EX-10.40 30 ex1040-amdno18topacom0041x.htm EX-10.40
CERTAIN CONFIDENTIAL PORTIONS HAVE BEEN REDACTED FROM THIS EXHIBIT BECAUSE THEY ARE BOTH (i) NOT MATERIAL AND (ii) IS THE TYPE THAT THE COMPANY TREATS AS PRIVATE OR CONFIDENTIAL. INFORMATION THAT HAS BEEN OMITTED HAD BEEN IDENTIFIED IN THIS DOCUMENT WITH A PLACEHOLDER IDENTIFIED BY THE MARK “[***]”.

AMENDMENT No. 18 TO PURCHASE AGREEMENT COM0041-16

This Amendment No.18 [COM0515-21] (the "Amendment No.18") dated as of November 16, 2021 is between EMBRAER S.A., a corporation existing under the laws of Brazil, which address and principal place of business is at Avenida Brigadeiro Faria Lima, 2170, prédio F-100, Putim, in the city of São José dos Campos, State of São Paulo, Brazil (“Embraer”); YABORÃ INDÚSTRIA AERONÁUTICA S.A., a corporation existing under the laws of Brazil, with office at Avenida Brigadeiro Faria Lima, 2170, in the City of São José dos Campos, State of São Paulo, Brazil ("Embraer Commercial") and HORIZON AIR INDUSTRIES, INC. ("Buyer"), collectively referred to herein as the “Parties”, and constitutes an amendment and modification to Purchase Agreement COM0041-16 dated April 11 th, 2016 as amended and assigned from time to time (the "Purchase Agreement").
Embraer and Embraer Commercial are referred collectively as “Seller”.
All capitalized terms not otherwise defined herein shall have the same meaning when used herein as provided in the Purchase Agreement and in case of any conflict between this Amendment No. 18 and the Purchase Agreement, this Amendment No. 18 shall control.
WHEREAS, Buyer and Seller executed the Amendment No.17 on November 16, 2021 to the Purchase Agreement to reflect the agreement related to the transfer of five (5) delivery positions held by Buyer to Skywest, Inc. (“Skywest”).
WHEREAS, Buyer and Seller have agreed to reinstate five (5) Firm Aircraft into the Purchase Agreement according to the terms and conditions stated hereinafter.
NOW, THEREFORE, for good and valuable consideration, which is hereby acknowledged by the Parties, Seller and Buyer agree as follows:
1. SUBJECT
Buyer has requested and Seller has agreed to reinstate five (5) Firm Aircraft into the Purchase Agreement. As a result of such order increase, Article 2 of the Purchase Agreement is hereby deleted and replaced as follows:
“Subject to the terms and conditions of this Agreement:
2.1 Seller shall sell and deliver and Buyer shall purchase and take delivery of thirty five (35) Firm Aircraft and seven (7) Confirmed Option Aircraft;
2.2 Seller shall provide to Buyer the Services and the Technical Publications as described in Attachment “B” to this Agreement; and
2.3 Buyer shall have the option to purchase up to twenty-one (21) Option Aircraft, in accordance with Article 21.”

AMENDMENT No. 18 TO PURCHASE AGREEMENT COM0041-16
2. ATTACHMENT CHANGE
As a result of the change referred to in Article 1 of this Amendment No. 18, Attachment E to the Purchase Agreement is hereby deleted and replaced in its entirety by Attachment E to this Amendment No. 18, which shall be deemed to be Attachment E for all purposes under the Purchase Agreement.
3. PAYMENT RELOCATION
[***]
4. EFFECTIVINESS OF AMENDMENT No.18
This Amendment No.18 shall become effective subject to Skywest receiving a written notice of termination from Buyer, with copy to Seller, on or before January 15 th, 2022 in regards to the termination under the CPA between Buyer and Skywest of five (5) aircraft, in which case the five (5) delivery slots previously terminated shall be reinstated in the Purchase Agreement with the deliveries in October/2022, October/ 2022, November/ 2022, March/ 2023 and April/ 2023.
If such written notice is not provided by 11:59 pm (Eastern Time) on January 15 th, 2022, then this Amendment No. 18 shall not be effective and be considered null and void, and of no force and effect.
For avoidance of doubt, Seller’s and Buyer’s rights and obligations under the current Purchase Agreement shall continue to be in full force and effect, with no changes until the effectiveness of this Amendment No.18, if it is the case.
5. REINSTATEMENT OF PURCHASE AGREEMENT
All other provisions and conditions of the referenced Purchase Agreement, as well as its related Attachments and Letter Agreement, which are not specifically modified by this Amendment No. 18 shall remain in full force and effect without any change.
6. COUNTERPARTS
This Amendment No. 18 may be signed by the Parties hereto in any number of separate counterparts with the same effect as if the signatures thereto and hereto were upon the same instrument and all of which when taken together shall constitute one and the same instrument.
This Amendment No. 18 may be signed by facsimile with originals duly signed to follow by an internationally recognized courier.
[SIGNATURE PAGE FOLLOWS]

COM0515-21 Page 2 of 3

Amendment No.18 to PA COM0041-16

AMENDMENT No. 18 TO PURCHASE AGREEMENT COM0041-16
IN WITNESS WHEREOF, Seller and Buyer, by their duly authorized officers, have entered into and executed this Amendment No. 18 to be effective according to the terms and conditions stated in Article 4 of this Amendment No.18.
EMBRAER S.A. HORIZON AIR INDUSTRIES, INC.
By: _______________________ By: ________________________
Name: Name:
Title: Title:
By:________________________
Name:
Title:
Place: ______________________ Place: _____________________
YABORÃ INDÚSTRIA
AERONÁUTICA S.A.
By: _______________________
Name:
Title:
By: _______________________
Name:

COM0515-21 Page 3 of 3

Amendment No.18 to PA COM0041-16

AMENDMENT No. 18 TO PURCHASE AGREEMENT COM0041-16
Title:
Place: ______________________

COM0515-21 Page 4 of 3

Amendment No.18 to PA COM0041-16

ATTACHMENT “E” AIRCRAFT DELIVERY SCHEDULE

1.Firm and Confirmed Option Aircraft Delivery Schedule (ref. Purchase Agreement, Article 5)
[***]

Attachment “E” to Purchase Agreement COM0041-16 Page 1 of 2 Amendment No 18 (COM0515-21)

ATTACHMENT “E” AIRCRAFT DELIVERY SCHEDULE

2.Option Aircraft Delivery Schedule (ref. Purchase Agreement, Article 21)
[***]

Attachment “E” to Purchase Agreement COM0041-16 Page 2 of 2 Amendment No 18 (COM0515-21)