter Agreement are personal to Buyer and shall not
be assigned or otherwise disposed of by Buyer without the prior written
consent of Bombardier.
7.0 This Letter Agreement constitutes an integral part of the Agreement
and is subject to the terms and conditions contained therein. To the
extent of any inconsistency or conflict between this Letter Agreement
and the Agreement, this Letter Agreement shall prevail. Notwithstanding
the foregoing the parties agree that this Letter Agreement is subject
to Article 19.12 of the Agreement.
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - --------------------------------- -----------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-15
Initials
Buyer RVS
Bombardier SS
<PAGE> 191
April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia 30354-1356
U.S.A.
Gentlemen,
Re: Letter Agreement No. 0372-16
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
1.0 [*
].
2.0 [*
].
3.0 [*
].
LA 0372-16
Initials
Buyer RVS
Bombardier SS
<PAGE> 192
Page 2
4.0 [*
].
5.0 [*
].
6.0 [*
].
7.0 [*
].
LA 0372-16
Initials
Buyer RVS
Bombardier SS
<PAGE> 193
Page 3
8.0 [*
].
9.0 In the event of the termination of the Agreement, this Letter Agreement
shall survive with respect to all delivered Aircraft under the
Agreement.
10.0 Except as provided for in Article 20.1 of the Agreement, the
provisions of this Letter Agreement are personal to Buyer and shall not
be assigned or otherwise disposed of by Buyer without the prior written
consent of Bombardier.
11.0 This Letter Agreement constitutes an integral part of the Agreement
and is subject to the terms and conditions contained therein. To the
extent of any inconsistency or conflict between this Letter Agreement
and the Agreement, this Letter Agreement shall prevail.
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - --------------------------------- -----------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-16
Initials
Buyer RVS
Bombardier SS
<PAGE> 194
April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia
U.S.A., 30354-1356
Gentlemen,
Re: Letter Agreement No. 0372-17
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
1.0 In consideration of Buyer having entered into the above referenced
Agreement, Bombardier hereby confirms, that for [*
] applicable during the
equivalent period as calculated using the formula detailed in Schedule
1 hereto.
2.0 In the event that during the period referred to in Article 1.0 above,
[* ], then [* ] an amount
equal to the total amount [* ] shall be determined
[* ] on a regular basis and such credit shall [* ].
3.0 In reference to Article 2 above, Bombardier and Buyer shall mutually
agree on the time frame of reconciliation.
LA 0372-17
Initials
Buyer ______
Bombardier ______
<PAGE> 195
Page 2
4.0 [*
].
5.0 In the event of the termination of the Agreement, this Letter
Agreement shall survive termination in the event that Buyer has on
the termination date purchased and taken delivery of a minimum of
twenty (20) Aircraft.
6.0 Except as provided for in Article 20.1 of the Agreement, the
provisions of this Letter Agreement are personal to Buyer and shall
not be assigned or otherwise disposed of by Buyer without the prior
written consent of Bombardier.
7.0 This Letter Agreement constitutes an integral part of the Agreement
and is subject to the terms and conditions contained therein. To the
extent of any inconsistency or conflict between this Letter Agreement
and the Agreement, this Letter Agreement shall prevail.
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - -------------------------------- -------------------------------
Michel Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-17
Initials
Buyer ______
Bombardier ______
<PAGE> 196
SCHEDULE 1
[*
]
LA 0372-17
Initials
Buyer ______
Bombardier ______
<PAGE> 197
[*
].
LA 0372-17
Initials
Buyer ______
Bombardier ______
<PAGE> 198
April 17, 1997
Mr. George F. Pickett, Chairman
Atlantic Southeast Airlines, Inc.
100 Hartsfield Centre Pkwy., Suite 800
Atlanta, Georgia
U.S.A., 30354-1356
Gentlemen,
Re: Letter Agreement No. 0372-18
Reference is made to Purchase Agreement No. P.A.-0372 (the "Agreement") between
Bombardier Inc. ("Bombardier") and Atlantic Southeast Airlines, Inc. ("Buyer")
for the sale of thirty (30) Canadair Regional Jet aircraft.
