SECOND AMENDMENT TO REPUBLIC JET SERVICE AGREEMENT BETWEEN US AIRWAYS, INC. AND REPUBLIC AIRLINE INC.
|
EXHIBIT
10.4
|
|
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. |
REPUBLIC
JET SERVICE AGREEMENT
BETWEEN
US
AIRWAYS, INC.
AND
REPUBLIC
AIRLINE INC.
This Second
Amendment (this “Second Amendment”) to the Republic Jet Service Agreement
between US Airways, Inc. (“US Airways”) and Republic Airlines Inc. (“Republic”)
dated as of September 2, 2005 (the “Agreement”) is made and entered into as of
this 21st day of July, 2006.
WHEREAS,
US
Airways and Republic have entered into the Agreement; and
WHEREAS,
US
Airways and Republic wish to amend certain provisions of the Agreement on the
terms and conditions set forth herein; and
WHEREAS,
US
Airways and Chautauqua Airlines, Inc. (“Chautauqua”) are parties to that certain
Amended and Restated Chautauqua Jet Service Agreement between US Airways, Inc.
and Chautauqua Airlines, Inc., dated as of April 26, 2005 (the “Chautauqua
Agreement”); and
WHEREAS,
contemporaneously herewith US Airways and Chautauqua are entering into a First
Amendment to the Chautauqua Agreement (the “Chautauqua Amendment”);
NOW
THEREFORE,
for and
in consideration of the foregoing premises and the mutual covenants and
obligations hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is acknowledged, US Airways
and Republic hereby agree as follows:
1. Certain
Definitions.
All
capitalized terms used but not defined herein shall have the meanings set forth
in the Agreement. In addition, the following term shall have the meanings set
forth below:
“New
Aircraft” - shall mean the 30 Embraer 175 aircraft to be placed into Service
under the terms of this Second Amendment or such other aircraft as may be
substituted therefore pursuant to the terms of Section 2.8 of the Agreement.
The
“New Aircraft” shall be deemed included in the definition of “Aircraft” set
forth in Section 2.1. Republic acknowledges that US Airways currently has orders
and options with Embraer for Embraer 175 aircraft (the “US Airways’ Order/Option
Aircraft”). US Airways and Republic shall cause Embraer to transfer the US
Airways’ Order/Option Aircraft to Republic such that the New Aircraft to be
placed into Service will be from the US Airways’ Order/Option Aircraft. Prior to
delivery of any New Aircraft, Republic shall provide written evidence to US
Airways of Embraer’s transfer of the US Airways’ Order/Option Aircraft to
Republic.
2. Certain
Provisions of the Republic Agreement.
The
following provisions of the Republic Agreement shall apply to the New Aircraft
mutatis mutandis: Article 1 (Compliance with Regulations); Article 2 (Air
Transportation Services to be Provided by Republic), excluding Sections 2.9(a)
and 2.14; Article 3 (Operation Under the “US Airways Express” Name); Article 4
(US Airways’ Support Services and Facilities); Sections 5.1 through 5.7 of
Article 5 (Purchase of Available Seat Miles (“ASMs”); Article 6 (Liability,
Indemnification and Insurance); Sections 7.2, 7.3, 7.4 and 7.5 of Article 7
(Term and Termination); Article 8 (Performance Adjustments); Article 9 (Service
Xxxx License For Services Provided Pursuant to this Agreement); Article 10
(Force Majeure); Section 12.8 of Article 12 (Miscellaneous) and Exhibit 2.2
(Schedule Requirements).
3. Spare
Aircraft.
Section
2.9(a) of the Agreement shall be amended by deleting such section and replacing
it with the following:
“(a) Republic
shall designate [*]
of
the
EMB Aircraft, [*]
of
the
New Aircraft until November 30, 2007 and a total of [*]
of
the
New Aircraft after November 30, 2007 as “Spare Aircraft.” For the purposes of
calculating the payment to Republic as described in Article 5 of this Agreement,
Spare Aircraft shall not be included as Aircraft in Service, but US Airways
shall pay to Republic certain associated Direct Costs as detailed in the Pricing
Model, such as insurance, property taxes and aircraft ownership costs. For
the
purposes of calculating the schedule requirements as described in Exhibit 2.2
to
this Agreement, the Spare Aircraft shall not be included.”
4. In
Service Dates.
The New
Aircraft shall be placed into Service during the months set forth for each
New
Aircraft on Schedule 5.1(b) hereof. Republic shall provide US Airways with
at
least ninety (90) days’ prior written notice of the week each New Aircraft will
be placed into Service and at least sixty (60) days’ prior written notice of the
date on which each New Aircraft will be placed into Service.
5. Pricing
Model.
The
Agreement shall be amended by adding the Exhibit 5.1 - Pricing Model for EMB
175s attached hereto. Payment of all sums due under Article 5 for each New
Aircraft shall commence on the date each New Aircraft is first placed into
Service.
