AMENDMENT NUMBER SIX TO DELTA CONNECTION AGREEMENT
Exhibit
10.1
CONFIDENTIAL
TREATMENT
REQUESTED
PURSUANT TO RULE 24b-2
Certain
portions of this exhibit have been omitted pursuant to a request for
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
The omitted materials have been filed separately with the Securities and
Exchange Commission.
AMENDMENT
NUMBER SIX TO
This
Amendment Number Six (this “Sixth
Amendment”),
dated
the 12th
day of
March, 2007, to the Delta Connection Agreement dated and effective June 7,
2002
(as previously amended from time to time, the “Agreement”),
is
among Delta Air Lines, Inc., 0000 Xxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxx 00000
(“Delta”),
Chautauqua Airlines, Inc. (“Chautauqua”
or
“Operator”),
0000
Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000 and Republic Airways Holdings, Inc.
(“Republic”),
0000
Xxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx 00000.
WHEREAS,
Delta, Chautauqua and Republic are parties to the Agreement;
WHEREAS,
the Agreement currently provides for the Operator to operate fifteen
(15) Embraer ERJ 135 aircraft (the “ERJ135s”)
and
twenty four (24) Embraer ERJ 145 aircraft (the “ERJ145s”)
as a
Delta Connection Carrier; and
WHEREAS,
the parties desire to further amend the Agreement.
NOW,
THEREFORE, for and in consideration of the mutual undertakings set forth herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Delta, Operator and Republic, intending to be legally
bound, hereby agree as follows:
| 1. |
Defined
Terms.
All capitalized terms used, but not defined, herein shall have the
meaning
ascribed to such terms in the
Agreement.
|
| 2. |
Withdrawal
of ERJ135s.
Notwithstanding the provisions of Article 11 of the Agreement,
(x) from and including September 2008 through and including March
2009 (the “Removal
Months”),
Operator shall remove two ERJ135s per month from service under the
Delta
Connection program and upon such removal, any such removed aircraft
shall
no longer be subject to the terms of the Agreement. No later than
the
60th
day
preceding a Removal Month, Operator and Delta shall mutually agree
as to
(x) which two ERJ135s shall be so removed from service during such
Removal Month and (y) for each such ERJ135, the date during each such
Removal Month on which such removal from service shall occur. No
later
than February 1, 2009, Operator and Delta shall mutually agree as
to the
date during April 2009 on which the final ERJ135 shall be removed
from
service under the Agreement. The parties acknowledge and agree that
the
provisions of Sections 11(G), 11(H) and 11(I) shall not apply to
the
ERJ135s removed from service pursuant to this
Amendment.
|
| 3. |
CPI
Limitation.
For calendar year 2007 only, for purposes of establishing Base Rate
Costs
pursuant to Article 3G of the Agreement, notwithstanding any provisions
of
the Agreement to the contrary, CPI shall not in any event exceed
[*].
|
| 4. |
ERJ145
Rate Reduction.
Commencing on the later of (x) May 1, 2007 and (y) the date on which
the
conditions set forth in Section 5 below are either satisfied or waived
(the “Effective
Date”),
the aggregate Per Block Hour reimbursement rate for each ERJ145 shall
be
reduced by [*] (after giving effect to escalation pursuant to Article
3G
for calendar year 2007) for the remaining term of the Agreement.
The
parties agree that, upon and following satisfaction of the conditions
provided by Section 5, as of the Effective Date, the Per Block Hour
reimbursement rate for each ERJ145 for the remainder of calendar
year 2007
shall be [*]. For the avoidance of doubt, such reduction in the Per
Block
Hour reimbursement rate shall not be effective with respect to the
utilization of the ERJ145 Aircraft prior to the Effective
Date.
|
| 5. |
Conditions
to Effectiveness.
The effectiveness of this Amendment shall be subject to and conditioned
upon the United States Bankruptcy Court for the Southern District
of New
York, which is administering Delta’s case under Chapter 11 Case No.
05-17923 (ASH), (the “Bankruptcy
Court”)
having entered an order (collectively, the “Approval
Order”)
(A) approving this Amendment, Amendment Number One (the “First Amendment”)
dated of even date herewith to the Delta Connection Agreement dated
as of
January 13, 2005 among Delta, Shuttle America Corp. (as assignee
of
Republic Airline, Inc.) (“Shuttle
America”)
and Republic (the “Shuttle
America Delta Connection Agreement”)
and the Letter Agreement dated of even date herewith among Chautauqua,
Republic, Shuttle America and Delta (the “Letter
Agreement”),
(B) providing for Delta’s assumption of the Agreement (as amended by this
Amendment) and the Shuttle America Delta Connection Agreement (as
amended
by the First Amendment) pursuant to Section 365 of the Bankruptcy
Code,
and (C) authorizing Delta to perform its obligations and exercise
its
rights under this Amendment, the First Amendment and the Letter Agreement
and to execute and deliver the other instruments and documents
contemplated thereby and to consummate the transactions contemplated
thereby. Such effectiveness shall also be conditional on any motion
for
rehearing or reconsideration of the Approval Order having been denied,
and
if the Approval Order shall have been appealed, either (i) no stay
of the
Approval Order shall be in effect or (ii) if such a stay has been
granted
by a court of competent jurisdiction, then (x) the stay shall have
been
dissolved or (y) a final order of a court having jurisdiction to
hear such
appeal shall have affirmed the Approval Order and the time allowed
to
appeal from such affirmance or to seek review or rehearing thereof
shall
have expired and no further hearing, appeal or petition for certiorari
can
be taken or granted. Delta shall use its commercially reasonable
efforts
to obtain an Approval Order on a prompt basis after the parties have
executed each of this Amendment, the First Amendment and the Letter
Agreement, an in connection therewith will file an appropriate motion
with
the Bankruptcy Court by no later than March 15,
2007.
|
__________
*
Confidential
| 6. |
Miscellaneous.
|
| A. |
This
Amendment constitutes the entire understanding of the parties with
respect
to the subject matter hereof, and any other prior or contemporaneous
agreements, whether written or oral, are expressly superseded
hereby.
|
| B. |
This
Sixth Amendment may be executed in any number of counterparts, each
of
which shall be deemed an original and all of which, taken together,
shall
constitute one and the same
instrument.
|
| C. |
Except
as specifically stated herein, all other terms and conditions of
the
Agreement shall remain in full force and
effect.
|
[Remainder
of page intentionally left blank]
IN
WITNESS WHEREOF, the parties have executed this Sixth Amendment by their
undersigned duly authorized representatives:
| Republic Airways Holdings, Inc. | Delta Air Lines, Inc. | ||
| /s/ Xxxxx Xxxxxxx | /s/ Xxxxxx Xxxxxxx | ||
|
|
|
||
| Name:
Xxxxx
Xxxxxxx Title: Chairman and CEO |
Name:
Xxxxxx
Xxxxxxx Title: Executive VP & CFO |
| Chautauqua Airlines, Inc. | |||
| /s/ Xxxxx Xxxxxxx | |||
|
|
|||
| Name:
Xxxxx
Xxxxxxx Title: President and CEO |
|
|
|
|