This letter, when accepted and agreed to by Buyer contemporaneously with
execution of the Agreement, will become part of the Agreement and will evidence
our further agreement with respect to the matters set forth below.
All terms herein and in the Agreement and not defined herein shall have the same
meanings as in the Agreement.
1.0 [*
].
LA 0372-18
Initials
Buyer ______Bombardier ______
<PAGE> 199
Page 2
2.0 [*
].
3.0 [*
].
4.0 For purposes of this Letter Agreement, [* ] shall apply to those amounts
referred to under [* ] of this Letter Agreement.
5.0 In the event of termination of the Agreement, this Letter Agreement shall
survive such termination until the Advance has been disposed of or applied
as contemplated herein.
6.0 Except as provided for in Article 20.1 of the Agreement, the provisions of
this Letter Agreement are personal to Buyer and shall not be assigned or
otherwise disposed of by Buyer without the prior written consent of
Bombardier.
7.0 This Letter Agreement constitutes an integral part of the Agreement and is
subject to the terms and conditions contained therein. To the extent of
any inconsistency or conflict between this Letter Agreement and the
Agreement, this Letter Agreement shall prevail.
LA 0372-18
Initials
Buyer ______Bombardier ______
<PAGE> 200
Page 3
If the foregoing correctly sets forth your understanding of our agreement with
respect to the above matters, please indicate your acceptance and agreement
below.
Yours truly,
BOMBARDIER INC. BOMBARDIER INC.
/s/ Michael Bourgeois /s/ Pierre Lortie
- - --------------------------------- -----------------------------
Michael Bourgeois Pierre Lortie
Vice President, Contracts President
Bombardier Regional Aircraft Bombardier Regional Aircraft
Division Division
ACCEPTED AND AGREED TO:
this 17th day of April, 1997
ATLANTIC SOUTHEAST AIRLINES, INC.
By: /s/ Ronald V. Sapp
------------------------------
Ronald V. Sapp
Vice President-Finance
LA 0372-18
Initials
Buyer ______Bombardier ______
<PAGE> 1
EXHIBIT 11 - STATEMENT RE: COMPUTATION OF
PER SHARE EARNINGS
<TABLE>
<CAPTION>
For The Three Months Ended For The Six Months Ended
June 30, June 30,
------------------------- ----------------------------
1997 1996 1997 1996
<S> <C> <C> <C>
Net Income $14,771,651 $18,430,242 $25,504,133 $29,727,377
Net Income per Share $0.49 $0.59 $0.85 $0.95
Weighted Number of Shares Outstanding 30,004,611 31,325,281 30,017,675 31,407,522
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS FOR THE SIX
MONTHS ENDED JUNE 30, 1997 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH
FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> DEC-31-1997
<PERIOD-END> JUN-30-1997
<CASH> 110,544
<SECURITIES> 61,304
<RECEIVABLES> 6,982
<ALLOWANCES> (260)
<INVENTORY> 6,051
<CURRENT-ASSETS> 187,085
<PP&E> 500,499
<DEPRECIATION> 218,096
<TOTAL-ASSETS> 494,921
<CURRENT-LIABILITIES> 64,215
<BONDS> 83,507
0
0
<COMMON> 2,980<F1>
<OTHER-SE> 272,600<F2>
<TOTAL-LIABILITY-AND-EQUITY> 494,921
<SALES> 0
<TOTAL-REVENUES> 189,253
<CGS> 0
<TOTAL-COSTS> 152,269
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 60
<INTEREST-EXPENSE> 2,334
<INCOME-PRETAX> 40,055
<INCOME-TAX> 14,551
<INCOME-CONTINUING> 25,504
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 25,504
<EPS-PRIMARY> 0.85
<EPS-DILUTED> 0.85
<FN>
<F1>REDUCED BY APPROXIMATELY $19,500 ALLOCABLE TO 195,000 SHARES OF TREASURY STOCK.
<F2>REDUCED BY APPROXIMATELY $4,196,000 ALLOCABLE TO 195,000 SHARES OF TREASURY
STOCK.
</FN>
</TABLE>