_____________
*Confidential
-1-
|
6.
|
Term. Section 7.1(b) of the Agreement shall be amended by deleting such section and replacing it with the following: |
“The
term
of this Agreement (the “Term”) (i) with respect to the EMB Aircraft shall
commence on September 4, 2005, and continue until September 4, 2015, and (ii)
with respect to each New Aircraft shall commence on the in Service date of
such
New Aircraft and continue until the day prior to the twelfth (12th)
anniversary of the date that such New Aircraft is first placed into Service,
in
all cases subject to the prior termination of this Agreement pursuant to Article
7 hereof.”
|
7.
|
Notices. The persons to receive notices on behalf of US Airways in Article 11 of the Agreement shall be deleted and replaced with the following: |
| Xxxxxx Xxxxxxx | with a copy delivered to: |
| Senior Vice President - Planning | Deputy General Counsel |
| 0000 X. Xxx Xxxxxx Xxxxxxxxx | 0000 X. Xxx Xxxxxx Xxxxxxxxx |
| Xxxxxxx, Xxxxxxx 00000 | Xxxxxxx, Xxxxxxx 00000 |
| xxxxxx.xxxxxxx@xxxxxxxxx.xxx | Fax: (000) 000-0000 |
| Telephone: (000) 000-0000 | |
| Fax: (000) 000-0000 |
|
8.
|
Schedule Requirements. Exhibit 2.2 of the Agreement shall be amended as follows: |
(a) Section
3
of Exhibit 2.2 shall be deleted and replaced with the following:
[*]
(b) Each
of
Sections 4 and 7 of Exhibit 2.2 shall be amended to add [*]
and
either [*]
or
[*]
as
Republic may elect pursuant to Section 3 of Exhibit 2.2, as
amended.
|
9.
|
Modifications. Republic shall modify, at its sole expense, each of the existing EMB-170s from a seventy-two (72) to a seventy-six (76) seat configuration during the normal heavy check for each aircraft. |
Except
as
amended hereby, the Agreement remains in full force and effect and unchanged
in
all respects. Upon its execution by the parties, this Second Amendment
together with the Agreement, will be the complete and binding understanding
of
the parties with respect to the subject matter hereof.
(signature
page follows)
_____________
*Confidential
-2-
IN
WITNESS WHEREOF,
US
Airways and Republic have caused this Second Amendment to be executed by
their duly authorized representatives on the day and year first above
written.
| REPUBLIC AIRLINE INC. | US AIRWAYS, INC. | ||
| /s/ Xxxxx Xxxxxxx | /s/ W. Xxxxxxx Xxxxxx | ||
|
|
|
||
|
Name:
Xxxxx Xxxxxxx
Title: President |
Name:
W. Xxxxxxx
Xxxxxx Title: Chairman, President & CEO |
-3-
Exhibit
5.1 - Pricing Model for EMB 175s
[*]
[*]
|
[*]
|
[*]
|
|
|
[*]
|
||
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
||
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
||
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
||
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
||
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
||
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
||
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
|
[*]
|
[*]
|
[*]
|
*
Confidential
-4-
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
___________
*Confidential
-5-
Exhibit
5.1(a)
[*]
[*]
|
[*]
|
[*]
|
[*]
|
||||||||||
|
[*]
|
[*]
|
[*]
|
[*]
|
|||||||||
|
[*]
|
[*]
|
|||||||||||
|
[*]
|
[*]
|
|||||||||||
|
[*]
|
[*]
|
|||||||||||
|
[*]
|
[*]
|
|||||||||||
|
[*]
|
[*]
|
|||||||||||
|
[*]
|
[*]
|
|||||||||||
|
[*]
|
[*]
|
|||||||||||
|
[*]
|
||||||||||||
|
[*]
|
||||||||||||
|
[*]
|
||||||||||||
___________
*Confidential
-6-
Exhibit
5.1 (b)
E175
Aircraft Delivery
Schedule
|
Aircraft
|
In-Service
|
Aircraft
|
In-Service
|
|
No.
|
Date
|
No.
|
Date
|
|
1
|
[*]
|
16
|
[*]
|
|
2
|
[*]
|
17
|
[*]
|
|
3
|
[*]
|
18
|
[*]
|
|
4
|
[*]
|
19
|
[*]
|
|
5
|
[*]
|
20
|
[*]
|
|
6
|
[*]
|
21
|
[*]
|
|
7
|
[*]
|
22
|
[*]
|
|
8
|
[*]
|
23
|
[*]
|
|
9
|
[*]
|
24
|
[*]
|
|
10
|
[*]
|
25
|
[*]
|
|
11
|
[*]
|
26
|
[*]
|
|
12
|
[*]
|
27
|
[*]
|
|
13
|
[*]
|
28
|
[*]
|
|
14
|
[*]
|
29
|
[*]
|
|
15
|
[*]
|
30
|
[*]
|
Note:
The
in-service dates reflect best estimates at the date of signing.
Contractor
will advise US Airways at least 30 days in advance of the
actual
in-service date of each E175 Aircraft
_____________
*
Confidential
-7-
